                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                  F I L E D
                   UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                     June 16, 2003

                                                             Charles R. Fulbruge III
                        _______________________                      Clerk

                              No. 02-20853
                            Summary Calendar
                        _______________________


TEXAS SOIL RECYCLING, INC; ET AL,

                                                             Plaintiffs,

BOBBY E. SELTZ; JOE R. CALVERT; LISA G. CALVERT,

                                              Plaintiffs - Appellants

                                 versus

INTERCARGO INSURANCE COMPANY,

                                                   Defendant - Appellee.


_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                     Civil Docket #H-98-CV-278
_________________________________________________________________


Before JONES, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:*

          In    1998,   the   appellants   filed    an   action    against

Intercargo Insurance Company.      Intercargo filed a counterclaim,

alleging that   the appellants breached an indemnity contract.           The

indemnity contract provides for reimbursement of attorneys’ fees in


     *
      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this opinion should not be published and is not precedent except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.
any suit on the agreement.      On March 28, 2000, the district court

granted Intercargo summary judgment on its indemnity contract

counterclaim and awarded Intercargo $86,563.95 in damages and

$45,635.25 in attorneys’ fees.

           On April 7, 2000, the appellants filed a notice of

appeal.   On May 8, 2000, about five weeks after the district court

entered   judgment,      Intercargo   filed   an    untimely    motion    for

clarification    and     attorneys’   fees.        See   F.R.C.P.   54(d)(2)

(requiring motions for attorneys’ fees to be filed within 14 days

after entry of judgment).          Intercargo requested $79,517.19 in

additional attorneys’ fees for the work its counsel performed

between the time it filed its motion for summary judgment and the

court entered its final summary judgment order. The district court

denied Intercargo’s motion because the case was on appeal before

this court.

           This court affirmed the district court’s grant of summary

judgment in favor of Intercargo and recognized Intercargo’s right

to proceed under Rule 60(a) in the district court.              In December

2001, Intercargo filed a motion to supplement its prior motion to

clarify; Intercargo requested $26,146.72 in attorneys’ fees to

cover the appeal in addition to the relief previously requested.

The   district   court   granted   Intercargo’s     motion,    revising   its

previous order to award Intercargo $86,563.95 in damages and

$151,299.16 in attorneys’ fees.

           The appellants argue that the district court erred in

                                      2
granting Intercargo’s motion.    We disagree in part.   Under Rule

6(b)(2), the district court properly allowed Intercargo to file its

motion outside the 14-day time limit because Intercargo’s failure

to act was due to “excusable neglect.”     Through no fault of its

own, Intercargo did not receive notice of the district court’s

final judgment.2 When it discovered the error, Intercargo promptly

contacted the district court and filed its motion within a few

days.3

           Moreover, insofar as Intercargo’s motion sought to gain

fees incurred before the trial court’s entry of judgment, the court

properly corrected an error “arising from oversight” under Rule

60(a).4   Rule 60(a) allows the district court to modify a judgment

     2
      Prior to the entry of judgment, the district court clerk
erroneously terminated Intercargo from the case when the court
dismissed an intervenor’s claims. Intercargo therefore did not
receive notice of the district court’s final summary judgment until
it received a copy of the appellants’ transcript order on April 26,
2000.
     3
      The appellants’ reliance on In re Morrow, 502 F.2d 520 (5th
Cir. 1974), to argue that failure on the part of a court’s clerk to
notify a party of the entry of judgment, without more, does not
permit the court to expand the time for a party under Rule 6(b) is
misplaced. Morrow’s holding applies only to the time for a party
to appeal and is controlled by Rule 77(d), which provides that
“lack of notice of the entry by the clerk does not affect the time
to appeal or relieve or authorize the court to relieve a party for
failure to appeal within the time allowed, except as permitted in
Rule 4(a) of the Federal Rules of Appellate Procedure.”
     4
      Rule 60(a) provides:

     Clerical Mistakes. Clerical mistakes in judgments, orders
     or other parts of the record and errors therein arising
     from oversight or omission may be corrected by the court
     at any time of its own initiative or on the motion of any

                                 3
to reflect the actual intention of the court.               United States v.

Kellogg, 12 F.3d 497, 504 (5th Cir. 1994).       Here, the district court

intended to award Intercargo attorneys’ fees; the absence of the

additional attorneys’ fees in the final judgment was due to an

oversight by the court. The additional attorneys’ fees included in

the modified judgment do not affect the substantive rights of the

parties.    Id.    The evidence supporting the additional award of

attorneys’ fees is identical in form to the evidence supporting the

first award of attorneys’ fees and is sufficient to support the

modified award.

            On the other hand, Intercargo’s request for attorneys’

fees   generated   by   the   appeal   is   untimely   in    two   ways.     No

prospective request for such fees was included in Intercargo’s

initial fee motions in the district court, and Intercargo failed to

request such fees during the first appeal.             The district court

abused   its   discretion     in   awarding   appellate     attorneys’     fees

pursuant to Rule 60(a).

            For the foregoing reasons, the district court judgment is

affirmed, as modified to eliminate the request for attorneys’ fees

incurred on appeal by Intercargo.

            AFFIRMED as MODIFIED.



       party and after such notice, if any, as the court orders.
       During the pendency of an appeal, such mistakes may be so
       corrected before the appeal is docketed in the appellate
       court, and thereafter while the appeal is pending may be
       so corrected with leave of the appellate court.

                                       4
5
