Findlay v. Cave

• Decision Date: 07 January 1981
• Docket Number: No. B-9446,B-9446
• Citation: 611 S.W.2d 57
• Parties: Opal C. FINDLAY, Petitioner, v. Tom CAVE, Respondent.
• Court: Texas Supreme Court

Page 57

611 S.W.2d 57

Opal C. FINDLAY, Petitioner, v. Tom CAVE, Respondent.

No. B-9446.

Supreme Court of Texas.

Jan. 7, 1981.

Rehearing Denied Feb. 25, 1981.

Chancellor & Wood, William A. Forteith and Richard Martin, Dallas, for petitioner.

Evans J. Karpenko, Bedford, Kronzer, Abraham & Watkins, W. James Kronzer, Houston, for respondent.

GREENHILL, Chief Justice.

The question before us in this cause concerns attorney's fees under Texas Revised Civil Statutes article 2226. The trial court rendered judgment on a jury verdict for respondent Cave and awarded him 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, thus discharging any liability for fees expended in litigation thereafter. We hold that it was not.

Opal Findlay retained Cave to represent her in a divorce proceeding and certain other matters. She requested that his fee be taken out of any property received in the divorce settlement. The parties entered into a written employment contract, in which it was agreed that Cave would be paid ten percent of the first $50,000.00 of property value awarded to his client, and five percent of the remainder. The value received by Opal Findlay was $1,106,606.00.

Upon completion of the divorce action, Cave calculated that the amount due him under the above terms of the employment contract was $57,830.29. Mrs. Findlay paid $10,000.00, but refused to pay more. Cave then engaged his own attorney and brought suit on the contract and in quantum meruit for the $47,830.29 balance, plus attorney's fees in collecting the same. The jury found that (1) in entering the contract of employment, Cave made reasonable use of the confidence placed in him; but (2) the employment contract was not fair and reasonable. The jury awarded Cave $5,624.23 (in addition to the $10,000.00 already received) in quantum meruit for his services. Additionally, Cave was awarded attorney's fees necessary in prosecuting the action $12,750.00 at trial, $3,000.00 in the court of civil appeals, and $1,500.00 in this Court. Mrs. Findlay has appealed asserting that the award of attorney's fees to Cave's attorney was error. The amount of the attorney's fees for Cave's attorney is not here in issue. The question is whether any such attorney's fees are allowable.

A creditor who makes an excessive demand upon a debtor is not entitled to attorney's fees for subsequent litigation required to recover the debt. Collingsworth v. King, 155 Tex. 93, 283 S.W.2d 30 (1955); Ingham v. Harrison, 148 Tex. 380, 224 S.W.2d 1019 (1949); Warrior Constructors, Inc. v. Small Business Investment Co. of Houston, 536 S.W.2d 382 (Tex.Civ.App. Houston (14th Dist.) 1976, no writ). In Warrior, as relevant here, the partial guarantor had guaranteed $25,000.00 of a $35,000.00 debt. The creditor demanded...