Opinion
No. 05-02-01737-CV
Opinion Filed August 16, 2004.
On Appeal from the 192nd Judicial District Court Dallas County, Texas, Trial Court Cause No. 00-00808-K.
Affirmed.
Before Chief Justice THOMAS, Justices WRIGHT and FITZGERALD.
MEMORANDUM OPINION
Tricon Insurance Services, Inc. appeals the trial court's award of attorney's fees to the Law Office of Keith M. Jensen, P.C. and The MacPete Law Firm in a class action suit against the Dallas Cowboys Football Club, Ltd., its general partner JWJ Corporation, and American Blast Fax Inc. The facts of this case are known by the parties, and we do not recite them in detail. Because the issues are clearly settled in law, we issue this memorandum opinion. See Tex.R.App.P. 47.1. We affirm the trial court's judgment.
In points of error one through three and five through seven, Tricon complains the trial court erred in awarding attorneys' fees and expenses to appellees because the evidence is legally and factually insufficient to support them and the trial court erred in the manner in which it calculated the attorneys' fees. Each of these complaints requires a review of the evidence; however, Tricon did not file a reporter's record from the final hearing even though the briefing reflects that an evidentiary hearing was held. Moreover, the record reflects that Tricon did not ask that the hearing be recorded. Because Tricon failed to request or obtain a record of the final "fairness hearing" on the proposed class action settlement, we presume that there was evidence before the trial court to support the court's award of attorneys' fees and expenses. See Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002); Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996) ("If an appellant fails to present a complete statement of facts on appeal, the appellate court must presume that the omitted portions are relevant and support the trial court's judgment."); see also Worthy v. Collagen Corp., 921 S.W.2d 711, 713-14 (Tex. App.-Dallas 1995), aff'd, 967 S.W.2d 360 (Tex. 1998). Accordingly, we overrule Tricon's points of error one, two, three, five, six, and seven.
In its reply brief, Tricon acknowledges this fact by asserting that two exhibits were offered as evidence at the hearing.
In a footnote, Tricon attempts to take advantage of the rule regarding a partial reporter's record when the appeal has been limited. Specifically, if a party files a statement limiting the points or issues to be presented on appeal, we presume a partial record constitutes the entire record for purposes of reviewing the appeal. See Tex.R.App.P. 34.6(c)(4). Tricon limited its appeal to the attorneys' fee issue; however, given that Tricon did not request the hearing be recorded, he cannot now take advantage of a partial reporter's record presumption.
In its fourth point of error, Tricon complains that the trial court erred when it failed to explain the basis for its award of attorneys' fees. Tricon argues "there is nothing in the record" to indicate "compliance by the trial court with the requirements of Rule 42 applicable to the approval of settlements and the award of attorneys' fees from the common fund." Again, however, we do not have a record of the final hearing. Accordingly, we presume that record would support that the trial court complied with rule 42. See Bennett, 96 S.W.3d at 229; Feldman, 960 S.W.2d at 614; Worthy, 921 S.W.2d at 713-14. We overrule the fourth point of error.
In the eighth point of error, Tricon contends the trial court did not give adequate notice of the basis for class counsel's applications for attorneys' fees and the effect of an attorneys' fees award on the amount to be paid to the class. We disagree.
Texas rules provide that a "class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such a manner as the court directs." Tex. R. Civ. P. 42. The manner of notice must be reasonably calculated under all the circumstances to inform interested parties of the pending action and afford them an opportunity to present their objections. Ball v. Farm Home Sav. Ass'n, 747 S.W.2d 420, 424 (Tex. App.-Fort Worth 1988, writ denied). The notice must reasonably convey the required information and afford a reasonable time for those interested to make an appearance. Id. In particular, class action settlement notices must contain the maximum amount of attorneys' fees sought by class counsel and specify the method of calculating the award. Gen. Motors Corp. v. Bloyed, 916 S.W.2d 949, 957 (Tex. 1996). The mechanics of giving notice of a proposed settlement is within the trial court's discretion, subject to the reasonableness standards imposed by due process. Id.
Here, the settlement notice informed class members that there would be a common fund of $1,735,000 from which their claims would be paid, and that amounts for administering, handling and processing the common fund, as well as awards of attorneys' fees and expenses, would be deducted from the fund. The notice reiterated several times that all fees and costs would be paid out of the common fund. Further, the notice stated that "the amount, if any, awarded by the Court for fees and costs . . . may have the effect of lowering the monetary relief received by each Member of the Class. . . ."
The notice also informed class members that counsel would "collectively be seeking a total of 35% of the settlement as fees" and additionally would be seeking reimbursement of expenses of at least $97,399.70. Again, when the notice summarized the previous information, it gave the amount of the common fund, it reemphasized that the common fund would be reduced by expenses and attorneys' fees, and that class counsel would be seeking approval of 35% of the common fund for attorneys' fees plus reimbursement of expenses.
The notice clearly stated that there would be a settlement hearing on July 11, 2002 at 9:00 a.m., and that any person who opposed any aspect of the proposed settlement had the right to object. It was also expressed that the underlying data to support the award of attorneys' fees would be reviewed and evaluated at the July 11th hearing, and that any class member had the right to inspect all documents filed in the action. Based upon the above-recited details of the written notice given to class members, we hold that Tricon's complaints concerning notice have no merit. To the extent Tricon complains that class counsel did not timely file its application for fees and expenses, Tricon has not directed us to a place in the record where it objected on this basis or where it requested additional time. Accordingly, we overrule the eighth point of error.
We deny appellees' motion for sanctions against Tricon for filing a frivolous appeal. See Tex.R.App.P. 45.
We affirm the trial court's judgment.