United States Court of Appeals,

Fifth Circuit.

Nos. 92-3595, 92-3766

Summary Calendar.

SOUTHERN TRAVEL CLUB, INC., Plaintiff-Appellant,

v.

CARNIVAL AIR LINES, INC., Defendant-Appellee.

SOUTHERN TRAVEL CLUB, INC., Plaintiff-Appellant, Cross-Appellee,

v.

CARNIVAL AIR LINES, INC., Defendant-Appellee, Cross-Appellant.

March 24, 1993.

Appeals from the United States District Court for the Eastern District of Louisiana.

Before KING, DAVIS and WIENER, Circuit Judges.

PER CURIAM:

Southern Tra vel Club, Inc. ("Southern Travel") appeals from two adverse decisions of the

district court. In No. 92-3595, Southern Travel appeals from the district court's order dismissing with

prejudice its breach of contract claims against Carnival Airlines, Inc. ("Carnival"). In No. 92-3766,

Southern Travel appeals the district court's order awarding Carnival costs and attorney's fees in an

amount yet to be determined. For the following reasons, we affirm the district court's judgment in

No. 3595, and dismiss Southern Travel's appeal in No. 92-3766.

I. BACKGROUND

On January 28, 1991, Southern Travel and Carnival entered into two , subst antially similar

passenger airplane charter agreements. Under the first charter agreement, which was to commence

on May 2, 1991, Carnival agreed to provide Southern Travel with a "737-200" type aircraft to make

two round t rip flights per week between Las Vegas and New Orleans. Under the second such

agreement, which was to commence on May 17, 1991, Carnival agreed to provide Southern Travel

with the same ty

pe o f aircraft to make two round trip flights per week between Las Vegas and1 According to Southern Travel: "The non-stop capability of the aircraft was essential for

Southern to be able to compete with the major airlines." Birmingham, Alabama. Both of the agreements provided that:

(1) Carnival was to supply an aircraft capable of making non-stop trips between Las Vegas and New

Orleans/Birmingham; 1

(2) Carnival could, at its option, substitute comparable or larger aircraft of a type different than that

specified on the cover page without penalty, provided that any such substitute aircraft did not result in an increase in the charter price paid by Southern Travel;

(3) If, fo r any reason, Carnival determined, prior to a given flight's departure, that the landing

facilities at any point on the itinerary of the charter were inadequate for a safe operati on, or

if landing was prohibited or restricted by law, statute or regulation, Carnival could substitute

the nearest landing point at which, in Carnival's sole judgment, suitable landing facilit ies were available and landing could be made; and

(4) Although the term of the agreement was for six months, the agreeme nt could be cancelled by

either party with sixty days notice without penalty.

In accordance with the first charter agreement, the twice-a-week flights between Las Vegas

and New Orleans began on May 2, 1991. The ro und trip, non-stop flights between the two cities

apparently occurred without incident during the first week of the agreement. On May 11, 1991,

however, the plane flying from New Orleans to Las Vegas made an unscheduled stop in Houston.

When some of Southern Travel's passengers complained about the unscheduled stop, Southern Travel

in turn complained to Carnival.

Upon receiving Southern Travel's complaint about the unscheduled stop in Houston, Carnival

decided to exercise its termination rights under the two charter agreements. By letter dated May 13,

1991, Carnival notified Southern Travel that it planned to "cease operating the Las Vegas program

to both New Orleans and Birmingham effective sixty days from that date." And, after no t ifying

Southern Travel of its intent to terminate the charter agreements, Carnival substituted a larger aircraft

(a "727-100" type aircraft) to fly during the remaining sixty days of the contracts.

Over the next few days, the parties attempted to renegotiate the charter agreements, but the

negotiations were unsuccessful. Southern Travel then approached other carriers about taking over

the charter service between Las Vegas and New Orleans/Birmingham. American Trans Air agreed

to take over the twice-a-week round trip flights between Las Vegas and New Orleans/Birmingham,but as a condition of its agreement, required Southern Travel to put down a cash deposit and prepay

the first four flights, for a total of $157,900.

Having quickly found a substitute carrier, Southern Travel decided that it did not want to wait

the full sixty days for its charter agreements with Carnival to terminate. Accordingly, on May 22,

19 91, Southern Travel requested immediate termination of its charter agreements with Carnival.

Southern Travel also requested that Carnival return $201,940 in pre-paid aircraft time and deposits.

In response to Southern Travel's request for immediate termination, Carnival faxed Southern

Travel a letter setting forth a "reconciliation" of accounts. In this letter dated May 23, 1991, Carnival

agreed to refund $176,310 to Southern Travel. The letter further provided:

This payment releases both Southern Travel Club and Carni val Air Lines from any further

liabilit y and/or responsibility arising out of our contracts. Your return fax of this agreement

will be a final release by both parties.

Upon receiving the fax, Southern Travel's President signed the letter and faxed it back to Carnival.

And, several days later, Southern Travel received a check in the amount of $176,310 from Carnival.

Despite executing the release, Southern Travel filed a breach of contract suit against Carnival

in state court in July 1991. Carnival removed the case to federal district court based on diversity of

citizenship. The case was tried to the district court on June 15, 1992, and after Southern Travel had

presented its evidence, Carnival moved for a involuntary dismissal under Rule 41(b) of the Federal

Rules of Civil Procedure. The district court treated the mot ion as one for judgment on partial

findings under Rule 52(c) of the Federal Rules of Civil Procedure and, by order dated June 15, 1992,

dismissed Southern Travel's breach of contract claims with prejudice. On June 26, 1992, Southern

Travel filed a timely notice of appeal from the order dismissing its breach of contract claims.

Thereafter, Carnival filed a motion for Rule 11 sanctions against Southern Travel and i ts

attorney

. In a memorandum ruling dated August 13, 1992, the district court found t hat So uthern

Travel's suit against Carnival was "frivolous." It stated:

Prior to the filing of this action, [Southern Travel] had resolved its claim against [Carnival]

and released [Carnival] from further liability. [Southern Travel] subsequently filed t his

lawsuit, contending that it signed the release under economic duress, such that, if it did not

obtain the [$176,310] refund immediat ely, it would go out of business. During the trial of this

matter, [Carnival] introdu ced [Southern Travel's] bank records, which indicated that

[Southern Travel] had sufficient funds. In particular, [Southern Travel] had sufficient funds2 Rule 52(c) provides, in pertinent part:

If during a trial without a jury a party has been fully heard with respect to an issue

and the court finds against the party on that issue, the court may enter judgment as

a matter of law against that party on any claim, counterclaim, cross-claim or third

party claim that cannot under the controlling law be maintained or defeated

without a favorable finding on that issue, or the court may decline to render any

judgment until the close of all evidence. Such a judgment shall be supported by

findings of fact and conclusions of law as required by subdivision (a) of this rule.

F ED .R.C IV .P. 52(c). to engage another entity to provide the desired services. Surely, [Southern Travel] was aware

o f it s financial ability at the time it executed the release. Accordingly, [Southern Travel]

knew it had not suffered from econom ic duress when it executed the release. As such,

[Southern Travel's] filing of this action was wholly meritless.

Having found that Southern Travel and its attorney violated Rule 11, the district court then

considered what would constitute an appropriate sanction. It concluded that, because Carnival could

have t imely filed a motion for summary judgment that would have disposed of Southern Travel's

claim, Carnival was only entitled to recover t he at t orney's fees and costs that would have been

incurred in (a) filing an answer to Southern Travel's complaint, (b) preparing a motion for summary

judgment, and (c) conducting and responding to related discovery. Thus, while the district court

granted Carnival's motion for Rule 11 sanctions, it referred to a magistrate judge the determination

of the appropriate amount of fees and costs. Southern Travel filed a notice of appeal from this

memorandum ruling on September 1, 1992.

II. ANALYSIS

A. No. 92-3595: The District Court's Order of Dismissal

As already discussed, the district court granted Carnival's motion for "invol untary

dismissal"—or judgment as a matter of law—at the close of Southern Travel's case. In accordance

with Rule 52 of the Federal Rules of Civil Procedure, 2 the district court rendered certain findings of

fact and conclusions of law. Among other things, the district court determined that (1) by executing

the letter dated May 23, 1991 and returning it to Carnival, Southern Travel released Carnival from

any liabilit

y for breach of contract, and (2) Southern Travel was not under economic duress when it3 The district court also determined that: (a) Carnival did not breach its charter agreements

with Southern Travel; (b) even if Carnival had breached the charter agreements, Southern Travel

suffered no provable damages; (c) Carnival did not breach any duty of good faith by giving sixty

days notice of its intent to terminate the charter agreements.

4 Southern Travel also contends that the district court erred in determining that: (a) Carnival

did not breach the charter agreements; (b) Carnival did not breach its duty of good faith in

terminating the charter agreements; and (c) Southern Travel did not suffer any provable damages

as a result of Carnival's actions. Because we conclude that the district court correctly dismissed

Southern Travel's claims on the basis of the release it signed and returned to Carnival, Southern

Travel's other contentions—even assuming they are meritorious—are irrelevant. executed and returned the release to Carnival. 3

On appeal, Southern Travel contends that the district court erred by dismissing its breach of

contract claims against Carnival. Southern Travel raises several arguments to support its position,

only one of which we need consider on appeal. 4 In particular, we must address Southern Travel's

argument that, because it signed the release under economic duress, the release is invalid.

Because the district court's finding of "no economic duress" was made in accordance with

Rule 52(c), we review it only for clear error. S ee Advisory Commi ttee Notes to Rul e 52(c)

(judgment on partial findings, unlike a summary judgment, "is made after the court has heard all

evidence bearing on the crucial issue of fact, and the finding is reversible only if the appellate court

finds it to be "clearly erroneous' "); s ee also Benton v. Blair, 228 F.2d 55, 58 (5th Cir.1956). That

is, we will not set aside the district court's finding in this regard unless, based upon the entire record,

we are "left with the definite and firm conviction that a mistake has been committed." Anderson v.

City of Bessemer City, 470 U.S. 564, 573, 105 S.Ct. 1504, 1511, 84 L.Ed.2d 518 (1985). "If the

district court's account of the evidence is plausible in light of the record," we will not reverse it—even

if convinced that had we "been sitting as trier of fact, [we] would have weighed th e evidence

differently." Id. at 573-74, 105 S.Ct. at 1511.

We conclude that the district court did not clearly err in finding that Southern Travel was not

under economic duress when it signed and returned the release to Carnival. Although the President

of Southern Travel testified that the company sorely needed the money that Carnival offered to return

in order to pay the substitute carrier, his testimony was severely impeached on cross-examination by

Carn ival. In particular, Carnival introduced bank records from Southern Travel revealing thatSouthern Travel was capable of paying—and indeed did pay—the substitute carrier before receiving

any of the $176,310 refunded by Carnival. The bank records introduced by Carnival further reveal

that Southern Travel had $218,262.66 in the bank after paying the substitute carrier and b efore

depositing the refund from Carnival. Because the district court's finding of "no economic duress" is

plausible, especially in light of the cross-examination of Southern Travel's President, we decline to

set it aside as clearly erroneous.

Accordingly, we hold that the district court did not err in dismissing with prejudice Southern

Travel's breach of contract claims against Carnival. By signing and returning the May 23, 1991 letter

to Carnival , So ut hern Travel released Carnival for any breach of contract. Further, as we have

determined, Southern Travel's claim that it signed the release under "economic duress" is meritless.

Even assuming that a showing of economic duress would allow Southern Travel to escape the express

terms of the release, Sout hern Travel simply did not demonstrate that it suffered from any such

duress.

B. No. 92-3766: The District Court's Rule 11 Sanction Order

So ut hern Travel also appeals from the district court's August 13, 1991 order grant ing

Carnival's motion for sanctions. In the August 13 memorandum order, the district court determined

that Southern Travel and (and apparently its attorney ) violated Rule 11 of the Federal Rules of Civil

Procedure. The district court further determined that Carnival was entitled to recover "only those

fees and costs incurred to answer and prepare the motion for summary judgment, including related

discovery." The district court did not, however, fix the amount of those fees and costs, but instead

referred "the det ermination of the appropriate amount" of sanctions to a magistrate judge. Thus,

while the district c o urt made a "liability" determination as to sanctions, it did not compute the

"damages."

On appeal, Southern Travel argues that the district court erred in awarding sanctions against

it and its attorney

. In particular, Southern Travel argues that "[t]he district judge clearly abused his

discretion in applying Rule 11 of the Federal Rules of Civil Procedure to the filing of [a state court

petition that was subsequently removed to federal court]." Southern Travel also contends that thedistrict judge abused his discretion by not considering Carnival's failure to t imely notify the court or

Southern Travel "of its claim of an alleged Rule 11 violation."

Init ially, we must consider whether we have appellate jurisdiction to consider Southern

Travel's appeal from the district court's sanction order. Southern Travel argues that we do, stating:

"This is an appeal from a final decision of the district court under 28 U.S.C. § 1291." We disagree.

Under 28 U.S.C. § 1291, we may o nly review a district court's decision if it is "final." A

decision is "final" within the meaning of section 1291 if it "ends the litigation on the merits and leaves

nothing for the court to do but execute the judgment." F irestone Tire & Rubber Co. v. Risjord, 449

U.S. 368, 373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981) (quoting Coopers & Lybrand v. Livesay,

437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978)). An order that determines the issue

of liabilit y but leaves unresolved the assessment of damages is not final within the meaning of section

1291. See Liberty Mutual Ins. Co. v. Wetzel, 424 U.S. 737, 742-44, 96 S.Ct. 1202, 1206, 47

L.Ed.2d 435 (1976).

Had Southern Travel's appeal from the distri ct court's Rul e 11 sancti on order not been

consolidated with Southern Travel's appeal from the district court's order dismissing its breach of

contract claims, we would have no trouble dismissing the appeal from the sanction order for lack of

jurisdiction. That is, the Rule 11 sanct io n o rder would fall squarely within the rule that an order

determining liabilit

y but leaving unresolved the question of damages is not an appealable final

decision. In W

illiams v. Ezell, 531 F.2d 1261, 1263 (5th Cir.1976), this court expressly held that an

order granting a mo t ion for attorney's fees "but reserv[ing] the question of the amount pending a

meeting between the parties" was not a final order for purposes of appellate review. We reasoned:

"That order clearly

left for a later determination the amount of the attorneys fees, an important

component of the plaintiffs' potential obligation." See also Lac Courte Oreilles Chippewa Band of

Lake Superior Chippewa I ndians v. Wisconsin, 829 F.2d 601, 603 (7th Cir.1987) ("An award of

attorney's fees that does not fix the amount of the award or specify a formula allowing the amount

to be computed mechanically is not a final decision within the meaning of section 1291.").

The precise question involved in this case, however, is whether a district court's order thatgrants a motion for sanctions, but does not fix the amount of the sanctions, i s reviewable if

consolidated with an appeal from a final judgment. In B ittner v. Sadoff & Rudoy Industries, 728 F.2d

820 (7th Cir.1984), the Seventh Circuit considered this precise issue and held that such an order is

reviewable on appeal from the underlying final judgment. The B ittner court reasoned that, because

the district cou rt 's underlying decision dismissing the plaintiff's complaint was an appealable "final

decision," the district court's order awarding the defendant attorney's fees, but not setting the amount

of those fees, was also reviewable. The court stated:

These circumstances bring into play the principle that a court of appeals may, in the interest

of orderly judicial administration, review matters beyond t hat which supplies appellate

jurisdiction. The [underlying] judgment dismissing the complaint is properly before us,

independently of the attorney's fee award, because a judgment is not deprived of its finalit y by the fact that the district court has not yet acted on a party's claim for statutory attorney's

fees. We might as well decide at the same time what are likely to be the disposit ive issues

relating to the award of attorney's fe e s. It is possible but unlikely that we shall have to

consider the award again.

Id. at 826-27 (internal quotati ons and citations omitted). Thus, at least in the Seventh Circuit, there

is an exception to the g eneral rule that an order awarding fees in an amount not yet determined is

unreviewable on appeal: Such an order is reviewable where it "can be consolidated on appeal with

a final order." Lac Courte Oreilles Chippew a, 829 F.2d at 603.

Other court s o f appeal have refused to follow the Seventh Circuit's lead in creating an

exception to the rule that non-final orders awarding sanctions or attorney's fees are not reviewable.

In Phelps v. Washbur

n University of Topeka, 807 F.2d 153, 154-55 (10th Cir.1986), the Tenth

Circuit declined to follow Bittner and held that, if an award of attorney's fees is not reduced to a sum

certain, it is not final and is therefore not reviewable—even if the appeal from the attorney's fee award

may be consolidated with an appeal from the underlying final judgment. The Third Circuit has

similarly rejected the Bittner exception. In B ecton Dic kinson & Co. v. District 65, United

Automobile, Aerospace & Agricultural Implement Workers of America, 799 F.2d 57 (3d Cir.1986),

the Third Circuit held that the porti on of the district court's order awarding attorne y's fees in an

amount not yet determined was not reviewable, despite the fact that the other porti on of the district

court's order was "patently appealable." Id. at 61. It stated:

[J]urisdictional issues are not subject to our discretion. We recognize that the Seventh Circuithas taken jurisdiction over such an app eal o n the theory that there would be a "net

diseconomy, if we held that we could not consider the merits of the fee order until the amount

of fees to be awarded is fixed." [citing B ittner ] We view the jurisdictional rules precluding

review of non-final orders as more firmly entrenched. We thus reaffirm our earlier decisions

that appeals from an award of attorneys' fees may be filed only after the amount of attorneys'

fees has been determined by the district court.

Id. at 61-62.

We now join the Tenth and Third Circuits in holding that an order awarding attorney's fees

or costs is not reviewable on appeal until the award is reduced to a s um certain. While this

requirement may result in some "diseconomy," we are not persuaded that the Bittner exception to the

"final decision" rule is warranted. Like the Third Circuit, we "view the jurisdictional rules precluding

review of non-final orders as more firmly entrenched." Moreover, the B ittner exception, in our view,

has the potential to create unnecessary confusion about when the appellate timetable begins to run

with respect to a district court's decision to award sanctions. Under t he rule we embrace, the

appellate timetable will not begin to run with respect to an order awarding sanctions until the award

is reduced to a sum certain.

Accordingly, we hold that we do not have jurisdiction to consider Southern Travel's appeal

from the district court's Rule 11 sanction order. The order does not reduce the sanctions to a sum

certain and therefore is not an appealable final decision.

III. CONCLUSION

For the reasons stated above, we vacate our order consolidating Southern Travel's appeals

as improvidently granted. In No. 92-3595, we AFFIRM the district court 's judgment dismissing

South ern Travel's breach of contract claims against Carnival. In No. 92-3766, we DISMISS

Southern Travel's appeal for lack of jurisdiction. Southern Travel shall bear t he costs of these

appeals.