Kenneth Michael Wright v. Darryl J. Tschirn

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-1676

KENNETH MICHAEL WRIGHT

VERSUS

DARRYL TSCHIRN

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT,
PARISH OF CALCASIEU, NO. 2001-5283,
HONORABLE KENT SAVOIE, DISTRICT JUDGE

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MICHAEL G. SULLIVAN
JUDGE

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Court composed of Jimmie C. Peters, Michael G. Sullivan, and John B. Scofield,*
Judges.

AFFIRMED IN PART; REVERSED IN PART;
AMENDED, AND AFFIRMED AS AMENDED.

Ike A. Hobaugh
Wright & Moreno, L.L.C.
203 West Clarence Street
Lake Charles, Louisiana 70601-9431
(337) 439-6930
Counsel for Plaintiff/Appellant:
Kenneth Michael Wright

Darryl J. Tschirn
Attorney at Law
7825 Fay Avenue, Suite 320
La Jolla, California 92037
(858) 454-9927
Defendant/Appellee

Terrence Jude Lestelle

*
John B. Scofield participated in this decision by appointment of the Louisiana Supreme
Court as Judge Pro Tempore.

Andrea Suchermann Lestelle
Lestelle & Lestelle
2121 Airline Drive, Suite 402
Metairie, Louisiana 70001-5979
(504) 828-1224
Defendants

SULLIVAN, Judge.

This is a concursus proceeding for the disbursement of attorney fees and

expenses among three attorneys who represented Joseph Benoit in a federal multi-

district products liability litigation against Acromed Corporation, the manufacturer of

an orthopaedic bone screw. One of the attorneys appeals the judgment of the trial

court. For the following reasons, we affirm in part, reverse in part, amend, and affirm

as amended the judgment of the trial court.

Facts

A number of attorneys represented Mr. Benoit prior to and during the course

of the multi-district litigation which ended in settlement. Pursuant to the settlement,

funds were distributed to Mr. Benoit’s current attorney, James Wright. The

distribution specified how the settlement funds were to be disbursed with amounts

designated for attorney fees, attorney costs, and Mr. Benoit.

Mr. Benoit retained Mr. Wright in November 1993 to represent him and, in

connection therewith, signed a contingency fee contract. Mr. Wright associated the

firm of Lestelle and Lestelle to assist him with Mr. Benoit’s case. The record

indicates that Darryl Tschirn, and possibly a number of other attorneys, represented

Mr. Benoit before he was represented by Mr. Wright and Lestelle & Lestelle.

Mr. Tschirn also served as counsel for all claimants in the Acromed multi-district

litigation.

Upon receipt of Mr. Benoit’s distribution, Mr. Wright instituted this concursus

proceeding and deposited the funds into the registry of the trial court. In his petition,

Mr. Wright identified all of the attorneys he believed might have a claim to the

specified attorneys fees and costs. The matter was tried by affidavit. Mr. Wright,

Lestelle & Lestelle, and Mr. Tschirn filed affidavits to recover attorney fees and costs.

The trial court disbursed the funds as follows:

Kenneth Wright $ 1,290.81 attorney fees
524.40 costs

Darryl Tschirn $ 1,721.01 attorney fees
907.60 costs

Lestelle & Lestelle $ 1,290.81 attorney fees
584.89 costs

Mr. Wright filed a motion for new trial regarding the trial court’s award of

attorney fees in favor of Mr. Tschirn, asserting as he does here, that an attorney who

terminates his representation of a client without cause is not entitled to a fee for his

services. The trial court vacated the original judgment with regard to the award of

attorney fees only and conducted a hearing on the issue of whether Mr. Tschirn was

entitled to attorney fees. After the hearing, the trial court denied the motion, finding

that an attorney who terminates his representation without cause but causes no

prejudice to his client’s interests remains entitled to a fee.

Mr. Wright appeals and assigns five errors. Mr. Wright complains that the trial

court’s award of attorney fees and costs to Mr. Tschirn was error because Mr. Tschirn

abandoned Mr. Benoit without cause during the litigation and did not meet his burden

of proof with regard to costs for which he seeks reimbursement. Mr. Wright also

assigns as error the trial court’s denial of his motion to compel Mr. Tschirn to respond

to discovery he filed, the trial court’s denial of his motion to have a contradictory trial

rather than a trial by affidavits, and the trial court’s refusal to admit unopposed

evidence into evidence.

Discussion

Attorney Fees

Mr. Wright asserts that Mr. Tschirn abandoned his representation of Mr. Benoit

without cause and, therefore, is not entitled to collect a fee. Mr. Tschirn discussed in

his brief, but did not address in his affidavits, why he no longer represents Mr. Benoit.

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In his brief, Mr. Tschirn asserted that he terminated his professional relationship with

Mr. Benoit because Mr. Benoit would not cooperate with him and would not comply

with court orders and directives. However, a brief and its attachments are not part of

the record and cannot be considered as evidence. Arceneaux v. Arceneaux, 98-1178

(La.App. 4 Cir. 3/17/99), 733 So.2d 86, writs denied, 99-518 (La. 4/9/99), 740 So.2d

633; 99-1351 (La. 6/25/99), 745 So.2d 624. The only evidence on this issue is a letter

attached to Mr. Tschirn’s affidavit. The letter was written by Mr. Tschirn to Mr.

Benoit terminating his representation of Mr. Benoit for “personal and professional

reasons.”

In his opinion on the motion for new trial, the trial judge determined that

Mr. Tschirn’s termination of his representation of Mr. Benoit had not prejudiced

Mr. Benoit’s interests in his litigation; therefore, he remained entitled to a fee. The

trial judge first considered Rule 1.16 of the Rules of Professional Conduct governing

the Lawyer-Client Relationship (emphasis added) which provides:

(b) Except as stated in Paragraph (c), a lawyer may withdraw from
representing a clientif withdrawal can be accomplished without material
adverse effect on the interests of the client, or if:

(1) The client persists in a course of action involving
the lawyer’s services that the lawyer reasonably believes is
criminal or fraudulent;

(2) The client has used the lawyer’s services to
perpetrate a crime or fraud;

(3) A client insists upon pursuing an objective that
the lawyer considers repugnant or imprudent;

(4) The client fails substantially to fulfill an
obligation to the lawyer regarding the lawyer’s services and
has been given reasonable warning that the lawyer will
withdraw unless the obligation is fulfilled;

(5) The representation will result in an unreasonable
financial burden on the lawyer or has been rendered
unreasonably difficult by the client; or

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(6) Other good cause for withdrawal exists.

(c) When ordered to do so by a tribunal, a lawyer shall continue
representation notwithstanding good cause for terminating the
representation.

There are no allegations that Mr. Tschirn’s termination of his representation of

Mr. Benoit had any adverse effect on Mr. Benoit’s interests.

Quoting Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 118 (La.1978),

the trial judge then observed:

It seems to me that if the lawyer can keep earned fees that have
been paid in advance, he can collect fees under a contingent agreement
once recovery has been made, “apportioned according to the respective
services and contributions of the attorneys for work performed and other
relevant factors.

Mr. Wright argues that Saucier is inapplicable here because it deals with a

client’s dismissal of his attorney, not with an attorney’s termination of his

representation of the client. We do not agree. Saucier is decided on the basis of

fairness and equity depending on the circumstances surrounding a client’s discharge

of his attorney. We find these principles appropriate to the situation presented here.

Mr. Tschirn’s affidavit establishes that he filed suit on behalf of Mr. Benoit and

prepared his case for trial in federal court in New Orleans. Mr. Tschirn also

represented other plaintiffs with claims against Acromed, and the federal court

scheduled all of the cases for trial in six week intervals. The trial of Mr. Benoit’s case

was delayed when Mr. Tschirn successfully tried his first case against Acromed, and

Acromed appealed the judgment. The district court stayed the trial of the other

Acromed cases until the appeal was completed. A short time later, Mr. Wright and

Lestelle & Lestelle began representing Mr. Benoit. Approximately seven months

later, the litigation against Acromed, which was nationwide, was consolidated into one

multi-district litigation in the United States District Court, Eastern District of

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Pennsylvania. Mr. Benoit’s case became part of the multi-district litigation, and

Mr. Tschirn was made a committee member of the multi-district litigation.

Ultimately, the multi-district litigation resulted in two distributions to Acromed

claimants. The second distribution to Mr. Benoit is the subject of this litigation.

Mr. Wright’s affidavit reflects that his representation of Mr. Benoit consisted

of participating in the deposition of Mr. Benoit, filing administrative claim forms and

a pre-trial memorandum in the multi-district litigation, and invoking this concursus

proceeding.

Mr. Wright urges us to adopt the position taken in some states that an attorney

who withdraws from a contingency fee case without cause is not entitled to a fee. In

our opinion, a decision based only on the cause of the termination without

consideration of the effect on the client is in derogation of Rule 1.16 and may result

in an unearned windfall to the client and his new counsel. Therefore, we decline to

adopt this position.

Mr. Wright next argues that because Mr. Tschirn stated in his affidavit that he

had a contingency fee contract with Mr. Benoit but did not introduce a copy of it into

evidence, there is no way to determine whether the contract precludes him from

collecting a fee for the services he provided Mr. Benoit due to his termination of

representation. Rule 1.5(c) of the Rules of Professional Conduct governing the Client-

Lawyer Relationship requires that a contingency fee contract be in writing. However,

in Syrie v. Schilab, 95-491 (La.App. 3 Cir. 11/2/95), 664 So.2d 529, writ denied,

95-2869 (La. 2/2/96), 666 So.2d 1100, this court held that failure to introduce a

contingency fee contract into evidence was not a “fatal flaw” to an award of attorney

fees. Because there is no contention that Mr. Tschirn did not perform the services he

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outlined in his affidavit on behalf of Mr. Benoit, we find that his failure to introduce

his contingency fee contract into evidence is not “fatal” to his recovery.

Mr. Wright also urges that Mr. Tschirn’s payment for his services as a

committee member of the multi-district litigation is enough to compensate him for the

services he provided individually to Mr. Benoit and for the services he performed as

a committee member. We do not agree. Mr. Tschirn prepared Mr. Benoit’s case for

trial before he terminated his representation. The work he performed as a committee

member was performed after he no longer represented Mr. Benoit and was performed

in the interest of all Acromed claimants, as were the services of all the committee

members. The services performed were separate and distinct, and he is entitled to be

compensated for all of his services.

We find no error with the award of attorney fees in favor of Mr. Tschirn.

Costs

Mr. Wright assigns as error the trial court’s award of costs to Mr. Tschirn

because there is no supporting documentation for the expenses. To sustain his burden

of proof, Mr. Tschirn should have attached copies of the invoices and identified them

as expenses he incurred on Mr. Benoit’s behalf. Trinity Universal Ins. Co. v.

Normand, 220 So.2d 583 (La.App. 3 Cir. 1969). The judgment awarding costs to

Mr. Tschirn is reversed.

Request for Reconsideration of Trial on Affidavits and Motion to Compel Discovery

Mr. Wright complains that the trial court required him to try this matter by

affidavits and to do so was error. The trial court held a status conference in this matter

on July 22, 2002. At that time, the trial was set for October 23, 2002. Following the

status conference, a pre-trial order which set a deadline for filing motions and

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discovery was issued. Both deadlines were forty-five days before trial. Mr. Wright

filed his request for reconsideration on September 30, 2002.

At the hearing on the request for reconsideration, the trial judge noted that he

recalled that the parties agreed at the status conference to try the matter by affidavits

because the funds to be disbursed were not significant. Mr. Wright contends that he

did not agree to try the matter by affidavits but was instructed by the trial court that

it would be handled in that manner. Mr. Wright’s request for reconsideration was

filed after the deadline for motions provided in the pre-trial order. At that time, it was

more than sixty days after the status conference and less than thirty days before the

trial date. Additionally, the other parties had already filed their affidavits with the

court.

In our opinion, Mr. Wright’s dilatory filing of his request for reconsideration

supports the trial court’s belief that all of the parties agreed to submit their claims by

affidavit. We know of no prohibition against parties agreeing to submit an ordinary

proceeding or a concursus proceeding by affidavit. Considering these facts, we find

that Mr. Wright waited too late to complain about submitting the matter by affidavits

and that the trial court did not err in denying the request for reconsideration.

Mr. Wright cites Hollywood Casino Shreveport v. Shreveport Paddlewheels,

L.L.C., 02-2134 (La.App. 4 Cir. 7/23/03), 853 So.2d 660, in support of his position.

In Hollywood Casino, the trial court’s determination of the merits of a concursus

proceeding in a summary proceeding was reversed. See La.Code Civ.P. art. 4662.

There is a significant distinction between Hollywood Casino and this case: the parties

in this matter agreed, or implied that they agreed, to submit the matter on affidavits.

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Mr. Wright also asserts that the trial court’s denial of his motion to compel

discovery was error. The motion to compel discovery was not filed until October 7,

2002, which was well beyond the discovery deadline set in the pre-trial order and only

sixteen days before trial. Mr. Wright has not shown any reason justifying his failure

to comply with the discovery deadline. We find no error with the trial court’s denial

of his motion to compel.

Introduction of Evidence

In his last assignment of error, Mr. Wright complains that the trial court erred

in refusing to allow him to introduce evidence at the October 23, 2002 trial. He

proffered the evidence sought to be introduced. The evidence Mr. Wright sought to

introduce was not in affidavit form nor was it attached to an affidavit. More

importantly, nothing in the evidence sought to be introduced establishes that it is

related or relevant to this proceeding. We find no error with the trial court’s refusal

to allow the evidence to be introduced at trial.

Motion to Strike

Mr. Wright filed a motion to strike Mr. Tschirn’s appellate brief which was

referred to the merits of this matter. He complains that the brief does not cite to

references in the record by page numbers, as required by Rule 2-12.4 and Rule 2-14.5

of the Uniform Rules, Courts of Appeal, and that the brief references Mr. Tschirn’s

own memoranda and exhibits which were not in evidence. Rule 2-12.5 allows this

court to disregard an argument on an error if suitable reference to the record is not

made. Due to the nature of this proceeding, Mr. Tschirn’s failure to cite references

in the record by page number is not of such significance that compels us to strike his

brief. The only exhibit attached to Mr. Tschirn’s brief which is not in the record is a

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copy of a case Mr. Tschirn referenced in his brief which was apparently provided for

the convenience of this court. The motion to strike Mr. Tschirn’s brief is denied.

Disposition

For the foregoing reasons, the judgment in favor of Mr. Tschirn for attorney

fees is affirmed, but the judgment for costs is reversed. The judgment of the trial

court is amended to award the $907.60 in costs awarded to Mr. Tschirn one-half to

Mr. Wright and one-half to Lestelle and Lestelle. The costs of this appeal are assessed

equally between James Wright and Darryl Tschirn.

AFFIRMED IN PART; REVERSED IN PART; AMENDED AND
AFFIRMED AS AMENDED.

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