Attorneys' fee award in parentage case reversed; Cates delivers decision for panel

By Bethany Krajelis | Mar 11, 2013


The Fifth District Appellate Court on Friday reversed the judgment of a Montgomery County judge who awarded additional attorneys’ fees to a Litchfield law firm under the theory of quantum meruit.

In an unpublished order delivered by Justice Judy Cates, the appeals panel determined that Circuit Judge Douglas Jarman erred in finding that Scharf Law Firm had met its burden of proof for a quantum meruit award against a former client.

The Rule 23 order in this case – Scharf Law Firm v. Brett Whitworth – marks at least the fourth ruling, published and unpublished, that Cates has delivered since she won the election to the appellate court and was sworn into office in December.

The question over attorneys’ fees stems from a parentage case that Brett Whitworth hired Scharf in April 2008 to represent him in.

The case involved three possible fathers for the then 10-year-old child and DNA testing ultimately revealed Whitworth to be the father.

Whitworth eventually discharged Scharf from representing him because he believed the firm was “botching up” his case, according to the appellate court order.

The order does not identify the individual attorney who represented Whitworth, but the “About Us” section on Scharf Law Firm’s website shows only one attorney profile and that is for Andy Scharf.

After being discharged in April 2010, Scharf brought a complaint in small claims court in an attempt to collect attorney fees he claims Whitworth owed him.

According to the appellate court order, Whitworth asserted that Scharf never provided him with any details concerning his case and never actually met with him in person, either canceling or not being in the office for scheduled appointments.

Whitworth, the order states, testified that Scharf agreed to represent him for a flat fee of $2,500 and didn't inform him he would be billed $150 per hour. He also claimed to have received only a couple of bills from Scharf and that none of them included an hourly rate.

On behalf of the appeals panel, Cates wrote that “based on the limited record presented, Whitworth appears to have paid Scharf a total of $3,800, $1,300 over the agreed-upon fee.”

The order noted that Whitworth believed the overpayment was the result of a mistake made by his secretary, who was responsible for paying his legal bills.

Scharf, however, claimed that he would never agree to handle a parentage case for a flat fee. He testified that while he typically has his family law clients sign fee agreements, Whitworth didn’t do so because he never met with him at his office.

According to the order, Scharf also asserted that he kept track of the hours he spent working on Whitworth’s case on a monthly basis and sent his client bills each month.

A ledger that Scharf submitted as an exhibit at trial showed he billed Whitworth 54.9 hours at $150 per hour. He, the order states, “believed that Whitworth still owed him $4,240 after giving him credit for $2,300 in payments."

Following a bench trial over the fees dispute, Jarman found that under the theory of quantum meruit, the reasonable value of Scharf’s services was $5,689 and that Whitworth had paid Scharf a total of $2,500.

Based on those findings, Jarman entered judgment in favor of Scharf in the amount of $3,189.

On appeal, Whitworth argued that Jarman erred by failing to find that the two parties had an agreement for a flat attorney fee and that the award of fees under the theory of quantum meruit was against the manifest of the weight of evidence.

The appeals panel agreed with Whitworth and reversed Jarman's judgment in favor of Scharf.

In the unpublished order, Cates wrote that “As a court of review, we will only substitute our judgment for that of the trial court in a bench trial when that judgment is against the manifest weight of the evidence.”

“We conclude that, in this instance, the judgment is against the manifest weight of the evidence," Cates wrote for the panel. “Scharf failed to make a prima facie case for additional fees under the theory of quantum meruit and, therefore, should not have been awarded any additional fees.”

Although the panel agreed with Jarman’s determination that Scharf’s hourly billing rate was reasonable, Cates wrote that the real issue was the amount of hours he charged.

“Put simply, we conclude that Scharf did not establish that the services performed or the total hours allegedly expended on Whitworth’s behalf were reasonable under the circumstances,” Cates wrote.

As examples, she pointed to the ledger submitted at trial that showed Scharf had charged Whitworth for continuances that were the result of conflicts in his own schedule.

Cates also noted that Scharf never met Whitworth, failed to keep him informed of details in his case and didn’t present monthly bills he claimed to have sent his former client.

“There simply was too little evidence on the record to support the award of any additional fees than those already paid by Whitworth,” the order states. “We conclude that the Scharf Law Firm has been compensated in full for its representation of Whitworth on the parentage claim, and find there is no reason to remand this case for further proceedings."

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