Attorney not entitled to prejudgment interest

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A southern Indiana lawyer who entered into an agreement with another attorney to handle some of his cases due to his suspension from practice is not entitled to prejudgment interest on his portion of a client fee, the Indiana Court of Appeals held.

J. Michael Kummerer was arrested in 2007 and charged with possessing cocaine and aiding, inducing or causing dealing in cocaine. He was suspended for six-months by the Indiana Supreme Court Disciplinary Commission and entered into an agreement with C. Richard Marshall for Marshall to handle four of Kummerer’s contingency-fee cases.

Their agreement called for the attorneys to share equally in any fee recovered without a trial. At issue is a case that settled during mediation – the parties agreed to a compromise fee with the client of $275,000. Marshall paid himself a total of $137,500. After the settlement, Marshall tried to get Kummerer to change their agreement so that he would receive 90 percent and Kummerer would get just 10 percent. Marshall believed paying Kummerer the 50 percent would violate the proportionality provision of Rule 1.5 of the Rules of Professional Conduct. Marshall claimed that he had done most of the work on the case.

Kummerer sued Marshall, alleging he had been defrauded. Marshall claimed Kummerer misrepresented the amount of work he had completed on the case. Marshall moved to have the disputed money put in an account with the clerk’s office so it could earn interest, but Kummerer objected. Marshall left the funds in his IOLTA account.

The trial court found no fraud and that Kummerer’s work on the case justified the contract. The trial judge looked at Rule 1.5 and found that the equal fee split was a reasonable forecast of the work that each attorney would perform on the case. Kummerer was awarded $137,500, but no prejudgment interest. He then filed a motion to correct errors, claiming the trial court needed to make special findings regarding whether the contract damages were determined by simple mathematical calculations when deciding to deny prejudgment interest. The trial court denied this motion.

The Court of Appeals affirmed because the trial court had to determine whether the two attorneys’ forecast of the amount of each work was reasonable. The judge had to consider the eight factors in Rule 1.5(a) to do so. That determination involved the court’s judgment in order to assess the damages, so prejudgment interest was not appropriate, Judge Nancy Vaidik wrote.

The appellate court also found that the trial court did make specific findings of fact that the fee division was reasonable under Rule 1.5 for the circumstances of this case. The trial court had to exercise its judgment in determining damages and the calculations of those damages were not merely a simple mathematical evaluation, she wrote.  



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  1. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  2. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.

  3. (A)ll (C)riminals (L)ove (U)s is up to their old, "If it's honorable and pro-American, we're against it," nonsense. I'm not a big Pence fan but at least he's showing his patriotism which is something the left won't do.

  4. While if true this auto dealer should be held liable, where was the BMV in all of this? How is it that the dealer was able to get "clean" titles to these vehicles in order to sell them to unsuspecting consumers?

  5. He has refused his Assent to Laws, the most wholesome and necessary for the public good. He has forbidden his Governors to pass Laws of immediate and pressing importance, He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance. He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: For imposing Taxes on us without our Consent: He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.. He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless [ ] Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions. GOD BLESS THE GOVERNORS RESISTING! Count on the gutless judiciary to tie our children down and facilitate the swords being drawn across their throats. Wake Up America ...