1 The trial c ourt noted tha t the “novel and difficu

lt questi ons of law” presen

ted by the li

tigation “required Cheatham to not only use his own skill s as an attorney but

also require d him to use h is best efforts to find an asso ciate who was famili

ar with products

liabili ty cases. ” 

### IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE August 9, 2001 Session
RICHARD L. JOHNSON, et al. v. ST ONEY R. HUNTER,

et. al.

Appeal from the Circuit Court for Davidson County No. 95C-1573 Thomas Brothers, Judge



### No. M2000-03099-CO

A-R3-CV - File

d October 25, 2001

D AVID H. W ELLES , S P .J., dis senting.

I respectfully

dissent from the ma

jority’s hold

ing that, under th

e theory of

quantum meruit, the correct division of the attorney’s fees at issue in this case r esult s in the appellee,

Denty Cheatham, receiving $200,000.

I agree with the majority that the correct application of the theor y of quantum meruit requires

us to focus on the value of the benefit conferred, rather than on the value of the service s to the one who performs them. However, the majority appears to misapprehend th

e key inquir

y in determining this issue: that is, the identity of the party on whom the benefit is conferr ed. In the context of this
case, the proper inquir

y is not the va

lue of the benefi

t conferred by

Mr. Cheatham on his

clients. As notedby th e ma

jor ity, that issue was settled by a fee agree

ment between Mr.

Cheatham, Wolff Ar

dis andtheir mutual client. That agreement is no

t at issue in this

case. Rather, th

e proper inquiry

must focus on the value of the benefit that Denty Cheatham conferred on Wolff Ardis in conjunction with his associating that firm regarding the Johnson v. Hunter litigation.

Obv iou sly, the value that Mr. Cheatham i

nitially conferred on Wolff Ardis was the opportunity

to participate in a

large product

s liability ca

se with the potentia

l fo r a significant contingency

fee. That opportunity, I think, should be given some consideration in determining Mr. Cheatham’s portion of the fee under the theory o

f quantum meruit. Wit

hout Mr. Cheatham’ s efforts to seek out

and associate Wolff Ardis on the litigation, Wolff Ardis would not be entitled to any of the feeit now seeks to have divided. Wolff Ardis benefitted from Mr. Cheatham’s attorney-client relationship

with the plaintiffs, by

the research he conducted on their behalf to determine what other lawyer(s) to employ in the case, 1 and by his continued work on t he case up until the point he was allowedto withdraw from the litigation. Wolff Ardis also benefitted from Mr. Cheatham’s ability to perform as local counsel. Clearly, Wolff Ardis needed local counsel in Nashville : hence the2 Although this Court initially rem anded this c ase “to make a reas onable div ision of the continge

ncy fee under the theory of quantum meruit and base d on the facto rs lis ted in DR 2-106,” we are not thereby precluded f

rom considerin g additiona l ethical consid erations that m ay be app licable.

3 See Brief of

Appellant

s Patric k M. Ardis and Wolff Ardis , P.C., f iled Feb. 16, 1999, p. 57.

4 Although the major

ity descri

bes the 1,500 hours as

a “guesstimate,” the t

rial court noted that Mr. Cheatham “did not regularly ke ep detailed hourly billing rec ords, espe cially in contingent fee case s,” and t hat “[t ]the estimate

by Cheatham of the hours he expende d was con servative.”

-2- association of Bass Berry & Sims after Mr. Che at ham’s withdrawal. Thus, I think that the theory of quantum meruit req

uires us to quantif

y, in some fa

shion, the valu

e of all of the benefits Mr. Cheatham confer

red on Wolff Ardis.

Th e majority st

ates that “we do not believe that in the circumstances of this case a mathematical solution would comport with the equities involved.” However, a non-mathematical approach ine vit abl y lea ds t o an arbi tra ry calculation of how to divide a f inite number of dol

lars. Given that the fee in this case was determined on the basis of a percentage of the recovery , and given that all of the law firms involved intended that

each of their shares of the fee would be determined on a percentage basis, a percentage of the fee based on the value of the benefit that Mr. Cheatham conferred on Wolf f Ard is seems to me the proper application of quantum meruit to this case. Acco rdi ngly, I conclude

that Denty Cheatham is entitled to a specific percentage of the contingency fee. Furthermore, although the majority focuses on the value of Mr. Cheatham’s leg

al services in

the context of whether

his fee is “reasonable” within the parameters set forth in Disciplinary Rule 2-106, I think thatwe should also consider Disciplinary Rule 2-107, which sets forth the parameters for the division of fees among lawyers. After all, it is the division o f the single contingency fee between Mr. Cheatham and Wolff Ardis which is at issue. 2
Disciplinary

Rule 2-107 provides, in pertinent part , t hat the division of the fee should be made “in proportion to the services pe rformed and res

ponsibility

assumed by each [lawyer].” Ther e is no question but that, in the products liability litigation, Wolff Ardis performed substantially more services and undertook

more responsibility than did Mr. Cheatham. The divi sion of the fee sho

uld reflect th at inequali

ty. Inde ed, we may l

ook to Wolff Ardis’ a

pparent estimatio

n to assist us in determining how great the inequ ality was. After Mr. Ch

eatham withdrew

from the products

liability

c ase, Wolff Ardis associ ated Bass Ber

ry & Sims as lo

cal counsel, “to a

ssume th e role an d responsibilities”

previously u

ndertaken by

Mr. Cheatham. 3 Wolff Ardis agre ed to pay Bass Berry & Sims a fee of seven and one-half percent of the fee eventually

recovered by

Wolff Ardis. Bass Berry and Sims spent 850 hours on the products liability lawsuit. Accordi

ng to the trial co

urt, Denty Cheatham

spent “at least 1,500 hours in his representation of plaintiffs.” If Wolff Ardis considered 850 hours worth seven and one-half percent of their fee, I would conclude that fifteen percent is a reasonable esti

mation of the value

of the benefit co

nferred by

almost twice that ma

ny hours. 4

However, Mr. Cheatham’s services and responsibilities were greater in scope at the outset of this litigation than were those of Bass Berry & Sims when that firm was employed, because Mr.5 As noted by the trial court, Mr. Cheatham’s “contri butions during the early stages of t he case were v aluable and mea ningful.”

-3- Cheatham

initially held the primary attorney -client relationship. Indeed, the tri al court no ted that “[t]here was a unique relationship between Cheatham and plaintiffssince Mrs. Johnson workedfor him and clearly relied upo

n his counsel and guidance.” Every lawy er understands the value and signific ance of the attorney-client relationship and how that relationship fosters the successfu l conclusion of any course of legal representation. In my opinion, Mr. Cheatham’s share of the legal fee should be increased to some extent on the basis of his services andresponsibilities in fostering and maintaining this crucial relationship at the outset of the litigation. 5

In light of the fore

going, I wo

uld est ablish Mr. Che atham’s portion of the fee at twenty percent of the total fee, for a total fee to him of $284,544.51 (plus interest), with the remainder of the fee going to Wolff Ardis (subject to that firm’s agreement with Bass Berr y & Sims).

__________________________________ DAVID H. WELLES, SPECIAL JUDGE