TISDALE v. WHEELER BROS. GRAIN CO., INC.

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TISDALE v. WHEELER BROS. GRAIN CO., INC.
1979 OK 94
599 P.2d 1104
Case Number: 53273
Decided: 06/19/1979
Supreme Court of Oklahoma

CLETA TISDALE, WIDOW OF JERRY TISDALE, DECEASED, RHONDA SUE TISDALE, A MINOR, AND DEBRA JEAN TISDALE, A MINOR, BY AND THROUGH CLETA TISDALE, AS NEXT FRIEND AND NATURAL GUARDIAN, APPELLANTS,
v.
WHEELER BROTHERS GRAIN COMPANY, INC., ACID ENGINEERS, INC., A KANSAS CORPORATION, AND OKLAHOMA FRACTURING SERVICE, INC., AN OKLAHOMA CORPORATION, APPELLEES.

Appeal from District Court, Oklahoma County; Joe Cannon, Judge.

¶0 Trial judge allowed counsel for minor plaintiffs a fee of less than the percentage of recovery fixed by agreement with their mother as "next friend". Counsel appeal and mother moves to dismiss.

MOTION TO DISMISS DENIED. PARTIES ON APPEAL REALIGNED AND APPELLEES NAMED IN THE CAPTION DISMISSED.

Earl D. Mills, Linda G. Alexander, of Foliart, Mills & Niemeyer, Ed Abel, Abel, Musser & Sokolosky, Oklahoma City, for appellants, as realigned.

Don Hamilton, Oklahoma City, for appellees, as realigned.

Odie A. Nance, Harry Palmer, Oklahoma City, for appellees named in the caption.

OPALA, Justice:

[599 P.2d 1105]

¶1 This appeal is sought to be prosecuted by three (3) lawyers who deem themselves aggrieved by the trial judge's order, in a post-judgment ancillary proceeding, by which they were allowed, in counsel fees for representing two minor plaintiffs, substantially less than the percentage of total recovery fixed by their agreement with the minors' mother as the children's "next friend and natural guardian". Our consideration on the motion to dismiss is confined to three narrow questions of law: (1) Does a lawyer have standing to appeal, with or without the consent of his client, from an adverse decision, in a post-judgment stage, on the ancillary issue of his allowable share in the minor client's recovery? (2) Did the petition in error, filed here by the lawyers, effectively commence their own appeal? (3) May the trial court, after the petition in error is filed, proceed in the case to (a) change the mother's status in the suit [from a "next friend"] to that of a guardian ad litem (b) effect the appointment of an attorney to represent her in that capacity in this appeal and (c) direct that the difference in recovered funds between the fee allowed and that contracted for by the lawyers be kept "impounded" pending the outcome of this appeal?

¶2 As our answer to these three questions is in the affirmative, the motion to dismiss is denied. The appeal is ordered to proceed, with the lawyers aligned as parties-appellant, and the mother, as guardian ad litem for her two minor children, as appellee herein. The two corporate defendants in the tort action below, whose names stand reflected in the caption,

¶3 A post-judgment dispute about liability for, or the extent of, an attorney's fee claim due from recovery may be entertained in the original case as an ancillary proceeding in the nature of an equity suit triable to the court.

¶4 A lawyer who deems himself aggrieved by the trial court's decision determining, in an ancillary proceeding, the amount of fee allowable to him from the client's recovery has a right to appeal that is independent of his client's will.

¶5 We accordingly hold that the lawyers before us have standing to prosecute this appeal which does not depend on the mother's consent to its commencement. The rule announced by us in Ogle v. Ogle, Okl., 517 P.2d 797 [1973] is not apposite here. The lawyer in that case sought to prosecute an appeal from an order denying his client - a party in the divorce action - an allowance of counsel fees. In Ogle the attorney clearly did not have a litigable interest in the fee in his own right and independent of that client, whereas here the appealing lawyers have both a statutory lien claim as well as a contract right, both of which are protected by law. 5 O.S. 1971 §§ 6 and 7. Their claim is capable of direct, as distinguished from vicarious, assertion and vindication.

¶6 The body of the petition in error unmistakably identifies all the three lawyers by their names as "additional" parties-appellant [to those already named in the caption, i.e. the mother and the minors]. The inclusion of the mother and of the minors, as appellants here, though incorrect,

¶7 After the commencement of this appeal the trial court, among other things, changed the mother's status from that of a next friend to a guardian ad litem and, with her consent, appointed an attorney to represent her on appeal. We find no infirmity in this action which neither invaded our jurisdiction nor impaired its exercise.

¶8 Our civil appeal rules - viewed as a whole - appear quite inconsistent with the pre-1969 notion and case law holding that, with the filing of a petition in error, an abrupt cessation occurs of the trial court's authority in the case over all but collateral issues to the appeal. There exist a large number of matters, not collateral but merely ancillary to the corrective process which is already invoked, whose resolution may be effected, as clearly contemplated by rules, at the trial court level. Some of these are set forth in the rules, others find expression in our case law. Among the various acts sanctioned for performance by the trial judge in the post-appeal stage, subject always to our power of re-examination, are those that will: (1) facilitate the completion of the record, allocate the costs of its preparation and reflect the correct procedural posture of the case

¶9 Motion to dismiss is denied. Parties stand realigned. Appellees named in the caption are dismissed as parties. The application made here to release impounded funds may be first presented to the trial judge. If his action prove objectionable, re-consideration may be sought by an original motion in this court.

¶10 LAVENDER, C.J., and WILLIAMS, HODGES, SIMMS, DOOLIN and HARGRAVE, JJ., concur.

Footnotes:

1 The petition in error, as required by statute, correctly designates the parties in the caption in the very form in which they were styled below. 20 O.S. 1971 § 3002 .

2 Simpson v. Baker, 123 Okl. 118, 252 P. 834, 835 [1927]; Chicago R.I. & P.R. Co. v. Rittenhouse, Hanson & Evans, Okl., 285 P.2d 186 [1955].

3 Opperud v. Bussey, 172 Okl. 625, 46 P.2d 319 [1935]; Simpson v. Baker, supra note 2.

4 12 O.S.Supp. 1972 § 83 ; Lambert v. Hill, 181 Okl. 225, 73 P.2d 124, 127 [1937].

5 Conrad v. State Industrial Commission, 181 Okl. 324, 73 P.2d 858 [1937]; Opperud v. Bussey, supra note 3; Simpson v. Baker, supra note 2.

6 The mother should have been recognized as an adversary party because of her interest as guardian in preserving the maximum net recovery for her children.

7 12 O.S. 1971 § 990 makes all errors, other than the timely filing of an appeal, nonjurisdictional; Dolezal v. Bostick, 41 Okl. 743, 139 P. 964, 969 [1914].

8 The status change is clearly authorized by 12 O.S. 1971 § 226 .

9 Cochran v. Rambo, Okl., 484 P.2d 500 [1971]; Mapco, Inc. v. Means, Okl., 538 P.2d 593 [1975].

10 Blair v. District Court of Oklahoma County, Okl., 594 P.2d 367 [1979]; 50 OBJ 956, 957.

11 Rules on Perfecting a Civil Appeal, 12 O.S. Ch: 15, App. 2. Rules 1.20(c), 1.24(a), 1.25(b), 1.25(d), 1.25(e) and 1.26.

12 See supra notes 9 and 10.

13 Rules on Perfecting a Civil Appeal, supra note 11, Rule 1.13; Mapco, Inc. v. Means, supra note 9.

14 See note 9.