ROLAND L. BELSOME, Judge.
Appellant, Sutterfield & Webb, LLC, appeals the trial court's order allocating a contingency fee between Appellant and attorney Gordon P. Serou, Jr. For the reasons that follow, we affirm.
Chimneywood Homeowners Association, Inc., the original plaintiff, hired John Ryan in December 2005 to assert a claim on its behalf against Eagan Insurance Agency and other Defendants.
In September 2006, with Chimneywood's consent, Mr. Ryan also engaged Sutterfield & Webb, L.L.C. ("S & W") to assist with the claim. Gordon Serou, a former law partner of Mr. Ryan, was a salaried attorney at S & W. While he was an attorney at S & W, Mr. Serou represented Chimneywood with Mr. Ryan from September 2006 until July 2007. An agreement between S & W and Chimneywood provided that S & W would work on the case with Mr. Ryan for an hourly rate of $75.00, and an agreement between S & W and Mr. Ryan provided that S & W would receive 40% of Mr. Ryan's 20% contingency fee.
On July 13, 2007, Mr. Serou resigned from S & W. Mr. Ryan subsequently contacted James Sutterfield, a senior partner at S & W, regarding a transfer of the Chimneywood file to Mr. Serou. Mr. Sutterfield requested a directive from Chimneywood before transferring the file. On July 31, 2007, Debbie Gordon, president of Chimneywood,
From that point forward, Mr. Serou represented Chimneywood with Mr. Ryan. Mr. Serou was paid $75.00 per hour by Chimneywood, and Mr. Ryan advised Chimneywood that Mr. Serou would receive 40% of Mr. Ryan's 20% contingency fee.
In May 2008, the matter settled for $1,250,000.00, with a resulting 20% contingency fee of $250,000.00. The settlement check was made out to "John H. Ryan & Gordon P. Serou Jr. Attys & Chimneywood Homeowners Association Inc."
After S & W filed a Petition of Intervention
On June 20, 2008, all parties agreed to dismiss the underlying litigation against Eagan and the other Defendants with prejudice, and a Joint Motion and Judgment of Dismissal was signed on that date. After the case was dismissed, Mr. Serou filed a Motion to Withdraw Attorney's Fee from the Registry of the Court, asserting that he and other attorneys at S & W worked a total of 99.2 hours on the case before resigning, and that after his resignation from S & W, Mr. Serou and his associate at The Law Offices of Gordon P. Serou, Jr., L.L.C., worked for a total of 150.2 hours on the case. He calculated that of the total 249.4 hours, he worked 60.22453% of the hours while employed at his new law practice, and 39.77546% of the hours while employed through S & W. Accordingly, Mr. Serou maintained that he should be awarded $60,224.53 of the $100,000.00 in disputed funds.
S & W filed a Motion to Strike, and in the alternative, an Exception of No Right of Action. S & W also filed its own Motion to Withdraw Funds From the Registry. In the motion, S & W argued that Mr. Serou and The Law Offices of Gordon P. Serou, Jr., L.L.C. were not parties to the action and that Mr. Serou's motion to withdraw should be stricken; and that Mr. Serou and his new practice had no right of action to recover funds from the registry of the court, nor any interest in the suit. S & W further argued that it was entitled to the entire $100,000.00 fee remaining in the registry of the court, while Mr. Serou had no right to any portion of the fee. S & W served a copy of the motion to Mr. Serou.
In October 2008, the trial court denied S & W's motion to strike and exceptions, but
Trial in the matter was held August 10, 2009. At trial, Gordon Serou, John Ryan, Debbie Gordon, Max Cohen,
Factual determinations are subject to the manifest error standard of review. Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). Likewise, mixed questions of law and fact are also reviewed under the manifestly erroneous standard of review. CII Carbon, L.L.C. v. Nat'l Union Fire Ins. Co. of Louisiana, Inc., 2005-0071 (La.App. 4 Cir. 8/17/05), 918 So.2d 1060, 1065, writ denied, 2005-2408 (La.3/24/06), 925 So.2d 1235 (citing Tadlock v. Taylor, 2002-0712, p. 17 (La.App. 4 Cir. 9/24/03), 857 So.2d 20, 33, writ denied, 2003-3265 (La.3/12/04), 869 So.2d 819).
Appellants first argue that the trial court erred in denying S & W's Motion to Strike and Alternative Exception of No Right of Action. Appellants submit that Mr. Serou had no right of action and was not a proper party, as he failed to take an action to assert his right to any funds until after the case was dismissed, when he filed a Motion to Withdraw Attorney's Fee From the Registry of the Court; thus, Mr. Serou's intervention is precluded, and he has no legal right to proceed.
Mr. Serou submits that his status as a party to the proceedings was confirmed when S & W served him with its own motion to withdraw funds from the registry. Additionally, he contends that S & W is estopped from contending that Mr. Serou could not assert a claim to the fee, because the Joint Motion and Order to Deposit Funds into the Registry of the Court was also filed after the court dismissed the action against Eagan Insurance and the other defendants. Mr. Serou further argues that he is an indispensable party to these proceedings. See Saucier v. Hayes Dairy Products, 373 So.2d 102, 119 (La.1979)(on rehearing)(citing La. C.C.P. arts. 645 and 927).
In the second assignment of error, Appellants argue that this case is a contract dispute rather a dispute regarding a legal fee, and that the trial court erred in applying Saucier. While Appellants concede that Saucier is the seminal case in Louisiana regarding fee disputes between attorneys and their clients, Appellants argue Saucier is nevertheless inapplicable to fee splitting disputes between lawyers.
In the trial court's written reasons for judgment, the court found that Saucier was controlling, and thus considered the following factors in making its determination:
The trial court "considered all of these factors, the testimony, the exhibits, including the time records and invoices submitted by each party, and f[ound] that the
Duer & Taylor v. Blanchard, Walker, O'Quin & Roberts, which pre-dates Saucier, involved an inquiry into whether an action by one attorney to share a fee that was collected over three years prior to the action being filed was subject to a prescriptive period of three years or ten years. Duer, 354 So.2d 192, 194 (La.1978). The Court in Warner v. Carimi Law Firm considered whether a provision of an employment contract regarding division of attorney fees paid in cases involving clients that the contract attorney brought with him upon departure from the firm violated the Code of Professional Responsibility; in this case, however, a fee sharing agreement between Mr. Serou and S & W is not at issue. Warner v. Carimi Law Firm, 98-613, p. 7 (La.App. 5 Cir. 12/16/98), 725 So.2d 592, 596.
Scurto v. Siegrist, a case also relied upon by Appellants, held that an agreement regarding division of a contingency fee between two attorneys not of the same firm, but jointly representing a client, was valid and enforceable because Scurto, the retained attorney, "was actively and continually involved with the case by frequently communicating with the client, advancing all expenses he was requested to pay, researching jurisprudence and statutory law, and attending depositions on behalf of his client." Dukes v. Matheny, 2002-0652, p. 4 (La.App. 1 Cir. 2/23/04), 878 So.2d 517, 520 (citing Scurto v. Siegrist, 598 So.2d 507, 510 (La.App. 1st Cir.1992)). The record does not evidence that in this case, S & W, the retained firm, continued to be involved with the case after transferring the Chimneywood file to Mr. Serou at his new firm, pursuant to the email directive from Debbie Gordon.
Furthermore, Debbie Gordon unequivocally testified at trial that she discharged S & W after Mr. Serou resigned from S & W.
In Dukes v. Matheny, the First Circuit revisited Scurto, holding that "the finding of a joint venture has been based on the fact that neither attorney has been discharged and both were actively involved in the case and remained responsible to their client." Dukes v. Matheny, 2002-0652, p. 4 (La.App. 1 Cir. 2/23/04), 878 So.2d 517, 520. Thus, even assuming arguendo that S & W was unaware that it had been discharged by Chimneywood, there is no evidence in the record that S & W remained "actively involved in the case" subsequent to Mr. Serou's departure. See id. Therefore, "in the absence of joint representation and a written agreement with the client, if an oral agreement to divide a fee existed in this case, the fee could be divided
This Court concluded that the situation presented therein was "neither a suit for recovery of attorney's fees nor a suit over the terms of the settlement agreement." Id., 2003-1694, p. 9, 874 So.2d at 938. In affirming the trial court's grant of summary judgment in favor of Mr. Heisler, this Court recognized that Mr. Heisler advanced costs to Mr. Fox; that Mr. Heisler kept records concerning the case; that "[w]ithout [Mr. Heisler's] involvement in the Mann case, [Mr. Fox] might have gone bankrupt and could no longer represent Client"; that Mr. Fox had faithfully adhered to the oral contract he made with Mr. Heisler for thirteen years; and that Mr. Fox and Mr. Heisler had previously agreed to split fees 50/50 on two separate occasions specifically regarding the Mann case. Id. at p. 10. Accordingly, this Court found that the well-established oral agreement between Mr. Fox and Mr. Heisler was valid and enforceable. Id. at 939.
In contrast to the instant case, although Mr. Serou acknowledged that S & W had an interest in the fee,
We find, as the trial court did, that Saucier is applicable to the facts of this case. In Saucier, plaintiff Fred Saucier hired attorney George Reese to represent him on a contingency basis in connection with an automobile accident that occurred on February 9, 1971. Pursuant to the agreement, Mr. Reese would receive one-third of any recovery. Mr. Reese filed suit on behalf of Mr. Saucier on January 25, 1972. On January 15, 1975, Mr. Saucier discharged Mr. Reese and hired new counsel. Mr. Reese subsequently intervened, asserting that he was entitled to one-third of any recovery. The case settled for $75,000.00.
The trial court awarded Mr. Reese $3,000.00, plus court costs and medical expenses that Mr. Reese paid on behalf of Mr. Saucier. On appeal, this Court increased the award to one-third of the total recovery, or $25,000.00.
On rehearing,
We find that the trial court properly held, after consideration of the Saucier factors, that S & W was not entitled to the entirety of the remaining $100,000.00 of the contingency fee. "[E]ven with a contract, the client has a right to discharge the attorney (and terminate the contract) at any time, with or without cause, subject to liability for payment for reasonable attorney's fees." Francis v. Hotard, 2000-0302 (La.App. 1 Cir. 3/30/01), 798 So.2d 982, 985, writ not considered, 2001-1323 (La.6/22/01), 793 So.2d 1263 (citing Scott v. Kemper Insurance Company, 377 So.2d 66, 70 (La.1979) and Gravity Drainage Dist. No. 2 v. Edwards, 207 La. 1, 20 So.2d 405, 406 (1944)); see also Saucier, supra, at 107 (Tate, Justice, dissenting)("Upon termination, the attorney is entitled to recover only the value of his services, not the original contingent fee under the contract, which contemplated that he perform the full and entire services leading to the settlement rather than only part of them.").
Under these particular facts and circumstances, the trial court correctly determined that the remainder of the contingency fee should be disbursed "according to the respective services and contributions of the attorneys for work performed and other relevant factors." Saucier, 373 So.2d at 118. Had the entire contingency fee been deposited in the court's registry, S & W's arguments might be more persuasive; however, S & W and Mr. Serou inexplicably consented to the release of 60% of the funds to Mr. Ryan, leaving S & W to contest the remaining 40% with Mr.
For the foregoing reasons, the trial court's judgment is hereby affirmed.
Debbie Gordon responded to the email the same day with the reply,
(a) A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
Saucier, 373 So.2d at 118-19.
