File That Appeal Before It’s Too Late
By Michael Enright
The Supreme Court has held that the time to file an appeal starts running even though the lower court has not yet ruled on requests for attorneys' fees or costs incurred in litigating the case. Ray Haluch Gravel Co. v. Cent. Pension Fund of Int'l Union of Operating Eng'rs & Participating Emp'rs, 571 U.S. 177, 186 (2014); Budinich v. Becton Dickinson & Co., 486 U.S. 196, 202 (1988). Also, FRCP 58(e) provides that "[o]rdinarily, the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees." Nonetheless, problems continue to arise when a court enters an order disposing of the merits but continues to consider fees and costs in connection with the underlying dispute. Most recently, in In re Empresas Martinez Valentin Corp., Case No. 18-2103 (1st Cir. Jan. 28, 2020), the Court of Appeals held that the time for appeal started to run from the Bankruptcy Court’s entry of its order that a creditor had willfully violated the automatic stay. The fact that months of continuing litigation ensued over the amount of fees and costs to be awarded for the stay violation did not extend the deadline to appeal. As the Court noted “[t]he bankruptcy court's April 4 ruling otherwise disposed of all claims and issues in the case, save for [the debtor’s] request for costs and attorneys' fees ‘incurred in the prosecution of this adversary proceeding,’ with the amount to be determined by further submissions by the parties.” Therefore, an appeal filed 237 days later, after the fee and cost issues ultimately were decided, was too late. The Court explored a variety of means to bridge that gap, but it ultimately dismissed the appeal as untimely. The decision is a good reminder that a party dissatisfied with a ruling will want to carefully consider filing an immediate appeal if there is any argument that all that remains is the determination of fees and costs.