Clary v. Schmolke

977 S.W.2d 883, 1998 Tex. App. LEXIS 6951, 1998 WL 770454
CourtCourt of Appeals of Texas
DecidedNovember 5, 1998
DocketNo. 09-97-065CV
StatusPublished
Cited by5 cases

This text of 977 S.W.2d 883 (Clary v. Schmolke) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clary v. Schmolke, 977 S.W.2d 883, 1998 Tex. App. LEXIS 6951, 1998 WL 770454 (Tex. Ct. App. 1998).

Opinion

OPINION

BURGESS, Justice.

This lawsuit involves a dispute over a portion of attorney’s fees generated by the settlement of Robert J. Solar, Jr.’s personal injury lawsuit. Attorneys James R. Clary, Jr., Robert H. Schmolke, and Clayton Clark entered into litigation concerning these fees. The trial court entered a final judgment in favor of Schmolke. Clary appeals bringing thirty-six points of error.

The facts of the underlying suit are as follows: Solar suffered personal injuries while working on an offshore rig off the coast of Louisiana. He initially retained Clary to represent him in a lawsuit against his employer. At that time, Clary was working as an associate for Schmolke’s law firm in Louisiana. Clary then referred the case to Clark, a Texas attorney. Clark and Clary reached an agreement whereby they would split the legal fees on a fifty-fifty basis. Clary later resigned from Schmolke’s firm. Clark settled Solar’s personal injury suit generating $160,000 in legal fees. Clark kept $80,000 for himself, sent $40,000 to Clary, and then placed another $40,000 into the registry of the court because of a dispute between Clary and Schmolke concerning the fees. The dispute resulted in litigation involving Clary, Schmolke, and Clark. The trial court entered judgment for Schmolke, awarding him the $40,000 that was placed in the court registry and also awarded him attorney’s fees and prejudgment interest.

In points of error one through five, Clary alleges that because there is no evidence and insufficient evidence that Solar retained Schmolke to represent him in a personal injury lawsuit, the trial court erred in finding that the dispute does not involve Solar and in finding that Schmolke is entitled to recover the $40,000 in the registry of the court.1

A party attempting to overcome an adverse fact finding as a matter of law must surmount two hurdles. First, the record must be examined for evidence that supports the court’s finding, while ignoring all evidence to the contrary. Second, if there is no evidence to support the fact finder’s answer, the entire record must be examined to see if the contrary proposition is established as a matter of law. Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989); Holley v. Watts, 629 S.W.2d 694, 696 (Tex.1982); Texas & N.O.R. Co. v. Burden, 146 Tex. 109, 203 S.W.2d 522 (1947). When reviewing a factual sufficiency point of error, we must consider and weigh all the evidence and should set aside the judgment only if the evidence is so weak as to make the finding clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986); In Re King’s Estate, 150 Tex. 662, 244 S.W.2d 660, 661 (1951).

The evidence at trial established that Clary worked as an associate for Schmolke for 13 years. In July 1992, Clary began being compensated pursuant to a contract of employment. The contract provided that [886]*886Clary would be compensated 50% for any ease he originated and developed through its final resolution or 25% of any case the law firm originated, but gave to Clary to develop for resolution. In December 1993, Clary informed Schmolke that he was going to Morgan City to “pick up a maritime case.” This maritime ease involved Solar, who, according to Schmolke, had been referred to the Schmolke firm by a client of the firm, Mr. Lodrigue. After investigating the case, Clary told Schmolke that the ease had been “run,” implying that Solar had retained another lawfirm. Clary, however, signed up Solar as a client using a contingent fee agreement from the Schmolke law firm. Solar mailed the signed contingent fee agreement back to the Schmolke law firm. The evidence at trial showed that Clary began representing Solar while using the work product of the Schmolke firm, charged long distance calls to the firm, and answered calls from other individuals about the Solar case, all during his employment with Schmolke. Clary had no agreement with Schmolke to moonlight on other cases. Clary denied the existence of the Solar case when confronted by Schmolke. Clary resigned from Schmolke’s firm on February 16,1994, taking the Solar ease with him and without telling Schmolke of the existence of the file.

At trial, the parties stipulated, and the court accepted, that the relationship between Clary and Schmolke giving rise to the dispute would be controlled by Louisiana substantive law. In his brief, Clary argues that the Louisiana Rules of Professional Responsibility prohibit a lawyer from sharing a fee with another attorney with whom the client did not contract. Clary urges that Solar did not hire Schmolke and did not intend for Schmolke to share the fee.

In Scurto v. Siegrist, 598 So.2d 507 (La.Ct.App.), writ denied, 600 So.2d 683 (La.1992), a fee dispute arose between two attorneys. The primary issue in the case was the division of a contingent attorney fee which resulted from the settlement of a personal injury lawsuit. The court found that the contract between the two attorneys was the governing principle between them. Id. at 510. The court stated that the Rules of Professional Conduct “[do] not prohibit enforcement of that agreement and [do] not require apportioning of the fee on a quantum meruit basis.” Id.See also Lawrence v. Wynne, 598 So.2d 1293, 1295-96 (La.Ct.App.), writ denied, 604 So.2d 969 (La.1992).

In the present case, there is some evidence to support the trial court’s findings that Solar retained Schmolke’s law firm to represent him. Additionally, after considering and weighing all the evidence, we do not find the evidence supporting the trial court’s findings to be so weak as to make the findings clearly wrong and unjust. Points of error one through five are overruled.

In points of error six through nine, Clary alleges the evidence is factually and legally insufficient that Solar signed a Schmolke contingent fee agreement and, therefore, the trial court erred in finding that he did and in its conclusion of law that quantum meruit does not apply.

Clary was paid according to the terms of an unsigned contract between himself and Schmolke while he was employed by Schmolke. The contract represented the agreement between them, according to Schmolke’s testimony. As outlined above, Clary began working on the Solar case while employed by the firm and while under contract with Schmolke. The trial court did not err in finding that Solar signed a Schmolke contingent fee agreement and in its conclusion of law that quantum meruit does not apply. There was some evidence presented at trial that Clary signed up Solar as a client while Clary was working for Schmolke and under the terms of Clary’s employment agreement with Schmolke. After considering and weighing all the evidence, we do not find the evidence supporting the trial court’s findings to be so weak as to make the findings clearly wrong and unjust. Points of error six through nine are overruled.

In points of error ten and eleven, Clary complains of the evidence proving that Clary and Schmolke had a valid employment contract governing the distribution of Solar’s personal injury suit and the evidence proving that Schmolke is entitled to the $40,000 in the registry of the court.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
977 S.W.2d 883, 1998 Tex. App. LEXIS 6951, 1998 WL 770454, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clary-v-schmolke-texapp-1998.