Londoff v. Vuylsteke, 74782

CourtCourt of Appeal of Missouri (US)
Citation996 S.W.2d 553
Docket NumberNo. 74782,74782
PartiesWilliam LONDOFF, Plaintiff/Appellant, v. Kenneth VUYLSTEKE and Charles Foehner, Defendants/Respondents.
Decision Date27 April 1999

W. Morris Taylor, Gerald A. Sims, Jr., Clayton, for appellant.

James J. Logan, McMichael & Logan, Chesterfield, for respondent Kenneth Vuylsteke.

Charles E. Foehner, St. Louis, pro se.

KATHIANNE KNAUP CRANE, Judge.

In this case plaintiff, who formerly was an attorney, sought to recover, under an oral fee splitting agreement, 50% of an attorney's fee from defendants after one of the defendants, an attorney, settled a lawsuit for $120,500.00. The trial court entered summary judgment in the settling attorney's favor on the grounds that the fee splitting agreement was unenforceable under the Rules of Professional Conduct because plaintiff did not allege or raise a fact issue that he performed services proportionate to the fee or assumed joint responsibility for the lawsuit in a written contract with the client. On its own motion the court dismissed the claim against the settling attorney's former partner on the grounds that plaintiff could not state a claim against him.

On appeal plaintiff claims the trial court erred in not granting his motion for summary judgment for an award of fees and in entering summary judgment against him on the grounds that Rule 4-1.5(e) of the Rules of Professional Conduct was a defense because the Rule was not a defense and was not pleaded as such and also on the grounds that the facts showed that he assumed joint responsibility under Rule 4-1.5(e). Plaintiff also claims that the trial court erred in dismissing his claim against the settling attorney's former partner because his petition stated a cause of action and the court dismissed the claim without giving plaintiff notice or an opportunity to be heard. We affirm.

THE PLEADINGS

Because the appeal challenges the trial court's rulings on a motion to dismiss and a motion for summary judgment, we first examine the pleadings.

The Petition

In his petition plaintiff, William Londoff, alleged that prior to November 18, 1987, he entered into a written contract with Synobia and Henry Gray (the clients) to represent them in a wrongful death suit arising out of the death of their daughter. He attached an undated form contract to the petition in which the clients agreed to pay Londoff 40% of any settlement obtained if a lawsuit was filed and authorized Londoff to associate additional counsel at no additional cost. Londoff further alleged Londoff also alleged that Vuylsteke and Foehner settled the case for $120,000.00 and that they breached their contract with him to split the fee by refusing to pay Londoff $24,000.00 of a $48,000.00 attorney's fee. Based on these allegations Londoff sought recovery under theories of breach of contract, unjust enrichment, and conversion.

that he referred the clients to defendants Kenneth Vuylsteke and Charles Foehner and agreed to evenly split the fees with them. He next alleged that defendants acknowledged the fee split in a letter dated November 18, 1987. In that letter Foehner advised one of the clients that he had recently learned that the clients had previously signed a contract with Londoff, that he would handle their case for the same fee that was set out in the Londoff contract, and that "Mr. Londoff and I will split the fee, or in other words, you will have no additional charge for me working on the file with Mr. Londoff."

Foehner's Answer

In his answer Foehner admitted only the referral and the agreement to split the fees, but alleged that he and Vuylsteke had dissolved their partnership, that Vuylsteke handled the Gray file, that Foehner had no part in handling the file, and that Foehner did not receive an attorney's fee. The court subsequently struck Foehner's answer as a discovery sanction.

Vuylsteke's Answer and Motion

Vuylsteke denied all of the allegations of the petition except that he was an attorney. He filed a motion to dismiss for failure to state a cause of action or, in the alternative, for summary judgment. He sought dismissal on the grounds that the petition failed to allege that Londoff assumed any responsibility in the representation of the clients as required by Rule 4-1.5(e)(1) of the Missouri Rules of Professional Conduct.

Vuylsteke sought summary judgment on the grounds that, under the undisputed facts, Londoff did no work on the clients' case and Vuylsteke did all of the work on the case. Specifically, in his motion Vuylsteke stated, with references to the record, that after referring the case to defendants, Londoff did not enter into any written agreement or commitment that he would do any specific work on the case, be jointly responsible for it, or take on any particular responsibility with respect to it. He stated that, after obtaining the contract, Londoff had no documentation of any work he did on the case or correspondence with the clients and no documentation of meeting with clients at any time after he referred the case to defendants. He further stated that Londoff never participated in any legal proceeding involving the case: he never entered his appearance as co-counsel, served an attorney's lien on the underlying defendant, participated in any pre-trial discovery, talked with opposing counsel, appeared in court to argue a motion, took part in filing interrogatories, motions to produce, or depositions, prepared for trial, or took part in any of the settlement negotiations.

Vuylsteke also stated that Londoff never spoke to him about the case, sent him a letter about splitting the fees, or advanced defendants any money for the investigation or preparation of the case. He stated that Londoff pleaded guilty to mail fraud on July 7, 1993 and was disbarred from the practice of law in January, 1994, and therefore was not licensed to practice law for a year and a half before the wrongful death case was settled.

Vuylsteke further stated that, from 1989 until the case was settled in April, 1995, he took responsibility for handling the case. He initially filed a lawsuit against several defendants in March, 1990 which he later dismissed and refiled against a single defendant in September, 1992. He performed extensive investigation and conducted all pre-trial discovery and all motions including successfully defending a motion for summary judgment; that he obtained a settlement in the amount of $120,500.00; and that he advanced between $3,000.00 and $4,000.00

for the investigation and preparation of the wrongful death case. He averred that he received no advice, legal assistance or financial assistance from Londoff.

Londoff's Response to the Motion

Londoff admitted that his petition did not allege that he assumed responsibility but asserted that he could state a cause of action for breach of contract and quantum meruit without reference to Rule 4-1.5(e)(1). He also referred to his deposition testimony that he had an oral agreement with the Foehner and Vuylsteke firm that he would be available to assist on referred cases if asked.

Londoff admitted all of the allegations in support of the motion for summary judgment except that he denied that he failed to investigate the case. He referred to his deposition testimony where he testified that he spent a few hours reviewing the facts and researching the law, that he talked to an investigator about the case, and that he had talked to Vuylsteke about his conversation with the investigator. He asserted that, under a longstanding arrangement he had with defendants, he was jointly responsible for any case he referred to them.

Trial Court Judgment

The trial court entered summary judgment in Vuylsteke's favor. The court found that the parties had an oral fee splitting arrangement whereby Londoff would transfer files to Foehner's office for further handling. The parties would agree to evenly split the fees and Londoff would provide work if and when needed.

Relying on McFarland v. George, 316 S.W.2d 662, 670 (Mo.App.1958), the trial court held that an agreement between lawyers to associate must comply with Rule 4-1.5(e). It found that the record indicated Londoff's service to the clients was "extremely minimal and disproportionate to the fee he now claims", that Londoff did not perform services proportionate to the fee claimed under the fee splitting agreement, and that he did not agree or act to assume joint responsibility for the case. The court further determined that the fee splitting agreement as alleged in Londoff's petition was unenforceable as against public policy and in violation of Rule 4-1.5(e) of the Rules of Professional Conduct. In addition, on its own motion, the court dismissed the claims against Foehner with prejudice on the grounds that Londoff did not and could not state a claim against him.

DISCUSSION
I. Appeal From Judgment in Vuylsteke's Favor

In his first point Londoff initially contends that the trial court erred in denying his motion for summary judgment against Vuylsteke for 50% of the fee because the uncontested facts showed that Londoff was entitled to recover one-half of the fee as a matter of law. The trial court's denial of Londoff's motion for summary judgment is not an appealable order even though the trial court entered summary judgment in Vuylsteke's favor. Avanti Petroleum, Inc. v. St. Louis County, 974 S.W.2d 506, 509 (Mo.App.1998); McCormack v. Maplewood-Richmond Heights, 935 S.W.2d 703, 706 (Mo.App.1996); State v. Sure-Way Transp., Inc., 884 S.W.2d 349, 351-52 (Mo.App.1994). This portion of point one is denied.

Londoff next claims that the trial court erred in "finding Vuylsteke established a defense by asserting Rule 4-1.5(e) of the Rules of Professional Conduct" because the rule is "unavailable as a shield to a civil action as a matter of...

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    • Missouri Law Review Vol. 74 No. 2, March 2009
    • 22 Marzo 2009
    ...App. S.D. 2006) ("'The rules of professional conduct have the force and effect of judicial decision.'" (quoting Londoff v. Vuylsteke, 996 S.W.2d 553, 557 (Mo. App. E.D. (58.) MO. R. PROF'L CONDUCT 4-1.5. This rule incorporated the American Bar Association's Model Rule of Professional Conduc......

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