Jan P. Jumonville VS Leonard Cardenas, III
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 0037 JAN P JLTMONVILLE VERSUS LEONARD CARDENAS III ti Judgment Rendered EC I1 0 2013 x u On Appeal from the C 22nd Judicial District Court In and for the Parish of St Tammany State of Louisiana Trial CourtNo 2011 11273 The Honorable August J Hand Judge Presiding Jan P Jumonville In Proper Person Appellant Covington Louisiana eonard Cardenas III I In Proper Person Appellee Baton Rouge Louisiana x BEFORE PARRO GUIDRY AND DRAKE JJ DRAKE J Attorney Jan P Jumonville appeals a judgment dismissing her petition and varding a her former co Leonard Cardenas III forty percent 40 of the counsel tomey a fees awarded in connection with the settlement of two related matters in federal district court and bankruptcy court underlying litigation FACTS Jumonville represented one of two plaintifFs against two defendants in a wsuit 1 in state court arising out of an automobile accident The judgment in that se c imposed damages on both individual defendants in excess of their liabiliry iiisurance policy limits One of the defendants filed for Chapter Seven bankruptcy protection after this judgment was rendered against him Jumonville pursuit of s her client claims in the bankruptcy court and in federal district court aligned her s ith v the interests of the banla trustee Dwayne Murray Trustee Murray uptcy ho v was also seeking recovery of funds on behalf of the bankruptcy estate Consequently Trustee Murray petitioned the bankruptcy court to allow Jumonville to represent him in connection with these matters The court approved this presentation and Jumonville agreed to represent Trustee Murray far a r contingency fee of one of any amounts recovered plus costs third Eventually it became clear that Jumonville was likely to be called as a itness in the federal district court litigation and she was disqualified from continuing as trial counsel for Trustee Murray in that case but was allowed to main as counsel r co After engaging two attorneys to function as trial counsel ti oth of whom withdrew she employed Cardenas to assist as trial counsel offering t split her fee with him In a letter drafted by Cardenas it was stated that she ould retain sixty percent 60 of any attorney fee generated by the case and he ould be paid forty percent 40 of such a fee The case did not go to trial but vas settled for 250 Trustee Murray sent the agreed one contingency 000 third 2 fee to Jumonville who refused to share any portion of it with Cardenas because ttere had not been a trial 7umonville then filed a petition for concursus ar in the alternative for a claratory djudgment seeking resolution of the fee dispute Cardenas filed a reconventional demand Following a trial the court found that the parties had a valid and enforceable oral agreement and that Cardenas was entitled to 40 of the o c ntingency fee as agreed A judgment to this effect was signed December 13 2011 and Jumonville appeals that judgment to this court ASSIGNMENTS OF ERROR Jumonville assigns seven errors which are summarized as follows 1 There was no valid and enforceable contingency fee contract 2 Cardenas was not entitled to a contingency fee 3 Cardenas failed to carry his burden to prove an oral contract 4 Cardenas is limited to quantum merit 5 Alternatively Cardenas breached his oral contract for lack of services 6 Cardenas breached his oral contract by failing to disclose that a criminal matter and disciplinary matter were pending against him 7 All costs of litigation should not ha been assessed against e Jumonville LAW AND ANAYLSIS alid and Enforceable Oral Contract The trial court found that there was a valid and enforceable oral contract between Cardenas and Jumonville far attorney fees s It is well settled that an ppellate z court cannot set aside a trial court findings of fact in the absence of s raanifest error ar unless those findings are clearly wrong Rosell u ESCO 549 So d 840 844 La 1989 Boyd v Boyd 10 La App 1 Cir 257 So 3d 1369 11 11 169 1174 In order to reverse a fact finder determination of fact an appellate s 3 cc urt must find from the record that a reasonable factual basis does not exist for the iding fi and that the record establishes that the finding is clearly wrong Stobart u te St through Dept of Transp and Development 617 So 2d 880 882 La 1993 Denton u Vdrine 06 La App 1 Cir 12 951 So 2d 274 287 writ 0141 06 28 denied 07 La 5 957 So 2d 152 0172 07 18 After hearing all of the testimony and observing the demeanor of the witnesses the trial court recognized the conflict in the testimony concerning the terms of the division of fees between Jumonville and Cardenas The trial court c early believed the testimony of Cardenas and his witnesses Even though an pellate a court may feel its own evaluations and inferences are more reasonable ttian the fact finder reasonable evaluations of credibility and reasonable s iriferences of fact should not be disturbed upon review where conflict exists in the testimony Rosell 549 So 2d at 844 The testimony at trial was that Jumonville sought out Cardenas to be a trial attorney in the federal court case since she had been disqualified to act as trial counsel After speaking to Cardenas on the phone Jumonville and Cardenas met l i his office where she delivered several big boxes of files to him Jumonville and Cardenas discussed the representation to be provided by Cardenas and the terms of tie fee sharing The evidence presented at trial was that Cardenas paralegal was s c alled into the room where Cardenas dictated a letter to her in front ofJumonville evidencing the terms of the agreement The letter dated April 4 2006 confirmed ne splitting tfee arrangement between the parties for the underlying litigation The tter l stated As we agreed you Jumonville will receive 60 of any attorney s fee recovered in either case and I will collect 40 of any attorney fee recovered s in either case The letter was hand delivered to Jumonville immediately while she was still in Cardenas office Jumonville claims that the letter was given to her in s n envelope and that she did not read it until she returned to her office Cardenas s 4 iralegal p testified that Jumonville read the letter and discussed it with Cardenas while in his office Jumonville claims that Cardenas did not satisfy his burden of proof as to an al o contract Louisiana Civil Code article 1846 states that an oral contract over 00 must be proved by at least one witness and otner corroborating rcumstances c In Peter Vicari General Contractor Inc v St PierNe 02 La 250 pp A 5 Cir 10 831 So 2d 296 301 the fifth circuit states 02 16 Under La GC art 1846 one witness and other corroborating circumstances must prove an oral contract for a price in excess of 500 Only general corroboration is required Gulf Container Repair Services Inc v FIC Business Financial Centers Inc 98 at p ll44 La 6 App Sth Cir 3 735 So 2d 41 43 It is not necessary 99 10 that plaintiff offer independent proof of every detail Id The manifest error standard of review applies to a factual finding by the trier of fact in this regard and will not be overturned unless it is clearly wrong Gulf Container Repair Services Inc 98 at p 6 735 So 2d at 1144 43 To meet the burden of proof of an oral contract by a witness and other corroborating circumstances a party may serve as his own witness and the other corroborating circumstances may be general and need not prove every detail of es fplaintiff case Pennington Const Inc u R A Eagle Corp 94 La App 0575 1 Cir 3 652 So 2d 637 639 However the corroborating circumstances that 95 z re required must come from a source other than the plaintif Id Cardenas offered not only his own testimony but also that of his paralegal nd the written document confirming the oral contingency fee contract Jumonville admitted that it was only after the settlement of the case that she contested the validity of the aral contract Jumonville claimed that she only agreed to sharing the fee with Cardenas if he tried the federal case Since the federal case ettled at the mediation Jumonville claimed that Cardenas was owed nothing even though he was enrolled as lead trial counsel from April 5 2006 until the approval of the settlement by the bankruptcy court on November 5 2010 5 We agree with the trial court that Cardenas carried his burden of proving an oral contract existed Jumonville argues that the April 4 2006 letter is deficient since it does not set forth any consideration Jumonville claims that her agreement with Cardenas was the same as oral agreements she had made with two previous attomeys to act as trial counsel in the federal case However Jumonville offered n evidence of what those agreements were other than her own testimony with no currobaration Therefore she failed to prove what those oral contracts were cording ato La C art 1846 or that Cardenas was aware of those oral contracts azd made the same agreement Given the fact that this court concludes that a valid oral contract between Jumonville and Cardenas was evidenced by the Apri14 2006 tter s le Jumonville argument as to the deficiencies of the letter is without merit he T trial court did not hold that the April 4 2006 letter was a written contract only tliat it was evidence of an oral agreement Based on our review of the record before us and mindful of the great deference we must afford the trier of fact we nd fno manifest error in the trial court judgment that a valid and enforceable oral s contract existed between Jumonville and Cardenas Jumonville also argues that Cardenas did not have a valid contract because re did not comply with the Federal Bankruptcy Code 11 U C S a 327 which requires court approval to represent a United States Bankruptcy Trustee However a review of the relevant law including 11 C S U a 327 Federal Rules of Fiankruptcy Procedure Rule 2014 Employment of Professional Persons and U S f3ankruptcy Court Middle District of Louisiana Local Rule 2014 1Employment of Professionals reveals that it is the trustee who must file an application to e mploy an attorney such as Cardenas not the attorney to be employed urthermore Fthe procedural rules of bankruptcy court have no bearing on the alidity of a contract between two Louisiana attorneys contracting to split a contingency fee 6 A bankruptcy court must abstain from hearing state law claims which are core non proceedings that is claims that are related to the bankruptcy but do not ise a under the D E La bankruptcy 2013 2013 See Sewell WL u MDM Services Corp Supp F While the contract dispute between 2100526 Jumonville and Cardenas is related to the bankruptcy action the dispute does not ise a under the bankruptcy action The ba court did not pay Cardenas but nkruptcy Trustee Murray assumed Cardenas would be paid from the check issued to J unonville since he knew Cardenas was co Trustee Murray testified that counsel ie t bankruptcy court had no jurisdiction over the contractual dispute between J zmonville and Cardenas In the matter before this court Cardenas sought his share of the fee from Jumonville with whom he directly contracted The oral contract entered into between Jumonville and Cardenas was valid even though the bankruptcy court never approved Cardenas to represent Trustee Murray The bankruptcy court paid cnly Jumonville The issue before this court is the agreement between Jumonville and Cardenas not the validity of the contingency fee agreement between Trustee TRurray and Jumonville Therefore the procedural rules of bankruptcy court have ro bearing on the contractual issue before this court Itreach of Contract and Rules of Professional Conduct Rule 1 5 7umonville claims that the contract between her and Cardenas is invalid and iolates Louisiana State Bar article 16 Louisiana Rules of Professional Conduct ule 5 F 1 which provides e A division of fee between lawyers who are not in the same firm may be made only if 1 the client agrees in writing to the representation by all of the lawyers involved and is advised in writing as to the share of the fee that each lawyer will receive 2 the total fee is reasonable and 7 3 each lawyer renders meaningful legal services for the client in the matter Jumonville claims that there is no written contract between Cardenas and the ient c Trustee Murray that Cardenas did not advise the client in writing as to the fee sharing that the fee Cardenas seeks is unreasonable and that there is no e vidence of any meaningful legal services provided by Cardenas Prior to March 1 2004 Ru1e 1S stated e A division of fee between lawyers who are not in the same firm may be made only if The 1 division is in proportion to the services performed by each lawyer or by written agreement with the client each lawyer assumes joint responsibilities for the representation The 2 client is advised of and does not object to the participation of all the lawyers involved and 3 The total fee is reasonable ox F u HeisleN 03 La App 4 Cir 5 874 So 2d 932 writ denied 04 1964 04 12 1748 La 10 885 So 2d 588 was based on the law in effect prior to the 04 29 amendment to Rule 1 in 2004 5 In Fox plaintiff an attorney left defendant s employment and both parties orally agreed to split an attorney fee in a large case on a 50 basis Once the fee was paid in its entirety the defendant refused to honor the 50 agreement The court noted that the matter was neither a suit for covery r of attorney fees nor a suit over the terms of the settlement agreement s I at 938 The plaintiff argued that the oral agreement to share in the fee was unenfarceable and against public policy because the agreement did not comply with Rule 1 The court in Fox relied upon Scurto u Siegrist 598 So 2d 507 La 5 pp lst Cir writ denied 600 So 2d 683 La 1992 in which the court stated tliat the suit by an attomey to recover pursuant to that agreement is a suit to cover far r breach of the agreement to share in the fund resulting from payment of tlie fee It is not a suit for recovery of attorney fees Id at 510 The court in s 8 x F agreed with Scurto that when two attomeys not of the same firm jointly represent a client the Rules of Professional Conduct do not prohibit the iforcement e of an agreement between the attorneys and do not require an apportionment of the fee on a quantum meruit basis Fox 874 So 2d at 938 See aso Barham Arceneaux u Kozak 02 La App 1 Cir 3874 So 2d 2325 04 12 2 Z8 237 writ denied 04 La 6 876 So 2d 87 The court in Fox held 0930 04 04 iat t under the circumstances the oral contract to share fees was valid and should b enforced as agreed upon This court finds that the circumstances before it are similar to those of Fox I his is neither a suit far recovery of attarney sfees nor a suit over the terms of the ttlement s agreement Even though Rule 1 was amended in 2004 to require the 5 client to agree in writing to an attorney fee agreement between attorneys sharing not of the same firm the Rules of Professional Conduct do not regulate or prohibit tlle enforcement of an agreement between attorneys This is a suit for a breach of t ie agreement Therefore this court agrees that the oral contract between Jumonville and Cardenas is valid and enforceable ireach of A and Joint Involvement in Case reement Alternatively Jumonville claims Cardenas breached his agreement with her by not being jointly involved in the underlying litigation Therefore she claims at the is only entitled to quantum meruit based on meaningful services rendered Generally when more than one attorney from different law firms assist each other in a contingency fee case a joint venture is formed and the attorneys divide the fee equally Scurto 598 So 2d at 510 McCann u Todd 203 La 631 14 So 2d 469 1943 If the attorneys have entered into an agreement as to how the fee will be divided that agreement governs the division of fees unless there was a breach of that agreement due to a party failure to fulfill his obligations in representing the s c lient Barham 874 So 2d at 23 When professional contracts between attomeys 7 9 who agree to share legal fees are at issue Louisiana courts have generally refrained m fr examining them to determine whether one attorney performed more work than the other Id at 236 In the present case the parties did have a valid oral reement a In addition the parties were in relatively the same position to bargain trroughout the representation that is both parties were professionally trained in reements a communication and the articulation of intent There was ample time aiid opportunity to alter modify explain ar supplement the original oral contract a to the fee agreement but neither party felt it necessary to do so Both attorneys w ere retained through the settlement of the underlying litigation Jumonville relies on numerous cases that are distinguishable from the esent p situation such as Dukes u Matheny 02 La App 1 Cir 2878 0652 04 23 So 2d 517 520 writ denied 04 La 11 885 So 2d 1182 which 21 1920 04 8 ted n that courts decline to apply the joint venture theory to support an equal division of the fee when the attorneys have not been jointly involved in the representation of the client In Dukes the two attorneys entered into a 50 referral agreement This court held that the law does not allow for recovering a fee for the referral of a legal matter from one attorney to another Id at 52L The referring attorney must participate in the representation of the client The Id present situation does not involve a referral situation Instead it involves a valid ald enforceable oral contract for two attomeys to jointly represent one client The record evidences that Cardenas did participate in representing Trustee Murray Therefore Dukes is not applicable Jumonville also relies on Sewell u Hanover Ins Co 517 So 2d 413 La pp A lst Cir 1987 writ denied 519 So 2d 147 La 1988 which involved one c ient hiring successive attorneys after terminating two different attorneys The court then had to determine how to divide the contingency fee and did so based on q zantum meruit The present case does not involve successive attorneys but two 10 attorneys representing the same client at the same time until the conclusion of the case As the court in Scurto held an attorney who agrees to share a fee with another who is actively and continually involved in the case is entitled to the fee split agreed upon by the two attorneys Scurtq 598 So 2d at 510 Jumonville argues that Cardenas breached the agreement because he did not provide any meaningful legal services However the record reveals that Cardenas rlet with Jumonville and obtained some files his paralegal spoke to Jumonville several times he filed two motions to enroll as counsel had a telephone conference with the Federal magistrate attended a chambers status conference with the Federal rnagistrate attended the deposition of Jumonville and the mediation where the parties reached a settlement and was copied on numerous correspondence between the various litigants from his enrollment through the conclusion of the underlying litigation Furthermare the agreement between Jumonville and Cardenas was one between two professionals and this court will not in this instance assume the position of dictating to attorneys exactly how much work they need to perform to Emtitle them to a certain fee See Scurto 598 Sa 2d at 510 There is no evidence that Cardenas refused to give assistance to Jumonville ee Murray u Harang 12 La App 4 Cir 11 104 So 3d 694 698 0384 12 28 here is no evidence of any specific duties for each attorney to perform It is not this court duty to weigh each attorney contribution to the handling of the case s s d at 699 T Courts cannot and must not assume the role of telling attorneys he at tl they must work X amount of hours take X amount of depositions read X amount of cases etc before they are entitled to a certain fee Defrancesch u Hardin 510 So 2d 42 46 La App lst Cir writ denied 513 So 2d 819 La 987 Jumonville also claims that Scurto is distinguishable because it was decided before the Rules of Professional Conduct were in effect on January 1 1987 As 11 stated above the Rules of Professional Conduct do not prohibit a claim for breach ofcontract between two attorneys Fox was decided after the Rules of Professional Conduct became effective The Fox court determined that the Rules of Professional Conduct do not prohibit such a claim Even though Fox was decided priar to the 2004 amendment to Rule 1 requiring a client consent in writing to an 5 attorney fee agreement the previous law also placed certain restrictions on sharing atCorney fee agreements However Fox held that Rule 1 did not prohibit sharing 5 an agreement among attorneys from being enforced even if the agreement did not comport with Rule 1 Jumonville offers no cases which require Rule 1S to 5 rohibit enforcing an agreement between attomeys even after the amendment in 2 004 reach F of Fiduciarv Duty Jumonville claims Cardenas breached his fiduciary duty to his client and breached his oral contract with her by failing to notify Jumonville or the Trustee Iurray P that he had been arrested for domestic abuse Jumonville offers no legal reasoning as to how a breach of fiduciary duty to the client affected the agreement between her and Cardenas ar that she has standing to assert a claim on behalf of the client Therefore we address only the argument that Cardenas breached a fiduciary duty to Jumonville co in this matter counsel A fiduciary relationship as Y been described as one that exists when confidence is reposed on one side and there is resulting superiority and influence on the other Plaquemines Parish Commission Council v Delta Development Company Inc 502 So 1034 1040 2d La 1987 superceded by statute on other grounds Ienkins v StaNns 11 1170 La 1 85 So 3d 612 One is said to act in a fiduciary capacity when the 12 24 business which he transacts ar the money or property which he handles is not his own or for his own benefit but for the benefit of another person as to whom he stands in a relation implying and necessitating great confidence and trust on the 12 ie o part and a high degree of good faith on the other Scheffler v Adams ese R LLP 06 La 2950 So 2d 641 647 citing State v Hagerty 1774 07 22 251 La 477 492 205 So 2d 369 374 1967 In the instant case there was no special fiduciary relationship between Jizmonville and Cardenas as co The Louisiana Supreme Court held in counseL heffler S that there is no cause of action between co based on a theory that counsel counsel co have a fiduciary duty to one another to protect each other interests in s a fee Id at 652 In Scheffler the Louisiana Supreme Court considered whether a fiduciary obligation was owed between co who were not in an counsel adversarial position and the court reaffirmed its decision in Penalber u Blount 550 So 2d 577 581 La 1989 that the attorney sparamount duty is to the client e W conclude that it is fizndamental to the attorney relationship client that an attorney have an undivided loyalty to his or her client This duty should not be diluted by a fiduciary duty owed to some other person such as co to protect that person interest in a counsel s prospective fee heffler 950 So at 652 emphasis added 2d Jumonville presents absolutely no evidence that the outcome of the Lnderlying litigation would have been any different had Cardenas divulged his c omestic abuse arrest The Louisiana Supreme Court did not temporarily suspend Cardenas from the practice of law until June 24 2011 after the underlying litigation was settled and dismissed Although 7umonville claims that she would ave Y immediately removed Cardenas as trial counsel had she known about his recommendation for suspension by the Louisiana Disciplinary Board two days before the mediation she presented no evidence that the underlying litigation vould have been mediated ar settled mare advantageously for the client without spresence and involvement Jumonville has not presented any evidence Cardenas that she was damaged in any manner Therefare there can be no recovery far the 1leged breach of fiduciary duty 13 C osts Jumonville assigns as error the fact that the trial court judgment signed s December 13 2011 incorrectly cast her with all costs She claims that the costs should be proportionately divided and that the trial court erred in casting her with all costs since the trial court previously cast Cardenas with all costs of several exceptions that he filed he T party cast in judgment is generally taxed with costs however pursuant to Louisiana Code of Civil Procedure article 1920 the trial court has discretion to sess a costs of a suit in any equitable manner On appellate review only a showing of an abuse of discretion warrants a reversal of the trial court cost allocation s ozak Is 847 So 2d at 246 We find no abuse of discretion in this case The trial court found that Cardenas was liable for the costs of his exceptions The judgment cf December 13 2011 did not address or alter the judgment of June 26 2011 assessing costs to Cardenas for the exceptions All costs after the judgment of June 26 2011 are assessed against Jumonville pursuant to the December 13 2011 j zdgment We note that there is a discrepancy in the judgment between the written zmount and the numerical amount shown as the attorney fee paid in the s bankruptcy matter The written amount shows Eighty Thousand Three Eight Hundred Thirty and 33 Dollars whereas the numerical amount Three 100ths hown is 83 The agreement between Jumonville and Trustee Murray was 33333 that she would receive a contingency fee of one of the settlement amount third he record reveals that the settlement amount paid to Trustee Murray was 000 third S250 one of which is Eighty Thousand Three Hundred Thirty Three Chree and 33 Dollars 83 Therefore the correct figure as shown in 100 33 333 the judgment is 83 33333 14 CONCLUSION Far the foregoing reasons and considering this court observation of the s correct amount of the judgment we affirm the judgment of the trial court Costs of ie t appeal are assessed to appellant Jan P Jumonville AFFIRMED 15
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