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GILCHRIST MACHINERY COMPANY, INC. AND UNITED STATES FIDELITY GUARANTY COMPANY v. FREDERICK A. ROSS

SEPTEMBER 03, 1986

GILCHRIST MACHINERY COMPANY, INC. AND UNITED STATES FIDELITY GUARANTY COMPANY
v.
FREDERICK A. ROSS, JR.



BEFORE ROY NOBLE LEE, P.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

When lawyer and client throw litigational prudence to the wind and go after the pot of gold and the pot won largely turns out to be plate, the matter of attorneys fees and legal expenses often produces unseemly acrimony. Here a Jackson attorney claims that for a year he did practically nothing other than peruse a federal antitrust and unfair trade practices action in federal court, while the client claims the lawyer either did too much or has padded his bill.

 The chancellor patiently listened and resolved most of the rather messy factual issues in favor of the attorney. With two exceptions, we affirm. The matter of unreimbursed legal expenses, however, was not decided and the case must be remanded for consideration of that point.

 II.

 Gilchrist Machinery Company, Inc., is in the heavy equipment business in the Jackson, Mississippi area. Robert A. Gilchrist is its president and chief operating officer. Gilchrist Machinery was one of the Defendants and is one of the Appellants here.

 Gilchrist Machinery was a retail franchisee for Komatsu American Corporation, a Manufacturer of heavy equipment. In late 1983 or early 1984, Komatsu notified Gilchrist Machinery that its dealership was being terminated. Gilchrist Machinery brought an action in the United States District Court for the Southern District of Mississippi seeking injunctive relief and damages under the California Franchise Act and under the federal antitrust laws.

 Gilchrist Machinery employed Frederick A. Ross, Jr., an attorney practicing in Jackson, to represent it in the Komatsu litigation. Ross was the Plaintiff below and is the Appellee here. Ross had done the legal work incident to forming the corporation, Gilchrist Machinery, and had represented the company in connection with numerous matters for some seven or eight years. Fred Ross and Bob Gilchrist appear to have been good friends during this time. To assist him in the Komatsu litigation, Ross associated James A. Becker, an attorney with the Watkins & Eager law firm in Jackson, and an out-of-state attorney named James R. Amschler, of Cincinnati, Ohio.

 After an extended period of discovery, including a large number of depositions and a number of days inspecting documents, a preliminary injunction hearing was held in U. S. District Court in December, 1984. The District Court ruled

 against Gilchrist Machinery, denying its motion for preliminary injunction. See Gilchrist Machinery Company, Inc. v. Komatsu America Corp., 601 F. Supp. 1192 (S.D.Miss. 1984). After that, settlement negotiations were commenced, culminating in a settlement of the suit in early February, 1985.

 During the course of litigation, Ross rendered monthly bills to Gilchrist Machinery, which remitted partial payments from time to time.

 For work done during the months of January, February, March, April and May, 1984, Ross charged Gilchrist $70 per hour for out-of-court work and $90 per hour for depositions and in-court work. This is the same rate which Ross had been charging Gilchrist Machinery for work on other cases. On his bills for work done after June 1, 1984, Ross started charging at a straight hourly rate of $90 for all work.

 Fred H. Krutz, III, a Jackson attorney, who represented Komatsu in the federal litigation, said that he spent 200 hours a month on the case for a period of five months. Krutz dealt with both Ross and Becker, although most of his dealings were with Becker. He said that in his opinion $90.00 per hour would be a reasonable fee for Ross to have charged for his services in the case.

 Becker explained that he was called in on the Komatsu case by Ross in late January or early February, 1984. Becker billed Gilchrist at the agreed rate of $100.00 per hour. He stated that Ross had prepared the pleadings before he got into the case. Becker said that he and Ross worked on the case for almost a year and that the Komatsu case was one of the hardest cases he had ever seen and that he and Ross worked hard and sometimes worked after hours.

 At the conclusion of the Komatsu litigation Gilchrist had paid to Ross in excess of $117,000 on Ross' attorneys fees and expenses. Ross asserted a claim, based on his billings, for a balance due of an additional $82,460.56. An agreement was reached whereby this sum was deposited in escrow pending the outcome of the present fee litigation. Subsequently, the funds deposited in escrow were released to ...


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