Tricon Insurance Services, Inc. v. Dallas Cowboys Football Club, Ltd., No. 05-02-01737-CV (TX 8/16/2004)

• Decision Date: 16 August 2004
• Docket Number: No. 05-02-01737-CV.,05-02-01737-CV.
• Parties: TRICON INSURANCE SERVICES, INC., Appellant v. DALLAS COWBOYS FOOTBALL CLUB, LTD., JWJ CORPORATION, AND AMERICAN BLAST FAX INC., Appellee.
• Court: Texas Supreme Court

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TRICON INSURANCE SERVICES, INC., Appellant v. DALLAS COWBOYS FOOTBALL CLUB, LTD., JWJ CORPORATION, AND AMERICAN BLAST FAX INC., Appellee.

No. 05-02-01737-CV.

Court of Appeals of Texas, Fifth District, Dallas.

Opinion Filed August 16, 2004.

On Appeal from the 192^nd Judicial District Court Dallas County, Texas, Trial Court Cause No. 00-00808-K.

AFFIRMED.

Before Chief Justice THOMAS, Justices WRIGHT and FITZGERALD.

MEMORANDUM OPINION

THOMAS, Chief Justice.

Tricon Insurance Services, Inc. appeals the trial court's award of attorney's fees to the Law Office of Keith M. Jensen, P.C. and The MacPete Law Firm in a class action suit against the Dallas Cowboys Football Club, Ltd., its general partner JWJ Corporation, and American Blast Fax Inc. The facts of this case are known by the parties, and we do not recite them in detail. Because the issues are clearly settled in law, we issue this memorandum opinion. See Tex. R. App. P. 47.1. We affirm the trial court's judgment.

In points of error one through three and five through seven, Tricon complains the trial court erred in awarding attorneys' fees and expenses to appellees because the evidence is legally and factually insufficient to support them and the trial court erred in the manner in which it calculated the attorneys' fees. Each of these complaints requires a review of the evidence; however, Tricon did not file a reporter's record from the final hearing even though the briefing reflects that an evidentiary hearing was held.¹ Moreover, the record reflects that Tricon did not ask that the hearing be recorded. Because Tricon failed to request or obtain a record of the final "fairness hearing" on the proposed class action settlement, we presume that there was evidence before the trial court to support the court's award of attorneys' fees and expenses. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002); Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996)("If an appellant fails to present a complete statement of facts on appeal, the appellate court must presume that the omitted portions are relevant and support the trial court's judgment."); see also Worthy v. Collagen Corp., 921 S.W.2d 711, 713-14 (Tex. App.-Dallas 1995), aff'd, 967 S.W.2d 360 (Tex. 1998).² Accordingly, we overrule Tricon's points of error one, two, three, five, six, and seven.

In its fourth point of error, Tricon complains that the trial court erred when it failed to explain the basis for its award of attorneys' fees. Tricon argues "there is nothing in the record" to indicate "compliance by the trial court with the requirements of Rule 42 applicable to the approval of settlements and the award of attorneys' fees from the common fund." Again, however, we do not have a record of the final hearing. Accordingly, we presume that record would support that the trial court complied with rule 42. See Bennett, 96 S.W.3d at 229; Feldman, 960 S.W.2d at 614; Worthy, 921 S.W.2d at 713-14. We overrule the fourth point of error.

In the eighth point of error, Tricon contends the trial court did not give adequate notice of the basis for class counsel's applications for attorneys' fees and the effect of an attorneys' fees award on the amount to be paid to the class. We disagree.

Texas rules provide that a "class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such a manner as the court directs." Tex. R. Civ. P. 42. The manner of notice must be reasonably calculated under all the circumstances to inform interested parties of the pending action and afford them an opportunity to present their objections. Ball v. Farm & Home Sav. Ass'n, 747 S.W.2d 420, 424 (Tex. App.-Fort Worth 1988, writ denied). The notice must reasonably convey the required information and afford a reasonable time for those interested to make an appearance. Id. In particular, class action settlement notices must contain the maximum amount of attorneys' fees sought by class counsel and specify the method of calculating the award. Gen. Motors Corp. v. Bloyed, 916 S.W.2d 949, 957 (Tex. 1996). The mechanics of giving notice of a proposed settlement is within the trial court's discretion, subject to the reasonableness standards imposed by due process. Id.

Here, the settlement notice...