Smith v. Mann, Poger & Wittner, P.C.

882 S.W.2d 164, 1994 Mo. App. LEXIS 929, 1994 WL 241374

• Court: Missouri Court of Appeals
• Decided: June 7, 1994
• Docket: 64204
• Status: Published

Opinions

CRANE, Presiding Judge.

Plaintiff Minette Smith appeals from a summary judgment entered by the circuit court in favor of defendants Mann, Poger & Wittner, P.C., et al. on plaintiffs second amended petition alleging breach of a retainer contract. We affirm.

Plaintiff gave birth to Michelle Smith (daughter) at Barnes Hospital on December 19, 1977. Daughter was born with irreversible brain damage. In November 1978, plaintiff entered into a retainer contract with defendant Howard A. Wittner (Wittner) to represent her and her daughter in connection with any claims for daughter’s injury. The retainer agreement provided as follows:

CONTRACT FOR RETAINER

I hereby employ HOWARD A. WITT-NER to represent me (or my child) in the preparation, compromise and/or prosecution of any and all claims against any and all parties by reason of a[n] injury to the infant Michelle Yvette Smith whereby I, or my child, was injured as a result of said occurrence.

I, for myself, and as my child’s natural guardian, hereby agree to pay HOWARD A. WITTNER 33⅜% of the gross amount recovered by settlement before trial, 40% of the said gross amount if a lawsuit is tried or if settlement is made after the trial has commenced, and 50% of said amount if the lawsuit is appealed, whether the appeal is heard by the Appellate Court or whether settlement is made before or after hearing of the appeal. I understand that in addition to the above fee, at the conclusion of the ease, I am to pay all reasonable expenditures necessary to the preparation, settlement and litigation of said lawsuit, including but not limited to medical reports, police reports, investigations and photos, court costs, depositions and witness fees.

I also give my attorney the right to deduct his fee from the total recovery along with payment of any physician’s accounts which have been guaranteed by said attorney for payment in order to obtain medical reports.

If nothing is recovered on this claim, it is understood that HOWARD A WITT-NER is to receive nothing for his services other than reimbursement for the above-described expenses from me.

I (we) have read the above contract and I (we) understand the contents therein.

Plaintiff signed the document. It was accepted by defendant Wittner. Wittner was a partner in Mann, Poger & Wittner, P.C. (law firm).

Plaintiff, individually and as daughter’s guardian and next friend, thereafter filed a suit in the Circuit Court of the City of St. Louis styled Minette Johnson, et al. vs. The Barnes Hospital, et al., No. 792-3473, naming Barnes Hospital (Barnes), Dr. Jonathan R. Reed (Reed), and Jonathan R. Reed OB-GYN Services, Inc. (OB-GYN) defendants. The parties settled this case before trial, executing two settlement agreements dated November 16, 1982.

Plaintiff signed the first agreement as an individual and daughter’s natural mother. This agreement recited that plaintiff had been appointed guardian of daughter’s estate and that a separate document would constitute the settlement agreement with the guardian for daughter’s benefit. In the first agreement plaintiff released Barnes, Reed and OB-GYN from all liability in connection with daughter’s delivery, care, and treatment. Barnes, Reed, OB-GYN, and The Medical Protective Company of Fort Wayne, Indiana, Reed and OB-GYN’s professional liability insurer (insurer), agreed to pay plaintiff $500 per month for her life or 240 months, whichever last occurs. They also agreed to pay law firm $94,000. The parties agreed to dismiss the lawsuit with prejudice. The agreement further recited:

7. It is understood that this Agreement is dependent upon the separate Settlement Agreement between Minette Smith, the duly appointed Guardian of the Estate of Michelle Yvette Smith, a minor, and Jonathan R. Reed, M.D., and Jonathan R. Reed OB-GYN Services, Inc., and Barnes Hospital, and in the event that Agreement is not approved by the Circuit Court of St. Louis, Missouri, having jurisdiction therein, this Agreement shall be of no force and effect.

Plaintiff entered into the second agreement as the appointed guardian of daughter’s estate. In this agreement plaintiff, as guardian, released Barnes, Reed and OB-GYN for all liability in connection with daughter’s delivery, care and treatment. Barnes, Reed, OB-GYN, and insurer agreed to pay plaintiff, as guardian, $1,250 per month for the first twelve months and thereafter monthly payments increased by 3% compounded annually for ten years or until daughter’s death, whichever last occurred. The agreement further provided a payment of $66,000 to law firm. This agreement likewise provided for the dismissal of the pending lawsuit with prejudice. It further provided that it would not be binding until approved by the circuit court. Plaintiff signed this agreement as daughter’s “Natural Mother and Guardian.” A hearing was conducted on November 16, 1982, at which the trial court approved the settlement on daughter’s behalf.

The $94,000 and $66,000 fees totaled $160,-000. This amount included $4,588.31 in costs and expenses, resulting in an attorney’s fee of $155,411.69. Dr. Leroy Grossman, Professor of Economics at St. Louis University, calculated the present value of the entire settlement to fall between $446,000 and $508,000, depending on the interest rate. One-third of that amount was between $148,-666.66 and $169,333.33.

Almost seven years later, on March 20, 1989, plaintiff filed a breach of contract action against law firm, alleging that the $94,-000 attorneys’ fee paid in settlement of her personal cause of action exceeded the 33½% fee she agreed to pay in the retainer contract. She sought a judgment of $37,940.34, which she calculated as the amount of overcharge. In response to her second amended petition, defendants filed a motion for summary judgment supported by affidavits, depositions, exhibits and a legal memorandum. Plaintiff filed a memorandum of law and fact in opposition to the motion, supported by her affidavit, exhibits, and a transcript of the settlement hearing. After a hearing the trial court granted the motion and entered summary judgment for defendants.

In her sole point on appeal, plaintiff asserts that defendants were not entitled to summary judgment as a matter of law. Specifically she states:

The trial judge erred in granting respondent Mann, Poger & Wittner, et al’s motion for summary judgment in that respondent Wittner received in attorney’s fees an amount well in excess of the amount contracted for with appellant Minette Smith and therefore, said motion should have been denied as a matter of law.

Rule 74.04 controls the grant of summary judgment. The version of Rule 74.04(c) which was in effect at the time this matter was before the trial court provided that summary judgment shall be entered “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Our review of a summary judgment is essentially de novo. ITT Com. Fin. Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). In determining whether to sustain the motion, we use the same criteria for testing the propriety of summary judgment as used by a trial court. Id. “The burden on a summary judgment movant is to show a right to judgment flowing from facts about which there is no genuine dispute.” Id at 378. “The key to summary judgment is the undisputed right to judgment as a matter of law; not simply the absence of a fact question.” Id. at 380.

Plaintiff divides her argument into two subpoints. In subpoint A plaintiff asserts that she and her daughter had distinct and separate causes of action. In her argument under this subpoint plaintiff sets out the principles, with supporting authority, that 1) an injury to a minor gives rise to a minor’s cause of action for personal injuries and a parents’ cause of action for loss of services and special damages, and 2) unless a parent, by waiver or estoppel, has permitted the child to recover or litigate the right to damages which would otherwise belong to the parent, damages peculiar to the parent’s cause of action cannot be properly recovered in an action by the child.

In subpoint B plaintiff asserts that, because there were two separate causes of action, the one-third fee “applied to each separate cause of action, and reduction by court of one claimant’s fee did not entitle defendants to raise the fee of the other claimant.” Before we reach the merits of this argument, we must note that it rests on a misstatement of fact. The court did not “reduce” the fee in the guardian’s settlement agreement. Rather, the record shows that the terms of the settlement agreement, including the fee to be paid law firm on daughter’s claim, were in that settlement agreement when it was presented to the court for approval. The court approved the agreement as presented.

Further, plaintiff does not cite any legal authority under this subpoint to support her contention that the one-third fee applied to each separate cause of action. In addition, she does not explain the absence of authority. Thus this argument does not comport with Rule 84.04(d). In our discretion, we have reviewed this point for plain error.

A contract for attorneys’ fees is construed under the same rules of construction as apply to any other contract. Kramer v. Fallert, 628 S.W.2d 671, 674 (Mo.App.1981). Where a contract uses plain and unequivocal language, it must be enforced as written. Id.

The terms of the retainer agreement are clear. The agreement provides that plaintiff employed Wittner to represent her and her child “in the preparation, compromise and/or prosecution of any and all claims against any and all parties” arising out of daughter’s injury, (emphasis added) She agreed “for myself, and as my child’s natural guardian” to pay Wittner 33⅝% of the gross amount recovered by settlement before trial. Thus plaintiff agreed to pay Wittner one-third of the gross amount recovered¹ on all claims arising out of daughter’s injury brought by herself or as guardian for her child. The retainer agreement provides no support for plaintiffs argument that the one-third fee was to separately and independently apply to individual claims arising out of daughter’s injury.

Further, there is no support for plaintiffs claim that law firm breached the agreement by taking greater than a 33½% fee. Plaintiff, in her individual capacity and as guardian, agreed to pay 33⅜% of the gross amount recovered by settlement of any and all claims arising out of daughter’s injury. Where there is an express, enforceable contingent fee agreement, the attorney is limited to the contractual fee. Kramer, 628 S.W.2d at 675. The two settlement agreements, one expressly dependent on the other, effected the entire settlement of all of plaintiffs and daughter’s claims arising out of daughter’s injury. Law firm received 33⅜% of the present value of the entire settlement for its fee.

The documents themselves sufficiently support the conclusion that the separate agreements constituted an entire settlement of all of plaintiffs and daughter’s claims. Moreover, we note that defendants supported their motion for summary judgment with uncontroverted affidavits from insurer’s representative and attorneys and Barnes’ attorneys, who averred that they treated plaintiffs and daughter’s claims as one claim and one settlement. Insurer’s and Barnes’ attorneys also averred that the settlement was structured to maximize benefits to daughter.²

Thus the trial court did not err as a matter of law in determining that the retainer agreement was not breached. The retainer agreement limited the total fee for all claims arising from daughter’s injury to 33⅜%. It did not, however, prevent settlement of those claims by separate agreements or prevent the allocation of different or unequal percentages of the total 33½% fee among those agreements. Accordingly, the unequal allocation of the fee between the two settlement agreements did not breach the retainer agreement. The trial court did not commit error, plain or otherwise, in entering summary judgment.

The judgment of the trial court is affirmed.

KAROHL, J., concurs. CRAHAN, J., dissents and files separate opinion.

1 . It appears that in entering the structured settlement, all parties treated "gross amount” as “present value.”

2 . Defendant’s motion was also supported by an affidavit of an attorney-expert in medical malpractice who stated:

F. That it is not unusual in medical malpractice settlements where recovery or settlement is made for economic damages by a parent and economic and non-economic damages for a child due to alleged injuries suffered by the child as a result of the tortious act of a health care provider, to allocate a greater portion of the attorney's fees to the parent's settlement rather than to the minor's settlement. This serves the better interest of the child, the actual person who sustained the physical injuries, particularly where the medical expenses incurred by the child, being the obligation of the parent, have been substantially reimbursed or paid by health insurance coverage.