McAdam v. Dynes, 890072

• Citation: 442 N.W.2d 914
• Decision Date: 17 July 1989
• Docket Number: No. 890072,890072
• Parties: Toby C. McADAM, Plaintiff and Appellant, v. George T. DYNES, Defendant and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 914

442 N.W.2d 914

Toby C. McADAM, Plaintiff and Appellant, v. George T. DYNES, Defendant and Appellee.

Civ. No. 890072.

Supreme Court of North Dakota.

July 17, 1989.

Saefke Law Office, Bismarck, for plaintiff and appellant; argued by Frederick E. Saefke, Jr.

Freed, Dynes, Reichert & Buresh, P.C., Dickinson, for defendant and appellee; argued by Eugene F. Buresh.

ERICKSTAD, Chief Justice.

We granted Toby McAdam's petition to review a decision of the North Dakota Temporary Court of Appeals affirming a summary judgment in favor of George T. Dynes. McAdam v. Dynes, 445 N.W.2d 25 (N.D.1988). We reverse and remand.

Without executing a written fee agreement, Dynes represented McAdam in a claim against West River Management for wrongful discharge under the Fair Labor Standards Act. McAdam and West River Management ultimately settled the matter for $15,800. According to Dynes, that representation of McAdam resulted in total attorney fees and out-of-pocket expenses of $11,800. In 1986 Dynes received $8,300 of the settlement from West River and sent a release and letter to McAdam which provided, in part:

"When I have the executed release back in my office I will release the settlement funds. As previously agreed, of the $8,300.00 we receive, $2,000.00 will be paid to you and the balance will be applied toward our expenses and attorney's fees."

McAdam signed the release and received $2,000 of those funds. In 1987 Dynes received the remaining $7,500 of the settlement and forwarded a check and release to McAdam with the following letter:

"Please endorse this check and return with the Release.

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"As we have agreed, we will forward you $2,000 of the settlement funds and will retain the balance in full settlement of our fees and expenses."

McAdam endorsed the check and thereafter received $2,000 of those funds and Dynes' law firm received $5,500.

McAdam thereafter sued Dynes in small claims court, alleging in substance that there was no written contract for attorney fees and that he believed Dynes was representing him on a contingency fee basis. McAdam further alleged that he was informed of the amount of Dynes' attorney fees after the case was settled and that although he agreed to the settlement with West River, he did not agree to the amount of the attorney fees. Dynes removed the case to county court and answered, alleging that McAdam was informed of all the conditions surrounding the case and the settlement thereof and agreed to the division of monies when the case was settled.

Dynes moved for summary judgment and submitted an affidavit stating that "McAdam promptly endorsed all checks and signed all releases requested, thereby completing and settling our contractual arrangement." McAdam resisted the summary judgment motion and submitted an affidavit stating:

"That Affiant had had Mr. Dynes represent him on a case, prior to the instant action, in a Workmen's Compensation Claim and that Mr. Dynes received his attorney's fees from the Workmen's Compensation Bureau;

"In the instant case, being a labor dispute under the Federal law, Mr. Dynes told Affiant, and as established in the pleadings, that Mr. Dynes was to get his fees from the defendant pursuant to the Federal law;

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"That Mr. Dynes, supposedly fully aware of the circumstances of the case, and the law governing the recovery thereon, entered into negotiations for the settlement of the case with the defendant management company;

"That Affiant agreed to the Fifteen Thousand Eight Hundred Dollar ($15,800.00) settlement, as between the then parties, but never agreed to any settlement in the way of attorney's fees with the defendant herein;

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"That at no time during the continuance of the case where Affiant was represented by the defendant herein, did Affiant have any understanding that he would be charged any sort of an hourly fee nor even a contingent fee because of defendant's statements and allegations in the Complaint that his fee would be recoverable under the Federal law from the defendants in that case; and, it was only because of Affiant's financial condition, after the case was settled for the Fifteen Thousand Eight Hundred Dollars ($15,800.00) did he accept the payments made to him by the defendant herein, but not...