Michael S. McFarland v. Winnebago South Inc. , 119 F. App'x 834 ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 03-4007
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Michael S. McFarland; Donna C. *
McFarland; Roger F. Morgan; *
Cherly Morgan; Norman R. Cates; *
Phillis A. Cates; Wayne E. Laslay; *
Annabell Laslay; Richard A. *
LaPointe; Bonnie L. LaPointe; *
Glen G. Pittman; Opal Pittman; *
G. H. Ricker; Harriett L. Ricker; *
Orson A. Rau; Glenna M. Rau; *
Gary Spears; Carolyn Sue Spears; *
Paul Schafer; Juanita L. Schafer; *
Robert J. Schumacher; Anna E. *
Schumacher; Christ Skiroiotis; *
Sophia Skiroiotis; S. N. Whitcanack; *
Irene P. Whitcanack; Arthur Zago; *
Kathleen Zago, individually and on * Appeal from the United States
behalf of all other purchasers of lots* District Court for the Western
in the Lake Winnebago South * District of Missouri.
Retirement Village Subdivision, *
* [UNPUBLISHED]
Appellees, *
*
v. *
*
Winnebago South, Inc.;Robert V. *
Steinhilber; Johnita F. Steinhilber; *
Jack O. Hart; James E. Thompson, Jr.; *
Grandview Bank & Trust Company; *
The Pleasant Hill Bank; Cass County *
Title Company; AMCA, LTD.; Arnold *
M. Cook Associates, Inc.; Arnold M. *
Cook; Barry A. Cook; Iris B. Cook; *
Philip T. Goldstein; Thomas C. Mason; *
Emmanuel Rubin; David L. Gibson *
Associates, Inc.; David L. Gibson; Lake *
Winnebago Real Estate & Management *
Company, Inc.; Bonnie Hart; Alex *
Flemington; Halsey Rains; Mrs. *
Shirley Williams; Orien Fehrman; *
Bannister Bank; Bank of Lee Summit; *
Mission State Bank & Trust Company; *
Winnebago South Homeowners *
Association, Inc., *
*
Defendants, *
*
Elvin S. Douglas, Jr., *
*
Appellant. *
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Submitted: August 24, 2004
Filed: August 27, 2004
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Before WOLLMAN, McMILLIAN, and RILEY, Circuit Judges.
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PER CURIAM.
This appeal arises out of a class-action lawsuit filed in 1971 by purchasers of
property in the Winnebago South Retirement Village subdivision. Elvin Douglas
(Douglas), attorney for Winnebago South, Inc. (Winnebago), now appeals the district
court’s1 orders (1) denying his motion for payment of attorney’s fees and costs from
1
The Honorable Gary A. Fenner, United States District Judge for the Western
District of Missouri.
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receivership funds, and (2) denying his motion to order Winnebago’s receiver
partially to withhold distribution of Winnebago’s assets pending resolution of
Douglas’s fees-and-costs motion.
Initially, we agree with appellees that Douglas’s appeal from the order
declining to withhold distribution of the sale assets is moot, because the receiver has
already distributed the assets (reserving a fund from which Douglas could be partially
compensated). See Nebraska v. Cent. Interstate Low-Level Radioactive Waste
Compact Comm’n, 187 F.3d 982, 987 (8th Cir. 1999); CMM Cable Rep., Inc. v.
Ocean Coast Props., Inc., 48 F.3d 618, 621 (1st Cir. 1995).
As to the fee issue, the district court held that equity did not favor paying
Douglas’s fees or expenses, because the principals of Winnebago had perpetrated a
fraud and had engaged in obstructive and unreasonable tactics that delayed the
litigation. Appellees note on appeal that the class plaintiffs, without compensating
Douglas, are to receive only 44% of their out-of-pocket costs after more than thirty
years of litigation. In these circumstances, we conclude that the district court did not
abuse its discretion in declining to compensate Douglas from receivership funds. See
Commodity Futures Trading Comm’n v. Morse, 762 F.2d 60, 63 (8th Cir. 1985)
(standard of review; no abuse of discretion in denying payment of attorney’s fees
from receivership estate where funds remaining in estate were not sufficient to pay
all claims of defrauded customers).
Accordingly, we affirm.
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