Tropicana Products v. Vero Beach Groves

First Circuit

Tropicana Products v. Vero Beach Groves

CourtCourt of Appeals for the First Circuit

DecidedMarch 17, 1993

Docket92-1985

StatusPublished

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Opinion

USCA1 Opinion

March 17, 1993 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

___________________

No. 92-1985

TROPICANA PRODUCTS, INC.,

Plaintiff, Appellee,

v.

VERO BEACH GROVES, INC.,

Defendant, Appellant.

__________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]
___________________

___________________

Before

Torruella, Cyr and Boudin,
Circuit Judges.
______________

___________________

Steven J. Comen, William R. Moore, Michael C. Fee and
________________ __________________ ________________
Hinckley, Allen & Snyder on Motion in Opposition to Motion for
_________________________
Costs and Attorneys' Fees, for appellant.
Robert F. Sylvia, Steven J. Comen, Michael C. Fee, William
________________ _______________ _______________ _______
R. Moore and Hinckley, Allen & Snyder on Further Opposition to
_________ _________________________
Motion for Costs and Attorneys' Fees, for appellant.
R. Mark McCareins, W. Gordon Dobie, John M. Bowler, Winston
__________________ _______________ ______________ _______
& Strawn, Gary R. Greenberg, Goldstein & Manello, P.C., and
_________ ___________________ ___________________________
Steven B. Gold on Motion for Costs and Attorneys' Fees and
_______________
Memorandum in Support, for appellee.

__________________

__________________

Per Curiam. Tropicana Products, Inc. is seeking
__________

to recover double costs, expenses, and attorneys' fees

against both Vero Beach Groves, Inc. and its counsel,

Hinckley, Allen & Snyder, under Fed. R. App. Proc. Rules 38

and 39 and 28 U.S.C. 1927 for bringing an allegedly

frivolous appeal. We deny the motion for double costs,

attorneys' fees and sanctions under Rule 38 and 28 U.S.C.

1927, but award Tropicana its costs under Rule 39.

I. Background
__________

In May 1992, Tropicana sued Vero Beach for damages

and preliminary and permanent injunctive relief, claiming

that it had violated and continued to violate a prior consent

judgment of the district court and section 43(a) of the

Lanham Act, 15 U.S.C. 1125(a), by its print advertisements

and television commercials comparing Tropicana's pasteurized

orange juice with Vero Beach's non-pasteurized, fresh-

squeezed orange juice. The advertising in question depicted

a carton of Tropicana Pure Premium orange juice atop an open

gas flame next to a carton of Vero Beach's Honestly Fresh

Squeezed orange juice chilling on a block of ice. The

accompanying text stated that ". . . Tropicana cooks their

juice before they package it. So when you see the word

'pasteurized' on their carton, you know it has been cooked.

Honestly Fresh Squeezed orange juice is never cooked. That's

why we can call it fresh squeezed . . . ."

-2-

After a hearing, the district court granted

Tropicana a temporary restraining order, determining that the

statement that Tropicana "cooked" its orange juice, together

with the picture of its orange juice over an open flame,

misrepresented the nature of Tropicana's flash pasteurization

process. After a further hearing, the court on July 23

granted Tropicana's request for a preliminary injunction. At

that time, a full trial on Tropicana's request for a judgment

of contempt and a permanent injunction had already been

scheduled for November 23.

On August 6, Vero Beach appealed the preliminary

injunction. Its initial brief was due September 24, but

approximately one week before the due date Vero Beach sought

an extension of time in which to file the brief. It

requested the extension because it wished to await the

results of settlement discussions through the Civil Appeals

Management Program (CAMP) which were scheduled for October 5.

Two days after the CAMP hearing had failed to produce a

settlement, Hinckley, Allen moved to withdraw as counsel in

the district court proceedings because Vero Beach had not

paid it any legal fees since the suit had begun. It also

filed a motion requesting the district court to stay

discovery and postpone the trial on the merits to permit Vero

Beach time to find new counsel. On October 30, Vero Beach

-3-

filed a second motion to extend the time for filing briefs so

that it could seek substitute counsel.

On November 2, the district court granted Hinckley,

Allen's motion to withdraw and informed Vero Beach that

corporations could not litigate pro se in this circuit so

that it would have to accept a default judgment if it did not

find new counsel. The district court also denied Vero

Beach's motion to stay discovery and continue the trial. In

a letter to Tropicana dated November 10 and forwarded to the

district court, Vero Beach stated that it would accept a

default judgment given its deteriorating financial condition

and the fact that it could not proceed pro se. On November

23, the court entered a default judgment against Vero Beach,

finding that it had willfully violated the consent judgment

and permanently enjoining it from any false or deceptive

advertising or any comparative advertising relating to any

Tropicana product.

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USCA1 Opinion



March 17, 1993        [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT

                                 ___________________

No. 92-1985

TROPICANA PRODUCTS, INC.,

                                 Plaintiff, Appellee,

                                          v.

                               VERO BEACH GROVES, INC.,

                                Defendant, Appellant.

                                  __________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                     [Hon. Robert E. Keeton, U.S. District Judge]
                                             ___________________

                                 ___________________

                                        Before

                              Torruella, Cyr and Boudin,
                                   Circuit Judges.
                                   ______________

                                 ___________________

               Steven J.  Comen,  William  R.  Moore, Michael  C.  Fee  and
               ________________   __________________  ________________
          Hinckley,  Allen & Snyder on  Motion in Opposition  to Motion for
          _________________________
          Costs and Attorneys' Fees, for appellant.
               Robert F. Sylvia,  Steven J. Comen, Michael  C. Fee, William
               ________________   _______________  _______________  _______
          R.  Moore and Hinckley, Allen  & Snyder on  Further Opposition to
          _________     _________________________
          Motion for Costs and Attorneys' Fees, for appellant.
               R. Mark  McCareins, W. Gordon Dobie, John M. Bowler, Winston
               __________________  _______________  ______________  _______
          &  Strawn, Gary  R.  Greenberg, Goldstein  &  Manello, P.C.,  and
          _________  ___________________  ___________________________
          Steven  B. Gold  on  Motion for  Costs  and Attorneys'  Fees  and
          _______________
          Memorandum in Support, for appellee.

                                  __________________

                                 __________________  

Per Curiam.    Tropicana Products,  Inc. is seeking
                      __________

            to  recover  double  costs,  expenses,  and  attorneys'  fees

            against  both  Vero  Beach  Groves,  Inc.  and  its  counsel,

            Hinckley, Allen & Snyder,  under Fed. R. App. Proc.  Rules 38

            and  39  and  28 U.S.C.     1927  for  bringing an  allegedly

            frivolous  appeal.   We  deny the  motion  for double  costs,

            attorneys' fees and sanctions  under Rule 38 and 28  U.S.C.  

            1927, but award Tropicana its costs under Rule 39.  

                                     I.  Background
                                         __________

                      In May 1992, Tropicana  sued Vero Beach for damages

            and preliminary  and  permanent injunctive  relief,  claiming

            that it had violated and continued to violate a prior consent

            judgment  of  the district  court  and section  43(a)  of the

            Lanham Act, 15 U.S.C.    1125(a), by its print advertisements

            and television commercials comparing  Tropicana's pasteurized

            orange   juice  with  Vero  Beach's  non-pasteurized,  fresh-

            squeezed orange juice.   The advertising in question depicted

            a  carton of Tropicana Pure Premium orange juice atop an open

            gas flame next  to a  carton of Vero  Beach's Honestly  Fresh

            Squeezed  orange juice  chilling  on a  block  of ice.    The

            accompanying text  stated that ".  . . Tropicana  cooks their

            juice  before they  package it.   So  when you  see the  word

            'pasteurized' on their  carton, you know it  has been cooked.

            Honestly Fresh Squeezed orange juice is never cooked.  That's

            why we can call it fresh squeezed . . . ."  

-2-

After  a  hearing,   the  district  court   granted

            Tropicana a temporary restraining order, determining that the

            statement that Tropicana "cooked" its orange juice,  together

            with  the picture  of its  orange juice  over an  open flame,

            misrepresented the nature of Tropicana's flash pasteurization

            process.    After a  further hearing,  the  court on  July 23

            granted Tropicana's request for a preliminary injunction.  At

            that time, a full trial on Tropicana's request for a judgment

            of  contempt  and a  permanent  injunction  had already  been

            scheduled for November 23.  

                      On  August 6,  Vero Beach appealed  the preliminary

            injunction.   Its  initial brief  was due  September 24,  but

            approximately one week before the due date Vero Beach  sought

            an  extension  of time  in  which  to  file  the brief.    It

            requested  the  extension  because  it wished  to  await  the

            results  of settlement discussions  through the Civil Appeals

            Management Program (CAMP) which were scheduled for October 5.

            Two  days  after the  CAMP hearing  had  failed to  produce a

            settlement, Hinckley,  Allen moved to withdraw  as counsel in

            the  district court  proceedings because  Vero Beach  had not

            paid it  any legal fees  since the suit  had begun.   It also

            filed  a  motion  requesting   the  district  court  to  stay

            discovery and postpone the trial on the merits to permit Vero

            Beach time  to find new counsel.   On October  30, Vero Beach

-3-

filed a second motion to extend the time for filing briefs so

            that it could seek substitute counsel.   

                      On November 2, the district court granted Hinckley,

            Allen's  motion  to withdraw  and  informed  Vero Beach  that

            corporations could  not litigate  pro se  in this  circuit so

            that it would have to accept a default judgment if it did not

            find new  counsel.    The district  court  also  denied  Vero

            Beach's  motion to stay discovery and continue the trial.  In

            a  letter to Tropicana dated November 10 and forwarded to the

            district  court,  Vero Beach  stated that  it would  accept a

            default judgment given its deteriorating  financial condition

            and the fact  that it could not proceed pro  se.  On November

            23, the court entered a default judgment against Vero  Beach,

            finding that  it had willfully violated  the consent judgment

            and  permanently enjoining  it  from any  false or  deceptive

            advertising  or any comparative  advertising relating  to any

            Tropicana product.  

                      On  November  30, Hinckley,  Allen  filed a  motion

            under  Fed.  R.  App. Pro.  Rule  42(b),  to which  Tropicana

            assented in  a telephone  call, moving the  court to  dismiss

            Vero  Beach's appeal  from  the preliminary  injunction.   As

            grounds for  the motion,  the  firm cited  its withdrawal  as

            counsel for Vero  Beach in  the district court  and the  fact

            that  the default  judgment below  rendered the  appeal moot.

            This  court ordered  the  appeal dismissed.   Tropicana  then

-4-

filed its motion for  costs and attorneys' fees  against both

            Vero Beach and Hinckley, Allen.

-5-

II. Discussion
                                         __________

                      Tropicana's request for costs is clearly justified.

            Rule 39 states that, "[e]xcept as otherwise provided by  law,

            if an appeal is  dismissed, costs shall be taxed  against the

            appellant unless otherwise ordered  . . . ."  As  noted, Vero

            Beach  voluntarily dismissed  its  appeal  under Rule  42(b),

            which provides that "[a]n appeal  may be dismissed on  motion

            of the appellant upon such terms as may be agreed upon by the

            parties or fixed  by the  court."1   Presumably, a  voluntary

            dismissal under Rule 42  would come within the terms  of Rule

            39, particularly since the notice  of dismissal filed in this

            case did not contain any  indication as to who would  pay the

            costs of  the appeal and Rule  39 addresses that issue.   See
                                                                      ___

            Atlantic Coast Line  R. Co. v.  Wells, 54 F.2d 633,  634 (5th
            ___________________________     _____

            Cir. 1932) (costs  of appeal dismissed  by appellant as  moot

            were taxed against appellant under  a rule awarding costs  to

____________________

            1.  Rule 42(b)  also provides that  "[i]f the  parties to  an
            appeal  . . . shall sign and file with the clerk of the court
            of  appeals an  agreement that  the proceeding  be dismissed,
            specifying  the terms as to  payment of costs,  and shall pay
            whatever  fees  are  due,  the  clerk  shall enter  the  case
            dismissed, .  . . ."   Since Vero Beach's  motion to dismiss,
            though  assented  to   by  Tropicana,   contained  no   terms
            specifying who would pay the costs and fees and dismissal was
            effected  through  an order  of  this court,  the  appeal was
            actually dismissed under the portion of the rule quoted above
            in  the text of our  opinion.  See  Clarendon Ltd. v. Nu-West
                                           ___________________    _______
            Industries, Inc., 936 F.2d 127, 128 (3d Cir. 1991).  
            ________________

                                         -6-

appellee  whenever  an   appeal  is  dismissed,  except   for

            jurisdictional reasons).   

                      Rule  38 provides  that the  court may  award "just

            damages and single  or double  costs to the  appellee" if  it

            determines  that an  appeal  was "frivolous."   Just  damages

            includes attorneys' fees.   Applewood Landscape & Nursery Co.
                                        _________________________________

            v.  Hollingsworth, 884 F.2d 1502,  1508 (1st Cir.  1989).  An
                _____________

            appeal  is  frivolous  if   the  "result  was  obvious,"  the

            "overwhelming   weight   of  precedent   militate[d]  against

            [appellant's] position," or there was "no legitimate  ground"

            for the appeal, or if the appellant failed to set forth facts

            to support  its legal theory.   E.H.  Ashley &  Co. v.  Wells
                                            ___________________     _____

            Fargo Alarm Services,  907 F.2d 1274,  1280 (1st Cir.  1990).
            ____________________

            To find an appeal frivolous, the  court need not find that it

            was brought in  bad faith or  with malice.   "[I]t is  enough

            that the appellants and their attorney should have been aware
                                                   ______

            that the appeal had no chance of  success."  Id. (emphasis in
                                                         ___

            original).  

                      Under 28 U.S.C.    1927, "any attorney . . . who so

            multiplies  the  proceedings  in any  case  unreasonably  and

            vexatiously  may   be  required  by  the   court  to  satisfy

            personally  the  excess costs,  expenses  and  attorneys fees

            reasonably incurred because of  such conduct."  An attorney's

            bad faith in bringing an appeal will always justify sanctions

            under section 1927, but bad faith need not be shown to obtain

-7-

sanctions.   Cruz v. Savage,  896 F.2d 626,  631-32 (1st Cir.
                         ____    ______

            1990).   Rather,  sanctions are  justified "if  an attorney's

            conduct  in  multiplying   proceedings  is  unreasonable  and

            harassing  or annoying" in an objective sense.  "It is enough

            that an  attorney acts  in disregard  of whether  his conduct

            constitutes  harassment   or  vexation,  thus   displaying  a

            'serious  and studied  disregard for  the orderly  process of

            justice.'"   Id.  (citation omitted).   However,  the conduct
                         ___

            must be  "more severe than mere  negligence, inadvertence, or

            incompetence . . . ."  Id.   Bringing  a "frivolous, dilatory
                                   ___

            and  vexatious" appeal would warrant an award of double costs

            against  an attorney under Rule 38 and an award of attorneys'

            fees under section 1927.  Id. at 635.  
                                      ___

                      Accordingly, Tropicana's ability  to obtain  double

            costs and  attorneys' fees  against Vero Beach  and Hinckley,

            Allen turns  essentially on  the question whether  the appeal

            was frivolous,  although Tropicana  could also recover  if it

            showed  bad  faith,  unreasonable  or  vexatious  conduct  in

            "multiplying" the proceedings, or  some "serious and  studied

            disregard  for the  orderly process  of justice."   Tropicana

            alleges that Vero Beach's likelihood of persuading this court

            to vacate the  preliminary injunction was "non-existent"  and

            decries the "total and  obvious meritlessness" of the appeal.

            Yet it makes  no attempt to explain to us  why the appeal was

            substantively  frivolous  --  its  brief  is  devoid  of  any

-8-

reference  to the  legal  issues considered  by the  district

            court  in granting the injunction.  Because Tropicana has not

            addressed the issue, and this appeal was dismissed before the

            parties submitted  their briefs,  we do not  consider whether

            the appeal had merit or was substantively frivolous. 

                      Tropicana argues  that the  decision to  appeal the

            preliminary  injunction  was   ill-considered,  wasteful   of

            judicial resources and  caused undue  expense for  Tropicana.

            Thus,  its argument  appears to  be one based  essentially on

            section 1927 standards -- that Vero Beach and Hinckley, Allen

            unreasonably  and  vexatiously  multiplied   proceedings  and

            showed  a disregard  for the  orderly process  of justice  in

            bringing  the appeal  in  the first  place  and then  in  not

            prosecuting  it  appropriately.   To  support  its  argument,

            Tropicana makes  the following points.   Hinckley, Allen must

            have known to  a certainty that the appeal would not be heard

            before the full  trial on the  merits, yet  the firm did  not

            file a motion  for an  expedited hearing.2   To make  matters

            worse,  the firm did not  file a timely  appellate brief, but

            twice sought extensions.   In  fact, as it  turned out,  Vero

____________________

            2.  Tropicana  also  states  that  Vero  Beach's  appeal  was
            interlocutory and "not  certified for immediate  or expedited
            appeal," but does  not elaborate  on this point.   We do  not
            understand why the appeal should have been certified since 28
            U.S.C.    1292(a) clearly gives this  court jurisdiction over
            appeals from  "[i]nterlocutory orders of the  district courts
            of the United States . . .  granting . . . injunctions . .  .
            ."

                                         -9-

Beach  never  filed any  brief at  all.   Moreover, Hinckley,

            Allen  failed  to move  promptly  to  dismiss  the appeal  or

            withdraw its appearance  before this court after  it moved to

            withdraw  as counsel  for Vero Beach  in the  district court.

            Vero  Beach did  not stipulate  to dismiss  the appeal  until

            after  it  was  defaulted  in  the  district  court, and  its

            decision to  accept the  default judgment rather  than retain

            successor counsel demonstrated that it had never been serious

            about the appeal.   Furthermore, once the parties had  agreed

            to dismiss the  appeal, Hinckley, Allen  filed its motion  to

            dismiss the appeal  without first forwarding a draft  copy of

            the motion to Tropicana for inclusion of terms on the payment

            of costs and fees, as Tropicana had expressly asked it to do.

            Finally, the appeal  was basically motivated by  a desire "to

            get away  from Judge Keeton who was  well versed in the facts

            and  applicable law, and [to] obtain a more friendly forum in

            the court of appeals."  

                      The points  made by Tropicana do not persuade us to

            award double costs and attorneys' fees against Vero Beach and

            Hinckley, Allen.    Although it  was  not a  "certainty",  as

            Tropicana  asserts,  that the  appeal  would  not be  decided

            before the  trial on the merits,  it is probably true  that a

            decision by  us before the  trial was unlikely.   It  is also

            true  that Hinckley,  Allen  did not  file  a motion  for  an

            expedited appeal, but its failure to do so does not mean that

-10-

the appeal  was ill-considered.  Hinckley,  Allen did attempt

            to stay discovery and  to continue the trial in  the district

            court.  Although it filed its stay motion two months after it

            had  noticed  its appeal,  the  motion was  filed  almost two

            months before  the date  of the trial.   Had the  motion been

            granted,  a matter which was outside  its control, the appeal

            would have been heard before the trial on the merits.  

                      Furthermore, Vero  Beach's  motions to  extend  the

            time  for filing its  brief were  made for  good cause.   The

            record shows that  the parties  were unable  to schedule  the

            CAMP hearing until  after Vero Beach's brief was  due because

            the judge who was to preside over the hearing was unavailable

            before that time.  It was no abuse of process  for Vero Beach

            to request  an extension  of time under  those circumstances.

            Had  Vero Beach timely filed  its brief and  then settled the

            case,  it would have incurred  an unnecessary expense, a very

            legitimate concern for a company in financial trouble.  Since

            Vero Beach's brief was  due almost two weeks before  the CAMP

            hearing,  Tropicana  would  likely have  begun  preparing its

            response before  the hearing was held,  thereby incurring its

            own expenses that would have  proven unnecessary had the case

            settled.  In addition, Vero Beach moved to extend the initial

            time for  filing its brief  over a week before  the brief was

            actually due, further indicating that it sought the extension

            for valid reasons and not just as a delaying tactic.  

-11-

The second extension which Vero Beach requested was

            also justified.  It  seems clear that Vero Beach  needed some

            reasonable  period of time in which to seek new counsel after

            Hinckley,  Allen  announced   its  desire  to   withdraw  its

            representation.  The  request for an extension  until the end

            of November was not excessive -- not only did Vero Beach need

            to locate new counsel, but its new counsel would have had  to

            review  the lengthy  record  below, evaluate  the issues  and

            prepare  a brief.  At  the time the  extension was requested,

            the  district court had not yet denied Vero Beach's motion to

            postpone  the trial on the  merits so that  further action on

            the  appeal  was feasible.    Accordingly,  we conclude  that

            Hinckley, Allen  and Vero  Beach acted reasonably  in seeking

            these extensions,  in a way  calculated to save  both parties

            unnecessary expenses  and to  conserve the resources  of this

            court as well.  

                      We  see  no  improper  dilatoriness   in  Hinckley,

            Allen's failure to seek immediately to withdraw its appellate

            representation of Vero Beach or to  have the appeal dismissed

            after it filed  its motion  to withdraw as  counsel for  Vero

            Beach  in  the  district  court.   Hinckley,  Allen  informed

            Tropicana at the  hearing on November  2 that its  withdrawal

            from representation  would apply  to the  appeal as  well and

            that  Vero  Beach's  new   counsel  should  be  permitted  to

            determine the status of the appeal,  a point that seems to us

-12-

an indisputably valid  one.   The firm also  arguably had  an

            obligation to ensure that its withdrawal  from representation

            proceeded  in a  way  that would  not  adversely impact  Vero

            Beach's interests,  and permitting  Vero  Beach a  reasonable

            period of time to find new counsel who could evaluate whether

            the  appeal  should proceed  would  be  consistent with  that

            obligation.   Cf.  ABA Model  Rules of  Professional Conduct,
                          ___

            Rule  1.16(b) ("a  lawyer  may withdraw  from representing  a

            client if  withdrawal  can be  accomplished without  material

            adverse  effect  on the  interests of  the client");  id. (d)
                                                                  ___

            ("[u]pon termination of  representation, a lawyer  shall take

            steps  to  the extent  reasonably  practicable  to protect  a

            client's  interests,  such  as  .  .  .  allowing  time   for

            employment of  other counsel .  . .  ."); see also  ABA Model
                                                      ________

            Code of Professional Responsibility, DR  2-110(A)(2) ("In any

            event,  a lawyer shall not  withdraw from employment until he

            has taken reasonable steps  to avoid foreseeable prejudice to

            the  rights of his client, including giving due notice to his

            client,  allowing time for employment of other counsel, . . .

            .").   Moreover,  the transcript  of  the November  2 hearing

            shows that, already  then, Vero Beach was  attempting to find

            new  counsel,  but having  difficulty  doing so.    Under the

            circumstances, Hinckley, Allen may  have decided that it made

            most sense  to continue  its representation at  the appellate

            level  in case it was needed to  file a motion to dismiss the

-13-

appeal on Vero Beach's  behalf, which, as it turned  out, the

            firm eventually did.

                      We doubt that Tropicana means to suggest  seriously

            that Hinckley, Allen  had some obligation  to try to  dismiss

            the appeal on  its own since only  Vero Beach could  make the

            definitive  decision to do so.  Nor does Vero Beach's failure

            to dismiss the appeal  until November 30  seem to us to  have

            been unduly  untimely.   In Tropicana's presence,  Vero Beach

            was informed on November 2 that it could not litigate in this

            circuit without being represented by counsel.  By letter sent

            eight  days later,  it  informed Tropicana  and the  district

            court that, given its  deteriorating financial condition,  it

            would  not  retain new  counsel  and would  accept  a default

            judgment  on November 23.   Thus, within two  weeks after the

            conditions arose which made it more difficult for  Vero Beach

            to  proceed before  the district  court or  to  prosecute its

            appeal, Tropicana  knew  that it  would win  in the  district

            court and that the appeal would have to be dismissed.   Under

            those circumstances, the failure  to formally file the motion

            to dismiss until the end of November cannot  be regarded as a

            vexatious,   annoying   or   unreasonably  dilatory   action.

            Moreover, our  docket indicates that no action  on the appeal

            was taken  by either party  or by the  court in  November, so

            that the  failure to dismiss  the appeal earlier  in November

-14-

clearly caused no  undue expense  for Tropicana  or waste  of

            judicial resources.3  

                      Nor are we persuaded  that Vero Beach's decision to

            accept a default judgment in the district court shows that it

            had  not  brought  its  appeal  seriously.    As  the  record

            demonstrates, the district court  informed Vero Beach that it

            would have to accept  a default judgment  if it did not  find

            substitute counsel since a corporation may not  appear pro se

            in this circuit.   The  record also shows  Vero Beach's  poor

            financial  condition, which  had  rendered it  unable to  pay

            Hinckley,  Allen's  bills and  apparently  had  also made  it

            impossible  to   find  replacement   counsel.    Given   this

            unresolvable tangle,  Vero Beach's acceptance of  the default

            judgment cannot possibly reflect  adversely on its motivation

            in bringing the appeal in the first place.  

                      Tropicana    suggests    that    Hinckley,    Allen

            deliberately  filed its  assented-to  motion to  dismiss  the

            appeal before  Tropicana could append its  statement of costs

            and fees to  the motion.   A careful  reading of  Tropicana's

            asseverations regarding the relevant  events suggests no such

            deliberateness.  In its  memorandum supporting its motion for

            fees  and costs,  Tropicana states  that it  informed William

____________________

            3.  We realize that Tropicana  sent a letter to the  clerk of
            this court on November  3, to which the clerk  responded, but
            Tropicana's  letter responded  to  the  court's October  30th
            order  granting Vero  Beach a  second  extension of  time for
            filing its brief.

                                         -15-

Moore,   a   Hinckley,  Allen   attorney,   in   a  telephone

            conversation  on November 25  that it would  agree to dismiss

            the appeal, but that it intended to "seek an Order" for costs

            and  fees.     As  phrased,  Tropicana's   comment  is  fully

            consistent with  an intent  to file  a separate  petition for

            fees  with this court, which it eventually did.  The specific

            request  that   Hinckley,  Allen  send  it   a  draft  motion

            dismissing the appeal so that it could append its request for

            fees and costs to the motion was made  separately in a letter

            dated November 25, the  same day the phone  conversation took

            place.  Although that  letter was sent by facsimile  and thus

            presumably arrived the day it was sent, it was addressed to a

            different Hinckley, Allen attorney,  Steven Comen, and not to

            Moore  who  appears to  have  been  the one  responsible  for

            preparing  the  motion.    November  25  was  the day  before

            Thanksgiving.   Moore filed the  motion to dismiss by mailing

            it on Monday, November  30, the first business day  after the

            intervening  weekend.  In its memorandum opposing Tropicana's

            request for fees, Hinckley, Allen explains that "[t]he letter

            . . . due to the Thanksgiving holiday  crossed paths with the

            Assented-to Motion."  From that we infer that Hinckley, Allen

            is saying that, because of the holiday, Comen did not receive

            Tropicana's letter in time to direct Moore to send a draft of

            the  motion to dismiss to Tropicana  before filing the motion

            with this  court.  The present  record gives us no  reason to

-16-

doubt the firm's  explanation, although  we note  that it  is

            somewhat ambiguously phrased.    

                      We need  not spend long  on Tropicana's  allegation

            that Vero Beach  brought its appeal  in an attempt to  find a

            more receptive  forum for  its arguments.   Absent  a showing

            that  the appeal itself had no  substantive legal merit, that

            motivation  alone would not support  an award of double costs

            and  attorneys'  fees.   We have  no  doubt that  appeals are

            generally  brought in  an attempt  to receive  more favorable

            treatment from us than that accorded by the trial court.    

                                     III. Conclusion
                                          __________

                      Tropicana's  request  for  costs under  Rule  39 is

            granted.  Its  request for double  costs and attorneys'  fees

            under Rule  38 and for  sanctions under  28 U.S.C.    1927 is

            denied.  

-17-

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