Crockett & Myers, Ltd. v. Napier, Fitzgerald & Kirby, LLP

• Decision Date: 16 December 2011
• Docket Number: No. 10–16040.,10–16040.
• Citation: 2011 Daily Journal D.A.R. 18004,664 F.3d 282,11 Cal. Daily Op. Serv. 15074
• Parties: CROCKETT & MYERS, LTD. and J.R. Crockett Jr., Plaintiffs–counter–defendants–Appellees, v. NAPIER, FITZGERALD & KIRBY, LLP and Brian P. Fitzgerald, Defendants–counter–claimants–Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

11 Cal. Daily Op. Serv. 15,074
2011 Daily Journal D.A.R. 18,004
664 F.3d 282

CROCKETT & MYERS, LTD. and J.R. Crockett Jr., Plaintiffs–counter–defendants–Appellees,
v.
NAPIER, FITZGERALD & KIRBY, LLP and Brian P. Fitzgerald, Defendants–counter–claimants–Appellants.

No. 10–16040.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 14, 2011.Filed Dec. 16, 2011.

[664 F.3d 283]

Michael K. Wall, Hutchison & Steffen, LLC, Las Vegas, NV, for the defendants-counterclaimants-appellants.

Joice B. Bass, Lewis and Roca LLP, and Samuel S. Lionel, Lionel Sawyer & Collins, Las Vegas, NV, for the plaintiffs-counter-defendants-appellees.

Appeal from the United States District Court for the District of Nevada, Philip Pro, District Judge, Presiding. D.C. No. 2:05–cv–0877–PMP.Before: PROCTER R. HUG, ANDREW J. KLEINFELD, and WILLIAM A. FLETCHER, Circuit Judges.OPINION PER CURIAM:

Brian Fitzgerald appeals for a second time the district court's award to him of $33,333 in quantum meruit based on the unjust enrichment he conferred on Appellee Crockett & Myers, Ltd. (Crockett). In his first appeal, Fitzgerald argued to a previous panel of this court ¹ that the district court's quantum meruit award was erroneous because Fitzgerald referred a major client to Crockett but the award did not account for the value of that referral. The panel agreed and remanded with instructions that the district court recalculate Fitzgerald's quantum meruit award to include the value of the client referral apart from the value of any other services Fitzgerald performed for Crockett. On remand, the district court re-entered its original award of $33,333. We are once again asked to consider whether the district court's $33,333 award was proper, and once again we hold that it was not.

I

The full factual history of this case is well documented in our opinion following

[664 F.3d 284]

Fitzgerald's first appeal, Crockett & Myers, Ltd. v. Napier, Fitzgerald & Kirby, LLP, 583 F.3d 1232 (9th Cir.2009) ( Crockett I ), so we do not recite it in great detail here. The case is again before this court because Fitzgerald claims that the district court did not follow the remand instructions in Crockett I. In the Crockett I appeal, Fitzgerald challenged the district court's award to him of $33,333. The district court had awarded Fitzgerald that amount in quantum meruit for his services in a medical malpractice case Crockett had settled on behalf of Wende Nostro, a client Fitzgerald had referred to Crockett. Crockett had ultimately received $500,000 in fees from settling Nostro's case, and Fitzgerald argued that he was entitled to half that amount pursuant to an agreement between him and Crockett. Fitzgerald also pointed out that Crockett had a custom of paying attorneys who refer clients a referral fee equal to one-third of what Crockett recovers, and he argued in the alternative that Crockett was required to pay him that amount in quantum meruit.

After a bench trial, the district court ruled that the agreement was not binding on Crockett and that Fitzgerald was thus not entitled to half of Crockett's recovery, but it concluded that Fitzgerald should be awarded in quantum meruit for his contributions to the Nostro case. Crockett suggested that Fitzgerald's quantum meruit recovery should be no more than the hourly fees associated with Fitzgerald's work on the case, but the district court determined that amount was too low. The district court ultimately arrived at the amount of $33,333 for Fitzgerald's quantum meruit award, believing that figure to be reasonable compensation for Fitzgerald's efforts in the Nostro case.

This court vacated the award. Id. at 1239. While we agreed with the district court that Fitzgerald was not entitled to half of Crockett's $500,000 fee, we held that the district court had “clearly erred” in its calculation of Fitzgerald's quantum meruit award because the $33,333 amount did not reflect the value of Fitzgerald's referral of the Nostro case to Crockett. Id. at 1238–39...