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Click here for the full text of this decision FACTS:Dorothy Burnley brought suit in Texas state court against her employer, the city of San Antonio, asserting claims under the Americans With Disabilities Act of 1990, 42 U.S.C. ��12101-12213, the Texas Commission on Human Rights Act, Texas Labor Code �21.051 and common-law negligence. She alleged that the city failed to reasonably accommodate her disability and that the city’s negligence caused her mold-induced respiratory illness. The city removed the case to federal court, and the case went to trial. A jury returned a general verdict in Burnley’s favor, awarding her $165,000 in compensatory damages. The clerk prepared a judgment incorporating the substance of the jury verdict and entered it in the civil docket on Feb. 2, 2004. The district court did not approve the form of the judgment before it was entered by the clerk. Burnley filed a motion for attorney’s fees on Feb. 10, 2004. On Sept. 16, 2004, the district court granted Burnley’s motion for attorney’s fees, awarding her $31,530. On Oct. 18, 2004, the city filed a motion to treat plaintiff’s fee motion as a new trial motion to delay running of the time limit to appeal. which the court granted on Oct. 18, 2004. Also on Oct. 18, 2004, the clerk entered the judgment approved as to form by the court, and the city filed a notice of appeal. Burnley objected to the 5th U.S. Circuit Court of Appeals’ exercise of appellate jurisdiction, contending that the city did not file a timely notice of appeal. The city filed its notice of appeal on Oct. 18, 2004, more than seven months after the clerk entered the judgment in the civil docket on Feb. 2, 2004. The city argued, however, that: 1. The clerk’s entry was a nullity and therefore did not cause the time for appeal to commence; or, in the alternative, 2. Under the district court’s order of Oct. 18, 2004, the plaintiff’s post-judgment motion for attorney’s fees must be treated as having the same effect as a motion for a new trial, i.e., as delaying the effectiveness of the entry of judgment until the court disposed of the motion on Sept. 16, 2004, resulting in the Oct. 18, 2004 notice of appeal being timely because it was within 30 days of the entry of judgment. HOLDING:Appeal on the merits dismissed, judgment on the attorneys’ fees affirmed. The court found the city’s argument � that the clerk’s entry of a judgment on the verdict on Feb. 2, 2004, was a nullity � to be without merit. Although the court did not perform its duty to promptly approve a separate document judgment, the court found that the clerk had independent authority and a duty to enter the judgment based on the verdict in the civil docket. The city’s second argument was also rejected. When 150 days passed after Feb. 2, 2004, without the filing of a separate document judgment, the judgment prepared and entered by the clerk by law was entered as the judgment of the courts on the merits. Because the city did not file its notice of appeal until Oct. 18, 2004, in excess of 30 days after the entry of the judgment by law on July 2, 2004, the city failed to file a timely notice of appeal. The court found the city’s appeal of the award of attorney’s fees was timely filed. The order awarding attorney’s fees to Burnley was entered on Sept. 16, 2004. The notice of appeal filed on Oct. 18, 2004, falls within the 30-day period of Federal Rules of Appellate Procedure 4(a)(1)(A). The ADA allows recovery of such fees under 42 U.S.C. �12205, which provides that “[i]n any action . . . commenced pursuant to this chapter, the court[,] in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee and costs.” Courts review such awards for abuse of discretion. The city’s appeal failed because its only argument was that Burnley was not entitled to recover on the merits under the ADA and was therefore not entitled to attorney’s fees. The city failed to argue that the district court abused its discretion in awarding attorney’s fees. As a result, the court stated that it was required to affirm the district court’s award. OPINION:Dennis. J.; Davis, Smith and Dennis, J.J.

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