HERZOG v. IRACE
8/6/1991
Anthony Irace and Donald Lowry appeal from an order entered by the Superior Court (Cumberland County, Cole, J.) affirming a District Court (Portland, Goranites, J.) judgment in favor of Dr. John P. Herzog in an action for breach of an assignment to Dr. Herzog of personal injury settlement proceeds collected by Irace and Lowry, both attorneys, on behalf of their client, Gary G. Jones. On appeal, Irace and Lowry contend that the District Court erred in finding that the assignment was valid and enforceable against them. They also argue that enforcement of the assignment interferes with their ethical obligations toward their client. Finding no error, we affirm.
The facts of this case are not disputed. Gary Jones was injured in a motorcycle accident and retained Irace and Lowry to represent him in a personal injury action. Soon thereafter, Jones dislocated his shoulder, twice, in incidents unrelated to the motorcycle accident. Dr. Herzog examined Jones's shoulder and concluded that he needed surgery. At the time, however, Jones was unable to pay for the surgery and in consideration for the performance of the surgery by the doctor, he signed a letter dated June 14, 1988, written on Dr. Herzog's letterhead stating:
I, Gary Jones, request that payment be made directly from
settlement of a claim currently pending for an unrelated
incident, to John Herzog, D.O., for treatment
Dr. Herzog notified Irace and Lowry that Jones had signed an "assignment of benefits" from the motorcycle
In May, 1989, Jones received a $20,000 settlement in the motorcycle
Dr. Herzog filed a complaint in District Court against Irace and Lowry seeking to enforce the June 14, 1988 "assignment of benefits." The matter was tried before the court on the basis of a joint stipulation of facts. The court entered a judgment in favor of Dr. Herzog finding that the June 14, 1988 letter constituted a valid assignment of the settlement proceeds enforceable against Irace and Lowry. Following an unsuccessful appeal to the Superior Court, Irace and Lowry appealed to this court. Because the Superior Court acted as an intermediate appellate court, we review the District Court's decision directly. See Brown v. Corriveau, 576 A.2d 200, 201 (Me. 1990).
Standard of Review
At one time, we declined to give deference to a trial court's findings of fact when based entirely upon stipulated facts and documentary evidence in the record. See, e.g., C Co. v. City of Westbrook, 269 A.2d 307, 309 (Me. 1970); In re Edwards' Estate, 161 Me. 141, 149, 210 A.2d 17, 22 (1965). We reviewed such cases de novo, reasoning that appellate and trial courts are equally able to assess documentary evidence. Id. More recently, however, we have held that we will set aside trial court findings based solely upon documentary evidence and stipulated facts only if clearly erroneous. Estate of Tully, 545 A.2d 1275, 1277 (Me. 1988). Accordingly, Lowry and Irace's recitation of the de novo standard of review is incorrect. We review the District Court's findings of fact based on stipulated facts and documentary evidence only for clear error.
Validity of Assignment
An assignment is an act or manifestation by the owner of a right (the assignor) indicating his intent to transfer that right to another person (the assignee). See Shiro v. Drew, 174 F. Supp. 495, 497 (D.Me. 1959). For an assignment to be valid and enforceable against the assignor's creditor (the obligor), the assignor must make clear his intent to relinquish the right to the assignee and must not retain any control over the right assigned or any power of revocation. Id. The assignment takes effect through the actions of the assig
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