Strobehn v. Mason

• Decision Date: 28 May 2013
• Docket Number: No. WD 75140.,WD 75140.
• Citation: 397 S.W.3d 487
• Court: Missouri Court of Appeals
• Parties: Walters Bender STROBEHN & Vaughan, P.C., Respondent, v. Elizabeth MASON, Appellant.

397 S.W.3d 487

Walters Bender STROBEHN & Vaughan, P.C., Respondent,

v.Elizabeth MASON, Appellant.

No. WD 75140.

Missouri Court of Appeals,

Western District.

Feb. 26, 2013.

Motion for Rehearing and/or Transfer to Supreme Court Denied March 26, 2013.

Application for Transfer Denied May 28, 2013.

Stephen B. Millin, Jr., Kansas City, MO, for respondent.

Elizabeth Mason, New York City, and Erich V. Vieth, St. Louis, MO for appellant.

Before Division One: MARK D. PFEIFFER, P.J., and VICTOR C. HOWARD and ALOK AHUJA, JJ.

ALOK AHUJA, Judge.

In 2007, Respondent Walters Bender Strohbehn & Vaughan, P.C., a Kansas City-based law firm, entered into an agreement with Appellant Elizabeth Mason, a New York attorney, to serve as co-counsel with Mason in a personal-injury case pending in the New York state courts. Mason terminated the arrangement after a mistrial was declared in the New York litigation. She enlisted the assistance of other co-counsel, and ultimately settled the case for a substantial sum before the jury returned a verdict at a second trial. Walters Bender asserted an attorneys-fee lien on the settlement proceeds in New York, and also filed this civil action in the Circuit Court of Jackson County, seeking to impose personal liability on Mason for its claimed fee. Mason petitioned the New York court to declare Walters Bender's lien void, and Walters Bender cross-petitioned to enforce the lien. Following a trial, the New York court entered a judgment determining that Walters Bender was entitled to a fee of $109,425.39. The circuit court adopted the findings of the New York court that the co-counsel agreement had not been terminated for cause, and concerning the amount of Walters Bender's fee, and entered a personal judgment against Mason for $109,425.39, plus pre-judgment interest of $39,141.35. Mason appeals, claiming that the circuit court lacked both personal and subject-matter jurisdiction. We affirm.

Factual Background

Mason is a New York litigation attorney. In the fall of 2007, Mason was preparing to try a civil case captioned Anonymous v. High School for Environmental Studies, et al., No. 03/115352 (Sup.Ct., N.Y.Cnty.). The case, which had been pending since 2001, arose out of the rape of a minor female high-school student by one of her teachers. The trial was expected to address only damages issues, since the trial court had stricken the City of New York's answer due to discovery violations. A jury trial was set for November 26, 2007.

In preparing for trial, Mason retained Dr. David Corwin to serve as an expert forensic child psychiatrist on October 3, 2007. Dr. Corwin gave Mason contact information for Michael D. Strohbehn, a shareholder of Walters Bender. The parties dispute why Mason was given Strohbehn's name. Mason claims that Strohbehn was merely a reference for Dr. Corwin. Strohbehn claims, on the other hand, that he had previously given Dr. Corwin permission to pass his information along to Mason as a potential resource. Regardless, on October 18, 2007 (more than two weeks after retaining Dr. Corwin), Mason contacted Strohbehn and they discussed Anonymous. Mason claims that, during this conversation, Strohbehn expressed an interest in the case because it shared similarities with a case he had previously handled, which resulted in a substantial verdict. Mason also alleged that Strohbehn offered to fly to New York at his own cost simply to discuss the case further. For his part, Strohbehn testified that during the October 18 conversation he expressed concerns to Mason that her damages claim was not more fully developed, and that Mason asked him if he would consider becoming involved in the case. In response, Strohbehn flew to New York to discuss the case further, to determine if he would serve as her co-counsel.

Strohbehn met with Mason in New York on October 22. Though the parties' accounts differ as to the specific course of events, both parties agree that while Strohbehn was in New York, Mason offered him one-third of her contingency fee to assist with the case. On October 23, Strohbehn returned to Mason's office and met with the client. Mason testified that, at that time, Strohbehn accepted her offer to serve as co-counsel. Strohbehn testified that he told Mason that he could not accept the offer without consulting his fellow shareholders. Strohbehn testified that he returned to Kansas City, without having committed to participate in the case, to discuss the opportunity with his colleagues. Strohbehn testified that, after doing so, he accepted Mason's offer during a telephone call she initiated on October 24. No written contract was ever signed.

Strohbehn and his staff worked from Kansas City on various tasks related to trial preparation, including analyzing medical records and creating a chronology, contacting and hiring additional experts, and preparing for witness examinations and closing arguments. Meanwhile, Mason continued to work on the case from New York, and was frequently in contact with Strohbehn as their trial preparations continued.

The trial began on November 26, 2007. Both Mason and Strohbehn participated in the trial; among other things, Strohbehn conducted voir dire, gave the opening statement, and conducted witness examinations. After four trial days, a mistrial was declared on December 5, 2007.

Mason contended that Strohbehn committed acts of misconduct during the trial (allegations which Strohbehn denied). After the mistrial, Mason terminated the co-counsel agreement, and instead hired another New York attorney to assist her in the second trial, at the same compensation (one-third of Mason's fee). During the second trial, the case was settled for $1,100,000 before the jury reached a verdict.

On February 27, 2008, an attorney representing Walters Bender ¹ notified counsel for the City of New York that Walters Bender asserted a lien against any recoveries in Anonymous under New York Judiciary Law § 475 and § 484.130, RSMo. On March 3, 2008, Walters Bender also filed the present suit against Mason personally, alleging claims for breach of contract, conversion, unjust enrichment, and quantum meruit.

After being informed of Walters Bender's assertion of an attorneys-fee lien, the City refused to disburse the settlement proceeds. On May 14, 2008, Mason filed a petition in the Anonymous case, seeking a court order requiring the City to disburse the settlement proceeds to the client and to her, and to find Walters Bender's lien to be unenforceable. Walters Bender cross-petitioned to enforce the lien. In June 2008, the New York trial court awarded Walters Bender a judgment of $5,250, representing $3,250 for ten hours of attorney services, and $2,000 in expenses. Walters Bender appealed. On November 10, 2009, the New York Supreme Court, Appellate Division, reversed, and “remanded for a hearing to determine whether [Strohbehn] is entitled to be paid for his services, and, if so, the reasonable value of his services and the amount of any reasonable expenses.” Mason v. City of N.Y., 67 A.D.3d 475, 889 N.Y.S.2d 24, 25 (2009).

After conducting a trial concerning whether Strohbehn had been discharged for cause, the reasonable value of his services, and the amount of his reasonable expenses, the New York trial court entered a new decision on January 27, 2012. The trial court found:

It is without a doubt that Mr. Strohbehn had fallen out of favor with [the client], and she was entirely within her rights to discharge Mr. Strohbehn with or without cause.... However, on the evidence before me, I cannot hold as a matter of law, that the discharge here was for cause, rather than disenchantment.

The New York court also found that, “[o]n the issue of quantum meruit, [Strohbehn] may not be entitled to the entire fee that he anticipated, but I find that 2/3 of that fee or $109,425.39, is the proper fee in this instance.” Mason asserts that she is currently appealing the New York court's January 2012 decision.

While the proceedings were ongoing in New York, the circuit court granted Mason's motion to dismiss the Missouri action on June 18, 2009, on the ground that the Missouri action was precluded by res judicata based on the New York court's original judgment concerning the attorneys lien. This Court reversed, holding that Mason's motion to dismiss was converted into a motion for summary judgment due to her reliance on documents beyond the petition, and that Walters Bender had not been given adequate notice that the court intended to consider the motion as one for summary judgment. Walters Bender Strohbehn & Vaughan, P.C. v. Mason, 316 S.W.3d 475, 479–81 (Mo.App. W.D.2010). We remanded the case to the circuit court for further proceedings. Id. at 481.

On January 30 and February 1, 2012, the circuit court held a jury trial limited to a single question: where Strohbehn accepted Mason's offer to serve as co-counsel in the Anonymous case. The application of Missouri's “long-arm” statute, governing service of process on an out-of-state defendant, depended on the answer to this question. The jury found that the contract had been entered in Missouri.

The circuit court conducted a further evidentiary hearing on February 6, 2012, to address whether Mason's contacts with the State of Missouri justified the exercise of personal jurisdiction over her. On February 21, 2012, the circuit court entered a Judgment containing detailed findings of fact. The court found Strohbehn's testimony “to be credible and consistent, even at times offering testimony that arguably might not be fully supportive of the position he was advocating.” The court found Mason not to be a credible witness, noting that during her testimony she “was often evasive and non-responsive,” and “offered different explanations of events, [and] provided different versions of events,” during her testimony as compared to affidavits she had previously filed.

Based on its assessment of the witnesses' credibility, the court found that Mason's...