                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        ________________________                  FILED
                                                         U.S. COURT OF APPEALS
                               No. 07-10324                ELEVENTH CIRCUIT
                                                              AUGUST 2, 2007
                           Non-Argument Calendar
                                                            THOMAS K. KAHN
                         ________________________
                                                                 CLERK

                       D. C. Docket No. 04-00041-CV-5

IDELLE M. BOATRIGHT,
by and through her Legal Guardian,
Greggory D. Boatright,
Individually and as Spouse of Edward D. Boatright, Deceased,

                                                       Plaintiff-Appellant,

BETTY J. BOWLING,

                                                       Plaintiff,

                                    versus

R.J. CORMON RAILROAD COMPANY/MATERIAL SALES,
CHAD E. MCKINNEY,

                                                       Defendants-Appellees.

                         ________________________

                  Appeal from the United States District Court
                     for the Southern District of Georgia
                       _________________________


                               (August 2, 2007)
Before ANDERSON, BARKETT and MARCUS, Circuit Judges.

PER CURIAM:

      This is an appeal from the district court’s order granting the “Verified Petition

to Approve Settlement” that was filed by Greggory D. Boatright, a co-guardian for

his mother, Idelle Boatright, who is incapacitated with Alzheimer’s disease. After

review, we affirm.

      In the underlying wrongful-death action, which was before the district court

based on diversity jurisdiction, Idelle Boatright, by and through her son Greggory,

sued R.J. Cormon Railroad Company/Material Sales (“R.J. Cormon”) and Chad

McKinney for damages resulting from the death of Idelle’s husband, Edward

Boatright, who was killed instantly when a vehicle in which he was traveling collided

with a tractor-truck owned by R.J. Cormon and operated by McKinney. Because

Edward Boatright died intestate, parallel probate proceedings took place in the

Probate Court of Ware County, Georgia.

      In the district court, after mediation, the parties reached a settlement of the

wrongful-death claim, in the amount of $295,000.00, and filed a Stipulation of

Dismissal with Prejudice, pursuant to Rule 41(a) of the Federal Rules of Civil

Procedure. The district court sua sponte reserved ruling on the Stipulation, noting

that an incompetent (Idelle Boatright) was a party to the action and ordering the

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parties to review Rule 17.1 of the Local Rules of the District Court for the Southern

District of Georgia, which is entitled “Minors, Wards, and Incompetents” and

provides, in pertinent part, the following:

             (a) No action to which a party is a minor, an incompetent adult
      under guardianship of person and/or property or other person suffering
      under a mental disability shall be compromised, settled, discontinued,
      or dismissed except after approval by the Court pursuant to a petition
      presented by the guardian or personal representative of such party, such
      as the circumstances might require.

      ....

      (c) When a compromise or settlement has been so approved by the
      Court or when a judgment has been entered upon a verdict or by
      agreement, the Court, upon petition by the guardian or any party to the
      action, shall make an order approving or disapproving any agreement
      entered into by the guardian for the payment of counsel fees and other
      expenses out of the fund created by the compromise, settlement, or
      judgment; or the Court may make such order as it deems proper fixing
      counsel fees and other proper expenses. The Court may then order the
      balance of the fund to be paid to the guardian of the person or estate of
      such person qualified to receive the fund. Such order may provide for
      the investment of said fund, if appropriate, and the filing of periodic
      returns by such guardian or personal representative, accounting for the
      encroachment upon or expenditure of said fund.

(emphasis added).

      Thereafter, Greggory Boatright, as a co-guardian for his mother, filed a

“Verified Petition to Approve Settlement” to which he attached the following items:

(1) a contingency fee agreement, executed by Greggory Boatright and the law firm



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which brings this appeal, providing that Greggory Boatright agreed to pay counsel

40% of any recovery received in settlement of the wrongful-death claim at mediation

or prior to trial; (2) an itemization of costs owing to the law firm in the amount of

$12,691.34; (3) a Settlement Statement indicating that from the $295,000.00 gross

recovery from the defendants, $118,000.00 would be allocated for attorneys’ fees,

Idelle Boatright would receive $54,769.54, and each of the eight Boatright children

would receive $13,692.39; and (4) a copy of an order from the Probate Court of Ware

County approving the settlement.

      Thus, according to the terms of the settlement agreement, the parties proposed

allocating the $295,000.00 in settlement proceeds as follows: one-third of the

proceeds to Idelle Boatright and the remaining two-thirds divided between the

Boatrights’ eight children in equal shares. In its order on the Local Rule 17.1

Petition, the district court approved settlement of the wrongful-death claim but

ordered the following allocation of the attorneys’ fees and costs:

      Plaintiffs’ counsel shall not charge in excess of 25% attorney fees
      against the share of the settlement allocated to Idelle Boatright. Thus,
      as to Ms. Boatright’s one-third share of $98,333.33, Plaintiffs’ counsel
      shall not charge in excess of $24,583.33.

              However, the share of the settlement allocated to the Boatright
      children may be charged subject to the contract rate [of 40%]. Thus, as
      to the remaining two thirds of the settlement, or $196,666.67, Plaintiffs’
      counsel may charge up to 40%, or $78,666.67.

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            In addition, all expenses of litigation shall come out of the
      children’s portion of the settlement. The Court approves the total
      itemized costs of $12,691.34. But no portion of these expenses shall be
      charged to Idelle Boatright.

      Greggory Boatright, acting as a legal guardian for Idelle Boatright, filed a

Notice of Appeal, challenging the district court’s order insofar as it modified (in

Idelle’s favor) the contingency percentage as to Ms. Boatright’s portion of the

settlement proceeds. Plaintiff’s counsel, acting on behalf of Greggory Boatright as

guardian for his mother, also moved for reconsideration, arguing that counsel would

not have agreed to represent Greggory Boatright, as guardian for his mother, for a

reduced contingency fee.

      In its order denying reconsideration, the district court reiterated that Local Rule

17.1 required the court to make an independent evaluation of the settlement. The

district court, exercising the independent judgment required by Rule 17.1, found, “in

light of Ms. Boatright’s incapacitation with Alzheimer’s disease, [that] . . . 40%

attorney fees [is] excessive” and that “the 40% contract rate resulted in excessive fees

charged against the incapacitated party.” The court observed the following:

      In the motion for reconsideration, Plaintiffs’ counsel states that he
      would not have agreed to represent Plaintiff for a reduced contingency
      fee of 25% in light of the disputed issue of liability in this case.
      However, the Order approving the settlement did not reduce the fees to
      25% with respect to the full settlement, but instead only reduced with
      respect to Ms. Boatright’s portion. By the Court’s calculation, the

                                           5
      effective rate of attorney fees pursuant to the Order was 35%. Thus, the
      Order resulted in only a 5% net reduction in attorney fees, and not a
      15% reduction as counsel suggests.

(footnote omitted). The district court then explained in a footnote how it arrived at

35% as the effective rate: “The total settlement is $295,000.00. As to Ms.

Boatrights’ 1/3 share of $98,333.33, the Court reduced the rate to 25%, or

$24,583.33. As to the children’s 2/3 share of $196,666.67, counsel were entitled to

charge the contract rate of 40%, or $78,666.67. This results in total attorney fees of

$103,250.00, which is 35% of the total settlement of $295,000.00.” If the district

court had not ordered a reduction in the amount of fees attributable to Idelle

Boatright, and counsel recovered 40% of the net award, the fee award would amount

to $118,000.00. Thus, the difference at issue in this appeal is $14,250.00. In the

Appellant’s brief, Ms. Boatright’s counsel argues that she should pay this amount,

pursuant to the terms of the contingency agreement executed by her son.

      The issues raised in Appellant’s brief concern the district court’s jurisdiction,

and authority under Local Rule 17.1, to order that the portion of attorneys’ fees

attributed to and charged against Idelle Boatright could not exceed 25% of the

settlement proceeds awarded to her. The Appellees, defendants in the underlying

wrongful-death action who have agreed to pay a gross settlement amount of




                                          6
$295,000.00, filed a Notice of Waiver waiving their right to file an answer brief and

stating that they do not oppose the relief requested.

      Counsel, representing the guardian of Ms. Boatright, appeals from the

judgment in favor of his client and granting the “Verified Petition” counsel filed. The

filing of a “Verified Petition” was mandated by the Local Rules of the District Court

for the Southern District of Georgia and the Petition was subject to the requirements

of Local Rule 17.1, of which we assume counsel was aware. That rule expressly

requires the district court to “make an order approving or disapproving any agreement

entered into by the guardian for the payment of counsel fees and other expenses out

of the fund created by the compromise, settlement, or judgment; or the Court may

make such order as it deems proper fixing counsel fees and other proper expenses.”

Exercising its authority under Rule 17.1, the district court fixed the fees chargeable

to the incapacitated Idelle Boatright at 25%, a modification of the contingency

percentage (which the district court found to be unreasonable, in light of Ms.

Boatright’s incapcity) that worked in Ms. Boatright’s favor. In essence, counsel

seeks this Court to order his client, Ms. Boatright, to pay an additional $14,250.00 in

attorneys’ fees, for a total fee award that the district court found to be unreasonable

in light of Ms. Boatright’s incapacitated state.




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       Our decision in Hoffert v. Gen’l Motors Corp., 656 F.2d 161 (5th Cir. Unit A

Sept. 1981),1 is instructive. In Hoffert, plaintiff’s counsel appealed from an order

reducing a contingency-fee award recoverable from the plaintiffs, who included a

minor represented by a guardian ad litem. We affirmed the district court’s sua sponte

decision to limit plaintiff’s counsel’s recovery because counsel had invoked the

court’s power by asking it to approve a settlement agreement. Id. at 164-65. We

noted that “the district judge has broad equity power to supervise the collection of

attorneys’ fees under such fee arrangements.” Id. at 165. Where an attorney “invokes

the court’s equitable power to approve a settlement agreement to distribute the

proceeds, the court must scrutinize the reasonableness of the contingent attorneys’ fee

contract which affects the net recovery to the plaintiff.” Id. (citing Cappel v. Adams,

434 F.2d 1278, 1280-81 (5th Cir. 1970)).

       Pursuant to our binding precedent, as well as the express mandate of Local

Rule 17.1 concerning settlements and the payment of attorneys’ fees pursuant to such

settlements involving an incapacitated party, we are wholly unpersuaded by counsel’s

arguments. The decision to reduce the contingency-fee percentage was well within

the district court’s discretion. Accordingly, we affirm.


       1
         In Bonner v. City of Prichard, 661 F.2d 1206 (11th Cir. 1981) (en banc), we adopted as
binding precedent all cases decided by the Fifth Circuit, including both Units A and B, prior to the
close of business on October 1, 1981.

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AFFIRMED.




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