Cummings v. Patterson
| Citation | 59 Tenn.App. 536,442 S.W.2d 640 |
| Parties | Will CUMMINGS v. Ramon G. PATTERSON. |
| Decision Date | 14 November 1968 |
| Court | Court of Appeals of Tennessee |
Tanner & Jahn, Chattanooga, for appellants, Will Allen Wilkerson and Swafford & Taylor, Chattanooga, of counsel.
Ellis K. Meachman, Chattanooga, Guardian ad Litem for Will Cummings.
This is the second time this case has been before this Court. The first review involved an attempt by certiorari and supersedeas to obtain a reversal of a decree of the Chancellor approving a compromise settlement of $300,000.00 in behalf of the original complainant Will Cummings, at that time represented by next friend appointed by the Chancellor because of his infirm physical and mental condition. See Cummings v. Patterson, 54 Tenn.App. 75, 388 S.W.2d 157, for the background of the case prior to the remand.
The present appeal is by counsel who brought the original action against Ramon G. Patterson. The two principal questions are (1) whether the Chancellor erred in declining to enforce that provision of the contract of employment between the attorneys and Judge Cummings under which compensation of counsel was to be one third of any recovery and (2) in event the provision for a fee of one third be held not enforceable whether the allowance of a fee of $40,000.00 on the basis of quantum meruit is adequate.
The Guardian ad Litem for Judge Cummings has also appealed insisting counsel should have been denied any compensation because the employment contract purported to deprive Judge Cummings of the right to settle without the consent of counsel and for that reason is completely void as against public policy.
After this court, in denying certiorari and supersedeas, held that counsel for Judge Cummings were without authority as next friend or otherwise to challenge the Chancellor's action approving the compromise settlement there was a full hearing before the Chancellor on the question of fees due counsel for complainant. As in this court, the Guardian ad Litem resisted the allowance of any fee while counsel insisted on the fee of one-third provided by their contract of employment.
In a lengthy opinion the Chancellor held the contract of employment void because it purported to deprive the litigant of the right to settle except with the consent of counsel. The Chancellor held, however, that counsel were entitled to reasonable compensation and without hearing proof found that $40,000.00 was the reasonable value of their services.
Counsel for appellant concede in limine that the provision of the contract requiring Judge Commings to secure the approval of counsel before agreeing to a settlement of his claim is void and unenforceable as against public policy. It is insisted, however, that this provision of the contract can be discarded without impairing the agreement of the parties as to a contingent fee of one third of any recovery. Although there is a wealth of authority on the subject as appears from an annotation at 121 A.L.R. 1122 et seq., we are not cited to any Tennessee decision controlling the question whether the invalid provision of the contract is divisible from the remainder of the contract.
Preceding the above annotation at p. 1119, there appears an exhaustive review of the authorities by the Supreme Court of West Virginia in Butler v. Young, 121 W.Va. 176, 2 S.E.2d 250, 121 A.L.R. 1119, with a dissenting opinion by the President of the Court.
While recognizing that the weight of authority is to the contrary, the majority of the court held enforceable the provision of the contract fixing compensation of counsel, against the contention that the contract should be struck down in its entirety because of the provision undertaking to deprive the litigant of the right to compromise without the consent of counsel.
In a strong dissent the President of the Court reasoned:
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Edwards v. Travelers Ins. of Hartford, Conn.
...public policy, Finchum Steel Erection Corp. v. Ironworkers Local 384, 202 Tenn. 580, 308 S.W.2d 381 (1957), Cummings v. Patterson, 59 Tenn.App. 536, 442 S.W.2d 640 (1968), cert. denied, (1969), or that the contract was unenforceable in a way so as to affect the action for inducement to brea......
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Alexander v. Inman
...the process by which the attorney and the client reach an agreement concerning the terms of employment. Cummings v. Patterson, 59 Tenn.App. 536, 541, 442 S.W.2d 640, 643 (1968); ABA Comm. on Ethics and Professional Responsibility, Informal Op. 86-1521 (1986). Attorneys must not permit their......
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Jackson v. Travelers Ins. Co. of Hartford, Conn.
...a settlement may be made directly with a party represented by an attorney and without the attorney's consent. Cummings v. Patterson, 59 Tenn.App. 536, 444 S.W.2d 640 (1968). Notwithstanding the assertions raised by the defendant, it is generally recognized that wrongful interference with a ......
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Jones v. Feiger, Collison & Killmer
...that restricts the client's right to control settlement as severable from the provision for calculating fees. See Cummings v. Patterson, 59 Tenn.App. 536, 442 S.W.2d 640 (1968); see also Annot., Compromise Without Attorney's Consent, 121 A.L.R. 1122 § IIIa We therefore hold that the provisi......