Rule 54’s 14-Day Deadline Bars Late Requests for Appellate Fees Absent an Express Court Order

1. Introduction

In Merchant v. Merchant (5th Cir. Aug. 13, 2026) (per curiam) (not designated for publication), Frank and Dorothy Merchant sued Frank’s twin brother, Billy Merchant, seeking to recover farmland they had deeded to Billy years earlier to evade creditors. After a bench trial, the district court found the Merchants’ “unclean hands” barred relief and recognized a subsequent purchaser as a good-faith purchaser. On remand, the district court awarded Billy substantial attorney’s fees under the Mississippi Litigation Accountability Act (MLAA), including an additional amount for appellate fees.

The appeal presented two core issues: (1) whether the district court abused its discretion by finding the lawsuit “without substantial justification” under the MLAA despite the case having survived summary judgment; and (2) whether the district court could award appellate attorney’s fees when the request for those fees was made well after final judgment and after the prior appellate mandate issued.

2. Summary of the Opinion

The Fifth Circuit largely affirmed the fee award under the MLAA, holding the district court did not abuse its discretion in finding the Merchants’ suit frivolous given their litigation conduct (lack of investigation, inconsistent and false theories, frivolous jurisdictional positions, and alleged misrepresentations under oath). However, the court vacated the portion awarding appellate attorney’s fees because Billy’s request for appellate fees was untimely under Federal Rule of Civil Procedure 54(d)(2)(B)(i) and no “court order” had varied that deadline. The case was remanded for entry of a revised judgment.

Judge Oldham concurred in affirming the general fee award but dissented from vacating appellate fees, reasoning that the district court’s handling of the fee motion satisfied Rule 54’s flexibility and that it made little sense to require a party to seek appellate fees before an appeal is noticed.

3. Analysis

A. Precedents Cited

  • Merchant v. Merchant, No. 22-60009, 2022 WL 3134225, at *1 (5th Cir. Aug. 5, 2022): The panel referenced its earlier summary affirmance of the merits judgment (unclean hands and good-faith purchaser). That affirmance set the stage for the remand limited to fee issues and contextualized why the district court viewed the litigation as having “no hope of success.”
  • N. Cypress Med. Cntr. Op. Co. v. Cigna Healthcare, 952 F.3d 708, 713 (5th Cir. 2020): Supplied the abuse-of-discretion standard for reviewing attorney-fee awards, framing the appellate posture as highly deferential to the district court’s assessment of litigation conduct.
  • Shelton v. La. State, 919 F.3d 325, 328 (5th Cir. 2019): Provided the tripartite review structure: factual findings for clear error; legal conclusions de novo; the fee award itself for abuse of discretion.
  • Cinel v. Connick, 15 F.3d 1338, 1345 (5th Cir. 1994): Used to hold that plaintiffs abandoned any challenge to the reasonableness of the amount because they did not argue it on appeal.
  • McBride v. Meridian Pub. Improvement Corp., 730 So. 2d 548, 554 (Miss. 1998): The court adopted this Mississippi articulation of frivolity under the MLAA: a lawsuit is frivolous where a party “objectively” has “no hope of success.” This case anchored the panel’s “objective” inquiry into substantial justification.
  • Nichols v. Munn, 565 So. 2d 1132, 1137 (Miss. 1990) and Knights' Piping, Inc. v. Knight, 123 So. 3d 451, 461 (Miss. Ct. App. 2012): These authorities supported the proposition that surviving a dispositive motion is relevant to non-frivolousness—but not dispositive. The panel used them to reject the Merchants’ attempt to treat denial of summary judgment as a categorical safe harbor.
  • Foster v. Ross, 804 So. 2d 1018, 1025 (Miss. 2002): Cited for the proposition that fees are appropriate where a party continues asserting an interest known to be without foundation, reinforcing the panel’s focus on the plaintiffs’ persistence and evolving explanations.
  • Davenport v. Edward D. Jones & Co., L.P., 891 F.3d 162, 167 (5th Cir. 2018) and Canal Barge Co. v. Torco Oil Co., 220 F.3d 370, 375 (5th Cir. 2000): These cases supplied the procedural bridge explaining how a case can survive summary judgment yet still be found frivolous: at summary judgment, courts cannot weigh credibility; at a bench trial, they can. The panel used this to reason that credibility determinations at trial may reveal that disputed “facts” were manufactured or sustained by misrepresentations.
  • Roberts v. Brinkerhoff Inspection, Inc., 855 F. App'x 222, 222-23 (5th Cir. 2021): Central to the appellate-fees holding. The panel relied on Roberts to conclude that, absent a new judgment, the time to seek fees does not restart after an affirmance; and to describe the two procedural avenues for seeking appellate fees (in the court of appeals under local rules or in district court under Rule 54).
  • Zimmerman v. City of Aus., 969 F.3d 564, 571 (5th Cir. 2020): Distinguished taxable “costs” under Federal Rule of Appellate Procedure 39 from attorney’s fees, underscoring that prior awards of costs do not imply or preserve a right to appellate attorney’s fees.

B. Legal Reasoning

1) MLAA fees: survival of summary judgment is relevant, not determinative

The court applied the MLAA’s mandatory fee-shifting when an action is brought “without substantial justification.” It emphasized the statute’s definition—“frivolous, groundless in fact or in law, or vexatious”—and Mississippi’s objective “no hope of success” standard.

Against the Merchants’ argument that denial of summary judgment precluded a frivolity finding, the panel reasoned:

  • Summary-judgment survival is probative but not controlling; MLAA factors also include pre-suit investigation, bad faith prosecution, and ultimate success/failure (tracking Miss. Code Ann. § 11-55-7(a), (d), (f)).
  • Where disputed facts exist because of misrepresentations, the inability to assess credibility at summary judgment can allow a claim to proceed even though it objectively never had merit. The bench trial then permits credibility assessments that can “unearth” those misrepresentations.

The panel also rejected the contention that the fee award improperly punished the underlying creditor-evasion conduct. The opinion framed the sanctionable behavior as litigation conduct: failure to investigate, inconsistent and false theories, a frivolous remand/jurisdiction position, and misrepresentations under oath. In short, the court treated the attempt to conceal the underlying wrongdoing during litigation as the operative basis for MLAA fees.

2) Appellate fees: Rule 54 timing requires an express order to extend

The decisive holding concerns appellate attorney’s fees sought in the district court. The panel described two routes: (i) a motion in the Fifth Circuit under 5th Cir. Loc. R. 47.8; or (ii) a motion in district court under Rule 54(d).

Under Rule 54(d)(2)(B)(i), a fee motion must be filed within 14 days after entry of final judgment. The court emphasized the 1993 Advisory Committee Note: the motion must alert the adversary and the court that fees are sought and provide “the amount of such fees (or a fair estimate).”

Applying those requirements, the panel held:

  • Billy did not move for appellate fees in the prior appeal.
  • His timely post-judgment fee motion sought only “fees expended . . . through trial,” which did not alert anyone to appellate fees or estimate them.
  • His first request for appellate fees came after the prior mandate—nearly a year after judgment—and thus was untimely.
  • The Rule 54 deadline can be altered only by “court order.” Because the district court issued no order varying the deadline, it could not award appellate fees, nor “tacitly” vary Rule 54 by ignoring it.

The panel acknowledged the “odd result” of requiring a party to move for appellate fees before an appeal is noticed, but treated the “plain text” of the rule as controlling.

3) The dissent’s competing reading

Judge Oldham’s partial dissent would have affirmed appellate fees. He reasoned that Rule 54’s 14-day period does not apply where “a court order provides otherwise,” and viewed the district court’s later fee order—entered after it deferred ruling—as effectively supplying the necessary flexibility. In his view, Billy’s initial timely motion for fees, combined with the district court’s deferral and later inclusion of appellate fees, sufficed under Rule 54(d)(2)(B).

C. Impact

  • No “summary-judgment safe harbor” from MLAA frivolity findings. Litigants in MLAA-governed cases cannot rely on surviving summary judgment as conclusive proof of “substantial justification,” especially where credibility and misrepresentation issues later emerge at trial.
  • Appellate fee requests must be preserved early and explicitly. Parties seeking appellate attorney’s fees in the district court must ensure Rule 54 compliance: within 14 days of final judgment, the motion must clearly encompass future appellate fees (at least by fair estimate) or the party must obtain an express court order extending/altering the deadline. Alternatively, parties should consider moving in the court of appeals under 5th Cir. Loc. R. 47.8 when appropriate.
  • District courts must be explicit if varying Rule 54 timing. The opinion signals that post hoc inclusion of appellate fees without an express deadline-modifying order risks vacatur, even when the equities favor the prevailing party.

4. Complex Concepts Simplified

“Unclean hands”
An equitable doctrine barring a plaintiff from obtaining equitable relief when the plaintiff’s own misconduct relates to the subject matter of the suit. Here, the underlying finding was that the plaintiffs transferred property to evade creditors, which barred them from reclaiming it in equity.
“Good-faith purchaser for value”
A purchaser who buys property for value without notice of competing claims or defects. Such a purchaser may take title free of certain prior equitable claims.
MLAA “without substantial justification”
Under Miss. Code Ann. § 11-55-5(1) and § 11-55-3(a), a claim is sanctionable if it is frivolous, groundless, or vexatious; Mississippi case law describes frivolity as an objective “no hope of success” standard.
Why summary judgment and trial can yield different views of the same case
At summary judgment, courts generally do not weigh witness credibility; they decide whether evidence could support a claim. At a bench trial, the judge decides what actually happened, including whether witnesses were credible. A case can therefore survive summary judgment but later be deemed objectively baseless once misrepresentations are exposed at trial.
Rule 54 fee-motion deadline
Federal Rule of Civil Procedure 54(d)(2)(B)(i) sets a default deadline—14 days after entry of judgment—to move for attorney’s fees in district court, unless a court order changes that timing. The motion must give notice that fees are sought and state an amount or fair estimate.

5. Conclusion

Merchant v. Merchant delivers two practical rules. First, a claim’s survival of summary judgment does not preclude a later finding of frivolity under the MLAA when trial reveals that the “disputes” were sustained by inconsistent theories or misrepresentations. Second, appellate attorney’s fees sought in district court are subject to Rule 54’s 14-day deadline unless an express court order changes it; a late request after an appellate mandate, without prior notice or estimate, is untimely. The decision thus couples strong deference to district courts’ sanction findings with strict enforcement of procedural requirements for preserving appellate fee recovery.