Opinion
23A-CT-2584
08-23-2024
In the Matter of John Klisurich, et al, Appellant-Plaintiffs v. Lawrence Obregon, et al, Appellee-Defendants
APPELLANT, PRO SE Theodore L. Stacy Law Office Valparaiso ATTORNEYS FOR APPELLEES, HALE & MONICO LLC AND THE FAKHOURI LAW FIRM LLC Shawn W. Barnett Pro Hac Vice Hale & Monico, LLC Chicago, Illinois Daniel H. Pfeifer Pfeifer Morgan & Stesiak LLP South Bend, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Porter Superior Court The Honorable Jeffrey W. Clymer, Judge Trial Court Cause No. 64D02-1612-CT-10950
APPELLANT, PRO SE
Theodore L. Stacy
Law Office
Valparaiso
ATTORNEYS FOR APPELLEES, HALE & MONICO LLC AND THE FAKHOURI LAW FIRM LLC
Shawn W. Barnett
Pro Hac Vice
Hale & Monico, LLC
Chicago, Illinois
Daniel H. Pfeifer
Pfeifer Morgan & Stesiak LLP
South Bend, Indiana
MEMORANDUM DECISION
Pyle, Judge.
Statement of the Case
[¶1] Theodore L. Stacy ("Attorney Stacy") appeals, pro se, the trial court's award of $7,320.00 in attorney fees for his legal work conducted on behalf of John Klisurich, Kathy Klisurich, Brandin Klisurich, Blake Klisurich, and Kari Klisurich (collectively, "the plaintiffs") before the plaintiffs had fired Attorney Stacy and had hired the Fakhouri Firm LLC and Hale &Monico LLC (collectively, "Subsequent Attorneys"). Attorney Stacy argues that the trial court abused its discretion when it awarded him $7,320.00 in attorney fees. Concluding that the trial court did not abuse its discretion, we affirm the trial court's judgment.
[¶2] We affirm.
Issue
Whether the trial court abused its discretion when it awarded Attorney Stacy $7,320.00 in attorney fees.
Facts
[¶3] In 2016, Attorney Stacy began representing the plaintiffs for an incident that had occurred in 2014. The plaintiffs and Attorney Stacy entered into a contingent fee agreement that provided that the plaintiffs would pay Attorney Stacy 33% of the recovery amount in fees. The agreement also provided that "if recovery for the Client is not successful, Client will owe no fees." (Appellant's App. Vol. 2 at 64) (emphasis in original). In December 2016, the plaintiffs filed their complaint against Lakes of the Four Seasons Property Owner's Association, Inc. ("Four Seasons"), Lawrence Obregon ("Obregon"), Brian Henderson, Johnni Latta, and Michael Dvorsack. Attorney Stacy worked on the case for approximately three years. In November 2019, plaintiffs fired Attorney Stacy, and he moved to withdraw from the case. Attorney Stacy withdrew from the case in December 2019.
[¶4] Soon after, the plaintiffs hired Subsequent Attorneys who filed an amended complaint to include additional state and federal claims on the plaintiffs' behalf. Subsequent Attorneys' work on behalf of the plaintiffs included defending against motions to dismiss, motions for summary judgment, and an interlocutory appeal. In addition, Subsequent Attorneys took the plaintiffs' claims to trial.
[¶5] In May 2023, on the day of trial, the parties settled the case and filed a notice of settlement with the trial court. That same day, Attorney Stacy filed, in the plaintiffs' cause, a motion to adjudicate charging lien. In his motion, Attorney Stacy requested that the trial court set the matter for hearing and order a briefing schedule if the attorneys could not agree on settlement for his lien. Attorney Stacy did not submit to the trial court any evidence related to the amount of his attorney fees or the value of his work.
[¶6] Subsequent Attorneys attempted to contact Attorney Stacy multiple times to discuss the value of Attorney Stacy's work. Attorney Stacy asserted that his fee was 33% of the unaccepted offers of settlement that he had received during mediation. Attorney Stacy did not provide any itemization of his time spent on the case. Subsequent Attorneys filed a response to Attorney Stacy's motion to adjudicate lien. In their response, Subsequent Attorneys argued that Attorney Stacy was not entitled to 33% of an unaccepted settlement amount based on his contingent fee agreement with the plaintiffs. Instead, Subsequent Attorneys argued that Attorney Stacy was limited to a recovery through quantum meruit in the amount of $7,320.00. In support of that amount, Subsequent Attorneys estimated that Attorney Stacy had spent 24.4 hours working on the case at a rate of $300.00 an hour. Subsequent Attorneys provided in their motion an itemized list of tasks and estimated time spent on each. These tasks included: (1) draft civil complaint (3 hours); (2) propound written discovery (1 hour); (3) answer written discovery (4 hours); (4) attend John Klisurich's deposition (3.5 hours); (5) attend Craig Phillips' deposition (1.5 hours); (6) attend Rick Cleveland's deposition (.75 hours); (7) attend defendant Johnnie Latta's deposition (2.7 hours); (8) attend June 2018 mediation (4 hours); and (9) attend October 2019 mediation (4 hours).
[¶7] In July 2023, the trial court held a hearing on Attorney Stacy's motion. At the hearing, Attorney Stacy stated that he thought his lien was an "equitable lien" or "quantum mer[u]it." (Tr. at 5). Attorney Stacy requested that the trial court appoint a special master to determine the amount of his attorney fees, and the trial court denied his request. The trial court asked Attorney Stacy why he had not communicated to Subsequent Attorneys the hours he had worked on the case prior to the plaintiffs firing him. Attorney Stacy responded that Subsequent Attorneys would not tell him what they had contributed to the case and that they had "wanted [him] to tell them" how much time he had worked on the case so that they could "make him an offer." (Tr. at 7). Attorney Stacy argued that "a quantum meruit argument" turns on "who brought value to the case." (Tr. at 7). Attorney Stacy noted that he had brought value to the case when he had taken depositions and had done the initial discovery. When the trial court asked him what he believed that value to be, Attorney Stacy responded that his demand was "one-third" of the settlement offer that he had "had on the table" before the plaintiffs had fired him. (Tr. at 9).
[¶8] In response, Subsequent Attorneys argued that Attorney Stacy was entitled to $7,320.00 in attorney's fees. In support of their position, Subsequent Attorneys argued that quantum meruit recovery turns on "[w]hat work did the prior attorney do that the successor attorneys relied upon." (Tr. at 14). Subsequent Attorneys further argued that their "response set[] forth everything that [Attorney] Stacy did." (Tr. at 14). Subsequent Attorneys also argued that Attorney Stacy had never stated that he had done any additional work and had never offered any time accounting.
[¶9] Later during the hearing, the trial court again asked Attorney Stacy why he had not submitted any evidence to the trial court. Attorney Stacy responded that neither party had submitted any evidence to the trial court about what work they had done but had only "submitted their opinions[.]" (Tr. at 16). In response, Subsequent Attorneys noted that the burden to produce evidence was Attorney Stacy's.
[¶10] In August 2023, the trial court issued an order, which provided in relevant part, the following:
[Attorney Stacy] was given the opportunity to present evidence and opted not to do so. He did not meet his burden of proof.
The Court was prepared to apply the law (Galanis [v. Lyons, 715 N.E.2d 858 (Ind. 1999)] and Nunn [Law Office v. Rosenthal, 905 N.E.2d 513 (Ind.Ct.App. 2009)]) to the evidence admitted.
The [Subsequent] Attorneys calculated what they believed to be a fair fee distribution: $7,320.00. There is no other evidence for the Court to consider.
IT IS ORDERED THAT [ATTORNEY []STACY SHALL RECEIVE SEVEN THOUSAND THREE HUNDRED AND TWENTY DOLLARS ($7,320.00) FROM THE SETTLEMENT PROCEEDS.(Appellant's App. 43-44). Attorney Stacy filed a motion to correct error, which was subsequently deemed denied.
[¶11] Attorney Stacy now appeals.
Decision
[¶12] Attorney Stacy argues that the trial court abused its discretion when it awarded him $7,320.00 in attorney fees. On appeal from an award of attorney fees, this Court applies the clearly erroneous standard to factual determinations, reviews legal conclusions de novo, and determines whether the amount of a particular award constituted an abuse of the trial court's discretion. Nunn Law Office v. Rosenthal, 905 N.E.2d 513, 516 (Ind.Ct.App. 2009). An abuse of discretion occurs when the trial court's decision is clearly against the logic and effect of the facts and circumstances before it. H &G Ortho, Inc. v. Neodontics Int'l, Inc., 823 N.E.2d 734, 737 (Ind.Ct.App. 2005). A trial court has wide discretion in awarding attorney fees. Id. "The trial court may look to the responsibility of the parties in incurring the attorney fees, and the trial [court] has personal expertise that he or she may use when determining the reasonableness of the fees." Id.
[¶13] Here, the plaintiffs entered into a contingent fee agreement with Attorney Stacy and fired him before there had been a resolution to the case. In the absence of an applicable contractual provision, "[t]he conventional rule is that an attorney who is employed under a contingent fee contract and discharged prior to the occurrence of the contingency is limited to quantum meruit recovery for the reasonable value of the services rendered to the client, and may not recover the full amount of the agreed contingent fee." Galanis v. Lyons &Truitt, 715 N.E.2d 858, 861 (Ind. 1999) (internal quotation marks omitted). To the extent that Attorney Stacy argues that he is entitled to 33% of the unaccepted settlement offer that he had procured before being fired by the plaintiffs, we note that Attorney Stacy "may not recover the full amount of the agreed contingent fee." See id.
[¶14] The trial court awarded Attorney Stacy his attorney fees under the theory of quantum meruit. "Quantum meruit is an equitable doctrine that prevents unjust enrichment by permitting one to recover the value of work performed or material furnished if used by another and if valuable." Id. at 861 (internal quotation marks omitted). Where there is a successor lawyer, the benefit the client received from the predecessor's work is either retained by the client in the form of obtaining a more favorable fee agreement, or it is transferred to the successor in the form of relieving the successor of the need to expend the same effort. Id. at 861-62. "In determining the reasonable value of the legal services rendered, the time expended by the attorney alone is not a controlling factor. Among other things, consideration may be given to the general quality of the effort expended by the attorney." Id. at 862. "[A]lthough the adherence to time charges is not required, a trial court would be within its discretion to do so in arriving at a reasonable fee." Carr v. Pearman, 860 N.E.2d 863, 872 (Ind.Ct.App. 2007) (citing Galanis, 715 N.E.2d at 863), trans. denied. Determining the proper value of the predecessor's services is ultimately a question of fact for the trial court. Nunn, 905 N.E.2d at 520.
[¶15] Our review of the record reveals that the trial court held a hearing on Attorney Stacy's motion to adjudicate lien in July 2023. At the hearing, the trial court asked multiple times for Attorney Stacy to produce evidence of the time that he had worked on the case or the value that he had brought to the case. Attorney Stacy did not do so. Instead, Attorney Stacy told the trial court that his offer to Subsequent Attorneys was for one-third of the unaccepted settlement offer he had received before the plaintiffs had fired him. Subsequent Attorneys argued that Attorney Stacy was entitled to $7,320.00 based on quantum meruit. Subsequent Attorneys based this amount on estimates of time that Attorney Stacy spent developing the case. Attorney Stacy continued to argue that the issue turned on what value that he had brought to the case, but he did not present evidence of that value. Thus, the trial court had information about Attorney Stacy's prior work on the case that had been submitted by Subsequent Attorneys regarding estimates of time that Attorney Stacy had spent on the case. Attorney Stacy did not object to the fee tasks and estimates provided by Subsequent Attorneys. Nor did Attorney Stacy present argument or evidence to contradict those tasks or estimates. Indeed, Attorney Stacy confirmed that he had done the tasks as set forth by Subsequent Attorneys. Therefore, the trial court did not abuse its discretion when it awarded Attorney Stacy $7,320.00 in attorney fees.
Attorney Stacy also argues that the trial court abused its discretion when it "t[ook] judicial notice of the fee suggestion" provided by Subsequent Attorneys "since it had no factual foundation." (Appellant's Br. 10). Our review of the record reveals that the trial court did not take judicial notice of Subsequent Attorneys' fee argument. Thus, this argument has no merit. Attorney Stacy also argues that the trial court abused its discretion when it "convert[ed] a hearing on a motion to set a briefing schedule to an evidentiary hearing without any notice[.]" (Appellant's Br. 10). However, Attorney Stacy provides no cogent argument pointing to any relevant cases or authorities that support this claim. Thus, he has waived the argument on appeal. See Ind. Appellate Rule 46(A)(8). Waiver notwithstanding, Attorney Stacy, in his motion to adjudicate lien, asked for a hearing. The trial court held a hearing on his motion.
Bailey, J., and Crone, J., concur.