CHARLES SHEFFER, an individual, JENNIFER SHEFFER, an individual, and JOSHUA SHEFFER, a minor, by and through his parents, Charles and Jennifer Sheffer, Plaintiffs,
CAROLINA FORGE COMPANY, LLC, and WILLIAM GARRIS, III, Defendants, and GARRETT LAW CENTER, PLLC, Appellant,
THE HERSHEWE LAW FIRM, P.C., Appellee.
Mandate Issued: 08/22/2017
FROM THE DISTRICT COURT OF OTTAWA COUNTY, OKLAHOMA HONORABLE
ROBERT HANEY, JUDGE
Mitchell Garrett, Amber Peckio Garrett, GARRETT LAW CENTER,
PLLC, Tulsa, Oklahoma, for Appellant.
Michelle B. O'Neal, THE HERSHEWE LAW FIRM, P.C., Joplin,
Missouri, for Appellee.
Mitchell, Presiding Judge.
This appeal involves two law firms disputing the trial
court's division of a $234, 462.34 contingent attorney
fee fund. The court awarded $5, 000.00 to attorney Rick Yohn,
then awarded Appellant Garrett Law Center, PLLC (GLC) 25% of
the fund and 75% to Appellee The Hershewe Law Firm, P.C.
(HLF). We find the division was not against the clear weight
of the evidence or contrary to law. Accordingly, we affirm.
Plaintiffs Charles Sheffer, Jennifer Sheffer and Joshua
Sheffer (the Sheffers) filed suit for personal injuries
sustained in an automobile accident with Defendant William
Garris, III (Garris) and David Billups (Billups) near Miami,
Oklahoma. Garris and Billups were on a business trip in
Joplin, Missouri for their employer, Defendant Carolina Forge
Company, LLC (Carolina Forge). After spending the day with
clients, Garris and Billups decided to go to Buffalo Run
Casino. On their return to their hotel, they collided with
the Sheffers' eighteen-wheeler tractor trailer. Billups
died as a result of the wreck, and the Sheffers sustained
The Sheffers hired and fired three different law firms and/or
attorneys while pursuing their claims before ultimately
hiring GLC. The Tawwater Law Firm and attorney Rick Yohn
(Yohn) initially represented the Sheffers, filing the
petition on August 25, 2008. In April 2010, the Sheffers
hired HLF to take over as lead counsel. HLF provided
representation to the Sheffers for approximately 4.5 years.
During this time, HLF represented the Sheffers' claims
against multiple defendants, including Carolina Forge,
Billups, Garris, Buffalo Run Casino, PTE, Inc., and the
Peoria Tribe of Indians. The case involved numerous complex
issues, including the disputed identity of the driver who
collided with the Sheffers; the contested legal theory as to
whether the driver was acting in the course and scope of his
employment; whether Carolina Forge negligently entrusted the
vehicle to their employees; and the pursuit of potential
dram-shop claims against the casino and the tribe.
In pursuit of the Sheffers' claims, HLF gathered medical
records, consulted with experts, conducted legal research,
issued discovery, conducted depositions, drafted motions, and
attended hearings. HLF also filed and litigated two separate
appeals to the Oklahoma Supreme Court. In the first appeal,
the Court found that the trial court improperly granted
summary judgment to Carolina Forge because reasonable minds
could differ on whether Billups and Garris were in the course
and scope of their employment at the time of the accident and
whether Carolina Forge negligently entrusted the rental
vehicle to them. Sheffer v. Carolina Forge Co., LLC,
2013 OK 48, ¶30, 306 P.3d 544, 553. In the second
appeal, the Court affirmed the trial court's dismissal of
the Peoria Tribe and its entities, finding the tribe was
immune from suit in state court for compact-based tort or
prize claims and from state court dram-shop liability.
Sheffer v. Buffalo Run Casino, 2013 OK 77, ¶50,
315 P.3d 359, 373.
After losing its case on appeal, Carolina Forge proposed
mediation. The trial court also encouraged mediation. On
September 19, 2014, defense counsel notified the court that
the parties intended to mediate the case by mid-October. The
case, however, did not proceed to mediation at that point
because the Sheffers refused to agree to a mediator. The
Sheffers notified HLF on September 30, 2014 that it was being
terminated. GLC filed its entry of appearance on October 10,
2014. GLC reviewed the file, ordered some missing medical
records, prepared a written demand, and mediated the case.
Through mediation, Carolina Forge agreed to pay $610, 000.00
to settle the Sheffers' claims.
GLC then filed a motion to interplead and disburse the
settlement funds, asking the court to determine payment of
the medical bills and liens, including the attorney fee liens
filed by Yohn, HLF, and GLC. Pursuant to GLC's written
contingency fee contract with the Sheffers, 40% of the
settlement was to be paid as attorney fees. However, GLC
agreed during the mediation that all medical bills, medical
liens, and a possible insurance lien would be paid out of the
attorney fees and that GLC would not charge any litigation
expenses. After deducting payment of those bills and liens,
$234, 462.34 was left as attorney fee proceeds.
An attorney fees hearing was held on December 17, 2015. The
court considered the attorneys' pleadings, oral argument
by all interested counsel, and "the Court's own
familiarity with this case and the work performed by the
respective attorneys" and found that, after resolution
of an outstanding subrogation claim, the attorney fees
remaining should be distributed as follows: $5, 000.00 to
Yohn; 25% to GLC; and 75% to HLF.  GLC appeals.
An action to enforce an attorney's lien is an equitable
matter. Duffy v. Cope, 2000 OK CIV APP 140, ¶7,
18 P.3d 366, 368. "A judgment in a case of equitable
cognizance will be sustained on appeal unless it is found to
be against the clear weight of the evidence, or is contrary
to law or established principles of equity."
GLC argues the court's apportionment was contrary to law
because the court failed to consider the factors set forth in
Burk v. Oklahoma City, 1979 OK 115, 598 P.2d 659.
HLF argues that GLC's reliance on Burk is
misplaced. We agree. Burk applies to evaluate the
reasonableness of an attorney fee award "in the absence
of a contract or a statute fixing the amount." State
ex rel. Dep't of Transp. v. Cedars Grp., L.L.C.,
2017 OK 12, ¶23, 393 P.3d 1095, 1104 (citing
Oliver's Sports Center, Inc. v. Nat'l Standard
Ins. Co., 1980 OK 120, ¶7, 615 P.2d 291, 294). The
reasonableness of the total contingency fee fund in
this case, however, is not disputed. Rather, the issue is
whether the trial court's apportionment ...