IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-40184
Summary Calendar
REYNALDO PEREZ,
Plaintiff-Appellee-Cross-Appellant,
versus
WELDON LUCAS; ET AL.,
Defendants,
WELDON LUCAS; DENTON COUNTY, TEXAS,
Defendants-Appellants-Cross-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
(4:97-CV-9)
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March 10, 1999
Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.
PER CURIAM*:
This appeal and cross-appeal challenge the validity of
attorneys’ fees awarded by the district court as part of the
settlement in a 42 U.S.C. § 1983 case. We affirm the district
court’s ruling on attorneys’ fees, and we dismiss the cross-
appeal for lack of jurisdiction.
*. Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
I
Reynaldo Perez filed a § 1983 complaint against five
defendants and reached a settlement with two of them, Denton
County and Sheriff Weldon Lucas (the “Defendants”), for $10,000
plus costs and reasonable attorneys’ fees as determined by the
district court. Perez’s attorneys filed affidavits supporting a
request for approximately $60,000 in fees. The district court
held an evidentiary hearing on the matter of attorneys’ fees and
on November 19, 1997 entered an order finding that reasonable
compensation for the attorneys was $8,000. The order also found
that expenses for the case totaled $682.12 and that Perez’s
attorneys should be sanctioned $1,000 for bad faith in their
request for attorneys’ fees.
The Defendants filed a motion for reconsideration and motion
for entry of judgment on December 2, 1997. Perez likewise filed a
motion for reconsideration on December 8. On January 2, 1998, the
district court entered its final judgment awarding Perez’s
attorneys $7,000 in fees ($8,000 minus the $1,000 sanction) “plus
cost of this action.” The district court did not rule, and has
not yet ruled, upon the December 2 and December 8 motions for
reconsideration. On January 23, the Defendants appealed the
attorneys’ fee award as excessive. One month later, on February
23, the district court made a sua sponte correction to its
January 2 final judgment to clarify that the unspecified “cost of
this action” totaled $682.12, the amount enumerated in the
November 19 order. On March 23, 1998, Perez filed a notice of
cross-appeal.
II
The Defendants argue that Perez’s cross-appeal must be
dismissed as untimely under Federal Rule of Appellate Procedure
4, as Perez’s notice of appeal was filed more than 30 days after
the district court entered its final judgment on January 2, 1998.
Perez responds that the district court’s February 23 correction
made a substantive change to the January 2 judgment and thus
constituted an amended final judgment, within 30 days of which
the notice of cross-appeal was filed.
The district court’s correction specifies that the court
issued it pursuant to Federal Rule of Civil Procedure 60(a),
which allows a court to correct clerical mistakes in a judgment.
A correction issued under Rule 60(a) does not extend a party’s
time to file an appeal. See Danning v. Graco Enters., Ltd. (In re
Cobb), 750 F.2d 477, 479 (5th Cir. 1985). Perez argues that the
district court’s correction does not fall under Rule 60(a)
because it makes a substantive change in the judgment. This Court
handled a similar issue in Dura-Wood Treating Co. v. Century
Forest Indus., Inc., 694 F.2d 112 (5th Cir. 1982). There we found
that the trial court’s correction of the amount of attorneys’
fees awarded was not a substantive change where the record
evinced that the trial court intended, as the parties knew, to
enter one amount but mistakenly entered another. Such is the case
here. With the district court’s November 19, 1997 order in the
record, the court’s intent to award costs of $682.12 was clear
and its oversight in failing to specify the amount in its
judgment was no more than a clerical error. See Britt v.
Whitmire, 956 F.2d 509, 512-15 (5th Cir. 1992) (reviewing Fifth
Circuit standards for determining whether a trial court’s
corrective action would fall under Rule 60(a)). Perez therefore
missed the deadline under Federal Rule of Appellate Procedure
4(a) when he failed to file his notice of cross-appeal within 30
days of January 2, 1998.
Perez did not file a timely notice of cross-appeal under
Federal Rule of Appellate Procedure 4. Accordingly, we dismiss
the cross-appeal for lack of jurisdiction.
III
Perez argues that two motions for reconsideration1 remain
outstanding and the Defendants’ notice of appeal is premature
until the motions are resolved.2 Both Perez and the Defendants
filed Rule 59(e) motions for reconsideration, which are among the
type of motions mentioned in Federal Rule of Appellate Procedure
4(a)(4). See Fed. R. App. P. 4(a)(4)(C); Madison v. Vintage
Petro., Inc., 114 F.3d 514, 516 (5th Cir. 1997). The time to file
an appeal from a final judgment runs from the date that the trial
1. The two motions for reconsideration concerned only the
district court’s determination of reasonable attorneys’ fees and
not its determination of expenses, the subject of the clerical
error in the final judgment. No argument could be made that,
because of the motions for reconsideration, the record left doubt
as to what amount the court intended to award for expenses.
2. We note that Perez, curiously, seems to argue against
the timeliness of his own cross-appeal, as well as that of the
Defendants’ appeal.
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court disposes of the last outstanding Rule 4(a)(4)-type motion.
This holds true even if the motion is filed before the district
court enters its final disposition in the case. See Kinsey v.
Farmland Indus., Inc., 39 F.3d 603, 606 (5th Cir. 1994). Also, a
notice of appeal filed after final judgment but before the
district court rules on a Rule 4(a)(4)-type motion is premature
and insufficient to give an appellate court jurisdiction over the
appeal. Hence, we must decide whether Perez is correct that the
two Rule 59(e) motions remain outstanding. If the district court
has not ruled on those motions, then the Defendant’s appeal is
untimely and must be dismissed for want of jurisdiction.
It is clear that the district court has not expressly ruled
on the two Rule 59(e) motions for reconsideration. The entry of
final judgment does not per se decide all motions pending before
the trial court. Nevertheless, there exists ample precedent in
this Circuit for the proposition that a district court’s final
judgment may impliedly deny an outstanding motion.3 Because the
3. See Unida v. Levi Strauss & Co., 986 F.2d 970, 974 (5th
Cir. 1993) (“Although the district court did not expressly deny
the Plaintiffs’ motion to dismiss and remand, by entering summary
judgment on all of the Plaintiffs’ claims, the district court
impliedly denied the motion.”); Moya v. Estelle, 696 F.2d 329,
331 (5th Cir. 1983) (“The other two motions were ‘disposed of.’
The district court did not specifically address them, but his
denial of Moya’s petition for habeas corpus relief implicitly
overruled them.”); Addington v. Farmer’s Elevator Mutual Ins.
Co., 650 F.2d 663, 666 (5th Cir. Unit A 1981) (“The denial of a
motion by the district court, although not formally expressed,
may be implied by the entry of final judgment . . . or of an
order inconsistent with the relief sought by the motion.”);
United States v. Pan Am World Airways, Inc., 299 F.2d 74, 76 (5th
Cir. 1962), rev’d on other grounds sub nom. Gondeck v. Pan Am
World Airways, Inc., 382 U.S. 25, 86 S. Ct. 153 (1965) (holding
that the time for filing an appeal tolls where “the motion [to
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district court entered judgment concerning the very subject of
the Rule 59(e) motions--i.e., it adopted as final the November 19
order’s position on attorneys’ fees--the judgment necessarily
implies that the district court denied the motions to reconsider
the attorneys’ fees awarded. Cf. Dunn v. Truck World, Inc., 929
F.2d 311, 313 (7th Cir. 1991) (holding that, for purposes of
timely filing a notice of appeal, “[w]hen a party files a pre-
judgment motion for a new trial, the judgment itself is the order
‘denying a new trial’”). We realize that a case-by-case approach
to the effect of final judgments on pending motions and time to
appeal always requires caution. See 20 James Moore, Moore’s
Federal Practice § 304.13[5] (3d ed. 1997) (“It seems unfair to
require parties to guess at the implications of the entry of
judgment, especially since a fair reading of Appellate Rule 4(a)
assures them that the making of a timely motion terminates the
time for appeal until entry of an order directly in response to
the motion.”); see also Lapeyrouse v. Texaco, Inc., 670 F.2d 503,
505 (5th Cir. 1982) (recognizing criticism but making a case-
specific finding that the trial court’s final order impliedly
granted a motion). But this case does not present us with a close
call. In the facts of the instant action, the Rule 59(e) motions
did not survive the district court’s final judgment, so that the
30 days to appeal under Rule 4(a) began to run from the entry of
amend or make additional findings of fact] presented a
substantial question and the motion is not disposed of, either
expressly or by necessary implication, by the judgment” (emphasis
added)).
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judgment.
Accordingly, the Defendants’ notice of appeal was not
premature, and we have jurisdiction to consider their appeal.
IV
We now consider the Defendants’ argument that the affidavits
filed by Perez’s attorneys were so inadequate and lacking in
detail, and that the amount of attorneys’ fees claimed by Perez
was so outrageous, that any award of attorneys’ fees was error.
We review the district court’s determination of attorneys’ fees
for abuse of discretion and its findings of fact supporting the
award for clear error. See Von Clark v. Butler, 916 F.2d 255, 258
(5th Cir. 1990). We affirm the district court’s award of
attorneys’ fees.
The Defendants offer no valid basis for the argument that
the affidavits and records submitted by Perez’s attorneys were so
inadequate and lacking in detail as to make the district court’s
award an abuse of discretion. The Defendants cite Von Clark for
the proposition that it is clear error to award any attorneys’
fees where the attorneys fail to detail time spent on § 1983
claims as opposed to unsuccessful state law claims. Von Clark
says nothing of the sort. To the contrary, the trial court in
that case, in its discretion, severely reduced4--but nonetheless
awarded--the attorneys’ fees upon finding that the attorneys’
time records did not sufficiently specify time spent on different
4. The attorneys in Von Clark requested $72,117.50 in fees
and were awarded $12,500.
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claims. See Von Clark, 916 F.2d at 257-58. We affirmed the trial
court in Von Clark. If anything, the facts here provide an even
greater basis for affirming. The trial court stated that Perez’s
attorneys’ submissions, though deficient in many respects, were
adequate for it to determine an award of attorneys’ fees. The
record evinces that the district court then carefully reviewed
the factors specified by Johnson v. Georgia Highway Express, 488
F.2d 714 (5th Cir. 1974), overruled on other grounds, Blanchard
v. Bergeron, 489 U.S. 87, 109 S. Ct. 939 (1989), in reaching its
determination as to a reasonable award of attorneys’ fees. We see
no clear error in the district court’s factual determinations and
no abuse of discretion in its application of Johnson.
This Court has recently recognized that a trial court may
deny attorneys’ fees altogether in the unusual circumstance that
the request for fees submitted pursuant to 42 U.S.C. § 1988 is so
excessive as to shock the conscience. See Scham v. District
Courts Trying Criminal Cases, 148 F.3d 554, 557-58 (5th Cir.
1998). The decision whether to do so lies within the discretion
of the trial court. Although the amount of Perez’s request for
attorneys’ fees seems to have been less than reasonable, nothing
would indicate that we have here circumstances so extreme that
the district court could be said to have abused its discretion in
awarding the limited fees that it did.
Accordingly, we affirm the district court’s award of $7,000
in attorneys’ fees to Perez.
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V
This Court has the power to direct an award of attorneys’
fees to Perez for the time his attorneys spent protecting the fee
award on appeal. See, e.g., Johnson v. State of Mississippi, 606
F.2d 635, 638-39 (5th Cir. 1979); Panior v. Iberville Parish
School Bd., 543 F.2d 1117, 1119 n.4 (5th Cir. 1976). We decline
to do so. The Defendants appealed a simple issue, i.e., whether
the district court abused its discretion in awarding attorneys’
fees at all. Perez responded by addressing eleven “restated
issues” in a cross-appeal that was found to be untimely and that
required the Defendants’ attorneys to brief the timeliness issue.
Each party has inflicted upon the other the necessity of
addressing meritless issues. We consider their debts settled with
this decision.
VI
The judgment of the district court is AFFIRMED. The
Plaintiff/Appellee’s cross-appeal is DISMISSED. Appellant-cross-
appellee’s motion to dismiss appeal is hereby MOOT in light of
the opinion.
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