### *The HONORABLE ANDREW W. BOGUE, United States District

Judge for the District of South Dakota, sitting by designation. ___________ No. 96-2208

___________ Joel Hyatt; Bill Brooks; and * Roger Crombie, doing business * as Hyatt Legal Services * * Plaintiff - Appellants* * Appeal from the United States v. * District Court for the Western * District of Missouri. Gary Robb, general partner; and * Anita Robb, general partner, * doing business as Robb and Robb * * Defendants - Appellees*

___________ Submitted: February 10, 1997 Filed: May 21, 1997

___________ Before BOWMAN and WOLLMAN, Circuit Judges, and BOGUE, District Judge. *

___________ BOGUE, Senior District Judge.
In 1988, eight year old Nicole Adams was admitted to Children’s Mercy Hospital in Kansas City Missouri for routine skin graft surgery. During the procedure, Nicole was given an excessive

### The Honorable John T. Maughmer, Chief U.S. Magistrate 1 

### Judge.
-2- amount of saline solu tion which ultimately caused her to suffer permanent blindness and brain d amage. On Nicole’s behalf, her mother, Julia Adams, filed suit to recover for Nicole’s injuries. At the completion of al l their litigation, Nicole and Julia Adams recovered roughly seven million dollars from the various defendants.
The present case arises out of the Adams litigation and is an action to recover the balance due pursuant to an alleged fee sharing agreemen t between plaintiffs, Hyatt Legal Services (Hyatt), and defendants, Anita an d Gary Robb (Robb). At the close of all evidence, Hyatt moved for judgment
as a mat ter of law. The trial court denied plaintiff’s motion an d 1 submitted the case to the jury, which returned a unanimous verdict in favo r of the Robbs. We affirm.

I.

Hyatt Leg al Services is a general practice law firm with offices in
severa l cities. Hyatt specializes in handling fairly routine matter s (e.g., wills, deeds, and uncontested divorce) on a volume basis fo r discounted fees. Hya tt is generally not equipped to handle sophisticated sig nificant plaintiff’s cases (e.g., medical malpractice and persona l injury). Occasionall y, however, clients come to Hyatt with sophisticated claims. To accommodate these clients, Hyatt has set up referral and fee sharin g arrangements with law firms which specialize in handlin g sophis ticated claims. Typically under these arrangements, if a clien t enters into a conting ent fee agreement with Hyatt, and Hyatt believes the client should be referred to a specialty firm, the

### Brooks’ letter to Robb states in relevant part: 2 

### When the [Hyatt] attorney determines that a case should be co-counseled, he or she will prepare a co-counsel memorandum . . . and send the memo, plus the file, to you. Once you have received the file please do the following:

. . . 2. If you determine, after speaking with the client and reviewing the file, not to take the case, then communicate this decision in writing to the client and send a copy . . . to me. . . .
3. If you decide to co-counsel the case, copy further information . . . onlyto the client and the [Hyatt attorney of record] and not to me. 4. At the conclusion of each case, prepare a final accounting. Send any checks for . . . [Hyatt’s] share of the fee . . . to the [attorney of record] along with a copy of the final accounting. Send a copy of the checks and the final accounting to me.

-3- client is so referred. If the specialty firm then accepts the case, i t shar es any contingent fee with Hyatt in accordance with the existin g referral and fee sharing agreement.

Defendant Robb & Robb is a law firm in Kansas City which specializes in handling sophisticated medical malpractice and personal injury cases. Hyatt al leges that Hyatt and Robb entered into a standing referra l arrangement for the h andling of those sophisticated claims in Robb’s area of expertise which were initially obtained by the Hyatt firm. In 1986, th e Robbs received a letter from Hyatt’s then managing partner, William Brooks , detailing the terms of this alleged standing agreement. Hyatt maintains 2 that this letter crea ted the fee sharing contract between Hyatt and Robb. According to the agre ement, Hyatt argues, once Hyatt referred a client to Robb, and Robb accepted representation,

### The Brooks letter also included the following provision: 3 

### “[Hyatt] and [Robb] will share the fee derived from all cases equally, i.e., 50/50.” Hyatt maintains this portion of the agreement was subsequently amended by the parties so that Hyatt’s share of the fee would not exceed 16.67 percent of the total recovery. -4- Hyatt’s performance was complete. Expenses were to be advanced by Robb, but if there was no recovery, Hyatt would reimbu rse Robb for 50 percent of the unrecouped expenses. In the event of a recovery on a referred case, however, Hyatt would then be entitled to a share of the contingent fee in
an amoun t not to exceed 16.67 percent of the total recovery. Althoug h 3 Robb never signed this “contract,” the parties operated under some referra l and fee s haring arrangement in 36 cases over a period of six years , apparently without incident. At trial, Hyatt argued the standing agreemen t largelygoverned all of its referrals to Robb. Robb, on the other hand, argued that before the Brooks letter, Robb had dealt exclusively wit h Jeanine Hassler, Hyatt’s regional partner at the time. Anita Rob b testified Hassler and Robb agreed that in medica l malpractice and personal injurycases the parties would negotiate referral fees on a case-by-case basis. Anita Robb further testified that Hassler told her to disregar d Brooks ’ letter. She also testified that Hyatt’s successive regiona l par tners, Ray Rousch and John Feely, also followed the case-by-case fe e
arra ngement originally entered into by Hassler and Robb. John Feel y testified that as reg ional partner, he had authority to negotiate fees on behalf of Hyatt and that on exceptional cases, Feely and Robb negotiated fees notwithstanding any alleged agreement.
In April 1988, Julia Adams and her sister Lexter Adams consulte d with Willi amCzarlinsky, a lawyer at one of Hyatt’s Kansas City offices, t o discuss certain issues relative to Nicole’s

### Julia Adams died before this case was brought to trial. 4


### -5- injuri es sustained at Children’s Mercy Hospital. Although there wa s
con flicting evidence as to the reason, it is undisputed that Czarlinsk y closed the Adams file after performing some legal work for Julia and her daugh ter. Several months later, Czarlinsky received an unsolicite d
se ttlement offer from trial attorney Kirk Goza, on behalf of th e individuals responsible for Nicole Adams’ injuries.

On Ma rch 7, 1989, shortly after he received the unsolicited offe r from Goza, Czarlinsky went to Julia Adams’ home intent on signing Ms. Adam s to a Hyatt contingent fee agreement. Mr. Czarlinsky testified at tria l that his meeting with Ms. Adams was civil and professional and that Ms

. Adams signed the cont ingent fee agreement without incident. Lexter Adams testified, however, t hat she was at Julia’s home when Czarlinsky arrived, and that Czarlinsky attempted to convince her sister to accept Goza’s offe r despite that Julia indicated the settlement offe r was woefully low and she
wo uld not settle the case. Lexter testified the encounter betwee n 4 Czarlinsky and Julia escalated into a heated argument over the settlement offer which ended in Julia firing Czarlinsky and Hyatt Legal Services and demanding that Czarlinsky leave her house immediately. John Feely was Hyatt’s regional part ner in charge of the Kansas City office s, and Czarlinsky’s superior at the time the meeting betwee n Czarlinsky and Julia Adams occurred. Czarlinsky testified Ms. Adams signe d the contingent fee agreement with Hyatt and that her malpractice claim was then summarily referred to Anita Robb for prosecution. Feely testified, however, that at a luncheon with the Robbs, he learned from Anita Robb tha t Czarlinskywas possibly prosecuting Ms. Adams’ case on his own, contrary to Hyatt

### -6-

policy. F eely also testified that when he learned of the altercatio n between Czarlinsky and Adams he questioned Czarl insky about the matter and Czarlinsky did not re ply, giving Feely the impression that Czarlinsky had indeed tr ied to force a settlement on Adams and was thrown out of he r house. Feely further testified he angrily ordered Czarlinsky to give the Adams file to Anita R obb. Both Feely and Anita Robb testified Feely told Robb that Hyatt wouldnot demand any part of a fee recovered in the Adams case. Rather, in lig ht of Czarlinsky’s actions at Ms. Adams house, Feely asked Robb to “bail” Hyatt out and take the Adams case outright.
In any event, Robb did take the Adams case and successfully rec overed
seve ral million dollars for their clients. Throughout the course o f settle ment proceedings with some of the defendants, Feely sent th e following letter to Robb on behalf of Hyatt: “Please be advised that on behalf of Hyatt Legal Services and attorney , Will Czarlinsky, there are no claims or liens for attorneys’ services or expenses pertaining t o the matter of Nicole Adams v. The Children’s Mercy Hospital . . . .” Hy att maintains this letter was sent at the request of Kirk G oza merely to facilitate settlement with the settling defendants

. Anita Robb testified, however, that she also requested the letter as a confirmation of Feely’s assurance to her that Hy att would not make a claim for any f ees recovered in the case. Similarly, Feely testified that h e believed Hyatt was either not retained by Ms. Adams or was fired withi n minutes and the letter was intended to show that Hyatt indeed had no liens
or claims for fees in the Adams case. Despite Feely’s assurances, Robb paid Hyatt nearly $400,000 in referral fees out of the contingent fe e earned from the settlement with the settling defendants - seemingly i n accordance

### The Adams case eventually went to trial against the 5 

### remaining non-settling defendants. Hyatt filed the instant action claiming an entitlement to approximately $800,000 more in contingency fees based on the judgment entered against those defendants. Hyatt called its motion a motion for directed verdict, but 6 

### we will treat it as a motion for judgment as a matter of law because a motion for judgment as a matter of law now encompasses all motions for a directed verdict or for judgment notwithstanding the verdict. Fed.R.Civ.P. 50 (commentary).
-7- with the supposed referral agreement between the parties. Anita Rob b 5 explained at trial, however, that Robb advanced these fees to prevent a suit ag ainst Robb by Hyatt in the future. Ms. Robb also testified tha t Robb had agreed to indemnify Ms. Adams in the ev ent that Hyatt made claims for fees against her or Nicole in the future andthat the payments were an attempt to avoid that situation. Moreover, she indicated these payments were also in part to cultivate the ongoing busin ess relationship that Robb and Hyatt enjoyed.

At the close of all the evidence, Hyatt moved for a judgment as a matter of law on grounds that the evidence established the existence o f 6 a unilateral contract between the parties which Hyatt had fully performed, and the only contractual breach occurred in the non-payment by Robb , thereby entitling Hyatt to judgment as a matter of law. Hyatt’s motion wa s denied.

AlthoughHyatt asserts several claims of error on appeal, i t maintains the trial c ourt made only one fundamental error in the handling of the case. Specifically, that alleged error was the failure of the tria l court to recognize the contract between Hyatt and Robb as a unilatera l contrac t and grant Hyatt’s motion for judgment as a matter of law. Al l other errors, Hyatt argues, are

### -8-

natura l consequences which flow from the improper categorization of th e status of the parties in the first instance.

II.

We review the trial court’s denial of a motion for judgment as a matter of law de novo using the same standards as the trial court. Smith v. World Ins. Co. , 38 F.3d 1456, 1460 (8th Cir. 1994)(citations omitted). A motion for judgment as a matter of law presents a legal question to the trial court and this court on review: whether th ere is sufficient evidence to s upport a jury verdict. Id . We view the evidence in the light mos t favo rable to the prevailing party and must not engage in weighing o r evalua tion of the evidence or consider questions of credibility. Id

. Judgment as a matter of law is appropriate only when all of the evidence points one way and is susceptible of no reasonable inference sustaining th e position of the non-moving party. Id

.

III.

We do not agree that, as a matter of law, the evidence establishe d there was a unilateral contract between the parties which Hyatt ha d performed. A unilateral contract, under Missouri law, is “a contract in which p erformance is based on the wish, will, or pleasure of one of th e par ties.” Klamen v. Genuine Parts Co. , 848 S.W.2d 38, 40 (Mo. App

. 1993)( citation omitted). “The ‘classic’ unilateral contract is one i n which one party promises to pay another party for services or a produc t which the other party may supply at his discretion.” Id

.
A unilate ral contract, by its very nature, is one where only one of the parties makes a promise; and the consideration for such a p romise is not another promise, but performance. . . .

### -9- A unilate ral contract becomes enforceable upon performance, and the promisee is then entitled to his full bargain. Garrityv. A.I. Processors , 850 S.W.2d 413, 417 (Mo. App. 1993)(citin g Garret v. American Family Mutual Ins. Co. , 520 S .W.2d 102 (Mo. App. 1974).

Hyatt mai ntains the evidence was undisputed that Hyatt and Robb had
a “sta nding agreement” (evidenced by the Brooks letter) whereby Rob b offered a promise in exchange for performance by Hyatt. Specifically , Hyatt argues, Robb offered to pay Hyatt 16.67 percent of any contingent fe e derived from any acce ptable case referred by Hyatt (the promise by Robb). Hyatt argues it then accepted the offer and made the contract enforceable by referring the Adam s case to Robb (the performance by Hyatt). Assuming the parties did indeed enter into the standing a greement alleged by Hyatt, Hyatt nevertheless distorts the terms of that agreement. Hyatt’s unilateral contract theory, presumes an offer by Robb and an acceptance by performance at the “wish, will, or pleasure” of Hyatt. The Court, however, does not agree with Hyatt’s char acterization of the Brooks letter. As the language of Mr. Brooks’ letter suggests, any referral by Hyatt i s an offer to co-counsel on the case being referred. Once Hyat t determine s a case is appropriate for referral and so refers the case t o Robb for possible co- counseling, the parties have not, as Hyatt contends, created an enforceable contract. Rather, Robb in its discretion can eithe r accept or reject the offer. Only in the event that Robb accepts Hyatt’s off er to co-counsel, is Robb then bound to share a portion of an y conting ent fee recovered in the case with Hyatt. A review of the tria l transcr ipt reveals no testimony supporting Hyatt’s position that Rob b approached Hyatt with an offer to share fees if Hyatt would only refe r personal injury or me dical malpractice cases to Robb. Moreover, although the Brooks letter is

### -10-

some evidence of a referral agreement between the parties, it is no t dispositive of the is sue, and it does not evidence a unilateral contract.

As the trial court noted, Robb does not deny that the parties wer e operating under some form of referral and fee sharing agreement. Nor is there much dispute that the Adams case was referred to Robb by Hyatt. Wha t was in dispute at the close of all the evidence were the terms upon which the Adams case was referred to Robb. Both sides actively and thoroughly lit igated their cases at trial. Hyatt put on evidence to support it s theo rythat the Adams case was acquired and referred to Robb withou t incide nt pursuant to an existing unilateral agreement which Hyatt full y performed and Robb partially performed by remitting 16.67 percent of the settlement fees to Hy att. Robb, on the other hand, presented evidence to support its theory th at fees on referred cases were negotiated on a caseby-case basis notwith standing Mr. Brooks’ 1986 letter to Robb. Robb also pres ented evidence that Hyatt was fired by the client and that Hyat t thereafter asked Robb to “bail” Hyatt out. Robb presented evidence that Hyatt intended to claim no fees from the Adams case and that the partial payment to Hyatt was merely to protect Ms. Adams and Robb from potential suit, and to preserve the ongoing business relationship between Hyatt and Robb.

IV. Giventhe conflicting evidence in this case we cannot say, as a matter of law, that a ll of the evidence points in favor of Hyatt’s theory of the case and is susceptible of no reasonable inference sustaining Robb’ s position. Smith , 38 F.3d at 1460. The existence and terms of any referral and fee sharing agreement were highly contested issues properly determined by the jury. Judgment

### -11-

as a matter of law was properly denied upon Hyatt’s position that it had substantially performed its part of a unilateral contract and was therefor e entitled to the full benefit of its bargain.
We have reviewed Hyatt’s remaining a sserted points of error and find theyare either meritless, or moot insofar as they are premised upon the assumption of a valid enforceable unilateral contract. Affirmed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.