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In re Appointment of Trustee for Next of Kin of Kim Marie Caswell

Court of Appeals of Minnesota

December 11, 2017

In the Matter of the Appointment of Trustee for the Next of Kin of Kim Marie Caswell (Decedent).

         Dakota County District Court File No. 19HA-CV-16-93

          L. Kathleen Harrell-Latham, Loop Legal PLLC, Minneapolis, Minnesota (for appellant Jonathan Albert Caswell)

          J. Mark Catron, Hansen Dordell Bradt Odlaug & Bradt, PLLP, St. Paul, Minnesota (for respondent Palmer Law Firm)

          Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and Halbrooks, Judge.

         SYLLABUS

         When a valid contract exists between a client and an attorney and the attorney completes the work under the terms of the contract and achieves a settlement or recovery, the attorney is entitled to fees under the terms of the contract and does not release his attorney lien under Minn. Stat. § 481.13, subd. 1 (2016), by returning the settlement check to the insurance company pending resolution of a fee dispute.

          OPINION

          HALBROOKS, JUDGE.

         Appellant challenges the district court's judgment granting respondent one-third of appellant's uninsured-motorist settlement for attorney fees. Appellant argues that the retainer agreement is unenforceable or void and that respondent released his attorney lien by returning the settlement check to the insurance company, as instructed by appellant, when a fee dispute arose. We affirm.

         FACTS

         Appellant Jonathan Caswell retained attorney Craig Erickson to represent the estate of his wife, Kimberly Caswell, after she died in a motor-vehicle accident. Because Erickson did not have experience handling personal-injury claims, he referred Caswell to Palmer Law Firm to handle potential personal-injury claims arising from his wife's death. Caswell met with Erickson, Erickson's paralegal, and two attorneys from Palmer Law Firm-Eric Palmer (Palmer) and Ralph Palmer. During the meeting, Palmer discussed potential personal-injury claims with Caswell. At some point, Caswell asked Palmer whether anything would come off his "end." Palmer replied, "No, " and stated that Caswell did not have to pay any fees because the representation agreement was on a contingency basis. Palmer sat next to Caswell and went line by line through the retainer agreement, which stated, "Sources of recovery may include, but are not limited to, insurance policies (including liability, uninsured and underinsured motorist, no-fault, and homeowner's coverage) . . . ." Caswell signed the retainer agreement at the end of the meeting. The signed agreement, which is part of the record, shows that Palmer circled "33.333%" and underlined relevant portions of the "possible sources of recovery" section.

         After exploring possible claims and discovering that the driver who hit Caswell's wife's vehicle was uninsured, Palmer Law Firm asserted an uninsured-motorist claim with Caswell's insurer that was ultimately settled for $250, 000-the policy limit. Palmer Law Firm notified Caswell upon receiving the settlement check and explained that, pursuant to the retainer agreement, the firm was entitled to attorney fees of one-third of the insurance proceeds in addition to costs. Caswell became upset about the fees and ordered Palmer Law Firm to return the check to his insurance company and terminated his attorney-client relationship with Palmer Law Firm. As instructed, Palmer Law Firm returned the check to the insurance company and filed a notice of withdrawal and notice of attorney lien. Caswell petitioned the district court to distribute insurance proceeds and asked the district court to allocate the $250, 000 among himself and his three children.

         As an interim step, the district court ordered Caswell's insurance company to distribute two-thirds of the proceeds on a pro rata basis to Caswell and his three children and to hold one-third plus costs in a trust account pending the resolution of the motion for attorney fees. The district court held a hearing and heard testimony from Caswell, Palmer, Ralph Palmer, Craig Erickson, and William Sherry, the criminal defense attorney who represented the at-fault driver. Among other exhibits, the district court received into evidence the retainer agreement and affidavits from Erickson, Sherry, and Palmer. Following the hearing, the district court ordered Caswell to pay Palmer Law Firm one-third of the settlement proceeds plus costs of $492. This appeal follows.

         ISSUES

         I. Is the retainer agreement unenforceable because of a mutual or ...


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