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McCONWELL v. FMG OF KANSAS CITY2/2/1994
Plaintiff Edward A. McConwell filed this breach of contract and quantum meruit action, seeking recovery of unpaid attorney fees he claimed were owing from defendants FMG of Kansas City, Inc., FMG of Omaha, Inc., and David H. McMullen as a result of legal services he had performed for all defendants. Defendants responded by filing separate answers and counterclaims,
alleging McConwell had committed legal malpractice which caused them to be damaged in amounts in excess of $10,000. The jury returned a verdict disallowing McConwell's claim for additional fees, but allowing his retention of fees that had already been paid. The jury also returned a verdict against McConwell on defendants' legal malpractice claims and on their misappropriation and commingling of funds claims.
McConwell appeals from all adverse rulings and judgments, including the trial court's denial of his motion for summary judgment, his motion for directed verdict, and his motion for new trial. He also appeals the partial denial of his motion for judgment notwithstanding the verdict. Defendants FMG cross-appeal the court's partial granting of McConwell's motion for judgment notwithstanding the verdict on the misappropriation and commingling of funds claims and the court's denial of defendants' request to submit a punitive damage claim to the jury.
McConwell was hired by FMG in a lawsuit filed against FMG and its incorporators by Entre Computer Centers, Inc. The directors of FMG at that time were David McMullen, Gary Fox, Donald Gutekunst, and Porter Guttery. McMullen, Fox, and Guttery, along with their spouses, held 51 percent of the stock in the FMG corporations. After rejecting a contingency fee agreement, McConwell agreed to a fee of $125 per hour and a reduced hourly rate for services by others in his office. McConwell subsequently filed a separate action against Entre on behalf of his clients, and the two actions were consolidated for trial. Before the FMG/Entre trial began, a new fee agreement was approved by the FMG directors which provided that, in addition to the hourly fee, McConwell would receive a contingency fee of 40 percent of any amount recovered that exceeded the amount necessary to discharge FMG of its obligations under certain promissory notes. Whether the new fee agreement was enforceable or was the product of duress became an issue in the present case.
The FMG/Entre trial resulted in a jury verdict favorable to FMG and two of its incorporators, McMullen and Fox, on their counterclaims in the amount of $1 million actual damages for breach of contract and $4 million actual and punitive damages for fraud. The case was appealed to the United States Court of Appeals, Fourth Circuit.
While the case was pending on appeal before the Fourth Circuit, James Quarles, an attorney for Entre, offered to settle the case for $1.3 million. The offer was made in November 1986 when counsel appeared to orally argue the appeal. The settlement was not accepted. McConwell and his associate Clay Dickey testified they immediately conveyed this offer to McMullen. McMullen and Guttery stated the offer was never conveyed to them. Fox and Gutekunst testified they knew of the offer. Quarles testified that, after the initial offer, there was no contact from McConwell's office in an attempt to settle the case. Quarles also testified that he did not inform McConwell that the $1.3 million offer was a final offer. He further testified that, had McConwell counteroffered, Quarles would have reported the offer to Entre.
Wesley Howell, another Entre attorney, testified that he made what was referred to as a "global" offer to McConwell on behalf of Entre in December 1986.
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Kansas Personal Injury Attorneys
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