* This order and judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. The court

generally disfavors the citation of orders and judgments; nevertheless, an order

and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

F I L E D

United States Court of Appeals

Tenth Circuit

JUL 22 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ARLIN RUSSELL; CATHY

RUSSELL, individually and as duly

appointed Co-Guardians of Jacob Ryan

Russell,

Plaintiffs-Appellees,

PERRY TRENT,

Plaintiff-IntervenorAppellant,

v.

YELLOW FREIGHT SYSTEM, INC.;

THE INSURANCE COMPANY OF

THE STATE OF PENNSYLVANIA,

Defendants.

No. 97-7119

(D.C. No. 97-CV-88-S)

(E.D. Okla.)

ORDER AND JUDGMENT *

Before KELLY , BARRETT , and HENRY , Circuit Judges.
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After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

This case involves a dispute over the apportionment of attorney fees arising

from the partial settlement of a wrongful death action. Appellant Perry Trent

appeals the attorney fees awarded to counsel for appellees Arlin and Cathy Russell

(the Russells). We affirm.

Background

The Russells filed a wrongful death action, individually and as co-guardians

of their grandson, Jacob Ryan Russell. The Russells sought damages arising from

the death of their daughter, Tammy Marie Trent, and for injuries incurred by

Jacob, Tammy’s minor son, when Tammy’s car collided with a vehicle operated by

an employee of defendant Yellow Freight System, Inc. Defendant moved for

dismissal based on Okla. Stat. tit. 12, §§ 1053, 1054 which provide that an action

for wrongful death may be brought only by the personal representative of the

decedent’s estate, the surviving spouse if no personal representative has been

appointed, or the next of kin if there is no surviving spouse. While defendant’s

motion to dismiss was pending, Perry Trent, Tammy’s estranged husband, applied
1 Tammy and Perry Trent had been married for only three months at the time

of her death. They were in the process of divorce and all that was needed to

finalize the divorce was the court’s signature. Perry Trent is not Jacob’s father.

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for appointment as personal representative of her estate.1 The Russells objected to

Trent’s appointment as personal representative.

Counsel for the Russells entered into a April 4, 1997 letter agreement with

counsel for Trent, whereby the parties agreed to certain procedural and substantive

guidelines for the prosecution of the lawsuit. See Appellant’s App. at 24. In the

letter agreement the parties agreed that the Russells would withdraw their

objection, and that Trent would be appointed as personal representative of

Tammy’s estate. They further agreed that Trent, as personal representative, would

join the lawsuit, but that the Russells, as Jacob’s guardians, would continue as

plaintiffs. The district court subsequently granted Trent’s motion to intervene. Of

significant importance to the question before this court is the parties agreement

that “[n]either law firm will share in the respective fees from our clients.” Id.

The Russells successfully negotiated an agreement with defendant, settling

their claims against defendant both individually and as co-guardians for Jacob. 

The $410,000 settlement was structured as $150,000 to purchase an annuity for

Jacob, $100,000 to the Russells for medical and funeral expenses, grief, and loss

of companionship, and $160,000 for attorney fees. Trent initially objected to the
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the terms of the agreement, but “withdrew his objection to the settlement on the

basis that the settlement reflected a reasonable settlement on behalf of the child.” 

Appellant’s Br. at 8. The Russells and Trent then jointly moved the court for

approval of the partial settlement agreement. The district court approved the

agreement, dismissed the Russells’ claims with prejudice, dismissed Trent’s claims

without prejudice, and retained jurisdiction for the limited purpose of

apportioning attorney fees.

Because the respective attorneys were unable to agree on how the $160,000

attorney fee amount should be apportioned, the district court held a hearing on the

matter. Following the hearing, the court entered an order distributing the entire

$160,000 to the Stripe Law Firm, counsel for the Russells. Trent, in his capacity

as personal representative of Tammy’s estate, appeals the district court’s decision.

Discussion

In diversity cases, the federal courts apply state law to a decision

determining the propriety of an attorney fees award. See Boyd Rosene & Assocs.

v. Kansas Mun. Gas Agency, 123 F.3d 1351, 1352 (10th Cir. 1997). Under

Oklahoma law, an award of attorney fees is within the discretion of the trial court

and will not be disturbed absent abuse of that discretion. See Green Bay

Packaging, Inc. v. Preferred Packaging, Inc., 932 P.2d 1091, 1097 (Okla. 1996).
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Trent does not claim, nor is there record evidence, that Trent’s counsel

was involved in any of the negotiations resulting in the Russells’ settlement

agreement. Trent asserts that his counsel did “intensive work” preparing to assert

his claims in court, including hiring an economic expert and subpoenaing

Tammy’s employment records. Appellant’s Br. at 7. It appears that the “intensive

work” appellant claims his attorney put forth was for the purpose of supporting

Trent’s claims as surviving spouse and would not have been particularly beneficial

to the Russells or Jacob.

The district court found that the entire amount realized in the settlement

agreement benefitted the Russells and Jacob, and no portion was to compensate

Trent as surviving spouse. The court reasoned that, because Trent’s claims were

dismissed without prejudice, he may still pursue those claims in subsequent

litigation. As the district court found, the Russells were at all times represented

by their own retained counsel. There was no fee agreement between the Russells

and Trent’s counsel.

“[W]here an attorney recovers a fund in a suit under a contract with a

client providing that he shall be compensated only out of the fund he creates,

the court having jurisdiction of the subject matter of the suit has power to fix

the attorney’s compensation and direct its payment out of the fund.” Garrett v.

McRee, 201 F.2d 250, 253 (10th Cir. 1953). Although counsels’ April 4, 1997
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letter agreement was an agreement between the respective counsel and not between

counsel and client, see Appellant’s App. at 24, the stipulation not to share in the

respective fees from their respective clients is clear. Therefore, absent any

showing that the district court’s decision to distribute the entire attorney fee award

to counsel for the Russells was an abuse of discretion, we affirm.

Trent also appears to argue that, as both surviving spouse and personal

representative, his status as the only proper person to bring a wrongful death

action entitles his attorney to share in the attorney fees award. He further argues

that the terms of the settlement agreement went far beyond compensation for

Jacob’s injuries. The only issue before this court is the district court’s decision

apportioning attorney fees. Neither the procedural posture of the case nor the

terms of the settlement agreement are issues properly before us. Because this

court has no jurisdiction to review decisions not raised in appellant’s notice of

appeal, we do not address these arguments. See Foote v. Spiegel, 118 F.3d 1416,

1422 (10th Cir. 1997).

The judgment of the United States District Court for the Eastern District

of Oklahoma is AFFIRMED.

Entered for the Court

Robert H. Henry

Circuit Judge