Shaffer v. Charleston Area Medical Center, Inc.

• Decision Date: 19 March 1997
• Docket Number: No. 23419,23419
• Citation: 485 S.E.2d 12,199 W.Va. 428
• Court: West Virginia Supreme Court
• Parties: Keith SHAFFER, Administrator of the Estate of Keith Shaffer, II, Deceased, and Keith Shaffer, Individually, Thomas G. Wilson, Plaintiffs Below, Appellants v. CHARLESTON AREA MEDICAL CENTER, INC., a West Virginia Corporation, Arvind Z. Virandia, M.D., and Brigette Joseph, M.D., Crystal Hawkins Castleberry, Defendants Below, Appellees.

Page 12

485 S.E.2d 12

199 W.Va. 428

Keith SHAFFER, Administrator of the Estate of Keith Shaffer, II, Deceased, and Keith Shaffer, Individually, Thomas G. Wilson, Plaintiffs Below, Appellants v. CHARLESTON AREA MEDICAL CENTER, INC., a West Virginia

Corporation, Arvind Z. Virandia, M.D., and

Brigette Joseph, M.D., Crystal Hawkins

Castleberry, Defendants Below,

Appellees.

No. 23419.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 22, 1997.

Decided March 19, 1997.

[199 W.Va. 430] Syllabus by the Court

1. " 'A motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syllabus Point 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syl. pt. 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992).

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 [be] disturbed unless the circuit court abused its discretion." Syl. pt. 2, Kopelman and Associates, L.C. v. Collins, 196 W.Va. 489, 473 S.E.2d 910 (1996).

3. When attorneys jointly undertake to represent a client there is a rebuttable presumption that the attorneys are to equally share any recovery of attorney's fees. This rebuttable presumption arises only in the absence of a valid oral or written agreement between the attorneys as to the division of attorney's fees.

4. A charging lien is the equitable right of an attorney to have fees and costs due the attorney for services in a particular action secured by the judgment or recovery in such action. A charging lien by an attorney against another attorney, involving a case in which each worked, may be premised upon an oral or written fee sharing agreement between the attorneys. A charging lien brought against another attorney may proceed in a separate suit or the underlying action in which the attorneys had formerly worked on together.

Barbara H. Allen, Allen & Allen, L.C., Charleston, for Appellant Thomas G. Wilson.

David K. Hendrickson, Thomas L. Hawker, Hendrickson & Long, Charleston, for Appellee Crystal Hawkins Castleberry.

McHUGH, Justice:

The plaintiff below and appellant herein, Thomas G. Wilson, (hereinafter referred to as "Wilson"), appeals the January 23, 1995, order of the Honorable Judge Lyne Ranson of the Circuit Court of Kanawha County which granted a motion by the defendant/appellee,

                [199 W.Va. 431]  Crystal Hawkins Castleberry, (hereinafter referred to as Castleberry), to quash a charging lien filed by Wilson. 1  Wilson contends on appeal that it was reversible error for the circuit court to restrict his ability to recover in this case under the theory of quantum meruit
                

I. FACTUAL BACKGROUND

The facts of this case reveal that Wilson and Castleberry are both practicing attorneys in the State of West Virginia. In October of 1991, Wilson and Castleberry entered into an office sharing arrangement and an oral fee sharing agreement in certain cases on which each worked. In the fall of 1992, Keith Shaffer became a client of both parties. The parties executed a contingency fee contract with Shaffer, as his attorneys in a medical malpractice wrongful death claim. The contingency fee agreement gave the attorneys 40% of any recovery, plus expenses. The parties orally agreed to share equally in any recovery. It was agreed between the parties that Castleberry would be the lead attorney in the Shaffer matter.

In March of 1993, the parties filed the underlying medical malpractice wrongful death action. On or about August 10, 1994, Castleberry left Wilson's office and terminated their office sharing arrangement. Shaffer entered into a separate agreement with Castleberry as his attorney on August 13, 1994, under essentially the same terms as that obtained in the initial contingency fee agreement. Shaffer subsequently terminated the contract he had with Wilson on August 14, 1994.

On September 23, 1994, Wilson filed notice of a charging lien in the underlying civil action that was taken by Castleberry. ² The charging lien sought to recover Wilson's alleged share of any attorney's fees received in the underlying civil action. Castleberry settled the underlying civil action for $550,000 on November 7, 1994. Castleberry's fee for legal services in the underlying civil action was $220,000. On December 2, 1994, Castleberry filed a motion to quash the charging lien. On January 4, 1995, the circuit court convened a hearing on Castleberry's motion to quash the charging lien. Subsequent to the hearing the circuit court entered an order on January 23, 1995, quashing the lien, on the grounds that Wilson "has not demonstrated the reasonable value of his services as required for quantum meruit determination." This appeal followed. Wilson contends in this appeal that it was reversible error for the circuit court to restrict his ability to recover in this case to that of quantum meruit.

II. STANDARD OF REVIEW

For reasons that are explained in section A of part III of this opinion, we are treating the circuit court's ruling in this case as an order granting summary judgment. "A circuit court's entry of summary judgment is reviewed de novo." Syl. pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). See also syl. pt. 1, Davis v. Foley, 193 W.Va. 595, 457 S.E.2d 532 (1995); syl. pt. 1, Jones v. Wesbanco Bank Parkersburg, 194 W.Va. 381, 460 S.E.2d 627 (1995). This Court has consistently held that " '[a] motion for summary judgment should be granted only when it is clear that there is no genuine issue of fact to be tried and inquiry concerning the facts is not desirable to clarify the application of the law.' Syl. pt. 3, Aetna Casualty & Surety Co. v. Federal Insurance Co. of New York, 148 W.Va. 160, 133 S.E.2d 770 (1963)." Syl. pt. 1, Andrick v. Town of Buckhannon, 187 W.Va. 706, 421 S.E.2d 247 (1992). Our holding in syllabus point 5 of Roughly stated, a 'genuine issue' for purposes of West Virginia Rule of Civil Procedure 56(c) is simply one half of a trialworthy issue, and a genuine issue does not arise unless there is sufficient evidence favoring the non-moving party for a reasonable jury to return a verdict for that party. The opposing half of a trialworthy issue is present where the non-moving party can point to one or more disputed 'material' facts. A material fact is one that has the capacity to sway the outcome of the litigation under the applicable law.

[199 W.Va. 432] Jividen v. Law, 194 W.Va. 705, 461 S.E.2d 451(1995) held:

With the latter legal principles in view, we turn to the merits of this appeal.

III. DISCUSSION

This Court observed in Capehart v. Church, 136 W.Va. 929, 933, 69 S.E.2d 127, 129 (1952) that:

It is well established that an attorney has a lien on the fruits of litigation to aid in the enforcement of a demand for his fee by resort to the property or money he has recovered for his client. Such liens may be classed as retaining liens and charging liens. 'A retaining lien is the right of the attorney to retain possession of a client's documents, money, or other property which comes into the hands of the attorney professionally, until a general balance due him for professional services is paid.' 7 C.J.S., Attorney and Client, Section 210. 'A charging lien is the equitable right of an attorney to have fees and costs due him for services in a particular suit secured by the judgment or recovery in such suit, is based on equitable considerations, and differs from ordinary liens in that possession is not essential to the charging lien.' 7 C.J.S., Attorney and Client, Section 211.

(Citations omitted.)

This Court has applied the law, with reference to charging liens, in several cases. See May v. Seibert, 164 W.Va. 673, 264 S.E.2d 643 (1980) (a lawyer who without justification or good cause withdraws from representation may, if his withdrawal works no prejudice to his client, be entitled to all or part of his compensation); Capehart, supra, (an attorney's lien for professional services may not be enforced in equity against a stranger to the litigation in which such services were rendered); In re Marcum, 135 W.Va. 126, 62 S.E.2d 705 (1950) (an attorney has no lien upon money received by him from a client for a special purpose). Our cases reveal that typically an attorney's charging lien will be brought during the underlying civil action and against the client or former client. ³ See Robertson v. Pettery, 114 W.Va. 78, 170 S.E. 901 (1933); Fisher v. Mylius, 62 W.Va. 19, 57 S.E. 276 (1907). However, there are situations where a charging lien is brought against another attorney, who took over the underlying claim. This type of charging lien, against a subsequent attorney, is typically instituted in a separate action against the attorney. See Kopelman and...