In re Rabens
| Decision Date | 20 January 2010 |
| Docket Number | No. 4646.,4646. |
| Citation | 688 S.E.2d 602,386 S.C. 469 |
| Parties | In the Matter of Mary Elizabeth RABENS. David M. Adams, Respondent/Appellant, v. Dennis J. Rhoad, Special Administrator, Appellant/Respondent. |
| Court | South Carolina Court of Appeals |
Robert Wyndham, of Charleston, for appellant/respondent.
James Richardson, Jr., of Columbia, for respondent/appellant.
In this cross-appeal, David Adams and Dennis Rhoad appeal the circuit court's order affirming and modifying the probate court's award of attorney's fees to Adams. Rhoad argues the circuit court erred in: (1) finding a prior circuit court order was controlling as the law of the case and required an award of attorney's fees; (2) awarding attorney's fees when the contingencies of the written fee agreement were not met prior to Adams' suspension and ultimate disbarment; and (3) failing to find Adams' claim for attorney's fees was barred pursuant to the unclean hands doctrine. Adams argues the circuit court erred in finding an action to recover attorney's fees was an equitable matter and not an action at law. We reverse and remand.
In 1995, James Clark retained attorney Adams to represent him in connection with his application to serve as personal representative of the Estate of Mary Elizabeth Rabens (the Estate) and with the subsequent administration of the Estate. Before Clark petitioned to administer the Estate, an alleged will of Rabens was filed for probate. Clark retained Adams to represent him in challenging the will, and the parties agreed to a contingent fee equal to one-third of the value of the estate, rising to forty percent in any appeal. In 1996, Clark died, and Margaret B. Clark succeeded him as personal representative of the estate.1
The Estate was successful in the probate court, circuit court, and the court of appeals. In December 1998, the South Carolina Supreme Court suspended Adams for actions unrelated to this case.2 Margaret Clark subsequently hired attorney Gedney M. Howe, III to replace Adams. Howe and Margaret Clark signed a contingency fee agreement identical to that which existed between James Clark and Adams, allowing for a fee of forty percent of the value of the estate. In 1999, the proponent of the will filed a petition to the supreme court seeking a writ of certiorari. Howe and attorney Alvin Hammer filed a return to the writ. The supreme court denied the petition, and the will contest was complete. The Estate paid Howe $121,798.42, equal to forty percent of the value of the Rabens estate, for his representation in the will contest.
Adams subsequently filed a claim for attorney's fees in the amount of forty percent of the value of the Estate. The Estate denied that Adams was entitled to a fee and moved for summary judgment. The probate court granted the Estate summary judgment finding Adams abandoned the representation and was not entitled to attorney's fees. Additionally, the probate court found Adams had unclean hands and was thus not entitled to a fee under the doctrine of substantial performance. In 2002, Adams appealed the probate court's decision to the circuit court, which found no South Carolina case law concerning an attorney's entitlement to a fee for services performed prior to a suspension. The circuit court relied on Stein v. Shaw, 6 N.J. 525, 79 A.2d 310 (1951), in which the New Jersey Supreme Court found that "when an attorney is disbarred or suspended from practice for reasons which are unrelated to his or her representation of a particular client ... the attorney is still entitled to recover for the reasonable value of services provided to that client prior to the suspension or disbarment." The circuit court noted that determining whether to award attorney's fees to a suspended or disbarred attorney "on a case by case matter under appropriate equitable principles seems to be a better approach than a bright line test that in all circumstances provides that the suspended attorney loses their entitlement to any fees." The circuit court remanded the case to the probate court to "conduct a hearing with respect to Adams' entitlement to attorney['s] fees."
On remand, the probate court agreed with the dissent in Stein that no fee should be awarded to a disbarred attorney. However, the probate court determined it was bound by the circuit court's decision and therefore had to equitably divide the fee. The probate court awarded Adams $45,000 and Howe $50,000 for their services.3 Additionally, the probate court awarded Adams 75% of the $26,798.42 remaining contingency fee and Howe 25% of the remaining fee. Thus, Adams' total award was his hourly fee of $45,000 plus 75% of the excess, or $20,098.81, for a total of $65,098.42. The probate court deducted $15,000 from Adams' award to repay a personal loan he received from Margaret Clark. Adams' total award from the probate court was $50,098.42. The Estate appealed to the circuit court.
The circuit court found the 2002 circuit court order was the law of the case, and therefore, Adams was...
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Kimmer v. Wright
... ... LAW/ANALYSIS A. Law of the Case Wright argues Judge Hayes erred in holding Judge Kimball's order was the law of the [719 S.E.2d 268] case. Kimmer conceded this issue in his brief. A denial of summary judgment does not establish the law of the case and is not directly appealable. In re Rabens, 386 S.C. 469, 473, 688 S.E.2d 602, 604 (Ct.App.2010). Accordingly, we find Judge Hayes erred in this ruling. B. Statute of Limitations Wright argues the trial court erred in holding as a matter of law the statute of limitations had not run on Kimmer's malpractice claim. We agree. The statute ... ...
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...and the Supplemental Agreement and Covenant Not to Execute provided new evidence for the circuit court's consideration. See In re Rabens, 386 S.C. 469, 473, 688 S.E.2d 602, 604 (Ct. App. 2010) ("A denial of summary judgment does not establish the law of the case and is not directly appealab......