Fullmer v. Harper
| Decision Date | 10 June 1975 |
| Docket Number | No. 75-1162,75-1162 |
| Citation | 517 F.2d 20 |
| Parties | 89 L.R.R.M. (BNA) 2317, 76 Lab.Cas. P 10,862 Alvin W. FULLMER et al., Plaintiffs-Appellees, v. George HARPER, Individually and as President, et al., Defendants-Appellants. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Walter C. Brauer III and Mark N. Simons, Denver, Colo. (John J. Gibbons, Denver, Colo., on the brief), for defendants-appellants.
Barrie G. Sullivan II, Denver, Colo. (William E. Myrick and Myrick & Newton, Denver, Colo., on the brief), for plaintiffs-appellees.
Before BREITENSTEIN, McWILLIAMS and DOYLE, Circuit Judges.
Fullmer, and others, brought an action in the United States District Court for the District of Colorado against Harper, and others, under the Labor Management Reporting and Disclosure Act of 1959, seeking injunctive relief and money damages. Fullmer and the other plaintiffs are members of Teamsters Construction Workers Local Union No. 13. The defendants are officers of Local No. 13, and are sued individually and in their official capacities as officers of Local No. 13.
The defendants filed an answer joining issue with the several allegations in the complaint. The defendants then filed a verified motion to disqualify one of Fullmer's attorneys, a Mr. William Myrick, on the grounds that Mr. Myrick had a conflict of interest because of a prior attorney-client relationship existing between himself and the defendant, Harper, which relationship pertained to the general subject matter out of which the present controversy had arisen. This motion to disqualify came on for hearing before the trial court, at which time, after colloquy between court and counsel, in which counsel made some "offers of proof," the motion was denied. Harper then filed a notice of appeal directed to this order of the trial court.
At the outset there is some suggestion that an order of a trial court denying a motion to disqualify counsel is a non-appealable interlocutory order and not a final decision within the meaning of 28 U.S.C. § 1291. Our study of the matter convinces us that the order of the trial court in the instant case is a final decision within the meaning of § 1291. See Draganescu v. First National Bank of Hollywood, 502 F.2d 550 (5th Cir. 1974); Silver Chrysler Plymouth, Inc. v. Chrysler Motors Corp., 496 F.2d 800 (2d Cir. 1974); United States v. Hankish, 462 F.2d 316 (4th Cir. 1972); Yablonski v. United Mine Workers of America, 147 U.S.App.D.C. 193, 454 F.2d 1036 (1971); Uniweld Products, Inc. v. Union Carbide Corporation, 385 F.2d 992 (5th Cir. 1967); and Tomlinson v. Florida Iron and Metal Inc., 291 F.2d 333 (5th Cir. 1961). For a contrary view, see Cord v. Smith, 338 F.2d 516 (9th Cir. 1964), where the court nonetheless treated the notice of appeal as a petition for a writ. For background on the general subject, see Cohen v. Beneficial Loan Corp.,337 U.S. 541, 69...
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