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2016-0178, Harvey J. Garod v. Steiner Law Office, PLLC & a.
reviewing a trial court’s dismissal of a plaintiff’s action, we “assume the truth of follows. See Coyle v. Battles, 147 N.H. 98, 100 (2001) (noting that, when Accepting the plaintiff’s allegations as true, t he pertinent facts are as
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R. James Steiner and Steiner Law Offices, PLLC. We reverse and remand. Court (O’Neill, J.) dismissing his conversion action against the defendant s, LYNN, J. The plaintiff, Harvey J. Garod, appeals an order of the Superior
memorandum of law and orally), for the defendant s. Steiner Law Office, PLLC, of Concord (R. James Steiner on the
and orally), for the plaintiff. Law Offices of Harvey J. Garod, of Laconia (Harvey J. Garod on the brief
Opinion Issued: May 17, 2017 Argued: January 26, 2017
STEINER LAW OFFICE, PLLC & a.
v.
HARVEY J. GAROD
No. 2 016 - 0178 Belknap
___________________________
THE SUPREME COURT OF NEW HAMPSHIRE
http://www.courts.state.nh.us/supreme. release. The direct address of the court's home page is: Opinions are available on the Internet by 9:00 a.m. on the morning of their reported by E - mail at the following address: reporter@courts.state.nh. us. corrections may be made before the opinion goes to press. Errors may be Doe Drive, Concor d, New Hampshire 03301, of any editorial errors in order that requested to notify the Reporter, Supreme Court of New Hampshire, One Charles as formal revision before publication in the New Hampshire Reports. Readers are NOTICE: This opinion is subject to motions for rehearing under Rule 22 as well 2
defendants. The defendants moved to dismiss the action for failure to state a alleging that he had a n enforceable contractual lien for fees against the T he plaintiff then initiated this action against the defendants, again
of them without explanation. foreclose lien. The client objected to all these motions, and the court denied all he possessed a contractual lien, a motion for interpleader, and a motion to action, including a second motion to intervene wherein he again asserted that On the same day, t he plaintiff filed a series of motions in the underlying
counsel, R. James Steiner.” The court granted the motion. order that the settlement check be made “payable solely to [the client] and her After the settlement of the underlying action, the client filed a motion to
motion to reconsider.” the court’s order, which the court denied, ruling that it was “an untimely According to the defendants, t he plaintiff subsequently filed a motion to vacate rea sons stat ed in the [client’s] objection,” without further elaboration. recovery in quantum meruit. The court denied the plaintiff’s motion “for the the plaintiff had “neither a lien n or a contractual claim” and was limited to plaintiff retained the ability to bring a separate quantum meruit claim; and ( 2) inappropriate because of the possibility of juror confusion and because the the motion, claiming, among other things, that: (1) intervention would be costs incurred during his representation of the client. The client objected to underlying action, asserting that he possessed a contractual lien for fees and Prior to settlement, the plaintiff filed a motion to intervene in the
the underlying action on the client’s behalf. (underlying action) on behalf of the clien t. The defendants ultimately settled cause. The client subsequently hired the defendants, who fi led an action The plaintiff worked for the client for two years before being discharged without
and costs on any recovery I receive in my case. perfo rms under the contract. I grant my attorney a lien for his fees full contingency fee identified in this contract if he substantially behalf. I do further agree that my attorney will be entitled to the offer, whichever is greater, from any recovery obtained on my thirty - three and one - third percent (33 - 1/3%) of the last settlement $175.00 per hour for his legal assistant(s), quantum meruit, or representation, I agree to pay him at the rate of $350.00 per hour, If I discharge my attorney or he withdraws from
which states, in relevant part: representation, the client signed the plaintiff’s standard engagement contract, client to pursue a personal injury action. In connection with the all well - pleaded facts” alleged by the plaintiff). The plaintiff was retained by a 3
allegations are reasonably susceptible of a construct ion that would permit We review motions to dismiss to determine whether the plaintiff’s
process rights. H e also appears to claim that the trial court’s various decisions violated his due “extinguished his property rights to the lien AND the secured fees and costs.” the underlying action filed by the defendants on behalf of the client that quantum meruit was his only method of recovery; and (4) determining that li en and determining that it is not binding upon the defendants; ( 3) concluding that his claim is barred by collateral estoppel; (2) invalidating the contractual On appeal, the plaintiff argues that the trial court erred in: (1) finding
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limited him to recovery in quan tum meruit. This appeal followed. things, that our decision in Adkin Plumbing v. Harwell, 1 35 N.H. 465 (1992), amended complaint failed to state a claim because it found, among other (Q uotation and citations omitted.) T he court also ruled that the plaintiff’s
collateral estoppel is also met. for denying said Motion suggests that the third condition of and the court’s determination of this issue was the precise basis that he first raised the issue of the lien in a Motion to Intervene plaintiff was not a formal party in the und erlying action, the fact a lien, thus deciding this issue on the merits. Further, while the Justices issued orders rejecting the plaintiff’s assertion that he had underlying action]. It is also clear that at least two separate that he had a lien when he sought to intervene in the client’s [I]t is plain from the record that [the plaintiff repeatedly asserted
dismissing the plaintiff’s original complaint, stating: by the doctrine of collateral estoppel.” The court then quoted its earlier order amended complaint, noting that the plaintiff’s cause of action “remains barred the amended complaint and granted the defendants’ motion to dismiss the other motions. After the hearing, the court granted the plaintiff’s motio n to file court denied the motion for reconsideration and scheduled a hear ing on the objected to these motions, and moved to dismiss the amended complaint. The complaint, along with the proposed amended complaint. The defendants The plaintiff moved for rec onsideration and for leave to file an amended
meet the elements of an enforceable contract containing the lien term.” client, and, thus, failed to allege “facts that c[ould] be reasonably construed to me rits because he had not submitted any evidence of his contract with the estoppel.” Nonetheless, the court found that the plaintiff’s claim fail ed on the contractual lien claim was “arguably barred by the doctrine of collateral claim. In its order granting the motion, the court noted that the plaintiff’s 4
several reasons, including those identified b y the client in her objection to the that issue, could have denied the plaintiff’s motion s to intervene for any one of trial court, regardless of whatever findings it might have made with regard to not necessary or essential t o sup port the trial court’s decision s because the Here, finding s with regards to whether the plai ntiff had a contractual lien were court’s discretion. See Lamarche v. McCarthy, 158 N.H. 197, 200 (2008). W hether to grant a motion to intervene is a matter committed to the trial decision s. S ee In the Matter of Salesky & Salesky, 157 N. H. 698, 709 (2008). assume that the court made all findings of fact ne cessary to support its In this case, the trial court made no specific findings of fact, but w e must
v. Hannaford Bros., 161 N.H. 2 42, 247 (2010). reasons without stating which one of those reasons was dispositive. See Tyler when the trial court denied the plaintiff’s motion to intervene for multiple 258 (1 982). In this case, we must evaluate whether the lien issue was essential parties is not precluded.” Restatement (Second) of Judgments § 27, cmt. h at determinations, relitigation of those issues in a subsequent action between the “issues are determined but the judgment is not dependent upon the collateral estoppel, the Restatement (Second) of Judgments states that if to the trial court’s decision s. In a comment explaining the final requirement for W e focus our analysis on whether the attorneys ’ lien issue was essential
law th at we review de novo.” Id. (quotation omitted). the first judgment. Id. “The applicability of collateral estoppel is a question of opportunity to litigate the issue; and (5) the finding at issue was essential to privity with someone who did; ( 4) the party to be estopped had a full and fair on the merits; (3) the party to be estopped appeared in the first action or wa s in estoppel is identical in each action; (2) the first action resolved the issue finally relitigation of findings made by a previous court when: (1) the issue subject to Wolters, 169 N.H. 304, 314 (2016) (quotation omitted). It may pr eclude the litigated and determined in the prior action.” 412 S. Broadway Realty v. person in privity with such party, from relitigating any issue or fact actually The doctrine of collateral estoppel “bars a party to a prior action, or a
given preclusive effect so as to bar the present action. claim that the trial court’s rulings denying the moti ons to intervene should be merits” relati ng to his lien claim in the underlying action. The defendants because there was no “appearance, hearing, and l itigated decision on the The plaintiff asserts that his claim is not barred by collateral estoppel
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error and must provide an adequate record for our review. Id. favorable to him. Id. On appeal, the plaintiff has the burden to demonstrate facts alleged by the plaintiff, construing all inferences in the light most recovery. Coyl e, 1 47 N.H. at 100. We assume the truth of all well - pleaded 5
Prof. Conduct 1. 5, 1.8 (i)(1); Model Rules of Prof’l Conduct 1.8 cmt. (2014). contract conforms to our general rules regarding attorneys’ fees. See N.H. R. that may be had in the case for which the attorney was engaged, provided the entering into a contract that grants the atto rney a lien against any recovery Moreover, nothing in our jurisprudence forbids an attorney and client from and disbursements.” Id. at 354; see Wells v. Hatch, 43 N.H. 246, 247 (1861). the client’s recovery, b ut the lien was limited to the attorney’s “taxable costs 311:13 in 1963, our law had r ecognized a common law attorney s ’ lien against acquire a lien. As the Peterson court noted, long before the enactment of RSA However, this statute is not the exclusive method by which an attorney may H ere, the plaintiff was discharged before any such proceeding was instituted. “proceeding” to which it relates. Peterson v. Reilly, 105 N.H. 340, 355 (1964). attaches “no earlier than the date of entry of the appearance of counsel” in the created under RSA 311:13 (2015) is unavailable to the plaintiff inasmuch as it defendant s argue, and the plaintiff does not dispute, that the statutory lien is entitled to the full contingency fee and costs secured by that lien. The client executed the engagement agreement that included a contractual lien, he that, because New Hampshire law permits contractual liens, and because the basis of the contractual lien granted to him by the client. The plaintiff argues The plaintiff asserts th at he may recover from the defendant s on the
enforceable against the defendants. whether he pos sesses a valid contractual lien; and (2) whether that lien is to conversion. Consequently, t he plaint iff’s conversion claim turns up on: (1) appeal we assume, without deciding, that an attorney’s lien for fees is subject contractual lien cannot constitute a property interest, for the purposes of this 93, 9 5 (1981) (quotation omitted). Because the defendants do not argue that a chattel.” Kingston 1686 House, Inc. v. B.S.P. Transportation, Inc., 121 N.H. that the actor may justly be required to pay the other the full value of the a chattel which so seriously interferes with the right of another to control it defendant s. “Conversion is an intentional exercise of dominion or control over his conversion claim regarding his alleged contractual lien again st the identifiable funds are subject to conversion,” the trial court erred in dismissing The plaintiff next argues that, given that both “liens and unsecured
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barred by colla teral estoppel. trial court erred in concluding that the plaintiff’s contractual lien claim was standing to file the motions in question. For these reasons, we hold that the concluded that, having been denied intervenor status, the plaintiff had no because it had already denied the plaintiff’s motions to intervene and the refore on these motions, it is entirely possible that the court denied them simply motion to foreclose lien, because the court gave no explanation for its rulings the plaintiff in the underlying action, i.e., the motion s for interpleader and the plaintiff’s first motion to intervene. With respect to the other motion s filed by 6
client’s] case. “Lawyers almost always possess the more reasonable fee for the value of the work already done in [the the best position to evaluate and to reach an agreement as to a fee out of his or her contingent fee. [The su ccessor lawyer] was in done the successor assumes the obligation to pay the first lawyer’s and explicitly contract away liability for those fees. If this is not to explain fully any obligation of the client to pay a previous lawyer contingent fee contract with knowledge of a previous lawyer’s work clients’ rights, it is incumbent upon the lawyer who enters a In a system of professional responsibility that stresses
1999). As that court aptly explained: Indiana Supreme Court in Galanis v. Lyons & Truitt, 715 N.E.2d 858 (Ind. against the defendants. In so holding, we follow the view espoused by the conclude that the lien for fees claimed by the plaintiff may be enforceable client had dis charged a prior attorney b efore retaining their services, we Beca use the defendants do not argue that they were unaware that the
by the plaintiff’s argument. the client. Under the particular circumstances of this case, we are persuaded position is that, if th e plaintiff has any claim for fees, the claim lies only against the client should not be required t o pay both lawyers’ fees. The defendants’ defendant s w ere aware of the lien at the time they w ere retained, and because signed by the client is enforceable against the defendant s because the enforceable against the defendants. T he plaintiff asserts that the con tract reasonable value of his services, we next consider whether that lien is Having thus establis hed that the plaintiff may have a valid lien for the
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services rather than any different amount that may be specified in the contract. amount of the lien is limited to the reasonable value of the discharged attorney’s the attorney is discharged before a judgment or settlement is obtained, the the plaintiff’s entitlement to a lien. Rather, it simply means that, in the event L. Rossi, Attorneys’ Fees § 3:12, at 3 - 33 (3d ed. 201 6). Yet Adkin does not defeat a quantum meruit basis the reasonable value of the services rendered.” 1 Robert contingency is not entitled to recover on the contract, but may recover merely on contract who is discharged without fault . . . before the happening of the jurisdictions, which holds “that an attorney employed on a contingent fee Our decision in Adkin is in accordance with the law in a majority of value of the services rendered prior to being discharged. Adkin, 135 N.H. at 46 7. client, but is instead limited to a recovery in quantum meruit for the reasonable without fault m ay not recover pursuant to his contingent fee contract with the meruit.” There is no doubt that we have held that an attorney discharged grounds that our case law restricts him “to a claim against the client in quantum The defe nda nts dispute t he plaintiff’s right to a contractual lien on the 7
DALIANIS, C.J.
, and HICKS, CONBOY, and BASSETT, JJ., concurred.
Reversed and remanded.
no right to a ssert a statutory attorney’s lien). removed “for professional misconduct in the handling of his client’s affairs” has 581 P. 2d 716, 718 (Colo. 1978) (en banc) (stating that attorney discharged or . . . has no right to payment of fees”); cf. People ex r el. MacFarlane v. Harthun, 454 F.2d 626, 633 (2d Cir. 1972) (stating that “attorney discharged for cause discharged without cause. See First Nat iona l Bank of Cincinnati v. Pepper, plaintiff’s entitlement to fees will be the issue of whether he was, as he alleges, expended by the plaintiff. See Galanis, 715 N.E.2d at 862. Also relevant to the amount that may or may not be commensurate with the time or effort observed, is to be measure d by the benefit c onferred upon the client – – an establishing the reasonable val ue of his services, which, as the Galanis court See Coyle, 147 N.H. at 100. On remand, the plaintiff will bear the burden of purposes of this appeal, we have accepted the plaintiff’s allegations as true. proceedings consistent with this opinion. In so doing, we emphasize that, for Accordingly, we reverse the trial court’s judgment and remand for further that the trial court erred in dismissing the plaintiff’ s amended complaint. We find the Galanis court’s reaso ning persuasive, and, therefore, hold
client might have to p ay both attorneys). with prior counsel where successor attorney advised client at retention that 2005) (holding that successor a ttorney was not required to split contingency fee ex penses.”); cf. Lubell v. Martinez, 901 So. 2d 951, 953 (Fla. Dist. Ct. App. responsible for payment of former counsel’s reasonable attorney’s fees and issue and to execute a written agreement unambiguously identifying the party counsel, before he or she receives the case, to confer with the client on the 123 (Mass. 2004) (“To avoid disputes in the future, we would advise successor Galanis, 715 N.E.2d at 863; s ee also Malonis v. Harrington, 816 N.E.2d 115,
successor lawyer’s] contingent fee. lawyer] is entitled to recover the compensation due [him] from [the should bear the burden of his silence. Acc ordingly, [the prior these circumstances, [the successor lawyer], not [the client], fee nor contracted away that responsibility for himself. Under successor lawyer] neither advised [the client] of the need to pay the could not resolve any open issues with [the prior lawyer]. [The prior lawyer’s] fee and to refuse to accept the case if [the client] option to discuss with [the client] the need for someone to pay [the 771, 774 - 75 (Ind. 1996). [The successor lawyer] also had the arrangements with clients.” In the M a tter of Myers, 663 N.E.2d the allotment of risk in the hands of the lawyer in regard to fee appropriate to place the balance of the burden of fair dealing and sophisticated understanding of fee arrangements. It is therefore