Adams v. Hargadon, Lenihan & Herrington, PLLC
| Decision Date | 15 November 2019 |
| Docket Number | NO. 2012-CA-001534-MR,2012-CA-001534-MR |
| Parties | KEVIN M. ADAMS APPELLANT v. HARGADON, LENIHAN & HERRINGTON, PLLC; A. NEAL HERRINGTON; AND CHRIS MORRIS APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
The action that forms the basis for Adams's claim stems from a tragic fire that took the lives of Tracey Whitney, her three children, and Gary and Elizabeth Matheny on February 17, 2003. It is undisputed that approximately twoyears before the fire, Adams contracted with Whitney to represent her, as next friend of one of her children, in a case against her landlord (the "Landlord Case"). Adams brought in Chris Morris, an attorney with Hargadon, Lenihan and Herrington ("HLH") to act as co-counsel on the Landlord Case. Record (R.) 1389. During the pendency of that action, Adams began working for a new law firm and Morris became lead counsel on the Landlord Case. Morris and Adams agreed that Adams would receive one-third of any fee recovered in the Landlord Case. Following Whitney's untimely death, however, the Landlord Case was dismissed.
After the fire, Morris contacted putative clients for the purpose of representing them in a wrongful death action (the "Fire Case"). The putative clients were the decedents' families—Mamie Cook, Allen Caraway, Brian Hall, and Earlena Hall—who collectively constitute all of the plaintiffs in the Fire Case. The parties dispute how Morris came to make this contact. Adams testified in his deposition that he informed Morris that the fire had occurred, gave Morris Cook's telephone number so that Morris could contact her, and suggested that Morris attend Whitney's funeral. Additionally, Adams testified that he later called Cook at Morris's request to verify that Cook had met Morris and to vouch for Morris as an attorney. In contrast, Morris testified that he learned about the fire from the Louisville Courier-Journal and immediately contacted the putative clients and drove to Madisonville to meet them. Morris acknowledged that he did have aconversation with Adams about the fire but testified that this conversation occurred after he had already met with the putative clients.
On May 14, 2003, Adams sent a fee-splitting contract (the "Contract") to Neal Herrington, a partner at HLH. At this time, Morris was not a partner at the firm, making Herrington the appropriate person to sign on the firm's behalf. Herrington promptly executed and returned the Contract to Adams; it does not appear that either Herrington or Morris took any umbrage with respect to Adams's assertions that he assisted Morris in securing the representation or his apparent belief that he would be providing some assistance to them in prosecuting it.
The Contract, which Adams drafted and Herrington signed and returned to Adams, provides as follows:
R. 948. The Contract was appended to a letter from Adams to Herrington:
R. 1511-12 (emphases added).
The letter indicated that Morris was copied on the letter, and Adams later testified that he personally mailed a copy of the letter to Morris and called Morris to tell him that he was sending the letter. However, both Morris and Herrington testified that Morris was unaware of the letter and the Contract until the parties were mediating settlement of the Fire Case. Herrington also testified that he signed the Contract because he trusted the truth of Adams's representations in the letter, but subsequently learned from Morris that those representations were false. It does not appear, however, that Herrington made any effort to ascertain the truth of the facts from speaking with Adams, Morris, or the clients at issue before signing and returning the agreement to Adams.
On February 13, 2004, a complaint was filed in the Hopkins Circuit Court on behalf of the decedents' families. Attorneys from HLH, including Morris and Herrington, were listed as counsel of record. The same day that the complaint was filed, Morris mailed a copy of it to Adams. R. 1704. In the cover letter attached to the copy of the complaint, Morris informed Adams as follows:
While Morris's letter did not explicitly refer to the prior referral agreement and its accompanying letter from Adams to Herrington, its use of the phrase "eases your mind about the matter" is very similar to Adams's statement in his letter to Herrington that he wanted a signed referral agreement in place to provide him with "some peace of mind." The letter also apprised Adams about key developments in the litigation such as settlement discussions with the insurance adjuster and discovery.
On February 3, 2006, Adams contacted Morris via email to suggest hiring a vocational expert. Morris responded the next day, informing Adams that he had already hired a vocational expert and that the damages for all victims were approximately $2.3 million. Important to the dispute at hand, Morris did not question Adams regarding his continued interest in the case or ignore the inquiry. Instead, Morris again responded with case-related updates, including an approximate damages figure. While not explicit, when viewed in a light mostfavorable to Adams, this could be seen as an attempt to provide Adams with some expectation of his potential referral fee in the case.
In late February and in early March of 2006, Adams sent Morris links to articles regarding different litigation where individuals had been killed in fires. This conduct suggests Adams believed he was assisting with the litigation. This time, Morris did not respond.
Claims against the defendants in the Fire Case were ultimately settled and dismissed. In April of 2006, after HLH refused to pay Adams's claim for one-third of the fee collected in the Fire Case, Adams filed notice that he was asserting an attorney's lien. The Hopkins Circuit Court...
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