Gillio v. Hanover Am. Ins. Co.

• Decision Date: 31 January 2017
• Docket Number: NO. 2016 CA 0640,2016 CA 0640
• Citation: 212 So.3d 588
• Parties: Laurence F. GILLIO v. The HANOVER AMERICAN INSURANCE COMPANY, Granite State Insurance Co., Champagne Beverage Co., Champagne Beverage Co. Inc., State Farm Mutual Automobile Insurance Co., and Kris A. Sagona
• Court: Court of Appeal of Louisiana — District of US

212 So.3d 588

Laurence F. GILLIO

v.The HANOVER AMERICAN INSURANCE COMPANY, Granite State Insurance Co., Champagne Beverage Co., Champagne Beverage Co. Inc., State Farm Mutual Automobile Insurance Co., and Kris A. Sagona

NO. 2016 CA 0640

Court of Appeal of Louisiana, First Circuit.

JANUARY 31, 2017

Darla L. D'Amico, Slidell, Louisiana, In Proper Person

G. Brice Jones, Paul D. Hesse, Slidell, Louisiana, Attorneys for Appellee, Jones Lagarde, LLC

Carole G. Gillio, Slidell, Louisiana, Attorney for Appellee, Gillio Law Firm, APLC

Ellen C. Badeaux, Covington, Louisiana, Attorney for Appellees, Frank J. D'Amico Sr. and Frank J. D'Amico, APLC

BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.

CRAIN, J.

Darla L. D'Amico appeals a judgment from a concursus proceeding, which divided an attorney fee earned in connection with the settlement of an underlying personal injury suit. We affirm.

FACTS

Laurence Gillio sustained serious personal injuries in a motor vehicle accident on April 24, 2009. He retained his wife, Carole Gillio, and the Gillio Law Firm, APLC, on a contingency fee basis to represent him in his suit for damages. Soon after suit was filed, Laurence entered a contingency fee contract with additional counsel Darla D'Amico, Frank D'Amico,¹ and Frank J. D'Amico, A Professional Law Corporation. In 2012, Laurence terminated the services of the D'Amicos and retained attorneys G. Brice Jones, Ross F. Lagarde, and Paul D. Hesse, of the Jones Lagarde, LLC law firm on a contingency fee basis. Carole, Darla, Frank, and the D'Amico law firm intervened in the personal injury proceedings to recover their respective shares of any attorney fees.

The personal injury suit was settled for $1,900,000 and the settlement funds were deposited into the registry of the court. Jones Lagarde filed a concursus petition to obtain a division of the attorney fee. After a trial, the trial court enforced Carole's original 40% contingency fee contract, awarded a total attorney fee of $760,000, and found that Darla was terminated for cause. The trial court then awarded Jones Lagarde $633,270, plus stipulated expenses, reflecting a 33 1/3% fee based on the Jones Lagarde contingency contract. The remaining attorney fee of $126,730 was divided between Carole and the D'Amico firm, with 60% being awarded to Carole and 40% to the D'Amico firm. Carole's award totaled $76,038, plus stipulated expenses. The D'Amico firm's $50,692 share was divided evenly between Darla and Frank.

Darla appeals, contending that the trial court erred in finding that she was discharged for cause and abused its discretion in awarding her a $25,346 attorney fee. She also challenges the award to Frank, arguing that he is entitled to nothing. Finally, she contends that the trial court erred in failing to award her stipulated expenses.²

DISCUSSION³

A client has an absolute right to discharge his attorney at any time, with or without cause, subject to liability for payment of a reasonable attorney fee. See In re Jones , 02–3131 (La. 10/21/03), 859 So.2d 666, 670 ; Succession of Wallace , 574 So.2d 348, 351–52 (La. 1991) ; Francis v. Hotard, 00–0302 (La.App. 1 Cir. 3/30/01), 798 So.2d 982, 985. A client who retains successive attorneys pursuant to contingency fee contracts owes only one contingency fee, determined according to the highest ethical percentage agreed to by the client in any of the contingency fee contracts executed, which is then allocated among the various attorneys. Saucier v. Hayes Dairy Products, Inc. , 373 So.2d 102, 118 (La. 1978) (on rehearing ). Factors to guide the allocation of fees between discharged and subsequent attorneys are set forth in Rule 1.5 of the Code of Professional Responsibility as follows:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation and ability of the lawyer or lawyers performing the services;

(8) whether the fee is fixed or contingent.

See Saucier , 373 So.2d at 116. If an attorney is discharged for cause, "the court should consider the nature and gravity of the cause which contributed to the dismissal and reduce by a percentage amount the portion discharged counsel otherwise would receive after the Saucier allocation." O'Rourke v. Cairns , 683 So.2d 697, 704 (La. 1996). The trial court has great discretion in setting an attorney fee, and its award will not be disturbed on appeal absent a showing of an abuse of discretion. In re Succession of Bankston, 02–0548 (La.App. 1 Cir. 2/14/03), 844 So.2d 61, 64, writ denied , 03–0710 (La. 5/9/03), 843 So.2d 400.

The testimony at the concursus trial established that Laurence's case was complex. The accident occurred on Gause Boulevard in Slidell, a four-lane roadway, as Gillio was driving westbound in the right hand lane. A beer truck was also traveling westbound and attempted to turn right into a narrow driveway, resulting in a collision with Laurence's vehicle. Carole arrived at the scene soon after the accident, took photographs, and witnessed the driver of the beer truck speaking to an alleged witness about what happened. Being suspicious, she hired an accident scene investigation expert who preserved critical evidence of the scene. Because of conflicting stories as to how the accident happened, the driver of the beer truck was not ticketed.

Carole, on behalf of her husband, filed suit for damages, and later amended it to add her consortium claim. Approximately fifteen months after the accident, Darla was retained as co-counsel. Darla testified that she filed a supplemental and amending petition; Carole testified that she prepared discovery requests and interrogatories, which Darla reviewed. Laurence prepared chronologies and gathered medical data. Darla testified that she had lengthy meetings with Laurence and conducted extensive legal research regarding his medical issues.

Carole and Darla did not take any depositions, but attended Laurence's deposition. Darla testified that she spent three days preparing for Laurence's deposition. Darla claimed to have worked steadily with Carole, but did not keep time sheets reflecting her billable hours. She estimated that she spent 625 to 700 hours working on the case, including time spent on her attorney fee intervention.

Jones Lagarde entered the case in April 2012, approximately three years after the accident, and received two boxes of file material from the D'Amico law firm. No settlement offers were outstanding at that time. A mediation in December 2012, resulted in a settlement offer of $100,000.

Brice Jones testified that he conducted discovery, including taking twenty-three depositions related to liability and medical issues. He explained that the files he received from the D'Amico law firm contained incomplete medical records and little usable data. Jones testified that his office worked with the insurance companies to obtain a complete medical record, which ultimately involved contact with sixty-seven different medical providers. Jones Lagarde developed a file consisting of eighteen boxes of documents with two hundred fourteen subfiles, including sixty-seven from the medical providers.

The beer truck driver had been fired by the company he was driving for at the time of the accident, so Jones hired a private investigator to find him and serve him with suit papers. Jones explained that during the course of discovery, his firm learned that the driver of the beer truck was a reserve police officer who had complaints made against him. He subpoenaed the driver's supervisor to have him testify relative to the driver's character and credibility. Jones testified that he was able to get the truck driver and the eyewitness, who he got to contradict his previous statement, to admit that the beer truck was not moved after the accident. The police officer at the accident scene confirmed that fact. Jones testified that the admissions of these witnesses were critical because he was then able to use photographs taken by Carole and the evidence preserved by the accident investigation expert to establish that the beer truck was entirely in the left lane of the two westbound lanes when it began its right turn into the driveway, thus causing the collision with Laurence. According to Carole, who was accepted by the trial court as an expert attorney, it was Jones Lagarde's representation that ultimately resulted in the $1,900,000 settlement.

Having considered the Saucier factors, we find no error in the trial court's apportionment of the attorney fee. Although Darla testified that Laurence's case was "high maintenance" and that she spent hours meeting with Laurence, the record supports the trial court's conclusion that the substantial settlement that was recovered was directly attributable to the work performed by Jones Lagarde. In contrast, Darla's estimate of the time she spent working on the file was called into question by other testimony, as well as the state of the file when it was produced to Jones Lagarde.

Darla also contends the trial court erred in finding that she was terminated for cause. Although the trial court did make that finding, it allocated the attorney fee based on the relevant Saucier factors, without reducing the allocation to the D'Amico firm for Darla's discharge for cause. See O'Rourke , 683 So.2d at 704. Consequently, we need not address the termination for cause issue. See Richardson v. Bridgefield Cas. Ins. Co. , 14–1587 (La.App. 1 Cir. 8/10/15), 181 So.3d 61, 68 (recognizing that appellate courts review judgments, not reasons...