Cantu v. Butron

• Decision Date: 29 February 1996
• Docket Number: No. 13-93-505-CV,13-93-505-CV
• Citation: 921 S.W.2d 344
• Parties: Mark C. CANTU, Appellant, v. Juan Lopez BUTRON, Individually, et al., Appellees.
• Court: Texas Court of Appeals

Page 344

921 S.W.2d 344

Mark C. CANTU, Appellant, v. Juan Lopez BUTRON, Individually, et al., Appellees.

No. 13-93-505-CV.

Court of Appeals of Texas,

Corpus Christi.

Feb. 29, 1996.

Rehearing Overruled April 18, 1996.

Carlos Villarreal, Hunt, Hermansen, McKibben & Barger, Corpus Christi, for appellant.

Robert W. Johnson, Jr., Corpus Christi, T.B. Nicholas, Jr., Dallas, for appellees.

Before SEERDEN C.J., and DORSEY and RODRIGUEZ, JJ.

OPINION

SEERDEN, Chief Judge.

Appellees Juan Lopez Butron and Luis Enrique Cortinas Villarreal, each individually and as representative of his family, sued appellant Mark Cantu, an attorney. This suit involved Cantu's conduct in obtaining contracts to represent Lopez and Cortinas in litigation that resulted from the 1988 collapse of the Amigo Store in Brownsville. The case was tried to the court. Lopez and Cortinas's petition asserted facts that might support several causes of action, but the judgment addresses only claims for fraud and breach of fiduciary duty.

Cantu questions the trial court's jurisdiction, challenges the legal and factual sufficiency of the evidence, and complains of the trial court's findings of fact and conclusions of law. Finally, he attacks the trial court's award of punitive damages and its ruling on his motion for new trial. Lopez and Cortinas also raise six cross-points requesting additional relief. We affirm.

BACKGROUND

Lopez and Cortinas lost family members in the collapse of the Amigo Store. Neither speaks English, and both relied on P.J. Trevino to assist them in hiring an attorney. Trevino recommended his employer, attorney William Harrison. Trevino later left Harrison's employ and accepted a job with Cantu. Lopez and Cortinas also became displeased with Harrison and replaced him with Cantu.

Cantu referred Lopez's and Cortinas's cases to a firm of attorneys who assumed a lead role in negotiating a pretrial settlement for all the Amigo Store plaintiffs. Because this resolution involved minors, the settlements were approved by the court. Among other factors, the Amigo Store court reviewed evidence of attorneys' fees and expenses before finding that the settlements were "fair and reasonable and in the best interest of the minor children." These judgments also name the attorneys who represented Lopez and Cortinas, but Cantu is not mentioned.

Harrison, appellees' first attorney, filed an intervention to enforce his original contract with Lopez and Cortinas. In settlement, Harrison accepted $350,000 from the $1,452,452 in fees shared by Cantu and the claimants' other attorneys. Lopez and his children received a total of $889,458, and the Cortinas family received $873,937.

The main dispute in this case concerns Cantu's conduct in obtaining 45 percent contingency fee contracts from Lopez and Cortinas.

COLLATERAL ATTACK

In his first point, Cantu argues that the judgment under review was an impermissible collateral attack on the judgment approving settlement of the Amigo Store claims. We disagree.

A final judgment from a court of general jurisdiction is not subject to collateral attack in other courts of equal jurisdiction unless the first judgment is void. Browning v. Placke, 698 S.W.2d 362, 363 (Tex.1985) (orig. proceeding). However, the judgment under review is not an attack on the Amigo Store judgments.

A collateral attack on a judgment seeks to avoid that judgment's binding force in order to obtain specific relief against which the judgment stands as a bar. Biaza v. Simon, 879 S.W.2d 349, 353 (Tex.App.--Houston [1st Dist.] 1994, writ denied) (citing Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325, 327 (1895)). In this case, the suit requests no relief barred by judgments approving the Amigo Store settlements.

The Amigo Store judgments neither mention Cantu nor specify the fee approved for the attorneys who represented Lopez and Cortinas. The primary binding effect of the Amigo Store judgments is to resolve claims among parties to the dispute involving the collapse of the Amigo Store.

Nothing in the Amigo Store judgments or in the record of the case under review resolves what fee arrangements the Amigo Store court approved. In fact, nothing in the record indicates that the Amigo Store court approved any part of the settlements that did not directly affect the interests of the minors involved. Although the Amigo Store court limited the fees paid by the minors to one third, the minors were actually charged no fees and the entire 45 percent fee and all expenses were deducted from the adults' settlements. The Amigo Store court did not address or approve the conduct of any attorney.

In contrast to the Amigo Store judgments, the case under review is based on Cantu's conduct in obtaining the 45 percent contingency fee contracts. Neither the defendants nor the attorneys mentioned in the judgments of the Amigo Store court are named as parties to the suit under review. The binding effect of the Amigo Store court's settlement approval is not under attack from the trial court that decided the fraud and breach of fiduciary duty claims. Accordingly, we overrule Cantu's first point of error.

SUFFICIENCY OF THE EVIDENCE

Cantu's points of error six through eleven challenge the legal and factual sufficiency of evidence supporting Lopez and Cortinas's claims for fraud and breach of fiduciary duty. Specifically, Cantu contests four findings of fact and two conclusions of law. But see Great Global Assurance Co. v. Keltex Properties, Inc., 904 S.W.2d 771, 778 (Tex.App.--Corpus Christi 1995, no writ) (conclusions of law are not reviewed for sufficiency but reviewed to determine their correctness).

When reviewing challenges to the legal sufficiency of the evidence, we consider only evidence and inferences from the record that support the fact finder's determinations. Browning-Ferris, Inc. v. Reyna, 865 S.W.2d 925, 928 (Tex.1993); Housing Auth. of Corpus Christi v. Massey, 878 S.W.2d 624, 627 (Tex.App.--Corpus Christi 1994, no writ). We overrule such no evidence points of error if the findings are supported by more than a scintilla of evidence. Browning-Ferris, 865 S.W.2d at 928; Housing Auth. of Corpus Christi, 878 S.W.2d at 627 (citing Weirich v. Weirich, 833 S.W.2d 942, 945-46 (Tex.1992)). In contrast, factual sufficiency challenges require that we consider and balance all the evidence. Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex.1989); Twenty-Four Thousand One Hundred Eighty Dollars in U.S. Currency v. State, 865 S.W.2d 181, 186 n. 4 (Tex.App.--Corpus Christi 1993, writ denied). We overrule such insufficient evidence points of error unless the evidence supporting a finding is so weak as to indicate that the finding is clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per curiam). Both of these standards apply equally to jury findings and a trial court's findings of fact. Southern States Transp., Inc. v. Texas, 774 S.W.2d 639, 640 (Tex.1989); Great Global Assurance, 904 S.W.2d at 778.

Cantu's sixth point of error attacks the finding that he represented that he would charge one third if the matter was settled out of court or 40 percent if the matter went to court. This finding is supported by Lopez's and Cortinas's testimony. To show the context in which Cantu made this promise, Lopez and Cortinas testified about the formation of their attorney-client relationship with Cantu. They said that Cantu assisted them in firing their prior attorney, William Harrison, after Cantu advised that they had good cause to dismiss Harrison. According to Lopez and Cortinas, Cantu wrote the letters firing Harrison and then agreed to take their cases on the same terms that they had negotiated with Harrison.

Cantu does not dispute that Lopez and Cortinas would have paid a 40 percent contingency fee under their agreements with Harrison, but Cantu initially denied that he wrote the termination letters. Cantu later admitted writing the letters after the court ordered him to produce Lopez's and Cortinas's files, which included return receipts for those letters. The files also contained drafts of other correspondence to Harrison, and these other letters were corrected in Cantu's own handwriting. The draft letters allude to Cantu's fee arrangement as being based on a 40 percent contingency. These letters are circumstantial evidence that supports Lopez's and Cortinas's testimony that Cantu promised to take their cases under the same fee arrangement that they had agreed with Harrison.

Cantu's agreement to charge Lopez and Cortinas the same fee that they had negotiated with Harrison is further supported by testimony from Hipolito Martinez. Martinez said that he was present when Cantu promised to represent Lopez for the same fee that Harrison was going to charge him.

Cantu denied promising that he would accept the same fee arrangement as Harrison. When faced with conflicting testimony, the trier of fact is the sole judge of the witnesses' credibility. Silva v. Enz, 853 S.W.2d 815, 817 (Tex.App.--Corpus Christi 1993, writ denied). The trier of fact is free to reach its findings by believing or rejecting some or all of the contradictory testimony when assessing the comparative truthfulness of witnesses. Id.

The finding that Cantu represented that he would charge a one third or 40 percent contingency fee is supported by some evidence and is neither clearly wrong nor manifestly unjust. After conducting a factual sufficiency review of all the evidence of record and a legal sufficiency review of evidence supporting the finding, we overrule Cantu's sixth point of error.

By his seventh point of error, Cantu challenges the finding that his employees gave Lopez and Cortinas blank forms reflecting one third and 40 percent fees and that those employees represented that the forms were the same contracts that would be signed after Harrison was fired. This finding is unnecessary to our review of the judgment on Lopez and Cortinas's claims for...