IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 96-20721 (Summary Calendar)
JAN SCHNEIDER,
Plaintiff-Appellant/ Cross-Appellee,
versus
PERLEY-ROBERTSON, PANET, HILL & MCDOUGALL, A PARTNERSHIP; A. DELOTBINIERE PANET; DAVID H. HILL; THOMAS A. MCDOUGALL; TREVOR C. KLOTZ; RAY SIMSER; PAUL B. KANE; GRANT A JAMESON; PAUL G. BREGMAN; ROGER B. TUCKER; MICHAEL A GERRIOR; MARY F. OMEROD; ANNE L. MCTAVISH; RICHARD A. WAGNER; D. JOHN NACCARATO; HUGH BLAKENEY; DAVID MIGICOVSKY; JOHN W. DICKIE; ANNETTE J. NICHOLSON; ANTHONY P. MCGLYNN; KATHERYN L. SHADBOLT; BARBARA J. NICHOLS; R. AARON RUBINOFF; MARGARET I. THOMAS; RIMGATE HOLDINGS LTD; IAN A. MCDOUGALL,
Defendants-Appellees/ Cross-Appellants.
Appeal from the United States District Court for the Southern District of Texas (CA H-94-2892)
April 9, 1997 Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
The litigation of which this appeal is the sole remaining
shard has involved numerous law firms and untold lawyers throughout
many of the several states and Canada. The original parties
litigant and the issues that provoked the substantive litigation in
the first place have faded into the mist of history, as has the
first round of subsequent litigation and wrangling over division of
the attorneys’ fees earned in that original, substantive
litigation. Unseemly as it is, all that is now before us ——
wasting judicial resources, expending assets of attorneys who now
are clients of other attorneys, and presenting a sorry spectacle of
the entire profession —— is the question whether the district court
that most recently touched this matter committed reversible error
in awarding attorneys’ fees to Plaintiff-Appellant Jan Schneider
(“Schneider”) incurred in recovering her attorneys’ fees from the
original litigation; and, more importantly, whether the court erred
reversibly in the methodology employed (more accurately, not
employed) in determining the dollar amount awarded. Mercifully,
both Schneider and Defendants-Appellees (“Perley-Robertson, et
al.”) have finally agreed on two points: first, that oral argument
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4.
2 is not needed to assist us in deciding this appeal; and, second,
that we should remand this matter to the district court, given its
failure to comply with the methodology mandated by this court’s
jurisprudence, principally Johnson v. Georgia Highway Express,
Inc.,1 and its progeny. We agree on both counts.
I
A.
First, we dismiss as meritless and legally frivolous the
cross-appeal of Perley-Robertson, et al.
Second, we affirm the portion of the order of the district
court appealed from —— its Order of June 26, 1996 —— which
concludes that Schneider “should be awarded reasonable and
necessary legal fees and costs.”
Third, we reverse and remand the portion of the order appealed
from that specifies the quantum of the legal fees and costs awarded
to Schneider. Regrettably, there is nothing in that all-too-brief
order —— or elsewhere —— to indicate what the district court may
have considered in arriving at its lump sum award of $50,000. Not
only are we unable to correlate that sum with anything in the
record, the court’s ruling is bereft of any information that might
give us a clue as to how it arrived at that amount.2
B.
1 488 F.2d 714 (5th Cir. 1974) (en banc). 2 This Order is not accompanied or preceded by an opinion of the court.
3 Generally, for us to hold that the district court has abused
its discretion there must be some indication that the court has
endeavored to exercise its discretion. In this instance, the court
has favored us with no indicia that such an effort was made.
Fortunately, though, when it comes to fixing the quantum of
reasonable attorneys’ fees, Johnson teaches that failure of the
district court to consider its factors constitutes an abuse of
discretion.3 Our general practice when, as here, we encounter an
award of attorneys’ fees and costs that has been granted by the
district court without following the methodology required by the
clear jurisprudence of this court, is to remand that issue to the
district court with instructions to follow that methodology and
explicate that exercise in sufficient detail for us to review it on
appeal. We have, on those rare occasions when the record on appeal
was sufficient to permit us to address the appropriate factors and
calculate reasonable fees and costs ourselves, determined the
amounts of such fees and costs, and rendered rather than remanded.
When we have done so it has been in the interest of preserving
judicial resources, avoiding costs to the litigants, and preventing
additional waste of time. Although the record on appeal now before
us is sufficient for us to perform the exercise required by our own
decisions and calculate the appropriate fee at this level, we
choose instead to follow our customary practice and remand only the
3 Johnson v. Georgia Highway Express, 488 F.2d at 719-20.
4 issue of quantum to the district court so that it will have the
first opportunity to apply the appropriate procedure and determine
the appropriate amount.
II
On remand, the district court should follow our mandated
methodology —— of which Schneider’s appellate brief constitutes an
excellent road map that the court would do well to follow —— and
(1) calculate truly reasonable legal fees and costs; (2) explicate
in detail the steps taken and reasoning followed in applying that
methodology to the relevant facts; and (3) award the amount thus
calculated to Schneider. As we reject out of hand the arguments
made by Perley-Robertson, et al., in their briefs on appeal, we
suggest that the district court would be better served to do the
same, lest confusion or obfuscation result. In this regard we
observe that Perley-Robertson, et al., elected not to controvert
the detailed data submitted by Schneider in support of the quantum
of the reasonable fees and costs that she seeks to recover. As
such, Perley-Robertson, et al., have irrevocably forfeited their
right to do so. Consequently, on remand the district court shall
treat such submissions by Schneider as uncontradicted.
Also in keeping with our usual practice, we instruct the
district court to calculate and award additional reasonable
attorneys’ fees and costs to Schneider to compensate her for those
5 incurred in connection with this appeal and those to be incurred in
connection with the forthcoming proceedings in the district court
on remand; and to employ the same methodology in so doing.
Schneider shall file with the district court appropriate
documentation to support awards of such additional fees and costs.
C.
Finally, we caution Perley-Robertson, et al, that, in light of
our view that their filings and arguments in this appeal are
unmeritorious and legally frivolous (except for their agreement
that remand is required), they shall risk incurring sanctions from
this court if, following the district court’s determination, on
remand, of the appropriate quantum of Schneider’s reasonable and
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 96-20721 (Summary Calendar)
JAN SCHNEIDER,
Plaintiff-Appellant/ Cross-Appellee,
versus
PERLEY-ROBERTSON, PANET, HILL & MCDOUGALL, A PARTNERSHIP; A. DELOTBINIERE PANET; DAVID H. HILL; THOMAS A. MCDOUGALL; TREVOR C. KLOTZ; RAY SIMSER; PAUL B. KANE; GRANT A JAMESON; PAUL G. BREGMAN; ROGER B. TUCKER; MICHAEL A GERRIOR; MARY F. OMEROD; ANNE L. MCTAVISH; RICHARD A. WAGNER; D. JOHN NACCARATO; HUGH BLAKENEY; DAVID MIGICOVSKY; JOHN W. DICKIE; ANNETTE J. NICHOLSON; ANTHONY P. MCGLYNN; KATHERYN L. SHADBOLT; BARBARA J. NICHOLS; R. AARON RUBINOFF; MARGARET I. THOMAS; RIMGATE HOLDINGS LTD; IAN A. MCDOUGALL,
Defendants-Appellees/ Cross-Appellants.
Appeal from the United States District Court for the Southern District of Texas (CA H-94-2892)
April 9, 1997 Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges.
PER CURIAM:*
The litigation of which this appeal is the sole remaining
shard has involved numerous law firms and untold lawyers throughout
many of the several states and Canada. The original parties
litigant and the issues that provoked the substantive litigation in
the first place have faded into the mist of history, as has the
first round of subsequent litigation and wrangling over division of
the attorneys’ fees earned in that original, substantive
litigation. Unseemly as it is, all that is now before us ——
wasting judicial resources, expending assets of attorneys who now
are clients of other attorneys, and presenting a sorry spectacle of
the entire profession —— is the question whether the district court
that most recently touched this matter committed reversible error
in awarding attorneys’ fees to Plaintiff-Appellant Jan Schneider
(“Schneider”) incurred in recovering her attorneys’ fees from the
original litigation; and, more importantly, whether the court erred
reversibly in the methodology employed (more accurately, not
employed) in determining the dollar amount awarded. Mercifully,
both Schneider and Defendants-Appellees (“Perley-Robertson, et
al.”) have finally agreed on two points: first, that oral argument
* Pursuant to Local Rule 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 Local Rule 47.5.4.
2 is not needed to assist us in deciding this appeal; and, second,
that we should remand this matter to the district court, given its
failure to comply with the methodology mandated by this court’s
jurisprudence, principally Johnson v. Georgia Highway Express,
Inc.,1 and its progeny. We agree on both counts.
I
A.
First, we dismiss as meritless and legally frivolous the
cross-appeal of Perley-Robertson, et al.
Second, we affirm the portion of the order of the district
court appealed from —— its Order of June 26, 1996 —— which
concludes that Schneider “should be awarded reasonable and
necessary legal fees and costs.”
Third, we reverse and remand the portion of the order appealed
from that specifies the quantum of the legal fees and costs awarded
to Schneider. Regrettably, there is nothing in that all-too-brief
order —— or elsewhere —— to indicate what the district court may
have considered in arriving at its lump sum award of $50,000. Not
only are we unable to correlate that sum with anything in the
record, the court’s ruling is bereft of any information that might
give us a clue as to how it arrived at that amount.2
B.
1 488 F.2d 714 (5th Cir. 1974) (en banc). 2 This Order is not accompanied or preceded by an opinion of the court.
3 Generally, for us to hold that the district court has abused
its discretion there must be some indication that the court has
endeavored to exercise its discretion. In this instance, the court
has favored us with no indicia that such an effort was made.
Fortunately, though, when it comes to fixing the quantum of
reasonable attorneys’ fees, Johnson teaches that failure of the
district court to consider its factors constitutes an abuse of
discretion.3 Our general practice when, as here, we encounter an
award of attorneys’ fees and costs that has been granted by the
district court without following the methodology required by the
clear jurisprudence of this court, is to remand that issue to the
district court with instructions to follow that methodology and
explicate that exercise in sufficient detail for us to review it on
appeal. We have, on those rare occasions when the record on appeal
was sufficient to permit us to address the appropriate factors and
calculate reasonable fees and costs ourselves, determined the
amounts of such fees and costs, and rendered rather than remanded.
When we have done so it has been in the interest of preserving
judicial resources, avoiding costs to the litigants, and preventing
additional waste of time. Although the record on appeal now before
us is sufficient for us to perform the exercise required by our own
decisions and calculate the appropriate fee at this level, we
choose instead to follow our customary practice and remand only the
3 Johnson v. Georgia Highway Express, 488 F.2d at 719-20.
4 issue of quantum to the district court so that it will have the
first opportunity to apply the appropriate procedure and determine
the appropriate amount.
II
On remand, the district court should follow our mandated
methodology —— of which Schneider’s appellate brief constitutes an
excellent road map that the court would do well to follow —— and
(1) calculate truly reasonable legal fees and costs; (2) explicate
in detail the steps taken and reasoning followed in applying that
methodology to the relevant facts; and (3) award the amount thus
calculated to Schneider. As we reject out of hand the arguments
made by Perley-Robertson, et al., in their briefs on appeal, we
suggest that the district court would be better served to do the
same, lest confusion or obfuscation result. In this regard we
observe that Perley-Robertson, et al., elected not to controvert
the detailed data submitted by Schneider in support of the quantum
of the reasonable fees and costs that she seeks to recover. As
such, Perley-Robertson, et al., have irrevocably forfeited their
right to do so. Consequently, on remand the district court shall
treat such submissions by Schneider as uncontradicted.
Also in keeping with our usual practice, we instruct the
district court to calculate and award additional reasonable
attorneys’ fees and costs to Schneider to compensate her for those
5 incurred in connection with this appeal and those to be incurred in
connection with the forthcoming proceedings in the district court
on remand; and to employ the same methodology in so doing.
Schneider shall file with the district court appropriate
documentation to support awards of such additional fees and costs.
C.
Finally, we caution Perley-Robertson, et al, that, in light of
our view that their filings and arguments in this appeal are
unmeritorious and legally frivolous (except for their agreement
that remand is required), they shall risk incurring sanctions from
this court if, following the district court’s determination, on
remand, of the appropriate quantum of Schneider’s reasonable and
necessary legal fees and costs, Perley-Robertson, et al., should
take any action or file any pleadings or other writings that we
might deem to be frivolous, dilatory, vindicatory, or contumacious.
III
For the foregoing reasons, Perley-Robertson, et al.’s cross
appeal is dismissed; the Order of the district court is affirmed in
part, to the extent that it holds Schneider is entitled to
reasonable attorneys’ fees and costs; the Order of the district
court is reversed in part, as to the amount of its award, and the
issue of the quantum of fees and costs to be awarded is remanded
with instructions; and the court is instructed to calculate and
award additional attorneys’ fees and costs incurred by Schneider in
this appeal and in the proceedings on remand in that court.
6 AFFIRMED in part; REVERSED and REMANDED in part, with instructions; Cross-Appeal DISMISSED.