ILNews

COA: Attorney must wait to collect fees

Jennifer Nelson
January 1, 2008
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The Indiana Court of Appeals affirmed a trial court's ruling on when an attorney could receive his compensation under a contingency fee agreement, even though the attorney didn't submit a transcript of the bench trial detailing the trial court's findings.

In Thomas J. Herr v. Carter Lumber Inc., The Carter Jones Lumber Company, and Brian L. Oaks, No. 79A02-0803-CV-290, before ruling on the issue Thomas Herr was appealing - whether the trial court erred in ordering he receive compensation under a contingency fee agreement only after his former client, Carter Lumber, makes a recovery - the appellate court first had to determine whether the fact Herr didn't provide a transcript of the bench trial in his appeal warranted the court dismissing the appeal.

Relying on previous cases regarding this issue - Pabey v. Pastrick, 816 N.E.2d 1138, 1141-1142 (Ind. 2004) and In re Walker, 665 N.E.2d 586, 588 (Ind. 1996), the Court of Appeals ruled it would address the issue Herr raised.

Carter Lumber hired Herr to represent it in certain collection matters at the rate of $175 per hour plus reimbursement of any advanced costs, and other collection matters on the basis of a 25 percent contingent fee with the client to pay court costs.

At some point, Herr's representation was terminated and he filed a complaint against Carter Lumber seeking quantum meruit compensation, as measured by his normal fee of $185 per hour for all the work he did that hadn't been paid.

Because the contract between Herr and Carter Lumber didn't spell out what Herr's compensation would be in the event he was terminated, the trial court ruled the attorney would have to wait until funds are collected on behalf of the client to collect his fee.

Citing similar caselaw that dealt with a contingency fee agreement that didn't specify a termination clause, the appellate court determined Herr can't receive compensation for his attorney fees until Carter Lumber receives payment from collections.
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  1. Im very happy for you, getting ready to go down that dirt road myself, and im praying for the same outcome, because it IS sometimes in the childs best interest to have visitation with grandparents. Thanks for sharing, needed to hear some positive posts for once.

  2. Been there 4 months with 1 paycheck what can i do

  3. our hoa has not communicated any thing that takes place in their "executive meetings" not executive session. They make decisions in these meetings, do not have an agenda, do not notify association memebers and do not keep general meetings minutes. They do not communicate info of any kind to the member, except annual meeting, nobody attends or votes because they think the board is self serving. They keep a deposit fee from club house rental for inspection after someone uses it, there is no inspection I know becausee I rented it, they did not disclose to members that board memebers would be keeping this money, I know it is only 10 dollars but still it is not their money, they hire from within the board for paid positions, no advertising and no request for bids from anyone else, I atteended last annual meeting, went into executive session to elect officers in that session the president brought up the motion to give the secretary a raise of course they all agreed they hired her in, then the minutes stated that a diffeerent board member motioned to give this raise. This board is very clickish and has done things anyway they pleased for over 5 years, what recourse to members have to make changes in the boards conduct

  4. Where may I find an attorney working Pro Bono? Many issues with divorce, my Disability, distribution of IRA's, property, money's and pressured into agreement by my attorney. Leaving me far less than 5% of all after 15 years of marriage. No money to appeal, disabled living on disability income. Attorney's decision brought forward to judge, no evidence ever to finalize divorce. Just 2 weeks ago. Please help.

  5. For the record no one could answer the equal protection / substantive due process challenge I issued in the first post below. The lawless and accountable only to power bureaucrats never did either. All who interface with the Indiana law examiners or JLAP be warned.

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