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HomeMy WebLinkAbout96-4020 civilELIZABETH A. LITTLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. 96-4020 CIVIL TERM WILLIAM J. LITTLE CIVIL ACTION - DIVORCE OPINION AND ORDER OF COURT HOFFER, P.J.: AND NOW, December 26, 2000, Constance P. Brunt, Esquire, is directed to pay out the $11,969.80 in her IOLTA account to Theresa Barrett Male, Esquire, in accordance with the opinion attached hereto, after the running of the appeal period. By the Court, ~ p.j. Elizabeth A. Little 4 Durham Street Georgetown, DE 19947 Constance P. Brunt, Esquire 2941 North Front Street Harrisburg, PA 17110 Robert H. Davis, Jr., Esquire 112 Walnut Street Harrisburg, PA 17101 ELIZABETH A. LITTLE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. 96-4020 CIVIL TERM WILLIAM J. LITTLE CIVIL ACTION - DIVORCE OPINION HOFFER, P.J.: FINDINGS OF FACT 1. On December 22, 1997, Plaintiff Elizabeth A. Little ("Little") retained Theresa Barrett Male, Esquire ("Male") to represent her in this divorce action. 2. On December 22, 1997, Little executed a written fee agreement. 3. The fee agreement, which is the operative document relating to this attorney's lien claim proceeding, provides in relevant part: I may ask you to execute a judgment note or lien upon property or the proceeds of equitable distribution in my favor to secure payment of fees and costs. You authorize me to accept any and all settlement proceeds and/or monies you may receive. Whether or not you receive any monies, you must pay all legal fees and costs incurred during my representation. I reserve the right to retain your file pending payment, and to retain all funds which I receive on your behalf, from any source, to guarantee payment of fees and costs. 4. From December 22, 1997, to July 29, 1998, Little paid Male $766.25 toward fees and costs. These payments were made in amounts, and at times convenient to, Little. Attorney Male knew at her hiring that Little did not have the funds to pay her fees and that, as reflected in her fee agreement, she would look primarily to marital assets she recovered for Little to pay her fee. 5. As of July 29, 1998, Little owed Male $11,531.00 for legal fees in the instant divorce action and $2,089 in the spousal support action docketed to Little v. Little, 720 Support 1996, PACSES Cf 374000033. 6. Little ratified the accuracy and the reasonableness of these fees during her sworn testimony at the Master's hearing on July 29, 1998. 7. On March 21, 1999, Plaintiff set Movant Male a check in the amount of $4,000 toward the outstanding balance in her account. 8. As of April 30, 1999, Little owed Male $12,062.80. 9. Pursuant to the terms of the fee agreement, interest accrued in Little's account at the rate of one percent (1%) per month. 10. The parties in this divorce action were married on June 27, 1992, and separated on June 9, 1996. 11. One of the marital assets subject to equitable distribution was the former marital residence. 12. Throughout the divorce action, Defendant William J. Little maintained that the value of the marital residence, which he acquired prior to the marriage, was limited to its increased value, in the amount of $2,100. 13. On Little's behalf, Male secured a finding by the master that all of the equity in the marital home was marital. 14. Additionally, on Little's behalf, Male secured a decision by the master that Little was entitled to 25% of the equity in the former marital residence located outside Pennsylvania. 15. On Little's behalf, Male secured a decision from the master that Little was entitled to 55% of the marital assets, plus indefinite alimony in the amount of $100 per week. 16. On Little's behalf, Male secured a decision from the master that, to effectuate the distribution of her share of marital funds to Little, Defendant husband pay Little $14,699.54 in cash, which amount was the direct proceeds of Husband's refinancing of the former marital residence. Attorney Male expected to receive those funds as counsel to Little and to apply them to the fees Little owed to her, which intention was understood by attorney Constance P. Brunt, counsel for Husband, Mr. Little. 17. By order dated April 19, 1999, the Honorable J. Wesley Oler, Jr. directed attorney Brunt to escrow $14,699.54 from Defendant's refinancing of the mortgage on the marital residence. This action of Judge Oler, the result of efforts by Little to repudiate a distribution of those funds to which she had previously agreed, placed the funds squarely within the control of this court. 18. Ms. Brunt continues to hold $11,969.80 in her IOLTA account awaiting this court's direction; those funds are the sole focus of the attorney's lien claim of attorney Male. 19. Little now owes Male in excess of $13,000.00, all of which amount Male has demonstrated to be fees, costs or other claims for reimbursements directly related to her representation of Little under their December 22, 1997 agreement. This amount of claimed attorney lien is supported by billing reports that were distributed periodically to Little by Male without contemporaneous objection by Little. Despite ample opportunity to do so, Little was unable to illustrate that there was any inaccuracy or charge of improper fees or costs in the billings or in the summary accounting provided to the court. Both attorney Brunt and Male testified that the divorce was contentious and that it required a full day of depositions and four days of hearing before the master. The amount of fees now claimed by attorney Male is reasonable and supported by unimpeached billing records. 20. Male is willing to accept the $11,969.80 held in attorney Brunt's IOLTA account in full and final settlement of her fees. 21. Exhibits and testimony of Little established that she now claims an inability to pay Male out of her present resources; Little testified that due to other financial obligations, if the amount held by attorney Brunt were released to her, those funds would be quickly used to pay other debts and none would be available to attorney Male if a separate collection action were pursued against Little in Delaware. 22.The record in this case and the evidence at the hearing into the lien claim of Male reveal that Ms. Little made improper attempts to obtain other marital funds entrusted to attorney Brunt, engaged in written contact with the court seeking to repudiate a marital estate distribution in which she had acquiesced. That contact resulted in the entry of Judge Oler's Order of April 19, 1999, which negated Male's contractual right to collect her fees from the amount which was to be paid Little through her office and further resulted in the withdrawal of Male as Little's counsel for "reasons of professional ethics." Little has testified in a way which illustrates that it is reasonable to conclude that she will not, and cannot, voluntarily pay attorney Male's fees from any source. CONCLUSIONS OF LAW 1. The fund now held in the IOLTA account of attorney Brunt is a fund within the control of this court and is available for distribution on equitable principles; 2. The services of attorney Male to Little after her December 1997 employment operated substantially and primarily to secure the fund now held by attorney Brunt under court control, and attorney Male looks exclusively to that fund for payment; 3. The fee agreement between Male and Little indicates that Male agreed to look to the proceeds of her efforts for Little, and not to Little herself, for her compensation, the language in the contract regarding ultimate liability of Little for the attorney's fees being required by the ethical ban on contingent fees in divorce matters; 4. The lien claimed by attorney Male is limited to costs, fees or other disbursements incurred in the litigation she pursued in the interest of Little; 5. Equitable considerations necessitate the recognition and application of the charging lien requested by attorney Male in this proceeding; 6. The lien claim of attorney Male meets each and all of the elements listed in Recht v. Clairton Urban Redevelopment Authority, 402 Pa. 599, 168 A.2d 134 (1961).