Spires v. American Bus Lines

California Court of Appeal Jul 11, 1984 No. A014979Published

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Holding. The court held that an attorney is entitled to a pro rata share of a contingent fee based on quantum meruit for services rendered, even in the absence of a formal retainer agreement or status as attorney of record.

Issues

Whether an attorney must prove a formal retainer agreement to recover a share of a contingent fee in quantum meruit.
Whether a pro rata distribution of a contingent fee among discharged and existing counsel is the appropriate application of the Fracasse rule when the fee is insufficient to satisfy all claims.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“We agree with appellant that where, as here, the contingent fee is insufficient to meet the quantum meruit claims of both discharged and existing counsel, the proper application of the Fracasse rule is to use an appropriate pro rata formula”

“We conclude that the trial court erred in ruling that Andersen’s failure to prove a retainer agreement defeated his claim to a pro rata share of the contingent fee.”

[214]

Opinion

NEWSOM, J.

The instant appeal is from an order awarding attorney fees in a personal injury action and the denial of a motion to reconsider that order. During the course of litigation, appellant used numerous attorneys, three of whom now claim they are entitled to fees from the recovery. In relevant part the factual background is as follows.

Appellant was injured in an automobile accident on February 4, 1976. A complaint for personal injuries was filed on her behalf on May 20, 1976, by her original attorney of record, H. Greig Fowler. On April 27, 1977, appellant discharged Mr. Fowler and sought substitute counsel.

Appellant next retained respondent Trevor Roberts as counsel in April of 1977. But by February 1978, she had discharged Mr. Roberts in favor of the law firm of Axelrod, Blum and Lerch.

On March 19, 1979, appellant substituted respondent Allan M. Schuman as her attorney. Mr. Schuman represented appellant in her personal injury action until October 1980, pursuant to a 40 percent contingent fee agreement. At appellant’s request, Mr. Schuman requested and was granted permission to withdraw as attorney of record on October 27, 1980. He thereafter filed an attorney’s lien in the amount of $3,128.29, based upon time expended at an agreed hourly rate of $60.

Before his discharge, Mr. Schuman had received a settlement offer in the amount of $3,500 which was rejected.

The record does not indicate whether immediately after discharging Mr. Schuman appellant retained yet another attorney; but beginning in April of 1981, Benjamin Andersen apparently began counseling appellant at her request. No evidence of an employment contract or other attorney-client agreement between Andersen and appellant was introduced, however; nor does the record show Mr. Andersen’s formal appearance in the case.

In any event, Andersen conferred with appellant, reviewed her file, and determined that, for various reasons, she would be well advised to settle, rather than try, the case. After confirming that a settlement offer was still open, Andersen convinced appellant to accept it. With the five-year dismissal period (Code Civ. Proc., § 583, subd. (b)) fast approaching, a conference was hastily called to work out the details of settlement.

Spires v. American Bus Lines

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NEWSOM, J.

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