Rice v. Cummings

716 So. 2d 8, 1998 WL 130724
CourtLouisiana Court of Appeal
DecidedMarch 18, 1998
DocketNo. 97-CA-1651
StatusPublished
Cited by5 cases

This text of 716 So. 2d 8 (Rice v. Cummings) 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
Rice v. Cummings, 716 So. 2d 8, 1998 WL 130724 (La. Ct. App. 1998).

Opinion

hPER CURIAM.

AMENDED

This appeal involves a dispute between two law firms concerning the division of a contingent attorney’s fee resulting from a jury verdict rendered in favor of plaintiff in a wrongful death suit. Both parties have appealed from the judgment of the trial court. We amend and affirm in part and reverse in part and render.

FACTS AND PROCEDURAL HISTORY

William Barnard was killed in a vehicular accident on a northern Louisiana highway on August 16, 1987. Thereafter, Judy Warren (a/k/a Judy Barnard or Judy Weaver, hereinafter referred as Mrs. Warren), Barnard’s former spouse and a resident of the state of Florida, retained Corey Stutin of the Florida law firm of Rice, Steinberg and Stutin to represent her in bringing a wrongful death suit on behalf of the minor child, Tammy Barnard. On August 26, 1987, Mrs. Warren and Stutin entered into a contingent fee contract whereby Stutin would receive as his professional fee one-third of the amount recovered from a settlement of the claim and 40 percent of any recovery up to one million dollars following a trial of the matter. After an initial investigation, discovery and unsuccessful attempts to settle plaintiffs demands, Stutin, with Judy Warren’s knowledge and consent, associated John Cummings of the New Orleans law firm of Cummings, Cummings and Dudenhefer. Cummings and Stu-tin orally agreed to share any attorney’s fees recovered from the litigation of the Barnard matter. The specific Lterms of this agreement are disputed by the parties.

A petition for wrongful death and for punitive damages was subsequently filed in federal district court in Monroe by Judy Warren on behalf of the minor child, Tammy Barnard.1 Among those named as defendants were John Frederick, the driver of another vehicle involved in the accident with the Barnard vehicle, and Frederick’s employer. Frederick was alleged to be under the influence of narcotics at the time of the accident, and plaintiff sought punitive damages on that basis.

The parties operated under the original contract of representation until October 9, 1991, when Mrs. Warren entered into a written contract of employment with the Cummings law firm which contained the same contingency fee arrangement as in the original contract for representation executed by Corey Stutin, but included a provision for a contingent fee of 50% on any punitive damage award obtained. The matter was tried to a jury in November, 1991, and the jury rendered a verdict in favor of plaintiff in the amount of $565,000.00 in compensatory and punitive damages, resulting in attorney’s fees in the amount of $260,428.00.

Neither Corey Stutin nor any member of his firm attended the trial of this matter. In fact, in April bf 1990, over one year prior to the trial, Corey Stutin sold his interest in his law partnership to his partner Charles Stein-berg and temporarily ceased the practice of law. By agreement between the partners, however, Stutin retained an individual interest in the fees earned in certain listed cases, including the Barnard case.

13After the jury verdict in the Barnard case was rendered, Charles Steinberg attempted' to enforce the contingency fee agreement contained in his law firm’s contract of representation and Stutin’s oral agreement to share attorney’s fees with the Cummings firm. The parties were unable to reach an agreement as to the division of the fees, and this lawsuit followed.

On October 28,1992, Charles R. Steinberg, on behalf of the Florida law firm of Rice, Steinberg & Stutin, P.A., filed the instant lawsuit in Civil District Court against the New Orleans law firm of Cummings, Cummings and Dudenhefer for alleged breach of an oral fee-sharing contract. Corey Stutin was not made a party to these proceedings. Defendant, Cummings, Cummings and Du-[10]*10denhefer, answered this petition and contended that Corey Stutin had failed to participate in the litigation of the Barnard case, and had actually ceased practicing law prior to the trial of the Barnard matter, and therefore Cummings was not obligated to share the attorney’s fees with Stutin or any member of Stutin’s law firm. Cummings contended that Steinberg was limited to recovering his fees on a quantum meruit basis.

This matter was tried in a bench trial on September 16-18, 1996. At trial, plaintiff introduced the testimony of Corey Stutin and Charles Steinberg, and also the cross-examination of Frank Dudenhefer, in an effort to prove that the Steinberg firm was entitled to 50% of the attorney’s fees obtained in the Barnard case. Defendant introduced the testimony of John Cummings and Richard Martin, an associate of the Cummings firm.

Following trial, on October 7, 1996, the court rendered judgment in favor of plaintiff, Rice, Steinberg and Stutin, P.A., finding that firm was entitled to 30% of the legal fee resulting from the trial of the Barnard case, or 14$78,126.00. In its reasons for judgment, the court stated that it found that the two law firms had entered into a joint venture agreement to conduct the legal work for Mrs. Warren on behalf of the minor child, Tammy Barnard. However, the court declined to award the plaintiff firm the entire 50% of the fee because “the plaintiff firm failed to fulfill all of its obligations under the joint venture agreement, i.e., 50% of the responsibility, work and expenses.” In reaching this determination, the court found significant that Stutin left the practice of law during the litigation without notifying the Cummings firm.

Thereafter, defendant filed a motion for new trial or alternatively to amend the judgment dated October 7, 1996. Although the trial court rejected defendant’s claim that plaintiff was only entitled to be compensated on a quantum meruit basis, by judgment dated December 20, 1996,' the trial court amended the previous judgment to reduce the amount of the fee owed to plaintiff to 15% of the total fee, based on the fact that Corey Stutin was not named as a plaintiff in the original petition. Following this judgment, the plaintiff firm filed a motion for reconsideration, motion for new trial and motion for leave to file the fourth supplemental petition naming Corey Stutin as plaintiff. However, the trial court denied these motions on March 11,1997.

It is from this judgment that plaintiff now appeals. Defendant has answered the appeal and has asserted several assignments of error.

DISCUSSION

Defendant contends on appeal that the trial court erred in determining that a joint venture existed between Stutin’s firm and the Cummings firm. Defendant argues that although the parties initially agreed to work together on the Barnard case, Stutin and Steinberg’s actions in failing to participate in the litigation |Bprevented the development of the joint venture. Defendant also contends that the trial court’s award to Steinberg of 15% of the fee is excessive, and argues that Steinberg must recover on a quantum meru-it basis.

Plaintiff contends on appeal that as the trial court determined that the parties entered into a joint venture, the court was obligated to order an equal sharing of the attorney fees recovered, and the trial court erred in setting the Steinberg firm’s percentage of the fee at 30%. Plaintiff argues that the Steinberg firm is entitled to a full 50% of the fee recovered as a result of the Barnard lawsuit.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Ike Spears v. William W. Hall
Supreme Court of Louisiana, 2026
John Netherland v. State of Mississippi
Court of Appeals of Mississippi, 2024
Murray v. Harang
104 So. 3d 694 (Louisiana Court of Appeal, 2012)
Barham & Arceneaux v. Kozak
874 So. 2d 228 (Louisiana Court of Appeal, 2004)
Dukes v. Matheny
878 So. 2d 517 (Louisiana Court of Appeal, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
716 So. 2d 8, 1998 WL 130724, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rice-v-cummings-lactapp-1998.