Opinion

Opinion issued September 30, 2014

In The

Court of Appeals

For The

First District of Texas

————————————

NO. 01-12-00984-CV

———————————

WALTER L. BOYAKI, RUBEN P. HERNANDEZ, AND MIRANDA &

BOYAKI, Appellants

V.

JOHN M. O’QUINN & ASSOCIATES, PLLC D/B/A THE O’QUINN LAW

FIRM, AND MUSSLEWHITE & ASSOCIATES, P.C., Appellees

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2008-75827

MEMORANDUM OPINION

Defendants/appellants Walter Boyaki, Ruben P. Hernandez, and Miranda &

Boyaki (collectively, “Boyaki group”) appeal (1) the trial court’s summary

judgment in favor of plaintiffs/appellees John M. O’Quinn & Associates, PLLC

d/b/a The O’Quinn Law Firm and Musslewhite & Associates, P.C. (collectively,

“O’Quinn group”), (2) the trial court’s order imposing sanctions on the Boyaki

group and another lawyer (who is not a party to this appeal), (3) the trial court’s

appointment of a special master, (4) the trial court’s failure to transfer the

underlying case to a different Harris County District Court, and (5) the Harris

County administrative judge’s refusal to recuse the trial judge. We reverse and

remand the attorneys’ fees awarded to the O’Quinn group in the trial court’s

summary judgment and affirm the trial court’s judgment and sanctions order in all

other respects.

Background

A. O’Quinn group’s lawsuit

On December 30, 2008, the O’Quinn group sued the Boyaki group, and that

suit was assigned to the 127th Harris County District Court. The O’Quinn group

pleaded a claim for breach of an “agreement as to the method for contingent

attorneys’ fees earned in the matter styled: Cause No. 199936433A, Vicente

Ramirez v. Gulf Technical Servs.; in the 190th Judicial District Court of Harris

County, Texas; SEVERED FROM: Cause No. 99-36433; Abel Rudolpho Esquivel,

et al v. Kellogg Brown & Root, Inc., et al.; In the 190th Judicial District Court of

Harris County, Texas.” (Ramirez case).

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1. The Ramirez case in the 190th

In the 1995/1996 time frame, the O’Quinn group began representing 180+

Mexican Nationals “who were victims of the DLB 269 Disaster.” The O’Quinn

group eventually filed a personal injury suit on behalf of these individuals that was

assigned to the 190th Harris County District Court. According to the O’Quinn

group, around 2004 the Boyaki group began interfering with the contractual

relations between the O’Quinn group and its Mexican National clients in that suit.

As a result of the dispute over which team of lawyers represented which

clients and what, if any, fees were owed to each team, Judge Jennifer Elrod (then

presiding over the 190th District Court) held a Rule 121 hearing. The O’Quinn

group asserts in its petition that “both teams of lawyers agreed, on the record, in

open court, to present this dispute to a Special Master to be appointed by Judge

Elrod.” The court entered an Agreed Order appointing the Honorable Retired

Justice Lee Duggan “to determine which lawyer represents which client and to

determine the percentage of fees, if any, owed by each Plaintiff to a particular

attorney.” The order states that, “[p]ursuant to the agreement of the parties, Judge

Duggan’s findings of fact and conclusions of law are final and non-appealable.”

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TEX. R. CIV. P. 12 (“A party in a suit or proceeding pending in a court of this state

may, by sworn written motion stating that he believes the suit or proceeding is

being prosecuted or defended without authority, cause the attorney to be cited to

appear before the court and show his authority to act. . . . ”).

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2. The O’Quinn Group’s suit against the Boyaki group in the 189th

The O’Quinn group filed a separate tortious interference/defamation lawsuit

that was assigned to the Harris County 190th. Judge Elrod recused herself, and

that case was transferred to the Harris County 189th.

3. The Boyaki group’s suit against the O’Quinn group in the 327th

The Boyaki group then filed a tortious interference/defamation lawsuit

against the O’Quinn group in the El Paso 327th district court. According to the

O’Quinn group’s petition in the underlying case here, this suit was a “mirror-

image” of their Harris County suit, and—over the years—the O’Quinn group

“ha[s] had to obtain approximately six separate TROs to keep the [Boyaki group]

from proceeding on various aspects of the El Paso case.”

4. Special Master Proceedings

In December 2004, Justice Duggan presided over several days of hearings

and determined which lawyers represented which of the clients in the Ramirez

case. The O’Quinn group and the Boyaki group agreed to defer requesting a ruling

about what actual fees, if any, were owed by the clients to each of the two groups

until the merits of the Ramirez case were ultimately resolved.

5. The Ramirez case settlement

In early 2005, the Ramirez case in the 190th court globally settled. Given

Justice Duggan’s familiarity with the claims, Judge Elrod appointed Justice

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Duggan to preside over the settlement. Justice Duggan reviewed each client’s file

and apportioned the global settlement among clients. Judge Elrod approved his

submitted findings. One of the defendants’ requirements of the settlement was that

settlement conferences be conducted with each client, on video, before a court

reporter and a judge. The parties agreed to conduct these settlement conferences

before Justice Duggan in Laredo and Judge Chew in the 327th court in El Paso.

During this settlement process, the Boyaki group challenged the expenses

charged to clients by the O’Quinn group. That dispute was submitted to binding

arbitration in Houston before Randy Butler.

B. The Boyaki group’s objection to the final attorneys’ fees resolution

On December 12, 2008, immediately after the arbitration on expenses

concluded, Justice Duggan was scheduled to begin the last round of hearings in

Houston on the attorneys’ fees issue. After hours on December 11, 2008, the

Boyaki group filed, in the El Paso 327th district court, a motion to recuse Justice

Duggan from presiding over the special master proceedings scheduled to begin the

next day. The O’Quinn group obtained a TRO from the ancillary Harris County

judge to prevent the Boyaki group from going forward with a hearing in the El

Paso 327th court.

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C. The Underlying proceedings

On December 30, 2008, the O’Quinn group filed the underlying proceeding,

alleging that the parties “agreed to proceed with the fee dispute before Judge

Duggan with no right of appeal,” and that the O’Quinn group fully performed its

contractual obligations and was prepared to enter the final round of hearings before

Justice Duggan on December 12, 2008 and abide by his ruling. This suit was

assigned to the Harris County 127th, and then the Civil Administrative Judge

transferred the case to the 190th on January 7, 2009 (Judge Patricia Kerrigan,

Judge Elrod’s successor, presiding).

The O’Quinn group set its request for a temporary injunction for hearing on

January 9, 2009 in the 190th court. Two days before that hearing date, on January

7, 2009, the Boyaki group filed a notice of removal in federal court, but—contrary

to the certificate of service indicating service was made on the O’Quinn group on

the day of filing—the O’Quinn group claims that it did not receive notice until

January 8, and that the Boyaki group did not file the notice with the 190th court

until after 5:00 p.m. on January 8. The 190th cancelled the hearing scheduled for

the 9th in response to the notice of removal.

The federal district court granted the O’Quinn group’s motion for remand.

In the remand order, the district court found the Boyaki group’s removal to be

frivolous and a violation of Federal Rule of Civil Procedure 11. The O’Quinn

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group then sought, and was awarded, sanctions against the Boyaki group (as well

as another lawyer on the removal pleadings, Heriberto Ramos) in the 190th based

upon its conduct with regard to the removal.

The Boyaki group then filed a motion to recuse Judge Kerrigan, arguing

that her sanctions order demonstrated that she will not rule impartially in the

underlying case. That motion was denied by the Presiding Judge of the Second

Administrative District, the Honorable Olen Underwood.

D. The Rule 11 settlement agreement and the trial court’s summary

judgment

In June 2009, the lawyers finally mediated and signed a “Settlement

Agreement,” which they filed in the 190th court on July 14, 2009 as a “Rule 11

Agreement entered into between John O’Quinn, Walter Boyaki, Charles B.

Musslewhite, Jr., Ruben Hernandez and Victor Cruz.” Pursuant to that agreement

and at the request of Justice Duggan, on June 30, 2009, the trial court signed an

order permitting distribution of $3,227,000 to the O’Quinn group from the court’s

registry, with $50,000 retained in the court registry for contingencies.

The parties continued to quibble over compliance with some terms of the

settlement, including the requirement that both sides sign mutual releases. Also,

one of the Boyaki group, Walter Boyaki, indicated to the Judge Kerrigan that he

was unwilling to state on the record that a final settlement had been reached unless

the trial court agreed to lift the sanctions order. The court refused.

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In December, 2011, the O’Quinn group filed a motion for summary

judgment to enforce the settlement agreement, arguing that it had materially

complied with the agreement’s terms, but that the Boyaki group had breached the

agreement. The motion also requested attorneys’ fees. The Boyaki group

responded that summary judgment was inappropriate because “there was only a

tentative agreement to settle” that was “not accomplished due to the actions” of the

O’Quinn group.

After several more hearings during which the court expressed the view that

the Rule 11 agreement was a valid settlement and urged the parties to move

forward with the agreement’s terms, the court granted the O’Quinn group’s motion

for summary judgment, awarded $145,350.00 in attorneys’ fees to the O’Quinn

group, and the Boyaki group timely appealed.

ISSUES ON APPEAL

The Boyaki group brings the following eight issues:

1. “The Trial Court failed to evaluate the evidence and failed to

recognize fact issues in granting Appellees’ motion for summary

judgment because as a matter of law there were numerous material

issues of facts in dispute and they were not legally sufficient to grant

summary judgment.”

2. “The Trial Court incorrectly applied the law and incorrectly evaluated

the law in finding an enforceable Rule 11 agreement when all that was

before the court was a tentative agreement to agree.”

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3. “The Trial Court had no jurisdiction to order sanctions against the

Appellants because only a U.S. District Judge could have ordered

sanctions for a failed attempt at removing a state case to federal

court.”

4. “The Trial Court erred in applying the law and abused its discretion in

awarding attorneys feels to the Appellees where there was no

evidence warranting attorneys’ fees, when the fees were not proved up

according to Texas Supreme Court standards and when Appellees

suffered no damage.”

5. “The Trial court abused its discretion in not finding the Appellees’

claims barred by quasi-estoppel for misconduct or inconsistent

positions on the part of Appellees.”

6. “The Trial court incorrectly applied the law when it appointed and

ordered the parties to proceed with their case before a special master

when the parties did not agree to a special master and the

circumstances of the case did not warrant a special master.”

7. “The Trial Court ignored the law and the local rules in not transferring

this case back to the 127th District Court or to the 189th District Court

because Appellees had the case ‘attracted’ to the wrong court under

the Harris County local rules of court.”

8. “The Trial Court abused its discretion in not recusing the Trial Judge

due to obvious bias and lack of impartiality.”

In addition to disputing the merits of the Boyaki group’s arguments, the

O’Quinn group objects to the Boyaki group’s “failure to make appropriate citations

to the record, failure to include necessary documents in the record, and failure to

include documents as proper parts of the record.”

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SPECIAL MASTER, TRANSFER, AND RECUSAL

The Boyaki group challenges the trial court’s summary judgment on several

grounds unrelated to the merits of the summary judgment, which we address first.

We conclude these complaints are either without merit or waived.

A. Special Master

The Boyaki group contends that the trial court erred by appointing a special

master that was not agreed to by the parties. Justice Duggan was originally

appointed in an “Agreed Order Appointing Special Master”—signed by Judge

Elrod, judge of the 190th, in the personal injury cause number 1999-36433A (the

Ramirez case), to determine “which attorney represents each of the Plaintiffs, and

specify the percentage or amount of fees, if any, to be received by each attorney in

connection with work on this case.” The crux of the Boyaki group’s argument here

is that Judge Duggan was appointed only in the Ramirez case cause number, and

that he could not continue his role in determining attorneys’ fees without the

Boyaki group’s consent, after his “term, as set out in the order expired, and the

190th finished and closed the case without extending the term of the Special

Master.”

The O’Quinn group responds that the Boyaki group consented to the

appointment and actually submitted to Justice Duggan’s authority to decide on the

distribution of attorneys’ fees, and agreed in writing to abide by his findings. The

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O’Quinn group also pointed out that the Boyaki group appeared in court on the

record to participate with Justice Duggan, and even volunteered to handle tax

issues for him in his role as special master. The Boyaki group also sought to

compel the O’Quinn group to “abide by” Justice Duggan’s findings and relied

upon an agreement in which they agreed “to be bound by Justice Duggan’s ruling.”

Finally, the O’Quinn group asserts that the Boyaki group’s complaint is barred by

laches and note that the Boyaki group does not specify what relief it seeks here

regarding Justice Duggan’s role in the case.

Rule 171 of the Texas Rules of Civil Procedure governs appointments of

special masters. Generally, “[t]he appointment of a master lies within the sound

discretion of the trial court and should not be reversed except for a clear abuse of

that discretion.” Simpson v. Canales, 806 S.W.2d 802, 811 (Tex. 1991). When

parties consent to appointment of a special master, the appointment is not subject

“to the same strictures as one imposed by the court” under Rule 171, and to “the

extent the parties consent to the reference it will ordinarily not be subject to

challenge.” Id.; see also Young v. Young, 854 S.W.2d 698, 701 (Tex. App.—

Dallas 1993, writ denied) (when agreement differs from what is provided under

Rule 171, “the parties are bound by the language in the agreed order”).

The agreed order in the Ramirez case, which the Boyaki group does not

dispute accurately reflected their agreement, delegated to Justice Duggan the task

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of determining the scope of representation and fees owed “to each attorney in

connection with work on this case,” i.e., the Ramirez case. The underlying suit

here—although brought under a new cause number—is premised on the O’Quinn

group’s claim that the Boyaki group reneged on its agreement to proceed before

Justice Duggan on the issue of attorneys’ fees for work on the Ramirez case. The

Boyaki group cites us no authority for the proposition that its consent to submit

that particular issue to a special master was only effective in the Ramirez cause

number, but not in a separate cause number brought to enforce that very consent.

The transcripts from the various hearings reflect that Justice Duggan

continued to be involved in this case, including helping the parties come to an

ultimate settlement. But—while the Boyaki group complains generally about

Justice Duggan’s continued role in resolving the parties’ dispute—there is no

indication in the record that the parties’ fee dispute was ultimately decided by

Justice Duggan; rather, the dispute was voluntarily resolved by the parties in a

Rule 11 mediated settlement agreement. The summary judgment order that is the

subject of the Boyaki group’s appeal here is premised on that Rule 11 agreement—

not on a decision by Justice Duggan. The Boyaki group in fact has not articulated

any impact that Justice Duggan had on the settlement that was ultimately reached

or on the trial court’s summary judgment that is the subject of this appeal. See

TEX. R. APP. P. 44.1(a) (no judgment may be reversed on appeal absent a showing

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of harm); see also Gann v. Anheuser-Busch, Inc., 394 S.W.3d 83, 89 (Tex. App.—

El Paso 2012, no pet.). Because we conclude the Rule 11 agreement is an

enforceable settlement agreement, the lawyers’ settlement of their fee dispute

renders any dispute over a special master’s role in the fee dispute before the

voluntary settlement moot. E.g., Scott-Richter v. Taffarello, 186 S.W.3d 182, 188

(Tex. App.—Fort Worth 2006, pet. denied).

We overrule the Boyaki group’s sixth issue.

B. Transfer

The underlying case was originally assigned to the 127th Harris County

court, and then transferred a week later under the Harris County Local Rules by

Judge Tracy Christopher, the Civil Administrative Judge, to the 190th. Judge

Kerrigan later made findings that the case should have originally been assigned to

the 190th and that the transfer was proper.

The Boyaki group contends that the underlying case was improperly

transferred to 190th for “no reason other than forum shopping” by the O’Quinn

group. According to the Boyaki group, the case should have been transferred back

to the 127th or, alternatively, the case should have instead tracked to the 189th.

The Boyaki group insists that it “is obvious on its face that the tracking system for

the Harris County District Clerk’s office was tampered with.” Accordingly, it

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argues, “[a]ll of the orders of the 190th should be voided as a violation of the

rules.”

The O’Quinn group contends that the transfer to the 190th was proper, and

argues that the Boyaki group has preserved nothing for review, as it cites nothing

in support of the accusations of forum shopping and document tampering in the

district clerk’s office. TEX. R. APP. P. 38.1(i). We agree.

The Ramirez case was in the 190th court when the issue arose about which

lawyers represented which clients and what fees were owed for that representation.

In the 190th, the lawyers agreed to submit these issues to a special master. The

underlying suit was brought to enforce that agreement to proceed before the special

master in determining attorneys’ fees due for work in the Ramirez case. The

Boyaki group has not demonstrated that the transfer of the underlying case to the

190th was improper and has not cited any authority in support of their accusations

of impropriety on behalf of the O’Quinn group and/or the clerk’s office staff.

We overrule the Boyaki group’s seventh issue.

C. Recusal

In the trial court, the Boyaki group filed a motion to recuse Judge Kerrigan,

citing one reason—i.e., that by sanctioning Heriberto Ramos for the improper

removal of the case, Judge Kerrigan had demonstrated bias against an important

witness. Specifically, the Boyaki group argued that Ramos (who is not counsel of

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record or a party, but who was counsel on pleadings removing the underlying

cause to federal court) is necessary to their defense in the underlying case.

Because Judge Kerrigan demonstrated alleged bias against Ramos, the Boyaki

group argued she would “not rule impartially concerning the testimony of Mr.

Ramos.”

In their brief here, the Boyaki group argues that “the presiding

administrative Judge erred in denying the motion to recuse the trial court judge”

because it was “subject to a series of abuses at the hands of the Trial Judge, all of

which called into question the impartiality of the Court.” In addition to the reason

cited in the trial court motion (i.e., alleged bias against Ramos), the Boyaki group

lists eighteen other reasons in its brief, which include complaints brought under

other points of error in its brief (i.e., the trial court’s refusal to transfer the case

back to the 127th and the trial court’s sanctioning lawyers in the Boyaki group for

removing the case), as well as numerous reasons unsupported by record citations

(i.e., the trial court “mak[ing] disparaging remarks about the Defendants that they

should get another mentor besides Boyaki,” “having them appear constantly in her

court knowing they were from out of town,” and “demonstrate[ing] a pattern which

indicates the 190th would rule against these Defendants on whatever issue the Trial

Court had before it.”).

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“A judge must recuse in any proceeding in which: (1) the judge’s

impartiality might reasonably be questioned; [or] (2) the judge has a personal bias

or prejudice concerning the subject matter or party.” TEX. R. CIV. P. 18b(b). “An

order denying a motion to recuse may be reviewed only for abuse of discretion.”

TEX. R. CIV. P. 18a(j)(1)(A). The erroneous denial of a motion for recusal does not

render the court’s orders void, but instead only reversible. In re Union Pac. Res.

Co., 969 S.W.2d 427, 428 (Tex. 1998) (orig. proceeding). Grounds for recusal can

be waived if not properly raised in a motion to recuse. Id.

Neither the administrative judge’s order denying the motion to recuse nor

the record from the hearing on the motion is included in the record.2 The only

reason for recusal cited in the motion filed in the trial court (i.e., the trial court’s

sanctions order) is not a proper basis for recusal. TEX. R. CIV. P. 18a(a)(3) (stating

that a motion for recusal “must not be based solely on the judge’s rulings in the

case”); Grider v. Boston Co., 773 S.W.2d 338, 346 (Tex. App.—Dallas 1989, writ

denied), disapproved on other grounds by Tex. Commerce Bank, N.A. v. Grizzle,

96 S.W.3d 240, 256 (Tex. 2002) (same).

2

A trial judge faced with a motion to recuse has two options: recuse herself or refer

the case to the administrative judge to assign another judge to hear the motion.

McLeod v. Harris, 582 S.W.2d 772, 773 (Tex. 1979). Judge Kerrigan referred the

motion to recuse to the Presiding Judge of the Second Administrative District, the

Honorable Olen Underwood. According to the O’Quinn group’s brief, Judge

Underwood held a hearing and denied the motion.

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There is no indication that any of the other reasons the Boyaki group cited in

their brief were presented to the trial court or administrative judge. We will not

address arguments in support of recusal that are not supported by citations to the

appellate record or that are presented here in the first instance. Evans v. Hoag, 711

S.W.2d 744, 746 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.); see

also TEX. R. APP. P. 33.1(a), 38.1(i).

We overrule the Boyaki group’s eighth issue.

THE SUMMARY JUDGMENT

The Boyaki group lodges several challenges to the merits of the trial court’s

summary judgment. Specifically, it argues that the Rule 11 was not a contract, but

rather a “tentative agreement to agree” with too many uncertain terms, and thus

cannot support a breach of contract claim. It also contends that the O’Quinn group

should be barred by quasi-estoppel from relying on the Rule 11 agreement.

Finally, it argues that the trial court erred by awarding attorney’s fees.

A. Standard of Review

We review the trial court’s grant or denial of a traditional motion for

summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656,

661 (Tex. 2005); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.—Corpus

Christi 2003, no pet.). When reviewing a traditional summary judgment, we must

determine whether the movant met its burden to establish that (1) no genuine issue

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of material fact exists and (2) the movant is entitled to judgment as a matter of law.

TEX. R. CIV. P. 166a(c); Provident Life and Accident Ins. Co. v. Knott, 128 S.W.3d

211, 215–6 (Tex. 2003) (citing Haase v. Glazner, 62 S.W.3d 795, 797 (Tex.

2001)); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). In

reviewing a traditional summary judgment, we consider all the evidence in the

light most favorable to the nonmovant, indulging every reasonable inference and

resolving any doubts in favor of the nonmovant. Goodyear Tire & Rubber Co. v.

Mayes, 236 S.W.3d 754, 756 (Tex. 2007) (per curiam). “A party moving for

summary judgment must establish its right to summary judgment on the issues

expressly presented to the trial court by conclusively proving all elements of its

cause of action or defense as a matter of law.” Elliot–Williams Co. v. Diaz, 9

S.W.3d 801, 803 (Tex. 1999) (citations omitted); see also TEX. R. CIV. P. 166a(b),

(c). The summary judgment movant has conclusively established a matter if

reasonable people could not differ as to the conclusion to be drawn from the

evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

B. The Rule 11 Agreement

“If the parties reach a settlement and execute a written agreement disposing

of the dispute, the agreement is enforceable in the same manner as any other

written contract.” TEX. CIV. PRAC. & REM. CODE ANN. § 154.071(a) (West 2011);

Martin v. Black, 909 S.W.2d 192, 195 (Tex. App.—Houston [14th Dist.] 1995,

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writ denied). An agreement is enforceable if it is “complete within itself in every

material detail, and [ ] contains all of the essential elements of the agreement.”

Padilla v. LaFrance, 907 S.W.2d 454, 460 (Tex. 1995). The intent of the parties to

be bound is an essential element of an enforceable contract, see Foreca, S.A. v.

GRD Dev. Co., 758 S.W.2d 744, 746 (Tex. 1988), and is often a question of fact.

Id. But where that intent is clear and unambiguous on the face of the agreement, it

may be determined as a matter of law. Cf. Padilla, 907 S.W.2d at 461–62.

Texas Rule of Civil Procedure 11 states that, “[u]nless otherwise provided in

these rules, no agreement between attorneys or parties touching any suit pending

will be enforced unless it be in writing, signed and filed with the papers as part of

the record, or unless it be made in open court and entered of record.” “To satisfy

the ‘in writing’ provision of Rule 11, the same contract principles apply that are

used to determine when a ‘writing’ satisfies the statute of frauds.” CherCo Props.,

Inc. v. Law, Snakard & Gambill, P.C., 985 S.W.2d 262, 265 (Tex. App.—Fort

Worth 1999, no pet.) (citing Padilla, 907 S.W.2d at 460). “Thus, a Rule 11

settlement agreement is not enforceable unless it is complete within itself as to

every material detail and contains all the essential elements of the agreement so the

contract can be ascertained from the writing, without resort to oral testimony.” Id.

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a. The trial court correctly determined that the parties had an

enforceable settlement agreement.

The document at issue is entitled “Settlement Agreement.” Among other

things, it provides for (1) dismissal with prejudice of suits between the parties in

various courts, (2) indemnity on behalf of clients and lawyers in favor of the

various lawyers, (3) an agreement for Boyaki, Hernandez, Ramos, Echegaray and

Victor Cruz to appear in the 190th under oath to attest that they have audited the

O’Quinn group’s fee statements and found no valid claims for overcharges against

the O’Quinn group, (4) mutual releases signed by both sides, (5) Boyaki’s

agreement to dismiss sanction allegations in the supreme court and sign a

statement “that allegations regarding sanctions motion before Judge Chew was

mistaken,” (6) certain clients to sign release and indemnification in favor of the

O’Quinn group by August 6, 2009, (7) the O’Quinn group and Boyaki group to

each sign releases on behalf of all the clients in favor of each other by July 15,

2009, (8) the O’Quinn group’s representation that they will not oppose Boyaki’s

motion for reconsideration of sanctions in 190th, (9) “The Boyaki Group to get

$300,000.00 from monies in the registry of the 190th Court to cover claims for fees

and expenses by Boyaki, Hernandez, Echegaray, Cruzes and Ramos which

represents a complete and final payment of all monies due to or ever claimed to be

due to each and every member of the Boyaki Group being Boyaki, Hernandez,

Echegaray, the Cruzes and Herberto Ramos,” (10) “John M. O’Quinn and Charles

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B. Musslewhite, Jr. to receive all remaining monies to the registry of the 190th

Court in the approximate amount of $3,270,000.00, upon approval of this

Settlement Agreement by Judge Duggan and Judge Kerrigan,” (11) “The parties

agree to recommend these amounts to Justice Duggan and abide by this findings,”

(12) Boyaki parties recommend $150,000.00 to Boyaki and Hernandez for

expenses and other $150,000.00 divided equally among Boyaki, Hernandez,

Echegaray, and Cruzes in fees, (13) the Boyaki parties will submit to Justice

Duggan for a final hearing regarding the division of fees between the lawyers on

their camp, and the Boyaki parties agree to pay Judge Duggan’s fees and be bound

by his ruling, (14) the O’Quinn group agree that any client who survived the DLB

269 disaster and paid a full 40% fee will be reimbursed according to an appended

schedule pursuant to Arbitrator Randy Butler’s order, (15) the O’Quinn group

agrees to pay two clients $4,000.00 in return for a full release and indemnification,

and Boyaki agrees to pay one of the clients an additional $1,000, and (16) the

O’Quinn group agrees to sign appropriate paperwork to release funds held in trust

for a client.

The agreement states that it is “binding as to all who sign even if not all

sign,” and is signed by O’Quinn, Musslewhite, Boyaki, Hernandez, and Victor

Cruz. An appendix labeled “Exhibit to Settlement Agreement” contains a schedule

of fees from the parties’ arbitration, and the additional clause providing, “Boyaki

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and Musslewhite agree to negotiate any payments to potentially 7 more claimants

in good faith but failure to agree does not abrogate the Settlement Agreement and

they agree to present the dispute to Justice Duggan for final adjudication.” That

exhibit is initialed by each of the agreement’s signatories.

Although the settlement agreement contains provisions for future

performance (such as the execution of releases and indemnity agreements), the

basic terms of the agreement are set forth and, more importantly, the agreement

does not contain any language indicating that final agreement is conditioned upon

anything in the future. This written agreement was filed in the 190th as a Rule 11

agreement on July 14, 2009.

In response to the O’Quinn group’s motion for summary judgment to

enforce this agreement, the Boyaki group argued that it reflected only a “tentative

agreement.” They argue the same thing in their brief here, pointing to the

following as evidence that the Settlement Agreement filed a Rule 11 was only a

tentative agreement that never materialized:

- their own characterization of the settlement in later correspondence as

“tentative,”

- the trial court’s July 29, 2011 order requesting the parties submit to the court

“a document that: 1) reflects the terms of the settlement, 2) which of the

terms of the settlement have been fulfilled, and 3) which settlement terms, if

any, have either not been fulfilled or have been waived.”

- the parties’ May 21, 2012 “Parties’ Joint Document of Current Status” in

which the parties identify which obligations under the Settlement Agreement

22

have been performed, which ones have been waived, which ones have not

been performed, and which ones the parties disagree about whether they have

been performed

- the O’Quinn group’s alleged objection to the Boyaki group’s fees being paid

- a reference during a June 8, 2012 hearing to 15 drafts of a proposed

confidential settlement agreement, and

- the trial court notices setting the case for trial.

According to the Boyaki group, these “facts show there was no agreement.”

It argues a jury should have been permitted to determine if there was an

agreement—a view they claim the trial court demonstrated it shared by setting the

case for trial. They further contend that an affidavit by Boyaki submitted as

evidence in response to the Houston lawyer’s motion for summary judgment

demonstrates that “the alleged agreement is legitimately disputed, because, as set

out in the record, many of the terms of the so-called agreement had not been

fulfilled by” the O’Quinn group.

In sum, they contend that (1) the “so-called agreement is missing essential

terms, i.e., dismissals, releases and indemnification,” (2) “there were numerous

aspects of the tentative agreement that still needed to be addressed,” and (3) the

“tentative agreement is filled with ambiguity.”

In response, the O’Quinn group points out that, in a December 31, 2009

filing, the Boyaki group acknowledged the validity of the Rule 11, stating in their

amended answer:

23

Since the filing of Plaintiffs’ Original Petition the parties have settled

all of their differences and therefore all of Plaintiffs claims are moot.

Plaintiffs, as a result of the settlement, have filed their Motion to

Dismiss this lawsuit. As all matters in controversy have been settled

there has been accord and satisfaction, and release.

The O’Quinn group also notes that much of what the Boyaki group relies

upon to demonstrate the alleged tentativeness of the agreement is either (1) not

contained in the summary judgment record, or (2) is taken out of context. They

further contend that the Boyaki group’s arguments are misguided because all of the

requirements under an agreement do not have to be performed for that agreement

to be enforceable.

We agree that the question is not whether the settlement agreement had been

fully performed, but instead whether the parties had reached a definitive agreement

to settle that was specific and inclusive enough to be enforceable. CherCo

Properties, Inc., 985 S.W.2d at 265–66. Under Texas law, a settlement agreement

can be binding premised upon promises for payments and actions in the future, so

long as the writing is sufficiently clear as to the terms. See, e.g., Padilla, 907

S.W.2d at 460–61 (“Steidley accepted Padilla’s agreement to pay the policy limits

as acceptance of his earlier offer. Moreover, the letters reflect all material terms of

the agreement; i.e., Padilla agreed to pay $40,000 in settlement of all claims, and

the La Frances agreed to pay the hospital lien out of those proceeds. We

24

accordingly hold that the parties entered into a binding settlement agreement,

evidenced by a writing sufficient to satisfy Rule 11.”).

Here, the trial court correctly concluded that the Rule 11 agreement was

sufficiently definite, memorialized the parties’ intent to be bound by a settlement,

and did not reflect that the parties conditioned the settlement upon future

performance. While the parties’ agreement did call for the future execution of

certain indemnity agreements and other obligations, nothing in the agreement

indicates the parties’ intentions that those be conditions precedent to an

enforceable agreement. Other courts have interpreted similar agreements to be

enforceable absent indication that future performance was a condition to be

enforceability. For example, in Hardman v. Dault, the San Antonio Court of

Appeals concluded that a deadline in a settlement agreement for signing “final

documents” was not evidence that the agreement was not effective upon execution:

The settlement memorandum in this case sets out the essential terms

of the agreement. No material or essential detail was left out. All that

remained were the “final documents” necessary to carry out the

agreement. Hardman claims the parties contemplated that signing

final documents by January 1, 1997 was a condition precedent to the

formation of an enforceable agreement. Since the documents were not

signed by the deadline, Hardman says there was no contract. The

issue, then, is whether the contemplated documentation was a

condition precedent to the formation of a contract or simply a

memorial of an already enforceable contract.

....

The “final documents” provision neither suggests nor infers that the

parties intended that the agreement was to be subject to any

subsequent action by the parties, or that the signing of documents was

25

to be a condition precedent to the formation of an enforceable

contract. Thus, since the settlement agreement contains all essential

terms, and there being no fact issue concerning whether the parties

intended the settlement agreement to be binding, the partial summary

judgment enforcing the written settlement agreement is affirmed.

2 S.W.3d 378, 380 (Tex. App.—San Antonio 1999, no pet.). Likewise, the

settlement agreement here providing for future performance did not render the

agreement unenforceable. And nothing else the Boyaki group cites here

demonstrates that the parties did not intend, at the time of execution, to be bound.

We overrule the Boyaki group’s first and second issues.

b. The trial court’s summary judgment was not barred by quasi-

estoppel.

The Boyaki group contends that “the trial court erred in not finding quasi-

estoppel to defeat plaintiffs’ claims.” See Lopez v. Munoz, Hockema & Reed,

L.L.P., 22 S.W.3d 857, 864 (Tex. 2000) (“Quasi-estoppel precludes a party from

asserting, to another’s disadvantage, a right inconsistent with a position previously

taken” and applies “when it would be unconscionable to allow a person to maintain

a position inconsistent with one to which he acquiesced, or from which he accepted

a benefit.”). Specifically, they argue that the O’Quinn group “failed to follow

through or complete their obligations under the so-called contract, from failing to

dismiss this case to opposing the lifting of sanctions, opposing payment to the

Defendant, and not paying the Mexican Nationals, etc.”

26

In response, the O’Quinn group contends that the evidence cited by the

Boyaki group in support—i.e., “the unsworn statement by Appellant Boyaki about

his views on the status of the case as of July 22, 2011 and an unsworn letter from

him to opposing counsel, dated August 8, 2011”—is not proper summary-

judgment evidence and, in any event, does not establish quasi-estoppel.

Other than reciting the law and the one-sentence argument quoted above, the

Boyaki group has not articulated how quasi-estoppel applies in this case. Even

assuming their assertions to be true and proper summary-judgment evidence, they

do not cite any cases applying quasi-estoppel on analogous facts or assertions, and

we have located none.

We overrule the Boyaki group’s fifth issue.

c. The trial court’s award of attorneys’ fees was not supported by

sufficient evidence.

The trial court’s summary judgment also awarded to the O’Quinn group

$145,350.00 in attorneys’ fees, as well as conditional appellate attorneys’ fees.

The Boyaki group argues that was improper, as the settlement agreement “does not

mention attorneys’ fees” and the O’Quinn group was not otherwise entitled to

attorneys’ fees under Chapter 38 of the Texas Civil Practice and Remedies Code.

The Boyaki group also challenges the reasonableness and necessity of the

attorneys’ fees awarded. In response, the O’Quinn group contends that the Boyaki

27

group has waived various arguments and that, in any event, it complied with

Chapter 38, and that the attorneys’ fee award is proper.

“To recover attorney’s fees under section 38.001, a . . . claimant must: (1)

plead and prevail on a claim for which attorney’s fees are permitted under section

38.001, (2) be represented by an attorney, (3) present the claim to the opposing

party or his agent, and (4) demonstrate that the opposing party did not tender

payment within thirty days after the claim was presented.” 1/2 Price Checks

Cashed v. United Auto. Ins. Co., 344 S.W.3d 378, 383 (Tex. 2011) (citing TEX.

CIV. PRAC. & REM. CODE §§ 38.001, .002). The contract itself need not provide for

attorneys’ fees. Helping Hands Home Care, Inc. v. Home Health of Tarrant

County, Inc., 393 S.W.3d 492, 516 (Tex. App.—Dallas 2013, pet. denied).

“No particular form of presentment of a claim is required.” Id. “ However,

neither the filing of a suit, nor the allegation of a demand in the pleadings can,

alone, constitute a presentment of a claim or a demand that the claim be paid,

within the meaning of section 38.002.” Id. (citing W. Cas. & Sur. Co. v. Preis, 695

S.W.2d 579, 589 (Tex. App.—Corpus Christi 1985, writ ref’d n.r.e.)).

If an agreement complies with Rule 11, then the party seeking to enforce the

agreement may amend its pleading and add a breach of contract claim on that

agreement. See Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex.

1996) (orig. proceeding) (per curiam). That is what happened here; the O’Quinn

28

group amended its pleading to plead a breach-of-contract claim, i.e., that the

Boyaki group breached the settlement agreement, that all conditions precedent to

their claims for relief have been performed or occurred, and that attorneys’ fees

should be awarded.

In its motion for summary judgment on that claim, the O’Quinn group

proffered affidavits that averred the Boyaki group “materially breached” the Rule

11 agreement by failing to execute Mutual Releases, and by

forcing [the O’Quinn group] to go to the needless time, effort and

expense of getting [the Boyaki group] to withdraw their motion for

new trial in the 327th; preparing for and appearing at multiple status

conferences and hearings before this Court; amending their petition;

and researching and preparing and filing this Motion for Summary

Judgment to enforce the mediated Rule 11 Settlement Agreement.

As supporting evidence, the O’Quinn group attached copies of the settlement

agreement, correspondence and transcripts related to various hearings,

correspondence between the parties, and two attorneys’ fees affidavits.

The trial court’s summary judgment stated that “the mediated Rule 11

Settlement Agreement was intended to resolve all pending litigation in all courts

involving the parties,” granted the O’Quinn group’s “Motion for Summary

Judgment to Enforce Rule 11,” and awarded $145,350.00 in “reasonable and

necessary attorneys’ fees . . . for services rendered through the summary judgment

of this suit,” as well as conditional appellate attorneys’ fees, costs and interest. No

29

other money damages were awarded, but the trial court ordered funds remaining in

the registry of the court to be disbursed and all claims dismissed with prejudice.

We consider two aspects of the fee award. First, we consider whether

Chapter 38 affords a recovery of attorneys’ fees when a party prevails in seeking

specific performance enforcing a Rule 11 agreement but not a money judgment.

Second, we determine whether the summary-judgment evidence in this case

conclusively proved the reasonable and necessary amount of recoverable attorneys’

fees. To the first question, we answer “yes”: when a party prevails in obtaining

enforcement by specific performance of a Rule 11 agreement, it has recovered

relief that will support an award of Chapter 38 attorneys’ fees. To the second, we

answer “no”: the O’Quinn group’s evidence did not establish its requested

attorneys’ fees were reasonable and necessary.

(a) Attorneys’ fees for enforcement of a settlement agreement

by order of specific performance

The availability of attorneys’ fees under a particular statute is a question of

law for the court. Holland v. Wal–Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999).

We review the trial court’s decision to award attorneys’ fees de novo.

G.R.A.V.I.T.Y. Enters., Inc. v. Reece Supply Co., 177 S.W.3d 537, 546 (Tex.

App.—Dallas 2005, no pet.).

Section 38.001 authorizes an award of attorneys’ fees “in addition to the

amount of a valid claim” in a breach-of-contract case. TEX. CIV. PRAC. & REM.

30

CODE § 38.001(8) (West 2008). Thus, a threshold requirement for recovering

attorneys’ fees under Chapter 38 is a recovery that compensates for actual damages

sustained. MBM Financial Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d

660, 666 (Tex. 2009) (“To recover fees under this statute, a litigant must do two

things: (1) prevail on a breach of contract claim, and (2) recover damages.”).

The courts of appeals are split on the issue of whether recovery of monetary

damages is necessary to support a claim for attorney’s fees under Chapter 38 or

whether prevailing on a breach-of-contract claim and recovering relief by an order

of specific performance of the contract is sufficient to support such an award. The

Austin and Texarkana courts have concluded that attorneys’ fees under Chapter 38

may not be awarded to the prevailing party in a breach-of-contract case absent a

monetary recovery. Haubold v. Medical Carbon Research Inst., 2014 WL

1018008 at *5–6 (Tex. App.—Austin March 14, 2014, no pet.) (mem. op.)

(concluding that specific performance in enforcing Rule 11 agreement was not a

recovery of actual damages and thus attorney’s fees incurred in enforcing the

agreement were not recoverable); Berg v. Wilson, 353 S.W.3d 166, 182 (Tex.

App.—Texarkana 2011, pet. denied) (concluding that “because Wilson did not

recover actual damages, she was not entitled to recover attorneys’ fees on her

[Rule 11] breach of contract claim,” but affirming award on alternative basis).

31

In contrast, this Court has held that relief in the form of specific performance

of the contract is a recovery that remedies actual damage for a valid claim. See

Albataineh v. Eshtehardi, 2013 WL 1858864, at *1–2 (Tex. App.—Houston [1st

Dist.] May 2, 2013, no pet.) (mem. op.) (holding that “an award of specific

performance of the parties’ settlement and of the restrictive covenant in the special

warranty deed” supported an award of Chapter 38 attorneys’ fees and rejecting the

argument that money damages in addition to relief by specific performance were

required); see also TEX. CIV. PRAC. & REM. CODE § 38.005 (“This chapter shall be

liberally construed to promote its underlying purposes.”).

Other courts of appeals have likewise recognized that a “valid claim” under

section 38.001(8) is not limited to a claim for monetary damages, but also

encompasses specific performance of the agreement to avoid actual damage.

Woody v. J. Black’s, L.P., 2013 WL 5744359, at *6 (Tex. App.—Amarillo Oct. 13,

2013, pet. denied) (mem. op.) (recognizing that an “injunction enforcing specific

performance of a contract is something of value” sufficient to support Chapter 38

attorneys’ fees and rejecting argument that an award of monetary damages were

required); Rasmusson v. LBC PetroUnited, Inc., 124 S.W.3d 283, 287 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied) (holding that award of specific

performance of arbitration agreement permitted recovery of Chapter 38 attorneys’

fees and rejecting argument that monetary damages were required); Williams v.

32

Compressor Eng’g Corp., 704 S.W.2d 469, 474 (Tex. App.—Houston [14th Dist.]

1986, writ ref’d n.r.e.) (interpreting Chapter 38 to authorize an award of attorneys’

fees when a party “successfully prosecutes a claim founded on . . . written

contracts.”).

These cases reflect the courts’ recognition that an injunction to enforce

specific performance under a contract is of pecuniary value if that enforcement

prevents actual loss to the aggrieved party. Butler, 51 S.W.3d at 797 (quoting

Rodgers v. RAB Invs., Ltd., 816 S.W.2d 543, 551 (Tex. App.—Dallas 1991, no

writ) (recognizing that injunction enforcing covenant not to compete was

something of value)). This meaningful recovery of value in these cases renders

them distinguishable from cases denying recovery of attorneys’ fees because the

prevailing party had no recovery at all (or at most a nominal recovery) for breach

of the underlying contract. See MBM Fin. Corp., 292 S.W.3d at 663 (“[T]he

Woodlands’ fee award cannot be affirmed based on Chapter 38” because they “can

recover neither actual nor nominal damages.”); Green v. Solis, 951 S.W.2d 384,

390 (Tex. 1997) (reversing attorneys’ fees award because although jury found that

contract was breached, it awarded zero damages for breach).

The O’Quinn group obtained an award of specific enforcement of the

settlement agreement and an end to the ongoing litigation in the case. The trial

court heard evidence that the enforcement was necessary because the Boyaki group

33

refused to acknowledge the validity of the Rule 11 agreement, instead continuing

to litigate the case. A judgment “requiring specific performance of a material

contract right” in a Rule 11 agreement is an award of value that affords relief from

impending actual damage. Albataineh, 2013 WL 1858864, at *2. Thus, if the

evidence supports a finding that such relief is of more than nominal economic

value, we hold that Chapter 38 affords the O’Quinn group its attorneys’ fees,

provided that all other conditions to a right to recovery under that chapter are met.

Cf. Ganske v. WRS Group, Inc., 2007 WL 1147357, at *2–3 (Tex. App.—Waco

April 18, 2007, no pet.) (mem. op.) (permitting an award of attorneys’ fees from

prior litigation as actual damages for breach of settlement agreement).

(b) Attorneys’ fee evidence

We next turn to whether the O’Quinn group conclusively proved its

reasonable and necessary attorneys’ fees. Because they did not, we reverse the

award of attorneys’ fees and remand the case.

The supreme court has recently addressed the specificity required of an

affidavit supporting attorneys’ fees under the lodestar method.3 See Long v.

3

“Under the lodestar method, the determination of what constitutes a reasonable

attorney’s fee involves two steps.” El Apple I, Ltd. v. Olivas, 370 S.W.3d 757,

760 (Tex. 2012). “First, the court must determine the reasonable hours spent by

counsel in the case and a reasonable hourly rate for such work.” Id. (citing Dillard

Dep’t Stores, Inc. v. Gonzales, 72 S.W.3d 398, 412 (Tex. App.—El Paso 2002,

pet. denied)). “The court then multiplies the number of such hours by the

applicable rate, the product of which is the base fee or lodestar.” (citing La. Power

& Light Co. v. Kellstrom, 50 F.3d 319, 323–24 (5th Cir.1995)). The court may

34

Griffin, ___ S.W. 3d ___, No. 11-1021, 2014 WL 1643271 (Tex. April 25, 2014).

Under the supreme court’s analysis in Long, the O’Quinn group’s affidavits were

insufficient to support the trial court’s award.

In Long, the supreme court characterized the attorney affidavit at issue as

“only offer[ing] generalities”:

It indicates that one attorney spent 300 hours on the case, another

expended 344.50 hours, and the attorneys’ respective hourly rates.

The affidavit posits that the case involved extensive discovery, several

pretrial hearings, multiple summary judgment motions, and a four and

one-half day trial, and that litigating the matter required understanding

a related suit that settled after ten years of litigation. But no evidence

accompanied the affidavit to inform the trial court the time spent on

specific tasks. See El Apple [Ltd. v. Olivas], 370 S.W.3d [757,] 763

[(Tex. 2012).] The affidavit does claim that 30% of the aggregate

time was expended on the assignment claim (part of which the

Griffins prevailed on) and that the assignment issue was inextricably

intertwined with matters that consumed 95% of the two attorneys’

time on the matter. But without any evidence of the time spent on

specific tasks, the trial court had insufficient information to

meaningfully review the fee request. [City of Laredo v.] Montano,

414 S.W.3d [731,] 736–37[(Tex. 2013)]; El Apple, 370 S.W.3d at 764.

The two attorneys’ fees affidavits at issue here suffer the same deficiencies.

Neil McCabe’s affidavit described the litigation, set forth his experience, listed the

appropriate lodestar factors, and stated his view that the Boyaki group had, by

September 15, 2009, “breached a material term” of the Rule 11 agreement. It then

then adjust the base lodestar up or down (apply a multiplier), if relevant factors

indicate an adjustment is necessary to reach a reasonable fee in the case. Gonzales,

72 S.W.3d at 412. The attorneys’ affidavits in this case sought to prove up

attorneys’ fees under this lodestar method.

35

described his work in generalities similar to that rejected by the supreme court in

Long:

[S]ince September 15, 2009, I have attended several hearings,

prepared a Motion for Temporary Injunction, prepared for the hearing.

I have reviewed various drafts of letters and email correspondence to

opposing counsel. I have communicated to my client, The O’Quinn

Law Firm, the status of implementation of the settlement agreement,

reviewed Texas cases on the enforcement of Rule 11 settlement

agreements, reviewed Plaintiffs’ First Amended Original Petition,

reviewed Plaintiffs’ Motion for Summary Judgment to Enforce Rule

11 Settlement with supporting affidavits. I have also had a number of

additional conferences with representatives of my client and co-

counsel. Accordingly, since September 15, 2009, I have spent at least

98 hours in rendering the above-described necessary legal services . . .

in enforcement of the mediated Rule 11 Settlement Agreement.

Stacy Little, another attorney at a different law firm, proffered an affidavit

containing similar generalities about tasks and the time necessary to perform them:

[S]ince July 22, 2011, I have prepared various drafts of letters and

email correspondence to and for Charles Musslewhite, my co-counsel,

I have communicated to my client, The O’Quinn Law Firm the status

of implementation of the settlement agreement, researched and

reviewed Texas cases on the enforcement of Rule 11 settlement

agreements, drafted and edited Plaintiffs’ First Amended Original

Petition, drafted and edited Plaintiffs’ Motion for Summary Judgment

to Enforce Rule 11 Settlement, with supporting affidavits, and

prepared a proposed Final Summary Judgment. I have also had a

number of additional conferences with representatives of my client

and co-counsel. Accordingly, since July 22, 2011, I have spent at

least 215 hours in rendering the above-described necessary legal

services.

Because the O’Quinn group’s attorneys’ fees evidence is legally insufficient,

we sustain the Boyaki group’s fourth issue. Under Long, the appropriate remedy is

36

a “remand to the trial court for a redetermination of attorney’s fees.” Long, 2014

WL 163271 at *3 (“[U]nder the lodestar method, no legally sufficient evidence

supports the amount of attorney’s fees the trial court awarded because no evidence

indicates the time expended on the specific tasks for which attorney’s fees may be

recovered. Accordingly, . . . [we] reverse the court of appeals’ judgment and

remand to the trial court for a redetermination of attorney’s fees consistent with

this opinion.”).

SANCTIONS

On January 28, 2009, the 190th court issued an Order for Sanctions against

Walter Boyaki, Ruben Hernandez, and Heriberto Ramos for the frivolous removal

of the case to federal court. The following background facts are taken from the

court’s 10-page sanctions order, which included several findings of fact and

conclusions of law:

On December 30, 2008, the O’Quinn group sought and obtained a TRO

from the ancillary Harris County judge, and set a hearing for a related temporary

injunction in the 190th for January 9, 2008. The Boyaki group was represented at

the TRO hearing by Ramos. At the TRO hearing, Ramos threatened the O’Quinn

group that Boyaki would remove the case. The O’Quinn group sent the Boyaki

group a letter immediately after the hearing reflecting the view that there was no

basis for removal, any removal would be in bad faith, and putting it on notice that

37

the O’Quinn group would seek sanctions if the case were removed. The Boyaki

group did not respond.

On January 7, 2008, with notice of the injunction hearing set for January 9,

Boyaki, Hernandez, and Ramos signed and filed a notice of removal in district

court. On the afternoon of January 9, 2009, the federal district court, Judge

Kenneth Hoyt presiding, sua sponte remanded the cause to the 190th court, noting

that no diversity or federal question jurisdiction existed. The remand order also

stated: “This was a frivolous removal, violating FRCP, Rule 11.”

The trial court’s sanction order notes that the sanctions are “based on the

totality of the circumstances surrounding Boyaki, Hernandez and Ramos filing

Notice(s) of Removal in the federal court on January 7, 2009.” The court finds that

Boyaki, Hernandez, and Ramos “have engaged in a pattern of misconduct and

abuse of the judicial process,” and that the “sanctions in [the] Order are issued

pursuant to the Court’s inherent authority to sanction bad faith conduct during

litigation from the conduct outlined [in the order] and for violations of the Texas

Disciplinary Rules of Professional Conduct, the Texas Rules of Civil Procedure,

and the Texas Civil Practice and Remedies Code.” Specifically, the court

concluded that the removal was filed “for the purposes of harassment and/or delay

and to prevent this Court from proceeding with a scheduled hearing on a

Temporary Injunction request.” The order required Boyaki, Hernandez, and

38

Ramos to each (1) pay $1,200 to O’Quinn & Associates, (2) pay $1,200 to

Musslewhite & Associates, and (3) complete 10 hours of Continuing Legal

Education Courses in Ethics.

A. Applicable law

Rule 13 authorizes the sanctions listed in rule 215.2(b) of the Rules of Civil

Procedure against a party, a party’s attorney, or both, for filing pleadings, motions,

or other papers that are groundless and brought in bad faith, or filed to harass. TEX.

R. CIV. P. 13. Appropriate sanctions under rule 215.2(b) include attorneys’ fees, as

awarded here. TEX. R. CIV. P. 215(2)(b); see Koslow’s v. Mackie, 796 S.W.2d 700,

704 (Tex. 1990); Laub v. Pesikoff, 979 S.W.2d 686, 693 (Tex. App.—Houston [1st

Dist.] 1998, pet. denied). The party seeking sanctions must overcome the

presumption that papers are filed in good faith. See TEX. R. CIV. P. 13. In awarding

sanctions, the trial court must state, with particularity, the grounds that constitute

good cause for imposing sanctions. Id.; Gorman v. Gorman, 966 S.W.2d 858, 867

(Tex. App.—Houston [1st Dist.] 1998, pet. denied).

Texas courts have inherent judicial power that they may call upon to aid in

the preservation of their independence and integrity. Public Util. Comm’n of Texas

v. Coffer, 754 S.W.2d 121, 124 (Tex. 1988). This inherent judicial power

encompasses the inherent power to sanction for abuse of the judicial process that

may not be covered by rule or statute. Kutch v. Del Mar College, 831 S.W.2d 506,

39

510 (Tex. App.—Corpus Christi 1992, no writ). Inherent power to sanction exists

to the extent necessary to deter, alleviate, and counteract bad faith abuse of the

judicial process. Id.

We review the imposition of sanctions for abuse of discretion. See Am.

Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (per curiam). We

may reverse the trial court’s ruling only if the trial court acted without reference to

any guiding rules or principles, such that its ruling was arbitrary or unreasonable.

Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). In conducting our

review, we are not limited to a review of the “sufficiency of the evidence” to

support the trial court’s findings; rather, we make an independent inquiry of the

entire record to determine if the court abused its discretion by imposing the

sanction. Daniel v. Kelley Oil Corp., 981 S.W.2d 230, 234 (Tex. App.—Houston

[1st Dist.] 1998, pet. denied) (op. on reh’g). To determine if the sanctions were

appropriate or just, the appellate court must ensure there is a direct nexus between

the improper conduct and the sanction imposed. Spohn Hosp. v. Mayer, 104

S.W.3d 878, 882 (Tex.2003).

B. Analysis

The Boyaki group first contends that the trial court’s sanctions order was

void. Specifically, it argues that the 190th district court lacks jurisdiction to

impose sanctions for invocation of federal jurisdiction because that power is

40

reserved to the federal court. It cites the federal removal statute for the proposition

that it was “within Judge Hoyt’s authority to assess attorneys’ fees in the event the

removal was improperly made.” See 28 U.S.C.A. § 1447(c) (“An order remanding

the case may require payment of just costs and any actual expenses, including

attorney fees, incurred as a result of the removal.”). It also cites Texas state court

authority for the proposition that “the only conduct the state district court could

sanction is pre-removal conduct.” See In re Bennett, 960 S.W.2d 35, 40 (Tex.

1997) (orig. proceeding) (per curiam) (“[W]e conclude that state courts retain

jurisdiction after removal of a case to federal court to sanction lawyers for pre-

removal conduct so long as the sanction does not operate upon the merits of the

underlying action.”).

We find this authority inapposite because reviewing the circumstances as a

whole reflects that the trial court’s sanctions are not limited to the merits of the

removal, but instead the improper motivation for the removal and the effect upon

the state court’s function. In Stratton v. Frankwell Inv. Service (Texas), Inc., we

affirmed post-remand sanctions based upon reasoning similar to that expressed by

the 190th court here. Nos. 01-99-00405-CV, 01-99-00459-CV, 2000 WL 233110,

at *3–4 (Tex. App.—Houston [1st Dist.] March 2, 2000, pet. denied) (mem. op.).

In that case, the sanctioned lawyer argued that because his name was not on filings

that effectuated what the trial court characterized as “wrongful removal,” he could

41

not be sanctioned for that removal. Id. We declined to take such a narrow view of

the trial court’s order, explaining,

As noted above, Stratton confines his arguments to the

“wrongful removal” finding in the order of December 10, 1998. In

narrowing his challenge in this manner, Stratton isolates this finding

from the remainder of the sentence in which it appears, which states:

“The Court finds that Defendant Erxleben and his

counsel wrongfully removed the case to federal court

without authority and without valid cause and for the sole

purpose of thwarting the Court’s notice that the case was

assigned for trial.”

The complete sentence clarifies that the trial court did not

confine its ruling to the “wrongful removal,” but considered a totality

of circumstances that resulted in the unnecessary postponement of the

trial. The trial court also determined that Erxleben and counsel acted

without authority, without valid cause, and with the sole purpose of

avoiding trial. These additional findings, which Stratton does not

challenge in this issue, further reflect that the trial court resolved

several controversies in awarding sanctions, and that the trial court

resolved significantly disputed facts in exercising its discretion under

rule 13. We are thus constrained by the standard of review to consider

the evidence before the trial court in the light most favorable to the

sanction award.

2000 WL 233110, at *3.

Similarly, here the court found in its sanctions order that Boyaki, Hernandez

and Ramos “filed their Notices of Removal in the U.S. District Court for the

purposes of harassment and/or delay and to prevent this Court from proceeding

with a scheduled hearing on a Temporary Injunction request.” While the federal

district court was in the best position to determine if federal jurisdiction existed—

which it found did not—the state court may determine if the circumstances

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surrounding a removal indicate that it a filing was made for the purpose of

disruption and delay in the state court.4

The Boyaki group next contends that, in the alternative, “the sanctions

ordered by the Trial Court were unduly harsh.” It asserts that “it happens all the

time that a party to state court proceeding invokes federal jurisdiction to forestall

an unfavorable state court action.” It argues that “[w]hile this may lead to a

squandering of judicial resources, and is no doubt frustrating for state court judges,

there are limits of reason as to how a court should respond.” Because imposing the

cost of the O’Quinn group’s fees would have “been more than enough to teach the

[lawyers] any lesson and to compensate the other parties for any harm,” the Boyaki

group asks us to find that the trial court abused its discretion by also “ordering ten

hours of ethics education.”

Relatedly, the Boyaki group argues “no harm-no foul.” They contend that

we should presume that the removal was done in good faith, assume that the

federal district court would have sanctioned them if their removal was frivolous,

and be mindful of the fact that their removal of the case only caused a one-week

4

We contrast the facts here with those in Ricardo N. Inc. v. Turcios de Argueta, 907

S.W.2d 423, 429 (Tex. 1995). The defendant there removed a case to federal

court shortly before trial, and the federal court remanded four years later with

specific findings that the case had been removed in good faith and did not violate

FRCP 11. Id. The state trial court nonetheless sanctioned the defendant for

removing the case for purposes of delay. Id. The supreme court held that the

“trial court abused its discretion in sanctioning [the defendant] for removing the

case in bad faith when the federal court had already determined that the removal

was not in bad faith.” Id.

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delay over the temporary injunction hearing (at which no relief was granted to the

O’Quinn group anyway).5

The Boyaki group has cited no authority for its argument that requiring

attorneys to attend classes focused on ethics is unduly harsh or insufficiently

tailored to the sanctioned conduct. We thus reject the argument that compelling

attendance in ethics classes was excessive or unduly harsh. And we will not

presume that the Boyaki group’s removal was for a proper purpose when the

federal district court and the state trial court both found that it was not, and that

determination is supported by evidence in the record. The Boyaki group has not

established that the trial court’s determination that they acted in bad faith for the

purpose of delay was an abuse of discretion.

The Boyaki group next contends that the sanctions against Ramos were

particularly overreaching because the “most he did in the state case was indicate, at

the December 30 hearing, that Boyaki would attempt to remove the case,” and

“signed only the notice of removal to federal court.” Accordingly, it argues that

the sanctions against Ramos should be reversed.

The Boyaki group’s notice of appeal states “Notice is hereby given that

Defendants in the above named case Walter L Boyaki, Ruben Hernandez, and

5

They also contend, with no citation to authority, that the O’Quinn group lacked

“clean hands” such that “sanctions were inappropriate against one side when it

was raining on both sides of the field.”

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Miranda & Boyaki hereby appeal the Summary Judgment [and] the Order of

Sanctions signed on January 28, 2009, to include the sanctions against Heriberto

Ramos, a non-party/non-attorney.” Ramos is not a party in the underlying case,

Ramos has not filed his own notice of appeal, see Tex. R. App. P. 25.1(c)(party

seeking to alter judgment must file notice of appeal) and the Boyaki group does not

purport to represent Ramos. Because the Boyaki group does not have standing to

challenge sanctions against Ramos, we do not consider their arguments challenging

sanctions against Ramos. See Bahar v. Lyon Fin. Serv., Inc., 330 S.W.3d 379, 388

(Tex. App.—Austin 2010, pet. denied) (party who is not harmed by sanctions

against another lacks standing to challenge sanctions on appeal).

Finally, the Boyaki group contends that it was afforded inadequate due

process with regard to the sanctions proceeding. It complains that, despite its

objection, the sanctions hearing went forward with twenty-one new complaints that

had been added that morning. No objection is found in the record where cited by

the Boyaki group. In any event, while the O’Quinn group did file an amended

motion for sanctions the morning of the sanctions hearing complaining of several

misrepresentations allegedly made in court filings by the Boyaki group, no one

disputes that the original motion—to which the Boyaki group had notice and

responded—complained about the removal. The trial court’s sanction order states,

After hearing arguments and reviewing the evidence, the Court,

without ruling on the alleged pattern of repeated and continuous

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misrepresentations raised in the amended motion for sanctions, hereby

enters this Order awarding sanctions for counsel’s conduct with

regard to the removal.

Accordingly, assuming that the Boyaki group lacked sufficient notice of the

new complaints, and assuming that they properly challenged the lack of notice of

the new complaints, they cannot demonstrate they were harmed as the new

complaints did not form the basis of the trial court’s ruling.

We overrule the Boyaki group’s third issue.

CONCLUSION

We reverse and remand the trial court’s attorneys’ fees award. The trial

court’s judgment and sanctions order are otherwise affirmed.

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

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