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Cantrelle v. Whipple11/1/2000
esses were all present at the time of such signing before ." Scurto referred several times to an authentic act, stating, with our emphasis:
that on [June 15, 1990], he executed an authentic act in his office . . . that he has had an opportunity to examine the original of said act, which authentic act was signed by Norma Cantrelle and Charmaine Cantrelle Chaisson in his presence; that the witnesses to said authentic act . . . ."
However, two documents were executed on that date, one by Norma and one by Charmaine. Therefore, it is unclear exactly which disbursement sheet Scurto referred to in his affidavit. We note that Norma and Charmaine together executed a receipt and release of all claims against Allstate on June 11, 1990.
Pertuit's affidavit establishes that she "remembers the signing of said document," but Pertuit did not explicitly state that she and Ellender were present when Norma and Charmaine signed. Moreover, she also refers to a single authentic act and document when two separate documents were actually executed. Ellender testified that the parties, witnesses and notary all signed the document in the presence of each other. However, like Scurto and Pertuit, she also referred to a single document. Thus, it is also unclear whether she is referring to the disbursement sheet executed by Norma or the one executed by Charmaine.
We note that the disbursement sheets do not state the actual percentages being withheld. Norma and Charmaine apparently were not participants in the negotiation of the fee, leaving this detail to Carrol, who negotiated the contract with Whipple. Norma was not present when her husband entered into the contract with Whipple. Her husband later told her the contract was for 25% and that Whipple was a good friend and would take care of it. Although Norma thought they had been overcharged soon after receiving the checks from the second suit, she did not realize anything was wrong with the attorney fee in the first suit because she apparently did not understand percentages. Charmaine also testified that she didn't understand the percentages, and that she wasn't aware of the terms of her contract because her father handled the negotiations.
The disbursement sheets do not obliterate the conflict in the parties' positions on the percentage of the contingency fee, although the disbursement sheets obviously may have probative value when the trial court determines whose version of events surrounding the fee negotiation it should believe. At the very least, a genuine issue of material fact remains regarding the correct contingency fee percentage, which precludes the granting of summary judgment. Amendment of Judgment
Appellants also argue that the trial court improperly amended the November 6, 1998 judgment. Because we reverse the judgment and remand, it is unnecessary for this court to consider this issue.
DECREE
At appellee's costs, the judgment is REVERSED and the case is REMANDED to the trial court for further proceedings.
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