Azeez P. Adedutan v. Victory Vascular

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
SEPTEMBER 25, 2007
No. 06-15507 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 04-00065-CV-CDL-3
AZEEZ P. ADEDUNTAN, M.D.,
Plaintiff-Counter-
Defendant-Appellant,
VICTORY VASCULAR & GENERAL SURGERY OF GEORGIA,
P.C,
Plaintiff-Appellant,
versus
HOSPITAL AUTHORITY OF CLARKE COUNTY,
d.b.a. Athens Regional Medical Center,
ATHENS REGIONAL MEDICAL CENTER,
ATHENS REGIONAL HEALTH SERVICES, INC.,
Defendants-Counter-
Claimant-Appellees,
ATHENS VASCULAR SURGERY, P.C.,
DAVID M. SAILORS, M.D., et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
_________________________
(September 25, 2007)
Before CARNES, BARKETT and HILL, Circuit Judges.
PER CURIAM:
Dr. Azeez P. Adeduntan appeals the district court’s grant of summary
judgment to the defendants, Athens Regional Medical Center, Athens Vascular
Surgery, P.C., and a number of their individual employees (1) on his ten federal
and state law claims, and (2) on Athens Regional’s counterclaim for contractual
attorney’s fees.
The defendants moved to dismiss this appeal for lack of jurisdiction because
the court has yet to decide the amount of attorney’s fees owed to Athens Regional
under the contract between it and Adeduntan, which served as the basis for a
counterclaim by Athens Regional against him. According to the defendants (the
other defendants have joined the motion to dismiss), because the district court has
not resolved the issue of the amount of fees owed by Adeduntan to Athens
Regional, which is part and parcel of the merits of the counterclaim, summary
judgment for the defendants on the other issues and claims is not a “final decision”
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that can be appealed under 28 U.S.C. § 1291. Where there is a question as to our
appellate jurisdiction, we have an obligation to review it before we turn to the
merits of the appeal. See Main Drug, Inc. v. Aetna U.S. Healthcare, Inc., 475 F.3d
1228, 1229 (11th Cir. 2007).
Section 1291 provides the general rule that we have “jurisdiction of appeals
from all final decisions of the district courts of the United States.” 28 U.S.C. §
1291. This is the most common basis for our appellate jurisdiction, and it is the
jurisdictional hook relied on by Adeduntan in this appeal. He does not cite any
other basis for our jurisdiction, cf. id. § 1292, and we haven’t found any that would
arguably apply here. Jurisdiction to hear the merits of Adeduntan’s appeal
therefore hinges on whether the district court’s summary judgment for the
defendants, reserving the amount of fees owed to Athens Regional as a result of its
contract counterclaim, is a “final decision” under § 1291.
“At common law,” the rule was that “attorney’s fees were regarded as an
element of ‘costs’ awarded to the prevailing party, which are not generally treated
as part of the merits judgment.” Budinich v. Becton Dickinson & Co., 486 U.S.
196, 200, 108 S. Ct. 1717, 1721 (1988) (citation omitted). Since an attorney’s fees
award was not considered part of the merits of the case, the absence of a fee award
from the judgment for the winning party did not render that judgment non-final,
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precluding an immediate appeal by the losing party under § 1291. See id. at
200–01, 108 S. Ct. at 1721.
However, there is an exception to the common law rule that an attorney’s
fees award is not part of the merits of the case and does not render the judgment
non-final. The exception applies where “the attorney’s fees are an integral part of
the merits of the case and the scope of relief.” Ierna v. Arthur Murray Int’l Inc.,
833 F.2d 1472, 1475 (11th Cir. 1987) (citing Holmes v. J. Ray McDermott & Co.,
682 F.2d 1143, 1146 (5th Cir. 1982)). In such cases, the attorney’s fees “cannot be
characterized as costs or as collateral and their determination is a part of any final,
appealable judgment.” Id. Thus, in cases where attorney’s fees are an integral part
of the merits of a claim or counterclaim, the district court’s judgment disposing of
all other claims does not become final, and we lack appellate jurisdiction, until all
the fee issues are decided.
Our case law supports the defendants’ position that the attorney’s fees due
Athens Regional as part of its counterclaim against Adeduntan are an integral part
of the merits of this case because they were awarded to Athens Regional based on a
contract between it and Adeduntan. In Ierna, where the contract between the
parties provided that the “prevailing party in the arbitration shall be awarded, in
addition to any other relief granted, all of its costs and expenses of any such
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arbitration proceeding, including reasonable attorneys’ fees,” we said:
When the parties contractually provide for attorneys’ fees, the award
is an integral part of the merits of the case. . . . Because the parties
provided in their agreement for costs and expenses to be awarded to
the prevailing party, the award is integral to the merits. The district
court’s order, therefore, did not become final and appealable until the
court calculated the final award of costs and expenses to appellees as
prevailing parties.
833 F.2d at 1476. Likewise, in Brandon, Jones, Sandall, Zeide, Kohn, Chalal &
Musso, P.A. v. MedPartners, Inc., 312 F.3d 1349 (11th Cir. 2002), we reiterated
the rule “[i]n this Circuit” that “a request for attorneys’ fees pursuant to a
contractual clause is considered a substantive issue; and an order that leaves a
substantive fees issue pending cannot be ‘final.’” Id. at 1355.
In this case, there is no dispute that Athens Regional’s counterclaim for
attorney’s fees was based on a contract between it and Adeduntan. The “Consent
and Release” form that he signed in exchange for his appointment to the medical
staff at Athens Regional provided: “If . . . I institute action against the Hospital . . .
and do not prevail, I agree to reimburse the Hospital . . . for any and all costs
incurred in defending such legal action, including reasonable attorney’s fees.” The
district court granted summary judgment to Athens Regional on its counterclaim
for fees based on the contract insofar as entitlement is concerned. The court,
however, concluded that it could not determine from the record as it then stood the
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amount of fees due and that a hearing would be necessary for that reason.
Adeduntan filed his notice of appeal before the district court held a hearing on the
fees issue.
We are aware that the Supreme Court said in Budinich that “[c]ourts and
litigants are best served by the bright-line rule, which accords with traditional
understanding, that a decision on the merits is a ‘final decision’ for purposes of §
1291 whether or not there remains for adjudication a request for attorney’s fees
attributable to the case.” 486 U.S. at 202–03, 108 S. Ct. at 1722. And we are
aware that this Court has said of Budinich that “the Supreme Court held that both
the imposition and the amount of attorney’s fees are always collateral to the merits
of an action.” Fluor Constructors, Inc. v. Reich, 111 F.3d 94, 96 (11th Cir. 1997);
see also LaChance v. Duffy’s Draft House, Inc., 146 F.3d 832, 837 (11th Cir.
1998) (stating that Budinich “held that attorney’s fees is always a collateral issue”).
Adeduntan contends that Budinich and our two opinions characterizing it mean
that the exception to the attorney’s-fees-as-collateral-issue for fees awarded based
on a contract has been undermined.
While we are sympathetic to Adeduntan’s position, we as a panel cannot
adopt it. Budinich, Fluor, and LaChance were all cases where the attorney’s fees
were awarded by the courts based on a prevailing party statute, rather than as part
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of the contract. Budinich, 486 U.S. at 197, 108 S. Ct. at 1719 (awarded based on
Colorado statute which gave fees to prevailing party in any employment
compensation case); Fluor, 111 F.3d at 95 (fees requested pursuant to attorney’s
fees provision in Energy Reorganization Act of 1974); LaChance, 146 F.3d at 833
(ADA case). The facts of those three cases could not have presented, and did not
present, the issue of whether the amount of attorney’s fees due to be awarded
pursuant to a contract is a substantive issue, which would, if left open, render the
judgment non-final for § 1291 purposes. As a result, those three decisions could
not have decided the contract-fees-as-a-merits-decision issue because their facts
did not present that issue.
Decisions, even Supreme Court decisions, can make law only to the extent
of their facts; all else is dicta. See Watts v. BellSouth Telecomm., Inc., 316 F.3d
1203, 1207 (11th Cir. 2003) (“Whatever their opinions say, judicial decisions
cannot make law beyond the facts of the cases in which those decisions are
announced.”); United States v. Aguillard, 217 F.3d 1319, 1321 (11th Cir. 2000)
(per curiam) (“The holdings of a prior decision can reach only as far as the facts
and circumstances presented to the Court in the case which produced that
decision.” (citations and internal quotation marks omitted)). The only previous
cases that have squarely presented the contract-attorney’s-fees-final-judgment
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issue to this Court were Ierna and MedPartners. In both of them this Court held
that “a request for attorneys’ fees pursuant to a contractual clause is considered a
substantive fees issue; and an order that leaves a substantive issue pending cannot
be ‘final.’” MedPartners, 312 F.3d at 1355 (citing Ierna, 833 F.2d at 1476).
It could be argued that the holding of the Ierna decision was undermined by
the sweeping language in the later decision of the Supreme Court in Budinich, even
though that case did not squarely present the issue as to contractual attorney’s fees.
However, in addition to the principle, which we have just discussed, that holdings
are limited to the issues actually presented by the particulars of a case, there is also
the fact that MedPartners, which reiterated our holding in Ierna, came after
Budinich, not before it. Therefore, MedPartners establishes the law of this circuit
on the issue in the post-Budinich era. For better or for worse, whether wrong or
right, MedPartners is binding panel precedent that we must follow until this Court
sitting en banc, or the Supreme Court, decides otherwise in a case that presents the
contract-attorney’s-fees issue. See United States v. Steele, 147 F.3d 1316,
1317–18 (11th Cir. 1998) (en banc).1
1
We are aware that the MedPartners decision did not explicitly address the argument
that Budinich undermined the holding of Ierna. However, we have held a number of times that a
prior panel precedent cannot be circumvented or ignored on the basis of arguments not made to,
or factors not considered by, the prior panel. See, e.g., Saxton v. ACF Indus., 239 F.3d 1209,
1215 (11th Cir. 2001) (“that holding [of the earlier panel] is the law of this Circuit regardless of
what might have happened had other arguments been made to the panel that decided the issue
first”) (citation omitted); Smith v. GTE Corp., 236 F.3d 1292, 1302–03 (11th Cir. 2001)
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Until that happens, this appeal is controlled by MedPartners and Ierna. And
under those two decisions Adeduntan’s appeal is due to be dismissed as premature.
Of course, he may file another one after the district court enters an order
determining the amount of fees owed. At that time the district court’s judgment
will be “final” and appealable under § 1291.2
APPEAL DISMISSED.3
(categorically rejecting an “overlooked reason” exception to the prior precedent rule); Turner v.
Beneficial Corp., 236 F.3d 643, 650 (11th Cir. 2000) (“Nor is the operation of the rule dependent
upon the skill of the attorneys or wisdom of the judges involved with the prior decision—upon
what was argued or considered.”); Cohen v. Office Depot, Inc., 204 F.3d 1069, 1076 (11th Cir.
2000) (same); United States v. Bascaro, 742 F.2d 1335, 1343 (11th Cir. 1984) (“[T]he mere act
of proffering additional reasons not expressly considered previously . . . will not open the door to
reconsideration of the question by a second panel.”).
2
In any future appeal, in order to minimize expenses, the parties may wish to move this
Court for permission to rely on the briefs they have already filed, supplemented with any
additional briefing related to intervening decision on the attorney’s fees issue.
3
This appeal was originally scheduled for oral argument, but it was removed from the
oral argument calendar pursuant to 11th Cir. R. 34-3(f).
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