This Sixth District opinion today brings to mind the old saw about winning the battle, but not the war. Or the one about not counting your chickens before they’re hatched. It’s a tossup.
Like many of Legal Pad’s favorite opinions, this one is about attorneys fees. We won’t bore you with the details; it’s enough to say the underlying contract dispute was between attorney Michael Desmarais and his former clients, who had retained him for a probate fight against their deceased dad’s very recent wife. The part we liked best came at the end, when Justice Conrad Rushing added a war-based analogy to drive home why the court was siding with Desmarais.
After a probate court initially awarded Desmarais more than $300,000, former clients George Drummond, Rebecca Drummond and Jessie Marion appealed to the Sixth District — which reversed in 2005, saying Desmarais’ request had violated some rule about cross-complaints. That appellate ruling also specified, though, that Desmarais was free to file the same claims in a civil suit George and Rebecca Drummond and Marion had already started against him.
For that bit of procedural victory, the Drummond children argued they were entitled to attorneys fees of about $200,000.
Not so fast, said the Sixth District. To collect that, it would have to be said they had “prevailed” in the contract dispute.
But, Justice Rushing noted, “Litigation on the contract in the probate department ended solely because it should have been brought in another department of the same court. … The dismissal of his petition in the probate matter did not defeat his contract claims; it merely deflected or forestalled them.”
And for those who may have missed his point, he added this flourish: “Appellants no more ‘prevailed’ than does a fleeing army that outruns a pursuing one. Living to fight another day may be a kind of success, and surely it is better than defeat. But as long as the war goes on, neither side can be said to have prevailed.”
The court notes as an aside that, after changing to the correct courtroom, Desmarais won $157,000 for breach of contract. That judgment, unsurprisingly, also has been appealed.
— Pam Smith