Campbell v. Bowlin, 83-2130

• Decision Date: 06 February 1984
• Docket Number: No. 83-2130,83-2130
• Citation: 724 F.2d 484
• Parties: Robert L. CAMPBELL, Plaintiff-Appellant Cross-Appellee, v. W.R. BOWLIN, et al., Defendants-Appellees Cross-Appellants. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 484

724 F.2d 484

Robert L. CAMPBELL, Plaintiff-Appellant Cross-Appellee, v. W.R. BOWLIN, et al., Defendants-Appellees Cross-Appellants.

No. 83-2130

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Feb. 6, 1984.

Daves, McCabe & Hahn, Larry R. Daves, Tyler, Tex., for plaintiff-appellant cross-appellee.

Fairchild, Price, Russell & Thomas, Grover Russell, Jr., Center, Tex., for defendants-appellees cross-appellants.

Appeals from the United States District Court for the Eastern District of Texas.

Before REAVLEY, RANDALL and WILLIAMS, Circuit Judges.

PER CURIAM:

Plaintiff-appellant, Robert L. Campbell, appeals from the district court's directed verdict in favor of the defendants in this section 1983 action. Finding that the case should have been presented to the jury, we reverse and remand for trial.

I. FACTUAL AND PROCEDURAL BACKGROUND.

Campbell filed this section 1983 ¹ suit against the City of Center, Texas, and various members of the City Council, in both their individual and official capacities, on August 5, 1981, alleging that he had been denied municipal services to a tract of land he had purchased in 1975. As a basis for his suit, he alleged that the defendants had deprived him of water and sewage facilities and had refused to grant him building permits on account of race and on account of his filing of complaints with various government agencies concerning the expenditure of public funds; Campbell further alleged that once the city agreed to connect his property to city water and sewage lines, they failed to connect the services within the agreed forty-five days because of the previous complaints filed by Campbell.

In 1975, Campbell purchased a piece of property located in the eastern portion of Center, in an area known as "the Quarters," which is populated almost entirely by black residents. Two old houses sat upon this property, neither of which had sewers or running water. Campbell later built four additional houses upon this property. None of these houses were hooked up to city water and sewage lines until 1981. Campbell claims that this was due to racial animus on the part of city officials. At trial, after both parties had presented their evidence, the district court found that the evidence clearly and overwhelmingly established that Campbell had not been discriminated against on the basis of race pursuant to an official policy or custom of the City of Center. The district court accordingly granted defendants' motion for a directed verdict; judgment was entered on February 22, 1983 and the defendants were awarded attorneys' fees for the trial.

Campbell filed a notice of appeal on February 28, 1983. On March 3, defendants filed a motion to alter or amend the judgment of the district court pursuant to Fed.R.Civ.P. 59(e), seeking attorneys' fees for this appeal under 42 U.S.C. Sec. 1988 (1976). ² An order granting the motion was entered April 15, 1983. On May 20, Campbell filed a motion to extend the time for filing his notice of appeal, on grounds that his "counsel failed to realize that a new notice of appeal was required" under Fed.R.App.P. 4(a)(4). Defendants filed an opposition. The district court granted an extension and Campbell filed his notice of appeal on May 31, 1983, within the time set by the court. Defendants cross-appealed the order.

II. TIMELINESS OF CAMPBELL'S APPEAL.

The first issue we must address is whether Campbell's appeal should be dismissed as untimely. Fed.R.App.P. 4(a)(1) provides that a notice of appeal must be filed within thirty days of entry of final judgment; Campbell filed a notice of appeal within thirty days of the district court's final judgment. However, Fed.R.App.P. 4(a)(4) provides that if a timely Fed.R.Civ.P. 59(e) motion is filed,

the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motions. A notice of appeal filed before the disposition of any of the above motions shall have no effect. A new notice of appeal must be filed within the prescribed time measured from the entry of the order disposing of the motion as provided above.

Campbell failed to file a new notice of appeal within thirty days of the district court's order granting defendants' Rule 59(e) motion. He thereafter requested an extension of time for filing a notice of appeal under Fed.R.App.P. 4(a)(5), which provides that "upon a showing of excusable neglect or good cause," the district court "may extend the time for filing a notice of appeal upon motion filed not later than 30 days after the expiration of the time prescribed by this Rule 4(a)." ³ Campbell's sole excuse for being untimely was that his counsel was not aware that a new notice of appeal was required. The district court granted an extension "for good cause shown," with no finding concerning excusable neglect.

Defendants argue that the district court abused its discretion in granting an extension of time. They argue that Campbell's motion should have been examined under the "excusable neglect" standard, and that a mistake or misunderstanding of the law by counsel cannot constitute "excusable neglect." See Wansor v. George Hantscho, Co., 570 F.2d 1202, 1205-07 (5th Cir.1978), cert. denied, 439 U.S. 953, 99 S.Ct. 350, 58 L.Ed.2d 344 (1979).

As to the district court's original judgment and award of attorneys' fees for trial, we do not reach these arguments because we find that defendants' post-judgment motion for an award of attorneys' fees was improperly characterized as a Fed.R.Civ.P. 59(e) motion to alter or amend the judgment and that, therefore, the operation of Fed.R.App.P. 4(a)(4) was never triggered. The Supreme Court has recently held, in White v. New Hampshire Department of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), that a post-judgment motion for an award of attorneys' fees under section 1988 is not cognizable under Fed.R.Civ.P. 59(e). In White, the class-action plaintiffs brought suit against the New Hampshire Department of Employment Security (NHDES) under section 1983. After judgment for the plaintiffs and pending an appeal by NHDES, the parties signed a settlement agreement which was subsequently approved by the district court.

More than four months after the entry of final judgment, the plaintiffs filed a motion requesting an award of attorneys' fees under section 1988. The district court granted plaintiffs' motion. The court of appeals reversed the district court's award of attorneys' fees, holding that the plaintiffs' post-judgment motion for attorneys' fees constituted a motion to alter or amend the judgment under Fed.R.Civ.P. 59(e) which was not brought within that rule's ten-day time limit. The Supreme Court held that only reconsideration of matters properly encompassed in a decision on the merits is cognizable under Rule 59(e), and that a request for attorneys' fees raises legal issues collateral to the main cause of action; thus, it raises issues to which Rule 59(e) was never intended to apply. In so holding, the Court relied upon our decision in Knighton v. Watkins, 616 F.2d 795 (5th Cir.1980), where we said:

[A] motion for attorney's fees is unlike a motion to alter or amend a judgment. It does not imply a change in the judgment, but merely seeks what is due because of the judgment. It is, therefore, not governed by the provisions of Rule 59(e).

616 F.2d at 797.

It might be argued that the present case is distinguishable from both White and Knighton in that the latter cases involved final judgments which did not deal at all with the question of attorneys' fees, whereas in this case the original judgment of the district court did contain an award of attorneys' fees for the trial; thus, the subsequent award of attorneys' fees for the appeal might be seen as altering or amending the original award of attorneys' fees which was part of the original judgment, thereby placing the motion within the ambit of Fed.R.Civ.P. 59(e). We do not find this distinction valid and are not persuaded to deviate from the teachings of White and Knighton in this case. These cases clearly establish that the question of attorneys' fees is a collateral issue. If an award of attorneys' fees is collateral to the judgment on the merits, then the time at which they are awarded is immaterial; whether awarded at the same time judgment is entered or four months later, they are still collateral to the main cause of action. Therefore, even if the defendants' post-judgment motion could be seen as altering the original award of attorneys' fees, that would not prevent Campbell from proceeding with an appeal of the judgment on the merits.

We do not, however, think that the defendants' motion goes even that far; the defendants' motion was collateral both to the judgment and the award of attorneys' fees for trial. First, the granting of attorneys' fees for appeal did not in any way alter or amend the amount previously awarded for trial. Second, the award is contingent upon the defendants being the successful party on appeal; therefore, it is possible that the defendants could receive nothing from the grant of their motion. Finally, motions for attorneys' fees for appeal are usually filed and granted after the appeal has been exhausted. This long-established practice demonstrates the collateral nature of such a motion; if this question were not collateral, the disposition on appeal would foreclose the issue from being subsequently raised. Therefore, we find that the defendants' post-judgment motion for attorneys' fees for appeal was not cognizable under Rule 59(e). Although addressed by all parties and the district court as a Rule 59(e) motion, the motion raised issues collateral to both the judgment on the merits and the award of attorneys' fees for trial. Thus, Fed.R.App.P. 4(a)(4) was never triggered and Campbell's original notice of appeal remains operative as to the judgment on the merits and the award...