Williams v. Hirsch
| Decision Date | 25 May 2018 |
| Docket Number | No. M2016-00503-COA-R3-CV,M2016-00503-COA-R3-CV |
| Parties | LESA C. WILLIAMS ET AL. v. RENARD A. HIRSCH, SR. |
| Court | Tennessee Court of Appeals |
Appeal from the Chancery Court for Davidson County
This is the third appeal in this declaratory judgment action. The action seeks a determination of whether a discharged attorney is entitled to compensation for his services in connection with a tort action that settled after his discharge. After a bench trial, the trial court determined that the discharged attorney's right to compensation was governed by a retainer agreement with the client, as modified by a subsequent letter agreement. The retainer agreement entitled the attorney, upon discharge, to compensation calculated at a reasonable hourly rate or one third of any offer made to settle the case, whichever was greater, plus expenses. Because no bona fide settlement offer was made before the attorney was discharged and the attorney provided insufficient evidence of the time he spent on the case, the trial court declared that the discharged attorney was not entitled to compensation. The trial court also awarded sanctions against the attorney for discovery abuse. Upon review, we discern no reversible error. So we affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed
W. NEAL MCBRAYER, J., delivered the opinion of the court, in which FRANK G. CLEMENT, JR., P.J., M.S. and ANDY J. BENNETT, J., joined.
Gary M. Kellar and Robert L. Smith, Sr., Nashville, Tennessee, for the appellant, Renard A. Hirsch, Sr.
Winston S. Evans, Nashville, Tennessee, for the appellees, Lesa C. Williams, Lesly J. Williams, Alana Williams, and the Estate of Lesly Williams, Sr.
James W. Price, Jr., Nashville, Tennessee, for the appellee, Aundreas Smith.
Jon D. Ross and Elizabeth S. Tipping, Nashville, Tennessee, for the appellee, Neal & Harwell, PLC.
In the first appeal in this case, we described the background facts as follows:
On March 5, 2009, Ms. Williams, relying on the original retainer agreement, filed this action in the Chancery Court for Davidson County, Tennessee, asking for a declaration either that Mr. Hirsch was not entitled to any compensation or that his compensation was limited to a reasonable hourly rate. In his answer, Mr. Hirsch denied that he was a party to the retainer agreement and asserted that the 2006 letter agreement with Neal & Harwell replaced the original agreement. He also moved for summary judgment claiming that Ms. Williams lacked standing. Id.
On January 27, 2010, the trial court granted Ms. Smith permission to intervene. The court also granted Mr. Hirsch's motion for summary judgment and dismissed Ms. Williams's complaint, but allowed Ms. Williams to file an interlocutory appeal. Id. Upon review, we held that Ms. Williams had standing, reversed the trial court's decision, and remanded for further proceedings. Id. at *2.
After remand, discovery ensued, and the court granted Neal & Harwell permission to intervene. Williams v. Hirsch (Williams II), No. M2012-01996-COA-R3-CV, 2013 WL 5230745, at *2 (Tenn. Ct. App. Sept. 13, 2013). Ms. Smith, Ms. Williams, and Mr. Hirsch also renewed their previously filed motions for summary judgment. Id. at *3. The trial court awarded summary judgment to "both sides" and divided the fee award among the three attorneys. Id. at *4. In the second appeal, we determined that the trial court's award of partial summary judgment was inappropriate in light of disputed material facts. So we reversed the court's judgment and again remanded for further proceedings. Id. at *8-9.
Following the second remand and the assignment of a new judge, the trial court conducted a six-day bench trial. After hearing all the evidence, the trial court found that Ms. Williams, Ms. Smith, and Mr. Elbert were credible witnesses, but Mr. Hirsch was not.
Ms. Smith is related to the Williams family by marriage. In late October 2005, along with other family members, she rushed to the hospital after learning about the motor vehicle accident. Lesa Williams was in a coma. Her husband and daughter had died, and her minor son was in critical condition. Ms. Smith drafted a petition to appoint two family members, Mary Rougier and Vernae Coffee, as conservators for Ms. Williams.
The conservators asked Ms. Smith to represent the family in a personal injury and wrongful death action. Ms. Smith drafted a written agreement reflecting that she was being retained to provide all services related to the tort claim in exchange for a 33 1/3% contingency fee. Among other provisions, the retainer agreement included a discharge or withdrawal clause:
Client may, if unsatisfied with the services for any reason, discharge the attorney at any time; however, it is understood that client will pay attorney at time of discharge all fees and expenses then due, calculated at hourly rate set forth; or if contingent fee, a reasonable hourly rate or one third of any offer made to settle the case whichever is greater, plus expenses for the time expended. Attorney may withdraw at any time if attorney believes claim/cause of action lacks merit or is not fiscally practical to pursue. Discharge or withdrawal requires written notice mailed to last known address of attorney/client using Certified Mail with Return Receipt Requested.
When Ms. Smith and the conservators signed the agreement, the only attorney named in the agreement was Aundreas Smith.
At that time, Ms. Smith was associated with the law firm of Smith, Hirsch, Blackshear and Harris, PLC, and her practice focused on workers' compensation cases. Renard Hirsch, a member of the firm, practiced mostly in the commercial litigation and bankruptcy fields, but he had experience with personal injury actions. Ms. Smith and Mr. Hirsch orally agreed to work the Williams case together and to divide the contingency fee evenly.
Ms. Smith told the conservators that she wanted to add Mr. Hirsch as co-counsel on the tort litigation. They agreed, and Ms. Smith wrote Mr. Hirsch's name beside hers in the retainer agreement. But Mr. Hirsch never signed the agreement. Ms. Smith claimed that she gave Mr. Hirsch a copy of the agreement immediately after she added his name. But according to Mr. Hirsch, although he knew that Ms. Smith had a retainer agreement, he did not see the agreement or become aware that his name had been added until April 2006.
In any event, Mr. Hirsch and Ms. Smith immediately began working together on the tort case. They both did research on the potential defendants and the applicable law. On December 30, 2005, they filed the initial complaint, which they each signed as co-counsel. And afterward, they both drafted and signed additional pleadings and appeared in court when necessary.
When Lesa Williams emerged from her coma, she was told about the pending litigation and the decision to retain Ms. Smith and Mr. Hirsch. In January 2006, the conservatorship was removed, and Ms. Williams began handling her own affairs. After Ms. Smith reviewed the retainer agreement with her, Ms. Williams ratified it. When Ms. Williams reviewed the retainer agreement, Mr. Hirsch's name was listed as one of the attorneys. During this time, Ms. Smith also brought Mr. Hirsch to meetMs. Williams. According to Ms. Williams, Mr. Hirsch introduced himself as co-counsel, confirming her belief that he had been retained as co-counsel in the 2005 agreement.
After Ms. Smith left Mr. Hirsch's firm and opened her own office in April 2006, Mr. Hirsch and Ms. Smith continued their joint representation. They signed pleadings as co-counsel and appeared in court. And, notably, Mr. Hirsch accepted Ms. Williams's check for anticipated expenses in the tort case, deposited the client funds in his firm trust account, and paid the expenses as they became due.
But both attorneys realized that, due to the complexity of the litigation, they needed to retain more experienced counsel. After interviewing several different attorneys, they eventually chose Phil Elbert of Neal & Harwell based on his favorable track record in similar litigation. Ms. Williams agreed that Ms. Smith and Mr. Hirsch could retain Neal & Harwell as co-counsel if...
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