Whitton v. Hoover

• Decision Date: 20 May 2010
• Docket Number: No. E2008-01769-COA-R3-CV.,E2008-01769-COA-R3-CV.
• Citation: 313 S.W.3d 262
• Parties: Norman B. WHITTON v. M. Josiah HOOVER, III.
• Court: Tennessee Court of Appeals

313 S.W.3d 262

Norman B. WHITTON v. M. Josiah HOOVER, III.

No. E2008-01769-COA-R3-CV.

Court of Appeals of Tennessee, Eastern Section, at Knoxville.

November 2, 2009 Session.

November 19, 2009.

Permission to Appeal Denied by Supreme Court May 20, 2010.

M. Josiah Hoover, III., Knoxville, Tennessee, pro se.

OPINION

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which CHARLES D. SUSANO, JR., J., and D. MICHAEL SWINEY, J., joined.

Plaintiff sued defendant, his attorney, in Sessions Court to recover an attorney fee in the amount of $1,000.00 paid to defendant for legal representation. His theories for recovery were for malpractice and breach of contract. The Sessions Judge entered a Judgment for plaintiff and defendant appealed to Circuit Court. The Circuit Court found that the contract which provided for a fee for certain legal services in the amount of $1,000.00 was unconscionable and entered Judgment for plaintiff for $1,000.00 plus other expenses. Defendant appealed to this Court. We hold on the evidence before us that the contract entered was not unconscionable, but upon the facts and law the amount of the fee was not reasonable and we reduce the fee to $500.00 and Judgment will be entered in favor of plaintiff for $500.00 upon remand.

Plaintiff client sued defendant attorney in General Sessions Court for $1,000.00 and for punitive damage for breach of contract and legal malpractice. The Sessions Judge entered Judgment for the plaintiff in the amount of $1,000.00 and defendant appealed to the Circuit Court. The Trial Court's Judgment states in pertinent part:

That the Defendant, an attorney, had represented Plaintiff previously, and on January 5, 2007 Plaintiff contacted Defendant to represent him in a bankruptcy lawsuit. Defendant sent a contract to Plaintiff which Plaintiff signed and based on the requirement for a `non-refundable flat fee of One Thousand Dollars ($1,000.00)' paid One Thousand Dollars ($1,000.00) to Defendant. Defendant's position is that he filed a proof of claim which was all he had to do under the contract.

The proof further showed that the debtor in the bankruptcy case was discharged on December 13, 2006. The further proof was that Plaintiff tried to communicate with Defendant, but Defendant never told Plaintiff that the debtor had already been granted a discharge. Plaintiff only found this out in June, 2007 by the bankrupts' attorney sending an Order of Discharge to Plaintiff.

The Trial Court then held that the contract was unconscionable and could not be enforced and that the legal representation was of no benefit to plaintiff and the fee should be returned.

On appeal, plaintiff did not file a brief. However, we waived the requirement of the Rule and allowed him to make an oral argument.¹ Both parties in oral argument argued facts that no evidence supports in the record before us. The defendant filed a narrative statement of the evidence which is scanty. Tenn. R.App. P. 24(c) requires the appellee, if he has objections to the statement to file objections to the statement of evidence within fifteen days. No objection was filed, and the Trial Court did not approve the statement of evidence. However, Tenn. R.App. P. 24(f) provides that under these circumstances the transcript "shall be deemed to have been approved and shall be considered by the appellate court. . . ."

The statement of evidence and exhibits before us establish the following: On January 5, 2007, defendant mailed plaintiff a letter which states that plaintiff had asked defendant to represent him in the bankruptcy proceeding filed by Samuel A. Burnette and Athena J. Burnette, to enforce a creditor's judgment lien. The letter provided as to the fees, the following:

BASIS OF BILLING. Unless you and I have otherwise agreed, I will bill you on a monthly basis for expenses rendered in your behalf.

Then, the letter states:

ATTORNEY'S FEE. In this case, I shall require a nonrefundable flat fee of One Thousand Dollars ($1,000.00).

According to the statement of the evidence, plaintiff stated that the proof of claim in the bankruptcy court was to be filed on or before January 12, 2006, and defendant filed a proof of claim in the bankruptcy court on January 11, 2007. The defendant subsequently called the U.S. Bankruptcy Court to determine a date for the 341 creditors meeting, but the deputy clerk of the court advised the defendant that plaintiff had been sent a certificate of service showing that the plaintiff had been served through the U.S. mail. An exhibit in the record is a copy of "discharge of joint debtors" in the Burnettes' bankruptcy case which was dated 12/13/06 and signed by the Bankruptcy Judge, Richard Stair, Jr. The record also contained a notice of the first meeting of creditors in the bankruptcy case and there is no evidence in the record before us that the plaintiff did not receive the mailings from the Bankruptcy Court.

The Trial...