Home/Fifth Circuit/Dennis J. LEWIS, Plaintiff-Appellant, v. BROWN & ROOT, INC., Defendant-Appellee

Dennis J. LEWIS, Plaintiff-Appellant, v. BROWN & ROOT, INC., Defendant-Appellee

722 F.2d 209, 38 Fed. R. Serv. 2d 587, 1984 U.S. App. LEXIS 26595, 33 Empl. Prac. Dec. (CCH) 34,051, 33 Fair Empl. Prac. Cas. (BNA) 1112
CourtCourt of Appeals for the Fifth Circuit
DecidedJanuary 9, 1984
Docket82-2217
StatusPublished
Cited by22 cases

This text of 722 F.2d 209 (Dennis J. LEWIS, Plaintiff-Appellant, v. BROWN & ROOT, INC., Defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dennis J. LEWIS, Plaintiff-Appellant, v. BROWN & ROOT, INC., Defendant-Appellee, 722 F.2d 209, 38 Fed. R. Serv. 2d 587, 1984 U.S. App. LEXIS 26595, 33 Empl. Prac. Dec. (CCH) 34,051, 33 Fair Empl. Prac. Cas. (BNA) 1112 (5th Cir. 1984).

Opinions

[210]*210OPINION SUA SPONTE

Before GEE, GARZA and TATE, Circuit Judges.

PER CURIAM:

Despite the absence of a petition for rehearing addressed to our earlier opinion reported at 711 F.2d 1287, we have withheld our mandate because of a concern that we have developed, sua sponte, regarding a portion of the award of attorney’s fees against plaintiff’s counsel. We now VACATE that award and remand to the trial court for further proceedings as to it and other matters.

Our concern regarding the award against counsel arises from the circumstance that the district court awarded the total amount of defendant’s attorney’s fees against plaintiff’s counsel but that its order doing so recites merely that plaintiff’s counsel “should have advised Plaintiff not to proceed to trial....” It then observes that “[i]n following this course, attorney for Plaintiff unreasonably and vexatiously multiplied these proceedings. 28 U.S.C. § 1927 (Supp.1982).” (emphasis added). The order is thus, despite omitted intervening terminology, subject to the construction that it was only on proceeding to actual trial that counsel acted unreasonably and vexatiously. If so, an award against him of fees in the entire proceeding would not be appropriate. On remand, the trial court should reconsider this award, either reducing it proportionately or entering findings that support it.

Defendant has now moved for an award of attorney’s fees on appeal and double costs. As we conclude that the appeal was in great part frivolous, unreasonable and without foundation and that, in view of the record, it largely' constituted an unreasonable and vexatious multiplication of the proceedings in the case, we GRANT the motion and REMAND for a determination by the trial court and award of a reasonable attorney’s fee on appeal. Double costs on appeal are GRANTED defendant. Both fee and costs shall, however, be reduced by one-third, and the remaining two-thirds awarded.

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Dennis J. LEWIS, Plaintiff-Appellant, v. BROWN & ROOT, INC., Defendant-Appellee
722 F.2d 209 (Fifth Circuit, 1984)

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722 F.2d 209, 38 Fed. R. Serv. 2d 587, 1984 U.S. App. LEXIS 26595, 33 Empl. Prac. Dec. (CCH) 34,051, 33 Fair Empl. Prac. Cas. (BNA) 1112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-j-lewis-plaintiff-appellant-v-brown-root-inc-ca5-1984.