Stern v. Wonzer
| Decision Date | 04 February 1993 |
| Docket Number | No. 01-92-00254-CV,01-92-00254-CV |
| Citation | 846 S.W.2d 939 |
| Parties | Jeffrey M. STERN, Rand Mintzer, and John Russo, Appellants, v. Bill E. WONZER and Linda D. Wonzer, Individually and as Next Friends and Temporary Managing Conservators of Taffidie Nickole McGough, Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Larry J. Doherty, Houston, for appellants.
G. Robert Friedman, Pual N. Gold, Houston, for appellees.
Before O'CONNOR, WILSON and HEDGES, JJ.
This is an appeal from a take-nothing judgment in a nonjury trial on the issue of attorney fees. Jeffrey M. Stern, Rand Mintzer, and John Russo, appellants, claim they are entitled to attorneys' fees for their representation of Taffidie McGough, a minor, based on written agreements they obtained from Taffidie's parents, Tammie McGough and James McGough. Stern, Mintzer, and Russo (collectively, Intervenors), filed an intervention for their attorneys' fees in the personal injury lawsuit filed for the death of Tiffanie Anne McGough, who drowned in an apartment complex swimming pool, and damages to Taffidie Nickole McGough, who sustained catastrophic injuries. Intervenors seek a recovery for their combined attorneys' fees before they were discharged. After a nonjury trial, the trial court entered a take-nothing judgment against Intervenors. We affirm.
Summary of facts
On August 15, 1989, appellees Bill E. Wonzer and Linda D. Wonzer, Tammie's mother and Taffidie's grandmother, obtained a temporary restraining order in the 313th Juvenile District Court, appointing them as temporary joint managing conservators of Taffidie. Six days later, on August 21, 1989, Intervenors filed an original petition seeking damages incurred in the swimming pool incident on behalf of Tammie, in her individual, next friend, and representative capacities, and on behalf of James, in his individual, next friend, and representative capacities. This petition, cause number 89-34299, was styled James Allen McGough, et al. v. Harry Reed & Co., et al., and was assigned to the 281st District Court.
Three days after that suit was filed, on August 24, 1989, the Wonzers, represented by the lawyer G. Robert Friedman, filed another petition for the McGough children, which was assigned to the 215th District Court. In addition to the other named defendants, the lawsuit named Tammie and James as defendants, alleging their negligence contributed to Tiffanie's death and Taffidie's injuries.
On October 9, 1989, the 313th Juvenile District Court entered agreed orders that allowed James and Tammie to retain their parental rights as possessory conservators, but enjoined them from interfering with the Wonzers' power to represent Taffidie in the legal action. The Wonzers were named temporary managing conservators. On October 11, 1989, the Wonzers moved to substitute themselves as next friends for Taffidie in the first lawsuit in the 281st District Court.
On October 31, 1989, the 281st District Court entered an order consolidating the two personal injury cases, removing the parents as next friends, and appointing the Wonzers as next friends of Taffidie. From that point, the Wonzers' attorney, Friedman, represented Taffidie in cause number 89-34299.
The underlying personal injury and wrongful death case was tried to a jury in April of 1991. The defendants tendered $17,000,000 into the registry of the court as a result of a high-low settlement agreement and the verdict of the jury. Stern filed the intervention on May 16, 1990. The intervention claims were severed and tried to the court in October of 1991.
The trial court's final judgment, entered on November 15, 1991, provided that $4,583,333.33, plus accrued interest, was to be set aside for all attorneys' fees and claims for attorneys' fees. Of that amount, the judgment awarded $876,811.56, plus accrued interest, to Friedman and Charles Neelley, an attorney who represented the mother, Tammie. John Culberson, the guardian ad litem, was awarded $150,000 in attorneys' fees.
In 12 points of error, Intervenors complain about the sufficiency of the evidence to support the findings, the lack of additional findings, the conclusions of law, and the judgment. In a single cross-point, the Wonzers complain that the trial court should have considered the certain testimony about violations of the disciplinary rules and it should have made findings of fact and conclusions of law on these points.
Standard of review
Findings of fact in a case tried to the court have the same weight as a jury's answer to questions in the charge. Simmons v. Campania Financiera Libano, 830 S.W.2d 789, 791 (Tex.App.--Houston [1st Dist.] 1992, writ denied). The trial court's findings of fact are reviewable for legal and factual sufficiency of the evidence to support them. Id. at 792. The same standards apply in reviewing the legal or factual sufficiency of the evidence supporting a jury's answer to a jury question. Id.
In reviewing a legal insufficiency point of error, we consider only the evidence and inferences, when viewed in their most favorable light, that tend to support the finding and disregard any evidence and inferences to the contrary. Sherman v. First Nat'l Bank, 760 S.W.2d 240, 242 (Tex.1988); Glockzin v. Rhea, 760 S.W.2d 665, 666 (Tex.App.--Houston [1st Dist.] 1988, writ denied). Under such a point, we are limited to reviewing only the evidence that tends to support the finding. Sherman, 760 S.W.2d at 242. If there is any evidence of probative force, that is, more than a scintilla of evidence that supports the finding, we must overrule the point, and uphold the finding. Id.
In reviewing a factual insufficiency point, we examine all of the evidence, both the evidence that supports the finding and the evidence that controverts the finding. Lofton v. Texas Brine Corp., 720 S.W.2d 804, 805 (Tex.1986); Otis Elevator Co. v. Joseph, 749 S.W.2d 920, 923 (Tex.App.--Houston [1st Dist.] 1988, no writ). Under this type of point, we can set aside the finding only if it is so against the great weight and preponderance of the evidence that it is clearly wrong and manifestly unjust. Otis Elevator, 749 S.W.2d at 923.
Express agreements
In points of error one, two, five, and six, Intervenors complain of the trial court's interpretation of contracts executed by James and Tammie with Intervenors. In point of error one, they argue the trial court's conclusion there was no contract between the McGoughs and Intervenors relating to Taffidie is a conclusion of law for which there are no findings of fact. In point of error two, Intervenors complain of the trial court's finding that the contracts were the only agreements that existed between Intervenors and the McGoughs regarding their two children. In point of error five, Intervenors argue the trial court's findings that no agreement or contract, express or implied, supported their claims for attorneys' fees because the appointment of the Wonzers as temporary managing conservators and the Wonzers' subsequent retention of Friedman to represent them and Taffidie did not dissolve the preexisting contracts between Intervenors and the McGoughs. Intervenors also maintain, in point of error six, that the trial court erred in finding that a conflict of interest existed between Taffidie and Intervenors; that the contracts were valid at the time the agreements were executed; and that the contracts remained enforceable because Intervenors were discharged without good cause.
The trial court filed a document entitled, "Corrected Finding of Fact and Conclusions of Law." The conclusions relevant to points of error one, two, five--to the extent point five complains of the court's conclusion regarding the express contracts--and six are as follows:
1. Exhibits 603 [Tammie McGough-Stern contract] and 615 [James McGough-Russo contract] constitute the only agreements between the Intervenors and the parents of Taffidie Nickole McGough relative to retaining Intervenors to provide legal services on claims arising from the drowning of Taffidie Nickole McGough and her sister, Tiffanie Anne McGough. Said agreements are not ambiguous.
2. There were no contractual agreements between James Allen and/or Tammy McGough and Intervenors granting Intervenors powers of attorney to represent Taffidie Nickole McGough.
3. There were no contractual agreements between James Allen and/or Tammy McGough and Intervenors assigning Intervenors an interest in any recoveries obtained by Taffidie Nickole McGough.
6. This Court's order, substituting Bill and Linda Wonzer for the minor's parents as her next friends and authorizing G. Robert Friedman to pursue legal remedies on the minor's behalf, made it impossible for Intervenors to take legal action on behalf of Taffidie Nickole McGough.
8. As to the matters in controversy in this litigation, there was and is a conflict of interest between the interests of Taffidie Nickole McGough and those of her parents, James Allen and Tammy McGough.
Intervenors contest the correctness of the court's legal conclusions that no contractual agreements between the parents and Intervenors granted a power of attorney to represent Taffidie or assigned Intervenors an interest in Taffidie's recovery. Intervenors dispute the legal and factual sufficiency of the evidence in support of the trial court's conclusions in this regard.
Tammie McGough-Stern agreement
In the agreement between Tammie McGough and Jeffrey Stern (the Stern Agreement), which was executed on August 4, 1989, Tammie employed Stern "as my attorney." The Stern Agreement does not mention that Stern was employed to represent the personal injury claims of Taffidie or the estate claims of Tiffanie. The names of the minors do not appear on the document.
The Stern Agreement consistently refers to "my attorney," "my Claim(s)," "my name," and authorizes Stern to "deposit my portion of any settlement in a Trust fund on my behalf" and assigning "to him an undivided interest in my...
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