*1 363 Hays, J., dissents. Hays, Justice, dissenting. lessening
Steele Without be in broad of a to order whatever powers remedy may chancellor statutory with the when the law affords keeping proof, specific stockholders, relief, as I minority fashioned for the protection see that relief may it those affected claim whether irrespective in law or in would case tried I remand the case for a equity. value, if determination chancellor as the fair any, stock. appellant’s BROWN, &
CROCKETT P.A. Richard COURSON 92-605 S.W.2d 849 938 Court of
Supreme Arkansas 22, Opinion delivered March [Supplemental Opinion Rehearing on Denial of April 1993.*] participaring. *Newbern, J.,
Crockett, Worsham, P.A., Brown & Richard by: C. Crock- ett, for appellant. Wilson, Richard Corum & Byrd,
John Engstrom, Corum, Dudley, Gary William R. Wilson D. for by: appellee. Glaze, Tom Justice. This case over the involves a dispute Courson, if any, amount of Richard compensation, appellee, Brown, (C B), legal owes Crockett & P.A. its & appellant, Averette, Courson shot with shotgun by services. was a a Thomas result, and as a blind one and sustained totally eye Courson 1989, July loss of vision in the other. On thirty percent him in claim against Courson retained C & B his represent agreed signing whereby (1) a contract pay Averette. $7,500, (2) & B fee hourly C a retainer he would pay up $7,500 retainer), (including the plus out-of-pocket and, addition, (3) C would ten & B receive expenses percent $30,000. which exceeded any recovery paid later, B, B retainer fee amount to C & and five months C & suit negligence filed Averette. against litigation events led to this acrimonious between C & B and Courson after & B began C demanded policy *3 limits, $300,000, from Averette’s insurance carrier and when the later, 17,1991, eventually year carrier responded January $100,000. in counter-settlement offer the sum of Courson offer, rejected the but B immediately C & to Courson suggested Afterwards, that offer reasonable. Courson’s relationship fact, with C & B nose-dived. In C B& then asked Courson to remit the balance the fees and ($9,889.19) costs due under their 5 July agreement to which Courson that he was responded unable to C & B pay. that, informed if Courson he did not comply contract, with their 5 July he would to have enter a new agreement C B whereby & would receive one-third of any
settlement reached at least sixty before trial or days forty percent if settled within of trial. sixty days Courson indicated apparently Cto & B he signed had agreement returned the when, fact, C & B Instead, in had done so. Courson hired Wilson, Jr., other William attorneys, R. Gary Corum and John (W Richard Byrd B), C & and notified C & of its B termina- on tion March 1991.
W C & B file, C & B turn requested over Courson’s refused, but C & B stating Courson by this time owed it more $21,000 than in fees and C expenses. & B related it would release its file only when Courson performed part his contract. W & B C proceeded with their representation Courson, $300,000 which resulted a with Averette’s settlement insurance This company. settlement amount was into the placed court’s and C & B registry, brought its claim recovery under its July contract and further asked that be on a lien placed Courson’s cause of action. Courson B responded, C & arguing $7,500 it, was not entitled anything, including retainer paid inured to Courson’s because none of the work C & B performed benefit.
After an extensive on the conducting hearing bearing claims, held that had the trial court Courson parties’ respective & (1) C & B for cause since C B failed to require Averette to disclose his or to determine coverage insurance covered, (2) whether or not were members of damages punitive C & B with Courson when Courson expressed displeasure $100,000 offer, refused (3) justified being Courson was disturbed about the in which his case was way proceeding. that, trial court further found under Ark. Code Ann. 16-22-303 § (1987), C & B'was entitled to a reasonable fee in the attorney’s $15,000 incurred, $2,541.27, amount of and costs which should be credited with the amount Courson had already paid. The court awarded C & B a lien Courson’s settlement upon and further proceeds ordered C & B to deliver Courson’s file to W C & B within ten days.
C brings & B three appeal, arguing for reversal. points urging the trial court erred cross-appeals, in two We review respects. these claims as the respective raised parties and argued them on appeal.
In considering C & B’s
we have
points,
difficulty in
*4
reaching the merits of
of its
any
arguments. First C & B seeks in
to
Courson,
enforce not its
5
appeal
July agreement
but
instead its
amended and substituted
purported
agreement
which C & B claims
agreed, giving
Courson
C & B a third of
in
eventually recovered
this cause.
other
Among
things, C & B contends on
that Courson had stated that
appeal
B,
he had signed the new contract submitted to him C & and
by
However,
record,
he was
it.
in
we
estopped
deny
reviewing the
cannot find where this contention was ever
to the trial
presented
court below. C & B conceded as much in oral
As we
argument.
before,
have
held
this court will
repeatedly
not countenance an
argument raised for the first time on
Lytle v. Wal-Mart
appeal.
Stores, Inc.,
139,
309 Ark.
In its second C & B submits that the trial court point, lien, failing erred in to enforce C & B’s retaining for a request
367
be moot. As Courson submits in response,
but this issue
appears
28,
its
1991 order directed Courson’s
trial court in October
given
be returned and for his files to be
personal
copied
effects
directions,
toWC&B.C&B
acceded to these
thereby
parties.
moot
on this
between the
making
any prior dispute
point
&
final
it
Concerning
argues
C
B’s
the trial
point,
Code
failing
court erred in
to award it
fees under Ark.
attorney’s
16-22-308,
obtaining
Ann.
it
in
fees
since
and costs
prevailed
§
agreement
under its
5
with Courson. While
July
contractual
argues
C & B
this issue on
it
failed to raise and
simply
appeal,
on
obtain a
this matter below. In a
case
ruling
recent
where this
court decided a similar
for
on
request
attorney’s fees
we
appeal,
held that the burden of
from
on
obtaining ruling
the court is
such fees and the
attorney requesting
objections
matters left
unresolved below are waived and
relied upon
be
on
may
Grisham,
McElroy
4,
v.
appeal.
306 Ark.
On argues B cross-appeal, because C & was discharged cause, the trial court erred awarding any fees C B. attorney’s to & The trial court ruled that Ark. Code
Ann. (1987) 16-22-303 B entitled C & to a reasonable fee for § rendered, services costs. The plus trial court was correct.
In Henry, Goodman, Walden & Davis v. 294 Ark. 741 (1987), S.W.2d 233 this court stated that a client’s exercise of the right to discharge with or attorney without does cause not constitute a breach of contract because it is a basic term of the contract, implied by law into it reason of the nature of the attorney-client that the relationship, client may terminate that at contract time. any Citing with approval the case of landmark Brent, (Calif. Fracasse P.2d 1972), this further court related California rule that there is injustice no awarding reasonable value he or she services rendered to the time of up discharge. The court noted Fracasse that this rule preserves right client’s to discharge his attorney, *5 and yet acknowledges the attorney’s right to fair compensation for work performed. Courson
Although argues attorney’s only fees should be cause, awarded an attorney who is discharged without the better 368 above, an attorney namely, in Fracasse that related
rule follows
reasonable
can recover the
or without cause
The North
discharge.
to the date of
his or her services
value of
taking
a number of opinions
sets out
Appeals
Carolina Court
68, 247
Rhodes,
S.E.2d
38 N.C. App.
v.
Covington
this view. See
Fla.
371 So.2d
Brockington,
App.,
see
Sohn v.
(1978);
305
also
(1980);
This court has held fee, not attorney’s the reasonableness of an determining ations contract, (1) judgment, fixed are: attorney’s specifically skill, and standing learning, ability, experience, professional advice; (3) the amount or (2) the between relationship parties; case; nature, (4) matter of the subject of the importance research; (5) of services in difficulty preparation extent taken and the nature and (6) actually pleadings; proceedings to the the time and labor devoted litigation; (7) extent of the cause, of the client’s the difficulties the course presented and the results obtained. Robinson v. litigation Champion, In these determina (1972). making Ark. 475 S.W.2d tions, both the trial court’s and this court’s experience as a of the character of such services be used knowledge may of the is to be guide. weight given opinion Id. Considerable Id. before whom the are conducted. judge proceedings relevant that C & B the law argues misunderstood it would be to his case and the case so that neglected develop C & B for settlement. He asserts the evidence reflects ripe settlement browbeat and coerced him to accept inadequate offer, strained experienced offer. After Courson refused the *6 B, C & to hire new counsel. Courson causing relations with him said B then refused to file information to provide that C & Courson’s new counsel.
C & B the trial with considerable evidence judge presented and exhibits the services it rendered Courson. reflecting legal C & B’s documents showed its fee to time of hourly $22,300. B discharge totaled C & showed it Cour- researched case, son’s drafted and various other routine complaints plead- — $300,000 ings, motions and briefs. C & B made a demand for the limits of Averette’s homeowner’s It received in liability policy. , $100,000, return an offer settle for which refused by Then, client. C & B began to research a structured settlement and that research in the record. C & B amply supported argues that the arrived at structured settlement would have been $343,000 term, worth over the approximately and was long fact, valued as worth value. C present In & B that, asserts at the discharge, just time of it had informed C & B Courson that had work on begun to bargain attempting for an “annuity life with cost of escalators.” living
C & B showed arranged that it had and taken deposi- Courson; Averette; Smith, tions of Sam Sheriff of Chicot County; Dotson, Donnie Averette; Game & Fish officer who arrested Chen, and Dr. did admitting physician who on surgery B Courson. C & its argues that efforts educated Averette’s counsel and that the settlement offers made were not mere Also, nuisance offers. C & B asserted that it was in continuous contact with the and numerous who had hospitals doctors treated Courson. billable hours records also reflect that C & B spent a considerable amount time talking writing Courson’s many creditors.
From we cannot foregoing, attorney’s fees say awarded trial by the court were excessive or for the unreasonable services C & B rendered in this matter. we affirm Accordingly, the trial court’s award of attorney’s fees and costs.
Dudley JJ., Newbern, dissent. Justice,
Robert H. direct Dudley, concurring appeal; on dissenting on stated in cross-appeal. The limited facts correct, while do not majority opinion, give a reader complete the essential factual of this understanding underpinning just case—that the were cause and that attorneys *7 their services were of little value to the client. The facts complete had been at a turkey hunting are as follows. Richard Courson hunting club on Tom Steele Island on private Mississippi back to the clubhouse when a walking poacher, River. He was Averett, Thomas mistook him for a and shot apparently turkey him in the face with a load of number six steel shot from thirty- two of the shot went into Courson’s steps away. Ninety-seven torso, face, result, and brain. As a even after four upper surgical on his left and two on his procedures eye procedures right eye $30,000, costing sight over he lost the in the left incurred a eye, loss of vision in the and suffers thirty right, from other less percent Courson, After injuries. severe Averett shot he saw that Courson wounded, later, was and fled the scene. Six severely or seven hours warden game caught Averett and Averett confessed to what he had done.
Later, Courson hired Sam of Crossett as his Pope attorney file against a civil suit Averett. Courson was subsequently referred to Robert J. Brown of the law firm of Crockett and Brown, Brown in Little Rock. Courson talked to decided to hire him, and amicably discharged has no Pope. Pope’s employment further materiality. Courson entered into a written contract with firm, Brown, Brown’s Crockett and which the firm was to contract, him in his civil represent suit. In the Crockett and Brown agreed to be rate that would paid hourly amount to a 15,000, $ maximum of plus percent any in excess of recovery $30,000. $7,500 Courson paid retaining fee.
Crockett and Brown filed suit for against Averett 13, 1989, on November a little over seven months after being Courson, Even employed. though Averett shot ran and left away, die, Courson to Crockett and Brown failed to pray punitive The law firm did damages. not inspect Averett’s insurance policy to see if it covered punitive damages investigate and did not Averett’s net worth. The law personal firm failed to conduct any research on the question of exclusion of in damages punitive and, insurance The law did policies. firm take on depositions 27, 1990, February eleven after being months made employed, $300,000 demand on Averett’s insurance for the limit of company his policy. 17,1991, an offer
On insurance made January company $100,000. Robert J. Brown Courson into attempted pressure firm had though offer even the law no economic accepting earnings of Courson’s loss future did not know the analysis amount of future medical testified that he expenses. Courson knew that faced as much as another in medical bills addition, him, and, just to remove shot still he knew that eye additional Courson testified that surgery necessary. it, Brown told him: you’re gambling your “Goddamn with money anymore, you’re gambling my with money.”
Courson knew another who had retired after attorney years with a different asked twenty-one insurance company evaluate his case. After conferring retired told attorney, Courson Brown he would settle *8 that his $300,000. case of clear less liability for than Crockett and Brown never obtain attempted help Courson Instead, social security benefits. advised Brown Courson to get into counseling, get rehabilitative and job, try to find an oral surgeon and a neurologist the Little Rock area.
Courson failed to charges and pay hourly costs had law agreed to the firm. pay They amounted to almost $10,000 over and above the amount as retainer. paid Brown and an associate talked to Courson about his failure to the amount pay owed, that he and also they entering discussed into a new agreement. The law wanted firm change contract to hourly a one-third contingent agreement. fee Courson that he testified funds without and felt the law firm was trying to coerce him into a contract that was more advantageous to the firm. Two weeks later Courson told the “I associate: think you’re screwing me.”
The insurance offered the law firm a company structured $150,000. settlement totaling Courson testified that the settle- ment offer had not been disclosed to him when the called associate and if asked he had signed the contingent new fee agreement. Courson testified that he told the signed associate that he had fact, new and agreement so, it in put the mail. In he had not done and Courson, never did. According to it was said that only after he he had the new signed agreement that Brown advised him the new structured settlement offer. refused and the offer Crockett and Brown.
fired Wilson, Engstrom, hired the law firm of Courson then Rock, and in Little and John Richard Dudley, Byrd, Corum The Wilson firm and commenced Hamburg. Byrd representation of Courson and asked the Crockett and Brown firm for Courson’s file. Crockett and Brown refused to the file to the Wilson give court, firm. After motions were filed in the trial various record, Crockett and Brown firm was removed as counsel of the Wilson firm and were substituted. The trial court Byrd ordered Crockett and Brown to the Courson file to the give Wilson firm, but Crockett and Brown did not do so. The Wilson firm arranged for examinations of Courson and obtained medical evaluations. The Wilson firm obtained the insurance policy determined that were covered. punitive damages The complaint was amended to ask for damages. After the Wilson firm punitive obtained all of the medical documentation and necessary devel- data, economic a demand was made for the oped appropriate $300,000. limits. The case was settled for policy settlement were in the of the court because proceeds placed registry Crockett and Brown claimed a lien on the proceeds.
This involves the amount of Crockett appeal and Brown’s fee. The foregoing facts are set out in such detail to show the two critical factors: that Courson Crockett and Brown cause,” “with and that while Crockett and Brown have may case, little, devoted many hours to this Courson received if any, *9 Thus, benefit from those hours of work. we have the real issue of when discharged an with cause should attorney his fee be based on the hours worked and primarily costs the expended by or should it be attorney, based on the amount of benefit to the client?
In the trial court Crockett and Brown that were argued they entitled to the specified hourly rate fee of ten plus contingent as percent set out in their contract of employment. contended he owed Crockett and Brown because he nothing them discharged just with cause.
The trial court ruled that Courson discharged Crockett and that, Brown with cause” “just and to Ark. Code Ann. pursuant 1991), 16-22-303 Crockett and was entitled to a (Supp. Brown § “reasonable” fee in the amount attorney’s costs $2,541.27, was entitled a set-off for incurred of and Courson to $7,500 already paid. and Brown firm makes three On direct the Crockett appeal, of error. I with the that we assignments agree majority opinion cannot of their because of errors any arguments procedural reach and, accordingly, affirming concur with the majority opinion the trial court on the direct appeal.
On contends that court erred cross-appeal, Courson the trial Crockett and based awarding to Brown reasonable fee upon firm, work done law amount of costs. This is the by plus real issue in case. The trial court ruled that Crockett and Brown was entitled to such a fee to Ark. Ann. Code pursuant §16- 1991). 22-303 that majority opinion affirms I (Supp. ruling. dissent.
Discharge
Attorney
an
Attorney-client contracts contain
implied provision
time,
the client may discharge
attorney
at
either with
any
or
654,
without cause. Sikes v.
266 Ark.
[T]
an
who
attorney
fails to
the cause with reasona-
prosecute
diligence,
ble
for that is
of an
clearly
measure
attor-
ney’s duty
his client.
other
Any
rule would
require
client
retain an
who
attorney
neglecting
was
the cause
failing
proceed
proper diligence.
Co.,
418, 427, 233
Johnson v. Missouri Pac. R.R.
149 Ark.
S.W.
699,
(1921).
Because a client may
terminate the
always
contract, a breach of contract action
by
wrongful
discharge does
exist. See
really
Henry,
& Davis v.
Walden
Goodman,
294 Ark.
Discharge Without Just Cause
In
Goodman,
Walden &
Henry,
Davis
firm was hired
a law
for a
client
contingent consideration of one-third of any
That law firm
recovery.
cause. A
just
without
*10
second law firm was
for a
employed,
contingent
also
consideration
of
of
one-third
second
any recovery.
judg-
firm obtained
100,000,
afeeof$33,333.
$
ment for
and it
The first
firm
paid
filed suit to collect another one-third from
of
proceeds
The trial court refused to
the first firm
judgment.
award
one-
third,
did award
fee
it
but
a reasonable
to based
the amount
upon
of work done
that firm. We affirmed and stated that it would
by
“be
injustice
to the client to hold him liable for both
contingency
exercising
right
fees for
that fundamental
termi-
[to
said,
nate the contract at
We
“an
any
underlying
time].”
of this
is that the
has
assumption
proposition
contingency
31,
been effected
Id. at
discharge.”
The material part of the 1989 Ark. Code Ann. 16-22- § law, solicitor, “The of an provides: compensation at or counselor for his governed services is by agreement, or which is expressed implied, not restrained law.” (Emphasis added.)
We need not resolve the of whether the question legislative branch regulate can because the compensation attorneys statute was intended to obviously situations in which the apply client discharged the attorney just without cause. Such is not us; case now before this case involves discharge just cause. Even the majority opinion tacitly agrees that the does not statute govern, for it holds when an attorney just cause the amount of compensation is not governed by statute, agreement, as set out in the but rather is to be based upon meruit. theory quantum Dismissal With Just Cause The case before us involves dismissal with cause. In just Sons, 630, 632, 81 Beaumont v. J.H. Hamlen & 190 Ark. S.W.2d
375 24, 25 we well settled in this and most (1935), wrote: “The law is that, . . . commits a material attorney other if jurisdictions of of forfeits all employment, thereby right breach his contract reasoning The of the was that a client compensation.” opinion to contract, and the to the entire when the attorney perform employs is the attorney entire contract not the forfeits performed, stipu 632, 81 Id. at 25. a result lated at S.W.2d As of the compensation. the language, argues above that Crock cross-appellant is to fee any ett Brown firm not entitled whatsoever. At first blush, However, the to have the argument seems merit. case was written before our cases held that a his an to implied right client time, terminate a contract at and that does not amount to any Thus, breach of contract. case at is of essentially the bar matter first for this court. impression holds majority opinion that Crockett and Brown is meruit,
entitled to compensation based
upon quantum
the
standard for that award is based on the
of
amount
time and
devoted to the
expense
by
case
the
That is not
attorney.
the
correct standard for this
of
v.
type
case. As set out
Johns
Klecan,
(Ill.
1990),
Amicus contends there be will substantial diffi- culty ascertaining amount of under a recovery quantum meruit same such theory. difficulty—if it however, be—is also present, in cases in which an attorney has been discharged with “cause” yet such difficulty *13 does not to have been appear insurmountable. Id. at 13.
In summary, majority opinion a windfall to provides who attorneys are discharged just with It cause. allows them to recover “reasonable fees” based on primarily amount time expended by attorney, regardless of whether the work benefitted the client. Such a standard is not in with the comport rationale for quantum meruit case. The type holding should be that when cause, just might recover on the basis of for quantum meruit the amount that his services has enriched the client. Accordingly, I dissent on cross-appeal. J., joins in this concurrence and dissent.
Newbern, 377-A OF REHEARING ON DENIAL OPINION
SUPPLEMENTAL 26, 1993 APRIL Crockett, for C. Richard appellant.
Wilson, R. Dudley, by: Corum & William Engstrom, Wilson, D. Corum Byrd, Gary Jr. and John R. appellee. Glaze, for rehear-
Tom
Justice. Appellee
petitions
court’s
in this cause and
ing and clarification of the
opinion
Henry,
asks whether
this court’s reference to
particularly
Goodman,
Walden & Davis 294 Ark.
377-B man was intended to underscore the Fracasse rule to the extent that rule an attorney allowed cause to recover the discharged reasonable value of his or her discharge.1 services to date of clarification,
In addition to requesting Courson reas serts his position adopted by dissenting opinion, standard of in with-cause recovery attorneys should discharges be limited to the amount services his attorney’s enriched or her client. claims He the “reasonable value” rule the court for adopted permits attorney discharged cause to recover based on his merely or her time cards. We disagree. The various factors set forth in our earlier have opinion been for applied decades state’s courts. Such awards are determined on a basis, case-by-case circumstances, and depending upon trial its court in may discretion not award any fee. Courson’s argument in this respect without merit. 1 The court’s dissenting this rule was adoption Justices opposed by Dudley
Newbern requiring who for a rule that an opted with cause was limited to a fee amount his majority or her services had enriched the client. Both dissenting justices agreed 16-22-301—304 §§ were in this case since applicable *15 those discharge. in without cause provisions applied