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Garod v. Steiner Law Office, PLLC

Supreme Court of New Hampshire, Belknap

May 17, 2017


          Argued: January 26, 2017

          Law Offices of Harvey J. Garod, of Laconia (Harvey J. Garod on the brief and orally), for the plaintiff.

          Steiner Law Office, PLLC, of Concord (R. James Steiner on the memorandum of law and orally), for the defendants.

          LYNN, J.

         The plaintiff, Harvey J. Garod, appeals an order of the Superior Court (O'Neill, J.) dismissing his conversion action against the defendants, R. James Steiner and Steiner Law Offices, PLLC. We reverse and remand.


         Accepting the plaintiff's allegations as true, the pertinent facts are as follows. See Coyle v. Battles, 147 N.H. 98, 100 (2001) (noting that, when reviewing a trial court's dismissal of a plaintiff's action, we "assume the truth of all well-pleaded facts" alleged by the plaintiff). The plaintiff was retained by a client to pursue a personal injury action. In connection with the representation, the client signed the plaintiff's standard engagement contract, which states, in relevant part:

If I discharge my attorney or he withdraws from representation, I agree to pay him at the rate of $350.00 per hour, $175.00 per hour for his legal assistant(s), quantum meruit, or thirty-three and one-third percent (33-1/3%) of the last settlement offer, whichever is greater, from any recovery obtained on my behalf. I do further agree that my attorney will be entitled to the full contingency fee identified in this contract if he substantially performs under the contract. I grant my attorney a lien for his fees and costs on any recovery I receive in my case.

         The plaintiff worked for the client for two years before being discharged without cause. The client subsequently hired the defendants, who filed an action (underlying action) on behalf of the client. The defendants ultimately settled the underlying action on the client's behalf.

         Prior to settlement, the plaintiff filed a motion to intervene in the underlying action, asserting that he possessed a contractual lien for fees and costs incurred during his representation of the client. The client objected to the motion, claiming, among other things, that: (1) intervention would be inappropriate because of the possibility of juror confusion and because the plaintiff retained the ability to bring a separate quantum meruit claim; and (2) the plaintiff had "neither a lien nor a contractual claim" and was limited to recovery in quantum meruit. The court denied the plaintiff's motion "for the reasons stated in the [client's] objection, " without further elaboration. According to the defendants, the plaintiff subsequently filed a motion to vacate the court's order, which the court denied, ruling that it was "an untimely motion to reconsider."

         After the settlement of the underlying action, the client filed a motion to order that the settlement check be made "payable solely to [the client] and her counsel, R. James Steiner." The court granted the motion.

         On the same day, the plaintiff filed a series of motions in the underlying action, including a second motion to intervene wherein he again asserted that he possessed a contractual lien, a motion for interpleader, and a motion to foreclose lien. The client objected to all these motions, and the court denied all of them without explanation.

         The plaintiff then initiated this action against the defendants, again alleging that he had an enforceable contractual lien for fees against the defendants. The defendants moved to dismiss the action for failure to state a claim. In its order granting the motion, the court noted that the plaintiff's contractual lien claim was "arguably barred by the doctrine of collateral estoppel." Nonetheless, the court found that the plaintiff's claim failed on the merits because he had not submitted any evidence of his contract with the client, and, thus, failed to allege "facts that c[ould] be reasonably construed to meet the elements of an enforceable contract containing the lien term."

         The plaintiff moved for reconsideration and for leave to file an amended complaint, along with the proposed amended complaint. The defendants objected to these motions, and moved to dismiss the amended complaint. The court denied the motion for reconsideration and scheduled a hearing on the other motions. After the hearing, the court granted the plaintiff's motion to file the amended complaint and granted the defendants' motion to dismiss the amended complaint, noting that the plaintiff's cause of action "remains barred ...

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