* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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.-2-

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. This case involves a dispute over the apportionmentof attorney fees arising from the partial settlement of a wrongful death act ion. Appellant Perry Trent appeals the attorney fees awarded to counsel for ap pellees Arlin and Cathy Russell (the Russells). We affirm. Background The Russells filed a wrongful death action, individ ually and as co-guardians of their grandson, Jacob Ryan Russell. The Russell s sought damages arising from the death of their daughter, Tammy Marie Trent, andfor 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, 10 54 which provide that an action for wrongful death may be brought only by the perso nal representative of the decedent’s estate, the surviving spouse if no perso nal representative has been appointed, or the next of kin if there is no surviv ing spouse. While defendant’s motion to dismiss was pending, Perry Trent, Tammy’s estranged husband, applied1 Tammy and Perry Trent had been married for only thr ee 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. Pe rry Trent is not Jacob’s father. -3- for appointment as personal representative of her e state. 1 The Russells objected to Trent’s appointment as personal representative. Counsel for the Russells entered into a April 4, 19 97 letter agreement with counsel for Trent, whereby the parties agreed to ce rtain 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 Russel ls would withdraw their objection, and that Trent would be appointed as per sonal 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 grante d 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 respecti ve fees from our clients.” Id. The Russells successfully negotiated an agreement w ith defendant, settling their claims against defendant both individually an d 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 fun eral expenses, grief, and loss of companionship, and $160,000 for attorney fees. Trent initially objected to the-4-

the terms of the agreement, but “withdrew his objec tion to the settlement on the basis that the settlement reflected a reasonable se ttlement 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 prej udice, dismissed Trent’s claims without prejudice, and retained jurisdiction for th e limited purpose of apportioning attorney fees. Because the respective attorneys were unable to agr ee 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 Ru ssells. Trent, in his capacity as personal representative of Tammy’s estate, appea ls 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 t he discretion of the trial court and will not be disturbed absent abuse of that disc retion. See Green Bay Packaging, Inc. v. Preferred Packaging, Inc. , 932 P.2d 1091, 1097 (Okla. 1996).-5-

Trent does not claim, nor is there record evidence, that Trent’s counsel was involved in any of the negotiations resulting i n the Russells’ settlement agreement. Trent asserts that his counsel did “int ensive work” preparing to assert his claims in court, including hiring an economic e xpert and subpoenaing Tammy’s employment records. Appellant’s Br. at 7. It appears that the “intensive work” appellant claims his attorney put forth was f or 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 rea lized 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 th ose claims in subsequent litigation. As the district court found, the Russe lls were at all times represented by their own retained counsel. There was no fee ag reement between the Russells and Trent’s counsel. “[W]here an attorney recovers a fund in a suit unde r 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 matterof 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 cou nsels’ April 4, 1997-6-

letter agreement was an agreement between the respe ctive 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 cl ear. Therefore, absent any showing that the district court’s decision to distr ibute the entire attorney fee award to counsel for the Russells was an abuse of discret ion, we affirm. Trent also appears to argue that, as both surviving spouse and personal representative, his status as the only proper perso n to bring a wrongful death action entitles his attorney to share in the attorn ey fees award. He further argues that the terms of the settlement agreement went farbeyond compensation for Jacob’s injuries. The only issue before this courtis the district court’s decision apportioning attorney fees. Neither the procedural posture of the case nor the terms of the settlement agreement are issues proper ly before us. Because this court has no jurisdiction to review decisions not r aised 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 fo r the Eastern District of Oklahoma is AFFIRMED. Entered for the Court
Robert H. Henry Circuit Judge