IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RAMUNNO & RAMUNNO, P.A.,
C.A. No. N14C-12-O77 WLW
Plaintiff,

VR

STEPHEN B. POTTER and
POTTER CARMINE &
ASSOCIATES, P.A.,
Defendants,
Date Submitted: April 5, 2016
Date Decided: May 10, 2016
ORDER
Upon Defendants’ Motion to Dismiss Count I.
Denied.

L. Vincent Ramunno, Esquire of Ramunno & Ramunno, P.A., Wilmingtorr, De1aware;
attorney for Plaintiff.

Stephen B. Potter, Esquire of Potter Carmine & Associates, P.A., Wilmington,
Delaware; attorneys for Defendants.

WITHAM, R.J.

Ramunno & Ramunno v. Stephen B. Potter, et al.
C.A. No. Nl4C- 12-077 WLW
May 10, 2016

Before the Court is a motion to dismiss brought by Stephen B. Potter and Potter
Carrnine & Associates, P.A. (collectively, "Potter"). Potter moves the Court to
dismiss Count I of the complaint of Ramunno & Ramunno, P.A. ("Ramunno")
pursuant to Superior Court Civil Rule 12(b)(1) for lack of subject matter jurisdiction.
For the following reasons, the Defendants’ motion is denz'ed.

FACTUAL AND PROCEDURAL BACKGROUND

The case before the Court consists of two counts. Each count involves separate
clients and independent causes of action. In each cause of action, both Potter and
Ramunno were retained by the client at one point during the proceedings. The motion
currently before the Court relates only to the first count involving the representation
of Bertha Flores ("Flores"). Flores was involved in two separate accidents and sought
representation. She initially retained Ramunno to represent her in both accidents, but
later discharged the firm and retained Potter. Potter negotiated a settlement with the
insurance company for both accidents. Ramunno claims he sent a "voluminous file"
to Potter and seeks compensation for work performed under the theory of quantum
meruit. Potter claims Ramunno was discharged by Flores for failing to provide a
translator for an arbitration hearing. In December 20l4, Ramunno filed a complaint
in the case sub judice.‘ Ramunno claims that Potter used Ramunno’s work product
in securing a settlement for Flores and was thus unjustly enriched. Based on this

claim, Ramunno asserts that Potter is obligated to pay a substantial portion of the

' A corrected amended complaint containing the same allegations was filed with the Court
in July 201 5.

Ramunno & Ramunno v. Stephen B. P0tter, et al.
C.A. No. Nl4C-12-077 WLW
May l0, 2016

recovery to Ramunno on a quantum meriut basis. Ramunno further claims he has a
"charging lien" on a portion of Potter’s fees and that Potter was required to hold the
attorney’s fees in escrow until the dispute was resolved. In July 201 5, Potter filed an
answer denying all allegations.z

In October 2015, Potter filed a motion to dismiss the complaint pursuant to
Superior Court Civil Rule l2(b)(6). Potter’s motion made two arguments. The first
argument was that Ramunno could not bring a claim in quantum meruit against Potter
because such a claim required a plaintiff to have performed a service with the
expectation that the defendant would pay for those services. Potter argued that he had
performed no services for Ramunno in which Ramunno would expect Potter to pay.
Potter claimed any action in quantum meruit must be made against the former client.
The second argument, presumptively based on the same principle, is that an attorney
who initially represents a client and is later dismissed does not have a claim in
quantum meruit against the successor attorney. Noting that the Superior Court has
already allowed a suit involving a fee dispute between an attorney who initially
represented a client and the successor attomey,3 the Court denied the motion.

In l\/larch 201 6, Potter filed the motion now before the Court seeking dismissal
of Count I pursuant to Rule l2(b)(l) for lack of subject matter jurisdiction.

2 An answer to the corrected amended complaint reiterating the denials was filed with the
Court in July 201 5.

3 See Ramunno & Ramunno, P.A. v. Nitsche, 2009 WL 395224, at *l (Del. Super. Feb. 2,
2009).

Ramunno & Ramunno v. Stephen B. Potter, et al..
C.A. No. N14C- 12-077 WLW
May l0, 2016

STANDARD OF REVIEW

This Court is required to dismiss an action for lack of subject matter
jurisdiction if it appears from the pleadings that the Court does not have jurisdiction
over the claim." "The burden of establishing the Court’s subject matter jurisdiction
rests with the party seeking the Court’s intervention."$ When reviewing a claim for
lack of subject matter jurisdiction, the Court "need not accept Plaintiff’ s factual
allegations as true and is free to consider facts not alleged in the complaint."6

DISCUSSION

In Count l of the complaint, Ramunno claims he is entitled to a substantial
portion of Potter’s fee based on Ramunno’s prior representation of the client.
Ramunno claims Potter was unjustly enriched because Potter relied on Ramunno’s
work product to aid in the recovery. Ramunno further claims that he has a charging
lien on a portion of the fees. Potter countered by stating that Ramunno is trying to
collect fees to which he has no claim. In this motion to dismiss, Potter claims this
Court lacks jurisdiction because Ramunno’s interest was in the cause of action that
has been settled. Potter argues that once the cause of action was settled, Ramunno’s
claim was extinguished Potter further argues that a charging lien is an action in rem

made against the funds recovered, and that once the funds have been disbursed, the

" Super Ct. Civ. R. l2(b)(l).
5 Ropp v. Kzng, 2007 wL 2198771, at *2 (Del. Ch. July 25, 2007).

6 Appriva Shareholder Litigation Co., LLC v. EV3, Inc., 937 A.2d 1275, 1285 n.l4 (Del.
2007y

Ramunno & Ramunno v. Stephen B. Potter, et al.

C.A. No. N14c_12_077 wLw
May 10, 2016

lien is extinguished

Black’s Law Dictionary defines a lien as "[a] legal right or interest that a
creditor has in another’s property, lasting usually until a debt or duty that it secures
is satisfied." In the context of an attorney’s charging lien, the property in question
would be the fund recovered as the result of litigation. This context is bourne out in
the Delaware Supreme Court’s decision in Doroshow, Pasquale, Krawitz & Bhaya
v. Nanticoke Memorial Hospital, Inc. where the Court noted that "Thornton defines
an attomey’ s charging lien as "the right of an attorney at law to recover compensation
for his services from a fund recovered by his aid, and also the right to be protected by
the court to the end that such recovery might be effected.’” Based on this def`inition,
an attorney’s charging lien is against the fund, and thus an action in rem. Therefore,
with the caveat that the attorney was discharged without cause, an attorney has a right
to an attorney’s charging lien for services rendered provided there is a fund from
which the attorney may recover. More simply, the action is directed against the fund,
and in order to succeed, there must be a fund to which the lien can attach.

To protect an interest in a fund created by a recovery, an attorney has the right
to intervene in an action. In Murrey v. Shank, the court allowed the attorney that
initially represented the plaintiff to intervene by right "because the attorney’s fees

which he seeks constitute an interest in the transaction."g In point of fact, case law

7D0r0sh0w, Pasquale, Krawz`tz & Bhaya v. Nanticoke MemorialHospital, Inc. , 36 A.3d 336,
340 (Del. 20l2) (quoting 2 Edward Mark Thornton, A Treatise on Attorneys at Law § 578 (1914))
(emphasis added).

8 Murrey v. Shank, ZOll WL 4730549, at *3 (Del. Super. Aug. 30, 201 l).

5

Ramunno & Ramunno v. Stephen B. Potter, et al.
C.A. N0. Nl4C-l2-077 WLW
May l0, 2016

on attorney charging liens in Delaware suggests that a motion to intervene or a
motion for a charging lien are the favored methods of implementing a charging lien.°
lt should be noted that these motions were able to be made only because litigation
was pending before the court. Case law clearly establishes that .an attorney has the
ability to protect his interest in a fund recovered by his aid when there is a court
proceeding.

When there are no court proceedings, the ability to intervene or to assert a
charging lien by motion is not available. However, the lack of a court proceeding will
not extinguish an attorney’s ability to seek payment for work performed in aiding a
recovery. Because an attorney’s charging lien is an action in rem, the lien may be
asserted as long as the funds from the recovery have not been disbursed. In the event
that the funds have been disbursed, an action for unjust enrichment may be available.
"Unjust enrichment is defined as ‘the unjust retention of a benefit to the loss of
another, or the retention of money or property of another against the fundamental

principles of justice or equity and good conscience."’l° Thus, an attorney who

9 See, e.g., Sutherlana' v. Sutherland, 2015 WL 894968, at *l (Del. Ch. Feb. 27, 201 5)
("Katten moves to intervene pursuant to Court of Chancery 24 . . . citing its engagement letter with
Martha and the common law right to assert an attorney charging lien.); Zutrau v. Jansing, 2014 WL
690l46l, at * l (Del. Ch. Dec. 8, 2014) ("thereafcer, those attorneys moved to withdraw and for
entry of a charging lien."); Murrey, 2011 WL 4730549, at *l ("Before this Court is an lntervener's
Motion for Award of Attorr1ey's Fees."); Caldera Props. v. Ridings Dev., LLC, 2009 WL 3069610,
at *l (Del. Ch. Aug. 6, 2014) ("Kaplin Steward has filed a motion seeking an attorneys’ charging
lien . . . .); Webb v. Harleysville Ins. Co. , 1995 WL 71 6757, at *2 (Del. Super. Oct. 23, 1995) ("Court
granted the Intervenor’s leave to intervene for the purpose of asserting a charging lien for legal
services and costs.").

m Schock v. Nash, 732 A.2d 2l7, 232 (Del. l999).

6

Ramunno & Ramunno v. Stephen B. Potter, et al.

C.A. No. N14c_12_077 WLW
May 10, 2016

provided initial representation may assert that the successor attorney has been
unjustly enriched.

In Doroshow, the Delaware Supreme Court noted that "the common law has
long recognized the attomey’s right to a charging lien and that common law courts
have ‘used such means as are available to it to enforce it."’“ As a court of general
jurisdiction, this Court has jurisdiction over actions at law. This jurisdiction includes
the right to enforce an attomey’s charging lien, or to hear a civil action for unjust
enrichment

CONCLUSION
F or the foregoing reas0ns, the Defendant’s motion to dismiss pursuant to Rule

iz(b)(i) is DENIED. IT ls so oRDERED.

/s/ W` _.;ia, .l,-,-{Wi li_ar_n,_l;,_
Resident Judge

 

WLW/dmh

" Doroshow, 36 A.3d at 341 (quoting Polin v. Delmarva Poultrjy Corp., 188 A.2d 364, 366
(Del. Super. l963)).

