                                   NO. 07-03-0292-CV

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL E

                                  DECEMBER 3, 2004

                          ______________________________


                            JAMES L. KILLION, APPELLANT

                                            v.

           CHUCK LANEHART, SUCCESSOR INDEPENDENT EXECUTOR
            OF THE ESTATE OF BILL A. DAVIS, DECEASED, APPELLEE


                        _________________________________

            FROM THE 364TH DISTRICT COURT OF LUBBOCK COUNTY;

                 NO. 99-507,797; HON. QUAY PARKER, PRESIDING

                         _______________________________

                                     OPINION
                         _______________________________

Before REAVIS and CAMPBELL, JJ., and BOYD, S.J.1


      In seven points of asserted error, appellant James L. Killion challenges a judgment

in favor of appellee Chuck Lanehart, as successor Independent Executor of the Estate of

Bill A. Davis, deceased. In those seven points, appellant asserts: 1) the trial court erred



      1
      John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment.
Tex. Gov’t Code Ann. §75.002(a)(1) (Vernon Supp. 2004-2005).
as a matter of law in rendering judgment against him for contingent attorney’s fees when

there was no written and signed contract for the payment of such fees; 2) the evidence

does not support the jury finding in jury question 1 that the parties did not have an

agreement as to attorney’s fees; 3) the evidence does not support the jury’s answer to

question 2 finding that appellee was not to pay Bill A. Davis an hourly fee of $150 plus

expenses with a minimum fee charge of $5,000; 4) the evidence does not support the jury’s

answer to question 3 finding that the parties agreed to “an unspecified fee following the

application of the original $5,000.00 paid by James Killion”; 5) the trial court cannot, as a

matter of law, use the jury’s answer to question 4 to support a judgment based upon

quantum meruit; 6) the evidence does not support the jury’s answer to question 4 finding

that Bill A. Davis performed compensable work; and 7) the evidence does not support the

jury’s answer to question 5 finding that $40,000 is a reasonable fee for appeal to the Court

of Appeals. For the reasons expressed below, we affirm the judgment of the trial court.


       In order to properly discuss the issues in this appeal, it is necessary to refer to the

rather complicated facts giving rise to the appeal. Sometime prior to 1997, Bennet Wells

(Wells), an employee of the City of Lubbock (the City), while in the course of his

employment with the City, was rendered a quadriplegic by a drunk driver. The City, as

Wells’ self-insured employer, paid Wells the workers’ compensation benefits to which he

was entitled as a totally disabled employee. Ronnie Agnew, a Lubbock attorney, initially

represented Wells in a third party suit under the Texas “dram shop” law against the seller

of the intoxicating beverages sold to the driver of the automobile who had caused the

accident.


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       The City engaged appellant to act as its attorney on a contingent fee arrangement

to attempt to recover its subrogation interest under the workers’ compensation law from the

dram shop defendant. The case was ultimately settled for the limits of the dram shop’s

insurance of $1,000,000 plus $20,000 in uninsured motorist proceeds, or a total of

$1,020,000. The amount of $870,000 from that settlement was placed in escrow pending

resolution of a suit filed on behalf of Ronnie Agnew seeking an apportionment of attorney’s

fees due.


       In early June of 1997, appellant hired Bill A. Davis (Davis), another Lubbock

attorney, to represent him in the Agnew attorney apportionment suit. In that regard,

appellant testified that he and Davis had only one conversation about Davis’ employment.

He averred that he told Davis that he, appellant, would want to do all the work and he

anticipated that Davis would only have “two, three, four hours in the case.” Appellant

further testified that Davis told him that he did not want to get involved unless he could

make at least $5,000. Appellant said he then responded: “Well, okay , Bill. It will be an

hourly fee, and I’ll guarantee you the minimum of $5,000.00. And that’s what happened.”

There was no written or signed fee agreement at the time. However, on June 4, 1997,

appellant wrote Davis a letter, which in material part, stated:


       I am certainly agreeable to pay your hourly fee of $150.00 per hour plus
       expenses with the understanding that your minimum fee charge will be
       $5,000.00.


It is undisputed that the $5,000 was paid to Davis.




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           In deposition testimony,2 and in regard to the conversation with appellant, Davis

averred: “I wouldn’t touch it for less than $5,000.00, just to look into it and see where we

stood. And, of course, that might be all of it. It might not be all of it. It just depended on

what happened in the case.” Davis denied that he had a specific fee agreement with

appellant and said that the $5,000 was just supposed to be a retainer “to get me in on the

show, because we didn’t know how long that show was going on.” He denied that he had

any discussion about the total fee he would charge and that “we would just sit down and

work out something that was fair and reasonable when it was all over with, see what

happened, the result, and how much time the whole kit and caboodle - - sit down and just

come up with something; be reasonable.” Davis averred he had considered and advised

on pleadings filed in the case, that he had various conferences with appellant’s office and

others about the case and the documents in the case, and that he successfully conducted

the summary judgment hearing, the trial, and the appeal, although the appeal brief was

prepared by appellant’s office and reviewed by Davis.


       On June 6, 1997, appellant sent Davis a letter enclosing various documents relating

to the case and a check in the amount of $2,500. Other than a reference to the check

being one-half of the agreed minimum fee, no reference to an agreed fee was made. On

June 26, 1997, appellant again wrote Davis enclosing a check in the amount of $2,500,

which was referred to as “the remainder of the $5,000 retainer.” These are the only written




       2
         Bill A. Davis was afflicted with throat cancer at the time of the deposition and died
prior to the trial of this underlying suit.

                                               4
references to the parties’ fee arrangement and it is undisputed that Davis made no

response to the 1997 letters.


       Although appellant only recalled one discussion about the fee arrangement itself,

he testified that on two occasions he spoke to Davis about keeping his hours. The first time

was on April 13, 1998, and the second was in this court at the time of the argument during

the appeal of the trial court’s apportionment of the attorneys’ fees held in escrow. On each

of these occasions, appellant averred he told Davis to “keep his hours.” Other than those

requests, appellant never requested any billing or time accounting from Davis.


       Davis testified that after he was retained, he maintained an incomplete time record

for about two months. He said that during the period of time during which he was keeping

a time record, he did not put all of his time on it. According to Davis, the first occasion

appellant saw or requested any record of his time was on November 16, 1999, which was

when his deposition was taken for this case. He also testified that during the period this

case was on appeal, he asked appellant what his idea of a reasonable fee would be, to

which appellant responded that he had $10,000 that he could get his hands on “real quick,”

to which Davis replied, “That ain’t going to do it, Jim.” Under cross-examination about his

fee and when queried whether “this was a contingency fee that you were taking a

percentage of,” Davis’ reply was “. . . there wasn’t no percentage mentioned, but I was

counting on success.” Subsequently, when asked if he “thought that since he [appellant]

got a lot of money, you should get a percent of it,” his reply was, “That’s right; as to how

much good I did him, yeah.” Davis also admitted he did not know just how many hours he

put in on the case.

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       Clyde William “Pete” Harland, a Lubbock attorney, who said he had 32 years trial

experience primarily representing plaintiffs, testified that based upon his review of the work

done by Davis, the nature of the case, and the factors related to a reasonable fee under

Texas Rule of Professional Conduct 1.04, a fair and reasonable fee would be “somewhere

in the range of between 25 percent and 33 and a third percent of the amount in dispute.”

In arriving at that conclusion, he assumed that the parties did not have a contingent fee

contract and he was aware that Davis’ position was that there was no agreement as to the

amount of his fee after the initial payment of $5,000. Harland also testified that the time

spent by an attorney on a case could be determined without an attorney maintaining hourly

records and that an attorney could easily spend 33 hours in a two-week period on a case.

Those conclusions were strongly contested on cross-examination.


       John Simpson was called by appellant and averred that he was the one who had

recommended Davis to appellant.          He had been an attorney since 1974 initially

representing plaintiffs. He also had been mediating cases since 1992. Simpson said he

had some personal knowledge of the case in question. In his opinion, after reviewing the

letter from appellant to Davis, it amounted to “a nonrefundable retainer agreement of

$5,000 and the hourly rate for the time will be $150.00 an hour.” However, Simpson did

admit that he could “see how the parties could argue that there was not a meeting of the

minds.” He also testified: “Quantum Meruit - - as I understand the law, you cannot have

Quantum Meruit if there is an agreement. If there is no agreement, then you can have a

Quantum Meruit recovery.”




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       The rules by which we consider and determine legal and factual insufficiency

questions are by now axiomatic. When a party challenges the legal sufficiency of the

evidence supporting an adverse finding on an issue on which he does not have the burden

of proof, that party must demonstrate on appeal that there is no evidence to support the

adverse finding. Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). We consider all

the evidence in the light most favorable to the jury’s verdict, indulging every reasonable

inference in favor of the prevailing party. Associated Indem. Corp. v. CAT Contracting, Inc.,

964 S.W.2d 276, 285–86 (Tex. 1998). A legal sufficiency point will be sustained when (a)

there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of

law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c)

the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the

evidence conclusively establishes the opposite of a vital fact. Merrell Dow Pharms. v.

Havner, 953 S.W.2d 706, 711 (Tex. 1997), cert. denied, 523 U.S. 1119, 118 S.Ct. 1799,

140 L.Ed.2d 939 (1998). If the record contains any evidence of probative force to support

the jury’s finding, the legal insufficiency challenge must be overruled. ACS Investors Inc.

v. McLaughlin, 943 S.W.2d 426, 430 (Tex. 1997).


       When a party attacks the factual sufficiency of an adverse finding on an issue on

which he has the burden of proof, he must demonstrate on appeal that the adverse finding

is against the great weight and preponderance of the evidence. Croucher, 660 S.W.2d at

58. The court of appeals must consider and weigh all of the evidence, and may only set

aside the finding if the evidence is so weak, or if the finding is so against the great weight

and preponderance of the evidence that it is clearly wrong and unjust. See Pool v. Ford


                                              7
Motor Co., 715 S.W.2d 629, 635 (Tex.1986), overruled on other grounds by Crown Life Ins.

Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000). Thus, appellant’s matter of law point would

only be valid if the evidence establishes conclusively that the parties had entered into a

contingent fee contract and if there is any evidence of probative force to raise a fact

question in that regard, his point must fail. Further, if in applying the rule, the court feels

that reversal is mandated, it must detail all of the relevant evidence and state in what

regard the contrary evidence greatly outweighs the evidence in support of the verdict. Pool

v. Ford Motor Co., 715 S.W.2d at 635.


       If any finding is challenged for factual sufficiency of the evidence, all of the evidence

in the record must be reviewed. See Plas-Tex, Inc. v. U.S. Steel Corp. 772 S.W.2d 442,

445 (Tex. 1989). In order to require reversal, the jury’s verdict must be so contrary to the

overwhelming weight and preponderance of the evidence as to be clearly wrong and unjust.

See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). If there is conflicting evidence on a

disputed fact question, it is the sole and peculiar province of the jury to judge the credibility

of the witnesses and assess the weight to be given their testimony in order to arrive at the

answer deemed the most reasonable. In discharging its function, the jury has the sole right

to believe all, some, or none of the testimony of the witnesses. Benoit v. Wilson, 150 Tex.

273, 239 S.W.2d 792, 796-97 (1951). We are not authorized to set aside a jury verdict

merely because the jury might have drawn a different conclusion from the evidence. Id at

797.


       The gist of appellant’s argument under this first point is that, because under the

evidence, there was no definite agreement as to the amount of Davis’ fee, his fee must

                                               8
have been a contingent one. If it was a contingent fee agreement, he reasons, it would be

invalid because it is not in writing and thus fails to meet the legal requirements that a

contingent fee agreement should be in writing and signed by the attorney and the client or

it is voidable by the client. See Tex. Gov’t Code Ann. §82.065 (Vernon 1998); Tex.

Disciplinary R. Prof’l Conduct 1.04, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app.

A (Vernon 1998).


       Under this record, the jury could reasonably have deduced that there was no

meeting of the minds between appellant and Davis other than the $5,000 non-refundable

retainer and that Davis contended he would seek recovery of the remainder of his fee on

a quantum meruit basis, with one of the aids to the jury in arriving at a figure that they might

consider a percentage of the amount recovered. In Texas, the parties to a contract may

agree upon some terms of a contract, and understand them to be a contract and yet leave

other terms of the agreement to be made later. Scott v. Ingle Bros. Pacific Inc., 489

S.W.2d 554, 555 (Tex. 1972). Moreover, it is a corollary of the rule that as to those terms

left for future discussion, that portion of the agreement is not part of the enforceable portion

of the contract. Thus, the resolution of the difference between appellant and Davis as to

whether there was or was not an agreement as to the manner and amount of the remainder

of Davis’ fee was a factual dispute within the province of the jury to resolve. Appellant’s first

point is overruled.


       In his next two points, appellant contends the evidence does not support 1) the jury’s

answer to question 1 that the parties did not have an agreement as to attorney’s fees, and

2) that appellant was not to pay Davis an attorney’s fee of $150 per hour plus expenses

                                               9
with a minimum fee charge of $5,000. Our discussion and disposition of appellant’s first

point foreshadows our disposition of these two points. We have discussed in considerable

detail above both the factual evidence and the law pertaining to measuring the factual

sufficiency to sustain the jury’s answers to questions submitted to them. Suffice it to say

that we find the evidence sufficient to sustain the jury’s answer to both questions.

Appellant’s second and third points are overruled.


       In his fourth point, appellant argues that the evidence is not sufficient to support the

jury’s answer to jury question 3 which inquired if the parties agreed to an unspecified fee

following the application of the original $5,000 paid by appellant. Under the evidence we

have set out above, in particular that of Davis, the jury acted within its province in resolving

any factual conflicts in favor of Davis and in finding there was such an agreement.

Appellant’s fourth point is overruled.


       In jury question 4, the trial court inquired if Davis performed compensable work for

appellant. In his fifth point, appellant contends as a matter of law that the jury’s affirmative

answer to that question cannot be used to support a quantum meruit judgment. Quantum

meruit is an equitable theory of recovery which is based upon an implied agreement to pay

for benefits received. Vortt Exploration Co., Inc. v. Chevron U.S.A., Inc., 787 S.W.2d 942,

944 (Tex. 1990). To recover under that doctrine, a plaintiff must establish that: 1) valuable

services and/or materials were furnished 2) to the party sought to be charged 3) which

were accepted by the party sought to be charged and 4) under such circumstances as

reasonably notified the recipient that the plaintiff in performing expected to be paid. Id.

The right to recover in quantum meruit does not grow out of the contract, but is independent

                                              10
of it. The right is based upon a promise implied by law to pay for beneficial services

rendered and knowingly accepted. Campbell v. Northwestern National Life Ins. Co., 573

S.W.2d 496, 498 (Tex. 1978). Thus, the doctrine could be applicable in instances such as

this one. See Enochs v. Brown, 872 S.W.2d 312, 320 (Tex. App.–Austin 1994, no writ),

overruled on other grounds by Roberts v. Williamson, 111 S.W.3d 113 (Tex. 2003).

Appellant’s fifth point is overruled.


       In his sixth point, appellant contends the evidence does not support the jury’s finding

that Davis performed compensable work for appellant. Our disposition of appellant’s

preceding points foreshadows our disposition of this point. Suffice it to say, we hold the

evidence, if accepted by the jury, which it obviously was, is sufficient to sustain that jury

finding.


       In his seventh point, appellant argues the evidence is not sufficient to support the

jury’s finding in response to question 5 that $40,000 would be a reasonable fee for an

appeal to the Court of Appeals. In addition to the evidence we have discussed above,

appellant introduced into evidence Davis’ letter to appellant dated July 27, 1999. In that

letter, Davis refers to his opinion that the parties had never actually agreed to a total fee

arrangement and, based upon some factors he lists, suggests that a fee of $45,000 “would

not be unreasonale [sic].” He then suggests that the $5,000 retainer previously paid be

credited on that fee, leaving a balance due of $40,000. In Prati v. New Prime, Inc., 949

S.W.2d 552 (Tex. App.–Amarillo 1997, pet. denied), we had occasion to discuss a point

challenging a jury award of damages. Because of the similarity of the awards, that

discussion is applicable here. We pointed out that because the jury is the sole judge of the

                                             11
credibility of the witnesses and the weight to be given their testimony, the jury has

considerable discretion, and the mental processes by which a jury determines the amount

of damages is ordinarily not cognizable by an appellate court and where the law does not

provide a precise legal measure of damages, the amount is generally within the discretion

of the jury. Id. at 555. The evidence in this case is sufficient to sustain the jury’s finding

that $40,000 was a reasonable fee. Appellant’s seventh point is overruIed.


       In summary, all of appellant’s points are overruled and the judgment of the trial court

is affirmed.


                                                  John T. Boyd
                                                  Senior Justice




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