BY THE COURT
attorney employed under a contingency fee contract who is
discharged without cause is limited to a quantum meruit
recovery for the reasonable value of the services rendered.
the factors identified in K.S.A. 2016 Supp. 7-121b(a) and
Kansas Rule of Professional Conduct 1.5(a) (2017 Kan. S.Ct.
R. 292)-including whether the fee agreement is fixed or
contingent-are relevant to the equitable determination of the
reasonable value of legal services rendered.
of the judgment of the Court of Appeals in 51 Kan.App.2d 286,
346 P.3d 1094 (2015).
Appeal from Sedgwick District Court; J. Patrick Walters,
judge. Judgment of the Court of Appeals reversing the
district court is reversed. Judgment of the district court is
Stephen L. Brave, of Brave Law Firm, LLC, of Wichita, argued
the cause and was on the briefs for appellant.
Jonathan Sternberg, of Jonathan Sternberg, Attorney, P.C., of
Kansas City, Missouri, argued the cause, and Jennifer M.
Hill, of McDonald, Tinker, Skaer, Quinn & Herrington,
P.A., of Wichita, was with him on the briefs for appellees.
case concerns a fee dispute between two attorneys-Bradley A.
Pistotnik and Stephen L. Brave-each of whom represented
Mahnaz Consolver at different stages of her personal injury
lawsuit. Pistotnik filed the case after Consolver engaged him
through a contingency fee agreement. Although Consolver and
Pistotnik's relationship was strained throughout the
representation, it endured through discovery to the mediation
stage of the case, during which Pistotnik and defense counsel
agreed that defendant would offer $300, 000 to settle the
case if Consolver could show that she needed an additional
surgery to repair her knee. Before defense counsel could make
a formal offer, however, Consolver terminated Pistotnik
thereafter, Consolver hired Brave, who later settled the case
for $360, 000. Pistotnik filed an attorney lien on the
judgment, and following an evidentiary hearing, the district
court found that Pistotnik was entitled to a fee in the
amount of $86, 944.27 and expenses in the amount of $10,
156.81. Consolver appealed, and the Court of Appeals reversed
the district court. We granted review.
and Procedural Background
April 2011, Consolver hired Bradley A. Pistotnik of
Affiliated Attorneys of Pistotnik Law Offices, P.A., to
represent her in a personal injury action against Chris Hotze
for injuries arising out of a car accident. Prior to filing
the case, Consolver signed a standard contingency fee
agreement with Pistotnik providing that Pistotnik would
advance all expenses and labor in the pursuit of
Consolver's claims and that Consolver would owe nothing
in the event no recovery was obtained. If there was a
recovery, the fee agreement required Pistotnik to be paid
one-third of the amount after reimbursing expenses or, if the
recovery occurred after the pretrial conference, then 40
percent of the amount after expenses. The contract was silent
regarding what would occur if the lawyer-client relationship
terminated before Consolver's claim was resolved.
Pistotnik, Consolver filed a petition in Sedgwick County
District Court against Hotze, alleging that in February 2011,
a vehicle being driven by Hotze collided with another
vehicle, which resulted in injuries to Consolver. Hotze
denied many of the allegations and requested a jury trial.
Consolver originally claimed damages in the amount of $1,
130, 000 but later increased her claim to $1, 405, 961.40. A
trial date was eventually set for August 7, 2012.
after the representation began, Consolver and Pistotnik's
relationship began to deteriorate. The record before us
details numerous disputes between the two, but we need not
recount them here. Highly summarized, the record indicates
that Consolver believed Pistotnik was too busy to focus on
her case and did not pursue it with sufficient zeal, while
Pistotnik believed that he pursued Consolver's claims
with prudence and skill and gave her case exactly the level
of attention it required.
2012, the parties to the lawsuit spent a day in mediation
attempting to settle the case. Pistotnik claimed that
mediation "[d]iscussions concluded with the
understanding that an offer for the sum of three hundred
thousand dollars ($300, 000.00) would be made, contingent
upon proof that [Consolver] would require additional
surgery[, ] and [Hotze] was requiring additional records and
bills from health care providers for recent treatment."
In support of this claim, Pistotnik provided an affidavit
from Hotze's attorney Craig Kennedy detailing the events
surrounding mediation. Kennedy averred that on the day of
mediation, he and Pistotnik had agreed that a $300, 000
settlement offer would be made to Consolver if she provided
proof that she was to undergo a second knee surgery. Kennedy
and Pistotnik spoke on several occasions after mediation
about getting the necessary medical records.
affidavit further stated that Kennedy received an email from
Pistotnik on June 20, 2012, stating that Consolver had been
scheduled for surgery. One week later on June 27, 2012,
Kennedy told Pistotnik in person that he was obtaining
authorization for the $300, 000 settlement and would be
sending out a formal offer letter in the next several days.
Kennedy called Pistotnik the next day-June 28, 2012-to inform
him that he expected to receive authority to offer a $300,
000 settlement. On the same day he called Pistotnik, Kennedy
received an email from Pistotnik informing him that Consolver
would no longer accept the $300, 000 settlement offer. An
email from Pistotnik to Kennedy indicates that Consolver
rejected the $300, 000 because her doctor had told her that
she would need surgery next month and a knee replacement in
the future. Pistotnik said in the email that he thought they
would "need to get into the 400k range to get
after receiving the email, Kennedy received official
authority to submit the $300, 000 offer. Because Kennedy was
unable to contact Pistotnik that day, he sent Pistotnik an
email on June 30, 2012, offering $300, 000 to settle the
case. On July 2, 2012, Kennedy confirmed the offer through a
letter sent to Pistotnik. Finally, the affidavit stated that
Hotze and his insurance carrier had made no offers in excess
of $300, 000 and that all settlement ...