Consolver v. Hotze
110483
| Kan. | Jun 9, 2017Background
- Consolver retained Pistotnik under a contingency-fee agreement (one-third, rising to 40% after pretrial); Pistotnik pursued the personal-injury suit against Hotze for ~14 months.
- Mediation discussions included a potential $300,000 offer conditioned on proof Consolver needed additional knee surgery; Pistotnik and defense counsel dispute timing and communications about that offer.
- Consolver fired Pistotnik without cause on June 28, 2012, then retained Brave, who later settled the case for $360,000.
- Pistotnik filed an attorney lien and sought fees; the district court held Pistotnik was limited to quantum meruit and awarded $86,944.27 in fees plus $10,156.81 expenses (using a pro rata/quasi-quantum-meruit approach based on the contingency percentage).
- The Court of Appeals reversed, mandating a lodestar/hourly-based quantum meruit calculation that excluded the contingency term as a factor. The Kansas Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument (Consolver) | Defendant's Argument (Pistotnik) | Held |
|---|---|---|---|
| Whether an attorney discharged without cause may have the contingency contract considered when calculating quantum meruit | Contingency premium is irrelevant to quantum meruit; district court erred by using the contract percentage | Contingency and its terms reflect economic value and are relevant to equitable quantum meruit recovery | Held: District court did not abuse discretion; contingency terms and KRPC/K.S.A. factors are relevant to an equitable quantum meruit award |
| Proper method to calculate reasonable fee after discharge (lodestar vs. quasi‑quantum‑meruit) | Lodestar (reasonable hours × hourly rate) using KRPC factors but excluding whether fee was fixed or contingent | Quasi-quantum-meruit (prorate contingent fee by % of work done) is permissible; contingency reflects risk and value | Held: Court declined to mandate lodestar; quasi-quantum-meruit using KRPC/K.S.A. factors is an acceptable equitable approach |
| Whether district court legally erred by considering the $300,000 offer (timing/misrepresentation issues) | $300,000 offer came after termination and was based on a misrepresentation; should not be used | Offer evidences value produced during Pistotnik’s representation and is an appropriate economic indicator | Held: Court found district court’s factual weighing permissible; no legal error shown in considering contingency/evidence under equitable factors |
| Whether district court abused discretion in awarding the specific fee amount | Award relied on improper legal standard (per Court of Appeals) | Award based on detailed factfinding and KRPC/K.S.A. factors—within discretion | Held: No abuse of discretion; district court’s ruling affirmed |
Key Cases Cited
- Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891 (discharged contingent-fee counsel limited to quantum meruit)
- In re Harris, 261 Kan. 1063 (recognizing quantum meruit recovery for discharged contingency-fee attorneys)
- Madison v. Goodyear Tire & Rubber Co., 8 Kan. App. 2d 575 (quantum meruit principles for discharged attorneys)
- Hensley v. Eckerhart, 461 U.S. 424 (lodestar method for fee calculation)
- Miller v. Botwin, 258 Kan. 108 (risk borne by attorney under contingency agreements relevant to fee analysis)