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Ausler v. Ramsey3/7/1994
insurer. Ausler moved for reconsideration. This motion was denied 1 week later. On April 9, 1992, Blumenthal filed a satisfaction of lien, having been paid by the insurer. This timely appeal followed.
Discussion
[1, 2] The determination of attorney fees is a matter left to the discretion of the trial judge. Wheeler v. Catholic Archdiocese, 65 Wash. App. 552, 574, 829 P.2d 196, review granted, 120 Wash. 2d 1011 (1992). Discretion is abused when it results in a decision that is manifestly unreasonable, or is exercised based on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wash. 2d 12, 26, 482 P.2d 775
(1971). A decision based on a misapplication of law rests on untenable grounds. In re Marriage of Bralley, 70 Wash. App. 646, 651, 855 P.2d 1174 (1993) (a trial court abuses its discretion if its decision is "in violation of law").
It is undisputed that Blumenthal voluntarily withdrew from Ausler's representation. Ausler argues that, in doing so, Blumenthal waived any claim to fees. Blumenthal responds by arguing that Ross v. Scannell, 97 Wash. 2d 598, 647 P.2d 1004 (1982) governs the action and entitles him to a quantum meruit recovery.
Blumenthal's reliance on Ross v. Scannell, supra, is misplaced. In Ross, an attorney and his client became embroiled in a fee dispute concerning previous representation. As a result, the attorney did not complete representation in a second matter for the same client. The client was to pay a contingent fee for these services. Ross, 97 Wash. 2d at 608. The court considered whether an attorney who stopped providing legal services could recover based on a contingent fee contract "prior to full consideration of the contingency". Ross, 97 Wash. 2d at 608.
The court held that, "under the circumstances of this case an attorney may not recover on the contract but must seek recovery of fees on the theory of quantum meruit." Ross, 97 Wash. 2d at 608. That holding does not establish that any attorney who withdraws from a contingent fee representation may always recover fees in quantum meruit. Rather, it establishes that the measure of recovery should be quantum meruit, as opposed to some portion of the contingent contract. The court concluded, " if Ross is entitled to attorney fees, the measure of those fees is not the contingent fee agreed upon but the reasonable value of the services rendered." (Italics ours.) Ross, 97 Wash. 2d at 609. We must determine whether or not Blumenthal is entitled to fees.
The Washington Supreme Court has had occasion to examine a case somewhat similar to the instant case once before. In Farwell v. Coleman, 35 Wash. 308, 77 P. 379 (1904) attorney Farwell represented Coleman in an action whereby the railroad was attempting to condemn portions of her land to create an easement. Farwell agreed to take the case on a contingent fee basis. Farwell, 35 Wash. at 311.
Thereafter Farwell did almost nothing to prosecute the case. Coleman eventually settled with the railroad herself, without Farwell's knowledge. Farwell sought fees for what work he had performed. The trial court denied Farwell's request, finding that he had withdrawn from the case as a result of his neglect. Farwell, 35 Wash. at 312. The Washington Supreme Court affirmed, agreeing that Farwel
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