Am. Iron Workers v. N. Am. Construction Corp.

• Decision Date: 26 April 2001
• Docket Number: No. 99-35379,99-35379
• Citation: 248 F.3d 892
• Parties: (9th Cir. 2001) AMERICAN IRONWORKS & ERECTORS INC., a Washington corporation, by the United States for the use and benefit of; HARRY JOHNSON PLUMBING & EXCAVATING CO., INC, a Washington corporation; E&E ACOUSTIC II INC/COMMERCIAL CONSTRUCTORS INC, a joint venture of an Oregon corporation and an Idaho corporation, Plaintiffs-Appellees, v. NORTH AMERICAN CONSTRUCTION CORPORATION, a Texas corporation doing business in Washington, Defendant, and FEDERAL INSURANCE COMPANY, a compensated surety from New Jersey doing business in Washington; NORTH AMERICAN MECHANICAL SERVICES CORP, a Texas corporation and doing business in Washington dba North American Construction Corporation; Defendants-Appellants, MIKKELBORG, BROZ, WELLS & FRYER, PLLC, ("Mikkelborg Firm"), Defendant-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 892

248 F.3d 892 (9th Cir. 2001)

AMERICAN IRONWORKS & ERECTORS INC., a Washington corporation, by the United States for the use and benefit of; HARRY JOHNSON PLUMBING & EXCAVATING CO., INC, a Washington corporation; E&E ACOUSTIC

II INC/COMMERCIAL CONSTRUCTORS INC, a joint venture of an Oregon corporation and an Idaho corporation, Plaintiffs-Appellees, v. NORTH AMERICAN CONSTRUCTION CORPORATION, a Texas corporation doing business in Washington, Defendant, and FEDERAL INSURANCE COMPANY, a compensated surety from New Jersey doing business in Washington; NORTH AMERICAN MECHANICAL SERVICES CORP, a Texas corporation and doing business in Washington dba North American Construction Corporation; Defendants-Appellants, MIKKELBORG, BROZ, WELLS & FRYER, PLLC, ("Mikkelborg Firm"), Defendant-Appellee.

No. 99-35379

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted January 9, 2001

Filed April 26, 2001

Todd M. Lonergan, Coats, Rose, Yale, Ryman & Lee, Houston; David R. Trachtenberg Groff & Murphy, PLLC, Seattle, Washington, for appellant Federal Insurance Company.

Mitchell A. Broz, Mikkelborg, Broz, Wells & Fryer, PLLC, Seattle, Washington, for appellee Mikkelborg, Broz, Wells & Fryer.

Appeal from the United States District Court for the Eastern District of Washington Fred L. Van Sickle, District Judge, Presiding. D.C. No. CV-95-00099-FVS.

Before: M. Margaret McKeown, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges.

OPINION

McKEOWN, Circuit Judge:

This case requires us to decide whether an entry of judgment triggers the notice of appeal period for a prior interlocutory order granting, but not disbursing, attorney's fees. We conclude that it does.

BACKGROUND

This litigation began in 1995 as a claim brought by subcontractors for payment for work completed on federal public works projects under the Miller Act, 40 U.S.C. 270a et seq. Defendant North American Mechanical Services Corporation and its surety, Federal Insurance Company, were represented by Tyler, Cooper & Alcorn of New Haven, Connecticut. Mitchell Broz of Mikkelborg, Broz, Wells & Fryer ("the Mikkelborg firm") represented Federal and North American as local counsel in Washington pursuant to Local Rule E.D. Wash. 83.2(c). ¹ North American's arrangement with Federal required North American to provide a defense for both parties in the Miller Act case.

Beginning in 1997, the Mikkelborg firm corresponded directly with North American and its national counsel concerning payment of fees. Although some payments were made, the demand letters were, by and large, met with silence. In the spring of 1998, it became evident to all parties that North American faced cash flow problems. The Mikkelborg firm expressed continued concern about the unpaid fees and, in a series of unanswered letters, the firm embarked on a campaign to collect its fees. About the same time, a conflict arose over North American and Federal being represented by a single lead counsel. The court granted separate counsel permission to appear pro hac vice on behalf of Federal. Late that summer, North American offered to pay $ 10,000 immediately and $ 10,000 after the case settled, with Federal picking up all fees incurred after May 1, 1998. The Mikkelborg firm declined the offer, apparently because it believed that North American was on the brink of insolvency.

These events prompted the Mikkelborg firm to file a motion to withdraw, asking the district court to condition the substitution of local counsel on the payment of outstanding fees. The firm argued that it had been constructively discharged when neither North American nor Federal responded to fee inquiries and then took steps to substitute counsel. North American and Federal opposed the withdrawal and fee request on the grounds that the firm was withdrawing unilaterally and without good cause.

On October 19, 1998, the district court issued an order allowing the Mikkelborg firm to withdraw and permitting substitution of local counsel on the condition that Federal and North American pay outstanding attorney's fees in the amount of $ 21,413.98. The court noted, however, that it did not want "to frustrate settlement by delaying substitution of new local counsel." Thus, substitution was allowed but it was conditioned on security for payment of fees. In order to preserve rights on appeal, the court offered three options for payment of fees: (1) payment into the registry of the court; (2) payment to a third party agreed upon by the Mikkelborg firm; or (3) delivery of a bond to the District Court Executive. Federal chose to pay the money into the court registry.

Soon after deposit of the fees, the parties successfully mediated all claims. On December 1, 1998, the court entered an Order re Mediator's Award that outlined the mediation history and settlement terms. At the same time, the court entered a separate Judgment in a Civil Case against North American and Federal in the amount of $ 250,000. They did not appeal the judgment.

On March 8, 1999, the Mikkelborg firm moved the court to disburse the moneys from the court's registry. In response, North American and Federal filed an opposition, a cross-motion to withdraw and reverse the October 1998 order, and a notice of appeal. On May 28, 1999, the district court issued an order disbursing the fees to the Mikkelborg firm and denied the cross motion as untimely under Federal Rule of Civil Procedure 60(b) and unjustified by extraordinary circumstances. North American and Federal then filed an amended notice of appeal on June 7, 1999. ² The district court has not entered any judgments since December 1, 1998.

DISCUSSION

Our first order of business is to sort out the legal status of the district court's various orders and the two notices of appeal. Although the Mikkelborg firm argues that the October 1998 order awarding fees was a final appealable order, we do not agree. That order was an interlocutory order that was merged into the final December 1998 judgment. As such, the appeal period began to run on December 1, 1998. Federal filed its first notice of appeal on April 6, 1999 -- five months after the district court's order on fees and four months after the district court entered judgment on the underlying claims. We conclude that Federal's first notice of appeal was untimely.

Federal's argument that the only final order as to fees was the May 28, 1999 order and that no final judgment was entered is not well taken. The May 28, 1999 order disbursing the funds was not a final order for the purposes of the timeliness of appeal, but simply a housekeeping order to execute the court's prior order on fees. The portion of the order denying the challenge to the disbursal order is properly characterized as a denial of an untimely Rule 60(b) motion. As such, Federal's second notice of appeal, filed on June 7, 1999, is timely only as to the order denying the Rule 60(b) motion. Our rationale for this holding follows.

I. THE JUDGMENT AND NOTICES OF APPEAL

Because we "ordinarily have jurisdiction over appeals from 'final decisions of the district courts, '" Cunningham v. Hamilton County, 527 U.S. 198, 200, 144 L. Ed. 2d 184, 119 S. Ct. 1915 (1999) (quoting 28 U.S.C. 1291), the question is which district court order ended the litigation and resulted in a final appealable order. Turning first to the district court's October 19, 1998 order on fees, it takes little analysis to conclude that the order fully resolved the fees issue but not the underlying Miller Act claims. The order addressed only two subjects: the Mikkelborg firm's request to withdraw and payment of the firm's fees before substitution of new local counsel. The order makes no mention of the merits of the claims, and it is not final because it does not "end the litigation on the merits and leave nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 89 L. Ed. 911, 65 S. Ct. 631 (1945). Resolving the attorney's fee and substitution of counsel issues neither ended the litigation nor left the court simply to execute the judgment.

This conclusion is reinforced by the Supreme Court's recent decision in Cunningham, where the Court addressed the appealability of an interlocutory order imposing sanctions on an attorney under Federal Rule of Civil Procedure 37(a). The Cunningham court held that a sanctions order is not a final appealable order, nor is it appealable under the collateral order doctrine. 527 U.S. at 210. Although there are differences between sanctions under Rule 37(a) and substitution of counsel conditioned on payment of fees, the parallel considerations convince us that the Cunningham rationale applies here. Like Rule 37(a) sanctions, the present situation invokes concerns regarding finality, avoiding piecemeal appeals, and availability of effective appellate review. Therefore, like an interlocutory order imposing Rule 37(a) sanctions, an interlocutory order granting attorney's fees as a condition of substituting counsel is not immediately appealable.

The next issue is whether the December 1, 1998 judgment merged all prior interlocutory orders for the purposes of filing a notice of appeal or whether the October 19, 1998 order required a separate entry of judgment. An interlocutory order becomes appealable when final judgment is entered. The Supreme Court has explained the importance of the final judgment rule:

It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of "avoiding the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals...