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Anwyl, Scoffield & Stepp v. Regina L. Blackhurst

March 25, 2011


Super. Ct. No. 06AS02759

The opinion of the court was delivered by: Raye, P.J.

Anwyl, Scoffield & Stepp v. Blackhurst CA3


California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In this attorney fee dispute, a client, Regina L. Blackhurst, asserts the judgment compelling her to pay the 40 percent contingency fee she agreed to pay plaintiff Anwyl, Scoffield & Stepp, LLP, constitutes a miscarriage of justice because the trial court did not award her the pro rata fees an Anwyl associate accrued on the case after leaving the firm. We conclude there was no miscarriage of justice in awarding plaintiff the fees for legal services it provided before Blackhurst discharged the firm since the associate waived any right to those fees and the contingency fee was less than the reasonable value of plaintiff's services rendered before the associate quit and took its client. We affirm.


In its thorough 26-page statement of decision, the trial court attributed most of the blame to Elisa W. Ungerman, plaintiff's associate, for the misunderstandings that gave rise to this lawsuit. Her role is central to an understanding of the issues on appeal despite the fact she is not a party to this appeal and she makes no claim for fees for the Blackhurst matter. In the absence of a reporter's transcript, we cannot inquire into the sufficiency of the evidence as it is conclusively presumed to support the judgment and we must treat the appeal as a judgment roll appeal. (Estate of Fain (1999) 75 Cal.App.4th 973, 992; Waller v. TJD, Inc. (1993) 12 Cal.App.4th 830, 832; Williams v. Inglewood Board of Realtors, Inc. (1963) 219 Cal.App.2d 479, 481-482.)

Plaintiff hired Ungerman to work primarily on various insurance defense matters. There were, however, two or three matters Ungerman was handling on behalf of the firm on a contingency fee basis. Plaintiff paid Ungerman a full salary; various bonuses were available based on company policy. Plaintiff's employee handbook set forth the bonus policies and the relationship the firm had with each of its associates. Ungerman had no other oral or written agreement with the firm regarding fees or bonuses.

In the summer of 2004 a jury returned a multimillion dollar verdict in one of the contingency matters (the Wrysinski matter) Ungerman handled while working for plaintiff. Regina and David Blackhurst read an article about the verdict and wished to retain Ungerman to take over a pregnancy discrimination lawsuit they were prosecuting in propria persona against Trinity Church (Trinity). They did not understand her relationship to plaintiff. On July 26, 2004, they signed a contingency fee contract whereby plaintiff was entitled to 40 percent of the net proceeds of the litigation or settlement of their employment claim. While still working for the firm, Ungerman billed 309 hours on the Blackhurst case.

Shortly after the verdict was returned in Wrysinski, Ungerman approached plaintiff to discuss how much of the attorney fee award in the Wrysinski matter she would be receiving. She believed, although she had not communicated her belief to plaintiff, that she was engaged in a joint venture with her firm. The negotiations collapsed, and within a few days Ungerman resigned.

Ungerman told plaintiff that the Blackhursts had decided to leave with her, and she told the Blackhursts plaintiff was not interested in retaining the case. Plaintiff, believing that it would be unethical to contact a client represented by another attorney, did not call or correspond with the Blackhursts. It did, however, offer continuing assistance to Ungerman on the case until she was able to establish her own practice and work on the case exclusively. Plaintiff never voluntarily withdrew or abandoned the Blackhursts. Having not heard from plaintiff, however, the Blackhursts felt plaintiff had abandoned them.

The Blackhursts signed a second contingency fee agreement with Ungerman. It was identical to the first, except it listed Ungerman as the sole attorney. Both contingency fee agreements provide for the creation of an attorney lien in the event of nonpayment of legal services. After leaving the firm, Ungerman billed more than 200 hours on the case.

Blackhurst settled the case with Trinity for $230,000. Ungerman recommended to the Blackhursts to have two drafts issued, one for $105,000 and a second for $125,000, for attorney fees by convincing them that the second draft would cover any costs and legal fees, and the remainder would be paid to them. Ungerman believed she was entitled to more than the 40 percent and persuaded Blackhurst, the mediator, and Trinity to identify more than the acknowledged $10,000 in costs and $88,081.24 in contingent legal fees to be put in a blocked account.

Ungerman also advised the Blackhursts not to disclose the terms of the second contingency fee to plaintiff. Plaintiff was attempting to determine whether Ungerman had "a lien equivalent to 40 percent on the proceeds of the settlement, and whether said lien was in addition to, or the same as, the lien under the first contract; and whether there were additional terms that might affect a quantum meruit split of any attorney fees, so that an expeditious settlement of the contingency fee payment could be resolved more amicably." Stonewalled, plaintiff attempted to assure the Blackhursts that only 40 percent of the net settlement proceeds plus costs needed to be ...

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