Memphis Sheraton Corp. v. Kirkley
Citation | 614 F.2d 131 |
Decision Date | 05 February 1980 |
Docket Number | Nos. 77-1570,77-1571,s. 77-1570 |
Parties | MEMPHIS SHERATON CORPORATION, Plaintiff-Appellee, Cross-Appellant, v. Billy J. KIRKLEY and Robert McCullough, Defendants-Appellants, Cross-Appellees. |
Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
John W. Slater, Jr., Memphis, Tenn., for defendants-appellants, cross-appellees.
Robert L. Dinkelspiel, Charles M. Crump, Apperson, Crump, Duzane & Maxwell, John B. Maxwell, Jr., Memphis, Tenn., for plaintiff-appellee, cross-appellant.
Before ENGEL and KENNEDY, Circuit Judges, and PECK, Senior Circuit Judge.
The parties have filed cross-appeals from a judgment of the District Court entered July 5, 1977. The judgment recites that "Judgment is awarded in the manner and to the extent recited in the Opinion of the Court entered on July 5, 1977." The action is one for monies due on a guaranty. The memorandum opinion awarded $113,717.00 "plus interest and reasonable fees, plus costs and expenses incurred in enforcing this liability under the guaranty agreement." Subsequent to the docketing of the appeals, the parties recognized that the opinion was ambiguous with respect to the amount of interest awarded. A motion to alter judgment was filed with the District Court. The District Judge entered an order that he would enter an amended judgment with leave of the appellate court to specify the rate of interest and the date from which interest would run. This Court cannot review the decision below until the amount of interest due on the guaranty has been specified as the decision is not a final judgment.
The judgment also does not include the amount to be awarded as attorney fees. The guaranty provided that plaintiffs could recover "all expenses, legal and/or otherwise (including Court costs and reasonable attorneys fees) incurred by Sheraton in collecting or endeavoring to collect" the guaranty.
The question of whether a judgment, which includes an award of attorney fees against the opposing litigants but does not fix the amount of such fees is a final judgment, is one on which the courts of appeals are divided. Some courts have held that an order granting or denying the attorney fees is collateral and appealable even though the main issue in dispute is not final or appealable. See United States Steel Corp. v. United Mine Workers of America, 456 F.2d 483, 486-87 (3rd Cir. 1972), Cert. denied, 408 U.S. 923, 92 S.Ct. 2492, 33 L.Ed.2d 334 ( ); Preston v. United States, 284 F.2d 514, 515 & n.1 (9th Cir. 1960) ( ); Angoff v. Goldfine, 270 F.2d 185, 186 (1st Cir. 1959) ( ). Some courts have directly addressed the issue in the present case and found the opinion below was final and appealable even though the amount of attorney fees had not been determined. See Swanson v. American Consumer Industries, Inc., 517 F.2d 555 (7th Cir. 1975) ( ); Hidell v. International Diversified Investments, 520 F.2d 529, 532 n.4 (7th Cir. 1975) ( ); Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 n.2 (3rd Cir. 1976), Cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 ( ).
Other courts feel that the failure to specify the amount of attorney fees prevents a judgment from being final. See Paeco, Inc. v. Applied Moldings, Inc., 562 F.2d 870, 878 (3rd Cir. 1977) ( ); Williams v. Ezell, 531 F.2d 1261 (5th Cir. 1976) ( ); Aetna Casualty & Surety Company v. Giesow, 412 F.2d 468 (2d Cir. 1969) ( ). But see Holley v. Lavine, 605 F.2d 638, 642 & n.6 (2d Cir. 1979) (...
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