West v. HK Ferguson Company

• Decision Date: 31 August 1967
• Docket Number: No. 8790.,8790.
• Citation: 382 F.2d 630
• Parties: Roehm A. WEST, Appellant, v. The H. K. FERGUSON COMPANY, a Corporation, and Macco Corporation, a Corporation, a Joint Venture and Callery Chemical Company, Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

382 F.2d 630 (1967)

Roehm A. WEST, Appellant, v. The H. K. FERGUSON COMPANY, a Corporation, and Macco Corporation, a Corporation, a Joint Venture and Callery Chemical Company, Appellees.

No. 8790.

United States Court of Appeals Tenth Circuit.

August 31, 1967.

Jim A. Rinehart, El Reno, Okl. (Roehm A. West, Tulsa, Okl., Attorney, pro se, on the brief), for appellant.

John L. Kilcullen, Washington, D. C. (McNutt, Dudley & Easterwood, Washington, D. C., on the brief), for appellees.

Before PHILLIPS, LEWIS and HILL, Circuit Judges.

HILL, Circuit Judge.

The appeal is from an order fixing and determining an attorney fee after the filing of the statutory lien notice in the litigation wherein such fee is claimed on a quantum meruit basis. After an evidentiary hearing the trial judge made adequate and complete findings of fact and, as we view the case, the only substantial question here concerns the sufficiency of the evidence to support those findings. Appellant is the attorney, who seeks a fee higher than that allowed in the trial court and appellee is the litigant from whom the fee is sought.

The facts surrounding the employment of appellant by appellee are in dispute and we will not unnecessarily prolong this opinion by detailing the factual contentions of the parties. The trial judge's findings of fact are crucial and those we will summarize in pertinent part.

In November, 1958, appellees, Ferguson and Macco Corporations, having recently completed their part of a large government construction contract, as subcontractors, employed the Washington law firm of McNutt, Dudley and Easterwood to investigate the possibility of filing a claim or suit against the prime contractor on the government project and the Department of the Navy, the claim arising from their participation in the performance of such completed government contract. The McNutt firm was also under employment at this time by the Ferguson Macco Companies to defend them in a suit pending in the Eastern District of Oklahoma and had been authorized to procure local counsel to assist in the defense of the case. Appellant was employed as such local counsel on a per diem basis of $20.00 per hour. During the course of this litigation he submitted periodic statements for services and expenses and was fully paid therefor by Ferguson in the amount of $10,735.00.¹ During this representation the McNutt firm discussed the filing of a complaint in the present litigation with West, who did thereafter prepare a proposed complaint. Subsequently, he submitted a statement to Ferguson in the amount of $2,540.00 for services in preparing the complaint, which amount was paid. Before this complaint was filed in court, appellee determined that it would proceed in the Court of Claims and through the Congress in its attempt to recover its losses on the subcontract. These efforts eventually failed and in February, 1964, the McNutt firm asked appellant to again work on the 1960 form of complaint, which was then put into final form and this present litigation was commenced and "this action then became the active work and problem of McNutt, Dudley and Easterwood of Washington, and Roehm West, of Oklahoma."

In early December, 1965, through the efforts of the McNutt firm, "and not Roehm West," the litigation was settled by an agreement between the parties, whereby appellee was paid the sum of $424,000.00. On December 20, 1965, appellant filed his lien notice claiming a balance due for his legal services in the case in the amount of $52,500.00.

The trial court concluded "That Ferguson-Macco were the clients of McNutt, Dudley & Easterwood, of Washington, D. C. That Roehm West was the local Oklahoma counsel under McNutt, Dudley & Easterwood. That West had no independent contract of employment * * *; that West was an attorney in this case on the basis of hourly work done and performed or on a per diem basis." The court further expressly found "that under all of the circumstances, a reasonable fee of $35 per hour is fair, just and proper, or a total of $15,260, less $5,500 heretofore paid, leaving a balance due of $9,760."

In seeking a reversal appellant urges eight points of error by the trial court. We do not propose to consider these points separately because, as we stated at the outset, we deem the findings of the court to be crucial. If we can conclude that such findings are supported by substantial, competent evidence we cannot set them aside and the case must be affirmed.

We have no doubt about the competency and integrity of the members of the bar involved in this factual controversy. It is just an unfortunate situation of a misunderstanding between them about appellant's attorney fee. Such attorney fee apparently was never frankly and fully discussed by them or between appellant and officers of the Ferguson Company. There is one outstanding...