Keenan v. Looney, 5179.
| Decision Date | 16 December 1955 |
| Docket Number | No. 5179.,5179. |
| Citation | 227 F.2d 878 |
| Parties | Robert B. KEENAN, Appellant, v. Ned LOONEY, Clyde J. Watts, James H. Ross, Robert Dudley Looney, Edward W. Smith, doing business under the name of Looney, Watts, Ross, Looney and Smith, Appellees. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Robert B. Keenan (L. F. Burke, Longview, Tex., was with him on the brief), pro se.
R. D. Hudson, Tulsa, Okl. (Cecil T. O'Neal, Oklahoma City, Okl., was with him on the brief), for appellees.
Before PHILLIPS, Chief Judge, HUXMAN, Circuit Judge, and SAVAGE, District Judge.
Keenan brought this action against Ned Looney, Watts, Ross, Robert Dudley Looney and Smith1 to recover a share of a fee paid to the defendants for legal services.
In the complaint it was alleged that the defendants on or about August 5, 1953, requested Keenan to become associated with them as attorneys in a matter concerning the will of Murray Case Sells, out of which a contest was filed in the county court of Gregg County, Texas, entitled Daniel I. Iffert, guardian of Carol Jean Iffert, a minor v. First National Bank in Dallas, Texas, Independent Executor of the Estate of Murray Case Sells, deceased, and numbered 4348; that Keenan agreed to associate himself as counsel in such case "with the understanding and agreement by plaintiffs and defendant that he was not to appear as attorney of record" in the case, for the reason that it might be necessary for him to become a witness at the trial, and that Keenan's compensation was contingent upon recovery.
It was further alleged that Keenan furnished defendants with the source of certain material evidence and information as to persons and places where additional evidence, oral and documentary, could be obtained; that as a result of the information, evidence and "law of the case" supplied by Keenan to defendants, and other recommendations and suggestions made by Keenan to defendants, they were able to effect a settlement of the litigation for the sum of $500,000; that defendants received $250,000 of the sum received in settlement, from which they paid $125,000 to Jerry Sadler, who had been employed at Keenan's suggestion as counsel in the case; that Keenan demanded from defendants his share of the fee received by them and that they failed and refused to pay him any part of such fee. Keenan prayed for judgment in the sum of $67,500.
The matter came on for trial. Thereupon, the defendants interposed a motion to dismiss the action for the reason that the alleged contract of employment was contrary to public policy and was void and unenforceable because of the term of the agreement that Keenan was not to appear as an attorney of record for the reason that it might be necessary for him to become a witness at the trial. The trial court sustained the motion and dismissed the action. Keenan has appealed.
The allegations of the complaint must be construed most liberally in favor of Keenan.2 In Clyde v. Broderick, 10 Cir., 144 F.2d 348, 350, we said: "All doubts and ambiguities concerning the meaning and intendments of the pleader's language must be resolved in favor of the claim attempted to be stated". See also Porter v. Karavas, 10 Cir., 157 F.2d 984, 985; Knox v. First Security Bank of Utah, 10 Cir., 196 F.2d 112, 117.
In Garbutt v. Blanding Mines Co., 10 Cir., 141 F.2d 679, we said: "The test is `whether in the light most favorable to the plaintiff, and with every intendment regarded in his favor, the complaint is sufficient to constitute a valid claim.'" See also Tahir Erk v. Glenn L. Martin Co., 4...
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...and other cases, to withstand a motion to dismiss under Rule 12 or a motion for summary judgment under Rule 56. E. g., Keenan v. Looney, 227 F.2d 878 (10th Cir. 1955); Dewell v. Lawson, 489 F.2d 877 (10th Cir. 1974). It should be clear, however, that the standard for dismissal set forth in ......
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