Adams v. Howard

Cite as 2014 Ark. App. 328

ARKANSAS COURT OF APPEALS
DIVISION I
No. CV-13-935

LAUREN ADAMS and ADAMS, Opinion Delivered May 28, 2014
BRADY & JACKSON, PLLC
APPELLANTS APPEAL FROM THE BENTON
COUNTY CIRCUIT COURT
V. [NO. P-03-461]

GARY HOWARD, Individually and as the HONORABLE XOLLIE DUNCAN,
Administrator of the Estate of Odis JUDGE
Howard, Deceased
APPELLEE AFFIRMED

ROBERT J. GLADWIN, Chief Judge

Appellant Lauren Adams and her law firm, Adams, Brady & Jackson, PLLC, appeal

from an order that established the manner in which they could recover their fee for

representing appellee Gary Howard.1 We affirm the court’s order.

I. Background

The events leading to this case began over fifteen years ago and have generated two

prior appeals: Howard v. Adams, 2009 Ark. App. 621, 332 S.W.3d 24 (Howard I), and Howard

v. Adams, 2012 Ark. App. 562, 424 S.W.3d 337 (Howard II). The case history can be found

in those opinions, but we will reiterate the relevant facts for ease of understanding.

In 2002, Adams represented Gary Howard in a suit against his stepmother, Mabel

Howard. The purpose of the suit was to recover approximately forty-six acres of land from

a trust that held the assets of Gary’s late father, Odis. Gary had been a beneficiary and co-

1
For convenience, we will refer to Lauren Adams as the sole appellant.
Cite as 2014 Ark. App. 328

trustee with Mabel, but, with the assistance of attorney Bill Watkins, Mabel amended the trust

to reduce Gary’s beneficial interest and eliminate his role as trustee.

Adams successfully recovered the realty in February 2005 and placed the property into

Odis’s estate, of which Gary was the sole heir. Mabel’s dower and homestead interests as

Odis’s widow were later settled for $110,500.

Once the property was recovered, a dispute arose over Adams’s fee. Gary insisted that

Adams had promised to collect her fees via a legal-malpractice claim against Watkins. Adams

denied making that arrangement and said that the terms of her representation were governed

by the following contingency-fee contract:

[Adams] will be entitled to the following percentages of any damages award collected
on behalf of [Gary]:

33% of all amounts recovered after filing suit.

According to Adams, the terms of this agreement meant that her fee would be one-

third of the property’s $1.8 million value as of the date it was recovered in February 2005. She

filed a claim against Odis’s estate for “33% of the real property recovered or the sum of

$613,333,” and an attorney-fee lien for “33% of the proceeds derived from the [46 acres]

including but not limited to sale proceeds . . . .”

In August 2005, Gary sued Adams for breach of contract, deceit, and negligence,

claiming that she had wrongfully sought her attorney’s fees from the estate rather than from

Watkins’s malpractice insurer. In a pretrial order dated February 16, 2007, the court ruled that

Adams’s attorney-fee lien was “properly in place against the real estate.” However, the court

found that questions remained over whether Adams had agreed to collect part of her fees from

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Watkins’s malpractice carrier. The court declared that Gary must try his case to a jury if he

wished to offset Adams’s fee claim.

The trial was held in January 2011, and the jury awarded no damages to Gary or the

estate. While the case was on appeal, Gary continued his long-standing efforts to sell the forty-

six acres. The property’s worth had purportedly dropped after being appraised at $2 million

in 2006, and, as of 2011, it still had not sold. Adams’s attorney-fee lien therefore remained

unsatisfied.

In March 2011, Adams asked the court to establish her fee as $613,333, given that

Gary’s lawsuit yielded no offsets. Gary responded that, if the property were sold, Adams

should recover a third of any sales price, less the $110,500 paid to Mabel. He also claimed that

Adams should receive “one-third of the real estate itself” as her fee.

On July 24, 2013, the circuit court entered an order that allowed Adams to foreclose

on her attorney-fee lien. The court ruled, however, that Adams’s fee would be based on the

price of the land in an upcoming sale:

It is the decision of the Court that, because of the wording of the contract, [Adams is]
entitled to foreclose [her] lien against the real estate, but that at a sale of the real estate,
whether by forced sale on the courthouse steps or on the open market, [Adams] is
entitled to receive 33% of the net sales price of the real estate.

Further, the amount previously paid to Mabel Howard for her interest is to be
deducted from the full sales price of the real estate, after which time the 33% will be
set aside to Adams . . . . In other words, the entire $110,500 will not come from the
33% set aside to Adams . . . but will be deducted from the total sales price prior to the
computation of the 33% that will represent [Adams’s] lien . . . .

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Adams appeals from that order.2

II. Interest in Land

Adams argues first that Gary is barred from claiming that her fee should consist of an

ownership interest in the forty-six acres. We need not address this point. The circuit court did

not grant Adams an ownership interest in the property but permitted a monetary recovery in

the form of a percentage of the property’s sales price. Any discussion of this issue would

therefore be academic. Our court does not decide academic questions. See Kuelbs v. Hill, 2010

Ark. App. 427, 379 S.W.3d 47.

III. Method of Calculating the Fee

Adams argues next that the court erred in calculating her fee as a percentage of the

property’s future sales proceeds. She contends that her fee should be established as

$613,333—one-third of the property’s $1.8 million value at the time it was recovered in

February 2005. We disagree.

Adams’s contract with Gary did not establish a method of calculating her fee; it simply

stated that the fee would be one-third of the “amount recovered.” Given that she was hired

to recover real property and—as she herself argues—her fee was to be paid in dollars, Adams

should have realized that the property must be sold at some point to satisfy her lien. She

therefore took the risk that the amount of her fee would depend on the proceeds generated

by the property’s sale. Consistent with this, Adams filed her lien for thirty-three percent of

2
Because this is a probate matter, all orders are immediately appealable, with exceptions
not applicable here. Howard I, 2009 Ark. App. 621, 332 S.W.3d 24.

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the “proceeds” from the property. Thus, the circuit court could reasonably have concluded

that Adams’s fee would not be fixed until a sale of the property occurred.

Adams relies on Simler v. Conner, 352 F.2d 138 (10th Cir. 1965), Rector v. Compton, 62

Ark. 279, 36 S.W. 898 (1896), and other authorities for the proposition that her fee should

be determined as of the date she recovered the property. While those cases bear similarities

to the situation before us, the facts here are unique with regard to the parties’ representation

contract. Given the circumstances, we cannot say that the circuit court clearly erred in the

method it employed to establish the amount of Adams’s lien. See May Constr. Co., Inc. v.

Town Creek Constr. & Dev., LLC, 2011 Ark. 281, 383 S.W.3d 389 (applying the clearly

erroneous standard in reviewing the calculation of a lien amount).

IV. Legal Bar and Estoppel

Adams asserts that Gary is barred by law of the case, laches, and judicial estoppel from

claiming that her contingency fee should be calculated on the future sales price of the

property. We see no bar to Gary’s claims.

Law of the case prohibits a court from reconsidering issues of law and fact that have

already been decided on appeal, as well as those that might have been presented, but were not,

in a prior appeal. Carter v. Cline, 2013 Ark. 398, ___ S.W.3d ___. According to Adams, law

of the case prevents Gary from challenging the February 2007 order that validated her fee

because he failed to challenge the fee in his prior appeals. However, the February 2007 order,

by its own terms, was limited to the issue of whether Adams’s lien was properly in place. It

did not set Adams’s fee amount or establish a method of calculating her fee. Consequently,

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the amount of Adams’s fee could not have been challenged by Gary in the earlier appeals.

With regard to laches, it is an equitable doctrine that requires a detrimental change in

position by one party and an unreasonable delay by the other party. See Gable v. Anthony,

2010 Ark. App. 757. The application of laches is based on the particular circumstances of each

case and is a question of fact for the trial court. See id.

Adams argues that Gary delayed in challenging her fee and precluded her from

“pursuing a partition action to enforce her ownership interest in the subject property” when

real-estate prices were “at an all-time high,” apparently referring to the years 2005–06. We

first restate that Adams was not granted an ownership interest in the property, so her claim

of delay in seeking a partition is not well-taken. In any event, we do not believe the circuit

court was bound to find that Gary occasioned any unreasonable delays with regard to Adams’s

fee. It was not until 2011 that a trial was held to determine the crucial matter of whether there

were any offsets to the fee.

Finally, on the matter of judicial estoppel, a prima facie case consists of the following

elements: (1) a party must assume a position that is clearly inconsistent with a position taken

in an earlier case or in the same case; (2) a party must assume the inconsistent position with

the intent to manipulate the judicial process to gain an unfair advantage; (9)(3) a party must

have successfully maintained the position in an earlier proceeding such that the court relied

on the position taken; and (4) the integrity of the judicial process of at least one court must

be impaired or injured by the inconsistent positions taken. Purser v. Buchanan, 2013 Ark. App.

449. The doctrine of judicial estoppel is not to be applied in an unduly strict manner; it is

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intended to protect the integrity of the courts, not as a technical defense for litigants to derail

a potentially meritorious claim. See Mitchell v. Ramsey, 2011 Ark. App. 9, 381 S.W.3d 74.

Adams argues that Gary previously asserted that her fee amount was $613,333 and that

he should be judicially estopped from saying otherwise. She specifically points to Gary’s

response to her motion in limine filed before the 2011 trial on the issue of whether he and

the estate were damaged by the attorney-fee lien. Gary responded to the motion by arguing

that Adams’s lien of $613,333 was not uncertain or speculative and that the lien amount had

been established by the court.

Unquestionably, Gary’s current position with regard to the lien amount is inconsistent

with his above statements. However, inconsistency alone is not enough to establish a prima

facie case for judicial estoppel; all four of the above elements must be proved. Nothing in the

record indicates that the court, in deciding on the motion in limine, relied on Gary’s

representations as to the amount of the lien. Nor does Adams sufficiently explain how the

court so relied. We therefore are not persuaded that reversible error occurred.3

V. Deduction of Dowry Amount

The court ruled that the $110,500 paid for Mabel’s dower and homestead interests

would be deducted from the sales price of the property and that, following that deduction,

3
Adams’s argument heading also asserts the bars of res judicata and collateral estoppel.
However, the body of her argument does not discuss these doctrines on this particular point.
If an argument heading raises an issue but the body of the argument does not address the
issue, we will not reach it on appeal. See Jones v. McLemore, 2014 Ark. App. 147, ___ S.W.3d
___. In any event, the doctrines do not bar Gary’s claims for the same reasons stated earlier
in this opinion.

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Adams’s fee would be set as one-third of the remaining proceeds.

Adams argues that the court erred in deducting the dower amount before calculating

her fee. However, Adams had already agreed to the court’s action. In a pretrial hearing, she

stated that she would be entitled to a third of the value of the real estate “only after [Mabel’s]

dower interest is deducted.” She also stated in a trial brief that she “agreed that the value of

the recovery should be reduced by [the] amount [Gary] has paid to the decedent’s surviving

spouse, Mabel Howard, prior to the determination of her contingency fee.” An appellant

cannot complain on appeal that the trial court erred if the appellant induced, consented to,

or acquiesced in the court’s position. See Colquitt v. Colquitt, 2013 Ark. App. 733, ___ S.W.3d

___.

VI. Prejudgment Interest and Attorney’s Fees

Adams argues that she is entitled to prejudgment interest on the amount of her fee

from the date the property was recovered in February 2005, and that she is entitled to

attorney fees as the prevailing party in a contract action. See Ark. Code Ann. § 16-22-308

(Repl. 1999). Because we have affirmed the circuit court’s ruling that the fee will not be

determined until a future sale of the property, prejudgment interest is not available. Nor is

Adams the prevailing party for the purpose of an award of attorney’s fees under section 16-22-

308.

Affirmed.

VAUGHT and BROWN, JJ., agree.
Tamra Cochran, for appellants.
Harry McDermott, for appellees.

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