Jones v. Feiger, Collison & Killmer
| Decision Date | 29 December 1994 |
| Docket Number | No. 93CA1709,93CA1709 |
| Citation | 903 P.2d 27 |
| Parties | 10 IER Cases 344 George JONES, Plaintiff-Appellant, v. FEIGER, COLLISON & KILLMER, Defendant-Appellee. . V |
| Court | Colorado Court of Appeals |
Gersh & Danielson, Miles M. Gersh, James S. Helfrich, Denver, for plaintiff-appellant.
Kennedy & Christopher, P.C., Elizabeth A. Starrs, Ronald H. Nemirow, Denver, for defendant-appellee.
Opinion by Judge BRIGGS.
Plaintiff, George Jones (client), appeals the judgment entered on a jury verdict in favor of defendant, Feiger, Collison & Killmer, his former attorneys (law firm). The jury found against the client on his claims of breach of contract and fiduciary duty and for the law firm on its counterclaim for legal fees. We affirm the judgment against the client on his claims against the law firm. However, because we conclude that certain provisions of the representation agreement between the client and the law firm are unenforceable, we reverse the judgment on the counterclaim awarding the law firm as damages the fees it claimed pursuant to the representation agreement and remand for a new trial to determine the reasonable value of the law firm's services.
The client engaged the law firm to render legal services in connection with the client's allegedly wrongful termination from employment as an executive for an investment company. The parties entered into a representation agreement, which established a reduced hourly rate and contingency fee schedule for representation.
The agreement provided in regard to settlement:
The law firm is not to settle any of the client's claims without the consent of the client. The client agrees to consider seriously any recommendation of settlement that the law firm makes. The client agrees not to refuse unreasonably to settle his claims should such an opportunity arise.
Another provision stated in pertinent part:
The law firm shall have the right to withdraw ... for any other justifiable reason, including the client's failure to comply with any provision of this agreement.... At the time of withdrawal, ... the client will pay [the law firm for work performed] an amount for fees and costs sufficient to equal 100% of ... normal hourly rates....
The law firm filed a complaint against the client's employer. As the trial date approached, settlement negotiations intensified.
Although there was conflicting evidence concerning the negotiations, some facts were undisputed. On one occasion, the client met personally with the employer's attorney to discuss settlement. The two sides' bargaining positions were further apart after this meeting than when the meeting began. The next day, one of law firm's senior attorneys, without the client's authorization, inquired of the employer's attorney whether the employer might offer $800,000, a figure between the parties' starting positions the previous day.
When the client learned of the communication he was upset. However, nine days later, after the employer's attorney presented an offer that included the settlement figure of $800,000, together with other terms and conditions, the client authorized a counteroffer that included the same figure. The negotiations became focused on the other terms and conditions of settlement.
For a brief time it appeared that the parties were near settlement. However, the client then communicated to the law firm that he would not accept $800,000 with the conditions sought by the employer's attorney.
The law firm at this point issued a letter to the client urging him to accept the figure being discussed and reminding him of his contractual obligation "not to refuse unreasonably to settle." In the letter, the law firm characterized the client's refusal to accept this figure as "unreasonable." In a meeting a short time later, and two months before trial, the senior attorney responsible for negotiations expressed her concern about the "breakdown" in the relationship with the client. She informed the client that if matters did not "get worked out," the law firm might have to withdraw.
Without discharging the law firm, the client retained separate counsel for advice on settlement. Soon afterwards the client agreed to settlement with the employer for the figure previously discussed, but refused to pay the law firm any fees.
In the present action against the law firm, the client asserted claims of breach of contract and fiduciary duty. Before trial, the client filed a motion for partial summary judgment, contending that the representation agreement was void because it unreasonably restricted his right to control settlement. The court denied the motion, stating that matters having to do with reasonableness are inappropriate for summary judgment. The court concluded it "was not satisfied" that the representation agreement "on its face" was void as against public policy and further concluded "that a factual presentation is necessary."
At trial, counsel for the client did not raise the issue of whether the representation agreement was unenforceable as against public policy. The client's theory of liability was that, in making the unauthorized "inquiry," the law firm had effectively put a cap on any possible settlement and that, by pressuring him with threat of withdrawal pursuant to the representation agreement, it had forced him to accept the settlement the law firm had wanted. The client contended that the law firm's conduct during the settlement negotiations was in breach of the representation agreement and of the fiduciary duty the law firm owed to him.
Both the client and the attorneys from the law firm testified to the course of negotiations. The client then sought to call the employer's attorney as an unendorsed rebuttal witness. The trial court refused to permit the testimony.
The jury returned a verdict in which it found for the law firm on the client's claims for breach of contract and breach of fiduciary duty. On the law firm's counterclaim, the jury awarded all the fees the law firm had claimed were owed under the representation agreement.
The client contends that the trial court committed reversible error when it refused to permit the client to call as a rebuttal witness the attorney who had negotiated the settlement on behalf of the employer and that the court compounded the error by allowing opposing counsel to make comments on the absence of the testimony and then describing those comments in front of the jury as fair argument. We are not persuaded.
The client had not endorsed the employer's attorney as a witness. The law firm at one time had endorsed the attorney and attempted to depose him. However, because the final settlement agreement contained a confidentiality provision, which had been incorporated into a court order, the employer's attorney refused to respond to questions concerning the negotiations without a court order directing him to do so.
Neither the law firm nor the client sought a court order to compel the attorney to testify. Instead, the law firm removed the employer's attorney from its list of endorsed witnesses. Because of the lack of discovery, the client's offer of proof at trial was limited to a representation that testimony by the employer's attorney would be "different" from the testimony of the attorney in the law firm.
The trial court reasoned that it appeared the testimony of the employer's attorney would rebut not only the law firm's evidence but also the client's evidence. Further, because the testimony would go "to the very heart of the case," to allow the attorney to testify without having been endorsed would be improper.
A party may introduce in rebuttal any competent evidence which explains, refutes, counteracts, or disproves the evidence put on by the opposing party even if the evidence also tends to support the party's case-in-chief. Even when evidence offered in rebuttal is not squarely within the scope of the opposing party's evidence, otherwise material and competent evidence should not be rejected "merely because offered out of regular order, especially where ... no unfair advantage is taken and the opponent is not prejudiced." Taylor v. Mazzola, 150 Colo. 553, 558, 375 P.2d 96, 99 (1962) (emphasis added).
The decision whether to allow rebuttal testimony is within the discretion of the trial court. That decision will not be disturbed on review absent an abuse of that discretion. People v. Silburn, 807 P.2d 1167 (Colo.App.1990).
Here, because the client prior to trial did not request the trial court to abrogate the confidentiality order, the client's attorney failed to make an offer of proof sufficiently indicating the anticipated substance of the rebuttal testimony. Therefore, we cannot determine whether the testimony would have been proper rebuttal.
Further, the trial court's disallowance of this testimony was not based merely on its presentation out of the regular order. As noted by the trial court, the employer's attorney's testimony was central to the case. The client at no time claimed that any of the testimony of attorneys from the law firm had been a surprise to him such that rebuttal with an unendorsed witness was required.
A different ruling by the trial court would have permitted the client to circumvent the dictates of C.R.C.P. 16, which require parties to disclose information concerning persons who "may" be called to testify. It is not unreasonable to require compliance with the rule when the need for the testimony could be reasonably anticipated. Cf. Keyes v. Lauga, 635 F.2d 330 (5th Cir.1981).
In these circumstances, with no specific offer of proof on the attorney's anticipated testimony, no attempt to obtain prior disclosure of testimony that would go "very much to the heart of the case," and no claim of surprise in the testimony already presented, the client has failed to demonstrate that the trial court abused its discretion in refusing to...
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