Cappel v. Adams
| Decision Date | 09 December 1970 |
| Docket Number | No. 29696 Summary Calendar.,29696 Summary Calendar. |
| Parties | Carl CAPPEL, Ind., etc., et al., Plaintiffs, Johnny Splawn, Appellant, v. William Arnold (Bill) ADAMS et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
John H. Splawn, Jr., pro se; Splawn, Maner & Nelson, Lubbock, Tex., for appellant.
Holvey Williams, El Paso, Tex., for minor-appellees.
Before WISDOM, COLEMAN, and SIMPSON, Circuit Judges.
The controversy here is over contingent attorney fees recoverable from the proceeds of a settlement and judgment in favor of an adult and three minor children. Johnny Splawn, the attorney representing the plaintiffs, appeals from an order of the district court reducing Splawn's fees from one-third to one-fifth for his services in representing the minors. We affirm.
On March 16, 1969, Carl Cappel was injured and his wife killed as a result of carbon monoxide poisoning while staying at an El Paso, Texas, motel. The presence of the gas in their room was traced to a defective vent pipe in a floor furnace. The district judge characterized the case as one "with absolute liability or practically absolute liability."
Cappel and his wife had one child, Carl Andrew Cappel, who was then four years old. Cappel's wife had two other children by a former marriage, Wayne and Brenda Brewer, then ages eight and twelve. All the children lived in the Cappel household in Albuquerque, New Mexico.
On March 28, 1969, Cappel executed a contract employing Splawn to represent him and the children in litigation arising out of his injuries and his wife's death. The attorney was to receive one-third of all monies collected for Cappel and the children whether by settlement or trial.
Splawn filed a diversity suit in the United States District Court for the Western District of Texas against the owners of the El Paso motel. A few months later the parties agreed to settle the lawsuit and presented the settlement agreement for the approval of the district court. Following a hearing, the district court approved the settlement agreement and entered judgment for the plaintiffs. Under the agreement, the defendants paid into the registry of the court $100,000 for distribution by the court. The court then awarded $40,000 to Cappel and $20,000 to each of the three children, subject to Splawn's claims for attorneys' fees. Although the court approved Splawn's recovery of one-third of Cappel's award, it limited his share in the children's awards to one-fifth. Out of the total recovery of $100,000, therefore, Splawn was awarded $25,333.33. Contending that he is contractually entitled to $33,333.33, Splawn appealed from the order of the district court distributing the settlement proceeds.
Splawn properly invoked the equitable jurisdiction of the court to approve the terms of the settlement and decree a proper distribution of the proceeds. The court thus had jurisdiction over both the subject matter and the parties. In a similar wrongful death suit Judge Murrah of the Tenth Circuit has well stated the applicable rule:
where an attorney recovers a fund in a suit under a contract with a client providing that he shall be compensated only out of the fund he creates, the court having jurisdiction of the subject matter of the suit has power to fix the attorney\'s compensation and direct its payment out of the fund.
Garrett v. McRee, 10 Cir. 1953, 201 F.2d 250, 253. See also United States v. Anglin & Stevenson, 10 Cir. 1944, 145 F.2d 622, 624; Swift v. Jackson, 10 Cir. 1930, 37 F.2d 237, 240. The sum determined to be a reasonable attorney's fee is within the discretion of the district court; before a reviewing court should disturb the holding there should be a clear showing that the trial judge abused his discretion. Garrett v. McRee, 10 Cir. 1953, 201 F.2d 250, 254; Monaghan v. Hill, 9 Cir. 1944, 140 F.2d 31, 34. There is no such showing in this case.
Splawn does not dispute the validity of these principles, but contends that they are inapplicable in a case in which the attorney has a valid contract fixing his fee. The action of the district court in these circumstances, Splawn argues, interferes with the right of the attorney and his client to establish the attorney's fee by mutual agreement, "without being restrained by the law." We cannot agree.
Contingent fee contracts have long been commonly accepted in the United States in civil proceedings to enforce claims. Such arrangements have been traditionally justified on the ground that they provide many litigants with the only...
To continue reading
Request your trial
-
Brewer v. SCHOOL BD. OF CITY OF NORFOLK, VIRGINIA
...Williams v. Kimbrough (5th Cir. 1969) 415 F.2d 874, 875, cert. den. 396 U.S. 1061, 90 S. Ct. 753, 24 L.Ed.2d 755; Cappel v. Adams (5th Cir. 1970) 434 F.2d 1278, 1279-1280; Simler v. Conner (10th Cir. 1965) 352 F.2d 138, 140-141, cert. den. 383 U.S. 928, 86 S.Ct. 931, 15 L.Ed.2d 846; Lucerne......
-
In re Suh
...S.Ct. 840, 38 L.Ed.2d 738 (1973); Farmington Dowel Prod. Co. v. Forster Mfg. Co., 421 F.2d 61, 90-91 (1st Cir. 1970); Cappel v. Adams, 434 F.2d 1278, 1280 (5th Cir. 1970). It is also within the inherent equitable powers of a federal court to review the reasonableness of attorneys' fees unde......
-
Glick v. UNITED STATES CIVIL SERVICE COM'N
...Railroad, 692 F.2d 1107, 1110 (7th Cir.1982); Grimes v. Chrysler Motors Corp., 565 F.2d 841 (2d Cir.1977) (per curiam); Cappel v. Adams, 434 F.2d 1278 (5th Cir.1970); Garrett v. McCree, 201 F.2d 250, 253-54 (10th Cir.1953); Moore Bros. Constr. Co. v. City of St. Louis, 159 F.2d 586, 588 (7t......
-
Cooper v. Singer
...United States, 606 F.2d 432, 435-36 (4th Cir.1979); Dunn v. H.K. Porter Co., Inc., 602 F.2d 1105, 1108 (3d Cir.1979); Cappel v. Adams, 434 F.2d 1278, 1280 (5th Cir.1970). See American Trial Lawyers Ass'n v. New Jersey Supreme Court, 66 N.J. 258, 330 A.2d 350 (1974) (courts may promulgate ru......
-
Legislative Policing of Judicial Power
...90 NW2d 724, 727 (1958). Contracts relating to minors are specifically protected by judicial review of the contract. Cappel v. Adams, 434 F.2d 1278 (5th Cir., 1970). Courts have retained rights to review the contract even when the parties had equal bargaining power with the attorney. Jersey......