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Connelly v. Swick & Shapiro

April 27, 2000

JOAN A. CONNELLY, APPELLANT/CROSS-APPELLEE,
v.
SWICK & SHAPIRO, P.C., APPELLEE/CROSS-APPELLANT.



Before Terry and Washington, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor, Senior Judge

Appeals from the Superior Court of the District of Columbia (Hon. Ellen Segal Huvelle, Motions Judge) (Hon. Evelyn Queen, Trial Judge)

Argued December 7, 1999

This litigation, involving an initial claim and counterclaims, between a lawyer and a former client, arose out of a dispute over the meaning of a retainer agreement governing attorney's fees. In this appeal by appellant from a jury verdict in favor of appellee, a law firm, there is also a cross-appeal by appellee from the denial of a request for prejudgment interest. We affirm in part, and reverse in part.

I.

Appellant, Joan A. Connelly, worked for a company for almost thirty years. In June 1993 she was discharged from her employment. Believing that she was the victim of age discrimination, appellant obtained the services of an attorney practicing in this jurisdiction. Having incurred financial obligations in the amount of $11,044, appellant chose to terminate that relationship. Later appellant retained the law firm of Swick & Shapiro, P.C., appellee, to represent her in a wrongful discharge action against her former employer.

Appellant's initial meeting with appellee occurred on June 3, 1994. At this meeting appellee agreed to represent appellant in a lawsuit against her former employer. A retainer agreement was drafted, and appellant was provided a copy. Subsequently, the agreement was approved and signed on June 6, 1994, by appellant and appellee.

On June 10, 1994, appellee filed a complaint against appellant's former employer. Ultimately, after extended negotiations conducted under the supervision of a Superior Court judge, the lawsuit was settled on November 15, 1995. The complete terms of the settlement agreement were reduced to writing, and on November 17, 1995, appellant and appellee approved and signed the final settlement agreement.

The settlement agreement provided that appellant receive:

A check in the amount of Three Hundred and Thirty- Eight Thousand Dollars and No Cents ($338,000.00). The parties agree that this sum is paid as damages for personal injuries attributable to the alleged violation of the District of Columbia Human Rights Act. A check in the sum of One Hundred and Seventy- Seven Thousand Dollars and No Cents ($177,000.00) for Connelly's attorneys fees and costs. Within five (5) business days after receipt by [employer's] counsel of a fully executed Agreement by Connelly and her counsel, [employer] shall also pay to Connelly the sum of Fifteen Thousand Dollars and No Cents ($15,000.00). The parties agree that this sum is paid as a consultant's fee for Connelly's services provided during the period July 17, 1993 through October 16, 1993, and that [employer] shall issue an IRS form 1099 in 1996 for this amount.

Both the check in the amount of $338,000.00 and the check for $177,000.00 were payable jointly to appellant and her attorney. The check in the amount of $15,000.00 was payable to appellant only.

Having signed the settlement agreement and stated her approval of it to the presiding judge, appellant, shortly thereafter, called the judge's chambers raising concerns about her case. In response, on November 21, 1995, the judge initiated a series of three hearings. The judge, attorneys for both sides, and appellant were present. Appellant disputed appellee's demand that, pursuant to their retainer agreement, she was obliged to pay to the firm twenty-five percent of the monies received by her, in addition to the settlement payment of $177,000 to the attorneys. At the hearings the judge reviewed the distribution of monies received under the settlement. It was at this juncture that the judge first became aware that a retainer agreement, containing a contingency provision, existed between appellant and appellee. There was discussion of placing the checks in Superior Court's registry until the dispute was resolved. However, upon the agreement of the parties, appellant endorsed the check for $177,000 to appellee, while appellee endorsed the check in the amount of $338,000 to appellant.

On December 1, 1995, appellee filed a complaint against appellant in the Superior Court seeking damages for breach of contract. Appellant, in turn, filed a counterclaim asserting breach of contract, negligence, intentional infliction of emotional distress, breach of fiduciary duty, and breach of covenant of good faith and fair dealing. Prior to trial, both sides filed motions for summary judgment. *fn1

A jury returned a verdict for appellee on its breach of contract claim in the amount of $43,836.61 and in favor of appellee on appellant's counterclaims for breach of contract and breach of the covenant of good faith and fair dealing. The judge directed a verdict against appellant on her breach of fiduciary duty claim. This amount awarded by the jury ($43,836.61) is the difference between the $88,250 (twenty-five percent of $353,000), which was allegedly owed to appellee under the contingency clause of the retainer agreement, and $44,388.39, which was the amount to be refunded to appellant for amounts she paid to the law firm and money paid to her prior ...


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