Seltz v. Intercargo Ins Co ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 16, 2003
Charles R. Fulbruge III
_______________________ Clerk
No. 02-20853
Summary Calendar
_______________________
TEXAS SOIL RECYCLING, INC; ET AL,
Plaintiffs,
BOBBY E. SELTZ; JOE R. CALVERT; LISA G. CALVERT,
Plaintiffs - Appellants
versus
INTERCARGO INSURANCE COMPANY,
Defendant - Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
Civil Docket #H-98-CV-278
_________________________________________________________________
Before JONES, STEWART, and DENNIS, Circuit Judges.
PER CURIAM:*
In 1998, the appellants filed an action against
Intercargo Insurance Company. Intercargo filed a counterclaim,
alleging that the appellants breached an indemnity contract. The
indemnity contract provides for reimbursement of attorneys’ fees in
*
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this opinion should not be published and is not precedent except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.
any suit on the agreement. On March 28, 2000, the district court
granted Intercargo summary judgment on its indemnity contract
counterclaim and awarded Intercargo $86,563.95 in damages and
$45,635.25 in attorneys’ fees.
On April 7, 2000, the appellants filed a notice of
appeal. On May 8, 2000, about five weeks after the district court
entered judgment, Intercargo filed an untimely motion for
clarification and attorneys’ fees. See F.R.C.P. 54(d)(2)
(requiring motions for attorneys’ fees to be filed within 14 days
after entry of judgment). Intercargo requested $79,517.19 in
additional attorneys’ fees for the work its counsel performed
between the time it filed its motion for summary judgment and the
court entered its final summary judgment order. The district court
denied Intercargo’s motion because the case was on appeal before
this court.
This court affirmed the district court’s grant of summary
judgment in favor of Intercargo and recognized Intercargo’s right
to proceed under Rule 60(a) in the district court. In December
2001, Intercargo filed a motion to supplement its prior motion to
clarify; Intercargo requested $26,146.72 in attorneys’ fees to
cover the appeal in addition to the relief previously requested.
The district court granted Intercargo’s motion, revising its
previous order to award Intercargo $86,563.95 in damages and
$151,299.16 in attorneys’ fees.
The appellants argue that the district court erred in
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granting Intercargo’s motion. We disagree in part. Under Rule
6(b)(2), the district court properly allowed Intercargo to file its
motion outside the 14-day time limit because Intercargo’s failure
to act was due to “excusable neglect.” Through no fault of its
own, Intercargo did not receive notice of the district court’s
final judgment.2 When it discovered the error, Intercargo promptly
contacted the district court and filed its motion within a few
days.3
Moreover, insofar as Intercargo’s motion sought to gain
fees incurred before the trial court’s entry of judgment, the court
properly corrected an error “arising from oversight” under Rule
60(a).4 Rule 60(a) allows the district court to modify a judgment
2
Prior to the entry of judgment, the district court clerk
erroneously terminated Intercargo from the case when the court
dismissed an intervenor’s claims. Intercargo therefore did not
receive notice of the district court’s final summary judgment until
it received a copy of the appellants’ transcript order on April 26,
2000.
3
The appellants’ reliance on In re Morrow, 502 F.2d 520 (5th
Cir. 1974), to argue that failure on the part of a court’s clerk to
notify a party of the entry of judgment, without more, does not
permit the court to expand the time for a party under Rule 6(b) is
misplaced. Morrow’s holding applies only to the time for a party
to appeal and is controlled by Rule 77(d), which provides that
“lack of notice of the entry by the clerk does not affect the time
to appeal or relieve or authorize the court to relieve a party for
failure to appeal within the time allowed, except as permitted in
Rule 4(a) of the Federal Rules of Appellate Procedure.”
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Rule 60(a) provides:
Clerical Mistakes. Clerical mistakes in judgments, orders
or other parts of the record and errors therein arising
from oversight or omission may be corrected by the court
at any time of its own initiative or on the motion of any
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to reflect the actual intention of the court. United States v.
Kellogg, 12 F.3d 497, 504 (5th Cir. 1994). Here, the district court
intended to award Intercargo attorneys’ fees; the absence of the
additional attorneys’ fees in the final judgment was due to an
oversight by the court. The additional attorneys’ fees included in
the modified judgment do not affect the substantive rights of the
parties. Id. The evidence supporting the additional award of
attorneys’ fees is identical in form to the evidence supporting the
first award of attorneys’ fees and is sufficient to support the
modified award.
On the other hand, Intercargo’s request for attorneys’
fees generated by the appeal is untimely in two ways. No
prospective request for such fees was included in Intercargo’s
initial fee motions in the district court, and Intercargo failed to
request such fees during the first appeal. The district court
abused its discretion in awarding appellate attorneys’ fees
pursuant to Rule 60(a).
For the foregoing reasons, the district court judgment is
affirmed, as modified to eliminate the request for attorneys’ fees
incurred on appeal by Intercargo.
AFFIRMED as MODIFIED.
party and after such notice, if any, as the court orders.
During the pendency of an appeal, such mistakes may be so
corrected before the appeal is docketed in the appellate
court, and thereafter while the appeal is pending may be
so corrected with leave of the appellate court.
4
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