B.J. HALL, Plаintiff-Appellant, v. WHITE, GETGEY, MEYER COMPANY, LPA, Defendant-Appellee.
No. 04-50707.
United States Court of Appeals, Fifth Circuit.
Sept. 20, 2006.
466 F.3d 587
III. Conclusion
We AFFIRM the district court‘s grant of summary judgment on all three claims. We VACATE and REMAND solely for a redetermination of whether costs should be awarded to Allstate.
Thad D. Spalding (argued), Law Office of Thad D. Spalding, Idolina Garcia, Hermes Sargent Bates, Dallas, TX, for Defendant-Appellee.
Before JONES, Chief Judge, and DeMOSS and OWEN, Circuit Judges.
OWEN, Circuit Judge:
In this diversity suit, we hold that the law of the case doctrine does not preclude us from recalling and modifying this court‘s mandate issued at the conclusion of a prior appeal, and we recall and reform that mandate to permit the award of pre- and post-judgment interest. We further hold that the 2003 amendments to the Texas Finance Code govern the pre-judgment interest rate and that
I
This case has a lengthy history, and we recount only the facts necessary to an understanding of the issues presently before us. B.J. Hall sued the law firm of White, Getgey, Meyer & Co., LPA for legal malpractice in a diversity suit governed by Texas law in which a federal magistrate presided. A jury concluded that the law firm was negligent, Hall‘s damages were $675,000, the law firm was 51% responsible for Hall‘s injuries, and a settling party was 49% responsible for
Both parties appealed, and this court held that the settlement credit should have been only $80,000.1 The body of that opinion stated, “We modify Hall‘s damages award so that it reflects a reduction by this proper amount.”2 The concluding paragraph of the opinion stated:
For the foregoing reasons, we affirm the magistrate judge‘s pretrial ruling on the offset issue, modify the damages award so that it reflects the proper settlement credit of $80,000, and affirm the final judgment as modified. This case is remanded for the entry of an amended judgment in Hall‘s favor in the amount of $595,000.
AFFIRMED AS MODIFIED; REMANDED WITH INSTRUCTIONS.3
This court issued a mandate on Oсtober 23, 2003 that provided in pertinent part, “It is ordered and adjudged that the judgment of the District Court is affirmed as modified, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.” Although the award of pre-judgment interest and the date from which it should accrue were at issue in the district court and considered at some length by the magistrate in an order entered at the time of judgment in the district court, no issuе regarding interest was raised on appeal. Neither this court‘s prior opinion nor the mandate explicitly address interest.
On remand, the magistrate initially entered a judgment against the White, Getgey law firm in the amount of $595,000, plus pre-judgment interest at 10% per annum from February 10, 1997 until September 21, 2001, and post-judgment interest from September 21, 2001 at 10% per annum. This judgment was entered October 31, 2003. The White, Getgey firm filed a motion with the district court seeking to alter or amend that judgment, contending that this court‘s opinion and mandate failed to contain instructions regarding interest, and therefore, the district court lacked authority to award interest, citing
While the motion to alter or amend the judgment was pending in the district court, Hall filed in this court a petition for writ of
Shortly thereafter, in June 2004, the magistrate entered an order in which she concluded that she had no authority to award interest because this court had modified the 2001 judgment on appeal without giving any instructions regarding interest.6 The magistrate‘s June 2004 order further concluded that “the appropriate procedural vehicle” for Hall to recover an award of interest was “a motion to recall and reform the mandate[,]” presumably meaning this court‘s mandate.7 A “Second Amended Judgment” against the White, Getgey lаw firm awarding Hall $595,000 was entered June 7, 2004. No
Hall filed a notice of appeal on July 7, 2004 from the magistrate‘s June 7, 2004 Second Amended Judgment.8 It is this July 2004 appeal that is before us today. Additionally, on July 22, 2004, Hall filed a petition for writ of mandamus asking this court to direct the trial court to vacate its June 2004 order amending the judgment and to reinstate its October 31, 2003 judgment that had awarded interest. In the alternative, Hall askеd this court to recall and reform its mandate to include pre- and post-judgment interest. This court assigned cause number 04-50711 to that proceeding.
The White, Getgey firm responded to Hall‘s petition for mandamus and motion to recall the mandate by arguing, among other things, that Hall had an adequate remedy by appealing the June 7, 2004 Second Amended Judgment. The firm then asserted that Hall‘s appeal was untimely and that the litigation was at an end. On Septembеr 9, 2004, this court entered an order denying Hall‘s petition for writ of mandamus in docket number 04-50711. The order also said, “IT IS FURTHER ORDERED that the alternative motion for district court [sic] to recall and reform its mandate to include the pre-judgment and post-judgment interest awards contained in the September 21, 2001, judgment is DENIED.” Hall, however, had not asked this court to order the district court to reform its mandate but had instead asked this court to reform its mandate. This court‘s September 9, 2004 order сontained a third provision, which granted “petitioner‘s motion for leave to file reply to response to petition for writ of mandamus and alternative motion to recall mandate ....” This court subsequently determined that Hall‘s appeal was timely, and that appeal is before us.
Hall contends that this court‘s October 23, 2003 mandate did not foreclose the district court from awarding pre- and post-judgment interest. In the alternative, Hall asks that we recall and reform that mandate to provide for interest. Finally, Hall contends that the interest rate should be at least 10%, as originally ordered by the magistrate, while the White, Getgey firm contends that if any interest is to be awarded, the floor rate should be only 5%.
II
The first question we must consider is whether the law of the case doctrine resolves any issue presently before us.9 The White, Getgey firm contends that this court decided the issues presented in Hall‘s aрpeal when it denied Hall‘s July 2004 petition for writ of mandamus and its alternative motion to recall the mandate. We disagree.
First, the July 2004 petition for writ of mandamus and the alternative request that this court recall its mandate were presented in an original proceeding. This court did not necessarily or even presumably rule on the merits of the request to recall this court‘s mandate.10 Indeed, the White, Getgey firm urged this court to deny the mandamus petition without reaching the merits, contending Hall had an adequate remedy by appeal. Hall had filed just such an appeal a few weeks prior to the filing of the mandamus proceeding. We are now considering that appeal.
Second, our September 9, 2004 order in the mandamus proceeding did not rule on the motion to recall this court‘s mandate. Our September 2004 order only declined to order the district court to recall and reform its mandate. Whilе it is possible that ruling may have been a typographical error or an oversight, we cannot presume such an error or oversight. More importantly, we cannot say on the record before us that this court considered the merits of the motion to recall the mandate that was appended to the petition for writ of mandamus when the same motion to recall and reform the mandate was included as part of the direct aрpeal and was pending as part of that appeal.11
III
As we have discussed, this court earlier ruled in a mandamus proceeding in response to a motion to clarify its mandate that the mandate was “plainly worded” and thus declined to clarify it. The mandate states in its entirety:
This cause was considered on the record on appeal and was argued by counsеl.
It is ordered and adjudged that the judgment of the District Court is affirmed as modified, and the cause is remanded to the District Court for further proceedings in accordance with the opinion of this Court.
IT IS FURTHER ORDERED that each party bear its own costs on appeal. ISSUED AS MANDATE: October 23, 2003.
Notwithstanding this court‘s statement that our mandate is “plainly worded,” we are sympathetic to the difficulties the magistrate judge experienced in determining how the mandate impacted the award of interest. It is not entirely clear to us whether the mandate plainly permitted interest on remand or plainly proscribed the district court‘s authority to award interest on remand in light of the mandate itself and the case law in this area.
The Supreme Court held in Briggs v. Pennsylvania R.R. Co. that “an inferior court has no power or authority to deviate from the mandate issued by an appellate court.”12 In Briggs, a district court entered a judgment dismissing a case for lack of jurisdiction after a jury triаl in which the jury had found damages of $42,500.13 The appellate court reversed, directing “that judgment be entered on the verdict for plaintiff.”14 On remand, the district court added interest to that amount from the date of verdict until the date of judgment.15 The Supreme Court held that the district court had no authori-
In a decision of this court, Brown & Root, Inc. v. American Home Assurance Co., that was issued well after Briggs but before
However, we need not decide whether the mandate plainly permitted or plainly foreclosed the award of interest on remand. Hall has filed a motion to recall and modify the mandate, and we grant that motion to put an end to this litigation and because justice so requires. On a number of occasions, this court has recalled and modified its mandates.21 We see no basis for denying such relief here.
Hall and the White, Getgеy firm fully litigated whether Hall was entitled to pre- and post-judgment interest under Texas law, and the magistrate‘s original September 2001 judgment discussed that law at length in awarding interest. The White, Getgey firm did not challenge that determination on appeal. The only challenge to the award of interest came after this court‘s mandate had issued and after the magistrate had entered a judgment against the White, Getgey firm on remand. Even then, the White, Getgey firm did not contеst that under Texas law or federal law or both, Hall was entitled to pre- and post-judgment interest. The firm argued for the first time that since this court‘s
None of the factors that have led this court to deny a motiоn to recall and reform a mandate are present in this case.22 The fact that Hall pursued his claim for interest in the district court for a time before seeking relief in this court does not constitute waiver or excessive delay.23 Within months after the White, Getgey firm first raised the issue regarding this court‘s mandate, which was after the magistrate had entered a judgment on remand awarding interest, Hall sought mandamus relief and alternatively clarification from this cоurt. When that relief was denied, Hall awaited a decision from the magistrate, as instructed by this court, and upon obtaining an adverse ruling, filed an appeal that included a request that we recall and modify the mandate. While that appeal was pending, Hall filed another mandamus proceeding seeking, among other relief, a recall and reformation of the mandate. Hall has diligently pursued his claims for interest. The White, Getgey firm concеdes that interest would be owed but for the mandate. The equities do not favor the White, Getgey firm.
IV
The final question is the rate of pre- and post-judgment interest that should be applied. The magistrate‘s original, September 2001 judgment applied Texas law to determine the rate of both pre- and post-judgment interest. While the White, Getgey firm had argued to the magistrate that federal law should govern the post-judgment interest rate,24 White-Getgey did not pursue that cоntention on appeal and now contends in this court that we should apply Texas law to determine the rates for both pre- and post-judgment interest. Hall acknowledges that federal law should probably have governed the post-judgment interest but argues that White-Getgey cannot raise the matter at this juncture.
The post-judgment interest rate for judgments in federal courts is governed by federal statute,
Accordingly, the 2003 amendments govern the rate of pre-judgment interest rather than the law in effect when the original September 21, 2001 judgment was entered in the district court.
The White, Getgey firm does not dispute that pre-judgment interest should accrue from February 10, 1997, as the magistrate‘s September 2001 judgment concluded. Accordingly, pre-judgment interest is recoverable from February 10, 1997 until entry of judgment following the remand that we order today. Post-judgment interest is recoverable from the date of entry of judgment on remand until paid.
* * * * *
We REVERSE the district court‘s judgment in part and REMAND this case for calculation and award of pre-judgment interest in accordance with this opinion and for the provision of post-judgment interest.
