Lawrence Madeksho v. Abraham Watkins, Nichols & Friend (A Partnership) and the Law Offices of Robert E. Ballard, P.C

• Court: Court of Appeals of Texas
• Decided: August 31, 2006
• Docket: 14-04-01062-CV
• Status: Published

Opinion

Memorandum Opinion of August 1, 2006 Withdrawn; Affirmed and Substitute Memorandum Opinion filed August 31, 2006

Memorandum Opinion of August 1, 2006 Withdrawn; Affirmed and Substitute Memorandum Opinion filed August 31, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-01062-CV

LAWRENCE MADEKSHO, Appellant

V.

ABRAHAM, WATKINS, NICHOLS & FRIEND (A PARTNERSHIP), and

THE LAW OFFICES OF ROBERT E. BALLARD, P.C, Appellees

On Appeal from 165th District Court

Harris County, Texas

Trial Court Cause No. 97‑23595B

S U B S T I T U T E   M E M O R A N D U M   O P I N I O N

Appellant=s motion for rehearing is overruled, our opinion issued in this case on August 1, 2006 is withdrawn, and the following substitute opinion is issued in its place.

In this attorney=s fee dispute, Lawrence Madeksho appeals a judgment entered in favor of Abraham, Watkins, Nichols & Friend (a partnership) and the Law Offices of Robert E. Ballard, P.C. (collectively AAbraham, Watkins@) on the grounds that: (1) the trial court had no jurisdiction to hear Abraham, Watkins=s claim for attorney=s fees; (2) the trial court abused its discretion in admitting the testimony of one of Abraham, Watkins=s witnesses; and (3) the jury charge question regarding the award of attorney=s fees on appeal was not conditioned on appellees= success on appeal.  In a single cross-issue, Abraham, Watkins requests that the judgment of the trial court be modified to include the appellate attorney=s fees awarded by the jury.  We affirm.

Jurisdiction

Madeksho=s first issue contends that the trial court had no jurisdiction to hear Abraham, Watkins=s claim for attorney=s fees from the underlying suit because: (1) mandate had issued on the appeal of that action and, thus, the severance order entered on February 12, 2003 was void; and (2) the claims were barred by a release and satisfaction of judgment.

This case arises out of a suit originally brought by Abraham, Watkins to collect against Madeksho on a fee-sharing agreement.^[1]  On September 4, 1998, the trial court severed this case, in which Abraham, Watkins sought attorney=s fees as the prevailing party on its contractual fee-sharing claims, and then entered a final judgment in the fee-sharing action.^[2]  The appeal of that judgment was concluded in 2001.

However, on February 12, 2003, the trial court signed an order nearly identical  to the 1998 severance order, purporting to reconsolidate this attorney=s fees case with the fee-sharing action, and again ordering a severance of the two.  A jury trial was thereafter held on the attorney=s fee action, resulting in a final judgment for Abraham, Watkins in May of 2004.

Because the trial court had entered a final judgment in the fee-sharing case in 1998 and the appeal of that case was concluded without a remand to the trial court, the trial court=s plenary power over that action had long since expired when the trial court entered the 2003 consolidation order.  Therefore, it had no jurisdiction over the fee-sharing action at that time, and the 2003 consolidation and severance order is void.^[3]  However, because the cases remained severed by the 1998 severance order, the trial court retained jurisdiction over the attorney=s fee action.

Madeksho=s first issue further contends that the trial court erred by overruling its plea to the jurisdiction, motion for summary judgment, and motion for new trial because: (1) the issue of attorney=s fees was moot in that the parties had settled their claims in the fee-sharing dispute; and (2) Madeksho satisfied the judgment on the fee-sharing agreement and was released by Abraham, Watkins from liability for the claims in this case.  Because neither the settlement agreement nor the release on which Madeksho relies for these contentions is part of our record,^[4] we have no basis to determine what, if any, effect either may have had on the claims in this case.  Therefore, Madeksho=s first issue affords no basis for relief and is overruled.

Admission of Evidence

Madeksho=s second issue argues that the trial court abused its discretion by overruling his objection to the testimony of one of Abraham, Watkins=s witnesses because it included an unreliable basis for his opinion on the reasonableness of attorney=s fees.

A trial court=s decision to admit or exclude evidence is reviewed for abuse of discretion. Interstate Northborough P=ship v. State, 66 S.W.3d 213, 220 (Tex. 2001).  To obtain reversal for an error in admitting evidence, the challenging party must show that the error probably resulted in an improper judgment, which typically requires a showing that the judgment turned on the particular evidence admitted.  Id.

Here, Don Weitinger was one of four lawyers who testified as to the reasonableness of Abraham, Watkins=s attorney=s fees.  Although he was not initially designated to testify as an expert, but only to authenticate the invoices for services his law firm performed, Weitinger went on to testify about the reasonableness and necessity of the fees.  Based on a method his father had developed for pricing goods in the grocery industry, Weitinger testified that he had developed a Acost per pleading@ guideline that alerted him to possible problems with the billing in a particular case.  Based, in part, on this method, he concluded that the attorney=s fees claimed by Abraham, Watkins were reasonable.  Madeksho challenges the trial court=s overruling of his objection to this portion of Weitinger=s testimony.

However, Weitinger also testified that he considered the time and labor involved, the difficulty of the matter, the likelihood that working on the case would preclude other employment, the fee customarily charged in the locality, the time limitations imposed by the client, and the nature and length of the relationship with the client.^[5]  In addition, the jury received all of the invoices on which the claim for attorney=s fees was based; and each attorney whose work was reflected therein also testified regarding the reasonableness and necessity of his fees.  Moreover, Abraham, Watkins=s designated expert, Wayne Davidson, also testified without objection that, in his opinion, the total amount charged was reasonable and that the services provided were necessary.  Madeksho did not controvert any of this evidence, and does not explain how or why the challenged testimony would have had a material effect on the jury=s award of fees in light of the other supporting evidence.  Because Madeksho=s second issue thus provides no basis to conclude that the judgment in this case turned on the challenged portion of Weitinger=s testimony (even if it was erroneously admitted), it is overruled.

Jury Charge Error

Madeksho=s third issue contends that the jury charge question on attorney=s fees on appeal was not conditioned on a successful appeal.  However, at trial, Madeksho objected to the inclusion of appellate fees in the jury charge only on the ground that it was not supported by the pleadings.  Because his argument on appeal does not comport with his objection at trial, this issue presents nothing for our review.  See Tex. R. App. P. 33.1; Rogers v. Stell, 835 S.W.2d 100, 101 (Tex. 1992).

In addition, as relevant to this case, a judgment may not be reversed on appeal unless the error complained of probably caused rendition of an improper judgment.  Tex. R. App. P.  44.1(a)(1).  In this case, the trial court=s judgment did not include any award of attorney=s fees for appeal.  Because the error complained of in Madeksho=s third issue did not, therefore, cause rendition of an improper judgment, it affords no basis for relief and is overruled.

                                                                   Cross-Issue

Abraham, Watkins requests in a cross-issue that the judgment of the trial court be modified to include attorney=s fees on appeal, conditioned on a successful appeal, because the jury verdict awarded fees for appeal, but none were awarded in the judgment.  However, unless a party seeking to alter a trial court=s judgment files its own notice of appeal, we may not grant the party more favorable relief than did the trial court except for just cause.  Tex. R. App. P. 25.1(c); see also Brooks v. Northglen Ass=n, 141 S.W.3d 158, 171 (Tex. 2004).  In this case, Abraham, Watkins did not file a notice of appeal, and we find nothing in our record to reflect that it presented this complaint to the trial court.  Because the matter would not be preserved for our review if a notice of appeal had been filed, we are without just cause to grant the relief in the absence of such a notice.  Accordingly, Abraham, Watkins=s cross-issue is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Substitute Memorandum Opinion filed August 31, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman.

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^[1]           A more extensive recitation of the facts in that underlying case is provided in our opinion in Madeksho v. Abraham, Watkins, Nichols & Friend, 57 S.W.3d 448 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).

^[2]           The September 4, 1998 severance order vacated two prior severance orders entered in this case, dated July 2, 1998 and July 14, 1998, and ordered that Athe claim for attorneys= fees in this case brought by [Abraham, Watkins] against [Madeksho] is now severed from the original suit.@  Because no final judgment had been entered in either severed action by September 4, 1998, the preceding severance orders were interlocutory and within the trial court=s jurisdiction to vacate.  See Tex. R. Civ. P. 306a(1).

^[3]           An order entered after a trial court=s plenary power has expired is void.  See, e.g., In re Sw. Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).

^[4]           Madeksho claims that the ARelease and Satisfaction of Judgment@ from the underlying case is included in our record, but page 33 of the clerk=s record to which he refers contains only a copy of his Motion for New Trial, which states, AA true and correct copy of that Release was attached as Exhibit >A= to Defendant=s Plea to Jurisdiction and is incorporated herein as if fully set forth at length verbatim.@  However, his Plea to Jurisdiction and attachments are neither in our record nor deemed so by an incorporation by reference to material outside the record.

^[5]           See, e.g., Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citing these factors as relevant in determining the reasonableness of attorney=s fees).