RSL Funding, LLC v. Aegon Structured Settlements, Inc.

• Decision Date: 14 June 2012
• Docket Number: No. 11–10–00281–CV.,11–10–00281–CV.
• Citation: 384 S.W.3d 405
• Parties: RSL FUNDING, LLC, Appellant v. AEGON STRUCTURED SETTLEMENTS, INC. and Monumental Life Insurance Company, Appellees.
• Court: Texas Court of Appeals

384 S.W.3d 405

RSL FUNDING, LLC, Appellant

v.AEGON STRUCTURED SETTLEMENTS, INC. and Monumental Life Insurance Company, Appellees.

No. 11–10–00281–CV.

Court of Appeals of Texas, Eastland.

June 14, 2012.

E. John Gorman, John R. Craddock, Stewart A. Feldman, The Feldman Law Firm LLP, Houston, L. Andy Paredes, Houston, for appellant.

David L. Pybus, Hilary A. Frisbie, Preis & Roy, Houston, Margaret A. Layrisson, Serpe, Jones, Andrews, Callendar & Bell, Houston, for appellees.

Panel consists of: WRIGHT, C.J., McCALL, J., and KALENAK, J.

OPINION

ERIC KALENAK, Justice.

Among other things, the trial court awarded attorney's fees to Aegon Structured Settlements, Inc. and Monumental Life Insurance Company against RSL Funding, LLC in this lawsuit brought by RSL under the Structured Settlement Protection Act.¹ We affirm.

Michael Todd Reese settled a lawsuit that he had filed to recover for personal injuries. As a part of that settlement agreement, he was to receive a series of payments over a period of time. These payments were funded through an annuity purchased by Aegon's predecessors from Monumental's predecessors.

Reese wanted to receive a portion of the payments early. He entered into an agreement with RSL whereby RSL would purchase portions of two future lump sum payments and pay a certain amount to Reese in exchange for his assignment to RSL of the interests purchased.

In accordance with the Texas Structured Settlement Protection Act, RSL filed an application in the trial court for approval of the transfer. In its application for approval, RSL listed the estate of Michael Todd Reese as the beneficiary.

Before the hearing on RSL's application, Aegon and Monumental notified RSL that the beneficiary listed in the application was incorrect and that the actual beneficiary of the annuity was Reese's daughter, Madison Reese. RSL filed an amended application and rescheduled the hearing. Although it continued to plead that Reese's estate was the beneficiary of the annuity, RSL gave notice of the new hearing to Lacy Chesser as next friend of Madison Reese. Chesser and Reese were divorced. In a later suit to modify the parent-child relationship, the trial court appointed Chesser as the joint managing conservator with the right to establish Madison's primary residence. The order listed Chesser's address as 1625 Sunset, Apartment 3004, San Angelo. This address had not been changed by Chesser as required in the court order. RSL sent the notice to Chesser at P.O. Box 62142 in San Angelo. Aegon and Monumental informed RSL of the perceived defect in the notice provided to Chesser. The trial court continued the hearing so that RSL might provide proper notice to Chesser at several addresses.

Before the trial court conducted the second rescheduled hearing on RSL's application, Aegon and Monumental filed a motion for attorney's fees and expenses. Aegon and Monumental had also complained that RSL had sought, in a manner not in accordance with statutory procedures, a transferof a right of first refusal as well as a security interest in the remainder of Reese's structured settlement. Later, RSL agreed not to seek those rights. After the trial court conducted the hearing, it entered two orders. In one order, the trial court approved the transfer to RSL. In the other order, the trial court awarded attorney's fees and expenses to Aegon and Monumental in the amount of $6,825 and $1,164.92, respectively. The trial court later corrected its order to cite the correct statute under which it awarded attorney's fees and expenses.

The only issue before this court in this appeal involves the award of attorney's fees and expenses. In a single issue, RSL maintains that the trial court abused its discretion when it awarded attorney's fees and expenses because it awarded them under an inapplicable statute, because it should not award attorney's fees connected to objections to RSL's claim to a right of first refusal and to a security interest, and because it should not award them connected to objections to improper notice.

The trial court did not state in its order the reasons for its award of attorney's fees and expenses except to refer to the statute under which they were awarded. The trial court did not enter findings of fact or conclusions of law, and none were requested. Therefore, the trial court's award will be upheld on any theory that finds support in the evidence. See Rush v. Barrios, 56 S.W.3d 88, 96 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (if trial court files no findings of fact or conclusions of law, all findings necessary to the court's judgment, if supported by the record, will be implied). Further, RSL did not object to any failure to segregate what fees were charged for what services, and that issue is not before us.

The Structured Settlement Protection Act is found in the Texas Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem.Code Ann. §§ 141.001–.007 (West 2011). The legislature enacted it to protect litigants who have received structured settlements in personal injury cases from transferring their rights to future periodic payments from those settlements for a lump sum that is inadequate. Rapid Settlements, Ltd. v. Symetra Life Ins. Co., 234 S.W.3d 788, 798 (Tex.App.-Tyler 2007, no pet.). Under the provisions of the SSPA, a party who acquires or proposes to acquire structured settlement payment rights from the payee must give notice to the payee that contains detailed information, among other things, regarding the amounts of the payments to be transferred from the payee, the discounted present value of those payments, the gross amount to be paid to the payee, the expenses to be deducted from the gross amount, and the net amount the payee is to receive. Section 141.003.

Before a transfer is effective, it must be approved in advance in a final court order. Section 141.004. The transferee must serve notice of the hearing upon all interested parties. Section 141.006. Notice of the hearing on the application for approval of a transfer of structured settlement payment rights must contain certain items, and the transferee must serve the notice at least twenty days before the date of the hearing.

In the trial court, Aegon argued that it was entitled to attorney's fees under the SSPA for two reasons: (1) it incurred extra time and expense in responding to RSL's application for transfer because RSL failed to include information on the security interest and right of first refusal of future transfers in its required disclosure to the payee as required under the statute, see Section 141.003, and (2) RSL's failure to properly notify the beneficiary necessitated additional hearings and brought about further time and expense connected to the application to approve the transfer.

The standard of review of a trial court's award of attorney's fees is abuse of discretion. Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 592 (Tex.1996). Attorney's fees may not be recovered from an opposing party unless provided for by statute or contract between the parties. Id. at 593.

Under the SSPA, trial courts have the authority to award reasonable costs and attorney's fees against the transferee in favor of a structured settlement obligor and the annuity issuer that arise “as a consequence of the transferee's failure to comply with this chapter.” Section 141.005(2)(B).

RSL advances a number of arguments in support of its contention that the trial court abused its discretion when it awarded attorney's fees. As we have said earlier, because findings of fact and conclusions of law were neither filed nor requested and because the trial court did not state the reasons for its award, we will uphold the award upon any proper theory finding support in the evidence. We will first consider an award of reasonable costs and attorney's fees under the notice issue.

RSL contends that the trial court abused its discretion because RSL gave proper notice to the beneficiary. RSL argues that the SSPA does not require proof of identity, receipt, or correct address for the beneficiary and that, thus, any kind or form of notice is presumably sufficient. This argument, however, ignores one of the definitions of notice—a warning or intimation of something impending. Merriam–Webster's Collegiate Dictionary 848 (11th ed. 2004). Inherent in this definition is that someone is to be warned. There must be some calculation in the giving of any notice that the person to be given the notice has a realistic chance to receive it. Also, this notice did not comply with Rule 21a of the Texas Rules of Civil Procedure, which requires that, when a notice is to be served, it is supposed to be sent to the party's last known address. Tex.R. Civ. P. 21a. As noted above, the last known address was contained in the court order modifying the parent-child relationship, which had not been changed. Aegon and Monumental, which had an interest in making sure that the beneficiary of the annuity actually received notice,² was understandably wary of the notice originally attempted in this case. RSL sent the notice to Reese's former mother-in-law's post office box. As a result of the minimal notice attempted by RSL, Aegon and Monumental had little choice but to appear at the hearing to protect their interests and to be certain that RSL gave effective notice to the minor beneficiary.

RSL also contends that the SSPA does not provide for attorney's fees in this case because attorney's fees are only for circumstances following a transfer of structured settlement payment rights. RSL argues that, because all of the deficiencies...