Capehart v. Church, CC787
| Decision Date | 26 February 1952 |
| Docket Number | No. CC787,CC787 |
| Citation | 136 W.Va. 929,69 S.E.2d 127 |
| Parties | CAPEHART et al. v. CHURCH et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
An attorney's lien for professional services may not be enforced in equity against a stranger to the litigation in which such services were rendered.
Capehart, Miller & Capehart, Welch, Harold W. Calhoun, Keystone, for plaintiffs.
Mahan, White & Higgins, Charles E. Mahan, Fayetteville, for defendants.
This suit was instituted in the Circuit Court of McDowell County, by Harry J. Capehart, Leon P. Miller and Harry Capehart, Jr., attorneys, practing law as partners under the firm name of Capehart, Miller & Capehart, plaintiffs, against Brady Church, Glenn Charles A. Coolidge, Lee, Eugene H. Bird, Charles A. Coolidge, Paul C. Cabot, James L. Richards, Charles F. Adams, Edwards M. Farnsworth, Robert M. Folson, and H. S. Payson Rowe, trustees of the Eastern Gas & Fuel Associates, a voluntary association of the Commonwealth of Massachusetts, commonly known as a Massachusetts Trust, defendants.
Plaintiffs sought recovery of compensation for legal services rendered defendants, Brady Church and Glenn Church, hereinafter referred to as 'Churches', under a contract for a contingent fee; a determination of the value of property received by the Churches under an agreement between them and the defendant, Eastern Gas & Fuel Associates, hereinafter referred to as 'Eastern'; discovery as to the terms of the agreement between the defendants; a lien on certain houses and buildings received by the Churches under the terms of such agreement; an accounting of rents received by the Churches from such property and a decretal judgment for one-fourth thereof; a holding that Eastern is secondarily liable for payment of plaintiff's fee; and general relief. In the alternative, plaintiffs asked that the court fix and decree a reasonable fee for legal services rendered the Churches by plaintiffs.
A demurrer filed by Eastern was sustained, and the case comes here on certificate with the questions raised upon that determination.
The allegations of the bill of complaint, being taken as true upon the demurrer filed by Eastern, present the following facts.
In November, 1950, plaintiffs were retained by the Churches to prosecute a claim on their behalf against A. R. Thompson and Company, a partnership, hereinafter referred to as 'Thompson and Company'. The contingent fee contract here considered was entered into, by the terms of which, plaintiffs were to receive, in consideration of their services, one-third of any sum recovered by the Churches as a result of litigation, and one-fourth of any sum obtained from a compromise or settlement of the case.
Thompson and Company, for some time prior to 1947, had been engaged in the cutting and sawing of timber for Eastern, or its predecessor. In that operation they had erected a number of houses and buildings on land owned or held under lease by Eastern, with an understanding that the structures were to become the property of Thompson and Company.
On August 6, 1947, Thompson and Company sold the houses and buildings, along with other personal property, to the Churches. The consideration for the conveyance of the houses and buildings was $9,000. This property was included in a bill of sale executed on that date in which Thompson and Company covenanted that they had good title to the property conveyed; that they had a right to sell and convey the property; that such property was clear of all liens and encumbrances; and that they would warrant and defend against the claims of all persons. The Churches took and held possession of the houses and buildings until dispossessed by Eastern, which claimed ownership of the structures by virtue of its ownership of the premises on which they were situated.
The Churches then sought the advice of plaintiffs, who advised them that they had a claim against Thompson and Company for breach of the warranty contained in the bill of sale of August 6, 1947. The contingent fee contract in controversy was made, and an action of assumpsit was instituted by the plaintiffs in behalf of the Churches against Thompson and Company to recover the purchase price paid for the buildings. Notice of the attorney's contract was served upon Thompson and Company along with the summons instituting the action.
Thompson and Company notified Eastern that they were relying upon their contract with that association with reference to ownership of the houses.
An agreement was reached between the defendants whereby ownership by the Churches of the structures in dispute was recognized by Eastern, and Eastern was to pay the Churches for the use thereof. Upon consummation of the foregoing agreement, the Churches dismissed their action against Thompson and Company, took possession of the houses and buildings, and have since collected rent thereon from Eastern.
Plaintiffs say that for all practical purposes the agreement between the defendants was a compromise of the action of the Churches against Thompson and Company; that therefore, by virtue of their contingent fee contract, they are entitled to one-fourth of the value of the property received by the Churches under their agreement with Eastern; and that the defendants have 'wrongfully, secretly and surreptitiously' conspired together '* * * with the intent and to the end that complainants would not and could not be able to collect their said fee * * *'.
Eastern, the sole defendant demurring to the bill of complaint, contends that plaintiffs have an adequate remedy at law; that the plaintiffs do not state a cause of action against Eastern; that there is no equitable jurisdiction because there is no fiduciary or contractual relationship between plaintiffs and Eastern; that a trust or lien cannot be enforced in the absence of a res to which it can attach; and that the bill has stated no right to discovery.
The trial court sustained the demurrer to the bill on the grounds that the plaintiffs have an adequate remedy at law against the Churches; that plaintiffs have not prosecuted any action in behalf of the Churches against Thompson and Company; that such action should have been prosecuted or there should have been an allegation of non-liability on the part of Thompson and Company; and that the bill does not allege that the dispossession of the Churches by Eastern was wrongful.
Five questions are certified, but the certificate presents only two real questions: (1) Does a court of equity have jurisdiction of the cause pleaded in the bill of complaint? (2) Do the plaintiffs have a cause of action against Eastern? The other questions certified involve reasons which tend to support the ruling of the trial court on the two basic questions.
It is well established that an attorney has a lien on the fruits of litigation to aid in the enforcement of a demand for his fee by resort to the property or money he has recovered for his client. Such liens may be classed as retaining liens and charging liens. 'A retaining lien is the right of the attorney to retain possession of a client's documents, money, or other property which comes into the hands of the attorney professionally, until a general balance due him for...
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