This аppeal arises from a suit for damages for breach of contract for legal services or, alternatively, for the reasonable value of legal services under quantum meruit where the attorney withdrew from representation of the client before completion of the litigation for which he was retained. Suit was brought by apрellee Edward W. McCrimmon, against appellant R. Shannon Sosebee, individually and as executrix of the estate of James B. Sosebee, seeking judgment against defendants jointly and severally for $53,097.50, past and future interest, attorney fees and costs.
The trial court granted appellee’s summary judgment motion, denied appellant’s motion for partial summary judgment, attempted to grant provisionally appellee’s motion for sanctions and ordered that appellant’s answer be stricken in the event its ruling on appellee’s summary judgment motion should be overturned. Held:
1. Appellant contends the trial court erred in granting summary judgment to appellee for $53,097.50, plus $21,844.79 past interest, cоurt costs, and future interest, and denying appellant’s motion for partial summary judgment regarding the amount owed to plaintiff for legal representation in the Bobby Cobb litigation.
Appellant Sosebee retained appellee McCrimmon to represent her in two suits, brought against her individually and as executrix of her deceased husband’s estate, by Chrysler First Business Credit Corporation. Appellee represented appellant in these suits on an hourly fee basis. Appellant also engaged appellee on a contingent fee arrangement to initiate related litigation, hereinafter referred to as the Bobby Cobb litigation. In the Bobby Cobb litigation, appellant alleged that her co-defendants in the Chrysler First cases and certain others had defrauded her and were liable to Chrysler First for any amounts for which she might be found liable in Chrysler First’s cases.
The written contingent fee agreement (contract to employ attorney) in the Bobby Cobb litigation pertinently provided: “Attorney shall be entitled" to his full fee, notwithstanding the cliеnt may discharge or obtain the substitution of attorneys before attorney has completed the services for which he is hereby employed. Client understands that he/she may dismiss Attorney at any time for any reason, upon written notice to him and payment of unpaid expenses and services rendered to the date of the receipt of suсh notice; payment to be based upon time devoted to Client’s case at an hourly rate of $200.00 per hour, or the applicable percentage of fee due him under the terms of this agreement of any offers which have been made by any adversary or collateral party, whichever is greater. . . . *706 This agreement and no оther comprise the entire contract between attorney and client. . . .” (Boldface type denotes handwritten words and figures.)
This agreement is silent as to situations where the attorney withdraws from representing his client, either with or without client’s consent, thereby compelling the client either to proceed without an attorney or to obtain other representation. This Court will not revise this agreement to fill a contractual void under the pretext of contract construction. “Courts are not at liberty to revise contracts while professing to construe them.”
Stuckey v. Kahn,
The fee agreement also contained the following contingency as a condition to fee paymеnt: 40 percent of the gross amount recovered from any party (45 percent in the event of an appeal by any party). Under the clear and unequivocal terms of the agreement, no fee payment was to become due and owing absent appellee’s “recover[y]” of some gross amount “from any party,” either by suit or settlement, except under certain circumstances not here applicable. It is uncontested that appellee filed notice of intent to withdraw from the Bobby Cobb litigation and obtained the trial court’s authorization to withdraw prior to any such recovery. “[T]he termination of the employment of the [appellee] рrior to the recovery under the contract prevented the contract contingency from occurring.”
Yetman v. Greer, Klosik &c.,
The issue remains whether appellee could recover the reasonable value of his services under quantum meruit. Where the client discharges the attorney, with or without cause, the attorney retains the right of compensation, not under the contract of employment which is at an end, but under quantum meruit which is protected by the attorney’s lien statute.
Yetman,
supra at 399. In the case at bar, however, the attorney withdrew of his own election claiming that the conduct
*707
of the client compelled him to withdraw. “ “Where there is a contingent fee arrangement between a client and his attorney and the client prevents the contingency from happening, the attorney is entitled to reasonable attorney’s fees for his serviсes that have been rendered on behalf of the client.’ ” Id. at 400;
Burnette v. Bradley,
Once it is determined that the services rendered were received by and benefited, that is, had value to the client, there remains the question as to the amount of attorney fees due and owing. See
Ford v. Smith,
By affidavit appellee asserts he was compelled to withdraw because appellant had commingled individual assets, assets of the deceased’s corporation, and estate assets; loaned estate money withоut obtaining a security or promissory note; transferred estate assets without authority or accounting; changed her allegations of damages resulting from the partnership; refused, contrary to advice given, to establish an estate bank account; failed and refused to pay other attorneys who had represented the estate; refused to obtain experts necessary to pursue her claims; refused to assist in discovery; and refused to consider and accept proposals for resolution of the under *708 lying cases. An attorney stated, by way of affidavit, that appellee had approached him about his firm taking over appellant’s representаtion and the only reason appellee gave for withdrawing was that he would make a better witness (than counsel) at trial. He also stated that, after appellee withdrew, his firm commenced to represent appellant regarding the matters at issue and that appellant had paid his firm all but $5,000 of the amount which she owed for their rеpresentation. This testimony does not raise a genuine issue of material fact whether the sole reason for appellee’s withdrawal was that he would make a better witness — it merely reflects that this was one of the reasons asserted by him.
By way of affidavit, appellant asserted she “concluded” from conversations with appellee that he wanted to withdraw because of the time-consuming nature of his representation and his conclusion there was no reasonable prospect for a recovery from which he could recover his fees. She informed appellee that she did not consent to his withdrawal but he proceeded to withdraw despite her objections. Yet, in her deposition, appellant testified that she believed appellee withdrew because he was scared. She further testified that appellee told her he withdrew because he felt he could be a witness in the case and “a bunch of other information that made no sense [to her] and still doesn’t.” She also testifies that she did not “know why [appellee] withdrew” and does not “know why the judge allowed [appellee] to withdraw.” Appellant provided no reasonable explanation for the inconsistencies between her affidavit and deposition regarding the reason appellee gave for his withdrawal. Accordingly, the rule of incоnsistent testimony discussed in
Prophecy Corp. v. Charles Rossignol, Inc.,
“The burden on summary judgment is on the movant to show that there is no genuine issue of material fact and that [he] is entitled to judgment as a matter of law.”
Riley v. H & H Operations,
Further, there can arise an occasion when the value of the benefit received by a party must be reduced for reasons of equity or justice. See Hudson, supra at 582 (2). In the case at bar, appellee withdrew from representation without the consent of the appellant. Thereafter, appellant was required to obtain another counsel and paid a substantial amount of legal fees to such counsel to pursue the litigation from which appellee had withdrawn. If some of the legal fees appellant had to pay her new attorney were for services, which *710 although originally performed by appellant, had to be re-performed in order to effectively represent appellant, e.g., reading files, personally examining disclosed precedent, case familiarization, etc., a jury could conceivably find that to the extent such duplication was required, appellant received no actual benefit of value from those same services initially performed by appellee.
*710
The issue of value and benefit to appellant thus remained within the jury’s exclusive province, and summary judgment should not have been granted as to a specific amount for the reasonable value of services renderеd. Accordingly, we find the trial court did not err in denying appellant’s motion for partial summary judgment; however, it did err in granting appellee summary judgment as to a sum certain, because genuine issues of material fact remain as to whether all the services at issue were of benefit and value to appellant. Further, prejudgment interest cannоt be awarded in a suit based upon quantum meruit.
Howell v. Styles,
2. Regarding appellant’s third enumeration of error, the judgment is ambiguous whether the trial court, in fact, adjudicated the material issues raised by appellee’s motion for imposition of sanctions merely by issuing a provisional ruling in the аlternative, or whether the paramount holding of the trial court was that the grant of summary judgment rendered the sanctions issue moot. “ ‘[WJhere a judgment is susceptible [to] two interpretations, that one will be adopted which renders it the more reasonable, effective, and conclusive, and which makes the judgment harmonize with the facts and law оf the case and be such as ought to have been rendered.’ ”
Alexander v. Steining,
Judgment reversed and remanded with direction.