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Wilson v. Lynch & Lynch Co.12/27/1994
At deposition, the appellant, when questioned by appellee, Matthew J.D. Lynch, testified as follows concerning the fee agreement:
"A. And again, 1 think it was also the intention of everybody that-that one of the things that I provided as a basis for this agreement was an extensive amount of work on the file, and with the Dolan law firm that had gone on prior to the agreement. I think, in part, the agreement was a recognition of the extensive work that I had--had already done on the matter. [Footnote added.]
"* * *
"A. * * * here came a time that [appellees, the Bests and Davis,] came into the office to see me and--and--and subsequent to that, I began to take some action and represent them in--in making inquiries of the Dolan firm about some of the matters. And the discussions back then were that--that I would just make some initial inquiries, try to find out some information for them. That there would be an hourly billing on some of those matters, but that if the matter ever matured into something more, there was some indications that there would be a--there would, in fact, have to be some other fee arrangement that would be made.
"* * *
"A. The initial occasions in the representation were that I was to direct myself to just a couple of specific questions concerning the--the estate, very limited contract. But you know, as the representation continued, you know, there became more and more indications that there were more and more problems with the estate * * *.
"* * *
"A. Well again, the agreement was that--that there were substantial services that had already been performed--that had been performed prior to that time that there were uncompensated, and that would--that would be merged into this agreement, yeah." (Emphasis added.)
The appellant further delineated his understanding of the basis for the fee splitting:
"A. But--but yeah, there--it did contemplate also that--the basis of the agreement was that, under any circumstances , I wasn't going to perform a lot of services under this contract. * * * I mean, even if I had not gotten the appointment to the bench, and even if I continued to practice law, I--I was not going to be deeply involved in this matter from that point on * * *.
"A. * * * I think you were being brought in as a--as counsel in this to--to handle the litigation at that point. * * * "
Independently, the evidential table is replete with material to demonstrate that appellant performed work after the referral:
"A. It was a wide ranging discussion between you and as to what had gone on in the file. I gave you, I think, a fairly thorough background and briefing of a fairly complex and involved legal matter, and I think you, you know, based on--on that briefing, I think had a very thorough understanding of--of that.
"* * *
"A. * * * ou and I had several discussions and/or meetings in--in connection with this legal matter. We discussed the--the history of the matter, and the facts of the matter, and our--we shared our--our legal thoughts on the matter."
Clearly, this colloquy provides an evidential table sufficient to overcome the summary judgment hurdle. Construing this evidence most favorably, one may conclude that the appellant had performed work on the underlying action, both before and after the referral, creating the entitlement to payment pursuant to the fee-splitting agreement.
The majority also disputes appellant's contention that a contingent fee arrangement was entered into by the parties. However, reasonable minds could conclude that the parties had intended such a
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