                                                              F I L E D
                                                        United States Court of Appeals
                                                                Tenth Circuit
                 UNITED STATES COURT OF APPEALS
                                                                JAN 4 2000
                          FOR THE TENTH CIRCUIT
                                                          PATRICK FISHER
                                                                    Clerk

CECILIA M. EMSHOFF,

            Plaintiff-Appellant,

REYNOLDS & REYNOLDS, as                         No. 99-4031
administrator of the Reynolds and         (D.C. No. 96-CV-329-S)
Reynolds Company Group Health                    (D. Utah)
Benefit Plan,

            Plaintiff-Intervenor-
            Appellee,

      and

KEVIN T. EMSHOFF,

            Plaintiff,

v.

ARLEN JARRETT, M.D.; SOUTH
VALLEY WOMEN’S HEALTH
CARE, a Utah corporation;
REMINGTON BROOKS, M.D.;
WEST JORDAN HOSPITAL, doing
business as Jordan Valley Hospital,
a corporation,

            Defendants.
                            ORDER AND JUDGMENT             *




Before BALDOCK , PORFILIO , and BRORBY , Circuit Judges.




       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)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

       Plaintiff-appellant Cecilia M. Emshoff appeals from the district court’s

denial of her motion for attorney’s fees and costs. Plaintiff-intervenor-appellee

The Reynolds and Reynolds Company       1
                                            (Reynolds) moves for attorney’s fees and

costs on appeal, arguing that this appeal is frivolous. We have jurisdiction under

28 U.S.C. § 1291.




*
      This order and judgment is not binding precedent, except under the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.
1
       Designated in the caption as Reynolds & Reynolds.

                                            -2-
      Mrs. Emshoff sued defendants for medical malpractice. Reynolds, the

administrator of her husband’s health benefit plan, intervened on behalf of the

plan in order to assert a subrogation claim to recover approximately $230,000 in

medical benefits the plan had paid on her behalf. Shortly before trial, Reynolds

settled its subrogation claim with the defendants for $110,000, and released

Mrs. Emshoff from a contractual obligation to repay plan benefits plus attorney’s

fees and costs expended to advance its subrogation claim. A few days later,

Mrs. Emshoff settled her medical malpractice claim with the defendants. After

she settled her claim, Mrs. Emshoff filed a motion seeking to recover a portion of

Reynolds’ settlement under the common fund or benefit doctrine, on the theory

that Reynolds’ counsel benefitted from her attorney’s legal work without paying

for it. The district court held that: (1) Mrs. Emshoff’s attorney did not create a

common fund; (2) there was no benefit to Reynolds for which it should pay

additional fees and costs because it settled for less than the amount Mrs. Emshoff

owed the health benefit plan; and (3) application of the common fund doctrine

would contravene the express language of the plan. The district court concluded

that Mrs. Emshoff was not entitled to a portion of Reynolds’ settlement.

      Mrs. Emshoff argues on appeal that a common fund was created, that the

common fund doctrine should be applied in this case, and that Reynolds should

pay part of its settlement to her. We have carefully reviewed the parties’


                                         -3-
materials. We are unpersuaded by plaintiff’s assertions of error, and affirm for

substantially the same reasons as those set forth in the district court’s January 14,

1999 memorandum decision.

      We do not find, however, that “the result is obvious, or the appellant’s

arguments of error are wholly without merit.”    Braley v. Campbell , 832 F.2d

1504, 1510 (10th Cir. 1987) (quotation omitted). Reynolds’ motion for attorney’s

fees and costs on appeal is therefore denied.

      AFFIRMED.



                                                     Entered for the Court



                                                     John C. Porfilio
                                                     Senior Circuit Judge




                                           -4-
