Filed: Oct. 26, 2012
Latest Update: Mar. 26, 2017
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED October 26, 2012 No. 11-10348 Lyle W. Cayce Clerk ALBERT G. HILL, III, individually, and as a Beneficiary of the Margaret Hunt Trust Estate,derivatively on behalf of the Margaret Hunt Trust Estate, individually, as a beneficiary of the Haroldson Lafayette Hunt, Jr. Trust Estate, and derivately on Behalf of the Haroldson Lafayette Hunt, Jr. Trust Estate, Plaintiff - Appellant v. WILLIAM
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED October 26, 2012 No. 11-10348 Lyle W. Cayce Clerk ALBERT G. HILL, III, individually, and as a Beneficiary of the Margaret Hunt Trust Estate,derivatively on behalf of the Margaret Hunt Trust Estate, individually, as a beneficiary of the Haroldson Lafayette Hunt, Jr. Trust Estate, and derivately on Behalf of the Haroldson Lafayette Hunt, Jr. Trust Estate, Plaintiff - Appellant v. WILLIAM S..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 26, 2012
No. 11-10348
Lyle W. Cayce
Clerk
ALBERT G. HILL, III, individually, and as a Beneficiary of the Margaret
Hunt Trust Estate,derivatively on behalf of the Margaret Hunt Trust Estate,
individually, as a beneficiary of the Haroldson Lafayette Hunt, Jr. Trust
Estate, and derivately on Behalf of the Haroldson Lafayette Hunt, Jr. Trust
Estate,
Plaintiff - Appellant
v.
WILLIAM SCHILLING, individually and in his capacity as a member of the
Advisory Board M.H.T.E. and a member of the Advisory Board of the
H.H.T.E.; IVAN IRWIN, JR.; ALBERT G. HILL, JR.; ALINDA H. WIKERT;
LYDA HILL; HEATHER V. WASHBURNE; ELISA M. SUMMERS;
MARGARET HUNT TRUST ESTATE; HAROLDSON LAFAYETTE HUNT
JR. TRUST ESTATE; WILLIAM HERBERT HUNT, in his capacity as the
personal representative of the estate of Tom Hunt; BRETT RINGLE,
Individually and in his capacity as a member of the Advisory
Board of the M.H.T.E.; JOHN W. CREECY, Individually and in his capacity
as Trustee of the H.H.T.E.; MARGARET KELIHER, Individually and in her
capacity as Trustee of the M.H.T.E. and a member of the Advisory Board of
the H.H.T.E.,
Defendants - Appellees
v.
STEPHEN MALOUF; LISA BLUE; BARON & BLUE; LAW OFFICES OF
STEPHEN F. MALOUF, P.C.; ALDOUS LAW FIRM; CHARLA ALDOUS;
CHARLA ALDOUS, P.C.,
Intervenors Plaintiffs - Appellees
CAMPBELL HARRISON & DAGLEY, L.L.P.; CALLOWAY, NORRIS,
BURDETTE & WEBER, P.L.L.C.,
Intervenors - Appellees
GUARDIAN AD LITEM
Appellee
consolidated with
No. 12-10417
CAMPBELL HARRISON & DAGLEY, L.L.P., et al
Plaintiffs
LISA BLUE; BARON AND BLUE; CHARLA G. ALDOUS, doing business as
Aldous Law Firm; LAW OFFICES OF STEPHEN F. MALOUF, P.C.,
Intervenor Plaintiffs - Appellees
v.
ALBERT G. HILL, III, Individually, and as a Beneficiary of the Margaret
Hunt Trust Estate, derivatively on behalf of the Margaret Hunt Trust Estate,
individually, As a beneficiary of the Haroldson Lafayette Hunt, Jr. Trust
Estate, and derivatively on behalf of the Haroldson Lafayette Hunt, Jr. Trust
Estate,
Defendant - Counter Claimant -
Appellant
ERIN NANCE HILL
Defendant - Appellant
v.
STEPHEN F. MALOUF,
Counter Defendant - Appellee
consolidated with
No. 12-10620
ALBERT G. HILL, III, individually, and as a Beneficiary of the Margaret
Hunt Trust Estate, derivatively on behalf of the Margaret Hunt Trust Estate,
individually, as a beneficiary of the Haroldson Lafayette Hunt, Jr. Trust
Estate, and derivately on Behalf of the Haroldson Lafayette Hunt, Jr. Trust
Estate,
Plaintiff - Appellant
v.
2
WILLIAM SCHILLING, individually and in his capacity as a member of the
Advisory Board M.H.T.E. and a member of the Advisory Board of the
H.H.T.E.; IVAN IRWIN, JR.; ALBERT G. HILL, JR.; ALINDA H. WIKERT;
LYDA HILL; HEATHER V. WASHBURNE; ELISA M. SUMMERS;
MARGARET HUNT TRUST ESTATE; HAROLDSON LAFAYETTE HUNT
JR. TRUST ESTATE; WILLIAM HERBERT HUNT, in his capacity as the
personal representative of the estate of Tom Hunt; BRETT RINGLE,
Individually and in his capacity as a member of the Advisory
Board of the M.H.T.E.; JOHN W. CREECY, Individually and in his capacity
as Trustee of the H.H.T.E.; MARGARET KELIHER, Individually and in her
capacity as Trustee of the M.H.T.E. and a member of the Advisory Board of
the H.H.T.E.,
Defendants - Appellees
v.
STEPHEN FERRIS MALOUF; LISA BLUE; BARON & BLUE; LAW
OFFICES OF STEPHEN F. MALOUF, P.C.; ALDOUS LAW FIRM; CHARLA
ALDOUS; CHARLA ALDOUS, P.C.,
Intervenor Plaintiffs - Appellees
GUARDIAN AD LITEM
Appellee
Appeals from the United States District Court
for the Northern District of Texas
(07-CV-2020)
(10-CV-2269)
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
The three appeals consolidated for review in this case arise from federal
district court litigation that, in turn, formed part of a larger family of disputes
relating to the management of two trusts created by the late Texas oil magnate
H.L. Hunt. After several years, the litigation was brought to a close by 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.
3
No. 11-10348, consol’d with Nos. 12-10417 & 12-10620
judgment effectuating a comprehensive settlement between the various parties,
as well as a separate judgment in a related attorneys’ fees dispute that was
severed from the trusts action. Dissatisfied with the district court’s
implementation of the settlement and its resolution of the fees dispute, plaintiff-
appellant Albert G. Hill, III, a descendant of H.L. Hunt and a beneficiary of the
trusts, seeks to overturn the judgments in the trust and fees disputes. In a third
appeal, he argues that the district court erroneously denied his post-judgment
recusal motion filed in the trust litigation.
For the reasons set forth herein, we affirm the district court’s judgment in
the trusts dispute and its denial of the recusal motion, and dismiss the appeal
from the district court’s judgment in the fees dispute.
BACKGROUND
H.L. Hunt established the trusts at issue — the Margaret Hunt Trust
Estate (“MHTE”) and the H.L. Hunt, Jr. Trust Estate (“HHTE”) — in the names
of his two eldest children. Margaret Hunt had three children, including Albert
G. Hill, Jr. (“Al Hill, Jr.”), all of whom were beneficiaries of both the MHTE and
HHTE. Al Hill, Jr. in turn also had three children — one of whom is appellant
Albert G. Hill, III (“appellant” or “Al Hill, III”) — and all three of those children
were also beneficiaries of both trusts. The appellees consist of the trustees and
advisory boards of the MHTE and HHTE; other beneficiaries of those trusts,
including Al Hill, Jr. and his two siblings and Al Hill, III’s two siblings; a
guardian ad litem appointed by the district court to represent the interests of Al
Hill, III’s minor children and other potential future beneficiaries; and several of
Al Hill, III’s former attorneys in the underlying litigation, who seek affirmance
of the district court’s resolution of a fee dispute with Al Hill, III.
Appellant Al Hill, III initiated the instant litigation in Texas state court
in December 2007, alleging various forms of wrongdoing in the management of
the MHTE and HHTE trusts, and seeking, inter alia, a declaration that he was
4
No. 11-10348, consol’d with Nos. 12-10417 & 12-10620
a direct and vested beneficiary of the MHTE. After removal to federal district
court and several years of extensive litigation — involving dozens of related
lawsuits in various state trial courts in addition to the federal litigation — the
parties on May 13, 2010 entered into a Global Settlement and Mutual Release
Agreement (the “Settlement Agreement”) which left a number of details and
considerable documentation to be implemented under the jurisdiction of the
district court. On November 8, 2010, after considering various proposed
judgments and arguments from the parties concerning the implementation of the
Settlement Agreement, the district court entered its Final Judgment. Following
entry of the Final Judgment, appellant filed a motion to alter or amend the Final
Judgment, challenging the Final Judgment’s implementation of the Settlement
Agreement on various grounds. Later, on March 12, 2012, appellant filed a
recusal motion arguing that District Judge O’Connor should have recused
himself because of Judge O’Connor’s spouse’s ownership of stock in ExxonMobil
Corporation (“Exxon”), which, through acquisitions that took place during the
course of the litigation, came to own the former Hunt Petroleum Company,
which had been a major asset in the MHTE and HHTE trusts. The district court
denied that motion as untimely filed and on the merits. Appellant also appeals
the district court’s award of attorneys’ fees to his prior attorneys in the trusts
action — Lisa Blue, Charla Aldous, and Stephen Malouf (referred to by the
parties collectively by the acronym “BAM”) — in a fees dispute that the district
court severed from that underlying action.
Al Hill, III timely appealed the district court’s Final Judgment in the
trusts litigation, its denial of his recusal motion, and its award of attorneys fees
in the severed action. We consolidated the three appeals for review.
DISCUSSION
We consider in turn appellant’s arguments that the district court abused
its discretion in denying his recusal motion, exceeded its authority in entering
5
No. 11-10348, consol’d with Nos. 12-10417 & 12-10620
the Final Judgment, and erred in its award of attorneys’ fees to the BAM
attorneys. For the following reasons, we affirm in the appeals regarding the first
two issues and dismiss, as contractually barred, the appeal regarding the third.
I.
In appeal 12-10620, appellant argues that his recusal motion was timely
and that Judge O’Connor should have recused himself under 28 U.S.C. § 455(a)
and (b)(4) because “his impartiality might reasonably [have been] questioned”
and because “his spouse . . . ha[d] a financial interest” in either a “party to the
proceeding” or “the subject matter in controversy” due to her ownership of Exxon
stock. See 28 U.S.C. § 455(a), (b)(4). Because we affirm on the basis of
untimeliness, we do not reach the merits of the recusal issue.
We review the district court’s denial of appellant’s recusal motion for
abuse of discretion. Andrade v. Chojnacki, 338 F.3d 448, 454 (5th Cir. 2003);
Garcia v. Woman’s Hosp. of Tex.,
143 F.3d 227, 230 (5th Cir. 1998). “[D]eference
. . . is the hallmark of abuse-of-discretion review.” Love v. Tyson Foods, Inc.,
677
F.3d 258, 262 (5th Cir. 2012) (alterations in original) (quoting Gen. Elec. Co. v.
Joiner,
522 U.S. 136, 143 (1997)). “A district court abuses its discretion if it: (1)
relies on clearly erroneous factual findings; (2) relies on erroneous conclusions
of law; or (3) misapplies the law to the facts.” Id. (quoting McClure v. Ashcroft,
335 F.3d 404, 408 (5th Cir. 2003)). We conclude that the district court did not
abuse its discretion in denying the recusal motion.
“[This] court has recognized that a timeliness requirement applies to
raising § 455(a) disqualification.” Travelers Ins. Co. v. Liljeberg Enters., Inc., 38
F.3d 1404, 1409-10 (5th Cir. 1994). “[Our] general rule on timeliness requires
that ‘one seeking disqualification must do so at the earliest moment after
knowledge of the facts demonstrating the basis for such disqualification.’ The
most egregious delay — the closest thing to per se untimeliness — occurs when
a party already knows the facts purportedly showing an appearance of
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No. 11-10348, consol’d with Nos. 12-10417 & 12-10620
impropriety but waits until after an adverse decision has been made by the judge
before raising the issue of recusal.” United States v. Sanford, 157 F.3d 987, 988-
89 (5th Cir. 1998) (quoting Travelers. Ins. Co., 38 F.3d at 1410). Thus, “[w]e
have rejected recusal challenges on appeal when the challenger waited to see if
he liked an outcome before springing the recusal issue,” and “rejected other
challenges on appeal as simply too late under the facts to be timely.” Id. at 989.
The district court’s conclusion that the recusal motion was untimely was
based on its review of various documents filed below. The district court found
that appellant “knew in late 2009 that the Court’s spouse worked for Exxon”;
that “[appellant], [his wife Erin Hill], and their various attorneys ha[d] known
for years that if Exxon were joined as a party, the Court’s spouse’s ownership of
Exxon stock would have likely required the Court to recuse”; and that “[e]ven
giving [appellant] the benefit of the doubt, the latest possible date that
[appellant] could claim to have learned about the stock ownership was April
2011, when [certain] e-mail communications relating to the Court’s spouse’s
ownership of Exxon stock were admitted into evidence at trial in the [attorneys’
fees litigation].”
In other words, the district court found that appellant or his attorneys
knew of the Exxon stock by April 2011 at the latest. This factual finding was
based on the record evidence and was not clearly erroneous. See, e.g., Preston
v. Tenet Healthsystem Memorial Med. Ctr., Inc., 485 F.3d 793, 796-97 (5th Cir.
2007) (“A finding of fact is clearly erroneous only when ‘although there may be
evidence to support it, the reviewing court on the entire [record] is left with the
definite and firm conviction that a mistake has been committed.’”).
Moreover, the circumstances of Al Hill, III’s recusal motion — filed only
after he had unsuccessfully moved to alter the district court’s Final Judgment
— lend substantial additional support to the district court’s decision. See United
States v. York, 888 F.2d 1050, 1055 (5th Cir. 1989) (“[Our] timeliness
7
No. 11-10348, consol’d with Nos. 12-10417 & 12-10620
requirement [for recusal motions] . . . prohibits knowing concealment of an
ethical issue for strategic purposes.”); Delesdernier v. Porterie, 666 F.2d 116, 121
(5th Cir. 1982) (“Congress did not enact § 455(a) to allow counsel to make a game
of the federal judiciary’s ethical obligations; we should seek to preserve the
integrity of the statute by discouraging bad faith manipulation of its rules for
litigious advantage.”). Particularly in light of the expansive nature of these
proceedings, considerations of judicial economy likewise countenance our
conclusion that the district court did not abuse its discretion. See York, 888 F.2d
at 1055 (“The motivation behind a timeliness requirement [for § 455(a) and (b)
motions] is . . . to a large extent one of judicial economy.”); see also, e.g., Martin
v. Monumental Life Ins. Co.,
240 F.3d 223, 237 (3d Cir. 2001).
Accordingly, we conclude that the district court did not abuse its discretion
in denying the recusal motion and therefore affirm in appeal 12-10620.
II.
In appeal 11-10348, appellant challenges the district court’s Final
Judgment in the trusts litigation, arguing that in implementing the Settlement
Agreement in order to bring this litigation to a close, the district court
impermissibly added several terms to which appellant never agreed.
Specifically, appellant argues that the district court committed reversible error
by including terms in the Final Judgment providing that: (1) the irrevocable
discretionary asset protection trust appellant agreed to create for his minor
children be in the form set forth in exemplars submitted by the guardian ad
litem, thus limiting appellant’s ability to control the form that new trust would
take; (2) certain future trust distributions be paid into the court registry rather
than to Al Hill, III directly; (3) certain orders and records in the district court
docket be sealed or vacated; and (4) certain state court records regarding Al Hill,
Jr.’s divorce be sealed. We affirm.
8
No. 11-10348, consol’d with Nos. 12-10417 & 12-10620
A.
First, as appellees correctly note, appellant has forfeited all but one of his
challenges to the Final Judgment by failing to adequately preserve them below.
“The general rule is that arguments not raised before the district court are
waived on appeal.” Balentine v. Thaler, 626 F.3d 842, 848 (5th Cir. 2010).
“Although no bright-line rule exists for determining whether a matter was raised
below, for a litigant to preserve an argument for appeal, it must press and not
merely intimate the argument during the proceedings before the district court[.]
The argument must be raised to such a degree that the district court has an
opportunity to rule on it.” Rosedale Missionary Baptist Church v. New Orleans
City,
641 F.3d 86, 89 (5th Cir. 2011) (citations and internal quotation marks
omitted). Importantly, “[a] motion to alter or amend [a] judgment . . . cannot be
used to raise arguments that could, and should, have been made before the
judgment issued.” Maresilles Homeowners Condo. Ass’n Inc. v. Fidelity Nat’l Ins.
Co.,
542 F.3d 1053, 1058 (5th Cir. 2008) (quoting Simon v. United States,
891
F.2d 1154, 1159 (5th Cir. 1990)). Thus, arguments first raised in a Rule 59(e)
motion to alter and amend a judgment are not entertained on appeal. Kohler v.
Englade,
470 F.3d 1104, 1114 (5th Cir. 2006); Trust Co. Bank v. U.S. Gypsum
Co.,
950 F.2d 1144, 1152 n.16 (5th Cir. 1992).1
1
An exception exists to the “general rule[] [that] arguments not raised before the
district court are waived and will not be considered on appeal” where “the party can
demonstrate ‘extraordinary circumstances.’” State Indus. Prods. Corp. v. Beta Tech., Inc., 575
F.3d 450, 456 (5th Cir. 2009) (quoting N. Alamo Water Supply Corp. v. City of San Juan,
90
F.3d 910, 916 (5th Cir. 1996)). “Extraordinary circumstances exist when the issue involved is
a pure question of law and a miscarriage of justice would result from our failure to consider it.”
Id. (quoting N. Alamo Water Supply, 90 F.3d at 916). Appellant argues that his pre-judgment
arguments that the judgment should contain no terms not agreed to in the Settlement
Agreement were sufficient to preserve the more specific challenges he now raises on appeal.
However, he does not alternatively argue that the “extraordinary circumstances” exception
applies.
9
No. 11-10348, consol’d with Nos. 12-10417 & 12-10620
Appellant argues that because he submitted a number of filings prior to
judgment in which he argued that the district court lacked authority to enter a
judgment containing “any new terms that were not either contained in the
[Settlement Agreement] . . . itself or specifically agreed to by the parties,” and
because appellant’s own “proposed judgment did not contain any of the four
provisions that are the subject of this appeal,” the district court had an
opportunity to rule on the claims he now raises. Thus, by his own account
appellant did not raise most of the specific objections to the appellees’ proposed
judgment terms that he now pursues until his post-judgment Rule 59(e) motion.
Nonetheless, appellant contends that it would have been impracticable to
specifically object, prior to judgment, to the particular language in appellees’
proposed judgments he now takes issue with because of the length of the various
proposals. He further argues that he made general objections to the inclusion
of any terms in the Final Judgment not specifically set forth in the Settlement
Agreement, and that this was sufficient to give the district court an opportunity
to rule on the objections he now raises prior to the rendition of the judgment. In
fact, however, the district court’s memorandum denying appellant’s post-
judgment motion persuasively indicates that the district court was not
sufficiently apprised by appellant of his objections to the proposed terms
subsequently adopted in the Final Judgment, with the exception of appellant’s
specific challenge to the sealing of his father’s divorce records.
Accordingly, because appellant failed to preserve his other challenges to
the Final Judgment, we consider only his argument that the district court
exceeded its authority in ordering the sealing of Al Hill, Jr.’s state court divorce
records as part of the Final Judgment.
B.
“[T]he construction and enforcement of settlement agreements are
governed by principles of local law applicable to contracts generally.” Fl. Educ.
10
No. 11-10348, consol’d with Nos. 12-10417 & 12-10620
Ass’n, Inc. v. Atkinson, 481 F.2d 662, 663 (5th Cir. 1973); accord Davis v.
Huskipower Outdoor Equip. Corp.,
936 F.2d 193, 196 (5th Cir. 1991). However,
because “public policy strongly encourages the settlement of cases[,] . . . we
prefer upholding settlements rather than overturning them.” Ho v. Martin
Marietta Corp.,
845 F.2d 545, 547 n.2 (5th Cir. 1988); see also Core-Vent Corp.
v. Implant Innovations, Inc.,
53 F.3d 1252, 1259 (Fed. Cir. 1995) (“Those who
employ the judicial appellate process to attack a settlement through which
controversy has been set to rest bear a properly heavy burden.”).
Significantly, the Settlement Agreement here indicated that considerable
further details remained to be supplied by and agreed upon by the parties, and
specifically authorized the district court to resolve disputes that might arise in
that process. The Settlement Agreement provides that “the Agreeing Parties
recognize that this Agreement is the definitive act in [settling the Litigation in
all respects], with the understanding that there will have to be considerable
documentation (the ‘Documentation’) approved by the relevant parties to the
Litigation to effect implementation of all the terms of this Agreement”; and that
“[a]ny controversy or claim arising after the date of execution of this Agreement
and the Documentation shall be resolved by the Federal Court, the Honorable
Reed O’Connor, who shall retain continuing jurisdiction over this Agreement.”
The district court explained that it adopted the provision of the Final
Judgment sealing the divorce records in order “to protect sensitive personal and
financial information” as “one part of th[e] effort to buy peace between all the
parties involved,” and in light of the fact that “[t]he parties entered into the
[Settlement Agreement] with the intention of reaching a peaceful agreement on
several contentious issues.” We conclude that the above-referenced provisions
of the Settlement Agreement gave the district court ample power to do so.
11
No. 11-10348, consol’d with Nos. 12-10417 & 12-10620
Accordingly, the district court did not exceed its authority, and we affirm its
judgment in appeal 11-10348.2
III.
Finally, in appeal 12-10417, appellant attempts to appeal the district
court’s ruling in the severed attorneys’ fees dispute between himself and the
BAM attorneys, a set of his former attorneys in the trusts litigation. We must
dismiss the appeal as barred by a valid appeal waiver agreement.
“A [party] may waive his [or her] statutory right to appeal provided (1) his
or her waiver is knowing and voluntary, and (2) the waiver applies to the
circumstances at hand, based on the plain language of the agreement.” United
States v. Palmer, 456 F.3d 484, 488 (5th Cir. 2006). Where a party’s appeal is
barred by a valid waiver, the appeal will be dismissed. See, e.g., United States
v. Bond,
414 F.3d 542, 546 (5th Cir. 2005); see also Charles Alan Wright et al.,
Fed. Prac. & Proc. § 3901 (2012) (“[The right to appeal] can be waived, just as the
parties by settlement can waive the right to decision of their dispute by any
court and can stipulate to entry of a consent judgment. The most likely occasion
for waiver arises from a settlement agreement that calls for resolution of some
disputed matter by the district court, coupled with an explicit agreement that
the district court decision shall be final and that all rights of appeal are waived.
2
In arguing to the contrary, appellant cites to language in cases reviewing district court
decisions to approve settlements in legal contexts where such approval is required by rule or
statute, such as class action settlements governed by Federal Rule of Civil Procedure 23(e). See
Evans v. Jeff D., 475 U.S. 717, 726-27 (1986); Cotton v. Hinton,
559 F.2d 1326, 1329-32 (5th
Cir. 1977); United States v. Allegheny-Ludlum Indus., Inc.,
517 F.2d 826, 850 (5th Cir. 1975).
Such was not the circumstance here. Appellant also relies upon Janus Films, Inc. v. Miller,
801 F.2d 578 (2d Cir. 1986). However, that case did not involve a settlement agreement, like
that here, that specifically empowered the district court to resolve disputes in the agreement’s
effectuation. Cf. Huertas v. E. River Housing Corp.,
813 F.2d 580, 582 (2d Cir. 1987)
(indicating that where an “agreement in principle” between the parties did not speak to the
issue of attorneys’ fees, a district court could not “impose on the parties his own determination
of attorneys’ fees without the parties having consented to that procedure” (emphasis added)).
12
No. 11-10348, consol’d with Nos. 12-10417 & 12-10620
Appeals attempted in violation of such agreements are dismissed.” (footnotes
omitted)).
As appellant acknowledges in his brief, he “entered into an agreement to
submit the BAM fee dispute for resolution by the District Court,” and, “[a]s a
part of that agreement[,] [he] waived . . . his right of appeal to this Court.” That
agreement, which set forth various procedures for the magistrate judge’s and
district court’s resolution of the attorneys’ fees dispute, stated in pertinent part
as follows:
The Parties agree that [Magistrate] Judge Toliver’s ruling on the
Fee Dispute can be appealed only to Judge O’Connor . . . . Other
than the appeal to Judge O’Connor specifically provided for herein,
the Parties agree to waive all other rights to appeal on any grounds,
including but not limited to the grounds of personal or subject
matter jurisdiction or any substantive or procedural basis including
but not limited to an appeal to the United States Court of Appeals
for the Fifth Circuit and/or the United States Supreme Court.
“In determining whether a[n] [appeal] waiver applies, we employ normal
principles of contract interpretation.” Palmer, 456 F.3d at 488. The terms of the
appeal waiver plainly apply here, and appellant does not argue to the contrary.
Instead, appellant contends that the appeal waiver agreement should not be
enforced because when he entered into the agreement he did not know of Judge
O’Connor’s wife’s ownership of Exxon stock. However, as stated above in
connection with our conclusion that the district court did not abuse its discretion
in denying appellant’s recusal motion, appellant has not demonstrated clear
error in the district court’s supported factual finding that appellant did in fact
have prior knowledge of this information.
Moreover, an appeal waiver agreement is made knowingly so long as the
party understands the right to appeal that he or she is giving up. See United
States v. Jacobs, 635 F.3d 778, 781 (5th Cir. 2011). Naturally, in order for such
a waiver to be voluntary, the parties need not have knowledge of all facts
13
No. 11-10348, consol’d with Nos. 12-10417 & 12-10620
relating to all potential challenges that could be raised on appeal. A contrary
rule would permit parties to negate the very purpose of appeal waiver
agreements. See, e.g., United States v. Michlin, 34 F.3d 896, 901 (9th Cir. 1994)
(“We reject defendants’ argument that under the language of the plea
agreements they did not waive their right to appeal incorrect applications of the
Sentencing Guidelines. Defendants’ construction of the plea agreement would
render the waiver meaningless.”).
Consequently, we dismiss appeal 12-10417 as barred by the appeal waiver
agreement.
CONCLUSION
For the foregoing reasons, we AFFIRM in appeals 12-10620 and 11-10348
and DISMISS appeal 12-10417. All outstanding motions are DENIED.
14
