HARVEY J. GAROD
STEINER LAW OFFICE, PLLC & a.
Argued: January 26, 2017
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.
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.
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.
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.
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."
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.
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.
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."
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 ...