LESA C. WILLIAMS ET AL.
RENARD A. HIRSCH, SR.
Session May 23, 2017
from the Chancery Court for Davidson County No. 09-425-III
Don R. Ash, Senior Judge
the third appeal in this declaratory judgment action. The
action seeks a determination of whether a discharged attorney
is entitled to compensation for his services in connection
with a tort action that settled after his discharge. After a
bench trial, the trial court determined that the discharged
attorney's right to compensation was governed by a
retainer agreement with the client, as modified by a
subsequent letter agreement. The retainer agreement entitled
the attorney, upon discharge, to compensation calculated at a
reasonable hourly rate or one third of any offer made to
settle the case, whichever was greater, plus expenses.
Because no bona fide settlement offer was made before the
attorney was discharged and the attorney provided
insufficient evidence of the time he spent on the case, the
trial court declared that the discharged attorney was not
entitled to compensation. The trial court also awarded
sanctions against the attorney for discovery abuse. Upon
review, we discern no reversible error. So we affirm.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
M. Kellar and Robert L. Smith, Sr., Nashville, Tennessee, for
the appellant, Renard A. Hirsch, Sr.
Winston S. Evans, Nashville, Tennessee, for the appellees,
Lesa C. Williams, Lesly J. Williams, Alana Williams, and the
Estate of Lesly Williams, Sr.
W. Price, Jr., Nashville, Tennessee, for the appellee,
Ross and Elizabeth S. Tipping, Nashville, Tennessee, for the
appellee, Neal & Harwell, PLC.
Neal McBrayer, J., delivered the opinion of the court, in
which Frank G. Clement, Jr., P.J., M.S. and Andy J. Bennett,
NEAL McBRAYER, JUDGE
first appeal in this case, we described the background facts
On October 1, 2005, Lesa C. Williams and her family were
involved in a tragic motor vehicle accident. Following the
accident, Ms. Williams, through her conservators, contacted
attorney Aundreas Smith, a family friend with whom Ms.
Williams shares a common sister-in-law, concerning the
possibility of filing a personal injury lawsuit. Ms. Smith
was employed at the time by Smith, Hirsch, Blackshear and
Harris, PLC, and Ms. Williams eventually retained both Ms.
Smith and Renard Hirsch, a partner at Smith, Hirsch,
Blackshear and Harris, to represent her. The retainer
agreement entered into by the parties provided that Ms.
Williams would pay Ms. Smith and Mr. Hirsch a one-third
contingency fee. Ms. Smith and Mr. Hirsch filed suit on
behalf of Ms. Williams and her family on December 30, 2005.
Ms. Smith left Smith, Hirsch, Blackshear and Harris, PLC in
April of 2006. In October of 2006, the parties decided to
associate Phil Elbert of Neal and Harwell, PLC to serve as
lead counsel in the case. The agreement, signed by all three
counsel and Ms. Williams, states that Neal and Harwell would
receive 50% of the one third contingency fee.
During the course of the litigation, Ms. Williams grew closer
with Ms. Smith. At the same time, however, Ms. Williams
became dissatisfied with Mr. Hirsch's representation. On
January 3, 2008, Ms. Williams requested that Mr. Hirsch
withdraw as counsel of record. Mr. Hirsch complied and, in
March of 2008, filed a Notice of Attorney's Lien claiming
"an undivided fifty percent of one-third of the total
recovery." On May 22, 2009, the trial court approved a
settlement awarding Ms. Williams a substantial recovery.
Williams v. Hirsch (Williams I), No.
M2010-02407-COA-R9-CV, 2011 WL 303257, at *1 (Tenn. Ct. App.
Jan. 25, 2011).
March 5, 2009, Ms. Williams, relying on the original retainer
agreement, filed this action in the Chancery Court for
Davidson County, Tennessee, asking for a declaration either
that Mr. Hirsch was not entitled to any compensation or that
his compensation was limited to a reasonable hourly rate. In
his answer, Mr. Hirsch denied that he was a party to the
retainer agreement and asserted that the 2006 letter
agreement with Neal & Harwell replaced the original
agreement. He also moved for summary judgment claiming that
Ms. Williams lacked standing. Id.
January 27, 2010, the trial court granted Ms. Smith
permission to intervene. The court also granted Mr.
Hirsch's motion for summary judgment and dismissed Ms.
Williams's complaint, but allowed Ms. Williams to file an
interlocutory appeal. Id. Upon review, we held that
Ms. Williams had standing, reversed the trial court's
decision, and remanded for further proceedings. Id.
remand, discovery ensued, and the court granted Neal &
Harwell permission to intervene. Williams v. Hirsch
(Williams II), No. M2012-01996-COA-R3-CV, 2013 WL
5230745, at *2 (Tenn. Ct. App. Sept. 13, 2013). Ms. Smith,
Ms. Williams, and Mr. Hirsch also renewed their previously
filed motions for summary judgment. Id. at *3. The
trial court awarded summary judgment to "both
sides" and divided the fee award among the three
attorneys. Id. at *4. In the second appeal, we
determined that the trial court's award of partial
summary judgment was inappropriate in light of disputed
material facts. So we reversed the court's judgment and
again remanded for further proceedings. Id. at *8-9.
the second remand and the assignment of a new judge, the
trial court conducted a six-day bench trial. After hearing
all the evidence, the trial court found that Ms. Williams,
Ms. Smith, and Mr. Elbert were credible witnesses, but Mr.
Hirsch was not.
Smith is related to the Williams family by marriage. In late
October 2005, along with other family members, she rushed to
the hospital after learning about the motor vehicle accident.
Lesa Williams was in a coma. Her husband and daughter had
died, and her minor son was in critical condition. Ms. Smith
drafted a petition to appoint two family members, Mary
Rougier and Vernae Coffee, as conservators for Ms. Williams.
conservators asked Ms. Smith to represent the family in a
personal injury and wrongful death action. Ms. Smith drafted
a written agreement reflecting that she was being retained to
provide all services related to the tort claim in exchange
for a 33 1/3% contingency fee. Among other provisions, the
retainer agreement included a discharge or withdrawal clause:
Client may, if unsatisfied with the services for any reason,
discharge the attorney at any time; however, it is understood
that client will pay attorney at time of discharge all fees
and expenses then due, calculated at hourly rate set forth;
or if contingent fee, a reasonable hourly rate or one third
of any offer made to settle the case whichever is greater,
plus expenses for the time expended. Attorney may withdraw at
any time if attorney believes claim/cause of action lacks
merit or is not fiscally practical to pursue. Discharge or
withdrawal requires written notice mailed to last known
address of attorney/client using Certified Mail with Return
Ms. Smith and the conservators signed the agreement, the only
attorney named in the agreement was Aundreas Smith.
time, Ms. Smith was associated with the law firm of Smith,
Hirsch, Blackshear and Harris, PLC, and her practice focused
on workers' compensation cases. Renard Hirsch, a member
of the firm, practiced mostly in the commercial litigation
and bankruptcy fields, but he had experience with personal
injury actions. Ms. Smith and Mr. ...