Dissenting Opinion Filed August 8, 2013




                                         S  In The
                                      Court of Appeals
                               Fifth District of Texas at Dallas

                                      No. 05-10-01133-CV

                            ELIZABETH W. CELMER, Appellant
                                         V.
                              CHARLES MCGARRY, Appellee

                       On Appeal from the 101st Judicial District Court
                                    Dallas County, Texas
                           Trial Court Cause No. DC-09-3023-E

                                  DISSENTING OPINION

                      Before Justices O’Neill, FitzGerald, and Lang-Miers
                           Dissenting Opinion by Justice FitzGerald

       It is not plausible that Celmer, an experienced loan officer, would expect McGarry, an

experienced lawyer, to work for years on her case—and that McGarry would do so—without a

written contingency agreement or without charge. This case is about money, pure and simple,

and Celmer’s refusal to pay McGarry, the one lawyer who won her case on appeal, then persisted

in representing Celmer through a retrial and the subsequent appeals. Celmer argues there was no

agreement to pay McGarry; but even if there were, it would not be enforceable because it was

not in writing; but even if it were, it would be unconscionable.

       The jury soundly rejected Celmer’s position by finding that Celmer and McGarry agreed

to a new fee agreement prior to the second trial, entitling McGarry to a 50% contingency fee
based on Celmer’s entire recovery, plus $200 per hour, plus expenses. By rendering judgment

for McGarry, the trial judge implicitly rejected Celmer’s statute-of-frauds defense.

       I would conclude that the evidence was legally and factually sufficient to support the

rejection of Celmer’s statute-of-frauds defense, and I would affirm the judgment in favor of

McGarry on his breach-of-contract claim.

A.     The live pleadings

       The nature of McGarry’s breach-of-contract claim is set forth clearly in his live pleading.

In 2001, Celmer approached McGarry and begged him to take her appeal from an adverse

judgment in her divorce case, which she had tried pro se. He agreed, and under their fee

agreement Celmer agreed to pay McGarry 45% of her interest in the Norgasco stock, which

would increase to 50% of the Norgasco stock if any filing were made in the Texas Supreme

Court. Celmer also agreed to pay McGarry his expenses. McGarry won the appeal, and

Celmer’s ex-husband did file a petition for review in the Texas Supreme Court. See Bufkin v.

Bufkin, No. 08-02-00025-CV, 2003 WL 22725522 (Tex. App.—El Paso Nov. 20, 2003, pet.

denied) (mem. op.). But Celmer failed to pay all of the expenses of the appeal as agreed.

       Once appellate proceedings were complete, the case returned to the trial court for a new

trial. According to McGarry’s live pleading, this is what happened next:

       As a result of the appellate victory, the parties agreed that the contingent fee
       should apply to the entire recovery, and . . . not just the Norgasco stock. Since it
       was clear that [Celmer] could not pay expenses, the defendant McGarry agreed to
       finance them until the end of the case. Since the original agreement had been
       clear that defendant McGarry would not represent [Celmer] in the trial court,
       [Celmer] offered to pay defendant McGarry an additional $200 per hour on
       remand, in addition to the contingent fee. Although this was less than defendant
       McGarry’s customary rate, defendant McGarry accepted the agreement, since he
       was also receiving a contingent fee, and because it was anticipated that the
       additional hourly compensation would be minimal, since he was merely assisting
       another attorney on the case. The amended agreement between the defendant
       McGarry and [Celmer] was evidenced in writing by an exchange of electronic
       mail, each of which was electronically signed by the parties. . . . Although the
       parties contemplated putting this agreement in the form of a formal contract, no
                                               –2–
          one has been able to locate such[ ]a document. . . . Celmer, however, has stated
          that she did sign a formal agreement reflecting the amended terms. In any event,
          the exchange of electronic mail sufficiently evidences an enforceable agreement.

McGarry’s live pleading put Celmer on notice that McGarry was relying on both his exchange of

emails with Celmer and on a lost writing to evidence the second contract.

          McGarry represented Celmer in the litigation for several more years, including

mandamus proceedings in the court of appeals and supreme court, see In re Bufkin, 224 S.W.3d

223 (Tex. App.—El Paso 2005, orig. proceeding [mand. denied]), a jury trial, and another appeal

to the court of appeals and supreme court, Bufkin v. Bufkin, 259 S.W.3d 343 (Tex. App.—Dallas

2008, pet. denied).

          Celmer pleaded the statute of frauds, without citing a specific statute or rule, as an

affirmative defense to “McGarry’s claims for attorney’s fees and breach of contract.”

B.        The findings under review in this appeal

          The jury found in answer to Question Number 2 that Celmer and McGarry intended to be

bound by an agreement for McGarry to receive “a) a contingent fee equal to 50 percent of

Celmer’s total recovery from the second trial; b) an hourly fee equal to $200 per hour for

McGarry’s time spent in connection with the second trial; and, c) reimbursement of expenses

advanced by McGarry on Celmer’s behalf in connection with the second trial.”1 There was no

jury question asking the jury whether this agreement was in writing. By signing a judgment in

favor of McGarry on his breach-of-contract claim, the trial judge implicitly found that this

element of Celmer’s affirmative defense of statute of frauds was resolved in McGarry’s favor.

See TEX. R. CIV. P. 279 (deemed findings in support of judgment).

     1
       Question Number 4 was, “Was the agreement you have found in response to Question Number 2 fair and reasonable considering as a
whole the circumstances existing at the time the agreement was made?” Question Number 5 was, “Did Celmer fail to comply with the agreement
you found in response to Question Number 2?” Question Number 6 was, “What sum of money, if any, if paid now in cash, would fairly and
reasonably compensate McGarry for his damages, if any, that resulted from Celmer’s failure to comply with the agreement found by you in
response to Question Number 2?” Thus, the charge made it clear to the jury that it had found that an agreement existed in answer to Question
Number 2.



                                                                   –3–
       Celmer filed a motion for new trial in which she argued that she and McGarry did not

reach a meeting of the minds as to a second agreement and that there was no writing sufficient to

satisfy the writing requirement for contingency-fee agreements required by Rule 1.04 of the

Texas Disciplinary Rules of Professional Conduct. At the new-trial hearing, McGarry argued

that the evidence showed that there could have been a second written contract and that “the jury

probably believed that there was a second [written] contract. Ms. Celmer had the documents.

Ms. Celmer had the files. Conveniently, no second agreement appeared, even though in one of

her e-mails where she says she has a photographic memory, she recalled signing a second

agreement.” McGarry argued further, “There was a second [written] agreement. It was either

destroyed or lost, either intentionally or unintentionally. We don’t know.” The trial judge

overruled Celmer’s motion for new trial by signed order.

C.     Celmer’s briefing is inadequate to establish reversible error.

       As previously noted, McGarry relied on two factual theories that the statute of frauds was

satisfied: that he and Celmer executed a written agreement that was lost or destroyed, and that

their emails satisfied the statute of frauds. Each theory was sufficient to support the judgment in

McGarry’s favor. But in her principal appellate brief, Celmer specifically addresses only the

email theory. Otherwise, her brief contains only general assertions that there was no evidence to

support the existence of a written agreement between her and McGarry. In my view, this is

insufficient to challenge the specific factual theory of a lost written agreement. The failure to

adequately brief an issue, either by failing to specifically argue and analyze one’s position or by

failing to provide authorities and record citations, waives any error on appeal. In re B.A.B., 124

S.W.3d 417, 420 (Tex. App.—Dallas 2004, no pet.); see also In re M.A.S., 233 S.W.3d 915, 924

(Tex. App.—Dallas 2007, pet. denied) (“Failure to provide substantive analysis waives an issue

on appeal.”).   If an appellant fails to challenge an independent ground that supports the


                                               –4–
judgment, we must affirm because any error identified by the appellant is harmless. Oliphant

Fin. LLC v. Angiano, 295 S.W.3d 422, 423–24 (Tex. App.—Dallas 2009, no pet.).

            I would reject Celmer’s attack on the sufficiency of the evidence for inadequate briefing.

D.           The evidence of a lost writing was legally and factually sufficient.

            One of McGarry’s theories in this case is that his second fee agreement with Celmer was

in writing but that the writing was lost or destroyed. “A contract is not rendered unenforceable

by the loss of the memorandum required by the statute [of frauds].” Chakur v. Zena, 233 S.W.2d

200, 202 (Tex. Civ. App.—San Antonio 1950, no writ). “[W]here the memorandum required by

the statute was duly made and signed by the party to be charged, and is afterward lost or

destroyed, its contents may be proved by oral testimony in an action against such party.” Id.;

accord EP Operating Co. v. MJC Energy Co., 883 S.W.2d 263, 267 n.1 (Tex. App.—Corpus

Christi 1994, writ denied); 37 C.J.S. Frauds, Statute of § 219 (2008). The proof of the lost

memorandum must be clear and convincing. EP Operating Co., 883 S.W.2d at 267 n.1; Chakur,

233 S.W.2d at 202.2 McGarry argued that the evidence supported the existence of a lost written

agreement in his motion for entry of judgment, and he continues to assert this position on appeal.

            The existence and terms of the written second contract are proved by evidence from two

principal sources: an email written by Celmer in March 2009 in which she unequivocally

asserted that there was a second written agreement, and McGarry’s trial testimony in support of

that agreement.              First, on March 2, 2009, Celmer wrote an email to McGarry stating the

following:

            Charles there was a second written letter agreement related to you taking on as
            a divorce attorney after we discussed that you were to be involved and when Jo[e]
            withdrew for duplication of attorney purposes.: $200 per hour is what we have
            agreed as you state, plus cost incurred by you related to my trial, if the cost was


     2
         Some other jurisdictions also follow this rule. E.g., Lutz v. Gatlin, 590 P.2d 359, 361–62 (Wash. Ct. App. 1979).



                                                                       –5–
       not paid to the experts there would not be any assets nor trial to win nor loose
       [sic].

       ...

       Jo[e] Amberson did not care to pay for anything so that is why you stepped in
       since the huge portion of 50% of the asset was to be awarded to you only for the
       appeal. it [sic] was over a million dollar case.

       ...

       We need to have theses [sic] documents present before I can have a feel for the
       numbers. I have signed both instruments at your office or faxed it to you, either
       way.

       These are 2 instruments we have ever signed related to my case and you being
       paid, and you would base your calculation on:
       1: Appellate
       2. Rate of $200/HR as my divorce attorney
       3. Hard cost. 26K

       So at this time my understanding is you have calculated all proposals from your
       memory since no letters can be located.

       I have a photographic memory in general, but I would be hesitant to recall
       anything especially nuances if any in this important matter involving a lot of
       money.

       ...

       Our agreements were signed prior of you having any of my records at your
       office.
       All records were trasfered [sic] from Jo[e]’s office to yours after we signed
       papers.
       Originally I brought all files to your old office after we signed a letter agreement.

       I hope you can find these tomorrow to expedite the fee process this week
       considering Bufkin payoff estimate would be on the 3/16/09.

(Emphases added.) Celmer was a senior loan officer for a mortgage company, so she was not an

unsophisticated client. The trial judge was entitled to believe her unequivocal statements that a

second signed, written agreement existed.

       Celmer’s March 2, 2009 email was clear that she and McGarry had a second written fee

agreement, and that this agreement included terms entitling McGarry to a fee of $200 per hour


                                               –6–
and his trial expenses. She did not mention the expanded contingency fee of 50% of her entire

recovery as opposed to 50% of the recovery from the Norgasco stock, but McGarry supplied the

evidence for this term. McGarry was asked on direct examination whether he remembered

drawing up a new agreement after the conclusion of the first appeal. McGarry testified as

follows:

       Actually, my initial recollection was that I had. I mean, well, not right then but
       soon thereafter. I actually—my first recollection was that there were two
       agreements. You know, at the end of the case, I couldn’t find either one of them
       because I had given all the files back to the client, but—.

When McGarry’s attorney then asked if there might be a second written agreement, McGarry

answered as follows:

       My initial recollection was that there were two formal agreements, and actually
       Ms. Bufkin says also that her initial recollection was that there were two formal
       agreements. I couldn’t find either one. At the end of the case, she found only this
       first one. And you know, she came back at me at the end of the case and said,
       hey, this is the only agreement we ever did. Which that wasn’t what I recalled.
       Now—.

McGarry also testified what the terms of the second agreement were:

       We had an agreement. We changed the original agreement. The agreement was
       50 percent of everything, plus $200 an hour for my time—which was at a
       discounted rate—and expenses. And that was the agreement that I recall. That
       was the agreement she recalled. We both recall there was a written agreement,
       but neither of us could find it.

On cross-examination, McGarry testified that his computer suffered a hard-drive crash and he

lost several years’ worth of documents, including the years when the second contract would have

been executed. Celmer did not introduce any evidence contradicting McGarry’s evidence about

the hard-drive crash. And Celmer acknowledged that McGarry had returned twenty-eight boxes

of documents to her by March 2009, so McGarry could not search those boxes for the missing

written contract.




                                              –7–
           The foregoing evidence is more than enough to support the trial judge’s implied finding

that the agreement found by the jury in answer to Question Number 2 was in writing. There was

additional evidence of the second agreement as well. After the remand by the El Paso Court of

Appeals, McGarry retried the case in January and February 2006, and Celmer recovered

approximately $300,000 in that trial. In March 2006, she said in an email to McGarry, “Of

course $150K plus your fees is a great number for you now and maybe not important to get

additional 400K to hustle with this issue for possibly 2 more years.” This email demonstrates

Celmer’s belief that she owed McGarry half of her entire recovery, consistent with McGarry’s

testimony about the terms of the new agreement.3 Similarly, in a July 2007 email to McGarry,

Celmer wrote, “I am aware that I owe you 50 % of the recouped assets for the 1st appeal and the

additional deivorce [sic] fees.” Although these two emails do not directly address the writing

requirement, they show Celmer’s belief that McGarry was entitled to half of her recovery in the

second trial, and thus they support the existence and terms of the new fee agreement.

           There was other evidence tending to show that Celmer agreed to change the parties’

original 2001 agreement. She testified that she and McGarry made a new agreement allowing

her not to pay the expenses until the end of the case. She acknowledged that she did not

complain when McGarry sent her an updated invoice in November 2005, which indicates that

she herself believed that she owed McGarry money under an agreement different from the 2001

agreement.

           It also bears mentioning that Celmer’s trial counsel acknowledged that one interpretation

of the evidence was that Celmer had destroyed or lost a second written agreement. At the

hearing on Celmer’s motion for new trial, Celmer’s trial counsel argued:

     3
       Celmer implausibly tried to deny the plain meaning of this email by testifying, “This is not what I’m saying, but that’s what it says,” and,
“I’m not sure [why I wrote that ‘$150K plus your fees is a great number for you now’].” McGarry testified that he understood Celmer’s reference
to “$150K” to mean “the 50 percent contingent fee on the jury’s verdict.”



                                                                      –8–
       We produced all the documents we were requested to produce. I never saw a
       document that even remotely approached the second agreement. And I will say
       that the suggestion that my client destroyed it or inadvertently couldn’t find it
       would certainly be one interpretation. The other one would be that it was never
       prepared and never sent her and never signed by anybody.

The trial judge made some observations on the record at that same hearing:

       The Court went to some lengths to charge the jury on the issue of whether a
       second contract was formed between Mr. McGarry and Ms. Celmer. The jury
       found that there was such a contract, and I remain of the opinion that the evidence
       was more than sufficient to support that conclusion. It’s clear to the Court that the
       jury neither believed nor sympathized with Ms. Celmer.

It was the trial judge’s prerogative to reject Celmer’s statute-of-frauds defense in his deemed

findings based on the evidence that the second agreement was in writing but had been lost.

       Of course there was some contrary evidence as well. Celmer testified and flatly denied

that she ever made a written agreement with McGarry to pay him $200 an hour or a 50% interest

in all of the property she recovered. Accordingly, she testified that she owed him nothing except

“the costs.” And during a portion of his cross-examination, McGarry equivocated about the

existence of a second written agreement.       When asked whether he prepared a second fee

agreement like the one he and Celmer had previously executed, he testified:

       I cannot answer that clearly yes or no. My recollection was that I did. Her
       recollection was that I did. I have no record of it currently, and despite my
       requests to your client, I have not been able to locate one. And so I have
       concluded—or it is my belief that it is more likely than not that there wasn’t a
       second written agreement and that we are both mistaken. But I can’t categorically
       say that because, as I said, we both remembered that there was. It just hasn’t
       shown up.

Celmer’s counsel then said, “Okay. You said that it was more likely than not that there was not a

second written agreement.” McGarry responded:

       I think that’s my own personal conclusion, that—because I sent e-mails to your
       client saying, no, you know, we might have just exchanged e-mails and made our
       agreement that way. You know, that’s entirely possible. And, certainly, that’s the
       only evidence of the agreement I have been able to locate after getting your
       client’s records.


                                               –9–
But under the appropriate standards of review, after weighing all the evidence, I conclude that

there was clear and convincing evidence that a second written agreement existed but had been

lost or destroyed. The trial judge’s implicit rejection of Celmer’s statute-of-frauds affirmative

defense was not so contrary to the weight of the evidence as to be clearly wrong and manifestly

unjust.

E.        The evidence of a written agreement concluded by email was also sufficient

          McGarry also argues that the parties’ emails constituted an agreement that satisfied the

statute of frauds by virtue of the Texas Uniform Electronic Transactions Act. The majority

rejects his argument. I disagree.

          Under the Texas Uniform Electronic Transactions Act, a legal requirement of a writing

can be satisfied with an electronic record, and a legal requirement of a signature can be satisfied

by an electronic signature. TEX. BUS. & COM. CODE ANN. § 322.007(c), (d) (West 2009). An

electronic signature is “an electronic sound, symbol, or process attached to or logically

associated with a record and executed or adopted by a person with the intent to sign the record.”

Id. § 322.002(8). The Act “applies only to transactions between parties each of which has agreed

to conduct transactions by electronic means.” Id. § 322.005(b). “Whether the parties agree to

conduct a transaction by electronic means is determined from the context and surrounding

circumstances, including the parties’ conduct.” Id. Viewing the evidence as a whole, I conclude

that McGarry and Celmer agreed to make their second fee agreement electronically, and that

their emails support the jury’s finding of the terms of that agreement.

          The majority holds that there is no evidence that Celmer and McGarry agreed to conduct

their second fee-agreement transaction electronically, focusing on emails in which Celmer

indicated that she wanted McGarry to draw up an agreement for her to sign. I view the evidence

differently. In PX 8, an email dated July 9, 2004, Celmer states, “I will be happy to sign another


                                               –10–
contract with you and whatever work you will decide to do in my case for us you can bill me

accordingly at the rate of $200.00 per hour. Your fees have to be paid after final distribution of

proceeds . . . .” This shows that Celmer and McGarry had already discussed the terms of their

new fee agreement, including his specific hourly rate and the deferral of payment. In PX 21, an

email dated November 3, 2005, Celmer acknowledged receipt of McGarry’s latest bill, his first

in over a year. She expressed no surprise or objection at receiving his bill, which she would have

done if she were still expecting to execute a signed, written agreement with McGarry instead of

proceeding on the terms they had previously discussed in their emails. Then, after the case had

been retried, Celmer sent McGarry an email on March 23, 2006 in which she expressed her

dissatisfaction with the outcome but acknowledged, “Of course $150K plus your fees is a great

number for you now and maybe not important to get additional 400K to hustle with this issue for

possibly 2 more years.” This statement makes sense only if Celmer believed that McGarry’s

contingency fee would be based on her entire recovery and that he was entitled to additional fees

on top of that contingency fee. And this belief supports the inference that the parties had, at

some point, agreed to transact their second fee agreement electronically.

       I also rely on PX 12, which contains a March 2, 2009 email from McGarry to Celmer in

which he says, “As for the hourly rate that I began charging after I took over for Joe Amberson,

we made that agreement simply by exchanging emails.” This is some evidence that the parties

agreed to transact their second fee agreement electronically. Finally, there is the parties’ course

of dealing. Although Celmer made some statements in 2004 indicating that she wanted a written

and signed addendum to the previous fee agreement, she did not insist on an agreement in that

format when McGarry continued to represent her after the conclusion of the appeal, sent her

billing statements, and even served as her trial counsel at the retrial of her case. The evidence




                                              –11–
supports the proposition that Celmer and McGarry agreed to transact their second fee agreement

electronically.

       The majority also holds that there is no evidence of an electronic record that is sufficient

to encompass all the terms of the agreement found by the jury. I disagree. The key components

of that agreement as found by the jury are (1) the expansion of McGarry’s contingency fee from

50% of the Norgasco stock to 50% of Celmer’s entire recovery, (2) an additional deferred hourly

rate of $200 per hour, and (3) expenses for trial. Celmer acknowledged the deferred hourly rate

in her email of July 9, 2004. She acknowledged the expansion of McGarry’s contingency fee in

her post-trial email of March 23, 2006, when she wrote, “Of course $150K plus your fees is a

great number for you now . . . .” Celmer’s reference to $150K after the jury verdict of $302,010

makes sense only if McGarry’s 50% contingency-fee rate were applied to Celmer’s entire

recovery and not just the Norgasco stock. Celmer also acknowledged the new fee arrangement

in her email of July 11, 2007, when she wrote, “I am aware that I owe you 50 % of the recouped

assets for the 1st appeal and the additional deivorce [sic] fees.” She referred to “the recouped

assets” and not just the Norgasco stock, and she again acknowledged McGarry’s entitlement to

additional fees as well. Finally, in her email of March 2, 2009, Celmer acknowledged that she

owed McGarry $200 per hour as her “divorce attorney,” plus “Hard Cost. 26K,” which other

evidence established was the amount of McGarry’s expenses for the trial. Although Celmer did

not mention the contingency fee in this email, she had already alluded to it in her previous

emails, and the jury was entitled to conclude that, considering all the emails together, the true

agreement between McGarry and Celmer was what McGarry claimed: 50% of Celmer’s entire

recovery, plus $200 per hour and expenses.

       Accordingly, I conclude that there was sufficient evidence of an electronic agreement

between Celmer and McGarry that satisfied the statute of frauds and incorporated the terms

                                              –12–
found by the jury. The trial judge did not err by rendering judgment on the verdict in favor of

McGarry on his breach-of-contract claim.

F.         Unconscionability and public policy

          Celmer argues in the alternative that the second fee agreement is unenforceable because it

is unconscionable and violates public policy. The majority concludes that McGarry failed to

establish that the fee he sought under the second agreement was reasonable, but it rejects

Celmer’s contention that he should forfeit his entire fee. I would conclude that Celmer’s

argument that the second fee agreement was unconscionable is without merit.4

          Whether a fee agreement is contrary to public policy and unconscionable at the time it is

formed is a question of law. Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 562 (Tex. 2006).

Whether a particular fee amount or contingency percentage charged by an attorney is

unconscionable under all the relevant circumstances of the representation is an issue of fact. Id.

at 561. Under the Texas Disciplinary Rules of Professional Conduct, a fee is unconscionable if a

competent lawyer could not form a reasonable belief that the fee is reasonable in light of all

relevant circumstances, including several factors spelled out in Rule 1.04(b). See id. at 561–62

n.7 (citing TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04, reprinted in TEX. GOV’T CODE ANN. tit.

2, subtit. G, app. A). These factors include the time and labor required, the novelty and difficulty

of the questions presented, the skill required to perform the legal services properly, the amount

involved and the results obtained, the time limitations imposed by the client or the

circumstances, the lawyer’s experience, reputation, and ability, and whether the fee is fixed or

contingent. See id.



     4
        Although the trial judge rendered judgment for McGarry on his claim for breach of the second fee agreement, the judge did not award
McGarry all of the $276,390.37 in damages found by the jury. The judge reduced the amount to $208,816.37, stating on the record that any fee in
excess of that would be unconscionable. McGarry perfected a cross-appeal but subsequently waived any challenge of the trial judge’s reduction
of the damages awarded.



                                                                   –13–
       Celmer argues that it was unconscionable for McGarry to charge her both a 50%

contingency fee based on her entire recovery and $200 an hour because that fee “ensure[d]” that

she would receive little or nothing at the conclusion of the case. McGarry responds that the fee

was not unconscionable, and in his appellate brief he describes the work he performed on

Celmer’s case:

       He represented Celmer for nine years without payment, financing the case, and
       reached the Supreme Court of Texas on three separate occasions. The case
       required a review of properties in four different states, the preparation of
       historical appraisals for properties in three different states, including two privately
       held companies. Both Bufkin and Celmer filed personal bankruptcies at various
       times during the litigation, as did one of Bufkin’s privately held companies. The
       case actually lasted long enough that Celmer was able to file bankruptcy and
       obtain a discharge (including a discharge of most of her legal fees) on two
       separate occasions.

       It was fair to expand the contingency fee’s base from the Norgasco stock to the whole of

Celmer’s recovery because the retrial involved proving the value of several other assets,

including some real estate, in addition to the Norgasco stock, all of which McGarry financed.

McGarry testified that when Celmer first sought his services, she went to his office, got on her

knees and begged him to take her case. Celmer did not controvert that testimony. McGarry

testified that Celmer asked him to appeal a divorce decree that had been rendered after a trial in

which she was pro se. She had been represented by three different law firms in sequence in the

years leading up to the trial, but at trial she was pro se. Moreover, she was in bankruptcy and

had no money, so if McGarry took her case, he had to take it on a contingency fee and be willing

to advance substantial expenses. McGarry testified that in their first meeting Celmer voluntarily

offered him 50% just to appeal her case. While Celmer testified that she and McGarry reviewed

the value of the properties and the court records together during that meeting, McGarry testified

that the only documents he viewed prior to signing the original contract were the divorce decree

and the prenuptial agreement, neither of which assigns any value to the properties. McGarry


                                               –14–
testified that he was not able to review the trial transcript or prenuptial rulings until after he had

taken the case, and that the only property Celmer seemed to be concerned with was the Norgasco

stock. When asked why the contingency was limited to this one asset, McGarry explained that,

because Celmer only seemed concerned with the stock, he limited the issues on appeal to just the

interpretation of the contract and the valuation of the Norgasco stock. This allowed him to

reduce expenses for Celmer associated with the appeal as he did not have to submit the entire

clerk’s record; only the relevant portions of the record were necessary to file with the appellate

court. He also testified that taking the appeal was extraordinarily risky because all he could do

on appeal was potentially win her a new trial and a chance at winning some money; he was not

in a position to win Celmer a money judgment in the appeal itself. The appeal was also going to

be a difficult one to win because of the broad discretion that trial judges enjoy in dividing the

marital estate.

        The original fee agreement gave McGarry a 45% contingency fee interest in Celmer’s

interest in the Norgasco stock. That interest increased to 50% if any filing was made in the

Texas Supreme Court in the appeal.         This contingency arrangement, which is common in

contracts of this kind, was reasonable, particularly in light of its limitation to a single asset;

contingency-fee agreements normally extend to all assets recovered.            The agreement also

expressly limited McGarry’s role to the appeal, excluding any proceedings on remand.

        McGarry took the case on appeal and won a reversal of the adverse judgment. Celmer’s

ex-husband did unsuccessfully attempt to appeal to the Texas Supreme Court. Thus, McGarry

was entitled to a 50% contingency fee in the Norgasco stock under the original contract.

Notably, although Celmer was supposed to pay McGarry the expenses associated with the

appeal, which were about $3,500, she paid him only $1,000.




                                                –15–
       McGarry’s involvement in the case continued after remand. He had already earned his

entire fee relative to the Norgasco stock under the first agreement, so the parties negotiated a

new agreement.     Celmer proposed to increase McGarry’s percentage of her recovery, but

McGarry told her he thought it would be unethical for him to seek any additional percentage, and

he proposed a deferred hourly rate instead. Celmer agreed to pay McGarry 50% of her entire

recovery.

       The contingency fee must also be understood in context. There were four properties at

issue after the remand. McGarry’s legal fee for work previously performed was based on one of

these four specific properties, the Norgasco stock, and his fee was already earned when he won

Celmer’s appeal. Once McGarry began fronting the expenses for the retrial, he was increasing

his risk by spending money to prove asset valuations in support of recoveries in which he had no

interest under the first agreement. Thus, because McGarry was spending both time and money to

litigate the values of additional properties beyond the Norgasco stock, it was reasonable to

expand the base of his contingency fee to include Celmer’s entire recovery. In addition, he set

an hourly rate, and Celmer was responsible for reimbursing expenses.

       The hourly rate of $200 an hour was a reduced rate from McGarry’s normal rate of $240

or $250 an hour. McGarry intentionally reduced his rate because he was under the impression

that he would only be working as needed to assist the lead attorney, and would not be spending

significant resources on the trial. He believed at the time of the second agreement that he would

not make a significant amount of money from the hourly fee, and that charging a reduced hourly

fee in addition to the contingency would be reasonable. Even Celmer herself testified that the

rate was “irrelevant” and that she had no problem with the hourly fee.

       There was evidence of several factors that support the reasonableness of this fee

structure. McGarry testified that the issues were very complex, and some of them were issues of

                                              –16–
first impression. The retrial of the case would be expensive, requiring experts to perform historic

appraisals of various pieces of property, and McGarry was agreeing to advance payment of

substantial expert witness fees. It was a difficult case to prove, because Celmer’s case depended

on proving that assets had increased in value, which was speculative.

       McGarry also testified to his superior qualifications, such as over twenty-eight years of

law practice, his board certification in appellate law, and his past service as Chief Justice of the

Court of Appeals. He performed extensive work after remand, including handling a mandamus

proceeding that was also appealed to the Texas Supreme Court. At first, Celmer was also

represented by a family-law attorney named Joe Amberson, but eventually he withdrew and

McGarry became her only trial attorney. Amberson testified at trial that Celmer “had very strong

opinions that at times had to be dealt with,” and that “at times present[ed] problems.” Once

Amberson withdrew, McGarry resumed sending monthly bills to Celmer so that she would know

her current status, and she never complained until just before her opponent, Bufkin, was going to

pay off the judgment.

       McGarry devoted substantial time and effort to preparing the case for trial, such as hiring

experts and going to property inspections with property appraisers. Celmer herself testified that

McGarry put a lot of work into the case and went to court for “all the hearings.” McGarry also

tried the case, which took five days. All totaled, McGarry billed Celmer for 337.87 hours for the

work he performed on the case after the first appeal was over. The trial resulted in judgment for

$302,010. The trial court also awarded prejudgment interest, which the court of appeals reversed

on appeal because McGarry had not pleaded for prejudgment interest. Additionally, McGarry

successfully prevented Celmer’s ex-husband from recouping $64,000 that he had paid to Celmer

as attorneys’ fees before the first trial of the case, which she had not been entitled to under the

parties’ prenuptial agreement. Significantly, if McGarry were limited to recovering under his

                                               –17–
first fee agreement with Celmer, he would have recovered no contingency fee, because there was

no recovery based on the value of Norgasco stock.           But under the expanded second fee

arrangement, he was able to recover some fees because the jury did find in Celmer’s favor on

two other assets that were litigated in the second trial.

       Celmer’s ex-husband decided to pay the judgment off, but Celmer objected to his writing

a check payable jointly to her and McGarry. Celmer’s ex-husband ultimately paid the judgment

amount into the registry of the court so that Celmer and McGarry could litigate their respective

claims to the money. Celmer also did not pay McGarry any of the expenses he had fronted for

the second trial, which were about $23,000. Joe Amberson, who had represented Celmer for a

time after the remand, was paid for his work out of the registry of the court. In her pleading in

this case, Celmer asserted that McGarry should recover nothing on his claim against her; on the

witness stand, she took the position that McGarry was entitled to recover nothing from the

money in the registry of the court “except the costs.” Her conduct during the trial also led the

judge to excuse the jury so that he could order her to stop giving nonresponsive answers to

questions, on pain of contempt. In closing arguments, the parties took opposite positions, with

McGarry arguing for and Celmer arguing against the existence of the second fee agreement.

       Given all the facts, particularly the uncertainty that there would be any recovery at all, the

difficulty of the issues, the financial risk McGarry assumed in fronting the expenses, the time he

spent on the case over the course of seven years, and his qualifications, Celmer did not show that

the second fee agreement was unconscionable or against public policy. It may be true that

enforcement of the second fee agreement would substantially reduce Celmer’s recovery. But as

the trial judge remarked during the hearing on Celmer’s motion for new trial, “If Ms. Celmer is

down to no money left, it’s basically because of her own insistence on attempting to stiff her own

lawyer and continue litigation.”

                                                 –18–
       After reviewing all the relevant circumstances, I conclude that the fee agreement that the

jury found to exist in answer to Question Number 2 was not unconscionable.

G.     Conclusion

       For the foregoing reasons, I respectfully dissent from the majority’s decision reversing

the trial court’s judgment in McGarry’s favor on his breach-of-contract claim arising from his

second fee agreement with Celmer.




                                                  /Kerry P. FitzGerald/
101133F.P05                                       KERRY P. FITZGERALD
                                                  JUSTICE




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