| Rowley, Forrest, O'Donnell & Beaumont, P.C. v Beechnut NutritionCorp. |
| 2008 NY Slip Op 07818 [55 AD3d 982] |
| October 16, 2008 |
| Appellate Division, Third Department |
| Rowley, Forrest, O'Donnell & Beaumont, P.C., Appellant, v BeechnutNutrition Corporation, Respondent. (And a Related Proceeding.) |
—[*1] Hinman, Howard & Kattell, L.L.P., Binghamton (Ellen Leary Coccoma of counsel), forrespondent.
Stein, J. Appeals (1) from an order of the Supreme Court (Connolly, J.), entered September 5,2007 in Albany County, which granted defendant's motion to dismiss the complaint, (2) from an orderof said court, entered December 20, 2007 in Albany County, which, upon reargument, among otherthings, adhered to its prior decision, and (3) from a judgment of said court (Sise, J.), entered December14, 2007 in Montgomery County, which dismissed petitioner's application, in a proceeding pursuant toJudiciary Law § 475, to enforce a lien.
Defendant hired Integrated Property Services, Ltd. to obtain a reduction in its property taxassessments and authorized Integrated to hire counsel for that purpose. Integrated then hired plaintiff toinitiate tax certiorari proceedings on defendant's behalf. Initially, plaintiff and defendant entered into anagreement providing that plaintiff would be paid on an hourly basis. However, that agreement wassubsequently replaced by a contingency fee agreement between plaintiff and Integrated, wherebyplaintiff's fee would be based, among other things, on the amount by which defendant's property taxeswere reduced. Pursuant to a letter from Integrated to plaintiff accompanying the new agreement, all billsfor legal services were to be directed to [*2]Integrated and not todefendant.
Plaintiff was discharged by defendant after some, but not all, of the legal work was completed andplaintiff transferred its file to the substituted attorney selected by defendant. When no legal fees werepaid to plaintiff at the conclusion of the tax certiorari proceedings wherein defendant was awarded areduction in its property taxes, plaintiff commenced an action to recover for legal services rendered.Defendant moved to dismiss claiming, among other things, that plaintiff failed to state a cause of action.By order entered September 5, 2007, Supreme Court (Connolly, J.) granted the motion. Plaintiff thenmoved to reargue. By order entered December 20, 2007, Supreme Court granted the motion toreargue, but adhered to its original decision dismissing the complaint. Plaintiff appeals from both orders.
Plaintiff also commenced a proceeding in Montgomery County, seeking to enforce a charging lienagainst defendant pursuant to Judiciary Law § 475. In a judgment entered December 14, 2007,Supreme Court (Sise, J.) dismissed the petition on the basis that recovery was barred by the doctrineof res judicata. Plaintiff also appeals from this judgment.
We first reject plaintiff's contention that Supreme Court erroneously dismissed its quantum meruitclaim. To prevail on a quantum meruit cause of action, a plaintiff must establish, among other things, anexpectation of compensation (see Clark v Torian, 214 AD2d 938, 938 [1995]; Precision Founds. v Ives, 4 AD3d 589,591-592 [2004]). Here, the documentary evidence established that plaintiff did not have an expectationof payment from defendant. Although plaintiff and defendant initially entered into an hourly feeagreement in July 2000, that agreement was superceded in September 2000 by a contingency feeagreement between plaintiff and Integrated which specifically provided that plaintiff would look toIntegrated, not to defendant, for payment. In fact, the hourly fee agreement expressly indicates that theremaining terms of defendant's agreement with Integrated were still being negotiated, suggesting that theinitial agreement between plaintiff and defendant was understood to be transitional in nature.
Furthermore, although the terms of a cancelled retainer agreement are not the only evidence of theintent of the parties, they may be "taken into consideration as a guide for ascertaining quantum meruit"(Matter of Tillman, 259 NY 133, 135 [1932]). Thus, Supreme Court's reliance on theSeptember 2000 agreement was entirely proper, as there is no record evidence that demonstrates, incontradiction of the September 2000 agreement, that plaintiff entered into the representation expectingpayment directly from defendant. Therefore, even construing, as we must, "the complaint liberally inplaintiff's favor [and] accept[ing] the facts alleged as true" (Quail Ridge Assoc. v ChemicalBank, 162 AD2d 917, 918 [1990], lv dismissed 76 NY2d 936 [1990]; seeCPLR 3211; Morone v Morone, 50 NY2d 481, 484 [1980]; Carp v Marcus, 112AD2d 546, 546 [1985]), except as to those facts which are "flatly contradicted by documentaryevidence" (Quail Ridge Assoc. v Chemical Bank, 162 AD2d at 918), we conclude thatSupreme Court correctly found a lack of privity between the parties and dismissed the action.
We similarly find unavailing plaintiff's argument that its petition seeking a charging lien should nothave been dismissed because the issue of its charging lien was not before Supreme Court in the earlieraction to recover legal fees. It is well settled that "[r]es judicata will bar litigation of a claim that waseither raised, or could have been raised, in a prior action provided that the party to be barred had a fulland fair opportunity to litigate any cause of action arising out of the same transaction and the priordisposition was a final judgment on the merits" (Kinsman v [*3]Turetsky, 21 AD3d1246, 1246 [2005], lv denied 6 NY3d 702 [2005]; see Lanuto v Constantine,215 AD2d 946, 947 [1995]; see alsoMcDonald v Lengel, 2 AD3d 1182, 1183 [2003]). Here, plaintiff could have sought acharging lien in the action. Therefore, the effect of dismissal of that action was to bar "all other claimsarising out of the same transaction or series of transactions . . . , even if based upondifferent theories or if seeking a different remedy" (O'Brien v City of Syracuse, 54 NY2d 353,357 [1981]).
We have considered the parties' remaining contentions and find them to be either academic orunpersuasive.
Mercure, J.P., Spain, Carpinello and Malone Jr., JJ., concur. Ordered that the orders andjudgment are affirmed, with costs.