1. What was the agreement-to-pay relationship? Who was involved? Who was to be paid?

2. Explain why Izmirlian ends up paying his ex-wife’s lawyer’s fees when he did not make the agreement.

3. What is a subrogee and who ends up in that role in this case?

Ellen Marshall, an attorney, represented Laureen Moran, the late wife of William M. Burke, M.D. (plaintiff) in their divorce proceedings. Marshall and Burke were involved in litigation after Burke refused to pay her fee for the divorce case, which the trial court had awarded and for which Burke had guaranteed payment.

In early 1999 Burke arranged a meeting with Marshall and Moran to discuss Marshall’s representation of Moran in a post-divorce action initiated by Moran’s former husband, John Izmirlian. Earlier, Marshall had told Burke that Izmirlian was dishonest, concealing his income from both the Internal Revenue Service and Moran. In that meeting, which lasted two hours, they talked almost exclusively about Moran’s legal situation. Burke once again mentioned that Izmirlian was attempting to hide his finances and that he wanted to ensure Izmirlian paid his support obligations. Moran said she was unable to pay for Marshall’s services and Marshall herself knew that Moran had no steady means of supporting herself, that Izmirlian had no money, and that Moran had previously discharged a fee obligation of approximately $15,000 in bankruptcy proceedings. Consequently, Marshall raised the issue of payment, asserting that litigation would be expensive and that she could not proceed without payment. According to Marshall, Burke assured her that he was “willing to throw some money at this, so that that little prick pays to support his kid” (a daughter who had lived with Burke and Moran). With that assurance, Marshall and Moran signed a retainer agreement and Marshall commenced work on the case, including arranging a meeting between the parties, which turned out to be unproductive.

Moran became very ill and Marshall cautioned Izmirlian (defendant) and Moran against proceeding; however, Burke urged Marshall to continue and again promised to pay, which Marshall confirmed in a letter. Although Marshall never received payment during her representation of Moran, she did not demand payment during Moran’s illness because she relied on Burke’s promise and by then had only represented Moran for a short period. Both Moran and Burke, on the other hand, deny that Burke agreed to pay plaintiff’s legal fees and costs on behalf of Moran. Burke admits paying a forensic accountant who aided Moran in tracking down Izmirlian’s assets. At the conclusion of the suit between Marshall and Izmirlian, Izmirlian was ordered to “pay a counsel fee of $32,177.29 to Ellen Marshall, Esq. in accordance with the order filed February 22, 2000.” Izmirlian did not pay. Burke filed a suit alleging that Izmirlian’s breach of court orders caused him harm, including compelling his payment of Marshall’s fees. The court entered a default judgment against Izmirlian but later vacated it.

Izmirlian then moved for summary judgment in Burke’s case against him. The trial court granted summary judgment because Burke was not entitled to proceed because he had paid Marshall as a volunteer. Burke appealed.

JUDICIAL OPINION

PER CURIAM … The trial judge found that that there was no assignment of Moran’s rights to plaintiff. More importantly, the trial judge ruled that plaintiff was a volunteer because “he put [the obligation to pay Marshall’s fees] ………………………