UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HARTFORD FIRE INSURANCE COMPANY,
Plaintiff-Appellant,

v.
                                                                  No. 95-1291
CARTERET COUNTY, NORTH CAROLINA;
BIVENS ARCHITECTURAL GROUP, P.A.;
CARL S. BIVENS,
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Greenville.
Malcolm J. Howard, District Judge.
(CA-94-19-4-H)

Argued: May 7, 1996

Decided: June 13, 1996

Before HALL, WILKINS, and LUTTIG, Circuit Judges.

_________________________________________________________________

Dismissed by unpublished per curiam opinion.

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COUNSEL

ARGUED: Clyde Hamilton Jarrett, III, OGLETREE, DEAKINS,
NASH, SMOAK & STEWART, L.L.P., Raleigh, North Carolina, for
Appellant. Donald R. Teeter, POYNER & SPRUILL, L.L.P., Raleigh,
North Carolina; Joseph C. Moore, III, YOUNG, MOORE, HENDER-
SON & ALVIS, P.A., Raleigh, North Carolina, for Appellees. ON
BRIEF: L. Franklin Elmore, OGLETREE, DEAKINS, NASH,
SMOAK & STEWART, L.L.P., Greenville, South Carolina, for
Appellant. Eric P. Stevens, POYNER & SPRUILL, L.L.P., Raleigh,
North Carolina; Brian E. Clemmons, YOUNG, MOORE, HENDER-
SON & ALVIS, P.A., Raleigh, North Carolina; Stephen M. Valentine,
County of Carteret Attorney, Beaufort, North Carolina, for Appellees.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Hartford Fire Insurance Company brought this action against Car-
teret County, North Carolina, Carl S. Bivens, and Bivens Architec-
tural Group, P.A., seeking a declaration of its obligations under a
surety bond securing Leader Construction Company's performance of
a contract with the County to construct a jail. It also sought a declara-
tion that Bivens performed negligently as the architect for the project
when certifying the percentage of completion. Hartford now appeals
the decision of the district court declining to exercise its authority to
entertain Hartford's declaratory judgment action. See 28 U.S.C.A.
§ 2201(a) (West 1994). Because subsequent to the ruling of the dis-
trict court Hartford received all of the relief to which it would be enti-
tled if we were to rule in its favor, we conclude that Hartford is
seeking merely an advisory opinion. We, therefore, dismiss this
appeal.

I.

Hartford filed this action in federal district court, basing jurisdic-
tion on diversity of citizenship. Defendants moved to dismiss, assert-
ing that the district court should decline to entertain Hartford's
declaratory judgment action. Exercising its "unique and substantial
discretion" in this matter, see Wilton v. Seven Falls Co., 115 S. Ct.
2137, 2142 (1995), the district court dismissed Hartford's action, cit-

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ing unsettled issues of state law in which the County possessed a sig-
nificant interest in obtaining a state-court decision, e.g., whether the
County was immune from suit. Hartford appealed.

Thereafter, while the appeal was pending, the County filed an
action against Hartford in state court arising out of the same dispute.
Since complete diversity of citizenship existed, Hartford removed the
action to federal court and filed a counterclaim against the County. In
addition, Hartford filed a third-party complaint against Bivens. At this
juncture, that action is ongoing, the district court having denied the
County's motion for remand.

II.

"`The exercise of judicial power under Art. III of the Constitution
depends on the existence of a case or controversy,' and `a federal
court [lacks] the power to render advisory opinions.'" United States
Nat'l Bank of Or. v. Independent Ins. Agents of Am., Inc., 508 U.S.
439, 446 (1993) (alteration in original) (quoting Preiser v. Newkirk,
422 U.S. 395, 401 (1975)). At oral argument, Hartford agreed that if
we were to accept its argument that the district court improperly dis-
missed its declaratory judgment action, it would receive only the
opportunity to proceed to have the district court address the merits of
its claim, i.e., declare its obligations under the surety bond and deter-
mine whether Bivens was negligent. However, because the action
filed by the County currently is proceeding in the district court, Hart-
ford already enjoys the ability to present these issues to the district
court for resolution in the ongoing action.

Recognizing its dilemma, Hartford candidly admitted during oral
argument that its position vis-a-vis this litigation will not be affected
by our decision, but that it seeks to obtain a ruling to establish prece-
dent that it is appropriate for the district court to consider declaratory
judgment actions under these circumstances. We are not, however,
authorized to provide Hartford with an advisory opinion, and accord-
ingly we dismiss this appeal.

DISMISSED

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