*2 LÓPEZ, DUNCAN, Before STONE JJ.

OPINION

LÓPEZ, Justice. payment appeal originated from the This repre- to a firm that fees law in their sented lawsuit against Westinghouse. Lopezes sued lawyers in that case for breach of con- fiduciary duty, tract and breach of summary judgment granted trial court lawyers. Lópezes ap- are favor pealing trial court’s order.

Background Appeal 26, 1989, Sr., July López, On Leonel Jr., signed López, an em- Leonel motion, Muoz, in their response ployment firm of contract with law (the Lawyers). summary judgment, the Reed Under this motion for Law- Hockema & own contract, Lawyers represented not breached yers contended that had wrongful Lópezes’ in a death lawsuit filed had because the case the contract Westinghouse Corporation against Electric appealed. If the court considered been *3 (Westinghouse). provided The contract that having appealed, the Law- case as not been Lawyers any the would receive of recov- 40% claim yers argued that the breach of contract ery In Lópezes that the received. the event “acceptance of by the doctrines of was barred appealed, Lawyers the case was the were to satisfaction,” and and “accord and benefits” receive 45%. duty fiduciary claim was that the breach of by limitations. barred Lawyers successfully litigated

The the case, obtaining jury verdict for over $25 granted Lawyers’ the The trial court judgment million. The trial court rendered motion, exception the that the court with 31, 1991, July Lawyers began on and the involving the [existed] found “a fact issue negotiations Westinghouse settlement with to discovery plaintiffs’ alleged of date of the Lawyers avoid the risk of an language ap This their cause of action.” Westinghouse indicated to would proceed on pears permit Lópezes to the to Westing- not settle for less than million. $15 so, fiduciary duty If their breach of claim. attorney agreed house’s to this offer on Octo- judgment appealable a final order the is not 11,1991. ber Because the court’s without a severance. 18,1991, On October before the settlement judgment, order is not final on the face of the finalized, agreement Westinghouse was filed this court’s we first address the issue of Lópezes in lieu of cost bond. The jurisdiction. Lawyers met the and a tax on with 21, 1991, way October to discuss the best to Jurisdiction meeting, distribute the million. At this $15 Jr., Lawyers López, the told Mr. that their the trial court rendered After family’s fee would be 45% and that the share summary judgment, the Ló- the motions for $8,250,000. recovery be A set- would pez family requested The trial a severance. agreement signed tlement was on October Thus, request. the court’s court denied the 30,1991. Despite appear not to be final. order does 11, 1995, April the filed On appearance, the order is this we conclude $750,- Lawyers against the to recover suit appealable. Although the order seems to attorneys over-payment of fees. 000.00 family proceed of permit the on its breach In figure represents 5% of million. This $15 claim, fiduciary dispos- the order we find that petition, Lópezes contended that their es of that claim because the Lawyers attorney employ- breached the fiduciary duty claim to its tied its breach by charging contract them 45% instead ment breach of contract claim. They recovery. of their settlement 40% Lópezes alleged that petition, In their that this action constituted further contended intentionally knowingly Lawyers had between them- a breach of legal right charge mis-represented their Lawyers. Both sides moved selves and the compensation and that the Law- additional summary judgment. yers their contract with the had breached motion, Lópezes contended family by over-charging them 5% of the re- face, that, on its the record established family fur- covery Westinghouse. The from duty, Lawyers breached their contractual alleged this misconduct constituted ther action constituted a breach and that this fiduciary duty. Lawyers’ a breach of the misconduct, fiduciary duty. This the Ló- did, the trial court had to Lawyers to for- To rule as it pezes argued, required the (1) findings: $750,000.00 following feit, only over-paid make one of not (2) contract, not paid million to the did breach but the other $6 by the of contract claim was barred breach Lawyers. recovered, (3) satisfaction, noth- is owe said or doctrine accord I/we ing. acceptance estopped by Lopezes were Any the contract. one of of benefits under López family, language According to family’s dispose of the findings these would intended clearly parties indicates and, accordingly, claim breach contract Law- provide' compensation additional dispose family’s appealed. yers the case was in the event predicated claim because claim was however, ease, appealed, was finding on a breached their thus, Lopezes contend that family. over-charging As a By compensation. were not due additional result, disposed essentially the court’s order money re- charging the 45% claims, except of all for the affirma- 40%, the versus covered the settlement *4 of tive defense of statute limitations for the lawyers the Lopezes argue that breached the of claim. Based on breach employment contract. analysis, that the order is we conclude rely the response, on In the Lawyers then a final over which this court has order original lawsuit action defendant in the of the

jurisdiction. jurisdiction, Because we have by filing deposit a cash perfect appeal to an proceed parties’ arguments we now to the in lieu bond. Because the settlement of cost appeal. ap until after an agreement signed was not peal Lawyers that perfected, the contend was on Appeal Issues that the the face of the record establishes appealed higher at ease to a court had been In their appeal, Lopezes the contend that Thus, Lawyers the the settlement. time of regards trial erred in the court all and ask argue they did breach the contract. that judgment, this court to reverse and render holding Lopezes are entitled to re- The Breach Claim Contract of all cover fees —if not all of issue, family ar- In the their first $750,- then the at least the higher “to gues appeal was a alternative, that there no Lopezes 000.00. the the ask attorney employment court” the con- under tous reverse and remand on both claims for agree. however, properly tract construed. We Lawyers, as trial. The contend that higher “appealed a court” Whatever to trial the court was correct in its means, filing cash it means more than a finding except concerning the its bond, a and that is all in lieu of cost cross-appeal, of claim. In a State, Bigby v. 892 that occurred here. See Lawyers argue the of fiducia- the breach 864, (stating (Tex.Crim.App.1994) S.W.2d 871 ry duty claim is barred the statute of “[pjrocedurally, ‘appeal’ an is a review limitations. superior a court of an inferior court’s López family The contract between the decision”). appel- example, For the rules of pertinent part: read in procedure applied late time I/we, undersigned, hereby retain the clerk required cost was filed of bond MUNOZ, FLORES, HOCKEMA & transcript of the trial court to transmit REED,1 Attorneys, represent to in me/us Tex.R.App. to appellate case court. See resulting injuries and all actions from 1997). 51(c) (West required the P. The rales Eloy my death son and brother our appellant appeal a civil to file a brief in Lopez. prescribed period. Id. R. 74. within a time rendered, brief, timely assign appellant If the did not file a For services I/we b0% of appeals gave the the au- any property other old rales court monies or recovered. thority higher appeal. Id. The rules appealed court to dismiss the case is to If j.5% any required points the brief to include property or other then monies predicated appeal was assigned. nothing upon error which herein recovered is If Flores, Muoz, prede- ma & Hockema & Reed was Reed. 1. Muoz, appellee, Hocke- cessor interest knowledge full of material supporting The rules have acted with authorities. Id. Trevino, rights. v. permitted appellee respond facts and his See Turcotte also 705, (Tex.Civ.App.—Cor arguments in a After consid 712-13 those brief. Id. 499 S.W.2d 1973); error, Woodruff, points pus Byrd rules eration of those Christi required appeals (Tex.App.—Dallas an the court of write City opinion every by agr.); raised which addressed issue writ dism. Herschbach (Tex. Christi, necessary disposition ap to final Corpus denied). Thus, peal. appellate App.—Corpus Id. R. 90. the rules of Christi writ procedure clearly anticipated meaningful may have acted with facts, appellate knowledge they review of the record and a careful did not of material but arguments presented knowledge rights. consideration of the full act with appeal. Certainly, summary judgment under established that evidence “appealed higher Westinghouse stood that to a court” that both knew initiating appellate pro more than means had taken some actions Construing employment They cess. toward an also understood intention, parties’ the basis for consideration of the these actions served as (Tex. Coker, But being charged Coker v. of 40%. 45% instead 1983) high (directing “appealed intentions to a courts to ascertain did not understand that *5 contracts), parties filing interpreting when no means more than a cash er court” bond, Lopezes evidence exists that the intended to in lieu of a cost and thus the $750,000.00 pay lawyers fully rights their an additional were not aware of them doing nothing. by they paid for The conduct relied on the extra Because at the time 5%. rights, Lawyers charging family fully the the additional fee the was not aware of them conduct, Lawyers rely acceptance is not their own but rather the cannot on the even the attorney. unilateral action of the defendant’s doctrine. benefits By charging López family the 45% instead

40%, Lawyers employ the breached Accord and Satisfaction they over-charged ment the contract when Lawyers also the assert family. Lawyers over-charged Because the family’s claims are barred the doctrine of family, Lawyers’ the next consider the we the accord and satisfaction. Because Law defenses. yers López family agreed to contend that the accept a settlement with 45% deducted Acceptance of Benefits disclosure, they attorneys after full ar fees Lawyers argue that the breach arose, gue the accord that an accord and that claim barred the doctrine of is Lopezes accepted the was satisfied when the According acceptance of to the benefits. settlement. Lawyers, fully was aware the defense, Lawyers prevail To on this the they being charged 45% for attor were good faith prove had to that a bona fide they neys the reason were and about controversy existed between themselves and 45%, being charged they signed the time at settlement, family López the at the time of they agreement. Because the settlement they good making faith in and that acted understood the maintain that their clients and did not take unfair advan the settlement settlement, consequences Lawyers of the the tage fiduciary duty. Thywissen See Lopezes cannot now claim argue that the Cron, (TexApp.— words, In they are entitled to more. other denied). 1989, writ At [1st Dist.] Houston family Lawyers López is contend that the agreement, no the time of the settlement claiming estopped from breach of controversy Lopezes did existed because the they accepted the benefits because not understand that the were agreement full with disclosure settlement dispute fee. A did not arise entitled to 45% about the status family López until the understood that the appealed and filed their apply, party case had not been estoppel For over-payment. As a estoppel must lawsuit to recover against is asserted whom at 148 Burnap, 914 S.W.2d result, applies. rule See rely cannot on the doc- is tolled period limitations (discussing how trine of accord and satisfaction. have dis or should plaintiff discovers until that the have Having determined family injury). The his nature of covered claim, the breach of contract no defense for being they were may understood have family’s first issue. we sustain provid for the reasons charged the-extra 5% family did not attorneys, but the by their ed Fiduciary Duty Breach of not enti were understand issue, fami their second family did not fees. The tled to the extra ly of contract con contends that over-charged until they had been realize stitutes, as a matter of a breach family their lawsuit filed 1994. Because the fiduciary duty justifies a fee Lawyers’ period, overrule limitations we within the case, the facts of this we forfeiture. Under cross-appeal and sustain issue Undoubtedly, Lawyers’ charac agree. Having sustained family’s second issue. appeal of an induced terization of the status issue, now consider we family’s second family agree The evidence to 45%. Lawyers must family’s position that the everyone clearly indicates that involved the con paid to them under return the fees understanding proceeded with the the case tract. appealed long would not be so ease reason, For this as the case settled. Upon showing that his fiduciary duty attorneys breached their be client, breached his going to be cause knew the case was not See Arce to a fee forfeiture. client is entitled appealed they charged time Burrow, (Tex.App.— This a serious one the extra 5%. breach was (de 1997,pet. granted) [14th Dist.] Houston considering charged the substantial fees *6 regard aggregate in to an ciding issue this attorney’s grossly An action to over here. Fee forfeiture is an agreement). settlement client, charge imply or to to his client that his remedy and the amount of forfei equitable over-payment, to is a breach of he is entitled upon facts and circum depends ture fiduciary duty. Because we reach this con Arce, particular case. See 958 stances of the clusion, Lawyers’ we next consider the asser (setting forth factors to consid at 250 S.W.2d fiduciary duty is tion that the breach of claim portion of a fee an determining in what er by barred limitations. forfeit). authority Although attorney must Lawyers to forfeit their require to exists Limitations Statute of Defense Lewis, fee, Bryant v. 27 S.W.2d entire see cross-appeal, the assert On 1930, 604, (Tex.Civ.App. writ 606 — Austin denying in sum the trial court erred dism’d), these facts. we will not do so under mary judgment on the issue of statute respect family’s claim limitations with case, Lawyers succeeded In this fiduciary duty. The statute of for breach of trial advocates on behalf of their roles as years. limitations for the claim is two See family, they in their roles as López but failed Linnartz, 142, Burnap 914 148 v. S.W.2d perti- They may have disclosed counselors. denied) 1995, Antonio writ (Tex.App. — San facts, the facts they did not disclose nent but two-year of limita (determining that statute way informed their clients that in a applies to client’s claim of attor period tions By implying right pay not to 45%. had the fiduciary duty). Law ney’s mere- they were entitled to the extra 5% yers the breach of contend appeal perfected, the ly because an had been they explained because claim is barred fiduciary duty to Lawyers breached charging extra 5% in the reasons however, in the Nothing, exists their clients. family at the time of the attorneys fees to the actually record to indicate years expired before and over two settlement per- of the acts to their clients. Most lied family filed their lawsuit. Lawyers on behalf of the formed family’s family inured to the benefit López relies on response, Arce, discovery prior to the breach. See and occurred discovery agree that the rule. We 744 reason, proce- applicable and at 249. For we will substantive

958 S.W.2d this because yield the laws same result. dural require only the over- to return payment. con- presented, In the circumstances subject only one provision at to

tract issue is and, therefore, meaning: Conclusion plausible ethical contingent fee percent five the additional disposition family’s Because our first higher case a payable appealed is to “[i]f issues, disposition and second and our merely because court” did become due cross-issue, effectively disposes of the set- Westinghouse, pending finalization of appeal, family’s we will not address the tlement, protect its filed a cash to remaining trial issues. reverse the We Disciplinary right Texas See summary denying Lopezes court’s order 1.04(a)- Rule Rules of Professional Conduct judgment judgment in favor of render fees). (b) Ac- (prohibiting unconscionable Lopezes both the breach of unambig- cordingly, disputed provision is and the breach of claims. Be- uous; question presents its construction no cause we have record to consider the court; for the extrinsic evidence law claim for we remand parties’ subjective immaterial. intent is the cause to the trial court for a determina- Co., Dev. + Friendswood v. McDade See Co. that issue. tion of 280, (Tex.1996) (per cu- 926 S.W.2d Coker, riam); v. 393- Coker 650 S.W.2d (Tex.1983). Concurring dissenting opinion by 94 DUNCAN, J. Damages and Penalties DUNCAN, Justice, concurring and “ at an ‘[i]f Under well-settled Texas dissenting. of his torney ... commits material breach judgment I in the as it concur insofar employment, thereby forfeits contract of he ” judgment and ren Royden reverses the trial court’s Ar right compensation.’ all family. doin, Lopez 209 ders favor of the 160 Tex. (1960) & (quoting Hamlen majority’s Beaumont J.H. But I dissent from refusal Son, (1935)); Ark. Lopez family, penalize compensate the also Kinzbach Tool Co. v. Corbett-Wallace mea attorneys, accordance with the 509, 514 Corp., Tex. damages mandated Texas law sure *7 (1942) (“if fiduciary any ... benefit ‘takes fiduciaries, including attorneys all —“for ..., duty, betrayal of in of his it is a violation right Roy compensation.” all feit[ure][of] confidence, he a breach his trust and of Ardoin, 206, 160 den v. Tex. all he has principal account to his must (1960). 209 Carter, ”) (quoting received’ United States 286, 306, 30 L.Ed. 769 54 U.S. S.Ct. op Fiduciary Duty Breach (1910)); Kelley, Moore v. 162 S.W. majority “[e]ertainly, the Law- states refd) (“if (T ex.Civ.App.—Amarillowrit higher ‘appealed to a yers understood that in agent] adversely employer acts to his [an initiating appel- means more than court’ transaction, ..., any part of the it amounts employ- “[e]onstruing process,” late upon principal a fraud as to such parties’ contract in of ment consideration ser any right compensation for forfeit intention,” ... the Lo- vices”); (Seoond) there is “no evidence generally Restatement Agency (1958); § Arce v. lawyers an addi- but see pay intended to their pezes of Burrow, (Tex.App.— $750,000.00 nothing.” The doing tional 1997, pet. granted) Dist.] [14th Houston incorrectly construction majority treats (without citing discussing Royden, court to or involving question fact contract as fee mandated complete forfeiture holds imposes a parties’ improperly intent apply not in Tool and does Kinzbach Moore attorneys to production on the burden context). attorney-client for sum- Lopez family’s motion defeat However, part complete in is a judgment. recognize I concur fee forfeiture mary I view, not, my family remedy. But in Lopez harsh it is judgment in in the favor Rather, appropriate it is an unduly harsh. society’s beneficiaries’

means to vindicate expectations of fiduciaries —com- legitimate wronged benefi- ensures plete fee forfeiture only fully compensated for ciaries are losses, non- monetary but also for the the be- damages associated with economic trust; upon trayal it inflicts of their pun- fiduciary a and certain swift defendant her ishment for his or and, importantly, pro- it duty; perhaps most fidu- disincentive to other vides a sufficient ciaries to avoid similar misconduct.1

Conclusion Texas law I would follow established render in favor of the this case and forty-five percent Lopez for the full contingent fee collected ($6,750,000.00),pre-and postjudgment inter- otherwise,

est, and costs of court. To do view, my yet example another constitutes by lawyers special rules made for law- yers, public it further erode confi- and will legal profession

dence in the as a whole and judiciary particular. the elected Texas COLLEGE ALAMO COMMUNITY DISTRICT, Appellant, CORPORATION, Appellee. OBAYASHI No. 04-98-00232-CV. Texas, Appeals Court *8 Antonio. San Aug. 1998. factfinding holding usurps court's majority the trial correct in diction Even if the were 1. Security Co. Ins. estab- function. See International complete forfeiture is not mandated fee Life Arce, (Tex.1971); Spray, disposition of the issue is lished Texas its 251; concludes, If, Disposal Supply majority Industrial improper. com- as the Service, Inc., Perryman Brothers Trash required, and the amount Co. v. plete is not forfeiture circumstances, (Tex.App. Antonio then may vary with the facts — San n.r.e.); generally W. Wendell question writ ref’d of fact amount of the forfeiture is Texas, Hall, Mary’s ReviewIn Standards the trial court. For this court to St. to be decided in (1998) accompanying L.J. 489 n. 911 appropriate forfeiture is an determine the instead juris- appellate original than text. exercise rather