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Gillio v. Hanover American Insurance Co.

Court of Appeals of Louisiana, First Circuit

January 31, 2017

LAURENCE F. GILLIO
v.
THE HANOVER AMERICAN INSURANCE COMPANY, GRANITE STATE INSURANCE CO., CHAMPAGNE BEVERAGE CO., CHAMPAGNE BEVERAGE CO. INC., STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., AND KRIS A. SAGONA

         On Appeal from the 22nd Judicial District Court, Parish of St. Tammany, State of Louisiana Trial Court No. 2010-12723 The Honorable Raymond S. Childress, Judge Presiding

          Darla L. D' Amico Slidell, Louisiana In Proper Person

          G. Brice Jones Paul D. Hesse Slidell, Louisiana Attorneys for Appellee, Jones Lagarde, LLC

          Carole G. Gillio Slidell, Louisiana Attorney for Appellee, Gillio Law Firm, APLC

          Ellen C. Badeaux Covington, Louisiana Attorney for Appellees, Frank J. D' Amico Sr. and Frank J. D' Amico, APLC

          BEFORE: WELCH, CRAIN, AND HOLDRIDGE, JJ.

          CRAIN, J.

         Darla L. D'Amico appeals a judgment from a concursus proceeding, which divided an attorney fee earned in connection with the settlement of an underlying personal injury suit. We affirm.

         FACTS

         Laurence Gillio sustained serious personal injuries in a motor vehicle accident on April 24, 2009. He retained his wife, Carole Gillio, and the Gillio Law Firm, APLC, on a contingency fee basis to represent him in his suit for damages. Soon after suit was filed, Laurence entered a contingency fee contract with additional counsel Darla D'Amico, Frank D'Amico, [1] and Frank J. D'Amico, A Professional Law Corporation. In 2012, Laurence terminated the services of the D'Amicos and retained attorneys G. Brice Jones, Ross F. Lagarde, and Paul D. Hesse, of the Jones Lagarde, LLC law firm on a contingency fee basis. Carole, Darla, Frank, and the D'Amico law firm intervened in the personal injury proceedings to recover their respective shares of any attorney fees.

         The personal injury suit was settled for $1, 900, 000 and the settlement funds were deposited into the registry of the court. Jones Lagarde filed a concursus petition to obtain a division of the attorney fee. After a trial, the trial court enforced Carole's original 40% contingency fee contract, awarded a total attorney fee of $760, 000, and found that Darla was terminated for cause. The trial court then awarded Jones Lagarde $633, 270, plus stipulated expenses, reflecting a 33 1/3% fee based on the Jones Lagarde contingency contract. The remaining attorney fee of $126, 730 was divided between Carole and the D'Amico firm, with 60% being awarded to Carole and 40% to the D'Amico firm. Carole's award totaled $76, 038, plus stipulated expenses. The D'Amico firm's $50, 692 share was divided evenly between Darla and Frank.

         Darla appeals, contending that the trial court erred in finding that she was discharged for cause and abused its discretion in awarding her a $25, 346 attorney fee. She also challenges the award to Frank, arguing that he is entitled to nothing. Finally, she contends that the trial court erred in failing to award her stipulated expenses.[2]

         DISCUSSION [3]

         A client has an absolute right to discharge his attorney at any time, with or without cause, subject to liability for payment of a reasonable attorney fee. See In re Jones, 02-3131 (La. 10/21/03), 859 So.2d 666, 670; Succession of Wallace, 574 So.2d 348, 351-52 (La. 1991); Francis v. Hotard, 00-0302 (La.App. 1 Cir. 3/30/01), 798 So.2d 982, 985. A client who retains successive attorneys pursuant to contingency fee contracts owes only one contingency fee, determined according to the highest ethical percentage agreed to by the client in any of the contingency fee contracts executed, which is then allocated among the various attorneys. Saucier v. Hayes Dairy Products, Inc., 373 So.2d 102, 118 (La. 1978) (on rehearing). Factors to guide the allocation of fees between discharged and subsequent attorneys are set forth in Rule 1.5 of the Code of Professional Responsibility as follows:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other ...

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