Greenspoon Marder, P.A. et al v. Andry Law Firm, L.L.C. et al
ORDER & REASONS denying 42 Motion for Summary Judgment. Signed by Judge Martin L.C. Feldman on 4/28/2014. (caa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
GREENSPOON MARDER, P.A., ET AL.
THE ANDRY LAW FIRM, LLC, ET AL.
ORDER & REASONS
For the reasons that follow, the motion is DENIED.
agreement between two attorneys in different firms.
On August 16, 2009, Nell Fink sustained catastrophic injuries
when she tripped and hit her head on the jetway while attempting to
board a Southwest Airlines flight from New Orleans to Los Angeles.
After the accident, Fink retained Jeffrey C. Fox, an attorney who
practices in Florida with the law firm of Greenspoon Marder, P.A.,
to represent her.
Because he is not licensed to practice law in
Louisiana, Fox sought local counsel in New Orleans and eventually
contacted Gibby Andry with The Andry Law Firm, LLC.
to act as cocounsel in Fink's case.
On August 2, 2010, Fink's daughter, Diane Schnauder, acting on
representation by Fox and Andry.
Fox and Andry also signed the
Although the contract provided for one 40% contingency
fee, plus costs and expenses, it did not explicitly address whether
or how the two attorneys would split that fee.
allege that Fox and Andry orally agreed to split the contingency
fee 50/50, with each entitled to reimbursement of his own costs and
As proof, they present a letter sent by Fox to Fink, the
client, on August 3, 2010, in which Fox described the alleged oral
agreement and advised that "only one attorney's fee will be
charged" that "will be divided equally."
On August 6, 2010, Andry filed a complaint for Fink in Civil
District Court for the Parish of Orleans against the City of New
Orleans d/b/a Louis Armstrong New Orleans International Airport and
Southwest Airlines Company.
record in the case.
Fox did not enroll as counsel of
The plaintiffs allege that Andry agreed to
copy Fox on all pleadings and correspondence so that Fox would not
need to seek admission pro hac vice, but the defendants claim that
they sent Fox a copy of the application for admission but that he
declined to apply.
The plaintiffs also allege that Andry failed to keep Fox
informed regarding the progress of Ms. Fink's case, failed to tell
Fox that the case had settled, and withheld Fox's share of the
attorney's fee plus his costs and expenses. The plaintiffs contend
that Andry's actions breached the terms of both the Attorney/Client
Contract and the alleged oral fee-sharing agreement. The defendants
counter that they had no obligation under the Attorney/Client
litigation, and that there was never any fee-sharing agreement.
On August 20, 2013, Fox and Greenspoon Marder filed suit
against Andry and The Andry Law Firm in this Court based on
On October 29, 2013, the defendants moved
to dismiss the complaint, and on November 13, 2013, this Court
denied the motion.
The plaintiffs now move for summary judgment.
I. Standard for Summary Judgment
Federal Rule of Civil Procedure 56 instructs that summary
judgment is proper if the record discloses no genuine issue as to
any material fact such that the moving party is entitled to
judgment as a matter of law.
No genuine issue of fact exists if
the record taken as a whole could not lead a rational trier of fact
to find for the non-moving party.
See Matsushita Elec. Indus. Co.
v. Zenith Radio., 475 U.S. 574, 586 (1986).
A genuine issue of
fact exists only "if the evidence is such that a reasonable jury
could return a verdict for the non-moving party."
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
The Court emphasizes that the mere argued existence of a
factual dispute does not defeat an otherwise properly supported
colorable, or is not significantly probative," summary judgment is
Id. at 249-50 (citations omitted).
is also proper if the party opposing the motion fails to establish
an essential element of his case.
477 U.S. 317, 322-23 (1986).
See Celotex Corp. v. Catrett,
In this regard, the non-moving party
must do more than simply deny the allegations raised by the moving
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d
646, 649 (5th Cir. 1992).
Rather, he must come forward with
competent evidence, such as affidavits or depositions, to buttress
Hearsay evidence and unsworn documents do not
qualify as competent opposing evidence.
Martin v. John W. Stone
Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir. 1987). Finally, in
evaluating the summary judgment motion, the court must read the
Anderson, 477 U.S. at 255.
Law & Application
A contract is a "legal relationship whereby a person, called
the obligor, is bound to render a performance in favor of another,
called the obligee."
La. Civ. Code art. 1756.
"A contract is
formed by consent of the parties established through offer and
La. Civ. Code art. 1927.
In order to recover for a
breach of contract under Louisiana law, the plaintiff must prove:
(1) the obligor's undertaking of an obligation to perform; (2) that
the obligor failed to perform the obligation (i.e., breach); and
(3) that the breach resulted in damages to the obligee.
Favrot, 68 So. 3d 1099, 1108-09 (La. App. 4 Cir. 2011).
"[t]he existence or nonexistence of a contract is a question of
Sam Staub Enters., Inc. v. Chapital, 88 So. 3d 690, 693
(La. App. 4 Cir. 2012).
Rule 1.5(e) of the Louisiana Rules of Professional Conduct
precludes “[a] division of fee between lawyers who are not at the
same firm” unless three conditions are met: “(1) the client agrees
in writing to the representation by all of the lawyers involved,
and is advised in writing as to the share of the fee that each
lawyer receive; (2) the total fee is reasonable; and (3) each
lawyer renders meaningful legal services for the client in the
The plaintiffs seek summary judgment on the issue of liability
for breach of contract.
They contend that the defendants breached
the Attorney/Client Contract and an oral fee-sharing agreement by
failing to tender any of the attorney's fee earned when Ms. Fink's
The defendants respond that disputed issues of fact
precluding summary judgment exist regarding whether they breached
the Attorney/Client Contract, whether they agreed to share fees,
and whether the plaintiffs rendered "meaningful legal services" as
required by Rule 1.5 of the Louisiana Rules of Professional
Conduct. The Court is persuaded that material factual issues exist
regarding both a breach of the Attorney/Client Contract as well as
the existence and propriety of any fee-sharing agreement. Although
the plaintiffs argue that the Attorney/Client Contract "strongly
implicates" an agreement to split fees equally, any explicit
provision is conspicuously absent. And although the plaintiffs
present record evidence of the alleged oral agreement, including
Mr. Fox's and Ms. Schnauder's affidavits, Mr. Andry has also
executed an affidavit in which he denies the existence of any such
This is a classic case of material factual disputes
that cannot be resolved without weighing the evidence and assessing
credibility. Blanke v. Time, Inc., 308 F. Supp. 378, 381 (E.D. La.
1970)(in a case of conflicting affidavits, a court cannot grant
summary judgment "[w]ithout observing the demeanor of witnesses,
and hearing cross-examination or attempts at impeachment").1
Accordingly, the motion for summary judgment is DENIED.
New Orleans, Louisiana, April 28, 2014
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
And these lawyers ought to know that. For either side, all
lawyers, to seriously ask for summary relief is, at best, absurd.
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