IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-20721

(Summary Calendar)

JAN SCHNEIDER,

Plaintiff-Appellant/

Cross-Appellee, 

versus

PERLEY-ROBERTSON, PANET, HILL 

& MCDOUGALL, A PARTNERSHIP; 

A. DELOTBINIERE PANET; DAVID H. 

HILL; THOMAS A. MCDOUGALL; TREVOR 

C. KLOTZ; RAY SIMSER; PAUL B. KANE; 

GRANT A JAMESON; PAUL G. BREGMAN; 

ROGER B. TUCKER; MICHAEL A GERRIOR; 

MARY F. OMEROD; ANNE L. MCTAVISH; 

RICHARD A. WAGNER; D. JOHN NACCARATO; 

HUGH BLAKENEY; DAVID MIGICOVSKY; 

JOHN W. DICKIE; ANNETTE J. NICHOLSON; 

ANTHONY P. MCGLYNN; KATHERYN L. SHADBOLT; 

BARBARA J. NICHOLS; R. AARON RUBINOFF; 

MARGARET I. THOMAS; RIMGATE HOLDINGS 

LTD; IAN A. MCDOUGALL, 

Defendants-Appellees/ 

Cross-Appellants. 

Appeal from the United States District Court

for the Southern District of Texas

(CA H-94-2892)

April 9, 1997
 

* Pursuant to Local Rule 47.5, the court has determined that

this opinion should not be published and is not precedent except

under the limited circumstances set forth in Local Rule 47.5.4.

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Before HIGGINBOTHAM, WIENER and BENAVIDES, Circuit Judges. 

PER CURIAM:*

The litigation of which this appeal is the sole remaining

shard has involved numerous law firms and untold lawyers throughout

many of the several states and Canada. The original parties

litigant and the issues that provoked the substantive litigation in

the first place have faded into the mist of history, as has the

first round of subsequent litigation and wrangling over division of

the attorneys’ fees earned in that original, substantive

litigation. Unseemly as it is, all that is now before us ——

wasting judicial resources, expending assets of attorneys who now

are clients of other attorneys, and presenting a sorry spectacle of

the entire profession —— is the question whether the district court

that most recently touched this matter committed reversible error

in awarding attorneys’ fees to Plaintiff-Appellant Jan Schneider

(“Schneider”) incurred in recovering her attorneys’ fees from the

original litigation; and, more importantly, whether the court erred

reversibly in the methodology employed (more accurately, not

employed) in determining the dollar amount awarded. Mercifully,

both Schneider and Defendants-Appellees (“Perley-Robertson, et

al.”) have finally agreed on two points: first, that oral argument
 

1 488 F.2d 714 (5th Cir. 1974) (en banc). 

 

2 This Order is not accompanied or preceded by an opinion of

the court. 

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is not needed to assist us in deciding this appeal; and, second,

that we should remand this matter to the district court, given its

failure to comply with the methodology mandated by this court’s

jurisprudence, principally Johnson v. Georgia Highway Express,

Inc.,

1 and its progeny. We agree on both counts. 

I

 A.

First, we dismiss as meritless and legally frivolous the

cross-appeal of Perley-Robertson, et al. 

Second, we affirm the portion of the order of the district

court appealed from —— its Order of June 26, 1996 —— which

concludes that Schneider “should be awarded reasonable and

necessary legal fees and costs.”

Third, we reverse and remand the portion of the order appealed

from that specifies the quantum of the legal fees and costs awarded

to Schneider. Regrettably, there is nothing in that all-too-brief

order —— or elsewhere —— to indicate what the district court may

have considered in arriving at its lump sum award of $50,000. Not

only are we unable to correlate that sum with anything in the

record, the court’s ruling is bereft of any information that might

give us a clue as to how it arrived at that amount.2 

B.
 

3 Johnson v. Georgia Highway Express, 488 F.2d at 719-20. 

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Generally, for us to hold that the district court has abused

its discretion there must be some indication that the court has

endeavored to exercise its discretion. In this instance, the court

has favored us with no indicia that such an effort was made.

Fortunately, though, when it comes to fixing the quantum of

reasonable attorneys’ fees, Johnson teaches that failure of the

district court to consider its factors constitutes an abuse of

discretion.3 Our general practice when, as here, we encounter an

award of attorneys’ fees and costs that has been granted by the

district court without following the methodology required by the

clear jurisprudence of this court, is to remand that issue to the

district court with instructions to follow that methodology and

explicate that exercise in sufficient detail for us to review it on

appeal. We have, on those rare occasions when the record on appeal

was sufficient to permit us to address the appropriate factors and

calculate reasonable fees and costs ourselves, determined the

amounts of such fees and costs, and rendered rather than remanded.

When we have done so it has been in the interest of preserving

judicial resources, avoiding costs to the litigants, and preventing

additional waste of time. Although the record on appeal now before

us is sufficient for us to perform the exercise required by our own

decisions and calculate the appropriate fee at this level, we

choose instead to follow our customary practice and remand only the
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issue of quantum to the district court so that it will have the

first opportunity to apply the appropriate procedure and determine

the appropriate amount. 

II

A.

On remand, the district court should follow our mandated

methodology —— of which Schneider’s appellate brief constitutes an

excellent road map that the court would do well to follow —— and

(1) calculate truly reasonable legal fees and costs; (2) explicate

in detail the steps taken and reasoning followed in applying that

methodology to the relevant facts; and (3) award the amount thus

calculated to Schneider. As we reject out of hand the arguments

made by Perley-Robertson, et al., in their briefs on appeal, we

suggest that the district court would be better served to do the

same, lest confusion or obfuscation result. In this regard we

observe that Perley-Robertson, et al., elected not to controvert

the detailed data submitted by Schneider in support of the quantum

of the reasonable fees and costs that she seeks to recover. As

such, Perley-Robertson, et al., have irrevocably forfeited their

right to do so. Consequently, on remand the district court shall

treat such submissions by Schneider as uncontradicted. 

B. 

Also in keeping with our usual practice, we instruct the

district court to calculate and award additional reasonable

attorneys’ fees and costs to Schneider to compensate her for those
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incurred in connection with this appeal and those to be incurred in

connection with the forthcoming proceedings in the district court

on remand; and to employ the same methodology in so doing.

Schneider shall file with the district court appropriate

documentation to support awards of such additional fees and costs.

C.

Finally, we caution Perley-Robertson, et al, that, in light of

our view that their filings and arguments in this appeal are

unmeritorious and legally frivolous (except for their agreement

that remand is required), they shall risk incurring sanctions from

this court if, following the district court’s determination, on

remand, of the appropriate quantum of Schneider’s reasonable and

necessary legal fees and costs, Perley-Robertson, et al., should

take any action or file any pleadings or other writings that we

might deem to be frivolous, dilatory, vindicatory, or contumacious.

III

For the foregoing reasons, Perley-Robertson, et al.’s cross

appeal is dismissed; the Order of the district court is affirmed in

part, to the extent that it holds Schneider is entitled to

reasonable attorneys’ fees and costs; the Order of the district

court is reversed in part, as to the amount of its award, and the

issue of the quantum of fees and costs to be awarded is remanded

with instructions; and the court is instructed to calculate and

award additional attorneys’ fees and costs incurred by Schneider in

this appeal and in the proceedings on remand in that court. 
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AFFIRMED in part; REVERSED and REMANDED in part, with instructions;

Cross-Appeal DISMISSED.