* District Judge of the Western District of Louisiana, sitting by designation.

** Pursuant to 5 TH C IR

. R. 47.5, the court has determined that this opinion should not be published and is not

precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

November 10, 2004

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________________

No. 04-20121

________________________

LORI PENTON, ETC., ET AL,

Plaintiffs,

LORI PENTON, INDIVIDUALLY, AND

AS NEXT FRIEND OF CHRISTIAN ALLEN GARCIA;

EVAN DANIEL PENTON; MORGAN ALEXIS PENTON;

CHRISTIAN ALLEN GARCIA,

Plaintiffs-Appellants,

-vsAMERICAN BANKERS INSURANCE COMPANY OF FLORIDA,

Defendant-Appellee

Appeal from the United States District Court

for the Southern District of Texas

(4:03-CV-705)

Before WIENER and PRADO, Circuit Judges, and LITTLE * , District Judge.

LITTLE, District Judge: **

This is an appeal from the judgment of the distric t co urt denying the motion for appellate

attorney’s fees filed by the Appellants, Lori Penton, Individually, and as next friend of Christian Allen

Garcia; Evan Daniel Penton, Morgan Alexis Pent o n, and Christian Allen Garcia (collectively, the2

“Pentons”). In a separate appeal, No. 04-20013, American Bankers Insurance Company of Florida

(“American Bankers”), the Appellee here, appealed the district court’s grant of summary judgment

i n favo r o f the Pentons. The Pentons then filed a motion for appellate attorney’s fees, which the

district court denied as premature because no appellate fees had been incurred at that time. For the

reasons that follow, we REMAND.

I. FACTUAL AND PROCEDURAL BACKGROUND

On 21 November 2003, the district court entered a judgment granting the Pentons’ Motion

for Summary Judgm

ent . The district court contemporaneously granted the Pentons’ motion for

attorney’s fees, pursuant to Section 38.001 of the Texas Civil Practice and Remedies Code, for fees

incurred up to that point in the litigation. Subsequently, American Bankers filed a Notice of Appeal

of the order granting summary judgment, No. 04-20013. The Pentons then filed their Plaintiffs’

Moti on for Attorney’s Fees on Appe al o n 5 December 2003, seeking appellate attorney’s fees.

American Bankers filed a response on 17 December 2003, claiming that the Pentons’ motion was

either an improper Rule 59(e) motion to alter or amend the judgme nt, an improperl y supported

motion for attorney’s fees, or simply a premature motion for fees b ecause the Pentons had not

actually incurred any appellate fees or costs yet. In an order entered on 12 January 2004, the district

court denied the Pentons’ motion for attorney’s fees on appeal because they had not actually incurred

any appellate attorney’s fees at that time.

On 23 January 2004, the Pentons t imely filed this Notice of Appeal, 04-20121, within thirty

days of the entry of the district court’s final order denying their appellate attorney’s fees. See F ED

.

R. A PP

. P. 4(a)(1)(A). This court has jurisdiction to hear this appeal under 28 U.S.C. § 1291.

II. DISCUSSION3

A. Standard of Review

In diversity cases, state law controls both the award of and the reasonableness of attorney’s

fees awarded where st ate law supplies the rule of decision. S ee Mathis v. Exxon Corp.

, 302 F.3d

448, 461 (5th Cir. 2002). Under Texas law, there is discretio n t o det ermine the amount of the

attorney’s fee award, but an award of reasonable fees is mandatory if a party prevails in a breach of

contract case and there is proof of reasonable fees. S ee DP Solutions, Inc. v. Rollins, Inc.

, 353 F.3d

421, 433 (5th Cir. 2003); T EX

. C IV

. P RAC

. & R EM

. C ODE A NN

. § 38.001(8) (Vernon Supp. 2004).

An award of attorney’s fees by the district court is generally reviewed for abuse of discretion. See

Gen. Elec. Credit Corp. v. The Oil Screw Triton, VI

, 712 F.2d 991, 995 (5th Cir. 1983). When a

district court has merely refused to award at t o rney’s fees for an appeal before they are incurred,

however , t his co urt has remanded to the district court once the claim for fees was ripe for

adjudication. S ee Instone Travel Tech Marine & Offshore v. Int’l Shipping Partners, Inc.

, 334 F.3d

423, 433 (5th Cir. 2003). Furthermore, if a judgment of the district court is affirmed on appeal, costs

of the appeal are taxed against the appellant. F ED

. R. A PP

. P. 39(a)(2).

B. Vacatur or Remand of the District Court’s Order Denying Appellate Fees

A district court’s refusal to award appellate attorney’s fees before an appeal has even been

taken is not error. I nstone Travel Tech Marine & Offshore v. Int’l Shipping Partners, Inc.

, 334 F.3d

423, 433 (5th Cir. 2003). The issue of appellate attorney’s fees is a matter for the district court on

remand following the resolution of the underlying appeal. See id.

In this case, as in Instone

, the district court’s order denying the Pentons’ motion for appellate

attorney’s fees, before any appeal had been taken, was not an error. Although the Pentons seek either

vacatur or remand, they

cite no case law or other authority in support of vacatur. Vacat ur of t he4

district court’s order is unnecessary because that order denying the Pentons’ attorney’s fees did not

expressly state that it was with prejudice to its refiling on remand after the appeal has taken place and

appellate fees have actually been incurred. The district court’s order does not require vacatur because

this court has contemporaneously ruled in favor of the Pentons in the underlying 04-20013 appeal.

Now that this court has ruled in favor of the Pentons in the underlying appeal, the matter of

their appellate attorney’s fees will be ripe for adjudication by the district court upon remand. Remand

will allow the district court to make t h e init ial determination of the proper amount and award

appellate attorney’s fees as allowed by Texas law. Furthermore, because the judgment of the district

court is affirmed in the 04-20013 appeal, costs of that appeal are taxed against the appellant in that

case, American Bankers. S ee F ED

. R. A PP

. P. 39(a)(2). We remand in order to allow t he dist rict

court to make the init

ial determination and award of appellate attorney’s fees, upon motion by the

Pentons.

III. CONCLUSION

Based on the foregoing analysis, because the Pentons have prevailed on the underlying appeal,

No. 04-20013, the court REMANDS this case to the district court for the initial determination and

award of the Pentons’ appellate attorney’s fees, up o n motion. Because American Bankers was

unsuccessful

in t he No. 04-20013 appeal, they are ordered to pay to the Pentons the costs of that

appeal.