Self & Assocs., Inc. v. Jackson

• Decision Date: 10 October 2011
• Docket Number: Division No. 4.,No. 108,057.Released for Publication by Order of the Court of Civil Appeals of Oklahoma,108,057.Released for Publication by Order of the Court of Civil Appeals of Oklahoma
• Citation: 2011 OK CIV APP 126,269 P.3d 30
• Parties: SELF & ASSOCIATES, INC., Plaintiff/Appellant, v. Justin Wade JACKSON, Individually; Jeffrey T. Stites, Individually; and the Law Office of Jef Stites, PLLC, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2011 OK CIV APP 126

269 P.3d 30

SELF & ASSOCIATES, INC., Plaintiff/Appellant,

v.Justin Wade JACKSON, Individually; Jeffrey T. Stites, Individually; and the Law Office of Jef Stites, PLLC, Defendants/Appellees.

No. 108,057.Released for Publication by Order of the Court of Civil Appeals of Oklahoma

Division No. 4.

Court of Civil Appeals of Oklahoma, Division No. 4.

May 19, 2011.Rehearing Denied June 9, 2011.Certiorari Denied Oct. 10, 2011.

Appeal from the District Court of Oklahoma County, Oklahoma; Honorable Barbara G. Swinton, Trial Judge.REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

Robert D. Tomlinson, Jennifer C. Schnell, Tomlinson Rust McKinstry Grable, Oklahoma City, Oklahoma, for Plaintiff/Appellant.

Jef Stites, Law Office of Jef Stites, PLLC, Tulsa, Oklahoma, for Defendants/Appellees.

JERRY L. GOODMAN, Presiding Judge.

¶ 1 Plaintiff, Self & Associates, Inc. (Self), a law firm, appeals a summary judgment granted in favor of Defendants, Justin Wade Jackson (Client), and Jeffrey T. Stites and the Law Office of Jef Stites, PLLC (Stites). Self sued Client and Stites for damages allegedly caused when Client terminated his contingent fee contract with Self and entered into a contract with Stites. We issued an opinion in this matter on January 13, 2011. Stites and Client subsequently filed a Petition for Rehearing which we sustain simultaneously with the issuance of this opinion. We withdraw our earlier opinion and in lieu thereof issue this opinion. Based upon our review of the facts and applicable law, we reverse and remand for further proceedings.

BACKGROUND

¶ 2 On May 8, 2006, Client and Self executed a contract for Self to represent Client concerning an April 2006 car accident in which Client was seriously injured. The contract provided for a contingent fee entitling Self to one-third of any amount recovered before suit was filed and 40 percent after suit was filed.¹ The contract provided that Self would make an effort to settle before filing suit; that Self would consult Client before filing suit; and that “no compromise or settlement shall be accepted without the consent of all parties hereto.”

¶ 3 Self pursued Client's legal claims for more than nine months but did not file suit. On February 16, 2007, Self received a letter from Client, dated February 12, 2007, stating his services were terminated and Client had hired Stites. In June 2007, Stites filed suit on Client's behalf and endorsed his claim for an attorney's lien on the petition. In November 2007, Stites settled the case for more than $500,000.00. Although Stites was paid from the proceeds, Self has received no compensation for the services he rendered to Client prior to his discharge.

¶ 4 In February 2008, Self filed the present action. His initial petition alleged that he contacted Client when he received the termination letter, that Client told him Stites “had persuaded” Client to terminate Self even though Client did not desire to do so, and Self had done nothing to justify being terminated. His petition sought damages from Client for legal services based upon his “investment of time, services, and expenses.” It also sought compensatory and punitive damages against Stites for tortious interference with Self's attorney-client contract.

¶ 5 Both Defendants moved to dismiss for failure to state a claim; they also moved to strike allegations that Defendants' claims were protected by attorney-client privilege. The trial court struck the allegedly privileged matter and dismissed Self's claim to the extent it asserted an attorney's lien, noting that Self admitted he had not perfected a lien under 5 O.S.2001, § 6. The court also took a number of other actions to preserve Client's asserted attorney-client privilege from waiver and to protect against disclosure of privileged information, including instructing Self to file an amended petition under seal.²

¶ 6 Defendants then moved for summary judgment, asserting Self could not present admissible evidence in support of his tortious interference claim against Stites because all communications between Self and Client, and Client and Stites, were protected by the attorney-client privilege, which Client asserted. Defendants also asserted Self could not assert a breach of contract claim because Client had the right to terminate him at any time, and because Self had not perfected an attorney's lien; therefore, Defendants argued Self had no basis to seek damages against Client, Stites, or the settlement proceeds.

¶ 7 In response, Self filed an opposing brief under seal. Attached to his brief were pages from Stites' deposition transcript reflecting Stites' refusal to answer numerous questions due to “attorney-client privilege,” and Stites' notification to him that Client would not be produced for deposition for the same reason. Self also submitted an affidavit that, among other things, describes his own interaction with Client after Self received the termination letter. According to Self, Client stated he had contacted Stites to discuss this case and another matter, and that Stites had persuaded him to terminate Self. Self's affidavit also states that the two arranged to meet on Monday in order to go over a petition to be filed by Self, but Client called and cancelled, and later sent him a fax wherein Client re-stated that Self was terminated, that Client had hired Stites, and that Self should contact Stites to “work out compensation for your work thus far.”

¶ 8 Also attached to Self's response brief was an affidavit from his expert witness, Michael Allen Walsh, an Oklahoma attorney, who opined that Self provided “very valuable services ... that greatly increased the value of” Client's case. Walsh noted that Stites' billing records (copies of which are attached to the affidavit) and other evidence indicate that Stites conferred with Client by telephone on February 9, 2007, that Client informed Stites that he was represented by Self, and that Client faxed Stites information about the case for Stites' evaluation two days later. Walsh opined that “Mr. Stites not only communicated concerning the merits” of Client's case prior to Self's termination, but “accepted Mr. Jackson as a client verbally on February 9, 2007....”

¶ 9 The trial court granted Defendants' motion for summary judgment, stating it appeared to her that Client terminated Self's services before hiring Stites. Self now appeals.

Standard of review

¶ 10 Summary judgment is appropriate only if the record, construed in a light most favorable to the party against whom judgment was granted, discloses uncontroverted material facts that do not support any legitimate inference in favor of that party. First Nat'l Bank & Trust Co. of Vinita v. Kissee, 1993 OK 96, ¶¶ 7–8, 859 P.2d 502, 505. The granting of summary judgment presents an issue of law and, therefore, requires de novo review, i.e., a plenary, independent, and non-deferential re-examination of the trial court's rulings. Neil Acquisition, L.L.C. v. Wingrod Inv. Corp., 1996 OK 125, ¶ 5, n. 1, 932 P.2d 1100, 1103, n. 1.

ANALYSIS

¶ 11 On appeal, Self asserts essentially two propositions: ³ (1) the summary judgment ignores his right to recover against Client for his services as measured by quantum meruit and his evidence in support thereof; and (2) disputed issues of fact preclude summary judgment on his tortious interference claim against Stites.

1. Self's Quantum Meruit Claim

¶ 12 Oklahoma has long recognized that, although a client may discharge an attorney at any time, if an attorney working under a contingent fee contract is discharged without cause, the attorney is nonetheless entitled to compensation for his or her services rendered up to the time of discharge. As stated in the early case of White v. American Law Book Co., 1924 OK 123, ¶ 7, 233 P. 426, 427:

The relationship of attorney and client is one of reliance, trust, and confidence. When any element of this relationship is destroyed for whatever reason, the client has the absolute right, in the interest of his own welfare, to discharge the attorney. On such discharge, the fees become due ...

¶ 13 In White, where the contingency in question occurred prior to discharge, the Court characterized the claim as one for breach of contract and designated the measure of damages as being “the compensation named in the contract.” Id. at ¶ 5, at 427. The Court did not condition its holding on whether the attorney seeking his fees had perfected an attorney's “lien” prior to discharge; however, the Court recognized that other measures of damages—most generally based on quantum meruit—might apply “under other circumstances.” Id. at ¶ 7, at 427.

¶ 14 First National Bank & Trust Co. v. Bassett, 1938 OK 461, 83 P.2d 837, involved a case where an attorney was discharged before a contingency occurred. There, the Court again recognized that the basis for the attorney's claim was for breach of contract, but held that his measure of damages was determinable on a “ quantum meruit basis,” including consideration of the recovery ultimately obtained by the former client. Id. at ¶ 22, 83 P.2d at 840 (quoting Shattuck v. Penn. Ry. Co., 48 F.2d 346 (D.C.N.Y.1931)). The Court explained:

The basis for this holding [is] that the value of an attorney's services is not solely controlled by details of his services, but his skill, diligence, and the final results in the litigation are elements bearing upon the appraisement of his employment. Although the value of what he did must be based upon quantum meruit, the ultimate result of the action constitutes an element in fixing the fee.... The recovery in such cases, then, seems to be allowed upon the contract, quantum meruit entering as the measure for determining the value of the services rendered, and not in itself providing the basis of recovery.

Id. at ¶¶ 23–24, 83 P.2d at 840. The Supreme Court repeated this rule in Musser v. Musser, 1995 OK 116, ¶ 14, 909 P.2d 37, 40 (emphasis added), stating that “when an...