Kizer v. Davis

• Decision Date: 16 November 1977
• Docket Number: No. 2-1275A358,2-1275A358
• Citation: 369 N.E.2d 439,174 Ind.App. 559
• Parties: James A. KIZER, Appellant (Plaintiff below), v. Joyce N. DAVIS, Appellee (Defendant below).
• Court: Indiana Appellate Court

Page 439

369 N.E.2d 439

174 Ind.App. 559

James A. KIZER, Appellant (Plaintiff below), v.Joyce N. DAVIS, Appellee (Defendant below).

No. 2-1275A358.

Court of Appeals of Indiana, Second District.

Nov. 16, 1977.

Richard T. Heide, Robert L. Bauman, Heide, Gambs & Mucker, Lafayette, for appellant.

Wm. K. Bennett, Bennett, Boehning & Poynter, Lafayette, for appellee.

SULLIVAN, Presiding Judge.

Attorney James Kizer filed suit against his former client, Joyce Davis, to recover on quantum meruit for legal services rendered.Trial to the court resulted in a judgment in Davis' favor, from which Kizer perfected this appeal.We reverse for the reason that the decision is contrary to law.The trial court's reason for denying recovery is invalid.

The trial judge entered special findings and conclusions, upon his own motion, pursuant to T.R. 52(A).¹His "memorandum opinion and judgment" reads as follows:

"The plaintiff's complaint is predicated upon the theory that he has performed services at the instance and request of the defendant, and that he has not been fully paid therefor.Plaintiff seeks a judgment based upon the rule of law, frequently enunciated by the higher courts of this state, that an attorney may, as a rule, recover on quantum meruit for services rendered by him to a client.SeeFrench v. Cunningham et al(1897), 149 Ind. 632(49 N.E. 797);Finney v. Estate of Carter, etc.(1959), 130 Ind.App. 381(164 N.E.2d 656).If the application of this well recognized rule were fully dispositive of the issues, this case would be resolved in favor of the plaintiff.However, I believe that there are other factors which must be considered.

"The plaintiff's time records reveal he has invested time and effort on behalf of the defendant.Judicial notice having been taken of the records in the litigation in which the plaintiff appeared for the defendant, however, there can be no doubt that the plaintiff did not in fact expend as much time on court appearances as reflected by his records.If the time shown for court appearances is erroneous, it is not unlikely that error also exists on time records relating to telephone and office conferences and the performance of other legal services.An additional factor is the defendant's expression to the plaintiff near the end of February, 1973, that she felt that the employment of additional counsel was necessary.Her unhappiness regarding the terms of the pendente lite order in her divorce case and her concern that the case would be assigned for trial without sufficient information or discovery regarding the assets of her husband justified her position that replacement of her attorney, or the hiring of additional counsel, would be well advised.This situation should have suggested to the plaintiff a serious question as to whether he was then in a position to render professional services to Mrs. Davis in a manner that she would approve or appreciate.Mrs. Davis testified that after the employment of Thomas L. Brooks most of her contact was with him, and the plaintiff's time records show that his contact with the defendant diminished after Mr. Brooks had been retained.When the defendant expressed her desire that Mr. Kizer withdraw from all further representation, he had no choice but to honor this request.SeeBauer et al v. Biel et al(1961), 132 Ind.App. 224, (177 N.E.2d 269);In Re the Annexation of Territory to City of Muncie(1971), (150 Ind.App. 245), 276 N.E.2d 198;Indiana Code of Professional Responsibility, DR2-110(B)(4).

"In a case of this kind the Indiana Code of Professional Responsibility binds both the court and the plaintiff.This is significant in view of EC 2-23 which provides as follows:

'A lawyer should be zealous in his efforts to avoid controversies over fees with clients and should attempt to resolve amicably any differences on the subject.He should not sue a client for a fee unless necessary to prevent fraud or gross imposition by the client.'

"Plaintiff did not allege any fraud in his complaint and none was demonstrated by the evidence.While Mr. Kizer undoubtedly feels that Mrs. Davis has imposed upon him, as a matter of law the court cannot determine from the evidence that her conduct was so great, culpable, flagrant, shameful, or without justification so as to entitle the plaintiff successfully to maintain this action.To permit the plaintiff to recover in this case would require the court to ignore the Indiana Code of Professional Responsibility or condone a breach thereof.Accordingly, the plaintiff should take nothing by his complaint.

"IT IS ORDERED, ADJUDGED AND DECREED that the plaintiff shall take nothing by his complaint and that all costs hereof shall be and they are hereby taxed and assessed against the plaintiff."

This is not a case in which we can draw inferences from the record to support the trial court's general finding against Kizer.We must reject, in particular, Davis' contention that the judgment should be affirmed because the evidence most favorable to it sustains the inference that Kizer's services were worth no more than the $350 he was paid.²An affirmance on that basis is precluded by the trial court's contrary finding which specifically states that Kizer would have prevailed on quantum meruit.

Davis would have us disregard this special finding.She cites Hinshaw v. Security Trust Co.(1911)48 Ind.App. 351, 93 N.E. 567, for the proposition that a finding not made at the request of any of the parties but volunteered by the trial court may be disregarded on appeal since it is treated as a general finding, and not a special finding.Although that was the law prior to the adoption of the Indiana Rules of Trial Procedure, current trial practice under T.R. 52 now permits the trial court to make special findings upon its own motion.SeeHunter v. Milhous (2d Dist. 1974) Ind.App., 305 N.E.2d 448, 459.The relevant language in subsection (A) is presented in footnote 1, supra.Subsection (D) similarly contemplates such volunteered findings by providing for "special findings of fact upon less than all the issues in a case when (1) special findings of fact are made but are not required under this rule."The last part of subsection (D) provides further that such "findings of fact with respect to issues upon which findings are not required shall be recognized as findings only upon the issues or matters covered thereby and the judgment or general finding, if any, shall control as to the other issues or matters which are not covered by such findings."See3 Harvey, Indiana Practice, at 424-25.

Bound as we are by the trial court's special findings, we are unable to discern from the opinion a valid reason for awarding Kizer no recovery at all.The trial court explicitly stated that the action on quantum meruit would have been resolved in Kizer's favor but for "other factors which must be considered."These factors fall into two categories: (1) Ethical Consideration 2-23 and (2) those relating to Kizer's representation.

I.ETHICAL CONSIDERATION 2-23

We agree with Kizer's contention that the trial court erroneously applied this Ethical Consideration as a bar to his recovery.³

Ethical Consideration 2-23 is part of the Code of Professional Responsibility which was adopted by the Indiana Supreme Court on March 8, 1971 for attorneys admitted to the bar of this State.The Supreme Court's authority to promulgate rules of legal ethics derives from its plenary power over the admission of attorneys to the practice of law and the supervision of those already admitted.Jurisdiction over these matters is conferred upon the Supreme Court by Article 7, Section 4 of the Indiana Constitution which provides "The Supreme Court shall have no original jurisdiction except in admission to the practice of law; discipline or disbarment of those admitted; . . ."

See also, Indiana Rules of Procedure, Appellate Rule 4(A)(1 and 2);In re Farr (1976) Ind., 340 N.E.2d 777, 780.

Our Supreme Court has stated that although the Code lacks the force and effect of Indiana statutes or case law, it does evidence the proper standard of conduct for the legal profession.In re Kuzman (1975) Ind., 335 N.E.2d 210, 212;Bell et al. v. Conner(1968)251 Ind. 409, 241 N.E.2d 360;Tokash v. State(1953)232 Ind. 668, 115 N.E.2d 745.Specifically, the Code operates as the rule of law in disciplinary proceedings before the Supreme Court.It delineates the conduct that will render an attorney subject to censure.As stated in Section 2(a) of Admission and Discipline Rule 23:

"Any conduct that violates the Code of Professional Responsibility or the Code of Judicial Conduct and Ethics heretofore adopted or as hereafter modified by this Court or any standards or rules of legal and judicial ethics or professional responsibility hereafter adopted by this Court shall constitute grounds for discipline. . . ."

This discussion of the Code's authority in disciplinary proceedings brings us now to the issue at bar.Does an Ethical Consideration accompanying the Code have application in a civil suit brought by an attorney to recover his legal fees?

It appears that this precise question has not been subject to judicial resolution.In McInerney v. Massasoit Greyhound Assn., Inc. et al.(Mass.1971), 359 Mass. 339, 269 N.E.2d 211, 220, Ethical Consideration 2-23 was mentioned but only as a cautionary note to the attorney therein whose legal fee was held to be excessive and unreasonable as a matter of law.We have not found a single reported case in which an attorney has been barred from recovering his legal fees because of Ethical Consideration 2-23.

In this and in other jurisdictions, the right of an attorney to recover compensation for his services, either under express contract or on quantum meruit, is well established.E. g., French v. Cunningham et al.(1898)149 Ind. 632, 49 N.E. 797;U. S. Mortgage Co. v. Henderson et al.(1887)111 Ind. 24, 12 N.E. 88;Finney v. Estate of Carter,...