PU sues attorneys seeking fees from Nicaraguan banana-picker litigation

David Yates Jan. 30, 2012, 9:12am


The Beaumont-based Provost Umphrey Law Firm is suing several attorneys over fees stemming from litigation brought against Dole on behalf of Central American banana pickers.

The suit was filed Jan. 25 in Jefferson County District Court. The defendants named in the suit include the Law Offices of Benton Musslewhite, Carolyn Musslewhite, Newton Schwartz, Robert Roberts, David Pettus, Steven Kherker, Susan Kherker and David Line.

Court records show that PU handled thousands of banana-worker cases involving the exposure of Central Americans to dibromochloropropane (DBCP), a pesticide that was banned in the U.S. in 1977 due to its toxicity to male testes.

There is a tentative settlement involving three of the five countries where Provost Umphrey litigates DBCP cases. Currently, Provost Umphrey litigates DBCP cases in Nicaragua, Costa Rica, Honduras, Panama and Guatemala. This tentative settlement is one with one grower, Dole Food Co. Inc, and implicates only Nicaragua, Costa Rica and Honduras, according to the suit.

According to the lawsuit, PU and Benton Musslewhite in 2000 executed a case referral and advance fee agreement, negotiating the deal in Beaumont. Musslewhite would originate the banana-worker claims, then refer them to PU.

The agreement calls for PU to receive 60 percent of attorney's fees of cases settled before or during trial and 66 percent if the case is tried to verdict and Musslewhite does not participate in the trial. The remaining percent belongs to Musslewhite.

Throughout the years, Musslewhite "purported to further pledge, assign, sell, or otherwise convey his purported interest in the banana-worker cases ... under the referral agreement to other parties, who claim interest in resulting fees," the suit states.

"None of the defendants in this case actually financed this litigation, and it is undisputed that Provost Umphrey did virtually all of the litigation work without the help of any defendant, save perhaps the occasional trip by Musslewhite to Central America," the suit states.

PU claims there remains "several millions dollars in expenses and advances on the banana-worker litigation, for which, of course, none of these defendants have paid, none of these defendants have offered to pay, and, for that matter, none of these defendants will ever pay."

"It is axiomatic to any licensed attorney in this State that when a case is settled and there remains more expenses on the file, the expenses are paid down first, and only after expenses do you distribute fees," the suit states.

The suit further argues that the defendant attorneys' claims for money should come out of Musslewhite's interest, not PU's.

In addition, Carolyn Musslewhite, wife of attorney Benton Musslewhite, is also seeking a cut of the fees.

"Simply being married to an attorney does not, through some sort of community-property assertion, transmogrify a non-lawyer into a lawyer, entitled to attorney's fees apart from her marriage."

In a footnote in the original complaint, PU states that Carolyn Musslewhite "sees the writing on the Musslewhite law – that he has no fees to pledge, assign or convey, and will not get any from this settlement."

"So, Carolyn Musslewhite seeks to leap-frog her husband and claim, directly against Provost Umphrey, some entitlement to attorney's fees apart from asserting a claim from her husband. Such is wholly improper, and frankly frivolous on its face as it contravenes the express language of the disciplinary rules, as well as common sense.

"If Carolyn Musslewhite fears her husband will abscond with attorney's fees he earns as an attorney, let her sue him, not the one who is actually working to earn the fee."

The law firm is asking for a declaration that there is no earned attorney's fee under the referral agreement available to any defendant from the funds of a partial settlement, as their remains significant expenses.

PU attorneys Joe Fisher II and Mark Sparks represent the firm.

Judge Donald Floyd, 172nd District Court, is assigned to the case.

Case No. E191-813

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