Kopelman and Associates, L.C. v. Collins, No. 23183

CourtSupreme Court of West Virginia
Writing for the CourtCLECKLEY
Citation473 S.E.2d 910,196 W.Va. 489
PartiesKOPELMAN AND ASSOCIATES, L.C., a West Virginia corporation, Plaintiff Below, Appellant, v. Peggy L. COLLINS and Gregory M. Courtright, individually and d/b/a Collins & Courtright, a partnership, Defendants Below, Appellees.
Decision Date14 June 1996
Docket NumberNo. 23183

Page 910

473 S.E.2d 910
196 W.Va. 489
KOPELMAN AND ASSOCIATES, L.C., a West Virginia corporation,
Plaintiff Below, Appellant,
v.
Peggy L. COLLINS and Gregory M. Courtright, individually and
d/b/a Collins & Courtright, a partnership,
Defendants Below, Appellees.
No. 23183.
Supreme Court of Appeals of West Virginia.
Submitted April 24, 1996.
Decided June 14, 1996.

Page 912

[196 W.Va. 491] Syllabus by the Court

1. When a motion for judgment on the pleadings under Rule 12(c) of the West Virginia Rules of Civil Procedure is converted into a motion for summary judgment, the requirements of Rule 56 of the West Virginia Rules of Civil Procedure become operable. Under these circumstances, a circuit court is required to give the parties notice of the changed status of the motion and a reasonable opportunity to present all material made pertinent to such a motion by Rule 56. In this way, no litigant will be taken by surprise by the conversion. The absence of formal notice will be excused only when it is harmless or the parties were otherwise apprised of the conversion. Once the proceeding becomes one for summary judgment, the moving party's burden changes and the moving party is obliged to demonstrate that there exists no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

2. Although the amount of time spent by each respective firm is an important consideration in a contingency fee case where lawyers employed by one firm leave that firm and take a client with them and no contract exists governing how the fees are to be divided, a circuit court also must consider retrospectively upon the conclusion of the case: (1) the relative risks assumed by each firm; (2) the frequency and complexity of any difficulties encountered by each firm; (3) the proportion of funds invested and other contributions made by each firm; (4) the quality of representation; (5) the degree of skill needed to achieve success; (6) the result of each firm's efforts; (7) the reason the client changed firms; (8) the viability of the claim at transfer; and (9) the amount of recovery realized. This list is not exhaustive, and a circuit court may consider other factors as warranted by the circumstances in addition to awarding out-of-pocket expenses. In making its determination, however, a circuit court must make clear on the record its reasons for awarding a certain amount. Such a determination rests in the sound discretion of the circuit court, and it will not disturbed unless the circuit court abused its discretion.

Andrew F. Workman, Larry G. Kopelman, Kopelman and Associates, L.C., Charleston, for Appellant.

Peggy L. Collins, Gregory M. Courtright, Collins & Courtright, Charleston, for Appellees.

W. Mark Burnette, W. Mark Burnette, L.C., Lewisburg, amicus curiae.

Barry Hill, Weirton, amicus curiae on behalf of the West Virginia Trial Lawyers Association.

CLECKLEY, Justice:

The plaintiff below and appellant herein, Kopelman and Associates, L.C., a West Virginia Corporation, appeals the June 9, 1995, order of the Circuit Court of Kanawha County which granted a motion for judgment on the pleadings filed by the defendants below and appellees herein, Peggy L. Collins and Gregory M. Courtright, individually and dba Collins & Courtright, a partnership. The circuit court ordered the defendants to pay the plaintiff "a sum of money calculated by multiplying the number of attorney hours expended at Plaintiff's [law] firm on [certain contingency fee cases] by $85.00 per hour."

Page 913

[196 W.Va. 492] The circuit court also ordered the defendants to reimburse the plaintiff for out-of-pocket expenses incurred in handling those cases "as such reimbursements are received from the clients." 1 On appeal, the plaintiff argues the circuit court erred in determining how the plaintiff should be reimbursed for contingency fee cases for clients who dissolved their relationship with the plaintiff and hired the defendants after the defendants left their employment with the plaintiff. For the following reasons, we find it necessary to reverse the final order and remand this case to the circuit court.

I.

FACTUAL AND PROCEDURAL BACKGROUND

The defendants are lawyers who worked for the plaintiff for several years. While working for the plaintiff, the standard billable rate for the defendant Peggy L. Collins was $85 per hour. During their employment, the defendants claim they were the only lawyers working for the plaintiff except for the sole owner, Larry G. Kopelman. The defendants further assert over the last two years of their employment with the plaintiff Mr. Kopelman substantially withdrew from legal practice to pursue other interests.

In 1994, the defendants terminated their employment with the plaintiff and created their own firm. Thereafter, approximately ten to fifteen contingency fee clients who had contracts with the plaintiff terminated those relationships and directed their files be sent to the defendants. The defendants state that two of these cases are of significant value. One such case involved a personal injury action where the client had known Peggy L. Collins for many years and "had married her college roommate and second cousin[.]" The defendants maintain the only reason the client came to the plaintiff was because Ms. Collins was working for the plaintiff. In addition, according to the defendants, the client in the other significant case was ready to discharge the plaintiff before the case was assigned to Ms. Collins. On the other hand, the plaintiff contends Mr. Kopelman has a good reputation in contingency fee cases and the firm was actively engaged in the development of the cases at issue. The plaintiff states: "There was no agreement between the parties regarding fee sharing on cases taken from Kopelman [and] [n]one of the attorney liens were released[.]"

The plaintiff filed suit against the defendants over the division of the fees. On April 7, 1995, after the close of the pleadings but prior to the presentation of substantial evidence, the defendants filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the West Virginia Rules of Civil Procedure. On May 23, 1995, a hearing was held. Thereafter, the defendants drafted an order they believed accurately reflected the substance and conclusions reached at that hearing. The plaintiff allegedly refused to sign the proposed order, so the defendants filed a motion to enter the order at a hearing to be held on June 9, 1995. The plaintiff did not appear at this hearing and, during oral argument to this Court, Mr. Kopelman explained he was unaware the hearing was scheduled. 2 By order entered on June 9, 1995, the circuit court granted the defendants' motion and found the plaintiff was entitled to the reasonable value of services rendered. The circuit court then ordered the defendants to pay the plaintiff $85 per hour for the time the defendants spent working on the cases while employed by the plaintiff and to pay the plaintiff's out-of-pocket expenses from reimbursements received from the clients. The plaintiff appeals this decision.

II.

DISCUSSION

We review a circuit court's grant of judgment on the pleadings de novo. See Syl. pt. 1, Copley v. Mingo County Bd. of Educ., 195 W.Va. 480, 466 S.E.2d 139 (1995). As

Page 914

[196 W.Va. 493] discussed more fully below, the standard of review on this motion virtually is identical to a motion to dismiss under Rule 12(b)(6) of the West Virginia Rules of Civil Procedure.

This case involves how a law firm in a contingency fee case should be compensated when lawyers from that firm leave and take contingency fee clients with them. The plaintiff argues the circuit court erred when it determined the reasonable value of services rendered could be reached by totaling the number of hours the defendants worked on the cases while employed by the plaintiff and multiplying that figure by Ms. Collins' standard billable rate of $85 per hour. Instead, the plaintiff argues there should be an equitable division of contingency fees based upon the ratio of time spent on the cases by each firm. For reasons stated below, we now reverse the final order and remand the case to the circuit court.

A.

Judgment on the Pleadings

Initially, we must determine the nature of the motion and ruling presented to us for review. The motion was characterized as a judgment on the pleadings pursuant to Rule 12(c) of the West Virginia Rules of Civil Procedure, 3 which we will uphold only if it appears beyond doubt that the plaintiff can prove no set of facts that will support its claim for the requested relief. See Copley, 195 W.Va. at 484, 466 S.E.2d at 143, 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure (Wright & Miller) § 1368 at 517-18 (2d ed. 1990).

In Copley, we held a Rule 12(c) dismissal is analogous to one made under Rule 12(b)(6) (motion to dismiss for failure to state a claim) of the Rules of Civil Procedure. 4 Dismissal under either rule for failure to state a claim or defense is appropriate only if it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations contained within the pleadings. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80, 84 (1957). We read a pleading liberally and accept as true the well-pleaded allegations of the complaint and the inferences that reasonably may be drawn from the allegations. See State ex rel. McGraw v. Scott Runyan Pontiac-Buick, Inc., 194 W.Va. 770, 776, 461 S.E.2d 516, 522 (1995). Conversely, although the plaintiff enjoys the benefit of all inferences that plausibly can be drawn from the pleadings, a party's legal conclusions, opinions, or unwarranted averments of fact will not be deemed admitted. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232, 81 L.Ed.2d 59, 65 (1984).

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41 practice notes
  • Morris v. Crown Equipment Corp., No. 32751.
    • United States
    • Supreme Court of West Virginia
    • June 29, 2006
    ...of Review A trial court's ruling on a motion to dismiss is reviewed under a de novo standard. Kopelman and Associates v. Collins, 196 W.Va. 489, 492, 473 S.E.2d 910, 913 (1996). Constitutional challenges relating to a statute are reviewed pursuant to a de novo standard of review. West Virgi......
  • Beane v. Dailey, No. 34630.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2010
    ...appeal as though the defendant was denied relief under Rule 55(c). This Court pointed out in Kopelman and Associates, L.C. v. Collins, 196 W.Va. 489, 494. n. 6, 473 S.E.2d 910, 915 n. 6 (1996) that " '[w]e are not bound by the label [s] employed below, and will treat [matters] made pursuant......
  • Somuah v. Flachs, No. 9
    • United States
    • Court of Appeals of Maryland
    • December 18, 1998
    ...See, e.g., Crockett & Brown v. Courson, 312 Ark. 363, 849 S.W.2d 938, 940-41 (Ark.1993); see also Kopelman and Assoc. v. Collins, 196 W.Va. 489, 473 S.E.2d 910, 917 (W.Va.1996). We hold that where a client has a good faith basis to terminate the attorney-client relationship but there is no ......
  • Savilla v. Speedway Superamerica, LLC, No. 33053.
    • United States
    • Supreme Court of West Virginia
    • November 16, 2006
    ...a defendant. II. Standard of Review A trial court's ruling on a motion to dismiss is reviewed de novo. Kopelman & Associates v. Collins, 196 W.Va. 489, 492, 473 S.E.2d 910, 913 The first issue that we must address is whether anyone other than Ms. Moschgat had or has a potential cause of act......
  • Request a trial to view additional results
41 cases
  • Morris v. Crown Equipment Corp., No. 32751.
    • United States
    • Supreme Court of West Virginia
    • June 29, 2006
    ...of Review A trial court's ruling on a motion to dismiss is reviewed under a de novo standard. Kopelman and Associates v. Collins, 196 W.Va. 489, 492, 473 S.E.2d 910, 913 (1996). Constitutional challenges relating to a statute are reviewed pursuant to a de novo standard of review. West Virgi......
  • Beane v. Dailey, No. 34630.
    • United States
    • Supreme Court of West Virginia
    • April 1, 2010
    ...appeal as though the defendant was denied relief under Rule 55(c). This Court pointed out in Kopelman and Associates, L.C. v. Collins, 196 W.Va. 489, 494. n. 6, 473 S.E.2d 910, 915 n. 6 (1996) that " '[w]e are not bound by the label [s] employed below, and will treat [matters] made pursuant......
  • Somuah v. Flachs, No. 9
    • United States
    • Court of Appeals of Maryland
    • December 18, 1998
    ...See, e.g., Crockett & Brown v. Courson, 312 Ark. 363, 849 S.W.2d 938, 940-41 (Ark.1993); see also Kopelman and Assoc. v. Collins, 196 W.Va. 489, 473 S.E.2d 910, 917 (W.Va.1996). We hold that where a client has a good faith basis to terminate the attorney-client relationship but there is no ......
  • Savilla v. Speedway Superamerica, LLC, No. 33053.
    • United States
    • Supreme Court of West Virginia
    • November 16, 2006
    ...a defendant. II. Standard of Review A trial court's ruling on a motion to dismiss is reviewed de novo. Kopelman & Associates v. Collins, 196 W.Va. 489, 492, 473 S.E.2d 910, 913 The first issue that we must address is whether anyone other than Ms. Moschgat had or has a potential cause of act......
  • Request a trial to view additional results

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