This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Gary Lee Morris,





Earl Gray,





Gray and Malacko Law Offices,



Filed September 20, 2005


Gordon W. Shumaker, Judge


Ramsey County District Court

File No. C8-03-10791



Gary Lee Morris, P.O. Box 221, Fall River Mills, CA 96028 (pro se appellant)


Earl P. Gray, 332 Minnesota Street, Suite W-1610, First National Bank Building, St. Paul, MN 55101 (attorney pro se)


            Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge; and Minge, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant contends that, after a bench trial, the district court erred in finding that he agreed to pay his attorney a full retainer in a criminal matter even if the case were disposed of through a guilty plea.  Because the evidence supports the court’s findings and conclusions, we affirm.


            Appellant Gary Lee Morris sued respondent attorney Earl Gray for the return of one-half of a retainer fee that he paid to Gray to represent him in a criminal matter.  Morris contends that he understood the agreement to be that one-half the retainer would be refunded if the matter did not go to trial.  Morris entered a plea of guilty, but Gray did not refund any portion of the retainer fee.

            After a bench trial, the district court found that the parties orally agreed that the retainer would be non-refundable; that such a retainer arrangement is Gray’s standard practice; that sometime after being retained, Gray sent to Morris a confirmatory written retainer agreement; and that Morris did not sign it, but neither objected to the agreement, which provided that no part of the retainer would be refunded, nor discontinued Gray’s legal services.  The district court concluded that Morris “did agree to the terms of the non-refundable retainer and no credible evidence was presented to indicate half was to be returned if a plea occurred.”  The court ordered judgment dismissing the case, and Morris appealed.



This matter reached the district court through removal from the conciliation court.  Morris and Gray personally appeared for trial, and, as the district court noted in its order, they represented themselves.  Morris did not move for amended findings or a new trial; he does not allege any dispositive evidentiary or procedural error; and he has not provided a transcript of the trial for our review.  Thus, we are limited to determining “whether the evidence sustains the findings of fact and whether such findings sustain the conclusions of law and the judgment.”  Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976).  This rule applies “whether trial is to the court or a jury.”  Tyroll v. Private Label Chems., Inc., 505 N.W.2d 54, 56 (Minn. 1993).  When a party raises a question of whether a contract is ambiguous, we review that issue de novo.  Current Tech. Concepts, Inc. v. Irie Enters., Inc., 530 N.W2d 539, 543 (Minn. 1995).

1.         Ambiguity of Contract

Morris argues that the retainer agreement, evidenced by the written retainer, was ambiguous and should be construed against Gray as the drafter.  The relevant language of the written retainer provides:  “Client has paid a retainer of $12,500.00 for representation in all proceedings involved in this matter.  This fee is payment in full through trial or other disposition of this case . . . .  Client understands that the retainer/fee of $12,500.00 . . . is fully earned and non-refundable . . . .”

For the fee stated, Gray agreed to represent Morris through a trial “or other disposition.”  A criminal case can be disposed of through dismissal, trial, or plea of guilty.  Trial is one type of disposition; a plea of guilty is another.  The criminal case was disposed of by Morris’s plea of guilty, an outcome reasonably contemplated by the “other disposition” language in the retainer.  There is nothing ambiguous about that language, and, read together with the language regarding non-refundability, there could be no reasonable inference that a plea of guilty would merit only one-half the retainer fee.

2.         Findings and Conclusion

Morris argues that there could have been no retainer contract because there was no meeting of the minds.  He contends that there was no evidence presented that he agreed to a non-refundable retainer.

Because Morris failed to supply a transcript of the trial, we must determine what evidence was presented by analyzing the court’s findings of fact.  It appears from those findings that Gray testified that he agreed to represent Morris for a non-refundable fee of $12,500 and that Morris accepted that arrangement.  It appears that Morris testified that he understood from his discussions about the representation that, if trial were not necessary, Gray would refund half the retainer.

Presented with two conflicting versions of what precisely the parties agreed to, the district court was required to resolve the conflict on the basis of the evidence and the law.  It is clear that the court believed Gray and did not believe Morris.  We defer to the credibility determinations of the trier of fact.  General v. General, 409 N.W.2d 511, 513 (Minn. App. 1987).  Although we have no transcript to review, we know that at least one significant fact fully supports the court’s credibility determination: Gray sent a written retainer agreement providing for the full retainer fee through trial or other disposition and indicating nothing about refunding any portion if Morris pleaded guilty; and Morris, by his conduct, appeared to accept those terms as being confirmatory of the oral agreement.  From the fact that Morris did not object to the written terms or discontinue the representation, or demand a refund of part of the retainer fee when he received the retainer document, the court could reasonably infer that Gray’s version of the arrangement was credible and that Morris’s version was not credible.  The findings support the judgment.