*. Pursuant to 5TH CIR. 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this opinion should not be published and is not precedent except under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 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 98-40184

Summary Calendar

 

REYNALDO PEREZ,

Plaintiff-Appellee-Cross-Appellant,

versus

WELDON LUCAS; ET AL.,

Defendants,

WELDON LUCAS; DENTON COUNTY, TEXAS,

Defendants-Appellants-Cross-Appellees.

- - - - - - - - - -

Appeal from the United States District Court

for the Eastern District of Texas

(4:97-CV-9)

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March 10, 1999

Before EMILIO M. GARZA, DeMOSS, and BENAVIDES, Circuit Judges.

PER CURIAM*:

This appeal and cross-appeal challenge the validity of

attorneys’ fees awarded by the district court as part of the

settlement in a 42 U.S.C. § 1983 case. We affirm the district

court’s ruling on attorneys’ fees, and we dismiss the crossappeal for lack of jurisdiction.
I

Reynaldo Perez filed a § 1983 complaint against five

defendants and reached a settlement with two of them, Denton

County and Sheriff Weldon Lucas (the “Defendants”), for $10,000

plus costs and reasonable attorneys’ fees as determined by the

district court. Perez’s attorneys filed affidavits supporting a

request for approximately $60,000 in fees. The district court

held an evidentiary hearing on the matter of attorneys’ fees and

on November 19, 1997 entered an order finding that reasonable

compensation for the attorneys was $8,000. The order also found

that expenses for the case totaled $682.12 and that Perez’s

attorneys should be sanctioned $1,000 for bad faith in their

request for attorneys’ fees.

The Defendants filed a motion for reconsideration and motion

for entry of judgment on December 2, 1997. Perez likewise filed a

motion for reconsideration on December 8. On January 2, 1998, the

district court entered its final judgment awarding Perez’s

attorneys $7,000 in fees ($8,000 minus the $1,000 sanction) “plus

cost of this action.” The district court did not rule, and has

not yet ruled, upon the December 2 and December 8 motions for

reconsideration. On January 23, the Defendants appealed the

attorneys’ fee award as excessive. One month later, on February

23, the district court made a sua sponte correction to its

January 2 final judgment to clarify that the unspecified “cost of

this action” totaled $682.12, the amount enumerated in the
November 19 order. On March 23, 1998, Perez filed a notice of

cross-appeal.

II

The Defendants argue that Perez’s cross-appeal must be

dismissed as untimely under Federal Rule of Appellate Procedure

4, as Perez’s notice of appeal was filed more than 30 days after

the district court entered its final judgment on January 2, 1998.

Perez responds that the district court’s February 23 correction

made a substantive change to the January 2 judgment and thus

constituted an amended final judgment, within 30 days of which

the notice of cross-appeal was filed.

The district court’s correction specifies that the court

issued it pursuant to Federal Rule of Civil Procedure 60(a),

which allows a court to correct clerical mistakes in a judgment.

A correction issued under Rule 60(a) does not extend a party’s

time to file an appeal. See Danning v. Graco Enters., Ltd. (In re

Cobb), 750 F.2d 477, 479 (5th Cir. 1985). Perez argues that the

district court’s correction does not fall under Rule 60(a)

because it makes a substantive change in the judgment. This Court

handled a similar issue in Dura-Wood Treating Co. v. Century

Forest Indus., Inc., 694 F.2d 112 (5th Cir. 1982). There we found

that the trial court’s correction of the amount of attorneys’

fees awarded was not a substantive change where the record

evinced that the trial court intended, as the parties knew, to

enter one amount but mistakenly entered another. Such is the case

here. With the district court’s November 19, 1997 order in the

record, the court’s intent to award costs of $682.12 was clear
 1. The two motions for reconsideration concerned only the

district court’s determination of reasonable attorneys’ fees and

not its determination of expenses, the subject of the clerical

error in the final judgment. No argument could be made that,

because of the motions for reconsideration, the record left doubt

as to what amount the court intended to award for expenses.

 2. We note that Perez, curiously, seems to argue against

the timeliness of his own cross-appeal, as well as that of the

Defendants’ appeal.

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and its oversight in failing to specify the amount in its

judgment was no more than a clerical error. See Britt v.

Whitmire, 956 F.2d 509, 512-15 (5th Cir. 1992) (reviewing Fifth

Circuit standards for determining whether a trial court’s

corrective action would fall under Rule 60(a)). Perez therefore

missed the deadline under Federal Rule of Appellate Procedure

4(a) when he failed to file his notice of cross-appeal within 30

days of January 2, 1998.

Perez did not file a timely notice of cross-appeal under

Federal Rule of Appellate Procedure 4. Accordingly, we dismiss

the cross-appeal for lack of jurisdiction.

III

Perez argues that two motions for reconsideration1 remain

outstanding and the Defendants’ notice of appeal is premature

until the motions are resolved.2 Both Perez and the Defendants

filed Rule 59(e) motions for reconsideration, which are among the

type of motions mentioned in Federal Rule of Appellate Procedure

4(a)(4). See Fed. R. App. P. 4(a)(4)(C); Madison v. Vintage

Petro., Inc., 114 F.3d 514, 516 (5th Cir. 1997). The time to file

an appeal from a final judgment runs from the date that the trial
 3. See Unida v. Levi Strauss & Co., 986 F.2d 970, 974 (5th

Cir. 1993) (“Although the district court did not expressly deny

the Plaintiffs’ motion to dismiss and remand, by entering summary

judgment on all of the Plaintiffs’ claims, the district court

impliedly denied the motion.”); Moya v. Estelle, 696 F.2d 329,

331 (5th Cir. 1983) (“The other two motions were ‘disposed of.’

The district court did not specifically address them, but his

denial of Moya’s petition for habeas corpus relief implicitly

overruled them.”); Addington v. Farmer’s Elevator Mutual Ins.

Co., 650 F.2d 663, 666 (5th Cir. Unit A 1981) (“The denial of a

motion by the district court, although not formally expressed,

may be implied by the entry of final judgment . . . or of an

order inconsistent with the relief sought by the motion.”);

United States v. Pan Am World Airways, Inc., 299 F.2d 74, 76 (5th

Cir. 1962), rev’d on other grounds sub nom. Gondeck v. Pan Am

World Airways, Inc., 382 U.S. 25, 86 S. Ct. 153 (1965) (holding

that the time for filing an appeal tolls where “the motion [to

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court disposes of the last outstanding Rule 4(a)(4)-type motion.

This holds true even if the motion is filed before the district

court enters its final disposition in the case. See Kinsey v.

Farmland Indus., Inc., 39 F.3d 603, 606 (5th Cir. 1994). Also, a

notice of appeal filed after final judgment but before the

district court rules on a Rule 4(a)(4)-type motion is premature

and insufficient to give an appellate court jurisdiction over the

appeal. Hence, we must decide whether Perez is correct that the

two Rule 59(e) motions remain outstanding. If the district court

has not ruled on those motions, then the Defendant’s appeal is

untimely and must be dismissed for want of jurisdiction.

It is clear that the district court has not expressly ruled

on the two Rule 59(e) motions for reconsideration. The entry of

final judgment does not per se decide all motions pending before

the trial court. Nevertheless, there exists ample precedent in

this Circuit for the proposition that a district court’s final

judgment may impliedly deny an outstanding motion.3 Because the
amend or make additional findings of fact] presented a

substantial question and the motion is not disposed of, either

expressly or by necessary implication, by the judgment” (emphasis

added)).

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district court entered judgment concerning the very subject of

the Rule 59(e) motions--i.e., it adopted as final the November 19

order’s position on attorneys’ fees--the judgment necessarily

implies that the district court denied the motions to reconsider

the attorneys’ fees awarded. Cf. Dunn v. Truck World, Inc., 929

F.2d 311, 313 (7th Cir. 1991) (holding that, for purposes of

timely filing a notice of appeal, “[w]hen a party files a prejudgment motion for a new trial, the judgment itself is the order

‘denying a new trial’”). We realize that a case-by-case approach

to the effect of final judgments on pending motions and time to

appeal always requires caution. See 20 James Moore, Moore’s

Federal Practice § 304.13[5] (3d ed. 1997) (“It seems unfair to

require parties to guess at the implications of the entry of

judgment, especially since a fair reading of Appellate Rule 4(a)

assures them that the making of a timely motion terminates the

time for appeal until entry of an order directly in response to

the motion.”); see also Lapeyrouse v. Texaco, Inc., 670 F.2d 503,

505 (5th Cir. 1982) (recognizing criticism but making a casespecific finding that the trial court’s final order impliedly

granted a motion). But this case does not present us with a close

call. In the facts of the instant action, the Rule 59(e) motions

did not survive the district court’s final judgment, so that the

30 days to appeal under Rule 4(a) began to run from the entry of
 4. The attorneys in Von Clark requested $72,117.50 in fees

and were awarded $12,500.

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judgment.

Accordingly, the Defendants’ notice of appeal was not

premature, and we have jurisdiction to consider their appeal.

IV

We now consider the Defendants’ argument that the affidavits

filed by Perez’s attorneys were so inadequate and lacking in

detail, and that the amount of attorneys’ fees claimed by Perez

was so outrageous, that any award of attorneys’ fees was error.

We review the district court’s determination of attorneys’ fees

for abuse of discretion and its findings of fact supporting the

award for clear error. See Von Clark v. Butler, 916 F.2d 255, 258

(5th Cir. 1990). We affirm the district court’s award of

attorneys’ fees.

The Defendants offer no valid basis for the argument that

the affidavits and records submitted by Perez’s attorneys were so

inadequate and lacking in detail as to make the district court’s

award an abuse of discretion. The Defendants cite Von Clark for

the proposition that it is clear error to award any attorneys’

fees where the attorneys fail to detail time spent on § 1983

claims as opposed to unsuccessful state law claims. Von Clark

says nothing of the sort. To the contrary, the trial court in

that case, in its discretion, severely reduced4--but nonetheless

awarded--the attorneys’ fees upon finding that the attorneys’

time records did not sufficiently specify time spent on different
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claims. See Von Clark, 916 F.2d at 257-58. We affirmed the trial

court in Von Clark. If anything, the facts here provide an even

greater basis for affirming. The trial court stated that Perez’s

attorneys’ submissions, though deficient in many respects, were

adequate for it to determine an award of attorneys’ fees. The

record evinces that the district court then carefully reviewed

the factors specified by Johnson v. Georgia Highway Express, 488

F.2d 714 (5th Cir. 1974), overruled on other grounds, Blanchard

v. Bergeron, 489 U.S. 87, 109 S. Ct. 939 (1989), in reaching its

determination as to a reasonable award of attorneys’ fees. We see

no clear error in the district court’s factual determinations and

no abuse of discretion in its application of Johnson.

This Court has recently recognized that a trial court may

deny attorneys’ fees altogether in the unusual circumstance that

the request for fees submitted pursuant to 42 U.S.C. § 1988 is so

excessive as to shock the conscience. See Scham v. District

Courts Trying Criminal Cases, 148 F.3d 554, 557-58 (5th Cir.

1998). The decision whether to do so lies within the discretion

of the trial court. Although the amount of Perez’s request for

attorneys’ fees seems to have been less than reasonable, nothing

would indicate that we have here circumstances so extreme that

the district court could be said to have abused its discretion in

awarding the limited fees that it did.

Accordingly, we affirm the district court’s award of $7,000

in attorneys’ fees to Perez.
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V

This Court has the power to direct an award of attorneys’

fees to Perez for the time his attorneys spent protecting the fee

award on appeal. See, e.g., Johnson v. State of Mississippi, 606

F.2d 635, 638-39 (5th Cir. 1979); Panior v. Iberville Parish

School Bd., 543 F.2d 1117, 1119 n.4 (5th Cir. 1976). We decline

to do so. The Defendants appealed a simple issue, i.e., whether

the district court abused its discretion in awarding attorneys’

fees at all. Perez responded by addressing eleven “restated

issues” in a cross-appeal that was found to be untimely and that

required the Defendants’ attorneys to brief the timeliness issue.

Each party has inflicted upon the other the necessity of

addressing meritless issues. We consider their debts settled with

this decision.

VI

The judgment of the district court is AFFIRMED. The

Plaintiff/Appellee’s cross-appeal is DISMISSED. Appellant-crossappellee’s motion to dismiss appeal is hereby MOOT in light of

the opinion.