dissenting.
I dissent.
To reach the conclusion that there was no evidence to support the finding of breach of contract, the majority had to consider only the evidence and inferences that tended to support the finding,1 and decide there was no such evidence. I have reviewed the same body of evidence and conclude that not only is there legally sufficient evidence, there is also factually sufficient evidence to support the trial court’s finding of breach of contract.
The evidence shows that W & D paid Herter a retainer of $10,000. The written retainer agreement did not specify that the retainer was non-refimdable. According to W & D, time and expenses were to be charged against the retainer, and any unearned portion of the retainer was to be returned. At the end of the representation, W & D asked Herter for an accounting of his time and expenses. Herter refused to provide such an accounting, claiming the retainer was not subject to an accounting because it was earned when paid.
In my opinion, the trial court could have reasonably concluded from the evidence that Herter had a contractual duty to refund any unearned portion of the $10,000 retainer, and to provide an accounting of his time and expenses incurred in connection with his representation. Further, from the evidence the trial court could have properly concluded that a reasonable amount to be charged against the retainer was $5,000, and therefore, that the balance of $5,000 was unearned and should have been returned to the client. Based on such findings, the trial court could have reasonably concluded that Herter breached his contract with his client by not providing an accounting when requested, and by not returning the unearned portion of the retainer in the amount of $5,000.
Because, in my opinion, the evidence is legally and factually sufficient to support the trial court’s findings regarding breach of contract, I would overrule Herter’s points of error one and two, and would reach the merits of the remaining points and cross-points of error.
. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.1994).