UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 98-50024

Summary Calendar

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GERALD HALL

Plaintiff-Appellant,

versus

RON BENTON, Individually and in His Official

Capacity as Police Officer for the City of Midland 

Defendants,

RON BENTON, Individually and in His Official

Capacity as Police Officer for the City of Midland; 

CHARLIE BLANKENSHIP, Agent, United States Secret Service;

BOBBY WELBORN, Individually and in His Official

Capacity as Police Officer for the City of Midland;

RON SARTOR; JESS THOMPSON; PEGGY THOMPSON; 

CITY OF MIDLAND, TEXAS; FRATERNAL ORDER

OF POLICE, LODGE 11,

Defendants-Appellees.

LEONARD D. HENDON, JR.,

Plaintiff-Appellant,

versus

RON BENTON, Midland Police Department, et al., 

Defendants,

RON BENTON, Midland Police Department; CHARLIE BLANKENSHIP,

United States Secret Service; CITY OF MIDLAND, TEXAS; JESS 

THOMPSON; PEGGY THOMPSON; BOBBY WELBORN, Midland Police

Department; RON SARTOR, Midland Police Department; 

FRATERNAL ORDER OF POLICE, LODGE 11

RICHARD CZECH; DAMON SHUPP; DAVID WILKE,

Defendants-Appellees.
 

* 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that this opinion should not be published and is not precedent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.

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Appeal from the United States District Court

for the Western District of Texas

(No. 94-CV-129)

November 19, 1998

Before KING, BARKSDALE, and STEWART, Circuit Judges.

PER CURIAM:*

Appellants Gerald Hall and Leonard D. Hendon, Jr. appeal the

district court’s denial of attorney’s fees to Appellants and the

imposition of costs against Appellants’ counsel for filing a

motion. We AFFIRM.

I.

In June 1993, Appellees Jess and Peggy Thompson, while

listening to their scanner, overheard a telephone conversation

between the Appellants, recorded it, and played it for the other

Appellees. Two weeks later, the Appellees informed the Appellants

of the recording and played part of it for them.

After unsuccessfully attempting to initiate criminal charges

against the Appellees, Appellants filed the present action,

presenting various claims against the Appellees. The only issue

the district court submitted to the jury was whether the Thompsons’

interception and disclosure of the conversation was a violation of

18 U.S.C. § 2511(1)(a) and (d). The jury returned a verdict in

favor of the Appellants; however, the district court refused to

award damages, finding the violations to be de minimis. The
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district court also refused to award attorney’s fees to the

Appellants.

II.

A.

Under 18 U.S.C. § 2520 (b)(3), a party establishing an

interception of wire communication may recover “a reasonable

attorney’s fee and other litigation costs reasonably incurred”.

Appellants assert that, because they prevailed on a significant

issue, the district court erred in refusing to award attorney’s

fees. We review that denial for an abuse of discretion. Hidden

Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1052 (5th Cir. 1998).

In Hidden Oaks, our court affirmed the denial of attorney’s

fees under 42 U.S.C. § 1988, where the prevailing party was awarded

only nominal damages. Id. at 1052-53. Our court stated that, “in

determining the reasonableness of a fee award, courts must consider

‘the degree of the plaintiff’s overall success,’ recognizing that

often a plaintiff who ‘seeks compensatory damages but receives no

more than nominal damages’ will be the kind of prevailing party

that merits no attorney’s fee at all”. Id. at 1052, quoting Farrar

v. Hobby, 506 U.S. 103, 114-15 (1992). Here, the Appellants were

not awarded any damages. Thus, under the reasoning of Hidden Oaks,

the district court did not abuse its discretion in denying

attorney’s fees.

B.

Appellants also challenge the imposition of costs on Gerald

Fugit, their counsel. After Fugit moved for sanctions against
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Terry Rhoads, an attorney representing some of the Appellees, the

district court concluded that both the filing and pursuit of the

motion was “unjustified” and assessed Rhoads’ expenses against

Fugit. The district court based its order on FED. R. CIV. P.

37(a)(4)(B), which states that, when a discovery motion is denied,

the district court shall

require the moving party or the attorney

filing the motion or both of them to pay to

the party or deponent who opposed the motion

the reasonable expenses incurred in opposing

the motion, including attorney’s fees, unless

the court finds that the making of the motion

was substantially justified or that other

circumstances make an award of expenses

unjust.

First, although the notice of appeal under FED. RULE APP. PRO.

3(c) should have designated the costs order as one of the items

appealed from, we nevertheless have jurisdiction as to this issue.

See Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 (1988)

(holding that FED. R. APP. PRO. 3 is jurisdictional in nature). In

United States v. Rochester, 898 F.2d 971, 976 n.1 (5th Cir. 1990),

our court stated that “[f]ailure to properly designate the order

appealed from ... may be cured by an indication of intent in the

briefs or otherwise”. See also United States v. Knowles, 29 F.3d

947, 950 (5th Cir. 1994) (finding jurisdiction over appeal from

order not specified in notice of appeal where defendant

demonstrated intent to appeal the order in his briefs); Turnbull v.

United States, 929 F.2d 173, 177-78 (5th Cir. 1991) (finding

jurisdiction where intent to appeal could be “fairly inferred” and

there was no prejudice to other party). Again, the notice of
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appeal did not list the order imposing costs on Fugit; but, the

Appellants’ brief discussed this issue, indicating an intent to

appeal the order. Further, the Appellees do not assert that they

were prejudiced by the omission; and they were able to fully

respond in their brief. 

In reviewing the district court’s order, we find no abuse of

discretion. See Guidry v. Continental Oil Co., 640 F.2d 523, 533

(5th Cir. 1981) (finding that district courts have “broad

discretion” in imposing sanctions under Rule 37).

III.

Accordingly, the denial of attorney’s fees to the Appellants

and the imposition of certain costs against their counsel are

AFFIRMED.