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Barrett v. Freise11/24/2003
brogation claim and the payments obtained for Jeff's care at Mediplex, Freise's services resulted in overall benefits to Jeff worth some $175,000 more than the net proceeds of the UIM and American States recoveries.
Petitioners next contend that the trial court's summary judgment ruling and ruling at trial are inconsistent because at summary judgment the court could not conclude as a matter of law that Freise's claim to be entitled to one-third of the American States recovery was reasonable, and then at trial concluded that such fee was in fact reasonable. There is no inconsistency. There were genuine issues of material fact that needed to be tried before the court could rule on Freise's claim. The petitioners are grasping at straws here.
The petitioners argue that part of the trial court's finding number 52 stating that no one ever suggested to Freise that he ask the court to appoint a guardian for Jeffrey is not supported by the record, because he discussed that possibility with both JoLynn and his legal assistant. In context, the court's finding relates to Kahr, Love and Waggoner none of them suggested to Freise that he should request the court to appoint a guardian in addition to, or in lieu of Waggoner's services as guardian ad litem in the dissolution action. These findings related to the petitioners' arguments at trial that Freise was remiss in his duty to Jeff by failing to ask the court to appoint a guardian, a proposition that the trial court rejected on several bases, including JoLynn's performance and that of Tracy Waggoner, as well as the fact that no damages were caused to Jeff by lack of a guardian during the time of Freise's representation. The petitioners also complain that the trial court failed to find, based on the testimony of Robert Gould and William Rush, that the UIM settlement for policy limits and the commitment from American States to pay its policy limits essentially fell into Freise's lap with little to no effort on his part, due to the seriousness of Jeffrey's injuries. We deem this argument to be incredibly naãve and unworthy of serious discussion. The record fully supports the trial court's findings that Freise represented Jeffrey with skill and that his performance was exemplary.
Affirmed
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