Law Offices of Eldon L. Boisseau, L.L.C. v. Concannon

PER CURIAM.

Appeal from Sedgwick District Court; Eric Yost, Judge.
Stephen P. Weir, of Stephen P. Weir, P.A., of Topeka, for appellant. Randall E. Fisher, of Law Offices of Eldon L. Boisseau, L.L.C., of Wichita, for appellee.
Before HILL, P.J., MALONE and STANDRIDGE, JJ.

PER CURIAM.

The Law Offices of Eldon L. Boisseau, L.L.C (Boisseau) filed a civil breach of contract action against Debra Concannon to collect unpaid attorney fees earned for representing her in a divorce case. In her answer, Concannon admitted she entered into a fee agreement with Boisseau, admitted she had not paid some of the fees billed to her, denied she breached the fee agreement contract, denied she owed the amount of fees requested by Boisseau in the petition, and asserted—as an affirmative defense—that the total fees charged by Boisseau were unreasonable. The court found Concannon to have abandoned her challenge to the reasonableness of the fees and thereafter, based solely on the pleadings, entered judgment against Concannon for breach of contract and awarded Boisseau $124,447.16 in damages for such breach. Concannon appeals this ruling, alleging that the district court lacked an appropriate vehicle by which to enter judgment and that the judgment was otherwise unsupported by any evidence.

On March 26, 2010, Concannon hired Boisseau to represent her in a divorce case. At the time she hired Boisseau, the divorce case had been pending for about 3 years and Concannon already had engaged the services of multiple attorneys to represent her. Given the procedural posture of the case, Concannon hired Boisseau to prepare a summary judgment motion and to take the case to trial. Concannon signed an engagement letter agreeing to pay a retainer fee and approving Boisseau's hourly fees and monthly billing schedule. After trial, the district court denied Concannon's request for an order requiring her husband to pay attorney fees and costs incurred during the dissolution proceedings.

On February 23, 2011, Boisseau filed a petition seeking damages in the amount of $111,500.99, plus expenses and costs for attorney fees that allegedly had accrued since Concannon's last payment in September 2010. This amount was later amended to $118,014.42, plus expenses and costs. After Concannon failed to answer or enter an appearance in the case, the district court entered a default judgment in favor of Boisseau. The default judgment, however, was later set aside based on Concannon's assertion that she had not been served with a copy of the petition. Concannon filed an answer to Boisseau's amended petition admitting she had not paid some of the bills, denying she owed the amount of fees sought, and asserting, as an affirmative defense, that the total fees charged were unreasonable.

Concannon also filed a motion in the divorce case, requesting the district court to determine the reasonableness of the attorney fees pursuant to Rule 1.5(e) of the Kansas Rules of Professional Conduct (2011 Kan. Ct. R. Annot. 470). In light of this motion, a July 6, 2011, hearing to litigate the reasonableness of attorney fees was set in the divorce case. In anticipation of the hearing, Concannon requested Boisseau to produce a complete copy of her legal file from the divorce case. Boisseau expressed reservations about turning the legal file over to Concannon given she had yet to pay the outstanding attorney fees and expenses associated with the work product contained in her legal file. In an effort to resolve this dispute, Boisseau agreed to produce to Concannon an electronic copy of her legal file if she executed an agreed order to be signed by the court, which effectively would prevent Concannon from divulging the contents of the file to anyone other than her attorney and any expert retained to testify on the reasonableness of the fees charged by Boisseau.

Although almost all of the stipulations dealt with disclosure of the legal file and an expert report, the last paragraph of the agreed order—which was drafted by Boisseau—stated as follows:

“This case is currently docketed as a civil case as well as a motion to determine the reasonableness of attorneys' fees pending in Family Law Court. The parties hereby agree to resolve this matter in whichever setting is the most expeditious. Currently, the Family Law setting of July 6, 2011 is the most expeditious date for resolution of this matter.”
After the parties executed the agreed order, the court signed it. The July 6, 2011, hearing date in the Family Law Court was later continued to August 3, 2011.

On August 1, 2011, Concannon filed a pleading notifying the court and opposing counsel that she was withdrawing her motion in the divorce case, which sought to have the court determine the reasonableness of attorney fees. In the motion, Concannon stated that she wanted “to raise claims against her attorneys in [the] civil action broader than the claim that the fees are not reasonable,” and claimed that withdrawal of the motion was necessary because a ruling on the motion in the divorce case could prevent her from bringing certain counterclaims, including breach of contract, against Boisseau in the civil case.

On August 2, 2011, Boisseau filed written objections to Concannon's notice of withdrawal, arguing that she was estopped from withdrawing the motion because the parties previously agreed to resolve the attorney fee issue at the August 3 hearing and any further delay would be prejudicial and unconscionable. Boisseau also argued Concannon's intention to pursue a civil action for breach of contract was irrelevant to the attorney fee issue.

On August 3, 2011, the day of the hearing, Concannon filed a written reply to Boisseau's objections, acknowledging that the only issue she had raised as an affirmative defense in the civil action was that the fees were unreasonable. Now, however, she intended to file a counterclaim for legal malpractice and/or breach of contract against Boisseau. Concannon's attorney, Stephen Joseph, explained the rationale behind withdrawing the Rule 1.5(e) motion:

• Sometime between July 6 and July 20, 2011, Joseph learned that Concannon's appellate counsel in the underlying divorce case had informed her that there was a reasonable basis for a malpractice claim against Boisseau.

• At a status conference on July 20, Boisseau informed the district court that he wanted an enforceable judgment against Concannon at the conclusion of the Rule 1.5(e) hearing. This caused Joseph “to reconsider the relationship between the Rule 1.5(e) motion in the domestic case and the pending defenses and the new counterclaim for malpractice to be brought in the civil case.”

• Joseph subsequently discovered authority from other jurisdictions suggesting that a judgment on the reasonableness of the attorney fees in the divorce case would have a preclusive effect on a malpractice counterclaim in the civil case. Because Boisseau indicated that he would be seeking a judgment at the conclusion of the Rule 1.5(e) hearing, Joseph determined that Concannon should withdraw the reasonableness motion in the divorce case.

Joseph further explained Concannon withdrew her motion to determine the reasonableness of the attorney fees in the divorce case in order to preserve that issue for decision in the civil case along with the prospective legal malpractice claim. To that end, Joseph stated he had filed a request for leave to withdraw his representation of Concannon in the civil case and that Concannon was “actively seeking other counsel to appear in the civil case to advance a malpractice counterclaim.”

When the parties appeared at the August 3 hearing, Joseph confirmed the motion for reasonableness of attorney fees had been withdrawn in the divorce action based on the potential negative impact a reasonableness determination might have on Concannon's ability to raise a malpractice counterclaim in the civil case. Thereafter, Joseph informed the court that “the basis for the hearing today has evaporated.” In response, Boisseau argued he was entitled to a judgment in the civil case and claimed Concannon simply was trying to delay such a judgment. Boisseau alleged he had detrimentally relied on the parties' agreement to resolve the attorney fee dispute in the context of the divorce case, which essentially placed the civil case on hold. Boisseau summarily rejected the notion that paying the fees would bar a legal malpractice claim; in any case, Boisseau noted that Concannon had not yet even filed a counterclaim in the civil case.

In response to Boisseau's argument, Joseph indicated that he understood the Rule 1.5(e) motion to be a request for the court to determine reasonableness of the fees and that a judgment on the amount of the fees due would be the subject of a separate litigation. Thereafter, the following exchange occurred:

“THE COURT: In the absence of a motion challenging the reasonableness of fees [,] the fees are going to be presumed reasonable, are they not?

“MR. JOSEPH: That's correct. Or litigated.

“THE COURT: I want to give you fair warning if you withdraw your motion I'm going to in five minutes grant his fees. So, you decide what you want to do.

“MR. JOSEPH: You will grant his fees in terms of a judgment?

“THE COURT: I'm going to find they were reasonable if you are withdrawing the motion challenging reasonableness of his fees.

“MR. JOSEPH: It was withdrawn on Monday, Judge.

“THE COURT: Fine.

“I'm going to find Mr. Boisseau's fees are reasonable. I'm going to approve them. If somebody has some other case they want to bring they can bring it.

“Anything else from either counsel?

“MR. JOSEPH: I have nothing else, Your Honor.

“MR. BOISSEAU: In your mind based on your findings, Judge, do I have a judgment I can proceed to garnish or collect these fees?

“THE COURT: Well, let's hear from Mr. Joseph on that.

“MR. JOSEPH: No. All you've determined is reasonableness. You haven't even determined an amount.

“THE COURT: Oh, I'm approving the amount because I don't agree with your distinction between reasonableness and the amount. I think it's all one in the same, Mr. Joseph.”

“[In] the absence of any challenge to the reasonableness,” the district court entered a judgment in favor of Boisseau for attorney fees in the amount of $118,014.42 plus $6,432.74 in interest, for a total judgment of $124,447.16.

On appeal, Concannon claims the district court erred in entering judgment because there was no summary judgment motion before the court in either the civil case or the divorce case. She suggests that the court's ruling amounts to an improper default judgment, sanction, penalty, or forfeiture against her. Concannon also claims there was insufficient evidence to support the judgment in terms of billing records or other evidence to prove the existence of a valid contract for reasonable fees and a breach thereof.

Boisseau responds that the issues raised by Concannon are not properly before this court for review because she waived any claim related to the reasonableness of the attorney fees by withdrawing the Rule 1.5(e) motion. Boisseau asserts Concannon's decision to withdraw her request for a determination regarding the reasonableness of the fees charged eliminated the dispute between the parties, which left the district court with no choice but to enter a judgment.

In granting Boisseau's oral request for judgment at the hearing, the district court essentially entered judgment on the pleadings. This court has unlimited review when determining whether the district court properly granted a motion for judgment on the pleadings. Koss Construction v. Caterpillar, Inc., 25 Kan.App.2d 200, 201, 960 P.2d 255,rev. denied 265 Kan. 885 (1998).

When a district court enters judgment on the pleadings, it makes a finding that the case may be disposed without a trial because “the pleadings frame the issues in such a way that the disposition of the case is a matter of law on the facts alleged or admitted, leaving no real triable issue.” Purvis v. Williams, 276 Kan. 182, 186–87, 73 P.3d 740 (2003). Here, the district court held that Concannon's decision to withdraw her Rule 1.5(e) motion challenging the reasonableness of the fees left no remaining triable issue in the civil case. In order to determine whether the pleadings properly framed the issue for judgment as a matter of law on undisputed facts here, we begin our discussion by looking at the procedural posture of the divorce case and the civil case as they existed when the district court granted judgment in favor of Boisseau on August 3, 2011.

In January 2011, the divorce court granted a request from David Traster—Concannon's husband for almost three decades—(1) to deem unenforceable a postmarital agreement drafted by Traster, an experienced attorney, and executed by both parties and (2) to assess the value of the marital assets and distribute them equitably between he and Concannon. In conjunction with the order assessing and distributing the marital assets, the court denied Concannon's request for an order requiring her husband to pay attorney fees and costs incurred during the dissolution proceedings.

On April 18, 2011, Concannon filed a motion in the divorce case requesting the court determine under Rule 1.5(e) of the Kansas Rules of Professional Conduct whether the contract for fees between she and the attorney representing her in the case, Boisseau, was reasonable. But Concannon withdrew that motion on August 1, 2011. Thus, the procedural posture of the divorce case on August 3, 2011, was the same as it was before the Rule 1.5(e) motion was filed: the parties were divorced, the marital property had been divided by the court, and Traster was not responsible for paying any of the attorney fees and costs incurred by Concannon during dissolution proceedings. Because there were no factual or legal issues pending before the court in the divorce case on August 3, 2011, the court had no legal basis upon which to enter a judgment on the pleadings in that case. The Civil Case

In February 2011, Boisseau filed a civil case seeking damages against Concannon for attorney fees and costs that were due and owing pursuant to the contract between the parties. In Concannon's answer to Boisseau's second amended petition, she

1. admitted she had engaged the legal services of Boisseau to represent her in a divorce action which was approaching trial and pending in the Family Law Department of the Sedgwick County District Court;

2. admitted she had signed an engagement letter, within which she verified her understanding that she would be required to pay a retainer fee, that she would be charged the stated hourly rate, and that she would receive an itemized bill every month setting forth the amount of time and effort expended on her behalf;

3. admitted she had not paid all of Boisseau's bills, she and Boisseau had discussed her bills in person and by telephone, and she had requested an opportunity to review and discuss the bills in detail but did not want to do so until after the court issued its judgment in the divorce case;

4. denied she had made statements to Boisseau saying she would pay the bills as soon as the court issued its judgment in the divorce case, denied stating to Boisseau she had acknowledged the bills were her responsibility, and denied telling Boisseau it would not be a problem for her to pay them;

5. admitted the district court had denied her request for an order requiring her husband to pay attorney fees and costs incurred during dissolution proceedings but denied the court's decision in this regard was a judgment on the merits concerning the reasonableness of attorney fees and costs billed to her;

6. denied the unpaid fees and expenses billed to her were caused by her dilatory conduct or demands;

7. denied she owed $106,537.21 in fees for work done by attorneys on her case, $8,283.71 for the cost of trial experts used in her case, $1,491.48 for the cost of renting equipment at trial, and $1,702.02 for miscellaneous expenses incurred by Boisseau in representing her;

8. admitted she had not paid all of Boisseau's bills but denied she had refused to review them; and

9. denied the sole and proximate cause of any damages experienced by Boisseau was a result of her dilatory conduct.

In conjunction with her answer, Concannon also pled an affirmative defense asserting that the total fees charged by Boisseau were unreasonable.

On April 18, 2011, Concannon filed a motion in the divorce case requesting the court determine under Rule 1.5(e) of the Kansas Rules of Professional Conduct whether the contract for fees between she and the attorney representing her in the case, Boisseau, was reasonable. The parties executed an agreed order—ultimately signed and filed by the court on June 1, 2011—which included the following provision:

“This case is currently docketed as a civil case as well as a motion to determine the reasonableness of attorneys' fees pending in Family Law Court. The parties hereby agree to resolve this matter in whichever setting is the most expeditious. Currently, the Family Law setting of July 6, 2011 is the most expeditious date for resolution of this matter.”

Concannon asserts she understood the phrase “this matter” to mean the reasonableness of fees; thus, from her perspective, she agreed “to resolve [the reasonableness of fee] matter in whichever setting is the most expeditious.” Boisseau asserts it understood the phrase “this matter” to mean its claim for damages in the civil suit for breach of contract; thus, from its perspective, it agreed “to resolve [the civil suit for breach of contract] matter in whichever setting is the most expeditious.” But regardless of how the phrase “this matter” is construed, the pleadings on file in the civil case at the time the hearing was held did not properly frame the issue of damages for judgment by the district court as a matter of law.

The family court hearing scheduled for July 6, 2011, was reset to August 3, 2011. Immediately after the parties stated their appearances, however, Joseph advised the court that there was no longer any reason to hold the hearing because Concannon had withdrawn her motion to determine the reasonableness of attorney fees. Boisseau disagreed, arguing the court was required to go forward with the hearing because, in the absence of a challenge to the reasonableness of the fees charged, Boisseau was entitled to judgment as a matter of law in the civil breach of contract case. Because the court ultimately granted judgment for Boisseau in the civil case, the court apparently construed Boisseau's request as an oral motion for judgment on the pleadings.

A motion for judgment on the pleadings is grounded in the notion that a moving party is entitled to a judgment on the face of the pleadings themselves without developing any evidence. K.S.A. 60–212(c); Koss Construction, 25 Kan.App.2d at 200–01. Given this procedural posture, a motion for judgment under K.S.A. 60–212 necessarily operates as an admission by the movant of the truth of all allegations in the opposing party's pleadings. Purvis, 276 Kan. at 187. Unlike most K.S.A. 60–212(c) motions where the movant is the defendant, however, the movant in this case was the plaintiff. In this context, the propriety of the district court's decision to enter a judgment in favor of Boisseau is contingent on whether the responses and allegations set forth by Concannon in her answer satisfy the elements necessary to establish a cause of action for breach of contract.

PIK Civ. 4th 124.01–A sets forth the following essential elements of an action based on a breach of contract: (1) The existence of a contract between the parties; (2) sufficient consideration to support the contract; (3) the plaintiff's performance or willingness to perform in compliance with the contract; (4) the defendant's breach of the contract; and (5) damages to plaintiff caused by the breach. Commercial Credit Corporation v. Harris, 212 Kan. 310, Syl. ¶ 2, 510 P.2d 1322 (1973); City of Andover v. Southwestern Bell Telephone, 37 Kan.App.2d 358, 362, 153 P.3d 561 (2007).

In her answer, Concannon admitted that she entered into a legal services contract with Boisseau to represent her in a divorce action and, that under the contract, Concannon agreed to pay Boisseau its normal hourly rates in return for all legal services rendered. Significantly, however, Concannon denied that she owed $106,537.21 in fees for work done by attorneys on her case, $8,283.71 for the cost of trial experts used in her case, $1,491.48 for the cost of renting equipment at trial, and $1,702.02 for miscellaneous expenses incurred by Boisseau in representing her. Either in conjunction with, or as an alternative to, denying that she owed the money for fees, costs, and expenses sought by Boisseau in its petition, Concannon also pled an affirmative defense asserting that the total fees charged by Boisseau were unreasonable.

Although the admissions by Concannon in her answer are sufficient to establish the first three elements of a breach of contract of claim, the fact that she denied owing the amount of money sought by Boisseau for attorney fees, costs, and expenses precludes the finding, as a matter of law based solely on the pleadings filed, that she breached the contract, and that Boisseau sustained damages as a result of that breach. Of course, Boisseau ultimately may be able to prove Concannon breached the contract. A judgment on the pleadings is rendered not because of a lack of evidence or proof but because of a lack of issue of fact. If there is no issue of material fact presented by the pleadings, then it becomes a question of law as to which party is entitled to judgment; but, if a material issue of fact is presented and remains undetermined, a judgment on the pleadings is improper.

In this case, Concannon's answer presents at least two issues of disputed material fact: (1) whether she actually owes the amount of money for attorney fees, costs, and expenses sought by Boisseau in the petition and thus breached the contract and caused damages; and (2) whether the fees charged were reasonable. Although acknowledging Concannon's answer presents an issue of disputed material fact regarding the reasonableness of fees charged, we have not considered the viability of this issue in light of Concannon's decision to withdraw her motion to determine the reasonableness of fees in the family law matter. Neither have we considered Concannon's stated intention to file a counterclaim for malpractice against Boisseau in the civil matter. Based on the pleadings on file in the civil case at the time the August 3, 2011, hearing was held, we find disputed issues of material fact remained undetermined; thus, judgment on the pleadings was improper in the civil case.

Reversed and remanded with directions to vacate judgment and reinstitute proceedings.