Browning v. Kramer
| Decision Date | 20 May 1991 |
| Docket Number | No. 89-2720,89-2720 |
| Citation | 931 F.2d 340 |
| Parties | Cecilia BROWNING, Plaintiff, v. Stephen J. KRAMER, M.D., Intervenor-Appellant. and Lauren KRAMER, Appellant, v. TRAVELERS INSURANCE COMPANY, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Mike O'Brien, Houston, Tex., for appellant.
Kimberly R. Colonnetta, Douglas E. Hamel, Vinson & Elkins, Houston, Tex., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before CLARK, Chief Judge, WILLIAMS and DAVIS, Circuit Judges.
This is our second review of the award of attorneys' fees and costs made against Dr. Stephen Kramer and his attorney/wife, Lauren Kramer. The original appeal was remanded so that the district court could identify the statutory basis of its award and make findings of fact in support of its decision. On this appeal, we reverse the award made under 28 U.S.C. Sec. 1927 against Dr. Kramer. We vacate and remand the award made against Ms. Kramer with directions to (1) identify the specific claims made and conduct by Ms. Kramer during the prosecution of this action which multiplied the proceedings in this case unreasonably and vexatiously; (2) calculate the excess costs, expenses and attorneys' fees reasonably incurred because of such conduct; and (3) enter judgment against Ms. Kramer for such amount in accordance with this opinion.
The order of the original panel dated February 28, 1990, set out the facts underlying this dispute. Attorney Lauren Kramer instituted this action in state court on behalf of Cecilia Browning, as next friend for her daughter Catherine Elaine, seeking payment of medical benefits and punitive damages from The Travelers' Insurance Company (The Travelers), the claims administrator for Modulaire Industries' employee welfare benefit plan. Shortly thereafter Ms. Kramer filed a Petition in Intervention as attorney for her husband, Dr. Stephen Kramer, the psychiatrist who treated Catherine Elaine, seeking payment of the same medical benefits and punitive damages. Spring Shadows Glen Hospital (Spring Shadows), the facility where Catherine Elaine was hospitalized, also intervened. Spring Shadows, Browning and Dr. Kramer all claimed benefits in excess of those authorized by the plan, based upon an alleged misrepresentation to Spring Shadows' clerk and Dr. Kramer that the plan had unlimited coverage for mental and nervous disorders.
The Travelers removed the action to federal court. Browning and Dr. Kramer moved to remand, asserting that the district court did not have original federal question jurisdiction. The district court ruled that The Travelers properly removed the case because it presented claims governed by ERISA, and that the state law claims were preempted. Ms. Kramer continued to contest that the claims were preempted by ERISA. Discovery and other pretrial procedures were also extremely contentious, eventually leading to an order by the district court cutting off discovery.
The case was tried to the district court without a jury. At the close of trial, the district court made certain findings of fact orally from the bench in open court with respect to the merits of the case, finding that Dr. Kramer's testimony was unbelievable, and that the plaintiff's and intervenors' case was meritless. The merits of that district court action have not been appealed.
The district judge also dictated findings which referred to counsel's conduct during trial and her prosecution of this litigation. He described Ms. Kramer's behavior during trial this way:
Ms. Kramer, this is a court of law. This is not a group therapy session, this is not a support group, this is not a let's make sure we get some money because we need it. You persisted in leading every witness you examined. Mr. Hamel's forbearance was extraordinary. You persisted in addressing the court while seated, you persisted in testifying yourself from documents not in evidence, you made speeches in response to rulings. Sometimes those might have been the occasion to request a bill of exceptions to include the excluded material in the record. But a lawyer asks to make a bill, a lawyer does not make a speech.
Some of your parties wandered in and out as the proceedings progressed. I didn't call any of them down, I didn't attack you. I did once ask you to please stand. I had the clerk remind you at, I believe, at three or four recesses to do that. All of which was absolutely futile. Your exhibits were confused in every sense of the word confused. And you had a file and you purported to have, it was two, I believe, which was Dr. Kramer's office file. Which I sat here and watched you add and subtract documents to in the process of the litigation. If that was a piece of evidence and the content of that file was a document to be presented it should have been unchanged. And, of course, when I finally got around to looking at it, so that it didn't get all jumbled, there were things in there that you had put in there that had been recently produced were all manner of things in there that had nothing to do with contemporaneous business records of Dr. Kramer's office further eroding the miniscule credibility they had in the first place.
The pre-trial order was incomplete, the witness lists were incomplete, you didn't bother to stand on recess, you insisted on addressing counsel directly, you made snide post-answer remarks during the testimony of Ms. Lawton [witness for The Travelers]. This is not a bus station, it [is] not a cocktail party, we are going to conduct these proceeding in a professional, learned, civil manner. That kind of behavior has attributed to the length of this litigation, to the cost of this litigation. The irony is that unfortunately I don't think there is any way I can tax the costs of the defendant's defense to the parties plaintiff. I am willing to have some post-trial briefing on that.
* * * * * *
But what we have had is these people running up the cost of the benefit plan for a bunch of people, like Ms. Lawton, who show up, do their job capably and move on and are not entitled to be subjected to condescending, snide remarks by counsel who if [she] had done a tenth of the job that M[s]. Lawton did this litigation would have been over at least a year and a half ago if not begun in the first place.
A judgment will be entered that plaintiff and intervenor take nothing from The Travelers and the Modulaire plan.
And if Mr. Hamel [attorney for The Travelers] can bring me briefing on some legal justification for taxing the attorney's fees to the intervenors, I will do it.
The cost of court will be borne by the intervenors. And I think, in fairness, two-thirds to Dr. Kramer and one-third to Spring Shadows Glen. And while Ms. Browning is not blameless in this whole thing, she and Dr. Kramer can share their two-thirds.
Counsel for The Travelers thereafter moved for attorneys' fees and costs incurred in defending this action. It submitted three statutory grounds in support: (1) ERISA, Sec. 502(g)(1), codified at 29 U.S.C. Sec. 1132(g)(1); (2) 28 U.S.C. Sec. 1927; and (3) Rule 11 of the Federal Rules of Civil Procedure.
The district court assessed the total attorneys' fees and costs incurred in all of The Travelers' defense. Its order made no findings of fact, nor did it indicate which statutory basis it chose for the award. Attorneys' fees were assessed against Ms. Kramer and her husband/client jointly and severally in the amount of $34,575.33 plus $2,091.07 in costs. The district court also assessed attorneys' fees against Spring Shadows in the amount of $17,287.67 plus $1,045.53 in costs, which was not appealed. Prior to their first appeal, the Kramers requested specific findings of fact and conclusions of law regarding this fee award. The district court denied their request.
The Kramers appealed from the district court's assessment of The Travelers' costs and attorneys' fees against them. They claimed that the district court did not sufficiently set forth the reasons and facts upon which the award was based, and that the district court abused its discretion in awarding fees. This court determined the record contained insufficient findings to permit review of the propriety of the award of attorneys' fees. We remanded to the district court for additional findings. Our February 28, 1990, mandate referred to Federal Rules of Civil Procedure 52(9) and stated in pertinent part:
[W]e must have more detailed findings than we do in this case in order to review the decision to assess attorney's fees.
* * * * * *
Despite the district court's earlier uncertainty, neither the order awarding attorney's fees and costs nor the final judgment make any reference to the legal basis for the fee award. We are unsure whether the assessment of fees was pursuant to ERISA Sec. 502(g)(1), or 28 U.S.C. Sec. 1927, or whether the assessment of fees against Ms. Kramer was a sanction pursuant to FED.R.CIV.P. 11.
* * * * * *
If the award was pursuant to 28 U.S.C. Sec. 1927, we require more detailed findings to determine whether the requirements of the statute have been met, and which, if any, excess costs, expenses, or attorney's fees were incurred because of Ms. Kramer's vexatious multiplication of the proceedings.
* * * * * *
As we cannot tell from the order or final judgment under which statute or Rule the fees were assessed, we remand for more specific findings so that we might adequately review the district court's decision.
The district judge's response to our remand is helpful in that it specifies 28 U.S.C. Sec. 1927 as the basis for the imposition of fees. However, the district court refused to read our order for what it was--a request for help in understanding enough of his factual and legal reasoning to enable a just, orderly review of the rights of the parties before us. Rather, the district court rebuked us for referring to Rule 52(a) and the purposes underlying that Rule's...
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