Armando M. Garza v. Gray & Becker, P.C.

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-02-00136-CV

Armando M. Garza, et al., Appellants

v.

Gray & Becker, P.C., Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT

NO. GN104188, HONORABLE PAUL DAVIS, JUDGE PRESIDING

Originally, appellants filed a petition in intervention as defendants in district court

proceedings involving a court approved settlement agreement regarding contractual attorney's fees

owed to appellee, Gray & Becker. (1) In those proceedings, without reaching the merits of any claims

related to appellants, the district court severed appellants and all claims between them and Gray &

Becker into a separate cause from which this appeal arises. Following the district court's rendition

below of a final order, appellants contend that the district court (1) did not have jurisdiction over this

attorney's fees dispute; (2) erred in refusing to stay proceedings while appellants pursued an

interlocutory appeal; (3) erred in severing appellants and all claims between them and Gray & Becker

from the original Travis County district court proceeding; (4) erred in failing to transfer venue; (5)

erred in rendering a partial summary judgment; and (6) erred in awarding Gray & Becker additional

attorney's fees. We will affirm the district court's judgment.

Background

Related proceedings

In 1997, members of three unions at the Corpus Christi Army Depot wished to pursue

grievances against the United States Army regarding their asbestos exposure claims. The three

unions were the exclusive representatives of their members and were authorized under collective

bargaining agreements with the Army to pursue grievances on behalf of their members. The unions

contracted with Gray & Becker to represent their members' interests in collective bargaining

grievance proceedings against the Army. The unions' representatives entered into attorney's fee

agreements with Gray & Becker and agreed to pay Gray & Becker a contingent fee in the amount

of 33-1/3% of any recovery. Gray & Becker represented the unions and their members throughout

the grievance process and a labor arbitration proceeding. In 2000, the arbitration resulted in the

Army paying $82 million to the unions' members. The arbitrator also ordered the Army to pay Gray

& Becker attorney's fees in accordance with the unions' contingent attorney's fee contracts. The

Army appealed the arbitration order to the Federal Labor Relations Authority ("FLRA"). Gray &

Becker represented the unions' members during the appeal. The FLRA modified the arbitration

order only in regard to the attorney's fees and directed the Army to request its agency head to permit

deductions from each of the employees' awards to pay attorney's fees in accordance with the

contingent fee contracts. The Army's agency head at the Department of Defense denied the Army's

request, and Gray & Becker was left to its own devices to collect its attorney's fees.

Gray & Becker then commenced a lawsuit and alleged that the employees who

received portions of the arbitration award were obligated to pay contractual attorney's fees to Gray

& Becker in the amount of 33-1/3% of each employee's gross recovery under the award;

alternatively, employees who executed the Agreement for Compromise & Payment of Contractual

Attorney's Fees (the "27-1/2%" Agreement) were obligated to pay contractual attorney's fees of 27-1/2% of the employee's gross recovery under the award. The law firm of Harris & Greenwell

represented a number of employees who filed counterclaims against Gray & Becker asserting that

as eligible employees under the arbitration award they were not obligated to pay attorney's fees to

Gray & Becker due to Gray & Becker's improper, unlawful, or tortious acts in negotiating the

attorney's fee contracts. In November 2001, Harris & Greenwell, on behalf of the employee

defendants, and Gray & Becker filed with the district court an "Agreement for Class Action

Resolution and Settlement (subject to Court approval)."

The agreement stated that the employees' prospects of prevailing on their claims were

uncertain, as the court had ruled adversely on similar employees' claims and defenses in another

case, and that the employees would be subject to liability and judgment for additional attorney's fees

incurred by Gray & Becker in the prosecution of the enforcement and collection of their claims. The

parties agreed that it was in all of their best interests to have one court address and resolve the

pending claims instead of having multiple lawsuits in various forums and venues. Gray & Becker,

in compromise and settlement of its claims and the employees' claims, agreed to accept 25% of each

employee's gross recovery under the award as full and final settlement of the employees' contractual

attorney's fees obligation to Gray & Becker. Gray & Becker agreed to provide, at its expense, notice

(prepared by Harris & Greenwell) to all class members of the class certification, the settlement, and

the fairness hearing. Further, Gray & Becker agreed to provide the class members with final notice

of the court's approval of the class settlement. The district court defined and certified two classes

of individuals, named class representatives, appointed class counsel for both classes, approved the

notice to be sent to the class members, and ordered that the notice be mailed to each member of the

two classes. Additionally, the district court tentatively approved the terms of the proposed settlement

agreement and set the date for a fairness hearing.

All class members were sent a detailed notice by direct mail based on the Army's

address list for current and former employees. Further, a detailed notice was published in a Corpus

Christi daily newspaper, and Gray & Becker held two open meetings at the Corpus Christi Army

Depot. The district court held the fairness hearing and rendered a final judgment. The judgment

contained three lists of individuals: those individuals covered by the judgment; those individuals

excluded from Class I as a result of their request to opt out in accordance with the notice of class

action; and those individuals who were excluded from Class II as a result of their request to opt out,

after receiving the notice of class action. Further, the judgment ordered each class member to pay

Gray & Becker 25% of the gross amount of recovery under the arbitration award, and declared that

upon such payment, either through direct pay or garnishment, the individual would fully satisfy any

claim Gray & Becker might have against the individual. The judgment further ordered each

individual to pay 25% of the gross recovery within ten days of receiving the class members' portion

of the arbitration award. If not paid within ten days, those non-paying individuals were ordered to

pay Gray & Becker 33-1/3% of the employee's gross portion of the award plus reasonable and

necessary attorney's fees incurred by Gray & Becker in the prosecution and collection of its fees.

Appellants, approximately 380 employees who did not timely opt out of the attorney's

fees settlement agreement, were dissatisfied with their options under the agreement. Despite their

failure to opt out, appellants wanted to be disassociated from the settlement agreement and preferred

to assert their own defenses to Gray & Becker's suit against them for contractual attorney's fees.

Appellants, in their individual capacities, filed a petition in intervention after judgment but during

the period the district court retained plenary power. Gray & Becker moved to sever the appellants'

intervention into a new cause. The district court, without adjudicating any claims between appellants

and Gray & Becker, severed the appellants and all issues between them and Gray & Becker into a

new cause of action. This severed proceeding is the underlying cause in this appeal.

The underlying proceeding

Following the severance, Gray & Becker filed an amended petition and application

for injunctive relief as to appellants and third party garnishees, those being various banks holding

portions of appellants' federal arbitration award funds. Gray & Becker moved for partial summary

judgment to which the appellants responded. The district court granted Gray & Becker's motion and

ruled that the fee agreements between the unions and Gray & Becker were enforceable against the

appellants and that Gray & Becker was entitled to collect from appellants the contractual attorney's

fees in the amount of 33-1/3% of each appellant's portion of the federal arbitration award. After a

trial on the merits, the district court rendered a final judgment ruling that (1) each appellant was

liable to Gray & Becker for 33-1/3% of each one's portion of the federal arbitration award; (2) each

appellant was liable to Gray & Becker for damages of $2000, which represented attorney's fees

incurred by Gray & Becker to enforce and collect under the attorney's fee agreements; (3) in the

event of a motion for new trial or an appeal, each appellant was liable to Gray & Becker for $5000,

which represented attorney's fees Gray & Becker would incur in defending the judgment post-trial;

(4) Gray & Becker was awarded postjudgment interest; (5) appellants were enjoined from failing or

refusing to pay the 33-1/3% of their arbitration award monies into the registry of the court, disposing

of or diverting 33-1/3% of their portion of the award, or holding or otherwise receiving their portion

of the award without paying the 33-1/3% owed to Gray & Becker as contractual attorney's fees; and

(6) appellants would take nothing on any of their claims against Gray & Becker.

Discussion

Subject matter jurisdiction

In a late-filed motion, appellants ask this Court to dismiss this appeal and vacate the

underlying district court judgment because this Court and the district court lack subject matter

jurisdiction over Gray & Becker's claims for contractual attorney's fees. Without citing any

authority, appellants contend that the "state district courts are without authority to rule on labor

disputes. Labor disputes are absolutely governed by federal law and regulations concerning the

administrative system." Further, appellants contend that Gray & Becker's claims for contractual

attorney's fees in the underlying district court action is an "appeal of the arbitrator's decisions [that]

rests with the FLRA."

Neither this appeal nor the underlying district court action by Gray & Becker is an

appeal of the federal arbitrator's decision. Additionally, neither the district court cause nor the

appellate cause involves a claim by a union member against its union. The claims at issue in both

courts are solely Gray & Becker's claims for its contractual attorney's fees. We overrule appellants'

motion to dismiss for want of subject matter jurisdiction.

Severance

In their first issue, appellants contend that the district court abused its discretion in

severing into a new district court cause all issues between appellants and Gray & Becker related to

Gray & Becker's suit to collect attorney's fees for work it performed for the appellants. Severance

of claims rests within the sound discretion of the trial court. See Liberty Nat'l Fire Ins. Co. v. Akin ,

927 S.W.2d 627, 629 (Tex. 1996) (citing Guaranty Fed. Sav. Bank v. Horseshoe Operating Co. , 793

S.W.2d 652, 658 (Tex. 1990)). The trial court abuses its discretion if its decision is arbitrary,

unreasonable, and without any reference to guiding rules or principles. Downer v. Aquamarine

Operators, Inc. , 701 S.W.2d 238, 241-42 (Tex. 1985).

Appellants filed a plea in intervention in the earlier lawsuit because, unlike the other

several thousand union member defendants, the appellants did not want to be bound by the

settlement agreement related to the contractual attorney's fees. Rather, the appellants preferred to

assert their own defenses against Gray & Becker's claims for contractual attorney's fees. The district

court's severance of appellants' claims in no way prevented, but rather enabled, the appellants to

challenge Gray & Becker's claims against them for contractual attorney's fees on the merits. By

granting the severance, the district court allowed appellants to proceed with any defenses to Gray &

Becker's claims while enabling the other union members to settle the attorney fee claims against

them.

We hold that appellants have failed to show the district court abused its discretion in

severing appellants and all issues between them and Gray & Becker related to the attorney's fee

agreements between the unions and Gray & Becker. Further, appellants have failed to show that the

severance order probably caused an improper judgment or prevented appellants from presenting their

case to the appellate court. See Tex. R. App. P. 44.1(a). We overrule appellants' first issue.

Jurisdiction

In their second issue, appellants contend that the district court was without subject

matter jurisdiction over the issues related to Gray & Becker's claims for attorney's fees pursuant to

its fee agreements with the unions. Appellants contend, without any supporting authority, that Gray

& Becker's suit in state district court was a collateral attack on a federal district court's ruling that

the FLRA had exclusive jurisdiction over Gray & Becker's claims for attorney's fees.

Appellants contend that the United States District Court's order of dismissal in

Salgado v. Gray & Becker , a case to which appellants were not parties, held that the FLRA had

exclusive jurisdiction over the merits of the attorney's fees dispute. No. C-01-307, (S.D. Tex. Nov.

28, 2001) (not designated for publication). Appellants have failed, however, to direct this Court to

any passage in the Salgado opinion that reflects the federal district court ruled that the FLRA had

exclusive jurisdiction over the merits of Gray & Becker's recovery of contractual attorney's fees.

The Salgado court did not address Gray & Becker's claims for attorney's fees and did

not rule that the FLRA had exclusive jurisdiction of Gray & Becker's claims against appellants to

collect contractual attorney's fees. The Salgado court found that the FLRA had exclusive

jurisdiction of employee claims against their unions . We note that, regarding Gray & Becker's

claims for attorney's fees, the Salgado court stated, "This does not mean that [Gray & Becker has]

no legally enforceable claim against the individual union members and former members; they may

indeed have one, but this Court is not the forum to decide that issue." Id. Appellants provide no

statutory or other legal authority to support their contention that the FLRA has exclusive jurisdiction

over Gray & Becker's claims for contractual attorney's fees. We overrule appellants' second issue.

Refusal to stay trial proceedings

We next turn to appellants' contention that the district court erred by refusing to stay

the underlying proceedings while appellants pursued an interlocutory appeal. See Tex. Civ. Prac.

& Rem. Code Ann. § 51.014 (West Supp. 2003). Appellants' brief lacks any record citations to

pleadings, motions, district court rulings, or specific notices of appeal filed by appellants that relate

to this contention. Further, appellants' brief lacks any supporting case law related to this contention.

Such an unsupported, general contention is inadequately prepared for this Court to review. See State

Farm Lloyds v. Williams , 960 S.W.2d 781, 789 (Tex. App.--Dallas 1997, pet. dism'd); Tex. R. App.

P. 38.1(h). Because appellants failed to provide any record citations, cite to any relevant facts, or

cite to any legal authority supporting this issue, we hold that they have waived this appellate

contention. Id. ; see also Newsom v. Petrilli , 919 S.W.2d 481, 484 (Tex. App.--Austin 1996, no

writ). In the event their contention is not waived, we hold that appellants have failed to show that

the district court's failure to stay proceedings to allow appellants to pursue an interlocutory appeal

probably caused the rendition of an improper judgment or affected their ability to present their claims

to the appellate court. See Tex. R. App. P. 44.1(a). We overrule appellants' third issue.

Venue

Regarding venue, appellants contend first that the district court erred by failing to hear

their motion to transfer venue in a timely manner. Second, appellants contend that the district court

erred in denying their motion to transfer venue of this cause because (1) venue was proper in Nueces

County; (2) none of appellants signed the fee contracts; and (3) Nueces County is the county where

all or a substantial part of the events related to the claims occurred. Appellants again fail to cite any

legal authority to support their contentions. Failure to cite legal authority to support an appellate

issue constitutes a waiver of the issue. See Newsom , 919 S.W.2d at 484 .

In any event, reviewing the record, paragraph nine of Gray & Becker's first amended

petition asserted the following:

9. Gray & Becker and the Unions entered into the fee agreements which are the

subject and basis of this suit in Austin, Travis County, Texas and as a result of

Gonzales, Livengood, and Quintanilla soliciting Gray & Becker in Austin to

represent their unions and to enter into the fee agreements. The fee agreements

did not become operative and effective unless and until Gray & Becker signed

the fee agreements; Gray & Becker signed the fee agreements in Austin, Travis

County, Texas. In addition, most of the work (at least 90%) which Gray &

Becker has performed in performance of the fee agreements and in performance

with the attorney/client relationships which are the subject and basis of this suit

has been and continues to be performed in Austin, Travis County, Texas. In

addition, [appellants'] performance under the fee agreements (to wit: payment

of contractual attorney's fees to Gray & Becker) was to have been performed in

Travis County, Texas. This Court has previously denied [appellants'] Motion

to Transfer Venue and ruled that venue of [Gray & Becker's] claims is proper

in Travis County, Texas. In addition, [appellants] have waived [appellants']

objections to venue by affirmatively intervening in this suit. In addition,

[appellants] have waived [appellants'] objections to venue by filing [appellants']

answers in this suit prior to, and not subject to, [appellants'] Motion to Transfer

Venue.

Venue selection presupposes that the parties to the lawsuit have choices and

preferences about where their case will be tried. See Tex. Civ. Prac. & Rem. Code Ann. §§ 15.001 -.040 (West 2002); Wilson v. Texas Parks & Wildlife Dep't , 886 S.W.2d 259, 260 (Tex. 1994) (citing

Maranatha Temple, Inc. v. Enterprise Prod. Co. , 833 S.W.2d 736, 741 (Tex. App.--Houston [1st

Dist.] 1992, writ denied)). Venue may be proper in more than one county under general, mandatory,

or permissive venue rules. Wilson , 886 S.W.2d at 260 . The plaintiff is given the first choice of

venue selection in the filing of the lawsuit. Id. If the plaintiff's choice is not properly challenged

through a motion to transfer venue, the propriety of venue is fixed in the county chosen by the

plaintiff. Tex. Civ. Prac. & Rem. Code Ann. § 15.063 (West 2002); Tex. R. Civ. P. 86. The

question of proper venue is raised only if a defendant objects to the plaintiff's venue choice and

properly challenges that choice. Tex. R. Civ. P. 86. If a plaintiff chooses a county of proper venue,

and the choice is supported by proof as required by Rule 87, no other county can be a proper venue

in that case. Wilson , 886 S.W.2d at 261 ; Tex. R. Civ. P. 87. This rule gives effect to the plaintiff's

right to select a venue. Wilson , 886 S.W.2d at 261 .

In applying these rules, two bases exist for challenging venue: either (1) the county

where the proceedings are pending is not a proper county as no permissive venue exists, or (2)

mandatory venue lies in another county. See Tex. R. Civ. P. 86(3)(a), (b). Appellants' motion to

transfer venue did not allege either ground.

All venue facts, when properly pleaded, shall be taken as true unless specifically

denied by the adverse party. See Geochem Tech Corp. v. Verseckes , 962 S.W.2d 541, 543 (Tex.

1998); Tex. R. Civ. P. 87. At no time during the proceedings have the appellants specifically denied

or otherwise controverted the venue facts alleged by Gray & Becker in its amended petition. Further,

at no point during the proceedings have appellants urged that venue is mandatory in Nueces County.

Appellants urge only that venue would be proper in Nueces County. The district court correctly took

as true the venue facts alleged by Gray & Becker, which were supported by the verified affidavit of

Brian Bishop, the attorney in charge for Gray & Becker in these proceedings, and determined that

venue was proper in Travis County because all or a substantial part of the events giving rise to the

claim occurred in Travis County. See Tex. Civ. Prac. & Rem. Code Ann. § 15.002 (a)(1) (West

2002).

We hold that in the event appellants did not waive their complaints regarding venue,

error, if any, did not cause the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). We

overrule appellants' fourth issue.

Summary Judgment

Appellants also contend that the district court erroneously granted a partial summary

judgment in favor of Gray & Becker. Gray & Becker moved for a partial summary judgment seeking

to establish as a matter of law: (1) that the attorney's fee agreements entered into between Gray &

Becker and the unions, the exclusive representatives of their members, were enforceable; and (2) that

the appellants, union members who received portions of the federal arbitration award, were obligated

to pay Gray & Becker 33-1/3% of their portions of the award in accordance with the fee agreements.

Gray & Becker asserted several theories in support of its motion including the written contract,

quantum meruit , res judicata , collateral estoppel, quasi-estoppel, and the common fund doctrine.

Because the order granting summary judgment did not specify the theory upon which the district

court relied, we will affirm the order if any one of the several theories advanced are meritorious. See

State Farm Fire & Cas. Co. v. S.S. , 858 S.W.2d 374, 380 (Tex. 1993).

The summary judgment evidence established that the federal arbitrator and the FLRA

in the underlying arbitration proceeding ruled that appellants were obligated to pay 33-1/3% of their

portion of the arbitration award to Gray & Becker as contractual attorney's fees. Additionally, the

evidence established that the fee agreements upon which Gray & Becker relied were entered into and

executed by the unions' representatives, who are statutorily designated as the exclusive

representatives of appellants. See 5 U.S.C.A. § 7114 (West 1996). Only through the unions could

appellants pursue their asbestos-related grievance claims; that is, appellants lacked any legal standing

or authority to pursue these grievances individually or through individual attorneys. Gray & Becker

fully performed and continues to perform its services in reliance upon the fee agreements. In 2001,

after litigation commenced, all three unions reaffirmed and ratified the fee agreements. As a result

of Gray & Becker's efforts, appellants have received their arbitration awards. Gray & Becker's

representation of appellants and the fee agreements were matters that were widely publicized to

Corpus Christi Army Depot employees. It is undisputed that appellants did not communicate any

objections or challenge Gray & Becker's authority, the Unions' actions or authority, or the fee

agreements until after Gray & Becker had fully performed under the agreements, the award monies

were being distributed, and appellants had accepted the results of Gray & Becker's services. The

summary judgment evidence included the arbitrator's September 14, 2001 "Order Concerning

Remedy," which provided:

33-1/3% contractual attorney's fees I have previously ordered that the employees owe

to and shall be paid to Gray & Becker are expenses of litigation incident to

administering the contract and to settling grievances and disputes. The 33-1/3%

contractual attorney's fees are, therefore, clearly chargeable to the employees as a

normal incident of the Unions' exclusive representation.

Absent a prior successful direct challenge to the arbitrator's decision and orders,

appellants cannot accept one portion of the arbitrator's order--the award of monies to the unions'

members--and yet ignore or disavow another portion of the same arbitrator's order. Thus,

appellants cannot now disavow the portion of the arbitrator's decision requiring appellants to pay

Gray & Becker attorney's fees in accordance with the fee agreements. See Newman v. Link , 889

S.W.2d 288, 289 (Tex. 1994) (citing Carle v. Carle , 234 S.W.2d 1002, 1004 (Tex. 1950)).

Further, Gray & Becker's right to collect its contractual attorney's fees from the

individual appellants is established as a matter of law based on the doctrine of quasi-estoppel. The

principles of quasi-estoppel preclude a party from asserting, to another's disadvantage, a right

inconsistent with a position previously taken. See Enochs v. Brown , 872 S.W.2d 312, 317 (Tex.

App.--Austin 1994, no writ). Quasi-estoppel applies when it would be unconscionable to allow

individuals to maintain a position inconsistent with one in which those individuals have accepted

a benefit. Id.

In Enochs , this Court rejected the argument that a contractual attorney's fee

agreement not signed by the client is always unenforceable. In Enochs , the minor client's parent was

estopped from claiming that the attorney with whom the child's sole managing conservator had

executed a contingent attorney's fee agreement was not entitled to the contingent fee pursuant to the

agreement because the attorney had performed and the child had accepted, used, and enjoyed the

attorney's services and the product of those services. Id. (Texas Family Code delegates to sole

managing conservator exclusive right to represent child in litigation and fee contract signed by minor

client's legal representative was valid).

Federal law delegates to the unions the exclusive right to represent union members

in federal arbitration. See 5 U.S.C.A. § 7114 . At this late date, it would be unconscionable to allow

appellants, the beneficiaries of the federal arbitration award negotiated by Gray & Becker, to

challenge the fee agreements only after they have accepted the benefits of those agreements between

their union representatives and the law firm that secured their award. We conclude that, as a matter

of law, the fee agreements were enforceable and the appellants were obligated to pay Gray & Becker

contractual attorney's fees in the sum of 33-1/3% of their portions of the arbitration award. We

overrule appellants' issue contending that the district court erred in granting a partial summary

judgment.

Evidentiary challenges to attorney's fees

Appellants also raise contentions that directly attack the evidentiary support for the

award of 33-1/3% as the amount of contractual attorney's fees awarded, as well as the additional

award to Gray & Becker of attorney's fees in the amount of $2000 per appellant to prosecute the

underlying enforcement and collection proceeding through trial and the award of $5000 per appellant

in the event appellants pursue a new trial or appeal.

Appellants first contend that Gray & Becker failed to prove that the specified sum of

33-1/3% of each appellant's portion of the arbitration award was a reasonable fee. During the trial

on the merits, Gray & Becker presented evidence regarding its fees for pursuing the appellants'

asbestos claims. Brian Bishop, the Gray & Becker attorney primarily responsible for representing

the union members since he commenced the federal grievance proceedings, testified about Gray &

Becker's history and involvement in the union members' federal grievance process, in the federal

arbitration, and in the many lawsuits that followed both in federal and state court. Bishop testified

about his background in the legal profession and about his hourly rate. Appellants' cross-examination focused only on the validity of the fee agreements, an issue that the district court

previously determined by summary judgment. At trial, appellants never questioned the amount of

attorney's fees sought by Gray & Becker and ultimately awarded in this case.

Gray & Becker's evidence related to the amount of contractual attorney's fees was

sufficient to support the factors discussed in depth in Arthur Anderson & Co. v. Perry Equipment

Corp. , 945 S.W.2d 812, 818 (Tex. 1997). No contrary evidence was presented. We hold that the

district court did not err in awarding attorney's fees in accordance with Gray & Becker's evidence.

We overrule appellants' contention that the amount of the contractual attorney's fees, 33-1/3% of

each appellant's share of the arbitration award, was unsupported by the evidence.

Appellants also contend that there was no evidence or insufficient evidence to support

the district court's award to Gray & Becker of attorney's fees in the amount of $2000 per appellant

to prosecute the underlying action and $5000 per appellant in the event appellants seek a post-trial

review.

Gray & Becker presented evidence that the amount of the attorney's fees was greatly

affected by the vexatious actions of appellants and appellants' counsel throughout the underlying

proceeding. Bishop testified that appellants had filed (1) a petition in intervention in an earlier

proceeding where, but for their intervention, they would have been considered participants in a

settlement regarding the contractual attorney's fees at issue; (2) a multitude of various types of

motions; and (3) petitions for writ of mandamus in the Third Court of Appeals as well as the Texas

Supreme Court. Bishop also testified that the amount of attorney's fees related to this collection

proceeding was greatly affected by problems during discovery caused by appellants and their counsel

when they failed to appear for depositions, refused to produce documents, and failed to abide by

court orders. Bishop testified that based on his experience and his familiarity with all of the related

federal and state proceedings, "$2000 per [appellant] in this case is an amount which is reasonable

and which has been necessary to prosecute this case to final judgment." Bishop also testified that

in the event Gray & Becker prevailed on its claims and appellants prosecuted a motion for new trial

or an appeal, an additional $5000 per appellant is a reasonable amount necessary to defend Gray &

Becker's judgment. There was no testimony or evidence presented to the contrary. Further, at trial,

appellants never objected or challenged Gray & Becker's evidence related to attorney's fees.

We hold legally and factually sufficient evidence supports the district court's award

of attorney's fees in the sum of $2000 per appellant to prosecute this case through trial and the award

of $5000 per appellant in the event appellants seek a new trial or an appeal. We overrule appellants'

seventh contention.

Conclusion

Having addressed all of appellants' contentions, we affirm the district court's

judgment.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: December 12, 2002

Do Not Publish

1. Appellants originally intervened in the Travis County district court proceedings cause

number GN101682. Appellants perfected an appeal from the final judgment in that cause, but this

Court dismissed their appeal for want of jurisdiction. See De la Garza v. Gray & Becker , 03-02-00135-CV, 2002 Tex. App. LEXIS 5460 (Tex. App.--Austin July 26, 2002, pet. filed) (not

designated for publication). Additionally, this Court has addressed two other appeals related to the

same attorney's fees settlement agreement. See Garcia v. Gray & Becker , 03-02-00372-CV, 2002

Tex. App. LEXIS 6883 (Tex. App.--Austin September 26, 2002, no pet.) (not designated for

publication); Cantu v. Gray & Becker , 03-02-00099-CV, 2002 Tex. App. LEXIS 8212 (Tex.

App.--Austin Nov. 21, 2002, no pet. h.) (not designated for publication).