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Somuah v. Flachs12/18/1998
orrectly decided. The contingency is a provision of the express contract, but here the client terminated that contract without cause, that is, without any material breach by the attorney. The attorney's claim then becomes one for restitution, and the damages are the value of the services rendered prior to the date of termination. Because the plaintiff/former client, who has been benefitted by the services of the first attorney, makes those benefits available, at the time of termination, to the replacement attorney, the claim in quantum meruit unconditionally accrues at the time of termination.
As Dobbs points out, " tatute of limitations aside, the accrual question is mainly a roundabout way of reaching a different issue: how should the court measure restitution?" Dobbs Law of Remedies 13.5, at 558. In the instant matter, the respondent proved the value of his services by multiplying the time devoted to the matter by his hourly rate, and the jury agreed. No issue is presented in this case concerning that method of calculation. Therefore, in my view, the judgment of the Court of Special Appeals should be affirmed.
III.
Further, there appears to be an inconsistency between the mandate under the majority opinion and the reasoning of the majority. The special interrogatories that the jury in this case answered clearly awarded $11,261.01 as reimbursement to respondent for out-of-pocket expenses. That portion of the judgment in the circuit court for the respondent was not, even under the express contract, subject to the contingency. The majority, ____ Md. at ____ n.2, ____ A.2d at ____ n.2 [slip opinion at 2 n.2], has quoted the portion of the retainer contract dealing with court costs. The applicable provision reads as follows:
"Client agrees to pay all costs of investigation, preparation and trial of the case, and authorizes and directs [respondent] to deduct from the Client's share of proceeds, and pay directly to any doctor, hospital, expert, or other creditor, any unpaid balance due them for Client's care and treatment, or for their services and/or testimony related to this case."
The first clause unconditionally places the obligation for the described expenses on the client, while the second clause is an authorization for the attorney to withhold from any recovery otherwise payable to the client the amount of the described expenses. Consequently, the mandate at least should affirm that part of the judgment that awards expenses.
Judge Wilner has authorized me to state that he joins in the views expressed herein.
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