807 F.2d 155 (10th Cir. 1986), 84-2192, Budinich v. Becton Dickinson and Co.

Docket Nº:84-2192.
Citation:807 F.2d 155
Party Name:Joseph G. BUDINICH, Plaintiff-Appellant, v. BECTON DICKINSON AND COMPANY, a foreign corporation, Defendant-Appellee.
Case Date:December 12, 1986
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

Page 155

807 F.2d 155 (10th Cir. 1986)

Joseph G. BUDINICH, Plaintiff-Appellant,


BECTON DICKINSON AND COMPANY, a foreign corporation,


No. 84-2192.

United States Court of Appeals, Tenth Circuit

December 12, 1986

Page 156

William S. Finger of Nicholls, Kusic, Frank & Finger, Evergreen, Colo., for plaintiff-appellant.

Terre Lee Rushton of Kelly, Haglund, Garnsey & Kahn, Denver, Colo., for defendant-appellee.

Before McKAY, SETH and TACHA, Circuit Judges.


In accordance with 10th Cir.R. 9(e) and Fed.R.App.P. 34(a), this appeal came on for consideration on the briefs and record on appeal.

This action arises out of an employment contract under which plaintiff served as defendant's western regional manager for a salary plus commission on sales. Prior to plaintiff's completion of a major sale to the United States Air Force, defendant's commission structure was modified, resulting in a substantial reduction in the commission ultimately paid to plaintiff. Although he protested, plaintiff continued his employment with defendant. Sometime later, and shortly before an order for spare parts and a supplemental purchase order were placed by the Air Force, defendant terminated plaintiff's employment.

Plaintiff initially brought this diversity action asserting claims for breach of contract, quantum meruit, misrepresentation, and outrageous conduct. Following a lengthy procedural course, during which plaintiff's claims were revised somewhat as a result of the district court's grant of partial summary judgment for defendant, the case was tried to a jury, which found for defendant on plaintiff's misrepresentation

Page 157

and implied contract (for commission on the spare parts order) claims but awarded plaintiff $5,000 on an implied contract theory regarding the supplemental purchase order.

The district court entered judgment on the verdict on March 26, 1984. Plaintiff timely filed an original and an amended new trial motion challenging various substantive rulings by the district court, as well as a motion for attorney's fees. On May 16, 1984, the new trial motions were disposed of, but the district court reserved determination of the amount of attorney's fees to be awarded to plaintiff. The district court ultimately issued its final order regarding the fees issue on August 2, 1984, and plaintiff filed his sole notice of appeal from the court's post-trial orders on August 29, 1984.

Defendant has moved for summary dismissal of this appeal as untimely, relying on the principle we first announced in Cox v. Flood, 683 F.2d 330 (10th Cir.1982). In Cox and several later cases, this court held that judgments finally disposing of the merits are appealable even though questions relating to attorney's fees have been left undecided. Id. at 331; see, e.g., Art Janpol Volkswagen v. Fiat Motors, 767 F.2d 690 (10th Cir.1985); cf. Dataq, Inc. v. Tokheim Corp., 736 F.2d 601 (10th Cir.1984). Accordingly, an appeal on the merits must be filed within the requisite time period following entry of final judgment thereon, notwithstanding that a motion for attorney's fees may be pending. See West v. Keve, 721 F.2d 91 (3d Cir.1983); Smillie v. Park Chemical Co., 710 F.2d 271 (6th Cir.1983). Since plaintiff did not file a notice of appeal from the district court's May 16, 1984, order disposing of his new trial motions until August 29, 1984, when he appealed the district court's award of $1,000 in attorney's fees, defendant contends that the former appeal must be dismissed as untimely.

Plaintiff seeks to avoid the effect of the authorities cited by arguing that, unlike our previous decisions, the present case involves a situation where attorney's fees are an inherent part of the relief sought and, consequently, must be determined before the judgment on the merits can be considered final. While there is some authority for the type of situational approach advocated by plaintiff, see F.H. Krear & Co. v. Nineteen Named Trustees, 776 F.2d 1563 (2d Cir.1985); McQurter v. Atlanta, 724 F.2d 881 (11th Cir.1984); Holmes v. J. Ray McDermott & Co., 682 F.2d 1143 (5th Cir.1982), cert. denied, 459 U.S. 1107, 103 S.Ct. 732, 74 L.Ed. 956 (1983), we believe the better course is followed in those circuits which treat all attorney's fees motions as procedural equivalents and uniformly require separate notices of appeal when such motions are resolved after judgment has been rendered on the merits. See Exchange National Bank v. Daniels, 763 F.2d 286 (7th Cir.1985); Morgan v. Union Metal Manufacturing, 757 F.2d 792 (6th Cir.1985); International Association of Bridge, etc., Local Union 75 v. Madison Industries, Inc., 733 F.2d 656 (9th Cir.1984); West v. Keve, supra.

A uniform, unqualified rule is especially appropriate in the present context for several reasons. First, the de facto, case-by-case analysis required by the situational approach,...

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