In re Estate of Natalia Brodeur ( 2023 )

THE STATE OF NEW HAMPSHIRE
SUPREME COURT
In Case No. 2022-0531, In re Estate of Natalia Brodeur, the
court on April 21, 2023, issued the following order:
The motion filed by Larry Brodeur, the executor of the Estate of Natalia
Brodeur, to amend his previously-filed brief is granted. For ease of reference,
we refer to Mr. Brodeur in this order as “the executor.” The executor’s motion
for reconsideration of the court’s order of March 29, 2023, is denied. The
executor shall immediately pay the sum of $200,000.00 into the escrow
account specified by the court’s order of March 29, 2023. The escrow funds
shall be disbursed in accordance with the final decision in this case upon the
issuance of the mandate.
The court has reviewed the written arguments and the record submitted
on appeal, and has determined to resolve the case by way of this order. See
Sup. Ct. R. 20(2). The executor appeals an order of the Circuit Court (Yazinski,
J.) enforcing a contingency fee agreement he entered into with Schuster,
Buttrey & Wing, P.A. (law firm). We affirm.
“Although contracts for attorneys’ services generally stand on the same
ground and are governed by the same rules as other similar contracts for
services, fee contracts between attorney and client are a subject of special
interest and concern to the courts.” McCabe v. Arcidy, 138 N.H. 20, 28-29
(quotations, citation, and brackets omitted). “Accordingly, an attorney may not
charge a fee that is unreasonable.” Id. at 29. The reasonableness of a fee is
determined based upon the following factors:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal
service properly.
(2) the likelihood, if apparent to the client, that the acceptance of
the particular employment will preclude other employment by the
lawyer.
(3) the fee customarily charged in the locality for similar legal
services.
(4) the amount involved and the results obtained.
(5) the time limitations imposed by the client or by the
circumstances.
(6) the nature and length of the professional relationship with the
client.
(7) the experience, reputation, and ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or contingent.
Id. (quotation omitted); N.H. R. Prof. Conduct 1.5(a). “The fairness of the fee
agreement should be determined with reference to the time when the
agreement was made.” McCabe, 138 N.H. at 29. “There can be no rigid,
precise measure of reasonableness, however, because the weight accorded each
factor depends on the circumstances of each particular case.” Id.We review the trial court’s decision under our unsustainable exercise of
discretion standard. Shelton v. Tamposi, 164 N.H. 490, 501 (2013). To be
reversible on appeal, the discretion must have been exercised for reasons
clearly untenable or to an extent clearly unreasonable to the prejudice of the
objecting party. Id. Under this standard of review, our task on appeal is not to
determine whether we would have found differently; rather, we determine
whether a reasonable person could have found as the trial judge did. In re
Adam M., 148 N.H. 83, 84 (2002). The factual findings of the circuit court
probate division “are final unless they are so plainly erroneous that such
findings could not be reasonably made.” RSA 564-A:4 (2019).
Here, the trial court found “nothing unreasonable” about the 20%
contingency fee to which the parties agreed, noting evidence that such a fee is
“exceptionally low for a wrongful death suit” and that “[m]ost firms are
charging a third of any settlement in these types of cases.” Although the
evidence before the trial court was conflicting, we defer to its judgment to
resolve “conflicts in testimony, measure the credibility of witnesses, and
determine the weight to be given to testimony, recognizing that as the trier of
fact, it is in the best position to measure the persuasiveness and credibility of
evidence.” In re Guardianship of E.L., 154 N.H. 292, 296 (2006) (quotations,
brackets, and citation omitted). Based upon our review of the trial court’s
narrative order, the executor’s challenges to it, the relevant law, and the record
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submitted on appeal, we conclude that the executor has failed to demonstrate
reversible error. See Gallo v. Traina, 166 N.H. 737, 740 (2014).
Affirmed.
MacDonald, C.J., and Hicks, Bassett, Hantz Marconi, and Donovan, JJ.,
concurred.
Timothy A. Gudas,
Clerk
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