Miller v. Magnus
| Decision Date | 01 October 2019 |
| Docket Number | Case No. 116,993 |
| Citation | 452 P.3d 440 |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
| Parties | Kelly R. MILLER, Plaintiff, v. Joseph A. MAGNUS, Lee R. Linsenmeyer, III, and Central Rural Electric Cooperative, Inc., an Oklahoma corporation, Defendants, Gregory Meier and Ken Privett, P.L.C., Appellants, v. Martin, Jean & Jackson, Appellee. |
Gregory G. Meier, MEIER & ASSOCIATES, Tulsa, Oklahoma, for Appellants
Michael P. Martin, MARTIN, JEAN & JACKSON, Stillwater, Oklahoma, for Appellee
OPINION BY P. THOMAS THORNBRUGH, JUDGE:
¶1 The firm of Gregory Meier and Ken Privett, P.L.C. (Meier and Privett), appeal a decision by the district court apportioning 100 percent of a contingency fee to the firm of Martin, Jean & Jackson (MJ&J). On review, we find the district court acted within its discretion.
¶2 The district court made substantial findings of fact that we will use as the basis for this summary. On or about June 15, 2014, Plaintiff Miller was involved in a motor vehicle collision. Miller was injured by a truck driven by Joseph Magnus. Magnus was a 17 year-old high school student at the time, and was driving a truck pulling a trailer with a backhoe. Magnus swerved to avoid a truck owned by Central Rural Electric Cooperative (CREC) which was stopped in the roadway. In doing so, Magnus's truck crossed the centerline and collided with Miller's vehicle. On June 18, 2014, Miller entered into a contract with MJ&J to represent his interest in claims against the potential Defendants arising out of the collision. The contract provided MJ&J would be compensated under a 33 1/3 percent contingent fee on the gross amount recovered if this case was resolved before a lawsuit was filed, or 40 percent of the gross amount recovered if suit was filed.
¶3 Shortly after being retained, MJ&J initiated the claims process as to Magnus's parents' insurance and Miller's s own insurer. MJ&J settled the property damage claim with the Magnuses' insurer. MJ&J did not charge a fee for settling the property damage claim. MJ&J submitted Miller's medical bills to his own insurer and obtained the medical payment of policy limits of $100,000.00, which was disbursed to Plaintiff. MJ&J negotiated with Miller's health insurance provider to waive its subrogation interest of $225,883 as to the medical payments coverage. No fee was charged to Miller for this work.
¶4 MJ&J obtained a policy limit offer of $250,000.00 from the Magnuses' insurer.1 Miller did not wish to accept the offer at that time, and requested MJ&J to investigate whether Defendant Magnus had any collectable assets to pursue over the $250,000.00 policy limits. MJ&J arranged a recorded statement of Defendant Magnus and hired another investigator to investigate potential claims against the CREC driver, Lee Linsenmeyer, Ill and CREC. On January 21, 2015, MJ&J received a letter from Defendant Magnus's counsel reiterating the policy limit offer.
¶5 On February 11, 2015, Michael Martin of MJ&J had a meeting with Miller to discuss case status and strategy. Miller stated that he did not want to file a lawsuit at that time. On March 25, 2015, Martin sent Miller a letter asking Miller if he was ready to proceed on the potential claim against CREC. On April 11, 2015, Martin sent Miller a second letter asking Miller to call and discuss the best way to proceed on his case.
¶6 On April 23, 2015, Miller entered a second attorney client agreement and fee agreement with Meier and Privett,2 but did not inform MJ&J until they received a letter from Miller terminating MJ&J as his counsel on May 7, 2015. On May 15, 2015, Gregory Meier also advised MJ&J that he had been retained by Plaintiff to continue his claims against Defendants. On May 19, 2015, MJ&J notified counsel for Magnus, Miller's new counsel, and the insurance claim representative that MJ&J claimed an attorney's lien.
¶7 On July 30, 2015, Meier and Privett filed a petition for negligence against Defendants Magnus, Linsenmeyer, and CREC.3 Meier and Privett negotiated a compromise resolution of Aetna's health insurance lien claim from $400,000 down to $85,000 on behalf of Miller. They also achieved a release of hospital lien from St. Francis Health System and a release by the Warren Clinic. Miller then settled his case against Defendant Magnus for the previous policy limits offer of $250,000.00, and Magnus was subsequently dismissed from the lawsuit.4 On January 22, 2016, MJ&J filed an attorney's lien with the Payne County clerk and filed a Notice of Lien.
¶8 On January 12, 2017, Miller filed a motion to strike and invalidate MJ&J's January 26, 2016, notice of attorney's lien. Through a series of procedural detours, this eventually evolved into a hearing on the allocation of attorney's fees generated by the $250,000 settlement with the Magnuses' insurer. MJ&J claimed that they were entitled to $83,333.33 in contingency fees (a 33 1/3 percent share of the $250,000) plus some expenses. Meier and Privett also claimed that they were entitled to $83,333.33 in contingency fees, and that MJ&J were entitled only to their expenses.
¶9 In a written order dated August 28, 2017, the district court found that MJ&J's lien was valid. It also found:
... that MJ&J were discharged by Plaintiff Miller without cause. This court finds the amount settled by Plaintiff with Defendant Magnus was the same amount negotiated by MJ&J, the $250,000.00 policy limit. Based on Martin v. Buckman [1994 OK CIV APP 89, 883 P.2d 185], the court finds that MJ&J is entitled to their contingent fee amount of $84,555.15.
Meier and Privett filed a motion for new trial within 10 days, which was denied by the district court. Meier and Privett now appeal.
¶10 "The reasonableness of attorney fees depends on the facts and circumstances of each individual case and is a question for the trier of fact." Parsons v. Volkswagen of America, Inc. , 2014 OK 111, ¶ 9, 341 P.3d 662. "The standard of review for considering the trial court's award of an attorney fee is abuse of discretion." Id . "Reversal for an abuse of discretion occurs where the lower court ruling is without rational basis in the evidence or where it is based upon erroneous legal conclusions." Id .
¶11 The questions presented are these: 1) did MJ&J have a valid attorney's lien in this matter; and 2) if so, what portion, if any, of the result obtained should be attributed to Meier and Privett's work for contingency fee purposes?
¶12 Meier and Privett argue on appeal that MJ&J did not perfect a valid attorney's lien in this matter, and hence have no lien claim on the settlement funds for fee purposes. We find, however, no evident argument regarding liens in Meier and Privett's motion for new trial. The motion for new trial acts to limit the issues reviewed on appeal to those raised by that motion. Onyekuru v. Farmers Ins. Co. , 2000 OK 81, ¶ 4, 20 P.3d 812 ().5
¶13 Meier and Privett argued in the district court that MJ&J could not recover fees because it had no attorney's lien. Therefore, they argued, they were entitled to a full 33 1/3 percent contingency fee of $83,333. As noted at n.5 of this Opinion, the lien question is immaterial. In its motion for a new trial, Meier and Privett argued that it was entitled to an apportionment of the fees generated by the $250,000 settlement.6 The apportionment doctrine in such cases is set out in Martin v. Buckman , 1994 OK CIV APP 89, ¶ 42, 883 P.2d 185. The court should consider:
(1) The amount of the settlement or judgment the discharged attorney had a reasonable possibility of realizing had she been permitted to continue in the case; (2) the nature and extent of the services she rendered within the scope of the contingent fee contract; and (3) the nature and extent of the services rendered by the second lawyer.
Martin further notes that:
The proportionalization of each attorney's services, of course, is not to be evaluated on an hourly rate basis, but consideration should be given to the nature of the case, and the relative contribution of each attorney to the creation of the contingent fee fund with considerable emphasis on the first attorney's contractual share.
¶14 Meier and Privett argue that they performed two services that contributed to "the creation of the contingent fee fund." The first was taking the deposition of Defendant Magnus. Meier and Privett argue that this was necessary because Miller did not believe his prior counsel's assurance that neither Magnus nor his parents had any worthwhile assets to collect beyond the liability insurance limits, and was reluctant to approve a settlement that would release Magnus. Meier and Privett eventually reached the same conclusion as MJ&J, that Magnus and his parents had no other significant reachable assets. Meier and Privett argue, however, that this deposition had a role in creating the contingent fee fund because Miller would not have accepted the settlement without it. The second act of Meier and Privett was to negotiate down the outstanding medical liens against the settlement, thereby increasing the amount Miller actually received from the settlements.
¶15 We sympathize with the difficulty presented to the trial court in this matter, because these theories do not appear to have been raised before in any reported apportionment case. Generally the work performed by the second firm in the reported apportionment cases clearly adds some value that was not there while the first firm had the case. In Duffy v. Cope , 2000 OK CIV APP 140, ¶ 10, 18 P.3d 366, by example, a $250,000 settlement offer was raised to $600,000 after the second firm worked the case. Meier and Privett cites Sheffer v. Carolina Forge Co., LLC , 2017 OK CIV APP 39, 401 P.3d 225, as...
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