Plummer v. Gittleman, Paskel, Tashman & Walker, P.C.

821 N.E.2d 825, 2004 Ind. App. LEXIS 2680, 2004 WL 3167062
CourtIndiana Court of Appeals
DecidedDecember 21, 2004
DocketNo. 12A02-0403-CV-00200
StatusPublished

This text of 821 N.E.2d 825 (Plummer v. Gittleman, Paskel, Tashman & Walker, P.C.) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Plummer v. Gittleman, Paskel, Tashman & Walker, P.C., 821 N.E.2d 825, 2004 Ind. App. LEXIS 2680, 2004 WL 3167062 (Ind. Ct. App. 2004).

Opinion

OPINION

ROBB, Judge.

Mark and Shari Plummer appeal the trial court's judgment in favor of Robert Gittleman of Gittleman, Paskel, Tashman, and Walker, P.C., in the amount of $45,000 for services CGittleman performed during his representation of the Plummers. We affirm.

Issue

The Plummers raise two issues for our review, which we consolidate and restate as whether the trial court properly awarded attorney's fees to Gittleman.

Facts and Procedural History

On December 24, 1999, Mark and Shari Plummer's five-year-old son, Joshua, was killed when Mark Plummer's vehicle, in which Joshua was a passenger, collided [827]*827with a Norfolk Southern Railway Company freight train. The Plummers subsequently contacted Gittleman to discuss any possible claims against Norfolk Southern. Git-tleman was licensed to practice law within the State of Michigan but not within the State of Indiana.

On January 31, 2000, the Plummers executed identical Retainer Agreements (collectively, "Agreement") employing Gittle-man and Sherrill Wm. Colvin of Haller & Colvin to represent them in any claims that arose from Joshua's death. Colvin was licensed to practice law within the State of Indiana. The Plummers, Gittle-man, and Colvin each signed the Agreement.

During his representation of the Plum-mers, Cittleman provided legal advice to the Plummers, investigated the scene of the collision and interviewed potential witnesses, sent out tort claim notices to governmental entities and political subdivisions pursuant to Indiana law, and pursued negotiation and settlement with Norfolk Southern on the Plummers' behalf.

Subsequently, Gittleman obtained a settlement offer from Norfolk Southern for $135,000, which he recommended that the Plummers accept, mainly due to the weaknesses of their potential claims. Instead, the Plummers insisted on filing suit, rejected Norfolk Southern's settlement offer, and eventually discharged Gittleman and Colvin as their attorneys.

The Plummers did not hire other legal counsel or initiate any legal proceedings, but instead entered into settlement negotiations directly with Norfolk Southern and settled their potential claims for $155,000. CGittletman placed an attorney lien on the Plummers' settlement proceeds for expenses arising out of his representation and filed a complaint against the Plum-mers to enforce the Agreement or, in the alternative, to allow recovery of attorney's fees under the theory of quantum meruit. The Plummers answered and counterclaimed that Gittleman provided erroneous advice as to the value of the Plummers' claims against Norfolk Southern, and that because Gittleman was not licensed to practice law in the State of Indiana, he was not entitled to attorney's fees. After a bench trial, the trial court found in favor of Cittleman in the amount of $45,000 for attorney's fees. The Plummers now appeal. Additional facts will be provided as necessary.

Discussion and Decision

I.. Standard of Review

We note at the outset that the trial court entered specific findings of fact and conclusions of law pursuant to Indiana Trial Rule 52(A). Thus, we apply a two-tiered standard of review. Counceller v. Counceller, 810 N.E.2d 372, 377 (Ind.Ct.App.2004). First, we determine whether the evidence supports the trial court's findings. Id. Next, we determine whether the findings support the judgment. Id. We will not disturb the trial court's findings or judgment unless we determine they are clearly erroneous. Id. Findings of fact are clearly erroneous only if there is no evidence present in the record to support them. Id. We neither reweigh the evidence nor judge the credibility of the witnesses, and we consider only the evidence most favorable to the judgment and the reasonable inferences drawn therefrom. Steiner v. Bank One Indiana, N.A., 805 N.E.2d 421, 424 (Ind.Ct.App.2004).

II. Out-of-State Attorney Entitled to Fees

The Plummers first contend the trial court erred in granting attorney's fees to Cittleman because Gittleman was not admitted to practice law in the State of Indiana. The issue of whether an out-of-[828]*828state attorney, assisted by local counsel, may recover attorney's fees for work conducted in preparation of future litigation is a matter of first impression in Indiana courts. However, in Freeman v. Mayer, 95 F.3d 569 (7th Cir.1996), an employee was left a quadriplegic after being injured at his place of employment in Indiana. The employee's in-laws contacted a family friend, William Freeman, who was an attorney in Illinois. Freeman began an investigation of the accident to determine whether the employee had any potential claims as a result of his injury. Freeman studied the accident scene, took photographs, and hired a private investigator to gather information. Subsequently, the employee's wife executed a written retainer agreement employing Freeman to pursue any claims she and her husband might have as a result of her husband's injury. The agreement included a contingency fee arrangement whereby Freeman would receive thirty-three and one-third percent of any sum collected by the employee and his wife either by suit or settlement. Id. at 570.

Freeman began preparation for a potential lawsuit by conducting lability investigation, research, medical documentation, and conferences in both Indiana and Illinois with the employee and his wife. Because he was not admitted to practice law in Indiana, Freeman hired Richard Mayer, an Indiana attorney, as local counsel. They agreed to a fee-sharing arrangement, and even though the employee and his wife did not sign a written retainer agreement with Mayer, they verbally consented to the fee-sharing arrangement. Id. at 570-71.

Mayer subsequently filed suit on behalf of the employee and his wife. The complaint included Freeman's name, but due to an oversight by Mayer, Freeman did not file the necessary paperwork to appear pro hac vice Mayer then conducted extensive discovery, filed multiple motions, and conducted a full jury trial, which resulted in a judgment in favor of the employee and his wife. Freeman did not take part in any of the trial preparation but did keep in contact with the employee's wife and appeared as counsel of record at the trial. Subsequently, a dispute arose between Freeman and Mayer as to the appropriate division of fees under their fee-sharing arrangement. Freeman sued Mayer to recover his portion of the fees, and the district court granted Freeman summary judgment. Id. at 571-72.

On appeal, Mayer argued that the fee-sharing arrangement was void because Freeman was not admitted to practice law in Indiana and thus should not be allowed to recover attorney's fees for the work he conducted prior to the filing of suit. The Seventh Cireuit Court of Appeals held, under Indiana law, that Freeman was entitled to an equal share of the fees for the extensive investigation he conducted prior to the commencement of litigation, even though he was not licensed to practice law in Indiana and had failed to file the necessary paperwork to appear pro hac vice. Id. at 575-76. The court stated,

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Related

Steiner v. Bank One Indiana, N.A.
805 N.E.2d 421 (Indiana Court of Appeals, 2004)
Counceller v. Counceller
810 N.E.2d 372 (Indiana Court of Appeals, 2004)

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821 N.E.2d 825, 2004 Ind. App. LEXIS 2680, 2004 WL 3167062, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plummer-v-gittleman-paskel-tashman-walker-pc-indctapp-2004.