deMouy v. Ingvoldstad

664 F.2d 21, 32 Fed. R. Serv. 2d 1093

• Court: Court of Appeals for the Third Circuit
• Decided: October 27, 1981
• Docket: No. 80-2081
• Status: Published

Opinions

OPINION OF THE COURT

PER CURIAM.

Judgment in this complex real estate case was entered by the District Court of the Virgin Islands on September 7, 1979. The court’s order included a provision that “Ingvoldstad shall recover from Chase Manhattan Bank, N.A. her allowable costs, and Chase Manhattan Bank, N.A., in addition, shall indemnify Ingvoldstad in a reasonable amount for her attorney’s fees.” A statute in the Virgin Islands permits the award of counsel fees in civil cases. 5 V.I.C. § 541(b) (Equity 1967).

After her motions for a new trial or reconsideration of the court’s opinion were denied, Ingvoldstad filed this appeal on June 10, 1980. Ingvoldstad did not file a motion for counsel fees in the district court until March 11,1981. When the appeal was filed, therefore, the amount of attorney’s fees had not been fixed by the district court.

This court has recently decided that when the district court awards counsel fees to a prevailing party, an appeal may not be taken until the amount of the fees has been determined and entered of record. Croker v. The Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir.1981) (in banc). Until that task is completed, the decision of the district court is not final and, therefore, cannot vest this court with appellate jurisdiction in the absence of a proper certification pursuant to Fed.R.Civ.P. 54(b). See Curtiss-Wright Corp. v. General Electric Co., 446 U.S. 1, 100 S.Ct. 1460, 64 L.Ed.2d 1 (1980); Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360 (3d Cir.1975). In this case, however, no 54(b) certification was sought.

It must be noted that at the time this appeal was taken, some opinions of this court had held that district court judgments on the merits are appealable even before counsel fees have been fixed. De Long Corp. v. Raymond International, Inc., 622 F.2d 1135, 1138-39 n.3 (3d Cir.1980); Baughman v. Cooper-Jarrett, Inc., 530 F.2d 529, 531 n.2 (3d Cir.), cert. denied, 429 U.S. 825, 97 S.Ct. 78, 50 L.Ed.2d 87 (1976). To the contrary, however, were the decisions in Paeco, Inc. v. Applied Moldings, Inc., 562 F.2d 870, 879 (3d Cir.1977), and Richerson v. Jones, 551 F.2d 918, 922 (3d Cir. 1977). Since that time, a panel of this court held in O. Hommel Company v. Ferro Corporation, 659 F.2d 340, 354 (1981). “To the extent that it [De Long Corp. v. Raymond International, Inc.] is inconsistent with Richerson, De Long must be deemed without effect.” The Hommel court reasoned that because a prior panel precedent cannot be overruled by a subsequent panel, De Long, which was decided after Richerson, could not overrule the Richerson holding: that a judgment is not final until attorneys’ fees have been determined. The in banc decision in Croker has definitively resolved this question, overruling both De Long and Baughman to the extent that they held otherwise. Croker, supra, slip op. at 11.

Croker v. The Boeing Co. binds this panel and establishes that the order here is not appealable. Despite the existence of previous authority on which counsel may have relied in taking this appeal, we may not reach the merits, because we lack jurisdiction to consider the case further. As the Supreme Court said in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981).

“If the appellate court finds that the order from which a party seeks to appeal does not fall within the statute, its inquiry is over. A court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospective only.”

449 U.S. at 379, 101 S.Ct. at 676.

Accordingly, the appeal is premature and will be dismissed.