Tran v. Williams

56 So. 3d 1224, 10 La.App. 3 Cir. 1030, 2011 La. App. LEXIS 153, 2011 WL 408879
CourtLouisiana Court of Appeal
DecidedFebruary 9, 2011
DocketNo. 10-1030
StatusPublished
Cited by8 cases

This text of 56 So. 3d 1224 (Tran v. Williams) 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
Tran v. Williams, 56 So. 3d 1224, 10 La.App. 3 Cir. 1030, 2011 La. App. LEXIS 153, 2011 WL 408879 (La. Ct. App. 2011).

Opinion

SAUNDERS, Judge.

11 This is a case of a discharged attorney filing an intervention seeking attorney’s fees earned after the case of the underlying plaintiffs was settled subsequent to her discharge. Over the course of their claim, plaintiffs’ first hired the discharged attorney, then an attorney who eventually could no longer handle their case due to his election to an office that disallowed him to retain their case, and, finally, their current attorney.

The plaintiffs current attorney took proceeds equal to the highest percentage of any of the three attorney’s contingency fee contracts out of the plaintiffs’ settlement totaling approximately $63,000.00 and set that money aside in her firms trust account in anticipation of this intervention’s adjudication. After a full hearing on the merits of the intervention, the trial court awarded one of the discharged attorney $1,400.00 in attorney’s fees. The trial court reached that amount by using the percentage of the discharged attorney’s contingency fee agreement multiplied by the amount of monies received from the med-pay provision of her former clients’ own insurance policy. These monies were obtained for plaintiffs by the discharged attorney prior to her dismissal. Even though the trial court found that the discharged attorney was dismissed for cause, it did not reduce the amount of attorney’s fees it awarded to her.

The discharged attorney has appealed. We affirm.

FACTS AND PROCEDURAL HISTORY:

On July 5, 2006, Randy N. Tran and Tiffany T. Vo individually, and on behalf of their minor children, David Tran and Kristin Tran, together with Thao Mai Vo, Henry V. Vo, and Hoa T. Truong (collectively “plaintiffs”) were in an automobile accident. On July 6, 2006, plaintiffs hired attorneys Shelly Sessions and Ronald 12Penman (collectively “Sessions” as Sessions was the attorney who performed the work on plaintiffs’ behalf) via a contingency fee agreement to represent them in pursuit of their personal injury claims.

Plaintiffs notified Sessions that they no longer wanted her to represent them on November 3, 2006. Sessions then filed suit on plaintiffs’ behalf on November 8, 2006.1 Plaintiffs then hired Anh Quang Cao (Cao) as attorney representation. Cao enrolled as counsel of record on November 30, 2006. Cao reimbursed Sessions for the expenses she had incurred in representing plaintiffs, inclusive of the costs of filing a petition for intervention on December 7, 2006. Sessions’ intervention sought attorney’s fees and is the subject of this appeal.

Cao was subsequently elected to the United States House of Representatives (the House) on December 6, 2008, and was sworn in on January 6, 2009. As a member of the House, Cao had to cease representing plaintiffs as he could no longer [1227]*1227privately practice law for profit. Cao then arranged for plaintiffs to employ Melanie Lagarde (Lagarde) as their attorney. On March 9, 2009, Lagarde filed a motion to enroll as counsel of record. On March 16, 2009, Lagarde was orally enrolled as counsel for plaintiffs.

Lagarde negotiated a settlement on behalf of plaintiffs in July of 2009. On July 28, 2009, Lagarde filed a motion to approve settlement. This motion was granted, over opposition of Sessions, and a judgment was signed by the trial court on September 21, 2009. At that time, all monies owed to plaintiffs were dispersed, all medical and insurance liens were paid, and a forty-five percent (45%) attorneys’ fee was placed in the trust account of Lagarde’s firm pursuant to the court order | ^approving the settlement.

On February 1, 2010, a full hearing was conducted on the merits of Sessions’ intervention. After the hearing in which Sessions, Cao, and Legarde testified regarding the work each performed in representing plaintiffs, the trial court awarded Sessions $1,400.00 in attorney’s fees. Sessions appeals, alleging the following assignments of error:

ASSIGNMENTS OF ERROR:

1. The trial court committed legal error in failing to require joinder of all parties needed for just adjudication and, as a result, the judgment is null and void and the matter should be remanded for joinder of all necessary parties and a trial on the issue of attorneys’ fees.
2. Alternatively, the trial court committed legal error in failing to apply the proper standards for determining (a) whether Sessions was discharged with or without cause and (b) for determining the proper allocation of attorneys’ fees between all of plaintiffs’ attorneys.
3.The trial court also abused its discretion in sanctioning intervenors for alleged discovery deficiencies.

ASSIGNMENT OF ERROR NUMBER ONE:

Sessions alleges in her first assignment of error that the trial court committed legal error in failing to require joinder of all parties needed for just adjudication (specifically, Cao) and, as a result, the judgment is null and void and the matter should be remanded for joinder of all necessary parties and a trial on the issue of attorneys’ fees. We find this assignment lacking of merit.

Our review of the record indicates that Sessions did not file an exception on this issue nor did she bring this issue before the trial court. Thus, the trial court has not ruled upon this point.

Our supreme court was faced with an analogous situation in Prince v. Standard Oil Co. of Louisiana, 147 La. 283, 84 So. 657 (1920). In that case, the court stated:

|4It is argued in this court that to annul a lease all the owners must be joined as plaintiffs, and, as Giddens and the Natalie Oil Company do not appear as plaintiffs, that the suit must fail. But no exception was filed in the district court to the right of plaintiffs to sue for the annulment of the lease, and no such defense was set up in the answer. The point was not raised or passed upon in the trial court, and it cannot therefore be heard or considered in this court.

Id. at 658.

Given this directive, this court cannot hear this issue solely because it is now raised by Sessions. This directive is consistent with the statutory scheme set up in dealing the situation before us. Louisiana Code of Civil Procedure Article 645 states “[t]he failure to join a party to an action [1228]*1228may be pleaded in the peremptory exception, of may be noticed by the trial or appellate court on its own motion.” The time for pleading peremptory exceptions is governed by La.Code Civ.P. art. 928(B), which states “[t]he peremptory exception may be pleaded at any stage of the proceeding in the trial court prior to a submission of the case for a decision.”

In the case before us, Sessions assigns this issue as error. Given the above, because the case was submitted for a decision, she has waived this exception. However, as noted by La.Code Civ.P. art. 645, this court can notice the failure to join a party on its own motion. We decline to do so.

Louisiana Code of Civil Procedure Article 641 states:

A person shall be joined as a party in the action when either:
(1) In his absence complete relief cannot be accorded among those already parties.
(2) He claims an interest relating to the subject matter of the action and is so situated that the adjudication of the action in his absence may either:

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Cite This Page — Counsel Stack

Bluebook (online)
56 So. 3d 1224, 10 La.App. 3 Cir. 1030, 2011 La. App. LEXIS 153, 2011 WL 408879, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tran-v-williams-lactapp-2011.