                                            NO. 07-03-0408-CV

                                     IN THE COURT OF APPEALS

                            FOR THE SEVENTH DISTRICT OF TEXAS

                                                AT AMARILLO

                                                    PANEL E

                                        JANUARY 11, 2006
                                 ______________________________

                                   MILES E. and IRENE BALDWIN,
                                                                                         Appellants

                                                         v.

             ROBERT E. GARNER, individually, and TEMPLETON & GARNER,

                                                                                         Appellees
                              _________________________________

                FROM THE 108TH DISTRICT COURT OF POTTER COUNTY;

                          NO. 75,051-E; HON. VANN CULP, PRESIDING
                             ________________________________

                                     Memorandum Opinion
                               ________________________________


Before QUINN, C.J., REAVIS, J. and BOYD, S.J.1


       Because I conclude the trial court erred in holding that the July 1, 1982 fee

agreement was revocable in whole or in part, I respectfully dissent to that determination.


         In Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. 1964) (citing Story, Equity

Jurisprudence, 7th ed. 1857, s 311), after noting the relationship between an attorney and


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          John T. B oyd, C hief Justice (R et.), Se venth Court o f Appea ls, sitting by assignm ent. T E X . G O V 'T
C ODE A N N . § 75.002(a)(1) (Vernon Supp. 200 5).
client is highly fiduciary and that their dealings are subject to scrutiny as a transaction

between a trustee and beneficiary, the Court held as follows:


       [t]he burden of establishing its perfect fairness, adequacy, and equity, is
       thrown upon the attorney, upon the general rule, that he who bargains in a
       matter of advantage with a person, placing a confidence in him, is bound to
       show that a reasonable use has been made of that confidence; a rule
       applying equally to all persons standing in confidential relations with each
       other.


Later, in Levine v. Bayne, Snell & Krause, Ltd., 40 S.W.3d 92, 95-96 (Tex. 2001), the Court

adopted the Restatement (Third) of the Law Governing Lawyers § 18, and held that

because a lawyer is more familiar with the intricacies of legal representation and with the

law and drafting of fee agreements, the burden falls on the lawyer to express the terms of

the payment of the fee.


       According to the agreement printed on the law firm letterhead, Baldwin sought

Garner’s services to represent him in Texas to assist in retaking unidentified property and

to “potentially” (1) file a suit to set aside a foreclosure and (2) sue Baldwin’s former attorney

for neglect and the maker of various notes. The July 1, 1982 fee agreement did not

address a refund of the $20,000 payment or any part thereof if Garner withdrew from

representing Baldwin. However, the agreement did provide that if Baldwin desired to

terminate Garner’s services at any time, counsel would return the $20,000 less amounts

advanced for payment of costs, expenses, and fees earned at $125 per hour, upon request.

Because the agreement did not provide the request for a refund could not be implied, and

was silent as to an accounting for repayment if Garner withdrew from representation,



                                               2
applying the principles announced in Archer and Levine, I conclude the trial court erred in

construing that the $20,000 payment was not refundable, in whole or in part.



                                                Don H. Reavis
                                                  Justice




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