Piaskoski & Associates v. Ricciardi

• Decision Date: 01 July 2004
• Docket Number: No. 03-0009.,03-0009.
• Citation: 2004 WI App 152,686 N.W.2d 675,275 Wis.2d 650
• Parties: PIASKOSKI & ASSOCIATES, Plaintiff-Respondent-Cross-Appellant, v. Carl L. RICCIARDI, Defendant-Appellant-Cross-Respondent.
• Court: Wisconsin Court of Appeals

275 Wis.2d 650

2004 WI App 152

686 N.W.2d 675

PIASKOSKI & ASSOCIATES, Plaintiff-Respondent-Cross-Appellant, v. Carl L. RICCIARDI, Defendant-Appellant-Cross-Respondent.¹

No. 03-0009.

Court of Appeals of Wisconsin.

Submitted on briefs December 5, 2003.

Decided July 1, 2004.

On behalf of the defendant-appellant-cross-respondent, the cause was submitted on the briefs of Russell T. Golla of Anderson, O'Brien, Bertz, Skrenes & Golla, Stevens Point. On behalf of the plaintiff-respondent-cross-appellant, the cause was submitted on the brief of Michael J. Ganzer and Joseph T. Ganzer of Hodan, Doster & Ganzer, S.C., Milwaukee.

Before Deininger, P.J., Lundsten and Higginbotham, JJ.

¶ 1. DEININGER, P.J.

Carl Ricciardi appeals a judgment entered after the trial court granted summary judgment to his former law firm, Piaskoski & Associates. The trial court concluded that Ricciardi and the firm had entered into a valid contract to equally divide attorney fees received in certain cases Ricciardi took with him when he left employment with the Piaskoski firm. Ricciardi claims the trial court erred in determining that an enforceable contract existed and in failing to declare the contract void on public policy grounds because it violated SCR 20:1.5(e) (2001-02).² The law firm cross-appeals, citing as error the trial court's denial of its request for leave to amend its complaint and the court's refusal to award the firm attorney fees it incurred in pursuing this litigation. We affirm on both the appeal and cross-appeal.

BACKGROUND

¶ 2. The Piaskoski firm hired Ricciardi as an associate and encouraged him to concentrate on building the firm's personal injury practice. From February 1995 until May 1996, Ricciardi handled a number of personal injury cases for the Piaskoski firm as its employee. Ricciardi voluntarily terminated his employment with the firm on or about May 7, 1996.

¶ 3. A number of Ricciardi's personal injury clients elected to continue representation with him after he left the firm and, consequently, Paul Piaskoski and Ricciardi entered into discussions on how to divide any contingency fees received by Ricciardi on these cases. On May 23rd, Ricciardi sent Piaskoski a letter identifying eighteen clients who had chosen to remain with Ricciardi upon his leaving the firm, and who had signed contingency fee agreements. On May 28th, Paul Piaskoski and Ricciardi met in person to discuss the fees of clients who were departing the firm with Ricciardi. Three days later, on May 31st, Ricciardi followed up with a letter in which he stated: "This letter will serve to confirm our agreement reached at our meeting . . . . Essentially, we agreed as follows: With respect to all future fees on the personal injury files identified in my letter of 5/23/96 with the exception of [named client], will be divided on a 50/50 basis plus any outstanding fees or disbursements."

¶ 4. The Piaskoski firm did not respond to the May 31st letter, but the parties thereafter equally divided the fees obtained in resolving the cases of at least nine of the eighteen clients identified in Ricciardi's May 23rd letter. One of the remaining cases, that of Daniel Knack, settled for some $780,000, generating a contingency fee of $227,542.29. The firm demanded one-half of the Knack fee inasmuch as Knack was among the clients identified in the May 23rd letter whose contingency fees were to be divided equally between the parties. Ricciardi refused to pay, however, asserting that there was no binding agreement between himself and the firm with regard to a fee division in the Knack case, or any other case. Ricciardi maintained that his practice of sharing fees with the Piaskoski firm had been entirely voluntary and done out of respect for the fact that his and Piaskoski's families had a long-standing friendship. Ricciardi also contended that the fees in the other cases had been apportioned to reflect the amount of time Ricciardi had worked on them while still in the Piaskoski firm's employ. In Ricciardi's view, because he spent very little time advancing the Knack case while working for the firm, it was not entitled to any of the Knack fee.

¶ 5. The law firm sued Ricciardi for one-half of the Knack fee. The trial court granted summary judgment to the plaintiff law firm, concluding that the parties had entered into a binding agreement to equally split any contingency fee obtained in certain cases, including Knack's. The trial court ordered that the Piaskoski firm receive one-half of the fee generated in the Knack case and it entered judgment against Ricciardi for prejudgment interest and statutory costs. Ricciardi appeals the judgment against him claiming as error the trial court's grant of summary judgment to the firm for one-half of the Knack fee. The trial court also concluded that the "American Rule" prohibits an award of actual attorney fees to a prevailing party absent express statutory or contractual authorization, or a finding of frivolousness, and it thus denied the firm's request for its actual attorney fees in bringing this action. Finally, the trial court denied the firm's request to amend its complaint to add additional cases for which it claimed entitlement to one-half of any fees obtained by Ricciardi. The Piaskoski firm cross-appeals the denial of its requests for actual attorney fees and for leave to amend its complaint.

ANALYSIS

¶ 6. We review an order for summary judgment de novo, applying the same standards as the trial court. See Voss v. City of Middleton, 162 Wis. 2d 737, 748, 470 N.W.2d 625 (1991)

. Summary judgment is proper when the pleadings, answers, admissions and affidavits show no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See Maynard v. Port Publ'ns, Inc., 98 Wis. 2d 555, 558, 297 N.W.2d 500 (1980). We will reverse a decision granting summary judgment if the trial court incorrectly decided legal issues or if material facts are in dispute. See Coopman v. State Farm Fire & Cas. Co., 179 Wis. 2d 548, 555, 508 N.W.2d 610 (Ct. App. 1993). Even if certain facts are in dispute, the dispute will not prevent the granting of summary judgment if the facts at issue are "not material to the legal issue on which summary judgment is sought." Tackes v. Milwaukee Carpenters Health Fund, 164 Wis. 2d 707, 711, 476 N.W.2d 311 (Ct. App. 1991).

I.

¶ 7. A valid contract requires an offer, acceptance and consideration. Briggs v. Miller, 176 Wis. 321, 325, 186 N.W.2d 163 (1922). Offer and acceptance exist when the parties mutually express assent, and consideration exists if the parties manifest an intent to be bound to the contract. Gustafson v. Physicians Ins. Co., 223 Wis. 2d 164, 173, 588 N.W.2d 363 (Ct. App. 1998). Whether the parties assented and exchanged consideration are factual questions, not legal questions. See NBZ, Inc. v. Pilarski, 185 Wis. 2d 827, 838, 520 N.W.2d 93 (Ct. App. 1994)

; Hoeft v. U.S. Fire Ins. Co., 153 Wis. 2d 135, 144, 450 N.W.2d 459 (Ct. App. 1989). Generally, therefore, we will uphold a trial court's findings on these matters unless its findings are "clearly erroneous." WIS. STAT. § 805.17(2). Where the material facts are undisputed, however, as they must be for summary judgment to be properly granted, the existence and interpretation of a contract becomes a question of law which we decide de novo. Gustafson, 223 Wis. 2d at 172-73.

¶ 8. The trial court concluded that Ricciardi made an offer in his letter of May 23rd to resolve the issue of contingency fees received in cases where Ricciardi succeeded to the representation of former clients of the firm, as identified in the letter, Mr. Knack among them. The court decided that Ricciardi's offer was accepted by the firm in a meeting between Ricciardi and Paul Piaskoski held on May 28th, as evidenced by Ricciardi's May 31st letter confirming "our agreement reached at our meeting on 5/28/96" to divide "on a 50/50 basis," with one exception not relevant here, "all future fees on the personal injury files identified in my letter of 5/23/96." The trial court further concluded that the consideration for the parties' "clear and unambiguous" agreement was also "apparent from the May 31 document," in that "[b]oth sides compromised their respective claims for more than 50 percent of the fees in this fee dispute."

¶ 9. Ricciardi asserts, however, that the May 31st letter constituted his offer, and that the firm's failure to respond to that letter creates a material factual dispute as to whether there was a mutual assent to the terms of the letter. Ricciardi relies on Phillips Petroleum Co. v. Taggart, 271 Wis. 261, 73 N.W.2d 482 (1955), to support his argument that this letter was no more than an unaccepted offer, and that the firm cannot withhold communication of its acceptance of the written offer and later treat it as a contract. Although the supreme court cited this general rule in Phillips, the court's ultimate conclusion was that, despite the fact that an acceptance was never communicated to the offering party, the offering party was still bound to its offer where both parties engaged in subsequent conduct evidencing knowledge and acceptance of the terms of the contract. Id. at 273-75. Thus, the holding in Phillips actually supports the firm's position, given that, in the years following the May 31st letter, Ricciardi sent the Piaskoski firm one-half of the fees in the cases of at least nine of the eighteen clients listed in the May 23rd letter, which the firm accepted without demanding a larger portion of the fees in those cases.

¶ 10. In any event, we conclude that the record supports the firm's assertion, and the trial court's conclusion, that there is no dispute that a binding agreement was reached at the meeting between Ricciardi and Paul Piaskoski on May 28th, and that Ricciardi's letter three days later simply memorialized the agreement that was reached. We agree with the trial court that that is exactly...