Branning v. United States

7 Cl. Ct. 777, 1985 U.S. Claims LEXIS 993
CourtUnited States Court of Claims
DecidedApril 19, 1985
DocketNo. 400-76
StatusPublished
Cited by9 cases

This text of 7 Cl. Ct. 777 (Branning v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Branning v. United States, 7 Cl. Ct. 777, 1985 U.S. Claims LEXIS 993 (cc 1985).

Opinion

ORDER FOR ENTRY OF JUDGMENT

WHITE, Senior Judge.

The issue of liability in this rather ancient “taking” case was decided in favor of the parties plaintiff by this court’s predecessor, the United States Court of Claims, on July 1, 1981 (228 Ct.Cl. 240, 654 F.2d 88). The issue of damages was decided by this court on November 19, 1984 (6 Cl.Ct. 618). In order to dispose of the case finally at the trial level, it is now necessary to pass upon claims submitted by the plaintiff 1 and by a third-party plaintiff, Morgan Guaranty Trust Company of New York [779]*779(Morgan),2 for reimbursement of expenses, including attorneys’ fees, allegedly incurred in the conduct of the litigation.

The pending claims were submitted under 42 U.S.C. § 4654(c) (1982), which provides in pertinent part as follows:

The court rendering a judgment for the plaintiff in a proceeding brought under section * * * 1491 of Title 28, awarding compensation for the taking of property by a Federal agency, * * * shall determine an award or allow to such plaintiff, as a part of such judgment * *, such sum as will in the opinion of the court * * * reimburse such plaintiff for his reasonable costs, disbursements, and expenses, including reasonable attorney * * * fees, actually incurred because of such proceeding.

Morgan and the defendant have filed a stipulation stating that Morgan is entitled to receive a total of $300,000 as reimbursement for litigation expenses, including attorneys’ fees, reasonably incurred in the conduct of the litigation. This stipulation is accepted by the court.

The plaintiff and the defendant are in agreement, and have stipulated, that the plaintiff is entitled to receive a total of $195,000 as reimbursement for litigation expenses, other than attorneys’ fees, reasonably incurred by the plaintiff in the conduct of the damages phase of the litigation. This stipulation is also accepted by the court.

Thus, there remains for determination the plaintiff’s claim for reimbursement with respect to: (1) litigation expenses, including attorneys’ fees, incurred during the liability phase of the case; and (2) attorneys’ fees incurred during the damages aspect of the litigation. It was agreed by counsel for the plaintiff and for the defendant at a conference held on March 11, 1985, that these matters might be determined by the court on the basis of written submissions by the parties to the court, as supplemented by comments made by counsel at the March 11 conference.

In this connection, one complicating factor is that the plaintiff engaged three different law firms to handle the case during different periods of the litigation: (1) Barn-well & Stevenson, of Charleston, South Carolina; (2) Dowling, Sanders, Dukes, Novit & Svalina, P.A., now Dowling, Sanders, Dukes, Svalina, Ruth & Williams, P.A. (the Dowling firm), of Beaufort, South Carolina, and Hilton Head Island, South Carolina; and (3) Williams & Connolly, of Washington, D.C.

There is nothing in the record to show what the plaintiff’s agreement was with Barnwell & Stevenson, except for an indication that the firm took the case on some sort of contingent-fee basis. The Dowling firm and Williams & Connolly also handled the case during their respective periods under contingent-fee arrangements with the plaintiff; and it appears that the plaintiff agreed to pay each of these firms one-third of whatever amount might ultimately be recovered from the Government. It has been estimated that the ultimate recovery will amount to a figure somewhat in excess of $4,000,000.

Of course, the defendant’s obligation to the plaintiff in the matter of reimbursement for attorneys’ fees is not to be measured by the terms of the various contingent-fee agreements made by the plaintiff with different law firms. On the contrary, the defendant is required to reimburse the plaintiff only for what the court determines to be “reasonable attorney * * fees” incurred by the plaintiff in the prosecution of its claim. Any additional financial burden to the plaintiff resulting from private arrangements between the plaintiff and counsel must be borne by the plaintiff.

Barnwell & Stevenson

The plaintiff initially engaged the law firm of Barnwell & Stevenson to represent it in litigating the plaintiff’s taking claim [780]*780against the United States. The plaintiff now seeks reimbursement in the amount of $23,780, purportedly representing fees for professional legal services rendered by Barnwell & Stevenson in the early stages of the litigation. The $23,780 figure is said to be calculated on the basis of 68 courtroom hours at the rate of $125 per hour and 193 other hours at the rate of $80 per hour. (The total would seem to be $23,-940.)

Nothing of an evidentiary nature was submitted by the plaintiff in support of this aspect of its claim, with the exception of an unsigned, unsworn document typed on Barnwell & Stevenson stationery, listing many dates and indicating various events as having occurred on the several dates. The vast majority of these notations merely relate to the receipt of papers pertaining to the litigation, or to the forwarding of such papers to other persons. There are references, however, to a couple of conferences with Cloide C. Branning before the petition was filed, to library research on two separate dates, to a conference with attorneys for Morgan and a conference with a representative of the plaintiff and members of the Dowling firm on the same date, and to work having been done over a 2-day period in connection with the drafting of the petition (now complaint), with related research. There are also notations concerning a couple of telephone conferences on different days after the complaint was filed, and to attendance at the trial on liability for 3 days.

The unsigned statement does not show what personnel of Barnwell & Stevenson took part in any of the activities previously outlined, or how much time was devoted by the personnel to such activities, or what role personnel of Barnwell & Stevenson played at the trial on liability, inasmuch as the Dowling firm, before that trial, had assumed the responsibility for representing the plaintiff in the litigation. Moreover, 3 days of attendance at the trial on liability would not account for the 68 courtroom hours, at $125 per hour, included in the Barnwell & Stevenson portion of the plaintiff’s claim.

On the basis of the plaintiff’s presentation, the court is not justified in holding that the plaintiff is entitled to receive $23,-780 (or any other specific amount) as reimbursement for a litigation expense actually incurred by the plaintiff in the form of reasonable attorneys’ fees while the plaintiff was represented by the Barnwell & Stevenson firm. Accordingly, this item of the plaintiff’s claim must be rejected.

Dowling, Sanders, Dukes, Svalina, Ruth & Williams, P.A.

The Dowling firm actually became involved in the case before the complaint was filed on July 1, 1976. Subsequently, not later than March 2, 1978, the Dowling firm assumed the responsibility for the conduct of the litigation on behalf of the plaintiff.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Swisher v. United States
262 F. Supp. 2d 1203 (D. Kansas, 2003)
Osprey Pacific Corp. v. United States
42 Fed. Cl. 740 (Federal Claims, 1999)
Shelden v. United States
41 Fed. Cl. 347 (Federal Claims, 1998)
Paul v. United States
21 Cl. Ct. 415 (Court of Claims, 1990)
Cloverport Sand & Gravel Co. v. United States
10 Cl. Ct. 121 (Court of Claims, 1986)
Branning v. United States
784 F.2d 361 (Federal Circuit, 1986)
Florida Rock Industries, Inc. v. United States
9 Cl. Ct. 285 (Court of Claims, 1985)

Cite This Page — Counsel Stack

Bluebook (online)
7 Cl. Ct. 777, 1985 U.S. Claims LEXIS 993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/branning-v-united-states-cc-1985.