concurring and dissenting:
I concur in the result. With respect, however, I do not agree with a part of the reasoning of either of the other opinions.
I think the correct rule is stated in Brandon, Jones, Sandall, Zeide v. Medpartners, 312 F.3d 1349, 1355 (11th Cir.2002). The court in that ease stated the rule as follows:
In this Circuit, a request for attorneys’ fees pursuant to a contractual clause is considered a substantive issue; and an order that leaves a substantive fees issue pending cannot be “final.”
First, both the majority opinion and the other concurring opinion imply that attorneys’ fees may be a part of the taxable costs of the case when agreed to by contract. I doubt that such an agreement is valid absent statutory authority.
That aside, the reasons given for our decision today are bound to result in an even greater multiplication of the piecemeal appeals which have come about since the decision of the Court in Budinich v. Beaton, Dickinson & Co., 486 U.S. 196, 108 S.Ct. 1717, 100 L.Ed.2d 178 (1988). Assuming only the solvency of the parties, our decision today offers monetary advantage to one of the parties, as well as to the attorneys, for failure to agree to, or to decide, the question of attorneys’ fees at the time the merits of the case are disposed of. Not only one of the parties, but the attorneys for both sides will profit by an appeal with its consequent attorneys’ fees. Public policy should encourage the ending of litigation, not its continued existence, in my opinion.