Terket v. Lund

• Decision Date: 06 June 1980
• Docket Number: No. 79-1964,79-1964
• Citation: 623 F.2d 29
• Parties: John S. TERKET, Plaintiff-Appellant, v. Harold LUND et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 29

623 F.2d 29

John S. TERKET, Plaintiff-Appellant, v. Harold LUND et al., Defendants-Appellees.

No. 79-1964.

United States Court of Appeals, Seventh Circuit.

Argued May 19, 1980.

Decided June 6, 1980.

Gordon J. Arnett, Chicago, Ill., for plaintiff-appellant.

Janette Freeman, City of Evanston, Evanston, Ill., for defendants-appellees.

Before PELL, SPRECHER and CUDAHY, Circuit Judges.

PELL, Circuit Judge.

The plaintiff, John Terket, brought this civil rights action alleging that the defendants, various police officers and a complaining witness, maliciously had him arrested and prosecuted on false charges of disorderly conduct. The district court granted the defendants' motion for summary judgment on the grounds that facts shown in the defendants' affidavits, and not contradicted by Terket, established probable cause for the arrests and prosecution; and that Illinois law authorized the defendant police officers to execute the arrest warrants anywhere in the state. Terket filed an appeal from that judgment. In his brief on appeal, he also contends that the district court's subsequent order, awarding attorneys' fees against him under 42 U.S.C. § 1988, was improper because the district court lost jurisdiction to enter such an order when Terket filed his notice of appeal from the underlying judgment.

I.

Terket contends that summary judgment was improper because genuine fact issues exist as to two matters: (1) whether the defendant Evanston police officers acted beyond their authority by arresting Terket in Chicago under an arrest warrant issued by a judge in Evanston; and (2) whether defendant Harold Lund, one of the Evanston police officers, knew the complaining witness, Lucille Buches, and maliciously caused her to sign the disorderly conduct complaint against Terket. Neither contention has any merit.

Terket's allegation that the police officers had no authority to arrest him in Chicago raises an issue of law, not fact. It is not disputed that these defendants were Evanston police officers executing an Evanston arrest warrant in Chicago. The issue before the district court then became whether, on those undisputed facts, the defendants were entitled to judgment as a matter of law that their conduct was legally authorized and therefore not a violation of Terket's rights. Rule 56(c), Fed.R.Civ.P. The court correctly held that Illinois law authorized the Evanston police to execute an arrest warrant anywhere in the state. Ill.Rev.Stat. ch. 38, § 107-5(c). The case to the contrary relied on by Terket was reversed by the Illinois Supreme Court. People v. Carnivale, 61 Ill.2d 57, 329 N.E.2d 193 (1975), rev'g, 21 Ill.App.3d 780, 315 N.E.2d 609 (1974). Accord People v. Durham, 71 Ill.App.3d 725, 28 Ill.Dec. 350, 390 N.E.2d 517 (5th Dist. 1979); People v. Clark, 46 Ill.App.3d 240, 4 Ill.Dec. 785, 360 N.E.2d 1160 (5th Dist. 1977).

Terket also claims there are disputed fact issues relating to whether Lund and Buches were friends prior to the arrests and prosecution and whether Lund improperly induced Buches to sign the disorderly conduct complaints. The existence of disputed facts is not enough, however, to defeat a motion for summary judgment. The disputed facts must also be material to the legal issues in the case. See Rule 56(c), supra.

Construed liberally, Terket's § 1983 complaint alleges a deprivation of liberty without due process through unlawful arrest, false imprisonment, and malicious prosecution. ¹ Under Illinois law, an essential element of such a cause of action is that the arrests, imprisonment, or prosecution be undertaken without probable cause. Both lack of probable cause and malice must be shown. Thus proof of the actual existence of probable cause is an absolute bar to the action. If the defendants had probable cause to believe that Terket was guilty of disorderly conduct, their allegedly malicious motives are immaterial. See e. g., Magnus v. Cock Robin Ice Cream Co., 52 Ill.App.3d 110, 9 Ill.Dec. 769, 367 N.E.2d 203 (1st Dist. 1977). The same rules apply in an action under § 1983. Hunter v. Clardy, 558 F.2d 290 (5th Cir. 1977); Beauregard v. Wingard, 362 F.2d 901 (9th Cir. 1966).

Buches' complaint, and the resulting arrests and prosecution, charged disorderly conduct by Terket, in violation of Ill.Rev.Stat. ch. 38, § 26-1(a) (1). ² As this court has noted, "(t)he emphasis of the statute is upon the tendency of the conduct to disturb others and to provoke disruptions of public order and upon the unreasonableness of the activity when viewed in the context of the surrounding circumstances." United States v. Woodard, 376 F.2d 136, 139 (7th Cir. 1967). According to the affidavits and police documents submitted with the defendants' motion for summary judgment, in addition to sending gifts and taping love notes to Buches' mailbox, Terket followed her to an ice skating rink where he "cornered" and "threatened" her; he frequently followed her taxi-cab in his car, as she returned home from work after mid-night; and at least once he swerved his car in front of the cab in which Buches was riding. Nowhere in the record has Terket ever denied doing any of these things. ³ The district court correctly found that these undisputed facts gave the defendants probable cause to believe Terket could be found guilty of disorderly conduct. Therefore, the defendants were entitled to judgment as a matter of law and the grant of summary judgment was proper. ⁴

II.

The remainder of Terket's arguments on appeal challenge the district court's award of attorneys' fees to the defendants. The district court granted the motion for summary judgment on July 18, 1979. On July 27, the defendants moved for an award of attorney's fees under 42 U.S.C. § 1988, asserting that Terket's action was "meritless, frivolous or unreasonable." On August 1, the district court entered an order clarifying the fact that its earlier rulings resolved all of the issues in the case and should be considered a final disposition. On August 17, Terket filed a notice of appeal from "the final judgment entered in this action on the 18th day of July, 1979." He filed no response to the defendants' motion for attorneys' fees. On September 10, the district court entered its order awarding attorney's fees to the defendants and "assess(ing) said fees against plaintiff Terket as costs in the amount of $1,000." No notice of appeal was filed from this order. ⁵

A.

Although the issue is not raised by the parties, we must consider sua sponte whether we have jurisdiction to review the order awarding attorneys' fees. See Rice v. Rice Foundation, 610 F.2d 471, 474 (7th Cir. 1979). A timely notice of appeal from a judgment or order is mandatory and jurisdictional. Browder v. Director, Ill. Dept. of Corr., 434 U.S. 257, 264, 98 S.Ct. 556, 560, 54 L.Ed.2d 521 (1978). Since no notice of appeal was filed from the September 10 order awarding attorneys' fees, it would appear that this court is without jurisdiction to consider the propriety of that order. Cf. Washington v. Bd. of Educ., 498 F.2d 11, 15 (7th Cir. 1974) (separate notice of appeal required for ruling on motion under Rule 60(b), Fed.R.Civ.P.).

Doubt about this result is created, however, by this court's decision in Swalley v. Addressograph-Multigraph Corp., 168 F.2d 585, 587 (7th Cir. 1948), cert. denied, 335 U.S. 911, 69 S.Ct. 481, 93 L.Ed. 444 (1949). There the court held that a district court order reviewing the taxing of costs by the clerk and entered after the underlying judgment had been appealed "related back to that judgment and became a part thereof." Id. The court therefore held that the appeal from the underlying judgment "brought up with it" the order re-taxing costs. Accord 6 Moore's Federal Practice P 54.70(5), p. 1316 n. 14 (2d ed. 1976) (citing Swalley ). Since § 1988 makes attorneys' fees taxable as costs, it may be argued that Swalley would allow Terket's present challenge to the September 10 order within his appeal from the summary judgment.

The rule in Swalley does not necessarily apply to attorneys' fees, however. As the courts have noted, the decision to award attorneys' fees under § 1988 is different from the routine assessment of costs normally made by the court clerk. E. g., Barrett v. Kalinowski, 458 F.Supp. 689, 708 (M.D.Pa.1978); cf. Wright v. Jackson, 522 F.2d 955, 957 (4th Cir. 1975) (pre-s 1988 case). In a related area, we have held that an award of attorneys' fees under the "fund" theory is a collateral order, subject to an interlocutory appeal. Hidell v. Int. Diversified Investments, 520 F.2d 529 (7th Cir. 1975); Swanson v. Amer. Consumer Industries, Inc., 517 F.2d 555 (7th Cir. 1975); but see Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977) (attorneys' fees award under Title VII not sufficiently collateral to allow interlocutory appeal). Regardless of whether an award under § 1988 is collateral enough to permit an interlocutory appeal, it seems clear that it involves an exercise of the district court's judgment requiring an examination of factors beyond the issues decided with the merits of the suit and also different from the largely ministerial task of taxing the traditional items of costs. See Muscare v. Quinn, 614 F.2d 577, 579-80 (7th Cir. 1980). Thus the award of attorneys' fees under § 1988 is a decision distinct from the decision on the merits and from the normal taxing of costs. We conclude that when an award of attorneys' fees is made after judgment is entered on the merits, a notice of appeal specifying an appeal from the order awarding attorneys' fees is required. Therefore, the district court's September 10 order awarding fees against Terket is not properly before us and may not be disturbed.

B.

Despite the lack of jurisdiction over the award in this case, we find it appropriate, in the exercise of our supervisory powers, to consider the propriety of the procedure followed by the district court in this case in awarding attorneys' fees under § 1988....