Lowe v. Pate Stevedoring Co.
| Decision Date | 17 May 1979 |
| Docket Number | No. 78-3451,78-3451 |
| Citation | 595 F.2d 256 |
| Parties | 101 L.R.R.M. (BNA) 2357, 86 Lab.Cas. P 11,344 John H. LOWE, Plaintiff-Appellee, v. PATE STEVEDORING COMPANY et al., Defendants-Appellees, Simson Unterberger, Appellant. Summary Calendar. * |
| Court | U.S. Court of Appeals — Fifth Circuit |
Simson Unterberger, pro se.
John H. Lowe, pro se.
Robert A. Fraser, Tampa, Fla., for defendants-appellees.
Appeal from the United States District Court for the Middle District of Florida.
Before AINSWORTH, GODBOLD and VANCE, Circuit Judges.
In this unfair representation case Lowe was awarded a judgment of $25,500 damages apportioned between his employer and his union. Pursuant thereto the defendants paid into court $25,500 plus interest, an aggregate sum of $29,526.54. Lowe moved for an attorney's fee based upon the union's bad faith representation. The district judge considered the 45% Contingent fee contract between Lowe and his attorney, Unterberger, and awarded a fee, assessed against the union, of.$13,081.50, which is 45% Of the sum paid into court under the judgment. Unterberger asked the court to attach an attorney's lien to the extent of 45% Of the $29,526.54 and 45% Of the.$13,081.50. The court granted the lien with respect to the former and denied it as to the latter. Unterberger appeals.
First, we conclude that we have jurisdiction of the matter. Equitable aspects of the case are still pending in the district court relating to plaintiff's prayer for reinstatement. Under the circumstances of this case we think the decision awarding an attorney's fee and refusing to award the additional amount claimed by Unterberger is a collateral order within the purview of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). See also Preston v. U. S., 284 F.2d 514, 515 n. 1 (CA9, 1960), and Swanson v. American Consumer Industries, Inc., 517 F.2d 555, 560 (CA7, 1975).
Unterberger points out that the contingent fee contract provided for payment to him of 45% Of any sum "recovered by suit," and insists that the district court was required to apply literally and mechanically the contract provision unless it found that the contract was excessive or overreaching.
We agree with the district court. Had the contract specifically called for a fee on a fee, the court would have been faced with issues of its supervisory powers over contingent fee contracts and whether the compensation called for was excessive. But the contract applied to any sum "recovered by suit," and the court, under the circumstances and in its discretion, considered this to be implemented by Lowe's receiving the full enjoyment of his recovery for damages and Unterberger's receiving a 45% Fee thereon.
Farmington Dowel Products Co. v. Forster Mfg. Co., 421 F.2d 61 (CA1, 1970), an antitrust case, does not support Unterberger's position. There the contract called for one-third of trebled damages plus all of any amount awarded as a reasonable attorney's fee. Because of the one-third of damages provision the district court declined to award an attorney's fee against the defendant. The First Circuit honored the one-third of damages provision, and directed the...
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Boeing Company v. Van Gemert, 78-1327
...allowed the defendant to appeal the merits of the dispute prior to the actual determination of those fees. In Lowe v. Pate Stevedoring Co., 595 F.2d 256, 257 (CA5 1979), the plaintiff had prevailed on the merits of an unfair-representation suit against his union. The District Court granted ......
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Dardar v. Lafourche Realty Co., Inc.
...185 (1st Cir.1959); Seigal v. Merrick, 619 F.2d 160 (2d Cir.1980); Cheng v. GAF Corp., 713 F.2d 886 (2nd Cir.1983); Lowe v. Pate Stevedoring Co., 595 F.2d 256 (5th Cir.1979); Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131 (6th Cir.1980); Swanson v. American Consumer Industries, Inc., 517 F......
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Cheng v. GAF Corp.
...the collateral order doctrine. Cohen v. Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Lowe v. Pate Stevedoring Co., 595 F.2d 256, 257 (5 Cir.1979). Indeed, an early case permitting appeal from an order awarding fees before conclusion of the underlying litigation ......
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Albunio v. City of N.Y.
...for purposes of determining the contingency fee, and counsel is generally entitled to the greater of the two. In Lowe v. Pate Stevedoring Co., 595 F.2d 256 (5th Cir.1979), the attorney sought a 45% lien on both the damage award and the statutory fee pursuant to a retainer agreement providin......