Guardian Ad Litem v. Logistics Partners Inc. ( 2007 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 12, 2007
No. 06-20873 Charles R. Fulbruge III
(Summary Calendar) Clerk
GUARDIAN AD LITEM, also known as KIM BALLEW
Plaintiff–Appellee
v.
LOGISTICS PARTNERS INC; ET AL
Defendants
U LAWRENCE BOZE
Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:97-CV-2894
Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Appellant U. Lawrence Bozé appeals the district court’s denial of his
Motion to Sever Orders for Attorney’s Fees Disgorgement. Appellant argues
that this Court has jurisdiction over this appeal under the collateral order
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 06-20873
doctrine. Because we find that the collateral order doctrine does not apply, we
dismiss Appellant’s appeal for want of appellate jurisdiction.
I. BACKGROUND
This case arises out of a series of chemical fires occurring at a chemical
warehouse located near Pleasantville, Texas. Thousands of plaintiffs emerged
and brought causes of action for various personal injuries and property damage.
The underlying case resulted from the consolidation of these claims. Appellant
Bozé and the firm of Gary, Williams, Parenti, Finney, Lewis, McManus,Watson
& Sperando (the “Gary Law Firm”)1 are the attorneys for the Pleasantville
Plaintiffs, including 565 minor Plaintiffs. The district court appointed Appellee
Kim A. Ballew to serve as Guardian Ad Litem for all minor Plaintiffs.
All Plaintiffs ultimately reached a settlement with the Defendants. The
district court, however, has yet to enter a final judgment approving all issues
relating to the settlements of the minor Plaintiffs.
On January 28, 2003, the district court held a hearing regarding, in part,
the amounts of attorney’s fees and costs that were to be paid from the
Pleasantville minor Plaintiffs’ settlement proceeds. Despite seeking substantial
fees in excess of $1,000,000, the district court entered an order awarding
Appellant and the Gary Law Firm a nominal amount of attorney’s fees for their
representation of the minors. Appellant and the Gary Law Firm appealed this
order–along with the denial of their motion for reconsideration and several other
orders disbursing funds from the Pleasantville minor Plaintiffs’ settlement
proceeds–to this Court,2 which found want of appellate jurisdiction because the
orders appealed from were “interlocutory and unappealable rulings.”
1
The Gary Law Firm is not a party to this appeal.
2
These orders that were the subject of the first appeal to this Court are referred to
collectively as the “2003 orders.”
2
No. 06-20873
Pleasantville Civic League of Houston, Tex. v. Guardian Ad Litem, 86 Fed. Appx.
743 (5th Cir. 2004).
Thereafter, on February 13, 2006, Appellant filed its Motion to Sever
Orders for Attorney’s Fees Disgorgement with the district court, seeking to make
the orders concerning attorney’s fees disgorgement final, appealable judgments.
On February 24, 2006, the district court denied this motion. Appellant now
appeals the denial of its motion, two 2006 orders disbursing funds, and all the
2003 orders that Appellant previously appealed to this Court.
II. DISCUSSION
Appellant concedes that the orders appealed from are not final, but
contends that appellate jurisdiction is proper pursuant to the collateral order
doctrine, which allows “appeals from orders other than final judgments when
they have a final and irreparable effect on the rights of the parties.” Cohen v.
Beneficial Indus. Loan Corp., 337 U.S. 541, 545 (1949). To come within the
collateral order exception, an order must satisfy three conditions: (1) it must
“conclusively determine the disputed question”; (2) it must “resolve an important
issue completely separate from the merits of the action”; and (3) it must “be
effectively unreviewable on appeal from a final judgment.” In re Lieb, 915 F.2d
180, 184 (5th Cir. 1990) (internal quotations omitted). Appealable collateral
orders are limited to a “small class which finally determine claims of right
separable from, and collateral to, rights asserted in the action, too important to
be denied review and too independent of the cause itself to require that appellate
consideration be deferred until the whole case is adjudicated.” Cohen, 337 U.S.
at 546. Only serious and unsettled questions come within the collateral order
doctrine. Baldridge v. SBC Commc’ns, Inc., 404 F.3d 930, 931 (5th Cir. 2005).
With respect to the order denying Appellant’s motion for severance, this
Court has found that “the collateral order doctrine does not apply to an
interlocutory order denying severance of claims or separate trials.” Aime v. City
3
No. 06-20873
of Jennings, 217 Fed. Appx. 338, 339 (5th Cir. 2007); see also In re Lieb, 915 F.2d
at 185 (finding that severance orders are analogous to orders under Federal Rule
of Civil Procedure 42(b), which are “interlocutory and non-appealable before final
judgment”). Appellant does not adequately explain how denial of a motion for
severance constitutes “an important issue” or why it is “effectively unreviewable
on appeal from a final judgment.”3 In re Lieb, 915 F.2d at 184 (internal
quotations omitted).
With respect to the 2003 orders, this Court has already determined that
these orders are “interlocutory and unappealable rulings.” Pleasantville Civic
League of Houston, Tex. v. Guardian Ad Litem, 86 Fed. Appx. 743 (5th Cir.
2004). We will not re-examine this determination. See Fuhrman v. Dretke, 442
F.3d 893, 896 (5th Cir. 2006) (“The law of the case doctrine provides that an
issue of law or fact decided on appeal may not be reexamined . . . by the
appellate court on a subsequent appeal.”) (internal quotations omitted).
With respect to the two 2006 orders disbursing funds, Appellant has
wholly failed to explain how these orders come within the collateral order
doctrine. Furthermore, these 2006 orders authorize the same types of
disbursements as many of the 2003 orders that this Court previously found
unappealable prior to a final judgment.
3
In its brief, Appellant summarily states that “[i]f the Appellant is not allowed to
presently appeal the order denying severance, there quite possibly will be no funds left in the
registry of the district court with which to pay the Appellant if and when a final judgment is
entered and if it is subsequently found that the Appellant is entitled to his attorney’s fees.”
Such a conclusory statement is insufficient, however, because Appellant must both “allege[]
and prove[]” that the fees would be “unrecoverable” if appeal must await a final judgment. See
Shipes v. Trinity Indus., Inc., 883 F.2d 339, 344 (5th Cir. 1989). It is undisputed that funds
are being held in a qualified settlement fund escrow account, and such funds cannot be
disbursed from that account without court order. Even if the district court does disburse all
such funds before a final judgment, Appellant offers no evidence that any funds, if paid, would
be unrecoverable from the payees.
4
No. 06-20873
Thus, none of the interlocutory orders Appellant seeks to appeal fall within
the collateral order doctrine. Accordingly, these orders are unappealable at this
time.
This is the second time Appellant has improperly attempted to appeal
interlocutory orders. Counsel for Appellant is cautioned against filing further
interlocutory appeals regarding the disgorgement of Appellant’s attorney’s fees
and warned that such further filing may result in sanctions. This Court will
consider Appellant’s contentions on appeal from a final judgment–but not before
then.
DISMISSED for want of jurisdiction; SANCTIONS WARNING ISSUED.
5