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Eatinger v. Johnson12/22/1994
Rehearing Denied January 26, 1995.
, 51 St.Rep. 1484
Submitted on Briefs December 8, 1994.
Plaintiffs Mark C. Eatinger, Beth Ann Henderson, and Julie Silvan filed a complaint in the District Court for the Tenth Judicial District in Fergus County in which Robert L. Johnson is named as the defendant. The plaintiffs alleged that they sustained damages as a result of Johnson's conversion of settlement proceeds which belonged to them. A jury returned a verdict in the plaintiffs favor and awarded $17,702.96 as damages. Johnson appeals from the judgment entered pursuant to the jury's verdict. We affirm the judgment of the District Court.
The issues on appeal are:
1. Did the District Court err when it denied Johnson's motion for summary judgment?
2. Did the District Court abuse its discretion when it refused to delay trial of the conversion claim until the Probate Court decided the amount of Johnson's fee?
3. Did the District Court err when it did not instruct the jury that an attorney has a right to retain possession of a client's money until he or she is paid for services rendered?
4. Did the District Court abuse its discretion when it refused to grant Johnson's motion for a directed verdict?
FACTUAL BACKGROUND
In May of 1989, Ruth Eatinger died after she was hit by a pickup truck while crossing the street in Lewistown, Montana. She was survived by plaintiffs Mark C. Eatinger, Beth Ann Henderson, and Julie Silvan. Mark Eatinger was named the personal representative of the estate.
The plaintiffs hired attorney Robert L. Johnson to probate Ruth's estate and to pursue wrongful death and survival claims against the driver of the vehicle that struck Ruth. There was no written fee agreement entered into by the parties.
The parties presented contradictory evidence of their agreement. The plaintiffs claim that they agreed to pay Johnson the statutorily determined fee for his probate services, but that he was not to be paid an additional amount for settling the tort claims. Johnson agrees that he was to receive the statutory fee for his probate work, but contends that Mrs. Eatinger's survivors agreed to pay him a percentage of the tort recovery.
Beth and Julie testified that they became dissatisfied with Johnson and sought advice from a different attorney whom they hired to pursue the tort claims. Testimony and evidence indicated that Mark phoned Johnson on January 17, 1990, to terminate his services. Johnson denied he was terminated at that time, but his letter to Mark, dated January 23, 1990, confirms a conversation on January 17, 1990, during which Mark informed him that the plaintiffs were retaining another attorney. Evidence indicated that by January 18, 1990, Johnson was offered $95,000 to settle the tort claims, and that he later received a draft for that amount which was made payable to the Estate of Ruth Eatinger, and to Johnson, as the attorney for the estate.
The plaintiffs were surprised when they discovered that Johnson received the settlement draft because they had hired another attorney to pursue the claims. Following this discovery, Beth hand-delivered a letter to Johnson instructing him not to cash the settlement draft, even though Mark had already endorsed it, because the plaintiffs' position was that he was no longer their attorney. By letter, dated January 31, 1990, Johnson responded that if he received the draft he would endorse it, cash it, and place the proceeds in a trust account.
Mark also called Johnson and requested that he not negotiate the settlement draft.
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