Webb v. Oxley

• Decision Date: 17 August 1961
• Docket Number: No. 342,342
• Citation: 173 A.2d 358,226 Md. 339
• Parties: John C. WEBB and Helen H. Webb, his wife v. John E. OXLEY.
• Court: Maryland Court of Appeals

Page 339

226 Md. 339

173 A.2d 358

John C. WEBB and Helen H. Webb, his wife v. John E. OXLEY.

No. 342.

Court of Appeals of Maryland.

Aug. 17, 1961.

John C. Webb in pro. per., for appellants.

J. Hodge Smith, Rockville, for appellee.

Before BRUNE, C. J., and HAMMOND, PRESCOTT, HORNEY and SYBERT, JJ.

SYBERT, Judge.

John E. Oxley, appellee, a Montgomery County attorney, was retained by John C. Webb and his wife, Helen H. Webb, appellants, to represent them in a land condemnation proceeding filed against the Webbs by the United States Government in the District Court of the United States for the District of Maryland in December, 1955. The record shows that Mr. Oxley is a reputable lawyer of 35 years' experience in general practice, including extensive trial work. He testified that he agreed to represent the Webbs after assuring himself that the Webbs' previous attorney was 'no longer in the case', and had been discharged by them. In March, 1957, the parties agreed to a retainer and contingent fee arrangement under which Mr. Oxley should receive, after conclusion of the case, a flat fee of $500 and in addition 20% of any amount obtained in the suit for the property in excess of $9,750, the figure already offered to the Webbs by the government. The $500 fee and expenses of litigation were to be deducted from the excess of the jury award above $9,750, before computation of the contingent fee.

The three day trial of the condemnation case was held on October 22-24, 1957, in the District Court. The jury's award for the property was $14,000, a figure far below the Webbs' asserted valuation of about $43,000.

Mr. Oxley was then discharged by the Webbs by letter dated October 26, 1957, in which Mr. Webb assured Mr. Oxley that 'We do appreciate the work you have done for us and this action is not meant in any way to indicate a lack of confidence.' The Webbs then retained other counsel to prosecute a motion for a new trial and an appeal to the United States Court of Appeals, both of which were unsuccessful.

There was subsequent correspondence between Mr. Oxley and the Webbs concerning the fee. On December 4, 1957, Mr. Webb, in a letter to Mr. Oxley, listed the expenses of litigation and computed the contingent fee due Mr. Oxley, over and above the flat fee of $500, as $448. He then stated: 'This makes a total due you of $948. The question of a new trial has not been determined as yet. If a new trial is not taken, your fee will be forthcoming as the award is received. If a new trial is awarded and taken, the payment will be further delayed.' In none of the correspondence appearing in the record is there any suggestion of dissatisfaction on the part of the Webbs with the competence of Mr. Oxley's representation of them.

After the Webbs lost their motion for a new trial and appeal, and received from the clerk of the District Court the $14,000 awarded by the jury, but did not pay his fee, Mr. Oxley sued the Webbs in assumpsit in the Circuit Court for Montgomery County. At the jury trial Mr. Webb, who is not an attorney, appeared in proper person. A jury verdict in favor of Mr. Oxley for $1,130 resulted, the full amount of the fee plus interest. Mr. and Mrs. Webb appealed from the judgment entered on the verdict.

The brief filed by Mr. Webb on behalf of himself and Mrs. Webb is inartificially drafted and discursive. Stated concisely (relatively speaking), the contentions presented therein appear to be as follows: (1) That the Circuit Court for Montgomery County did not have jurisdiction to hear and determine the case; (2) that the trial court erroneously sustained objections to appellants' attempt to prove negligence in the performance of a contract for legal services by asking appellee if he had ever read certain legal textbooks; (3) that the trial court erred by demonstrating prejudicial bias (a) in refusing to allow testimony by Mr. Webb concerning 'the various sources that refused assistance in the location of lawyers qualified to serve as counsel or expert witness or other aid in this case'; (b) in asking Mr. Webb, in the manner of 'stern cross-examination', certain questions relative to the non-payment of the fee to Mr. Oxley, and in ignoring the contention of the Webbs that Mr. Oxley had, prior to the trial of the condemnation case, without informing the Webbs, determined not to follow the trial strategy agreed upon by Mr. Oxley and Mr. Webb, and that therefore Mr. Oxley should have withdrawn from the case prior to trial; (c) in excluding a certain exhibit which appellant sought to introduce; and (4) that the verdict and judgment were contrary to the evidence.

(1).

The question of jurisdiction was not raised by appellants in the trial court. However, matters of jurisdiction are always before this Court and are exceptions to the general rule that we will consider only such questions as have been raised and decided below. Maryland Rule 885. Berlinsky v. Eisenberg, 1948, 190 Md. 636, 59 A.2d 327.

The appellants maintain that the United States District Court had exclusive jurisdiction to determine the amount of Mr. Oxley's fee, on the ground that it was a matter ancillary to the condemnation case. The so-called 'ancillary jurisdiction' rule is a concept enunciated by the federal courts by which it is held that a district court acquires jurisdiction of a case or controversy as an entirety, and hence may, as an incident to disposition of a matter properly before it, possess jurisdiction to decide other matters raised by the case of which it could not take cognizance were they independently presented. The rule and the cases upon which it is based are analyzed by Barron and Holtzoff in 1 Federal Practice and Procedure (Rules ed.) § 23. See also 36 C.J.S. Federal Courts § 13(2). From the authorities it is plain that the rule has no application to a situation such as the one before us. The rule does not purport to confer exclusive jurisdiction upon the federal courts in ancillary matters not otherwise within their jurisdiction.

Basically, the suit before us is not ancillary to the condemnation case. In Co-operative Transit Co. v. West Penn Electric Co., 1943, 132 F.2d 720, 724, the Circuit Court of Appeals for the Fourth Circuit quoted with approval from Simkins on Federal Practice, § 745, as follows:

"If the bill contains matter not before litigated by the same parties standing in the same interests, that is, if new parties are brought in, and new matter charged as a basis of relief, then the bill is not ancillary, but an original bill, and cannot be supported by the former suit, but must stand independently on its parties and subject-matter for jurisdiction in the Federal courts."

See also, to the same effect, Karnegis v. Schooler, D.C.N.D.Tex.1944, 57 F.Supp. 178. Here, the parties in the condemnation case and the instant case are different, and the matter of Mr. Oxley's fee is 'matter not before litigated by the same parties standing in the same interests,' but is a separate and distinct cause of action which must be asserted like a claim arising upon any other contract. See Ashman v. Schechter, 1950, 196 Md. 168, 176, 76 A.2d 139. In addition, there is no diversity of citizenship in the instant case, nor does it involve a federal question. Clearly, the Circuit Court for Montgomery County had jurisdiction of...