Richard M. Stockton and Phyllis I. Stockton v. United States of America, Conrad H. Goerl, Intervenor-Appellee

493 F.2d 1021 74-1 USTC P 9377 Richard M. STOCKTON and Phyllis I. Stockton, Plaintiffs-Appellants, v. UNITED STATES of America, Defendant, Conrad H. Goerl, Intervenor-Appellee. No. 73-2190. United States Court of Appeals, Ninth Circuit. March 14, 1974. James Joseph Lewis, of Pistone, Schatz, Slavett, Lewis & Smith, Encino, Cal., for plaintiffs-appellants. Richard S. Berger, Frank C. Christl, of Gendel, Raskoff, Shapiro & Quittner, Los Angeles, Cal., for intervenor-appellee. OPINION Before WRIGHT, KILKENNY and WALLACE, Circuit Judges. Eugene A. WRIGHT, Circuit Judge: May an attorney in a tax refund suit intervene under Fed.R.Civ.P. 24(a)(2) to assert a claim for attorney's fees? The district court granted leave to intervene, and we reverse. Intervention was improper under the facts of this case and the judgment awarding a fee to the intervenor must be vacated. 1 Mr. and Mrs. Stockton retained attorney Goerl in 1969 to represent them in an action for a tax refund. A successful suit resulted in a judgment in September 1971 for $105,445.66. Thereafter, Debtor Reorganizers, Inc., as assignee of creditors of the Stocktons, sought to intervene, but leave was denied on October 18…

Before WRIGHT, KILKENNY and WALLACE, Circuit Judges.

May an attorney in a tax refund suit intervene undér Fed.R.Civ.P. 24(a)(2) to assert a claim for attorney’s fees? The district court granted leave to intervene, and we reverse. Intervention was improper under the facts of this case and the judgment awarding a fee to the intervenor must be vacated.

Mr. and Mrs. Stockton retained attorney Goerl in 1969 to represent them in an action for a tax refund. A successful suit resulted in a judgment in September 1971 for $105,445.66. Thereafter, Debtor Reorganizers, Inc., as assignee of creditors of the Stocktons, sought to intervene, but leave was denied on October 18 and Debtor Reorganizers appealed. It then moved for a stay of execution of judgment until its appeal was determined.

At a hearing on November 29, the district court expressed concern that a stay might delay Goerl in receipt of his fee, and Mr. Stockton advised the court that a fee of one-third of the judgment was owing to Goerl. The court orally directed the government to pay Goerl that amount and the remainder of the judgment to be paid to the clerk pending the appeal by Debtor Reorganizers. The order was never…

(dissenting) :

I am unable to recognize a meaningful distinction between the facts in this case and those before the court in Gaines v. Dixie Carriers, Inc., 434 F.2d 52 (CA5 1970), and would affirm on thé basis of that authority.