### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-13-00679- CV

Daniel R. Gonzale z, Appellant

v. Chris Barney and S arah Barney, Appellees

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 425 TH JUDICI AL DISTRICT NO. 12- 3749 -F 425, H ONO RAB LE B ETSY F . LAMB ETH, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant Daniel R. Gonzalez appea ls the trial court’s deni al o f his claim for an
awa rd of attorney s’ fee s he asser ts are owed to him by appellee Sarah Ba rney for lega l service s he perf ormed on her behalf in connec tion with her divorce proce eding s. I n three issues, Gonzalez 1

asser ts that the trial court e rre d by deny ing his c laim for fe es. We will rever se and r emand.
BACK GR OUND Gonzalez intervene d i n t h e underly ing divorce proce eding and soug ht to rec over attorney s’ fee s he alleg ed wer e owed to him for leg al service s he perf ormed for Sarah Ba

rney until she dismiss ed h i m as her attorney
. Gonzalez asser ted that he was entitled to his fee s pursuant to

Although Chris B arne y was a party to the underly ing proce eding s, none of the causes of 1 action Gonzalez asser

ted in his plea in intervention were ag ainst him. Consequently , his liabili ty , if any , for a ttorney s’ fe es owe d by Sarah B arne y

is not at issue in thi s appea l.theories of brea ch of contra ct, quantum meruit, and suit on a sworn acc ount. The trial court held an

evidentiar y hear ing reg arding Gonzalez’s claims. Both Gonzalez and Ba rney testified at the hear ing. Gonzalez testified that Ba rney hired him to repr esent her on or about Dec ember 10, 2012. Acc ording to Gonzalez, Ba

rney reque sted that he perf orm leg al service s rela ted to reta ining conser vatorship of her children and to repr esent her in the divorce proce eding s. Gonzalez sent Ba rney a document titled “Attorne y Fe e Contract
. ” Al though Ba rney never signe d the contra ct, she did forwa rd Gonzalez the $2,500 reta iner h e re q uested. Gonzalez testified that he perf ormed leg al service s for Ba rney , including prepa

ring and filing an orig inal petition in a suit aff ecting the pare nt-child rela tionship, prepa ring and filing a motion to transfe r venue, and worki ng on prepa ring temporar

y order s. Gonzales stated that, as a result of his leg al service s, Ba rney reta i n ed the rig ht to possession and

ac ce ss to both of her children and was g iven exclusive use and enjoy ment of the marit al h o m e. Gonzalez testified that he billed Ba rney a total of $5,625 for these leg al service s and that, afte r applicatio n o f t h e re tainer, a balanc e of $3,125 rema ined. Gonzalez testified that he and Ba rney ag ree d to an hourly rate of $250, which Gonzalez s t at ed wa s a rea sonable and customary rate for attorney s with his experience in Wil liamson Count y . Gonzalez testified that he sent Ba rney an invoice dated J anuar

y 22, 2013, which she returne d with the notation “I am relieving y ou o f y our duties. —Sarah Ba

rney .” Gonzalez then sent Ba rney a final bill on Fe bruar y 6, 2013, which added char g es for work perf ormed befor e he was dismiss ed b u t that wer e not included on the J anuar y 22 bill. The stated amount due was $3,125. The invoice did not include a descr iption of the leg al service s provided; rathe r, it stated simply that Gonzalez had do n e 3
. 5 hours of work in

2Dec ember 2012 and 19 hours of work in J anuar y 2013 at $250 per hour. Gonzalez testified that Ba rney did not pay

the balanc e he c laims is owed. Ba rney testified that she hired Gonzalez to r epre sent her in the divorce proce eding s
on Dec ember 10, 2012. She stated that she rec eived an attorney -ser vices contra ct by email but never signe d it. Ba

rney acknow ledg ed that she sent Gonzalez the reque sted $2,500 reta iner. Ba rney stated that Gonzalez told her he would apply her reta iner to his billings and then would send her monthly statements. Ba

rney testified that she rec eived the J anuar y 22, 2013 invoice by email and that she understood the invoice to indicate that she owed $2,812 less the reta iner amount of $2,500, for a total of $ 3 1 2
. 50. Acc ording to Ba rney , Gonzalez never sent her a subsequent invoice and made no additional demand f

or pay ment. The trial court adjourne d the hear ing and took Gonzalez’s claims under advisement. There afte r, t he trial court denied the claims Gonzalez asser ted i n his plea in intervention, and this appea l followed.
DISCUSSIO N

Gonzalez bring s three issues challeng ing the trial court’s denial o f h i s reque st for attorney s’ fee s under either a brea ch of contra ct theory , quantum meruit, or as a suit on a
sworn acc ount. No fi ndings of fac t or conclusions of law wer e filed. When no such finding s or conclusions are filed, all nece ssary finding s supported by the evidenc e sustaining the judgme nt are implied. W

orford v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990). We will aff irm if any leg al theory supported by

the evidenc e sustains the trial cour t’s actions. Id

.

3I n the prese nt case , the evidenc e at trial established that Ba rney discharg ed Gonzalez ap p ro x i mately one month afte r he beg an working for her. When a client discharg es an attorney without g ood cause befor e he has completed his wo rk , the attorney may rec over on the contra ct that g overns the attorney -client rela tionship. See Mandell & W right v. Thomas , 441 S.W .2d 841, 847 (Tex. 1969); Diaz v. Attorney Gen. of the State of Tex. , 8 2 7 S
. W
. 2 d 1 9 , 22 (Tex. App.—Corpus Christi 1992, no writ). When an attorney abandons the co n t ract befor e completion without g ood cause , the attorney forf eits his right to compe nsation under the c ontrac t. Staples v. McKnight , 763 S.W .2d 914, 916 (Tex. App.—Dallas 1988, writ denied)

. When both parties assent to a leg al-ser vices co n t ra ct ’s abandonme nt, an implied contra ct arises. See Diaz , 827 S.W .2d at 22; Y

oung v. Tian , 150 S.W
. 2 d 3 1 7 , 3 2 0 (Tex. Civ. App.—Galve ston 1941, writ dism’d). The measure of rec overy for an implied contra ct is the rea sonable value of the service s p ro v i d ed

. See Black Lake Pipe Line Co. v. Union Constr. Co. , 538 S.W .2d 80, 86 (Tex. 1 9 7 6 ), overruled on other grounds sub nom. Sterner v. Marathon Oil Co. , 767 S.W .2d 6 8 6 , 690 (Tex. 1989). Although the evidenc e was uncontrove rted that Ba rne y d is c h a

r g e d G o n zale z from his “d u t ies,” Gonz alez failed to prese nt any evidenc e tending to prove that Ba rney did not hav e go o d

cause to do so. Gonzalez did not contest the dismiss al, but rathe r soug ht only to rec over fee s for the service s he had alre ady provided. Any implied finding that Ba rney and Gonzalez did not a ssent to abandoning their ag ree ment is unsupported by , and in fac t contra ry to, the evidenc e. Nor was there any evidenc e that Gonzalez abandone d the contra ct befor e completion without g ood cause , and any such implied finding is also unsupported by any evidenc e. Ba rney did not controve rt Go n z alez ’s

4testimony that they had an ag ree ment that Gonzalez would provide leg al service s rela ted to her

divorce proce eding at a r ate of $250 per hour

. Although Gonzalez ’s ev i d en ce showed that he was entitled to an awa rd of some attorney s’ fee s, he did not establish as a matter of law the rea sonable value of the service s provided

or that the number of hours he billed Ba rney was rea sonable and nece ssary for the legal service s perf ormed. Gonzalez p ro v ided a g ener al descr iption of the tasks he perf ormed, but he did not itemiz e his bill or otherwise tie the lump sum amounts in his invoices to tho s e t as k s . Thus, he prese nted evidenc e that he w as entitled to some amount of fee s for the work performe d, and ther e
was more than a scintilla of evidenc e that a re as o n ab le fee for all service s provided exceede d the $2,500 reta iner. I n the absenc e of ev i d ence aff irmatively showing that no attorney s’ service s
wer e neede d bey ond that cover ed by the reta iner, or that any of the additional service s provided

wer e of no value, an awa rd of no fee s was improper. S ee Mi dland W

. Bldg. L.L.C

. v. First Serv. Air Condit ioning Cont ractors, Inc. , 300 S.W .3d 738, 740 (Tex. 2009) (aw ard of no fee s improper in abs en ce of evidenc e aff irmatively showing that no attorney s’ service s wer e neede d or that service s provided wer e of no value) ; Dilston House Condo A s s ’n v. W hite , 230 S.W .3d 714, 718 (T ex. App.—Houston [14t h Dist.] 2007, no pet.) (af firming total denial of attorney s’ fee s d u e t o
co m p l et e absenc e of any evidenc e reg arding attorney s’ fees i ncurr ed). Be cause Gonzalez did n o t show as a matter of law the amount of fees t o which he is entitled, we will re mand t he case to the trial cour t fo r a n ew t rial on the rea sonable value of the leg al service s Gonzalez perf ormed. See Smith v. Patrick W

.Y

. Tam Trust , 296 S.W .3d 545, 548 (Tex. 2009) (new trial on attorney s’ fee s
re q uired when no evidenc e supports jury ’s ref usal to awa

rd any fee s); Tony Gullo Moto r s I, L

. P

.
5v. Chapa , 212 S.W .3d 299, 314 (Tex. 2006) (re mand, ra t h er t h an awa rd of zero attorney s’ fee s, require d when a ttorney

prese nted some evide nce of fee s).
CONCLUSION We reve rse the trial court’s ju d gm en t an d rema nd the case for a new trial on the

rea sonable va lue of Gonzalez’s leg al servic es per formed on B arne y ’s beha lf.

_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ J . Woodfin J ones, Chief Just ice Be fore Chief J ustice Jones, J ustices Rose and Goodw in Reverse d and Remande d Filed: De cembe r 30, 2014

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