Belinda Lopez v. Santos Maldonado
13-15-00042-CV
| Tex. App. | Jul 20, 2015Background
- Appellant Belinda Lopez retained attorney/intervenor Santos Maldonado in July 2011 under a written contingent-fee agreement (20%) for her divorce; she later terminated him, alleging negligence and self-dealing.
- Maldonado intervened in the divorce seeking enforcement of the contingency fee and claimed $24,431.82 in case expenses; the trial court granted his summary-judgment motion and ordered Lopez to pay 20% of her recovery and reimburse expenses.
- Lopez appealed, arguing Maldonado was not entitled to the 20% contingency because (a) the contract itself limits recovery to a reasonable fee after termination, (b) Maldonado submitted no competent summary-judgment evidence proving reasonableness or necessity of fees/expenses, and (c) parts of the contract (requiring attorney consent to settle) violate ethical rules and public policy.
- Maldonado’s summary-judgment submission consisted mainly of a verified motion plus the contract and an unauthenticated expense list; Lopez contends verified pleadings are not admissible summary-judgment evidence.
- Lopez also argued the contingency fee is unconscionable given Maldonado’s alleged deficient representation and that the consent-to-settle clause is unenforceable under Texas Disciplinary Rule 1.02(a)(2) and related authority.
Issues
| Issue | Plaintiff's Argument (Lopez) | Defendant's Argument (Maldonado) | Held |
|---|---|---|---|
| Entitlement to 20% contingent fee after client terminated counsel | Contract itself requires only a "reasonable fee" if attorney withdraws or client terminates; therefore 20% is not recoverable | Maldonado sought enforcement of the 20% contractual contingency as owed | Court explained that under the contract language the attorney’s post-termination recovery is limited to a reasonable fee (so 20% not automatically recoverable) |
| Sufficiency of summary-judgment evidence for fees/expenses | Maldonado submitted no competent, authenticated summary-judgment evidence (verified motion and unauthenticated exhibits are insufficient); hence genuine fact issues remain on reasonableness and necessity | Maldonado relied on his verified motion and attached documents to support entitlement and expense claims | Court reviewed the parties’ arguments (appellate standard noted): verified pleadings are not summary-judgment proof; movant must present admissible evidence to conclusively establish entitlement |
| Reasonableness of attorney’s fees (Arthur Andersen factors / TRPC 1.04) | Because Lopez terminated counsel, Maldonado must prove reasonableness under the enumerated factors; he presented no competent proof, so material fact issues remain | Maldonado asserted reasonableness but offered only conclusory affidavits and untimely records | Court held that reasonableness is a fact question requiring competent evidence; movant failed to establish conclusively that fees were reasonable |
| Validity of contract clause requiring attorney consent to settle (public policy/ethics) | Clause violates Texas Disciplinary Rule 1.02(a)(2) (client’s right to decide settlement) and is unenforceable; such provision renders the contingency agreement void or voidable and may make the fee unconscionable | Maldonado sought enforcement despite the clause; relied on contract language and attached precedent (disputed) | Court relied on controlling authority (including Corpus Christi panel decisions) that a clause forbidding client settlement without attorney consent violates Rule 1.02(a)(2) and is unenforceable; unconscionability and public-policy concerns preclude enforcement of contingent fee in such circumstances |
Key Cases Cited
- Valence Operating Co. v. Dorsett, 164 S.W.3d 656 (Tex. 2005) (standard of de novo review for summary judgment and treatment of evidence favoring nonmovant)
- MMP, Ltd. v. Jones, 710 S.W.2d 59 (Tex. 1986) (movant seeking affirmative relief must conclusively prove all elements)
- Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812 (Tex. 1997) (factors to determine reasonableness of attorney fees)
- Great Am. Reserve Ins. Co. v. Britton, 406 S.W.2d 901 (Tex. 1966) (reasonableness of fees is a fact question requiring evidence)
- Ryland Group, Inc. v. Hood, 924 S.W.2d 120 (Tex. 1996) (conclusory affidavits are insufficient summary-judgment proof)
- In re Plaza, 363 B.R. 517 (Bankr. S.D. Tex. 2007) (clauses prohibiting client settlement without attorney consent are generally unenforceable as against public policy)
- Sanes v. Clark, 25 S.W.3d 800 (Tex. App.—Waco 2000) (contingent-fee clause authorizing attorney to settle without client consultation is voidable under Rule 1.02)