Robinson v. Champion

• Decision Date: 24 January 1972
• Docket Number: No. 5--5627,5--5627
• Citation: 475 S.W.2d 677,251 Ark. 817
• Parties: Milton G. ROBINSON and William C. Daviss, Appellants, v. Lucille K. CHAMPION, Appellee.
• Court: Arkansas Supreme Court

Page 677

475 S.W.2d 677

251 Ark. 817

Milton G. ROBINSON and William C. Daviss, Appellants, v. Lucille K. CHAMPION, Appellee.

No. 5--5627.

Supreme Court of Arkansas.

Jan. 24, 1972.

Milton G. Robinson, and William C. Daviss, Stuttgart, for appellants.

Theodore L. Lamb, Little Rock, for appellee.

FOGLEMAN, Justice.

This appeal involves a decree rendered in a suit by appellee to recover alleged excessive attorneys' fees paid appellants as her attorneys in a divorce case. The court rendered judgment against each of the appellants in the sum of $7,250. The present action was filed nearly three years after the termination of the employment. She alleged that appellant Daviss had been paid $5,700 by her husband pursuant to court order, $7,250 by a receiver appointed in the divorce case pursuant to court order and $15,575 she paid him. She alleged that appellant Robinson had been paid the same amounts except that the amount paid by her former husband under court order was only $5,600. She contended that the fees exacted from her were excessive and that she had paid them because of undue influence of the appellants and their overreaching and imposition on the attorneyclient relationship. The conduct upon which she relied was the alleged representation by the attorneys to her that she was required to make these payments in order to receive property distributions of $40,000 in March 1966 and $80,000 in October 1966. She paid appellants $5,000 each in March 1966 and $10,000 each in October 1966.

Appellants not only resisted appellee's claim but filed a counterclaim in which they alleged that they were entitled to additional fees $12,500. There is no issue presently involved as to the amounts of compensation charged against the defendant in the divorce case, Dr. Walton T. Champion.

Among the pertinent considerations in determining the reasonableness of attorney's fees not specifically fixed by contract, as is the case here, are: the attorney's judgment, learning, ability, skill, experience, professional standing and advice, Bockman v. Rorex, 212 Ark. 948, 208 S.W.2d 991; St. Louis-San Francisco Ry. Co. v. Hurst, 198 Ark. 546, 129 S.W.2d 970, 122 A.L.R. 965; Rachels v. Garrett, 153 Ark. 343, 240 S.W. 1071; Turner v. Turner, 219 Ark. 259, 243 S.W.2d 22; the relationship between the parties, Rachels v. Garrett, supra; the amount or importance of the subject matter of the case, Rachels v. Garrett, supra; St. Louis-San Francisco Ry. Co. v. Hurst, supra; Turner v. Turner, supra; the nature, extent and difficulty of services in research, collection, estimation and mental array of evidence and anticipation of defenses and means of meeting them, and considering the case, receiving confidential information and giving confidential advice before any pleadings are filed or other visible step is taken, St. Louis-San Francisco Ry. Co. v. Hurst, supra; Bockman v. Rorex, supra; Files v. Fuller, 44 Ark. 273; the preparation of pleadings, Files v. Fuller, supra; the proceedings actually taken and the nature and extent of the litigation, Rachels v. Garrett, supra; St. Louis-San Francisco Ry. Co. v. Hurst, supra; the time and labor devoted to the client's cause, St. Louis-San Francisco Ry. Co. v. Hurst, supra; Rachels v. Garrett, supra; Turner v. Turner, supra; the difficulties presented in the course of the litigation, St. Louis-San Francisco Ry. Co. v. Hurst, supra; the results obtained, Turner v. Turner, supra; St. Louis-San Francisco Ry. Co. v. Hurst, supra; Bradshaw v. Bank of Little Rock, 76 Ark. 501, 89 S.W. 316; and many other factors beside the time visibly employed, St. Louis-San Francisco Ry. Co. v. Hurst, supra; Bockman v. Rorex, supra. In making these determinations, both the trial court's and this court's own experience and knowledge of the character of such services may be used as a guide. Rachels v. Garrett, supra; Aetna Life Ins. Co. v. Heiden, 184 Ark. 291, 42 S.W.2d 392; Whetstone v. Travis, 223 Ark. 856, 269 S.W.2d 320. Considerable weight is to be given to the opinion of the judge before whom the proceedings are conducted. Marlin v. Marsh & Marsh, 189 Ark. 1157, 76 S.W.2d 965; Whetstone v. Travis, supra. When we give due consideration to the extensive record before us and to the factors to be considered we find that the fees allowed and paid to appellants were adequate for the services they performed, but that they were not excessive or unreasonable and that appellee is not entitled to recover any of the fees paid to them. Consequently the decree of the chancellor is reversed.

The voluminous record in the divorce case and in the incidental receivership was made a part of the record in this proceeding and was considered by the chancellor who heard this case on assignment, who was not the same chancellor who had heard all of the proceedings in the divorce case and the receivership.

The parties to the divorce case were both medical doctors practicing in Stuttgart. They were first separated sometime in 1958 when a divorce suit was filed by appellee in which she was represented by appellant Robinson. A reconciliation was effected, and they lived together until June 1, 1961. Appellee first employed appellant Daviss in February or March, 1962. He arranged a temporary agreement about child custody and visitation and testified that he spent considerable time in trying to effect a reconciliation, in accordance with his client's wishes. Daviss testified that he spent many hours and held many conferences before he terminated his attempts on May 9, 1962, and filed a suit for divorce.

Daviss said that, after attorney Virgil Moncrief filed an answer for Dr. Walton Champion, he spent many hours conferring with this attorney before determining that the suit would have to be tried. At this point Dr. Walton Champion employed Mr. George E. Pike who represented him throughout the further proceedings in the case. Appellee said that she was then afraid that she was going to lose the case, so she employed the appellant Robinson in August 1962 with the approval of Daviss.

According to Chancellor Dawson before whom the case was tried, the trial consumed 10 days, which were not consecutive but ranged from September 12 to November 1. At the time of the filing of the divorce suit, appellee alleged that her husband had contributed nothing to her support or that of their four young children since the separation except for payment of utility bills and maturing installments on the mortgage on the family residence which she and the children were occupying. The first step in the proceedings was a hearing which resulted in appellee being awarded custody of the minor children, possession of the family residence, $300 per month for support of herself and the children and $100 attorneys' fees, all pendente lite.

After the trial, the chancery court found that appellee was entitled to a divorce, although she was not without fault, reaffirmed the award of child custody and possession of the residence along with the household furnishings and equipment, allowed an additional $1,200 to apply on her attorneys' fees, awarded $350 per month for child support, out of which she was to pay the maturing family residence mortgage installments, awarded her one-third of Dr. Champion's personal property, one-third of his real estate for life, dissolved an estate by the entirety in rental residential property owned by the parties, required the husband to account for all property disposed of by him since the beginning of the action, enjoined him from disposing of or encumbering any property and appointed a commissioner to sell all of the defendant's real and personal property if the parties had not reached an acceptable agreement on the property distribution within 90 days of September 1, 1963, All costs were assessed against the husband. The entry of a formal decree was withheld until April of 1963, apparently with the approval of the court, while unsuccessful negotiations to arrive at a settlement on the distribution of property were being conducted by appellants and attorney Pike.

There can be no doubt that the divorce proceeding was acrimoniously contested and many charges and countercharges of infidelity and indiscreet conduct were aired, along with other bitter complaints. The parties also seemed to have constantly bickered over the children's visitation with their father, his tardiness in returning them to the mother's custody and their resulting absence from school. The husband unsuccessfully appealed to this court. See Champion v. Champion, 238 Ark. 87, 378 S.W.2d 648, decided May 11, 1964. Although the appeal seemed to be general, when the appellant's brief was filed here, he only asserted error in that part of the decree ordering a sale of the property. Meanwhile, he had applied to the chancery court for relief, asserting that he could not pay child support until the property division was accomplished, and that he could not conduct farming operations on the lands owned by him unless the appellee signed a $70,000 mortgage. When the court would not compel her to do so, the parties filed a joint petition asking for the appointment of a receiver for the defendant's property alleging that there was danger of losing about 3,000 acres of farmland by foreclosure of a $130,000 mortgage.

The court appointed John Gunnell, the clerk of the court, as receiver, finding that the equities of both the parties and their children in approximately 4,000 acres of land in Lee, Arkansas, Monroe and Prairie Counties, the homestead and residential rental property in Stuttgart were in imminent danger unless the farm operation loan could be secured.

Subsequently, but still during the pendency of his appeal, Dr. Walton Champion applied to the chancery court for a modification of its decree, aleging that his request for the appointment of a receiver was necessitated by appellee's failure to sign mortgages for loans to him to produce crops in 1963 and that he was unable to...