Simler v. Conner, 6339.

• Decision Date: 15 January 1962
• Docket Number: No. 6339.,6339.
• Parties: A. J. SIMLER, Appellant, v. Leslie L. CONNER, Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

295 F.2d 534 (1961)

A. J. SIMLER, Appellant, v. Leslie L. CONNER, Appellee.

No. 6339.

United States Court of Appeals Tenth Circuit.

October 12, 1961.

Rehearing Denied November 18, 1961.

Certiorari Granted January 15, 1962.

John B. Ogden, Oklahoma City, Okl. (Jack M. Highley, Oklahoma City, Okl., on the brief), for appellant.

James M. Little and Phil E. Daugherty, Oklahoma City, Okl. (Leslie L. Conner, Oklahoma City, Okl., on the brief), for appellee.

Before BRATTON, PICKETT and LEWIS, Circuit Judges.

Certiorari Granted January 15, 1962. See 82 S.Ct. 440.

PER CURIAM (on reconsideration).

When we originally considered this declaratory judgment action in which determinations of the validity of an attorney's contingent fee contract and of the reasonableness of an attorney's fee in a will-contest case are sought, we held that the plaintiff was entitled to a jury trial on the issues of fact. Simler v. Conner, 10 Cir., 282 F.2d 382. Thereafter the United States Supreme Court vacated our judgment and remanded the case "for reconsideration in the light of Southard v. MacDonald, Okl., 360 P.2d 940." Conner v. Simler, 367 U.S. 486, 81 S.Ct. 1679, 6 L.Ed.2d 1241. In the Southard case the Supreme Court of Oklahoma held:

"Where it is necessary to cancel a contingent fee contract before any other relief prayed for can be granted, and the cancellation of such contract is the basic relief sought, neither party is entitled to a jury trial for the reason that the cancellation is a purely equitable matter." Southard v. MacDonald, Okl., 360 P.2d 940, 941 (syllabus by the court).

Unless the contingent fee contract in this case is held to be invalid the value of the services on a quantum meruit basis does not arise, and Conner is entitled to one-half of any recovery resulting from the legal services rendered in connection with the will contest matter. The basic relief sought is the cancellation of the contract; therefore the action is purely equitable in nature, and should be determined by the court without a jury.

As to the appropriateness of the trial court's summary judgment our views remain as expressed in the former opinion.

Reversed and remanded for trial without a jury.

LEWIS, Circuit Judge.

I concur. The Supreme Court of the United States in remanding this case for further consideration in the light of Southard v. MacDonald, Okl., 360 P.2d 940 makes it manifest that the issues are dependent upon the application of state law. And the opinion of the Supreme Court of Oklahoma in Southard indicates that there is no factual element of reasonableness necessarily inherent in the searching scrutiny required in determining the validity of a contingent fee contract made between attorney and client as authorized by Title 5 O.S.A. § 7. I interpret...