Findlay v. Cave, 18226
| Decision Date | 20 March 1980 |
| Docket Number | No. 18226,18226 |
| Citation | 597 S.W.2d 37 |
| Parties | Opal C. FINDLAY, Appellant, v. Tom CAVE, Appellee. |
| Court | Texas Court of Appeals |
Opal C. Findlay, defendant in the judgment, has brought a limited appeal. Following judgment upon a jury verdict which found defendant liable for a part of the amount for which Tom Cave had sued her as attorney's fees she found satisfaction in the amount adjudged liable to him therefor. However she was not pleased with that part of the judgment upon the verdict which decreed her liability for additional attorney's fees for the prosecution of Cave's action against her, i. e. to pay attorney Evans Karpenko. It is from this part of the judgment that the appeal is brought.
We affirm.
Within 15 days after date defendant's motion for "partial retrial" was overruled she served notice of "limitation of appeal", and within 15 days thereafter she perfected her appeal.
The defendant's request for preparation of the Statement of Facts and Designation of Matters to be Included and Omitted were timely filed. Recited therein is the following:
There was no request by plaintiff, Cave, that anything in addition to that requested by defendant be included. The record reached this court in the condition requested by defendant.
We have searched the defendant's brief for a representation to our court that in none of the evidence directed to be omitted was there anything which could have had any bearing upon necessity for the plaintiff's having obtained the services of attorney Karpenko to bring and prosecute his suit; nor is there representation that in none of such evidence was there anything which bore upon the reasonableness of the amounts the jury found to be the value of Karpenko's services.
Because of this we deem there to have been matter in the omitted evidence which would support the jury findings made at least as applied to amounts. The necessity is really not a question for Cave was entitled to hire a lawyer and he did employ Mr. Karpenko.
The jury findings relative to Karpenko's services were: (1) $12,750.00 was the reasonable attorney's fee for the necessary legal services provided in representation of Cave through completion of trial in District Court; (2) plus $3,000.00 additional in the event appeal therefrom be taken to the Court of Civil Appeals; (3) and plus $1,500.00 in the event an application for writ of error be made to the Supreme Court from the decision of the Court of Civil Appeals.
For purposes of discussion to follow we shall deem the Statement of Facts to have contained all the evidence necessary to pass upon the defendant's points and disregard the presumption of support for the judgment by the other evidence. Our holding on that premise is that the jury's findings find adequate support by evidence and were not excessive. In relation thereto it is to be observed that the number of hours worked by Karpenko, multiplied by the usual and customary charge therefor in the vicinity where performed, are conceded to have supported the amounts found by the jury if based upon reasonable charges for Karpenko's time. The issues are therefore narrowed to the question of the necessity for Karpenko's time expenditure in the rendition of necessary services, with the assumption that such services as were performed were necessary. To the extent allowed by the jury (somewhat less than the Karpenko charge) there would be no question of propriety of amounts found by the verdict unless it be improper for the jury to consider and use the value of Karpenko's time as basis for the answers.
The attorney's fee allowed for Karpenko's services was greater than attorney's fee allowed for Cave. The defendant makes much of this and of the fact that plaintiff Cave, though having declared by his suit the defendant's obligation to pay him $57,830.29 reduced by way of amount paid thereon to balance of $47,830.29, had been unable to recover only the balance amount of $5,624.23. Following return of its answer "No" to the issue inquiring whether the plaintiff's contract with defendant for his services in the divorce case was fair and reasonable, the jury proceeded to return its answer granting Cave attorney's fees upon a theory of quantum meruit. It found the reasonable value of the Cave services in the divorce case to be only $15,624.23 (and that by credit of the amount theretofore paid such plaintiff should only recover from defendant the amount of $5,624.23). This meant that Cave recovered only about one-fourth of what he sought.
Of course, the degree of success attained by attorney, Karpenko, in obtaining from def...
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Findlay v. Cave
...attorney's fees necessary in prosecuting that action. The court of civil appeals upheld the reasonableness of the attorney's fee award. 597 S.W.2d 37. The question presented to this Court is whether the original demand for payment upon petitioner Findlay was excessive as a matter of law, th......