Seaman v. Neel
| Decision Date | 27 April 1972 |
| Docket Number | No. 526,526 |
| Parties | John G. SEAMAN, Appellant, v. Adrienne NEEL, Independent Executrix of the Estate of C. B. Neel, Deceased, Appellee. |
| Court | Texas Court of Appeals |
Davis & Hale, Allen V. Davis, Corpus Christi, for appellant.
Allison, Maddin, White & Brin, David Yancey White, Corpus Christi, for appellee.
This is a suit by Adrienne Neel in her capacity as independent executrix of the estate of her deceased husband C. B. Neel to recover a portion of attorney fees due from the surviving member of the law firm in which her husband was senior member. The case was tried before a jury. Based on special issues answered, the trial court entered judgment for Mrs. Neel in the amount of $21,900.00. This was the amount the jury found to be her share of the reasonable value of the legal services rendered by the law firm up to the time of her husband's death. The succeeding member of the law firm appeals, complaining principally that the judgment in favor of the widow is excessive. We affirm.
Appellant Seaman's first point of error is:
'Judgment should not have been rendered on the verdict because $36,500.00 as the fee for the amount and kind of the work done in the short period involved is excessive to the point being unconscionable.'
Rule 440, Texas Rules of Civil Procedure, provides:
The Supreme Court of Texas has held that a determination of excess by a Court of Civil Appeals is one of fact. Dallas Ry. & Terminal Co. v. Farnsworth, 148 Tex. 584, 227 S.W.2d 1017 (1950); Carter v. Texarkana Bus Company, 156 Tex. 285, 295 S.W.2d 653 (1956). Our high court has reaffirmed that such a determination is factual when it made clear that the responsibility of the various courts of civil appeals is the same as that of the trial courts. Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959); see also Coastal States Gas Producing Company v. Locker, 436 S.W.2d 592 (Tex.Civ.App.--Houston 14, 1968).
The Honorable Eugene L. Smith, in an article entitled Texas Remittitur Practice, 14 Southwestern Law Journal 150, agrees that a determination of an excess judgment in an unliquidated damage case is one of fact. He suggests that a prudent lawyer who wishes to attack a verdict as excessive would do well to allege that the verdict was 'so excessive as to be manifestly unjust' 'without support in the evidence', and/or 'against the overwhelming weight and preponderance of the evidence.' However 'All the Court of Civil Appeals can do, and all that is required of it to do . . . is to exercise its sound judicial judgment and discretion in the ascertainment of what amount would be reasonable compensation . . ., and treat the balance as excess. . . .' Wilson v. Freeman, 108 Tex. 121, 185 S.W. 993 (1916); Flanigan v. Carswell, 159 Tex. 598, 324 S.W.2d 835 (1959).
A review of the evidence shows that Judge C. B. Neel was a distinguished lawyer and practitioner in Corpus Christi. He died in January 1965. For some twenty-five years prior to his death, Dr. J. H. Harvey had been a friend and client of Judge Neel. In 1951 Judge Neel employed John G. Seaman, the defendant, to work in his law office. Less than a year and a half prior to Judge Neel's death, he and Seaman entered into an agreement whereby their respective interests and ownership in the future operation of their law office were set out and agreed upon. In a three-page, single-spaced letter agreement, Judge Neel proposed to Seaman certain terms for the settlement and termination of their association as lawyers in the event of death, illness, disability or retirement of either of them. It was evident from such agreement, that the firm and law practice belonged to Judge Neel up until this particular time. The letter, for instance, acknowledges that the library belonged to Judge Neel and the administration of the office and bank account was carried in Judge Neel's name. The agreement authorized Seaman to carry on the firm in the firm name in the event of Judge Neel's disability or upon his death, if Seaman was still practicing with Judge Neel at such time. The agreement gave Seaman the option to purchase the law library, title opinions and files. It provided specifically for the settlement of contingent fees, property taken in as fees and gave to Seaman all the fees for work performed by him, one month after Judge Neel's death. It then stated, however, that:
'. . . If any work has been done upon any matters in the office prior to my death or retirement, then you and my representatives, in the event of my death, or myself upon retirement, shall agree upon the division of these fees (that had accrued up until the time of his death) Upon an equitable basis taking into consideration the amount of work theretofore done, and as to the amount of work thereafter to be done.' (Emphasis and Parenthesis supplied)
Seaman accepted Judge Neel's proposal.
On December 17, 1963, a will for Dr. J. H. Harvey was drawn by the firm of Neel & Seaman in which the Corpus Christi Bank & Trust Company was named Independent Executor of the Estate and trustee of a perpetual type trust set up principally for various charitable organizations. In the next to the last article of the will, it stated that:
'The executor and trustee shall employ Neel and Seaman (C. B. Neel and/or John G. Seaman) as attorneys, or attorney, for the estate of J. H. Harvey, deceased, and the trust created herein; but upon the refusal or inability of the survivor of them to act, then the executor and/or trustee shall employ counsel of their own choosing and Pay to the attorneys acting for such executor and trustee reasonable fees for their services.' (Emphasis supplied)
On January 8, 1965, Dr. Harvey died leaving an estate consisting primarily of land and oil, gas and mineral interests valued in excess of 2 1/2 million dollars. Immediately upon Dr. Harvey's death, the Corpus Christi Bank & Trust Company employed Neel and Seaman as their attorneys. Judge C. B. Neel commenced at once the business of representing the independent executor in the probate of this estate. Judge Neel conducted the initial interview with the executor relative to Dr Harvey's estate; prepared the application for the probating of the will; set the hearing for such application; and attended and conducted the hearing in the probate court on behalf of the estate which culminated in admitting the will to probate. He prepared the order probating the will. He secured the necessary judicial approval of the order, and prepared and filed the oath of the independent executor.
On January 29, 1965, Judge Neel died, Seaman succeeded to the law practice of Neel and Seaman conducting the same under the firm name. He continued to represent the executor of Dr. Harvey's estate. All matters relative to the financial arrangement of the law firm were settled and concluded with Seaman buying the library and settling all accounts with Judge Neel's widow, except the Harvey estate. Seaman continued his law practice by himself for several months and then joined the firm of Keys, Russell, Keys & Watson. He became a partner in their firm.
In January 1966 Seaman billed the executor for $15,000.00 for 'professional services rendered.' This was promptly paid by the Bank. On January 4, Seaman wrote to Mrs. Neel stating that he had collected the sum of $15,000.00 from the Bank as executor of Dr. Harvey's Estate for services in connection with the estate. He stated that:
'In accordance with the letter agreement between Judge and myself, and taking into consideration the services rendered to the Estate prior to the Judge's death, and after careful consideration and much study, It appears to me that your fair share of the total fee to be charged in the Harvey Estate would be the sum of $5,000.00, and I hand you herewith check of this firm in the said amount as payment in full in connection with said estate.' (Emphasis supplied)
A few days later, Mrs. Neel returned the check to Seaman stating that she was returning the check because:
'. . . I feel the present time and this check in the amount of $5,000.00, is premature.
'After the Harvey Estate is finally and completely settled, I will be happy to fully discuss the Neel and Seaman partnership settlement of this matter with you and Mr. Keys.'
In July 1966, Seaman billed the executor for another $15,000.00 for 'professional services rendered.' This was also promptly paid without question. Seaman made no further written offer then, or any time thereafter, to settle the fee with Mrs. Neel except upon the initial unilateral proposal made in January 1966. Whereupon Mrs. Neel, as independent executrix of the estate of C. B. Neel, brought suit against Seaman to determine and adjust the contractual rights which grew out of the letter agreement between Judge Neel and Seaman while they were practicing together.
During the trial, the Honorable Robert W. Blount, an attorney and head of the Trust Department of the Corpus Christi Bank & Trust, testified relative to the Harvey Estate. He stated that he was Vice President of the Bank as well as the trust officer. He said he had the primary responsibility for the handling of the Harvey Estate. He testified that the Bank as executor had employed Neel and Seaman as their attorneys to probate the Harvey estate. He testified in effect that the Bank had always employed the lawyer or lawyers named in a...
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