Lattimer v. Brisbon

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

In the Matter of the Estate of:

RUMAIN BRISBON

DECEASED

______________________________

LAW OFFICE OF GREGORY L. LATTIMER, PLLC, Appellant,

v.

NORA BRISBON, et al., Appellees.

No. 1 CA-CV 19-0389
FILED 6-9-2020

Appeal from the Superior Court in Maricopa County
No. PB2015-000082
The Honorable Jay M. Polk, Judge

AFFIRMED

COUNSEL

Law Office of Florence M. Bruemmer, P.C., Anthem
By Florence M. Bruemmer
Counsel for Appellant
Jennings, Haug & Cunningham, L.L.P., Phoenix
By Hillary P. Gagnon
Counsel for Appellee Nora Brisbon

Rubin Law PLC, Phoenix
By Alexandra S. Rubin
Counsel for Appellee Tracy O’Neil

The Law Office of Marci A. Kratter, Phoenix
By Marci A. Kratter
Counsel for Appellees Dana L. Klinger and Tyra Winston

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

G A S S, Judge:

¶1 The Law Offices of Gregory L. Lattimer, PLLC (Lattimer
Law), appeals the superior court’s order adopting recommendations in the
Amended Special Master’s Report (the Amended Report) and the
Supplement to the Amended Special Master’s Report (the Supplement)
regarding the allocation of attorney fees based on a tort claim settlement
after Rumain Brison’s death. For the following reasons, this court affirms.

FACTUAL AND PROCEDURAL HISTORY

¶2 To avoid confusion, this court refers to parties by their first
names. In 2014, a City of Phoenix police officer shot and killed Rumain.
Rumain died intestate and is survived by his parents—Ricky and Nora—
and four minor children: SNB, ZLC, SAB, and AJR.

¶3 Mykel, AJR’s mother, retained Lattimer Law to represent her
in connection with claims for damages AJR sustained from Rumain’s death.
Mykel also retained the Jenkins Law Firm (Jenkins Law) to represent her in
the separate guardianship and probate matters. Later, Mykel signed a new
retainer agreement retaining both Lattimer Law and Jenkins Law to
represent her in connection with AJR’s claims. Under the retainer
agreement, Mykel agreed to a 40% contingency fee if a lawsuit was filed.

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¶4 Ricky also retained Lattimer Law and Jenkins Law as his
attorneys. Ricky signed a contingency fee agreement identical to Mykel’s.
Several months later, Nora retained the Rake Law Group (Rake Law) as
counsel, also agreeing to a 40% contingency fee. Four other attorneys
represented various beneficiaries, including SNB, ZLC, and SAB. Nothing
in the record suggests the other beneficiaries signed a fee agreement with
Lattimer Law, Jenkins Law, or Rake Law.

¶5 Mykel was appointed personal representative of Rumain’s
estate. Mykel served as the personal representative until she was removed
and replaced by Nora. The day after Nora’s appointment, Nora executed a
new contingency fee agreement with Rake Law. The new agreement was
similar to the original agreement, but it identified Nora as “Personal
Representative of the Estate of Rumain Brisbon.”

¶6 Nora filed a lawsuit in federal court on behalf of the estate and
several of the statutory wrongful death beneficiaries—Rumain’s four minor
children and his parents. The parties to the federal lawsuit participated in
a settlement conference, which resulted in a $1.2 million global settlement
on behalf of the estate and the statutory wrongful death beneficiaries.

¶7 The wrongful death beneficiaries could not agree on how to
allocate the $1.2 million federal settlement and could not come to an
agreement on the payment of attorney fees. Nora, in her capacity as
personal representative, filed a Petition for Approval of Allocation of
Settlement. Mykel and Ricky, through Jenkins Law, opposed the motion
and filed a counter petition. Because the parties could not agree on the
allocation, the superior court appointed a special master to address the
issues the parties raised. See Ariz. R. Civ. P. 53.

¶8 The special master ultimately filed the Amended Report. In
the Amended Report, the special master recommended the estate receive
$360,000 from the $1.2 million federal settlement and the balance be
allocated to ZLC, SAB, and AJR, the remaining minor children. The estate’s
40% contingency fee obligation for the $360,000 is $144,000. The special
master recommended Nora allocate the estate’s contingency fee as follows:
(a) 25% to Rake Law, and (b) 75% to Lattimer Law and Jenkins Law. The
special master further recommended the estate pay all Lattimer Law’s costs
and expenses but not his travel expenses.

¶9 Lattimer Law objected to the Amended Report on behalf of
itself, not on behalf of any of the estate’s beneficiaries. The superior court
heard oral arguments, at which only Lattimer Law and Jenkins Law

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(representing Mykel and Ricky), objected to the Amended Report. The
superior court could not resolve the objections without additional
information and resubmitted the matter to the special master. The special
master filed the Supplement. Lattimer Law, again acting on its own behalf,
was the only party to object to the Supplement.

¶10 Except for an unrelated matter, the superior court adopted the
recommendations from the Amended Report and the Supplement. Lattimer
Law, again acting on its own behalf, timely appealed the superior court’s
order. This court has jurisdiction under Article 6, Section 9, of the Arizona
Constitution, and A.R.S. § 12-2101.A.

ANALYSIS

I. Lattimer Law does not have standing to challenge the $360,000
allocation of the federal settlement proceeds to the estate.

¶11 “Unless there are fact issues that require resolution, whether
a party has standing to sue is a question of law, which” this court reviews
de novo. See Center Bay Gardens, L.L.C. v. City of Tempe City Council, 214 Ariz.
353, 356, ¶ 15 (App. 2007). A party has standing to appeal a superior court
judgment or order if the party is “aggrieved” by it. See Chambers v. United
Farm Workers Org. Comm., AFL-CIO, 25 Ariz. App. 104, 107 (1975). A party
is aggrieved if the order denies the party a personal or property right, or
imposes a substantial burden or obligation on the party. Kerr v. Killian, 197
Ariz. 213, 216, ¶ 10 (App. 2000).

¶12 Lattimer Law argues it has standing because it did not receive
fair compensation for the legal services it provided in the federal litigation.
It does not. The beneficiaries have personal and property rights regarding
the allocation of $360,000 from the federal settlement proceeds to the estate.
They have a direct interest in the corpus of the settlement. Lattimer Law,
however, is not a beneficiary of the estate. It represents only itself and its
interest. Lattimer Law’s interest, and therefore its standing, goes to the
allocation of attorney fees between the attorneys, not to the allocation of the
federal settlement proceeds between the estate and the beneficiaries. See id.

II. Lattimer Law cannot recover attorney fees from the $1.2 million
federal settlement based on the common fund doctrine.

¶13 Lattimer Law argues the common fund doctrine applies
because its efforts helped all the beneficiaries, not just its own clients. Under
the common fund theory, Lattimer Law’s contingency fee would be based
on the entire $1.2 million federal settlement, instead of the $360,000 the

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superior court allocated to the estate. The superior court rejected Lattimer
Law’s argument, finding it could not accurately trace the benefits Lattimer
Law provided and could not transfer the costs with precision.

¶14 This court reviews attorney fee awards for abuse of discretion
but reviews a superior court’s authority to use a specific method for
determining attorney fees de novo. See Burke v. Ariz. State Ret. Sys., 206 Ariz.
269, 272, ¶ 6 (App. 2003). Generally, “in the absence of statute or contract,
each side in a litigated case must bear its own attorneys’ fees . . . .” Id. at ¶
7. The common fund doctrine is an equitable exception to the general rule.
Id. “The doctrine serves the twofold purpose of compensating counsel for
producing benefits for a class and preventing the unjust enrichment of the
class members who receive them.” Valder Law Offices v. Keenan Law Firm, 212 Ariz. 244, 249, ¶ 15 (App. 2006) (internal quotations omitted). The
common fund doctrine applies when parties who benefitted from the
efforts of counsel in creating a common fund should pay their fair share of
the work required to create the fund. See id.

¶15 Under the common fund doctrine, this court considers
whether: (1) the classes of persons benefitting from the lawsuit were small
and easily identifiable; (2) the benefits could be traced accurately; and (3)
the costs could be shifted to those benefitting with some precision. See Kerr,
197 Ariz. at 219, ¶ 24 (internal citation omitted). Because of the second and
third elements, “Arizona wrongful death law presents problems for the
application of the common fund doctrine when more than one counsel
meaningfully participate in establishing an award.” See Valder Law, 212
Ariz. at 251, ¶ 23.

¶16 Lattimer Law satisfies the first element because the statutory
beneficiaries and the estate are a small and easily identifiable class. Lattimer
Law, however, did not satisfy the second and third elements. See id. at ¶ 24.
Other counsel meaningfully and vigorously represented the other
beneficiaries in the federal lawsuit. Though Lattimer Law’s actions were of
value to the beneficiaries, such value cannot be traced accurately, and the
costs cannot be allocated with precision. The superior court, therefore,
correctly ruled the common fund doctrine did not apply. See id.

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III. Lattimer Law cannot recover attorney fees beyond the estate’s
$360,000 share of the federal settlement based on quantum meruit.

¶17 Lattimer Law argues the superior court should have used
quantum meruit to award Lattimer Law’s contingency fee based on the entire
$1.2 million federal settlement, not just the estate’s $360,000 share.1

¶18 Lattimer Law arguably waived this claim. “The general law
in Arizona is that legal theories must be presented timely to the trial court
so that the court may have an opportunity to address all issues on their
merits.” Cont’l Lighting & Contracting, Inc. v. Premier Grading & Utils., LLC,
227 Ariz. 382, 386, ¶ 12 (App. 2011). “If the argument is not raised below so
as to allow the trial court such an opportunity, it is waived on appeal.” Id.
Because Lattimer Law raised this issue late, the superior court could not
fully address it. Because waiver is discretionary and this court can resolve
the issue as a matter of law, this court addresses the merits. See City of
Tucson v. Clear Channel Outdoor, Inc., 209 Ariz. 544, 552, ¶ 33 n.9 (2005).

¶19 As noted above, this court reviews a superior court’s legal
authority to use a specific method for determining attorney fees de novo. See
Burke, 206 Ariz. at 272, ¶ 6. Longstanding precedent establishes an attorney
may claim fees from a client in quantum meruit only if “the amount of
compensation claimed is not fixed by an agreement between the parties.”
Schwartz v. Schwerin, 85 Ariz. 242, 245 (1959) (emphasis added).

¶20 Lattimer Law cites no case, Arizona or otherwise, allowing an
attorney to collect attorney fees in quantum meruit from a person with whom
the attorney has no attorney-client relationship. This court, further, has
barred recovery of attorney fees in quantum meruit when the fee agreement
was void as against public policy. See, e.g., Levine v. Haralson, Miller, Pitt,
Feldman & McAnally, P.L.C., 244 Ariz. 234, 239, ¶ 19 (App. 2018) (ruling
attorney could not recover attorney fees in quantum meruit based on
unenforceable oral contingency fee agreement).

¶21 Consistent with Levine, this court declines to extend Schwartz
beyond its narrow holding. To rule otherwise, non-clients could be required
to pay a contingency fee with no written fee agreement in violation of
Arizona public policy. See id. at 238, ¶ 13. This court, therefore, holds

1 Of note, Lattimer Law raises a different quantum meruit issue regarding

the allocation of attorney fees between Lattimer Law, Jenkins Law, and
Rake Law. This court addresses that separate and distinct quantum meruit
issue below but mentions it here to prevent confusion.

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quantum meruit cannot support a claim for attorney fees against persons
who never entered an attorney-client relationship with Lattimer Law,
Jenkins Law, or Rake Law. See id. at 239, ¶ 19.

IV. The superior court did not abuse its discretion in its quantum
meruit allocation of attorney fees between Lattimer Law, Jenkins
Law, and Rake Law.

¶22 This court reviews the allocation of attorney fees for an abuse
of discretion. See Charles I. Friedman, P.C. v. Microsoft Corp., 213 Ariz. 344,
350, ¶ 17 (App. 2006). “To find an abuse of discretion, there must either be
no evidence to support the superior court’s conclusion or the reasons given
by the court must be clearly untenable, legally incorrect, or amount to a
denial of justice.” Id. (internal quotations omitted).

¶23 Lattimer Law argues no rational basis supports the superior
court’s quantum meruit allocation between itself, Jenkins Law, and Rake
Law. Lattimer Law takes issue with the superior court awarding Rake Law
25% of the attorney fees even though, by the superior court’s calculations,
Rake Law’s work accounted for 19.5% of the total compensable time.
Lattimer Law further argues the superior court erred when it excluded 95
hours of travel time for which Lattimer Law billed the estate.

¶24 Under quantum meruit, the superior court looks at several
factors to determine reasonable attorney fees, including the work actually
performed and the character of the work. See Schweiger v. China Doll
Restaurant, Inc., 138 Ariz. 183, 187 (App. 1983). As the superior court
recognized, “in determining what a reasonable attorney fee is, one must
consider not only the hours worked but also other factors.”

¶25 The record supports the superior court’s allocations.
Consistent with the fee agreements, the special master recommended “the
estate pay a single attorney fee, and that fee be calculated at forty percent
(40%) of the estate’s recovery.” Specifically, the special master
recommended the estate pay $144,000 for attorney fees—40% of $360,000.
The special master further recommended a quantum meruit split between
the three law firms. Based on evidence, the special master recommended
Lattimer Law and Jenkins Law jointly receive 75% ($108,000) and Rake Law
receive 25% ($36,000). Over Lattimer Law’s objection, the superior court
adopted those recommendations, finding they were not clearly erroneous.

¶26 Lattimer Law argues the superior court should have awarded
Rake Law a lower percentage based on hours worked. The special master,
however, found Rake Law added “significant value” in its work to settle

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the case and its work was done “expeditiously and done well.” The facts
before the special master supported those findings. The superior court,
therefore, did not abuse its discretion by evaluating the character and
quality of the work and awarding more fees to Rake Law under quantum
meruit. See China Doll, 138 Ariz. at 187.

¶27 Lattimer Law also argues the superior court abused its
discretion by excluding 95 hours of travel time it spent going to and from
Phoenix and Washington D.C. Lattimer Law argues the travel time is
compensable under China Doll. But China Doll did not say all travel time
was compensable. Rather, China Doll said travel time was compensable
“where necessary.” See id. at 188 (emphasis added). The superior court did
not abuse its discretion when it found Lattimer Law did not prove the 95
hours of travel time were necessary.

¶28 Based on the above, the special master and the superior court
provided a detailed justification for the fee allocation. The superior court,
therefore, did not abuse its discretion.

ATTORNEY FEES ON APPEAL

¶29 Nora requested attorney fees and costs under A.R.S. §§ 12-
341.01 and 14-1105.A. Nora is joined in her request for costs on appeal by
appellees Tracy, Dana, and Tyra—the mothers of SAB, SNB, and ZLC
respectively.2 The superior court “cautioned that additional litigation may
cause the Estate to be further depleted, which is contrary to the Children’s
best interests.” Despite the superior court’s cautionary words, Lattimer
Law pursued this appeal even after its former clients—Mykel and Ricky—
dismissed their own appeal. Further, Lattimer Law’s arguments were not
supported by the record or the law. Accordingly, this court grants the
requests of Nora for reasonable attorney fees and costs and the requests of
Tracy, Dana, and Tyra for costs, upon timely compliance with ARCAP 21.

2 Tracy, Dana, and Tyra are parties to the appeal as appellees. Each filed a

Motion for Joinder [in the Estate’s Answering Brief] and Request for Costs.
This court grants the motions for joinder.

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CONCLUSION

¶30 Based on the above, this court affirms the superior court.

AMY M. WOOD • Clerk of the Court
FILED: AA

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