B. B. Adams General Contractors, Inc. v. Department of Housing and Urban Development, 73-2706

Decision Date20 September 1974
Docket NumberNo. 73-2706,73-2706
Citation501 F.2d 176
PartiesB. B. ADAMS GENERAL CONTRACTORS, INC., Plaintiff-Appellee, v. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al., Defendants-Appellants, v. James A. PATE, Defendant-Appellant, Modern American Mortgage Corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Fifth Circuit

Dale Wootton, Dallas, Tex., for James A. Pate.

Frank D. McCown, U.S. Atty., Fort Worth, Tex., Roger J. Allen, Asst. U.S. Atty., Dallas, Tex., Robert E. Kopp, Barbara L. Herwig, Dept. of Justice, Washington, D.C., for HUD.

J. P. Jones, Harry M. Roberts, Dallas, Tex., for Modern Am. Mortgage.

Paul M. Thorp, Dallas, Tex., for B. B. Adams Contr.

Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.

PER CURIAM:

Adams, a general contracting firm, brought this action on claims arising from its work in constructing the Penzance Hamlet Apartments in Dallas, Texas. Adams named as defendants the owner of the apartments, Col. James A. Pate; the lender, Modern American Mortgage Corporation; and the insurer of the loan, the Department of Housing and Urban Development (HUD), together with Manuel Sanchez, HUD's Dallas Area Director. All parties moved for summary judgment. The district court overruled the motions of Pate, HUD and Sanchez, granted the motion filed by Modern American, and granted in part the motion filed by Adams. Pate, HUD and Sanchez appeal. We dismiss the appeal for want of jurisdiction.

The order on the motions for summary judgment did not dispose of Adams' claim against Pate for extra work. Thus it adjudicated fewer than all of the claims of all of the parties, and it is not a final, appealable order under Rule 54(b) in the absence of an express determination that there is no just reason for delay and an express direction for the entry of judgment. The record reveals that Pate moved for certification under Rule 54(b) on the same day he filed notice of appeal. The district court, however, never ruled on the motion nor did it file the required certificate. In its absence we have no jurisdiction to entertain this appeal, a fact that we are required to notice on our own initiative even though none of the parties argues it. We therefore dismiss the appeal for lack of jurisdiction. General Motors Corp., Inc. v. Dade Bonded Warehouse, Inc., 5 Cir. 1974, 498 F.2d 327; Anderson v. Robinson, 5 Cir. 1974, 494 F.2d 45; Foret v. McDermott, 5 Cir. 1973, 484 F.2d 992; 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil 2660.

Since this case must be remanded to the district court, we note that there appears to be a serious question regarding the existence of jurisdiction over the subject matter of this suit. Defendants HUD and Sanchez argued below and renewed the argument in their appellate brief that there was no jurisdiction as to them under any of the three jurisdictional statutes cited by Adams. They argue that 28 U.S.C.A. 1331 cannot confer jurisdiction since Adams' rights arise from contracts rather than from the Constitution, laws, or treaties of the United States. They also argue that 28 U.S.C.A. 1346, which grants jurisdiction over suits on express and implied contracts with the United States, is inapplicable because it allows only suits for damages, whereas Adams seeks only declaratory and injunctive relief against HUD and Sanchez. Finally, they argue with much case support that HUD owed no duty whatsoever to either Adams or Pate under its insurance contract with Modern American, so there is no ministerial duty which can be enforced by mandamus under 28 U.S.C.A. 1361. Furthermore they allege that the functions at issue are discretionary rather than ministerial and...

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    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 11, 1977
    ...appeal after remand, 550 F.2d 1016 (5th Cir. 1977) (case remanded for certification); B. B. Adams General Contractors, Inc. v. Department of Housing and Urban Development, 501 F.2d 176 (5th Cir. 1974); General Motors Corp. v. Dade Bonded Warehouse, Inc., 498 F.2d 327 (5th Cir. 1974). It is ......
  • Cross, Matter of
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • February 1, 1982
    ...Liberty Mutual Insurance Co. v. Wetzel, 424 U.S. 737, 740, 96 S.Ct. 1202, 1204, 47 L.Ed.2d 435 (1976); B. B. Adams General Contractors, Inc. v. HUD, 501 F.2d 176, 177 (5th Cir. 1974). The unusual posture in which this case came to the court of appeals creates such a question. Cross appeals ......
  • Allis-Chalmers Corp. v. Philadelphia Elec. Co.
    • United States
    • U.S. Court of Appeals — Third Circuit
    • July 10, 1975
    ...summary judgment as final, we are without jurisdiction to entertain this appeal. See B. B. Adams General Contractors, Inc. v. Department of Housing and Urban Development, 501 F.2d 176 (5th Cir. 1974). Since we cannot consider the merits of a non-final order, we turn first to the threshold q......
  • Thompson v. Betts
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • March 11, 1985
    ...614 F.2d 77, 78 (5th Cir.1980); Cason v. Owen, 578 F.2d 572, 574 (5th Cir.1978); B.B. Adams General Contractors, Inc. v. Department of Housing & Urban Development, 501 F.2d 176, 177 (5th Cir.1974). We may, nonetheless, exercise jurisdiction over the district court's order irrespective of th......
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