hazel-ray-individually-and-of-the-estate-of-dock-l-dire-teaneah-jackson ( 2008 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-06-00242-CV
Hazel Ray, Individually and Executrix of the Estate of Dock L. Dire; Teaneah Jackson,
as Next Friend of T.D., a Minor; and Attorney Don R. Caggins, Sr., Appellants
v.
T.D., a Minor, Appellee
FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 189,057-B, HONORABLE RICK MORRIS, JUDGE PRESIDING
MEMORANDUM OPINION
This appeal involves a dispute over an attorney’s claim for fees from the proceeds of
a minor settlement. Finding in part that the minor’s attorney had no enforceable agreement entitling
him to fees from the settlement proceeds, the district court denied the attorney any recovery. The
attorney, Don R. Caggins, Sr., brings a single issue asserting that the district court abused its
discretion in so ruling. On this record, we cannot conclude that the district court abused its
discretion. We will affirm the judgment.
BACKGROUND
In October 2000, Dock L. Dire was killed in an automobile-motorcycle collision
with Carroll C. Johnson. At the time of his death, Dire had a minor daughter, T.D. Appellant
Teaneah Jackson is T.D.’s mother, while appellant Hazel Ray is Dire’s surviving mother and
executrix of his estate. Jackson and Ray are residents of Shelby County, Tennessee. Shortly after
Dire’s death, a guardianship proceeding was filed in the probate court of Shelby County and, on or
about January 30, 2001, Ms. Jackson was appointed and qualified as guardian of T.D.’s estate.
In October 2001, Ray, individually and as executrix of Dire’s estate, and Jackson, as
T.D.’s next friend, filed a “friendly” wrongful death action against Johnson in the district court of
Bell County. The action was intended to obtain the court’s approval of a settlement wherein
Johnson’s automobile insurance carrier, State Farm, had agreed to pay the $100,000 limit of
Johnson’s policy, to be apportioned among the plaintiffs, in exchange for a release. Caggins
represented all three plaintiffs. The district court appointed a guardian ad litem, Neale Potts, to
represent T.D.’s interests. Various complications delayed efforts to finalize the settlement, including
a lien asserted by the federal government for medical care provided to Dire, events in the Tennessee
guardianship proceeding, and Caggins’s claim for attorney’s fees. Eventually, State Farm, on
Johnson’s behalf, agreed to interplead the $100,000 policy limits, deposit the amount into the court’s
registry, and bring in the federal government as a third-party defendant.
The parties eventually resolved the lien issue, leaving Caggins’s attorney’s-fee claim
as the sole sticking point in finalizing the settlement and dispensing the funds.1 On March 21, 2005,
Caggins filed a motion for court approval of attorney’s fees “in the amount of 33 1/3 of the
recovery.” Caggins represented that he “has been the sole attorney to prosecute this cause on behalf
1
The record reflects that Caggins also asserted a similar attorney’s-fee claim in the
Tennessee guardianship proceeding. The Tennessee court held that the district court here had sole
jurisdiction to adjudicate Caggins’s entitlement to fees from the settlement proceeds.
2
of all Plaintiffs . . . since November 2000” and that he “has prosecuted the claim whereby policy
limits has been tendered by Defendants.”
Potts, the guardian ad litem, filed a report with the court in which he objected
to Caggins’s request:
I have not been able to reach an agreement with Mr. Caggins as to the amount of his
fee. It appears to me that this case required very little work by Mr. Caggins to obtain
the insurance company’s agreement to tender the policy limit. Although on
December 23, 2004, I requested that Mr. Caggins furnish me with a copy of his file
and a listing or estimation of the time he spent obtaining the settlement, he has
declined to do so.
The determination of the amount of attorney’s fee[s] due Mr. Caggins is further
complicated by the fact that he has represented to [] me throughout this case . . . that
he was employed by Teaneah Jackson, the mother of [T.D.], to represent the interests
of the child based upon a 40% contingency fee contract. It appears that the only
contract executed by Teaneah Jackson is a handwritten letter signed by her, a copy
of which is attached hereto. I am not even sure that writing constitutes a contract for
legal services. . . .
....
It appears to me that Mr. Caggins may also have various conflicts of interest in
representing the various parties in this case. In requesting this Court to allow a fee
based upon the percentage of the recovery where no contingency fee contract exists,
I believe that Mr. Caggins is taking a position that is adverse to his client, [T.D.]
Mr. Caggins is also representing Hazel Ray, the mother of Dock L. Dire. . . . The
three clients of Mr. Caggins have conflicting claims to the $100,000 settlement
proceeds, particularly where the damages suffered by [T.D.] as a result of the death
of her father far exceed the amount of the settlement proceeds.
....
To Mr. Caggins’s credit he has obtained a reduction in the medical lien from
$44,353.15 to $29,065.42, resulting in a savings of $15,287.73.
It is my recommendation to the Court that Mr. Caggins’s fee should not exceed
$12,500.
3
Potts attached to his report a copy of the Jackson “handwritten letter.” It states:
I’m mother of [T.D.] I herein imply [sic] attorney Don Caggins to represent the
interests of my daughter [T.D.] for the death of her father Dock L. Dire.
Thanks,
Ms. Teaneah T. Jackson.
The document then listed Jackson’s address and contact information and concluded with, “Any
questions please feel free to call.” The document was not dated, was not signed by Caggins, and did
not mention fees or a fee agreement.
Potts also attached a document entitled “Power of Attorney” that was purportedly
executed by Caggins and Hazel Ray. The instrument appointed Caggins “as my true and lawful
attorney” and provided that he would receive “33 1/3 percent of any collection on settlement before”
filing suit and 40 percent “after suit is filed,” after deduction for expenses.
Potts asserted in his report that Caggins had not complied with the statutory
requirements governing contingent-fee agreements, see Tex. Gov’t Code Ann. § 82.065 (West 2005),
and that Caggins had violated the disciplinary rules of professional conduct. See Tex. Disciplinary
R. Prof’l Conduct 1.04(d) (relating to contingent-fee contracts), 1.06(b) (relating to conflicts
of interest), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (West 2005). Potts also
argued that by seeking recovery of attorney’s fees out of T.D.’s settlement proceeds, Caggins had
breached his fiduciary duty to T.D. and that fee forfeiture was an appropriate remedy for such a
breach. See Burrow v. Arce, 997 S.W.2d 229, 237-38 (Tex. 1999).
Potts also noted correspondence to the effect that USAA, Dire’s automobile
insurer, had agreed to pay the $300,000 policy limits on Dire’s uninsured/underinsured motorist
4
coverage, and that Caggins was claiming he was due a fee of $100,000 in that action, but that the
case had not yet been filed.
Caggins filed a one-page response to the ad litem’s report in which he stated, “There
does not exist nor have their [sic] ever existed a conflict of interest between any of my clients.”
Caggins also expressed surprise at Potts’s position that he was entitled to only a $12,500 fee,
claiming that he had understood Potts to have already agreed to a $25,000 fee, only $8,333.33 short
of the $33,333.33 Caggins had claimed.
A hearing was held on April 1, 2005. The only evidence presented, in addition to
Potts’s ad litem report, was a December 29, 2004 letter from Potts, introduced by Caggins, in which
the ad litem had suggested a distribution of the settlement proceeds whereby Caggins would receive
$25,000 in attorney’s fees. Potts explained that he had written this letter based on Caggins’s
representations throughout the litigation that he actually had an enforceable 40% contingent-fee
agreement. According to Potts, he did not ascertain the true nature of Caggins’s agreements until
later, “probably two weeks prior to the date of my report.”
Potts explained generally that his recommendation of a $12,500 fee—“if the court is
going to allow a fee”—was “based upon the reduction of the government lien and . . . some work
by Mr. Caggins in obtaining the settlement.” Potts added, however, that he had been “unable to
obtain a copy of Mr. Caggins’s file to review and . . . a listing of his time in this case . . .and it’s been
difficult for me to come to an—even a recommendation for fees.”
During the hearing, the district court expressed reservations that Caggins had an
enforceable fee agreement, but added that “before I gut a lawyer on his entire fee, I’m going to take
5
this matter under advisement and look at it very carefully.” Two weeks after the hearing, the district
court advised the parties by letter that it had “determined that Mr. Caggins is not entitled to any
attorney’s fees out of the settlement proceeds.”
Subsequently, USAA filed a plea in intervention to interplead the $300,000 limits of
Dire’s underinsured motorist coverage. The district court later granted the intervention.
In September, the district court signed a judgment approving the settlement between
the plaintiffs and Johnson, dividing most of the $100,000 settlement proceeds among the plaintiffs,
releasing Johnson, but reserving the disputed amount of Caggins’s attorney’s-fee claim. The court
ordered $53,333 deposited in the court’s registry for the benefit of T.D. pending further orders of the
court or to be held until T.D.’s eighteenth birthday. The amount apparently included (1) $20,000,
the amount of a structured-settlement for T.D.’s benefit; and (2) $33,333, the amount of Caggins’s
attorney’s-fee claim against the settlement proceeds.
Potts filed a motion to withdraw all funds held in the court’s registry and forward
them to the registry of the Tennessee probate court. Caggins objected to the withdrawal of all of the
funds, arguing that the district court had not rendered a judgment regarding his entitlement to
attorney’s fees from the $300,000 tendered to the court by USAA.2
A hearing was held on January 13, 2006. On that date, for the first time, Caggins
presented two typewritten documents, each titled “Contingent Fee Contract,” one of which was
2
Caggins also filed a motion to modify the judgment to clarify that the district court had
denied his request for fees from the State Farm policy proceeds and that the $53,333.33 in the court’s
registry “are pending further Order of the Court and the outcome of the Court’s denial of any
attorney’s fee to plaintiff’s counsel . . . asserted as 1/3 interest ($33,333.33) of the $100,000
settlement or they will be held until [T.D.’s] 18th birthday.”
6
between himself and Hazel Ray, while the other was between himself and Jackson, as T.D.’s
next friend. Both contracts were dated January 6, 2006, but purported to relate back to the
commencement of Caggins’s representation on November 16, 2000. The contracts provided for
33 1/3 percent of any gross recovery before any court action is filed, 40 percent of any gross recovery
after the action is filed, but before commencement of trial, 45 percent of any gross recovery after
commencement of trial, and 50 percent of any gross recovery after the filing of any appeal by any
party. Caggins introduced these documents into evidence and asserted that they rendered moot any
dispute regarding the enforceability of his earlier purported fee agreements. Caggins acknowledged
that the two contracts were signed on January 6 and that he did not know whether Jackson had
obtained authorization from the Tennessee probate court to execute her contract on T.D.’s behalf.
Potts, on T.D.’s behalf, urged that these instruments were unenforceable, violated ethics rules, and
breached Caggins’s fiduciary duty to T.D.
Caggins also presented some brief testimony touching on the legal services he had
provided to T.D. and the other plaintiffs. The following is his entire testimony regarding that matter:
. . . I represented not only the minor in this matter, but the estate of the daughter and
also the surviving mother who is Hazel Ray. So, not only did I represent the minor,
but I also represented the estate and Ms. Hazel Ray.
....
The record will reflect that all of the work for the Plaintiff has been performed by me
or my law firm, all of the investigative work. I made four trips to Memphis,
Tennessee. I made approximately 13 trips from Houston to Bell County, the—the
only attorney that represented the interest of the minor, the interest of the estate, or
the interest of the surviving mother has been myself.
7
. . . The maximum amount of recovery has been recovered from the available funds
and policies in this matter.
....
I performed all of the work, Judge.
Johnson’s counsel also stipulated on the record that Caggins had been the only attorney representing
the plaintiffs’ personal injury claims and that he had worked with no other attorney or other person
acting on the plaintiffs’ behalf.3
On cross-examination, Potts elicited Caggins’s admission that Potts had asked for a
copy of Caggins’s files, a time sheet, or a compilation of the number of hours Caggins had spent on
the case so Potts could determine how much work Caggins had put into the case. Caggins
acknowledged that he had not provided that information.
At the hearing’s conclusion, the district court invited additional briefing on the
attorney’s-fee issue. It ultimately rendered final judgment that Caggins was “not entitled to receive
any attorney’s fees from the settlement proceeds on deposit in the Registry of this Court.” The
district court further ordered that all funds in excess of the $133,333.33 claimed as attorney’s fees
(the $33,333.33 Caggins claimed from the State Farm proceeds plus the $100,000 he claimed from
the USAA proceeds) be transferred to the probate court in Shelby County, Tennessee and that the
3
Specifically, Johnson’s counsel stated:
[F]rom the outset the claim was presented on behalf of the named Plaintiffs by
attorney Don R. Caggins. I worked with no other attorney throughout the process
and worked with no other person on behalf of the Plaintiffs in terms of handling and
settling their personal injury claims. The only person who’s claimed to have
represented them in that capacity has been Don R. Caggins.
8
$133,333.33 claimed as attorney’s fees be placed in an interest-bearing account in the district court’s
registry pending further order of the district court. The district court entered the following pertinent
findings of fact based on the evidence presented at the two hearings:
6. . . . . No evidence has been presented to this Court that the Probate Court in
Shelby County, Tennessee has authorized Teaneah Jackson to enter into a contract
with Attorney Caggins for the representation of the minor, [T.D.]
....
9. On April 1, 2005, . . . the court received evidence and heard argument with regard
to whether or not attorney’s fees could be collected or charged as they related to the
funds distributed to the minor plaintiff. . . [Caggins] represented to the court that he
was the attorney for the minor plaintiff. . . . In support of his motion [for attorney’s
fees], Mr. Caggins offered the following evidence:
a. A handwritten unverified document purportedly signed by Teaneah Jackson
[quoted, attached, and incorporated].
b. A document entitled “Power of Attorney” purportedly executed by Hazel
Matthew Ray . . . .[attached and incorporated].
c. In response to Mr. Caggins’s motion, the ad litem, Mr. Potts, offered his
report which was accepted as evidence and testimony and is included herein
[attached].
At hearings before the court on April 1, 2005 and January 13, 2006,
Mr. Caggins declined to allow his case file to be examined by the attorney ad litem,
declined to furnish a time sheet showing the time spent on the case and declined to
give an estimate of the number of hours spent in representation of the case.
The parties were notified by the Court in a letter dated April 14, 2005 that the
Court had determined that Mr. Caggins was not entitled to any attorney’s fees from
the settlement [letter attached and incorporated].
....
9
13. No sufficient evidence has been presented to this court to support a legally
binding claim for the recovery of attorney’s fees of and from the proceeds to be
distributed to the minor plaintiff, [T.D.]
14. Attorney Don R. Caggins, Sr., is claiming that he is entitled to a percentage of
the amounts to be distributed to the Minor Plaintiff, [T.D.] and is not seeking
compensation for his hourly work based on an hourly rate.
15. No legally enforceable written agreement has been presented to the Court or
offered as evidence to support a claim for a contingency fee or percentage recovery
for attorney’s fees out of the funds to be distributed to the Minor Plaintiff, [T.D.]
....
19. There is an inherent conflict of interest when an attorney represents multiple
parties asserting claims against the same settlement proceeds if the damages suffered
by the parties exceeds the amount of the settlement proceeds.
20. There is no evidence that each affected or potentially affected client consented
to representation by Attorney Don R. Caggins, Sr., after full disclosure of the
existence, nature, implications, and possible adverse consequences of the common
representation of the Plaintiffs and the advantages involved, if any.
21. . . . . The [January 6, 2006] Contract [attached and incorporated] was obtained
after Mr. Caggins had received notice from this Court in its letter of April 14, 2005
that he was not entitled to any attorney’s fees in this case from the settlement
proceeds of the minor, [T.D.]
The district court also made the following conclusions of law:
2. The court finds that the evidence presented in support of Attorney Caggins’s
motion is insufficient to establish a legal right to recover attorney’s fees with regards
to the funds distributed to the minor, [T.D.], herein.
3. The court finds that there is no legally enforceable contract for attorney’s fees
between Attorney Caggins and the minor plaintiff, [T.D.]
4. The court finds that no one with legal capacity to retain an attorney on behalf of
the minor Plaintiff, [T.D.], ever entered into a proper contract protecting her interest
prior to settlement of the claims approved by this Court.
10
5. The court finds that the evidence presented by the attorney ad litem, Neale Potts,
is sufficient to support a finding that a conflict of interest [existed] between the
parties purportedly represented by Don R. Caggins, Sr. and that no evidence
indicating a full disclosure of said conflict has ever been presented to this Court or
the alleged clients of Don R. Caggins, Sr. Specifically, rule 1.06 of the Texas
Disciplinary Rules of Professional Conduct precludes Attorney Caggins’s effort to
seek attorney’s fees with regard to the funds agreed to be distributed to the minor
plaintiff [T.D.]
6. Attorney Don R. Caggins, Sr. has breached his fiduciary duty to his client by
attempting to establish that he is entitled to a contingent attorney’s fee through the
execution of the Contingent Fee Contract dated January 6, 2006 after being
previously advised that he was not entitled to a contingent attorney’s fee in the
Court’s letter of April 14, 2005.
7. The settlements and Judgments herein are approved and are in the best interest of
the Minor, [T.D.]
8. It is in the best interest of the Minor, [T.D.], that no attorney’s fees be awarded to
Attorney Don R. Caggins, Sr., herein.
This appeal followed.
DISCUSSION
In his single issue, Caggins argues that the district court abused its discretion by
“denying plaintiffs’ counsel recovery of attorney’s fees though plaintiffs’ counsel represented all
plaintiffs in this cause of action,” in allowing “recovery to all plaintiffs without compensation to
plaintiffs’ counsel,” and by “fail[ing] to exercise its discretion in and determined an equitable
distribution of attorney’s fees as reasonable and necessary payment . . . for counsel’s representation
of the minor child and remaining plaintiffs.” As best we can discern, Caggins asserts on appeal three
theories as to why the district court abused its discretion in refusing to award him attorney’s fees:
(1) Caggins had an enforceable attorney’s-fee agreement (i.e., he challenges the sufficiency of the
11
evidence supporting the district court’s findings to the contrary)4; (2) Potts, the ad litem, was barred
by quasi-estoppel from challenging the enforceability of these agreements; and (3) quantum meruit.5
Caggins prays that he “is entitled to recover reasonable and necessary attorney’s fees which are
customary to the facts, to-wit, 33 1/3% of the proceeds of the recovery now held in the registry of
the district clerk of Bell County, Texas.”
Standard of review
Generally, we review a trial court’s decision to either grant or deny recovery
of attorney’s fees under an abuse of discretion standard. EMC Mortg. Corp. v. Davis, 167
S.W.3d 406, 418 (Tex. App.—Austin 2005, pet. denied). The ultimate test for abuse of
discretion is whether the ruling was unreasonable or arbitrary or made “without reference to
any guiding rules or principles.” Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004)
(citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985)). When reviewing
a trial court’s decision under this standard, we must view the evidence in the light most favorable
4
Caggins argues that he “was cloaked in authorization for representation of the appellants
in the prosecution of their claims as evidenced by the contracts initially entered into in November
of 2000 and the contract executed in an effort to relate back to the original . . .” and that “the refusal
of the court to allow payment of any kind under any agreement is an abuse of discretion.” He
elsewhere asserts that “Jackson . . . acted on behalf of the child and authorized counsel to represent
her in recovery of damages, offers her telephone number . . . address . . . and invited that any (one)
with questions please feel free to call,” and that Ray “had boldly included . . . the specific amount
of 33 1/3% of any collection before suit is filed and 40% stated after.” We will construe these
assertions as a challenge to the district court’s underlying findings that Caggins had no enforceable
contract for fees and its exercise of discretion to deny fees in light of those findings.
5
Caggins states that the settlement “was based on the work product of appellent’s [sic]
counsel” and that “[t]he court’s exercise of its discretion could have allowed some determination of
actual contract by analysis or quantum meruit in attempting to prevent appellant[’]s total lockout of
payment of fees and the unjust enrichment of all plaintiffs.”
12
to the trial court’s ruling and indulge every presumption in its favor. Aquaduct, L.L.C. v. McElhenie,
116 S.W.3d 438, 444 (Tex App.—Houston [14th Dist.] 2003, no pet.); Phillips & Akers, P.C.
v. Cornwell, 927 S.W.2d 276, 279 (Tex. App.—Houston [1st Dist.] 1996, no writ). Legal- and
factual-sufficiency issues may be subsumed within this inquiry. Specifically, we may consider both
whether the trial court had sufficient information (i.e., sufficient evidence) upon which to exercise
its discretion and, if so, whether the trial court abused the exercise of its discretion based on
that information. See Cordova v. Sw. Bell Yellow Pages, Inc., 148 S.W.3d 441, 445-46
(Tex. App.—El Paso 2004, no pet.). Where, as here, the trial court made findings of fact and
conclusions of law, the evidentiary-sufficiency component of the inquiry is focused on those
findings. See Tex. R. Civ. P. 299.6
Contract
For a contingent-fee contract to be enforceable, it must satisfy section 82.065 of the
government code:
(a) A contingent fee contract for legal services must be in writing and signed by the
attorney and client.
(b) A contingent fee contract for legal services is voidable by the client if it is
procured as a result of conduct violating the laws of this state or the Disciplinary
Rules of the State Bar of Texas regarding barratry by attorneys or other persons.
6
Caggins asserts in his brief that “the court in its Findings of Facts and Conclusions of
Law declared that they were entered without grounds and solely within the discretion of the court.
(C.R.- 153-155).” The citation references one of the proposed findings of fact and conclusions of
law that Caggins filed—“The denial of plaintiff’s counsel’s attorney’s fees is made within the
Court’s discretion and without stated grounds.” The district court did not adopt or make any such
finding.
13
Tex. Gov’t Code Ann. § 82.065. A contingent-fee contract must also satisfy the requirements of rule
1.04(d) of the disciplinary rules of professional conduct:
A contingent fee agreement shall be in writing and shall state the method by which
the fee is to be determined. If there is to be a differentiation in the percentage or
percentages that shall accrue to the lawyer in the event of settlement, trial or appeal,
the percentage for each shall be stated. The agreement shall state the litigation and
other expenses to be deducted from the recovery, and whether such expenses are to
be deducted before or after the contingent fee is calculated.
Tex. Disciplinary R. Prof’l Conduct 1.04(d).
The district court found that there was no evidence the Tennessee probate court
had authorized Jackson, T.D.’s guardian since January 2001, to execute a contract with Caggins
on T.D.’s behalf. Furthermore, the “handwritten unverified document purportedly signed by
Teaneah Jackson,” mentions nothing about attorney’s fees. And, although the “Power of Attorney”
purportedly executed by Hazel Ray does mention attorney’s fees, it does not reflect that Ray
executed the document other than in her own behalf. On the face of each document, neither is an
enforceable contract entitling Caggins to attorney’s fees from the settlement proceeds paid to T.D.
As for the January 6, 2006 contract, the district court found that at the time of
execution, Caggins had a conflict of interest with T.D. arising from their competing claims to the
finite settlement proceeds and that Caggins had failed to comply with the disciplinary rules in
obtaining his client’s consent after disclosure. The district court further found that Caggins
previously had been notified by letter “that the Court had determinated that Mr. Caggins was not
entitled to any attorney’s fees from the settlement proceeds” and concluded that Caggins breached
14
his fiduciary duty to his client by procuring the January 6, 2006 contract “after being previously
advised that he was not entitled to a contingent attorney’s fee.” These findings and conclusions,
which Caggins does not explicitly challenge, support the district court’s finding that the instrument
was unenforceable.
The evidence is legally and factually sufficient to support the district court’s findings
that Caggins had no enforceable agreement entitling him to attorney’s fees from the minor settlement
proceeds. The district court did not abuse its discretion in refusing to award Caggins attorney’s fees
from the settlement proceeds based on those findings.
Equitable theories
On appeal, Caggins attempts to raise quasi-estoppel as a counter-defense barring
Potts’s right to raise, on T.D.’s behalf, defenses to enforcement of Caggins’s purported fee
agreements. Quasi-estoppel precludes a party from asserting, to another’s detriment, a right
inconsistent with a position he has previously taken. See Enochs v. Brown, 872 S.W.2d 312,
317 (Tex. App.—Austin 1994, no writ). The doctrine applies when it would be unconscionable to
allow a person to maintain a position inconsistent with one in which he accepted a benefit. Id.
Caggins did not raise quasi-estoppel in the district court, however, nor did he seek findings of fact
and conclusions of law regarding that theory. As the party with the burden of proving quasi-
estoppel, Caggins’s failure to seek findings and conclusions regarding that theory waives it. See
Intec Systems, Inc. v. Lowrey, 230 S.W.3d 913, 918-19 (Tex. App.—Dallas 2007, no pet.).
Caggins also claims that he is entitled to attorney’s fees under quantum meruit.
To recover under quantum meruit, a claimant must prove that: (1) valuable services were rendered;
15
(2) for the person sought to be charged; (3) the services were accepted, used, and enjoyed by the
person sought to be charged; and (4) the acceptance, use, and enjoyment was under such
circumstances as reasonably notified the person sought to be charged that the claimant, in performing
such services, was expecting to be paid by the person sought to be charged. See Enochs, 872 S.W.2d
at 321. Although we cannot find in the record that Caggins ever explicitly invoked “quantum
meruit” in the district court, Caggins did raise arguments and present proof going to the substance
of such a theory. He testified (and Johnson’s attorney concurred) that he had been the plaintiffs’ sole
attorney during the prosecution of their claim; that he had performed some unspecified work in
connection with State Farm and USAA’s agreements to pay policy limits; that the ad litem, Potts,
credited him with the federal government’s $15,287.73 reduction in its medical lien and had
recommended a $12,500 fee for that work and other efforts in connection with the State Farm
payment (although Potts did not elaborate on the bases for these conclusions, and acknowledged that
Caggins had refused to provide him an objective measure of the value of Caggins’s services); and
that Caggins had made several trips from Houston to Memphis and Bell County. The district court,
further, made two findings to the effect that Caggins had failed to meet his burden of proving the
reasonable value of his services to T.D.: Caggins (1) “declined to allow his case file to be examined
by the attorney ad litem, declined to furnish a time sheet showing the time spent on the case
and declined to give an estimate of the number of hours spent in representation of the case,” and
(2) “is claiming that he is entitled to a percentage of the amounts to be distributed to the Minor
Plaintiff . . . and is not seeking compensation for his hourly work based on an hourly rate.” In the
absence of any attempt by Caggins to quantify the value of any legal services he provided T.D.
16
beyond his bare reliance on a claimed contingent-fee percentage,7 the district court did not abuse its
discretion in refusing to award Caggins attorney’s fees under quantum meruit. See Hoover
Slovacek L.L.P. v. Walton, 206 S.W.3d 557, 565-66 (Tex. 2006) (holding that law firm “no longer
has a claim for quantum meruit” arising from services provided under a contingent-fee contract
where it had failed to present evidence of the reasonable value of those services); cf. Arthur
Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818-19 (Tex. 1997) (bare contingent-fee
percentage is insufficient evidence of reasonable and necessary attorney’s fees).
CONCLUSION
We overrule Caggins’s issue on appeal and affirm the judgment of the district court.
__________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed: February 7, 2008
7
Nor does Caggins contend that he has conclusively proven the other elements of quantum
meruit. See Tex. R. Civ. P. 297 (where trial court has made findings regarding one or more elements
of a claim or defense, omitted unrequested elements, when supported by the evidence, are presumed
in support of the judgment).
17