Opinion
23-4134 23-4144
12-26-2023
ZURICH AMERICAN INSURANCE COMPANY AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff - Appellee, v. ASCENT CONSTRUCTION, INC.; BRAD L. KNOWLTON, Defendants Third-Party Plaintiffs, v. And v. SHONDELL SWENSON, f/k/a Shondell Knowlton, Defendant Third-Party Plaintiff - Appellant, v. v. v. DALLAS KNOWLTON, d/b/a Pfeifferhorn Construction, Third-Party Defendant. v. ZURICH AMERICAN INSURANCE COMPANY AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, Plaintiff - Appellee, v. v. v. ASCENT CONSTRUCTION, INC.; BRAD L. KNOWLTON, Defendants Third-Party Plaintiffs - Appellants, v. And v. SHONDELL SWENSON, f/k/a Shondell Knowlton, Defendant Third-Party Plaintiff, v. v. v. DALLAS KNOWLTON, d/b/a Pfeifferhorn Construction, Third-Party Defendant.
(D.C. No. 1:20-CV-00089-DBB) (D. Utah)
Before HOLMES, Chief Judge, MORITZ, and ROSSMAN, Circuit Judges.
ORDER
These procedurally-consolidated appeals are before us sua sponte to consider the court's jurisdiction over these appeals. See Hill v. Vanderbilt Cap. Advisors, LLC, 702 F.3d 1220, 1223 (10th Cir. 2012) (this court has "an independent duty to examine [its] own jurisdiction").
The district court entered judgment in favor of appellee Zurich American Insurance Company and Fidelity and Deposit Company of Maryland and against appellants Shondell Swenson, Ascent Construction, Inc., and Brad Knowlton. In appeal no. 23-4134, Swenson appeals from that judgment. In appeal no. 23-4144, Ascent and Knowlton appeal from that same judgment.
The order underlying that judgment concluded that pursuant to the parties' contractual arrangement, the appellants were liable to Zurich for, among other things, attorneys' fees and costs. That is, the district court found that the fees and costs were a component of the compensatory damages to which Zurich was entitled. However, the district court's order did not fix the precise amount of appellants' liability for fees and costs. Instead, the district court specifically contemplated further proceedings to ascertain the amount of attorneys' fees and costs to be awarded.
We entered a show cause order, requiring the parties to explain why appellate jurisdiction was present in this appeal. We have before us responses from all parties. Upon consideration of those submissions, the district court docket, and the applicable law, we conclude we lack jurisdiction for the reasons articulated below.
This court generally has jurisdiction to hear appeals from "final decisions" of district courts. 28 U.S.C. § 1291. A final decision is one that "ends the litigation on the merits and leaves nothing for the court to do but execute judgment." Cunningham v. Hamilton Cnty., Ohio, 527 U.S. 198, 204 (1999) (internal quotations omitted). "An order that . . . sets the stage for further trial court proceedings is not final." Hayes Fam. Tr. v. State Farm Fire & Cas. Co., 845 F.3d 997, 1003 (10th Cir. 2017). The finality requirement of 28 U.S.C. § 1291 "precludes consideration of decisions that are subject to revision, and . . . are but steps towards final judgment in which they will merge." Roska ex rel. Roska v. Sneddon, 437 F.3d 964, 969 (10th Cir. 2006) (citing Behrens v. Pelletier, 516 U.S. 299, 305 (1996)).
When an award of attorneys' fees represents compensatory damages for the underlying breach of contract, the amount of fees and costs awardable is inseparable from the merits of the breach of contract claim, and an order establishing liability for the fees without setting a specific amount is not an appealable order. See N. Am. Specialty Ins. Co. v. Corr. Med. Servs., Inc., 527 F.3d 1033, 1038-39 (10th Cir. 2008).
The district court's order granting summary judgment in favor of Zurich and its subsequent judgment did not end this litigation on the merits. To fully resolve the merits of this matter, the amount of appellants' liability for attorneys' fees and costs must be computed and those damages awarded. The computation of that aspect of Zurich's damages has not yet occurred-it is still to be litigated in the district court-and the damages have not yet been awarded. In short, the order underlying the judgment appellants seek to appeal is one that "sets the stage for further trial court proceedings." Hayes Fam. Tr., 845 F.3d at 1003. It is neither a final order nor does it fit within any of the recognized exceptions to the finality doctrine. Accordingly, it is not presently appealable, and we are without jurisdiction to consider these appeals.
APPEALS DISMISSED.