Opinion
Civil Action No. 04A-06-006 SCD.
Submitted: March 18, 2005.
Decided: June 1, 2005.
Upon appeal from the decisions of Hon. Charles W. Welch, III, Court of Common Pleas of the State of Delaware in and for New Castle County, Dated March 26, 2004 and May 11, 2004, in Civil Action No. 2002-12-411.
AFFIRMED in part, REVERSED in part, and REMANDEDJohn A. Faraone, Esquire, Wilmington, DE.
L. Vincent Ramunno, Esquire, Wilmington, DE.
Barbara A. Madric, Wilmington, DE.
Dear Counsel:
Plaintiff, John A. Faraone, Esquire ("Faraone") represented Barbara A. Madric ("Madric") in a personal injury case. A retainer agreement was executed which contained a provision related to termination of representation. After the arbitration process, Madric decided to change attorneys. She hired L. Vincent Ramunno, Esquire ("Ramunno"). In order to proceed with the case, Ramunno requested the file from Faraone. Faraone insisted that both Madric and Ramunno sign an agreement for the payment of his costs and attorney fees before delivering the file ("transfer agreement"). The cover letter transmitting the agreement sought $7360.34 in costs, plus $500 copying charges.
Withdrawal or Discharge of Attorney
7. The attorney may not be discharged unless and until he is reimbursed for any and all costs and expenses advanced and paid a reasonable amount for the services performed. Retainer agreement, Trial Ex. 1.
AGREEMENT TO PAY ATTORNEY FEES, COSTS, EXPENSES PAID BY ATTORNEY
I, L. Vincent Ramunno, Esq., agree that John A. Faraone, Esq., shall be paid and reimbursed for all costs and expenses incurred by Mr. Faraone during the time that he represented Barbara A. Madric in the law suit entitled: Barbara A. Madric v. Robert E. Martin, C.A. No. 00C-05-254-WCC, in the sum of $7,360.28, plus 11% of the gross amount of money received by her from an amicable settlement of said lawsuit, or the gross sum awarded to her by a jury after trial of said lawsuit. All such attorney fees and the $7,360.28* advanced costs and expenses due Mr. Faraone shall be paid to him within 10 days of the receipt of payment from Defendant, Robert E. Martin, his insurance carrier, and/or any person, or entity making such payment on his behalf, in the aforementioned lawsuit, and such payment shall be made to Mr. Faraone before Plaintiff, Barbara A. Madric receives any part or portion of said money paid to her or to any person on her behalf.
IN WITNESS WHEREOF, I have hereunto set my hand and seal, this ______ day of August, 2002.
* payment of 2900 to Dr. Link will be paid if it is determined to be reasonable. There should be no charge for photocopying and no need to photocopy file.
The italicized portions of the quotation were hand-written by Mr. Ramunno. The blank for date was not completed on his agreement. The substantially similar agreement signed by Madric and witnessed by Ramunno contains the date of August 14, 2002. The Madric agreement has exactly the same language handwritten regarding payment of the $2900 to Dr. Link. Tr. Ex. 5.
After the case was resolved, Faraone was paid the agreed upon counsel fees and costs except that he was only reimbursed $900 of the $2900 for the economist report and nothing for photocopying.
Ramunno's transmittal letter said that he would "hold $2500 in escrow for only thirty (30) days to allow [Faraone] an opportunity to convince Ms. Madric that Dr. Link's bill was reasonable and/or that $500 for photocopying was an out-of-pocket expense and then I will distribute these funds to Ms. Madric." Faraone wrote to Ramunno on December 13, 2002 directing him to retain the $2500 in escrow until the dispute could be resolved in Court. Faraone initiated this action in the Court of Common Pleas in December, 2002 seeking reimbursement of those sums. At some time prior to the resolution of the dispute, Ramunno distributed the escrowed money to Madric.
Ramunno letter to Faraone dated November 18, 2002. Tr. Ex. 9.
Tr. Ex. 11.
The Court heard evidence that focused primarily on the quality of the expert report at issue. The ruling was announced from the bench. The Court denied the request for photocopying expenses, finding the record to be inadequate. As to the claim of tortious interference against Ramunno, the Court found "no factual basis for that charge." As to the transfer agreements, the Court found no consideration, and no meeting of the minds with respect to Mr. Link's report or the photocopying charges. Essentially, the Court found the transfer agreements to be unenforceable. Finally, the Court found that the retainer agreement obligated Madric to pay the costs of prosecuting the case. He found that the sum paid to Dr. Link was not "unreasonable and unnecessary." Judgment was entered against only Madric for $2,000.
Transcript of trial decision, Docket No. 4, p. 3.
Id. at 4.
Id. at 5.
The plaintiff filed for reargument and for a new trial, seeking entry of judgment against Ramunno. The motion included an affidavit from Madric. The Court ruled that "[n]one of the new evidence provided by Madric's affidavit would change the Court's decision if a new trial is granted." Both motions were denied.
Decision of the Court of Common Pleas dated May 11, 2004, Welch, J., CCP Docket No. 13; Record below, Superior Court Docket No. 3.
The plaintiff has appealed the ruling with regard to Ramunno to this Court.
Standard of Review
From a nonjury case, the appeal is upon both the law and fact. If there is sufficient evidence to support the decision of the trial judge, it must be affirmed. "Only when the findings below are clearly wrong and the doing of justice requires their overturn [is the appellate court] free to make contradictory findings of fact."
Levitt v. Bouvier, 287 A.2d 671, 673. (Del. 1972).
Id.
Id.
Discussion
The retainer agreement signed by Madric required her to reimburse Faraone for costs and expenses advanced, plus a reasonable amount for legal services. It does not say reasonable costs and expenses. Both Madric and Ramunno signed a transfer agreement. Each independently bound themselves to the terms set forth therein. The transfer agreements add language about the reasonableness of the costs. The transfer agreements are binding contracts. They are agreements to recognize Faraone's lien. The parties understood them as such, and paid the money required, save for the disputed expert fee and photocopying expense. Those were submitted to the Court. The Court made the factual determination that the photocopying expenses were not adequately proven, but that the expert cost had been incurred and was reasonable. Those factual findings require that judgment be imposed on both parties as both have committed themselves to recognize the same lien.The decision of the Court of Common Pleas is AFFIRMED as to the photocopying costs and Madric's obligation, and REVERSED as to Ramunno's obligation to pay the expert fees. The matter is REMANDED for the entry of judgment, joint and severally, against Ramunno, in the sum of $2000.
IT IS SO ORDERED.