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Oral findings allowed in attorney fee case

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A Marion Superior Court didn't err when it failed to issue written findings and conclusions pursuant to Indiana Trial Rule 52 in a dispute over attorney fees, the Indiana Court of Appeals ruled. The appellate court also affirmed the trial court's award of fees based on quantum meruit rather than a contingency fee agreement with the client.
 
The Nunn Law Office had originally represented Joseph Carpenter in a personal injury action and had an agreement that Nunn would represent him for any of his claims arising out of the motorcycle accident for "40 percent of all amounts recovered or offered." An insurance company attempted to settle, but Carpenter rejected it. Nunn initiated a lawsuit on Carpenter's behalf, but two months later, Carpenter discharged the law firm and hired Peter H. Rosenthal to represent him. Carpenter settled his case for $42,500.

After learning of the settlement, Nunn moved to determine the proper division of attorney fees. The trial court orally calculated a judgment in favor of Nunn for $1,462.88 based upon quantum meruit for Nunn's work on the case.

Ruling on a motion for special findings of fact and conclusions of law filed by Nunn, the trial court entered a judgment for the same amount in favor of Nunn without entering written findings and conclusions.

The issues in Nunn Law Office v. Peter H. Rosenthal, No. 49A05-0809-CV-523, were whether the trial court erred as a matter of law by not issuing written findings and conclusions, and whether quantum meruit or the contingency agreement in Carpenter's contract with Nunn should determine the amount of attorney fees owed to Nunn.

An Indiana Supreme Court ruling suggested that the preferred format for findings and conclusions is in the written form, but the trial court's failure to issue written findings and conclusions doesn't constitute reversible error, wrote Judge Cale Bradford. The plain language of T.R. 52(A) doesn't require the findings and conclusions to be in writing and the purpose of the rule is to provide parties and reviewing courts with the theory upon which the trial judge decided the case.

The Court of Appeals concluded oral findings and conclusions can achieve this purpose as long as they are thoroughly detailed in the record. It also ruled the basis for the $1,462.88 judgment was apparent from the trial court's oral explanation in the record. In addition, any error in the trial court's failure to justify its use of quantum meruit as the proper measure for calculating the attorney fees was a harmless one given the appellate court's conclusion it was the only proper measure for fee determination in the instant case.

Carpenter's fee agreement with Nunn expressly provided for compensation upon discharge, but was silent regarding Nunn's compensation upon pre-contingency discharge. While the 40 percent provision arguably permits payment of fees based upon settlements offered, recovered or not, a latter "no recovery, no fee" provision expressly states to the contrary that fees are not payable unless a recovery is obtained, wrote Judge Bradford.

In the absence of an applicable contractual provision, an attorney employed under a contingent fee contract and discharged before the occurrence of the contingency is limited to quantum meruit recovery for the reasonable value of services rendered, wrote the judge.

Finally, the appellate court affirmed the amount of attorney fees to Nunn based on Nunn's relatively minimal investment of time in Carpenter's case and Rosenthal's success in getting a larger settlement.

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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

  5. Can we get full disclosure on lobbyist's payments to legislatures such as Mr Buck? AS long as there are idiots that are disrespectful of neighbors and intent on shooting fireworks every night, some kind of regulations are needed.

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