Creuzot v. Green ( 2021 )

Case: 19-10864 Document: 00515912732 Page: 1 Date Filed: 06/24/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-10864 June 24, 2021
Summary Calendar Lyle W. Cayce
Clerk
John C. Creuzot,
Plaintiff—Appellee,
versus
Alvin Green,
Defendant—Appellant.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:17-CV-404
Before Clement, Higginson, and Engelhardt, Circuit Judges.
Per Curiam:*
John C. Creuzot filed an action against Alvin Green under the Anti-
Cybersquatting Consumer Protection Act (ACPA), 15 U.S.C. § 8131.
Creuzot alleged that, shortly after Creuzot announced his candidacy for
Dallas County District Attorney, Green registered three Internet domain
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
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No. 19-10864
names featuring Creuzot’s name without Creuzot’s consent. Green asked
for money in exchange for giving up the domain names.
Creuzot sought and obtained a preliminary injunction to prevent
Green from using the names. After Green’s ownership of the names lapsed
in 2018, the district court dismissed the case as moot in July 2019
(July Judgment). The district court ruled that Creuzot was entitled to costs
and attorney’s fees as the prevailing party, with the amount of fees to be
quantified later, after submission of evidence. When Creuzot submitted
evidence as to the fees, Green did not respond but filed a timely notice of
appeal from the July Judgment. About four months later, the court entered
an order quantifying the fees and costs. On appeal, Green contends only that
the award of attorney’s fees was unwarranted and that the fees were
excessive.
A judgment on the merits and an award of attorney’s fees are separate
judgments and separately appealable. See Budinich v. Becton Dickinson & Co.,
486 U.S. 196, 201-03 (1988). Where a notice of appeal refers only to the
judgment, it does not bring the fee issue before the court, absent
circumstances not present here. See NCNB Texas Nat. Bank v. Johnson, 11
F.3d 1260, 1269 (5th Cir. 1994) (citing Quave v. Progress Marine, 912 F.2d
798, 801 (5th Cir. 1990)). In NCNB, we reasoned that the “notice of appeal
did not, and could not, designate an order that did not then exist.” NCNB,
11 F.3d at 1269. Green’s notice of appeal mentioned only the July Judgment,
not the fee award.
In addition, “an order awarding attorney’s fees or costs is not
reviewable on appeal until the award is reduced to a sum certain.” Southern
Travel Club v. Carnival Air Lines, 986 F.2d 125, 131 (5th Cir. 1993). Thus,
even if Green wished to challenge only the legal basis of the fee award, and
not the amount, he cannot do so. See id. Accordingly, neither the basis nor
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No. 19-10864
the amount of the fee award is properly before us. Green’s appeal of the fee
award must be dismissed for lack of jurisdiction.
As to any appeal of the July Judgment, Green asserts only in passing
and in a conclusional manner that he did not violate § 8131 and that Creuzot
was not the prevailing party. He cites no authority in support of either
proposition. Moreover, he repeatedly states that the “sole issue” on appeal
is whether fees should have been awarded. Green has thus abandoned any
appeal of the July Judgment. See Yohey v. Collins, 985 F.2d 222, 224-25 (5th
Cir. 1993). To the extent Green may purport to appeal the July Judgment,
the judgment must be affirmed.
The appeal is DISMISSED in part and AFFIRMED in part.
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