In the Matter of the Appointment of Trustee for the Next of Kin of Kim Marie Caswell (Decedent).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0427

In the Matter of the Appointment of Trustee
for the Next of Kin of Kim Marie Caswell (Decedent).

Filed December 11, 2017
Affirmed
Halbrooks, Judge

Dakota County District Court
File No. 19HA-CV-16-93

L. Kathleen Harrell -Latham, Loop Legal PLLC, Minneapolis, Minnesota (for appellant
Jonathan Albert Caswell)

J. Mark Catron, Hansen Dordell Bradt Odlaug & Bradt, PLLP, St. Paul, Minnesota (for
respondent Palmer Law Firm)

Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and
Halbrooks, Judge.
S Y L L A B U S
When a valid contract exists between a client and an attorney and the attorney
completes the work under the terms of the contract and achieves a settlement or recovery,
the attorney is entitled to fees under the terms of the contract and does not release his
attorney lien under Minn. Stat. § 481.13, subd. 1 (2016), by returning the settlement check
to the insurance company pending resolution of a fee dispute.
O P I N I O N
HALBROOKS, Judge
Appellant challenges the district court’s judgment granting respondent one-third of
appellant’s uninsured -motorist settlement for attorney fees. Appellant argues that the

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retainer agreement is unenforceable or void and that respondent released his attorney lien
by returning the settlement check to the insurance company, as instructed by appellant,
when a fee dispute arose. We affirm.
FACTS
Appellant Jonathan Caswell retained attorney Craig Erickson to represent the estate
of his wife, Kimberly Caswell , after s he died in a motor -vehicle accident . Because
Erickson did not have experience handling personal-injury claims, he referred Caswell to
Palmer Law Firm to handle potential personal-injury claims arising from his wife’s death.
Caswell met with Erickson, Erickson’s paralegal, and two attorneys from Palmer Law
Firm—Eric Palmer (Palmer) and Ralph Palmer. During the meeting, Palmer discussed
potential personal -injury claims with Caswell. At some point, Caswell asked Palmer
whether anything would come off his “end.” Palmer replied, “No,” and stated that Caswell
did not have to pay any fees because the representation agreement was on a contingency
basis. Palmer sat next to Caswell and went line by line through the retainer agreement,
which stated, “Sources of recovery may include, but are not limited to, insurance policies
(including liability, uninsured and underinsured motorist, no -fault, and homeowner’s
coverage) . . . .” Caswell signed the retainer agreement at the end of the meeting . The
signed agreement, which is part of the record, shows that Palmer circled “33.333%” and
underlined relevant portions of the “possible sources of recovery” section.
After exploring possible claims and discovering that the driver who hit Caswell’s
wife’s vehicle was uninsured, Palmer Law Firm asserted an uninsured-motorist claim with
Caswell’s insurer that was ultimately settled for $250,000 —the policy limit. Palmer Law

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Firm notified Caswell upon receiving the settlement check and explained that, pursuant to
the retainer agreement, the firm was entitled to attorney fees of one-third of the insurance
proceeds in addition to costs. Caswell became upset about the fees and ordered Palmer
Law Firm to return the check to his insurance company and terminated his attorney-client
relationship with Palmer Law Firm. As instructed, Palmer Law Firm returned the check to
the insurance company and filed a notice of withdrawal and notice of attorney lien. Caswell
petitioned the district court to distribute insurance proceeds and asked the district court to
allocate the $250,000 among himself and his three children.
As an interim step, t he district court ordered Caswell’s insurance company to
distribute two-thirds of the proceeds on a pr o rata basis to Caswell and his th ree children
and to hold one-third plus costs in a trust account pending the resolution of the motion for
attorney fees. The district court held a hearing and heard testimony from Caswell, Palmer,
Ralph Palmer, Craig Erickson, and William Sherry, the crim inal defense attorney who
represented the at -fault driver. Among other exhibits, the district court received into
evidence the retainer agreement and affidavits from Erickson, Sherry, and Palmer.
Following the hearing, the district court ordered Caswell to pay Palmer Law Firm one-third
of the settlement proceeds plus costs of $492. This appeal follows.
ISSUES
I. Is the retainer agreement unenforceable because of a mutual or unilateral mistake of
the parties?

II. Did Palmer Law Firm release its lien by return ing the settlement proceeds to the
insurance company after it achieved a settlement?

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ANALYSIS
I.
Caswell argues that the district court erred because it did not find the retainer
agreement unenforceable based on either a mutual or unilateral mistake. Rescission of a
contract is an equitable remedy and is within the sound discretion of the court. SCI Minn.
Funeral Servs., Inc. v. Washburn -McReavy Funeral Corp., 779 N.W.2d 865, 872 (Minn.
App. 2010), aff’d, 795 N.W.2d 855 (Minn. 2011). We will only reverse if the district court
clearly abused its discretion. Id.
Caswell first asserts that the retainer agreement is unenforceable because the parties
were mutually mistaken as to the contract’s terms regarding attorney fees. A contract may
be rescinded if “both parties were mistaken with respect to facts material to the agreement.”
SCI Minn. Funeral Servs., Inc. v. Washburn -McReavy Funeral Corp. , 795 N. W.2d 855,
861 (Minn. 2011) (quotation omitted). Caswell must clearly show t hat both parties
misunderstood a term or subject matter of the contract. See Carpenter v. Vreeman , 409
N.W.2d 258, 261 (Minn. App. 1987). The district court determined that no mutual mistake
occurred here . The district court further found that Palmer considered Caswell’s
uninsured-motorist coverage one of the sources of recovery. Caswell does not cite any
factual support in the record to demonstrate that Palmer Law Firm was mistaken as to the
contract’s terms. Therefore, Caswell’s argument is unfounded.
Alternatively, Caswell contends that the contract is unenforceable because he was
unilaterally mistaken as to the contract’s terms. The existence of a unilateral mistake “is
not a basis for rescission unless there is ambiguity, fraud, [or] misrepresentation.” Speckel

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by Speckel v. Perkins, 364 N.W.2d 890, 893 (Minn. App. 1985). Caswell asserts that, when
he asked at the initial meeting whether anything would be taken off of his “end,” Palmer
replied, “No,” and stated that Caswell did not h ave to pay any fees because the
representation agreement was on a contingency basis.
But the district court found credible Palmer’s testimony that he talked with Caswell
about uninsured- and underinsur ed-motorist claims and that Palmer interpreted
“[Caswell’s] question regarding taking nothing from his ‘end’ [to mean] that [Caswell]
would not need to advance any fees or costs to the Palmer Law Firm.” The district court
noted that Palmer’s testimony about the parties’ discussion concerning potential uninsured-
and underinsured-motorist claims was corroborated by Erickson.
The district court determined that Caswell was unilaterally mistaken about the terms
of the retainer agreement because Caswell believed that his uninsured -motorist coverage
would not be a source of recovery but that this misunderstanding was not accompanied by
any “fraud or misrepresentation on the part of the Palmer Law Firm ” and that “there was
no evidence presented that shows any threat of force or actual force was carried out against
[Caswell] in order to gain his involuntary consent to the Retainer Agreement.” The district
court noted that Palmer sat next to Caswell as Palmer went through the agreement with him
paragraph by paragraph for ten minutes, explained all terms in the retainer agreement, and
provided Caswell with a copy of the signed agreement before he left. The district court
also discussed that after their initial meeting, Caswell mentioned to Palmer that he was
unhappy with Erickson’s attorney-fee arrangement for the estate claims. Palmer used this

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opportunity to again explain how their retainer agreement worked. Caswell did not discuss
any concerns regarding Palmer Law Firm’s fees during this conversation.
The district court’s findi ng that no fraud or misrepr esentation accompanied
Caswell’s unilateral mistake is well-supported by the record. Erickson, the attorney for the
estate who attended the meeting, testified that he believed that Palmer’s explanation of the
attorney-fee agreement was “complete and very professio nal.” Palmer testified that he
“felt it w as important to connect with [Caswell] , sit down next to him, go through the
retainer agreement on a paragraph by paragraph basis” and that Palmer “circled 33.333
percent . . . [and] discussed with him the contingency fee [they] were entering into on this
representative relationship.” The signed contract in the record includes these markings.
Although Caswell has not argued that the retainer agreement is ambiguous, we also
conclude, based on the district court record, that Caswell’s unilateral mistake was not a
result of ambiguity. The second paragraph on the first page of the retainer agreement states,
“ATTORNEY FEES . . . Palmer Law Firm’s attorney fees shall be 33.333% of t he total
amount recovered on Client’s behalf, plus any app licable state and federal taxes .” The
third paragraph states, “Sources of recovery may include, but are not limited to, insurance
policies (including liability, uninsured and underinsured motorist . . . coverage) . . . .” This
language clearly explains that Palmer Law Firm is entitled to 33.333% of Caswell’s
recovery from his uninsured -motorist claim . The district court also relied on Palmer’s
testimony that his goal in producing the retainer agreement was to use plain language and
he included examples in the retainer agreement demonstrating how attorney fees, litigation
costs, penalties, and net settlements would be calculated. And the district court noted that

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Sherry testified that Palmer Law Fi rm used plain language in the retainer agreement and
that the agreement was “thorough and complete.” Additionally, Erickson stated in his
affidavit that Palmer’s explanation of the agreement to Caswell “was at least as detailed as
any other explanation [he had] heard tort lawyers give under similar circumstances.”
Therefore, the district court record demonstrates that Caswell’s unilateral mistake was not
accompanied by ambiguity.
The parties were not mutually mistaken as to the contract’s terms, and C aswell’s
unilateral mistake was not accompanied by ambiguity, fraud, or misrepresentation. The
district court did not abuse its discretion by finding the retainer agreement to be
enforceable.
II.
We next address Caswell ’s claim that the district court erred as a matter of law by
determining that Palmer Law Firm did not release its attorney lien by returning the
settlement check for uninsured-motorist benefits to Caswell’s insurer. The interpretation
of an attorney-lien statute is a ques tion of law that we review de novo. Effrem v. Effrem,
818 N.W.2d 546, 549 (Minn. App. 2012). Minnesota’s attorney -lien statute states that
“[a]n attorney has a lien for compensation whether the agreement for compensation is
expressed or implied . . . upon the . . . commencement of the proceeding.” Minn.
Stat. § 481.13, subd. 1(a)(1) (2016); see Dorsey & Whitney LLP v. Grossman, 749 N.W.2d
409, 420 (Minn. App. 2008). An attorney lien attaches to “the interest of the attorney’s
client in any money or p roperty involved in or affected by any action or proceeding in
which the attorney may have been employed, from the commencement of the action or

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proceeding.” Minn. Stat. § 481.13, subd. 1(a)(2) (2016). Thus, the attorney has a lien on
any recovery secure d by a client resulting from the attorney’s services as securi ty for
attorney fees. Thomas A. Foster & Assocs., LTD v. Paulson, 699 N.W.2d 1, 5 (Minn. App.
2005). If an express, written agreement for the attorney -client relationship exists, the
amount of the attorney lien is determined by interpreting that agreement. Dorsey, 749
N.W.2d at 418.
Here, the attorney lien was created on November 3, 2015, the date that Caswell and
Palmer signed the retainer agreement. In the first two paragraphs, t he agreement
unequivocally states that Palmer Law Firm would represent Caswell for claims arising
from the “[w]rongful [d]eath claim of Kimberly Caswell, resulting from [a] 10/24/15 motor
vehicle accident” and that, in addition to litigation expenses, the attorney fees would equal
“33.333% of the total amount recovered .” Palmer Law Firm recovered a $250,000
settlement from Caswell ’s uninsured -motorist policy , a claim arising out of the motor -
vehicle accident. Based on the terms of the agreement, Palmer Law Firm had an attorney
lien for 33.333% of $250,000 and related litigation expenses.
As an alternative argument to his claim that the fee agreement is unenforceable,
Caswell asserts that Palmer Law Firm released its lien when Caswell terminated the
attorney-client relationship and ordered Palmer Law Firm to return the check to his insurer.
A client may discharge an attorney with or without cause and employ new counsel. Trenti,
Saxhaug, Berger, Roche, Stephenson, Richards & Aluni, Ltd. v. Nartnik, 439 N.W.2d 418,
420 (Minn. App. 1989). But a client is lia ble for payment of services rendered upon
discharging an attorney. Id. In Trenti, we held that a client who terminated his attorney-

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client relationship before the attorney recovered anything for the client was responsible to
pay the reasonable value of the attorney’s services but was not liable for a contingent fee,
reasoning that the contingency-fee agreement terminated when the client terminated the
attorney-client relationship. Id. at 421. But this case is distinguishable from Trenti. Here,
Caswell ordered Palmer Law Firm to return the settlement check and terminated the
attorney-client relationship after the recovery had been achieved and the insurance
company had issued the check for the policy limit of $250,000.
Caswell cites no Minnesota authority in support of his argument that a law firm
releases its lien by returning a settlement check. The district court found that Palmer Law
Firm did not release its lien, reasoning t hat such a holding would end the incentive fo r
attorneys to take contingency-fee cases in similar situations. The district court noted that,
under Caswell’s argument, a client could hire an attorney on a contingency -fee basis to
achieve a settlement, terminate the attorney-client relationship just before the funds were
distributed, and then hire an attorney on an hourly basis to distribute the funds. Meanwhile,
the attorney who advanced expenses, worked on the client’s case at the expense of other
cases, and risked the possibility of no recovery for the client could end up being paid far
less than the agreed-upon percentage of any money recovered. The district court concluded
that this would “lead to an absurd result and would dramatically change the way attorneys
take cases and receive payment for their time and expertise.” We agree. When a valid
attorney-fee contract exists between a client and an attorney and the attorney completes the
work under the contract’s terms and achieves a settlement or recovery , the attorney is
entitled to recover a fee under those terms. This reasoning is consistent with the purpose

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of attorney liens, which is to protect against “a successful party receiving a judgment
secured by an attorney’s services without paying for those services.” Paulson, 699 N.W.2d
at 5.
Here, Palmer Law Firm and Caswell signed a valid retainer agreement, and Palmer
Law Firm successfully settled an uninsured-motorist claim with Caswell’s insurer before
Caswell terminated the attorney -client relationship. Palmer Law Firm’s lien attached to
any recovery from the uninsured -motorist claim when the agreement was signed. And
Palmer Law Firm did not release its lien by returning the check post-settlement to the
insurer upon Caswell’s request . Accordingly, pursuant to the terms of the retainer
agreement, Palmer Law Firm is entitled to one-third of the uninsured-motorist settlement
plus its costs of $492.
D E C I S I O N
Because the parties to this retainer agreement were not mutually mistaken as to its
terms and because Caswell’s unilateral mistake was not accompanied by ambiguity, fraud,
or misrepresentation , the district court did not err by determining that the agreement is
enforceable. Further, Palmer Law Firm is entitled to recover under the terms of the retainer
agreement because it did not release its lien when it returned the settlement check to the
insurance company at Caswell’s request, pending resolution of the fee dispute.
Affirmed.