*1 J., MCCOY, opinion. dissents without IB, September
DELIVERED: CELMER, Appellant
Elizabeth W. McGARRY, Appellee.
Charles
No. 05-10-01133-CV. Texas, Appeals
Court
Dallas.
Aug. 2013.
Rehearing Overruled Nov. *4 Thomas,
Bruсe K. Law Office of Bruce Thomas, Dallas, TX, Appellants. K. Chandler, P.C., Linz, Michael F. Linz & Chandler, Dallas, TX, Appel- Frank D. lees. O’NEILL,
Before Justices
FITZGERALD, and LANG-MIERS.
OPINION
Opinion
Justice LANG-MIERS.
dispute
This is a
between an attor-
when
ney
began
and his
The ease
client.
Pipeline Corporation,
Elizabeth W. Celmer’s former
appellant
shares of
stock
funds
interpleaded
registry
into
spouse
Inc.
Norgasco,
the trial
after the
court
conclusion
McGarry represented Celmer in both
litigation. Appellee
divorce
their
Charles
II,
I and
as will be ex-
Bufkin
Bufkin
McGarry,
represented
who
plained
more detail below. Although
litigation,
divorce
asserted
claims for
Celmer had entered into a
quantum
breach
contract
meruit
contingency
written
fee contract before
trial,
Following a
against
Celmer.
I, MeGarry’s claims were not based
Buflcin
a judgment
the court
for McGar-
rendered
contract,
on this
but rather on a series of
after
ry
suggested
remittitur to reduce
emails he later exchanged with Celmer.
jury.
the actual damages awarded
contract,
The written
dat-
5, 2001,
ed December
provided, “In com-
Background
I.
pensation
services,
for Attorney’s
Client
spouse
Before Celmer and her former
agrees
pay Attorney
equal
a fee
Bufkin, Jr.,
married,
O.
they
Edward
were
(a)
(45%)
greater
percent
of:
forty five
antenuptial
entered into an
contract
*5
in
Norgasco
Client’s interest
the
stock or
they
to their
agreed
rights
which
relative
(b)
thereof;
the
or
proceeds
settlement
or
property.
Bufkin,
See
259
Bufkin
(50%)
fifty percent
of Client’s interest
in
(Tex.App.-Dallas
Norgasco
the
stock
the proceeds
or
or
).1
denied)(Bufkin II
con
pet.
Under the
thereof,
settlement
if any filing is
in
made
tract, all property
marriage
owned before
the
in
Supreme Court of Texas
this case.”
acquired
the
during
years
first five
of
parties
contends
the
later
marriage
respective
was the
spouse’s sepa
agreed by e-mail that his contingency fee
property.
pro
rate
Id.
contract also
no longer
would
be limited to Celmer’s
community
vided that “a
estate
property
stock; instead,
in the Norgasco
interest
he
will accumulate from and after
date
would be entitled to
50% Celmer’s total
years
which is five
from the
of the
date
recovery, plus
hour
per
for his
$200
ser-
marriage
interpret
Id.
parties.”
As
vices,
expenses.
plus
The difference is
by the El
of Appeals
ed
Paso Court
and
significant because at the second trial of
previous appeals,
this Court in
the contract
divorce,
jury’s findings
Celmer’s
re-
in
provided
increases
the value of
a judgment awarding
sulted in
nothing to
separate property, as well as
accu
income
Celmer for her interest
in the mulating on separate property,
be
stock,
$367,095.622
awarding
but
her
for
community property
par
come
after the
in
her interest
other assets. This
id.;
ties’ fifth wedding anniversary. See
interpleaded by
amount
Celmer’s former
08-02-00025-CV,
v. Bufkin, No.
Bufkin
spouse in this action.
(Tex.App.-El
ment of support any breach of contract to dence of sup- was insufficient to evidence judgment. court’s trial we reverse finding, port judg- render part judgment court’s 1. Facts McGarry. ment par To a contract between the establish contingency plus fee ties fоr a 50% $200 II. Issues services, plus expenses, for his per hour First, five she presents issues.3 he McGarry relies on a series e-mails en- is no evidence contends there May, 2004. exchanged which contingency forceable pre after exchange This occurred recovery, total for 50% her provided arising first out of appeal in her vailed services, hour for plus per I, generally litigation. divorce See Buflcin any expenses, and no evidence plus McGarry represented WL the trial of contract breach I, terms of Celmer Buflcin Second, contends judgment. court’s parties’ 2001 written the alternative that (the Al Agreement). First against great breach contract money not recover though Celmer did of the evidence. weight preponderance court of appeal, as a of the first result Third, the trial court’s she contends that appeals interpreted prenuptial contract damages un- judgment awards excessive spouse her to allow between Celmer and She evidence. also ar- supported by the for certain increases to assert claim *6 fees any should forfeit gues that stock. Id. at *5- Norgasco in value in the fiduciary of his breaches owed because II, 6; 259 S.W.3d at see also Bufkin Fourth, duty. argues she that (describing ruling). El Paso court’s her for dismissing in claim court erred “for a El court remanded the case Paso fifth, And she con- tortious interference. not just right property division” of its the trial court abused discre- tends that only Norgasco but also the entire stock petition by striking her third amended tion community estate. fiduciary duty.
and claim for breach of Agreement a. First Agreement provided that “[i]f The First Analysis III. new obtaining in Attorney is successful THE A. OF EVI- SUFFICIENCY in trial, Attorney represent will not Client DENCE court, will assist the trial but Client to issue, Any counsel.”4 fee obtaining contends there new trial In her first however, be due contingen- McGarry, is no evidence of enforceable any for recovery paid which for if Celmer received cy provided 50% after per her stock recovery, hour interest plus total $200 services, Agreement ex- expenses. the new trial. The First plus for expenses. The evidence showed although in his he used to offset states brief that cross-appeal alleges "perfected that the paid $1000 to addressing on trial court erred issue pay- not make further provision, but did this remittitur, granted he is not which it ments, finding re- supporting jury's judgment.” asking change Court to Question this sponse to 1 that breached challenge Agreement. Celmer does not First Agreement provided 4. The First that Cel- finding appeal. this responsible payment expenses, mer was pay per month be and that she was to to stated, contingent you shall time I 45% pressly proceeds “[n]o owe recovery Attorney if no is payable winning case for the appeal plus the expenses you received Client this matter.” have incurred so far listed your I invoice. believe it fair very Agreement b. Claimed Second for you to receive additional 5% McGarry relies on a of four e- series proceeds represent us at the divorce agreement. to establish a mails second court, you received, as would have if He that this contends representing me the Supreme Court. at him to 50% of total entitles re- Within the hour on day, the same plus covery per for his ser- hour $200.00 (PX6): McGarry replied vices, expenses. were plus These e-mails exchanged in after the El Paso Court right You’re we need to work some- new trial Appeals remanded the case for I thing out.... took another our look at give opportunity Celmer the to prove agreement, existing you right are community her claims to the See estate. it not contemplate did repre- me I, 2003WL *6. at further senting you in the trial court. Bufkin free you are to choose your attorney So 14, 2004, May On in Plaintiffs Exhibit I point. believe I know the issue (PX) 5, Celmer wrote5 the of the e- first vеry well involved and can as prove it mails on which he relies: well anyone. contract, In to our I original reference existing agreement Our went to 50% required believe addendum is us case was when the filed in supreme sign to clarify the situation with the court. I do believe fair right it is of our progress case and cost involved. you percentage. to seek additional original you In state contract fact, won, the appeal since has been it will not a trial. you represent me in unethical probably any lawyer changed. However has You want ask for a percentage for the trial. new yourself consultant do hourly Só I deferred rate is the *7 think attorney divorce associated board only option you. fair for be This would necessary with Court 330. That is my true both for for additional work and grounds, politically for us to cover all lawyer. any new law. existing you contract also called further, need to We address the out-of-pocket to cover expenses. costs to our proceed additional with case However, you were never do able to split to be among have us 50%/50% court, that. In the trial there will be top of our portion proceeds re- many expenses thousands dollars in by us. ceived We both have the same expert incurred for various witnesses. at steak the case. We should limit shar- So, you unless have the avail- finances else, ing proceeds anyone with un- able, have to you will either find some- absolutely is necessary less like a di- it you, get one to loan to tome attorney vorce with practicing well finance it. 330 court.
According my understanding to you Either have to this way, realize at original point, going situation contract at this are less you up to end with record guage. quote 5. The shows that Celmer a native of her is We e-mails verbatim. English and that Poland is not her first lan- asked, to me.” 50%, portion and new lose than She then because than fees, is about? are we your “What this all What would come out hourly discussing over and over and over.” She 50%.... explained, “Joe Amberson came with the over let me know Please think this as law- highest recommendations a [trial] you proceed. probably how to You want court are. yer the 330 divorce where we make a deci- couple have a of weeks to good enough That is for me. I believe this sion. win, win, three only a win situation for is And, day, replied later the same concluded, “I to happy She will be of us.” 7): (PX you another what- sign contract fit you see OK draw the you my work to case ever will decide do you Agreement have based on what said. you me at the accordingly for us can bill up I 50% Agreement you and owe have per rate of hour. Your fees $200.00 point expenses. plus to paid pro- after final distribution of to nothing nothing. leaves 50% will as Joe Amberson’s too.” ceeds get paid anything. haveWe to win to e-mails, McGarry In addition to hourly you and Mr. What is the testimony his to relies on own attorney had recom- H [an position parties his .... mended] to agreed expand attorney main You would be a assets, all include not right? stock: you money make It makes sense so if I’m all of going And finance in this I am not anybody not else case. experts these appraise these all of you have in a contract why sure said deal, then the 50 pieces property, you represent me in her it percent per- I told was 50 —and trial.... gone cent and not because had July another Celmer retained Supreme percent Court. But the 50 Amberson, attorney, represent her Joe going apply everything have written fee On pursuant agreement. to a finance, because, know, you why would I 9, 2004, July the fourth e- Celmer wrote know, recovery you of these out (PX 8): mail on which relies pieces I property other if anything I did not miss understood added). (Emphasis interest them. about lead counsel. *8 He also testified: much you very I that believe would Q. Okay. that more You said it was strategy involved a co-counsel in as likely than that not a not there was any research of issues addressed agreement. second written suggested. as Joe auditor Amberson you You that make want to may decide my A. I think that’s own con- personal pleadings you write as documents clusion, I e-mails to that —because sent up you choose our benefit. It is no, you your saying, client [Celmer] part he what to decide would be know, just exchanged we have e- might for each you play. of agreement way. mails and our made know, And, entirely possible. continued as- You that’s message with Celmer’s only certainly, be consult- that’s the evidence of surances that should his strategy agreement ed about and on I have been able to locate decisions case, getting your role “as more after client’s records. you own in the [have] Additionally, McGarry relies on my So at this time you understanding Plaintiffs Exhibit an e-mail dated have all proposals calculated your 2, 2009, years alleged March five after the memory since no letters can be located. contends, agreement. McGarry I have a photographic memory gener- in unequivocably e-mail states “[t]hat al, but I would be hesitant to recall they signed had a second fee anything especially any in nuances if withdrew, when Amberson and that important this matter lot involving a of get was to contingent fee money. assets, fifty percent plus hourly I your memory doubt perfect that is hour, per plus expenses.” fee of his $200 cases, why sign papers we in such so e-mail, in part, this writes there is no misunderstanding. You let- Charles second written get would not involved without such you taking ter related to agreements. attorney as a divorce after we discussed appreciate I your your checking you were to be when involved and these. records We need these duplication Jo withdrew for [Amberson] ASAP! attorney purposes: hour is per state, agreed we have you plus what Celmer contends this e-mail in shows that trial, by you my cost incurred related to she had incorrect recollection that cost paid experts if the was not she and entered into sec- any there would not be nor trial assets ond written in 2004. em- She nor to win loose.... phasizes despite “photo- her claim of a graphic memory,” clearly stated Jo Amberson pay did not care to she “would be hesitant anything to recall anything why you stepped so that is ... important involving matter a lot the huge portion since 50% money,” and asks McGarry to find the asset was to be awarded you agreement. actual written argues She appeal it was over a million dollar expan- that the e-mail does not confirm an case. sion of 50% from her interest You had same steak or some at then Norgasco recovery, stock her entire in my that time case. pointing to reference to “the asset” in I Cost listed on the have billings singular. And Celmer testified at trial You being received. have confirmed that the never parties agreed per- 26K hard about cost. centage other than 50% portion of her pres- We need have theses documents increase value of the stock ent I can before have a feel for the Agreement. the First I signed numbers. have instru- both your c. Second you, ments office or it to Results Divorce Trial faxed way. either McGarry remained involved in the case are 2 These instruments have ever we time during represented Amberson *9 related signed my you being case and Celmer. After as Amberson withdrew paid, you your would base calcula- 2005, McGarry in July Celmer’s counsel tion on: acted as lead counsel and tried the case Appellate 1: jury. findings before a The made 2. of my Rate at- $200/HR divorce regarding specific value of in assets torney cluding Norgasco stock. See Bufkin II, 3. Hаrd cost. 26K 259 at 349. But of the S.W.3d because 700 (Tex.1972). 554, The of the S.W.2d 554-56 regarding the value 489 findings
jury’s stock, awarded explained, transaction Norgasco “[a] court Scott in the stock parties amount meant it to be complete when divorce decree. interpre a matter of complete. It is mere other, a expressions of to each tation their in her represented Celmer
McGarry also Id. 1 (quoting of fact.” question ex-spouse’s appeal of the 2006 decree Corbin (1963)). appeal may concluded this We 87-91 Parties Court. Contracts prejudgment of that the trial court’s award upon of terms of a con agree some $124,659.12 to of in the amount interest tract, to made portions and leave other be 347, 350, Id. at improper. Celmer was obligations may Binding later. Id. at 555. of the the remainder 356-58. We affirmed if even arise an informal Id. at judgment. 358. court’s up parties intended draw a more of 2. Review Standard agreement but did so. formal written never Am.Jur. 2D (quoting Id. at 556 17 Con appellant legal attacks the suf- When an 28). § may But a contract tracts before ficiency support of evidence ad- enforced, agree parties did must finding on an issue on which she verse proof, Co., must not have the burden of Stanley material terms. T.O. Boot sup- there is no evidence to demonstrate 218, Paso, Inc. v. Bank El 847 S.W.2d of finding. See v. port the adverse Croucher (Tex.1992). parties 221 must agree (Tex.1983). 55, Croueher, 58 660 S.W.2d sense, at the thing, the same the same sufficiency evaluating legal In Weynand Weynand, v. 990 same time. must finding, a we evidence 1999, 843, (Tex.App.-Dallas 846 S.W.2d whole whether the evidence as a determine denied). seeking pet. party to enforce reason- rises a level that would enable proving of the contract bears the burden people able and fairminded to differ the existence of contract its terms. City v. their conclusions. Keller Wil- Inc., 309 v. Exploration, Calce Dorado son, (Tex.2005); 802, St. 822 168 S.W.3d 2010, 719, (Tex.App.-Dallas 737 S.W.3d Joseph Hosp. Wolff, v. 94 S.W.3d 519 a pet.). contract is too indef And whether (Tex.2002). point We sustain noevidence question inite to be enforced of law if there is no more than a scintilla by Fiduciary be determined the court. the elements the claim. proving evidence Sw., Fin. Inc. Servs. Corilant Hosp., S.W.3d at 520. Joseph St. Fin., L.P., (Tex.App. 376 S.W.3d determination, making we must view denied). 2012, pet. Dallas light in the favorable evidence verdict, if rea- crediting favorable evidence fee contract Additionally, contingent could, disregarding con- jurors sonable legal writing be in services must trary jurors evidence unless reasonable attorney and client. Tex. signed Keller, City could not. 82.065(a) (West § Supp. Ann. Gov’t Code 807. Disciplinary 2012); see also Tex. Rules Applicable Law 1.04(d), reprinted in Prof’l ConduCT R. Requirements
a. Contract G, app. Ann., tit. subtit. Tex. Gov’t Code (hereinafter (West cited Supp.2012) A
Whether “D.R.”) (a “shall contingent writ intended to enter into an enforceable the method writing be in and shall state for the question ten contract was fact *10 Inc., determined”). Pac., the to be jury. Ingle v. Bros. which fee is See Scott Appeal agree the parties b. Preservation Issue conduct a transaction of for by electronic means is determined McGarry urges that has Celmer context and surrounding circum- complaint evidence waived stances, including parties’ conduct.” jury charge because the was insufficient Act, See Uniform Electronic Transactions any regarding did not include instructions 82.065(a) §§ Tex. Bus. & Com.Code Ann. 322.001-.021 1.04, or D.R. section (West 2012). object charge on this basis. failed to Although could de disagree.
We intent, parties’ could termine .not McGarry contends that parties’ question resolve the of whether series requirement e-mails satisfied the that the legal met the for requirements of emails contract must be in writing. disagree. We contingency an enforceable fee contract. In the on e-mails which McGarry relies as Drilling Supply See Parker Co. v. Romfor proof that he and Celmer into a entered Co., 68, 72 (Tex.App.-Houston 816 S.W.3d contract, requested a rath writing (whether 2010, denied) pet. Dist.] [14th er agreeing than “to conduct transactions parties reached is question by electronic means.” See id. And her e whether, fact; legally en is her repeated mails contain emphasis law). question is pre forceable 5, necessity of a writing. In PX she issue in her for new served this motion states, “I required believe the addendum is Deatley Rodriguez, trial. See for sign clarify us to the situation with 848, 850 (Tex.App.-Dallas no progress our case in and cost (one way for pet.) preserve error states, volved.” In PX she draw “OK through evidence matter of law point trial).6 addition, you see fit new based motion for Cel- as. a disregard jury’s you 8,. states, mer filed motion to what have said.” In she PX findings and motion for remittitur and re be, happy “I will sign another contract See Hor quested judgment her favor. you you and whatever work decide Dep’t Transp., rocks v. Tex. 852 S.W.2d my you do in for us can bill me case (Tex.1993) curiam) (for (per appel accordingly per rate $200.00 judgment late to render after sus court later, years hour.” Four even when she complaint sufficiency taining legal as to contract, recalled that she had signed a relief). evidence, party must request cautioned, “I she have a photographic Application of Law to Facts memory general, but I would be hesi anything especially tant to recall Agreement a. E-Mails as the Second nuances important involving if in this matter jury was “[i]f instructed that law money. I your memory lot of doubt requires writing, record to be in perfect why sign papers that is we in such law,” long electronic record satisfies the cases, misunderstanding.,.. is no so there “agreed as the have conduct parties your I appreciate checking your rec transactions electronic means.” “[wjhether (PX 12). jury was also instructed that Consequently, ords for these.” meeting requiremеnts that Celmer 6. We note did not cite section ment 1.04 D.R. 82.065(a) sufficiently specific of the Texas Code in of law was Government as a matter grounds her motion for new trial or her motion to trial court of the of her advise the Tex.R.App. 33.1(a) (to jury findings, disregard although objection. pre- raised it See P. pretrial summary appeal, party in her motion state serve error must However, appellate her grounds ruling and in brief. désired "with sufficient complaint that the did specificity series of e-mails to make the trial court aware of the agree- complaint”).' constitute written *11 702 in correspondence not to a ther e-mail 2004 about evidence as whole does rise execution, new its or writing, negotiation reasonable and that would enable
level reflecting nothing of its terms. There is their to in conclu- people fair-minded differ an fee the expansion agreed to regarding whether Celmer sions agreed to in 2001. parties by electronic means. conduct transactions Keller, S.W.3d City 168 at See McGarry relies on later e Agreement b. Terms mails to indicate that Celmer understood McGarry her pay that was to 50% of she to But if the e-mails were sufficient even recovery. entire In a 2007 e-mail written writ- agreement, constitute a written that stated, trial, “I after the second that agreement nowhere states McGar- ten you am that of the aware I owe 50% expanded fee be to ry’s contingency will appeal for the 1st and the recouped assets recovery rather include entire e additional divorce fees.” another Norgasco in thé than interest wrote, mail, plus course she “Of $150K brief, McGarry and in stock. At trial his your great you fees is a number for now emphasized limiting appeal that the first ”, ... half approximately an amount that is necessary stock was $302,010 jury’s award of at any appeal all. be at Because retrial. She also in the e-mail stated 2009 nothing “but her clothes and awarded that same had “the [stake]” trial, personal effects” the first subjec the case as she did. But Celmer’s could not afford costs associated tive a purported belief about terms of sec the' entire case. She and appealing agreement years ond several after it was the Norgasco both believed that allegedly formed a meet is not evidence of most stock was the valuable assets ing of the minds sufficient to constitute provided at issue the best chance of a agreement receive monetary recovery Nothing to her. in the recovery, 50% entire plus of Celmer’s understanding, e-mails alters embod- services, per plus expenses. hour for his parties’ ied written See at Weynand, (parties 990 S.W.2d 846 “fifty percent would receive sense, agree thing, must same same (50%) of interest in the Norgasco Client’s Paciwest, time); at Inc. same v. Warner or proceeds stock or settlement there- LLC, S.W.3d Props., Alan 567-68 most, McGarry At clarified of.” denied) 2008, pet. (Tex.App.-Fort Worth percentage original under the con- parties’ (determination meeting of whether tingency contract risen from 45% fee objective has based on minds occurred is proceedings to 50% because of the in the standard; party’s subjective evidence of Court, Supreme Texas and Celmer ac- says what belief of contract whether At knowledged increase. same amendment occurred is relevant time, McGarry stated he “not believe it did meeting of suffi whether there was minds you right or fair to to seek addition- contract). cient to amend percentage.” although McGarry al And Agreement c. Lost explained testified at trial he to Cel- mer “the percent going have dissenting opinion concludes apply everything,” neither the e-mails legally factually that there was suffi testimony nor trial establish an evidence that a second written con cient “the writing tingency statеs was entered into method parties which but was lost. The dissent deter- Zena, mined.” D.R. There is no fur- relies on See 1.04. Chakur
703 1950, testified, issue, no (Tex.Civ.App.-San jury 202 Antonio obtained a writ), Operating and EP Co. v. MJC Ener argued appeal and on that the second con- Co., 263, (Tex.App. gy 883 S.W.2d 267 tingency agreement fee by was made e- 1994, denied), writ -Corpus Christi Although McGarry mail. di- testified on of a proposition that the contents lost rect examination that his “initial recollec- satisfy the stat memorandum sufficient tion” was that he and signed Celmer had a may proved by ute of frauds be clear and- agreement, second written fee he on stated convincing evidence. this stan Assuming cross-examination that it is likely “more applies, that even dard than not” that there was formal second we argument appeal,7 raised this do not agreement. He explained instead that he agree that met the burden of likely Celmer most made the second the terms a lost written contin proving agreement by exchanging e-mails. In re- gency agreement fee clear and convinc sponse question to a whether prepared he ing evidence. a agreement second fee like the one first dissent, upon standard relied executed, he and he answered: evidence, convincing clear and is that I clearly cannot answer that no. yes or or which will degree proof “measure My that I was did. Her recollection of the of fact produce the mind trier a recollection was that I did. have no I firm or conviction as to the truth of belief currently, my record of it and despite allegations to be sought established.” [Celmer], I requests have been not Vardilos, 920, Vardilos 921- S.W.3d able to locate one. And so I con- have 2007, 22 (Tex.App.-Dallas (quoting no pet.) my cluded—or it is that it more belief 101.007). § This stan- Tex. Fam.Code Ann. likely than not that there sec- wasn’t a preponderance dard falls between ond written and that we are of civil proceedings the evidence standard both categorically mistaken. But I can’t of crim- the reasonable doubt standard because, say said, I that as both we at proceedings. inal Id. 922. When the just remembered that It was. proof burden of clear at added.). up. hasn’t shown (Emphasis evidence, convincing we a apply higher addition, emphasized in his sufficiency Id. legal standard review. at testimony relying that he was e- Vardilos, explained 921. As we “the mails, not the terms of a lost agreement, proof weigh heavily must more than mere- proof: as ly evi- greater weight credible
dence, Q. Are 1.04 you required but it not be Rule unequivocal need 922. a undisputed.” Disciplinary Id. at to have [of Rules] McGarry argues necessary). 7. in his brief a contin- able and court noted Thé agreement may by'oral gency proven contingency percentage fee be that evidence fee insufficient; testimony attorney and the not alone document itself need was must located, citing prove reasonably VingCardA.S. in- v. Merrimac Hos- both fee.was Inc., Sys., pitality necessary prosecution 59 S.W.3d 869-70 curred denied). (Tex.App.-Fort pet. VingCard, Worth But the case. 59 S.W.3d VingCard proof agreements, case is neither statute of court did not discuss lost agreement” contingency case frauds nor a “lost case. The nor did it conclude fee long VingCard attorney's writing court concluded that an need as not be testimony comply attorney of his its id. fees sufficient testifies as to terms. See n VingCard,McGarry disagree by citing with the Arthur See We Andersen factors. Arthur Co., Perry any argument Equip. Andersen & Co. v. raised second written (Tex.1997) (setting contingency agreement with exist- out fac- fee proof attorney’s tors for that an is reason- ed but lost.
704' record, your Consequently, if on this gency client fee.
written fee agreement? is a that the could form we conclude *13 Yes. A. that Celmer “a firm belief conviction” have, assuming, I’m Q. you And writing McGarry an ex- agreed pay to through extremely diligently searched fee. See id. at 921-22. panded contingency you have obtained and records whatever d. Conclusion second, to written been unable find agreement? le- We conclude that the evidence was Well, are in writ- no because e-mails A. jury’s find- gally support to insufficient as a writings constitute ing. They do Question to that McGar- ing, response names printed of And the matter law. by to bound an ry intended Celmer signatures as a constitute at bottom to receive a con- agreement of matter law. of total tingent equal fee to 50% Celmer’s testimony if this Additionally, and even hourly equal an fee recovery, plus $200 convincing evidence constituted clear services, plus his per hour for reimburse- contingency fee that a written expenses. ment of We sustain Celmer’s lost, McGarry not but was did existed we sustained first issue. Because have by convincing evidence prove clear issue, first we need consider Celmer’s contract, is, the term of the that material regarding issue the factual suf- of expansion contingency ficiency support of evidence to recovery. total McGar- of Cehner’s 50% jury’s verdict. changed orig- that ry’s testimony “[w]e every- agreement” percent to “50 inal only is the evidence of this material
thing” Damages B. it. writing reflecting term. There is no McGarry’s own e-mails to None Celmer issue, contends that In her third Celmer explain in 2004 or after that either judgment the trial court’s awards exces- en- contingency expanded fee will be damages by sive the evidence. unsupported recovery compass her total rather than argues that because there was no She stock. own e- Celmer’s contract, contingency enforceable fee mails, quoted length above and in the damages McGarry’s should be limited dissenting at most establish that opinion, jury’s award meruit dam- quantum believed, years several after the ages. argues also in the alterna- fact, second written court’s “im- tive that the trial signed. There is no statement or been properly enforces unconscionable n acknowledgement that Celmer ever She agreement.” contends that agreed, orally writing, pay or in either multiple fees “should be forfeited for McGarry “50 rather percent everything” duty.” fiduciary breaches of In percent of the Norgasco than stock. complains the trial court erred contrast, there are several references calculating McGarry’s damages based on pay willingness her e-mails to her recovery, than a net gross rather plus per expenses. hour recovery subtracted the any do not contain un- But e-mails expanded jury.8 contin- found equivocal reference ther, light disposition only to previous of the as it is relevant calculation of our issue, complaint fur- we do not consider this award. Damages damages equal 1. Excessiveness to an amount to one half of Agreement Breach of Second Claimed the amount interpleader.” The trial court stated that “the basis for the remitti- that the evi- Because we have concluded tur is the Court’s conclusion legally support dence insufficient jury’s finding that there was a new in excess of one half of the total recovery we also conclude contract unconscionable; would be and that jury’s is no evidence to burden on that issue was on Mr. McGarry, of that damages award for breach con- and that he right has waived his to have *14 in 6 of response Question jury tract the jury the make that determination.”9 Con- Hubco, See, Inc., charge. v. e.g., Hall 292 sequently, the trial court determined that 22, (Tex.App.-Houston S.W.3d 28 [14th the in fee excess of one-half of the total denied) (where 2006, pet. Dist.] court of unconscionable, recovery was but impliedly appeals concluded there no contract as concluded that forfeiture of the entirе fee law, damages of jury’s matter award for was not appropriate. alleged breach the contract was stricken a. Standards Review: Fee result, judgment). we As a need not Forfei- Unconscionability ture and about arguments consider Celmer’s the ex- damages cessiveness of the response We review a court’s trial fee forfei 6, Question or the excessiveness of the ture determination under abuse of dis damages judgment awarded the after cretion standard. Miller Kennedy v. & suggestion the trial court’s of remittitur of Minshew, P.C., (Tex. 325, 142 S.W.3d 339 portion of damages awarded 2003, denied). App.-Fort pet. Worth A jury response Question 6. trial court does not abuse its discretion 2. Fee Forfeiture arbitrarily unless it acts or unreasonably, any fee argues that should be without guiding reference to rules or forfeited because breached his principles. Legal Id. and factual sufficien fiduciary duty the agreement or because cy are relevant to be factors considered in Although jury was unconscionable. assessing whether the trial court abused any questions asked about uncon- its discretion. Id. abuse An discretion scionability fiduciary duty, or breach of occur, however, does not where the trial judge suggested trial a remittitur of a court conflicting bases its decisions on evi jury’s damage portion award after a dence, long as some evidence reason unconscionability discussion of and breach ably supports the trial court’s decision. fiduciary duty post-trial hearing at the Co., Id. judgment. (citing motion for At Butnaru v. Ford Motor 84 hearing, (Tex.2002)). 198, trial court noted that “this S.W.3d 211 2004 agreement second [the A of unconscionabili determination jury] found was entered into either ty questions involves both of law ques during at least after existence of an tions of fact. See Hoover Slovacek LLP v. attorney-client relationship between Mr. Walton, 557, (Tex.2006) 206 561-62 S.W.3d McGarry and Ms. Celmer.” (whether particular fee amount or contin thеn jury’s court entered on the gency percentage charged by attorney is subject suggestion verdict remitti- tur “sufficient to the total all reduce actual unconscionable under relevant circum- determinations, making these the trial between Celmer at the time necessarily disregarded jury’s court an- they alleged agree- into the entered Question 3, swer to in which the found agree ment. We the trial with court. attorney-client relationship was no
706 1.04(a). is an fee D.R. representation issue is reasonable.” “Con stances of contract, factfinder; contingent but whether for a tracting for the combina a fee between attor- including hourly tion with does not and of Comm, client, contrary ney public policy itself violate DR 1.04.” Tex. Ethics, 518, at the time is formed unconscionable B.J. Op. Prof'l 59 Tex. law); Pony (1996). question Express Couri- paid But total fee “the to be Morris, Corp. “reasonable, er arrangement” such must be writ) Antonio (Tex.App.-San considering all set out in DR factors (“procedural” unconscionability focuses on 1.04.” Id. surrounding bargaining pro- facts
“the
lawyer’s fiduciary
a'
Because
cess,” while “substantive” unconscionabili-
duty to a client covers
negotia
contract
ty
fairness of the
“is concerned
them,
tions between
such
are
contracts
agreement”).
review
tri-
resulting
We
Anglo-Dutch
closely scrutinized.
Petroleum
regarding
al court’s decision
unconsciona-
*15
l,
Peden, P.C.,
Greenberg
In
t'
Inc. v.
In
bility for
abuse
discretion.
Id.
(Tex.2011).
445,
352
pre
S.W.3d
450
A
standard,
applying this
defer
the
we
to
sumption
invalidity
of unfairness or
at
trial court’s factual determinations while
to
taches
these contracts because the rela
reviewing
legal
its
conclusions de novo.
tionship
attorney
between
and client is
Id.
Keck,
fiduciary in nature.
Mahin & Cate
may properly disregard
A trial court
a
v. Nat’l
Ins.
Pittsburgh,
Union Fire
Co. of
jury’s finding
fact
the
where
evidence
Pa.,
692,
(Tex.2000).
20 S.W.3d
699
The
finding
supporting
legally
the
is
insuffi-
attorney
burden is on the
to establish that
II,
cient.
Whether a fee or amount ney’s is trial initially court. percentage charged the at Wythe Stone, Corp. II v. 342 is all S.W.3d torney unconscionable under relevant denied) (Tex.App.-Beaumont pet. 105 representation circumstances of the is Arce, (citing issue for the factfinder. Burrow 997 Hoover Slovacek LLP, denied, (Tex.1999)), 132 206 S.W.3d 561-62. On other 246 cert. S.Ct. (2012). hand, contract, including whether a The trial court’s primary con client, attorney between sideration “whether forfeiture is neces contrary public policy satisfy sary public’s and unconsciona interest in pro ble time question tecting attorney-client at the it is formed is a relationship.” Burrow, 246). A fee Id. (quoting law. Id. is unconscionable under the 997 S.W.2d at “if a if disciplinary competent lawyer may required rules Forfeiture not be form may reasonably could not a reasonable belief that the court conclude excessive, did attorney not affect seeks recover are actions of unreason- able and unconscionable and lawyer’s work for the client should there- value of the fore denied in whole or in part.” harm the client. See id. addition, Celmer’s mоtion for new trial Law Facts Application of complained that the fee awarded Agreement the First Although provided unconscionable; judgment trial court’s was represent would not (the jury’s Question that the answer to court if he was in the trial successful predicate for a quantum finding) meruit trial, provided a new also obtaining it “against great weight prepon- was ... will “Attorney assist Client obtain derance manifestly evidence and is ing trial counsel.” The written new law”; unjust” “contrary and that rep under which improperly included interest (that is, Agree the First resenting give expense and failed to credit ment) ser explicitly provided very paid, amounts among Celmer had other rendering through vices complaints. exchanged in 2004. The trial
e-mails The trial alleged court found the correctly court that the 2004 ne concluded be unconscionable gotiations during were undertaken the ex and unreasonable to the extent an attorney-client relationship. istence of required Celmer to more pay than 50% of Consequently, presumption unfairness recovery. total The trial court *16 McGarry arose and the burden to bore impliedly that concluded forfeiture of that the was fair and establish McGarry’s entire fee was not warranted. Keck, See 20 699. reasonable. S.W.3d at findings supported These were the evi by agree We also with the trial court that McGarry’s at trial. expert dence witness pleaded unconscionability and testified that a contract that for called a duty to fiduciary breach of as defenses trial, 40% fee at a fee for 45% claims, McGarry’s reject we and McGar- appeal appeals, to the court of a 50% ry’s arguments other that Celmer failed appeal fee for court was supreme preserve Although cor- McGarry error.10 “fairly reasonable and McGar- standard.” that rectly states Celmer’s third amended hourly ry also testified that fee he $200 containing сross-claim an affirmative claim usual charged Celmer was less than his duty for for of damages fiduciary breach hourly fee and was reasonable. But there (as was struck the trial we discuss court was evidence that a contin combined below), fifth response Celmer’s issue gency hourly 50% rate of plus of McGarry’s her answer first amended was fair and reasonable was in or cross-claim, trial, any the operative pleading at written accordance plead- included this defense. Celmer also parties.11 between evidence McGarry ed a attorney’s that “the fees showed failure to include remit- 10. claims that Celmer has waived error was cured the trial court’s duty any complaint fiduciary of titur. of breach by failing plead, forfeiture a of fees evidence, Question finding request jury a on offer jury’s awarded 11. The answer 6 $367,095.62 He that if issue. also contends uncon- of Cel- almost 70% divorce, fact, scionability question is a of net mer recovered in the of her any complaint by failing object expenses, waived and was more than twice hourly jury charge jury question, expenses for or submit amount of the fees and law, question unconscionability that if is a which evidence at trial. offered 708 generally quantum cannot recover under interest Cel-
request
prejudgment
for
however,
meruit,
one
cited on
is
valid
was
basis
when there
pleadings
mer’s
$124,659.12
loss to Celmer of
the services or materials
appeal
covering
for a
contract
that was awarded
prejudgment interest
(citing Murray
in-
v. Crest
furnished.
Id.
II,
(Tex.
at
Inc.,
259
356- Constr.,
to her. See
S.W.3d
900 S.W.2d
345
Bufkin
States, Inc.,
58.
1995),
384
and Woodard Sw.
(Tex.1964)).
Conversely,
S.W.2d
675
hand,
On
other
there was evidence
unenforceable,
where a written contract
services
McGarry performed
valuable
plaintiff
recovery
not barred
Celmer,
obtaining
reversal
quantum
Angroson,
Indep.
meruit.
Inc. v.
decree, advancing ex-
original divorce
(Tex.
Commc’ns, Inc.,
272
S.W.2d
retrial,
appeal
obtaining
pensеs
n.r.e.).
1986, writ
App.-Dallas
ref 'd
retrial,
damages
award of
for Celmer
obtaining affirmance of the award of
Appeal,
For First
a.
damages in his
of Ceimer
representation
See,
347-56;
id. at
appeal.
e.g.,
jury’s
first consider the
award
We
Bufkin
I,
We agree
reasonable value of services rendered is b. For Second Trial Appeal permitted quantum to recover in meruit We have concluded that no ex express when there is no contract press contract existed as a matter of law services). covering those McGarry’s services the second trial result, appeal. As a recovery of the
Here, there is no evidence or con
reasonable value of his services as found
prevented
tention that
Inc.,
is proper.
Angroson,
See
completion
Agreement.
the First
(where
forfeit all fees nied). part her con- fiduciary duty, but sustain We described this standard in our the trial court’s of Celmer’s first issue. tention discussion unsupported by damages awards excessive Applicable 2. Law We conclude that the evidence. Services, v. Celmer relies on COC Ltd. expenses by may recover the established (Tex. Inc., 654, S.W.3d 150 679 CompUSA undisputed the evidence Celmer’s 2004, denied), App.-Dallas for the ele pet. Agreement, as First well as breach of a cause of action for tortious ments by found for the the amounts with interference relations. prospective performed value of the he reasonable work Services, we described the elements COC he advanced the sec- prospec tort of interference with a appeal. ond trial and (1) relationship proba tive a reasonable bility parties would have entered c. Directed Verdict (2) into “in relationship; a contractual issue, complains In her fourth by dependently or act tortious unlawful” by granting the trial court erred McGar- prevented the defendant that the relation ry’s for directed verdict on her motion (3) ship occurring; did from defendant for tortious interference. In her claim with a prevent such act conscious desire to alleged: operative pleading, Celmer relationship occurring from or knew actions conduct that the was certain or sub interference garnish payment threatening stantially certain to occur as result of his by alleg- be made Bufkin to (4) conduct; plaintiff ac suffered in the edly filing of inter- resulted damage tual harm or as a result pleader, executing releases Id. defendant’s interference. execute, authority lacked scheming and conspiring between Application 3. of Law to Facts McGarry, attorney, Bufkin and Bufkin’s Cawley, In Anderton 378 Potter, payment which resulted in the 38, 2012, no (Tex.App.-Dallas S.W.3d $367,095.62into the registry the 101st pet.), we the fourth of a described element Judicial District Court constitutes tortu- tortious interference claim as “actual harm rights ous interference damages plaintiff suffered as a Second Decree to under the receive interference, i.e., result of the defendant’s $367,095.62, payment amount prevented the rela defendant’s actions jointly calculated and Buf- tionship occurring.” Id. (quoting Potter, attorney, kin’s to be the amount Integrated Conveyor Sys., Tex. Inc. v. In due on March Inc., Conveyor Concepts, novative McGarry moved for directed verdict (Tex.App.-Dallas claim, grounds on the that “there are denied)). Here, pet. relationship *19 no damages pled,” no “we find basis in prevented occurring from that caused Cel- the law claim.” The trial for such court mer damage. argues that she granted the motion. Bufkin had “reached an to set 1.Standard of Review tle to a judgment agreed the divorce a closing exchange standard review for directed date to funds and execute 16, sufficiency verdict a legal “no evi releases on March 2009.” She con obligation Bufkin dence” standard review. LG Ins. tends that “was no Servs., Leick, Mgmt. voluntarily pay judgment,” L.P. v. the
7H
“pursue
1.
required
post-
could have
her to
Standard
Review
judgment discovery and collection with un
We
review trial court’s enforce
However,
paid
certain
Bufkin
results.”
ment of
scheduling
order for abuse of
the full amount of the
into the
Enters.,
discretion. G.R.A.V.I.T.Y.
Inc. v.
court,
registry of
and no contractual
Co.,
537,
Reece Supply
177 S.W.3d
prevented
relationship
occurring
from
2005,
(Tex.App.-Dallas
no pet.).
damage.
caused
court’s
Applicable
2.
Law
was proper.
directed verdict
this issue
63 of
Rule
the Texas Rules of
Leick,
We
See
713 the evidence fee. was Although I would conclude that was this less than defen- rate, dant McGarry’s customary legally factually and sufficient defen- dant McGarry accepted the agreement, rejection statute-of-frauds the of Celmer’s receiving since he was also a contingent defense, judgment I and would affirm fee, and bеcause was anticipated his McGarry in favor of breach-of-con- hourly additional compensation claim. tract minimal,
would be
since he was merely
assisting
attorney
another
on the
pleadings
The live
case.
A.
The
agreement
amended
between the
nature
breach-of-con-
McGarry
defendant
and
[Celmer]
clearly
claim
tract
is set forth
his live
writing by
evidenced in
an exchange of
approached
In
pleading.
Celmer
mail,
electronic
each of which was elec-
McGarry
ap-
him to take her
begged
tronically signed by
parties....
Al-
peal
in her
adverse
though
parties contemplated
putting
case,
pro
divorce
which she
tried
se.
in the
form a formal
agreed,
He
their fee
under
contract,
been
no one has
able to locate
agreed
pay McGarry
45% her
Celmer, however,
such[ ]a document....
stock,
in the Norgasco
interest
which
has stated
sign
that she did
a formal
Norgasco
increase to
of the
50%
reflecting
amended
if
made in
any filing
stock
were
the Texas
event,
terms.
the exchange of
Supreme
also agreed
Court. Celmer
electronic
sufficiently
mail
evidences an
McGarry
expenses. McGarry
his
won
pay
agreement.
enforceable
appeal, and
ex-husband
did
McGarry’s live pleading put Celmer on
petition
file
for review
the Texas
McGarry
relying
notice that
on both
Supreme
v. Bufkin,
Court. See Bufkin
exchange
his
emails
Celmer and on
08-02-00025-CV,
... just stock. Since frauds, pleaded the statute of it was clear pay could not [Celmer] rule, without citing specific statute expenses, defendant an affirmative defense to “McGarry’s agreed to finance them until the end claims for fees and attorney’s breach of original- agreement ease. Since contract.” had been clear that defendant findings B. The review in this represent would not in the trial [Celmer] appeal court, to pay offered defendant [Celmer] per Question an additional hour on answer to found in remand, in- contingent Number that Celmer addition *22 714 n lost, destroyed either or agreement for ment. It was by an be bound
tended to “a) unintentionally. intentionally or We contingent a either receive McGarry to judge The trial overruled total recov- don’t know.” of Celmer’s percent to 50 equal b) trial; by signed hourly an fee Celmer’s motion new from the second ery order. McGarry’s time per hour equal to $200 trial; with the second in connection
spent briefing inadequate c) to ad- C. Celmer’s and, reimbursement reversible error. in establish McGarry on Celmer’s behalf by vanced trial.”1 There with the second connection noted, McGarry relied As on previously asking question jury jury no was theories that the statute of two factual writing. was in agreement whether he and Celmer frauds was satisfied: favor of a in McGar- signing judgment By agreement that was a written lost executed claim, the trial his breach-of-contract ry on emails satis destroyed, or their that this element of implicitly found judge theory of- Each fied the statute frauds. defense of statute of affirmative in support to sufficient McGarry’s favor. was resolved frauds But principal ap favor. in her (deemed findings in Tex.R. Crv. P. 279 See brief, specifically pellate addresses judgment). support of Otherwise, theory. the email only general assertions that for new trial in brief contains filed motion there no evidence to exis argued she and which agreement written between her of the minds as to tence of a meeting not reach did view, my McGarry.- In this is insuffi and that there was no a second factual challenge specific re- cient theo satisfy writing to to writing sufficient ry agreement. written The fail agreements a lost contingency-fee quirement issue, by to either adequately Disci- ure brief an by Rule 1.04 of Texas required analyze failing specifically argue and Conduct. At Rules Professional plinary provide au hearing, argued position failing one’s the new-trial citations, any record waives that there could thorities and that the evidence showed B.A.B., re 124 error S.W.3d appeal. been a second written contract and have 417, 2004, (Tex.App.-Dallas pet.); probably 420 that “the believed that S., re M.A. 924 contract. Ms. Cel- see also In was a second [written] denied) (“Fail (Tex.App.-Dallas pet. Ms. Celmer had mer had documents. analysis ure to substantive waives Conveniently, agree- provide no second the files. appeal.”). appellant If an fails though even one of her issue appeared, ment independent says challenge ground she has photo- where she e-mails memory, supports judgment, we must affirm signing she recalled graphic appel McGarry argued fur- because error identified agreement.” ther, Oliphant harmless. Fin. LLC v. agree- “There was a second lant is [written] Question cash, was, fairly reasonably compensate agree- "Was Number Question you response damages, any, ment have found in if for his resulted considering 2 fair reasonable Number comply failure with from Celmer’s existing Ques- at the time a whole the circumstances by you response found Question agreement was made?” Num- Thus, charge tion 2?” made it Number was, comply "Did fail to ber 5 jury that found that an clear to the it had Ques- agreement you response found Question existed answer to Question was, Number 2?” Number 6 tion Number 2. money, any, paid if "What if now in sum (Tex. Angiano, 295 S.W.3d 423-24 wrote an email McGarry stating the *23 2009, App.-Dallas following: pet.). no Charles there was second written reject I attack on the you letter taking related to sufficiency inadequate of the evidence attorney on as a divorce after we dis-
briefing. you cussed that were be involved and when for duplication Jo[e] withdrew writing D. The a lost evidence of attorney purposes.: per hour is factually legally and sufficient. state, what we agreed you have as plus McGarry’s One of theories this case is cost by you trial, incurred related to my his second fee with Celmer if the cost paid experts was not was in writing writing but that was lost any there would not be assets nor trial or destroyed. “A contract is not rendered [sic], to win nor loose by unenforceable the loss the memoran dum statute required by the [of frauds].” Jo[e] Amberson did not care to pay for (Tex. Zena, 200, Chakur v. 233 S.W.2d 202 anything why you so that is stepped in 1950, writ). Civ.App.-San Antonio since the huge portion of 50% of the required by “[WJhere memorandum asset was to you be awarded to only for duly signed statute was made and the appeal, it over [sic] million the party charged, to be and is afterward dollar case. destroyed, lost or may its contents proved by testimony oral in an action We need to have theses [sic] documents Id.; against party.” such accord EP Op present before I can have a feel for the Co., erating Energy v. Co. MJC 883 signed numbers. I have both instru- 263, 1 267 n. (Tex.App.-Corpus your you, ments at or faxed office it to denied); Christi writ 37 C.J.S. way. either
Frauds,
(2008).
§
Statute
219
These
are
instruments we have ever
proof of the lost memorandum must be
signed
my
you
related to
case
Co.,
clear and
EP
convincing.
Operating
being paid,
you
your
would base
1; Chakur,
this on appeal. 3. Hard cost. 26K my So at this time understanding you terms of existence and the written have your calculated all from proposals proved contract are evidence memory since no letters can be located. from two principal sources: email writ- ten by Celmer in 2009 in I March which she have a photographic memory gener- al, unequivocally asserted there was a but I hesitant would be to recall agreement, second written anything especially any nuances if trial testimony agree- important this involving matter lot of First, 2, 2009, ment. money. March 1979). jurisdictions
2. Some (Wash.Ct.App. other also follow 590 P.2d 361-62 Gatlin, E.g., rule. 22 Wash.App. Lutz was that My initial recollection formal and actual- agreements, were two prior signed agreements were Our initial ly says Bufkin Ms. my your records at gou having there were two for- recollection was office. I couldn’t find either agreements. mal [sic] transferred All were records case, she found At the end of one. we signed after yours office Jo[e]’s know, you And this first one. *24 papers. the end the case came back at me at of your files to old brought all Originally I said, hey, only agreement this is signed agree- a letter we office after I that wasn’t what we ever did. Which ment. recalled. Now—. find tomorrow to hope can these you I of the terms McGarry also testified what process this week con- expedite the fee agreement were: the second payoff estimate would sidering Bufkin changed the agreement. an We We had be the 3/16/09. agreement was agreement. The original added.) was а senior (Emphases Celmer everything, plus percent $200 mortgage company, a so for loan officer my at a dis- for time—which was hour The unsophisticated client. she was not that expenses. And counted rate —and un- entitled to believe her judge trial was I That agreement that recall. was signed, that a second equivocal statements recalled. We was existed. written agree- a written both recall there was 2, 2009 email was clear March ment, Celmer’s us find it. but neither of could McGarry had a second writ- she and that cross-examination, McGarry testified On this agree- and that agreement, ten fee computer hard-drive that his suffered entitling McGarry to terms ment included years’ crash and he lost several worth his ex- per fee of hour and trial documents, years including the when the expand- not mention penses. She did would have been executed. second contract of her fee of 50% entire ed any evidence did not introduce recovery opposed to 50% recov- contradicting McGarry’s evidence about stock, McGarry ery but And ac- crash. hard-drive term. supplied the evidence McGarry returned knowledged had asked on examination direct by boxes of documents to her twenty-eight drawing up new he remembered whether 2009, McGarry so could not search March first agreement after conclusion missing con- boxes for the written those follows: McGarry testified as appeal. tract. my initial recollection was that Actually, foregoing is more than evidence mean, well, right I had. I not then but judge’s implied enough to actually my first soon thereafter. I — by the finding that the found there were two recollection 2 was jury Question in answer Number know, at the agreements. You end writing. There was additional evidence case, either I couldn’t find one agreement as After of the second well. I all the files given them because Ap- Paso Court of the remand the El client, but —. back to the January the case in peals, retried recovered McGarry’s attorney February then asked if and Celmer When $300,000 in that trial. approximately written might agree- second in an email ment, she said as follows: March answered fees McGarry; plus your proached agreement. “Of course I $150K And say you maybe now and will great suggestion my is a number get destroyed additional 400K to it important- inadvertently client or- 2 more it possibly certainly hustle with this issue couldn’t find would be one demonstrates one years.” interpretation. This email The other would be McGarry half was never prepared belief that she owed and never sent her and never recovery, signed anybody. entire consistent with new testimony about terms of the judge The trial made some observations on ' agreement.3 Similarly, July in a 2007 the at that hearing: record same wrote, “I McGarry, email am lengths went to some Court you recouped aware that I owe 50 % of the charge on the issue- whether appeal assets for the 1st and the additional a second contract was formed between Although divorce fees.” these two [sic] Mr. and Ms. Celmer. The *25 directly writing emails address the do not jury that found there was such a con they show belief requirement, Celmer’s tract, I opinion and remain of the that that entitled to half of her McGarry was the evidence was more than sufficient to trial, recovery they in the thus second and support that It’s conclusion. clear to the existence and terms the Court that the neither believed agreement. new fee sympathized nor with Celmer. Ms. tending evidence to There was other It trial judge’s prerogative was the to re- agreed change show that Celmer ject Celmer’s defense statute-of-frauds agreement. tes- parties’ original She findings his deemed thé based on evidence a new McGarry tified that she and made that the second writing was in agreement allowing her not to pay but lost. had been end of the She until the case. cоntrary Of course there some evi- complain acknowledged that she did not well. flatly dence as Celmer testified and updated when sent an invoice agree- denied she ever written that made a which that November indicates pay ment with him that she herself believed she owed McGar- 50% proper- hour or a interest in all ry money an agreement different ty Accordingly, she recovered. she testi- agreement. the 2001 nothing except fied that she owed him “the
It mentioning during portion also bears that Celmer’s costs.” And a of his cross- examination, acknowledged inter- McGarry equivocated counsel that one about pretation agree- that of a written evidence was existence second destroyed prepared had or lost a second he written ment. When asked whether a' agreement. one he hearing At the second fee like the Celmer’s trial, executed, previously motion for new Celmer’s trial counsel he testi- argued: fied: produced clearly yes
We were answer or all documents we I cannot that no. I requested My I never saw a recollection was that did. Her produce. I remotely ap- document even recollection was that I did. have no deny plain implausibly 3. Celmer tried to testified .that he understood now’].” meaning by testifying, email "This is of this "$150K” reference to to mean "the says,” saying, not and, I’m but what that’s what it contingent jury’s percent ver- fee on [why ‘$150K "I’m not sure I wrote that dict.” plus your great you a fees is number for record, legal signa- a a despite my requirement currently, it record of client, sig- ture I have can be satisfied electronic your not been requests to I nature. one. And so have con- able locate Ann. Tex. Bus. & Com.Code (d) 2009). 322.007(c), (West § An elec- my is more eluded—or it belief sound, signature wasn’t a tronic is “an electronic likely there sec- than symbol, process logically attached to and that we are or or ond written categоrically But associated with record and executed I can’t both mistaken. because, said, adopted by sign person I we intent to say both 322.002(8). § Id. The Act just It record.”- was. remembered “applies only par- to transactions between up. hasn’t shown agreed ties of which has conduct each said, “Okay. then You Celmer’s counsel by electronic means.” Id. transactions likely more than not that that it was said 322.005(b). § parties agree “Whether written agree- there was not conduct transaction electronic McGarry responded: ment.” from the means is determined context my personal I think own conclu- that’s circumstances, surrounding including the sion, I that —because sent e-mails parties’ conduct.” Id. the evi- Viewing no, know, saying, you we your client whole,-1 dence as a conclude that might just exchanged have e-mails and agreed make their second *26 way: agreement that You made our electronically, agreement fee and that know, And, entirely cer- possible. that’s jury’s finding their the of emails the tainly, the evidence of that’s the,terms agreement. of that able to locate agreement I have been getting your client’s records. after majority that is no evi- holds there appropriate But the standards of McGarry agreed dence that Celmer and review, evidence, weighing I after all fee-agreement their trans- conduct second clear con- conclude that electronically, focusing action on emails that vincing evidence a second written that which Celmer indicated she wanted but had been lost or agreement existed her McGarry up agreement to draw an destroyed. judge’s implicit The trial re- differently. I view sign. the evidence 8, 9, 2004, statute-of-frauds affir- jection of Celmer’s an July PX email dated contrary states, mative was not so sign defense “I will be happy Celmer clearly to be weight of the evidence as you another contract with and whatever wrong manifestly unjust. you my work will to do case for decide you accordingly rate us can bill me at the agree- E. The evidence of a written per of Your fees to be hour. have $200.00 by email ment concluded was also paid pro- after final distribution of sufficient ” .... This that ceeds shows argues parties’ McGarry also that already had discussed the terms an emails constituted satis- agreement, including of their new fee his virtue of fied statute frauds specific hourly rate and the of deferral Texas Transactions Uniform Electronic 21, payment. In PX an email No- dated rejects argument. Act. The his I majority 2005, 3, acknowledged re- vember disagree. bill, ceipt McGarry’s latest his first of year. expressed surprise Texas Electronic over a She Under Uniform bill, Act, objection requirement receiving his which legal Transactions expecting were still writing with an electronic would have done if she can be satisfied signed, key'components written to execute (1) by the jury on the found are proceeding expansion with instead they fee from 50% previously terms had discussed Norgasco Then, stock to 50% of Celmer’s their emails. after the case (2) recovery, entire retried, additional deferred been Celmer sent (3) hourly per hour, rate of ex- 23, email on March 2006 in which she penses for trial. Celmer acknowledged her out- expressed dissatisfaction hourly deferred rate in email her acknowledged, come “Of but course $150K 9, July acknowledged She the ex- you plus your great fees is a number for pansion of McGarry’s contingency fee in maybe important get now and addi- 23, post-trial email March tional 400K to hustle with issue wrote, when she “Of plus course $150K possibly years.” 2 more This statement your fees is a great you number only if makes sense Celmer believed now....” Celmer’s reference to af- $150K McGarry’s contingency fee would be based $302,010 ter verdict of makes recovery on her entire and that he was only McGarry’s sense if contingency- 50% entitled to additional fees on top of fee rate were applied Celmer’s entire contingency fee. And this belief supports recovery and not just Norgasco stock. had, parties the inference that the at some acknowledged Celmer also new point, agreed to their transact 11, 2007, arrangement her email of July agreement electronically. wrote, when she “I am I aware that owe rely I also which contains PX you recouped % of the 1st assets for March 2009 email from to appeal and the additional divorce [sic] in which he “As for hour- says, She recouped fees.” referred to “the as- ly charging rate I took began after I just stock, sets” and not *27 Amberson, we that over for Joe made acknowledged she again entitle- McGarry’s agreement simply by exchanging emails.” Finally, ment to additional fees as well. This parties is some evidence the 2, 2009, her email of March ac- Celmer transact agreed agree- their second fee knowledged McGarry that she owed $200 Finally, electronically. ment the is attorney,” per plus hour as her “divorce parties’ dealing. course of Cel- Although 26K,” “Hard Cost. which other evidence mer some statements in indi- made established was the amount of cating that she a and wanted written for the Although trial. Celmer signed previous addendum to the fee contingency mention in this did not the fee agreement, she insist on agree- did not an email, already it in alluded to her McGarry ment in that format when contin- emails, previous the entitled and was ued to her after the represent conclusion that, considering to conclude all the emails statements, of appeal, billing the sent her together, agreement the between true and even the served as her trial counsel at McGarry McGarry and was what Celmer retrial of her case. evidence supports The recovery, of claimed: 50% Celmer’s entire рroposition the that Celmer and plus per expenses. hour and $200 agreed to transact their second fee agree- Accordingly, I conclude that there was electronically. ment agree- an sufficient evidence of electronic majority
The also holds that there is ment between Celmer evidence is incorpo- of electronic record that the of satisfied statute frauds and encompass jury. sufficient to the terms The all terms of rated found jury. by rendering judg- I disagree. judge found did not err reputation, ability, and whether in favor ment the verdict on id. contingent. claim. fee fixed or See his is on breach-of-contract argues that it was unconsciona- Unconscionability public policy F. McGarry to her both a 50% charge ble for argues in alternative recov- contingency fee based on her entire agreement is unenforceable fee ery hour that fee because and violates because it is unconscionable “ensure[dj” receive little or that she would majority concludes that The public policy. case. nothing at the conclusion he fee McGarry failed to establish fee responds agreement was sought under the second unconscionable, appellate and in brief his reasonable, rejects Celmer’s conten- but it performed he the work he describes I entire fee. tion that he should forfeit his Celmer’s case: argument would conclude that Celmer’s years represented He nine uncon- that the second case, financing the payment, without is without merit.4 scionable Supreme reached the Court' Texas contrary to a fee is Whether re- separate three occasions. case at unconscionable public policy and a in four quired properties review question of law. time it is formed is states, the his- preparation different Walton, LLP Hoover Slovacek in three appraisals properties torical (Tex.2006). 557, 562 Whether a states, including privately two different contingency per- amount or particular fee (cid:127) Bufkin companies. held Both and Cel- attorney is centage charged by an uncon- personal bankruptcies filed at vari- mer under all thé relevant circum- scionable during litigation, did ous times representation is an issue stances of privately compa- held one of Bufkin’s the Texas Disci- fact. Id. at Under actually long nies. case lasted Conduct, of Professional plinary Rules able to file enough that Celmer was competent lawyer if a fee unconscionable (in- bankruptcy discharge and obtain a form reasonable belief that the could not discharge legal cluding of most light of all relevant reasonable fees) separate on two occasions. circumstances, including several factors expand fair to It was 1.04(b). out in Rule See id. 561- spelled *28 stock the Norgasco Disciplinary base from the fee’s (citing n. R. Tex. Prof’l recovery because the whole 1.04, reprinted in Gov’t Conduct Tex. Code value sever- proving retrial involved the app. A). These fac- G, tit. subtit. Ann. estate, assets, including al some real other required, tors include the time labor stock, in addition to the all Norgasco difficulty questions novelty the McGarry McGarry which testi- financed. required perform the to' presented, skill his sought that when first the fied legal properly, the services amount services, office, obtained, got her she went the the time his involved and results him take case. begged or the knees and imposed by limitations the client circumstances, testimony. lawyer’s experience, Celmer did not controvert the any Although judge the rendered the record that in excess trial McGarry on McGarry perfected his claim for breach of be unconscionable. agreement, judge did not second fee any cross-appeal subsequently waived but $276,390.37 McGarry all оf the award challenge judge's trial reduction of the judge damages jury: re- found The damages awarded. $208,816.37, stating duced the amount to him McGarry judges testified Celmer asked trial' enjoy in dividing the marital estate. appeal a divorce decree that had been pro rendered after a in which she was original gave McGar- represented by se. She had been three ry a 45% contingency fee interest in Cel- different law firms in sequence the mer’s interest in the Norgasco- stock. trial, years leading to the up but at trial That interest increased to any 50% if filing Moreover, pro she was se. she was in was made in the Supreme Texas Court in bankruptcy money, and had no if so the appeal. contingency This arrange- case, McGarry ment, took her he had to take it which is common in contracts of this kind, reasonable, on a contingency willing fee and be particularly light asset; of its limitation expenses. McGarry single advance substantial to a contin- gency-fee agreements normally testified that in their first extend to meeting Celmer all assets recovered. him voluntarily just appeal offered 50% expressly McGarry’s limited role to the her case. While Celmer testified that she appeal, excluding any proceedings on re- and McGarry reviewed the value of the mand. properties together and the court records
during meeting, McGarry testified McGarry took the on appeal case only that the prior documents he viewed to won a reversal of the judgment. adverse signing original contract were the di- Celmer’s ex-husband did unsuccessfully at- vorce prenuptial agree- tempt decree and the to appeal Supreme Texas ment, Thus, assigns any neither of which Court. value to was entitled to a 50% properties. fee in the Norgasco testified that he stock original Notably, contract. was not able al- transcript to review the trial though Celmer was suppоsed pay or prenuptial rulings until after he had expenses associated with the case, taken the and that the only property appeal, $8,500, which were about she paid Celmer seemed to be concerned with was $1,000. only him Norgasco why stock. When asked asset, contingency was limited to this one McGarry’s involvement in the case con- that, McGarry explained because Celmer tinued after remand. He already stock, seemed concerned with the he earned his entire fee relative to the Nor- limited appeal just the issues on gasco stock agreement, under the first so interpretation of the parties negotiated contract and the valu- agreement. new proposed ation of stock. This to increase allowed percentage recovery, him of her to reduce but Celmer associ- thought told her he ated with would be unethical appeal as he did not have to for him to seek additional record; percentage, submit the entire clerk’s only the *29 and he proposed a deferred hourly rate portions relevant of the record were neces- agreed instead. Celmer to pay McGarry sary to file with the appellate court. He recovery. 50% of her entire also testified that taking appeal was extraordinarily risky because all he could contingency fee must also be under- do on appeal potentially was win her a new stood in proper- context. There were four trial and a chance at 'winning money; some ties at issue after the remand. position
he was not in a to win Celmer legal fee for previously performed work money judgment in appeal itself. The was based on one of these four specific appeal was going also to be a difficult properties, stock, one Norgasco and his to win because of the already broad discretion that was earned when he won Celmer’s Appeals. as of fronting the Chief Justice Court of McGarry began Once
appeal. re- retrial, work after increasing performed he was He extensive for the mand, handling pro- a mandamus money prove including to asset by spending risk his of also to the Tex- support ceeding appealed recoveries that was valuations first, under first At was Supreme had interest which he no as Court. Thus, McGarry attorney was aby family-law because agreement. represented money Amberson, litigate eventually he both time and named but spending Joe beyond McGarry only properties the values additional her withdrew and became stock, reasonable to it was trial attorney. Amberson testified at contingency fee to of his expand base that very strong opinions that “had recovery. In addi- with,” include Celmer’s.entire and that “at had to be dealt times rate, tion, hourly and Celmer he set an Am- problems.” times Once present[ed] reimbursing expenses. responsible withdrew, was McGarry resumed send- berson that she ing monthly bills Celmer so hourly rate of hour was $200 status, her current and she would know McGarry’s normal rate from rate reduced just op- never until before complained McGarry an hour. inten- $250 Bufkin, going pay was off ponent, was tionally his rate because he reduced judgment. he impression would under assist working as needed to the lead be and McGarry devoted substantial 'time sig- not be attorney, spending and would trial, such preparing effort to case trial. on the He be- nificant resources experts going property as hiring agreenient at the time of the second lieved inspections property Cel- appraisers. with a significant he would not make McGarry put a mer herself testified that hourly fee, money from the amount of court lot of into the case and went to work hourly charging reduced fee in addi- hearings.” McGarry also tried for “all the reason- tion to totaled, case, days. five All which took Even herself testified that able. hours McGarry Celmer for 337.87 billed had the rate was “irrelevant” that she performed the case for the work he on hourly fee. problem with the appeal The trial after the first was over. There was evidence of several factors $302,010. The resulted reasonableness of this fee in- prejudgment trial court also awarded McGarry testified that the is- structure. terest, appeals the court of reversed which very them complex, sues were some of appeal plead-, because had not impression. The retri-
were issues first Additionally, ed for interest. prejudgment expensive, requir- the case would be al of successfully prevented experts perform appraisals historic ing $64,000 he recouping ex-husband pieces property, various paid attorneys’ had fees be- to Celmer agreeing payment advance sub- case, which she fore the first trial the. It expert witness fees. was a diffi- stantial parties’ entitled under the not been prove, because Celmer’s case cult case if prenuptial agreement. Significantly, in- depended proving that assets had recovering were limited to value, speculative. creased in which Celmer, he his first fee, *30 his would recovered no McGarry superior testified to have also recovery based on twenty-eight because there was qualifications, such as over the practice, of law his board certifica- value of stock. But years law, he past expanded arrangement, his the second fee appellate in service tion left, fees the to no money basically was able to recover some because down it’s be- favor two of her jury find Celmer’s on cause own insistence on attempting did litigated sec- her own lawyer other assets were the stiff and continue litiga- tion.” ond trial. decided to the pay
Celmer’s ex-husband reviewing After all the relevant circum- off, objected his judgment stances, but Celmer I conclude that the fee agreement payable jointly a check to her and writing jury that the found exist in answer to McGarry. ultimately ex-husband Celmer’s Question Number 2 was not unconsciona- ' paid regis- the into judgment amount the ble.
try of the court so Celmer and McGarry could their G. litigate respective Conclusion money. claims did reasons, For the foregoing respectfully I pay McGarry any had the he dissent from majority’s the re- decision trial, which were fronted for second versing the trial court’s $23,000. Amberson, about Joe who McGarry’s favor on breach-of-contract his. represented Celmer for time after the arising agree- claim from his second fee remand, paid for his work out of the ment with Celmer. registry pleading of the court. In case, Celmer asserted that nothing
should recover on his claim her; stand, on the took
against witness position entitled nothing money
recover from the in the
registry “except court the costs.” during
Her conduct trial also led George Fleming FLEMING and & so judge to excuse the that he could Associates, LLP, Appellants stop giving nonresponsive order her to an- v. contempt. questions, pain swers to Tammylern CURRY, Szyman Richard arguments, parties op- closing took ski, on behalf Estate of Marion posite positions, arguing Szymanski, Whitehead, Emilie Connie arguing against and Celmer the existence Bohannon, Scott, Appellees and Linda of the fee agreement. second facts, Given un- particularly all George Fleming Fleming & recovery be certainty that there would LLP, Associates, Appellants all, issues, difficulty of the the finan- cial fronting risk assumed Alvarez, B., Maria, Carolyn Aman, expenses, spent the time case Am he M., Ambrose, W., years, brogi, over the course of seven his Ana Dolores J., Anderson, Amburgy, qualifications, Celmer not show that Debra Debo did J., Andrea, C., Apperson, Ramona second was unconscion- rah Merle, Araujo, Carmela, Asbridge, able against public policy. may It Asher, J., Ursula, Aylward, true that Janice enforcement Cheryl, Aboulhosn, M., substantially Bagley, Tena reduce Cel- J., Albo, Ellen, Aleck, recovery. judge mer’s But as the trial Waleed Victor W., P., Baker, Ballard, during hearing on John Mason remarked Barber, Barnes, trial, C., M., motion new “If Ms. Beatrice