Burk v. Burzynski
| Decision Date | 09 November 1983 |
| Docket Number | 5820,Nos. 5819,s. 5819 |
| Citation | 672 P.2d 419 |
| Parties | John BURK, P.C., a Wyoming corporation, Appellant (Plaintiff), v. Lawrence F. BURZYNSKI, individually and d/b/a Pinetop Construction, the Carriage Corporation, a Wyoming corporation, and Park Development Ltd., a Wyoming corporation, Appellees (Defendants). Lawrence F. BURZYNSKI, individually and d/b/a Pinetop Construction, the Carriage Corporation, a Wyoming corporation, and Park Development Ltd., a Wyoming corporation, Appellants (Defendants), v. John BURK, P.C., a Wyoming corporation, Appellee (Plaintiff). |
| Court | Wyoming Supreme Court |
Jerry A. Yaap of Bishop, Bishop & Yaap, Casper, for appellant in Case No. 5819 and appellee in Case No. 5820.
C.M. Steve Aron of Aron & Hennig, Laramie, Eldon E. Silverman, Denver, Colo., for appellees in Case No. 5819 and appellants in Case No. 5820.
Before ROONEY, C.J., and RAPER * THOMAS, ROSE and BROWN, JJ.
John Burk, P.C., a professional corporation of practicing attorneys, initiated this action against Lawrence F. Burzynski, individually and doing business as Pinetop Construction, The Carriage Corporation and Park Development Ltd. to recover past-due legal fees plus accrued interest. The defendants The trial court determined that John Burk, P.C. was entitled to a judgment for its legal fees and costs, subject, however, to an offset in the amount of the potential recovery in the claim assigned to it. The court found the evidence to be insufficient to support any of the defendants' counterclaims. The defendants have appealed the award of legal fees and the denial of one counterclaim. The plaintiff has cross-appealed the offset and the denial of prejudgment interest.
answered that they were entitled to an offset in the amount claimed by John Burk, P.C., based on their assignment of a cause of action to it and on Burk's failure to conform with various disciplinary rules of the Wyoming State Bar. The defendants counterclaimed for damages incurred as a result of the manner in which Burk represented them in various lawsuits.
We will affirm those portions of the judgment which award recovery of past-due legal fees, and will deny prejudgment interest and defendants' counterclaim. We will reverse that portion of the judgment which allows defendants an offset based on the assignment of a claim. We will remand the case to the lower court to apportion liability among the defendants and to correct an error in computation.
John Burk began representing Lawrence Burzynski and his business enterprise, Pinetop Construction, in August of 1978. Sometime later a decision was made to incorporate the business, and Burk performed the necessary legal services to form The Carriage Corporation. The name of the corporation was subsequently changed to Park Development Ltd.
After the incorporation, Burk continued to represent Burzynski and his business. Pursuant to Burzynski's instructions, Burk billed The Carriage Corporation for all legal services, whether rendered for Burzynski personally or for the corporation. Apparently, all amounts which had been billed to Pinetop Construction before the incorporation were paid. The Carriage Corporation, however, became delinquent in paying the legal fees billed to it, and by March 4, 1981, when this suit was filed, the amount owed to John Burk, P.C. was $30,028.98.
Prior to the incorporation, Burzynski and his wife had obtained two bank loans, which were secured by mortgages on separate parcels of land. This land was subsequently transferred to The Carriage Corporation. In December of 1979, the bank commenced foreclosure proceedings against the properties and Burzynski sought legal advice from Burk regarding the foreclosure process. The sales on the two notes took place on two different dates. The bank's attorneys claimed $5,890 in legal fees for the first foreclosure sale and $21,700 in fees for the second sale.
Following the sales, Burk advised Burzynski of his belief that the bank attorneys had charged excessive fees to conduct the foreclosure sales and had failed to file an affidavit with the sheriff's office regarding fee sharing. Burk informed Burzynski that there was a strong chance of recovering these fees under the Wyoming statute which conditions compensation to the attorney upon his filing of an affidavit disclaiming any division of fees and which permits payment only "for services actually rendered in the foreclosure proceeding." 1
At the time of the foreclosure proceedings, The Carriage Corporation and Burzynski owed John Burk, P.C. approximately $19,000 in legal fees. When it appeared that an opportunity existed to recover close to $28,000, Burk requested that the cause of action against the bank's attorneys be assigned to the professional corporation. On February 28, 1980, Burzynski executed the following instrument:
"President"
Burk then initiated proceedings against the bank, with The Carriage Corporation as the named plaintiff. On December 15, 1980, the trial judge granted the bank's motion for summary judgment. Burk did not appeal this ruling.
The trial court in the present case interpreted the transfer to John Burk, P.C., of The Carriage Corporation's cause of action to be an absolute assignment, rather than an assignment to secure payment of fees. As a result, the court reduced its award to John Burk, P.C. of $30,028.98 in legal fees by the potential value of the claim against the bank's attorneys at the time of the assignment. 3 Additional facts which are pertinent to this appeal will be developed during our discussion of the issues presented by the parties.
The following issues are before the court in this appeal:
1. Whether the assignment of the cause of action to John Burk, P.C., was an absolute assignment in lieu of attorney's fees or whether the assignment created an interest in the cause of action to secure payment of attorney's fees;
2. Whether, as a matter of law, John Burk, P.C. is entitled to prejudgment interest on the past-due legal fees;
3. Whether there were instances of violations of the Code of Professional Responsibility, as adopted by the Wyoming Supreme Court, which bar recovery of any legal fees claimed by John Burk, P.C. 4. Whether Burzynski is personally liable for the legal fees claimed by John Burk, P.C.; and
5. Whether the defendants are entitled as a matter of law to damages arising out of Burk's failure to file a cross-appeal in Keith v. Burzynski, Wyo., 621 P.2d 247 (1980).
The trial court relied on extrinsic evidence to conclude that the assignment of the cause of action to John Burk, P.C. was absolute and in lieu of attorney's fees to the extent of potential recovery at the time of the assignment. The court based its conclusion primarily on a letter in which Burzynski questioned Burk's failure to credit the defendants' account as a result of the assignment. Apparently, Burk never objected to this interpretation of the assignment by Burzynski.
This court has often said that the meaning of an instrument is to be deduced solely from its language if the terms are plain and unambiguous. Bowen v. Korell, Wyo., 587 P.2d 653, 656 (1978); Craig v. Gudim, Wyo., 488 P.2d 316, 319 (1971); Barlow v. Makeeff, 74 Wyo. 171, 284 P.2d 1093, 1097 (1955). The intent of the parties may be determined by resort to extrinsic evidence only when the language is ambiguous. Amoco Production Company v. Stauffer Chemical Company of Wyoming, Wyo., 612 P.2d 463, 465 (1980); Bowen v. Korell, supra. An ambiguous writing is one which is obscure in its meaning because of indefiniteness of expression or because more than one meaning is possible. Amoco Production Company v. Stauffer Chemical Company of Wyoming, supra. Whether an ambiguity exists is a question of law to be determined by this court. Schacht v. First Wyoming Bank, N.A.--Rawlins, Wyo., 620 P.2d 561, 563 (1980); Amoco Production Company v. Stauffer Chemical Company of Wyoming, supra.
Here the language of the document is exceedingly clear:
"This assignment is to secure the statutory attorney's lien rights of the Assignee and shall be interpreted as securing and protecting such lien rights and not as an absolute conveyance."
No ambiguity exists as to the extent of the interest that the defendants intended to assign to John Burk, P.C. Therefore, any reliance on evidence other than the document itself to determine the intent of the parties is not permitted. We conclude that the purpose of the assignment was to create a security interest in a cause of action owned by The Carriage Corporation for the payment of legal fees owed to John Burk, P.C.
Notwithstanding the foregoing rules of construction and the plain language of the written document, defendants would have us look to extrinsic evidence in this case to find an absolute assignment. They argue that an examination of extrinsic evidence is appropriate since any contract...
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