Anglo-Dutch Petroleum Int'l, Inc. v. Greenberg Peden, P.C.

• Decision Date: 13 October 2016
• Docket Number: NO. 14-14-00706-CV,14-14-00706-CV
• Citation: 522 S.W.3d 471
• Parties: ANGLO-DUTCH PETROLEUM INTERNATIONAL, INC., and Anglo-Dutch (Tenge), LLC, Appellants/Cross-Appellees v. GREENBERG PEDEN, P.C., and Gerard J. Swonke, Appellees/Cross-Appellants
• Court: Texas Court of Appeals

522 S.W.3d 471

ANGLO-DUTCH PETROLEUM INTERNATIONAL, INC., and Anglo-Dutch (Tenge), LLC, Appellants/Cross-Appellees

v.GREENBERG PEDEN, P.C., and Gerard J. Swonke, Appellees/Cross-Appellants

NO. 14-14-00706-CV

Court of Appeals of Texas, Houston (14th Dist.).

Opinion filed October 13, 2016

Rehearing Overruled February 7, 2017

Rehearing En Banc Overruled March 28, 2017

Ryan Bates, Joseph R. Marrs, Christopher S. Johns, David Louie, Houston, TX, for Appellants.

Joe M. Roden, Rusty Hardin, Jett Williams, III, William F. Hagans, Robert Joseph Kruckemeyer, Houston, TX, for Appellees.

Panel consists of Justices Christopher, Jamison, and Brown.

OPINION

Marc W. Brown, Justice

This is our second opportunity to review this case. Previously, we affirmed the trial court's January 2007 original final judgment. The January 2007 judgment was based on jury findings that the October 2000 contingency fee agreement at issue was between client Anglo-Dutch Petroleum International, Inc.¹ and attorney Gerard J. Swonke individually, that Anglo-Dutch breached the fee agreement, and Anglo-Dutch owed Swonke $1,000,000 for such breach. The trial court held a bench trial on and awarded Swonke attorney's fees. Anglo-Dutch appealed from the January 2007 judgment, which we affirmed.

The Texas Supreme Court granted Anglo-Dutch's petition for review, concluding that the fee agreement was unambiguous and plainly one with Greenberg Peden, P.C., instead of with Swonke individually. Anglo-Dutch Petroleum Int'l, Inc. v. Greenberg Peden, P.C. , 352 S.W.3d 445, 452–53 (Tex. 2011). The Court reversed our judgment and remanded to the trial court for further proceedings. Id. at 453.

On remand, the parties all moved the trial court to enter judgment. The trial court held a jury trial on Anglo-Dutch's attorney's fees. The trial court issued its final judgment in May 2014, ordering that Anglo-Dutch pay Swonke (by assignment from Greenberg Peden) $306,000 plus $42,127.40 in prejudgment interest, that Anglo-Dutch take nothing on its claim for attorney's fees, and that Anglo-Dutch pay postjudgment interest on the amount of $348,127.40 at the rate of 8.25% from the date of the original final judgment until paid. Anglo-Dutch appealed, and Greenberg Peden and Swonke cross-appealed. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Anglo-Dutch was primarily represented in the underlying matter² by the firm McConn & Williams. During the litigation, the firm Greenberg Peden dissolved and Swonke moved to McConn & Williams, where he continued to work on the underlying matter. The underlying matter was tried and in April 2004 ultimately settled for $51 million (hereinafter, the "Halliburton settlement"). See id. at 449. Greenberg Peden assigned "all rights it has in and under" and "all of its interest in and under" the fee agreement to Swonke. A dispute ensued over whether the fee agreement was with Swonke individually or Greenberg Peden and over the proper calculation of the amount Anglo-Dutch owed.

Anglo-Dutch filed suit against Swonke and Greenberg Peden seeking a declaratory judgment in connection with the fee agreement.³ Swonke counterclaimed for declaratory judgment and breach of contract as to himself individually.⁴ In May 2006, Anglo-Dutch offered Greenberg Peden a check for $323,650.53, representing the principal sum owed under the fee agreement, plus interest from the time of the Halliburton settlement. Greenberg Peden refused the check. The jury found that the fee agreement, which the trial court had found to be ambiguous, was between Anglo-Dutch and Swonke individually. The jury also found that Anglo-Dutch failed to comply with the fee agreement and awarded Swonke $1,000,000 in contract damages. The parties held an evidentiary hearing on attorney's fees, and the trial court issued its final judgment in January 2007.

The Texas Supreme Court explicitly concluded that the fee agreement at issue was unambiguous and was between Anglo-Dutch and Greenberg Peden. Id. at 452–53. Accordingly, the Court reversed the judgment of our court, which had affirmed the trial court's January 2007 judgment, and remanded for further proceedings. Id. at 453.⁵

Post-remand, Anglo-Dutch moved for entry of final judgment and attorney's fees. Anglo-Dutch requested the trial court declare that the fee agreement is between Anglo-Dutch and Greenberg Peden, the trial court render a take-nothing judgment against Swonke on his breach-of-contract claim, and the trial court eliminate the contract damages and attorney's fees awarded to Swonke. In addition, Anglo-Dutch requested that the final judgment take into consideration that Anglo-Dutch was the prevailing party on its declaratory judgment action and should be awarded its reasonable and necessary attorney's fees of $415,000 under section 37.009, see Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (West 2013), based on a stipulation in conjunction with a hearing on attorney's fees held in January 2007. Anglo-Dutch acknowledged owing Greenberg Peden under the fee agreement and stated it would honor its May 2006 tender in the amount of $323,650.53 ($293,338.85 in principal owed plus interest from the date of the Halliburton settlement to the date of the tender). Anglo-Dutch requested that the trial court net out the amounts and render judgment that Swonke and Greenberg Peden pay Anglo-Dutch $91,349.47.

Swonke and Greenberg Peden filed a motion to render judgment. They argued that Greenberg Peden had assigned its interest in the fee agreement to Swonke, under the fee agreement's unambiguous formula Anglo-Dutch owed Swonke $1,530,000, and Anglo-Dutch was not entitled to any attorney's fees to offset what it owes under the fee agreement.

Anglo-Dutch filed a brief in support of its entry of judgment on remand. Anglo-Dutch asked the trial court to resolve how much money Greenberg Peden was entitled to receive under the fee agreement and Anglo-Dutch was entitled to receive in attorney's fees as a prevailing party in its declaratory judgment action. Swonke and Greenberg Peden filed a brief in support of their motion to render judgment. In light of Greenberg Peden's assignment of its interest under the fee agreement to Swonke, they requested the trial court render judgment in favor of Swonke on his declaratory judgment and breach-of-contract claims in the amount of $1,530,000, plus attorney's fees.

The trial court, "ha[ving] been asked to determine the correct calculation of the attorneys' fees provision under the October 16, 2000, Fee Agreement," issued an order calculating that the attorney's fees due to Greenberg Peden (and now Swonke by way of assignment) were $306,000. After the trial court issued this order, Anglo-Dutch amended its motion for entry of judgment and attorney's fees and requested that the trial court credit the award to Greenberg Peden against Anglo-Dutch's attorney's fees.

The parties filed for summary judgment. The trial court denied Swonke's and Greenberg Peden's motion and granted Anglo-Dutch's motion, ordering that: Swonke take nothing on his contract claim; Swonke take nothing on his section 38.001 attorney's fees claim, see Tex. Civ. Prac. & Rem. Code Ann. § 38.001(8) (West 2013); Swonke take nothing on his declaratory judgment claim; Swonke was precluded from recovering section 37.009 attorney's fees, see id. § 37.009; and Anglo-Dutch was entitled to attorney's fees under section 37.009 if they were equitable and just.

Swonke and Greenberg Peden filed a rule 166 motion for ruling on question of law regarding Anglo-Dutch's waiver, abandonment, and forfeiture of its attorney's fees claim. The trial court issued an order ruling that: subject to being proven up, Anglo-Dutch's original trial fees have been agreed to as reasonable and necessary and the trial court would not exceed an award over $290,000 pursuant to the stipulation on "original trial fees"; pursuant to the stipulation, Anglo-Dutch's reasonable and necessary appellate attorney's fees were $75,000 to the court of appeals and $50,000 to the Texas Supreme Court; and the trial court would entertain proof of additional reasonable and necessary attorney's fees incurred by Anglo-Dutch post remand.

The trial court held a jury trial on Anglo-Dutch's attorney's fees. Anglo-Dutch requested that the jury award it $444,000 in attorney's fees for the original trial, $265,000 in fees for the prior appeal to the court of appeals, $375,000 in fees for the appeal to the Texas Supreme Court, $240,000 in fees for trial post remand, $200,000 in fees for another appeal to the court of appeals, $125,000 in fees for another appeal to the Texas Supreme Court, and a total of almost $115,000 in costs to date. The jury awarded Anglo-Dutch no attorney's fees for representation for the original trial. The jury awarded Anglo-Dutch no fees for representation for the prior appeal to the court of appeals and $50,000 for representation for the prior appeal to the Texas Supreme Court. The jury awarded Anglo-Dutch no fees for any aspect of post-remand representation. The jury awarded $12,000 in costs to Anglo-Dutch with regard to the prior appeal, but no costs otherwise.

Swonke and Greenberg Peden filed a motion to rule as a matter of law that Anglo-Dutch waived all attorney's fees and costs and to disregard the jury's findings awarding Anglo-Dutch's prior appellate attorney's fees and costs. Anglo-Dutch filed a motion for judgment notwithstanding the verdict, arguing that it conclusively established approximately $1.5 million of its attorney's fees and costs.

In its final judgment, the trial court found that an award of attorney's fees or costs to Anglo-Dutch for its declaratory judgment action would not be equitable or just. The trial court explained that it calculated the fees Anglo-Dutch owed to Greenberg Peden under the fee agreement, and that the amount owed to Greenberg Peden (and now Swonke by way of assignment) was $306,000. The trial court ordered that: Anglo-Dutch pay Swonke $306,000; Swonke take nothing on his...