Barbara Regina Schlein v. Anthony Griffin
01-14-00799-CV
| Tex. App. | Feb 12, 2015Background
- Cross-appellant Griffin sued Schlein for unpaid legal fees under a November 3, 2009 contract; retainer stated as $35,000 with a flat-fee potential and a reduced hourly rate for excess work.
- Schlein contested the contract as unconscionable and misleading, and paid with non-cash consideration; she disputed extent and scope of fees.
- Trial included extensive testimony on billing, insurance, builder’s risk, and the fate of a tile/Travertine asset as payment; jury awarded Griffin substantial fees and costs.
- The court rejected Schlein’s post-trial motions, but the jury answered questions addressing DTPA claims and fiduciary duties, breach, and damages.
- Final judgment awarded Griffin specific attorney’s fees and costs, but cross-appealed on DTPA grounds, claiming improper unconscionable conduct and damages; appeal pursued in First Court of Appeals.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court should grant judgment notwithstanding the verdict on DTPA claims | Griffin argues the DTPA claims were unambiguously supported; exemptions for professional services do not apply | Schlein contends the award rests on improper, unconscionable conduct by Griffin and that DTPA does apply | No; JNOV denied; issues remained for jury as to damages under DTPA |
| Whether there was actual damages supporting the DTPA punitive/extra damages finding | Griffin asserts evidence supports damages for unconscionable conduct | Schlein asserts lack of actual damages defeats any exemplary damages under DTPA | No; the court found the damages finding unsupported by actual damages, invalidating the extra damages award |
| Whether the DTPA exemptions for professional services bar the claim | Griffin relies on statutory exemptions for professional advice; the contract/fees were professional services | Schlein argues the conduct went beyond advice and falls outside exemptions | Partially; exemptions apply to some aspects, but the court found portions of the claim precluded as professional services or governed by exemptions. |
| Whether the evidence supports the jury’s damages awards for breach and attorney’s fees | Griffin contends the verdict properly awarded fees and costs | Schlein argues the damages award is not supported by the record or the charge | The final judgment awards specific sums for attorney’s fees and costs; court notes potential grounds to modify on appeal. |
Key Cases Cited
- Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225 (Tex.App.-San Antonio 2001) (no reversible error when reviewing no-evidence sufficiency on damages)
- Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994) (standard for reviewing no-evidence and factual sufficiency sustentions)
- Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex. 1986) (reversible damages requirement for DTPA exemplary damages)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005) (no evidence standard; important for standard of review)
- Rangel v. Lapin, 177 S.W.3d 17 (Tex.App.-Hou. [1st Dist.] 2005) (DTPA claims regarding professional conduct; board-certified/attorney conduct)
- Nast v. State Farm Fire & Cas. Co., 82 S.W.3d 114 (Tex.App.—San Antonio 2002) (DTPA exemptions for professional services)
- Mazuca and Associates v. Schumann, 82 S.W.3d 90 (Tex.App.—San Antonio 2002) (DTPA professional-services exemption and unconscionable action)
- Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex.1989) (evidence sufficiency and standard of review)
- Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392 (Tex. 1991) (context for evidentiary standards in appellate review)