Richard v. Martenson v. Commissioner of Internal Revenue

Eighth Circuit

Richard v. Martenson v. Commissioner of Internal Revenue

748 F.2d 489, 55 A.F.T.R.2d (RIA) 316, 1984 U.S. App. LEXIS 16551

CourtCourt of Appeals for the Eighth Circuit

DecidedNovember 21, 1984

Docket84-1894

StatusPublished

Cited by1 cases

This text of 748 F.2d 489 (Richard v. Martenson v. Commissioner of Internal Revenue) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Richard v. Martenson v. Commissioner of Internal Revenue, 748 F.2d 489, 55 A.F.T.R.2d (RIA) 316, 1984 U.S. App. LEXIS 16551 (8th Cir. 1984).

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Opinion

PER CURIAM.

Richard V. Martenson filed suit in Tax Court for a redetermination of tax for 1979 and 1980. The government filed a formal request for admissions without complying with the informal consultation requirement of Odend’hal v. Commissioner, 75 T.C. 400 (1980); International Air Conditioning Corp. v. Commissioner, 67 T.C. 89 (1976); and Branerton Corp. v. Commissioner, 61 T.C. 691 (1974). Martenson sought and obtained a protective order, and then moved for attorneys’ fees and expenses. The court summarily denied the motion and a motion for reconsideration. This appeal followed.

Because the order denying costs and attorney fees for actions relating to the protective order was interlocutory and the case is still pending in the Tax Court, this Court lacks jurisdiction. Martenson argues that this Court has jurisdiction under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949), and more specifically White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982); and Obin v. District No. 9, 651 F.2d 574 (8th Cir.1981).

Martenson’s reliance on White and Obin is misplaced, however, because both involved the appealability of post-judgment orders determining attorneys’ fees. The denial of a prejudgment motion for costs and fees is a non-appealable interlocutory order. See e.g., Coleman v. Sherwood Medical Industries, 746 F.2d 445 at 446-447 (8th Cir.1984).

*490 Accordingly, this appeal is dismissed for lack of jurisdiction. See 8th Cir.R. 12.

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PER CURIAM.

Richard V. Martenson filed suit in Tax Court for a redetermination of tax for 1979 and 1980. The government filed a formal request for admissions without complying with the informal consultation requirement of Odend’hal v. Commissioner, 75 T.C. 400 (1980); International Air Conditioning Corp. v. Commissioner, 67 T.C. 89 (1976); and Branerton Corp. v. Commissioner, 61 T.C. 691 (1974). Martenson sought and obtained a protective order, and then moved for attorneys’ fees and expenses. The court summarily denied the motion and a motion for reconsideration. This appeal followed.

Because the order denying costs and attorney fees for actions relating to the protective order was interlocutory and the case is still pending in the Tax Court, this Court lacks jurisdiction. Martenson argues that this Court has jurisdiction under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949), and more specifically White v. New Hampshire Dept. of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982); and Obin v. District No. 9, 651 F.2d 574 (8th Cir.1981).

Martenson’s reliance on White and Obin is misplaced, however, because both involved the appealability of post-judgment orders determining attorneys’ fees. The denial of a prejudgment motion for costs and fees is a non-appealable interlocutory order. See e.g., Coleman v. Sherwood Medical Industries, 746 F.2d 445 at 446-447 (8th Cir.1984).

*490 Accordingly, this appeal is dismissed for lack of jurisdiction. See 8th Cir.R. 12.

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748 F.2d 489, 55 A.F.T.R.2d (RIA) 316, 1984 U.S. App. LEXIS 16551, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-v-martenson-v-commissioner-of-internal-revenue-ca8-1984.

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