Opinion
No. 05-10-00725-CV
04-27-2012
DAVID GUTIERREZ, SR., Appellant v. THE WRIGHT LAWFIRM, PLLC, Appellee
On Appeal from the 44th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 09-01202-B
MEMORANDUM OPINION
Before Justices Moseley, Lang, and Myers
Opinion By Justice Moseley
After a bench trial, the trial court found appellant David Gutierrez, Sr., liable for breach of an agreement to pay an attorney for representing his son in a federal criminal prosecution. Gutierrez appeals. The background of the case and the evidence adduced at trial are well known to the parties; thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue this memorandum opinion. Tex. R. App. P. 47.2(a), 47.4. We reverse that portion of the trial court's judgment awarding expert witness fees and render a take-nothing judgment for those fees. In all other respects, we affirm.
Background
On November 28, 2007, Gutierrez and his son signed a fee agreement with The Wright Lawfirm, PLLC (TWLF) for C. Tony Wright to represent Gutierrez, Jr. in a federal criminal prosecution. Wright, the sole shareholder and managing partner of TWLF, signed the agreement for TWLF. The fee agreement described the fee as a non-refundable retainer fee of $50,000 for investigation and attempts to dismiss or plea bargain the case, and a trial fee of $30,000 to be deposited in the attorney's escrow account and refunded on sentencing if there were no trial. Handwritten on the last page of the agreement above Gutierrez's signature was: “I David Gutierrez Sr., agree to be responsible for my sons Atty Fees as set out in this Contract and Irrevocable Assignment Coupled with an Interest signed on 11/28/07.”
Gutierrez signed a separate written document titled “Irrevocable Assignment Coupled with an Interest” on the same day as the fee agreement. This assignment recites that Gutierrez had a pending workers' compensation claim that was set for trial and was worth in excess of $100,000. The assignment purports to assign to “C. Tony Wright, Attorney at Law” $50,000 for work to be done in representing Gutierrez, Jr. in the federal criminal case. The assignment authorizes Wright to send the assignment to Gutierrez's attorney in the workers' compensation case, John E. Wall, Jr., and instructs Wall to “withhold the first part of my money in these amounts from me and from the settlement to go to Mr. Wright.” The assignment provides for a second assignment of $30,000 for work to be done in the future in preparing for and going to trial if the criminal case was not resolved by a plea bargain. The $30,000 would be refundable at sentencing if the case did not go to trial.
TWLF undertook the representation of Gutierrez, Jr., in the federal criminal proceeding without receiving any advance payments. There is evidence that the federal criminal case was resolved by a plea agreement in the spring of 2008. In the summer of 2008, Gutierrez's workers' compensation claim was settled and the proceeds were deposited in Wall's trust account.
Gutierrez, Jr., was sentenced in October 2008. In January 2009, TWLF noticed that Gutierrez's workers' compensation case was on the dismissal docket and faxed a letter to Wall's office, with a copy to Gutierrez, requesting a call to discuss the status of the case. In February 2009, TWLF called Wall about the settlement. Wall told TWLF that Gutierrez had instructed Wall not to pay TWLF because Gutierrez was dissatisfied with the representation of Gutierrez, Jr., in the criminal case.
The next day, TWLF sued Gutierrez for breach of contract and quantum meruit, among other claims, and sought to enjoin Wall from paying settlement proceeds from his trust account to Gutierrez. Wall agreed to hold $50,000 in his trust account until the legal issues in the lawsuit were resolved by settlement or court order. After a bench trial, the trial court rendered judgment that TWLF recover $50,000 from Gutierrez for breach of contract “and/or quantum meruit,” reasonable and necessary attorney's fees of $9,900, expert witness fees of $2,000, pre-judgment and post- judgment interest, and costs of court. The judgment ordered a take nothing judgment on TWLF's fraud claims against Gutierrez and Wall and denied all other relief not expressly granted. The trial court filed findings of fact and conclusions of law after Gutierrez's request and denied his motion for new trial. Gutierrez appeals from the judgment.
Capacity to Sue
Gutierrez's first three issues claim TWLF could not recover on the contract because its corporate privileges were forfeited by the secretary of state in 2004 for non-payment of franchise taxes. Gutierrez did not raise these arguments in a verified denial under rule 93; instead he raised them for the first time in a supplemental motion for new trial filed more than thirty days after the judgment was signed. Thus, the issues were not timely raised in the trial court and are not preserved for appeal. See Tex. R. Civ. P. 93(1), (2), (6), 329b(b); Tex. R. App. P. 33.1(a).
Gutierrez argues this is an issue of standing to sue and can be raised at any time. We disagree. A corporation's authority to bring a lawsuit on a claim is an issue of capacity, not standing to sue. See El T. Mexican Rests., Inc. v. Bacon, 921 S.W.2d 247, 249 (Tex. App.-Houston [1st Dist.] 1995, writ denied) (capacity is a party's legal authority to go into court to prosecute or defend a suit). A party must challenge a corporation's capacity to file suit by a verified denial under rule 93. See id.; see also Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003) (“When capacity is contested, Rule 93 requires that a verified plea be filed unless the truth of the matter appears of record.”). We overrule Gutierrez's first three issues.
At oral argument, Gutierrez cited Basic Capital Management, Inc. v. Dynex Commercial, Inc., 348 S.W.3d 894 (Tex. 2011), in support of his lack of capacity argument. In Basic Capital, we concluded a defendant may challenge whether a plaintiff is a party to the contract without filing a verified denial under rule 93. See Basic Capital Mgmt., Inc. v. Dynex Commercial, Inc., 254 S.W.3d 508, 514-15 (Tex. App.-Dallas 2008), rev'd on other grounds, 348 S.W.3d 894 (Tex. 2011). The supreme court agreed with us that a verified denial was not required because the issue had been addressed in cross-motions for summary judgment. See 348 S.W.3d at 899. Here, Gutierrez appears to be arguing that TWLF did not prove it was a party to the contract. However, the fee agreement on its face purports to be between TWLF and Gutierrez, Jr. and the trial court found the contract was valid and enforceable. This finding is unchallenged. Thus, TWLF sufficiently proved it was a party to the fee agreement. Whether TWLF had the capacity (i.e., legal authority) to contract or sue on the contract is a different issue; to raise that issue, Gutierrez was required to file a verified denial. Tex. R. Civ. P. 93(2).
Breach of Contract
Gutierrez's fourth, tenth, and eleventh issues deal with the breach of contract claim and the legal sufficiency of the evidence supporting specific findings of fact and conclusions of law regarding that claim. Within these issues, Gutierrez argues the irrevocable assignment of his workers' compensation claim was void and that the fee agreement was not a true retainer.
1. Legal Sufficiency Standard of Review
When a party appeals from a nonjury trial, it must complain of specific findings and conclusions of the trial court, because a general complaint against the trial court's judgment does not present a justiciable question. See Fiduciary Mortgage Co. v. City Nat'l Bank, 762 S.W.2d 196, 204 (Tex. App.-Dallas 1988, writ denied). Findings of fact are reviewed under the same sufficiency standards as jury verdicts. See Compass Bank v. MFP Fin. Services, Inc., 152 S.W.3d 844, 851-52 (Tex. App.-Dallas 2005, pet. denied). Conclusions of law are reviewed de novo. Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.-Dallas 2008, no pet.). Unchallenged findings of fact are binding on the parties and the appellate court. Id.
2. Void Assignment
Gutierrez's tenth and eleven issues challenge several specified findings of fact and conclusions of law. Under these issues and his fourth issue, Gutierrez argues that the assignment of workers' compensation benefits is void and that all claims based on the irrevocable assignment in this case are therefore void. He argues that his handwritten agreement to be responsible for his son's attorney's fees is also void because it is contingent on the void irrevocable assignment.
We need not determine whether the irrevocable assignment is void because we conclude the assignment is severable from the fee agreement. Moreover, the trial court's judgment is not based on the assignment. We have held “that where an otherwise legal contract contains an illegal provision that is not an essential feature of the agreement, thus being clearly severable from other valid provisions, the other provisions of the agreement will not be deemed to be invalid simply because of the presence of the illegal provision.” Rogers v. Wolfson, 763 S.W.2d 922, 925 (Tex. App.-Dallas 1989, writ denied); see also Zep Mfg. Co. v. Harthcock, 824 S.W.2d 654, 662 (Tex. App.-Dallas 1992, no writ) (“Where a contracting party agrees to perform separable acts, and one is void, the invalid provision may be severed from the valid provision and the valid provision enforced if the intent of the parties is not thereby frustrated.”); Mandril v. Kasishke, 620 S.W.2d 238, 247 (Tex. Civ. App.-Amarillo 1981, writ ref'd n.r.e.).
Gutierrez agreed “to be responsible for my sons Atty Fees as set out in this Contract and Irrevocable Assignment” signed the same date. The fee is set out in both the fee agreement and the irrevocable assignment. But Gutierrez's agreement to be responsible for those fees is not contingent of the validity of the irrevocable assignment. The irrevocable assignment was merely a means of payment of or security for the attorney's fees under the fee agreement. It was not an essential feature of the agreement to pay TWLF for its services in representing Gutierrez, Jr. in the federal criminal prosecution. The fee agreement is clearly enforceable without the irrevocable assignment. Nothing is illegal about a contract to pay an attorney for his services or an agreement by a parent to be responsible for the fees for representing his child in a criminal proceeding.
Gutierrez does not challenge the trial court's finding of fact that he signed the fee agreement. In another unchallenged finding, the trial court found that the fee agreement is “a valid contract and enforceable.” We conclude that the fee agreement is clearly severable from the irrevocable assignment and is valid regardless of the validity of the irrevocable assignment.
Also under issues ten and eleven, Gutierrez argues that the fee agreement was between TWLF and Gutierrez, Jr., not Gutierrez. However, Gutierrez does not challenge the trial court's finding that Gutierrez signed the attorney fee contract hiring TWLF to represent Gutierrez, Jr. in a complex federal criminal case. Gutierrez admitted he signed the fee agreement, that his signature evidenced that he agreed to be responsible of his son's attorneys's fees as set out in the fee agreement and irrevocable assignment, and he had every intention of paying TWLF at the time he signed the agreement. Thus, we reject any argument that Gutierrez was not a party to the fee agreement.
3. Retainer
Gutierrez argues as part of his fourth issue that the fee agreement was not a non-refundable retainer because it was not an advance fee to secure the lawyer's services and TWLF did not receive any prepayment. Gutierrez cites an attorney discipline case holding that an attorney's failure to deposit a prepayment of a fee into his trust account was a violation of the disciplinary rules because the fee had not yet been earned and was not a true retainer even though the agreement stated the fee was non-refundable. See Cluck v. Comm'n for Lawyer Discipline, 214 S.W.3d 736, 739-40 (Tex. App.-Austin 2007, no pet.). The Cluck decision did not involve the validity of the fee agreement, but whether the lawyer violated his ethical duty to hold client funds in his trust account. See id. at 740 (“money that constitutes the prepayment of a fee belongs to the client until the services are rendered and must be held in a trust account”). Cluck does not apply here because TWLF never received any amount in advance of performing legal services. Thus, TWLF was never called upon to hold any funds in its trust account.
Although the $50,000 was called a non-refundable retainer, the fee agreement makes clear that amount was to be paid for services to be performed in investigating and trying to plea bargain the criminal case. Other than the use of the word “retainer” there is nothing in the agreement to indicate the parties intended the $50,000 to be an “advanced fee to secure a lawyer's services” as opposed to a set fee for services to be performed. To the extent Gutierrez argues TWLF cannot recover the $50,000 because it was never deposited in advance of the work to be performed, we reject the argument. On the facts of this case, the contract does not fail because the fee is described as a retainer rather than a flat fee.
The word “retainer” has a variety of meanings, including a client's authorization for the attorney to act in matter, a fee paid simply to have the attorney available when the client needs legal help, a lump-sum fee paid to engage the lawyer at the outset of the matter, and an advance payment for work to be performed in the future. Black's Law Dictionary 1341-42 (8th ed. 2004). Indeed,
Over the years, attorneys have used the term “retainer” in so many conflicting senses that it should be banished from the legal vocabulary.... If some primordial urge drives you to use the term “retainer,” at least explain what you mean in terms that both you and the client will understand.
To the extent Gutierrez contends the fee is not reasonable, he has failed to challenge the trial court's finding that TWLF “charged a reasonable and customary fee for the services to be rendered.” Gutierrez also argues that TWLF failed to perform its obligations under the fee agreement. We reject this contention because he does not challenge the trial court's findings that: (a) TWLF performed all conditions precedent of the contract by doing the reasonable and necessary work to investigate, negotiate, and attempt to dismiss or plea bargain the federal criminal case against Gutierrez, Jr.; (b) through TWLF's efforts, Gutierrez, Jr. received a jail sentence below the federal sentencing guidelines; and (c) TWLF performed fully under the contract. These unchallenged findings of fact support the trial court's judgment and are binding on Gutierrez. See Rich, 274 S.W.3d at 884.
4. Conclusion
We overrule Gutierrez's fourth, tenth, and eleventh issues. Because the breach of contract claim is sufficient to support the trial court's judgment, we need not address Gutierrez's fifth issue regarding recovery in quantum meruit. See Tex. R. App. P. 47.1. Ambiguity
In his eighth issue, Gutierrez contends the fee agreement is ambiguous and should be construed in his favor to require a fee of only $20,000 because Gutierrez, Jr.'s criminal case was resolved without trial.
Whether a contract is ambiguous is a question of law for the court to decide. See Lopez v. Munoz, Hockema & Reed, L.L.P., 22 S.W.3d 857, 861 (Tex. 2000). In construing contracts, we must ascertain and give effect to the parties' intentions as expressed in the document. See id. A contract is not ambiguous if it can be given a certain or definite legal meaning or interpretation. See id. Ambiguity does not arise simply because the parties advance conflicting interpretations of the contract; rather, for an ambiguity to exist, both interpretations must be reasonable. Id.
Gutierrez contends the amount of the fee is ambiguous because the trial fee of $30,000 is to be refunded if there is no trial. From this, he contends that the maximum amount recoverable is $20,000 if the criminal case was resolved without trial. We conclude that Gutierrez's construction of the fee agreement is not reasonable. The fee agreement states that the agreed fee is a $50,000 retainer fee for investigating and attempting to reach a plea agreement, and a trial fee of $30,000 that, when paid, would be placed in the attorney's escrow account and refunded in the event there was no trial. The agreement does not specify when either of these payments would be due, but it is clear that they are separate; that is, the $50,000 did not include the $30,000 trial fee as Gutierrez contends. Similarly, the irrevocable assignment provided for two separate assignments, one in the amount of $50,000 and the second for $30,000.
At the time the fee agreement was signed, the parties did not know whether the case would go to trial or not.
Gutierrez argues this interpretation renders the $30,000 trial fee meaningless. As discussed above, we disagree. We conclude the fee agreement is not ambiguous. We overrule Gutierrez's eighth issue. Rule 11 Agreement
In his sixth issue, Gutierrez argues the trial court erred by overruling his motion for new trial. The motion for new trial requested the trial court to order Wall to release the $50,000 he was holding pursuant to the rule 11 agreement to Gutierrez. The rule 11 agreement provided that Wall would hold $50,000 from Gutierrez's workers' compensation settlement in his trust account “until the legal issues involved in Plaintiff's lawsuit against Defendant David Gutierrez are resolved by settlement or court order.” In his brief, Gutierrez asks this Court to order Wall to tender the withheld funds to Gutierrez.
The record indicates that the trial court's final judgment resolved all the legal issues involved in TWLF's lawsuit against Gutierrez and denied all other relief not expressly granted by the judgment. This appears to satisfy the condition of the rule 11 agreement. However, we conclude this issue presents nothing for review. The brief on this issue cites no authority, see Tex. R. App. P. 38.1(i), and fails to show the trial court abused its discretion in overruling the motion for new trial, See In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (per curiam) (denial of motion for new trial reviewed for abuse of discretion). We overrule Gutierrez's sixth issue. Attorney's Fees and Presentment
To the extent Wall is seeking relief from the trial court's judgment, he has not filed a notice of appeal and we may not award him more favorable relief than did the trial court except for just cause. Tex. R. App. P. 25.1(c). Wall has not shown just cause for modifying the trial court's judgment.
Gutierrez argues in his seventh issue that TWLF is not entitled to recover attorney's fees because it failed to prove its claim was presented to Gutierrez. See Tex. Civ. Prac. & Rem. Code Ann. §38.002 (allowing attorney's fees where the claimant is represented by an attorney, “the claimant must present the claim to the opposing party or to a duly authorized agent of the opposing party,” and the just amount owed is not paid within thirty days after presentment).
The purpose of the presentment requirement is to allow the person against whom the claim is asserted an opportunity to pay a claim within thirty days of receiving notice of the claim without incurring an obligation for attorney's fees. See Jones v. Kelley, 614 S.W.2d 95, 100 (Tex. 1981). No particular form of presentment is required; it may be oral or written. Id. All that is necessary is an assertion of a debt or claim, a request for payment, and the opposing party's refusal to pay. See Id.; Huff v. Fid. Union Life Ins. Co., 312 S.W.2d 493, 500 (Tex. 1958). However, the act of filing suit is not by itself presentment within the terms of the statute. See Huff, 312 S.W.2d at 500; Harrison v. Gemdrill Intern., Inc., 981 S.W.2d 714, 719 (Tex. App.-Houston [1st Dist.] 1998, pet. denied).
Gutierrez argues there is no evidence of a demand for payment before suit was filed. However, there is no requirement in the statute that presentment be made before suit is filed; the only requirement is that the claim be presented to the debtor or his agent and that the just amount owed is not paid within thirty days of the presentment. See Gateley v. Humphrey, 254 S.W.2d 98, 100 (Tex. 1952) (answering “No” to certified question whether claimant must present claim thirty days before filing suit in order to recover statutory attorney's fees under 1949 amendment to former article 2226); Palestine Water Well Servs., Inc. v. Vance Sand & Rock, Inc., 188 S.W.3d 321, 327 (Tex. App.-Tyler 2006, no pet.); Stuckey v. White, 647 S.W.2d 35, 38 (Tex. App.-Houston [1st Dist.] 1982, no writ) (no requirement that presentment must be made prior to the time suit is filed to recover attorney's fees, only that the claim is not paid within thirty days once demand is made.). The statute authorizes the recovery of attorney's fees if a claim is not paid within thirty days of presentment without reference to whether or when suit is filed. See Gateley, 254 S.W.2d at 100.
Here, there is evidence that TWLF sent a letter to Wall, copied to Gutierrez, on January 20, 2009, regarding the assignment of the workers' compensation settlement to pay attorney's fees for criminal case. The letter asked Wall to call and discuss the status of the workers' compensation case. Wright testified that he contacted Wall in early 2009 about payment under the terms of the fee agreement and the irrevocable assignment. Wright spoke with Wall the day before the lawsuit was filed and Wall refused payment, telling Wright the client, Gutierrez, had changed his mind and instructed Wall not to pay. The record indicates that Gutierrez instructed Wall not to pay TWLF sometime in 2008. Wall testified that he refused to pay Wright on Gutierrez's instructions.
The letter stated in part: “As you know, this office represented David Gutierrez, Jr. in a federal criminal case. We previously forwarded to you an Irrevocable Assignment that David Gutierrez, Sr. signed, assigning part of his settlement in the above captioned matter to our office as attorney's fees for representing his son in the federal case.”
Gutierrez argues TWLF's attorney admitted at trial that no demand was made, but the record indicates the attorney was asked whether a written demand had been make before suit was filed. However, presentment does not have to be in writing or made before suit is filed. See Gateley, 254 S.W.2d at 100. Based on the evidence in the record, there is more than a scintilla of evidence the claim was presented to Gutierrez or his agent (Wall) and was not paid within thirty days of presentment. We conclude there is some evidence of presentment to support the trial court's findings and conclusions. See Footnote 6 We overrule Gutierrez's seventh issue.
Expert Witness Fees
In his ninth issue, Gutierrez challenges the trial court's award of expert witness fees to TWLF. The successful party in litigation is entitled to recover costs. Tex. R. Civ. P. 131. Recoverable costs, however, are only those allowed by statute, equitable principles, or contract. See Dallas County v. Crestview Corners Car Wash, 05-09-00623-CV, 2012 WL 523920 at *17 (Tex. App.-Dallas Feb. 16, 2012, no. pet. h.). Expert witness fees are not recoverable as court costs. See Bundren v. Holly Oaks Townhomes Ass'n, Inc., 347 S.W.3d 421, 440 (Tex. App.-Dallas 2011, pet. denied). Accordingly, the trial court erred by awarding TWLF expert witness fees. We sustain Gutierrez's ninth issue. Conclusion
We reverse the trial court's award of expert witness fees and render judgment that TWLF take nothing on its claim for expert witness fees. In all other respects, we affirm the trial court's judgment.
JIM MOSELEY
JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DAVID GUTIERREZ, SR., Appellant
No. 05-10-00725-CVV.
THE WRIGHT LAWFIRM, PLLC, AppelleeAppeal from the 44th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 09- 01202-B).
Opinion delivered by Justice Moseley, Justices Lang and Myers participating.
In accordance with this Court's opinion of this date, that part of the judgment of the trial court awarding expert fees is REVERSED and judgment is hereby RENDERED that appellee The Wright Lawfirm, PLLC take nothing on its request for expert fees. In all other respects, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee The Wright Lawfirm, PLLC recover its costs of this appeal from appellant David Gutierrez, Sr.
Judgment entered April 27, 2012.
JIM MOSELEY JUSTICE
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
DAVID GUTIERREZ, SR., Appellant
No. 05-10-00725-CV
V.
THE WRIGHT LAWFIRM, PLLC, AppelleeAppeal from the 44th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 09- 01202-B).
Opinion delivered by Justice Moseley, Justices Lang and Myers participating.
In accordance with this Court's opinion of this date, that part of the judgment of the trial court awarding expert fees is REVERSED and judgment is hereby RENDERED that appellee The Wright Lawfirm, PLLC take nothing on its request for expert fees. In all other respects, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee The Wright Lawfirm, PLLC recover its costs of this appeal from appellant David Gutierrez, Sr.
Judgment entered April 27, 2012.
JIM MOSELEY
JUSTICE
Court of Appeals Fifth District of Texas at Dallas MANDATE TO THE 44TH JUDICIAL DISTRICT COURT OF DALLAS COUNTY, GREETINGS:
Before the Court of Appeals for the Fifth District of Texas, on the Day of Month and Year, the cause on appeal to revise or reverse the judgment between
DAVID GUTIERREZ, SR., Appellant
No. 05-10-00725-CV
V.
THE WRIGHT LAWFIRM, PLLC, AppelleeAppeal from the 44th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 09- 01202-B).
Opinion delivered by Justice Moseley, Justices Lang and Myers participating.
was determined; and therein this Court made its order in these words:
In accordance with this Court's opinion of this date, that part of the judgment of the trial court awarding expert fees is REVERSED and judgment is hereby RENDERED that appellee The Wright Lawfirm, PLLC take nothing on its request for expert fees. In all other respects, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee The Wright Lawfirm, PLLC recover its costs of this appeal from appellant David Gutierrez, Sr.
WHEREFORE, WE COMMAND YOU to observe the order of the Court of Appeals for the Fifth District of Texas, in this behalf, and have it duly obeyed and executed.
WITNESS, the HON. CAROLYN WRIGHT, Chief Justice of the Court of Appeals, with the Seal thereof affixed, at the City of Dallas, this day of , . OFFICE OF THE CLERK
Deputy Clerk
Court of Appeals Fifth District of Texas at Dallas BE IT REMEMBERED:
DAVID GUTIERREZ, SR., Appellant
No. 05-10-00725-CV
V.
THE WRIGHT LAWFIRM, PLLC, AppelleeAppeal from the 44th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. 09- 01202-B).
Opinion delivered by Justice Moseley, Justices Lang and Myers participating.
In accordance with this Court's opinion of this date, that part of the judgment of the trial court awarding expert fees is REVERSED and judgment is hereby RENDERED that appellee The Wright Lawfirm, PLLC take nothing on its request for expert fees. In all other respects, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee The Wright Lawfirm, PLLC recover its costs of this appeal from appellant David Gutierrez, Sr.
I, LISA MATZ, CLERK of the Court of Appeals for the Fifth District of Texas, at the City of Dallas, hereby certify that the foregoing is a true copy of the opinion, judgment and all orders entered by this Court in the above cause.
IN WITNESS WHEREOF, I hereunto set my hand and affix the seal of said Court at Dallas this day of , . OFFICE OF THE CLERK Lisa Matz, Clerk
Id. (quoting Mortimer D. Schwartz & Richard C. Wydick, Problems in Legal Ethics 100, 101 (2d ed. 1988)).