Guillot v. Daimlerchrysler Corp.

113 So. 3d 507, 2013 WL 1624887
CourtLouisiana Court of Appeal
DecidedApril 15, 2013
DocketNo. 2012-CA-0888
StatusPublished
Cited by1 cases

This text of 113 So. 3d 507 (Guillot v. Daimlerchrysler Corp.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Guillot v. Daimlerchrysler Corp., 113 So. 3d 507, 2013 WL 1624887 (La. Ct. App. 2013).

Opinions

JOY COSSICH LOBRANO, Judge.

11 This appeal involves a fee dispute between former and current attorneys of the Plaintiffs, August Guillot and Juli Guillot, individually and as survivors of them minor child, Collin Jacob Guillot, and as natural tutors of their minor child, Madison Guil-lot. Plaintiffs and the law firms of Barrios, Kingsdorf & Casteix, LLP; Lieff, Ca-braser, Heimann & Bernstein, LLP; and J. Van Robichaux, Jr. (hereinafter referred to collectively as “Current Counsel”) appeal the trial court judgment awarding fees and costs to Plaintiffs’ former counsel in this litigation, J. Wayne Mumphrey; Mumphrey Law Firm, L.L.C.; and Glenn E. Diaz (hereinafter referred to collectively as “Intervenors”). Intervenors answered the appeal, requesting that the judgment be modified to increase their fee award.

The facts and procedural history of the underlying litigation from which the instant fee dispute arises are detailed in this Court’s opinion in Guillot v. Daimlerchrys-ler Corporation, 08-1485 (La.App. 4 Cir. 9/24/10), 50 So.3d 173. For purposes of this appeal, we note the following pertinent dates and events: The |2accident from which the cause of action arose in this case occurred on May 21, 1999. Plaintiffs contacted Mr. Mumphrey in the summer of 2001, and a petition for damages was filed by Intervenors on behalf of Plaintiffs on November 30, 2001. In August of 2005, Plaintiffs terminated Intervenors as their attorneys and retained Current Counsel to represent them. On November 6, 2007, Intervenors filed a petition of intervention, asking that their costs and fee interests be fully recognized and protected out of any recovery by settlement or judgment in Plaintiffs’ case. Attached to the petition was the original retainer agreement and contract for legal representation signed by Mr. Guillot on April 2, 2002, which named the Law Offices of J. Wayne Mumphrey as counsel for Mr. Guillot, but did not include attorney Glenn Diaz’s name in the contract. The contract signed by Mr. Guillot on April 2, 2002 was not signed by Mrs. Guillot.

Trial of the Plaintiffs’ claims was held in March 2008, and the trial court rendered judgment in favor of Plaintiffs on April 10, 2008. On April 8, 2008, Intervenor, Glenn Diaz, filed an amended petition of intervention. In this petition, Mr. Diaz asserts that a new identical retainer contract was signed by both Mr. and Mrs. Guillot after Mr. Guillot signed the April 2, 2002 contract, and the new contract also listed Mr. Diaz as counsel of record along with Mr. Mumphrey. The amended petition asserts that the contract signed by both Mr. and Mrs. Guillot was lost in Hurricane Katrina in August 2005. On September 24, 2010, this Court handed down its opinion in the above-referenced appeal of the April 10, 2008 trial court judgment. Guillot, OS-1485, 50 So.3d 173. Subsequent to the rendition of 13this Court’s opinion, the parties entered into a settlement agreement, the details of which were sealed by court order.1 On December 15, 2010, Plaintiffs filed a reconventional demand against In-tervenors, seeking damages for Interve-[511]*511nors’ refusal to release funds to them on account of Intervenors’ assertion of a lien and privilege on a portion of attorney fees allegedly due to Plaintiffs in this matter.

On December 21, 2010, Intervenors filed a second amended and restated petition of intervention. In this petition, Intervenors clarified that the phrase “Guillot’s” in the amended petition for intervention referred to both Mr. and Mrs. Guillot. The petition further asserts that the retainer agreement signed by both Mr. and Mrs. Guillot was lost in Hurricane Katrina. Interve-nors attached to the petition an affidavit executed by J. Wayne Mumphrey and Glenn E. Diaz, attesting that both Mr. and Mrs. Guillot signed a retainer agreement, which added Mr. Diaz’s name but was otherwise identical in terms to the agreement signed by Mr. Guillot and attached to the original petition of intervention. Mrs. Guillot denied at trial that she ever signed any written contract with Intervenors.

On August 10, 2011, trial commenced on the intervention claims and reconventional demand. On April 13, 2012, the trial court rendered judgment awarding Intervenors 30% of the 40% pre-appeal contingency fee in their contract with Plaintiffs, together with interest accrued while these funds were in the registry of the court, and costs of $46,130.55. Current Counsel and Plaintiffs have ^appealed the April 13, 2012 judgment, and Intervenors have answered the appeal. The trial court did not issue reasons for judgment, and none of the parties requested written reasons pursuant to La. C.C.P. article 1917.

On appeal, Current Counsel and Plaintiffs argue that the trial court erred in awarding Intervenors 30% of the 40% pre-appeal contingency fee set forth in Inter-venors’ contract with Plaintiffs. Current Counsel and Plaintiffs argue that Interve-nors are entitled to no more than 3% of the 40% pre-appeal contingency fee. In their answer to the appeal, Intervenors argue they are entitled to 30% of a 50% contingency fee, because a 50% contingency fee is the highest percentage to which Plaintiffs agreed in their contract with In-tervenors.2 The following clause was included in the Intervenors’ retainer agreement and contract for legal representation:

It is understood that should my attorney find it necessary to file a suit on my behalf in order to enforce recovery of my damages that I then assign forty (40%) percent of my claim for his services. If appealed, fifty (50%) percent of the claim.

We initially note that in the trial court judgment, the trial court used the plural “Plaintiffs” in referring to Intervenors’ “contract with Plaintiffs.” This leads us to conclude that the trial court accepted In-tervenors’ claim, which Plaintiffs dispute, that both Mr. and Mrs. Guillot signed a retainer agreement and contract for legal representation with them that included the above-referenced fee agreement, |Band that the contract with both Plaintiffs’ signatures was subsequently lost in Hurricane Katrina. We find no error in that presumed finding by the trial court.

A trial court’s apportionment of a contingency fee is a factual determination and may not be disturbed absent manifest error. Osborne v. Vulcan Foundry, Inc., 96-1849 (La.App. 4 Cir. 9/3/97), 699 So.2d 492, 494, citing Stobart v. State, Through DOTD, 617 So.2d 880 (La.1993). In Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 118 (La.1979), the Louisiana Supreme Court held that in cases where a client has been represented by more than [512]*512one attorney in the same case at separate times and under separate contingency fee contracts, only one contingency fee should be paid by the client. The amount of the fee to be paid by the client is to be determined according to the highest ethical contingency percentage to which the client contractually agreed in any of the contingency fee contracts that he executed. Id.

The factors to be considered in determining a reasonable fee for legal services are set forth in Rule 1.5(a) of the Rules of Professional Conduct, as follows:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

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113 So. 3d 507, 2013 WL 1624887, Counsel Stack Legal Research, https://law.counselstack.com/opinion/guillot-v-daimlerchrysler-corp-lactapp-2013.