BANKRUPTCY CORNER
BANKRUPTCY CORNER
A Contempt Order is Not Final Without an Award of Attorney ’ s Fees
JASON S . RIGOLI
“[ M ] ost orders that resolve everything but the amount of attorneys ' fees to be awarded qualify as final , appealable orders .” Sweetapple v . Asset Enhancement , Inc , ( In re Asset Enhancement , Inc .), Case No . 22-11389 , -- F . 4th-- , 2023 U . S . App . LEXIS 321000 at * 1 , 2023 WL 8385087 ( 11th Cir . Dec . 5 , 2023 ). However , at least in the Eleventh Circuit , “ a contempt order that contemplates imposing attorneys ' fees as a sanction for contempt but does not specify the amount of any such award is not a final , appealable order .” Id .
The appeal came before the Eleventh Circuit on a question of the “ timeliness of the appeal .” The bankruptcy court entered a contempt order against Sweetapple under 11 U . S . C . § 105 , awarding the debtor attorney ’ s fees (“ Contempt Order ”). Id . at * 6-7 . Subsequently , Sweetapple and the debtor reach an agreement on the amount of attorney ’ s fee incurred in connection with the motion for contempt (“ Fee Order ”). Id . at 7 . Sweetapple appealed . Id . at 8 . The district court granted the debtor ’ s motion to dismiss for lack of jurisdiction on the basis that the notice of appeal had not been filed within the 14-days of the entry of the contempt order . Id . at * 8-9 . The Eleventh Circuit reversed the district court .
The Eleventh Circuit acknowledged the existing “ bright-line ” rule handed down from the Supreme Court that an unresolved attorneys ' fee issue did not prevent a decision from being " final " even though attorneys ' fees were part of statutory or contract damages to be awarded . Id . at 11-13 ( citing Budinich v . Becton Dickinson & Co ., 486 U . S . 196 , 202 , 108 S . Ct . 1717 , 100 L . Ed . 2d 178 ( 1988 ) ( an outstanding attorney ’ s fees issue does not preclude “ final decision ” under 28 U . S . C . § 1291 ); and Ray Haluch Gravel Co . v . Cent . Pension Fund of Int ' l Union of Operating Eng ' rs and Emps ., 571 U . S . 177 , 134 S . Ct . 773 , 187 L . Ed . 2d 669 ( 2014 ) ( same for contractual damages )).
However , as the Eleventh Circuit continued , contempt is a different context and under current Eleventh Circuit precedent , including PlayNation Play Sys ., Inc . v . Velex Corp ., 939 F . 3d 1205 ( 11th Cir . 2019 ), “ a contempt decision does not become ‘ final ’ until the contempt penalties imposed are no longer ‘ conditional or subject to modification .’” Id . at * 13 ( quoting PlayNation , at 1212 ). “[ Eleventh Circuit ] prior-precedent rule requires this result . Id . at * 15 . “ Under [ the Eleventh Circuit ] prior-precedent rule , [ the courts in the Eleventh Circuit ] must comply with our precedent unless the en banc court or the Supreme Court abrogates it . Id . at * 15-16 ( citing Sabal Trail Transmission , LLC v . 18.27 Acres of Land in Levy Cnty ., 59 F . 4th 1158 , 1164 ( 11th Cir . 2023 )). “ For a Supreme Court opinion to overrule our precedent , it must be " clearly on point " and " actually abrogate or directly conflict with , as opposed to merely weaken [ ing ], the holding of the prior panel ." Id . ( citations omitted ). “ Even if a later panel ‘ is convinced the prior one reached the wrong result — for whatever reason ,’ we must follow the prior precedent .” Id . ( citation omitted ). “ And here , [ the Eleventh Circuit ] issued PlayNation after the Supreme Court issued its decisions in Budinich and Ray
Haluch . That means PlayNation controls .”
Id . at * 16 .
In the Eleventh Circuit , when a contempt order contemplates an award of attorney ’ s fees as part of a sanction , the order is not final until those fees are awarded .
This article was submitted by Jason S . Rigoli , Esq ., Furr and Cohen , P . A ., 2255 Glades Road , Suite 419A , Boca Raton , FL 33431 , jrigoli @ furrcohen . com .
Bar Buddies Mentoring Program
The “ Bar Buddies ” Program is designed to help attorneys who practice in the Palm Beaches connect and serve as a sounding board for each other . The Program seeks to connect local attorneys in a manner that takes into account links between attorneys that reach beyond their law practice . Attorneys are strongly encouraged to sign up for this informal program to speak with attorneys both within and beyond their existing networks and practice areas .
No attorney participating in the Bar Buddies Program will be expected to do any legal research or review documents .
For more information , please visit the Program ' s page available at : www . palmbeachbar . org / barbuddies-mentoring-program /
Want to receive a copy of the monthly Bar Bulletin by email ?
Visit www . palmbeachbar . org / bar-bulletin or use the QR code on the right-hand side to subscribe and gain access to the digital version for FREE .
PBCBA BAR BULLETIN 9