Auspro Enterprises, L.P. v. City of Austin ( 2019 )

Case: 18-50612 Document: 00514809523 Page: 1 Date Filed: 01/25/2019
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 18-50612 United States Court of Appeals
Summary Calendar
Fifth Circuit
FILED
January 25, 2019
MICHAEL KLEINMAN, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
CITY OF AUSTIN,
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:15-CV-497
Before JOLLY, COSTA, and HO, Circuit Judges.
PER CURIAM:*
Michael Kleinman successfully sued the City of Austin for violations of
the Clean Water Act (“CWA”). After a bench trial, the district court found that
Austin violated the CWA, issued a civil penalty against the City, and awarded
Kleinman attorney’s fees and costs. Kleinman appealed, contending that the
district court made “erroneous” findings of fact and conclusions of law. As a
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 18-50612 Document: 00514809523 Page: 2 Date Filed: 01/25/2019
No. 18-50612
result, Kleinman asserts the district court awarded the wrong relief and too
little in attorney’s fees. Because Kleinman did not timely appeal the district
court’s judgment, we DISMISS his appeal of the judgment and AFFIRM the
district court’s attorney’s-fees award.
First, Kleinman did not timely appeal the judgment on the merits and
thus cannot contest the relief the district court granted in its final judgment.
FRAP 4(a)(1)(1)(A) requires litigants to file a notice of appeal “within 30 days
after entry of the judgment or order appealed from.” The district court entered
judgment on March 6, 2018. Kleinman moved for attorney’s fees on March 20,
which the court awarded on June 26. Kleinman appealed both the judgment
and the fees award on July 23—over four months late for the judgment on the
merits. And contrary to Kleinman’s arguments, “[m]otions addressing costs
and attorney’s fees . . . are considered collateral to the judgment, and do not
toll the time period for filing an appeal.” Moody Nat’l Bank of Galveston v. GE
Life & Annuity Assur. Co., 383 F.3d 249, 250 (5th Cir. 2004) (emphasis added)
(citing FED. R. CIV. P 54(d)). See also Budinich v. Becton Dickinson & Co., 486
U.S. 196, 200 (1988).
Second, Kleinman cannot demonstrate that the trial court abused its
discretion when it awarded attorney’s fees. He argues that the district court
erred by basing its award on “erroneous” factual findings and conclusions of
law. At bottom, his attorney’s-fees argument rises and falls with his merits
argument. And because Kleinman has failed to present the merits to this
court, he has also failed to present a meritorious argument that the district
court abused its discretion.
We DISMISS his appeal of the judgment and AFFIRM the attorney’s-
fees award.
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