Petition — Richardson v. Communications Workers of America
Supreme Court brief1976
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IN THE i
Supreme Court of the United Stared’
nee Ru ’
October Term, 1975 a a
No. MD -16 7 ]
DALE C. RICHARDSON,
Petitioner,
vs.
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
AND
LOCAL 7495,
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
EDWARD F. FOGARTY
DAN J. WHITESIDE
700 Service Life Building
1339 Navarro Place
Orange, California 92669 Omaha, Nebraska 68102
714 - 997-5236 402 - 341-333
REX H. REED
EDITH D. HAKOLA
8316 Arlington Blvd., Suite 600
Fairfax, Virginia 22030
703 - 573-7010
Attorneys for Dale C. Richardson
See Se
DearrStandefer, 326% Main St., Huntington Beach, Ca. 92648 - 714 - 536-7161
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TOPICAL INDEX
Dale C. Richardson petitions for
ED oa Wie ae UN oe CO ees ove ews owe
Questions Presented for Review ..............
Statutory Provisions Involved ................
ee a eed bee aks
ree Perry Eee roe
I The Court of Appeals erred by refusing to
require computation of the attorney fee
in accordance with requisite standards, by
refusing to review the amount of the award,
by holding that expenses were recoverable
only by challenge to the clerk’s taxing of
costs, and by approving the award of third
trial costs against the petitioner ..........
ee eS ee ees os eb ee 6
1. Failure to show fee computation
was an abuse of discretion ......
2. The fee award must represent the
reasonable value of the services
ES? ee a eee
3. Recovery of compensatory dam-
ages and payment of a contingent
fee from the award does not justify
awarding a fee smaller than the
reasonable value of the attorney’s
Pt aAbsekisacdebewansaeeee
a a cae
12
15
17
ii | iii
TOPICAL INDEX | TABLE OF AUTHORITIES CITED
Argument I (cont'd) Page Cases
BOD GUMRO GD oc cccccccccctece 18 Alcorn v. Anbro Engineering, Inc.,
| 2 Cal. 3d 493, 86 Cal. Rptr. 88,
1. Denial of expense award ........ 18 | er re ee
C. The award of costs against petitioner .. 22 Bankers Life & Casualty Company v. Kirtley,
307 F.2d 418 (8th Cir. 1962) ............
I! The Court of Appeals erred by approving
a jury instruction that acts of members Brewer v. Uniroyal, Inc., 498 F.2d 973
did not bind the unions without author- SG [65640 68us se eeueceese<
are 24
Cinerama, Inc. v. Sweet Music, S.A.,
III The District Court abused its discretion 482 F.2d 66 (2d Cir. 1973) ..............
in ordering a new trial, and the Court of
Appeals erred as to the permissible scope 7 City of Detroit v. Grinnell Corporation,
of review on such an order .............. 31 495 F.2d 448 (2d Cir. 1974) ............
A. New trial versus limited new trial Collum v. Butler, 288 F. Supp. 918
EES Ss SRE ee ae 31 (N.D. Ill. 1968), affirmed 421 F.2d
| eo rrr Te ss
B. The District Court misconstrued
the nature of damages flowing Dagnello v. Long Island Railroad Company,
from deliberately induced mental 289 F.2d 797 (2d Cir. 1961) ..........--.
DY. weutaceseneeetdeneeuekoa 35
DeArroyo v. Sindicato de Trabajadores Packing,
C. Scope of appellate review of new AFL-CIO, 425 F.2d 281 (ist Cir. 1970) ....
Re - o-eOWieweaek wheer tes ccs 37
De Lima v. Trinidad Corporation,
DE, 9 vsscastncece ll stekauussiecuws 41 302 F.2d 585 (2d Cir. 1962) ............
Doe v. Poelker, 515 F.2d 541 (8th Cir. 1975),
527 F.2d 605 (8th Cir. 1976) ............
Ellis v. Flying Tiger Corp., 504 F.2d 1004
CS Seer re Sree Tre
. Emden v. Vitz, 88 Cal. App. 2d 313,
fe ft ft: | rer rrr
Cees ew 3 a
iv
TABLE OF AUTHORITIES CITED
Cases (cont'd) Page
Estien v. Christian, 507 F.2d 61
i Sie a OS 14
Evans v. Sheraton Park Hotel,
Sas F268 177 CB. Cle. 19746) iw ccc cece 14
Fairley v. Patterson, 493 F.2d 598
nC ee es cc be oeebeea 20
Fireman’s Fund Insurance Co. v. Aalco
Wrecking Co., Inc., 466 F.2d 179
RE 38, 39, 40
Gorsalitz v. Olin Mathieson Chemical Corp.,
429 F.2d 1033 (Sth Cir. 1970) .......... 40
Green v. Transitron Electric Co., .
Oe 15
Grunin v. International House of Pancakes,
513 F.2d 114 (8th Cir. 1975) ............ 13
Johnson v. Georgia Highway Express, Inc.,
488 F.2d 714 (Sth Cir. 1974) ........ 12 13, 14,18
Kerr v. Screen Extras Guild, Inc.,
526 F.2d 67 (9th Cir. 1975) ............ 13, 20
Kiser v. Huge, 517 F.2d 1237(D.C +. 1974)... 20
Lewis v. Benedict Coal Corporation,
259 F.2d 346 (6th Cir. 1958) ............ 28
Lewis v. Pennington, 400 F.2d 806
I see 23, 24
Lind v. Schenley Industries, Inc., 278 F.2d
79 (3rd Cir. 1960), cert. denied 364 U.S.
DPR WAGER GRK Sos sees oceses cee 39, 40
Re MN Re Se an Te
Ae ee ee ® tiem
ee ee ae eee ne eee ae
v
TABLE OF AUTHORITIES CITED
Cases (cont'd)
Lindy Bros. Builders v. American R. & R.
San. Corp., 487 F.2d 161 (3rd Cir. 1973)
Manning v. Altec, Inc., 488 F.2d 127
vee ele ee tei Weds eee ude
McClure v. Born Chemical, 292 F.2d 824
(3rd Cir. 1961)
Mercer v. Perez, 68 Cal. 2d 104 ..............
Merola v. Atlantic Richfield Company,
493 F.2d 292 (3rd Cir. 1974) ............
Miller v. Mackey International, Inc.,
515 F.2d 241 (Sth Cir. 1975) ............
Minneapolis & Sault Ste. Marie Ry. v. Moquin,
ee ere eeseunenes
Monroe v. Board of Commissioners of
City of Jackson, Tennessee, 505 F.2d
ee
National Treasury Employees Union v. Nixon,
§21 F.2d 317 (D.C. Cir. 1975)
NMS Industries, Inc. v. Premium Corp. of
America, Inc., 451 F.2d 542 (Sth Cir. 1971) .
Northern Pacific Railway v. Herman,
478 F.2d 1167 (9th Cir. 1973) ..........
Perry v. Bertsch, 441 F.2d 939 (8th Cir. 1971) ...
Plough v. Baltimore & O. R. Co., 172 F.2d 396
(2d Cir. 1949), cert. denied 337 U.S. 940
vi
TABLE OF AUTHORITIES CITED
Cases (cont'd) Page
Riverton Coal Co. v. United Mine Workers of
America, 453 F.2d 1035 (6th Cir. 1972) .... 33
Rosenfeld v. Southern Pacific Co.,
$19 F.2d 527 (9th Cir. 1975) ............ 18, 23
Singer v. Mahoning County Board of Mental
Retardation, 519 F.2d 748 (6th Cir. 1975) .. 16
Solomon Dehydrating Co. v. Guyton,
294 F.2d 439 (8th Cir. 1961) ............ 38, 39, 40
Sprague v. Ticonic National Bank,
ee 19, 20
State Rubbish Collector’s Association v.
Siliznoff, 38 Cal. 2d 330, 240 P.2d 282
EE ices GE oka dak Beek en koe ccs 36
Swanson v. American Consumer Industries. Inc.,
517 F.2d 555 (7th Cir. 1975) ............ 13, 14, 21
Taylor v. Washington Terminal Co.,
409 F.2d 145 (D.C. Cir. 1969) .......... 39, 40
Tillman v. Wheaton-Haven Recreation Assn., Inc.,
517 F.2d 1141 (4th Cir. 1975) .......... 15, 23
United Mine Workers v. Gibbs, 383 U.S. 715 (1966) 27
United States Steel Corp. v. United Mine Workers
of America, 519 F.2d 1249 (Sth Cir. 1975) .. 28
United Steelworkers of America v. Butler
Manufacturing Co., 439 F.2d 1110
RS. aed SOIC A 11
ee -
Ae ey at ene
vii
TABLE OF AUTHORITIES CITED
Cases (cont'd)
Vanoni v. Western Airlines, 247 Cal. App. 2d
793, 56 Cal. Rptr. 115 (1967) ...........-
Vaughan v. Atkinson, 369 U.S. 527 (1962) ......
Vicksburg & Meridian Railroad Co. v. O’Brien,
119 U.S. 99 (1886) ......... caoueee sous
Vulcan Materials Co. v. United Steelworkers of
America, 430 F.2d 446 (Sth Cir. 1970)
Wagner Electric Corp. v. Local 1104,
Int'l. Union of Electrical, Radio and
Machine Workers, 496 F.2d 954 (8th Cir.
DEE éceeveatsdeeusuaeees vets daees
Waters v. Wisconsin Steel Works of International
Harvester Co., 502 F.2d 1309 (7th Cir. 1974)
Wilderness Society v. Morton, 495 F.2d 1026
GDL. Cie. DPA) occ cccccccsccceceses
Williams v. Nichols, 266 F.2d 389
(4th Cir. 1959)
Williams v. Steuart Motor Co.,
494 F.2d 1074 (D.C. Cir. 1974) ..........
Statutes (United States)
2B UBC. 6 LBSAIA) 2. ccc cccsccccccccecceces
WB UBC. BIGSH|) .. 2c cccccccccccccccecess
29 U.S.C. § 106
29 U.S.C. § 185 (Taft Hartley $301) .......-.-.
eeeeeveeoeeeeweseeveeeeeeseeeeeeee *
eoeeseeveeeeeenrteeeereeteete @
28, 33
28, 33
27
3, 4, 5, 22, 24, 25, 26, 27, 28
TABLE OF AUTHORITIES CITED
Federal Rule
ET Se ee
Text
McCormic on Damages, § 19 ai 80-81 (1935)
6 Moore’s Federal Practice, 54.77[9] ..........
6A Moore’s Federal Practice, 59.08[6] ,
pp. 59-170, 171 (2d Ed. 1974) _ ..........
New Trial Orders; The Erosion of Code of
Civil Procedure Section 657, 9 Santa
ST CPU cc eceecccces es
Prosser, Law of Torts (4th Ed. 1971),
Fr Re ee
Reid’s Branson Instructions to Juries, Vol. I,
ee FS
Vol. I, 1974 Cum. Supp. sec. 138, p. 75
Restatement of the Law of Torts 2d,
CE ESS a ee
ABA Code of Professional Responsibility,
Ethical Consideration 2-18, Disciplinary
ET Chet ebeeeu tubnde 6cus 06 59 00
22
37
35
12
IN THE
SUPREME COURT OF THE UNITED STATES
October Term, 1975
i ae
DALE C. RICHARDSON,
Petitioner,
VS.
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
AND
LOCAL 7495,
COMMUNICATIONS WORKERS OF AMERICA, AFL-CIO,
Respondents.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
ee eee
ve | 5
| CITATIONS TO OPINIONS BELOW
;
:
: The February 13, 1576 opinion of the Eighth Circuit
Court of Appeals, not yet reported, is printed in Appendix
“A” hereto (Al)'. The unreported memorandum decision
of June 12, 1975, on the plaintiff's application for attorney
fees, and the order thereon by the United States District
Court for the District of Nebraska, is printed in Appendix
Dale C. Richardson petitions for a writ of certiorari “B” (A15). The October 26, 1973 opinion of the Court of
to review the judgment of the United States Court | Appeals, reported at 486 F.2d 801, is printed in Appendix
of Appeals for the Eighth Circuit entered on February “C” (A31). The November 16, 1972 opinion of the Court
13, 1976, petition for rehearing denied March 11, of Appeals, reported at 469 F.2d 333, is printed in Appendix
1976, and motion to stay mandate denied March 22, “D (A40)?. The February 29, 1972 unreported memorandum
1976. The mandate issued March 22, 1976 and order of the District Court is printed in Appendix “E”
(A43). The June 4, 1971 opinion of the Court of Appeals,
) reported at 443 F.2d 974, is printed in Appendix “F” (A46).
: The April 25, 1967 opinion of the District Court, reported
at 267 F. Supp. 403, is not relevant to the issues here and
| has thus not been printed.
:
| JURISDICTION
}
.
The judgment of the Court of Appeals (Appendix “A’’)
was entered on February 13, 1976. Subsequent to the March
11, 1976 denial of a petition for rehearing, and subsequent to
the March 22, 1976 denial of the motion to stay the mandate,
the mandate of the Court of Appeals issued on March 22, 1976.
The letter “A” followed by a number refers to a page number of the appendix.
2Certiorari denied 414 U.S. 818 (1973).
asliien
The jurisdiction of this Court is invoked under
28 U.S.C. 8 1254(1) and 28 U.S.C. & 1651(a).
QUESTIONS PRESENTED FOR REVIEW
I. Must a district court show the standards by
which it was guided in calculating an award of attorney’s
fees? Must such an award based on bad faith of the oppos-
ing party represent the reasonable value of the services
rendered? Are the litigation expenses claimed as “between
solicitor and client costs” waived if not claimed by challenge
to the clerk’s taxing of costs? Is it an abuse of discretion to
award litigation costs to the party against whom a “bad
faith” attorney’s fee is awarded?
Il. May a distric* court in a suit under Section 301(a),
Taft-Hartley Act, instruct the jury that a union is not re-
sponsible for the actions of a member unless the union
either authorized or ratified the acts in question?
Ill. What standards must be followed by a district
court in ordering a new trial for an excessive verdict?
What is the scope of appellate review of such an order?
STATUTORY PROVISIONS INVOLVED
The suit was brought under Section 301(a), Taft-
Hartley Act [29 U.S.C. 185(a) ], which provides:
“Suits for violation of contracts between an
employer and a labor organization representing
eles
employees in an industry affecting commerce
as defined in this chapter, or between any such
labor organization, may be brought in any dis-
trict court of the United States having jurisdic-
tion of the parties, without respect to the
amount in controversy or without regard to
the citizenship of the parties.”
Section 301(e), Taft-Hartley Act [29 U.S.C. 185(e) },
bears on the liability of a labor union for the acts of its
members, and pertains to the issue in Question II. It pro
vides:
“For the purposes of this section, in determin-
ing whether any person is acting as an ‘agent’
of another person so as to make such other per-
son responsible for his acts, the question of
whether the specific acts performed were actual-
ly authorized or subsequently ratified shall not
be controlling.”
STATEMENT OF THE CASE
This action is based on the harassment and unlawful Jis-
charge of the petitioner which followed and resulted from his
withdrawal of membership from the defendant unions. The
petitioner resided in and worked in the State of Nebraska,
which prohibits union shop agreements by law under the auth-
ority of Section 14(b), Taft-Hartley Act. The facts are well
summarized in footnote 12 of Appendix “F” (A62)—the Court
of Appeals decision at 443 F.2d 974.
=
This action under § 301, Taft-Hartley Act [29 U.S.C.
185(a) ], against Western Electric Co. (the employer) and
the unions, was one for damages for lost compensation and
for mental anguish, and was filed on December 21, 1966.
There have been 227 filings in the District Court alone.
The basis for suit against the unions was breach of fiduciary
duty of fair representation, by invidious discrimination
against the petitioner by reason of his nonmembership in
the union.
The first trial was to a jury, February 17 - 26, 1969.
The trial judge dismissed the mental anguish claim and limit-
ed the lost compensation claim to that lost during the seven-
month period between discharge and expiration of the collec-
tive bargaining agreement. The jury’s $20,000 verdict
against the employer and the unions was reduced by the
trial judge to $1,500, after he had first ordered a new trial,
then set aside the order on his own motion. Before the new
trial order was set aside, Richardson had unsuccessfully
petitioned the Court of Appeals for mandamus to reinstate
the verdict.
Petitioner appealed from the $1,500 judgment. The
Court of Appeals reversed and remanded (Appendix “F’’)
for a second trial. At that trial, the jury returned a $92,000
verdict for lost compensation, allocated 30% against Western
Electric Co. and 70% against the unions. It also returned a
$250,000 verdict for mental anguish against the unions only.
The Court of Appeals opinion had eliminated the employer
as a party to the mental anguish claim. A compromise settle-
ment between the employr and petitioner led to dismissal
of the employer from the suit.
The District Court ordered a new trial on the mental
x =
anguish claim, holding the verdict to be excessive and
the result of passion or prejudice (Appendix “E”’). The
unions’ attempted appeal from the judgment entered on
the lost compensation claim, and petitioner's attempted
appeal from the order for new trial, were both dismissed
as appeals from nonfinal orders (Appendix ““D”’). This
Court denied Richardson’s petition for certiorari [414 U.S.
818 (1973) ]. After the District Court re-entered judgment
with an express determination of “‘no just cause for delay,”
the unions again appealed, and the Court of Appeals affirm-
ed (Appendix “‘C’’) the judgment on the lost compensation
claim. That judgment has been satisfied. At petitioner’s
request, without opposition from the unions, the District
Court deferred hearing on the attorney fee application until
disposition of the second claim.
At the third trial, June 3 - 11, 1974, at which the
only issues were those of liability and damages for mental
anguish against the unions, the jury returned a defense ver-
dict. After a fee hearing on October 15 and October 19, 1974,
the District Court ordered the unions to pay a $10,000 attor-
ney fee to the petitioner (Appendix “‘B”). The decision was
silent on that portion of the fee claim which itemized and
requested reimbursement for necessary expenditures in con-
nection with the suit. The claim for fees and expenses is
printed in Appendix “G.”’
On petitioner’s appeal from the judgment, including the
fee award, and the unions’ cross-appeal from the fee award,
the Court of Appeals affirmed the judgment and fee order,
and denied petitioner’s request for rehearing. The Court of
Appeals had denied petitioner’s pre-third trial request for a
writ of mandamus to reinstate the verdict and set aside the
new trial order.
The Court Of Appeals Erred By Refusing To
Require Computation Of The Attorney Fee In
Accordance With Requisite Standards, By Refus-
ing To Review The Amount Of The Award, By
Holding That Expenses Were Recoverable Only
By Challenge To The Clerk’s Taxing Of Costs,
And By Approving The Award Of Third Trial
Costs Against The Petitioner.
Testimony and affidavits at the fee hearing showed
an expenditure of 2,245 hours of legal work by three
attorneys on behalf of petitioner. An expert witness
testified at the fee hearing to his estimate that petition-
er’s undersigned counsel had expended about 1,400 hours
attributable to the lost compensation claim, and testified
to his opinion of the reasonable value of that 1,400 hours.
The District Court fee award (A15) was based on a
finding of bad faith by the unions in the conduct upon
which suit was based. The fee order does not reveal how
the court arrived at the $10,000 amount.
The fee order contained no findings or computations
such as are required by the cases to be cited hereinafter.
The pertinent paragraph (A29) of the order read:
“Accordingly, in recognition of the importance
of this case, the hours of labor reasonably attri-
butable to the result achieved here, the alleged
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te Cs De eR ena ie hae Or een
iin
business lost by the plaintiff's counsel as a
result of his participation in this case [there
was no such allegation] , the compensation
due the plaintiff, and all of the other factors
present, particularly the liberal award of
damages by the jury to the plaintiff, an order
will be entered awarding the sum of Ten
: Thousand Dollars ($10,000) for legal fees in
the prosecution of this case.”
The petitioner hammered in the Court of Appeals
in his opening appellant brief, his appellee brief, his reply
brief, his oral argument, his post-argument letter to the
Court of Appeals, and his petition for rehearing on the
point that the District Court’s abuse of discretion included
its failure to show how the fee was computed and its failure
to show how requisite standards for fee computation were
applied.
The Court of Appeals erroneously found that peti-
tioner “failed to separate the portion of his time spent in
the unsuccessful prosecution of his claim on Count II.” (A14).
The Court of Appeals decision was completely silent
on the computations-and-standards issue. The decision’s
reference (A14) to the discretion involved in an award of
attorney fees was: “The allowance of attorney fees rests
with the discretion of the trial court and will not be disturb-
ed absent a showing of an abuse of discretion.” Such a hold-
ing does not recognize that failure to show the standards
followed and the computation of the fee constitutes an
abuse of discretion. It does not recognize that the discre-
tion involved is in whether a fee is due and that the amount
of the award is reviewable.
ait..
The attorney fee and expense claim was contained
in an affidavit (Appendix ““G’’) filed with the District
Court before the fee hearing. That affidavit contained
four and one-half legal size pages (A68) itemizing the
work done by counsel. Although the affidavit covered
work on both the lost earnings and mental distress claims,
it was consciously drawn in a manner which would permit
segregation, as between the claims, of work done after the
lost compensation claim was out of the case.
The unions raised no issue in the District Court of non-
allocation as between the two claims. Their briefs did not
even hint at such amissue until their appellee brief in the
Court of Appeals. The District Court was not concerned
over any such fancied nonallocation, stating (A27):
“Finally, the defendants suggest that even if the
plaintiff is entitled to recover his fees relating to
his prosecution of Count I, he should not be per-
mitted to recover fees relating to Count II since
the defendants ultimately prevailed on that count.
However, a party need not prevail on every aspect
of his complaint in order to recover his fees. Reed
v. Arlington Hotel Company, Inc., 476 F.2d 721
(8th Cir. 1973), cert. denied, 414 U.S. 854, 94 S.
Ct. 153, 38 L. Ed. 2d 103 (1974). Nor is it always
that easy to separate fees relating to two separate
counts each arising out of the same basic facts.
Consequently, while the defendants’ suggestion
has a certain appeal, it is not practical in every
case.”
The District Court fee award gives no clue to how it was
computed. Footnote 4 (A28) to the fee award opinion con-
* tt hee tt Swe iny E
Oe ee ee ee eS
Se Ny 6 ee ae
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fuses the issue, stating that because of the damages award,
“a recovery of attorney’s fees is no longer called for,” and
that a fee shifting based upon a finding of bad faith in a
§ 301 case is both “compensatory and punitive” in nature.
That holding is contrary to the Eighth Circuit holding in
United Steelworkers of America v. Butler Manufacturing
Co., 439 F.2d 1110 (8th Cir. 1971), that a fee award in a
“bad faith” case is compensatory in nature.
One thing is clear from the District Court fee order:
the fee was not based on the reasonable value of the legal
services rendered. It is also clear that the reason that it was
not so based was “the liberal award of damages by the jury
to the plaintiff.” (A29). The itemized claim for necessary
expenditures not recoverable as ordinary costs was in the
same affidavit as the claim for fees and begins in Appendix
“G” at A74.
The expense claim (A74) was contained in the same
affidavit as the time claim and covered six and one-half legal
size pages. That expense claim was sufficiently detailed to
permit allocation between the two claims, with the help of
some estimates on items which pertained to both claims.
The unions again raised no issue in the District Court
conceming the expense claim. The expense claim was
mentioned by the unions on appeal only in a footnote on
page 28 of their appellee brief. The Court of Appeals
decision adopted the position taken by the unions in that
footnote.
The Court of Appeals adopted (Ai-+) the unions’ sug-
gestions of “failure to separate” the time spent on each
claim and failure to challenge the taxing of costs without
ever having seen the claim. Neither the claim affidavit nor
afte
any copy of it ever left the office of the District Court
clerk. The affidavit was not included in the appendix or
in any filing with the Court of Appeals.
The District Court awarded third trial costs against
the petitioner (A30).
A. The fee.
1. Failure to show fee computation was an abuse
of discretion.
The bellwether case with respect to guidelines
required for computation of an attorney fee is Johnson
v. Georgia Highway Express, Inc., 488 F.2d 714, 717-719
(Sth Cir. 1974). The Johnson guidelines are: (1) the time
and labor required (“‘ . . . they are a necessary ingredient
to . . . be considered” [page 717] ); (2) the novelty and
difficulty of the questions; (3) the skill required to perform
the legal service properly; (4) the preclusion of other employ-
ment by the attorney due to acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or contingent;
(7) time limitations imposed by the client or the circum-
stances; (8) the amount involved and the results obtained;
(9) the experience, reputation, and ability of the attorneys;
(10) the “undesirability”’ of the case; (11) the nature and
length of the professional relationship with the client; and
(12) awards in similar cases.
The foregoing Johnson guidelines are consistent
with the American Bar Association’s Code of Professional
Responsibility, Ethical Consideration 2-18, Disciplinary
Rule 2-106.
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—} 3.
Johnson also held, at pages 716-717, that the
discretion confided to a district judge with respect to fee
awards is the discretion to determine whether a fee should
be awarded, holding further that a Court of Appeals may
review whether the award was in a reasonable amount.
The Eighth Circuit has followed the Johnson
guidelines in cases other than this one. In Doe v. Poelker,
515 F.2d 541, 548 (8th Cir. 1975), 527 F.2d 605, 606-
607 (8th Cir. 1976), the Court of Appeals demanded that
the District Court follow Johnson in its fee computations,
remanded the case for such computations, and subsequent-
ly approved a computation which followed the Johnson
guidelines. In a decision by the same author as here, the
Eighth Circuit held that “ . . . the ‘only legitimate starting
point’ in establishing fees is ‘by merely multiplying attorney’s
hours and typical hourly rates . . . ’” Grunin v. Internat-
ional House of Pancakes, 513 F.2d 114, 127 (8th Cir. 1975).
“A logical beginning in valuing an attorney’s
services is to fix a reasonable hourly rate for his time.”
Lindy Bros. Builders v. American R. & R. San. Corp., 487
F.2d 161, 167 (3rd Cir. 1973).
“The inquiry begins with a determination of the
time devoted to the litigation. This figure in turn is mul-
tiplied by an hourly rate.” National Treasury Employees
Union v. Nixon, 521 F.2d 317, 321 (D.C. Cir. 1975).
“The failure to consider such factors [those in
Johnson, supra) constitutes an abuse of discretion.” Kerr
v. Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir.
1975).
“While we are not permitted to substitute our
judgment for that of the District Court’ . . . we can review
~§4-
the bases for the decision on fees and revise it if necessary.”
Swanson v. American Consumer Industries, Inc., 517 F.2d
555, 559 (7th Cir. 1975).
“While the Court below made a passing reference
[to Johnson, supra] . . . there was scant explication of
the Court’s application of the guidelines which we took pains
to formulate.” Miller v. Mackey International, Inc., 515 F.2d
241, 242 (Sth Cir. 1975).
“Since the record fails to supply the information
necessary to apply the Lindy standard, it is clear that the
award . . . was inconsistent with the sound exercise of dis-
cretion.”” Estien v. Christian, 507 F.2d 61, 65 (3rd Cir. 1975).
“ . . [W]e are convinced that the method
whereby the judge computed the award of attorney’s fee
was so lacking in analysis that it constituted an abuse of dis-
cretion.” Waters v. Wisconsin Steel Works of International
Harvester Co., 502 F.2d 1309, 1322 (7th Cir. 1974).
“[{ The district court’s} failure to follow proper
standards in awarding fees . . . [was] inconsistent with the
sound exercise of discretion.” City of Detroit v. Grinnell
Corporation, 495 F.2d 448, 473-474 (2d Cir. 1974).
“ . . . [A) meaningful review requires a record
that elucidates the factors that contributed to the fee de-
cision and upon which it was based. Certainly it is not con-
ducive to an appropriate appellate review where, as here, the
reviewing tribunal is completely in the dark as to what the
trial judge found concerning the time and labor involved, the
rate of compensation, and the aspects he may have deemed
of significance. Evans v. Sheraton Park Hotel, 503 F.2d 177,
188 (D.C. Cir. 1974).
“‘Because our review is dependent upon some sort
Fee ee ee eee
ee eee ee eee
2
|
|
-_™
of record of the basis for the decision below, we vacate
the judgment insofar as it relates to the attorney’s fee and
remand the cause to the district court for findings of fact
and conclusions of law as to the amount of any attorney’s
fee awarded.” Monroe v. Board of Commissioners of City
of Jackson, Tennessee, 505 F.2d 105, 109 (6th Cir. 1974).
“Where a District Court errs as a matter of law
by utilizing improper standards or procedures in determin-
ing fees, an abuse of discretion occurs . . _ . Similarly,
clearly erroneous findings of fact require reversal.”” Merola
v. Atlantic Richfield Company, 493 F.2d 292, 295 (3rd Cir.
1974).
“His attorneys should not be denied compensation
for reasons not apparent on the record.”” Green v. Transitron
Electric Co., 326 F.2d 492, 499 (ist Cir. 1964).
“Where, as in this case, there is nothing in the
record to indicate what factors the trial judge deemed im-
portant in making an award, there can be no basis for adher-
ing to the rule of discretion.”’ Ellis v. Flying Tiger Corpor-
ation, 504 F.2d 1004, 1006 (7th Cir. 1972).
2. The fee award must represent the reasonable
value of the services rendered.
That the District Court erred in awarding the
fee on some basis other than the reasonable value of the
services rendered is shown by the holding in Tillman v.
Wheaton-Haven Recreation Assn., Inc., 517 F.2d 1141,
1148 (4th Cir. 1975) that “ . . . when an allowance of
attorneys’ fees was justified, it should be measured by the
reasonable value of the lawyer’s services.”
aliticn
“The fee should represent the reasonable value of
the services rendered .. . . ” Wilderness Society v. Morton,
495 F.2d 1026, 1036 (D.C. Cir. 1974).
A requirement of a reasonable attorney's fee was
held “‘to require the district court to award a fee that would
approximate the customary fee in the community for similar
work.” Singer v. Mchoning County Board of Mental Retarda-
tion, 519 F.2d 748, 749 (6th Cir. 1975).
In the decisions of both the District Court and the
Court of Appeals is an implicit assumption that the attorney
fee awarded was not required to be measured by the reasonable
value of the services rendered. Also, the Court of Appeals
reference (A14) to the plaintiff's failure to separate the time
“spent in prosecuting his claim on Count II” is without justifica-
tion in the record. That reference completely ignores the item-
ization in the fee affidavit, as well as the testimony of the
plaintiff's expert witness, a respected and well-known trial
attorney, that undersigned counsel had spent 1,400 hours on
Count I, the lost-compensation count. The time spent on that
count could only have been established by estimate. An
unbiased estimate was in evidence and was called to the atten-
tion of the Court of Appeals. That Court in seeking a basis
to affirm the District Court chose one neither relied upon by
the District Court nor supported by the evidence.
Undersigned counsel neither demanded nor applied
for a $168,375 fee. He testified to the number of hours expend-
ed and his opinion of the reasonable hourly value of each hour.
Multiplication of those two factors produces $168,375. If the
$250,000 verdict had been reinstated, such a fee would have
been justified. Absent its reinstatement, a fee of $168,375 was
not expected.
wh Oe abit MLO ar WT iad or etecnaandloeiall
mt te 0 ut
sat RET Etat! att CREO aI Ae 6 ets Se
eet ees
=) =
3. Recovery of compensatory damages and pay-
ment of a contingent fee from the award does
not justify awarding a fee smaller than the
reasonable value of the attorney’s services.
The District Court fee decision, as has been men-
tioned, relied on “the liberal award of damages by the jury”
(A28, note 4; A29) to justify a smail fee. The Court of
Appeals took a related but different approach, apparently
justifying the size of the fee by reason of the “‘[s] izeable
attorney fees . . . collected by plaintiffs attorney . . .
on a contingent fee basis” (A14, note 11). Such positions
of the District Court and the Court of Appeals reflect a mis-
conception of the nature of fee awards. Actually, a larger
recovery should have justified a larger fee; a larger contin-
gent fee collected by plaintiff's attorney should justify a
larger fee award in order to make plaintiff whole, assuming
the contingent fee to have been a reasonable one. The fee
paid here was 45% of the approximate $92,000 collected.
The fee agreement had started at 33-1/3% after one trial
and had progressively increased for additional work to a
ceiling figure of 45%.
It must be remembered that the $92,000 award
represented compensation that the jury found that the peti-
tioner had lost by the unlawful discharge procured by the
unions. The unions should pay an absolute minimum of
$40,000, the approximate contingent fee which was paid,
so as to make the petitioner whole. Although undersigned
counsel has a contingent interest in any fee award, the larger
portion of the award will go to petitioner to reimburse him
in part for the contingent fee which he has paid.
sation for services rendered solely to obtain an allowance of
fees. Rosenfeld v. Southern Pacific Co., 519 F.2d 527, 530
(9th Cir. 1975).
B. The expense claim.
=" Ss
““. . . the ultimate purpose behind any
recovery in such a case, making the employee
whole . . . , suggests that the employee may ;
need some financial assistance to press his claim
and, if successful, should retain a substantial
portion of the jury’s ‘lost earnings’ award for
himself. Finally, the cost of attorney’s fees
is an injury to the employee directly attributable
to and necessitated by the failure of the union
and/or the employer to utilize . . . grievance
procedures . . . without resort to the courts.”
De Arroyo v. Sindicato de Trabajadores
Packing, AFL-CIO, 425 F.2d 281, 293,
note 17 (ist Cir. 1970).
ow Setar Rees ues halle
eee ee ee oa
“Adequate compensation is necessary, however,
to enable an attorney to serve his client effective-
ly, and to preserve the independence of the pro-
fession.””
Johnson v. Georgia Highway Express, Inc.,
supra, 488 F.2d 714, 719-720 (Sth Cir. 1974).
It is permissible to include in a fee award compen-
eh te ee
Denial of expense award.
Rei Rete <p ame Boe so.
oe
= 19.
The unions raised no issue in the District Court
on the expense claim, and the District Court was completely
silent on that claim. The unions’ only mention of the ex-
pense claim on appeal was in a footnote in its appellee brief
contending that the claim was waived by failure to challenge
the clerk’s taxing of costs. The net claim presented to the
District Court was $6,616.91. The Court of Appeals adopted
the unions’ position that the claim was waived by failure to
chalienge the taxing of costs (A13, note 10).
It should be noted here that $1,966.52 has been
taxed as costs and collected by petitioner, and that the ex-
penses now claimed are not of the type with which Rule 54(d)
deals. By its erroneous position, the Court of Appeals removes
expenses from the category of “‘costs as between solicitor and
client” and requires that such expenses be claimed at a differ-
ent time and in a different fashion than the attorney fees.
There is no legal requirement nor custom nor even any auth-
ority which requires such expenses to be claimed by challeng-
ing the clerk’s taxing of costs. Rather, the custom is and
has been that expenses are claimed and awarded along with
the attorney fees, since both are costs “‘as between solicitor
and client.’’ The Court of Appeals took an unanswerable con-
tention and answered it with a new rule which has never been
applied before in any federal court.
“As we stated in Sprague v. Ticonic National Bank,
. . . , allowance of counsel fees and other expenses entailed
by litigation, but not included in the ordinary taxable costs
reguiated by statute, is ‘part of the historic equity jurisdiction
of the federal courts.’”’ Vaughan v. Atkinson, 369 U.S. 527,
530 (1962).
This Court in Sprague v. Ticonic National Bank, supra,
>.
307 U.S. 161 (1939), noted (footnote 2, page 166) that
allowance of costs “as between solicitor and client” had
been held within the authority of the federal courts, and
also noted at pages 165-166 that costs “‘as between solicitor
and client”’ included “‘as much of the entire expenses of the
litigation of one of the parties as fair justice to the other
party will permit.”
“Court costs not subsumed under federal statu-
tory provisions normally granting such costs against the
adverse party . . . are to be included in the concept of
attorney’s fees.” Fairley v. Patterson, 493 F.2d 598, 606,
n. 11 (Sth Cir. 1974).
“. . . [T] hey [courts of equity] have awarded
litigation expenses, including reasonable attorneys’ fees, tu
the prevailing party.”” McClure v. Born Chemical Co., 292
F.2d 824, 835 (3rd Cir. 1961).
“In Trustees v. Greenough, 105 U.S. 527, 26 L.
Ed. 1157 (1881), an order awarding a plaintiff counsel fees
and expenses . . . was held to be ‘a final decree,’ because
* . . . the inquiry was a collateral one, having distinct and
independent character . . . ’.” Cinerama, Inc. v. Sweet
Music, S.A., 482 F.2d 66, 70, n. 2 (2d Cir. 1973).
Kiser v. Huge, 517 F.2d 1237, 1253 (D.C. Cir.
1974), dealt with and affirmed a District Court award of
both expenses and attorney fees.
Kerr v. Screen Extras Guild, Inc., supra, 526 F.2d 67,
69-70 (9th Cir. 1975), involved a remand to determine whether
Kerr was “entitled to recover litigation expenses, including
reasonable attorney’s fees.”
“In their petitions . .
plaintiff's attorneys .
. [for] attorneys’ fees .. .
. . [included a request for] reimburse-
‘
nl an
ment for out-of-pocket expenses of $4,595.11, not covered
by the earlier award of taxable costs .. . . [The District
Court awarded the claimed expenses and there was no appeal
from that portion of the award].” Swanson v. American
Consumer Industries, Inc., supra, 517 F.2d 555, 561 (7th
Cir. 1975).
“Moreover, the Court appears to have ignored the
application for costs in the amount of $3,941.57.” Miller v.
Mackey International, Inc., supra, 515 F.2d 241, 242, n. 1
(Sth Cir. 1975).
Some of the Court of Appeals errors are not
apparent from the face of the decision. Its erroneous posi-
tion, however, in its footnote 10 (A13) creates a new
procedure for claiming expenses in “solicitor and client
costs,” thus splitting the expense and fee claims, and de-
manding that expenses be claimed by challenge to the clerk’s
taxing of costs—a taxing which frequently occurs long before
the expenditures are complete. This requirement puts the
Eighth Circuit in conflict with all other circuits which have
dealt with the matter. Apart from the split in the circuits
thereby created, such an odd and unusual and unnecessary
requirement should be dealt with by this Court in the exer-
cise of its supervisory powers.
No case has been found where recovery of some
sizeable fee or expense to which a party may be entitled
has been completely barred because of some failure to meet
some time schedule during the normal course of the litiga-
tion. Petitioner’s counsel vigorously rejects any contention
that he was required to claim expenses by challenging the
clerk’s taxing of costs. However, if he was so required, it
would have been appropriate to afford him another oppor-
Dn
tunity to obtain the relief to which he was entitled,
rather than dismissing such a sizeable claim on a basis
not theretofore found in any case, statute, or rule,
especially since there was no showing of any prejudice
to the unions or the court.
“. . . [T]he time required [for filing a motion
for review of a cost bill] is not jurisdictional and the court
may entertain a tardy motion for review.”” 6 Moore’s
Federal Practice, 54.77[9] . page 1755.
“. . . [A] petition for reimbursement of costs
as between solicitor and client may be treated as a proceed-
ing supplementary to the main proceeding that created the
fund.” 6 Moore’s Federal Practice, 54.77[9], page 1756.
C. The award of costs against petitioner.
In a case which has gone on as long as this one, it is
easy to forget how it was that the third trial came about.
The District Court in the first trial struck the mental
anguish claim from the complaint. In an excellent opinion
(A46), holding that damages for mental anguish could be
recoverable in a § 301 case, the Eighth Circuit authorized
the plaintiff to amend his complaint to state a claim for
damages for mental anguish against the unions.
The complaint was amended, the second trial was had,
and the jury made an award of $250,000 damages on the
claim. The District Court ordered a new trial. The plaintiff-
petitioner tried an appeal and a petition for mandamus and
a petition for certiorari, in efforts to avoid the third trial,
but was unsuccessful. The only settlement offer ever made
by the unions was one for $5,000 made before the second
= =
trial. Thus, petitioner had no choice but to go to trial
for a third time.
Given the outcome of that trial and the deficiencies
in it which were shown to the Court of Appeals, not to
have taken an appeal would have been unthinkable to any
lawyer. Yet, the Court of Appeals has displayed some
impatience with the case. The first words spoken were as
petitioner’s counsel stood to open his argument, when the
Court said to him, “I’m wondering whether there will ever
be an end to this litigation.”
It was an abuse of discretion to award third trial costs
against the plaintiff. The first jury, the second jury, the
District Court, and the Court of Appeals all found bad faith
on the part of the unions, a breach of the unions’ fiduciary
duty of fair representation, by procuring the plaintiff's
discharge. When a plaintiff such as here has becn literally
forced to litigate in an effort to obtain his rights, should the
“bad faith” unions recover their costs against him?
“The purpose of the award [of fees and costs] , the
Court emphasized, was to encourage people to seek judicial
redress of unlawful discrimination.” Tillman v. Wheaton-
Haven Recreation Assn., Inc., supra, 517 F.2d | 141, 1148
(4th Cir. 1975).
“. . . [TJo bar allowance of attorneys’ fees .. .
would deter private suits challenging suspect interpretations
of Title VII.” Rosenfeld v. Southern Pacific Company, supra,
519 F.2d 527, 529-530 (9th Cir. 1975).
Small coal operators who prevailed on only one of their
two claims against the United Mine Workers and some large
coal operators were the prevailing parties and were entitled
to their costs. Lewis v. Pennington, 400 F.2d 806, 820 (6th
—24—- x=
Cir. 1968). :
It seems incongruous and contrary to the equitable
principles which underlie fee awards to first split up the
plaintiff's claims, then to award him an attorney fee based
on the bad faith of his opponents, then to award third trial
costs against him to his “bad faith” opponents. shall not be controlling.”
It was within the District Court's discretion to order ; Petitioner’s counsel specifically excepted to the instruc-
each party to bear its own costs or even to find that peti- tion (A99).
tioner was the prevailing party in the action as such and
award him costs. In any event, the Court of Appeals erred
in approving the District Court’s abuse of discretion in order-
whether any person is acting as an ‘agent’
of another person so as to make such other
person responsible for his acts, the question
of whether the specific acts performed were
actually authorized or subsequently ratified
ab adhe
At this point, a brief factual summary may be in order.
The facts shown at all three tnals were substantially the same,
and are well-summarized by the Court of Appeals in footnote
ing petitioner to pay the unions’ third trial costs. 12 (A62) of its decision at 443 F.2d 974 (Appendix “F”).
After withdrawing from the uaion because of inability
ul to get an accounting of the Local’s expenditure of some
The Court Of Appeals Erred By Aeporing ae ~—y funds, petitioner and two other employees were subjected
Instruction That Acts Of Members Did Not Bind daily to multiple mass demonstrations by union members,
The Unions Without Authorization Or Ratification. stewards and officers. They were cursed, threatened, harassed,
and tormented daily for almost seven months, in an attempt to
A jury instruction (the entire charge to the jury is print- get them to strike one of their tormentors so that the Company
ed in Appendix “H’) submitted by the unions was given to could fire them. Company officials turned their backs or
the jury by the District Court (A92):
watched with no attempt to stop the misconduct.
“The members of the Defendant Local Union are Richardson’s wife was called a whore, a steward cleared
not agents of the Defendant Local Union. The his throat and spat a gob of phlegm into Richardson’s face,
actions of an individual member of the Defendant Richardson was pelted from behind with nuts and bolts and
Local Union do not bind the Defendant Local < other thrown objects while sitting at his workbench, his work
Union unless the Defendant Local Union either was sabotaged, his car was blocked in the Company parking
eoegese as nated the — in question.” lot, and he was burned with a lighted cigarette.
Such an instruction was diametrically opposed to § 301(e) The president of the defendant Local, one Harllee, was
[29 U.S.C. 185(e) ], a subsection of the section under which one of the ringleaders. Minutes of Local meetings, some of
suit was brought. That samewe anes | 7 which were altered between trials, showed President Harllee
For the purposes of this section, in determining admonishing the members that the violence must stop. At
Pets abe Othe tile i whee
==
the same time, a column written by President Harllee—
published in a publication put out by the Local—con-
demned the three nonmembers as leeches, inviting contri-
butions to buy them a one-way ticket to Hell.
After seven months of unsuccessful harassment. the
unions “set up”’ the petitioner and the Company fired him.
Officers of the Local on more than one occasion demanded
of Company officials that petitioner be fired. The Inter-
national sent a representative to a Local meeting where the
topic of discussion was the penalty to be imposed upon
those members not participating in a “wildcat” strike, a
“spontaneous” protest of a suspension imposed on a member
for tormenting petitioner. All union members, officers, and
stewards at work that day, except one, participated in the
strike.
No union or Company witness in any of the trials
denied the basic facts of the harassment. The only defense
raised in each trial was that the harassment was by individ-
uals and was not the work of the unions. In oral argument
before the Court of Appeals, in response to the Court’s ques-
tion, counsel for both sides agreed that the third trial verdict
hinged on agency.
Petitioner pointed out other deficiencies in the instruc-
tions to the Court of Appeals, but he relies here on only one,
the giving of the instruction in direct conflict with § 301(e).
The Court of Appeals dismissed petitioner’s contentions con-
cerning the instructions in a single paragraph (A9):
“Piaintiff next complains that certain agency
instructions were erroneous. The Court’s
instructions with respect to the unions’ respon-
sibility for the conduct of their officers, stewards,
Pai haitie: ies Siiare .;
= =
and members were thorough, and in conform-
ance with the ordinary doctrines of agency
which were applicable. Gibbs, supra, 383 U.S.
at 736; Wagner Electric Corp. v. Local 1104,
Int'l. Union of Radio and Machine Workers,
496 F.2d 954 (8th Cir. 1974). Plairtiff’s ob-
jections failed to take into consideration the
‘ instructions as a whole. We are satisfied from
our examination of the instructions that no
error was committed therein.”’
It is incomprehensible how the Court of Appeals
could say that the instruction complained of was “in con-
formance with the ordinary doctrines of agency,” and that
it did not constitute error.
United Mine Workers v. Gibbs, 383 U.S. 715 (1966),
cited by the Court of Appeals, deals with & 6, Norris-
LaGuardia Act [29 U.S.C. 8 106]. That section provides:
“No officer or member of any association or
organization participating or interested in a labor
dispute, shall be held responsible or liable in any
Court of the United States for the unlawful acts
of individual officers, members, or agents, except
upon clear proof of actual participation in, or
actual authorization of, such acts, or ratification
of such acts after actual knowledge thereof.”
The Gibbs decision not only does not support the Court of
Appeals decision, it refutes it. Gibbs refers to the adoption
of the Labor-Management Relations Act and to the provisions
of § 301(e) as requiring that the responsibility of a union for
the acts of its members and officers be measured by reference
to ordinary doctrines of agency “rather than the more stringent
x =
standards of 8 6.
The other case cited by the Court of Appeals in
support of its holding on the instructions was its own
Wagner Electric Corp. v. Local 1104, Int'l. Union of
Radio and Machine Workers, 496 F.2d 954 (8th Cir.
1974). Petitioner is in wholehearted agreement with
the holding of that case that (page 956) “‘a union is
responsible for the actions of its officers and members
according to the ordinary doctrines of agency.” The case
gives no support whatsoever to a holding that the “‘auth-
orized or ratified”’ instruction was in conformance with
the ordinary doctrines of agency.
“Vulcan reaffirmed the principle that no actual
authority of agents is required for union responsibility as
long as they are acting within the scope of their apparent
authority.” United States Steel Corp. v. United Mine
Workers of America, 519 F.2d 1249, 1253 (Sth Cir. 1975).
After quoting § 301(e), Vulcan Materials Co. v. United
Steelworkers of America, 430 F.2d 446, 457 (Sth Cir. 1970),
states: “In other words, the act of a union agent committed
within the scope of his general authority is binding upon the
union regardless of whether it was specifically authorized or
ratified.”
“The jury was properly instructed that the Unions were
responsible for the acts of their representatives only if the
latter were engaged within the scope of their employment
or authority, but that actual authorization of specific acts
was unnecessary. 29 U.S.C.A. 8 185(e).”’ Lewis v. Benedict
Coal Corporation, 259 F.2d 346, 352 (6th Cir. 1958).
The jury received an instruction which was a gross mis-
statement of the applicable law of agency. Even the sentence
= =
commencing the paragraph was prejudicially erroneous.
It stated flatly:
“The members of the Defendant Local Union
are not agents of the Defendant Local Union.”
How could a jury following that instruction possibly have
returned a plaintiff's verdict based on the acts of members
of the defendant Local? That sentence alone was the equi-
valent of a directed verdict o1 .he non-agency of the mem-
bers.
The errors were not miner ones. They dealt with the
gravamen of the issue on which the verdict hinged. The
“authorized or ratified” portion was diametrically opposed
to the statute.
“Error in a specific instruction is not cured by general
statements which set out the respective contentions... .
Erroneous instructions in a jury trial are presumptively injur-
ious and are grounds for reversal unless it affirmatively
appears on the record that the error was harmless.” North-
ern Pacific Railway v. Herman, 478 F.2d 1167, 1171 (9th
Cir. 1973).
“. . . [I] t is well settled that a reversal will be
directed unless it appears beyond doubt that the error
complained of did not and could not have prejudiced
the rights of the party.” Vicksburg & Meridian Railroad
Co. v. O'Brien, 119 US. 99, 103 (1886).
“Since it does not affirmatively appear that the con-
fusion in the minds of the jury which would naturally flow
from the error in the charge did not in fact prejudice the
appellant, the judgment must be reversed .... ” Plough
v. Baltimore & O. R. Co., 172 F.2d 396, 398 (2d Cir.
1949), cert. denied, 337 U S. 940.
—30-—
“Defendant contends, however, it [an erroneous
instruction] was harmless error since other parts of the
charge stated the law correctly. We do not agree. The
challenged statement was not equivocal or subject to
differing interpretation which might be clarified by other
portions of the charge. We cannot assume the jury disre-
garded it. At best, it was likely to leave the jury highly
confused, that alone being grounds for reversal. . . .
The judge was in fact explaining to the jury precisely what
plaintiff had to prove to recover. . . . An erroneous state-
ment of the law at that point cannot be described as harm-
less.’’ De Lima v. Trinidad Corporation, 302 F.2d 585,
587 (2d Cir. 1962).
Where issues of agency and ratification were critical
fact issues, and the court gave an erroneous charge to the
jury on suci. » «es, it was determined that the error was
not harmless aud a new trial would be granted. NMS Indus-
tries, Inc. v. Premium Corp. of America, Inc., 451 F.2d
542 (Sth Cir. 1971).
“. . . [T]he rule that instructions must be consid-
ered as a whole is not applied to cure error by conflicting
instructions.”’ Reid's Branson Instructions to Juries, Vol.
I, § 138, page 393 (1960).
“If an erroneous and a correct instruction are given
on a material matter, a new trial must be granted. The
jury does not know which one is correct and the court
does not know which one the jury followed.” Reid’s
Branson Instructions to Juries, Vol. 1, 1974 Cum. Supp.,
§ 138, page 75.
x =
Il
The District Court Abused Its Discretion In Order-
ing A New Trial, And The Court Of Appeals Erred
As To The Permissible Scope Of Review On Such
An Order.
A. New trial versus limited new trial or remittitur.
The order for a new trial (A43) specified no miscon-
duct or error, but found that the $250,000 verdict on the
mental distress claim was so excessive that it must have been
the result of “passion, prejudice, mistake, or some other
improper reason” (A44). Although the unions’ motion was
one for a remittitur, for judgment n.o.v. only upon refusal
to remit and for a new trial only as an alternative to judg-
ment n.o.v., the District Court ordered a new trial on its
Own motion. Was not the unions’ motion a concession of
the validity of the jury’s finding of liability?
The decisions of the Eighth Circuit Court of Appeals
permit an inference of passion or prejudice to be drawn
from the size of the verdict alone. In Bankers Life & Casual-
ty Company v. Kirtley, 307 F.2d 4 18, 426 (8th Cir. 1962),
the Court upheld a finding that the verdict was the result
of passion or prejudice and stated in so holding that“... .
there is here no affirmative evidence other than the size of
the exemplary damage award to indicate passion or preju-
dice on the part of the jury.”
In both Perry v. Bertsch, 441 F.2d 939 (8th Cir. 1971)
and in Bankers, supra, the Eighth Circuit held that a verdict
resulting from passion or prejudice does not bar a remittitur
and does not necessarily require a new trial. These holdings
=x, =
are consistent with the widely quoted words of Judge
Medina in Dagnello v. Long Island Railroad Company,
289 F.2d 797, 802 (2d Cir. 1961):
“In some cases the very amount of the verdict
is said to justify the inference that the verdict
was brought about by passion or prejudice, al-
though it seems to us that this is just another
way of saying that the verdict is too high.”
A complete new trial for an excessive verdict is
required only where the verdict resulted from “appeals
to passion or prejudice” (Minneapolis & Sault Ste. Marie
Ry. v. Moquin, 283 U.S. 520, 521 (1931) ) and is not
required where the passion or prejudice is merely inferred
from the size of the verdict alone, as shown by Bankers
and Perry, supra. Or is a complete new trial required where
the defense post-trial motions do not request it?
Since the District Court found no specific error nor
any appeal to passion or prejudice, it was free to order a
remittitur or a new trial limited to the issue of damages.
The Court of Appeals contention that the liability and
damages issues were so intertwined as to be inseparable
(A7) was adopted from page 23 of the unions’ brief and
is not supported by logic. Additionaiiy, that union position
was first advanced on appeal and not in the District Court.
The unions’ contention that damages for mental _
anguish are arrived at by determining a dollar value for
the damage flowing from each act attributable to the
unions, and then totaling all of such dollar values, is a
sophism unsupported and unsupportable by any citation
of authority. Liability and damages are not intertwined
in a case involving deliberately induced mental anguish.
et ee wee
—33—
A verdict of liability would be required if the jury found
that the unions set out to deliberately induce mental
anguish in the petitioner and that their efforts even slightly
succeeded, irrespective of the dollar value of that damage.
The jury would then find the damages attributable to the
mental anguish caused by the unions. The evidence showed
no other source of mental anguish. If the unions actually
believed that the issues of liability and damages were so
inextricably intertwined, should they not have submitted
and should not the District Court have given instructions to
the jury on how to handle such an “adding machine” type
of damage calculation and on its complexities? No such
instruction was even suggested.
One might think from the “adding machine’ conten-
tio.: that the unions defended by presenting evidence about
how some specific individuals, and not the unions, were
responsible for particular acts. Not so. They simply denied
all responsibility for everything. It was a case for the jury of
all or nothing.
At the second trial (and at the third trial), the issue of
liability was not even a close one. The unions’ only defense
was one of nonagency. The evidence of agency was over-
whelming. The only evidence of nonagency was that of
self-serving exculpatory statements by the unions, condemned
as ineffective by Riverton Coal Co. v. United Mine Workers of
America, 453 F.2d 1035, 1042 (6th Cir. 1972), by Vulcan
Materials Co. v. United Steelworkers of America, supra, 430
F.2d 446, 457 (Sth Cir. 1970), and by the Eighth Circuit
in Wagner Electric Corp. v. Local 1104, International Union
of Electrical, Radio and Machine Workers, supra, 496 F.2d
954, 956 (8th Cir. 1974).
=x"=
A common sense approach to the new trial issue is
suggested in the following quotation from McCormick on
Damages, § 19 at 80-81 (1935):
“For passion produced by unfair tactics or argu-
ment of the successful party, the threat of an
unconditional new trial may well be the only
effective preventive. In those cases, however,
where the facts themselves are so appealing to
the sympathies or prejudices of the average man
that any jury is likely to render a swollen verdict,
then, if the plaintiff's counsel has not by unfair
methods whipped up the natural emotions of
the jury, to require another trial seems question-
able policy. In these cases, an opportunity to
reduce the award as an alternative to a new trial
might well be offered to the plaintiff wherever
the trial judge is satisfied with the justness of the
result on the question of liability. To insist that
no verdict stand until the jury gives a verdict free
of passion and prejudice both in respect to liabil-
ity and in respect to amount is in these appealing
cases to expect an impossibility.”
Union counsel made much in the appeals briefs of an
alleged “Golden Rule” argument made by petitioner's
counsel. However, the trial judge, whose discretion the
unions would uphold in every other respect, summarily
overruled the objection, not even stopping the argument
nor considering it as error.
Since “passion or prejudice” inferred only from the size
of the verdict cannot possibly infect the finding of liability,
the District Court could have ordered either a remittitur (as
=~ *S
requested by the unions) or a new trial limited to the issue
of damages. Its failure to do either constituted an abuse of
discretion.
B. The District Court misconstrued the nature of damages
flowing from deliberately induced mental distress.
The new trial order displayed a misconception of the
nature of the mental distress damages authorized by the
1971 Court of Appeals decision. Out of the several varieties
of such mental distress damages, that which was authorized
was damages for the mental distress flowing from an intention-
al wrong. Such damages contain elements not found in mental
distress damages which flow from other sources.
The law requires that negligently inflicted mental dis-
tress be accompanied by physical injury in order to be com-
pensable. The cases hold that changes in the nervous system
which flow from mental distress are physical injuries. Alcorn
v. Anbro Engineering, Inc., 2 Cal. 3d 493, 498, 86 Cal. Rptr. 88,
468 P.2d 216 (1970); Vanoni v. Western Airlines, 247 Cal. App.
2d 793, 796-797, 56 Cal. Rptr. 115 (1967); Emden v. Vitz,
88 Cal. App. 2d 313, 317, 198 P.2d 696 (1948).
Vanoni, supra, held at pages 796-797 that ““ . . . a shock
‘to the nervous system is an injury to the body rather than to
the mind.” Headnote 3 in Vanoni states: “The allegation in
a complaint that plaintiffs suffered severe shock to their nerves
and nervous systems alleges something more than emotional
or mental suffering” (emphasis added).
The mental! distress flowing from intentional wrongs is
compensable without any necessity of physical injury or injury
to the body. Restatement of the Law of Toris 2d, & 46, pp. 77-
—36—
78; Prosser, Law of Torts (4th Ed. 1971) 8 12, page Sb.
Even so, the District Court’s order for new trial
finds (A44, A45) the verdict excessive and unsupported
by the evidence because there was no showing that the
emotional state caused was of a “permanent and lasting
nature,’ because no “‘serious psychosomatic illnesses
resulted,’ and because “‘the trauma caused, if any, was
of a temporary duration.” As shown by Alcorn, Vanoni,
and Emden, supra, “permanent and lasting” damage to the
emotions, “‘serious psychosomatic illnesses,” and “‘trauma”
other than temporary, as demanded by the District Court,
are all physical injuries. Borrowing the language of the
Vanoni headnote, the District Court was demanding
“something more than emotional or mental suffering.”
The “‘permanent”’ injury demanded by the District Court
was an approach doubtless borrowed from the familiar
rules in bodily injury cases that only permanent injuries
will support a substantial damage award. The mental dis-
tress damages in issue are compensation for the invasion
of mental tranquility rather than for their visible long-term
effects.
Justice Traynor held in State Rubbish Collector's
Association v. Siliznoff, 38 Cal. 2d 330, 338, 240 P.2d
282 (1952):
“Greater proof that mental suffering occurred
is found in the conduct designed to bring it
about than in the physical injury that may or
may not have resulted therefrom.”
Since physical injury is not an element of the mental
distress damages here in issue, the District Court’s new
trial order applied an erroneous standard and constituted
ee ee
-_*
an abuse of discretion. Application of the wrong legal
standard is an error of law and an abuse of discretion
in determining whether to grant a new trial. Williams v.
Nichols, 266 F.2d 389, 392-393 (4th Cir. 1959).
The petitioner’s briefs in the Court of Appeals, as
well as his oral argument, dealt with the above issue at
some length. His arguments in this respect were dismissed
(A7, note 5) as “devoid of merit.” This refusal of the
Court of Appeals to find an abuse of discretion in the
District Court’s application of erroneous legal standards
as to mental distress was error.
C. Scope of appellate review of new trial order.
“Review of a ruling on a motion for new trial
on the ground of an excessive verdict is similar
to the reviewability of the trial court’s ruling
on a motion for new trial on the ground that
the verdict is against the weight of the evidence.
But the pressure for review is greater in the
area of inadequacy and excessiveness, since
only by review of the trial court’s ruling on the
motion for new trial may the quantum of dam-
ages, where the amount is in dispute, be tested
in the appellate court.”” 6A Moore’s Federal
Practice § 59.08[6], pages 59-170, 171 (2d Ed.
1974).
There is a split between the circuits on the standards
for review of an order for new trial for an excessive verdict.
There is, in fact, a split within the Eighth Circuit itself.
The earlies EBigiiin Circuit position, and that relied upon
- *§
here (A6) was “ . . . we shall continue to consider review
{of an order granting or denying a new trial for an excessive
or inadequate verdict] , as we have said before, not routinely
and in every case, but only in those rare situations where
we are pressed to conclude that there is ‘plain injustice’
or a ‘monstrous’ or ‘shocking’ result.”” Solomon Dehydrating
Co. v. Guyton, 294 F.2d 439, 447-448 (8th Cir. 1961).
Then, in 1972, the Eighth Circuit adopted a new and
different approach to the problem, which approach was
urged by petitioner’s briefs as applicable here. The case was
Fireman's Fund Insurance Co. v. Aalco Wrecking Co., Inc.,
466 F.2d 179, 186-187 (8th Cir. 1972). The decision discus
sed the scope of review by a Court of Appeals on an order
for a new trial.
Some of the pertinent holdings of Fireman's Fund are
as set forth hereafter: that a grant of a new trial on the basis
of instructions or rulings on evidence does not interfere with
the jury’s role as the trier of fact; that courts may not re-
weigh the evidence and set aside the verdict just because
different inferences could have been drawn or because the
judge felt that other results were more reasonable; that the
Court of Appeals sk wuld exercise a closer degree of scrutiny
and supervision to protect the right of jury trial before a new
trial is ordered because the trial judge found the verdict
contrary to the weight of the evidence; that to justify a new
trial, the verdict must be against the great weight of the evi-
dence; that otherwise, the jury’s role as trier of the facts
would be destroyed and the trial judge would be enabled
to disregard the jury’s verdict at will; that the ultimate issue
on a motion for new trial is whether a miscarriage of justice
occurred; and that a district court's new trial decision is
~39—
always subject to review.
Fireman’s Fund seemed to herald the advent of
desperately needed new rules, different rules than Solomon's
near-nonreviewability rule. Fireman's Fund’s “always sub-
ject to review” is in direct conflict with Solomon's “not
routinely and in every case.”
As the Court’s latest expression on the subject of scope
of review, the Fireman’s Fund decision should have been
applied here and petitioner’s briefs urged its application.
However, one would never learn from the Court of Appeals
decision that Fireman's Fund had ever been handed down.
For the Eighth Circuit to maintain two diametrically opposed
rules, and to apply whichever of the two it chooses, is hardly
consistent with the rule of law. Such procedure deserves the
attention of this Court in the exercise of its supervisory powers.
Leaning in the same direction as Fireman’s Fund, but
still adopting somewhat different standards, is the decision
of the District of Columbia Circuit in Taylor v. Washington
Terminal Co., 409 F.2d 145, 148-149 (D.C. Cir. 1969), where
it was held that review of a new trial order for an excessive
verdict requires a Court of Appeals to weigh the trial judge’s
first-hand observations of the evidence against the different
evaluation of the facts by the constitutionally-designated fact-
finders, the jury.
The Taylor court held that the proper test to be applied
by the District Court was whether the award was clearly
within the maximum limit of a reasonable range. The Court
also held that the verdict there was within such a range and
reversed the order for a new trial.
Both Taylor and Fireman's Fund cited and relied on
Lind v. Schenley Industries, Inc., 278 F.2d 79 (3rd Cir. 1960),
_40—
cert. denied, 364 U.S. 385 (1960). Other recent cases which
follow Taylor are: Brewer v. Uniroyal, Inc., 498 F.2d 973,
978 (6th Cir. 1974); Williams v. Steuart Motor Co., 494 F.2d
1074, 1085 (D.C. Cir. 1974); Manning v. Altec, Inc., 488 F.2d
127, 133 (6th Cir. 1973); and Gorsalitz v. Olin Mathieson
Chemical Corp., 429 F.2d 1033, 1045-1047 (Sth Cir. 1970).
The instant case draws into sharp focus the conflict be-
tween the Solomon standards, the Fireman's Fund standards,
and the Taylor standards, at least a three-way split, thus offer-
ing an excellent vehicle for resolving the split among the
circuits (and within the Eighth Circuit) on the standards for
review of verdicts alleged to be either excessive or otherwise
against the weight of the evidence. This Court is, of course,
aware of the tumult in the legal profession over arbitrary
grants of new trials at both the state and federal level. The
California problem in this respect typifies the common prob-
lem in all jurisdictions, and is discussed at length in Mercer
vy. Perez, 68 Cal. 2d 104, 108-124, and in New Trial Orders;
The Erosion of Code of Civil Procedure Section 657, 9 Santa
Clara Lawyer 119 (1968).
The near-absolute discretion which the Eighth Circuit
and some other circuits permit the trial judge in new trial
orders is nothing more nor less than deprivation of the right
to trial by jury.
The application here of Fireman's Fund or Taylor
could have produced a reversal or modification of the order
for a new trial. The Court of Appeals, however, followed
Solomon and refused to review the order. Such refusal was
error.
The new trial order contained no findings of fact. It
contained no specifications of error nor did it specify any
SOLE ON EEE RAE et -
~th~—
source for the jury’s alleged “‘passion, prejudice, mistake,
or . . . other improper reason.” The order contained no
review of the evidence, no findings as to what the weight
of the evidence showed and, of course, could not and did not
contain any showing that the verdict was against the great
weight of the evidence, or that it represented a miscarriage
of justice. It contained no finding of a maximum range or
that the verdict was outside a maximum range. The order
made no reference to the outrageous union conduct which
was calculated to bring about mental anguish in the petitioner.
These findings and references were required under the cases
which have been discussed, and the condonation by the Court
of Appeals of their absence constituted error.
CONCLUSION
The three points made in this petition, the first of which
contains several subpoints, form a pattern: the Court of
Appeals has refused to enforce the normal rules of law
which it applies in other cases. It permitted the District
Court to make an arbitrary fee award without any showing
of how the figure was reached. It sustained the District
Court’s complete silence on a substantial claim for expenses,
a claim to which the unions raised no defense in the District
Court. It ratified an award to the “bad faith” union of its
third trial costs against the petitioner. It approved an instruc-
tion requiring union authorization or ratification of a mem-
ber’s acts as one in conformance with the ordinary doctrines
of agency. It approved the District Court’s use of an erroneous
measure of damages for mental distress. It avoided any men-
tion of its own iater pronouncement on review of new trial
=
orders, referring instead to an earlier and inferentially-
overruled doctrine more favorable to an affirmance of
the District Court.
Why has the Court of Appeals gone out of its way
to affirm the District Court’s multiple arbitrary postiions?
When the District Court’s dismissal of the mental anguish
claim was reversed, it achieved the same result as before
by granting a new trial on the second trial verdict and by
grossly misinstructing the jury in the third trial. The
District Court obviously felt that damages for mental
anguish were inappropriate and took steps to see that
none were paid. If these arbitrary acts are truly unreachable,
then the right to trial by jury is only an illusion.
Did the Court of Appeals decide that the petitioner
had “received enough” by way of the damages he had col-
lected on the first claim? Such a position would be hardly
consistent with the judicial duty to avoid prejudice by
extraneous and irrelevant matters. Juries are not permitted
to learn of such dispositions of other claims, and it has never
been thought necessary to conceal such from appeals court
judges.
Did the Court of Appeals grow impatient with the long-
continued litigation? If so, why not terminate it earlier in
some of the multiple opportunities extended? The snail’s
pace of the case was not attributable to the petitioner. The
only delay he ever sought was a one-month delay of the
second trial, and that request was denied by the District Court
in a decision sternly emphasizing the need for speedy disposi-
tions of matters in the federal courts! That decision made no
reference to the two-year span between complaint and first
trial, or the delay of over thirteen months in entering judgment
eee
«(3
after the first trial. From that decision one would not have
anticipated that the District Court would take five months
to act on the unions’ motion for remittitur after the second
trial, nor the entry of judgment one year to the day after the
third trial verdict. Petitioner once, to no avail, asked the
Court of Appeals to assign the case to another District J udge.
Would the weariness of a Court of Appeals with the
District Court’s overdeliberate pace entitle it to terminate
the suit on a basis other than the merits, in disregard of the
rights of one of the parties?
Was the unusual position on the expense claim due to
some fear that any expense award would go to reimburse
the National Right to Work Legal Defense and Education
Foundation, Inc.? The District Court, throughout the three
trials and the fee hearings, has displayed (on the record) a
great deal of interest in the role of that organization in the
case. Petitioner’s undersigned counsel. on every such occasion ,
has unhesitantly taken the oppo:tunity to describe the relation-
ship between the petitioner and the Foundation. The peti-
tioner has personally contributed about $1,250 of the total
expenditures. The Foundation has made advances since
1967, as requested by undersigned counsel who initiated the
first contact, for necessary expenses (no attorney fees) in an
amount of over $11,000, and has never in any way attempted
to influence the handling of the case.
The petitioner could not have litigated even through the
first trial without the Foundation’s help. Without the assis-
tance of such an organization, an individual worker is at the
mercy of powerful employers and unions, powerless to
enforce the federal labor laws purportedly enacted for his
benefit.
—44—
The petitioner’s right to demand the compliance
of the unions with their fiduciary duty of fair represen-
tation is a civil right. It is not necessary to go as far as
Collum v. Butler, 288 F. Supp. 918, 919 (N.D. Ill. 1968),
affirmed 421 F.2d 1257 (7th Cir. 1970), in demanding
extra consideration for the verdict (as opposed to the
judge’s views on a motion for new trial) in a civil rights
case. It is only demanded that the petitioner be judged
by impartial application of the same rules as in other cases.
Some of the deficiencies in the Court of Appeals
decision are couched in language which does not reveal
the full import of the ruling. One who had not read the
District Court memorandum or the briefs would not
realize that the Court of Appeals had approved a failure
of the District Court to show how the fee was computed.
Nor would a reader of the opinion realize that the Court
of Appeals was approving the “authorized or ratified”
instruction as one within the ordinary doctrines of agency.
If fee computations truly need not be shown, and if the
ordinary doctrines of agency have been broadened, the
facts should be spelled out in the decision, so that it may
stand as precedent for those points.
The decision, however, does contain two visible errors
which will undoubtedly be cited as precedents:
(1) Expenses above and beyond and outside
the usual taxable costs, which expenses are included in
the concept of “‘costs as between solicitor and client,” may
be claimed only by challenging the clerk’s taxing of costs,
and may not be sought in the same claim as the fee.
(2) Where substantial compensatory damages
are recovered, where a sizeable contingent fee is paid on
~45~
such a recovery, and where “bad faith” requires a fee
award, the District Court may award a fee which represents
less than the reasonable value of the legal services rendered.
The two points specified above are in conflict with
the decisions herein cited of other Courts of Appeals on
similar issues. Both points present issues of importance under
federal labor law. All of the issues raised in this petition involve
a sanctioning by the Court of Appeals of departures so far
from the accepted and usual course of judicial proceedings
as to call for an exercise of this Court’s powers of supervision.
All are issues of importance under federal labor law. Some,
as specified, involve splits among the circuits.
Because the decision deals with court-awarded fees in
an arena where the individual worker is pitted against the
union and the employer, it will be of particular interest to
lawyers with an opportunity to represent individual workers
in such cases. Whereas very few of such cases had been filed
before the 1971 decision of the Court of Appeals, a substan-
tial number have been filed and are pending across the nation
since that decision was published (Appendix “F,”’ A46).
Affidavits of labor law specialist Donald W. Jones, a
Missouri attorney; of the distinguished Jonathan C. Gibson
with his wide experience in labor law across the nation and
across the years; of the well-known and widely-written
Sylvester Petro, professor of labor law at New York Univer-
sity and at Wake Forest—such affidavits having been filed with
the District Court—point out the difficulty of the individual
worker in finding competent counsel to represent him against
his employer and the union.
This Court of Appeals decision will constitute another
obstacle in the path of the worker seeking effective representa-
EE
aiitivs | STATE OF CALIFORNIA )
) ss.
tion. It will stand for the principle that |awyers representing | County of Orange )
workers against labor unions face rules not applicable in |
other cases involving the same issues. It will signal that such | I, the undersigned, say: I am and was at all times herein mentioned, a citizen
a lawyer may end up donating a substantial portion of his | of the United States and employed in the County of Orange, State of California,
time. The significance of the decision will not be lost on | a the age of eighteen years and not a party to the within action or proceeding;
the legal profession.
ie | | mamaria
WHEREFORE, the petitioner prays that a writ of cer | CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
tiorari issue to review the judgment entered February 13, | EIGHTH CIRCUIT (DALE C. RICHARDSON vs. COMMUNICATIONS WORKERS
1976, petition for rehearing denied March 11, 1976, by OF AMERICA, AFL-CIO, LOCAL 7495, COMMUNICATIONS WORKERS OF
AMERICA, AFL-CIO) of the following named parties by depositing three copies
thereof (to each party), enclosed in a sealed envelope with postage thereon fully
prepaid, in the United States Post Office in the City of Huntington Beach, Calif-
the United States Court of Appeals for the Eighth Circuit.
Respectfully submitted, ornia, addressed to said parties at the addresses as follows:
ROBERT E. O’CONNOR J. PATRICK GREEN
DAN J. WHITESIDE 1304 City National Bank Bldg. 707 City National Bank Bldg.
1339 Navarro Place Omaha, Nebraska 68102 Omaha, Nebraska 68102
Orange, California 92669 DAVID S. LATHROP
460 Continental Bldg.
EDWARD F. FOGARTY Omaha, Nebraska 68102
700 Service Life Building Statens
penalty of perjury that the f is true and
Omaha, Nebraska 68102 en
Executed on MAY | 71976, at HUNTINGTON BEACH, CALIFORNIA.
REX H. REED | 7)
EDITH D. HAKOLA | j QL. P
8316 Arlington Boulevard D. A. Standefer
Suite 600
Fairfax, Virginia 22030
Attorneys for Dale C. Richardson.
Dean-Standefer, 326% Main St., Huntington Beach, Ca. 92648
(714) 536-7161
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.