Opinion
NUMBER 2023 CA 0022
12-27-2023
In the MATTER OF Charles L. TRICHELL and Spencer H. Calahan
Taylor S. Carroll, Baton Rouge, LA, Counsel for Plaintiff/Appellant Charles L. Trichell David L. Bateman, J. Michael McDonald, Baton Rouge, LA, Counsel for Defendants/Appellees Spencer H. Calahan and Spencer H. Calahan, LLC
Appealed from the Nineteenth Judicial District Court, In and for the Parish of East Baton Rouge, State of Louisiana, Suit Number 706,757, Honorable Wilson E. Fields, Judge Presiding
Taylor S. Carroll, Baton Rouge, LA, Counsel for Plaintiff/Appellant Charles L. Trichell
David L. Bateman, J. Michael McDonald, Baton Rouge, LA, Counsel for Defendants/Appellees Spencer H. Calahan and Spencer H. Calahan, LLC
BEFORE: GUIDRY, C.J., WELCH AND WOLFE, JJ.
GUIDRY, C.J.
2A lawyer formerly employed by a law firm appeals a concursus judgment seeking review of the trial court’s apportionment of attorney fees between the lawyer and his former firm.
FACTUAL AND PROCEDURAL HISTORY
Charles L. Trichell joined the law firm of Spencer H. Calahan, LLC on May 26, 2016, and worked as an attorney for the firm until November 24, 2018. When Trichell resigned from the firm, several clients that he represented while employed with the Calahan firm elected to discharge the firm and maintain representation with Trichell for their cases. Trichell reached successful settlements for most of those clients.
The record contains re-created representation agreements with Trichell for most of the clients at issue, and those agreements include an annotation stating that the parties agree that the original contracts in which the clients retained Trichell were executed in or about December 2018. Representation agreements with Trichell for the following nine clients are not in the record: Kemarii Batiste, Chiquita Governor, Gary Governor, Kiara Governor, Kennedi Harris, Adonis Hughes, Larry Rineheart, Bronette Spann, and Tristan Tucker. The record does, however, contain an affidavit executed by the Governors attesting that they signed contingency fee contracts with Trichell in or about December 2018. Among the attorney fees in dispute, the record reveals that Trichell did not represent two clients, Bronette Spann and her daughter Kennedi Harris, while employed with the Calahan firm.
The record appears to contain representation agreements with the Calahan firm for all of the clients at issue; however, the agreement for Larry Rineheart is incomplete. In that agreement, no information is provided on any of the blank lines of the pre-printed form except the lines for the client’s initials and signature.
The record indicates that additional clients who switched from the Calahan firm to Trichell exist, but they are not relevant to this appeal.
After settling one such case, Trichell filed a "Petition for Concursus" against Spencer H. Calahan, individually, seeking to split the attorney fee received on the case after he was unable to reach an agreement with Calahan regarding how to divide the attorney fee recovered. Calahan, in turn, filed an answer asserting that he and his firm were entitled to the attorney fee generated by the case. In the same pleading, Calahan also asserted a reconventional demand on behalf of himself and 3his law firm claiming entitlement to the attorney fees Trichell recovered in several other cases as well. Following a trial on the matter, the trial court rendered judgment apportioning roughly 66% of the attorney fees in dispute to Calahan and 34% to Trichell.
For ease of discussion, Calahan and his firm will both simply be referred to as "Calahan" throughout the remainder of this opinion.
Once the attorney fees in dispute were apportioned, Calahan filed a motion requesting that the trial court order Trichell to deposit the remaining portion of attorney fees in dispute (which Trichell had retained in his client trust account) into the registry of the court. Following a hearing on the motion, the trial court granted Calahan’s motion and ordered Trichell to deposit the disputed funds into the registry of the court.
Thereafter, Trichell filed the instant suspensive appeal, wherein he alleges that the trial court erred in:
1. Applying the wrong legal standard to apportion the attorney fees and improperly placing the burden of proof on Trichell.
2. Relying on inaccurate data pertaining to the duration of representation and the costs and risks attributable to each attorney.
3. Rendering judgment to award funds that had not been deposited into the registry of the court.
4. Rendering judgment on claims asserted by way of a reconventional demand for which the trial court lacked jurisdiction.
5. Ordering Trichell to deposit trust account funds into the registry of the court after trial.
DISCUSSION
Before addressing the merits of the apportionment judgment, we will first address the procedural challenges raised by Trichell in assignments of error three, four, and five.
[1] In assignment of error number four, Trichell asserts that the trial court lacked authority to apportion the attorney fees for cases that were pled by Calahan 4in his reconventional demand. Observing that La. C.C.P. art. 4651, in relevant part, defines a concursus proceeding as one in which two or more persons having competing claims to money are required to assert their respective claims contradictorily against all other parties to the proceeding, this court has held that "a concursus proceeding can be invoked by means of a reconventional demand, if the substantive requirements of a concursus proceeding are otherwise present." Asian International, Ltd. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 435 So. 2d 1064, 1066 (La. App. 1st Cir. 1983). As Calahan and Trichell assert competing claims to the attorney fees stemming from the additional cases pled by Calahan, those cases meet the substantive requirements of La. C.C.P. art. 4651. Hence, the holding of this court in Asian International, Ltd. supports the expansion of the concursus proceeding to include the additional attorney fees claimed by Calahan in his reconventional demand.
Ironically, we observe that the parties appear to have switched positions regarding this issue on appeal. In the proceedings below, Galahan objected several times to the trial court considering and apportioning the attorney fees for any case other than the one case pled by Trichell in the concursus petition, while Trichell argued that the attorney fees for the additional cases were properly joined in the concursus proceeding by virtue of Calahan’s reconventional demand.
[2] In assignment of error number three, Trichell contends that the trial court lacked authority in the concursus proceeding to award funds that were not deposited in the registry of the court. In Clements v. Folse ex rel. Succession of Clements, 01-1970, p. 13 (La. App. 1st Cir. 8/14/02), 830 So. 2d 307, 316-17, writ denied, 02-2328 (La. 11/15/02), 829 So. 2d 437, this court recognized that there is no requirement that disputed funds in a concursus proceeding be deposited with the court. Rather, when a party deposits the funds with the court, it simply relieves the party of liability to the other parties for the deposited funds. See La. C.C.P. art. 4658. Hence, the absence of funds deposited in the registry of the court in no way diminishes the court’s authority to adjudicate the funds that are the subject of the 5concursus proceeding. See Gordon v. Level, 94-279, p. 4 (La. App. 5th Cir. 9/27/94), 643 So. 2d 371, 373 writ denied, 94-2654 (La. 12/16/94), 648 So. 2d 394 (in which the trial court adjudicated the division of attorney fees, part of which were placed in the registry of the court and the rest were held in escrow by one of the claimant attorneys).
In the instant case, through his reconventional demand to the concursus proceeding initiated by Trichell, Calahan, a non-stakeholder, properly sought to bring before the court all persons having possession of or a purported interest in the attorney fees in dispute. See Austral Oil Company, Inc. v. Milliken & Farwell, Inc., 307 So. 2d 377, 379 (La. App. 1st Cir. 1974), writ denied, 310 So. 2d 642 (La. 1975) (recognizing that pursuant to La. C.C.P. art. 4652, it is proper in a concursus proceeding to "bring before the court all persons having possession of or a purported interest in the disputed funds, and to have all claims among them relative thereto asserted"). Thus, we find no merit in Trichell’s third assignment of error, as the trial court’s authority to award the attorney fees that were not deposited in the registry of the court was in no way impacted by the absence of such a deposit.
[3] Finally, in assignment of error number five, Trichell alleges the trial court lacked authority to order him to deposit the remaining portion of the attorney fees in dispute—which were being held by Trichell in his client trust account—into the registry of the court. In his argument regarding this alleged error, Trichell first asserts that the "trial court’s jurisdiction is limited to only the disbursal of funds in the registry of the court—not to forcing a party to place more money in the registry of [the] court for disbursal." He then, contrary to the argument asserted in his third assignment of error, quotes jurisprudence holding that the deposit of funds into the registry of the court is not required for a valid concursus proceeding, which premise we recognize in rejecting his third assignment of error.
[4] 6While we agree with Trichell’s assertion that "there is absolutely no authority anywhere for the proposition that a party is required to place money in the registry of [the] court in a concursus proceeding," we recognize that the absence of such a requirement does not restrict a court’s authority to nonetheless order that the funds in dispute be placed in the registry of the court. In fact, La. C.C.P. art. 3573 allows a court, on its own motion, to order "the sequestration of property the ownership of which is in dispute without requiring security when one of the parties does not appear to have a better right to possession than the other." It has been recognized that Article 3573 can provide authority to order the deposit of funds into the registry of the court if there exists a dispute as to the ownership of the funds, and one party does not appear to have a better right to possession than the other. See Boucher & Slack Contractors, Inc. v. McLean, 382 So. 2d 1030, 1033 (La. App. 2d Cir.), writ recalled, 391 So. 2d 840 (La. 1980). Moreover, the fact that Calahan filed a motion requesting that the remaining fees be deposited into the registry of the court in no way nullified the discretion of the trial court to order that the funds be so deposited. See Joiner v. Bill Hood Ford. Inc., 02-0996, p. 6 (La. App. 1st Cir. 4/2/03), 843 So. 2d 1147, 1150-51, writ denied, 03-1231 (La. 6/27/03), 847 So. 2d 1267 (wherein this court found the trial court did not exceed the wide latitude and discretion afforded it in sequestering without bond the property at issue following a party’s request for such action).
Now, turning to the merits of the apportionment judgment, it has been recognized that "[a] client has a right to discharge a lawyer at any time, with or without cause, subject to liability for payment for the lawyer’s services." Succession of Wallace, 574 So. 2d 348, 351 (La. 1991) (quoting a comment to Rule 1.16 of the Louisiana Rules of Professional Conduct). Based on a client’s right to terminate counsel at any time, an ancillary rule developed defining the 7attorney’s right to sue for fees. Clegg v. USAgencies Insurance Company, 07-1781, p. 4 (La. App. 1st Cir. 3/26/08), 985 So. 2d 781, 784.
[5, 6] In the instant case, excepting Kennedi Harris and Bronette Spann, the clients in the cases at issue initially obtained representation by Trichell on a contingency fee basis during his employment with Calahan. A contingency fee contract is a contract for legal services in which the attorney’s fee depends upon success in the enforcement of the client’s claim. The attorney bears the risk of loss insofar as his legal services are concerned. Saucier v. Hayes Dairy Products, Inc., 373 So. 2d 102, 105 (La. 1978). When Trichell resigned from Calahan and started his own firm, the clients at issue elected to discharge Calahan and obtain representation by Trichell on a contingency fee basis.
As the supreme court further recognized in Saucier, "[s]uch contracts promote the distribution of needed legal services by reducing the risk of financial loss to clients and making legal services available to those without means." Saucier, 373 So. 2d at 105.
In cases where a client has hired a succession of attorneys on a contingency fee basis, the Louisiana Supreme Court has held:
[O]nly one contingency fee should be paid by the client, the amount of the fee to be determined according to the highest ethical contingency percentage to which the client contractually agreed in any of the contingency fee contracts which he executed. Further, that fee should in turn be allocated between or among the various attorneys involved in handling the claim in question, such fee apportionment to be on the basis of factors which are set forth in the Code of Professional Responsibility.
Saucier, 373 So. 2d at 118 (on reh’g).
At issue in the present appeal is not a determination of the amount of the attorney fees recoverable, which was the principal issue in Saucier, but the apportionment of the fees recovered between Trichell and Calahan. Nonetheless, in Saucier, 373 So. 2d at 116 (on reh’g), the Louisiana Supreme Court advised courts to consider the following factors, now found in Rule 1.5(a) of the Louisiana Rules of Professional Conduct, to make a reasonable apportionment of attorney fees recovered among successive attorneys handling a case:
8(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and
(8) whether the fee is fixed or contingent.
Additionally, Rule 1.5(e)(3) states that "[a] division of fee between lawyers who are not in the same firm may be made only if … each lawyer renders meaningful legal services for the client in the matter."
[7–9] A trial court has great discretion in setting an award of attorney fees, and we will not disturb it in the absence of. abuse. Davis v. Zurich Am. Ins. Co., 20-419, p. 3 (La. App. 3d Cir. 4/7/21), 318 So. 3d 306, 309. "Where the standard of review is an abuse of discretion, the role of the reviewing court is not to determine what it considers to be an appropriate award, but rattier it is to review the exercise of discretion by the trier of fact." Covington v. McNeese State University, 12-2182, p. 11 (La. 5/7/13), 118 So. 3d 343, 351 (citing Bouquet v. Wal-Mart Stores, Inc., 08-309, p. 5 (La. 4/4/08), 979 So. 2d 456, 459). A trial court’s factual findings are subject to the manifest error standard of review. Stobart v. State. Department of Transportation and Development, 617 So. 2d 880, 882 (La/1993).
9In rendering the apportionment judgment, the trial court adopted Calahan’s post-trial brief, and all the suggested apportionments made therein except one, as its reasons for judgment. It has been recognized that we cannot place any real value on the written reasons presented when they are drafted in their entirety by counsel for one of the parties. However, if there is some evidence supporting the reasons, we do not have to reject them entirely. Bell v. Ayio, 97-0534, p. 3 (La. App. 1st Cir. 11/13/98), 731 So. 2d 893, 896, writ denied, 98-3115 (La. 2/5/99), 738 So. 2d 7.
In its "Written Reason," the trial court stated that it "adopts the [Calahan’s] Post-Trial Brief as its reason[s] for judgment with the exception of one case, Ronnie Reese, where the court finds a 40%-60% split [favoring Trichell] is the appropriate split of the attorneys’ fees based on the amount of time each firm received the case and the amount of work performed."
[10] In his first assignment of error, Trichell argues in part that the trial court improperly placed the burden on him to prove the amount of attorney fees to which he was entitled. Citing Delta Land & Investments, LLC v. Hunter Estates, Inc., 51,069, p. 11 (La. App. 2d Cir. 1/11/17), 211 So. 3d 1255, 1262, writ denied, 17-0264 (La. 3/31/17), 217 So. 3d 364, Trichell contends that as the discharged attorney, Calahan had the burden of proving the value of his services and the extent of his expenses and therefore should have presented his case first. We disagree and find no error in how the trial court conducted the proceedings below.
A concursus proceeding is defined, in relevant part, as "one in which two or more persons having competing or conflicting claims to money … are impleaded and required to assert their respective claims contradictorily against all other parties to the proceeding." La. C.C.P. art. 4651. It is undisputed that Trichell initiated this case as a concursus proceeding that was expanded by Calahan through his reconventional demand. As parties to the proceeding, both Trichell and Calahan bore the burden of proving their claims to the mon- ey (attorney fees) in dispute. Moreover, throughout the proceedings, Trichell was referred to as the 10plaintiff by virtue of his action in initiating the proceeding, and as such, the trial court allowed him to proceed first with the presentation of his case. In fact, when the trial court made the inquiry, "[y]ou wish to give a brief opening," counsel for Trichell did not object, but simply responded "Judge, we can be real brief." Likewise, when the trial court announced, "[c]all your first witness," counsel for Trichell did not object, but instead inquired about where in the courtroom the trial court wanted him address to questions to the witness.
[11] In the remainder of assignment of error number one and in assignment of error number two, Trichell objects to how the respective actions of both law firms were weighed to apportion the attorney fees at issue.
In Calahan’s post-trial brief, which the trial court adopted in all respects except for the proposed fee apportionment for one case, the basic justification for the fee splits proposed in the brief was that. Calahan "put more time, money, and risk into these cases." With respect to money expended and the associated risk related to such expenditure, the record exclusively favors Calahan, as Trichell offered no supporting evidence of the costs that were expended on behalf of the clients once they discharged Calahan. In exhibit PI, Trichell makes some isolated statements regarding medical treatment and related costs for a few of the clients and refers to $25,000 in advances for the living expenses for one client, but he does not identify who or how the identified expenses were paid, nor did he provide any verification to substantiate the expenses to which he generally alluded. In contrast, in exhibit D9, Calahan specifies each expense paid on behalf of a client, listing the dates, amounts, check numbers, and the nature of the expense.
It was acknowledged by the parties that Trichell partnered with an attorney from the law firm of Gordon McKernan to represent several of the clients. Additionally, Trichell pointedly mentions in the case summaries he provided as exhibit P1 that, when possible, every effort was made to use a client’s own health insurance to cover medical expenses.
Nonetheless, it is undisputed that upon the settlement of each case, Calahan 11was reimbursed for all of the costs he incurred. Therefore, while we find some consideration should be given to the costs incurred and the amounts expended by Calahan, we believe greater consideration should be given to the actions taken with respect to building the clients’ cases, and the time and labor related thereto, as unquestionably those actions contributed to the value of each client’s case, and the successful settlement of each case ultimately canceled out any risk that existed.
[12–16] Therefore, reviewing the apportionments in light of the time and labor expended by Calahan and Trichell with respect to each of the cases, we find the trial court clearly abused its discretion in apportioning a 90%-10% fee split favoring Calahan for the cases of Charmaine Batiste, Kennedi Harris, Jasymne McCray, Keyrhonda Prater, and Scott Whipple. Instead, considering the evidence presented, we find the following fee splits to be more appropriate:
• Charmaine Batiste - 40%-60% split favoring Trichell. Although the insurer accepted liability in this client’s case, this did not equate to the insurer agreeing to pay policy limits. And while the client underwent significant medical treatment while with Calahan, she continued to treat while with the Trichell firm, which actively represented her for the majority of the pendency of her case. Additionally, Trichell filed suit and conducted all discovery in the case.
• Kennedi Harris - 60%-40% split favoring Calahan. While all of the client’s medical treatment occurred during Calahan’s representation, the record unquestionably shows that Trichell was successful in obtaining a greater settlement for the client.
• Jasmyne McCray - 40%-60% split favoring Trichell. Investigation that occurred during Calahan’s representation resulted in the insurer accepting liability and most of the client’s medical treatment occurred during Calahan’s representation. Nonetheless, the discovery conducted by Trichell and the expert witnesses retained by him significantly contributed to the successful settlement of the client’s case.
• Keyrhonda Prater - 65%-35% split favoring Calahan. All of the client’s medical treatment occurred during Calahan’s representation, in addition to suit being filed, important discovery being conducted, and expert witnesses being retained. But Trichell likewise conducted significant discovery and even sought additional medical treatment for the client that contributed to the success of her case.
12• Scott Whipple - 50%-50% split. Again, while most of the client’s medical treatment occurred and settlement negotiations were begun during Calahan’s representation, Trichell filed suit, conducted discovery, and oversaw the client’s remaining medical treatment, which markedly contributed to the client’s successful settlement.
[17–20] We likewise find the trial court abused its discretion in apportioning the attorney fees for the following clients and amend those apportionments as follows:
• Jasmine Green - 40%-60% split favoring Trichell. Although Calahan represented the client significantly longer than Trichell, the record reveals that Trichell was able to more actively represent the client. Hence, while the client underwent some medical treatment while represented by Calahan and he filed suit and engaged in some discovery on the client’s behalf, the client’s more significant medical treatment occurred while she was represented by Trichell. Additionally, Trichell participated in two mediations and obtained expert witnesses to help better present the client’s case.
• Brianna Helm - 70%-30% split favoring Calahan. Unquestionably, most of the client’s significant medical treatment occurred during Calahan’s representation. Additionally, the experts used for the client’s case were first retained and suit was filed during Calahan’s representation. Nevertheless, Trichell engaged in discovery and participated in mediation while representing the client.
• Carolyn Helm - 50%-50% split. The client engaged in major medical treatment, suit was filed, a settlement was reached with the liability insurer, and significant uninsured motorist coverage was discovered during Calahan’s representation of the client. Still, during Trichell’s representation, several expert witnesses were hired, the client’s lawsuit was amended to add a claim against the uninsured motorist insurer, and Trichell participated in a mediation, which added to the client’s significant medical treatment during Calahan’s representation, and helped the client achieve an agreeable settlement of her claim.
• Chyneikah Robinson - 45%-55% split favoring Trichell. The client had significant medical treatment and important discovery was conducted during the respective representation of the client by Calahan and Trichell. But while Calahan filed suit on the client’s behalf, Trichell obtained expert witnesses, participated in a mediation, and engaged in extensive trial preparation, including subpoenaing witness and status conferences with the court, prior to the case reaching a successful settlement.
[21] With respect to the division of attorney fees among the remaining clients, we cannot say the apportionments were an abuse of the trial court’s discretion. In 13particular, it is noted that Trichell failed to provide any case summaries for several of the remaining clients nor did he provide any significant testimony regarding his representation of the clients at trial
The parties stipulated to the introduction of case timelines or summaries of the work performed on the clients’ cases by the respective firms. Trichell’s summaries were introduced as exhibit P1, and Calahan's summaries were introduced as D8. In addition to the summaries, Trichell testified at trial regarding the work he performed on the respective cases, while Calahan introduced D9 as a sealed exhibit consisting of contemporaneous case management documentation on each client’s case for the period of time the clients were represented by Calahan.
CONCLUSION
Accordingly, based on the adjusted apportionments of the attorney fees recovered for the identified clients specified in the foregoing discussion, we amend the September 7, 2022 judgment to decree that the distribution of the attorney fees in dispute, collectively, be distributed in the amount of $1,571,949.61 to Spencer H. Calahan, L.L.C. and $1,334,143.81 to Charles L. Trichell. Likewise, we further amend the September 7, 2022 judgment to order that any accrued interest on the disputed funds in the registry of the court be distributed 54.1% to Spencer H. Calahan, L.L.C. and 45.9% to Charles L. Trichell. In all other respects, the September 7, 2022 judgment is affirmed.
JUDGMENT AMENDED, AND AS AMENDED, AFFIRMED.