Rocha v. Ahmad
| Decision Date | 30 May 1984 |
| Docket Number | No. 04-82-00245-CV,04-82-00245-CV |
| Citation | 676 S.W.2d 149 |
| Parties | Thomas ROCHA, Jr., Intervenor, Appellant, v. M.M. AHMAD, et ux., Janet Ahmad, Appellees. |
| Court | Texas Court of Appeals |
Thomas Rocha, Jr., San Antonio, for appellant.
Pat Maloney, Jr., Gary Howard, Law Offices of Pat Maloney, San Antonio, for appellees.
Before ESQUIVEL, REEVES and TIJERINA, JJ.
This is an appeal from a judgment in an intervenor's suit for attorney fees. Appellant/intervenor Thomas Rocha, Jr. (Rocha) sued his former clients, M.M. and Janet Ahmad (Ahmads) in intervention in a suit entitled M.M. Ahmad, et ux. Janet Ahmad v. Larry Hengst, Inc. Rocha based his cause of action on the fact that he had been the Ahmads' attorney when the suit was filed; and that under their written contingency fee contract, the Ahmads had agreed to obtain attorney fees on his behalf from the defendant, Larry Hengst, Inc., under the provisions of the Texas Deceptive Trade Practices--Consumer Protection Act, ch. 143, § 1, 1973 Tex.Gen.Laws 322, 326-27, amended by Act of June 13, 1979, ch. 603, § 4, 1979 Tex.Gen.Laws 1327, 1330 [hereinafter DTPA]. Rocha also alleged a cause of action based on the theory of quantum meruit.
The Ahmad v. Hengst suit was based on the DTPA and pertained to the faulty construction of a new home. Although Rocha and the Ahmads entered a contingency fee contract, on November 6, 1978, Rocha required a $500.00 retainer. Rocha filed the original petition on behalf of his clients on November 9, 1978. On or about October 6, 1979, Rocha was discharged by the Ahmads. An order was entered permitting Rocha to withdraw as their attorney and then Rocha filed his intervenor's action. Thereafter the Ahmads, represented by other counsel, decided to settle their suit.
The Ahmads' first motion to sever Rocha's claim from the Hengst suit was denied. The suit was settled for $25,000.00 in actual damages to the Ahmads and $13,500.00 to the Ahmads' attorney. The Ahmads' second motion to sever was granted and Rocha's action was severed; a take nothing judgment was thereafter entered in the DTPA suit. Rocha's claim was pursued in a separate jury trial.
Three special issues were submitted to the jury:
SPECIAL ISSUE NO. 1
Do you find from a preponderance of the evidence that Mr. and Mrs. Ahmad discharged Mr. Rocha for good cause?
You are instructed that a client has "good cause" to discharge an attorney if the attorney fails to perform his duties in the manner that an attorney of ordinary skill and ability would have performed his duties under the same or similar circumstances.
Answer "yes" or "no".
If you have answered Special Issue No. 1 "yes", then answer Special Issue No. 2. Otherwise, do not answer Special Issue No. 2.
What sum of money as of October 6, 1979, do you find from a preponderance of the evidence, represents the value of the work and legal services performed by Mr. Rocha in representing Mr. and Mrs. Ahmad against Mr. Hengst?
Answer in dollars and cents.
Answer: $500.00
What sum of money, if any, do you find from a preponderance of the evidence would be reasonable and necessary attorney's fees to Mr. Rocha and Mr. Tutt for preparation and presentation of the present lawsuit against the Ahmads?
Answer in dollars and cents, if any.
Answer in dollars and cents, if any.
Answer in dollars and cents, if any.
Answer in dollars and cents, if any.
In connection with question 3(A) you may consider the legal work performed by both Mr. Tutt and Mr. Rocha.
Rocha filed a motion to disregard certain jury findings and a motion for new trial. Both were overruled. Rocha appears pro se in this appeal.
In point of error one, Rocha alleges trial court erred in allowing the Ahmads' suit to be settled without notice to him, without his knowledge and consent, and further, in severing his cause of action. Rocha's original petition, filed on behalf of the Ahmads, contained a prayer for attorney fees. The DTPA, section 17.50(b)(1), at that time, provided that a consumer who prevailed was entitled to "three times the amount of actual damages plus court costs and attorney's fees reasonable in relation to the amount of work expended." DTPA § 17.50(b)(1).
Rocha asserted in the trial court, and asserts herein, that he is entitled to attorney's fees in the Ahmad v. Hengst suit from three sources. He first argues that he is entitled to fees pursuant to the DTPA. Second, he claims he is due a fee by virtue of TEX.REV.CIV.STAT.ANN. art. 2226 (Vernon Supp.1984). Third, he asserts that he is entitled to a fee pursuant to the contingency fee arrangement he had with the Ahmads. In support of his contentions, he argues that: (1) attorney fees under the DTPA are mandatory; (2) he represented a prevailing plaintiff so as to warrant fees under article 2226; and (3) he was prevented from performing by the Ahmads because they discharged him, and he is therefore entitled to the fee contracted for, i.e., 40% of the amount recovered by the Ahmads when they settled their lawsuit with Hengst. This last contention will be addressed in our discussion of point of error five, infra.
Unless provided for by the contract of employment between attorney and client, attorney fees may be awarded only if a statute so provides. Attorney fees are in derogation of the common law, and therefore, any statute allowing the recovery of attorney fees is considered a penalty and is to be strictly construed. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914, 915 (Tex.1967). As Rocha points out in his brief, a suit for attorney fees is not ordinarily maintainable as a separate cause of action. Huff v. Fidelity Union Life Insurance Co., 158 Tex. 433, 444, 312 S.W.2d 493, 501 (1958). This is due to the fact that whatever rights the attorney has are derivative of those of his clients. The client is the party who recovers the fee for his attorney. We do not, however, agree with Rocha's contention that the trial court committed error in this case when his intervention suit for attorney fees was severed from the main suit. At that point, Rocha was no longer representing the Ahmads. Whatever claim for fees he had was against the Ahmads, and not the original defendant, Hengst.
We hold, therefore, that Rocha was not entitled to fees in the Ahmad v. Hengst suit pursuant to the DTPA or article 2226. At the time the suit was concluded, he no longer represented the plaintiffs. In addition, the Ahmad v. Hengst suit was settled. There was no finding of a deceptive trade practice, or any other statutory element necessary to the awarding of attorney fees. There was no error in severing the intervention filed by Rocha because he is not entitled to fees pursuant to either the DTPA or article 2226. Point of error one is overruled.
In point of error two, Rocha alleges the trial court erred in allowing the Ahmads to amend their pleadings five days after the jury returned its verdict, over his objection. We disagree. Amended pleadings may be filed within seven days of trial and thereafter only with leave of the court. TEX.R.CIV.P. 63. They may be filed up to the time the judgment is signed. Santa Rosa Medical Center v. Robinson, 560 S.W.2d 751, 759 (Tex.Civ.App.--San Antonio 1977, no writ); American Produce & Vegetable Co. v. J.D. Campisi's Italian Restaurant, 533 S.W.2d 380, 386 (Tex.Civ.App.--Tyler 1975, writ ref'd n.r.e.). The trial court shall allow the filing unless there is a showing that the amendment would operate as a surprise to the opposing party. American Produce & Vegetable Co., 533 S.W.2d at 386. In the instant case, the Ahmads wanted to amend to allege good cause for discharging Rocha. The amendment was allowed; the trial court reasoning that all parties realized that good cause was an issue in the case. Further, the Ahmads filed their motion to amend their pleadings, which motion was granted the morning of December 16, 1981, before the first witness was called. The statement of facts reflects that in a December 15th discussion, the judge indicated to the parties that the amendment would be allowed. Further, the record reflects that the trial court would have allowed a continuance if the plaintiff felt it necessary for discovery on the issue of good cause. The same offer was made by the court on the morning of the 16th. Both offers for a continuance were rejected by appellant.
The allowance of a trial amendment, where a defect, fault or omission is called to the attention of the trial court during trial, will not result in a reversal in the absence of a plea of surprise, and a request for postponement or continuance. H.O. Dyer, Inc. v. Steele, 489 S.W.2d 686 688 (Tex.Civ.App.--Houston [1st Dist.] 1972, no writ); Mergele v. Houston, 436 S.W.2d 951, 955 (Tex.Civ.App.--San Antonio 1968, writ ref'd n.r.e.); TEX.R.CIV.P. 66. To establish an abuse of discretion on the part of the trial court in allowing the amendment, it is incumbent on Rocha to show both surprise and a request for continuance. Pickens v. Baker, 588 S.W.2d 406, 410 (Tex.Civ.App.--Amarillo 1979, no writ). The record establishes that Rocha was not surprised, nor did he make a request for continuance; to the contrary, he refused to accept the court's offer of continuance. Point of error two is overruled.
Appellant's point of error four assigns as error that there was either no evidence to support the jury's finding that Janet Ahmad...
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