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Barrett v. Freise11/24/2003
The Summary Judgment Motions
In May 1998, Freise filed a motion for summary judgment, seeking dismissal of John and Jeff Barrett's liability and disgorgement claims. The parties filed opposing summary judgment motions on the attorney fee and costs issues.
On June 27, 1998, the trial court entered an order on summary judgment dismissing all of John and Jeff's liability claims against Freise and his law firm, with prejudice.
On July 24, 1998, the court denied John and Jeff's motion for summary judgment in which they had sought a determination that Freise was entitled to no fee whatsoever for the law firm's work obtaining the $100,000 UIM recovery and the $500,000 policy limits commitment from American States. The court also denied the plaintiffs' motion for summary judgment that the law firm was not entitled to reimbursement for its costs advanced in connection with either recovery. And the court denied the plaintiffs' alternative motion for summary judgment that the law firm be limited to fees based on an hourly rate, rather than the contingency fee agreement. The court ruled that Freise was entitled to keep the $33,333 contingency fee that had already been paid from the $100,000 UIM recovery from Pemco. The court also ruled that the law firm was entitled to retain the $2,768.38 for hard costs that had already been paid from that recovery. In the same order, the court granted Freise's motion for summary judgment that the law firm was entitled to recover an additional $7,428.86 for hard costs advanced for Jeff in connection with the American States and tavern claims.
With respect to Freise's request for summary judgment for one-third of the $500,000 American States settlement commitment amount, the court concluded as a matter of law that the law firm had a binding contingency fee agreement based on JoLynn's authority as a manager of the marital community to bind the family to the terms of that agreement. The court also concluded that the law firm had fully performed the contingency fee agreement with respect to the policy limits offer from American States. But the court deferred the determination of the amount to be paid from the American States settlement until there was a final resolution of the dram shop action.
And in the same order, the court found 16 facts to have been established as a matter of law because the plaintiffs had failed to present evidence that would have raised a genuine issue of material fact as to any of them: In the fall of 1998, the Barretts filed two separate lawsuits, one against the drunk driver, Maher, in Snohomish County, and the other against the Lucky 7 Saloon, in King County. Jeff and John were represented by attorneys Kahr and Chalverus in these actions. JoLynn and the children had separate representation. The tavern ultimately offered $400,000 to settle the dram shop claim. John and Jeff rejected the offer, but JoLynn and the children accepted $50,000 to settle their dram shop claims. Jeff's dram shop claim then proceeded to a jury trial in King County, which resulted in a defense verdict.
John and Jeff appealed the judgment on the verdict to this court, which affirmed in an unpublished opinion, noted at 112 Wn. App. 1041 (2002). The Supreme Court granted review, noted at 148 Wn.2d 1015 (2003). The case was argued on May 15, 2003. At this writing, the Supreme Court's opinion has not yet been filed.
Following the defense verdict in the dram shop trial, JoLynn and the minor children settled their claims against the drunk driver for $60,000. Jeff and John settled Jeff's claim for the remaining $440,000 of the American States policy limits. The settlement proceeds were paid into the court registry in
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