White v. McBride

• Citation: 937 S.W.2d 796
• Parties: Frank L. WHITE, Plaintiff-Appellant, v. Hubert A. McBRIDE, Executor, Defendant-Appellee.
• Decision Date: 03 September 1996
• Court: Tennessee Supreme Court

Page 796

937 S.W.2d 796

Frank L. WHITE, Plaintiff-Appellant, v. Hubert A. McBRIDE, Executor, Defendant-Appellee.

Supreme Court of Tennessee at Nashville.

Sept. 3, 1996.

Frank J. Glankler, Jr., Robert L. Hutton, Glankler Brown, Memphis, for Plaintiff-Appellant.

James T. Bland, Jr., Memphis, for Defendant-Appellee.

OPINION

DROWOTA, Justice.

This case presents the question of whether the plaintiff, attorney Frank White, may recover attorney's fees from the estate of Kasper McGrory. This broad question may, in turn, be divided into two specific subissues: (1) whether the contingency fee contract between White and McGrory is "clearly excessive" under Disciplinary Rule 2-106 of the Code of Professional Responsibility, Tenn. Sup.Ct. R. 8, and is, thus, unenforceable; and (2) if the contingency fee contract is unenforceable, whether White may, nevertheless, recover attorney's fees on a quantum meruit basis. For the reasons that follow, we hold that the contract is unenforceable and that White is not entitled to recover under the theory of quantum meruit. Because the probate court and the Court of Appeals held that White could not recover under the contract, but could recover on a quantum meruit basis, we reverse the latter part of the judgment.

FACTS AND PROCEDURAL HISTORY

A full account of the facts is necessary to put the above-stated issues in perspective; we shall, therefore, set them out in some detail. The plaintiff, Frank White, was a friend and legal representative of Kasper McGrory and his wife Ruby Leigh Anglin McGrory for several years; in the early 1970s, he drafted wills for them in which each left all his or her assets to the surviving spouse. The McGrorys' relationship, however, apparently deteriorated thereafter. In the fall of 1990, while suffering from an illness that would eventually result in her death, Leigh wrote a holographic will in which she left several specific bequests to family members and friends, but made no mention whatsoever of Kasper. This will was placed in her safe, which contained a great many of her assets, including jewelry, deeds to real property in Texas, and numerous stock certificates.

During Leigh's illness her brother, Roma Anglin, traveled to Memphis from his home in Texas and, with White's assistance, secured a durable power of attorney for her. On December 17, 1990, just days before Leigh's death, Roma Anglin and Vincent Smith, one of Kasper's nephews, opened Leigh's safe and made a detailed inventory of its contents. After completing the inventory, Roma removed the contents and placed them, pursuant to his power of attorney, in a safe deposit box at a First Tennessee Bank in Memphis. At some point shortly after the inventory was taken, Vincent Smith provided copies of that document to both Kasper McGrory and White.

Leigh died on December 22, 1990; after the funeral, Roma Anglin returned to Texas, taking the holographic will with him. Soon thereafter Kasper expressed a desire to put Leigh's estate in order, and he asked White to assist him. White agreed to help, and he apparently contacted Roma and Leigh's other relatives in Texas to find out if they would be willing to come to Shelby County and have the estate probated there. Evidently, White did not receive a positive response from these Texas relatives, and he advised Kasper to wait and see what would happen. Kasper continued, however, to insist on taking action with regard to the estate. Thus, on February 28, 1991, he and White entered into an agreement in which White was "to force the probate of Leigh McGrory's estate in Shelby County, Tennessee to ascertain assets, 1/3 of which belong to the husband, in order to recover same." For these services White was to be paid a $2,500 retainer plus "one-third of gross recovery above and in excess of retainer."

On March 8, 1991, White filed, in the Shelby County Probate Court, a petition to open Leigh McGrory's estate and to issue letters of administration. The petition stated that the Texas relatives had not shown any willingness to come to Shelby County to probate the estate and that the estate needed to be probated in order to protect Kasper's McGrory's interest therein. Moreover, the petition provided that Kasper had previously attempted to impound the contents of the safe deposit box by means of a detainer warrant issued against First Tennessee Bank; the petition asked the probate court clerk to issue a citation to the bank ordering it to appear and show cause why it had not turned over the contents of the box. Finally, the petition asked the clerk to issue a citation to Roma Anglin ordering him to appear in the probate court and surrender the will.

On March 11, 1991, the probate court entered an order appointing James Allison as administrator of Leigh McGrory's estate. The court also ordered the issuance of the requested citations to First Tennessee Bank and Roma Anglin.

On March 27, 1991, Verda Hogue, Leigh's sister living in Texas, filed a petition in the probate court asking it to (1) admit the will taken from the safe to probate; (2) appoint Verda Hogue executrix of the estate; and (3) revoke the letters of administration previously issued to James Allison. The probate court set the hearing on the petition for April 22, 1991.

At some point before the petition was heard, it came to light that Roma Anglin had not only taken the will from the jurisdiction, but had also removed Leigh's assets from the First Tennessee safe deposit box and taken them to Texas. ¹ These assets, with the exception of the jewelry, were returned to the probate court; in its April 25, 1991, order denying Verda Hogue's petition to be named executrix, the probate court stated that "an injunction shall issue enjoining all heirs and interested parties from disposition of, or removing from this jurisdiction any personal property belonging to the deceased."

After this initial flurry of activity, the administration of Leigh McGrory's estate languished in the probate court; when Kasper McGrory died on July 22, 1992, no assets had yet been distributed. ² Kasper left a will in which he bequeathed virtually his entire estate to the Catholic Diocese of Memphis; he also named Hubert McBride as executor of the will. McBride, in turn, hired attorney James Bland to represent Kasper's estate.

In the fall of 1993, James Kleiser, the chief financial officer of the Memphis Diocese, expressed concern about the fact that the administration of Leigh McGrory's estate was not still complete, and that Kasper's estate had received nothing therefrom. After conferring with Bland, Kleiser decided that it would be preferable to relieve White of his representation of Kasper's interest in Leigh's estate. Bland, thus, wrote White a letter on October 27, 1992, informing him of the decision. In this letter, Bland offered to pay White a reasonable fee for his prior representation of Kasper's interest in Leigh's estate.

White refused to accept this proposal, citing his February 28, 1991, contingency fee contract with Kasper. Thereafter, Kasper's estate filed a petition to substitute Bland as counsel and for approval of attorney's fees, which White opposed. On January 25, 1993, the probate court entered an order substituting counsel; it also set a hearing for March 2, 1993, for a determination of a reasonable fee due White.

Before the hearing was held, however, White filed a claim against Kasper's estate for $108,291.00; this figure represented approximately one-third of $349,000, the amount of Leigh's estate to which Kasper was entitled by law. McBride filed an exception to this claim, alleging that the claimed fee was "clearly excessive" under DR 2-106 and was, therefore, unenforceable.

After hearing evidence on these issues, including the testimony of two former probate judges and White's sworn statement as to the amount of time he had expended on the case, the probate court filed a memorandum opinion in January 1994. In this opinion, the probate court held that the fee sought to be charged by White violated DR 2-106. It reasoned as follows:

There is no proof in this record that there was ever any doubt that Mr. McGrory was Ruby Leigh McGrory's surviving spouse and an heir at law, and therefore entitled to, at a minimum, 1/3 of his wife's estate. The record reflects no will contest, no issue raised as to Mr. McGrory being the surviving spouse and no other suit or challenge of any kind in this matter undertaken or defended by Mr. White. Therefore, the only genuine contingency involved was how large a disbursement Mr. McGrory would ultimately receive by operation of law.

[White] in support of his fee request points to the fact that he had to resist the efforts of Mrs. McGrory's relatives to take her assets to Texas. Mr. Allison testified that Mr. White was instrumental in helping him get those assets returned to Memphis. Although Mr. White did help get those assets back, there was never any doubt that these assets belonged to Mrs. McGrory's estate and it was in the power of this court to order them to be returned.

. . . . .

[White also] defends his contingent fee contract by claiming that Mr. McGrory was fully advised of the situation when he entered into the subject contract. The fact that an attorney fully informs his client of the contingent fee contract and its implications does not validate it. The court in Florida Bar v. Moriber, 314 So.2d 145, 149 (Fla.1975), faced a similar defense and stated 'even if we presume that the client were an educated, experienced party dealing at arm's length with Respondent, it is our view that an attorney may still be disciplined for overreaching when fees charged are grossly disproportionate to the services rendered.' In the instant case even if Mr. White fully explained the contingent fee contract to Mr. McGrory, it does not validate the agreement in this case. It is quite possible that Mr. McGrory did not fully understand the matter and had no idea what other...