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

> Texas Court of Appeals, 3rd District (Austin) · December 12, 2002

URL: https://www.frixlaw.com/law-library/cases/2864550

## Case

- **Court:** Texas Court of Appeals, 3rd District (Austin)
- **Decided:** December 12, 2002
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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.CAustin 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.CAustin September 26, 2002, no pet.) (not designated for publication); Cantu v. Gray & Becker,
03-02-00099-CV, 2002 Tex. App. LEXIS 8212 (Tex. App.CAustin Nov. 21, 2002, no pet. h.) (not
designated for publication).

2
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 (AFLRA@).

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

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executed the Agreement for Compromise & Payment of Contractual Attorney=s Fees (the A27-1/2%@

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 AAgreement 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

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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

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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

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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

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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 Astate 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 Aappeal 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

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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

9
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, AThis 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

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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.CDallas 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.CAustin 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

11
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.CHouston [1st Dist.] 1992, writ

12
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

13
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).

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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 AOrder 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

15
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 orderCthe award of monies

to the unions= membersCand 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.CAustin 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

16
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

17
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

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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, A$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

19
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

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Do Not Publish

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2864550. Public record. Not legal advice.