concurring in result.
I concur in the result reached by the majority.
Schrenker’s Fee
Under the facts in this case Schrenker’s second contract with Page was void. It was executed two years after the inception of and during their attorney-client relationship. The rule in this jurisdiction is that such an agreement is presumptively invalid and the burden of proof is on the attorney to show the fairness of the transaction and that the compensation provided for in the agreement does not exceed a fair and reasonable remuneration for the services which were rendered. Potter v. Daily, (1942) 220 Ind. 43, 40 N.E.2d 339; Shirk v. Neible, (1901) 156 Ind. 66, 59 N.E. 281; French v. Cunningham, (1898) 149 Ind. 632, 49 N.E. 797; Castle v. Kroeger, (1942) 111 Ind.App. 43, 39 N.E.2d 459; Annot., 13 A.L.R.3d 701 (1967).
Here, Schrenker failed to sustain his burden of proving the contract was fair and “that he did not take any advantage of his confidential relationship,” Potter v. Daily, supra, 220 Ind. at 56, 40 N.E.2d at 343. The only evidence in this regard, as noted by Judge Young, was testimony by Page that he was coerced into agreeing to the contract, was informed he had no other choice, and was not allowed to employ another attorney at that stage of the proceedings. Thus, it is apparent, among other things, that Page was deprived of any bargaining position he may have had with Schrenker in *699fixing a percentage fee less than the 33Va% demanded by Schrenker. Clearly, he was also foreclosed from seeking or negotiating with any other attorney.
However, Schrenker was not without relief. Although he failed to meet his burden of establishing the fairness of the agreement, he was still entitled to fees on a quantum meruit theory. French v. Cunningham, supra. * Here, the finding by the trial court was a general one that the amount of Schrenker’s lien of Vs of the judgment was “reasonable.” The trial court could have based its decision upon evidence presented by attorney Al S. Wool-bert relating to the reasonableness of attorney’s fees. Since Page makes no cogent argument showing us how this testimony could not have been the basis for the court’s judgment, I concur in the result reached by the majority herein.
Roby’s Contract
I agree with the majority that Roby’s agreement with Page was not ambiguous. Further, Page’s reliance on Shirk v. Neible, supra as impressing upon Roby the burden to show his contingent fee was not excessive, is misplaced. In Shirk the court placed that burden on the attorney because the attorney was trying to enforce a contract negotiated after he had been employed for some period of time (as was the case here with Schrenker). Here, Roby was attempting to enforce his original, arms-length contract. A 50% contingency fee contract, where there have been prolonged trial and appellate proceedings, is not clearly excessive. Matter of Innkeepers of Newcastle, Inc., (7th Cir. 1982) 671 F.2d 221.
439 N.E.2Ú—17
Page, at trial and in his appellate brief, asserted his theory that Schrenker was entitled to quantum meruit, citing French v. Cunningham, supra. Thus, this issue is before this Court. Arguably, under the facts of this case, Schrenker may have been entitled only to the fee set in his original contract. This theory was not presented to the trial court nor to this Court and is therefore waived.