Patrick Turner v. Murphy Oil Usa, Inc., Et

442 F. App'x 117

• Court: Court of Appeals for the Fifth Circuit
• Decided: September 21, 2011
• Docket: 10-30231
• Status: Unpublished

Opinion

PER CURIAM: *

The appellants, Daniel and Robert Bec-nel, are plaintiffs’ counsel for several dozen plaintiffs (out of approximately 2,500 in total) in the underlying consolidated litigation. The Becnels appeal the district court’s apportionment of attorneys’ fees among the plaintiffs’ attorneys. They argue that the district court abused its discretion by failing to consider the factors prescribed in Johnson v. Georgia Highway Express, 488 F.2d 714, 717-19 (5th Cir.1974). See In re Air Crash Disaster at Fla. Everglades on Dec. 29, 1972, 549 F.2d 1006, 1021 (5th Cir.1977) (holding that a district court presiding over a non-class, consolidated lawsuit must consider the Johnson factors when exercising its inherent equitable power to apportion attorneys’ fees from a fund created by the litigation).

At oral argument, however, the Becnels conceded that we do not have jurisdiction over this appeal. We agree. Under the fee-apportionment plan approved by the district court, the Becnels’ right to collect attorneys’ fees was contingent on the settlement of their clients’ claims in the underlying litigation. At the time of the filing of the notice of appeal, none of the Becnels’ clients’ claims had been formally settled, and the district court had not entered a final judgment covering any of those claims. Accordingly, the notice of appeal was premature. See Dardar v. Lafourche Realty Co., 849 F.2d 955, 957 (5th Cir.1988) (“Denials and awards of attorney’s fees may be appealed separately as final orders after a final determination of liability on the merits.” (emphasis added)); Shipes v. Trinity Indus., Inc., 888 F.2d 339, 342 (5th Cir.1989) (holding that to be eligible for interlocutory appeal under the Cohen collateral-order doctrine, an interina attorney-fee order must, inter alia, “resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” (citation omitted)).

Accordingly, IT IS ORDERED that the appeal is DISMISSED. IT IS FURTHER ORDERED that the motion of ap-pellee Sidney Donecio Torres, III to dismiss is DENIED AS MOOT, the motion of appellee Sidney Donecio Torres, III for costs is DENIED AS MOOT, and the motion of appellee Sidney Donecio Torres, III for the award of attorneys’ fees is DENIED.

* 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.