Walker v. Columbia Broadcasting System, Inc.

• Court: U.S. Court of Appeals — Seventh Circuit
• Writing for the Court: CASTLE, Senior Circuit , and KILEY and PELL, Circuit
• Citation: Walker v. Columbia Broadcasting System, Inc., 443 F.2d 33 (7th Cir. 1971)
• Decision Date: 27 May 1971
• Docket Number: No. 18592.,18592.
• Parties: Edwin A. WALKER, Plaintiff-Appellee, v. COLUMBIA BROADCASTING SYSTEM, INC., Defendant-Appellant.

443 F.2d 33 (1971)

Edwin A. WALKER, Plaintiff-Appellee, v. COLUMBIA BROADCASTING SYSTEM, INC., Defendant-Appellant.

No. 18592.

United States Court of Appeals, Seventh Circuit.

May 27, 1971.

Don H. Reuben, Chicago, Ill., Robert Oxtoby, Springfield, Ill., Lawrence Gunnels, Steven L. Bashwiner, Chicago, Ill., for defendant-appellant; Kirkland, Ellis, Hodson, Chaffetz & Masters, Chicago, Ill., of counsel.

J. F. Schlafly, Alton, Ill., Clyde J. Watts, Oklahoma City, Okl., Schlafly, Godfrey & Fitzgerald, Alton, Ill., for plaintiff-appellee.

Before CASTLE, Senior Circuit Judge, and KILEY and PELL, Circuit Judges.

CASTLE, Senior Circuit Judge.

This is an appeal by Columbia Broadcasting System, Inc. from a judgment order of the District Court awarding attorney fees and out-of-pocket expenses to opposing counsel who successfully defended against an application for writ of mandamus made to this Court in which CBS sought to compel the transfer of a lawsuit to another district.

The underlying main action is a defamation suit filed in the District Court September 11, 1968, by Edwin A. Walker against CBS. CBS filed a motion in the District Court, pursuant to 28 U.S. C.A. § 1404(a),¹ for the transfer of the suit to the Northern District of Illinois, Eastern Division (Chicago, Illinois). After briefing and argument, the motion to transfer was denied by Chief District Judge Omer Poos. CBS then filed an original petition for writ of mandamus in this Court, naming Judge Poos as respondent, to compel the transfer. This Court issued a rule to show cause ordering Judge Poos to file a response. The attorneys who represent Edwin A. Walker, the plaintiff in the defamation action, entered their appearances in this Court for Judge Poos and prepared the response filed in his behalf. This Court on consideration of the petition for writ of mandamus and the response so filed found that CBS had failed to show that the action of the respondent, Judge Poos, in the premises constituted a clear abuse of discretion, and denied the petition. CBS filed a petition for certiorari in the Supreme Court of the United States to review this Court's denial of mandamus. Walker's attorneys filed a brief in opposition thereto on behalf of Judge Poos. The petition for certiorari was denied by the Supreme Court on March 2, 1970.

On April 16, 1970, a petition for allowance of counsel fees was filed in the District Court defamation action by attorneys Schlafly, Godfrey & Fitzgerald. The petition sets forth, inter alia, that Judge Poos "asked the petitioners to represent him and to act as his counsel" in the matter of CBS' mandamus action in this Court and the petition for certiorari in the Supreme Court; describes the nature of the legal services performed and relates the result achieved; avers that petitioners expended the sum of $261.00 in connection therewith; alleges that petitioners "should be compensated by the Defendant CBS"; and prays for an award of $5000.00 for attorney fees and $261.00 for out-of-pocket expenses.

CBS filed a motion to strike the petition on the grounds that it was without foundation in law and submitted a memorandum in support of its motion. Subsequently, CBS stipulated that the $5000 in fees claimed are reasonable but denied that petitioners were entitled to the allowance of any fees. A formal hearing on the petition and motion was waived and the matter was submitted to the court on briefs.

The District Court allowed the petition and entered a judgment order that the petitioners recover the $5261.00 claimed from CBS. This appeal by CBS followed.

It has been recognized that where the purpose of a mandamus proceeding is to secure what is in effect an interlocutory review of the intrinsic merits of a judicial act — such as the denial of a transfer requested under § 1404(a) — as distinguished from a complaint against a judge's conduct which is extrinsic to the merits of a decision, the judge, although named as respondent, is merely a nominal party. The real parties in interest are the litigants in the underlying action. Rapp v. Van Dusen, 3 Cir., 350 F. 2d 806, 812-813. And, in this respect, provision is made in Rule 21(b) of the Federal Rules of Appellate Procedure that where the court of appeals orders the filing of an answer to a petition for writ of mandamus:

"* * * The order shall be served by the clerk on the judge or judges named respondents and on all other parties to the action in the trial court.

All parties below other than the petitioner shall also be deemed respondents for all purposes. * * * If the judge or judges named respondents do not desire to appear in the proceeding, they may so advise the clerk and all parties by letter, but the petition shall not thereby be taken as admitted. * * *"

Thus, if recognition be given to substance, over the merely formal and technical niceties inherent in mandamus procedure, it is apparent that the attorneys for Walker, although appearing in the mandamus proceeding on behalf of Judge Poos, the named respondent, at his request, were actually representing the interest of their client, Walker, the plaintiff in the underlying defamation suit, in sustaining the District Court's denial of CBS' motion to transfer. And, by virtue of Rule 21(b) Walker was also a party respondent to the mandamus proceeding for all purposes. The mandamus proceeding seeking, in effect, a review of the intrinsic merits of Judge Poos' action was in reality an adversary proceeding between the parties to the underlying defamation suit, the plaintiff Walker and the defendant CBS.

That Judge Poos chose to appear in the proceeding and requested Walker's attorney to represent him does not in our judgment supply any basis for the allowance of attorneys' fees and out-of-pocket expenses against CBS than would otherwise exist.

The foregoing preliminary observations serve to bring into sharper focus what we conceive to be the main contested issue presented on this appeal. That is whether a party who unsuccessfully prosecutes a mandamus proceeding to compel the transfer of a suit to another district, after denial of a § 1404(a) motion for such transfer by the district court, may be adjudged liable to pay the reasonable counsel fees of the opposing attorneys.²

The fundamental rule both in the federal and state courts is that ordinarily the attorneys' fees of another party are not chargeable against a litigant unless a particular statute or an agreement between the parties so provides. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717-718, 87 S.Ct. 1404, 18 L.Ed.2d 475; In re Joslyn, 7 Cir., 224 F.2d 223, 225; Smoot v. Fox, 6 Cir., 353 F.2d 830; Ritter v. Ritter, 381 Ill. 549, 553, 46 N.E.2d 41; Child v. Lincoln Enterprises, Inc., 51 Ill.App.2d 76, 83, 200 N.E.2d 751.

In Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, p. 717, 87 S.Ct. 1404, p. 1406 the Court, after referring to the contrary practice in the courts of England, stated:

"Although some American commentators have urged adoption of the English practice in this country, our courts have generally resisted any movement in that direction. The rule here has long been that attorney\'s fees are not ordinarily recoverable in the absence of a statute or enforceable contract providing therefor."

The Court noted, however, (386 U.S. at pp. 718-719, 87 S.Ct. at p. 1407) that there are "limited exceptions" to the American rule. These may be delineated as:

(a) In appropriate circumstances, an admiralty plaintiff may be awarded counsel fees as an item of compensatory damages (not as a separate cost to be taxed). Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88.

(b) In a civil contempt action occasioned by willful disobedience of a court order an award of attorney\'s fees may be authorized as a part of the fine to be levied on the defendant. Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 43 S.Ct. 458, 67 L. Ed. 719.

(c) Cases where the plaintiff traced or created a common fund for the benefit of others as well as himself. Central Railroad & Banking Co. v. Pettus, 113 U.S. 116, 5 S.Ct. 387, 28 L.Ed. 915; Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157.

(d) A variation of the common-fund situation where, although the plaintiff had not in a technical sense sued for the benefit of others or to create a common fund, the stare decisis effect of the judgment obtained by the plaintiff established as a matter of law the right of a discernible class of persons to collect upon similar claims. Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184.

All of the above exceptions involve situations where the Court deemed "overriding considerations of justice" to compel such a result.

The continued vitality of the general rule referred to in Fleischmann, supra, was affirmed by Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593, in which the Supreme Court recognized an additional exception thereto after first stating (396 U.S. at pp. 391-392, 90 S.Ct. at p. 625):

"While the general American rule is that attorneys\' fees are not ordinarily recoverable as costs, both the courts and Congress have developed exceptions to this rule for situations in which overriding considerations indicate the need for such a recovery."

In Mills two shareholders of a corporation sued both derivatively and as representatives of minority shareholders to have the corporation's merger into another corporation set aside because of a misleading proxy statement circulated by the corporation's management in the solicitation of shareholders' votes in favor of the merger. The petitioners were successful in obtaining an interlocutory judgment on the issue of liability, which the Supreme Court found was properly awarded. And, in this posture of the matter, ...