Trask v. A+Network Inc ( 2001 )


Menu:
  •                   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    opinion should not be published and is not precedent except under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.
    17