Law Offices of Gary Green v. Morrissey

• Decision Date: 29 December 2006
• Docket Number: No. 27599.,27599.
• Citation: 210 S.W.3d 421
• Parties: LAW OFFICES OF GARY GREEN, P.C., Plaintiff-Appellant, v. Thomas G. MORRISSEY, Defendant-Respondent.
• Court: Missouri Court of Appeals

210 S.W.3d 421

LAW OFFICES OF GARY GREEN, P.C., Plaintiff-Appellant, v. Thomas G. MORRISSEY, Defendant-Respondent.

No. 27599.

Missouri Court of Appeals, Southern District, Division Two.

December 29, 2006.

Rayma Church, Law Offices of Gary Green, P.C., Springfield, for appellant.

Thomas G. Morrissey, The Morrissey Law Firm, P.C., Springfield, for respondent.

PHILLIP R. GARRISON, Judge.

The Law Offices of Gary Green, P.C. ("Plaintiff") appeals the trial court's entry of a judgment of dismissal in its action against Thomas G. Morrissey ("Defendant"). Plaintiff brings one point on appeal, alleging that the trial court erred in dismissing the petition, because it assumed the truth of allegations of a defense rather than the petition, and did not allow Plaintiff even a single opportunity to amend to allege sufficient facts so to proceed on the merits of its claims. We affirm.

Defendant is an attorney formerly employed by Plaintiff. On June 27, 2003, as a result of the separation of Plaintiff and Defendant, the parties entered into a "Settlement Agreement and Release" ("the Agreement"). The Agreement was executed "in an effort to allocate not only case files, but fees and expenses associated with those case files, between [ ] Plaintiff and [ ] Defendant." Later, in a letter dated January 24, 2005, Defendant informed Plaintiff that he would "no longer divide fees" pursuant to the Agreement. Defendant has not divided fees with Plaintiff since that date.

On December 12, 2005, Plaintiff filed a four-count petition¹ alleging under each count that it "is entitled to recover from [ ] Defendant, the amount of the converted funds as determined by the terms of [the Agreement]." On December 19, 2005, Defendant filed a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 55.27(a)(6).² In Defendant's suggestions in support of that motion, he explained that Plaintiff failed to plead that the Agreement complied with Rule 4-1.5(e) of the Missouri Rules of Professional Conduct, governing the division of fees between lawyers from different firms. Plaintiff filed a response and suggestions in opposition to Defendant's motion to dismiss.

On December 22, 2005, after hearing arguments from both parties, the trial court sustained Defendant's motion, dismissing the case with prejudice.³ Plaintiff then filed a motion for leave to amend its petition along with a proposed "First Amended Petition," which alleged the following additional facts:

The terms of the Settlement Agreement of June 27, 2003, were that all Texas, Fen-phen and any other cases handled by Defendant with offers on the table while Defendant was still an employee of Plaintiff would result in a 50%/50% fee allocation between Plaintiff, and Defendant, regardless of settlement or trial. Defendant was to contact those particular Fen-phen clients about continuing his representation of them apart from his employment with Plaintiff. All remaining cases that originated [while Defendant was employed by Plaintiff], but were retained by Defendant were to result in a 40% fee to be paid to Plaintiff, regardless if they were disposed of in settlement or trial procedures.

Plaintiff's proposed amended petition further set out that, "[o]n all of the subject cases, [Plaintiff] had expended out of pocket money for costs and had devoted overhead and time toward prosecuting the cases."

On February 10, 2006, without providing specific grounds for its decision, the trial court entered a judgment of dismissal with prejudice. This appeal followed.⁴

In Plaintiff's sole point on appeal, it alleges the following:

The trial court abused its discretion by entering a judgment of dismissal with prejudice because it assumed the truth of allegations of a defense rather than the petition, without allowing [P]laintiff even a single opportunity to amend to allege sufficient facts so to proceed on the merits of its claim.

This point is multifarious. When an appellant alleges error in the trial court's judgment, listing multiple grounds therefor, the result is a point that contains multiple legal issues. Lamar Advertising of Missouri, Inc. v. McDonald, 19 S.W.3d 743, 745 (Mo.App. S.D.2000). Separate issues must be set out in separate points relied on. Id. Where a point relied on groups together multiple contentions, not related to a single issue, it is in violation of Rule 84.04. Id.

We also note that Rule 84.04(d)(1) requires that each point relied on "(A) identify the trial court ruling or action that the appellant challenges; (B) state concisely the legal reasons for the appellant's claim of reversible error; and (C) explain in summary fashion why, in the context of the case, those legal reasons support the claim of reversible error." Plaintiff's point does not satisfy the requirement of Rule 84.04(d)(1)(C) and constitutes an abstract statement of law. See Lamar Advertising of Missouri, Inc., 19 S.W.3d at 745. "Abstract statements of law, standing alone, do not comply with this rule." Rule 84.04(d)(4). Despite the deficiencies of Plaintiff's point, we will attempt to decipher the contentions made and respond to them, keeping in mind that we are to refrain from becoming an advocate for Plaintiff "by speculating on facts and arguments that have not been asserted." Henson v. Henson, 195 S.W.3d 479, 482 (Mo. App. S.D.2006).

Plaintiff's contention that the trial court erred in entering a judgment of dismissal with prejudice because it assumed the allegations of a defense rather than the petition, is not addressed in the argument portion of Plaintiff's brief, and is abandoned. State v. Massey, 156 S.W.3d 789, 790 (Mo.App. W.D.2005). Because the argument portion of Plaintiff's brief is dedicated solely to whether Plaintiff should have been granted leave to file its "First Amended Petition," we will restrict our review to that allegation of trial court error.

With respect to Plaintiff's right to file an amended petition in the face of a dismissal, Rule 67.06 provides as follows:

On sustaining a motion to dismiss a claim, counter-claim or cross-claim the court shall freely grant leave to amend and shall specify the time within which the amendment shall be made or amended pleading filed. If the amended pleading is not filed within the time allowed, final judgment of dismissal with prejudice shall be entered on motion except in cases of excusable neglect; in which cases amendment shall be made promptly by the party in default.

As stated in Moore v. Firstar Bank, 96 S.W.3d 898, 903-04 (Mo.App. S.D.2003):

Denial of leave to amend is within the sound discretion of the trial court, and its decision will not be disturbed unless there is a showing that such court palpably and obviously abused its discretion. Judicial discretion is abused when the court's ruling is clearly against the logic of the circumstances presented to the court and is so unreasonable and arbitrary that it shocks the sense of justice and indicates a lack of careful, deliberate consideration. (internal citations and quotations omitted). The following factors are considered in determining whether to allow leave to amend a petition: (1) hardship to the moving party if leave is not granted; (2) reasons for failure to include any new matter in earlier pleadings; (3) timeliness of the application; (4) whether an amendment could cure the inadequacy of the moving party's pleading; and (5) injustice resulting to the party opposing the motion, should it be granted. Id. at 904.

Plaintiff's argument on appeal does not delineate between the counts raised in its proposed amended petition, but sets out generically that the proposed amended petition alleged facts showing that the Agreement at issue is not prohibited by Rule 4-1.5(e). That rule provides as follows:

A division of fee between lawyers who are not in the same firm may be made only if:

(1) the division is in proportion to the services performed by each lawyer or, by written agreement with the client, each lawyer assumes joint responsibility for the representation;

(2) the client is advised of and does not object to the participation of all the lawyers involved; and

(3) the total fee is reasonable.

"The rules of professional conduct have the force and effect of judicial decision. Accordingly, Rule 4-1.5 has the force and effect of law in Missouri." Londoff v. Vuylsteke, 996 S.W.2d 553, 557 (Mo.App. E.D.1999)(internal citations omitted). "Agreements between attorneys from different law firms to divide a fee on a case are acceptable only if based on a sharing of services or responsibility." Id.

Our review of the law surrounding Rule 4-1.5(e) reveals that it has only been interpreted in instances where attorneys dividing a fee are in different firms at all times during the representation of a particular client. In this case, the Agreement seeks to apportion fees and expenses associated with cases originating during Defendant's employment with Plaintiff, but which continued after their separation. By its language, Rule 4-1.5(e) also applies to an agreement such as this, which seeks to divide fees between lawyers who at one time were in the same firm but have since separated.⁵

"[A]n agreement to share attorney fees that does not comply with Rule 4-1.5(e) is unenforceable." Neilson v. McCloskey, 186 S.W.3d 285, 287 (Mo.App. E.D.2005). Accordingly, to state a cause of action for violation of a fee splitting agreement, a plaintiff must plead facts in its petition showing that the agreement complies with Rule 4-1.5(e). See Id. (affirming trial court's dismissal of petition, where "[n]one of the pleadings set out a claim that would be justiciable given the dictates of Rule 4-1.5(e)").

While Plaintiff's proposed amended petition alleges that it had invested time and resources in the cases which it seeks a portion of fees, it still fails to allege facts showing that the Agreement complies with Rule 4-1.5(e).⁶ The...