ACCEPTED
01-14-0799-CV
FIRST COURT OF APPEALS
HOUSTON, TEXAS
2/12/2015 5:53:29 PM
CHRISTOPHER PRINE
CLERK
NO. 01-14-0799-CV
FILED IN
1st COURT OF APPEALS
IN THE C O A
OURT F PPEALS HOUSTON, TEXAS
2/12/2015 5:53:29 PM
FOR THE FIRST D O T
ISTRICT F EXAS
CHRISTOPHER A. PRINE
Clerk
BARBARA REGINA SCHLEIN,
Appellant,
V.
ANTHONY P. GRIFFIN,
Cross-Appellant.
Appeal from County Court at Law, No. 2
Galveston County, Texas
Trial Court Cause No. CV-0069481
CROSS-APPELLANT’S, ANTHONY P. GRIFFIN,
BRIEF ON APPEAL
NORMA VENSO
STATE BAR NO. 20545250
ATTORNEY AT LAW
830 APOLLO
HOUSTON, TEXAS 77058
409.789.8661
FACSIMILE NO. 281.286.9990
EMAIL: nvenso@earthlink.net
Attorneys for Cross-Appellant
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
APPELLANT:
BARBARA REGINA SCHLEIN
APPELLANT’S COUNSEL AT TRIAL COURT LEVEL AND
ON APPEAL:
STEPHEN H. CAGLE, JR.
HEATHER C. PANICK
CHRISTIAN SMITH & JEWELL, L.L.P.
2302 FANNIN, SUITE 500
HOUSTON, TEXAS 77002
LOCAL COUNSEL AT TRIAL ONLY
STEPHEN R. “STRETCH” LEWIS, JR.
LEWIS & WILLIAMS, L.L.P.
2200 MARKET STREET, SUITE 750
GALVESTON, TEXAS 77550
CROSS-APPELLANT:
ANTHONY P. GRIFFIN
CROSS-APPELLANT COUNSEL AT TRIAL COURT LEVEL
AND ON APPEAL:
NORMA VENSO
ATTORNEY AT LAW
830 APOLLO
HOUSTON, TEXAS 77058
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . ii
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . . vii
STATEMENT OF THE CASE AND PROCEDURAL HISTORY . . . . . . . . 1
STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
POINT OF ERROR NO. 1: THE FINDING OF NO ACTUAL DAMAGES
ON THE UNCONSCIONABILITY QUESTION
IS FATAL TO THE FINDING OF
ADDITIONAL DAMAGES UNDER
THE DECEPTIVE TRADE PRACTICES
ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
POINT OF ERROR NO. 2: THE TRIAL COURT ERRED IN NOT
GRANTING JNOV ON THE DECEPTIVE
TRADE PRACTICES QUESTIONS
SUBMITTED TO THE JURY . . . . . . . . . . . . . . 46
PRAYER/CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
CERTIFICATION OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
iii
APPENDIX …………………………………………………… Appendix 1-101
iv
INDEX OF AUTHORITIES
Cases
Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225
(Tex.App.-San Antonio 2001, pet. denied) ...................................................... 41, 42
Brennan v. Manning, No. 07-06-0041-CV, 2007 WL 1098476 (Tex. App.-
Amarillo Apr. 12, 2007).................................................................................... 40, 49
Cain v. Bain, 709 S.W.2d 175 (Tex.1986) ..............................................................42
CDB Software, Inc. v. Krell, 992 S.W.2d 31 (Tex. App.-Houston [1st Dist.]
1998, pet. denied) ....................................................................................................46
Chastain v. Koonce, 700 S.W.2d 579 (Tex.1985) ...................................................52
City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005) .............................................45
East Hill Marine, Inc. v. Rinker Boat Co., 229 S.W.3d 813 (Tex. App.-
Fort Worth 2007) .....................................................................................................53
Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392 (Tex. 1991)……… 46
Greathouse v. McConnell, 982 S.W.2d 165 (Tex. App.-Houston [1st Dist.]
1998)……………………………………………………………………….40, 50
Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731 (Tex. App.-Fort Worth
2005)……………………………………………………………………….40, 49
Jabri v Alsayyed, 145 S.W.3d 664 (Tex. App. – Houston [14th Dist.] 2004) ..........42
James J. Flanagan Shipping Corporation v. Del Monte Fresh Produce, N.A., Inc.,
403 S.W.3d 360 (Tex. App. – Houston [1st Dist.] 2013) .........................................45
Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex. 1986) ........................ 39, 45
Mazuca and Asssociates v. Schumann, 82 S.W.3d 90 (Tex. App. – San Antonio
(2002) ................................................................................................................ 50, 52
v
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) .......................41
Nast v. State Farm Fire & Cas. Co., 82 S.W.3d 114 (Tex. App.—San Antonio
2002, no pet.) ...........................................................................................................48
Phar-Mor, Inc. v. Chavira, 853 S.W.2d 710 (Tex. App.-Houston [1st Dist.]
1993, writ denied) ...................................................................................................46
Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex.1989) .............................41
Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.-Houston [1st Dist.] 2005) .......... 40, 49
Southwestern Bell Telephone Co. v. Delanney, 809 S.W.2d 493 (Tex. 1991) ........46
Texas Motor Coach, L.C. v. Blue Bird Body Co., No. 4:05CV34, 2005 WL
3132482 (E.D. Tex. Nov. 22, 2005) ........................................................................53
Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994) ..........................................41
Rules & Statutory Authority
TEX. R. CIV. P. 301 ................................................................................................46
TEX. R. APP. PROC. 25.1 ..... ……………………………………………………….4
TEX. R. APP. PROC. 38.1(e) ... ……………………………………………………..vii
TEX. R. APP. PROC. 39 ........... ……………………………………………………..vii
TEX. BUS. & COM. CODE § 17.45 (j)………………………………………… 50
TEX. BUS. & COM. CODE § 17.49 (a)………………………………………... 46
TEX. BUS. & COM. CODE § 17.49 (c)……………………………….... 40, 48, 52
TEX. BUS. & COM.CODE ANN. § 17.49(f) (g)……………………………….. 53
vi
STATEMENT REGARDING ORAL ARGUMENT
Cross-Appellant requests the opportunity to present oral argument to the
Court, pursuant to Texas Rules of Appellate Procedure 38.1(e) and 39. Although
Cross-Appellant believes that the trial court’s judgment should be affirmed in most
parts, save the submissions complained on appeal by Cross-Appellant.
Cross-Appellant believes that oral argument would aid the Court’s resolution
in this case.
vii
NO. 01-14-0799-CV
IN THE COURT OF APPEALS
FOR THE FIRST DISTRICT OF TEXAS
BARBARA REGINA SCHLEIN,
Appellant,
V.
ANTHONY P. GRIFFIN,
Cross-Appellant.
Appeal from County Court at Law, No. 2
Galveston County, Texas
Trial Court Cause No. CV-0069481
CROSS-APPELLANT’S, ANTHONY P. GRIFFIN,
BRIEF ON APPEAL
TO THE HONORABLE JUSTICES FOR THE FIRST COURT OF APPEALS:
Cross-Appellant, Anthony P. Griffin, hereinafter and sometimes referred to
Cross-Appellant Griffin, submits his initial brief, with respect to his cross-appeal in
this matter. Cross-Appellant submits as follows:
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
Cross-Appellant brought his original petition on March 14, 2013 against
Appellant, Barbara Regina Schlein (Index on Appeal at Tab 1, CR [Clerk’s
Record], at 000003-000009; Cross-Appellant’s Appendix, Tab 1; see also
Plaintiff’s Original Petition at id. at CR 10-21; Cross-Appellant’s Appendix, Tab
2). Cross-Appellant complained that Appellant, a former client, breached her
contract of employment by failing to pay his attorneys’ fee and costs. The initial
pleading also asserted alternative theories of recovery, including quantum meruit,
unjust enrichment, fraud, and theft of services (id.). Appellant’s operative
pleading/answer, at that the time of trial, was Defendant’s Amended Answer and
Counterclaim filed on June 18, 2013 (CR. 00026-00059; Cross-Appellant’s
Appendix, Tab 3). Cross-Appellant filed a partial motion for summary judgment
on September 30, 2013 (CR. at 223-286) and his amended petition on October 4,
2014 (CR 287-292); Cross-Appellant’s amended petition dropped all claims save
the breach of contract claim (id., see first amended petition at CR. at 287-292; see
second amended petition at CR. at 628-632; Cross-Appellant’s Appendix, Tab 4).
The order denying the partial motion for summary judgment was entered on
December 27, 2013 (CR. at 420; Cross-Appellant’s Appendix, Tab 5).
Defendant’s Motion for Summary Judgment was filed on January 31, 2013 (CR. at
472-558). The Court likewise denied Defendant’s Motion on February 28, 2014
(CR. at 751; Cross-Appellant’s Appendix, Tab 6).
The case was called to trial on May 8, 2014 (jury) and was tried on the
following days, to-wit: May 7– 9, 12-13, 19, 21-22, 27, 2014 (Reporter’s Record
2
[RR.], Master Index, Vol. 1). The jury rendered a verdict on May 22, 2014 (RR. at
Vol. 13; Cross-Appellant’s Appendix, Tab 7 (jury charge), found at CR. at [SUPP.
CLERK RECORD]; Cross-Appellant’s Appendix, Tab 8 (verdict confirmation by
jury). Cross-Appellant filed his motion to enter a final judgment on June 12, 2014
(CR at 1135-1155); he amended the amended motion on June 13, 2014 (CR. 1166-
1186). Contained in Cross-Appellant’s motion for judgment as a motion for
judgment notwithstanding the verdict on certain unsupported portions of the
verdict; the trial court denied the motion notwithstanding and entered a final
judgment on June 30, 2014 (CR. at 1208; Cross-Appellant’s Appendix, Tab 9; CR.
at 1249-1250; Cross-Appellant’s Appendix, Tab 10).
Appellant Schlein filed a motion for new trial on July 30, 2014 (CR. at
1209-1224). The trial court denied the motion for new trial on September 11, 2014
(CR. at 1245; Cross-Appellant’s Appendix, Tab 11). Appellant filed her notice of
appeal on September 26, 2014 (CR. at 1238-1241; Cross-Appellant’s Appendix,
Tab 12). Cross-Appellant filed his notice of cross-appeal on October 10, 2014
(CR. 1242-1244; Cross-Appellant’s Appendix, Tab 13).
This case is properly before this Court.
3
STATEMENT OF JURISDICTION
This Court’s jurisdiction vests under Rule 25.1, Texas Rules of Appellate
Procedure (commenced by filing a notice of appeal from district court judgment).
__________________________
STATEMENT OF FACTS
During opening statement, counsel for Cross-Appellant Griffin framed the
matter as a simple breach of contract claims, asserting Appellant Schlein failed to
pay attorney’s fees and costs due and owing to Cross-Appellant (RR. at Vol. 4 at
74, lines 19-25; 75, lines 1-19). “I think the evidence will show that she hasn’t
paid him a red cent.” Cross-Appellant’s counsel explanation in opening framed the
underlying factual history:
I don’t know of anything that she wanted that he failed to do, but we’ll wait
and see what happens with that. I don’t think that you’re going to find that
Mr. Griffin did anything wrong in this case, except get on his horse and act
as a knight for her, who he thought was an abused woman, who was also not
getting a fair shake in court and that he took it without getting a fair shake in
court and that he took it without getting any money up front because they
couldn’t and he trusted her all the way through and that to this day he has
not been paid a red cent; and yet, when he sues for collection, they now
claim that he has malpracticed her in some way. She says that was by him
4
telling her to show up in court for him once. He denies that. I have no idea
what that’s about and that she wasn’t kept informed.
Id. at 82, lines 9-23.
Appellant Schlein and Cross-Appellant Griffin entered a legal services
contract on November 3, 2009 (RR., Vol. 14, pp. 5-14; labeled as Plaintiff’s
Exhibit 1 (Contractual Agreement) and Plaintiff’s Exhibit 2 (cover letter to
contract); Cross-Appellant’s Appendix, Attachment 14). The contract explicitly
set out the following language: representation in “all matters concerning the
divorce/family related matter/civil issues (tort issues) in a matter styled In the
Matter of the Marriage of Barbara Regina Schlein and Robert Schlein; in the
County Court at Law, No. 2; Galveston County, Texas; Cause No. 08FD2371
(supra, Plaintiff’s Exhibit 1).
The contract required the payment of a retainer of $35,000.00, but also
contained a footnote stating, “[c]urrently Petitioner is under an order of the Court
that prevents the expenditure of funds without the approval of the Court. No
payment of fees will take place unless and until the Court approves the payment of
the retainer amount and/or an order is entered releasing the injunction overbroad
scope (can be interpreted to include separate property of Petitioner).”1
1
At the time of the resolution of the divorce the temporary injunction entered by the trial court
had ceased being in effect (RR., Vol. 8 at 90, lines 4-25; 9, lines 1-5).
5
The contract also provided the retainer fee should not be interpreted as
constituting the full reasonable fee to which the Lawyers may be entitled for
services performed pursuant to an award of the Court or settlement (id. at
unnumbered page 3). The work of Cross-Appellant was billed at $300.00 an hour
(id. at unnumbered page 4). Cross-Appellant’s lawsuit made clear that neither the
retainer nor any additional fees and costs had been paid.
Appellant was called as the first witness during the trial; when questioned
whether she had paid “a red cent to Anthony Griffin for his services,” she
responded, “[t]hat is not true.” When asked what money has been paid, Appellant
explained, “I have paid him in product, which is the same as money” (RR., Vol. 4
at 101, lines 7-12). Appellant went on to explain it was her belief has overpaid
“[h]e owes me money” (id. at 101, lines 14-21). When the witness was brought to
the question of “money”, the witness then asked for a definition of money.
Appellant then affirmed she stated she has not “paid him cash dollar money. I’ve
paid him in product (id. at 102, lines 1-4).
The contract of employment between Appellant and Cross-Appellant was
admitted as Plaintiff’s Exhibit 1 (id. at 104, lines 1-7; Cross-Appellant’s Appendix,
Tab 14). Appellant testified the contract was executed in person (id. at 105, lines
13-25), contained a section relating to the payment of a retainer on hiring A Griffin
6
Lawyers/Anthony P. Griffin, Inc. (id. at 107, lines 5-25; 108, lines 1-2).2
Appellant testified the contract did not apply to her, although her signature
appeared on same. Appellant testified the contract was amended orally (id. at 110,
lines 18-25; 111, lines 1-6), “it was explained to me differently and that’s why we
have a letter of explanation of contract and letter agreement [;] otherwise, there
would be no purpose for this to have been drawn up” (id.). Appellant stated she
was given a flat fee of $35,000.00, even though the contract never used the words
flat fee. Appellant against restated her position – she had paid by the tender of
product, “Peruvian tile” (id. at 112, lines 3-10).
And I’ll tell you what: $35,000 is a lot more [sic] than $110,000; and I’m a
single parent; and trust me, I just didn’t have that kind of money. 3 I wasn’t
2
Appellant explained Anthony P. Griffin, Inc. was a defunct corporation, and that A Griffin
Lawyers was an assumed named used by Anthony P. Griffin, with Anthony P. Griffin being
entitled to collect the debts for either entity (RR., Vol. 8 at 86, lines 4-25; 87, lines 1-25; 88,
lines 1-15).
3
Appellant was referred to Appellee by a Marie Trefethern (RR., Vol. 6 at 155, line 21-25).
At the time, Trefethern was employed on a part-time basis with the Galveston County
District Attorney’s Office doing protective orders (id. at 156, lines 1-14) and travelled to
Appellee’s office with Appellant. Trefethern participated in the first meeting.
Appellant had previously been represented by four other lawyers, all family law practitioners
(id. at 157, lines 7-25; 158, lines 1-9). Trefethern travelled to Appellee’s office with
Appellant (id). Appellant paid her first lawyer, Greg Enos, $21,000.00, for 30 days of work;
her second lawyer, Rebecca Reitz, $90,000.00 - $100,000.00, for three to four months; her
third lawyer, Marcia Zimmerman, $40,000.00 - $50,000.00, for three months of work; her
fourth lawyer, Christopher Beck, some $23,000.00 for four months of work. Beck’s payment
took place even though the trial court (Judge C.G. Dibrell) had ordered Appellant not to
expend any more money on attorneys’ fees (id. at 158-161, lines 1-25; 162, lines 1-11).
Appellant feigned memory problems with regards to what she expended on previous lawyers
7
prepared for that. If he would have billed me or even told me, “Hey, look,
you know, I’m going to need some more money,” or verbally or billed be,
which he said he would do according to his own contract, I would have
known. I would’ve been prepared. The reason for me showing up at his
office was to write him a check for $35,000. We’re done. That’s it.
but ultimately concede a figure ranging from $179,000.00 - $250,000.00 (RR, Vol. 5 at 57,
lines 11-25; 58-65, lines 1-25; 66, lines 1-17). Trefethern brought Appellant to Appellee’s
office because the problems she was having in Judge Dibrell’s court and the belief the Judge,
her spouse’s lawyer were personal friends - she felt she was not getting a fair shake (supra,
RR, Vol. 6 at 157, lines 7-25). Appellant also expressed dissatisfaction with her current
lawyers (Beck), contemplated filing suit against former counsel Reitz over her fee, and made
it clear she had already hired an expert willing to testify against Reitz (Lillian Hardwick)
(RR., Vol. 7 at 18, lines 8-23). Appellee represented Appellant for some 700 days (RR., Vol.
7 at 10, lines 1-25).
The jury also heard the amount of fees Appellant had incurred and paid to her current trial
counsel, Christian, Smith & Jewell, LLP (RR., Vol. 11, at 72). Gary Jewell, an
administrative partner with the firm (id. at 74, lines 14-25), explained Appellant has incurred
and paid $50,638.50 on matters outside of the divorce (id. at 83, lines 4-10 (identified these
fees as matters started by Anthony Griffin in which his firm finalized). (id.) and $369,892.89
for work related to the dispute herein, Griffin v. Schlein, plus $27,541.06 in expenses (id. at
84, lines 6-25; 85, lines 1-15). Albeit, Appellant’s counsel discounted their bill in front of
the jury to $260,000.00, the jury heard the sum did not include the fees being incurred during
the trial itself (id. at 87, lines 1-25; 88 lines 1-8). This amount did not include the $27,541.06
sought in expenses (id.). This sum did not include any fees paid to local counsel, Stephen
Lewis, for his work and appearance at trial (id. at 119, lines 20-25; 120, lines 1-25; 125, lines
18-25; 126-129, lines 1-25; 151, lines 14-25; 152, lines 1-25; 153-154, lines 1-25; 155, lines
21-25; 156, lines 1-5).
Thus the fees paid to counsel, prior to Griffin’s hire, was between $174,000-194,000.00. The
amount paid to trial counsel, after Griffin terminated the relationship because of non-
payment was minimally $370,000.00, not including $276,541.06 paid in expenses and an
additional sum unknown paid to local counsel. The jury ultimately rejected Appellant’s
claim for fees against Griffin and awarded Griffin his entire fees and costs incurred,
discussed infra.
8
RR., Vol. 4 at 113, lines 16-25.
Appellant accused Cross-Appellant of backdating his bill – the contract was
dated August 5, 2011 (id. at 114, lines 11-20). Appellant contended she did not
receive the contract until four days after the divorce was final, which was October
28th (id.).4 Appellant said when travelled to Cross-Appellant’s office to write the
check for $35,000.00, she experienced a “bait and switch” by Cross-Appellant (id.
at 115, lines 1-4). When asked what a bait and switch was, Appellant explained,
“Well, you know, when you’re expecting to pay $35,000 - - which I don’t know
about you guys, but that’s a lot of money – that’s a ton of money for me being a
single parent especially. [$] 111,000 was astronomically mind blowing. I just – I
was just shocked. I threw up. I had to go in his bathroom and throw up.” Id. at
115, lines 5-11). Appellant then told the jury, “If the retainer exceeded $35,000, he
would have been billing me during the divorce process; and he didn’t do one single
bill. So, how would I know” (id. at 116, lines 19-25; 117, line 1).5
Appellant admitted being required to paid $70,000.00, as interim attorney’s
fee, to her husband’s lawyer (id. at 117, lines 2-23), in addition to $40,000.00 as
temporary support for her spouse (id.). The jury also heard these payments were
4
Four days after October 28, 2011, for purposes this record, would be November 1st. Appellee
denied the assertion of backdating the bill, he testified the bill was mailed August 5, 2011
and was not backdated (RR., Vol. 7 at 24, lines 15-25; 25, lines 1-21).
5
No language in the contract between the parties required monthly billing.
9
because Appellant was accused in the underlying divorce of hiding and wasting
community assets (RR., Vol. 6 at 161, lines 9-25; 162, lines 1-11 (spending money
on lawyers after injunction by the trial court); 168, lines 1-25; 169, lines 1-4
(attempt by spouse to appoint receiver to protect assets of the community estate,
including separate funds in attempt); RR., Vol. 7 at 28, lines 17-25; 29-32, lines 1-
25; 33, lines 1-7; 35, lines 14-25; 36, lines 1-11 (preparation for trial revelation
deletion from records, hiding funds, refusal to answer; issue of avoiding suborning
perjury prior to trial). The following additional exchange in reflective of the
testimony at trial:
[NORMA VENSO]
Q. Okay. I’m not asking you about that yet. While the case was pending
when Judge Dibrell ordered that you pay the interim attorney’s fees of
Mr. Schlein, did you ask your lawyer to take any action about that?
…
[BARBARA SCHLEIN]
A. Okay. I’m sorry, what is your question again?
Q. The question is: After Judge Dibrell had ordered you to pay your
husband’s lawyer while the case was still pending, did you ask Mr.
Griffin what could be done about that?
A. I don’t recall that conversation; and I don’t recall, you know, the divorce,
10
like you said, lasted a few years. I don’t recall the time frame, dollar
amounts. That would be impossible. Remember, my divorce started in
2008. We’re almost in 2015. That as so many years ago, I don’t know.
Q. Okay. Did you object to Anthony Griffin filing a mandamus in the Court
of Appeals appealing that ruling that you - - appealing it during the time
that the divorce was pending an extraordinary remedy, did you object to
him trying to get you a remedy for that in the Court of Appeals?
A. I don’t recall. There was so much paperwork going on, I just don’t
remember.
Q. So you don’t remember any mandamus being filed by Mr. Griffin and
whether – it’s just out of your mind?
A. Part of it is I’m not an attorney and I don’t know all your legal jargon.
And if you said was there paperwork filed, I’d say, “Yeah, there was lots
of paperwork filed.” But what the paperwork that was filed was called,
I’m not a legal expert; and I’m not going to pretend to be; and I just
don’t know. I don’t know what he filed. He never had communication
with me so bottom line is: I could never get ahold of the man.
I never knew was going on. His status was horrible. No billing
statements ever, not one during the divorce. I might have had an inkling
of what was going on if I read it, so the answer is no.”
11
Id. at 119, lines 10-25; 120, lines 1-25; 121, lines 1-3.
Coupled with Appellant not remembering paperwork related to any
mandamus, or any pleadings filed with the courts on her behalf (id. at 121, lines
13-25; 122, lines 1-7), she summarily again informed the jury, “He never kept me
informed” (id. at 122, lines 7-23). Appellant testified Cross-Appellant kept her
client files, did not return the same (id. at 123, lines 1-5). The Court sustained
Cross-Appellant counsel’s objection. “I don’t recall getting much from him, if
anything. I could get ahold of him on the phone let alone get anything from him” –
was the consistent tenor of Appellant’s testimony (id. at 123, lines 12-14).
When asked specifically how Cross-Appellant malpracticed her; Appellant
set out a number of allegations:
He fired me and he would not “give me client file back and I
absolutely was beside myself. Here I am fired. Now he wants – he’s
got a new billing statement for me. I have no attorneys. I have no
client file and my house is ready for foreclose on January 2 nd and
we’re hitting the holidays.”6
Id. at 132, lines 15-25; 133, lines 1-2 5; 134, lines 1-2 (further testimony that Appellee’s
failure to tender her file was the cause of the loss of the house in foreclosure). With regards
to the allegation of failure to return the client’s file, contrary testimony was also heard by the
jury, including the testimony of Rita Westerman, Linda Griffin, and Appellee.
Rita Westerman testified she was employed with Appellee for twenty-three years at the time
of the trial and remembered Appellant as a client of the office (RR., Vol. 6 at 139, lines 4-25;
140, lines 1-4). Westerman explained she was present in the office when Appellant came to
12
That Cross-Appellant should have filed an insurance claim on her
house under construction at 1628 Enterprise (also same house which
was foreclosed on by the County. There was testimony the house was
hit by Hurricane Ike and uninsured at the time of the strike).7 When
asked whether she was blaming Cross-Appellant for the foreclosure,
Appellant ultimately explained, “I’m not placing blame, but I’m
retrieve her client files (id. at 143, lines 1-25; 144, lines 1-25 (“there could have been 30 or
40 boxes of files we had to give her back”).
Linda Griffin identified herself as a relative of Appellee (sister). Griffin testified she worked
part-time for Appellee and possessed a law degree, and prior to becoming a lawyer she
worked as a court reporter in federal court (id. at 123, lines 1-25). She also testified she
witnessed Schlein retrieve her files from the office (id. at 129, lines 8-25130, lines 1-16).
Appellee Griffin testified the file was returned after preparing the file for pickup (RR., Vol. 7
at 40, lines 10-25; 41, lines 1-25; 42, lines 1-21).
7
Appellant argued that Appellee should have filed an insurance claim and identified the
insurance in effect at the time as Builder’s Risk Insurance (RR., Vol. 5 at 27, lines 11-25).
Appellant then postured she had “no idea if there was flood or wind. I wasn’t’ the builder so,
you know, he paid for the policy so how would I know that? I don’t know. That’s what I’m
saying. I don’t know what policies he had in effect at the time and that’s why Anthony got
this letter to find out, to subpoena them.” Id. at 41, lines 4-13. Appellant then admitted he
informed Appellant there builder failed to have wind and flood insurance during the
hurricane, “Most likely told him, but did I know? No. It’s, like I said, I most likely. I don’t
know. I wasn’t the builder.” Id. at 42, lines 6-10. Appellant also confirmed her previously
informing Appellant that the wind and flood insurance expired May 26, 2007 (prior to Ike’s
landing of September 2008) (id. at 43, lines 6-25; 44, lines 1-21; 45, lines 1-22).
Appellee explained that a lawsuit was brought against the builder for not having insurance,
per the client’s request. There was no wind and flood insurance at the time the Hurricane hit
and the Enterprise home suffered substantial damages (RR., Vol. 7 at 11, lines 9-25).
Appellee testified he initially learned there was no insurance from Appellant; he was
ultimately tendered documents affirming as much. Id. Appellee said notion of filing a claim
when no insurance was in existence did not make sense (id. at 12, lines 18-25; 13, lines 1-25;
14, line 1).
13
saying he contributed to issues at hand and he knows what those
issues are” (RR., Vol. 5 at 97, lines 16-25; 98, lines 1-25; 99, lines 1-
22).8 Appellant testified Cross-Appellant should be responsible to her
for the sum of $700,000.009 on this claim because “I felt like he
should have made a claim.” When counsel inquired whether this
meant the Builder’s Risk Insurance, Appellant answered in context of
a possible wish, “[o]n whatever insurance policies that he was going
to go get from the custodian of records at the insurance company” (id.
at 52, lines 11-25; 53, lines 1-11).10
8
Later in her testimony, Appellant changed her testimony and contended Cross-Appellant
advised her not to pay the taxes on the house, “therefore, due to my lawyer’s advice, it did
foreclose” (RR., Vol. 6 at 13, lines 16-25; 14, lines 1-5). Appellant retreated from this
position when her documents revealed she requested Cross-Appellant to negotiate a payment
plan on the taxes, which Cross-Appellant accomplished (id. at 14, lines 18-25; 15, lines 1-25;
16, lines 1-25; 17, lines 1-24).
9
When asked to quantify this sum, Appellant explained the sum would be the difference of
what she got at the foreclosure sale (received $760,000.00) of the property and the sum
$1,550,000. Appellant stood by the $1,550,000.00 even though her own appraiser valued the
property, at most, at $724,000.00 – all because of the uninsured storm damage (RR., Vol., 5
at 94, lines 9-25; 95, lines 1-25; 96, lines 1-18).
Appellant then tied herself in a proverbial knot, explaining, “if the builder negligence claim
had been made, which would make it $1,550,000.00 and you take the difference between that
number and the $760,000, that is a number that you should have been received for that house,
not the $760,000 dollar loss” (id. at 96, lines 13-25). Appellant admitted a builder’s
negligence lawsuit was filed, but said she didn’t consent to the filing of the claim (id. at 96,
lines 19-23), that he wants to hold Cross-Appellant Griffin liable for the builder’s negligence
(id. at 96, lines 24-25; 97, line 3), even though she testified she objected to him filing the
builder’s negligence lawsuit (id. at 97, lines 2-4).
10
In trying to obtain a handle on the malpractice claim, Cross-Appellant’s counsel had the
following exchange with Appellant. The discussion related to a letter/email drafted by
14
That Cross-Appellant failed to keep her informed and undertook
actions willy-nilly. The notion Appellant was not kept informed took
the form of denying receiving any of the multitude of letters, emails,
etcetera, keeping her informed (RR., Vol. 5 at 115, lines 4-25; 116-
Appellant to Cross-Appellant.
[NORMA VENSO]
Q. Have I offered Plaintiff’s Exhibit 75? Let me show you the part of this letter
when you are talking about the way Bill De La Garza is treating your lawyer - -
[BARBARA SCHLEIN]
A. Ma’am, can I get a copy of that?
Q. Does No. 2 start with, “Who’s in control of this court, Bill or Judge Roberts?”
A. Yes.
Q. “Just read Bill’s letter,” which you obviously had; is that correct?
A. Yes.
Q. “His language to you is highly condescending and controlling and offensive. Bill
makes you look bad to this judge ever[y] chance he gets. You should be offended
that Mr. De La Garza treats you with such disrespect and unprofessionalism. I’m
appalled and offended that he does this to you because you [,] Anthony are the
good guys in this horrible situation that Bill De La Garza has created and
continues to create,” but you’ve changed your mind about who the good guy is in
this case and now you’re asking that Anthony Griffin pay the $700,000 that you
say you lost on your house at Enterprise? Are you asking for $700,000 from Mr.
Griffin because you think he’s malpracticed you?
A. Yes.
Q. Do you want to explain that again, how he’s malpracticed you? You were
looking confused.
A. Well, I was just trying to make the correlation.
…
Q. (By Ms. Venso) When did you change your mind about Anthony Griffin
being the good guy.
A. I never changed my mind. Anthony Griffin fired me.
RR, Vol. 5 at 89, lines 15-25; 90, lines 1-24; emphasis added.
15
118, lines 1-25; 119, lines 1-12; 120, lines 7-25; 121-126, lines 1-25;
127, lines 1-4).11
11
During Cross-Appellant’s testimony, Plaintiff’s Exhibits 85 through 117 were admitted into
evidence. All such exhibits were identified by Cross-Appellant as letters, emails and
documents directed to Appellant keeping her informed with regards to her case (RR., Vol. 8
at 14, lines 10-25; 15-31, lines 1-25; 32, lines 1-21). In addition, Plaintiff’s Exhibits 118-136
were admitted reflecting the same type of information (id. at 32, lines 22-25; 33-42, lines 1-
25; 43, lines 1-9).
Cross-Appellant testified the Appellant was not dissatisfied with his services and that the
dispute arose when he refused her offer of her tile and a reduction of his fees and costs. Prior
to coming into his office in October, Appellant had drafted a document apologizing for
Cross-Appellant not being paid. The document reads in part:
“I’m sorry you haven’t been paid. I thank God every day that you and your staff
have stayed with Austin and I. You are obviously passionate about your job.
Now I know why people say really good things about you that they do. I wish
everyone could read this e-mail and see things how they really are in this case.
The Court is bankrupting us, even though I have separate property money to live
on.”
Id. at 46, lines 2-125; 47, lines 1-18; see email at RR., Vol. 15, Plaintiff’s Exhibit 83.
Cross-Appellant testified Appellant prevailed in the divorce. The community assets were
split 50/50%, with Appellant received the community home (her request to the Court), with a
reimbursement order to her spouse of $371,000 (approximately $150,000 less than his share
contributed to house) (RR., Vol. 7 at 34, lines 12-22). Albeit the jury found against Appellant
her cruelty, adultery and abuse claims (id. at 34, lines 20-25; 35, lines 1-10), the 50/50% split
and awarding of home to Appellant still took place. In addition, Appellant was able to avoid
the payment of attorneys fee to the opposing lawyer ($450,000 claim), reimbursement to her
former spouse, contribution to the community estate ($400,000 claim), and avoiding the
claim of her having possession of his separate property ($300,000 claim) (RR., Vol. 6, 171,
24-25; 172, lines 1-10). Appellant also received her separate property funds ($600,000 -
$800,000.00) (id. at 172, lines 15-25). Appellant expressed happiness with the trial, but
disappointment with her not receiving funds on the civil tort portions of the verdict in the
divorce. Appellant was also happy she received the Enterprise home, in that it is something
she requested of the trial court (id. at 173, lines 1-25; 174, lines 1-25; 175, lines 1-25).
16
Appellant also contended Cross-Appellant breached his fiduciary
responsibility to her by revealing things she told him in confidence (RR., Vol. 6 at
6, lines 9-13). This claim related to Appellant’s contention that Cross-Appellant
placed in his original pleadings filed with the Court matters she contends should
have been confidential conversations – even though in the same breath she
contends the confidential conversation never took place (id. at 6, lines 14-25; 7,
lines 1-25). Appellant also contended Cross-Appellant defamed her by placing
information in the lawsuit claiming she had taken and hidden evidence from the
other side in the divorce proceeding - Appellant contended this too as an event
never occurred. Id.
Appellant admitted Cross-Appellant never tried to bill her for any of the
other work he performed for her (RR., Vol. 6, at 30, lines 13-20). And with
regards to the allegation by Appellant she paid Cross-Appellant in property,
Appellant contended the tile was worth $57,000 and “he had kept it and he’s only
due and owing $35,000. So the difference is almost $22,000 that he owes me” (id.
at 33, lines 10-17). Appellant admitted she paid $20,301.88 for the tile (id. at 36,
lines 1-18).
The jury heard testimony that the valuation of the tile also ultimately was
problematic. The tile’s value was tendered by a Paulette Varner. Varner
identified herself as an interior designer by profession. Varner testified she
17
attended South Dakota State University in interior design and ultimately finished
her degree in interior design at North Dakota State University [sic] (RR., Vol. 11 at
42, lines 8-25; 43, lines 1-5). Varner is the owner of Vstudios, located in the
Woodlands area (id. at 43, lines 19-21). She described the tile as venato, from
Peru (id. at 46, lines 7-25; 47, lines 1-19). Varner appraised the tile at $56,338.85
(id. at 52, lines 11-13; see report at Defendant’s Exhibit 7); testifying the tile has
appreciated in value (id. at 55, lines 14-25; 56, lines 1-19), because of its rare
nature (id.). When asked about a sample tile labeled Defendant’s Exhibit 82,
Varner testified she didn’t know where the tile came from, only it was given to her
by Schlein and her lawyers (id. at 59, lines 13-25). It was her assumption the tile
was taken from the Schlein home prior to the tile going to the warehouse (id. at 60,
lines 1-6). When presented with Plaintiff’s Exhibit 150, a tile from the warehouse,
Varner stated the tile was not vernato (id. at 60, lines 7-25). The jury also heard,
the other products/items ordered for the Enterprise home ended up being
fraudulent/fake (concrete pilings or columns instead of the travertine columns
being delivered) (id. at 62, lines 8-25; 63, lines 1-19).
Varner’s resume reflected she possessed a master’s of architecture from the
University of Texas; she said he as a student in 1981, 1982 (id. at 58, lines 9-11). .
She testified it took her a year and a half to complete the degree (id. at 57, lines 2-
18) and that the degree was obtained in her maiden name, Ellington. Id. Varner
18
stated she is not a license architect, “I passed every section except for structures the
first time, and the structures portion I took five times and just didn’t pass it” (id. at
58, lines 1-8). After Varner’s credential were checked, it was determined she
never attended the University of Texas (see Plaintiff’s Exhibit 153; RR., Vol. 12 at
117, lines 18-25; 118, lines 1-25; 119, lines 1-22). The witness’ bold face
misstatement of her qualifications is something the jury was free to consider.
To support her claims against Cross-Appellant, Appellant called Lillian
Hardwick. Hardwick testified she has co-authored a treatise on attorney judicial
ethics in 2002 (RR., Vol. 10 at 120, lines 6-25; 121, 1-4). Hardwick explained she
is also involved presenting at continuing legal education courses, participation in
State Bar Committees (id. at 121, lines 1-25) and advising lawyers or law firms on
the disciplinary rules (id. at 122, lines 2-12).
Hardwick stated she was hired by Appellant to figure out which of the
attorney’s fiduciary duties might have been violated by Cross-Appellant (id. at
122, lines 13-20). Hardwick expressed a view Cross-Appellant violated his duty of
loyalty,12 candor, and confidentiality13 (id. at 123, lines 9-21). In this context,
12
With regards to the duty of loyalty, the witness explained as follows:
My opinion is that he breached the duty of loyalty in that this agreement, whether taken
individually or together, is unconscionable in that it is overreaching and not clear; and
that is at the outset of the relationship, the lawyer, of course, knows much more about
what’s going on and what will be going on than the client does. So it’s the lawyer’s
obligation to set out what’s going to happen and particularly how the lawyer is going to
be paid in a way that is clear to the client” (id. at 126, lines 1-16).
19
Hardwick express a view the sending of only one invoice constituted a breach of
fiduciary duty (id. at 132, lines 5-25), a view that nothing in the contract allowed
for Cross-Appellant to bill for copy cost (id. at 133, lines 7-23; 134, line 1 (breach
of fiduciary duty to not disclose and then charge for it) ). Hardwick also criticized
Cross-Appellant saying he breached the duty of confidentiality (id. at 137, lines 7-
25). This opinion related to the Appellant’s contention her file was not turned over
to her and the retention of the tile (id. at 137, lines 8-25; 138, lines 1-23). At no
point did Appellant submit a question to the jury as to who owned the tile.
On cross examination, Hardwick affirmed she had previously been hired by
Schlein in the Reitz representation of Schlein (id. at 141, lines 7-25). Hardwick
testified she never talked to Schlein, only to her lawyers and documents provided
Hardwick explained her problem with the agreement related to the language identifying
stating “all matters concerning this divorce,” whether they were civil issues, tort issues,
whatever (id. at 127, lines 2-17). Hardwick expressed the opinion that “it gives the lawyer an
opportunity later on to do exactly what I said, to interpret it to his or her advantage down the
road (id. at 127, lines 21-25).
Cross-Appellant testified his bill was segregated and the only matter billed was the divorce
matter and all other matters performed by Cross-Appellant were not billed (RR., Vol. 8 at 61,
lines 22-25; 62-64, lines 1-25). Even in this context, Appellant’s counsel incorrectly held out
to the expert, “Mr. Griffin has testified that there is no limit as to what his fees might be that
Ms. Schlein has to pay under this agreement” (id. at 129, lines 18-25; 130, 1-4). The expert
then responded “Yes, because by no means do I think this agreement communicates that. So
if that’s what he intended to communicate, then he has breached the duty of communication,
as well as created an overreaching or unconscionable agreement that does not clearly convey
that at the outset.” Id.
13
This was explained as “Mr. Griffin revealed in a pleading, which is public things that Ms.
Schlein told him in attorney-client communications; and they are set out there now for all the
world to see” (id. at 159, lines 10-15).
20
by the lawyers (id. 142, lines 1-25). “We talked about what I would testify which
is breach of fiduciary duty” (id. at 142, lines 19-24). Hardwick admitted never
sitting first chair at trial, never handling a divorce, and never having done free
legal work for someone under order not to spend any more money on attorney’s
fee (id. at 143, lines 20-25; 144, lines 1-4). The witness admitted she was
expressing an opinion with regards to Cross-Appellant’s standard of care in a
practice-specific area of divorce, “I am not a divorce lawyer; and I’m not here to
testify about the standard of care or to give it for you” (id. at 146, lines 2-13).
When asked about the home not having insurance, Hardwick stated she
recalled the discussion, “I’m not sure that I know the difference between them” (id.
at 147, lines 12-25; 148, lines 1-6). When asked whether Cross-Appellant violated
his duty by failing to file a builder’s risk claim on behalf of Ms. Schlein, the
witness backed away again, “Whatever he did or did not do, I’m saying it was his
duty to explain to her what he was doing and why he was doing it or why he was
not doing it” (id. at 148, lines 9-21). The expert however is clear in imposing on
Cross-Appellant a standard of requiring him to pursue the charges and objectives
or Appellant, or an explanation of why not (id. at 149, lines 10-25; 150, lines 1-2).
[NORMA VENSO]
Q. But if she did get an explanation, then there was no breach of
fiduciary duty?
21
[LILLIAN HARDWICK]
A. Assuming the explanation classified that for her, yes; and it’s for the
jury to decide whether that explanation was sufficient.
Id. at 150, lines 3-7.
Hardwick expressed no opinion whether the house being foreclosed was
Cross-Appellant fault (id. at 151, lines 8-11). She expressed no opinion on the
email from Schlein expressing satisfaction with Griffin’s work and Schlein regrets
Griffin had not been paid (id. at 154, lines 1-6), nor the work performed by Griffin
with regards to her taxes and working out an arrangement (id. at 154, lines 7-13).
Hardwick also expressed no opinion whether there was wind or flood insurance
(id. at 155, lines 1-4).
[NORMA VENSO]
Q. So you’re not here saying there was a viable insurance claim. You’re
just saying that if what the other side tells you is true, that Mr. Griffin
didn’t explain to her enough of why an insurance claim wasn’t file?
[LILLIAN HARDWICK]
A. Yes.
Q. And you’re calling that a breach of fiduciary duty?
A. Yes.
Q. The failure to explain.
22
A. Yes, it’s the breach of duty of loyalty and of communication.
Q. Would you agree with me that in a legal malpractice claim, it is the
burden to prove that there would have been a different result but for the
negligence of the lawyer?
A. It depends on how you define legal malpractice. I think you’re talking
about negligence cases.
Q. Yes, I am.
A. I’m here testifying about breach of fiduciary duty.
Id. at 156, lines 4-25.
There was a series of witnesses who were called by Cross-Appellant after
his character was moved into evidence, over objection.14 Those witnesses included
14
During Cross-Appellant’s testimony, the Court allowed Appellant to inquire of Cros-
Appellant sanctions by State Bar of Texas, regarding client complaints. With respect to a
client named Guzman (RR., Vol. 10, at 55, lines 15-25; 56, lines 1-25; 57, lines 1-25
(testimony entered in agreement with State Bar on sanction, probated suspension). Likewise
in matter involving a client named Cusick, Cross-Appellant agreed to a public reprimand,
voluntarily sent a letter of apology to Mr. Cusick (id. at 59, lines 7-25; 60, lines 1-25; 61,
lines 10-24). And finally, in regards to a client named Vereen, a judgment of public
reprimand for neglecting the client’s matter (id. at 61, lines 23-25; 62, lines 1-25; 63, lines 1-
25). Cross-Appellant explained his office was affected by Hurricane Ike, receiving 4 to 5
feet of water, destroying one-half of open and pending files (lost or destroy) (id. at 68, lines
13-25; 69, lines 1-15). With regards to large litigation files., stored in a warehouse, the
warehouse received eight (8) feet of water, with the destruction of one-half of those files
destroyed (id.).
23
Michael Landolt,15 Helen Truscott,16 Mary Luna,17 Joanna Mora,18 and Lloyd
Gilliam.19
15
Landolt explained he is a current client of Cross-Appellant. Landolt is a wealth financial
manager by profession, his wife the owner of an Anheuser-Busch distributor (RR., Vol. 162,
lines 14-25). Landolt stated Cross-Appellant represents he and his wife in a suit against their
homeowner’s association. Landolt testified he was kept well-informed by Griffin and had no
problem finding out about his case (id. 10 at 162, lines 14-25; 163, lines 1-22). Landolt paid
an initial retainer of $15,000.00 and ultimately a fee of $70,000.00 (id. at 163, lines 22-25;
164, lines 1-11).
16
Truscott identified herself as a practicing attorney, having been licensed since November,
1980 (RR., Vol. 11 at 7, lines 19-25). Truscott is a graduate of the University of Texas
School of Law, graduating in 1980 (id. at 8, lines 23-25; 9, lines 1-2), a former assistant
district attorney in the Galveston County District Attorney’s Office (id. at 9, lines 3-15) and
currently has a practice which concentrates on family law (id. at 8, lines 5-6). Truscott
affirmed she appeared at the deposition of Barbara Schlein at a time Cross-Appellant was
required to be elsewhere (id. at 9, lines 16-25; 10, lines 1-23).
17
Mary Alice Luna identified herself as a former client of Cross-Appellant. Luna is a retired
Registered Nurse, a bachelor’s degree in nursing from the University of Texas, a Master’s
degree from HBU, a teaching certificate from Prairie View A & M (RR., Vol. 11 at 13, lines
1-16). Luna testified she hired Cross-Appellant in a real estate dispute. He testified with
regards to Griffin’s character (good) and his work as a lawyer (kept informed) (id. at 13, lines
19-25; 14, lines 1-25; 15, lines 1-3).
18
Joanna Mora identified herself as a former client of Cross-Appellant. Mora hired Griffin
because of his reputation and after her mother read an article in Texas Monthly (RR., Vol. 11
at 154, lines 22-25; 16, lines 1-11). Mora hired Cross-Appellant in a divorce matter, after he
explained he was not a family lawyer (id. at 16, lines 11-19). Griffin explained he could
refer her to other lawyer, but she decided to hire because of her husband being in law
enforcement (id. at 16, lines 15-25; 17, lines 1-25). She, Mora, too testified with regards to
Cross-Appellant’s character (kept informed and reliable) (id. at 18, lines 10-21).
19
Lloyd Gilliam identified himself as a current client of Cross-Appellant. Gilliam is a self-
employed in the oil industry and hired Cross-Appellant in a nuisance case along with 28
other families in the Santa Fe, Texas area (RR., Vol. 27, lines 23-25; 28, lines 1-21). Gilliam
explained the case is at the Houston Court of Appeals for the second time (id. at 29, lines 4-
25) and attested to Cross-Appellant’s character even in cases where politics may intrude in
the case (id.). He too testified Cross-Appellant has kept him informed and to Cross-
Appellant’s good character (id. at 30, lines 1-25; 31, lines 1-18).
24
After the admission of character related evidence, Cross-Appellant testified
with regards to his own character, explaining he was licensed on May 15, 1978.
Cross-Appellant identified his previous work included serving as General Counsel
for both the Texas Civil Liberties Union and the NAACP, both on a statewide
basis. Cross-Appellant has served as an adjunct professor at the University of
Houston Law Center, teaching both civil and criminal trial advocacy (id. at 79,
lines 4-25). Griffin explained he has published in both legal and non-legal circles
(id. at 80, lines 8-20), and was the first recipient of the Justice William Brennan
Award for his representation of the Texas Knight of the Ku Klux Klan (id. at 80,
lines 8-25; 81, lines 1-25; 82, lines 1-9). Cross-Appellant testified his trial and
appellate work was throughout the country (id. at 82, lines 9-15); in the Schlein
matter he filed two mandamuses with the court of appeal (id.) - All in an attempt to
make the trial process fairer for the client.
Cross-Appellant explained his practice and history created circumstances
where at times his enemies became his friends, or his friends became his enemies -
depending of the case. He testified that divorces were not a routine part of his
practice, an election he made because, “[t]hey’re emotionally too hard (id. at 83,
lines 4-25; 84, line 1; 84, lines 13-25).
Cross-Appellant billed at $300.00 an hour at 352.5 hours, for a bill in the
amount of $105,750.00. The copy costs was $18,000.00, the expenses on behalf of
25
the client was $4,399.29 for a total of $128,149.29 (id. at 85, lines 14-25; 86, lines
1-6).
Genevieve McGarvey, a licensed lawyer, testified on behalf of Cross-
Appellant. McGarvey testified she has known Cross-Appellant since 1991 or 1992
(RR., Vol. 10 at 94, lines 12-25). McGarvey explained her previous career was as
a social worker and peace officer. When she worked as a peace officer she was
employed by the University of Texas System and rose to the rank of Sergeant (id.
at 95, lines 1-9). McGarvey is a partner in the firm of McLeod, Alexander located
in Galveston, Texas (id. at 96, lines 13-15); some twenty five percent of her
practice is family (id. at 97, lines 20-25).
McGarvey testified she knew Cross-Appellant’s reputation in the
community, having met Cross-Appellant during litigation styled [Arceaneaux] v.
City of Galveston (voting rights dispute) (id. at 98, lines 17-25). McGarvey
expressed the view the hourly rate and fee of Cross-Appellant was reasonable and
necessary (id. at 100, lines 11-25; 101, lines 1-25; 102, lines 17-25; 103, lines 1-
18). On cross-examination she reaffirmed her view of Cross-Appellant’s good
character of Cross-Appellant (id. at 1054, lines 10-18; 106, lines 1-25; 107, lines 1-
25) (expressing the same view even in light of the recent adverse events).
The last witness who testified in Cross-Appellant’s case-in-chief was his
counsel, Norma Venso. Venso identified herself as being licensed February 1978,
26
after graduating from the University of Texas Law School in December 1977 (RR.,
Vol. 10 at 110, lines 17-25). Venso served as a trial lawyer for 17 years prior to
being elected to the 56th Judicial District Court, Galveston County, Texas (id.).
She served as a judge from 1997 to 2004 (id. at 111, lines 1-4).
Venso’s rate charged was $425.00 an hour. She testified the fee was
reasonable and necessary in the Houston Galveston legal market (id. at 111, lines
5-13). Her hours billed was 29.5 hours for fees in the amount of $29,962.50
(testifying she cut her hours half). She continued to explain, “The hundred hours
that had been in my report, the first hundred hours have been reduced to 70.5 and
so adding to that another 69.5; and by the way, we estimated the trial work to be 40
hours, which is way less than what it’s actually turned out to be; but that comes up
to a total of $59,500.00 (id. at 112, lines 6-24).
The trial court granted Cross-Appellant’s requested dismissal on the claim
directed at the defamation claim (RR., Vol. 12 at 104, line 25; 105-109, lines 1-25;
110, lines 1-16). After the charge conference, the Appellant elected not to submit
any questions on the malpractice allegations (RR., Vol. 12 at 103, line 25; 104, line
1-25). The Questions submitted by the Court and the jury answers are set out
below.20 The jury found Barbara Schlein breached the contract in question
20
After the presentation of evidence and arguments of counsel, the Court presented the following
questions to the jury and the jury answered in the manner, to-wit:
27
QUESTION 1
Did Barbara Schlein fail to comply with the terms of the agreement for legal services
dated November 3, 2009, between her and Anthony P. Griffin d/b/a A Griffin Lawyers?
[Yes]
Answer: _______________
QUESTION 2
Did Anthony Griffin fail to comply with the agreement for legal services dated
November 3, 2009?
…
[No]
Answer: _______________
If you answered “Yes” to both Question 1 and Question 2, then answer the following
question. Otherwise, do not answer the following question.
QUESTION 3
Who failed to comply with the Agreement first?
[N/A]
Answer: _______________
QUESTION 4
Was Barbara Schlein’s failure to comply excused?
…
[No]
Answer: _______________
If you answered “Yes” to Question 1, then answer the following question. Otherwise, do
not answer the following question.
QUESTION 5
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Anthony P. Griffin d/b/a A Griffin Lawyers, for his damages, if any, that resulted from
28
such failure to comply?
…
a. Attorneys’ fee incurred in the representation of Barbara Schlein in
her divorce from Robert Schlein?
ANSWER: [$105,750.00]
b. Costs incurred by Anthony P. Griffin in the representation of Barbara
Schlein in her divorce from Robert Schlein.
ANSWER: [$22,399.29]
If you have answered “Yes” to Question 2, then answer the following question.
Otherwise, do not answer the following question.
QUESTION 6
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Barbara Schlein for her damages, if any, that resulted from such failure to comply?
…
a. The reasonable and necessary attorney’s fees and costs incurred to complete
the divorce matter started but not finished by Anthony Griffin.
ANSWER: [N/A]
b. The reasonable and necessary attorney’s fees and costs incurred to complete
the other matters started but not finished by Anthony P. Griffin.
ANSWER: [N/A]
QUESTION NO. 7
What is a reasonable fee for the necessary services of Anthony P. Griffin’s attorney in
this case, stated in dollars and cents?
…
a. For preparation and trial.
[$62,866.00]
Answer: ____________________.
29
b. For an appeal to the Court of Appeals.
[$15,000.00]
Answer: ____________________.
c. For an appeal to the Supreme Court of Texas
[$25,000.00]
Answer: ____________________.
If you answered “Yes” to Question 2, then answer the following question. Otherwise, do
not answer the following question.
QUESTION NO. 8
What is a reasonable fee for the necessary services of Barbara Schlein’s attorney in this
case, stated in dollars and cents?
…
a. For pre-trial preparation and representation in the trial court.
[N/A]
Answer: ____________________.
b. For representation through the Court of Appeals.
[N/A]
Answer: ____________________.
c. For representation [through] the petition for review stage in the Supreme
Court of Texas.
[N/A]
Answer: ____________________.
d. For representation in the merits briefing stage in the Supreme Court of Texas.
[N/A]
Answer: ____________________
e. For representation through oral argument and the completion of proceedings
in the Supreme Court of Texas.
[N/A]
Answer: ____________________
QUESTION NO. 9
30
Did Barbara Schlein substantially rely on her detriment on Anthony Griffin’s promise, if
any, and was this reliance foreseeable by Anthony Griffin?
…
Answer: [No]
If you have answered “Yes” to Question 9, then answer the following question. Otherwise, do
not answer the following question.
QUESTION 10
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Barbara Schlein for her damages, if any, that resulted from such her reliance on Anthony
Griffin’s promise?
…
b. The reasonable and necessary attorney’s fees and costs incurred to
complete the divorce matter started but not finished by Anthony
Griffin.
Answer: [N/A]20
c. The reasonable and necessary attorney’s fees and costs incurred to
complete the other matters started but not finished by Anthony P. Griffin.
Answer: [N/A]
QUESTION 11
Did Anthony Griffin fail to comply with his fiduciary duty to Barbara Schlein?
As Barbara Schlein’s attorney, Anthony Griffin, owed Barbara Schlein a fiduciary duty.
To prove Anthony Griffin failed to comply with his fiduciary duty, Barbara Schlein must
show:
a. the transaction and action in question were not fair and equitable to Barbara
Schlein; or
b. Anthony Griffin did not make reasonable use of the confidences that Barbara
Schlein placed in him; or
c. Anthony Griffin failed to act in the utmost good faith or exercise the most
scrupulous honesty toward Barbara Schlein; or
d. Anthony Griffin placed his own interests before Barbara Schlein’s, used the
advantage of his position to gain a benefit for himself at the expense of
31
Barbara Schlein, or place himself in a position where his self-interest might
conflict with his obligations as a fiduciary; or
e. Anthony Griffin failed to fully and fairly disclose all important information to
Barbara Schlein concerning the transaction.
Answer: No.
If you answer “Yes” to Question 11, then answer the following question. Otherwise, do
not answer the following question
QUESTION 12
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Barbara Schlein for her damages, if any, that were proximately caused by such conduct?
…
a. The amount, if any, that Barbara Schlein paid in excess to Anthony Griffin for
legal services promised by Anthony Griffin.
[N/A]
Answer: ____________________
b. the amount of reasonable and necessary attorney’s fees incurred as a result of
Barbara Schlein having to hire new attorneys to complete the divorce matter.
[N/A]
Answer: ____________________
c. the amount of reasonable and necessary attorney’s fee incurred as a result of
Barbara Schlein having to hire new attorneys to complete the other matters
started by Anthony Griffin.
[N/A]
Answer: ____________________
d. the difference between the sales price of Barbara Schlein’s house located at
1628 Enterprise Avenue at foreclosure and the value of the house if repairs
had been made because of the filing of an insurance claim.
[N/A]
Answer: ____________________
32
e. mental anguish sustained from November 3, 2009 to date.
[N/A]
Answer: ____________________
QUESTION 13
Did Anthony Griffin commit fraud against Barbara Schlein?
Fraud occurs when:
a. a party makes a materials misrepresentation, and
b. the misrepresentation is made with knowledge of its falsity or made recklessly
without any knowledge of the truth and as a positive assertion, and
c. the misrepresentation is made with the intention that it should be acted on by
the other party, and
d. the other party relies on the misrepresentation and thereby suffers injury; or
e. a party fails to disclose a material fact within the knowledge of that party, and
f. the party knows that the other party is ignorant of the fact and does not have
an equal opportunity to discovery the truth, and
g. the party intends to induce the other party to take some action by failure to
disclose the fact, and
h. the other party suffers injury as a result of acting without knowledge of the
undisclosed fact.
“Misrepresentation” means:
a. A false statement of fact; or
b. A promise of future performance made with an intent, at the time the promise
was made, not to perform as promised; or
c. A statement of opinion based on a false statement of fact; or
d. A statement of opinion that the maker knows to be false.
Answer: No.
QUESTION 14 & 1520
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Barbara Schlein for her damages, if any, that resulted from such fraud?
…
a. The amount, if any, that Barbara Schlein paid in excess to Anthony Griffin for
legal services promised by Anthony Griffin.
33
[N/A]
Answer: ____________________
b. the amount of reasonable and necessary attorney’s fees incurred as a result of
Barbara Schlein having to hire new attorneys to complete the divorce matter.
[N/A]
Answer: ____________________
c. the amount of reasonable and necessary attorney’s fee incurred as a result of
Barbara Schlein having to hire new attorneys to complete the other matters
started by Anthony Griffin.
[N/A]
Answer: ____________________
d. mental anguish sustained from November 3, 2009 to date.
[N/A]
Answer: ____________________
QUESTION NO. 16
Did you find by clear and convincing evidence that the harm to Barbara Schlein resulted
from malice or fraud?
…
Answer: [N/A]
QUESTION NO. 17
Did Anthony Griffin engage in any false, misleading, or deceptive act or practice that
Barbara Schlein relied on to her detriment and that was a producing cause of damages to
Barbara Schlein?
…
Answer: [No]
QUESTION NO. 18
34
Did Anthony Griffin engage in any unconscionable action or course of action that was a
producing cause of damages to Barbara Schlein?
“Producing cause” means a cause that was a substantial factor in bringing about
the damages, if any, and without which the damages would not have occurred.
There may be more than one producing cause.
An “unconscionable action” or “course of action” is an act or practice that, to a
customer’s detriment, takes advantage of the lack of knowledge, ability,
experience, or capacity of the consumer to a grossly unfair degree.
Answer: [Yes]
If you answer “Yes” to Question 17 or Question 18, then answer the following question.
Otherwise, do not answer the following question.
QUESTION NO. 19
Did Anthony Griffin engage in any such conduct knowingly or intentionally?
…
Answer: [Yes]
QUESTION NO. 20
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Barbara Schlein for her damages, if any, that resulted from such conduct?
…
a. The amount, if any, that Barbara Schlein paid in excess to Anthony Griffin for
legal services promised by Anthony Griffin.
[0]
Answer: ____________________
b. the amount of reasonable and necessary attorney’s fees incurred as a result of
Barbara Schlein having to hire new attorneys to complete the divorce matter.
[0]
Answer: ____________________
35
c. the amount of reasonable and necessary attorney’s fee incurred as a result of
Barbara Schlein having to hire new attorneys to complete the other matters
started by Anthony Griffin.
[0]
Answer: ____________________
d. mental anguish sustained from November 3, 2009 to date.
[0]
Answer: ____________________
QUESTION NO. 21
What sum of money, if any, in addition to actual damages, should be awarded to Barbara
Schlein against Anthony Griffin because Anthony Griffin’s conduct was committed
knowingly or intentionally?
…
Answer: [$5,000.00]
If you answered “Yes” to Question 17, then answer the following question. Otherwise, do
not answer the following question.
QUESTION NO. 22
What is a reasonable fee for the necessary services of Barbara Schlein’s attorney in this
case, stated in dollars and cents?
…
a. For pre-trial preparation and representation in the trial court.
[N/A]
Answer: ____________________.
b. For representation through the Court of Appeals.
[N/A]
Answer: ____________________.
e. For representation [through] the petition for review stage in the
Supreme Court of Texas.
36
(Questions 1 and 4). The final judgment finding entered by the trial court reflected
the jury’s answers. The jury also found that Appellant’s breach caused damages in
the amount of one hundred and five thousand seven hundred and fifty dollars
($105,750.00) (for the reasonable attorney’s fee incurred in the representation of
Barbara Schlein), twenty two thousand three hundred and ninety nine dollars and
29/00 cents ($22,399.29) (for the costs expended on Barbara Schlein’s behalf), and
reasonable attorneys’ fees incurred due to such breach in the amount of sixty two
thousand eight hundred and sixty six dollars for the work up to trial, fifteen
thousand dollars ($15,000.00) if the case is appealed to the Court of Appeals; and
twenty five thousand dollars ($25,000.00) if the case is appealed to the Supreme
Court (representing the attorney’s fee incurred in seeking to enforce the subject
breach) (Questions 5-8).
[N/A]
Answer: ____________________.
f. For representation in the merits briefing stage in the Supreme Court of Texas.
[N/A]
Answer: ____________________
g. For representation through oral argument and the completion of proceedings
in the Supreme Court of Texas.
[N/A]
Answer: ____________________
Cross-Appellant’s Appendix, Tab 7. The Record on Appeal does not contain the Court’s
Charge. The cited referenced is derived from Appellee’s Motion for Judgment. The
document included in the appendix was taken off-line from the Galveston County District
Clerk’s Office. A request to supplement the record on appeal will be filed with the Clerk of the
Court to forward the Court’s Charge and all jury notes.
37
The jury found adversely against Appellant Schlein on a detrimental reliance
submission (Question 9 & 10), breach of fiduciary responsibility (Question (11 &
12), fraud and malice (Questions 13, 14, 15, 16), deceptive trade (in any false,
misleading, or deceptive act or practice that Barbara Schlein relied on to her
detriment and that was a producing cause of damages to Barbara Schlein)
(Question 17), and any predicated attorney fee questions (see Questions 8, 10, 12,
14, 15, 20 & 22).
The jury found in the favor of Appellant Schlein on Questions 18 (Did
Anthony Griffin engage in any unconscionable action or course of action that was
a producing cause of damages to Barbara Schlein?) and 19 (Did Anthony Griffin
engage in any such conduct knowingly or intentionally?). In response to the
damage questions on these questions, the jury found no actual damages suffered
(Question 20), but found punitive damages in the amount of $5,000.00 (Question
21); all which is part of parcel of the issues brought by the Cross-Appellant to this
Court.
It is in this factual context this matter is before this Honorable Court.
38
SUMMARY OF ARGUMENT
There was a finding of unconscionable conduct (Question 18) against Cross-
Appellant Griffin. With respect to the questions of damages for the
unconscionable conduct, the answer was none (zero) (Question 20). There was a
finding the unconscionable conduct was knowingly (Question 19), and with
regards to the additional damage question there was a finding of $5,000.00, even
though there was no actual damage finding. This finding cannot stand as a matter
of law (see Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986)
(reversing the additional damages award under DTPA, “To support an award of
exemplary damages in this case, the plaintiff must prove a distinct tortious injury
with actual damages. Bellefonte Underwriters Insurance Co. v. Brown, supra;
Luna v. North Star Dodge Sales, Inc., supra; City Products Corp. v. Berman,
supra. The only issue on actual damages inquired as to the cost of repairing the
home to the condition it was represented to be in at the time of sale. Although the
Reeds sought recovery for mental anguish in their petition, no issue was submitted
on those damages.”) In the case at bar, the question is cleaner – there was an
adverse finding on the actual damages question.
Lawyers’ work involve advice, judgment or legal opinions, and are not
cognizable under the DTPA under Texas’s common law rule against “fracturing”
or are exempt from its application under Section 17.49(c) (see Brennan v.
39
Manning, No. 07-06-0041-CV, 2007 WL 1098476 (Tex. App.-Amarillo Apr. 12,
2007) (unpublished) (incorrect advice to plaintiff in a divorce proceeding that she
was not entitled to any interest in funds owed to her husband exempt under the
DTPA as the essence of the services provided was the provision of advice,
judgment or opinion); Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.-Houston [1st
Dist.] 2005) (plaintiffs claim that attorney created confusion as to the source of
services by representing that he was board certified when he was not, and by
leading plaintiff to believe that a paralegal was an attorney, which plaintiff claimed
caused him to weigh the firm’s advice with undue favor, was barred by Section
17.49(c)); Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731 (Tex. App.-Fort Worth
2005) (a DTPA claim premised on representations by a home inspection company
that a licensed real estate inspector would do the inspection, when an unlicensed
apprentice was used, was a claim that the inspector was negligent in rendering an
erroneous opinion based upon an apprentice’s unsupervised inspection, and was
therefore an inseparable part of the professional services and was barred by the
DTPA); Greathouse v. McConnell, 982 S.W.2d 165 (Tex. App.-Houston [1st Dist.]
1998) (alleged false representation that legal services were of competent quality
was a re-stated negligence claim not cognizable under the DTPA.
In the case at bar, nothing in the case represented any actions outside the
exempted areas of advice, judgment and opinion. In addition, the Court’s Jury
40
Charge gives no guidance as to the alleged action which allegedly was
unconscionable (“Did Anthony Griffin engage in any unconscionable action or
course of action that was a producing cause of damages to Barbara Schlein?”).
STANDARD OF REVIEW
When a party attacks the legal sufficiency of an adverse finding on an issue
it did not have the burden to prove at trial, it must demonstrate that there is no
evidence to support the adverse finding (Aquila Southwest Pipeline, Inc. v.
Harmony Exploration, Inc., 48 S.W.3d 225, 236 (Tex.App.-San Antonio 2001, pet.
denied)). In reviewing a no-evidence issue, this Court is required to consider all of
the record evidence in a light most favorable to the verdict and indulge every
reasonable inference from that evidence in support of the verdict. Id. This Court
must determine whether the proffered evidence as a whole rises to a level that
would "enable reasonable and fair-minded people to differ in their conclusion"
(Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)).
A challenge to the legal sufficiency of the evidence must be sustained when
the record discloses one of the following: (1) a complete absence of evidence of a
vital fact; (2) the court is barred by rules of law or evidence from giving weight to
the only evidence offered to prove a vital fact; (3) the evidence offered to prove a
vital fact is no more than a mere scintilla; or (4) the evidence conclusively
41
establishes the opposite of a vital fact (Merrell Dow Pharm., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997)).
When reviewing a challenge to the factual sufficiency of the evidence, this
Court must consider all of the evidence in the record (see Plas-Tex, Inc. v. U.S.
Steel Corp., 772 S.W.2d 442, 445 (Tex.1989)). If a party is attacking the factual
sufficiency of an adverse finding when the other party has the burden of proof that
party must demonstrate there is insufficient evidence to support the adverse finding
(Aquila, 48 S.W.3d at 236). In reviewing a factual insufficiency challenge, we
weigh and examine all of the evidence that supports the verdict and that which is
contrary to it. Id. We set aside the verdict only if the evidence is so weak the
verdict is clearly wrong and manifestly unjust (see Cain v. Bain, 709 S.W.2d 175,
176 (Tex.1986); see also Jabri v Alsayyed, 145 S.W.3d 664 (Tex. App. – Houston
[14th Dist.] 2004)).
42
ARGUMENT
POINT OF ERROR NO. 1: THE FINDING OF NO ACTUAL DAMAGES ON
THE UNCONSCIONABILITY QUESTION IS
FATAL TO THE FINDING OF ADDITIONAL
DAMAGES UNDER THE DECEPTIVE TRADE
PRACTICES ACT.
The applicable Questions are noted below:
QUESTION NO. 18
Did Anthony Griffin engage in any unconscionable action or course of action that was a
producing cause of damages to Barbara Schlein?
“Producing cause” means a cause that was a substantial factor in bringing about
the damages, if any, and without which the damages would not have occurred.
There may be more than one producing cause.
An “unconscionable action” or “course of action” is an act or practice that, to a
customer’s detriment, takes advantage of the lack of knowledge, ability,
experience, or capacity of the consumer to a grossly unfair degree.
Answer: [Yes]
If you answer “Yes” to Question 17 or Question 18, then answer the following question.
Otherwise, do not answer the following question.
QUESTION NO. 19
Did Anthony Griffin engage in any such conduct knowingly or intentionally?
…
Answer: [Yes]
QUESTION NO. 20
What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Barbara Schlein for her damages, if any, that resulted from such conduct?
…
a. The amount, if any, that Barbara Schlein paid in excess to Anthony Griffin for
legal services promised by Anthony Griffin.
43
[0]
Answer: ____________________
b. the amount of reasonable and necessary attorney’s fees incurred as a result of
Barbara Schlein having to hire new attorneys to complete the divorce matter.
[0]
Answer: ____________________
c. the amount of reasonable and necessary attorney’s fee incurred as a result of
Barbara Schlein having to hire new attorneys to complete the other matters
started by Anthony Griffin.
[0]
Answer: ____________________
d. mental anguish sustained from November 3, 2009 to date.
[0]
Answer: ____________________
QUESTION NO. 21
What sum of money, if any, in addition to actual damages, should be awarded to
Barbara Schlein against Anthony Griffin because Anthony Griffin’s conduct was
committed knowingly or intentionally?
…
Answer: [$5,000.00]
If you answered “Yes” to Question 17, then answer the following question. Otherwise, do
not answer the following question.
________________________
There was a finding of unconscionable conduct (Question 18). With respect
to the questions of damages for the unconscionable conduct, the answer was none
(zero) (Question 20). There was a finding the unconscionable conduct was
44
knowingly ( Question 19), and with regards to the additional damage question
there was a finding of $5,000.00, even though there was no actual damage finding.
This finding cannot stand as a matter of law (see Jim Walter Homes, Inc. v. Reed,
711 S.W.2d 617, 618 (Tex. 1986) (reversing the additional damages award under
DTPA, “To support an award of exemplary damages in this case, the plaintiff must
prove a distinct tortious injury with actual damages. Bellefonte Underwriters
Insurance Co. v. Brown, supra; Luna v. North Star Dodge Sales, Inc., supra; City
Products Corp. v. Berman, supra. The only issue on actual damages inquired as to
the cost of repairing the home to the condition it was represented to be in at the
time of sale. Although the Reeds sought recovery for mental anguish in their
petition, no issue was submitted on those damages.”) In the case at bar, the
question is cleaner – there was an adverse finding on the actual damages question.
The judgment cannot stand as a matter of law. Evidence is legally
insufficient when (1) the record discloses a complete absence of evidence of a vital
fact; (2) the court is barred by rules of law or rules of evidence from giving weight
to the only evidence offered to prove a vital fact; (3) the evidence offered to prove
a vital fact is no more than a mere scintilla; or (4) the evidence establishes
conclusively the opposite of a vital fact (City of Keller v. Wilson, 168 S.W.3d 802,
810 (Tex.2005); see also James J. Flanagan Shipping Corporation v. Del Monte
Fresh Produce, N.A., Inc., 403 S.W.3d 360, 367 (Tex. App. – Houston [1st Dist.]
45
2013); Southwestern Bell Telephone Co. v. Delanney, 809 S.W.2d 493 (Tex.
1991)).
POINT OF ERROR NO. 2: THE TRIAL COURT ERRED IN NOT GRANTING
JNOV ON THE DECEPTIVE TRADE PRACTICES
QUESTIONS SUBMITTED TO THE JURY.
In Cross-Appellant’s Motion for Judgment Notwithstanding the Verdict, the
trial court was requested to enter a verdict adverse to the findings by the jury on
Questions 19 and 21. Cross-Appellant submitted to the trial court and submits to
this Court the questions were precluded as a matter of law. In addition, there is no
evidence and/or insufficient evidence to support the verdict.21
The Deceptive Trade Practices Act exempts professional advice from its
dictates. The relationship between Appellant and Cross-Appellant was an
attorney-client relationship and as such judgment notwithstanding the verdict
should be granted.22
21
See TEX. R. CIV. P. 301; Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394
(Tex. 1991); CDB Software, Inc.v. Krell, 992 S.W.2d 31, 35 (Tex. App.-Houston [1st Dist.]
1998, pet. denied). A motion for jnov should be granted when the evidence is conclusive
and one party is entitled to recover as a matter of law or when a legal principle precludes
recovery. Phar-Mor, Inc. v. Chavira, 853 S.W.2d 710, 713 (Tex. App.-Houston [1st Dist.]
1993, writ denied) (citing Mancorp, Inc. v. Culpepper, 802 S.W. 2d 226, 227 (Tex. 1990)).
22
The relevant provisions of the Act are as follows:
Sec. 17.49. EXEMPTIONS. (a) Nothing in this subchapter shall apply to the
owner or employees of a regularly published newspaper, magazine, or telephone
directory, or broadcast station, or billboard, wherein any advertisement in
violation of this subchapter is published or disseminated, unless it is established
that the owner or employees of the advertising medium have knowledge of the
46
false, deceptive, or misleading acts or practices declared to be unlawful by this
subchapter, or had a direct or substantial financial interest in the sale or
distribution of the unlawfully advertised good or service. Financial interest as
used in this section relates to an expectation which would be the direct result of
such advertisement.
(b) Nothing in this subchapter shall apply to acts or practices authorized under
specific rules or regulations promulgated by the Federal Trade Commission
under Section 5(a)(1) of the Federal Trade Commission Act [15 U.S.C.A.
45(a)(1)]. The provisions of this subchapter do apply to any act or practice
prohibited or not specifically authorized by a rule or regulation of the Federal
Trade Commission. An act or practice is not specifically authorized if no rule
or regulation has been issued on the act or practice.
(c) Nothing in this subchapter shall apply to a claim for damages based
on the rendering of a professional service, the essence of which is the
providing of advice, judgment, opinion, or similar professional skill. This
exemption does not apply to:
(1) an express misrepresentation of a material fact that cannot be
characterized as advice, judgment, or opinion;
(2) a failure to disclose information in violation of Section
17.46(b)(24);
(3) an unconscionable action or course of action that cannot be
characterized as advice, judgment, or opinion;
(4) breach of an express warranty that cannot be characterized as
advice, judgment, or opinion; or
(5) a violation of Section 17.46(b)(26).
(d) Subsection (c) applies to a cause of action brought against the person who
provided the professional service and a cause of action brought against any
entity that could be found to be vicariously liable for the person's conduct.
(e) Except as specifically provided by Subsections (b) and (h),
Section 17.50, nothing in this subchapter shall apply to a cause of
action for bodily injury or death or for the infliction of mental
anguish.
(f) Nothing in the subchapter shall apply to a claim arising out of a
written contract if:
(1) the contract relates to a transaction, a project, or a set of
transactions related to the same project involving total
consideration by the consumer of more than $100,000;
(2) in negotiating the contract the consumer is represented by legal
counsel who is not directly or indirectly identified, suggested, or
selected by the defendant or an agent of the defendant; and
(3) the contract does not involve the consumer's residence.
(g) Nothing in this subchapter shall apply to a cause of action arising from a
transaction, a project, or a set of transactions relating to the same project,
involving total consideration by the consumer of more than $500,000, other
47
Section 17.49(c) of the Texas Deceptive Trade practices Act ("DTPA")
states the statute is inapplicable to "a claim for damages based on the rendering of
a professional service, the essence of which is the providing of advice, judgment,
opinion, or similar professional skill" (Tex. Bus. & Com. Code § 17.49(c)). A
professional service is one that consists of acts particular to the individual's
specialized vocation (Nast v. State Farm Fire & Cas. Co., 82 S.W.3d 114, 122
(Tex. App.—San Antonio 2002, no pet.)). An act is not a professional service if its
only distinction is performance by a professional; rather, it must be an act that
requires the professional to use his specialized knowledge or training. Id. This
than a cause of action involving a consumer of more than $500,000, other than
a cause of action involving a consumer's residence.
(h) A person who violates Section 17.46(b)(26) is jointly and severally liable
under that subdivision for actual damages, court costs, and attorney's fees.
Subject to Chapter 41, Civil Practice and Remedies Code, exemplary damages
may be awarded in the event of fraud or malice.
(i) Nothing in this subchapter shall apply to a claim against a person licensed
as a broker or salesperson under Chapter 1101, Occupations Code, arising
from an act or omission by the person while acting as a broker or salesperson.
This exemption does not apply to:
(1) an express misrepresentation of a material fact that cannot be
characterized as advice, judgment, or opinion;
(2) a failure to disclose information in violation of Section
17.46(b)(24); or
(3) an unconscionable action or course of action that cannot be
characterized as advice, judgment, or opinion.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, Sec. 1, eff. May 21, 1973. Amended by Acts 1995, 74th Leg., ch.
414, Sec. 4, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 1229, Sec. 28, eff. June 1, 2002; Acts 2003, 78th Leg., ch.
1276, Sec. 4.001(b), eff. Sept. 1, 2003. Amended by: Acts 2011, 82nd Leg., R.S., Ch. 189 (S.B. 1353), Sec. 1, eff.
May 28, 2011.
48
exemption from the DTPA does not apply to an express misrepresentation of
material fact that cannot be characterized as advice, judgment, or opinion (Tex.
Bus. & Com.Code § 17.49(c)(1)).
Lawyers’ work involve advice, judgment or legal opinions, and are not
cognizable under the DTPA under Texas’s common law rule against “fracturing”
or are exempt from its application under Section 1749(c) (see Brennan v. Manning,
No. 07-06-0041-CV, 2007 WL 1098476 (Tex. App.-Amarillo Apr. 12, 2007)
(unpublished) (incorrect advice to plaintiff in a divorce proceeding that she was not
entitled to any interest in funds owed to her husband exempt under the DTPA as
the essence of the services provided was the provision of advice, judgment or
opinion); Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.-Houston [1st Dist.] 2005)
(plaintiffs claim that attorney created confusion as to the source of services by
representing that he was board certified when he was not, and by leading plaintiff
to believe that a paralegal was an attorney, which plaintiff claimed caused him to
weigh the firm’s advice with undue favor, was barred by Section 17.49(c)); Head
v. U.S. Inspect DFW, Inc., 159 S.W.3d 731 (Tex. App.-Fort Worth 2005) (a DTPA
claim premised on representations by a home inspection company that a licensed
real estate inspector would do the inspection, when an unlicensed apprentice was
used, was a claim that the inspector was negligent in rendering an erroneous
opinion based upon an apprentice’s unsupervised inspection, and was therefore an
49
inseparable part of the professional services and was barred by the DTPA);
Greathouse v. McConnell, 982 S.W.2d 165 (Tex. App.-Houston [1st Dist.] 1998)
(alleged false representation that legal services were of competent quality was a re-
stated negligence claim not cognizable under the DTPA)).23
In the case at bar, nothing in the case represented any actions outside the
exempted areas of advice, judgment and opinion. In addition, the Court’s Jury
Charge gives no guidance as to the alleged action which allegedly was
unconscionable (“Did Anthony Griffin engage in any unconscionable action or
course of action that was a producing cause of damages to Barbara Schlein?”).24
Cross-Appellant’s evidence centered around four allegations: 1) failure to file in
the insurance claim; 2) failure to continue on Defendant’s case; 3) failure to return
the Cross-Appellant’s file and property; 4) failure to follow the terms of the alleged
agreement that the fee was a flat fee of $35,000.00.
23
See the case of Mazuca and Asssociates v. Schumann, 82 S.W.3d 90, 94 (Tex. App. – San
Antonio (2002), wherein the Court explained:
TEX. BUS. & COM.CODE ANN. § 17.45(5) (Vernon 1987). The 1995 amendments to the
DTPA allow an attorney to be held liable for an unconscionable action or course of action
that cannot be characterized as advice, judgment, or opinion. Tex. Bus. & Com.Code Ann. §
17.49(c)(3). It further requires a showing that the resulting unfairness was "glaringly
noticeable, flagrant, complete, and unmitigated...." Chastain v. Koonce, 700 S.W.2d 579, 584
(Tex.1985). In contrast, "[a] claim based upon the failure to exercise that degree of care, skill
and diligence that a lawyer of ordinary skill and knowledge commonly possesses and
exercises, despite its label, is a malpractice claim." Kahlig v. Boyd, 980 S.W.2d 685, 689
(Tex.App.-San Antonio 1998, pet. denied).
24
The definition of unconscionable action or course of action in the charge was defined from
the Act (id. at Section 17.45(5)).
50
Appellant Schlein’s expert (Hardwick) testified to a breach of fiduciary
responsibility and used the word “unconscionable” in describing alleged violations
by Cross-Appellant. Hardwick also asserted in context of the breach of fiduciary
responsibility, Cross-Appellant file the underlying lawsuit and asserting false
allegations in the original petition. Hardwick stated she was hired by Appellant to
figure out which of the attorney’s fiduciary duties might have been violated by
Cross-Appellant (RR., Vol. 10 at 122, lines 13-20). Hardwick expressed a view
Cross-Appellant violated his duty of loyalty, candor, and confidentiality (id. at 123,
lines 9-21). All related to a finding the jury found against Appellant (breach of
fiduciary responsibility).
Hardwick’s testimony is insufficient to get around the exemption engrafted
in the law. With regards to the issue of false allegations in the original petition,
this issue was resolved when the claim was dismissed at the close of Cross-
Appellant’s case (e.g., litigation exception under both the Disciplinary Rules
(claim or defense), and litigation exception associated with legal pleadings/court
proceedings. Hardwick also testified the contract itself was unconscionable and
was not clear enough for the consumer. Hardwick’s testimony is not sufficient in
light of her self-imposed limitations of her testimony, that is, to testify only with
regards to matters related to breach of fiduciary responsibility. It is worth
repeating, “The 1995 amendments to the DTPA allow an attorney to be held liable
51
for an unconscionable action or course of action that cannot be characterized as
advice, judgment, or opinion. Tex. Bus. & Com.Code Ann. § 17.49(c)(3). It
further requires a showing that the resulting unfairness was "glaringly
noticeable, flagrant, complete, and unmitigated...." Chastain v. Koonce, 700
S.W.2d 579, 584 (Tex.1985). In contrast, "[a] claim based upon the failure to
exercise that degree of care, skill and diligence that a lawyer of ordinary skill and
knowledge commonly possesses and exercises, despite its label, is a malpractice
claim." Kahlig v. Boyd, 980 S.W.2d 685, 689 (Tex.App.-San Antonio 1998, pet.
denied)” supra, Mazuca and Asssociates v.Schumann, 82 S.W.3d 90, 94 (Tex. App.
– San Antonio (emphasis added).
In addition, any such recovery is barred by an additional exemption under
§ 17.49(f), which is in fact more explicit:
Nothing in the subchapter shall apply to a claim arising out of a written
contract if:
(1) the contract relates to a transaction, a project, or a set of
transactions related to the same project involving total
consideration by the consumer of more than $100,000;
(2) in negotiating the contract the consumer is represented by legal
counsel who is not directly or indirectly identified, suggested, or
selected by the defendant or an agent of the defendant; and
(3) the contract does not involve the consumer’s residence.
Where a contract does not state a face dollar amount, but nevertheless
contemplates a transaction which will in the future involve consideration of more
52
than $100,000, Section 17.49(f) and (g) exemptions apply and bar relief. In Texas
Motor Coach, L.C. v. Blue Bird Body Co., No. 4:05CV34, 2005 WL 3132482
(E.D. Tex. Nov. 22, 2005), a motor coach dealer entered into a franchise dealership
agreement with a manufacturer. The motor coach dealer constructed improvements
on real property, obtained floor plan financing to operate the franchise, hired
employees, and expended funds on advertising. Later, the manufacturer delivered
three motor coaches, which were determined to be defective and were returned.
The court dismissed the plaintiffs DTPA claims, finding that because the contract”
assumed delivery” of three motor coaches, the cost of which were in excess of
$200,000 each, the exemptions under Section 17.49(f) and (g) barred relief.
Similarly, in East Hill Marine, Inc. v. Rinker Boat Co., 229 S.W.3d 813 (Tex.
App.-Fort Worth 2007), the parties entered into a dealership agreement, with no
minimum purchase requirement. The plaintiff, however, ultimately ordered boats
from the defendant worth more than $859,000. The court ruled that the Section
17.49(g) exemption applied to bar the plaintiffs’ claims. The plaintiff argued that at
the time the dealer relationship was established, there was no promise to pay more
than $500,000; rather, the plaintiff argued, there was merely an agreement under
which it might never purchase anything. The fees and costs incurred by Anthony
P. Griffin in this case exceeded $100,000.00 and as such the contract and services
rendered are exempt under the statute. In addition, subsection (2) is met in light of
53
Appellant’s testimony reflecting she visited Cross-Appellant’s office on the advice
of Marie Trefethern, a lawyer, who recommended she come because of the alleged
$35,000.00 flat fee. There is no evidence the lawyer (Trefethern) was
recommended, suggested or selected by Cross-Appellant.
The trial court erred in not granting the JNOV. The judgment should be set
aside and rendered in Cross-Appellant’s favor on no evidence and insufficient
evidence grounds.
PRAYER FOR RELIEF
Cross-Appellant prays in this his initial brief on appeal the judgment finding
of unconscionable act be reversed and rendered, as well as the additional damage
finding of $5,000.00
DATE: February 12, 2015.
Respectfully submitted,
/s/ Norma Venso
Norma Venso
State Bar No. 205456250
830 Apollo Lane
Houston, Texas 77058
(409) 789.8661
281.286.9990 (facsimile)
nvenso@earthlink.net
ATTORNEYS FOR
CROSS-APPELLANT
ANTHONY P. GRIFFIN
54
CERTIFICATION OF COMPLIANCE
I certify that the foregoing brief is in compliance with Texas Rule of
Appellate Procedure 9.4 because it contains 13,993 words and has been prepared in
a proportionally spaced typeface using Microsoft Word 2007 in 14-point Times
New Roman font for text and 12-point Times New Roman font for footnotes meets
the typeface requirements.
/s/ Norma Venso ___________________
NORMA VENSO
55
CERTIFICATE OF SERVICE
This is to certify that on this the 12th day of February, 2015, a true and
correct copy of this brief was forwarded to opposing counsels by mailing the same
by electronic filing of the same and/or by certified mail, return receipt requested,
postage prepaid when noted, to-wit:
/s/ Norma Venso______________
Norma Venso
56
APPENDIX
Appendix, Tab 1 [CR-000003-000009] Index on Appeal
Appendix, Tab 2 [CR-000010-000021] Plaintiff’s Original Petition
Appendix, Tab 3 [CR-000026-000031] Defendant’s Amended Answer and
Counterclaim
Appendix, Tab 4 [CR-000628-000632] Plaintiff’s Second Amended Petition
Appendix, Tab 5 [CR-429] Order Denying Plaintiff’s Partial
Motion for Summary Judgment
Appendix, Tab 6 [CR-760] Order denying Defendant’s Motion
for Summary Judgment
Appendix, Tab 7 [SUPP CR] Court’s Charge
Appendix, Tab 8 [RR, VOL. 13] Jury Verdict
Appendix, Tab 9 [CR-001208] Order Denying Plaintiff’s Motion
Notwithstanding Verdict
Appendix, Tab 10 [CR-01249-01250] Final Judgment
Appendix, Tab 11 [CR-001245] Order Denying Defendant’s Motion
for New Trial
Appendix, Tab 12 [CR-001247-001248] Defendant’s Notice of Appeal
Appendix, Tab 13 [CR-001251-1253] Plaintiff’s Cross-Appeal
Appendix, Tab 14 [RR, VOL. 14, pp. 5-15] Contract of Employment and cover
letter
57
Cross-Appellant's Appendix1
000003
CAUSE NO. CV-0069481
Anthony P Griffin § IN THE COUNTY COURT
§
§
§
vs. § AT LAW NUMBER TWO (2)
§
§
§
Barbara Regina Schlein § GALVESTON COUNTY, TEXAS
INDEX
Document: File Date: Volume: Page:
Original Petition 03/14/13 1 1 - 12
Administrative Order of Assignment by 05/23/13 1 13 - 13
Presiding Judge (admn)
Certificate(s) 06/14/13 1 14 - 16
Amended Answer and Counter Claim 06/18/13 1 17 - 50
Demand For Jury Trial 06/20/13 1 51 - 51
Certificate(s) 06/21/13 1 52 - 53
Response To Motion 07/19/13 1 54 - 75
Docket Control Order 08/15/13 1 76 - 77
Motion For Continuance 09/18/13 1 78 - 85
000003
Cross-Appellant's Appendix2
000004
Motion To Quash 09/20/13 1 86 - 96
Special Exceptions 09/23/13 1 97 - 104
Order For Continuance 09/23/13 1 105 - 105
Docket Control Order 09/23/13 1 106 - 107
Motion 09/24/13 1 108 - 186
Order Setting Hearing 09/25/13 1 187 - 187
Special Exceptions 09/26/13 1 188 - 195
Fiat 09/27/13 1 196 - 196
Response 09/30/13 1 197 - 200
Response 09/30/13 1 201 - 213
Response 09/30/13 1 214 - 217
Response 09/30/13 1 218 - 222
Motion for Partial Summary Judgment 09/30/13 1 223 - 286
Amended Petition 10/04/13 1 287 - 292
000004
Cross-Appellant's Appendix3
000005
Order 10/07/13 1 293 - 293
Order Denying Motion 10/07/13 1 294 - 294
Order To Compel 10/07/13 1 295 - 295
Fiat 10/07/13 1 296 - 296
Notice(s) 10/14/13 1 297 - 298
Order On Motion To Quash 10/15/13 1 299 - 300
Response 11/07/13 1 301 - 317
Amended Counterclaim 11/07/13 1 318 - 350
Original Answer 11/07/13 1 351 - 353
Amended Affidavit 11/15/13 1 354 - 357
Response To Motion For Partial Summary 12/02/13 1 358 - 419
Judgment
Order Denying Motion 12/27/13 1 420 - 420
Motion 01/06/14 1 421 - 454
Order For Hearing 01/14/14 1 455 - 455
000005
Cross-Appellant's Appendix4
000006
Motion To Quash 01/30/14 1 456 - 463
Motion To Quash 01/31/14 1 464 - 471
Motion For Summary Judgment 01/31/14 2 472 - 558
Motion To Strike 01/31/14 2 559 - 576
Motion To Compel 01/31/14 2 577 - 601
Motion To Compel 01/31/14 2 602 - 607
Notice Of Submission 02/05/14 2 608 - 609
Notice Of Submission 02/06/14 2 610 - 611
Response 02/06/14 2 612 - 614
Rule 11 - Letter 02/12/14 2 615 - 616
Certificate(s) 02/18/14 2 617 - 618
Amended Petition 02/24/14 2 619 - 623
Response To Motion For Summary Judgment 02/24/14 2 624 - 632
Motion For Leave 02/24/14 2 633 - 643
000006
Cross-Appellant's Appendix5
000007
Affidavit In Support Of Attorney's Fees 02/25/14 2 644 - 689
Reply To Response 02/27/14 2 690 - 717
Response To Motion 02/27/14 2 718 - 742
Order Allowing Extension Of Time 02/27/14 2 743 - 743
Reply To Response 02/28/14 2 744 - 750
Order Denying Motion 02/28/14 2 751 - 751
Motion For Continuance 03/10/14 2 752 - 754
Amended Counterclaim 04/04/14 2 755 - 796
Motion To Reconsider Hearing/Ruling 04/07/14 2 797 - 823
Response To Motion 04/11/14 2 824 - 876
Motion For Continuance 04/16/14 2 877 - 881
Motion In Limine 05/06/14 2 882 - 890
Witness List 05/06/14 2 891 - 894
List Of Exhibits 05/06/14 2 895 - 902
000007
Cross-Appellant's Appendix6
000008
Business Records Affidavit 05/07/14 2 903 - 961
List Of Exhibits 05/07/14 2 962 - 969
Order On Motion In Limine 05/07/14 2 970 - 979
Order 05/07/14 3 980 - 981
Order Granting Motion 05/07/14 3 982 - 982
Amended Motion 05/09/14 3 983 - 995
Order Granting Motion 05/09/14 3 996 - 996
Motion 05/14/14 3 997 - 1005
Brief 05/19/14 3 1006 -
1071
Supplement 05/19/14 3 1072 -
1133
Order 05/21/14 3 1134 -
1134
Motion For Entry Of Judgment 06/12/14 3 1135 -
1155
Response To Motion 06/12/14 3 1156 -
1165
Amended Motion 06/13/14 3 1166 -
1186
000008
Cross-Appellant's Appendix7
000009
Amended Response 06/18/14 3 1187 -
1198
Order Denying Motion 06/30/14 3 1199 -
1199
Motion For New Trial 07/30/14 3 1200 -
1215
Response To Motion For New Trial 08/19/14 3 1216 -
1227
Motion To Compel 09/11/14 3 1228 -
1235
Order Denying Motion For New Trial 09/11/14 3 1236 -
1236
Order To Compel 09/12/14 3 1237 -
1237
Notice Of Appeal 09/26/14 3 1238 -
1241
Notice Of Appeal 10/10/14 3 1242 -
1244
Motion 10/14/14 3 1245 -
1250
Notice Of Submission 10/17/14 3 1251 -
1252
Motion 11/05/14 3 1253 -
1257
Response In Opposition To Motion 11/13/14 3 1258 -
1261
000009
Cross-Appellant's Appendix8
Cross-Appellant's Appendix9
Filed
000010 13 March 14 P6:43
Dwight D. Sullivan
County Clerk
Galveston County
CAUSE NO. CV-69481
ANTHONY P. GRIFFIN IN THE COUNTY COURT
v. AT LAW NO. 2
BARBARA REGINA SCHLEIN GALVESTON COUNTY, TEXAS
PLAINTIFF'S, ANTHONY P. GRIFFIN, ORIGINAL PETITION
TO THE HONORABLE JUDGE OF SAID COURT:
This lawsuit is brought to collect on outstanding debts due
and owing to Anthony P. Griffin, hereinafter and sometimes
referred to as Plaintiff, with regards to services rendered to
Barbara Regina Schlein, hereinafter and sometimes referred to as
Defendant. Plaintiff would show unto the Court as follows, to-
wit:
I.
This is a Schedule 2 matter and as such it is requested
that the Court establish a scheduling order herein.
II.
At all times material to this action, Plaintiff is a
licensed lawyer in the State of Texas engaged in the practice of
law.
Defendant, Barbara Schlein, can be served with process by
serving her at 2106 Pleasant Palm Circle, League City, Texas
77573.
000010
Cross-Appellant's Appendix10
000011
All matters material to this action occurred in Galveston
and/or Harris County, Texas.
III.
Breach of Contract Claim - Family Claim
In November 3, 2009, Plaintiff entered a contract of
employment with Plaintiff. The contract called for the
Defendant to pay to Plaintiff an initial retainer of $35,000.00
and for counsel to be paid a reduced hourly rate of $250.00 an
hour for any work over $35,000.00. The contract was entered
with knowledge of previous counsel's representation of the
Defendant and the long-term and protracted nature of the
underlying family/business law litigation. 1 Even though
referenced in the contract, the Defendant never paid the initial
retainer of $35,000.00, but explained to Plaintiff that she was
trustworthy, that she always paid her bills and that if the
Plaintiff took care of her interest, she would take care of him.
Plaintiff explained that she simply had to abide with the terms
of the contract.
Plaintiff represented Defendant in the family litigation
and maintained business records during the course of the
representation. At the end of the representation, Plaintiff
1
In the Matter of the Marriage of Barbara Regina Schlein and Robert John
Schlein; Case No. 08FD2371; in the County Court at Law, No. 2, Galveston,
County, Texas.
2
000011
Cross-Appellant's Appendix11
000012
forwarded a bill setting out the total amount of time expended
on Plaintiff's behalf was 352.50 hours for a total of
$88,125.00. Plaintiff's office also incurred some $22,339.29 in
costs. The total attorneys' fee and costs incurred on behalf of
the client and due and owing is $110,524.29.
Plaintiff sues for this amount and prays for judgment.
IV.
Additional Work - Quantum Meruit
Plaintiff also engaged in other work for Defendant that was
external to the contract of employment surrounding the family
litigation. The agreement of representation was based upon
trust and promises that Defendant was "honest, trustworthy and a
Christian woman and that she paid her bills" (Defendant's
words). Plaintiff was informed by Defendant on multiple
occasions that if her money in the family case was cleared up
she would immediately get Plaintiff paid - "trust me." The
worked performed on Defendant's behalf included the following:
i) Civil litigation over debt in Justice Court (Bank of
America v. Barbara and Robert Schlein) - the defense
was successful;
ii) Criminal litigation in criminal case (State of Texas
v. Barbara Schlein, in the County Criminal Court,
Harris County, Texas) & ultimately work on an
3
000012
Cross-Appellant's Appendix12
000013
expunction and filing an expunction in Harris County,
Texas with respect to same - the defense was
successful, the expunction matter is pending at this
submission;
iii) Ticket work/criminal litigation in Manvel, Texas -
(State of Texas v. Barbara Schlein) - the defense was
successful;
iv) Representation of Defendant's son (State of Texas v.
Austin Reed) the defense was successful;
v) Representation of Barbara Schlein in tax litigation
matter pending in Galveston County, Texas (pending)
(County of Galveston v. Barbara Schlein and Robert
Schlein);
vi) Representation of Barbara Schlein in contingent fee
litigation with regards to builder's negligence
(Barbara Schlein v. Centre Builders, et al.; in the
lOth Judicial District Court; Galveston County, Texas);
vii) Representation of Barbara Schlein in litigation in
real estate litigation and lien placed on community
property (Barbara Schlein v. Robert Schlein and Bill
De La Garza, et al., in the 212th Judicial District
Court; Galveston County, Texas).
The reasonable value of the subject work is sixty
4
000013
Cross-Appellant's Appendix13
000014
thousand ($60,000.00) dollars; this amount does not include the
contingent fee in existence in the building negligence matter
pending in Galveston County. Plaintiff sues for his reasonable
and necessary attorney's fees and costs incurred on behalf of
Plaintiff in these cases ($15,000.00 in costs). Plaintiff seeks
a declaratory judgment with respect to the contingent fee
contract on the construction litigation that the contract is a
valid and enforceable contract and remains in effects.
v.
Unjust Enrichment
Plaintiff incorporates by reference the above information
for all purposes. In addition and/or in the alternative to the
foregoing, Plaintiff would show that it is entitled to recover
under the doctrine of unjust enrichment. According to this
equitable principle of justice, equity, and/or good conscience,
Plaintiff is entitled to recover for the products, materials,
and services that Defendant received and benefited from without
compensating Plaintiff. Under the theory of unjust enrichment,
Plaintiff is entitled to recover all actual damages, together
with attorneys' fees and costs of Court.
5
000014
Cross-Appellant's Appendix14
000015
VI.
Fraud Allegations
Plaintiff brings suit on the basis of fraud. It is
Plaintiff's contention that Defendant has defrauded both him and
the court during the course of the contractual relationship.
Plaintiff signed a contract imposing an obligation on the client
to be honest in her dealings with the Plaintiff and the court.
The applicable language under the contract reads as follows:
Withdrawal, Malfeasance, Breach of Contract
1. Withdrawal: Lawyers have an ethical obligation to
represent the Client zealously within the bounds of the
law, but the Lawyers also have an obligation, when
material representation surfaces or where there is a
breach of the terms of this contract by the Client, to
withdraw from the representation of the Client.
Nothing in this contract guarantees any results,
including whether a suit will or will not be filed or
any other matters that border on guarantees. The only
guarantee relates to the representation within the
confines of the Code of Professional Responsibility
(zealously within the bounds of the law). It has been
explained orally that the Lawyers' obligation to the
Court and the rules of ethics require investigation and
examination of the facts.
2. Investigation/If No Case: If the facts reveal no case
exists, the Lawyer shall promptly advise the client and
terminate the relationship. The retainer again is non-
refundable.
6
000015
Cross-Appellant's Appendix15
000016
3. Investigation/Material Breach: If the
investigation reveals a material breach, lie, or
misstatement by the client, the Lawyer will advise
the Client as to how such breach affects the
Lawyer's ability to proceed in the representation.
If termination is appropriate, the Lawyer(s) shall
advise the client of her rights and shall promptly
take any necessary acts to protect the Client
(advise as to action) and the firm's rights.
Again, the retainer shall be deemed non-
refundable.
Prior to the signing of the contract, the contract was
explained to the client and Plaintiff relied upon
Defendant's statements with regard to telling the truth, be
forthright and honest and not to conceal any information
during the process. Defendant affirmed her understanding
and held out that she would remain honest and that she
would not conceal information from Plaintiff and/or from
the Court. However, during the course of the relationship,
Defendants actions revealed fraud that struck at the
fundamental relationship between the parties. These
actions included the following:
1) Requesting to see banking records before the
lawyer after banking records were tendered
by the banking entity. After the lawyer
learned that the client had gone through the
records prior to his review, copying and
tendering to the other side, he prohibited
7
000016
Cross-Appellant's Appendix16
000017
the client's access to any such documents
until after the lawyer touched the documents
first;
2) In preparation for trial, the lawyer
discovered a discrepancy in checks and the
financial records and inquired of the
client. In the discussion, the lawyer
became angry and stated that "if I was the
judge, I would put you in jail." The
Defendant, instead of addressing the
problem/discrepancy the client engaged in
tears and continued to repeat .... "I don't
know." When the contradiction was revealed
in the examination, the client simply
stated, "I just have to go to jail." The
client was instructed that if the question
was asked at a trial or hearing, Defendant
had to answer honestly, even if it meant not
answering and/or repeating her statement, "I
just have to go to jail." The question was
not asked at trial;
3) The client held out to Plaintiff that his
fees would be paid. "I have the money, I
will pay you. You trust me don't you?"
8
000017
Cross-Appellant's Appendix17
000018
Defendant explained that when the process
was over she would immediately get a check
issued to pay Plaintiff. Plaintiff relied
on these statements.
4) After the presentation of the bill,
Plaintiff explained in the bill and orally
that he would discount the bill (fees and
costs), in order to make it better on the
client and in order to receive compensation.
On or about October 28, 2011, Plaintiff was
informed by Defendant that she would not and
could not pay Plaintiff's fees. Plaintiff
had been informed that she had worked with
her financial advisor, Ritchie Faulk to
protect her funds from collection. In the
conversation of October 28, 2011, Defendant
said the funds were placed in an IRA and
that she could not remove the same until she
was 59. Presumably, Defendant wanted
Plaintiff to wait until a period of in
excess of ten (10) years for compensation.
The Defendant's statement was related to the
IRA is inconsistent with Defendant holding
out that after taking out "your" lawyer's
9
000018
Cross-Appellant's Appendix18
000019
fees, I will place my other funds in a
protective status. Plaintiff relied on the
Defendant's statements.
Plaintiff has been defrauded by Defendant and seeks a
judgment finding that "fraud" has taken place.
VII.
Theft of Services - Theft Liability Act
Plaintiff incorporates by reference the above factual
paragraphs setting out the factual history. Defendant
misappropriated monies owed to Plaintiff with the intent to
deprive Plaintiff of that property and/or without
Plaintiff's consent. Defendant has engaged in theft of
services under the Theft Liability Act by intentionally and
knowingly securing the performance of services by
deception, false token, and/or by securing the performance
of those services by agreeing to provide compensation to
Plaintiff and, after the services were rendered, by failing
to make payment after receiving notice demanding payment.
To the extent necessary or appropriate, Plaintiff
incorporates the following provisions of the Texas Penal
Code: §§ 31.01(1), 31.01(3), 31.01(4), 31.01(5), and
31. 01 I 6 I .
10
000019
Cross-Appellant's Appendix19
000020
Defendant has unlawfully diverted and/or held monies
owed to Plaintiff for services rendered and, pursuant to
the Theft Liability Act.
VIII.
Prayer for Relief
Plaintiff prays for the following relief in this
matter:
1. Actual damages incurred by Plaintiff associated
with all claims asserted herein;
2. A declaratory judgment that Defendant has engaged
in fraud;
3. A judicial finding that Plaintiff is entitled to
quantum meruit and/or a finding of unjust enrichments on
the portions of the work that no contract existed;
4. A finding that Defendant has engaged in theft of
services in violation of Texas law;
5. Plaintiff seeks exemplary damages for Defendant's
conduct;
6. Plaintiff seeks pre-judgment interest, post
judgment interest, court costs, and reasonable and
necessary attorney's fees (fees associated when counsel is
hired to represent the Plaintiff's interest) that Plaintiff
is entitled to recover.
11
000020
Cross-Appellant's Appendix20
000021
7. Plaintiff seeks the recovery of all damages under
law and equity that Plaintiff is entitled to recover.
DATE: March 14, 2013.
Respectfully submitted,
/S/ NORMA VENSO
NORMA VENSO
ATTORNEY AT LAW
830 APOLLO
HOUSTON, TEXAS 77058
409.789.8661
FACSIMILE NO. 281.286.9990
STATE BAR NO. 20545250
c:word.griffin_anthony_[schlein_barbara]_original_petition
12
000021
Cross-Appellant's Appendix21
Cross-Appellant's Appendix22
Filed
000026 13 June 18 P3:29
CAUSE NO. CV-0069481 Dwight D. Sullivan
County Clerk
ANTHONY GRIFFIN § IN THE COUNTY COU~~veston County
Plaintiff, §
§
v. § AT LAW NO.2
§
BARBARA REGINA SCHLEIN §
Defendant. § GALVESTON COUNTY, TEXAS
DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW, Defendant Barbara Regina Schlein ("Defendant") files this Amended
Answer to the Original Petition filed by Plaintiff Anthony Griffin ("Plaintiff') and Counterclaims
as follows:
AMENDED ANSWER
General Denial
1.1 Pursuant to Tex. R. Civ. P. 92, Defendant generally denies all allegations made
against her and on trial hereof demand strict proof of Plaintiffs allegations by a fair preponderance
of the evidence, as required by law and the Constitution of the State of Texas.
Affirmative Defenses
1.2 Defendant is not liable or in breach of contract due to accord and satisfaction, as
Plaintiff agreed to and acknowledged receipt of items of tangible value in exchange for
extinguishment of debt owed under one or more of the alleged contracts between Plaintiff and
Defendant.
1.3 Defendant is not liable or in breach of contract as one or more of Plaintiff's claims
regarding an alleged contract between Plaintiff and Defendant are barred for failure of consideration.
1.4 Defendant is not liable as Plaintiff cannot recover under quantum meruit since
Plaintiff has unclean hands.
DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM PAGE 1 OF 6
000026
Cross-Appellant's Appendix23
000027
1.5 Defendant asserts that the conduct and/or damages alleged by Plaintiff are the result
of acts or omissions committed by Plaintiff. Defendant therefore invokes the procedures and
protections set forth in Texas Civil Practice and Remedies Code §33.001, et seq.
1.6 Defendant is or may be entitled to certain credits and/or off-sets pursuant to the
common law of the State of Texas and/or Chapter 32 and/or Chapter 33 of the Texas Civil Practice
& Remedies Code.
I. 7 Defendant is entitled to contribution and/or indenmity from any Plaintiff, Defendant,
or third party Defendant now or hereinafter named in this lawsuit, pursuant to contract and/or as
provided under the common law of the State of Texas and/or pursuant to Chapters 33 and/or Chapter
41 of the Texas Civil Practice & Remedies Code.
ORIGINAL COUNTERCLAIM
FACTUAL BACKGROUND
2.1 On November 3, 2009, Schlein and Griffin, representing the Griffin Law Firm, signed
a Contractual Agreement to retain Griffin's legal services to represent Schlein in her divorce
proceedings. See Contractual Agreement (hereinafter "Contractual Agreement," attached as Exhibit
A). The Contractual Agreement provides for a $35,000 retainer fee to be paid by Schlein, subject
to an understanding that there was a court order which prevented Schlein from expending funds
without approval of the court. Ex. A. The Contractual Agreement further provides that the retainer
is "non-refundable" and that "once the fee is paid, it shall be deemed earned." Ex. A.
2.2 Griffin supplemented the Contractual Agreement by providing Schlein with an
Explanation of Contract and Letter Agreement (hereinafter "Letter Agreement," attached as Exhibit
B. The Letter Agreement provides that the "contract relates to the family matter but contemplates
adding claims and/or amending the pleadings" in a separate pending action. !d. The Letter
DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM PAGE 2 OF 6
000027
Cross-Appellant's Appendix24
000028
Agreement further states that "the retainer is set at an amount that it is anticipated that no additional
fees will be charged." !d.
2.3 The Letter Agreement also contemplates possible separate lawsuits and states that a
separate contract will be drawn for those cases and that a contingent fee arrangement is
contemplated. Ex. B.
2.4 On October 24, 2011, a Final Decree of Divorce was entered for Schlein. See Final
Decree of Divorce (attached as Exhibit C). In this Final Decree, the court awarded to Schlein several
pallets of Travertine marble as her sole and separate property. !d. at 3. Furthermore, the court
specifically stated that this Travertine marble belonging to Schlein was in Griffin's possession. !d.
2.5 Professional appraisal of this Travertine marble has been valuated at $56,338.85. See
Product Appraisal (attached as Exhibit D).
2.6 Following this resolution of her divorce proceedings, Griffin accepted this Travertine
marble as payment for legal services rendered.
BREACH OF CONTRACT
3 .I All proceeding paragraphs are hereby incorporated by reference. There was a valid,
enforceable contract-specifically the Contractual Agreement and Letter Agreement-between the
parties to this suit. Schlein fully performed her duties under the Contractual Agreement and Letter
Agreement. Griffin failed to perform his duties and breached the Contractual Agreement and Letter
Agreement. Griffin's breach proximately caused Schlein's injury. As a result, Schlein seeks to
recover actual damages, benefit of the bargain damages, and reliance damages.
LEGAL MALPRACTICE
4 .I All proceeding paragraphs are hereby incorporated by reference. As her attorney,
Griffin owed a duty of care to Schlein. Griffin's negligent acts and/or omissions breached that duty.
DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM PAGE 3 OF 6
000028
Cross-Appellant's Appendix25
000029
As a result of Griffin's breach, Schlein was injured and suffered damages. As a result, Schlein seeks
to recover actual damages, benefit of the bargain damages, and reliance damages.
BREACH OF FIDUCIARY DUTY
5 .I All proceeding paragraphs are hereby incorporated by reference. As a result of the
attorney-client relationship, Griffin owed a fiduciary duty to Schlein. Griffin breached his fiduciary
duty by failing to do one or more of the following actions: (I) preserve client confidences; (2)
represent the client with undivided loyalty; (3) act with absolute perfect candor, openness and
honesty without any concealment or deception; (4) to be strictly honest about the fee arrangement
and refrain from self dealing; (5) inform client of matters material to the representation; (6) to turn
over funds belonging to the client; and (7) to follow the client's instructions. As a result ofGriffin's
breach, Schlein was injured and suffered damages. Furthermore, Griffin also benefitted financially
from the breach. As a result, Schlein seeks to recover actual damages, benefit of the bargain
damages, and reliance damages.
FRAUD
6.1 All proceeding paragraphs are hereby incorporated by reference. Griffin made a
material representation to Schlein in the Contractual Agreement and Letter Agreement that any
Griffin's representation of Schlein in any additional matters would be on a contingency fee basis and
covered by a separate agreement. Griffin knew this representation was false at the time it was made.
Griffin made this representation to Schlein with the intent that she rely on the representation and
enter into the Contractual and Letter Agreements. Schlein relied on these representations and entered
into the Contractual and Letter Agreements with Griffin, and as a result she was injured. As a result,
Schlein seeks to recover actual damages, benefit of the bargain damages, attorney's fees and reliance
damages.
DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM PAGE 4 OF 6
000029
Cross-Appellant's Appendix26
000030
FRAUD FOR FAILURE TO DISCLOSE
7 .I All proceeding paragraphs are hereby incorporated by reference. Griffin concealed
material facts relating to the his representation of Schlein from her. Due to the fiduciary relationship
between the parties, Griffin had a duty to disclose these facts to Schlein. The omitted facts were
material to the decisions that were made by Schlein. Griffin knew that Schlein was ignorant of the
facts and that she did not have an opportunity to discover the facts. Griffin was deliberately silent
regarding the material facts and intended to induce Schlein to sign the Contractual Agreement by
omitting these facts. Schlein relied on Griffin's non-disclosure when consenting to the Contractual
and Letter Agreements and as a result was injured. Schlein seeks to recover attorney's fees pursuant
to Tex. Civ. Prac. & Rem. Code Ch. 38.
DEMAND FOR JURY TRIAL
8.1 Defendant hereby demands a trial by jury and tenders the appropriate fee.
RELIEF REQUESTED
WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests the Court to
dismiss this suit or render judgment that Plaintiff take nothing by reason of this suit. Furthermore,
upon trial of this case, Counter-Plaintiff Schlein respectfully asks to be awarded:
a. Actual damages;
b. Exemplary damages;
c. Pre-judgment and post-judgment interest;
d. Costs of suit;
e. Attorney's fees pursuant to Tex. Civ. Prac. & Rem. Code Ch. 38; and
f. Such other and further relief to which Schlein may be justly entitled.
DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM PAGE 5 OF 6
000030
Cross-Appellant's Appendix27
000031
Respectfully submitted,
CHRISTIAN SMITH & JEWELL, LLP
By: /s/ Stephen H Cagle, Jr.
Stephen H. Cagle, Jr.
State Bar No. 24045596
Heather C. Panick
State Bar No. 24062935
2302 Fannin, Suite 500
Houston, Texas 77002
(713) 659-7617 (Phone)
(713) 659-7641 (Fax)
ATTORNEYSFORDEFENDANT
CERTIFICATE OF SERVICE
I hereby certify that on this l8 1h day ofJune, 2013, a true and correct copy of the above and
foregoing document has been duly served upon all attorneys of record via hand delivery and/or
facsimile and/or regular mail and/or certified mail, return receipt requested.
Norma Venso
Attorney at Law
830 Apollo
Houston, Texas 77058
Phone: (409) 789-8661
Fax: 281-286-9990
/s/ Stephen H Cagle, Jr.
Stephen H. Cagle, Jr.
DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM PAGE 6 OF 6
000031
Cross-Appellant's Appendix28
Cross-Appellant's Appendix29
000628
CAUSE NO. CV-0069481
ANTHONY P. GRIFFIN, IN THE COUNTY COURT
INQIVIDUALLY D/B/A
A GRIFFIN LAWYERS
v. ATLAWN0.2 ~ ~ ~
::; ""· ...,
:S ; ,._, g ·n
BARBARA REGINA SCHLEIN GALVESTON COUNTY, .WXfo.S ~
PLAINTIFF(S)'S, ANTHONY P. GRIFFIN AND . .~ -~ ,~
A GRIFFIN LA WYERS, SECOND AMENDED PETIT~~.
TO THE HONORABLE JUDGE OF SAID COURT:
This lawsuit is brought to collect on outstanding debts due and owing
to Anthony P. Griffin, as owner of the assumed name of A Griffin Lawyers
(an r assumed name for Anthony P. Griffin), and sole owner of a former
corporate legal entity known as Anthony P. Griffin, Inc. (defunct
corporation, not good standing), hereinafter and sometimes referred to as
Plaintiff(s)), with regards to services rendered to Barbara Regina Schlein,
hereinafter and sometimes referred to as Defendant. Plaintiff(s) would show
unto the Court as follows, to-wit:
I
I.
This is a Schedule 2 matter and as such it is requested that the Court
establish a scheduling order herein.
1
000628
Cross-Appellant's Appendix30
000629
II.
At all times material to this action, Plaintiff is a licensed lawyer in the
State of Texas engaged in the practice of law. Plaintiff is also the sole
owner of the debts and assets of the defunct professional corporation known
as Anthony P. Griffin, Inc., and did business as A Griffin Lawyers. Anthony
P. Griffin is also the sole owner of the debts and assets of the assume name
of A Griffin Lawyers.
. Defendant, Barbara Schlein, has been served and has answered in this
matter.
All matters material to this action occurred m Galveston County,
Texas.
III.
Breach of Contract Claim- Family Claim
In November 3, 2009, Plaintiff(s) entered a contract of employment
with Defendant. The contract called for the Defendant to pay to Plaintiff(s)
an initial retainer of $35,000.00 and for Plaintiff(s) to be paid a reduced
hourly rate for any work over $35,000.00. The contract was entered with
; t
knowledge of the long-term and protracted nature of the underlying
2
000629
Cross-Appellant's Appendix31
000630
family/business law litigation. 1 Defendant never paid the initial retainer of
$35,000.00, but explained to Plaintiff(s) that she was trustworthy, that she
always paid her bills and that if the Plaintiff(s) took care of her interest, she
would take care of him.
Plaintiff(s) represented Defendant in the family litigation and
maintained business records during the course of the representation. At the
end of the representation, Plaintiff( s) forwarded a bill setting out the total
amount of time expended on Plaintiff(s)'s behalf was 352.50 hours x
$300.00 an hour for a total of$105,750.00. Plaintiff(s)'s office also incurred
some $22,339.29 in costs. The total attorneys' fee and costs incurred on
behalf of the client and due and owing is $128,089.29.
Plaintiff( s) sues for this amount and prays for judgment.
III.
Prayer for Relief
Plaintiff( s) prays for the following relief in this matter:
1. Actual damages incurred by Plaintiff(s) associated with all
claims asserted herein ($11 0,524.29);
1
In the Matter of the Marriage of Barbara Regina Schlein and Robert John Schlein; Case
No. 08FD2371; in the County Court at Law, No.2, Galveston, County, Texas.
3
000630
Cross-Appellant's Appendix32
000631
2. Plaintiff( s) seeks pre-judgment interest, post judgment interest,
court costs, and reasonable and necessary attorney's fees for the breach of
contract that Plaintiff(s) is entitled to recover.
3. Plaintiff( s) seeks the recovery of all damages under law and
equity that Plaintiff(s) is entitled to recover.
DATE: February 24,2014.
Respectfully submitted,
/~AVENSO
~~4 ~Pfi~!X?
NORMA VENSO
ATTORNEY ATLAW
830APOLLO
HOUSTON, TEXAS 77058
409.789.8661
FACSIMILE NO. 281.286.9990
STATE BAR NO. 20545250
N
co
4
000631
Cross-Appellant's Appendix33
000632
CERTIFICATE OF SERVICE
This is to certify that on this the 24th day of February, 2014, a true and
correct copy of the foregoing Plaintiff(s)'s Second Amended Petition was
forwarded to opposing counsel, by facsimile transmission and by regular
mail (confirmation copy), to:
STEPHEN H. CAGLE, JR.
JOE E. LUCE
GARY M. JEWELL
CHRISTIAN, SMITH & JEWELL, L.L.P.
2302 FANNIN, SUITE 500
HOUSTON, TEXAS 77002
19~
.A VENSO -~
~~~'~ .~
NORMAVENSO
c:word.griffin_anthony_[schlein_barbara]_plaintiff(s)_second_amended_petition rn
CJ
5
000632
Cross-Appellant's Appendix34
Cross-Appellant's Appendix35
000429
CAUSE NO. CV 69481
ANTHONY GRIFFIN § IN THE COUNTY COURT AT LAW
Plaintiff §
§ N0.2
v. §
§ GALVESTON COUNTY, TEXAS
BARBARA REGINA SCHLEIN §
Defendant §
ORDER DENYING PLAINTIFF'S
PARTIAL MOTION FOR SUMMARY JUDGMENT
CAME ON THIS DAY for consideration, Plaintiff Anthony Griffin's Partial Motion for
Summary Judgment. After considering Plaintiffs Motion, Defendant's opposition, arguments of
counsel, and the law, the Court finds that Plaintiffs Motion should be denied. It is therefore,
ORDERED that Plaintiffs Partial Motion for Summary Judgment is Denied.
Signed this 2ih day ofDecember 2013.
t~&e"'--=--~~=:...=......::.~~=-=----.,.,.c;=-...:~--"""-----==----
BARBARA E. ROBERTS, JUDGE PRESIDING
-n
-r.
rn
0
000429
Cross-Appellant's Appendix36
Cross-Appellant's Appendix37
000760
CAUSE NO. CV 69481
ANTHONY GRIFFIN § IN THE COUNTY COURT AT LAW
§
v. § N0.2
§
BARBARA REGINA SCHLEIN § GALVESTON COUNTY, TEXAS
ORDER DENYING DEFENDANT'S TRADITIONAL
MOTION FOR PARTIAL SUMMARY JUDGMENT
CAME ON THIS DAY for consideration, Defendant Barbara Schlein's Traditional
Motion for Partial Summary Judgment. After considering Defendant's Motion, Plaintiffs
opposition, arguments of counsel, and the law, the Court finds that Defendant's Motion should
be denied. It is therefore,
ORDERED that Defendant Barbara Schlein's Traditional Motion for Partial Summary
Judgment is Denied.
Signed this 281h day of February 2014.
~~~
BARBARA E. ROBERTS, JUDGE PRESIDING
C)
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Cross-Appellant's Appendix38
Cross-Appellant's Appendix39
Cross-Appellant's Appendix40
Cross-Appellant's Appendix41
Cross-Appellant's Appendix42
Cross-Appellant's Appendix43
Cross-Appellant's Appendix44
Cross-Appellant's Appendix45
Cross-Appellant's Appendix46
Cross-Appellant's Appendix47
Cross-Appellant's Appendix48
Cross-Appellant's Appendix49
Cross-Appellant's Appendix50
Cross-Appellant's Appendix51
Cross-Appellant's Appendix52
Cross-Appellant's Appendix53
Cross-Appellant's Appendix54
Cross-Appellant's Appendix55
Cross-Appellant's Appendix56
Cross-Appellant's Appendix57
Cross-Appellant's Appendix58
Cross-Appellant's Appendix59
Cross-Appellant's Appendix60
Cross-Appellant's Appendix61
Cross-Appellant's Appendix62
Cross-Appellant's Appendix63
Cross-Appellant's Appendix64
Cross-Appellant's Appendix65
Cross-Appellant's Appendix66
Cross-Appellant's Appendix67
Cross-Appellant's Appendix68
Cross-Appellant's Appendix69
1
VERDICT
May 27, 2014
1 REPORTER'S RECORD
VOLUME 13 OF 19 VOLUMES
2 TRIAL COURT CAUSE NO. CV-0069481 FILED IN
1st COURT OF APPEALS
APPELLATE COURT CAUSE NO. 01-14-00799-CV
HOUSTON, TEXAS
3
10/28/2014 3:07:32 PM
4 CHRISTOPHER A. PRINE
Clerk
5 ANTHONY P. GRIFFIN ) IN THE COUNTY COURT
)
6 vs. ) AT LAW NO. 2
)
7 BARBARA REGINA SCHLEIN ) GALVESTON COUNTY, TEXAS
8
9
10 _____________________________________________
11 VERDICT
_____________________________________________
12
13
14 On the 27th day of May, 2014, the following
15 proceedings came on to be held in the above-titled and
16 numbered cause before the Honorable Barbara Roberts,
17 Judge Presiding, held in Galveston, Galveston County,
18 Texas.
19 Proceedings reported by computerized stenotype
20 machine.
21
22
23
24
25
Cross-Appellant's Appendix70
2
VERDICT
May 27, 2014
1 APPEARANCES
2 Ms. Norma Venso
SBOT NO. 20545250
3 Clear Lake Arbitration
830 Apollo Lane
4 Houston, Texas 77058
Telephone: 409.789.8661
5 Fax: 409.737.9245
E-mail: nvenso@earthlink.net
6 Counsel for Plaintiff
7 Mr. Stephen H. Cagle, Jr.
SBOT NO. 12314500
8 and
Ms. Heather Panick
9 SBOT NO. 24062935
Christian, Smith & Jewell, LLP
10 2302 Fannin, Suite 500
Houston, Texas 77002
11 Telephone: 713.659.7617
Fax: 713.659.7641
12 E-mail: scagle@csi-law.com
Counsel for Defendant
13
Mr. Stephen R. 'Stretch' Lewis, Jr.
14 SBOT NO. 12314500
Attorney-at-Law
15 2200 Market St., Suite 750
Galveston, Texas 77550-1551
16 Telephone: 409.762.1900
Counsel for Defendant
17
INDEX
18 VOLUME 13
VERDICT
19
20 May 27th, 2014 Page No. Vol.
21 Appearances .......................... 2 13
22 Jury questions ....................... 3 13
23 Jury Verdict ......................... 3 13
24 Reporter's Certificate ............... 7 13
25
Cross-Appellant's Appendix71
3
VERDICT
May 27, 2014
1 THE COURT: The first question is: "Can
2 we see the tile?"
3 And I'm going to say, "Yes, the bailiff
4 will bring it to them."
5 The second is: "Can we choose who gets
6 the tile?"
7 MS. VENSO: I knew that would be an
8 issue. I think we just have to answer that that you
9 only answer the questions in the Court's charge.
10 THE COURT: Right. Okay.
11 Are you okay with that?
12 MR. CAGLE: I'm okay with that.
13 THE COURT: All right. "Yes, you may see
14 the tile. The bailiff will bring it to you."
15 Two will be: "Answer the questions
16 proposed, or answer the questions submitted?"
17 MR. CAGLE: I think either is fine.
18 THE COURT: I understand from the bailiff
19 that they're going to work through lunch until 1:00
20 O'clock; and then they will leave because one of the
21 juror's 5-year-old daughter is apparently ill; and so
22 mom needs to get home; but they want to return early
23 tomorrow. I think they're talking about 8:00 or 8:30.
24 So we'll get a definite time and let everyone know.
25 (Recess taken)
Cross-Appellant's Appendix72
4
VERDICT
May 27, 2014
1 THE COURT: I understand the jury has
2 reached a verdict; is that correct?
3 THE FOREPERSON: Yes, your Honor.
4 THE COURT: All right. Would you hand
5 the verdict to the bailiff, please?
6 All right. Question No. 1: Yes.
7 Question 2: No.
8 Question 3 is not applicable.
9 Question 4: No.
10 Question 5: A is $105,750.
11 5 B) $22,399.29.
12 Question 6 is not answered.
13 7 A) $62,836. B) 15,000 C) 25,000.
14 Question 8: A through E are marked NA.
15 Question 9: No.
16 Question 10: A, B, and C are marked NA.
17 Question 11: No.
18 Question 12: A, B, C, D, and E are
19 marked NA.
20 Question 13: No.
21 Question 14: A, B, C, D: NA.
22 Question 15: A, B, C, D: NA.
23 Question 16: NA.
24 Question 17: No.
25 Question 18: Yes.
Cross-Appellant's Appendix73
5
VERDICT
May 27, 2014
1 Question 19: Yes.
2 Question 20: A) zero. B) zero. C)
3 zero.
4 Question 21: Answer: $5,000.
5 Question 22: A, B, C, D, E: NA.
6 Question 23: NA.
7 All right. And the presiding juror has
8 signed it and so has all six jurors -- is that
9 correct -- this was unanimous?
10 THE FOREPERSON: Yes.
11 THE COURT: All right. Does anybody need
12 the jury poled?
13 MS. VENSO: No, your Honor.
14 MR. CAGLE: No, your Honor.
15 THE COURT: All right. I'm going to
16 release the jury.
17 Okay. Ladies and gentlemen, I'm
18 releasing you from all instructions. You may update
19 your status on Facebook. You may talk about this case
20 with anyone. I will tell you that frequently the
21 attorneys like to talk to members of the jury, just to
22 see what may suede you one way or the other, but just to
23 talk to you. That is totally your discretion. You may
24 speak to one or more of the attorneys in this matter if
25 you wish to or if you don't wish to, you're under no
Cross-Appellant's Appendix74
6
VERDICT
May 27, 2014
1 obligation to do so.
2 You may now follow the bailiff to get
3 your personal belongings, and I'll be right back there
4 to answer any questions or concern you may have.
5 (Proceedings concluded)
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Cross-Appellant's Appendix75
7
VERDICT
May 27, 2014
1 STATE OF TEXAS
2 COUNTY OF GALVESTON
3
4 I, Jana Fowler, Official Court Reporter in and for
5 the County Court at Law No. 2 of Galveston, State of
6 Texas, do hereby certify that the above and foregoing
7 contains a true and correct transcription of all
8 portions of evidence and other proceedings requested in
9 writing by counsel for the parties to be included in
10 this volume of the Reporter's Record in the above-styled
11 and numbered cause, all of which occurred in open court
12 or in chambers and were reported by me.
13 I further certify that this Reporter's Record of
14 the proceedings truly and correctly reflects the
15 exhibits, if any, offered by the respective parties.
16 I further certify that the total cost for the
17 preparation of this Reporter's Record is $38.50 and was
18 paid Mr. Cagle.
19
/s/Jana Fowler
20
21 Jana Fowler, CSR
Texas CSR 8658
22 Official Court Reporter
County Court at Law No. 2
23 Galveston County, Texas
600 59th Street
24 Galveston, Texas 77551
Telephone: 409.765.2407
25 Expiration: 12/31/2014
Cross-Appellant's Appendix76
Cross-Appellant's Appendix77
001208
CAUSE NO. CV-0069481
ANTHONY GRIFFIN IN THE COUNTY COURT
Plaintiff
v. AT LAW NO.2
BARBARA REGINA SCHLEIN
Defendant. GALVESTON COUNTY, TEXAS
ORDER DE:\fYI~G PLAI:\fTIFFS' :\10TION FOR
JUDG:\1E:\fT NOT\VITHST ANDING THE VERDICT
On this day, the Court considered Plaintiffs' Motion for Judgment Notwithstanding the
Verdict and after considering the motion, the response and argument of counseL the Court hereby
denies the motion.
IT IS THEREFORE ORDERED that Plaintiffs' Motion for Judgment Notwithstanding the
Verdict is denied. It is further
ORDERED that Defendant's objections to Plaintiffs proposed judgment are sustained.
;f}&l~z;~
Judge Presiding
cq
'
r-n
' ·-··- L- '-"
14 JUL - I M1 8: 23
GAI.V::- '
1001208
Cross-Appellant's Appendix78
ORDER DENYING PLAINTIFFS" MOTION FOR JNOV PAGE OF I
Cross-Appellant's Appendix79
001249
CAUSE NO. CV-0069481
IN THE COUNTY COURT
AT LAW N0.2
B GALVESTON COUNTY, TEXAS
FINAL JUDGMENT
Plaintifff'
s and Defendant Barbara Schlein appeared and announced
swom, it heard evidence and art,ruments of counsel.
estions of fact in the case to the jury. In
charge of the court and the verdict oftl
Griffin Lawyers is entitled to recover from Defenda
fees as set forth below.
Barbara Schlein, as follows:
a)
b) The sum of SIXTY TWO THOUSAND EIGHT HUND!4:Dllt.IX
00/100 DOLLARS ($62,862.00) for reasonable and nec4_sa~y ~tto::· ev.'-f fees. for
preparation and trial; /~ .
. ..,...:.r/.-~·t- .'V
\."
'<--f~;;L"i~
..~-""
:r·ft~ITY l~'· ~-~~
GA.\ v~--~ ··.· ·;-v \S
Ex. 1
001249
NOTICE OF HEARING
Cross-Appellant's Appendix80 PAGE 1 OF2
001250
c) The sum of~USAND AND 00/100 DOLLARS ($15,000.00) in the event
fa appeal to the Court of Appeals; for reasonable and necessary attorney's fees
f r representation through appeal to the Court of Appeals.
The sum ofTWENTY FIVE THOUSAND DOLLARS ($25,000.00) in the event of
an appeal e Supreme Court ofTexas for reasonable and necessary attorney's
fees f re esentation at the petition for review stage in the Supreme Court of
T
nterest on the sum of SIXTEEN THOUSAND EIGHTEEN AND
($16,0 18.66).
te est on the total sum awarded at the annual rate of Five Percent
g)
It is further ORDER
from Griffin's unconscionable
It is further ORDERED, ADJUDGE
enforcement and collection of this Judgment or th
All relief not expressly I:,rranted is denied.
SIGNED this .j() day of June, 2014.
/.
APPROVED AS TO FORM ONLY- Defendant (I) disagrees with the cont , j({JTFD DiilSI IE R d!id tit 2 F pe 1 bdgmept dated lppg 20, 26t4
SIGNED this !/ dayof~ ,2014.
~~;;'~
JUDGE PRESIDING
F\LED
14SEP I 2 AH 9: 58
{iJ. ~ ;.t
;f.~~-
~OUtHY CLERK
IM;YESTON COI!!ot!V, TC(A.S
ORDER ON DEFENDANT'S FIRST MOTION FOR NEW TRIAL PAGEl OFt
001245
Cross-Appellant's Appendix83
Cross-Appellant's Appendix84
Filed
9/26/2014 2:32:09 PM
001247 Dwight D. Sullivan
County Clerk
Galveston County, Texas
CAUSE NO. CV-0069481
ANTHONY GRIFFIN § IN THE COUNTY COURT
Plaintiff, §
§
v. § AT LAW NO. 2
§
BARBARA REGINA SCHLEIN §
Defendant. § GALVESTON COUNTY, TEXAS
DEFENDANT’S NOTICE OF APPEAL
COMES NOW, Defendant Barbara Regina Schlein (“Schlein”) and files her Notice of
Appeal pursuant to Texas Rule of Appellate Procedure 25.1.
Please take notice that Defendant desires to appeal to either the First or Fourteenth Circuit
of Appeals the Final Judgment in Cause No. CV-0069481; Anthony Griffin v. Barbara Regina
Schlein; in the County Court at Law No. 2, Galveston County, Texas on June 30, 2014. A copy of
the Final Judgment is attached hereto as Exhibit 1.
Pursuant to the Texas Rule of Appellate Procedure 26.1(a)(1) the deadline for filing this
Notice of Appeal is Monday, September 29, 2014 as Defendant timely filed a Motion for New Trial.
Respectfully submitted,
CHRISTIAN SMITH & JEWELL, LLP
By: /s/ Stephen H. Cagle, Jr.
STEPHEN H. CAGLE, JR.
State Bar No. 24045596
HEATHER C. PANICK
State Bar No. 24062935
2302 Fannin, Suite 500
Houston, Texas 77002
(713) 659-7617 (Phone)
(713) 659-7641 (Fax)
ATTORNEYS FOR DEFENDANT
DEFENDANT’S NOTICE OF APPEAL
001247
Cross-Appellant's Appendix85
001248
CERTIFICATE OF SERVICE
I hereby certify that on this 26th day of September, 2014, a true and correct copy of the above
and foregoing document has been duly served upon all attorneys of record via hand delivery and/or
facsimile and/or regular mail and/or certified mail, return receipt requested and/or by eService.
Norma Venso
Attorney at Law
830 Apollo
Houston, Texas 77058
Phone: (409) 789-8661
Fax: (281) 286-9990
Stephen R. “Stretch” Lewis, Jr.
Lewis & Williams, LLP
2200 Market Street, Suite 750
Galveston, Texas 77550
Phone: (409) 762-1900
Fax: (409) 762-4606
/s/ Stephen H. Cagle, Jr.
Stephen H. Cagle, Jr.
DEFENDANT’S NOTICE OF APPEAL
001248
Cross-Appellant's Appendix86
Cross-Appellant's Appendix87
Filed
10/10/2014 6:13:22 PM
001251 Dwight D. Sullivan
County Clerk
Galveston County, Texas
CAUSE NO. CV0069481
ANTHONY P. GRIFFIN IN THE COUNTY COURT
V. AT LAW NO. 2
BARBARA REGINA SCHLEIN GALVESTON COUNTY, TEXAS
PLAINTIFFS’, ANTHONY P. GRIFFIN,
CROSS NOTICE OF APPEAL
TO THE HONORABLE JUDGE OF SAID COURT:
Plaintiff/Counter-Defendant, hereinafter referenced as Griffin, files this his
cross-notice of appeal. Griffin would show unto the Court as follows:
I.
On Finding Adverse to Griffin
Griffin appeals the finding adverse to Griffin (finding of unconscionable
conduct and a $5,000.00 damage award. This appeal is to the Court of Appeals
and is a cross-appeal from the appeal of Barbara Schlein on September 26, 2014
(case already assigned to a Court).
DATE: October 10, 2014.
Respectfully submitted,
Toll Free: 888-388-TODD (8633) 1-6/s/ NORMA VENSO
______________________________
NORMA VENSO
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ATTORNEY AT LAW
830 APOLLO
HOUSTON, TEXAS 77058
409.789.8661
FACSIMILE NO. 281.286.9990
STATE BAR NO. 20545250
ATTORNEYS FOR PLAINTIFF/
COUNTER-DEFENDANT GRIFFIN
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CERTIFICATE OF SERVICE
This is to certify that on this the 10th day of October, 2014, a true and correct
copy of the foregoing Plaintiff /Counter-Defendant’s Cross-Appeal was forwarded
to opposing counsel by facsimile transmission and regular mail (confirmation
copy), to-wit:
STEPHEN H. CAGLE, JR.
JOE E. LUCE
GARY M. JEWELL
CHRISTIAN, SMITH & JEWELL, L.L.P.
2302 FANNIN, SUITE 500
HOUSTON, TEXAS 77002
/s/ NORMA VENSO
_____________________________
NORMA VENSO
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Barbara Regina Schlein v. Anthony Griffin
Combined Opinion