Nguyen Ngoc Giao v. Smith & Lamm, P.C.

714 S.W.2d 144
CourtCourt of Appeals of Texas
DecidedSeptember 18, 1986
Docket01-85-0993-CV
StatusPublished
Cited by92 cases

This text of 714 S.W.2d 144 (Nguyen Ngoc Giao v. Smith & Lamm, P.C.) 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
Nguyen Ngoc Giao v. Smith & Lamm, P.C., 714 S.W.2d 144 (Tex. Ct. App. 1986).

Opinions

OPINION

JACK SMITH, Justice.

This is an appeal from a summary judgment awarding attorney’s fees pursuant to a contract executed between the parties.

The facts in the instant case are undisputed. In February, 1982, the appellant [146]*146retained the law firm of Adamo, Cobb & Cornelius to represent him in a contract dispute styled Nguyen Giao v. Nguyen Thong and Vietnamese Brothers, Inc. The appellant signed a contract providing that, inter alia, he would pay the firm $100 per hour for its services.

On March 26, 1983, Adamo, Cobb & Cornelius assigned its rights under the contract to the appellee. In June, 1984, the appellee represented the appellant in his claim against Nguyen Thong and the Vietnamese Brothers, Inc. Sometime thereafter, the appellee billed the appellant $19,-613.45 for the services it had rendered.

After the appellant failed to pay, the appellee filed suit to recover the $19,613.45 pursuant to its contractual arrangement with the appellant, plus interest and attorneys fees. In response, the appellant filed only a general denial. The appellee then moved for summary judgment based upon the contract executed by the appellant. The court granted the motion and awarded the appellee the $19,613.45 in attorney’s fees under the contract, $1,323.90 in prejudgment interest, and $3,750 in attorney’s fees for the instant case.

In his first point of error, the appellant contends that the trial court erred in rendering summary judgment for the appellee because the summary judgment evidence did not establish as a matter of law that there was no genuine issue of material fact and that the appellee was entitled to judgment as a matter of law. In his second point of error, he argues that the trial court erred in entering judgment because the appellee did not meet its burden of proving the fairness, adequacy, and equity of the contract between the parties. His third point of error urges that a material fact issue existed regarding his ability to voluntarily enter into the contract and fully comprehend its terms.

The question on appeal in a summary judgment case is not whether the summary judgment proof raises fact issues with reference to the essential elements of a plaintiff’s claim or cause of action; but whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff’s cause of action. Blum v. Mott, 664 S.W.2d 741, 745 (Tex.App.-Houston [1st Dist.] 1983, no writ). In reviewing a summary judgment record, this court has the duty of applying the following rules: 1) the movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; 2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true; and 3) every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in his favor. Wilcox v. St. Mary’s University, 531 S.W.2d 589, 592-93 (Tex.1975).

In his response to the appellee’s motion for summary judgment, the appellant stated that he could not read, write, or speak the English language and that it was his understanding that the contract between the parties provided for a contingent fee arrangement.

It is well settled that illiteracy will not relieve a party of the consequences of his contract. Associated Employers Lloyds v. Howard, 156 Tex. 277, 281, 294 S.W.2d 706, 708 (1956); Indemnity Insurance Co. of North America v. W.L. Macatee & Sons, 129 Tex. 166, 170-71, 101 S.W.2d 553, 556 (1937). As a general rule, every person having the capacity to enter into contracts, in the absence of fraud, misrepresentation, or concealment, must be held to have known what words were used in the contract and to have known their meaning, and he must also be held to have known and fully comprehended the legal effect of the contract. Indemnity Insurance Co. of North America, 129 Tex. at 171, 101 S.W.2d at 556. Therefore, if a person is unable to read the contract, he must have it read to him. Id. at 171, 101 S.W.2d at 557. The rule will not operate, however, where trick or artifice is resorted to for the purpose of preventing the party [147]*147from reading it or having it read to him. Id.

The appellant in the instant case attempts to distinguish this general principle on the basis that the parties were in a confidential relationship with one another. The appellant maintains that the law imposes a burden upon an attorney of establishing the absolute fairness of transactions he has entered into with a client. See Archer v. Griffith, 390 S.W.2d 735, 739-40 (Tex.1965); Cole v. Plummer, 559 S.W.2d 87, 89-90 (Tex.Civ.App.—Eastland 1977, writ ref’d n.r.e.); Ames v. Putz, 495 S.W.2d 581, 583 (Tex.Civ.App.—Eastland 1973, writ ref'd). It is true that this rule will apply to a contract or other transaction relating to compensation, provided the attorney-client relationship is in existence at the time. Archer, 390 S.W.2d at 739. Therefore, if the employment contract between the attorney and his client was made at the inception of the prior employment, or at or before the present employment, it will not be tainted with the fraud that attaches by presumption to agreements made in the course of the attorney-client relationship. Cole v. McCanlies, 620 S.W.2d 713, 715 (Tex.Civ.App.—Dallas 1981, writ ref’d n.r. e.); Johnson v. Stickney, 152 S.W.2d 921, 924 (Tex.Civ.App.—San Antonio 1941, no writ).

The Archer rule has not been applied, however, where prior to the execution of the contingent fee contract the relationship of attorney and client did exist. Plummer v. Bradford, 395 S.W.2d 856, 859-61 (Tex.Civ.App.—Houston 1965, no writ). The court distinguished the Archer line of cases on the ground that in those decisions the client had attacked the transaction on some ground of unfairness. Id. at 861. Therefore, the court held that unless a client raises the issue of unfairness or inequitable conduct, the presumption of unfairness will not arise. Id. The rationale behind the rule is that an attorney should not be required to defend a conveyance made to him by his client and to establish that such conveyance was fair, just, and equitable, when the issue of unfairness is not asserted or involved. Id. at 861.

In the instant case, the appellant responded to the appellee’s motion for summary judgment by asserting that the parties’ language barrier created a fact issue as to whether there was a sufficient meeting of the minds to create a contract. The appellant did not allege the existence of a confidential relationship between the parties or the breach of a fiduciary duty by the appellee. Neither did he allege that he was induced into entering into the contract through fraud or other inequitable conduct.

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Bluebook (online)
714 S.W.2d 144, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nguyen-ngoc-giao-v-smith-lamm-pc-texapp-1986.