*1 Ron LEVINE Serena
Levine, Petitioners,
BAYNE, KRAUSE, & SNELL
LTD., Respondent.
No. 99-0981.
Supreme Texas. 12,
Argued April 2000. Feb.
Decided
Rehearing April Overruled *2 the of appeals’
we reverse court judgment that the Levines owe and render attorneys. nothing further their Bayne, The Levines hired Snell & Krause, for their Ltd. sue the Smiths in the failure to disclose foundation defects they sold to Levines. Because home the defects, the Le- alleged of the foundation stopped making mortgage payments vines Smiths, who financed the house to the had The therefore counter- purchase. Smiths agree- claimed for breach of the ment. verdict, jury the trial judge
After $243,644in damages the awarded Levines Graham, Hughes, & Roger W. Adams defects, along with in- for the foundation Allison, Dana R. Allison Harlingen, and fees. But the attorney’s terest Firm, Brownsville, Clayton Thomas found that the were entitled to also Hollis, Antonio, Harmon, Elms & for San mortgage, due on accrued the balance Petitioners. fees, attorney’s a31of which interest and Snell, Krause, Bayne Barry Snell & San $161,851.38. trial court totaled thus Antonio, MeConnico, Shephen E. M.N. Jan $243,644 with offset the Levines’ award Webre, MeConnico, Douglass Scott Aus- & $161,851.38 recovery, resulting in Smiths’ tin, Respondent. for $81,792.62 for Levines. extinguished the Levines’ The offset mort- opinion ENOCH Justice delivered the them clear gage obligation, giving title Court, in which Chief Justice their home. PHILLIPS, BAKER, Justice the court affirmed the appeals After HANKINSON, join.. and Justice O’NEILL judgment, paid the trial court’s the Smiths agreed Ron and Serena Levine $104,110.31, which included Levines lawyers one-third of amount $81,792.62 plus interest accrued recovery” from settlement or during appeal. Bayne/Snell then sent against lawsuit and Pat Donald claiming statement Smith. The Levines an award obtained $155,866.13 in fees: one-third Le- Smiths, the award was offset, prejudgment award vines’ before the Smiths’ counter- offset successful costs; interest, and court-awarded at- plus attorneys claim. The Levines fees, torney’s post-judgment interest over how to calculate the one- argue now expenses. be cal- third fee-Should the fee full disagreed Bayne/ on the amount awarded to the The Levines culated Levines, the calcula- or should it calculated on fee calculation because Snell’s trial court’s offset awarded to the Levines after tion did not reflect the counterclaim. trial court and the Smith’s successful offset is subtracted? The event, contesting attor- appeals court of that the still concluded fees, neys entitled to of the full the Levines endorsed Smiths’ were one-third $104,110.31 Bayne/Snell disagree, check for over to amount awarded. Because we fee, fees. And tingent entitled to re- remainder, to pay Levines refused ceive the specified when and Bayne/Snell sued. 'payment.”2 extent the client receives And comment explains: d “[i]n absence Levines, their briefing, do not *3 prior contrary, [a] to the specify amount believed recovery amount of comput- the client’s Bayne/Snell. owed But apparently offset, ed net of as a recovery by such estimate that the one-third fee should have an opposing party aon counterclaim.”3 been approximately calculated on the $36,000 difference between Levines’ courts, one, Some similar cases to this total damages prejudgment and interest have opted apply the fee to the client's and damages the Smiths’ total and pre- award, full that such a reasoning calcula- judgment interest; added to court-award- comprehensive tion better reflects the val- fees, interest, ed attorney post-judgment ue of the and services the eco- and expenses. Regardless, although the by nomic value received the client. For $104,110.31 paid Bayne/Snell the Levines instance, Dullea, in Manzo v. the court greater than the amount the Levines approved a to a full award method, would pay recovery under although under an policy, por- insurance they have for money not asked back from tion of the award had been deducted and the firm. by retained the insurer satisfaction of contract with Bayne/ Levines’ mortgages assigned had been provided part: “[tjhat insurer. part The court reasoned agrees attorney Client as attor- of the judgment was used to for a debt ney’s representation fees for such 33- for which personally liable [the client] was received, (1/3) amount 1/3% which, but for the successful efforts of recovery settlement or and to receive collecting insurance payments, such assigns Client to attor- suit, would have left a debt secured (1/3) ney a undivided interest in 33-1/3% by the mortgages....”4 Consolidated his cause of action. Underwriters South Carolina Insur- Any attorneys awarded by any Bradshaw, ance Co. v. the court held that my go attorneys shall in addi- an attorney fee was calculable on the full tion percentages to the above of recov- award, of the part ery.1 mortgagee, was client’s contingent attorney’s fee contract in it “was in ... fact a since “any case does not define amount debt.”5 extinguished client’s] And [the received.” Saulsbury v. American Vulcanized Fibre Co., attorney, that an the court concluded of the
Section 35 Restatement (Third) for a employed percent- to act for client Governing Lawyers the Law recovered, age of was entitled and its the amount question comment answer the parties pose. percentage section of the amount That states that “when required has contracted for a con- client would to pay, have been Cir.1938). added.) (2nd (Emphasis 4. 96 F.2d 137 Governing (Third) (W.D.Ark.1955). F.Supp. 5. 403 (1998) added). (emphasis § 3. See id. cmt. d. already applied jurisdictions have other
but from which client released in lawyer- contracts construing this rule the court’s decree.6 the lawyer Because disputes.10 client fee Here, unquestionably bene- predict client to is better able than the fitted, beyond recovering a financially, arrangements for fee based provide $81,792.62. from the traditional diverging recoveries judgment extinguished mortgage ob- received, the burden actually payment ligation, them to receive clear title allowing in a fall to their But sound con- home. reasons whether con- contract with the client apply vince us we should section 35 of calculated on non-cash tingent will be interpret the Restatement money damages. benefits well as recovery. to mean net received” *4 upon To this burden attor place interpretation an Such rests justified the neys only by is attor premise “lawyers the are more able by also ney’s sophistication, but the rela clarify than detect most clients to and tionship attorney of trust between and client-lawyer omissions contracts” be Supreme client. As Minnesota Court the “lawyers always cause almost write such concluded, obligation impose has the of and are more familiar with the contracts” clarifying attorney-client upon contracts legal representation intricacies of and with reasonable, entirely both attorney the “is agreements the law drafting and of and attorney’s] greater because of knowl [the other For example, contracts.7 the edge respect with to fee experience stated, Indiana Court has Supreme “[l]aw- of arrangements and because the trust yers always possess almost more so attor placed [the client has [the] 11 phisticated understanding of arrange ney].” ments. It is therefore appropriate 18(2)’s ap- Courts that follow Section place the balance of the burden of fair attorney’s proach calculating an fee on dealing of and the allotment risk in the so recovery the chent’s net also do lawyer regard hands of to fee ar allocate contingency contracts the risk rangements clients.”8 Similarly, with attorney. A non-recovery Ken- has Supreme California added that applying tucky appeals, court of the fee attorneys “presumably are familiar with at- recovery, the net reasoned when legal proceedings terms and and accus suit, torneys employment bring accept tomed language to the use of appropriate implied do “with at least so framing of contracts....”9 Motivat knowledge contemplated suit concerns, by by ed some of these in hable to be defens- courts defeated 536, (Del.Super.Ct.1914) legal training); 6. 91 A. has had Kirwin v. McIn- 542 no tosh, 735, 395, (1941); 153 P.2d 737 Kan. 110 Governing (Third) 7. the Law 221, 518, Irwin, P.2d In re 162 Or. 91 523 (1998). § 18 cmt. h (1939) (construing agreement against retainer lawyer’s superior knowl- based on 771, (Ind. Myers, In re 663 N.E.2d 774-75 by agreement). edge of the work covered 1996). 736, Potter, 156, Cal. Bennett v. 180 183 P. Ramsey County, 322 N.W.2d 11.Cardenas (1919). 158 Kirwin, (Minn.1982). See also 194 110 (also citing fiduciary at P.2d 736-37 rela- Co., 10. See Hamilton v. Ford Motor 636 F.2d tionship client between as a rea- (D.C.Cir.1980) (holding 748 this against lawyer). son construe contracts greater principle applies force attorney-client context because the client law, OWEN, es including plea allowed of set- concurring. off.” And a New York appellate I concur in the recovery, the fee to the net con- opinion overly the Court’s broad. cluding that the lawyer “assumed the risk “any The term amount received” is unam- recovery that the in moneys would be di- biguous and connotes a dollar amount re- minished ... allowance of the coun- ceived the client than a rather non-cash terclaim.” recovery. But not all counterclaims or novel; rather, holding Our is not setoffs should diminish an con- simply emphasizes one a lawyer’s facet of tingent percentage fee that is based on a client, ie., duty to the to inform a client of amount received.” In situa- some the basis or rate at of the fee the outset of tions, attorney should be able to assert Importantly, requiring matter.14 claim stipulate misrepresenta- to better whether a client for attorney and client contemplate a fee cal tion or breach of an monetary culated the total value or net thereby contractual covenant and recover client, lawyer, benefits the a fee based on the amount awarded for the legal system by encouraging bet client’s affirmative claims without re- ter *5 thereby reducing communication and In duction for offsets. if the disputes later about what was communicat Levines had been directed their counsel ed. holding disputes This even avoids payments mortgage, to continue on their arising from situations in which the client fully apprised of conse- important fails to reveal information to quences nonpayment, of and had then lawyer ignores or lawyer’s recommen stopped paying mortgage, the out- lawyer provide dations. The can simply come this case should be different. And time, for these of making situations ahead cases, in other if a client takes action after it clear in agreement that the client a fee is consummated that by deceiving cannot reduce his bill reasonably anticipated by be lawyer. counsel, gives and that action rise to a Because this case the contingent fee attorney’s contingent fee otherwise, provide contract did not Accordingly, should not be diminished. amount received” refers although agree I with the Court that the We, recovery. amount of the client’s therefore, judgment conclude that no further fee is Levines are entitled to then- from attorneys. due the Levines to their favor, join expansive I cannot the Court’s Accordingly, we reverse the respective rights statements about the appeals the court of and render attorney-client obligations relation- for the Levines. ship. concurring filed a OWEN opinion. passages The Court relies on certain dissenting
Justice HECHT filed a (Third) joined. in which of The Law opinion, Justice ABBOTT the Restatement Gov- 587, Wooldridge Bradbury, Ky. v. 185 215 14. See Restatement (Third) of the Law Govern- 406, (1919). ing S.W. 408 (1998). § 38 Passaic, Mackey 266 A.D. (1943). N.Y.S.2d may be to its counsel. There Lawyers, respectfully obligations but I submit erning a or if a client “lies to fully consequences has explained the Court pro- expressed an or matter of fails to honor overall view of the Restatement’s client-lawyer requir- a attorney-client relationship. in an vision of § 17 circumstances, lawyer.” Id. a ing cooperation some Under contingent a fee cmt. d. should be entitled to for a suc- on the amount awarded based principles, these the Court light adjustment or claim cessful unless a holding mark misses the for a counterclaim or offset credit coun- specifically addresses fee the amount of judgment.
reduces offsets, a lawyer’s terclaims that, always con a counter- agree generally speaking, fee should reduced should be for a tingent provides claim. Whether recovery gross means that “the based on a client’s net or percentage “recovery” give facts that specified depend entitled to when the lawyer is receive existence, client a counterclaim come into only when and the extent the rise to is re- to which counterclaim payment,” degree the absence of “[i]n receives claim, the client’s contrary, lated to a client’s prior agreement comput client’s with its counsel. forthrightness amount of the offset, recovery by ed net of such as a will illustrate examples hopefully A few party opposing an counterclaim.” Suppose I wish make. point (Third) of The Law Govern engages client to sue that a 35(2) ing Lawyers (2000); id. cmt. d an auto acci- negligence connection with 35(2). However, are several other there After the client has consulted with dent. important principles forth in Re set *6 contingent agreed and has to a counsel attorney’s that bear on an statement what received,” of “any fee of one-third amount fee should be when is a counterclaim. there argument an with the defen- the client has First, tribunal construe an has as- physically should dant-driver he sued and “[a] a a for lawyer between client and her. She asserts counterclaim saults circumstances, injuries. in Under person reasonable the circumstances her those a be to required the client would have construed it.” Id. the client should 18(2). § A amount he corollary principle contingent that fee based on the negligence the that determine what events client and recovers for defendant’s “[t]o lawyer contemplated, any must to the defen- regard their contract without amounts on her for as- light and cir- recovers counterclaim goals be construed of its dant light possibilities and in of the The client would have breached cumstances sault. destroy the cmt. c. or dimin- discussed with client.” Id. covenant to the of the lawyer duty subject has a the basis value of matter “explain ish the contract, under is the my example rate of the fee ... and advise the which lawyer negligence such matters of inter- of the claim. client of as conflicts value at est, obligation to the client scope representation, explain the had no negotiated the the fee was agreement’s the the time implications the lawyer physically if the client assaults Id. c. It is the that client.” cmt. defendant, would be ensuring that the fee “bears the burden of who neg- for the diverging states on the amount awarded any the terms based for an any without reduction expectations.” ligence reasonable claim from a client’s client h. But has counterclaim. A reasonable § 18 cmt. the client also assault Id. expect lawyer’s would not that the of appeals and the court It held. means any be diminished under these circum- dollar amount by stances. Levines.
But a slight change may facts The dollar amount that Suppose make a that difference. the client would otherwise have received from their had assaulted the defendant before he re- by claims was the Smiths reduced tained counsel. Under Restatement’s a counterclaim that was direct result of rationale, lawyer probably has an obli- advice from their counsel. Ron Levine gation diligence to conduct due Barry deter- testified without contradiction that if dealings mine the prior the client has him stop making Snell told mortgage had with provide payments defendant basis to the Smiths. Levine could not for counterclaims. If the client is forth- remember given that instruction was right facts, all material discloses then before or after agree- the lawyer client expect and the ment signed on March 3. He did recall may amount received” be re- he made the March pay- by duced It ment, counterclaim. would then be regardless none thereafter. But incumbent lawyer on the to obtain an ex- of precisely when told Ron Snell Levine to press provision stop making mortgage payments, Snell is the contingency fee would not be presumed reduced to have known cessation of by If, however, counterclaims or offsets. payment lead to could well acceleration of the client failed to disclose material facts Levines’ note and counterclaim response inquiries lawyer, full Smiths for amount that the If, outcome should be different. re- Levines did not owed. obtain an ex- sponse to lawyer’s questions, press agreement client from the conceals information or makes misrepre- fees would based on the sentations, would have a cause the Levines’ awarded for affirma- of action based on fraud the inducement tive claims reduction for and should be able to receive a fee based Snell should on the amount the client recovered for the have anticipated a counterclaim. claim he hired pursue, with- Court, As detailed because of *7 regard out to counterclaims. nonpayment, the did in fact accel- Smiths I turn to the facts in this case. by erate was secured the note that mortgage and a counterclaim. Both assert
II
prevailed
the Levines and the Smiths
on
Barry
arriving
respective
The Levines
Snell’s firm their
at the
retained
claims.
rendered,
to sue the
defects in
foun-
that
to be
Smiths for
was
dation of the home that the Smiths
trial court
the amount awarded
deducted
sold to the
The
to the
the amount
to
Levines.
Levines’ fee
Smiths from
awarded
agreement
that
that
provided
paid
the Snell firm the Levines. The Smiths
Levines,
paid
would be
amount
and the Levines
“any
one-third
amount
to the
firm. The
recovery
settlement or
and to
tendered it to
amount of
Snell’s
paid
receive such
the Levines
was
payments,
assigns
attorney’s
Client
to
fees that
(1/3)
attorney a
of their net
undivided interest
thus more than one-third
re-
33-1/3%
“any covery.
recovery.
in his cause of action.” The term
It was all
their net
amount received
or recov- Snell’s firm later sued
Levines for
settlement
ery”
attorney’s
is
as both
additional
fees based on the Le-
unambiguous,
the trial
to
they would have
net, recovery.
expect
than
would
gross, rather
vines’
their counsel over
paying
means
find a
judg-
summary
filed motion for
The firm
$58,000
such an amount
Paying
in cash.
ment,
filed cross-motion
Levines
difficult,
impossible,
have
may
summary judgment.
for
their
selling
for some homeowners
that,
general
prior
rule
absent a
suit
At
the time
Levines’
home.
contrary, contingent
to
agreement
concluded, home
was
against the Smiths
or
computed
any
net of
offsets
are to
their homestead
could not use
owners
credits,
starting
determining
point
purchase
the loan was for
collateral unless
firm. See
what was owed to the Snell
homestead.
improvements
or
on the
(Third) of The Law
Govern-
Crowder, 919 S.W.2d
Benchmark
Bank
ing
85(2)
cmt. d. In order to
(Tex.1996)
(construing former
summary judgment for the Le-
(cid:127)withstand
XVI,
to
prior
Tex. Const. art.
vines,
firm
it was incumbent
the Snell
amendment).
If
amount re
“any
it
to assert
facts that
entitle
a mort
extinguishment of
ceived” included
gross,
a fee
on the
recover
based
Levines’
could be
clients like
Levines
gage,
net,
do
recovery.
than
It did not
rather
by agree
position
in an untenable
placed
it
firm did not
so.
Snell
assert
any
ing
one-third
had advised
Levines to continue to
following
and then
amount received
mortgage,
of the
if the
consequences
mort
to default on their
advice
defaulted, and that
the Levines
gage.
advice.
stopped paying
disregard
of that
that when a
persuaded
am
simply
that its fee
Snell
asserted
the term
uses
gross recovery
it
received,”
its
given
term should be
cir-
obtained
its client. Under these
ordinarily-understood meaning, which
cumstances,
the Levines were entitled
dollar
the fee will be based on
summary judgment that the
firm was
In the
of facts
amounts received.
absence
not owed
additional sums.
give rise to a cause of action
that would
recognize
in this
there is a
inducing
fraud in
against
client for
coun-
strong equitable argument that the
or
of an
breach
real-
terclaims
the Levines did not
cooperate
covenant to
claim,
recovery
ly
prosecution
diminish their
no more
than
owed
should limit counsel’s
note,
net cash amount recov-
promissory
under a
to one-third of the
ered
client.
free and
received the title
their home
However,
clear of
indebtedness.
out,
Levines do
points
As the Court
balance,
person
that a
seems
reasonable
overpayments
not seek
recover
*8
in the Levines’
would view one-third
shoes
al-
Accordingly,
firm.
made
amount received” mean
complete
I am
accord with
though
not
put
pockets,
that
were able
rationale,
agree
the Court’s
of non-cash value that
not one-third
in this case
Court
Suppose
received as
result
suit.
in favor
take-nothing judgment
be a
should
judgment against
the Levines’
of the Levines.
equaled
Smiths’
Ill
($161,851.38), and
against
some of
my
was no
for the Levines.
In addition to
concern about
there
regard-
categorical statements
A
in the Levines’ shoes
the Court’s
person
reasonable
ing the circumstances under
make
which coun
it clear that a
should not have
fee,
terclaims can reduce a contingent
part
to forfeit all or
of a fee for failure to
seems that there is some tension between
clarify
unambiguous
what an
agreement
the Court’s
reasoning
this case and our means. An unambiguous
fee
Muñoz,
holding Lopez
recent
v.
Hock
between a client and its counsel should be
Reed, L.L.P.,
(Tex.
ema &
The
sold the Levines
Smiths
firm
legal fee.
Snell
ment of their
note that called
taking
promissory
partial payment,
the check as
accepted
by a
and was secured
monthly payments
calculated
its fee should be
insisting that
the Levines discover-
deed of trust. When
foundation,
the home’s
the Levines be-
problems
damages
ed
with
awarded
on the
Bayne,
the law firm of
Snell
offset;
posi-
retained
took the
the Levines
fore the
fading
sue the Smiths for
& Krause to
should be calculated
tion that the fee
problems
before
sale.
disclose
(The firm
of the offset.
writing
contracted
enti-
contractually
it was
also asserted
by the
attorney fees awarded
in the
attorney fees awarded
tled to the
and,
addition,
contingent
not chal-
the Levines have
judgment, and
(1/3)
equal to “33-1/3%
assertion.) After the Levines
lenged
recovery”. On
by settlement or
home and still refused
sold their
advice, the Levines discon-
lawyers’
their
owed,
firm claimed
what
and the
mortgage payments,
tinued their
The trial court
firm sued the Levines.
counter-
accelerated the note and
firm,
for the
summary judgment
granted
The trial
claimed for the balance due.
affirmed.2
appeals
and the court
Levines,
court rendered
for the
recovery was
of the Levines’
fees,
value
awarding
damages
attorney
them
have
the same as it would
and for the Smiths on their
mortgage pay-
to make their
continued
awarding them the amount due on the note
award was ments to the Smiths:
fees. The Smiths’
having to
from not
pockets
a fi-
their
Unquestionably, the Levines received
payment. But even
mortgage
make a
nancial benefit from the cancellation
“amount
canceled debt was not an
Smiths,
mortgage debt to the
and the
received”,
money from the sale
surely the
fact. That bene-
acknowledges
of the home was.
cash
fit was converted to
when
view,
cancella-
my
home. In
sold their
with this
disagree
does not
The Court
holds, nevertheless,
of the debt was an “amount received”
amount of
tion
that the
of their
meaning
within the
fee must be
by the Levines
firm’s
the Snell
judgment.
the Snell
Had
calculated on the net
their home free Levines not discontinued
firm. The Levines owned
would have been
legal
bill
clear,
payments,
had cash
and each month
-
(Tex.
S.W.2d -,
Levine,
103 put real of the debt Cancellation not mean eeived”. “any amount received” does that theAs pockets. Levines’ only some received but any amount around, Le- month rolled first of each always Lawyers should received. amounts they long- no had more cash with vines for clear communications strive But payments. had to make er clients, pronouncement obvious but that at one persuasive, if were not even this like in which the a case this irrelevant actual cash obtained point unclear agreement not Court does find home, and the Snell of their from the sale any respect. payment then to insist on firm until waited refusing give for to reasons Court’s argues that of its full fee. Owen meaning agree plain effect to the in the Levines’ person reasonable [a] also have been ment this case could that expect shoes would not legal fees in deny paying have to find a means Reed, Munoz, Hockema & Lopez $53,000 Paying in cash. counsel over Term, L.L.P.,5 just but a case decided last may have been difficult an amount such one did not mention even the Court if for some homeowners impossible not the clients’ There we held them. home.8 selling their higher higher to a “appealed their case so, simply ignores Perhaps unambiguously and as a court” home, did sell their meant — fact that the Levines owed matter of law—that the fee was firm re- and that then did the Snell appeal when the notice of was filed.6 We Surely no rea- of its fee. quest payment rejected argument the clients’ owe his expect client would sonable of a phrase filing could have meant the encum- lawyer nothing removing for brief, presentation argument, if the Le- from his home. Even brance a case for decision.7 did submission of We firm addi- vines did not owe the Snell whether consider home, surely tional fee until sold should have been construed they had the cash hand. they did once it, lawyers who drafted or whether also faults the Snell Justice Owen agreements were able to draft better obtaining “an for anticipate contingencies, or whether from the Levines them, agree clients trusted or whether the amount awarded for would be based on the ment should have been clearer —all of the claims without the Levines’ affirmative gives today agreeing reasons the Court counterclaim, for a reduction completely with the clients. The Court a counter- anticipated have Snell should ignores Lopez, leaving readers wonder 9 certainly firm should claim.” The Snell why higher to a court” should “appealed but it is anticipated have given amount received” effect clarify failing the firm for hard to fault should not. far— when no court so its fee agree- including this one—has held its argues that cancellation of Justice Owen any respect. Until cash ment was unclear mortgage debt was not the Levines’ that have considered today, an “amount re- the courts and therefore was not (Tex.2000). 7. Id. 22 857 S.W.3d 8. Ante at 99. (Tex.App.—San ton S.W.2d An 1998). 9. Ante at 98. io legal position agreed firm’s have tract with it. law in Texas should not be contorted Had the firm dreamed someday, ever try to reach a few judges regard what *12 years later, this Court would refuse to single as fair result in a case. enforce the that no will one imagine can easily many One situations say ambiguous, suspect it would have in which it would be unreasonable to con- counseled the Levines to keep making clude that a something client had received their mortgage payments. when it other was offset awards. This help thinking cannot that the Court’s is not such a case. ob- view, result must influenced its no- real, Levines, tained a cash benefit for the expressed, where it is unreasonable did, and when it entitled to be clients to almost their entire recov- compensated according for its efforts to ery fees, in legal a view with which I am the clear agreement. terms of their quick sympathize. This may explain firm certainly should be denied recov- why the to employ Court is driven a con- ery merely is comprised because it of law- analysis tract deep- construction is so yers.
ly flawed. The Levines could have com-
plained here that their fee contract was
unreasonable, have not done so.
They have even challenged the Snell firm the attor-
ney fees awarded the court in addition fee,
to the contingent they might have.10 Jason SAN MIGUEL & Lidia us, As this case comes issue is Appellants, Miguel, San the proper given plain construction to be language in contract. a fee The Court could hold that the contract language is WINDCREST, Appellee. CITY OF ambiguous, but it would then be inconsis- tent with No. Lopez, its decision which is not 04-00-00244-CV. year even a The Court old. could hold Texas, Court of Appeals that a contingent always fee must be calcu- Antonio. San lated judgment, on a net regardless of says, what the contract perhaps as a mat- 16, 2000. Aug. public
ter of but it is policy, unwilling go Rehearing Jan. Overruled join that far. The could lawyers pres- Owen’s view that should be
cient as or risk Nostradamus the conse-
quences, but does not appeal this view Majority, Left with accept- either. no course, except,
able en- alternative — according
forcement of the contract to its its
terms —the Court bases decision on one
fact that the parties and one fact alone:
the contract are and client. Con- award, Governing without cred- contractual fee and a fee See Law- fee, (2000) ("A iting providing cmt contract the award contractual f yers 34.”). presumptively receive under is to both standard unreasonable