Myers v. Muuss

• Citation: 662 S.W.2d 805,281 Ark. 188
• Decision Date: 09 January 1984
• Docket Number: No. 83-195,83-195
• Parties: William George MYERS, Appellant, v. Berta MUUSS, David B. Beiler, and Gisela Kannady, Appellees.
• Court: Arkansas Supreme Court

Page 805

662 S.W.2d 805

281 Ark. 188

William George MYERS, Appellant, v. Berta MUUSS, David B. Beiler, and Gisela Kannady, Appellees.

No. 83-195.

Supreme Court of Arkansas.

Jan. 9, 1984.

Rehearing Denied Feb. 6, 1984.

William George Myers, Fayetteville, for appellant.

Law Offices of W.B. Putman by W.B. Putman and E.E. Maglothin, Jr., Fayetteville, for Kannady.

Everett & Whitlock by Robert L. Whitlock, Prairie Grove, for Beiler.

Charles E. Hanks, Fayetteville, for Muuss.

HAYS, Justice.

Appellant, William George Myers, practices law in Fayetteville. In September 1981, he was retained by appellee, Berta Muuss, who claimed to be due an accounting for property entrusted to her daughter and son-in-law, appellees David and Gisela Beiler, who were contestants in a divorce suit. Myers was authorized to file suit for an accounting by the Beilers and to assist Mrs. Beiler's lawyer in the approaching trial of the divorce suit. He was to be paid $60.00 per hour and out-of-pocket expenses. He promptly filed suit for an accounting and actively assisted in preparation for trial of the divorce suit, which was non-suited on the eve of the trial, refiled, and later consolidated with the accounting suit.

In November, Mr. Myers submitted a statement for services and expenses, aggregating $1,355.40. Mrs. Muuss, a German national, could speak no English and she and Myers had difficulty communicating. For whatever reason, Mrs. Muuss became dissatisfied with Mr. Myers' representation and sometime before the consolidated suits were scheduled for trial on May 5, she dismissed Myers and employed other counsel. Mr. Myers contested his dismissal. He moved the court to fix his fee and impress a lien pursuant to Ark.Stat.Ann. § 25-301 and 302 (Repl.1962), also filing lis pendens against real property involved in the divorce suit. Before trial, the Chancellor heard proof on Myers' status and found he had been discharged. Consideration of the other issues was deferred.

After trial, Myers renewed his demands for a lien and petitioned for a reopening of the case. The Chancellor heard testimony and argument on October 4, and declined to reopen the case, giving as his reasons the fact that none of the litigants was requesting reopening and there was no property against which to impress a lien.

Appellant lists thirteen assignments of error in his statement of points relied on for reversal. However, in argument he departs from those statements of error and frames the issues in three broadly stated questions of law: (1) "What is the law of Arkansas pertaining to attorney liens and their enforcement?" (2) "Can an attorney in seeking to enforce his statutory lien properly file and maintain Lis Pendens as to the real property in the case as to which his client could have properly maintained a Lis Pendens notice of record prior to the final disposition of the case?" (3) "What are the duties, responsibilities, powers and authority of a trial judge in receiving, investigating and initiating appropriate disciplinary action as to complaints made to him of professional misconduct of attorneys practicing of record in specific cases before that trial judge?"

Appellant's brief is not in conformity with Rule 9(c) of our rules, as general questions of law may not be substituted for a concise statement of points of error relied on for a reversal of a judgment or decree. However, in an effort to consider the appeal we will restate what we take to be appellant's assignments of error: (1) The Chancery Court erred in refusing to reopen the case for the purpose of enforcing appellant's lien; (2) in refusing to consider appellant's lis pendens; and (3) in refusing to hear appellant's complaint that opposing counsel was guilty of professional misconduct.

At the October 4 hearing, a number of witnesses were called by appellant in an effort to determine what, if anything, Mrs. Muuss had received in return for a dismissal of her complaint. The undisputed testimony established that she had acquired nothing from the dismissal of her claim. Mr. Myers candidly acknowledged to the trial court that he was not able to show any asset to which his lien might attach. Nevertheless, he argues on appeal that it was error to deny him his lien, though where or how it could be impressed is not explained.

Appellant cites us to cases generally giving a liberal construction to our lien statutes: Home Insurance Co. v. Jones, 253 Ark. 218, 488 S.W.2d 190 (1972); Metropolitan Life Insurance Co. v. Roberts, 241 Ark. 994, 411 S.W.2d 299 (1967); Hamm v. Howard, 216 Ark. 326, 225 S.W.2d 333 (1949); Slayton v. Russ, 205 Ark. 474, 169 S.W.2d 571 (1943); St. Louis Iron Mtn. and So. Ry Co. v. Hays & Ward, 128 Ark. 471, 195 S.W. 28 (1917). In Slayton, Russ' suit against Slayton was settled by a direct payment of $50.00 by Slayton to Russ, without the knowledge and consent of Russ' attorneys. The trial court gave judgment against Slayton to Russ' attorneys in the amount of $318. Slayton argued on appeal that Russ' suit could not have succeeded. We rejected that argument (though recognizing it as the majority view), saying that after a suit is filed a settlement with the plaintiff without the consent of his attorney is "the only prerequisite" to a right of the attorney to have his fee fixed under the statute, thus a defendant may not argue that the plaintiff's case is groundless where he has paid to settle the law suit.

Similarly, in St. Louis Iron Mtn. & So. Ry Co. v. Hays & Ward, supra, the railroad settled a personal injury suit with the client of Hays & Ward by paying $5,000 directly to the client, without the knowledge of the lawyers. The law firm intervened in the pending suit, basing their lien on a contingent fee agreement, which the court upheld, impressing a lien upon the property of the railroad. We affirmed.

In Metropolitan Life v. Roberts, supra, the lien was upheld where an insurer paid a death claim directly to its insured, notwithstanding notice by the insured's lawyer, Roberts, that he represented the insured. In Home Insurance v. Jones, supra, the lien was disallowed where a settlement was reached between the insured and the insurer, but there we found the attorney for the insured had failed to give written notice of his representation. In each of these cases it should be noted that the settlements were based on the payment of money by one litigant to another, to the exclusion of the attorney for the party receiving the payment.

In 1940, the case of Missouri Pacific v. Geurin, 200 Ark. 755, 140 S.W.2d 691 (1940), was decided on the identical facts presented by this appeal. Geurin filed suit to recover $3,000 for personal injuries allegedly sustained while riding as a passenger on one of the defendant's trains. Geurin's contract with his lawyer provided for a...