United States District Court, E.D. Louisiana
GWENDOLYN PIERRE, ET AL.
T&K EXPRESS, INC., ET AL.
ANN VIAL LEMMON JUDGE.
REPORT AND RECOMMENDATION
VAN MEERVELD UNITED STATES MAGISTRATE JUDGE.
the Court is the Motion to Enforce Priority Lien for
Attorneys' Fees and Costs filed by intervenors Robert
Evans, III, Evans Law, APLC, Joshua Allison, and Joshua D.
Allison Law, APLC (“Evans and Allison”). (Rec.
Doc. 142). The District Judge referred the motion to the
undersigned for issuance of a report and recommendation.
and Allison seek a court order recognizing a priority lien in
certain settlement funds for each of their attorney's
fees and costs incurred in representing the plaintiffs in the
main demand. They say that pursuant to La. Rev. Stat.
§ 9:4752, they are entitled to a lien in the settlement
funds to be received by the plaintiffs. Under that statute,
the attorney's privilege in any judgment or settlement
funds recovered by an injured person has precedence over the
privilege that health care providers have in those funds. La.
Rev. Stat. § 9:4752. An attorney with a written contract
affording him an interest in his client's claim has a
first rank privilege “to the extent of his earned fee
on any recovery obtained by settlement.” Calk v.
Highland Const. & Mfg., 376 So.2d 495, 499 (La.
1979); see La. Rev. Stat. § 37:218(A). Evans
and Allison say that Josh Koch, attorney for plaintiffs
Gwendolyn Pierre, Felicia Pierre, and Percy Ross (“GFP
Plaintiffs”) “has expressed his intent to
disburse money for his clients prior to honoring the
Plaintiffs oppose, insisting that their counsel “has
stated and informed the Court and all counsel in writing that
no settlement funds would be disbursed without the consent of
all parties or by Order of the Court.” They say that,
at most, pursuant to the respective fee agreements with Evans
and Allison, each is entitled to a maximum fee of 40%. Thus,
they insist, to the extent Evans and Allison impede
disbursement of the remaining 60%, the GFP Plaintiffs reserve
their right to recover any additional damages they suffer as
a result. They add that pursuant to the fee agreements, if
the firm is discharged, it has a lien only in “quantum
meruit” for its services.
settlement funds to which Evans and Allison refer are owed by
defendants T&K Express, Inc., Melvin Ruch, and Employers
Mutual Casualty Company (“Defendants”) pursuant
to a settlement agreement that was enforced by this Court on
March 19, 2018. Defendants stood ready to deliver the funds
to the plaintiffs, but a dispute arose regarding the terms of
the Release and Indemnity Agreement to be signed. For a
detailed discussion of the background of that dispute, see
the Report and Recommendation issued on October 9, 2018.
(Rec. Doc. 150). That Report and Recommendation has now been
adopted, and the court has ordered the Defendants to place
the settlement funds in the registry of the court.
and Allison have requested that this court enforce their lien
on the settlement funds. The court finds that it is premature
to enforce that lien. The quantum of attorneys' fees to
which Evans and Allison have a claim remains in dispute.
Given the multiple attorneys that were involved in
representing the plaintiffs, the possibility that discharge
of the plaintiffs' attorneys may result in entitlement to
fees in quantum meruit, and the legal malpractice
counterclaim asserted by the GFP Plaintiffs, the fee
agreements alone are insufficient to establish what portion
of the settlement funds, if any, Evans and Allison have a
claim in. Moreover, now that the settlement funds will be
deposited in the registry of the Court, Evans and Allision
need not fear that the funds will be distributed without due
consideration of their rights.
foregoing reasons, the undersigned recommends that the Motion
to Enforce Priority Lien for Attorneys' Fees and Costs
(Rec. Doc. 142) be DENIED as premature.
OF RIGHT TO OBJECT
party's failure to file written objections to the
proposed findings, conclusions and recommendations in a
magistrate judge's report and recommendation within
fourteen (14) calendar days after being served with a copy
shall bar that party, except upon grounds of plain error,
from attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court, provided that the party has been served with notice
that such consequences will result from a failure to object.
Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1430 (5thCir. 1996) (en banc).
 Evans and Allison, as well as another
former attorney of the plaintiffs, Bradley Egenberg of the
law firm Egenberg, APLC, have all filed Complaints in
Intervention seeking attorneys' fees and costs from the
plaintiffs. Plaintiffs Gwendolyn Pierre, Felicia Pierre, and
Percy Ross have filed ...