United States Court of Appeals,
Eleventh Circuit.
No. 94-8348.
TAIYO CORPORATION, Plaintiff-Appellant,
Mitchell Rosen, Rowe, Foltz & Martin, P.C., Appellants,
v.
SHERATON SAVANNAH CORPORATION, Defendant-Appellee.
April 17, 1995.
Appeal from the United States District Court for the Northern
District of Georgia. (No. 1:93-CV-2813), Orinda D. Evans, Judge.
Before TJOFLAT, Chief Judge, BIRCH, Circuit Judge, and HENDERSON,
Senior Circuit Judge.
PER CURIAM:
The appellants, Taiyo Corporation (Taiyo), Mitchell Rosen and
Row, Foltz & Martin, P.C., challenge the dismissal of Taiyo's
complaint for a declaratory judgment against Sheraton Savannah
Corporation (Sheraton) filed in the United States District Court
for the Northern District of Georgia, as well as the district
court's award of sanctions made pursuant to Fed.R.Civ.P. 11. The
court found that the action was brought for an improper purpose and
was not warranted by existing law or by a nonfrivolous argument for
the extension, modification or reversal of existing law or the
establishment of new law. See Fed.R.Civ.P. 11(b)(1), (2). We find
that both the dismissal and the order granting sanctions were
justified and AFFIRM the district court's judgment in all respects
in accordance with 11th Cir.R. 36-1.1
1
11th Cir.R. 36-1 provides:
When the court determines that any of the following
The appellee, Sheraton, also urges the imposition of
sanctions against the appellants and their appellate counsel, Mark
A. Kelley, for instituting a frivolous appeal. See Fed.R.App.P.
38.2 We conclude that Sheraton's motion for that purpose is
well-taken and hold that the appellants and their attorney are
jointly and severally liable for Sheraton's reasonable costs and
attorney's fees incurred in defending this appeal. See Romala
Corp. v. United States, 927 F.2d 1219, 1225 (Fed.Cir.1991) ("Though
the language of Rule 38 does not explicitly provide for sanctions
against attorneys, there is ample precedent in this and other
circuits for imposing Rule 38 sanctions on an attorney as well as
on the client."); Pelletier v. Zweifel, 921 F.2d 1465, 1520-23
(11th Cir.) (finding joint and several liability under Rules 11 and
circumstances exist:
(a) judgment of the district court is based on findings
of fact that are not clearly erroneous;
(b) the evidence in support of a jury verdict is
sufficient;
(c) the order of an administrative agency is supported
by substantial evidence on the record as a whole;
(d) summary judgment, directed verdict, or judgment on
the pleadings is supported by the record;
(e) judgment has been entered without a reversible
error of law;
and an opinion would have no precedential value, the
judgment or order may be affirmed or enforced without
opinion.
2
Fed.R.App.P. 38 states: "If a court of appeals determines
that an appeal is frivolous, it may, after a separately filed
motion or notice from the court and reasonable opportunity to
respond, award just damages and single or double costs to the
appellee."
38 where the attorney and his client were equally culpable for
bringing an unfounded action and a frivolous appeal), cert. denied,
502 U.S. 855, 112 S.Ct. 167, 116 L.Ed.2d 131 (1991).
According to the affidavit of counsel for Sheraton, "Sheraton
has incurred or will incur and be billed for attorneys' fees and
expenses directly connected with the representation of Sheraton in
the appeal of this case of not less than $8,500. In my opinion,
such fees and expenses are reasonable." (Motion for Rule 38
Sanctions, Exhibit B). Sheraton seeks Rule 38 damages in that
amount. Although the appellants oppose the motion in substance,
they do not challenge this calculation in their response. We find
it unnecessary, therefore, to remand the case to the district court
to assess appropriate Rule 38 sanctions. In the interest of
judicial economy and to avoid further expenditures by the parties
necessitated by a remand, we award Sheraton damages in the amount
of $8,500.00. See King v. United States, 789 F.2d 883 (11th
Cir.1986).
IT IS SO ORDERED.