Miles E. Baldwin and Irene Baldwin v. Robert Garner, Individually and Templeton & Garner ( 2006 )

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,
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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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