UNITED STATES COURT OF APPEALS For the Fifth Circuit
No. 99-30885
JOHN TRASK,
Plaintiff-Appellee/Cross-Appellant,
VERSUS
METROCALL, INC., formerly known as A+ NETWORK, INC.,
Defendant-Appellant/Cross-Appellee.
Appeal from the United States District Court For the Eastern District of Louisiana (96-CV-3568-B) March 26, 2001 Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
I.
Appellant Metrocall, Inc. (formerly known as A+ Network,
Inc.),1 seeks vacatur of the judgment entered by the district
* 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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 1 A+ and Metrocall may be referred to interchangeably or collectively as “Metrocall.” court on a jury’s verdict in favor of Appellee John Trask. In the
underlying lawsuit, Trask alleged that Metrocall failed to pay him
wages due pursuant to a compensation plan under which he was to
receive a fixed commission per sale of Metrocall’s pagers.
Because we find that Metrocall’s notice of appeal was not
timely filed, we dismiss its appeal for lack of jurisdiction.
Likewise, we dismiss Trask’s cross-appeal insofar as it seeks
relief as to the merits of the district court’s judgment. With
respect to the sole issue timely raised in Trask’s notice of
appeal, that is, a challenge to the quantum of the district court’s
award of attorney fees, we affirm the amended judgment as it
relates to the award of attorney fees.
II.
John Trask first worked for Metrocall’s predecessor in
interest, A+ Communications, from January 1993 until October 1994.
Trask sold A+’s paging services in New Orleans. He was trained
regarding A+’s products and services line and was also trained
regarding the sales representative commission structure. Trask was
also trained that the standard commission was not available for
paging services sold to large commercial accounts, to expectant
parents, or under state contracts. Specifically, Trask was trained
that sales representatives would receive a maximum of $3.00 per
pager on state contract accounts.
Trask left A+ in 1994 on good terms, but he was subsequently
2 contacted by A+ again and asked to return to A+ in its Baton Rouge
store location as a sales representative with the possibility of a
promotion to sales manager. Trask returned to A+ in January 1995,
and he began to seek out new clients immediately. He worked
closely with his friend, Wayne Chaisson, who was his supervisor in
the Baton Rouge office.
Trask learned of the possibility that Louisiana State
University (“LSU”) was interested in buying pagers. He inquired
with LSU’s director of communications, Gus Gonzales, who informed
him that Trask would need approval from the Office of
Telecommunications Management (“OTM”). Trask learned from OTM’s
director, Jack Kelly, that the State of Louisiana was going to be
opening up bids to select a vendor to provide the State’s paging
needs on a statewide basis. Trask got a copy of the Request for
Proposal (“RFP”) in advance of the competition, and he worked to
gain the trust and favor of Kelly. Trask and Chaisson formulated
A+’s bid for the State account. Trask contends that he remained in
constant contact with Kelly and the OTM in order to strengthen A+’s
chances of winning the bid. Shortly after the bid was submitted,
A+ merged with Network USA, Inc. to form A+ Network, Inc.
On November 20, 1995, A+ was notified that it would be awarded
the Louisiana contract contingent upon A+’s posting a $750,000
performance bond. Trask made the bond arrangements, and on
December 15, 1995, OTM awarded the contract to A+, making it the
exclusive provider of digital pagers statewide to the State and all
3 of its agencies. Trask contends that he was solely responsible for
A+ receiving the State account, but Metrocall notes that A+ had
already worked with the State of Louisiana in a public bid that was
lost to another competitor, and that other A+ offices and Network
USA (pre-merger with A+) had considered and been invited to bid for
the State account.
Beginning immediately after the contract was awarded, the
State began ordering pagers. By the end of January 1996, A+ had
already delivered 1,000 pagers to the State. As the account
representative, Trask delivered the pagers. By July 15, 1996, the
State had ordered 12,200 pagers. The number had reached 13,300 by
July of the following year, 1997. Trask alleges that at all times,
he remained the contact person with the OTM and was designated as
the sales representative on the account. However, Metrocall notes
that Mr. Kelly, the State’s representative, testified that
beginning in January 1996, the account was serviced by A+’s
Pensacola, Florida office (its corporate headquarters), and that
after February 1996, activation of pagers and all other issues were
addressed by the Pensacola office.
Trask contends that he should have been compensated at the
standard commission for each pager supplied under the State
contract. Chaisson initially negotiated for and A+ agreed to pay
Trask $4,741 as commission for the State account. Trask accepted
the money without formal objection in February 1996. Trask
testified that he was upset by this low amount of commission, but
4 he never spoke to anyone higher than Chaisson in A+’s chain of
command about his dissatisfaction.
Indeed, in April 1996, having already received his $4,741
commission, Trask interviewed for a sales manager position. During
the interviewing process, Trask never even mentioned, let alone
protested his alleged dispute as to the amount of commission he
received for the Louisiana state account. In May 1996, Trask was
awarded the Baton Rouge sales manager job and received a
substantial pay raise. Five months later, on October 25, 1996,
Trask left A+, and eight days later, after having already started
a new sales job in the medical products field, he filed the
complaint giving rise to this appeal.
On November 1, 1996, Trask filed his complaint against A+
Network under Louisiana’s Unpaid Wage Statute. He alleged that A+
failed to pay him under the 1995 compensation plan for his efforts
in securing and servicing the State account.
Trask contends that a December 1995 compensation plan governs
the pagers at issue since the State contract was officially awarded
on December 15, 1995. Trask contends that the 1995 compensation
plan, and all of the relevant company literature, place no
limitation on a sales representative’s commission on a state bid
account. Nor do any of the pertinent documents prevent an employee
from earning commission after termination or resignation.
According to the 1995 plan, a sales representative’s commission was
determined by using a multiplier with each sold pager’s first
5 month’s revenue. The applicable multiplier in this case was 2.25
(225%). According to Trask, A+’s policy was that if there was to
be a deviation from the 1995 plan, the amount of the commission was
to be negotiated between the company and the sales representative
“prior to” submission of the bid. It is undisputed that no one
discussed a reduced commission on the State account with Trask
until after December 1995. Metrocall contends that its
compensation plan never changed from the time Trask was initially
trained as to the $3.00 per state pager limitation.
On August 10, 1998, the district court entered a pretrial
order that the issue of attorney fees was to be severed from the
damages issues and would be tried before the bench. On August 10-
13, 1998, Trask’s case was tried to a jury which ultimately
rendered a verdict in favor of Trask, awarding $164,242.98 in
damages. The jury concluded that Metrocall acted arbitrarily and
in bad faith, but in assessing “penalty wages” based thereupon, the
jury filled in the interrogatory verdict form with a “$0.00" per
pager penalty award. Also, according to the jury’s verdict,
Trask’s suit was “well-founded” such that he was entitled to an
award for attorney fees. Concluding that the jury marked “$0.00"
in the blank for per-pager penalty wages because it had included
its penalty-wage award in the lump-sum award of $164,242, the
district court then entered a judgment in accordance with the
jury’s verdict on August 18, 1998. The district court’s August
18th judgment specifically included an award of attorney fees,
6 legal interest, and costs but did not fix the amount of these
awards.
Metrocall moved for a judgment notwithstanding the verdict,
for a new trial, or, in the alternative, for remittitur. Trask
moved for a new trial on the issue of the jury’s failure to award
a specific and discreet amount for penalty wages. All post-trial
motions for a new trial were denied on March 5, 1999, some six and
one-half months after the initial judgment.
Metrocall filed its first notice of appeal in the district
court on April 7, 1999, thirty-two days after the district court
had entered its order denying the parties’ respective motions for
a new trial. In its notice of appeal, Metrocall referred to the
district court’s August 18, 1998, judgment as being final.
However, on April 9, 1999, Metrocall moved to withdraw its
previously filed notice of appeal, and it filed a simultaneous
motion for an extension of time within which to file its notice of
appeal. In its motion for an extension, Metrocall cited excusable
neglect as grounds for relief from its otherwise untimely notice of
appeal. Specifically, Metrocall cited the alleged fact that its
counsel had inadvertently buried the district court’s order denying
the motions for new trial under paperwork on his desk. Metrocall
urged the district court to excuse its admittedly “untimely” notice
of appeal based upon this excusable neglect.
On April 28, 1999, Metrocall moved for entry of a final
judgment, suggesting for the first time that its previous notice of
7 appeal had not been untimely, but instead was simply premature
because the district court had yet to rule on Trask’s outstanding
request for attorney fees. According to Metrocall’s motion,
without a ruling from the district court as to the quantum of
attorney fees, no final judgment had been entered from which an
appeal could be taken. The district court granted the motion to
withdraw the previously filed notice of appeal and set a hearing on
remaining matters for May 26, 1999.
Trask had moved for attorney fees on August 27, 1998, and on
May 26, 1999, the district court awarded $56,729.60 in fees (80% of
the amount requested). The court reasoned that the reduced amount
was based on excessive time records. The district court awarded
Trask all of his costs, $7,459.99, and it also awarded Trask
interest on the principal judgment.
On July 27, 1999, nearly one year after first entering
judgment in favor of Trask, the district court entered an amended
judgment reflecting the award of fees and costs. The district
court noted that as a result of entering the amended judgment, all
other pending motions, including Metrocall’s motion for an
extension of time to file a notice of appeal, were moot.
Metrocall filed its second notice of appeal on August 10,
1999. Metrocall challenged the jury’s verdict on several grounds,
as well as the district court’s denial of its motions for judgment
notwithstanding the verdict and for new trial or remittitur. Trask
filed his notice of appeal on August 12, 1999. Trask challenged
8 the jury’s failure to award a quantum of penalty wages after it
found that he was entitled to such wages, and he also challenged
the district court’s amended judgment awarding only 80% of the
attorney fees requested.
III.
As an initial matter, we must address whether we have
appellate jurisdiction over this appeal. Trask challenges our
jurisdiction over Metrocall’s appeal arguing that Metrocall failed
to timely file a notice of appeal within the thirty days following
the district court’s denial of the parties’ respective motions for
a new trial, i.e., the date upon which the district court’s
previously entered August 18, 1998, judgment became final.
The district court entered a judgment on the jury’s verdict on
August 18, 1998, and that judgment awarded attorney fees to Trask.
According to the jury’s verdict, Trask’s case was “well founded”
and under Louisiana Revised Statutes 23:632, he was therefore
entitled to an award of attorney fees. See Brown v. Navarre
Chevrolet, Inc., 610 So. 2d 165, 172 (La. App. 3d Cir. 1992). All
that was left for the court to do was to determine the amount of
fees to be awarded. On March 5, 1999, the district court denied
the parties’ respective motions for a new trial. However, it was
not until May 27, 1999, that the district court entered an order
specifying the amount of attorney fees Trask was entitled to. And
it was not until July 27, 1999, that the district court entered an
9 amended judgment reflecting the quantum of attorney fees, costs,
and interest which had been previously awarded.
Trask argues that pursuant to Rule 4 of the Federal Rules of
Appellate Procedure, each party had until April 5, 1999, to file
its notice of appeal on the merits (that is, thirty days from the
date the motions for a new trial were denied). Two days after the
deadline, on April 7, 1999, Metrocall filed its notice of appeal.
On April 9, 1999, Metrocall moved to withdraw its untimely notice
of appeal and filed a motion for an extension of time to file its
notice of appeal. In its motion for an extension, Metrocall
conceded that the August 18, 1998, judgment was final and
appealable. However, near the end of April, Metrocall filed a
motion for entry of a final judgment alleging for the first time
that after reviewing the record, it determined that no final
judgment from which an appeal could be taken had been entered and
that, therefore, its April 7th notice of appeal was premature, not
untimely.
Metrocall reasons that the August 18, 1998, judgment was not
final because it had not resolved the issue of attorney fees
requested by Trask in his pending motion. According to Metrocall,
the district court’s order and reasons of March 5, 1999, did not
suffice to resolve all of the claims in the case, and the confusion
created thereby amounted to “excusable neglect” for Metrocall not
timely filing the notice of appeal. Ultimately, on July 27, 1999,
the district court entered an amended judgment reflecting its May
10 27, 1999, order granting a specific quantum of attorney fees and
costs.
In reply, Trask argues that the August 18, 1999, judgment did
award attorney fees, costs, and interest and that when the district
court denied the motions for new trial, those collateral issues
were not unresolved. Specifically, the district court’s judgment
stated as follows:
IT IS ORDERED, ADJUDGED, AND DECREED that there be a JUDGMENT in favor of plaintiff, John Trask, and against defendants, A+ Network, Inc. and Metrocall, Inc., in the amount of $164,242.98, plus legal interest, costs and reasonable attorney fees.
Additionally, the district court’s March 5, 1999, order
denying the parties’ respective motions for a new trial
specifically acknowledged that the jury’s verdict, which it was
sustaining, included a finding that the suit was “well founded”
and that Trask was entitled to an award of attorney fees as a
matter of law.
We have repeatedly acknowledged that under Rule 58, an order
denying a motion for new trial, such as that entered by the
district court in this case on March 5, 1999, is sufficient as a
final order in that it disposes of post-trial motions, especially
where the parties treat it as a final and appealable order. See,
e.g., InterFirst Bank Dallas v. Federal Deposit Ins. Corp., 808
F.2d 1105, 1109 (5th Cir. 1987). When Metrocall originally filed
its first notice of appeal, it acknowledged the appealability of
11 the district court’s judgment, and again in its motion for an
extension of time, it acknowledged that the August 18, 1998,
judgment was final and appealable. Only well after expiration of
the thirty-day period following the district court’s denial of the
motions for new trial did it become Metrocall’s position that the
March 5, 1999, order was insufficient to constitute a final and
appealable order, thus excusing Metrocall from having to file its
notice of appeal before the attorney fees issue was completely
resolved.
We have consistently held that the issue of attorney fees is
collateral to the merits, and a final judgment as to attorney fees
may be appealed separately from an appeal on the merits. See Deus
v. Allstate Ins., 15 F.3d 506, 522 (5th Cir. 1994). Furthermore,
an issue as to the quantity of unresolved attorney fees does not
prevent an appeal of a judgment from becoming final as to the
merits under the rule allowing for appeals from final judgments.
See Noble Drilling, Inc. v. Davis, 64 F.3d 191, 193-94 (5th Cir.
1995) (citing Budinich v. Becton Dickinson & Co., 108 S. Ct. 1717,
1722 (1988) ("[A]n unresolved issue of attorney's fees for the
litigation in question does not prevent judgment on the merits from
being final")); see also DeLoach v. Delchamps, Inc., 897 F.2d 815
826 (5th Cir. 1990) (“It is clear that a judgment on the merits
determining both liability and damages is final even though the
attorney’s fees issue has been left open . . . [a]dditionally,
12 attorney’s fees are considered collateral to the merits, so that
final judgments as to attorney’s fees can be appealed separately
from the ‘merits’ judgment.”) (citing Budinich, 108 S. Ct. at
1720).
Likewise, we have consistently held that a judgment on the
merits becomes final for the purposes of appeal when the district
court denies any timely filed motions for judgment notwithstanding
the verdict or for a new trial. See First Interstate Bank v.
Interfund Corp., 924 F.2d 588, 593 (5th Cir. 1991) (finding that
judgment became final when district court denied motion for
judgment notwithstanding the verdict or alternatively for a new
trial); see also Melear v. Spears, 862 F.2d 1177, 1182 (5th Cir.
1989). Here, the judgment became final for purposes of appeal when
the district court denied the motions for a new trial on March 5,
1999. Thus, Metrocall’s first notice of appeal, filed more than
thirty days after denial of the motions for a new trial, was
untimely, and we therefore lack appellate jurisdiction over its
appeal. See Smith v. Smith, 145 F.3d 335, 339 (5th Cir. 1998)
(“The filing of a timely notice of appeal is mandatory and
jurisdictional”).
Metrocall relies on cases in which the Ninth and First
Circuits held that a judgment was not final when it had yet to
address the bifurcated issues of “back pay and attorney fees.” See
Brown v. United States Postal Svc., 860 F.2d 884 (9th Cir. 1988);
13 Warner v. Rossingol, 513 F.2d 678 (1st Cir. 1975). These cases are
easily distinguished by the fact that back pay entitlement is a
merits-based determination, unlike the issue of the appropriate
quantum of attorney fees, which we have repeatedly held is
collateral.
Metrocall also attempts to rely on the “confusion” created by
the district court’s failure to rule on the quantum of attorney
fees, interest, and costs at the same time it denied the motions
for a new trial and the notion that excusable neglect should be
found for its untimely notice of appeal based on such “confusion.”
We find these contentions to be without merit. By Metrocall’s own
admission, the “confusion” as to whether an appealable final
judgment had been entered only developed well after expiration of
the thirty-day period following denial of the motions for a new
trial. Indeed, up until the time it “discovered” its “confusion,”
Metrocall had consistently conceded that the August 18, 1998,
judgment became final upon the denial of the motions for a new
trial.
Metrocall alternatively argues that, in his post-trial motion
for attorney fees, Trask sought for the first time an award of pre-
judgment interest. This, according to Metrocall, amounted to a
Rule 59(e) motion to alter or amend the judgment, and no appeal
could be taken from the judgment until such a motion was resolved.
According to Metrocall, it was not until the district court awarded
14 fees and interest on May 27, 1999, and entered its amended judgment
on July 27, 1999, in accordance therewith, that an appeal could be
undertaken. Therefore, Metrocall argues that its appeal from the
district court’s amended judgment, as the only final and appealable
judgment, is timely. We disagree.
Trask’s motion for attorney fees was not one seeking to amend
or alter the August 18, 1998, judgment. That judgment specifically
stated that it was awarding Trask his damages, as well as his
reasonable attorney fees, costs, and “legal interest,” and it
reserved only a determination of the exact quantum of fees, costs,
and interest for another day. Accordingly, Metrocall did not need
to wait until the district court awarded a specific quantum of
fees, costs, and interest before it could file its appeal from the
merits judgment. As noted above, the merits judgment became final
when the district court denied the parties’ respective motions for
a new trial.
For the same reasons that Metrocall was required to file its
notice of appeal on the merits within thirty days of the denial of
the new trial motions, so too was Trask. Rather than filing a
separate notice of appeal on the penalty wages issue before April
5, 1999, Trask waited to include that merits-based challenge to the
verdict in his notice of appeal filed on August 12, 1999.
Accordingly, Trask’s failure to file a notice of appeal on the
merits issue of the verdict’s inconsistency regarding the award of
penalty wages deprives us of jurisdiction to review the judgment
15 with respect to that issue.
IV.
The only issue for which a timely notice of appeal has been
filed in this case is Trask’s challenge to the district court’s
determination of the amount of attorney fees. Trask filed his
notice of appeal on August 12, 1999, within thirty days of the
district court’s July 27, 1999, amended judgment incorporating the
award of attorney fees, costs, and interest ordered on May 26,
1999.
Trask contends that the district court erred in failing to
award him 100% of the attorney fees requested by his counsel. The
district court justified its 20% reduction in the amount of fees
requested due to an excessive number of hours spent by Trask’s
counsel receiving calls from Trask himself, along with excessive
time charged for conferences, organizing the files, and research,
among other things.
Trask accuses the district court of “Monday-morning
quarterbacking.” However, as Metrocall properly points out, it is
clear that the district court thoughtfully and thoroughly
considered the itemized request for fees. Under Louisiana law, the
district court had great discretion in determining what portions of
a fee request to honor and which to reject. See Blanton v. Malkem
Inter. Corp., 628 So. 2d 178, 183 (La. App. 2d Cir. 1993). Having
carefully reviewed the district court’s order awarding fees, as
16 well as the record of this case and the parties’ briefing with the
benefit of oral argument, we conclude that no reversible error by
way of a specific showing of an abuse of the district court’s broad
discretion has been shown. We further find that the district court
properly relied upon and applied the appropriate legal precedent in
evaluating the propriety of the fees requested. Accordingly, we
affirm the district court’s amended judgment insofar as it awards
Trask 80% of the attorney fees requested.
V.
Based upon all of the foregoing considerations, we DISMISS
Metrocall’s appeal and Trask’s appeal insofar as it challenges the
jury’s verdict, and we affirm the district court’s amended judgment
with respect to its award of attorney fees.
DISMISSED in part; AFFIRMED in part.