Kelly v. Belcher, 13111

• Decision Date: 21 March 1972
• Docket Number: No. 13111,13111
• Citation: 155 W.Va. 757,187 S.E.2d 617
• Court: West Virginia Supreme Court
• Parties: William G. KELLY et al. v. Sallie BELCHER, Administratrix, etc., et al.

Page 617

187 S.E.2d 617

155 W.Va. 757

William G. KELLY et al. v. Sallie BELCHER, Administratrix, etc., et al.

No. 13111.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 1, 1972.

Decided March 21, 1972.

Syllabus by the Court

1. The well recognized general rule is that an attorney who is clothed with no other authority than that arising from his employment as attorney has no implied power by virtue of his general retainer to compromise and settle a claim or cause of action of his client.

2. When it appears from the evidence that an order of dismissal confirming a compromise resulted from a misunderstanding or mistaken belief of the attorney for the parties whose cause of action was dismissed by virtue of the compromise and that such compromise was unauthorized and was not consented to by such parties, the judgment of the trial court denying their motion to set aside and vacate the order of dismissal constituted an abuse of discretion and such judgment will be reversed upon appeal.

H. D. Rollins, J. E. Litz, Charleston, for appellants.

Stephen P. Meyer, Leo Catsonis, Stanley E. Preiser, Charleston, for appellee (Belcher).

HAYMOND, Judge:

In this civil action, instituted in the Circuit Court of Kanawha County, West Virginia, August 12, 1969, to impeach an alleged holographic will of Edward H. Kelly, deceased, the circuit court denied a motion of the plaintiffs to set aside and vacate a judgment of dismissal of the action based upon a challenged compromise; and the principal question for decision is whether the plaintiffs, upon the facts, are entitled under Rule 60(b) of the West Virginia Rules of Civil Procedure to relief from the order of dismissal.

In the original complaint, the plaintiffs were William G. Kelly, a brother of the decedent, Robert Lee Vickers, Leroy Allen Vickers, and Kenneth Kelly Vickers, three of the children and heirs of Inez Vickers, a deceased sister of Edward H. Kelly, and the defendants were Sallie Belcher, Administratrix with the will annexed of Edward H. Kelly, deceased, a sister of Edward H. Kelly, and Maywood Belcher, a son of Sallie Belcher, and Edna Belcher, his wife, who by the will were given real estate consisting of the home of the decedent and his automobile. The action was filed by Jack O. Friedman of Charleston, West Virginia, as attorney for the plaintiffs at the instance of William G. Kelly, who paid Friedman a $200.00 retainer on his fee but the amount of the fee has not been fixed by any agreement between them.

By order entered January 28, 1970, an amended complaint was filed in which the remaining children of Inez Vickers, deceased, Carl Dean Vickers, Lawrence E. Vickers and Louise Vickers Frericks, were added as plaintiffs. The defendants filed answers to the amended complaint in which they denied the allegation in such complaint that the will in question was not the will of Edward H. Kelly, deceased. By the amended complaint the plaintiffs sought to impeach the will and demanded trial of an issue devisavit vel non by a jury to ascertain whether the writing, which has been admitted to probate by the County Court of Kanawha County, is or is not the true last will and testament of Edward H. Kelly, deceased.

The defendants, Maywood Belcher and Edna Belcher, gave notice that depositions would be taken on April 30, 1970, at which time the compromise which, by motion under Rule 60(b) of the Rules of Civil Procedure is attacked by the plaintiffs, was negotiated by the attorneys respectively representing the plaintiffs, the defendants Maywood Belcher and Edna Belcher, and the defendant Sallie Belcher, Administratrix with the will annexed.

By order endorsed and approved by the attorneys for all the parties, presented by Jack O. Friedman, and entered by the court on May 1, 1970 upon the representation to the court that all matters had been agreed between the parties, and on the joint motion of the parties that the paper writing involved be declared to be the valid last will and testament of Edward H. Kelly, deceased, it was adjudged and decreed that such paper writing was the valid last will and testament of Edward H. Kelly, deceased, and it was ordered that the action be stricken from the docket of the court.

On November 24, 1970, during the next regular term of court after the term at which the order of May 1, 1970 confirming the compromise was entered, the plaintiffs, represented by attorneys who succeeded Jack O. Friedman, who had been discharged by the plaintiffs, moved the court under Rule 60(b) of the Rules of Civil Procedure, to set aside and vacate the order of May 1, 1970 and to reinstate this case upon the docket; and the matters arising upon the motion were set for hearing December 17, 1970. At the hearing the court heard the testimony of William G. Kelly, Leroy Vickers and Jacqueline C. Vickers, his wife. No evidence was introduced in behalf of the defendants and the decision of the court upon the motion was based upon the evidence in behalf of the plaintiffs. By final judgment rendered May 17, 1971, the court found that no fraud was perpetrated upon the court by counsel and that there were no conditions or grounds asserted for setting aside or vacating the judgment of May 1, 1970 and denied the motion of the plaintiffs. From the judgment of May 17, 1971 this Court granted this appeal on July 28, 1971 upon the application of the plaintiffs. By leave of this Court the plaintiffs filed their motion to reverse the final judgment of May 17, 1971, and this proceeding was submitted for decision upon the motion to reverse, upon the motion to set aside and vacate the judgment of May 1, 1970, upon the record, and upon the oral arguments and briefs of the attorneys for the plaintiffs and the attorneys for the defendants.

Sometime in April, 1970, the plaintiff, William G. Kelly, who resided in New Haven, Indiana, talked to Friedman by telephone to ascertain the status of the litigation. Following the conversation Kelly came to Charleston on April 28, 1970 and made an appointment to meet, and met, Friedman at his office on the following day and discussed the case with him for approximately an hour and a half. Friedman told Kelly that the Belchers or their attorney Stanley E. Preiser, of Charleston, wanted to compromise the case but no terms of a compromise were discussed. Kelly agreed to go with Friedman to Preiser's office on the morning of April 30, at which time, accompanied by the plaintiff Leroy Vickers, Kelly went to Friedman's office where he and Leroy Vickers remained for about thirty minutes and then went with Friedman to Preiser's office to attend depositions or to consider an offer of compromise. Kelly testified that they went to Presider's office to take depositions or to see what Preiser had to offer and Leroy Vickers testified that Friedman said 'Let's go over and see what they have to say.'

Upon arrival at Preiser's office, Kelly and Leroy Vickers saw Maywood Belcher and Edna Belcher and Kelly, Vickers and Friedman went to a reception room where Kelly and Vickers remained for about forty-five minutes. Shortly after entering the reception room Friedman went into another room and later he took Kelly and Leroy Vickers to a conference room where they remained for some time. Friedman, from time to time, left the conference room and went into another office where, he said, the attorneys were working on a compromise. After a time he returned to the conference room and according to Kelly said 'We will have the papers ready in a few minutes.' Sometime later Friedman came into the room with a paper and, according to Kelly, said 'This is a third', and handed the paper to Vickers and said 'it was a third'. Kelly testified that he thought that two-thirds of the estate was involved and that by the compromise Kelly was to receive one-third and the Vickers heirs were to receive one-third. Kelly also testified that Preiser came into the room, shook hands with him and said 'There is $5,666.66 that we wouldn't have got if it had went to court.', and that Friedman introduced Leroy Vickers to Preiser and that Preiser said the same thing to Leroy Vickers. The paper that Friedman produced was the release involved in this case and it was signed first by Kelly and then by Leroy Vickers, who agreed to 'distribute it' to the other Vickers heirs and Friedman told him to obtain their signatures to the release and then to send it to him.

After they had been in Preiser's office about three hours, Kelly, Vickers and Friedman left Preiser's office and walked together toward Friedman's office until they came to the place where Kelly's car had been parked. There they left Friedman and Kelly drove Vickers to his home in Marmet and then went to the home of his sister-in-law in Chelyan from which, after having lunch, he left for his home in Indiana about 2:00 o'clock and arrived at his home about 9:00 o'clock that evening.

Leroy Vickers testified to substantially the same facts as those testified to by Kelly with respect to what occurred at Friedman's office and at Preiser's office except that Leroy Vickers stated that he learned while the attorneys were negotiating the compromise that they discussed by telephone the value of the real estate and the automobile with appraisers and automobile salesmen and valued the real estate at $15,000.00 instead of $12,000.00 and the automobile at $2,000.00 or a total of $17,000.00 which was the basis of the compromise. The personal property of Edward H. Kelly was originally valued at about $11,000.00 and the real estate at $12,000.00 or a total estate value of about $23,000.00.

Kelly and Leroy Vickers both testified that they understood that by the compromise Kelly was to receive one-third of the estate and the Vickers heirs were to receive one-third, that, in any event, Sallie Belcher was entitled to one-third of the estate, and that only the other two-thirds was involved in the compromise. Kelly testified that he read the...