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Barrett v. Freise11/24/2003
each of the ethics rules. Id. at 262; 265. More importantly, there simply was no conflict of interest raised by Freise continuing to represent the interests of both JoLynn and Jeffrey as to the personal injury claim while their dissolution action was pending. They both had the same interests with respect to the personal injury claim to recover as much as reasonably possible and then let their dissolution attorneys address their respective interests in the ultimate characterization and division of the proceeds recovered. Kahr expressly agreed to Freise's continued representation; Love expressly agreed to Freise's continued representation; Waggoner expressly agreed to Freise's continued representation. Freise kept these three lawyers constantly advised of the progress of the representation, and invited their participation in the issues that needed to be addressed and got their express approval of the course of conducting the claims. John and Jeff's contention that there was a conflict of interest is a bald assertion, unsupported by any evidence or meritorious legal analysis whatsoever. The trial court did not err in dismissing the claims of breach of fiduciary obligation.
Finally, the Barretts contend that Jeff was not competent to execute the durable power of attorney in favor of JoLynn while he was at Delta Rehabilitation Center. Although the argument is unclear, the contention appears to be that Freise violated his fiduciary duties to Jeff in connection with the durable power. The undisputed evidence, however, is that although a durable power was prepared in Freise's office and left unsigned with JoLynn on December 1, 1995, while Jeff was still at Providence Hospital, neither Freise nor anyone in his office ever asked Jeff to sign it. After Jeff was transferred to Delta Rehabilitation Center, the head nurse there advised JoLynn to obtain a durable power of attorney so that she could arrange for Jeff's care at the Center. No one from Freise's office was present when a durable power of attorney whether the one prepared in Freise's office or another one is immaterial was executed by Jeff at the Center, on December 27, 1995. Jeff signed the document before a notary public who worked at the Center.
In any event, it is clear that the trial court did not rely upon the durable power in considering the validity of the contingency fee agreement, the settlement with the UIM carrier, or the decision to defer acceptance of the commitment by American States to pay its policy limits in exchange for a full release of its insured. To the extent that JoLynn may have utilized the power to arrange for Jeff's medical care, the plaintiffs do not argue that Jeff was somehow harmed thereby. Thus the circumstances under which the durable power of attorney was prepared and signed raises no genuine issues of material fact germane to these proceedings.
Moreover, as the trial court aptly observed, Kahr had Jeff sign a power of attorney in favor of his brother John shortly after she appeared for Jeff in the marital dissolution action.
In sum, we affirm the trial court's summary judgment order dismissing all of the plaintiffs' liability claims, including their negligent misrepresentation and Consumer Protection Act claims.
Summary Judgment in Favor of Freise Regarding Contingency Fees John and Jeff Barrett's next contention on appeal concerns the trial court's rulings on summary judgment dismissing their claim that Freise was entitled to no fee whatsoever for his services to Jeff in obtaining the $100,000 UIM settlement and the $500,000 American States commitment to settle for policy limits. In a counter summary judgment motion, John and Jeff asked that Freise be required to disgorge, a
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