Rush v Barrios

• Decision Date: 14 June 2001
• Citation: 56 S.W.3d 88
• Parties: <!--56 S.W.3d 88 (Tex.App.-Houston 2001) WARREN D. RUSH, INDIVIDUALLY AND ON BEHALF OF RUSH, RUSH, AND CALOGERO, Appellant v. MELVIN BARRIOS, KATHARINE BARRIOS, AARON W. GUIDRY, PORTER, DENTON & KOBETZ, A.P.L.C. AND MALLIA & JACOBS, Appellees NO. 14-98-01160-CV Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 88

56 S.W.3d 88 (Tex.App.-Houston [14 Dist.] 2001)

WARREN D. RUSH, INDIVIDUALLY AND ON BEHALF OF RUSH, RUSH, AND CALOGERO, Appellant v MELVIN BARRIOS, KATHARINE BARRIOS, AARON W. GUIDRY, PORTER, DENTON & KOBETZ, A.P.L.C. AND MALLIA & JACOBS, Appellees

NO. 14-98-01160-CV

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

June 14, 2001.

Rehearing Overruled Aug. 23, 2001

On Appeal from the 80th District Court Harris County, Texas Trial Court Cause No. 96-577723

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Cannon, Draughn, and Lee.^*

OPINION

Draughn, Justice Assigned).

This is an appeal from a dispute over legal fees between appellant, Warren D. Rush (individually and on behalf of the law firm Rush, Rush & Calogero) (Rush) and appellees, Melvin and Katharine Barrios, Aaron W. Guidry (an attorney at Porter, Denton & Kobetz, A.P.L.C.) (Guidry), Porter, Denton & Kobetz, A.P.L.C., and Mallia & Jacobs. Rush appeals in three points of error, contending that the trial court erred: (1) in granting judgment notwithstanding the verdict; (2) in granting summary judgment that Rush's retainer contract had been terminated for cause; and, depending on our determination of the first two points, (3) in exercising personal jurisdiction over him. We affirm.

BACKGROUND

Melvin Barrios purchased metal roofing material from Central Steel Erectors, Inc., a Louisiana Corporation (Central), that was manufactured by Whirlwind Steel Buildings, Inc., a Texas corporation (Whirlwind) The metal roofing became extremely slippery when wet, and carried no warnings to this effect. On May 31, 1992, Barrios was installing the metal roofing material on his home in Lafayette, Louisiana, when it started raining. The slippery condition caused Barrios to slip and fall off the roof and break his neck. As a result of this accident, Melvin Barrios is a quadriplegic. Although originally hospitalized in Louisiana, Barrios transferred to the Texas Institute for Rehabilitation and Research (TIRR) in Houston, Texas, for a three-month stay. His employer, Knight Oil Tools, originally advised him that the hospital charges at TIRR would be covered under Knight's ERISA plan. However, eighty days into his treatment at TIRR, the insurance company for the ERISA plan told him that only 30-days' coverage existed under the ERISA plan with Knight Oil Tools. Barrios was left with $11,000 in bills.

Upset, Barrios called his boss, Mike Hamza, who told him not to worry because he would correct the situation. Meanwhile, Barrios had been in contact with Rush, an attorney, who also represented Knight Oil Tools on corporate matters. Rush tried to negotiate an increase in coverage or a decrease in the medical bills in conjunction with Mike Hamza at Knight Oil Tools. Rush and Hamza were unsuccessful in their attempts to increase coverage. Barrios did not like the way Rush was handling his ERISA claim. On May 28, 1993, Barrios entered into a contingency fee contract with Rush whereby Rush was to represent Barrios on his suit against Central and Whirlwind. Rush filed two lawsuits in Louisiana courts to prevent the Louisiana one-year statute of limitations (called "prescription" in Louisiana) from running on his products liability claims. Rush never filed suit on Barrios's ERISA claim.

Barrios retained Guidry on May 28, 1993, to represent him in connection with the ERISA claim. In January or February 1994, Barrios talked to Guidry about his products suit. Guidry agreed to investigate the matter for him but did not represent him at that time. Guidry wrote a letter to Barrios dated March 18, 1994, indicating that he could not represent Barrios on the products claim because the Texas attorneys stated they could not send the 60-day notice to Central and Whirlwind required by the Texas Deceptive Trades and Practices Act. Thereafter, Guidry changed his mind, and Barrios signed a contingency fee contract with Guidry and his firm on the products case. Guidry made an oral referral of the contingency fee contract to Mallia, a Texas attorney, whereby they agreed to a 50/50 fee split of the contingency fee. Guidry wrote a letter for Barrios dated May 3, 1994, discharging Rush.

Mallia filed Barrios's products liability suit against Whirlwind and Central in Texas and settled with them for two million dollars in October 1996. In November 1996, Mallia filed a declaratory judgment action against Rush, Guidry, and their respective law firms, to apportion among all the attorneys the $666,666.67 attorneys' fees received as the one-third contingency fee due from Barrios's settlement with Whirlwind and Central. The jury awarded Rush $111,111,11 as his fee for services to Barrios, and they awarded $555,555.55 to Mallia, Mallia & Jacobs, Aaron Guidry, and Porter, Denton & Kobetz, for their services to Barrios. Because Rush had been terminated for cause by Barrios, the trial court reduced his total award to $33,333.33 as a forfeiture under Texas law. The trial court entered judgment non obstante veredicto (JNOV) for Rush in this amount, then further reduced this award by ten percent, according to Louisiana law, making Rush's total award $29,999.99.

JUDGMENT NON OBSTANTE VEREDICTO

In his first point of error, Rush contends that the trial court erred in granting judgment non obstante veredicto (JNOV), which reduced the jury's award of $111,111.11 in attorneys' fees to $29,999.99. The pertinent part of the judgment reads: "The [appellees] moved for fee forfeiture and [Rush] moved for Judgment on the verdict. The Court rendered Judgment Non Obstante Veredicto in the amount of Thirty-Three Thousand, Three Hundred Thirty-Three and 33/11 ($33,333.33) Dollars and the Court further reduced the award by ten (10%) percent, pursuant to Louisiana law."

First, Rush claims that the court impermissibly granted JNOV sua sponte. A trial judge may only grant a JNOV upon motion by a party. See Tex. R. Civ. P. 301. The appellees claim that they filed a "Brief in Support of Fee Forfeiture" that, while not properly titled, had the same intent and effect as a motion for JNOV. "It is well settled that in determining the nature of a pleading, we look to the substance of the plea for relief, not merely the form of title given to it." See Tex. R. Civ. P. 71; Nguyen v. Kim, 3 S.W.3d 146, 150 (Tex. App. Houston [14th Dist.] 1999, no writ); State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex.1980). "Its substance is determined by what effect it will have on the proceeding if granted." University of Houston v. Elthon, 9 S.W.3d 351, 355 (Tex. App. Houston [14th Dist.] 1999, pet. dism'd w.o.j.). Here, it is clear that appellees sought relief in opposition to the jury's award of $111,111.11 in attorney's fees to Rush. They filed their brief after the jury returned its verdict, seeking fee forfeiture under Arce v. Burrow, 958 S.W.2d 239 (Tex. App. Houston [14th Dist.] 1997), affirmed as modified, Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) and, alternatively, quantum meruit under Louisiana law. See O'Rourke v. Cairns, 683 So.2d 697, 703 (La. 1996). The appellees urged the trial court to ignore the jury's award of attorney's fees and to reduce that amount to zero as a consequence of Rush's termination for cause. Although appellees sought total forfeiture of the fee, they correctly noted in their brief that the amount of the fee to be forfeited must be determined by the court. See Burrow, 997 S.W.2d at 245.¹ Under Louisiana law, they urged that quantum meruit for Rush would be based on a reasonable hourly rate; to allow the jury's award would be unjust because there was "no evidence of any tangible benefit received by Mr. and Mrs. Barrios from any work done by [Rush]."

Rush nonetheless argues that appellees' pleading "nowhere resembles a request for JNOV, which can be granted only if no evidence supports the jury's verdict." We disagree. The appellees' pleading sufficiently recites that no evidence supports the value assigned by the jury to the few actions taken by Rush on Barrios's case. Further, "no evidence" exists when a court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact. See Juliette Fowler Homes, Inc. v. Welch Assocs., Inc., 793 S.W.2d 660, 666 n.9 (Tex. 1990). In Burrow, the Texas Supreme Court stated that fee forfeiture was an equitable remedy, and "a trial court must determine from the parties whether factual disputes exist that must be decided by a jury before the court can determine whether a clear and serious violation of duty has occurred, whether forfeiture is appropriate, and if so, whether all or only part of the attorney's fee should be forfeited." Burrow, 997 S.w.2d at 246. Thus, if fee forfeiture is appropriate, the trial court is authorized by law to give no weight to the evidence of the value of the attorney's legal services. Because the legal issue of fee forfeiture permits the trial court to disregard the jury's verdict on attorney's fees, appellees' pleading fulfills the requisites of a motion JNOV. Accordingly, we hold that the nature of appellees' pleading suffices as a motion for JNOV. We overrule Rush's contention under issue one that the trial court erroneously acted sua sponte in entering JNOV.

Second, Rush argues that the jury's verdict was supported by the law and the evidence. The standard of review for a JNOV is the same as a directed verdict. See Best v. Ryan Auto Group, Inc., 786 S.W.2d 670, 671 (Tex. 1990). We will affirm a JNOV if there is no evidence to support an issue, or conversely, the evidence establishes an issue as a matter of law. See Exxon Corp. v. Quinen, 726 S.W.2d 17, 19 (Tex. 1987). "No evidence" exists, and a judgment notwithstanding the verdict should be entered, when the record discloses one of the following: (1) a complete absence of a vital fact; (2) the court is barred by rules of law or evidence from giving weight to the only evidence...