ACCEPTED
13-15-00205-CV
THIRTEENTH COURT OF APPEALS
CORPUS CHRISTI, TEXAS
12/18/2015 3:27:40 PM
Dorian E. Ramirez
CLERK
NO. 13-15-00205-CV
FILED IN
13th COURT OF APPEALS
IN THE COURT OF APPEALS
CORPUS CHRISTI/EDINBURG, TEXAS
FOR THE THIRTEENTH COURT OF APPEALS DISTRICT
12/18/2015OF TEXAS
3:27:40 PM
DORIAN E. RAMIREZ
Clerk
JOEL FLORES, INDIVIDUALLY AND IN A REPRESENTATIVE CAPACITY AND
CRISELDA FLORES, INDIVIDUALLY AND IN A REPRESENTATIVE CAPACITY,
Appellants,
v.
GONZÁLEZ & ASSOCIATES LAW FIRM, LTD.,
Appellee.
On Appeal from Cause No. C-4738-13-D,
In the 206th Judicial District Court, Hidalgo County, Texas,
Honorable Rose Guerra Reyna, Presiding
APPELLEE’S BRIEF
Mr. Jason Davis
State Bar No. 00793592
Mr. Santos Vargas
State Bar No. 24047026
DAVIS & SANTOS
ATTORNEYS & COUNSELORS, P.C.
The Weston Centre
112 E. Pecan Street, Suite 900
San Antonio, Texas 78205
(210) 853-5882
(210) 200-8395 (fax)
E-Mail: jdavis@dslawpc.com
Attorneys for Appellee,
González & Associates Law Firm, Ltd.
IDENTITIES OF PARTIES AND COUNSEL
APPELLANTS
Joel Flores, Individually and in a Representative Capacity, and Criselda
Flores, Individually and in a Representative Capacity
APPELLANTS’ COUNSEL AT TRIAL AND ON APPEAL
Jaime Peña
State Bar No. 90001988
PENA GARCIA GUERRERO, PLLC
900 Kerria Avenue
McAllen, Texas 78501
(956) 948-2221– phone
(956) 422-6346
jpena@pgglex.com
APPELLANTS’ COUNSEL ON APPEAL
Beth Watkins
State Bar No. 24037675
Shannon K. Dunn
State Bar No. 24074162
LAW OFFICE OF BETH WATKINS
926 Chulie Drive
San Antonio, Texas 78216
(210) 225-6666– phone
(210) 225-2300– fax
Beth.Watkins@WatkinsAppeals.com
Shannon.Dunn@WatkinsAppeals.com
i
APPELLEE
Gonzalez and Associates Law Firm, Ltd.
APPELLEES’ COUNSEL AT TRIAL AND ON APPEAL
Jason Davis
State Bar No. 00793592
Santos Vargas
State Bar No. 24047026
DAVIS & SANTOS, ATTORNEYS & COUNSELORS, P.C.
The Weston Centre
112 East Pecan Street, Suite 900
San Antonio, Texas 78205
(210) 853-5882– phone
(210) 200-8395– fax
jdavis@dslawpc.com
svargas@dslawpc.com
Fernando G. Mancias
State Bar No. 12891300
LAW OFFICE OF FERNANDO G. MANCIAS
4428 South McColl Road
Edinburg, Texas 78539
(956) 686-0385– phone
(965) 686-0787– fax
Fernando@fernandomanciaslaw.com
Robert “Bob” Guerra
State Bar No. 08578560
THORNTON, BIECHLIN, SEGRATO, REYNOLDS & GUERRA, LC
418 East Dove Avenue
McAllen, Texas 78504
(956) 630-3080– phone
(956) 630-0189– fax
rguerra@thorntonfirm.com
ii
TABLE OF CONTENTS
Page
IDENTITY OF PARTIES AND COUNSEL ............................................... i
TABLE OF CONTENTS .......................................................................... iii
INDEX OF AUTHORITIES ...................................................................... vi
STATEMENT REGARDING ORAL ARGUMENT ................................ xiv
ISSUES PRESENTED ............................................................................. xv
INTRODUCTION ....................................................................................... 1
STATEMENT OF FACTS .......................................................................... 3
I. Flores Hires González.. .................................................................. 3
II. González Diligently and Effectively Represents the Flores. ....... 6
III. The Flores Discharge González to Avoid Paying the Agreed Fee.
........................................................................................................ 9
IV. The Flores Sue González in an Attempt to Pay Nothing ........... 10
V. The Flores for the Second Time Accept the Rule 11 Settlement
Negotiated By González .............................................................. 14
VI. After Losing On All Their Tort Claims, the Flores Change Tactics
and Attempt to Belatedly Plead Breach of Contract.................. 15
VII. The Flores Make Judicial Admissions Abandoning the “Good
Cause” Defense and Then Ratify the González Contract by
Tendering Part of the Fee to González ....................................... 18
SUMMARY OF THE ARGUMENT ......................................................... 23
iii
ARGUMENT AND AUTHORITIES ........................................................ 27
I. The Trial Court Properly Granted Summary Judgment on The
Flores’ Fiduciary Duty Claim. ..................................................... 27
A. Standard of Review………………………………………………28
B. González was Entitled to Summary Judgment because there
was no Breach of Fiduciary Duty as a Matter of Law. ......... 29
i. The Flores' allegations were not supported by personal
knowledge or other competent evidence. .............................. 30
ii. The Flores' allegations were nonsensical, immaterial, and
insufficient to support a breach of fiduciary duty claim ...... 32
iii. The Flores also failed to show that they were harmed or
that González benefitted from any alleged breach. .............. 38
C. The Presumption of Unfairness does not Apply. .................. 42
II. The Trial Court did not Abuse its Discretion by Excluding
Evidence of Good Cause............................................................... 48
A. Standard of Review. ............................................................... 48
B. The Trial Court Properly Excluded Evidence of Good Cause
Because the Flores Tendered a 25% fee on the Same Contract
they Sought to Avoid .............................................................. 48
C. The Trial Court Properly Excluded Evidence of Good Cause
Because of the Flores’ Repeated Failure to Comply with the
Pleading Rules and Deadlines. .............................................. 49
i. Texas Rule of Civil Procedure 94 requires that avoidance
defenses be specifically plead, and the Flores failed to do so
................................................................................................. 49
iv
ii. The Flores were also required to specifically deny any
conditions precedent they believed González had not
performed, and they failed to do so. ...................................... 50
iii. The Flores repeatedly failed to comply with the Trial
Court’s deadlines .................................................................... 51
D. The Trial Court Properly Denied Leave for the Flores to
Amend their Pleadings. ......................................................... 52
i. The Flores' untimely amendments were prejudicial on their
face. ......................................................................................... 52
ii. The Flores’ untimely amendments would have also caused
surprise and prejudice. .......................................................... 55
E. As a Separate and Independent Basis to Affirm the Trial
Court's Ruling, the Judgment Rendered did not Turn on the
Excluded Evidence. ................................................................ 61
III. The Trial Court did not Abuse its Discretion by Awarding
González its Attorney’s Fees. ...................................................... 64
A. Standard of Review. ............................................................... 64
B. The Trial Court's Award of Attorney's Fees was not an Abuse
of Discretion............................................................................ 65
C. González Satisfied the Arthur Andersen Factors................. 69
PRAYER .................................................................................................... 75
CERTIFICATE OF SERVICE................................................................ 766
CERTIFICATE OF COMPLIANCE ........................................................ 77
v
INDEX OF AUTHORITIES
CASES Page
7979 Airport Garage, L.L.C. v. Dollar Rent a Car Sys., Inc.,
245 S.W.3d 488
(Tex. App.—Houston [14th Dist.] 2007, pet. denied) ....................... 66, 69
Adame v. Law Office Of Allison & Huerta,
No. 13-04-670-CV, 2008 WL 2151454
(Tex. App.—Corpus Christi May 22, 2008, pet. denied) ................ 40, 41
Air Products and Chemicals, Inc. v. Odfjell Seachem A/S,
305 S.W.3d 87
(Tex. App.—Houston [1st Dist.] 2009, no pet.) ..................................... 59
Am. Tobacco Co. v. Grinnell,
951 S.W.2d 420
(Tex. 1997) ....................................................................................... 29, 36
AMX Enter’s., L.L.P. v. Master Realty Corp.,
283 S.W.3d 506
(Tex. App.—Fort Worth 2009, no pet.) ........................................... 64, 69
Arthur Andersen & Co. v. Perry Equip. Corp.,
945 S.W.2d 812
(Tex. 1997) ................................................................ 27, 69, 70, 71, 72, 75
Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C.,
284 S.W.3d 416
(Tex. App.—Austin 2009, no pet.) ......................................................... 35
vi
Bexar Cnty. v. Deputy Sheriffs Ass'n of Bexar Cnty.,
429 S.W.3d 673
(Tex. App.—San Antonio 2014, no pet.) ................................................ 65
Bocquet v. Herring,
972 S.W.2d 19
(Tex. 1998) .............................................................................................. 65
Bright v. Addison,
171 S.W.3d 588
(Tex. App.—Dallas 2005, pet denied) ................................................... 46
Burrow v. Arce,
997 S.W.2d 229
(Tex. 1999) ............................................................................ 36, 40, 41, 42
Carr v. Brasher,
776 S.W.2d 567
(Tex. 1989) .............................................................................................. 28
City of Brownsville v. Alvarado,
897 S.W.2d 750
(Tex. 1995) .............................................................................................. 48
Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
136 S.W.3d 227
(Tex. 2004) .............................................................................................. 74
Cole v. Plummer,
559 S.W.2d 87
(Tex. Civ. App.—Eastland 1977, writ ref'd n.r.e.) .......................... 46, 47
vii
Comm'rs Court of Titus Cnty. v. Agan,
940 S.W.2d 77
(Tex. 1997) .............................................................................................. 64
Dow Chem. Co. v. Francis,
46 S.W.3d 237
(Tex. 2001) ............................................................................................. 28
Dunnagan v. Watson,
204 S.W.3d 30
(Tex. App.—Fort Worth 2006, pet. denied) .................. 53, 55, 57, 59, 60
EMC Mortg. Corp. v. Davis,
167 S.W.3d 406
(Tex. App.—Austin 2005, pet. denied) ................................ 65, 69, 70, 75
ForScan Corp. v. Dresser Indus., Inc.
789 S.W.2d 389
(Tex. App—Houston [14th Dist.] 1990, writ denied) ........................... 51
Ford Motor Co. v. Ridgway,
135 S.W.3d 598
(Tex. 2004) .............................................................................................. 29
Gee v. Liberty Mut. Fire Ins. Co.,
765 S.W.2d 394
(Tex. 1989) .............................................................................................. 48
Graham Mortg. Corp. v Hall,
307 S.W.3d 472
(Tex. App.—Dallas 2010, no pet.).................................................... 30, 39
viii
Greathouse v. Charter Nat’l Bank-Sw.,
851 S.W.2d 173
(Tex. 1992) .................................................................................. 50, 51, 62
Greenhalgh v. Serv. Lloyds Ins. Co.,
787 S.W.2d 938
(Tex. 1990) ........................................................................................ 52, 53
Hajdik v. Wingate,
753 S.W.2d 199
(Tex. App.—Hous. [1st Dist.] 1988),
aff'd, 795 S.W.2d 717 (Tex. 1990) ........................................ 55, 56, 59, 60
Hart v. Moore,
952 S.W.2d 90
(Tex. App.—Amarillo, 1997, pet. denied) ............................................... 52
Holy Cross Church of God in Christ v. Wolf,
44 S.W.3d 562
(Tex. 2001) .............................................................................................. 62
Horizon/CMS Healthcare Corp. v. Auld,
34 S.W.3d 887
(Tex. 2000) ............................................................................................. 62
Howell v. Kelly,
534 S.W.2d 737
(Tex. Civ. App.—Houston [1st Dist.] 1976, no writ) ............................ 50
In re Estate of Miller,
446 S.W.3d 445
(Tex. App.—Tyler 2014, no pet.) ........................................................... 43
ix
Jackson Law Office, P.C. v. Chappell,
37 S.W.3d 15
(Tex. App.—Tyler 2000, pet. denied) .................................................... 47
JNS Enter., Inc. v. Dixie Demolition, LLC,
430 S.W.3d 444
(Tex. App.—Austin 2013, no pet.) ......................................................... 67
Jones v. Hyman,
107 S.W.3d 830
(Tex. App.—Dallas 2003, no pet.).................................................... 28, 47
Kinzbach Tool Co. v. Corbett-Wallace Corp.,
160 S.W.2d 509
(Tex. 1942) .............................................................................................. 30
Lane Bank Equip. Co. v. Smith S. Equip., Inc.,
10 S.W.3d 308
(Tex. 2000) .............................................................................................. 67
Lindley v. McKnight,
349 S.W.3d 113
(Tex. App.—Fort Worth 2011, no pet.)............................................ 29, 48
Llanes v. Davila,
133 S.W.3d 635
(Tex. App.—Corpus Christi 2003, pet. denied)..................................... 64
Mackey v. U.P. Enters., Inc.
935 S.W.2d 446
(Tex. App.—Tyler 1996, no writ) ......................................................... 51
x
MAN Engines & Components, Inc. v. Shows,
434 S.W.3d 132
(Tex. 2014) ........................................................................................ 49, 50
Mantri v. Bergman,
153 S.W.3d 715
(Tex. App.—Dallas 2005, pet. denied) ............................................ 66, 67
Mapco, Inc. v. Carter,
817 S.W.2d 686
(Tex. 1991) ............................................................................................. 62
Mims-Brown v. Brown,
428 S.W.3d 366
(Tex. App.—Dallas 2014, no pet.).............................................. 43, 44, 45
Perez v. Kirk & Carrigan,
822 S.W.2d 261
(Tex. App.—Corpus Christi 1991, writ denied) .................................... 40
Petco Animal Supplies, Inc. v. Schuster,
144 S.W.3d 554
(Tex. App.—Austin 2004, no pet.) ................................................... 64, 70
Ragsdale v. Progressive Voters League,
801 S.W.2d 880
(Tex. 1990) ............................................................................ 64, 65, 69, 70
Siders v. State,
970 S.W.2d 189
(Tex. App.—Dallas 1998, pet. denied) .................................................. 28
xi
State Fair of Tex. v. Seay,
98 S.W.2d 232
(Tex. Civ. App.—Fort Worth 1936, writ dism’d) ............................ 49, 63
Stevenson v. Koutzarov,
795 S.W.2d 313
(Tex. App.—Houston [1st Dist.] 1990, writ denied) ............................. 56
Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P.,
105 S.W.3d 244
(Tex. App.—Houston [14th Dist.] 2003, pet. denied) ........................... 45
Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299
(Tex. 2006) .................................................................................. 66, 67, 69
Ward v. Emmett,
37 S.W.3d 500
(Tex. App.—San Antonio 2001, no pet.) ............................................... 30
Wein v. Sherman,
No. 03-10-00499-CV, 2013 WL 4516013
(Tex. App.—Austin Aug. 23, 2013, no pet.) .......................................... 67
White v. Sullins,
917 S.W.2d 158
(Tex. App.—Beaumont 1996, writ denied) ........................................... 52
Wood v. Dawkins,
85 S.W.3d 312
(Tex. App.—Amarillo 2002, pet. denied) ............................................... 28
xii
RULES
Tex. R. Civ. P. 54 .......................................................................... 50, 51, 62
Tex. R. Civ. P. 63 ................................................................................ 51, 52
Tex. R. Civ. P. 94 .......................................................................... 49, 50, 62
Tex. R. Civ. P. 166a(c) ........................................................................ 29, 36
Tex. R. Civ. P. 166a(i) ............................................................................... 29
xiii
STATEMENT REGARDING ORAL ARGUMENT
Appellee does not believe that oral argument would significantly
aid the Court in its decision. The record reflects that the facts relevant
to this appeal are almost entirely uncontroverted. In addition, the legal
arguments are straight-forward and adequately set forth in the parties’
respective briefs. However, should the Court decide to grant Appellants’
request for oral argument, Appellee requests the opportunity to also
present oral argument.
xiv
ISSUES PRESENTED
Reply to Issue 1: The experienced Trial Court granted Appellee’s no-
evidence and traditional motions for summary judgment as to all of
Appellants’ affirmative claims. Should this Court affirm the Trial
Court’s rulings where Appellants failed to present more than a scintilla
of evidence on multiple elements of their breach of fiduciary duty claim,
and where the Appellants’ allegations are insufficient to support a breach
of fiduciary duty claim as a matter of law?
Reply to Issue 2: Appellants failed to timely plead the avoidance defense
of “good cause” and failed to specifically deny any conditions precedent.
Should this Court affirm the Trial Court’s exclusion of evidence of “good
cause” where Appellants: (1) repeatedly failed to comply with the
pleading rules and deadlines; (2) affirmatively represented that
allegations regarding “good cause” would not be addressed during the
trial; and (3) where Appellants actually tendered to Appellee a portion of
the fee on the same contract they later sought to avoid?
Reply to Issue 3: The Trial Court heard expert testimony on attorney’s
fees from Appellee’s trial counsel, as well as its expert witness. During
the trial, Appellants failed to offer any controverting expert testimony or
other evidence to rebut the attorney fee testimony offered by Appellee.
Should this Court affirm the Trial Court’s award of attorney’s fees where
Appellee’s uncontroverted expert testimony as to each of the Arthur
Andersen factors supported the Trial Court’s attorney’s fee award?
xv
TO THE HONORABLE COURT OF APPEALS:
González & Associates Law Firm, Ltd., files this Appellee’s Brief
respectfully requesting that the Court affirm the rulings and judgments
issued by the Honorable Rose Guerra Reyna, Judge of the 206th Judicial
District of Hidalgo County, Texas.
INTRODUCTION
Appellants Joel and Criselda Flores, individually and in a
representative capacity (the “Flores”) hired Appellee González &
Associates Law Firm, Ltd. (“González”), an accomplished trial law firm,
to represent them in a wrongful death action. González zealously
represented the Flores and ultimately negotiated a favorable Rule 11
settlement agreement for $6,250,000 and a formal apology provided to
the Flores in a moving ceremony at St. Frances Xavier Cabrini Catholic
Church (“St. Frances”).
Ms. Criselda Flores, also an experienced attorney, approved and
signed the Rule 11 settlement agreement, and had her husband do the
same. Despite accepting the benefits of the settlement, the Flores later
decided not to pay González the agreed 31% contingency fee. In an effort
to avoid their clear contractual obligations, the Flores asserted breach of
1
fiduciary duty and other tort claims against González. In turn, González
sought to enforce the firm’s contract and settlement agreement via a
breach of contract action. After extensive summary judgment briefing,
the experienced District Judge ruled in González’s favor and granted
summary judgment against the Flores on all their affirmative claims.
After a bench trial, the Court entered a judgment in González’s favor on
its contract claims, and awarded González attorney’s fees incurred in the
successful effort to enforce the contract.
The Flores now appeal these decisions. Despite the emotional
rhetoric in Appellants’ Brief, the legal issues before the Court are
straight-forward. The Flores simply do not want to pay their lawyer.
Undermining all of the Flores’ arguments are two simple and undisputed
facts: (1) the Flores have embraced and accepted the settlement that
González obtained for them; and (2) the Flores have now tendered a 25%
fee under the Contract with González (and yet in this appeal seek to avoid
the same Contract). The Flores’ complaints are thus factually and legally
flawed and as a result, the Trial Court’s rulings should be affirmed in all
respects.
2
STATEMENT OF FACTS1
I. FLORES HIRES GONZÁLEZ.
In July of 2013, the Flores entered into a Contract for Legal Services
with González (the “Contract”). CR1 852-858. Ms. Flores, herself an
experienced attorney, had been referred to González by Ms. Flores’ friend,
another McAllen attorney, Nereida Lopez-Singleterry (“Ms. Lopez”). CR1
852-858; CR2 152:3-153:4.
Ms. Flores negotiated the terms of the Contract directly with
González. CR1 852-858. In addition to being a licensed attorney, Ms.
Flores had prior experience negotiating a contingency fee contract with
the Watts firm in a different case. CR1 662; CR1 852-855.
During her discussions with González, Ms. Flores shrewdly
negotiated a fee lower than the firm’s standard 40% fee, insisting that
she essentially be treated as a “referring attorney” in her own case. CR1
852-855; CR3 102:11-103:24. The final Contract provided: (a) no
1 The five-volume Clerk’s Record will be cited by page number as “CR[volume
number] [page number].” The twelve-volume Reporter’s Record will be cited by
volume and page number as “RR[volume number] [page number].”
3
contingent fee if the case settled prior to August 1, 2013;2 (b) a 25%
contingent fee if the case settled within 60 days from when the Contract
was executed; or (c) a 31% contingent fee if the case settled after 60 days
from when the Contract was executed. CR1 857-858. Under the Contract,
González would also be entitled to collect its expenses. Id. González
agreed to investigate and prosecute claims against McAllen Country Club,
Inc. (“MCC”). CR1 852-858.
During their first meeting in July of 2013, Ms. Lopez explained that
as a courtesy to the Flores, she had briefly discussed the Flores’ claim over
the phone with MCC’s counsel, Mr. John Griffith. CR1 211; CR2 70; CR2
153:11-155:14; CR2 158:11-161:8. Ms. Lopez explained that Mr. Griffith
represented that there was no reason for the Flores to hire a lawyer “since
a simple phone call by them would be enough to collect policy limits.” Id.;
CR2 74. González recommended that the Flores send Mr. Griffith a letter
verifying whether MCC was indeed willing to pay policy limits prior to suit
and, if so, González agreed that it would not receive a fee. Id.; CR2 163:6-
2 Ms. Flores testified that Mr. González suggested the initial time-bracket during
which González would recover no contingent fee (i.e., if MCC had immediately agreed
to settle the case). CR3 103:14-24.
4
164:10; CR2 176:5-22; CR1 852-855; CR3 103:14-24. Nevertheless, if that
happened, González offered to draft settlement documents at no cost to
the Flores. CR2 176:5-22. González then drafted a letter on Ms. Lopez’
letterhead, to determine whether MCC was willing to offer policy limits.
CR2 74.
However, MCC did not make that offer. CR2 85. Instead, on July 26,
2013, Mr. Griffith responded with a letter indicating that he did not have
authority to settle the case for policy limits, and shamelessly accused Ms.
Lopez of misrepresenting their prior conversation: “Your conscious
misstating and overstating of my communication to you is completely
improper.” Id. Ms. Lopez e-mailed Mr. Griffith’s response to Ms. Flores
on July 29, 2013:
CR2 82.
5
II. GONZÁLEZ DILIGENTLY AND EFFECTIVELY REPRESENTS THE FLORES.
After MCC’s disappointing response, González zealously pursued
the Flores’ claims. CR1 852-855; CR1 872. Within one week of being
retained, González:
(a) filed a lawsuit against MCC;
(b) obtained a temporary restraining order to preserve evidence;
(c) served written interrogatories;
(d) served requests for admissions;
(e) inspected the accident scene;
(f) obtained statements from eight MCC employees;
(g) hired two prominent liability experts; and thereafter,
(h) hired an insurance coverage expert to identify all applicable
coverage.
CR1 663-664.
With the assistance of the insurance expert, González confirmed a total of
six-million dollars in possible coverage: (a) one million in primary
coverage; and (b) a $5 million excess policy. CR2 196:7-201:6.
After reviewing the discovery, witness statements, investigative
reports, and consulting with experts and the Flores, González sent MCC
6
an $8.5 million demand in early December of 2013. CR2 75; CR2 201:7-
202:2; CR2 212:11-215:13.
González ultimately negotiated a highly favorable settlement. CR1
809:1-810:20; CR1 860-62; CR1 872. Specifically, on or about December
26, 2013,3 MCC and the Flores approved and executed a Rule 11
Settlement Agreement (the “Rule 11 Settlement”) containing all material
terms:
(1) a formal apology to the Flores from the MCC board of directors
and staff;
(2) a forgiveness ceremony at St. Frances Xavier Cabrini Catholic
Church;
(2) $6,000,000 in insurance policy limits;
(3) a $250,000 contribution (in excess of policy limits) to a non-
profit of the Flores’ choosing; and
(4) implementation of safety measures. CR1 860-62.
The Flores embraced the Rule 11 Settlement, and participated with MCC
board members, and MCC’s personal attorney Mr. Ray Thomas (who had
helped facilitate the settlement), in an emotional and profound
3 Since the Rule 11 Settlement was executed approximately five months after the
execution of the Contract, the 31% contingent fee provision in the Contract applied.
CR1 852-855; CR1 860-62.
7
“forgiveness ceremony” at St. Frances, presided over by Father Edouard
Atangana. CR1 860-62; CR1 811:7-813:2.
For all practical and legal purposes, the Rule 11 Settlement settled
the case. The only remaining tasks were drafting formal release
documents and establishing the non-profit. The Flores continued to
acknowledge the settlement, including in discussions with González about
whether to accept the settlement in a structured or a lump-sum payment.
CR1 845, 847; CR1 852-55. Even after the Rule 11 Settlement was
executed, Mr. Flores acknowledged González was entitled to its fee:
Q. On December 26th did you believe that González &
Associates was entitled to its fee?
MR. PEÑA: Objection, form.
A. I did.
Q. (By Mr. Davis) Okay. You did?
A. I did.
Q. Okay. So, on December 26th, you intended for - - to
comply with your engagement letter with
González & Associates?
A Yes.
Q. Okay. And to pay 31 percent of the $6,250,000 fee,
correct?
MR. PEÑA: Objection, form.
A. I don’t know - - I do not know the amount.
Q. (By Mr. Davis) Okay. Well, whatever the
engagement letter says, you intended to comply
with your promise, right?
A. Correct. CR3 554 at 47:19-48:11 (emphasis added).
. . . .
8
Q. In February of 2014, you still intended to comply
with the promises you made in the engagement
letter regarding the fee to González & Associates?
A. Correct. CR3 567 at 98:3-6 (emphasis added).
III. The Flores Discharge González to Avoid Paying the Agreed Fee.
In March of 2014, while the parties were finalizing the formal release
documents, Mrs. Flores demanded González reduce its fee to 10%. Mrs.
Flores warned that if González resisted, they would pay González nothing.
CR1 996:2-18; CR4 209:23-210:24; CR4 211:4-212:12; CR4 213:16-215:22.
González refused as González had already reduced its normal 40% rate in
the Contract and had already achieved a very favorable settlement, which
the Flores had accepted.4 CR4 213:16-215:22.
Finally, on or about May 9, 2014, over four months after approving
and executing the Rule 11 Settlement, the Flores discharged González.
CR1 852-55; CR1 872; CR1 809:21-24; CR1 833-36. The Flores told
González that they were not going to pay “a cent,” and that González would
have to sue them to recover its fee. CR5 638:3-25. That same day,
4In their Brief, the Flores raise allegations relating to a draft accounting statement
predating González’s termination, which they claim shows an oral modification of the
Contract. Appellants’ Brief at 10. The allegations relating to alleged oral
modification are meritless and moot, as the Flores failed to appeal the Trial Court’s
March 12, 2015 Order Granting González’s Motion to Exclude Evidence Regarding
Oral Modification under the statute of frauds. CR5 703.
9
González filed a Plea in Intervention seeking to enforce the Contract. CR1
833-36.
IV. The Flores Sue González in an Attempt to Pay Nothing.
On June 4, 2014, the Flores, now represented by new counsel, Mr.
Jaime Peña, filed a Third Amended Original Petition in the underlying
action against González and MCC (the “Third Petition”). The Third
Petition alleged causes of action against González for: (a) breach of
fiduciary duty; (b) common-law fraud; and (c) fraud by non-disclosure. Id.
The Flores sought complete disgorgement of González’ fee and rescission
of the same Rule 11 Settlement they had accepted a few months prior
when praising González and “forgiving” MCC during the St. Frances
ceremony. CR1 860-62; CR1 811:7-813:2.
As explained below, the Flores later prudently withdrew any efforts
to rescind the extremely favorable Rule 11 Settlement, and have now – for
the second time – formally accepted the settlement. The $6 million in
insurance proceeds remain interplead with the Trial Court.5
5 The reason that only $6,000,000 (and not $6,250,000) was interplead is that the
$250,000 portion of the settlement was to be paid directly to a charitable foundation
in payments of $50,000. RR6 92:16-93:13.
10
Notably, the Flores did not include a breach of contract claim against
González or a “good cause” affirmative defense to González’ claim. CR1
149-164. Instead, the Flores strategically chose to go “all in” to deprive
González of any fee by asserting only the tort claims. Id.
On June 17, 2014, the Court issued an Amended Docket Control
Order (the “First DCO”), setting the following pleading deadlines: (a)
August 8, 2014 for the Flores; and (b) August 15, 2014 for González. CR1
183-85.
On July 1 and 2, 2014, González deposed the Flores. Ms. Flores was
questioned exhaustively concerning the basis for their claims. Ms. Flores
testified that the allegations against González were based entirely upon
the following:
a. Allegation: González misrepresented that counsel for MCC, Mr.
Griffith, had asserted that the Flores’ case was only worth two
to three million dollars. CR1 819:10-16.
b. Allegation: González concealed that Mr. González allegedly
owned stock in MCC. CR1 813:11-814:3; CR1 819:16-820:1.
c. Allegation: González failed to disclose an alleged ownership
interest in APT, a litigation support company that performed
services for González. CR1 819:25-820:9.
d. Allegation: González failed to recover Joel Flores, Jr.’s clothing
and belongings. CR1 807:4-809:20; CR1 802:3-806:9.
11
e. Allegation: González failed to communicate with the media as
the Flores requested. CR1 815:7-817:19; CR1 802:3-806:9.
f. Allegation: González failed to properly communicate the status
of the case with the Flores. CR1 803:17-24.
g. Allegation: González misrepresented MCC’s net worth. CR1
820:9-16.
(the “Alleged Misrepresentations”).
As explained below, the Alleged Misrepresentations are nonsensical,
immaterial, and insufficient to support the Flores’ legal claims. In
addition to being immaterial, Ms. Flores, herself a licensed trial attorney,
confessed that the majority of her own allegations were not supported by
personal knowledge or any other competent evidence despite her sworn
verification to the contrary. CR1 163; CR1 852-55; CR1 822:18-827:18.
In light of the frivolous nature of the Flores’ allegations, on July 7,
2014, González filed a Traditional and No-Evidence Motion for Summary
Judgment (“MSJ”), which sought summary judgment as to all of the
Flores’ affirmative claims. CR1 195-208.
On August 8, 2014 (the pleading deadline), the Flores filed their
Fourth Amended Original Petition, Original Answer, and Counterclaims
(the “Fourth Petition”). CR1 555-571. The Fourth Petition again failed
12
to assert a breach of contract claim against González or a “good cause”
affirmative defense. Id.; CR1 183-85.
On August 15, 2014, González timely filed its Second Amended
Petition in Intervention (the “Second Intervention”). CR1 183-85; CR1
724-736. The Second Intervention asserted claims against the Flores for
declaratory judgment and breach of the Contract. CR1 727-732. González
affirmatively plead that “[a]ll conditions precedent have occurred.” CR1
732.
On August 18, 2014, González filed a Supplement to its MSJ (the
“MSJ Supplement”) to address four additional alleged misrepresentations
raised for the first time in the Flores’ late-filed Fifth Amended Original
Petition (the “Fifth Petition”).6 CR1 974-986.
On September 3, 2014, the Flores filed their Response to the MSJ
and the MSJ Supplement (the “MSJ Response”). CR2 39-68.
6 The Flores provided González with a copy of the Fifth Petition on August 15, 2014,
7 days after the pleading deadline. However, the file-stamp on the Fifth Petition
indicates that it was not filed until August 19, 2014, 11 days after the pleading
deadline. CR1 1039; CR1 183. The Fifth Petition was not accompanied by a motion
for leave. Id. The Fifth Petition: (a) failed to assert a claim for breach of contract; (b)
failed to assert a “good cause” affirmative defense; and (c) failed to specifically deny
any condition precedent. Id.
13
On September 9, 2014, González filed its Reply to the Flores’
Response (the MSJ, MSJ Supplement, and MSJ Reply are collectively
referred to as the “MSJ”). CR3 240-246.
V. The Flores For the Second Time Accept The Rule 11 Settlement
Negotiated by González.
While the Summary Judgment briefing was ongoing, on September
8, 2014, the Flores reversed course on their efforts to rescind the Rule 11
Settlement. The Flores entered into an express agreement with MCC
again accepting the settlement terms. CR3 320-323; CR3 324. On
September 12, 2014, the Trial Court conducted a Pre-Trial Conference
(the “September PTC”) during which the Flores explained:
MR. PENA: We’ve agreed to accept the December 26th
Rule 11. That’s what we have agreed to do.
RR6 19:8-10.
The Trial Court therefore observed that the Flores no longer had viable
claims that any of González’ Alleged Misrepresentations induced them to
enter into the Rule 11 Settlement:
THE COURT: Okay. Well, the way I see it, there is no more
misrepresentation on this because, if you are
accepting, your client is accepting the
settlement offer, it is based on the opinion
that it resolves all claims. . . . RR6 24:12-
25:8.
14
. . . .
As it relates to the settlement, any alleged
representations, misinformation, whatever
you want to classify it, as it relates to causing
them to accept the Country Club’s
settlement, those are now moot . . . . RR6
38:11-15 (emphasis added).
In other words, despite all the strong, personally vindictive rhetoric
aimed at González (both in the Flores’ pleadings and in their Appellants’
Brief), the simple reality is that when given a chance to try to get a better
outcome with their new counsel, they refused. CR3 320-323; CR3 324.
Instead, they again embraced the excellent result of González’s services.
Id.
At the conclusion of the September PTC, the Trial Court ordered
that all deadlines, including “discovery, pleadings, everything” were
“frozen, period.” RR6 88:16-89:8 (emphasis added). Counsel for the
Flores acknowledged that the deadlines were “frozen.” RR6 88:24-89:5.
VI. After Losing on All Their Tort Claims, the Flores Change Tactics
and Attempt to Belatedly Plead Breach of Contract.
On September 25, 2014, the Trial Court granted González’s MSJ on
all of the Flores’ affirmative claims. CR3 392-93.
15
Having lost their “all in” gambit to pay no fee, on October 9, 2014,
the Flores filed a Motion for Leave to File Sixth Amended Petition (the
“First Motion for Leave”). CR3 402-06. Now, two months after the
pleading deadline (and after all parties recognized that pleadings were
“frozen”), the Flores for the first time attempted to add a claim for breach
of the Contract. CR3 408-19. The Flores claimed that González orally
agreed to modify the contractual contingent fee from 31% to 25%. Far
from trying to void the Contract, the Flores asserted:
The only issue remaining is a breach of contract dispute
between the parties regarding whether the Intervenor is
entitled to a 31% [fee] pursuant to his fee agreement or a 25%
fee pursuant to a modification and ratification and other
affirmative defenses. CR3 402 (emphasis added).
The proposed Sixth Petition still failed to: (a) assert a “good cause”
defense; or (b) specifically deny any condition precedent. Id.
In response, González asserted that the proposed Sixth Petition
would cause surprise and prejudice, due to the inclusion of a new breach
of contract claim. CR3 496-503; RR7 74:2-75:23. The Court agreed and
promptly denied the First Motion for Leave.7 CR4 56.
7The Trial Court recognized that the only reason the trial was “bumped” was due to
congestion in the Trial Court’s own docket. RR7 79:19-21.
16
On or about January 5, 2015, the parties received a second amended
Docket Control Order. CR4 157-59. The Second DCO inadvertently
extended the pleading deadline. CR4 187-89. On January 9, 2014,
González filed a Motion to Modify Docket Control Order (the “Motion to
Modify”), which brought the inadvertent extension to the Trial Court’s
attention. CR4 152-155.
Before the Trial Court could rule on the Motion to Modify, the
Flores opportunistically filed a Supplemental Answer and Counterclaim
seeking to take advantage of the inadvertent scheduling error. CR4 175-
186. The Flores now attempted to assert a “good cause” defense for the
first time while still failing to specifically deny any condition precedent.
Id.
During the next hearing, the Trial Court acknowledged that the
deadline extension was unintended, and advised that it would enter a
corrected Second Amended Docket Control Order that would “supersede”
any other docket control orders. RR9 6:10-8:14; RR9 15:5-16:12. The
Trial Court entered the Corrected Second Amended Docket Control
Order, clarifying that the pleading deadline had not been extended. CR4
187-89.
17
Refusing to take “no” as an answer, on February 11, 2015, the
Flores filed yet another Motion for Leave to file a Supplemental Answer
and Counterclaim (the “Second Motion for Leave”). CR4 311-314.
González filed a Motion to Strike the Supplemental Answer and
Counterclaim. CR5 42-46. On February 17, 2015, González also filed a
Response to the Second Motion for Leave. CR5 168-174.
The Trial Court conducted a pre-trial hearing on February 19, 2015.
RR10 25:7-29:11. During the hearing, González again argued that the
Flores’ attempt to raise new claims and defenses on the eve of trial would
cause surprise and prejudice. RR10 25:7-28:9. Again, the Trial Court
agreed and denied the Second Motion for Leave. RR10 29:10-11.
VII. The Flores Make Judicial Admissions Abandoning the “Good Cause”
Defense and Then Ratify the Contract by Tendering Part of the Fee
to González.8
In addition to never properly or timely pleading the defense, the
Flores made several judicial admissions abandoning the issue of “good
cause.” Specifically, the Flores asserted that if their First Motion for
8
For purposes of clarity, any reference to the Flores’ tender of 25% of the 31%
contingent fee is not intended to mean that the Flores tendered 1/4 of the 31%
contingent fee, but instead tendered a 25% contingent fee.
18
Leave was granted, the defense of oral modification would be “[t]he only
issue remaining before the Court.” CR3 402-406.
On October 9, 2014, the Flores similarly acknowledged “that all
that is left before the Court is the breach of contract claim wherein
Intervenor is seeking a declaration and enforcement of a 31% fee as
opposed to a 25% fee.” CR3 423.
In that same pleading, the Flores tendered a 25% contingent fee
plus case expenses to González, thereby admitting that “good cause” for
termination of the Contract was no longer a viable defense:
[The Flores] … agree to tender the agreed $1,500,00.00 (25%
of the $6,000,000.00 insurance proceeds) and reimbursable
expenses for the underlying cause of action ($14,329.30) for a
total of $1,514,329.30. CR3 423 at ¶ 13 (emphasis added).
. . . .
It is [the Flores’] understanding of the effect of the Court’s
order that [the Flores’] affirmative claims seeking partial or
full disgorgement of attorney’s fees are gone and all that is
left before the Court is the breach of contract claim wherein
[González] is seeking a declaration and enforcement of a 31%
fee as opposed to a 25% fee. CR3 423 at ¶ 15 (emphasis added).
At the December 4, 2014 Pretrial Hearing, the Flores confirmed their
partial tender under the Contract:
MR. PENA: Your Honor, what - - what we’ve done is - - yeah,
what we’re seeking to enforce is the 25 percent,
19
which is what was promised. That’s it. And we’ve
tendered it. RR8 63:20-23 (emphasis added).9
Having tendered 25% under the Contract, the Flores necessarily
abandoned a “good cause” avoidance defense. The only disputed issue
was whether González would get the full 31% or just the 25% tendered.
In fact, González accepted the tender of the undisputed 25%, and the
Flores indicated a willingness to have the Trial Court disburse that
amount of the fee to González. CR3 397-401; CR3 421; CR3 496-503.
Ultimately, funds were not disbursed only because the parties could not
agree on how much of a “reserve” to leave in the registry for González’s
attorney fee claim.
During the December Pre-Trial Hearing, the Flores further
admitted, and the Court ruled, that any facts supporting an alleged
avoidance defense of “good cause” were no longer at issue:
MR. DAVIS: But I don't think it is a defense but the court has
ruled on all the alleged misrepresentations of -- of
whatever nature. In fact, they're listed in -- in this
motion. I asked that Ms. Flores and Mr. Flores list
them all. And that was the subject of the court's
ruling.
9 González also requested, under Texas Rule of Evidence § 201, that the Court take
judicial notice that the Flores had tendered a 25% contingent fee to González, thus
waiving their alleged defense of “good cause” for avoiding the Contract. CR5 305-09.
20
MR. PENA: And -- and those are the ones --the ones that are
listed, we agreed with. We are not going to get into
those at trial.
THE COURT: Okay. Now -- now I'm not sure I'm following you.
MR. PENA: The -- the seven -- the seven that they've listed,
those actual allegations.
THE COURT: Okay. You -- you're agreeing that you're not going
to get into those?
MR. PENA: Correct, Mr. –
THE COURT: Okay. Then that moots this one. Okay. That's
already taken care of then. Let's move on.
RR8 65:5-23 (emphasis added).
During the same hearing, everyone again confirmed that “good
cause” was no longer an issue.
MR. DAVIS: Well, the -- the cause for termination is no
longer an issue given the court’s ruling so we
really have this question: They say an
agreement was modified, we say it wasn't
and, even if it were, it wouldn't be valid
legally. So that’s – that’s the issue. So the
only evidence in that conversation that
would be relevant to that is when Mr. Flores
says, we’re not paying you anything. You
have to sue us. That’s all. The other stuff
isn't relevant because that shows that they
weren't trying to enforce any contract
modified to 25 percent, even to 10 percent at
21
that time, because the testimony was we felt
at that time he was not entitled to a dime.
MR. PENA: And, Your Honor, and that brings up all the
context issues of why. They went there to
have a discussion for a reason and they were
upset and there was a laundry list of things
they were upset about and –
THE COURT: Right, but none of those things were
conditions of the contract.
MR. PENA: No, I know that, Your Honor, but the fact
that on the termination, if that was said, you
have to sue us, there's no reason for that.
That would be unfairly prejudicial to us and
that's why we’re asking for a Motion in
Limine. The fact that they were terminated
or he was terminated at that time and then
he filed suit for his fees would be the only
thing that’s relevant. It’s the same argument
that he was making on how he doesn’t want
to discuss any of the facts surrounding the
incident which we agreed to here. The fact
that he was terminated on May 9th and that
he sued for his fees on May 9th would be the
only thing. RR8 79:21-81:2 (emphasis
added).
Therefore, on February 27, 2015, González filed a Motion to Exclude
Evidence Regarding Cause for Discharge (“Motion to Exclude”) based, in
part, on the above-referenced admissions. CR5 443-453. In the Motion
to Exclude, González requested that the Trial Court take judicial notice
22
of the Flores’ admissions, which it did implicitly by granting the Motion.
CR5 447-448; CR5 693-694.
The parties ultimately agreed to and conducted a bench trial on
González’ breach of contract action. RR11 15:22-16:1. In addition to
testimony and evidence regarding the Contract, the Court heard expert
testimony on attorneys’ fees from González’ trial counsel and an
additional fee expert, Mr. Robert Valdez. RR11 106:8-180:7; RR12 8:12-
17:2. The Flores offered no controverting expert testimony or other
evidence to rebut the attorney fee testimony. RR12 39:1-7. The Court
found in favor of González on the Contract claim, and also awarded
González the fees and expenses incurred in enforcing the Contract. CR5
710-712; RR12 76:14-77:24.
SUMMARY OF THE ARGUMENT
The experienced Trial Court acted well within its discretion by: (a)
granting summary judgment on the Flores’ breach of fiduciary duty
claim; (b) excluding evidence of good cause; and (c) awarding González its
attorney’s fees.
23
The Trial Court properly granted summary judgment as to the
Flores’ breach of fiduciary duty claim. The Flores failed to provide more
than a scintilla of evidence of any breach and admitted that their
assertions were not supported by personal knowledge or other competent
evidence. In addition, and as an independent basis to affirm the Trial
Court, the Flores failed to produce any evidence that any alleged breach
resulted in either injury to them or a benefit to González. Thus, the
Flores failed to raise more than a scintilla of evidence as to multiple
elements of their claim.
In addition, even if taken as true, the Flores’ allegations could not,
as a matter of law, support a breach of fiduciary duty claim. It is
undisputed that the Flores fully and finally ratified the terms of the Rule
11 Settlement and, as recognized by the Trial Court, have no plausible
damages. In addition, the Flores unconditionally tendered a 25%
contingent fee to González, thereby abandoning any possible basis to
avoid their contractual obligations. For the foregoing reasons, the Trial
Court did not abuse its discretion by granting summary judgment.
24
The Trial Court also did not abuse its discretion in excluding
evidence of “good cause.” A review of the record shows that there were
several bases for the Trial Court’s ruling.
First, the Flores were required to specifically plead “good cause” as
an affirmative defense in avoidance, but repeatedly failed to timely do so.
Second, the Flores were required to specifically deny any conditions
precedent, but failed to do so, thereby foreclosing any argument that
González was required to prove “good cause” in order to succeed on its
breach of contract claim.
The Trial Court further properly denied the Flores’ belated motions
for leave because they were prejudicial on their face, as they inserted a
new cause of action and a new affirmative defense which González could
not have anticipated given the Flores’ prior pleadings, trial tactics, and
tender under the Contract. Moreover, the Flores’ admission that, for
tactical reasons, they had chosen not to timely assert a breach of contract
claim against González, weighs heavily in favor of the Trial Court’s
finding as to surprise. Accordingly, the Trial Court properly denied the
motions for leave.
25
Additionally, the final judgment would not have been affected by
the excluded evidence. Through their pleadings and statements on the
record, the Flores admitted that their only remaining defense was oral
modification, and circumstances surrounding the termination were no
longer at issue. These judicial admissions were conclusive as to the issue
of “good cause.” Accordingly, the Trial Court did not need to decide any
fact issues as to “good cause.”
Finally, and perhaps most telling, the Flores ratified the Contract
by tendering a 25% fee to González. Having ratified the Contract, the
Flores were estopped from seeking to avoid the same Contract via a “good
cause” defense – even if it had been properly plead. For the foregoing
reasons, the Trial Court did not abuse its discretion by excluding
evidence of “good cause.”
The Trial Court also did not err in awarding González its attorney’s
fees. González was not required to segregate its fees related to its
sanctions request because it is well-established that a sanctions request
does not constitute an independent cause of action requiring segregation.
26
In addition, in order for González to prevail on its breach of contract
claim, for which attorney’s fees are recoverable, it was necessary for
González to defeat the Flores’ competing claims relating to the same
Contract. Accordingly, González’ fees related to the sanctions request
were not required to be segregated since they were directed at
overcoming the Flores’ interrelated competing claims.
The Flores also argue that the Trial Court erred in awarding
González its attorney’s fees because González did not satisfy the Arthur
Andersen factors. See Arthur Andersen & Co. v. Perry Equip. Corp., 945
S.W.2d 812, 818 (Tex. 1997). However, the Flores’ argument is simply
not supported by the trial record, which shows that González satisfied
each of the Arthur Andersen factors through uncontroverted expert
testimony, even though a claimant is not required to satisfy each of the
factors.
For all of the foregoing reasons, the Court should affirm the Trial
Court.
ARGUMENT AND AUTHORITIES
I. THE TRIAL COURT PROPERLY GRANTED SUMMARY JUDGMENT ON
THE FLORES’ FIDUCIARY DUTY CLAIM
27
A. Standard of Review
When the summary judgment order does not specify the grounds
relied upon, the nonmovant is required to show that each ground alleged
in the motion is insufficient to support the judgment. Jones v. Hyman,
107 S.W.3d 830, 832 (Tex. App.—Dallas 2003, no pet.). Summary
judgment will be upheld if any one ground can be sustained. Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Siders v. State, 970 S.W.2d
189, 191–92 (Tex. App.—Dallas 1998, pet. denied).
The Summary Judgment Order does not state the grounds on which
it was granted. CR3 392-393. As a result, the Flores must show that
each ground alleged in the MSJ is insufficient to support the Order.
Jones, 107 S.W.3d at 832. In other words, the summary judgment must
be upheld if there is any one meritorious reason to uphold it. Dow Chem.
Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001); Wood v. Dawkins, 85
S.W.3d 312, 321 (Tex. App.—Amarillo 2002, pet. denied). As set forth
below, the Flores cannot show that each ground alleged in the MSJ is
insufficient. See Jones, 107 S.W.3d at 832. Accordingly, the Court should
affirm the Summary Judgment.
28
B. González was entitled to Summary Judgment because there
was no Breach of Fiduciary Duty as a Matter of Law.
González filed both no-evidence and traditional summary
judgments on the Flores’ breach of fiduciary duty claim, both of which
were granted in the Trial Court’s order.
A court may grant a no-evidence motion for summary judgment if
the movant can show that an adequate time for discovery has passed and
the non-movant has no evidence to support one or more essential
elements of his claim or defense. Tex. R. Civ. P. 166a(i). Unless a
plaintiff presents more than a scintilla of evidence to raise a fact issue as
to each challenged element, the motion must be granted. Id.; Ford Motor
Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Lindley v. McKnight,
349 S.W.3d 113, 126 (Tex. App.—Fort Worth 2011, no pet.) (“Conclusory
affidavits are not enough to raise fact issues”).
Likewise, traditional summary judgment is proper where there is
no genuine issue as to any material fact, and the moving party is entitled
to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Am. Tobacco Co.
v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). A movant must disprove at
29
least one element of each of the non-movant’s causes of action. Ward v.
Emmett, 37 S.W.3d 500, 501 (Tex. App.—San Antonio 2001, no pet.).
In order to establish their breach of fiduciary duty claim against
González, the Flores were required to prove that: (a) González and the
Flores had a fiduciary relationship; (b) González breached that fiduciary
duty; and (c) González’s breach resulted in (1) an injury to the Flores; or
(2) a benefit to González. See Graham Mortg. Corp. v Hall, 307 S.W.3d
472, 479 (Tex. App.—Dallas 2010, no pet.); see also Kinzbach Tool Co. v.
Corbett-Wallace Corp., 160 S.W.2d 509, 513–14 (Tex. 1942). The parties
do not contest the existence of a fiduciary relationship. However, the
Flores failed to create a fact issue on the next two elements of breach and
damages.
i. The Flores’ allegations were not supported by personal
knowledge or other competent evidence.
In their Fourth Petition, like in Ms. Flores’ deposition, the Flores
recited the Alleged Misrepresentations as a basis for the alleged breach
of fiduciary duty. CR1 568. As to each of these, the uncontroverted
summary judgment evidence conclusively established that there was no
genuine issue as to any material fact. CR1 975-978; CR1 1021-1024.
30
Shockingly, Ms. Flores, an experienced trial attorney practicing as
an Assistant District Attorney, admitted under cross-examination that
her sworn assertions regarding the Alleged Misrepresentations were not
supported by personal knowledge or any other admissible evidence:
Q. All right. And where do you work?
A. I’m a prosecutor at the Hidalgo County District Attorney’s
Office. CR1 429:23-25.
. . . .
Q. What do you call when one person tells another person
something in the law?
A. Hearsay.
Q. Okay. And what you’ve just described is hearsay, correct?
A. Yes.
Q. Okay. Anything other than hearsay that you have sworn in a
pleading, in a court that Jaime Gonzalez is a shareholder of
the McAllen Country Club?
MR. PENA: Objection, form.
A. Anything? No, I don’t have anything else.
Q. Okay. In other words, that is based upon a hearsay statement
made to you by another prosecutor at the courthouse?
A. Yes. CR1 243:23-244:12.
. . . .
Q. (By Mr. Davis) My questions is, you do not know what John
Griffith valued this case at?
A. No. CR1 248:9-11.
. . . .
Q. (By Mr. Davis) Okay. With regard to the interest in [APT],
you don’t have any personal knowledge whether Jaime
González has any ownership interest in this company,
correct?
A. Correct. CR1 249:10-14.
. . . .
31
Q. Okay. So you don’t have a foundation one way or the other to
tell us what Jaime González did, if anything, to determine the
net worth of McAllen Country Club?
A. Correct. CR1 253:14-18.
Thus, even before addressing the lack of merit in the Alleged
Misrepresentations, they were based entirely on speculation and
conjecture, which Texas courts have repeatedly found to be insufficient
to defeat summary judgment Id.
ii. The Flores’ allegations were nonsensical, immaterial,
and insufficient to support a breach of fiduciary duty
claim.
Beyond the fatal lack of evidentiary foundation, the Alleged
Misrepresentations were also nonsensical, immaterial, and insufficient to
support a breach of fiduciary duty claim. For example, the Flores alleged
that González misrepresented that Mr. Griffith had asserted that the
Flores’ case was only worth two to three million dollars. CR1 819:10-16.
However, Ms. Flores admitted there was no evidence of what Mr.
Griffith’s value of the case was at any point in the negotiation, before
actual settlement. CR1 620:9-17; see supra at 31.
The Flores further alleged that González concealed an alleged
ownership of stock in MCC. CR1 813:11-814:3; CR1 819:16-820:1. Ms.
32
Flores filed a signed verification that the allegation was “true and correct”
and based on her “personal knowledge.” CR1 141-142. She later admitted
under oath and subject to penalty of perjury that the allegation was, in
fact, based entirely on hearsay, and therefore her verification was false.
CR1 243:23-244:12. In yet another contradiction, Ms. Flores claimed that
when she hired the firm, Mr. González disclosed that he was a member
of MCC:
A. … Another misrepresentation that he told me was - - I had to
ask him, are you a member at the country club? And he told
me, yes, but I’m fearless. CR1 1004:16-19.
The only competent summary judgment evidence, however,
demonstrated that Mr. González was neither a member nor a
shareholder of MCC. CR1 717:3-5; CR1 718:9-719:6. Either way, even
under her version of the facts, she was complaining about a relationship
that was disclosed to her when she hired González.
The Flores further alleged that González failed to disclose an
ownership interest in APT, a litigation support company that performed
services for González. CR1 819:25-820:9. However, during her deposition,
Ms. Flores admitted that any expenses relating to APT were not charged
33
to her. CR1 825:3-6. Moreover, González (as opposed to his wife)10, in
fact, had no ownership interest in APT. CR1 621:5-623:6; CR1 713:10-
715:1. The nonsensical nature of this allegation is clear: the Flores
complain about free services provided for their benefit.
The Flores also alleged that González failed to recover Joel Flores,
Jr.’s clothing and belongings. CR1 807:4-809:20; CR1 802:3-806:9.
However, the Flores admitted that the clothing had to be retained by
authorities during the pendency of the criminal investigation. CR1
607:4-609:20; CR1 666. Moreover, securing the clothing was not a part
of the Contract, nor obviously did those actions result in a benefit to
González. CR1 638-640; CR1 651-652.
The Flores also alleged González failed to communicate with the
media as the Flores requested. CR1 815:7-817:19; CR1 802:3-806:9.
However, the Flores admitted this service was not part of the Contract
and was only requested as a “favor.” CR1 614:7-616:23.
The Flores also alleged that González failed to properly
10 Since the Flores were never charged for the APT services, the allegation is patently
irrelevant. Nevertheless, even the allegation of ownership was false since the
company is owned by Gonzalez’s wife and the couple have a marital property
agreement providing for no community property. CR2 139:4-140:8.
34
communicate the status of the case with them. CR1 803:17-24. However,
the Flores failed to complain about communication until March of 2014,
months after the Rule 11 Settlement was executed and embraced by them
in the St. Frances ceremony. CR1 602:3-606:9; CR1 642-644; CR1 649 at
¶ 19; CR1 669. Any allegation regarding communication was made only
after the Flores decided to stiff González. Even accepting the allegation
as true, it cannot as a matter of law constitute breach of fiduciary duty.
See Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d
416, 436 (Tex. App.—Austin 2009, no pet.) (If the gist of a plaintiff’s
complaint is that a lawyer “failed to advise, inform, or communicate with
a client, it is a negligence claim.”).11
The Flores further alleged that González misrepresented MCC’s net
worth. CR1 820:9-16. However, González relied on MCC’s representation
of its net worth in sworn interrogatory responses, and there was no
evidence that González was informed of any other value. CR1 618:9-16;
CR1 701; CR1 720:20-721:16. Again, the nonsensical nature of the Flores’
11 Similarly, a professional negligence claim cannot be “fractured” out into a breach
of contract claim, “because the real issue remains one of whether the professional
exercised that degree of care, skill, and diligence that professionals of ordinary skill
and knowledge commonly possess and exercise.” Beck, 284 S.W.3d at 426–27.
35
complaint is clear – they complain that their lawyer informed them of
what the opposing party included in sworn discovery responses. Id. More
importantly, when later given the opportunity to set aside the settlement,
the Flores prudently declined and accepted the excellent settlement
obtained by González – regardless of what they thought MCC’s net worth
was. CR3 320-323; CR3 324.
For all of the foregoing reasons, González established that there
was no genuine issue as to any material fact with respect to the existence
of any breach based on the Alleged Misrepresentations. See Tex. R. Civ.
P. 166a(c); Burrow v. Arce, 997 S.W.2d 229, 237 (Tex. 1999); Grinnell,
951 S.W.2d at 425.
The Flores belatedly attempted to raise several additional alleged
misrepresentations in the untimely Fifth Petition; allegations which
were not disclosed during the Flores’ depositions. CR1 1039-1059; CR1
183; CR1 1002:11-1006:14. The summary judgment evidence
conclusively established that there was no genuine issue as to these
untimely allegations as well. CR1 974; Tex. R. Civ. P. 166a(c).
Specifically, the Flores alleged that González misrepresented that
it would accept a 25% fee when it actually intended to collect a 31% fee.
36
CR1 1039-1059. However, Ms. Flores testified that before she signed the
Contract, she discussed the contingent fee with González and asked
González to lower its normal rate of 40% to 31%, to which González
agreed, as reflected in the Contract. CR1 997:11-998:1; CR1 1026-1027.
Ms. Flores further testified that in March of 2014, months after accepting
the Rule 11 Settlement, she attempted to renegotiate the contract down
to 10%:
Q. When you in March [2014] attempted to renegotiate the
contract to 10 percent Mr. González was not willing to do that?
MR. PENA: Objection, form.
Q. (By Mr. Davis) Correct?
A. He – he said no. CR4 214:16-21.
Moreover, any claim that there was an oral modification from 31% to 25%
was properly considered and rejected by the Trial Court as being barred
by the statute of frauds, a ruling the Flores have not appealed. CR4 67-
75; CR5 697-698.
The Flores further alleged that González misrepresented the
urgency of settling the case. CR1 1039-1059. However, the Flores
admitted that they reviewed the Rule 11 Settlement, discussed it with
González, and agreed to its terms before they executed it. CR1 995:8-20;
CR1 1000:15-20. Moreover, the Flores participated in a spiritual
37
consummation of the settlement during the St. Frances ceremony. CR1
1001:5-9; CR1 1013-1015. Moreover, as the Trial Court noted, the Flores
ultimately accepted the settlement, rendering this allegation, as the
others, simply nonsensical. RR8 65:5-23; RR8 79:21-82:11.
The Flores further alleged that González misrepresented: (a) the
various terms, consequences, conditions, and/or obligations that would
result with the settlement of the case; and (b) the demeanor and
character of Mr. Griffith. CR1 1039-1059. As a threshold matter, it has
never been clear which terms, consequences, conditions, and/or
obligations were allegedly misrepresented. Moreover, as set forth above,
the Flores admitted that they reviewed the Rule 11 Settlement, discussed
it with González, and agreed to its terms before they executed it. CR1
995:8-20; CR1 1000:15-20. Accordingly, it is undisputed from their own
testimony that the Flores were aware of and understood the Rule 11
Settlement. Id. In addition, because the Flores have accepted the terms
of the Rule 11 Settlement, the statements, character, and demeanor of
Mr. Griffith, if ever relevant, are moot and irrelevant to this appeal. Id.
iii. The Flores also failed to show that they were harmed or
that González benefitted from any alleged breach.
38
The Flores also failed to produce any evidence that the Alleged
Misrepresentations resulted in injury to them or a benefit to González.
See Graham Mortg. Corp., 307 S.W.3d at 479. Instead, the summary
judgment evidence established that Ms. Flores was unable to articulate
any harm caused by the Alleged Misrepresentations. CR1 825:3-6, 828:6-
24. The lack of harm is further evidenced by the Flores’ acceptance of the
terms of the Rule 11 Settlement:
Q. The settlement agreement was for how much?
A. It was for $6 million, policy limits; $250,000 to be paid to a
nonprofit organization in memory of my son; and payments of
$50,000 per year for the next five years. It included a former
(sic) apology from board members, directors, lifeguards from
the country club to us and an opportunity for us to address
them. . . . CR1 791:23-792:8.
. . . .
Q. (By Mr. Davis) Okay… [A]ll the benefits that you received
under the settlement agreement[,] that was negotiated by
González & Associates on your behalf?
A. Yes. CR1 794:17-21.
The only benefit González stood to gain was the agreed upon fee.
Relying on the same discredited Alleged Misrepresentations, the
Flores also assert that the Trial Court incorrectly concluded that
González proved as a matter of law that it treated the Flores with
“absolute and perfect candor, [and] openness and honesty.” Appellants’
39
Brief at 27. In addition to the fatal factual flaws, the legal authorities
relied upon by the Flores do not support their argument.
For example, in Perez, lawyers told an individual that they were
his attorneys, elicited a confidential statement from him, and later
disclosed the statement to the district attorney without his consent.
Perez v. Kirk & Carrigan, 822 S.W.2d 261, 265–66 (Tex. App.—Corpus
Christi 1991, writ denied). Unsurprisingly, the court found that the firm
had not treated the individual with “most abundant good faith.” Id. The
court simply recognized that lawyers cannot use a client’s confidential
information without consent in order to advance the lawyer’s interest.
Id. Such a situation does not exist in this case, nor has it even been
alleged.
The Flores also assert that they were not required to prove actual
damages in order to recover for breach of fiduciary duty. Appellants’
Brief at 31. The cases cited by the Flores explain that when an attorney
breaches his fiduciary duty via disloyalty, the attorney-client
relationship is harmed, and fee forfeiture is viewed as a means of
preventing such abuses of trust. Burrow, 997 S.W.2d at 238; Adame v.
Law Office of Allison & Huerta, No. 13-04-670-CV, 2008 WL 2151454, at
40
*7 (Tex. App.—Corpus Christi May 22, 2008, pet. denied) (mem. op.).
These same cases demonstrate why the Flores’ allegations do not
constitute disloyalty or a breach of fiduciary duty. Burrow, 997 S.W.2d
at 238; Adame, 2008 WL 2151454, at *7.
For example, in Adame, a case involving allegations similar to the
Flores’, the court of appeals affirmed summary judgment when the
plaintiffs based their claims on “conjecture and weak circumstantial
evidence.” Adame, 2008 WL 2151454, at *9. The Adame Court
emphasized that while a plaintiff may not have to prove damages if they
prove a breach, they still must first present evidence of a breach. See id.
at *12 (“Appellants do not point to a single affidavit or other proof that
any dissident-appellant was in fact impacted or was the victim of a
breach of fiduciary duty.”). As in Adame, the Flores failed to raise a fact
issue concerning a breach and cannot create one by simply reciting the
discredited Alleged Misrepresentations.
Likewise, the Burrow court noted that the remedy of fee forfeiture
is restricted to “clear and serious” violations, and that “[i]t would be
inequitable for an agent who had performed extensive services faithfully
to be denied all compensation for some slight, inadvertent misconduct
41
that left the principal unharmed.” Burrow, 997 S.W.2d at 241. The
Flores never alleged a “clear and serious” breach of fiduciary duty, but
instead cobbled together a series of immaterial and subjectively
perceived micro-slights that were not supported by personal knowledge
or any other admissible evidence. CR1 852-55; CR1 822:21-827:18.
Moreover, the Flores failed to allege any impact from any of the Alleged
Misrepresentations, as they have accepted the settlement.
For all of the foregoing reasons, González was entitled to summary
judgment on the Flores’ claim for breach of fiduciary duty, and this Court
should affirm the Trial Court.
C. The Presumption of Unfairness does not Apply.
The Flores assert that their “pleadings are replete with references”
to “self-dealing” and that, as a result: (1) the Trial Court should have
applied a “presumption of unfairness;” (2) the burden of proof for
negating this presumption should have been switched to González; and
(3) the Trial Court failed to hold González to that burden. Appellants’
Brief at 23-24. In support, the Flores recite the previously discredited
APT allegation and MCC stock allegation. Appellants’ Brief at 24. As
explained in detail above, the summary judgment evidence established
42
that neither allegation supported a finding of self-dealing. However, both
allegations highlight the desperate and frivolous nature of the Flores’
campaign to avoid paying González its fee.
Self-dealing occurs when “the fiduciary uses the advantage of his
position to gain a benefit at the expense of those to whom he owes a
fiduciary duty.” Mims-Brown v. Brown, 428 S.W.3d 366, 374 (Tex. App.—
Dallas 2014, no pet.). Thus, “[w]hen an agent engages in self-dealing in
a transaction with his principal, the transaction is presumptively unfair.”
In re Estate of Miller, 446 S.W.3d 445, 453 (Tex. App.—Tyler 2014, no
pet.) (emphasis added).
The uncontroverted summary judgment evidence shows that the
APT allegation fails to satisfy the definition of self-dealing as a matter of
law. See Mims-Brown, 428 S.W.3d at 374. First, González (as opposed
to his wife) had no ownership interest in APT. CR1 621:5-623:6; CR1
713:10-715:1 Second, and perhaps most importantly, the Flores
admitted that they were never charged for services rendered by APT.
CR1 245:25-246-9; CR1 1024; CR2 107; CR2 137:10-139:1. As a result, it
was the Flores, not González, who gained a benefit in the form of free
litigation support services provided by APT. Id.; see Mims-Brown, 428
43
S.W.3d at 374. Accordingly, the APT allegation cannot constitute self-
dealing.
The MCC stock allegation also fails to satisfy the definition of self-
dealing as a matter of law. See Mims-Brown, 428 S.W.3d at 374. First,
Ms. Flores admitted that this allegation was based entirely on hearsay.
CR1 141-142; CR1 243:23-244:12. In addition, Ms. Flores claimed that
when she hired the firm, Mr. González did disclose that he was a member
of MCC, and with that knowledge, they proceeded to hire the firm. CR1
1004:16-19. While the only competent summary judgment evidence
showed that Mr. González was neither a member nor a shareholder of
MCC, even accepting Ms. Flores’ own testimony as true, this cannot be a
basis for self-dealing as a matter of law, given that: (a) Ms. Flores admits
the disclosure at the time of engagement; and (b) the Flores nevertheless
hired González and accepted the Rule 11 Settlement. CR2 141:3-8; CR2
145:9-146:6.
Moreover, like the APT allegation, the MCC allegation is simply
nonsensical. A shareholder does not benefit from his shareholder status
by suing the entity in which he owns shares and causing them to pay a
multimillion dollar settlement - over and beyond insurance limits. The
44
summary judgment evidence conclusively establishes that González did
not receive a benefit at the expense of the Flores. Id.; see Mims-Brown,
428 S.W.3d at 374. As a result, the Flores’ allegations fail to satisfy the
definition of self-dealing as a matter of law. Accordingly, the
presumption of unfairness does not apply.
In addition, Texas courts have emphasized that the presumption of
unfairness never attaches where an attorney negotiates a fee agreement
at arm’s-length with a sophisticated party. See Tanox, Inc. v. Akin,
Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 264–65 (Tex.
App.—Houston [14th Dist.] 2003, pet. denied). Ms. Flores, an
experienced trial attorney, negotiated the Contract at arm’s length on her
and her husband’s behalf. CR2 70; CR3 242. Moreover, prior to executing
the Contract, Ms. Flores shrewdly negotiated a fee reduction from 40% to
31%. CR2 70; CR2 86-87. Accordingly, as evidenced by its own terms,
the Contract was negotiated at arm’s length by a sophisticated attorney.
Id. As a result, the presumption of unfairness never attached to the
Contract. See Tanox, Inc., 105 S.W.3d at 264–65.
In addition, the cases cited by the Flores concerning the
presumption of unfairness do not support their position. Appellants’
45
Brief at 23-24. For example, in Bright, a fiduciary occupied roles as both
lawyer and business partner to his clients. Bright v. Addison, 171 S.W.3d
588, 597 (Tex. App.—Dallas 2005, pet. denied). The parties stipulated to
the “self-dealing” facts – i.e., that the fiduciary had taken advantage of a
business opportunity for his own benefit without telling his clients. Id.
Here, far from stipulating to self-dealing, González never benefitted from
any opportunity to the detriment of the Flores. CR1 245:25-246-9; CR1
1024; CR2 107; CR2 137:10-139:1; CR2 141:3-8; CR2 145:9-146:6.
Accordingly, the standards and duties referenced in Bright do not apply
because the Flores’ allegations do not constitute self-dealing. See Bright,
171 S.W.3d at 597.
Another case cited by the Flores involved an attorney who
apportioned the real property of an elderly and unsophisticated client
without adequately informing her, then took one-third of it as his fee.
Cole v. Plummer, 559 S.W.2d 87, 88 (Tex. Civ. App.—Eastland 1977, writ
ref’d n.r.e.). Here, unlike Cole, the Flores were far from unsophisticated.
CR3 242. Moreover, as explained above, there has been no evidence of
any self-dealing. In fact, the Flores have readily accepted the benefits of
González’s services. The nonsensical APT and MCC allegations cannot,
46
as a matter of law, constitute self-dealing unlike the egregious facts
present in Cole.
Similarly, in Jackson, a law firm failed to reduce its fee agreement
to writing, inflated the legal fees charged to the client and charged the
client for defending themselves against a grievance from the client’s
husband. Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 20 (Tex.
App.—Tyler 2000, pet. denied). As a prerequisite to continued
representation, the law firm then coerced the client into assigning to the
firm, proceeds from properties without telling the client that such action
violated existing court orders, and could have subjected the client to
contempt. Id. In stark contrast to the instant case, Jackson involved
clear instances of self-dealing and coercion by the fiduciary to the
detriment of the client. See id.
For the foregoing reasons the Trial Court was not required to apply
the presumption of unfairness. Moreover, it is not clear from the
Summary Judgment Order that the Trial Court did not consider the
presumption of unfairness in its analysis. Accordingly, the Trial Court
should be affirmed on any basis asserted in the MSJ. See Jones, 107
S.W.3d at 832.
47
For all of the foregoing reasons the Trial Court did not err in
granting the MSJ.
II. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY EXCLUDING
EVIDENCE OF GOOD CAUSE
A. Standard of review
In order to obtain a reversal based on a trial court’s decision to
exclude evidence, the appellant must show: (1) that the trial court did in
fact commit error; and (2) that the error was reasonably calculated to
cause and probably did cause rendition of an improper judgment. Gee v.
Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex. 1989). In other
words, the complaining party should show “that the judgment turns on
the particular evidence excluded. . . . .” City of Brownsville v. Alvarado,
897 S.W.2d 750, 753–54 (Tex. 1995). An appellate court “must uphold
the trial court's evidentiary rulings if there is any legitimate basis in the
record for the rulings.” Lindley, 349 S.W.3d at 126.
B. The Trial Court Properly Excluded Evidence of Good Cause
Because the Flores Tendered a 25% fee on the Same Contract
they Sought to Avoid.
The Trial Court properly excluded evidence of good cause because
the Flores tendered a 25% fee on the same Contract they sought to avoid.
48
CR3 397-401; CR3 421; CR3 496-503. Having tendered the 25% portion
of the fee, the Flores could not then seek to avoid the Contract. See State
Fair of Tex. v. Seay, 98 S.W.2d 232, 234 (Tex. Civ. App.—Fort Worth
1936, writ dism’d) (holding that a defendant’s tender constitutes a
conclusive admission of “every fact which the plaintiff would be obliged
to prove in order to recover that money”). By tendering the 25% portion
of the fee, the Flores conclusively admitted every fact that González could
have been required to prove in order to recover the fee, including the
existence of and enforceability of the Contract. See id. Having tendered
the 25% fee, the defense of good cause was no longer relevant, and the
Trial Court properly excluded it.
C. The Trial Court Properly Excluded Evidence of Good Cause
Because of the Flores’ Repeated Failure to Comply with the
Pleading Rules and Deadlines.
The Trial Court properly excluded evidence of good cause because
of the Flores’ failure to comply with the pleading rules and deadlines.
i. Texas Rule of Civil Procedure 94 requires that
avoidance defenses be specifically plead, and the Flores
failed to do so.
Pursuant to Texas Rule of Civil Procedure 94, affirmative defenses
in avoidance must be specifically plead. Tex. R. Civ. P. 94; see MAN
49
Engines & Components, Inc. v. Shows, 434 S.W.3d 132, 136 (Tex. 2014).
The affirmative defense of “good cause” is subject to the requirements of
Rule 94 because it sets forth “an independent reason why the plaintiff
should not recover.” Id.; see also Howell v. Kelly, 534 S.W.2d 737, 740
(Tex. Civ. App.—Houston [1st Dist.] 1976, no writ) (stating that the
burden is on the party seeking to avoid contingent fee agreement to
specifically plead such defense). Accordingly, the Flores were required to
specifically plead “good cause” as an affirmative defense. See id. They
failed to do so.
ii. The Flores were also required to specifically deny any
conditions precedent they believed González had not
performed, and they failed to do so.
Similarly, if a party seeking affirmative relief alleges that all
conditions precedent have occurred, the defending party must specifically
deny any conditions that have not occurred. Tex. R. Civ. P. 54;
Greathouse v. Charter Nat’l Bank-Sw., 851 S.W.2d 173, 177 (Tex. 1992).
Where the defending party fails to specifically deny the conditions that
have not occurred, it admits that all conditions precedent occurred. Id.
Here, González timely plead that all conditions precedent had occurred.
CR1 732. Accordingly, the Flores were required to specifically deny any
50
conditions that they alleged had not occurred. See Tex. R. Civ. P. 54;
Greathouse, 851 S.W.2d at 177. They failed to do so.
iii. The Flores repeatedly failed to comply with the Trial
Court’s deadlines.
When a pretrial order establishes a deadline to amend pleadings, a
party must file amended pleadings according to those deadlines. Tex. R.
Civ. P. 63, 166; Mackey v. U.P. Enters., Inc., 935 S.W.2d 446, 461 (Tex.
App.—Tyler 1996, no writ); ForScan Corp. v. Dresser Indus., Inc., 789
S.W.2d 389, 393 (Tex. App.—Houston [14th Dist.] 1990, writ denied).
Pursuant to the First DCO, Flores’ pleading deadline was August
8, 2014. CR1 183-85. It is uncontroverted that as of August 8, 2014, the
Flores had failed to: (a) assert a breach of contract claim; (b) plead “good
cause” as an affirmative defense; or (c) specifically deny that González
had performed all conditions precedent. CR1 183-85; CR1 555-571; CR1
1039-1059; CR3 408-19; CR4 175-186. Accordingly, with respect to any
claim or defense potentially relating to “good cause,” the Flores failed to
comply with the pleading deadlines.12 Id.; Tex. R. Civ. P. 63, 166.
12 González’s Third Traditional Motion for Summary Judgment did not relieve the
Flores of the burden of pleading “good cause.” The Flores cannot avoid the fact that
they simply failed to plead good cause; nor would they have plead it, in light of the
fact that at the time the Third Traditional Motion for Summary was filed, the Flores
51
D. The Trial Court Properly Denied Leave for the Flores to
Amend their Pleadings.
When a party seeks to amend its pleadings after the deadline set
forth in the pretrial order, the party must secure leave of court. Tex. R.
Civ. P. 63, 166; Hart v. Moore, 952 S.W.2d 90, 95 (Tex. App.—Amarillo
1997, pet. denied). A trial court should not grant leave to amend where
the party opposing the amendment: (a) is able to show that the
amendment would cause surprise or prejudice; or (b) the amendment is
prejudicial on its face because it asserts a new cause of action or defense
that is calculated to surprise or would reshape the case. Greenhalgh v.
Serv. Lloyds Ins. Co., 787 S.W.2d 938, 939–40 (Tex. 1990); White v.
Sullins, 917 S.W.2d 158, 161 (Tex. App.—Beaumont 1996, writ denied).
i. The Flores’ untimely amendments were prejudicial on
their face.
An amendment is prejudicial on its face if: (a) it asserts a new
substantive matter that reshapes the nature of the trial itself; (b) the
opposing party could not have anticipated the amendment in light of the
prior development of the case; and (c) the opposing party's presentation
had already tendered a 25% fee to González and represented to the Court they were
not using such defense. CR3 397-401; CR3 421; CR3 496-503; CR4 190.
52
of the case would be detrimentally affected. See Dunnagan v. Watson,
204 S.W.3d 30, 38 (Tex. App.—Fort Worth 2006, pet. denied); see also
Greenhalgh, 787 S.W.2d at 939. The Flores’ proposed amendments were
prejudicial on their face because they included a new claim for breach of
contract and a new “good cause” affirmative defense which González
could not have anticipated given the Flores’ pleadings, trial tactics, and
affirmative representations to the contrary to the Trial Court and
parties. See id.
The Flores’ decision to add the breach of contract claim obviously
did not result from any recently discovered matters. In fact, during the
September Pre-Trial Conference, after the close of discovery, the Flores
assured the Trial Court that they had no breach of contract claim:
THE COURT: Okay. Then listen to my question: Do you agree
that there is no breach of contract agreement
against Mr. Gonzalez?
MR. PENA: That's correct. RR6 58:2-5.
. . . .
MR. PENA: There is no breach of contract claim against
Intervenor, that's correct. RR6 58:19-20
(emphasis added).
Later, at the February 2015 Pre-Trial Hearing, the Flores conceded they
had made a tactical decision to seek total disgorgement under a breach
53
of fiduciary claim rather than raise a claim that González breached the
Contract.
MR. PENA: Before we had affirmative claims for breach of
fiduciary duty. Our position was we could not
argue for breach of contract and then also assert
breach of fiduciary duty. The court granted
summary judgments against breach of fiduciary
duty, so, therefore, we're now -- we no longer have
a conflict between -- because we couldn't argue –
THE COURT: Well, but you made an election at that point in
time what you wanted to plead.
MR. PENA: That's correct, Your Honor, because, at the time,
we're fighting their breach of contract. RR10 24:4-
15.
In other words, the Flores intentionally chose to raise other affirmative
claims instead of a breach of contract claim, and only sought to raise a
contract claim after all of their other affirmative claims had been lost on
summary judgment. Id.
By that time, the deadline for amending pleadings had long since
passed. CR1 183. González (and the Trial Court) could not have
anticipated the breach of contract claim because the Flores had
specifically represented in open court that they had no breach of contract
54
claim. RR6 58:19-20. González’s case would have been detrimentally
affected as it would have conducted different discovery, hired different
experts, and pursued different defensive strategies but for the Flores’
affirmative representations to the Court and all parties that no breach of
contract action or avoidance defenses were being asserted. See
Dunnagan, 204 S.W.3d at 38. Accordingly, on this basis alone, the Trial
Court’s denial of the Flores’ Motions for Leave was proper.
ii. The Flores’ untimely amendments would have also
caused surprise and prejudice.
The Flores’ untimely breach of contract claim and “good cause”
affirmative defense would have caused surprise and prejudice. In
determining whether surprise exists, courts can consider the following:
(a) how long the suit had been on file before the amendment; (b) how close
to trial the amendment was filed; (c) whether the amendment presents a
new claim; (d) if the amendment presents a new claim, whether it is
based on recently discovered matters; and (e) whether the opposing party
alleged surprise and that it was not prepared to try the new claim.
Dunnagan, 204 S.W.3d at 38; see Hajdik v. Wingate, 753 S.W.2d 199,
203–04 (Tex. App.—Houston [1st Dist.] 1988), aff'd, 795 S.W.2d 717 (Tex.
55
1990); see also Stevenson v. Koutzarov, 795 S.W.2d 313, 321 (Tex. App.—
Houston [1st Dist.] 1990, writ denied).
The Hajdik court held that the trial court abused its discretion by
allowing an amendment adding a new cause of action “on the eve of trial,”
when the new claim was “not based on any late discovered matters, and
where the complaining party alleged surprise and that he was not
prepared to try the new cause of action.” Hajdik, 753 S.W.2d at 204.
Similarly, the Stevenson court held that the trial court abused its
discretion by allowing amendments where: (a) the amendments were
filed more than two years after the responding party was added to the
suit; (b) the amendments were made shortly before trial; (c) the
amendments pleadings introduced new claims; (d) the late claims were
not based on recently discovered matters; and (e) the responding party
alleged surprise and that they were not prepared to try the new claims.
Stevenson, 795 S.W.2d at 321. The Stevenson court specifically noted
that “[a] significant similarity between this case and Hajdik is the short
period between filing the amendment and trial.” Id.
Similar to Hajdik and Stevenson, the Sixth Petition would have
caused surprise and prejudice. On the eve of trial, the Flores attempted
56
to add a new breach of contract claim and good cause defense via the
Sixth Petition, which was filed two months after the pleading deadline,
and nearly a month after the Flores assured the Trial Court that they
had no breach of contract claim. CR1 70-73; CR1 183-185; CR3 402-406;
RR6 58:19-20. Moreover, the Flores’ attempted breach of contract claim
was not based on recently discovered matters, but instead resulted from
a tactical decision to assert other affirmative claims, which they then lost
on summary judgment. RR10 24:4-15; see Dunnagan, 204 S.W.3d at 38.
González demonstrated surprise and prejudice:
“[T]he deadline to amend pleadings pursuant to the DCO has
long since passed.”
“[The Flores] have acknowledged on the record that the DCO
deadlines have been frozen.”
“[W]hen [the Flores] filed their Fifth Amended Petitions at the
close of discovery, they failed to assert a cause of action for
breach of contract.”
“[T]he requested amendment was filed approximately three
weeks after the originally scheduled trial date and presents
an entirely new claim for breach of contract, which is not
based on recently discovered matters.”
“[T]he discovery period has closed and González cannot
conduct discovery on a new breach of contract claim.”
57
“Prior to the close of discovery, [the Flores] maintained that
they were not asserting a claim for breach of contract.”
“González relied on [the Flores’] pleadings in conducting
discovery, securing expert witnesses, engaging in summary
judgment procedure, and engaging in pre-trial preparations.”
“If [the Flores] had timely asserted a claim against González
for breach of contract, González’s preparations would have
been much different in that: (a) González would have
propounded written discovery to [the Flores] regarding a
breach of contract claim; (b) González would have examined
[the Flores] regarding a breach of contract claim during their
depositions; (c) González would have secured expert
testimony to defeat a breach of contract claim by [the Flores];
(d) González would have requested summary judgment on a
breach of contract claim by [the Flores]; and (e) González
would have prepared motions to exclude, motions in limine,
and other pretrial motions relating to such claim.”
“even when questioned by the Court, [the Flores] have clearly
asserted that they do not have any contract claims against
González.”
CR3 499-501 (emphasis added). During the October 2014 Status
Conference, González again explained:
MR. DAVIS: [the Sixth Petition is] beyond the scheduling order,
it’s beyond the court’s clear instructions when both
parties announced ready.
RR7 75:7-9.
. . . .
MR. DAVIS: So, Judge, are we prejudiced and does this
constitute surprise and prejudice even if there
58
were not a clear order from the court? The answer
is yes. RR7 74:12-14.
. . . .
MR. DAVIS: It would be a much different case, Judge, if – if 10
months ago, they alleged, hey we have this oral
agreement . . . if they did that, it would be a much
different case. RR7 74:18-22 (emphasis added).
In light of that procedural history and record, the Trial Court did
not abuse its sound discretion when it denied the Motion for Leave. See
Air Products and Chemicals, Inc. v. Odfjell Seachem A/S, 305 S.W.3d 87,
94–95 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (amendments would
have reshaped the litigation when the party opposing the amendment
argued that “if the trial court allowed the amendment, it would need to
designate additional witnesses . . . and that it would need to conduct
additional discovery”).
When the Trial Court denied the Second Motion for Leave, the
status of the case had not changed. CR4 56; RR10 29:10-11. All deadlines
remained “frozen.” CR1 183-185; RR6 88:16-89:8. Accordingly, there was
no newly discovered evidence to support a breach of contract claim or a
“good cause” defense. Id.; RR10 26:15-17; see Dunnagan, 204 S.W.3d at
38; Hajdik, 753 S.W.2d at 204. Moreover, González again established
surprise and prejudice:
59
JUDGE: Okay. And my question to you is . . . as of right
now, could you respond to that argument about
surprise.
MR. DAVIS: Absolutely, Judge. And – and we'll take notice of -
- of the written arguments we've made on that
issue, but the surprise is this . . . They did not
allege a breach of contract. In fact, the transcripts,
and -- and you'll recall because it's cited, you said,
“answer me, Mr. Pena, do you have a breach of
contract?” He said “no” . . . And so they chose not
to have an affirmative claim. So -- so, now, all of a
sudden, having lost those on summary judgment,
they say, okay, okay, maybe it's a breach of
contract. And not only is that a change of the case,
but it's also done past the pleading deadlines, past
the time that this court has already denied leave
to do the same thing and it dramatically changes
it because my client has been fighting and
spending good money on the fraud and fiduciary
duty . . . But they never sought to enforce, Judge,
and this is key, they never sought to enforce a
contract on the alleged modified basis. . . . This
case was about a total disgorgement. So it does
change the entire nature of the case. It would have
changed the amount of discovery, both written
discovery and the depositions that we have taken
in this case. RR10 25:7-26:17.
MR. DAVIS: And so, Judge, there is tremendous amount of
surprise and prejudice. RR10 27:12-13 (emphasis
added).
See Dunnagan, 204 S.W.3d at 38; Hajdik, 753 S.W.2d at 204. The Trial
Court did not abuse its discretion in denying the Second Motion for Leave
60
and the Supplemental Answer and Counterclaim. See Air Products, 305
S.W.3d at 94–95.
E. As a Separate and Independent Basis to Affirm the Trial
Court’s Ruling, The Judgment Rendered did not Turn on the
Excluded Evidence.
The Trial Court also did not err because the Judgment would not
have been affected by the excluded evidence. See Alvarado, 897 S.W.2d
at 753–54. A successful challenge to an evidentiary ruling requires a
showing that the judgment turns on the particular evidence, an analysis
that requires a review of the entire record. Id. at 754.
The Flores assert that the Trial Court erred by excluding evidence
of “good cause” because it was allegedly relevant to González’s breach of
contract claim. Appellants’ Brief at 36. However, the standard is not
whether the evidence was relevant, but whether the judgment turned on
the excluded evidence. Alvarado, 897 S.W.2d at 753–54.
As set forth above, the Flores failed to timely plead “good cause” as
an affirmative defense in avoidance. CR1 177-179; CR1 555-571; Tex. R.
Civ. P. 94; see Shows, 434 S.W.3d at 136. As a result, “good cause” was
not a “live” defense. Id.
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Similarly, the Flores were required to specifically deny that
González had performed all conditions precedent, but failed to do so. CR1
183-85; CR1 555-571; CR1 1039; CR3 408-19; CR4 175-186; Tex. R. Civ.
P. 54; Greathouse, 851 S.W.2d at 177. González was not required to prove
as a condition precedent, that it was discharged without “good cause.” Id.
In addition, a “good cause” defense was foreclosed through the
Flores’ own admissions. Clear and unequivocal assertions of fact
contained in a party’s live pleadings that are not plead in the alternative
are regarded as judicial admissions. Holy Cross Church of God in Christ
v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001); Mapco, Inc. v. Carter, 817
S.W.2d 686, 687 (Tex. 1991). Once established by judicial admissions,
no questions on the fact needs to be submitted to the fact finder. See
Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 905 (Tex. 2000)
(“A judicial admission ‘not only relieves [an] adversary from making proof of
the fact admitted but also bars the party himself from disputing it.’”) (internal
citations omitted).
In the Motion to Exclude, González requested that the Trial Court
take judicial notice that the Flores had admitted; (a) that their only
62
remaining defense was oral modification; (b) that the only relevant facts
regarding González’ termination were that González was terminated
and then sued the Flores for its fees; and (c) that the Alleged
Misrepresentations (“good cause’) were no longer at issue, would not be
addressed during the trial, and were moot. CR3 423; RR6 24:12-25:8;
RR6 25:9-12; RR6 38:11-15; RR8 79:21-81:2; RR8 63:5-23. The Trial
Court granted the Motion to Exclude in all respects, thereby taking
judicial notice of the Flores’ admissions. CR5 693-694. As “good cause”
was admittedly not an issue in the case, the excluded evidence was
not relevant.
Moreover, as set forth above, an avoidance defense of “good
cause” was not relevant because the Flores tendered a 25% fee on
the same Contract they sought to avoid. CR3 397-401; CR3 421; CR3
496-503. Having tendered the 25% portion of the fee, the Flores could
not then seek to avoid the Contract. See State Fair of Tex., 98 S.W.2d
at 234.
For all of the foregoing reasons, the Judgment did not turn on
the excluded evidence regarding “good cause.” See Alvarado, 897
63
S.W.2d at 753–54. Accordingly, this Court should affirm the Trial
Court’s exclusion of evidence.
III. THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY AWARDING
GONZÁLEZ ITS ATTORNEY’S FEES
At trial, the Court heard expert testimony on attorneys’ fees from
González’s trial counsel, as well as Mr. Robert Valdez. RR11 106:8-180:7;
RR12 8:12-17:2. The Flores, however, failed to timely designate an expert
on attorney’s fees and failed to offer any: (a) controverting expert
testimony; or (b) controverting evidence of any other kind. CR5 86; RR12
39:1-7. The expert testimony offered by González is thus accepted as true
as matter of law. See Ragsdale v. Progressive Voters League, 801 S.W.2d
880, 882 (Tex. 1990); AMX Enter’s., L.L.P. v. Master Realty Corp., 283
S.W.3d 506, 519–20 (Tex. App.—Fort Worth 2009, no pet.); Petco Animal
Supplies, Inc. v. Schuster, 144 S.W.3d 554, 567 (Tex. App.—Austin 2004,
no pet.).
A. Standard of Review
The trial court’s decision to award attorneys’ fees is reviewed under
an abuse of discretion of discretion standard. Comm'rs Court of Titus
Cnty. v. Agan, 940 S.W.2d 77, 81 (Tex. 1997); Llanes v. Davila, 133
64
S.W.3d 635, 640 (Tex. App.—Corpus Christi 2003, pet. denied) (citing
Ragsdale, 801 S.W.2d at 881. A trial court abuses its discretion only
when it rules “‘arbitrarily, unreasonably, or without regard to guiding
legal principles.’” Bexar Cnty. v. Deputy Sheriffs Ass‘n of Bexar Cnty.,
429 S.W.3d 673, 678 (Tex. App.—San Antonio 2014, no pet.) (citing
Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998)).
The amount of the award is reviewed under a legal sufficiency
standard. EMC Mortg. Corp. v. Davis, 167 S.W.3d 406, 418 (Tex. App.—
Austin 2005, pet. denied). An appellate court “must view the evidence
in a light that tends to support the disputed finding and disregard
evidence and inferences to the contrary.” Id.; see also Bexar Cnty., 429
S.W.3d at 677.
B. The Trial Court’s Award of Attorney’s Fees Was Not an Abuse
of Discretion
The Flores assert that segregation of fees was required. Appellants’
Brief at 52-54. The Flores’ argument is based on the flawed premise that
González’ request for frivolous pleading sanctions against the Flores
constitutes an independent cause of action, for which attorney’s fees are
not recoverable. See id.
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A claimant is required to segregate recoverable fees from
unrecoverable fees only when attorney’s fees relate solely to a claim for
which such fees are unrecoverable. Tony Gullo Motors I, L.P. v. Chapa,
212 S.W.3d 299, 313–14 (Tex. 2006). When legal services advance both
recoverable and unrecoverable claims, they become intertwined and do
not require segregation. Id. Also, when legal services are aimed at
overcoming defenses to recoverable claims, the party raising defenses
cannot suggest that overcoming such defenses was unnecessary. Id. at
314. Similarly, when an opposing party asserts a counterclaim that the
must be overcome to recover on the recoverable claim, the attorney’s fees
necessary to defeat that counterclaim are also recoverable and do not
have to be segregated. 7979 Airport Garage, L.L.C. v. Dollar Rent A Car
Sys., Inc., 245 S.W.3d 488, 507–09 (Tex. App.—Houston [14th Dist.] 2007,
pet. denied).
As a threshold matter and dispositive to the Flores’ argument,
González’s request for frivolous pleading sanctions does not constitute an
independent cause of action. See Mantri v. Bergman, 153 S.W.3d 715,
717 (Tex. App.—Dallas 2005, pet. denied) (noting that unlike a pending
cause of action, a pending motion for sanctions does not make an
66
otherwise final-judgment interlocutory); see also Lane Bank Equip. Co.
v. Smith S. Equip., Inc., 10 S.W.3d 308, 312 (Tex. 2000). Texas courts
treat requests for sanctions as motions, not as independent causes of
action. Mantri, 153 S.W.3d at 718. González was not required to
segregate its fees because González’ request for sanctions did not
constitute an independent cause of action for which segregation would be
required. Id.; see Lane Bank Equip. Co., 10 S.W.3d at 312.
The Flores cite Tony Gullo in support of their argument.
Appellants’ Brief at 54. However, in Wein v. Sherman, the appellate
court noted that Tony Gullo does not stand “for the proposition that
attorney’s fees must be segregated for purposes of a sanction award.”
Wein v. Sherman, No. 03-10-00499-CV, 2013 WL 4516013, at *9 n.12
(Tex. App.—Austin Aug. 23, 2013, no pet.) (mem. op.). The Wein court
further noted that the concept of segregation only applies to a party’s
principal claims, and that it had found no authority to support the
contention “that the concept of segregation of attorney’s fees applies to
the award of attorney’s fees as a sanction.” Id. Similarly, the court in
JNS Enter., Inc. v. Dixie Demolition, LLC, held that the general rules for
recovery of attorney’s fees do not apply to motions for sanctions. 430
67
S.W.3d 444, 459 (Tex. App.—Austin 2013, no pet.). As a result, the
Flores’ segregation argument fails.
In addition, González’ fees pertaining to its sanctions request were
not required to be segregated because such legal services were aimed
directly at overcoming the Flores’ claims, which was necessary in order
for González to recover on its own claims. CR1 732-33. González’ request
for frivolous pleading sanctions related directly to the Flores’ claims on
the Contract and the Rule 11 Settlement.
To prevail on its contract claim, González had to defeat the Flores’
claims relating to the same Contract and Rule 11 Settlement. CR1 555-
571; CR1 724-736. González’ request for frivolous pleading sanctions
was directly related to those very claims. CR1 732-33. González’ expert,
Mr. Valdez, explained in uncontroverted testimony that if there was a
misstep in defending against the Flores’ claims, it would have been “fatal”
to González’s claims. RR11 130:1-15. The Trial Court made the same
finding:
COURT: The court finds that the factual matters are so
intertwined as to the various claims, causes of
action and defensive matters so as to make any
segregation impractical and impossible because of
the intertwined nature of such, hereby awards
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attorneys’ fees in favor of the Plaintiff against the
Defendant and makes -- and also finds that they
are reasonable and necessary and customary in
the amounts of the -- at the trial court level. RR12
77:4-12.
Accordingly, the attorney’s fees related to González’s request for
sanctions were not required to be segregated. CR1 555-571; CR1 724-
736; see Tony Gullo, 212 S.W.3d at 313–14; 7979 Airport Garage, 245
S.W.3d at 507–09.
The Trial Court did not abuse its discretion in ruling that
González’s attorney’s fees were not required to be segregated, and should
be affirmed. See EMC Mortg. Corp., 167 S.W.3d at 418; Tony Gullo, 212
S.W.3d at 313–14; 7979 Airport Garage, 245 S.W.3d at 507–09.
C. González Satisfied the Arthur Andersen Factors.
The Flores next assert that González did not satisfy the Arthur
Andersen factors. However, at trial, González offered uncontroverted
expert testimony from its trial counsel and Mr. Valdez regarding the
factors. RR11 106:8-180:7; RR12 8:12-17:2. The Flores failed to offer any
controverting testimony or evidence. RR12 39:1-7. The testimony offered
by González at trial was therefore taken as true as matter of law by the
Trial Court. See Ragsdale, 801 S.W.2d at 882; AMX Enter’s., L.L.P., 283
69
S.W.3d at 520; Petco, 144 S.W.3d at 567. Accordingly, the Flores’
argument fails as a matter of law. Id.
The trial record shows that González satisfied each of the foregoing
factors even though a claimant is not required to make such a showing.
See EMC Mortg. Corp., 167 S.W.3d at 418–19. A claimant can meet its
burden in proving the reasonableness of its fee as long as the claimant
provides evidence of “some of the eight Arthur Andersen factors.” Id. at
419.
With respect to the first factor, the Flores allege that Mr. Valdez
did not explain why the prosecution of González’ claims and defenses
required the use of three different law firms for the total number of hours
expended. Appellants’ Brief at 56. However, Mr. Valdez testified that
after speaking with the attorneys and reviewing the docket sheet, he
determined that “the matter was lengthy and complex.” RR11 119:1-5.
Mr. Valdez reviewed the billing statements for each of the firms, and
explained the role of each in the case. RR11 124-128; RR11 129-131;
RR13 23-112. Mr. Valdez testified that he “did not find duplicative work.”
RR11 129. The work performed by Thornton, Biechlin, Segrato, Reynolds
& Guerra, L.C. was primarily in defense of the Flores’ claims against
70
González. RR11 129-30. The work performed by Davis & Santos,
Attorneys & Counselors, P.C. was primarily geared toward prosecuting
González’ claims against the Flores. Id. The work performed by the Law
Office of Fernando G. Mancias was primarily directed at trial efforts. Id.
Accordingly, the Flores’ argument as to the first Andersen factor fails.
With respect to the second factor, the Flores allege that Mr. Valdez
did not offer evidence that: (a) the three law firms were actually forced to
turn down work; or (b) he considered that the time spent was spread
across several attorneys and paralegals over the course of ten months.
Appellants’ Brief at 56-57. The Flores’ complaint with respect to the
second factor is fundamentally flawed because the analysis focuses on
“the likelihood that the acceptance of the employment will preclude other
employment by the lawyer.” Arthur Andersen, 945 S.W.2d at 818
(emphasis added). After his review of the docket sheet, timekeeper
summaries, and physical file, Mr. Valdez concluded that it was likely that
the firms were precluded from accepting other employment. RR11 142-
144. Accordingly, the Flores’ argument as to the second Andersen factor
also fails.
71
The Flores attack the remaining Andersen factors by alleging that
Mr. Valdez’s testimony with respect to each of those factors was
conclusory. Appellants’ Brief at 57-58. Again, the Flores’ argument is
not supported by the trial record, which shows that Mr. Valdez provided
detailed uncontroverted expert testimony as to each:
Factor 3: The fee customarily charged in the locality for similar
legal services.
Mr. Valdez testified that he had been “blessed with a lot
of work in the Rio Grande Valley” and that, as a result,
he was familiar with the rates charged there. RR11 144-
145. González’ attorneys fell within the range of rates.
RR11 145.
Factor 4: The amount involved and the results obtained.
Mr. Valdez testified that the posture of the case went
from González “defending against very serious
allegations of fraud and breach of fiduciary duty,
eliminating all of those as a matter of law, to where the
issues now are … what’s a reasonable fee for the
prosecution of this type of case. RR11 146.
Mr. Valdez further testified that based on his review of
how the case had progressed, the results obtained had
“been superior.” Id.
Factor 5: The time limitations imposed by the client or by the
circumstances. Arthur Andersen, 945 S.W.2d at 818.
72
Mr. Valdez testified that based on his review of the
docket sheet, “things were being pushed” and that the
case “didn’t lay around.” RR11 146.
Mr. Valdez further testified that there were at least two
different trial settings and a “very active motion
practice.” RR11 146-47.
Factor 6: The nature and length of the professional relationship
with the client.
Mr. Valdez testified that: (a) González enjoyed a “very
long and good relationship” with Thornton Biechlin and
Mancias; (b) that Thornton Biechlin and Mancias
introduced González to Davis & Santos; (c) “everybody
got along well to move the case forward;” and (d) the law
firms cooperated with the wishes of González. RR11
147.
Factor 7: The experience, reputation, and ability of the lawyer or
lawyers performing the services.
Mr. Valdez testified that: (a) he knew the attorneys from
Thornton Biechlin and Mancias from private practice;
(b) that he was familiar with Davis’ work in the Rio
Grande Valley; (c) that González’ attorneys enjoyed
“very good reputations” in the Rio Grande Valley; and
(d) they had tried cases in the Rio Grande Valley with
good results. RR11 148.
Factor 8: Whether the fee is fixed or contingent on results
obtained or uncertainty of collection before the legal
services have been rendered.
Mr. Valdez testified that he was familiar with the billing
arrangement between González and its attorneys, and
73
that González’ attorneys charged González on an hourly
basis. RR11 148.
Mr. Valdez’s testimony was anything but conclusory.
Moreover, Coastal Transp. Co., the case on which the Flores
primarily rely, provides that “when a reliability challenge requires the
court to evaluate the underlying methodology, technique, or foundational
data used by the expert, an objection must be timely made so that the
trial court has the opportunity to conduct this analysis.” Coastal Transp.
Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 233 (Tex. 2004).
Flores failed to timely make such an objection. As a result, the Flores’
reliability challenge is now restricted to the face of the record. See id. To
challenge the reliability of Mr. Valdez’s testimony, the Flores must show
that it was conclusory on its face. See id. As illustrated throughout the
trial record, Mr. Valdez’s testimony was specific and based on a careful
review of the file.
For all of the foregoing reasons, viewing the evidence in a light that
tends to support the trial court’s ruling, and disregarding evidence and
inferences to the contrary, the Trial Court did not abuse its discretion in
74
its attorney’s fee award and should be affirmed. EMC Mortg. Corp., 167
S.W.3d at 418; Arthur Andersen, 945 S.W.2d at 818.
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellee requests that
this Court: (a) deny the Flores’ requested relief in all respects; (b) affirm
the September 25, 2014 Order granting Appellee’s summary judgment as
to the Flores’ claim for breach of fiduciary duty; (c) affirm the March 23,
2015 Final Judgment; and (d) grant such other relief to which Appellee is
entitled.
Respectfully submitted,
DAVIS & SANTOS
ATTORNEYS & COUNSELORS, P.C.
112 E. Pecan Street, Suite 900
San Antonio, Texas 78205
Telephone: (210) 853-5882
Facsimile: (210) 200-8395
By: /s/ Jason Davis
Jason Davis
State Bar No. 00793592
Santos Vargas
State Bar No. 24047026
Attorneys for Appellee,
González & Associates Law Firm, Ltd.
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CERTIFICATE OF SERVICE
I hereby certify that on December 18, 2015, a true and correct copy
of this brief was forwarded in accordance with rule 9.5 of the Texas Rules
of Appellate Procedure to the following counsel of record:
Jaime Peña
State Bar No. 90001988
Pena Garcia Guerrero, PLLC
900 Kerria Avenue
McAllen, Texas 78501
(956) 948-2221– phone
(956) 422-6346
jpena@pgglex.com
Beth Watkins
State Bar No. 24037675
Shannon K. Dunn
State Bar No. 24074162
Law Office of Beth Watkins
926 Chulie Drive
San Antonio, Texas 78216
(210) 225-6666– phone
(210) 225-2300– fax
Beth.Watkins@WatkinsAppeals.com
Shannon.Dunn@WatkinsAppeals.com
/s/ Santos Vargas
SANTOS VARGAS
76
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using
Microsoft Word 2007 and contains 14,967 number of words, as
determined by the computer software’s word-count function, excluding
the sections of the document listed in Texas Rule of Appellate Procedure
9.4(i)(1).
/s/ Santos Vargas
SANTOS VARGAS
77