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24748 - In the Matter of the Estate of Frank Preston Jones, Jr., Deceased

Davis Adv. Sh. No. 4

S.E. 2d


THE STATE OF SOUTH CAROLINA

In The Supreme Court

 In the Matter of the

Estate of Frank Preston

Jones, Jr., Deceased
 

In Re: Claim of

Leatherwood, Walker,

Todd & Mann, P.C.,

Attorneys, Estate File

56, Drawer 548, Respondent
 

v.
 

The Estate of Frank

Preston Jones, Jr. Petitioner
 ON WRIT OF CERTIORARI

TO THE COURT OF APPEALS

 Appeal From Greenwood County

Charles B. Simmons, Jr., Special Circuit Judge

Opinion No. 24748

Heard December 16, 1997 - Filed January 19, 1998

 REVERSED

C. Rauch Wise, of Greenwood, and Ken Suggs, of
Suggs & Kelly, of Columbia, both for petitioner.

J. D. Todd, Jr., of Leatherwood, Walker, Todd &
Mann, P.C., of Greenville, for respondent.

 
 p. 13


THE ESTATE OF JONES
 

TOAL, A.C.J.: The Court of Appeals affirmed in result the award of

attorneys' fees to Leatherwood, Walker, Todd & Mann, P.C. ("Law Firm").

We granted a writ of certiorari to review the question of whether the express

fee contract was contingent on the successful recovery of a tax refund in

federal court. We now reverse.
 Factual/Procedural Background

 Frank P. Jones, Jr. died in 1979. Elliott, Davis & Company ("Account-

ing Firm") represented the Jones estate in filing estate tax returns with

federal and state authorities. Accounting Firm claimed a marital deduction

for the estate because a woman named Eleanor Stickles lived with Jones.

This deduction was disallowed by the Internal Revenue Service ("IRS") and

the S.C. State Tax Commission. The estate paid the taxes due.
 

The estate then petitioned a probate court to determine the marital

status of Stickles. The court found a valid common law marriage between

Jones and Stickles. After this determination, Accounting Firm prepared, on

the basis of a marital deduction, a claim for a refund from both the IRS and

the S.C. Tax Commission. The claims were denied. The state refund was

denied because it was not filed within three years of the due date of the

return.
 

Accounting Firm then contacted Law Firm with which it had a

longstanding professional relationship. Correspondence between the two

firms indicates that Law Firm was handling two different matters for

Accounting Firm: (1) initially representing Accounting Firm against a

potential professional liability suit in relation to the Jones estate; and (2)

seeking a refund for the estate. Law Firm did pursue these matters, by

writing letters to Accounting Firm's carrier reporting the potential

professional liability claim, and seeking a refund from the S.C. Tax

Commission and the IRS. On October 20, 1987, Law Firm argued the refund

matter before the S.C. Tax Commission. On December 22, 1987, the

Commission ordered a $30,695 refund.
 

The record contains copies of bills sent by Law Firm to Accounting

Firm detailing fees owed. The final bill is dated August 9, 1988 and reflects

over $14,500 in fees. As of August, no part of Law Firm's bill for services

regarding the processing of the refund had been paid. On August 23, 1988,

Law Firm wrote to the administrator of the estate, proposing a contract to
 

p. 14


THE ESTATE OF JONES
 

proceed with litigation in federal court. The letter provides, in part:
 

We are willing to go forward with preparing the case and
handling it in United States District Court on a, contingent fee
basis. We think that a contingent fee of one-third of the total
amount recovered (including both principal and interest) would
be reasonable. In setting this contingent fee, we will agree for it
to include the total amount of our charges for all legal services
rendered to this date. We will file the suit and pursue it through
the Fourth Circuit (if the District Court opinion is appealed) for
one-third of the total amount recovered (taxes plus interest) from
the IRS and SCTC. Of course, the Estate would reimburse us for
all costs and expenses incurred in the representation (including
those already paid or incurred, i.e. $310.38).

 The administrator did not respond, so on September 27, 1988, Law

Firm again wrote him: "After having done considerable work in behalf of

your brother's estate (the Estate) with no compensation, we cannot and will

not do any further work without a contract for specific compensation signed

by you as Administrator of the Estate." An attorney for the estate contacted

Law Finn a few days later to discuss the federal action. Law Firm wrote a

letter to the administrator on October 11, 1988, confirming the initiation of

an action in federal court: "As you are well aware and in accord with your

direction, [attorney for the estate] telephoned me on yesterday, . . . and

advised your request that we proceed with filing suit in United States

District Court for the District of South Carolina by you as Administrator of

the Estate of Frank P. Jones, Jr. against the United States of America."
 

Law Firm initiated the action in federal court against the IRS. The

action was not successful. ln communicating with the administrator about

the adverse results, Law Firm stated the chances of success on appeal would

be "nil." It further advised the administrator of the time for appeal. The

administrator did not respond, and there was no appeal of the matter to the

Fourth Circuit Court of Appeals.
 
 

Eventually, Law Firm elected to file a claim against the estate for

attorneys' fees in connection with the procurement of the state tax refund.

It sought one-third of the $30,650 state tax refund. The estate denied it was

liable for any attorneys' fees. Law Firm presented four alternate theories to

the probate court to justify its claim to attorneys' fees: (1) an express

contract was created through the correspondence to the administrator (August

23, 1988; September 27, 1988) and the call of the attorney for the estate to
 

p. 15


THE ESTATE OF JONES
 

Law Firm; (2) an implied contract was created by notice to the estate through

Law Firm's correspondence which evidenced its efforts to secure a refund, and

the failure of the estate to object to such actions: (3) Law Firm acted as

authorized agent of Accounting Firm, which had began given a power of

attorney by the estate; and (4) Law Firm was owed fees under the equitable

doctrine of quantum meruit.
 

The probate court disallowed the claim. First, it found that the express

contract included the contingency of success in federal district court. Law

Firm was not successful in that action; therefore, it could not seek to reform

the contract.
 

Second, the probate court found that Law Firm should not be allowed

to recover on an implied contract basis. Nearly all of Law Firm's

correspondence about this matter was directed to Accounting Firm, not to the

estate. Moreover, there was a potential conflict between the interests of the

estate and those of Accounting Firm. The court noted that a lawyer may

represent clients with adverse interests only with the consent of each client

after full disclosure of the possible effects of such representation. See In re

Anonymous Member of the S.C. Bar, 315 S.C. 141, 432 S.E.2d 467 (1993).

This conflict was not disclosed to the estate.
 

Third, the probate court considered Law Firm's power of attorney

arguments The estate had given a power of attorney to Accounting Firm to

act on its behalf. Accounting Firm in turn had given Law Firm a power of

attorney to act on its behalf. After analyzing the relevant documents, the

probate court concluded that the power of attorney given to Accounting Firm

did not authorize it to hire anyone else; nor was the estate aware that its

power of attorney was being used to hire Law Firm.
 

Finally, the probate court found that the elements of quantum meruit

had not been satisfied: The services were not performed under such

circumstances as would have reasonably notified the estate that Law Firm

expected to be paid for its services by the estate, as opposed to Accounting

Firm. Accordingly, the court disallowed Law Firm's claim for attorneys' fees.
 

Law Firm appealed to the circuit court, which then reversed the

holding of the probate court. The circuit court's order addressed only one

issue, namely, quantum meruit. The court did not consider Law Firm's other

theories for seeking fees. The estate appealed, and in an unpublished

opinion, the Court of Appeals affirmed in result. In re Estate of Frank

Preston Jones, Jr., Op. No. 96-UP-330 (S.C. Ct. App. filed October 29, 1996).
 

p. 16


THE ESTATE OF JONES
 
 

It found that there was not a basis for awarding fees under quantum meruit;

however, it held that the parties had entered into an express contract, the

terms of which were set out in the August 23, 1988 letter to the

administrator. This Court granted the estate's petition for a writ of certiorari

to review a single question:
 

Did the Court of Appeals err in failing to find the express
contract was contingent upon the successful recovery of a tax
refund in federal court?

Law/Analysis

 The estate argues that the contract between Law Firm and the estate

was contingent on the recovery of a tax refund in federal court. We agree.
 

The contractual provision between the parties must be read within the

broader context of Law Firm's August 23, 1988 letter to the estate. The

letter, authored by Law Firm's senior partner Wesley Walker, states that Mac

Walters, an attorney with Law Firm, has done considerable work on and was

instrumental in obtaining the refund from the S.C. Tax Commission. It

further states:


You are aware that Mac Walters submitted a statement for
services to the interested parties but no one appears to have any
interest in making payment. I will not belabor in this letter all
the work that has been done but I must say that -- like any
other law firm or individual lawyer practitioner would be -- we
are not very happy about not being compensated for our services.
In lieu of recounting cur labors and services, I propose in this
letter a plan for further procedure which will please everyone if
we are successful in a refund action against the United States
(IRS) in Federal District Court.

In view of the extensive work previously done by Mac Walters in
this case, we feel that we are in a position. to recommend
proceeding with a ref',and action in the United States District
Court . . . .We believe that we are well qualified to go forward
with this matter and with an appropriate compensation
agreement, we are prepared to proceed forthwith.
 
Naturally, we will not undertake the litigation without an
appropriate compensation agreement. Such an agreement will

 p. 17


THE ESTATE OF JONES
properly take into consideration the work already done which
resulted in the refund by the SCTC. We are willing to go
forward with preparing the case and handling it in United States
District Court on a contingent fee basis. We think that a
contingent fee of one-third of the total amount recovered
(including both principal and interest) would be reasonable.
setting this contingent fee, we will agree for it to include the
total amount of our charges for all legal services rendered to this
date. We will file the suit and pursue it through the Fourth
Circuit (if the District Court opinion is appealed) for one-third of
the total amount recovered (taxes plus interest) from the IRS and
SCTC. Of course, the Estate would reimburse us for all costs
and expenses incurred in the representation (including those
already paid or incurred, i.e. $310.38).


"A contingent fee is one which is made to depend upon the success or

failure in the effort to enforce a supposed right, whether doubtful or not."

Adair v. First Nat. Bank, 139 S.C. 1, 5, 137 S.E. 192, 193 (1927); see also

City of Burlington v. Dague, 505 U.S. 557, 560-61, 112 S. Ct. 2638, 2640, 120

L. Ed. 2d 449, 455 (1992)("Fees for legal services in litigation may be either

'certain' or 'contingent' for some hybrid of the two). A fee is certain if it is

payable without regard to the outcome of the suit; it is contingent if the

obligation to pay depends on a particular result's being obtained."); Alexander

v. Inman, 903 S.W.2d 6861 696 (Tenn. Ct. App. 1995)("Most jurisdictions

would agree that a contingent fee arrangement is an agreement for legal

services under which the amount or payment of the fee depends, in whole or

in part, on the outcome of the proceedings for which the services were

rendered."); Martin v. Buckman, 883 P.2d 185, 192 (Okla. Ct. App. 1994)("In

simple terms, a contingent fee contract is one in which a client engages an

attorney to represent her in the recovery of, say, a certain sum of money she

claims is owed to her, and the attorney agrees to accept for his services a

certain percentage of what he recovers either by settlement or by judgment.");

Black's Law Dictionary 614 (6th ed. 1990)(defining "contingent fees" as

"[a]rrangement between attorney and client whereby attorney agrees to

represent client with compensation to be a percentage of the amount

recovered . . . .").
 
 

If we assume, in the present case, that the parties entered into a

contract1 through the August 23, 1988 letter, then the contractual language
 


1The question before this Court assumes a valid contract between the

parties. Here, we have not been directly presented with the issue of whether
 

p. 18


THE ESTATE OF JONES
 

clearly evidences a contingent fee agreement. As the above authorities

explain, a contingent fee agreement necessarily requires that a successful

result be achieved before the fee is paid. In this case, the contract and other

evidence in the record reveal that the contingency was success in procuring

a refund in the federal litigation and that if that action was not successful,

then there would be no fee paid. For example, the letter itself declares:

"... I propose in this letter a plan for further procedure which will please

everyone if we are successful in a refund action against the United States

(IRS) in Federal District Court." (emphasis added). Moreover, an inter-office

memo between members of Law Firm states: "In the final analysis, we will

not file suit against Bill Jones as Administrator even though the failure to

pursue an appeal will jeopardize our chances of collecting the fee on the

South Carolina refund."
 

Law Firm argues that the prosecution of the claim was itself the

fulfillment of the contingency; the one-third fee had already been earned, and

it should have been paid by the estate when Law Firm proceeded with the

federal action. This is an untenable position because under this

interpretation, there would, in fact, be no contingency; the prosecution of the

action, regardless of the results, would trigger the contingency. If the

outcome of the suit is irrelevant to the fee to be extracted, then the

agreement would not be contingent, but would be certain. Because the

contractual language here set forth a contingency -- one which ultimately was

not fulfilled -- Law Firm is entitled to no fee under the contract.
 CONCLUSION

 Based on the foregoing, we REVERSE the holding of the Court of

Appeals inasmuch as the contingency of the contingent fee agreement was not

satisfied. Accordingly, Law Firm is not entitled to the award of attorneys'

fees.
 
 

WALLER and BURNETT, JJ., and Acting Associate Justices

George T. Gregory Jr., and L. Casey Manning, concur.
 



a contract in fact existed. Accordingly, our decision should not be read to

sanction the legal arrangement between Law Firm and the estate in the

present case. The fact that an attorney's services have inured to the benefit

of others does not necessarily give rise to a contractual relationship, absent

a clear agreement between the parties. See Rankin v. Superior Auto. Ins.

Co., 237 S.C. 380, 117 S.E.2d 525 (1960); see also Bowen & Smoot v.

Plumlee, III, 301 S.C. 262, 391 S.E.2d 558 (1990).
 

p. 19