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Gilbert v. Evan6/21/2002
This is a suit between two lawyers, Patrick Yancey and Stephen Callahan, arising out of a dispute over the division of a large fee earned in connection with a personal injury claim. Yancey appeals from a summary judgment in favor of Callahan that limited Yancey's portion of the fee to the hourly rate specified in his contingency fee contract. The trial court held that Yancey's contract with his client limited his attorney fees to an hourly basis once the relationship between him and his client ceased prior to a settlement or trial of the matter. We agree.
FACTS
In March 1998, Charles Gilbert and Michael Evan were involved in a motor vehicle accident. Gilbert retained Patrick Yancey as his attorney of record for the claim. Later that month, Yancey filed a petition on Gilbert's behalf seeking damages against Evan and two insurance companies. In October 1998, Stephen Callahan filed a motion to enroll as Gilbert's counsel of record, stating that Gilbert had discharged Yancey. Thereafter, Yancey filed a petition for intervention contending that he had entered into a contingency fee contract with Gilbert, that Gilbert discharged him without cause, and that the court should render a judgment apportioning the fees between him and Callahan together with a reimbursement of his litigation expenses. Callahan had obtained a settlement of Gilbert's claim from which attorney fees of approximately $l9l,000 were collected.
Callahan filed a motion for summary judgment asserting he was entitled to the entire fee minus the portion payable to Yancey under the hourly language contained in Yancey's contingent fee contract with Gilbert. Callahan noted that the sixth paragraph of the contract stated that Yancey was entitled to recover attorney fees in the sum of $200 per hour in the event he was discharged as Gilbert's attorney prior to the settlement of the case or prior to trial. Because of that provision of the contract Callahan maintained that Yancey was only entitled to $2,390.35.
The trial court granted Callahan's motion for summary judgment "as a matter of law based upon [Yancey's] contract of employment with [Gilbert]." The court found that the language of the contract was controlling and awarded Yancey $1,600.00 as attorney fees plus expenses in the amount of $790.35.
Yancey appeals contending the trial court erred: (1) in concluding that Yancey's contract was not a contingency contract; (2) in granting Callahan's motion for summary judgment, allowing Callahan to collect a contingency fee, but only awarding Yancey hourly fees; (3) in not determining the highest reasonable contingency fee based upon both contracts and in failing to apportion the fee in accordance with controlling jurisprudence, (4) in not holding a trial or allowing discovery; and (5) in not ordering the attorney fees to remain in trust pending an appeal.
ATTORNEY FEES IN TRUST PENDING APPEAL
Yancey argues the trial court should have recognized his right to a suspensive appeal and should have ordered that the total amount of attorney fees Callahan obtained be held in trust pending the appeal. In this appeal he does not cite any authority in support of this argument.
This assignment of error is moot. The funds that were in Callahan's trust account were released to him by the terms of the summary judgment. Yancey was given ten days to apply for supervisory writs to prevent the release of the funds to Callahan but he failed to do so. Once the funds were released to Callahan there was no judgment to suspend. Yancey was entitled to a devolutive appeal, which he perfected. This assignment of error has no merit.
SUMMARY JUDGMENT
Appell
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