Kelly v. Murphy
| Decision Date | 04 February 1982 |
| Docket Number | No. 18033,18033 |
| Parties | Bruce F. KELLY, Appellant, v. Mary Beth MURPHY, Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Bruce F. Kelly, Houston, for appellant.
James R. Clark, Houston, for appellee.
Before EVANS, C. J., and DUGGAN and WARREN, JJ.
Appellant, Bruce Kelly, an attorney, sued Appellee, Mary Beth Murphy, his former client, seeking quantum meruit recovery of attorney's fees for legal services rendered. Trial was before the court, which entered a take-nothing judgment against the appellant. We affirm the judgment.
Testimony by both parties established that appellee had initially contacted appellant in December of 1974 regarding a minor automobile collision that had occurred in a church parking lot earlier that month. Appellee sought recovery of $136.70 in property damages sustained to her vehicle. Appellant promptly filed a negligence suit for appellee in justice of the peace court, seeking recovery of property damages and alternative transportation expenses totalling $200. The suit was met by a cross-action, resulting in the filing of further pleadings by both sides. Although represented by appellant, appellee filed a pro se response to interrogatories propounded by the defendant and cross-plaintiff. In her response, appellee disclosed lost wages, physical ailments, prior medical treatment and hospitalization bills incurred for periods both before and after the collision. In light of this information, which was apparently unknown to him earlier, appellant non-suited the $200 justice of the peace action he had filed for appellee, and refiled in County Court, alleging $211.40 in property damages and $4,500 in damages for personal injuries and medical and hospital expenses. After learning that her justice court lawsuit had been non-suited and a new suit filed on her behalf by appellant, appellee hired a second lawyer who dismissed the new lawsuit at her request. Appellant formally withdrew as attorney of record and filed this suit to recover in quantum meruit the value of attorney's fees for his representation of appellee.
Conflicting testimony was given at trial as to whether appellee had authorized appellant to non-suit the original justice court action and refile for increased damages, and as to whether her physical ailments and medical damages resulted from the original automobile collision or from her later increasing apprehension as to the direction and magnitude that her original $136.70 property damage case had taken. It was undisputed that appellee did not execute or return to appellant the proposed written attorney-client contingency fee contract that he had prepared and forwarded to her, and which he requested that she sign and return on several occasions. No timely request for findings of fact or conclusions of law was made by appellant, and none were filed by the court. A statement of facts appears in the record.
In his first and third points of error, appellant alleges that the trial court erred in ruling against him by denying recovery of any fee, since he clearly had shown that a contractual relationship existed between himself and appellee, and that he had rendered legal services on her behalf. Where no findings of fact or conclusions of law are timely requested or filed, it is presumed on appeal that the trial court found every fact necessary to support the judgment, and the judgment will be affirmed if it can be upheld on any legal theory that finds support in the evidence. Davis v. Huey, 571 S.W.2d 859 (Tex.1978). In reviewing the record to determine if there is any evidence supporting the judgment and its presumed findings, it is proper to consider only the evidence favorable to the issues and to disregard all evidence or inferences to the contrary. Carter v. William Sommerville and Son, Inc., 584 S.W.2d 274 (Tex.1979). Since it was established by both parties without dispute that a contractual relationship of attorney and client existed between appellant and appellee for the initial $136.70 property damage claim and that legal services were performed, it is presumed for our purposes that these facts were so found by the trial court. Contrary findings would not have been supported by the evidence. Davis, supra; Philen v. Sorenson, 609 S.W.2d 656 (Tex.Civ.App.-Tyler 1980, writ ref'd n. r. e.). However, findings of an attorney-client relationship and performance of legal service are not dispositive of the case. Despite such presumed findings, the judgment denying recovery of any attorney fees can be upheld on several legal theories finding support in the evidence, only three of which will be discussed.
This court has previously held that an attorney damaged by a breach of contract by his...
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