Harvey v. Rowe

• Decision Date: 09 January 1940
• Parties: HARVEY v. ROWE et al.
• Court: Florida Supreme Court

192 So. 878

141 Fla. 287

HARVEY v. ROWE et al.

Florida Supreme Court, Division A.

January 9, 1940

Rehearing Denied Jan. 23, 1940.

Suit by Manatee River Bank and Trust Company against Frank R. Schell and others, wherein Dr. Rodney B. Harvey filed a petition of intervention and crossbill. From an order overruling exceptions to report of special master concerning amount of counsel fees incurred and remaining unpaid, and from an order directing the payment of approximately $2,300 out of money on deposit to Alvan B. Rowe, John B. Singeltary, and Mrs. Athene Magruder, administratrix of the estate of Lawson Magruder deceased, Dr. Rodney B. Harvey appeals, and Alvan B. Rowe and his coappellees cross-assign error.

Orders affirmed. Appeal from Circuit Court, Manatee County; W.T. Harrison, judge.

COUNSEL

H. C Tillman, of Tampa, and McMullen, McMullen & Pogue, of Clearwater, for appellant.

Alvan B. Rowe, of Palmetto, and John B. Singeltary and W. M Smiley, both of Bradenton, for appellees.

OPINION

THOMAS Justice.

Appellant appealed from two orders entered by the chancellor, one dated February 11, and the other March 11, 1939. The first overruled exceptions to the report of a special master to whom the case was referred with instructions to determine 'what sum or sums of the counsel fees incurred as shown by the statement * * * filed before the court remains unpaid.' Obedient to the order, it was reported that the amount of unpaid fees was $31,090 as shown 'by the said statement of Frank R. Schell'.

The second order directed the payment of approximately two thousand three hundred dollars out of money on deposit with the court, to John B. Singeltary and Alvan B. Rowe attorneys, and to Athene Magruder, as administratrix of the estate of a third attorney, Lawson Magruder.

The question we are to decide is: what amount of attorneys' fees is chargeable to appellant, Dr. Rodney B. Harvey? It is seriously complicated by the divergence of opinion in the briefs about the actual facts developed in the prolonged litigation and the difficulty of determining from the voluminous record precisely what part of it is relevant to this particular phase of the controversy.

Manatee River Bank and Trust Company filed a bill of complaint against Frank R. Schell, Jagan N. Sharma and Food Machinery Corporation in September, nineteen thirty-five, asking the court to determine the duties of complainant in the distribution of moneys received for Schell's share in royalties from Food Machinery Corporation as a result of a contract signed by that corporation, Schell and Harvey. A separate agreement between Schell and Jagan N. Sharma was also involved. Harvey was not named in this pleading because only Schell's interest in the funds had been assigned to the bank or sold to Sharma.

The litigation proceeded then to a test of jurisdiction between the State and Federal courts and it was decided by the Circuit Court of Appeals, January 13, 1937, Schell v. Food Machinery Corp., 5 Cir., 87 F.2d 385, that the former should entertain the cause.

Meanwhile, March 17, 1936, Rodney B. Harvey had represented to the court that he was interested in the litigation and had sought permission to intervene, which was immediately granted, whereupon he joined Schell in an answer to the bill and a cross bill one hundred thirty pages in length, exclusive of exhibits. These pleadings were signed by Alvan B. Rowe as solicitor. February 9, 1937, Harvey, by McMullen, McMullen and Pogue, solicitors, asked permission of the court to withdraw the petition for intervention and to withdraw from the answer and cross bill because he felt that he could not 'conscientiously permit the litigation to continue in his name'.

June 11, 1938, no ruling having been made on the petition to withdraw, although sixteen months had elapsed, Harvey, by McMullen, McMullen & Pogue, filed another petition in the same tenor and in it disclaimed any responsibility for the payment of the fees of the attorney originally appearing for him and Schell. Both petitions were denied June 11, 1938, the chancellor reciting in his order that a hearing was held on the first one in July, 1937, and postponed on the request of subscribing counsel; that he was not further advised although information was requested; that said attorneys did not wish the petitions considered as requests for substitution of counsel; and that proper practice dictated such a substitution and 'protection of retiring counsels' rights'.

In the interim, between the dates of the requests for permission to withdraw and orders on them, several volumes of testimony were taken.

Eventually the chancellor reduced the fee of one hundred thousand dollars, fixed by the master, to thirty-one thousand dollars and deferred the apportionment of it between Schell and Harvey.

In this state of the record, we are unable to say that Harvey may escape any liability for payment of compensation to the attorney who represented him in the filing of the petition for intervention and the answer and cross bill or that he can successfully avoid liability for payment for the work which followed. That he changed his mind about his connection with the controversy is apparent from the first petition to withdraw but no order was made for many months while the cause progressed, and this delay is not chargeable to either the court or his original counsel. The judge's order sets out that postponement was granted upon request of the attorneys, new to the suit, who subscribed the petition and they are quoted as having said they did not wish it considered a petition for substitution.

'That a client has the right to discharge his attorney at any time either with or without cause, is clearly established law. Yates v. Milwaukee, 10 Wall. 497, 19 L.Ed. 984; Silverman v. Pennsylvania R. Co. (C.C.) 141 F. 382; Kelly & Middleton v. Horsely, 147 Ala. 508, 41 So 902; Love v....