Lee v. Daniel

• Decision Date: 07 November 2002
• Docket Number: No. 01-676.,01-676.
• Citation: 350 Ark. 466,91 S.W.3d 464
• Parties: Larry LEE, Sr. and Barbara Fowler, Individually and as Parents and Next Friends of Larry Lee, Jr. and Brandon Fowler, Minors, v. Ed DANIEL.
• Court: Arkansas Supreme Court

Page 464

91 S.W.3d 464

350 Ark. 466

Larry LEE, Sr. and Barbara Fowler, Individually and as Parents and Next Friends of Larry Lee, Jr. and Brandon Fowler, Minors, v. Ed DANIEL.

No. 01-676.

Supreme Court of Arkansas.

November 7, 2002.

Walker & Dunklin, by: Woodson D. Walker, Little Rock; and Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando, by: Ginger Jenkins and Donald Nathaniel Watson, Stuart, FL, for appellants.

McMath, Vehik, Drummond, Harrison & Ledbetter, P.A., by: Paul Harrison and Charles Harrison, Little Rock, for appellee.

TOM GLAZE, Justice.

This appeal was certified to this court by the court of appeals on the grounds that it presents a challenge to the constitutionality of Arkansas' attorney's lien statute. Jurisdiction arises under Ark. Sup.Ct. R. 1-2(a)(2).

On June 29, 1995, Barbara Fowler, along with her mother and her two sons, was involved in an automobile collision in Pine Bluff. Fowler's mother, Linda Young, was driving her car when it was struck by a truck owned by Waste Management of Arkansas. Young was severely injured; Brandon Fowler, the older of the two boys, was not seriously hurt, but the younger boy, eighteen-month-old Larry Lee, Jr., eventually had his right arm amputated as a result. Barbara Fowler was seven months pregnant at the time of the wreck, and had to be medicated to keep from delivering the baby prematurely.

One day after the accident, on June 30, 1995, attorney Ed Daniel met with Fowler in her hospital room. Fowler signed a contract with Daniel, on behalf of herself and her two sons, agreeing to pay him 40% of any recovery or settlement she might receive out of any lawsuit Daniel filed on her behalf. The contract also contained a clause whereby Daniel would be entitled to a lien on any sum recovered by way of settlement or judgment. A few days after signing the contract, Fowler changed her mind about having Daniel represent her, and she terminated his services.

In May or June of 2000, Fowler entered into a tentative settlement with Waste Management, Inc., for the sum of $2,500,000.00. The approval of the probate court was required, because the matter involved the estates of the two minor children. On June 27, 2000, Daniel filed a petition in Jefferson County Probate Court to determine and enforce his attorney's

lien on the settlement amount. In response, Fowler filed a petition in the circuit court, where the personal injury lawsuit had been pending, to determine the validity of the lien. Fowler's petition requested that the circuit court find that Daniel was terminated for cause, and that he therefore had no enforceable lien on the proceeds of the settlement. Daniel was granted permission to intervene in that action, and filed a complaint seeking recovery of the $1,000,000.00 he claimed he was owed under his contingency fee contract. Following a bench trial in November of 2000, the circuit court issued an order setting out various findings of fact and concluding that a valid contract existed between Daniel and Fowler for herself and as guardian of her two sons. Further, the court found that there was no justifiable cause for Fowler's termination of Daniel's contract. The circuit court concluded that Daniel had a valid attorney's lien against the proposed settlement.¹

On appeal, Fowler raises three arguments for reversal.² She challenges a number of the trial court's findings of fact, and she also asserts that the court erred in refusing to allow her to admit certain expert testimony. Finally, she contends that Arkansas' attorney's lien statute is unconstitutional.

For her first point on appeal, Fowler argues that thirteen of the trial court's findings of fact were clearly against the preponderance of the evidence. In a bench trial, this court will not set aside the findings of fact by a circuit judge sitting as a jury unless they are clearly erroneous. Wood v. The Corner Stone Bank, 315 Ark. 200, 866 S.W.2d 385 (1993); Taylor's Marine, Inc. v. Waco Mfg., 302 Ark. 521, 792 S.W.2d 286 (1990). See also Ark. R. Civ. P. 52. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Forrest Const. v. Milam, 345 Ark. 1, 43 S.W.3d 140 (2001). This court gives due deference to the superior position of the trial judge to determine the credibility of the witnesses and the weight to be accorded their testimony. Pyle v. Sayers, 344 Ark. 354, 39 S.W.3d 774 (2001). Further it is within the province of the trier of fact to resolve conflicting testimony. Myrick v. Myrick, 339 Ark. 1, 2 S.W.3d 60 (1999).

Fowler's first challenge is to the trial court's finding of fact # 4, wherein the court stated that "Larry Lee, Jr., was severely injured, Barbara and Brandon Fowler less serious." Fowler contends that the trial court failed to "take proper account" of the emotional trauma she suffered. However, the facts clearly supported the trial court's findings: Larry Lee, Jr., had his arm amputated following the accident. Indeed, Fowler's brief concedes that she and Brandon Fowler "did not sustain injuries as severe as those sustained by Larry Lee, Jr." The circuit judge's finding of fact was not clearly erroneous.

The remainder of the factual findings that Fowler challenges can be grouped into three general categories: findings of fact that pertain to how Fowler had her initial contact with attorney Ed Daniel; findings relating to Fowler's mental status at the time she signed the contract with Daniel; and findings concerning Fowler's communications with Daniel, including her termination of his services.

The first of these categories — how Fowler initially contacted Daniel — includes five specific findings of fact by the trial court:

#5: On June 30, 1995, a friend of the family, Laverne Hill, discussed with Barbara Fowler and family members Fowler's need for an attorney, and recommended one to Fowler.

#6: Barbara Fowler requested Laverne Hill to get the attorney to call Barbara Fowler.

# 8: Laverne Hill was instructed by both Barbara Fowler and David Lisenby [Fowler's uncle] to have attorney Ed Daniel to call Barbara Fowler.

# 11: Ed Daniel called Barbara Fowler and was instructed to call her uncle David Lisenby.

# 13: On June 30, 1995, David Lisenby called Ed Daniel and asked him to come down and discuss the matter with them, as requested or agreed to by Barbara Fowler.

Although Fowler asks this court to conclude that these findings of fact were clearly against the preponderance of the evidence, in her brief she states only that these findings were contradicted by her own testimony. Such argument wholly ignores the fact that other witnesses, including a number of Fowler's family members and family friend Laverne Hill, testified that Hill suggested that Fowler contact Daniel, and that Fowler then asked Hill to have Daniel call Fowler. The resolution of any conflict in the testimony was for the trial court, and on appeal, we will not overturn such a finding based on a credibility determination. See Skokos v. Skokos, 344 Ark. 420, 40 S.W.3d 768 (2001).

The next general category of factual findings with which Fowler takes issue concerns the trial court's conclusion that Fowler was not so impaired by medications and emotional trauma that she was incapable of executing a valid contract. These three findings are as follows:

# 9: Barbara Fowler appeared to be normal, not acting under the influence of any medication, disillusion [sic] from the accident, depression from her injuries [or] her children's injuries, nor the very serious injuries her mother received in the same accident on June 29, 1995.

# 17: The attending family members did not discern any debilitating effects of the accident, medication, or the medical status of Barbara Fowler or any other family members injured in the accident, during the said discussions [with attorney Daniel].

# 18: Barbara Fowler did not appear to be impaired in any way to those [who] attended the meeting, nor was Barbara Fowler pressured or coerced in any way.

Here, Fowler asserts that she offered "uncontroverted testimony" that she had received a battery of medications, both for pain and to prevent a miscarriage, and that she was suffering a great deal of emotional trauma from the circumstances. She notes that her son had to have his arm amputated, and that her mother was in critical condition in the Intensive Care Unit. Further, she points to testimony from her brother, Brad Young, that she appeared "drugged up" and "emotionally unstable," in support of her contention that she lacked the capacity to enter into a valid contract.

Again, however, Fowler fails to acknowledge that there was a surfeit of other testimony from other witnesses that contradicted her own account. For example, Laverne Hill testified that she visited with Fowler, and although Fowler seemed emotional, she appeared to be of a clear mind. Fowler's uncle, David Lisenby, testified that Fowler seemed to be alert and aware of everything that was going on around her. Emily Lisenby, David's wife, testified that Fowler "knew what was going on very well." Further, although Fowler attempts to rely on her brother's testimony that she "didn't look like she was in it," Brad Young conceded on cross-examination that he had testified at his deposition that he had lied before, that he sometimes had trouble keeping his lies straight, and that Fowler had promised him that, when she got her money out of the settlement, she would give him some. Young was also confronted with his deposition testimony, taken some four weeks prior to trial, wherein he testified that Fowler understood what was going on when she signed the contract.

In addition, testimony offered at trial clearly supported the court's finding that Fowler was not coerced or pressured into signing the contract with Daniel. David Lisenby discussed the facts...