*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.

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amount of saline solution which ultimately caused her to suffer permanent

blindness and brain damage. On Nicole’s behalf, her mother, Julia Adams,

filed suit to recover for Nicole’s injuries. At the completion of all

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 agreement

between plaintiffs, Hyatt Legal Services (Hyatt), and defendants, Anita and

Gary Robb (Robb). At the close of all evidence, Hyatt moved for judgment

as a matter of law. The trial court denied plaintiff’s motion and

1

submitted the case to the jury, which returned a unanimous verdict in favor

of the Robbs. We affirm.

I.

Hyatt Legal Services is a general practice law firm with offices in

several cities. Hyatt specializes in handling fairly routine matters

(e.g., wills, deeds, and uncontested divorce) on a volume basis for

discounted fees. Hyatt is generally not equipped to handle sophisticated

significant plaintiff’s cases (e.g., medical malpractice and personal

injury). Occasionally, however, clients come to Hyatt with sophisticated

claims. To accommodate these clients, Hyatt has set up referral and fee

sharing arrangements with law firms which specialize in handling

sophisticated claims. Typically under these arrangements, if a client

enters into a contingent 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 . . . only to 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.

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client is so referred. If the specialty firm then accepts the case, it

shares any contingent fee with Hyatt in accordance with the existing

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 alleges that Hyatt and Robb entered into a standing referral

arrangement for the handling of those sophisticated claims in Robb’s area

of expertise which were initially obtained by the Hyatt firm. In 1986, the

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 created the fee sharing contract between Hyatt and Robb.

According to the agreement, 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. 

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Hyatt’s performance was complete. Expenses were to be advanced by Robb,

but if there was no recovery, Hyatt would reimburse 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 amount not to exceed 16.67 percent of the total recovery. Although

3

Robb never signed this “contract,” the parties operated under some referral

and fee sharing arrangement in 36 cases over a period of six years,

apparently without incident. At trial, Hyatt argued the standing agreement

largely governed all of its referrals to Robb. Robb, on the other hand,

argued that before the Brooks letter, Robb had dealt exclusively with

Jeanine Hassler, Hyatt’s regional partner at the time. Anita Robb

testified Hassler and Robb agreed that in medical malpractice and personal

injury cases the parties would negotiate referral fees on a case-by-case

basis. Anita Robb further testified that Hassler told her to disregard

Brooks’ letter. She also testified that Hyatt’s successive regional

partners, Ray Rousch and John Feely, also followed the case-by-case fee

arrangement originally entered into by Hassler and Robb. John Feely

testified that as regional 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 consulted with

William Czarlinsky, a lawyer at one of Hyatt’s Kansas City offices, to

discuss certain issues relative to Nicole’s
Julia Adams died before this case was brought to trial. 4

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injuries sustained at Children’s Mercy Hospital. Although there was

conflicting evidence as to the reason, it is undisputed that Czarlinsky

closed the Adams file after performing some legal work for Julia and her

daughter. Several months later, Czarlinsky received an unsolicited

settlement offer from trial attorney Kirk Goza, on behalf of the

individuals responsible for Nicole Adams’ injuries.

On March 7, 1989, shortly after he received the unsolicited offer

from Goza, Czarlinsky went to Julia Adams’ home intent on signing Ms. Adams

to a Hyatt contingent fee agreement. Mr. Czarlinsky testified at trial

that his meeting with Ms. Adams was civil and professional and that Ms.

Adams signed the contingent fee agreement without incident. Lexter Adams

testified, however, that she was at Julia’s home when Czarlinsky arrived,

and that Czarlinsky attempted to convince her sister to accept Goza’s offer

despite that Julia indicated the settlement offer was woefully low and she

would not settle the case. Lexter testified the encounter between

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 partner in charge of the Kansas City

offices, and Czarlinsky’s superior at the time the meeting between

Czarlinsky and Julia Adams occurred. Czarlinsky testified Ms. Adams signed

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 that

Czarlinsky was possibly prosecuting Ms. Adams’ case on his own, contrary

to Hyatt
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policy. Feely also testified that when he learned of the altercation

between Czarlinsky and Adams he questioned Czarlinsky about the matter and

Czarlinsky did not reply, giving Feely the impression that Czarlinsky had

indeed tried to force a settlement on Adams and was thrown out of her

house. Feely further testified he angrily ordered Czarlinsky to give the

Adams file to Anita Robb. Both Feely and Anita Robb testified Feely told

Robb that Hyatt would not demand any part of a fee recovered in the Adams

case. Rather, in light 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 recovered

several million dollars for their clients. Throughout the course of

settlement proceedings with some of the defendants, Feely sent the

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 to the matter of Nicole Adams v. The Children’s Mercy

Hospital . . . .” Hyatt maintains this letter was sent at the request of

Kirk Goza 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 Hyatt would not make a claim

for any fees recovered in the case. Similarly, Feely testified that he

believed Hyatt was either not retained by Ms. Adams or was fired within

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 fee

earned from the settlement with the settling defendants - seemingly in

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 Robb

5

explained at trial, however, that Robb advanced these fees to prevent a

suit against Robb by Hyatt in the future. Ms. Robb also testified that

Robb had agreed to indemnify Ms. Adams in the event that Hyatt made claims

for fees against her or Nicole in the future and that the payments were an

attempt to avoid that situation. Moreover, she indicated these payments

were also in part to cultivate the ongoing business 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 of

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 was

denied.

Although Hyatt asserts several claims of error on appeal, it

maintains the trial court made only one fundamental error in the handling

of the case. Specifically, that alleged error was the failure of the trial

court to recognize the contract between Hyatt and Robb as a unilateral

contract and grant Hyatt’s motion for judgment as a matter of law. All

other errors, Hyatt argues, are
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natural consequences which flow from the improper categorization of the

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 there is sufficient evidence

to support a jury verdict. Id. We view the evidence in the light most

favorable to the prevailing party and must not engage in weighing or

evaluation 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 the

position of the non-moving party. Id.

III.

We do not agree that, as a matter of law, the evidence established

there was a unilateral contract between the parties which Hyatt had

performed. A unilateral contract, under Missouri law, is “a contract in

which performance is based on the wish, will, or pleasure of one of the

parties.” Klamen v. Genuine Parts Co., 848 S.W.2d 38, 40 (Mo. App.

1993)(citation omitted). “The ‘classic’ unilateral contract is one in

which one party promises to pay another party for services or a product

which the other party may supply at his discretion.” Id.

 

A unilateral contract, by its very nature, is one where only one of

the parties makes a promise; and the consideration for such a promise

is not another promise, but performance. . . . 
-9-

A unilateral contract becomes enforceable upon performance, and the

promisee is then entitled to his full bargain.

Garrity v. A.I. Processors, 850 S.W.2d 413, 417 (Mo. App. 1993)(citing

Garret v. American Family Mutual Ins. Co., 520 S.W.2d 102 (Mo. App. 1974).

Hyatt maintains the evidence was undisputed that Hyatt and Robb had

a “standing agreement” (evidenced by the Brooks letter) whereby Robb

offered a promise in exchange for performance by Hyatt. Specifically,

Hyatt argues, Robb offered to pay Hyatt 16.67 percent of any contingent fee

derived from any acceptable case referred by Hyatt (the promise by Robb).

Hyatt argues it then accepted the offer and made the contract enforceable

by referring the Adams case to Robb (the performance by Hyatt). Assuming

the parties did indeed enter into the standing agreement 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 characterization of the Brooks

letter. As the language of Mr. Brooks’ letter suggests, any referral by

Hyatt is an offer to co-counsel on the case being referred. Once Hyatt

determines a case is appropriate for referral and so refers the case to

Robb for possible co-counseling, the parties have not, as Hyatt contends,

created an enforceable contract. Rather, Robb in its discretion can either

accept or reject the offer. Only in the event that Robb accepts Hyatt’s

offer to co-counsel, is Robb then bound to share a portion of any

contingent fee recovered in the case with Hyatt. A review of the trial

transcript reveals no testimony supporting Hyatt’s position that Robb

approached Hyatt with an offer to share fees if Hyatt would only refer

personal injury or medical malpractice cases to Robb. Moreover, although

the Brooks letter is
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some evidence of a referral agreement between the parties, it is not

dispositive of the issue, and it does not evidence a unilateral contract.

As the trial court noted, Robb does not deny that the parties were

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. What

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

litigated their cases at trial. Hyatt put on evidence to support its

theory that the Adams case was acquired and referred to Robb without

incident pursuant to an existing unilateral agreement which Hyatt fully

performed and Robb partially performed by remitting 16.67 percent of the

settlement fees to Hyatt. Robb, on the other hand, presented evidence to

support its theory that fees on referred cases were negotiated on a caseby-case basis notwithstanding Mr. Brooks’ 1986 letter to Robb. Robb also

presented evidence that Hyatt was fired by the client and that Hyatt

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.

Given the conflicting evidence in this case we cannot say, as a

matter of law, that all 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
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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 therefore

entitled to the full benefit of its bargain. 

We have reviewed Hyatt’s remaining asserted points of error and find

they are 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.