A recent Texas Lawyer story, “Former Galveston Attorney Wins Appeal on Attorney Fees” reports that a Houston appeals court issued an opinion affirming a judgment awarding former Galveston attorney Anthony Griffin over $100,000 in damages in a suit he filed to collect unpaid fees from a former client.
In the April 12 opinion, the First Court of Appeals also modified the judgment to remove the portion of the judgment awarding $5,000 in additional damages to the plaintiff under the Texas Deceptive Trade Practices Act (DTPA).
"The jury awarded addition DTPA damages even though it found no actual damages. We have already determined that the jury's finding of zero actual damages is supported by legally and factually sufficient evidence. As a matter of law, in the absence of actual damages on the DTPA claim, additional damages are not available here," Justice Evelyn Keyes wrote in the opinion. The panel also included justices Terry Jennings and Jane Bland.
In January 2015, the Supreme Court of Texas accepted Griffin's resignation of his law license in lieu of disciplinary action.
The appeal in Schlein v. Griffin is in a suit Griffin filed in County Court-at-Law No. 2 in Galveston County against Schlein, alleging she failed to pay him for representing her in a divorce and for other matters.
As detailed in the opinion, Schlein hired Griffin in 2009 to represent her in a divorce under a fee contract that called for a $35,000 retainer. However, because Schlein had spent more than $179,000 in attorney's fees by that time, a family court judge had enjoined her from spending more money on lawyers without court approval. Griffin agreed to represent her without collecting the retainer.
According to the opinion, Griffin provided legal services to Schlein from the end of 2009 through October 2011 — including the divorce — for a suit she filed against a builder of a house that was damaged during Hurricane Ike, a tax issue and in a criminal case. He also, at Schlein's request, stored some imported Peruvian tile in his warehouse because she was worried that her ex-husband or someone close to him would steal the tile.
After the divorce decree was signed on Oct. 24, 2011, Schlein and Griffin met at his office. However, Keyes writes that Schlein expected to pay Griffin a $35,000 retainer check at that October 2011 meeting, but he gave her a bill for $110,524 in attorney fees for the divorce. Keyes wrote that after Schlein "refused to pay the full fee," Griffin sent Schlein a notice of termination and a demand for payment of $95,000 by Nov. 1, 2011.
Griffin withdrew from the divorce, and Schlein never paid him, and on March 14, 2013, Griffin sued Schlein for nonpayment of fees, alleging breach of contract. Schlein filed a counterclaim alleging breach of contract, legal malpractice, breach of fiduciary duty, fraud and violations of the DTPA.
After trial, a jury found that Schlein breached the fee agreement and Griffin did not, and it determined that Griffin was entitled to $105,750 in damages for attorney fees for his work on the divorce, $22,299 for costs in the divorce and $62,836 for fees in the suit Griffin filed against Schlein to collect the fees. However, the jury also found Griffin violated the DTPA, and awarded him zero damages but $5,000 in additional damages.
The trial court signed a judgment awarding Griffin $128,149 in damages and attorney fees and awarding Schlein $5,000 on the DTPA claim. Schlein and Griffin both appealed.
The appeals court overruled Schlein on these points of appeal: that the trial court erred in permitting Griffin to bring the suit in his individual capacity; the trial court erred in excluding evidence of 32 grievances and lawsuits filed against Griffin; the trial court erred in permitting undisclosed rebuttal witnesses to testify about Griffin's character; the trial court erred in submitting a jury question on her breach of fiduciary duty claim that put the burden of proof on her; the jury's finding that Griffin did not breach his fiduciary duties was based on insufficient evidence; the trial court erred in excluding Griffin's original petition from evidence; the jury's finding of zero actual damages on the DTPA claim was based on insufficient evidence; the trial court erred in permitting Griffin's expert to testify on the reasonableness and necessity of attorney fees in the divorce; and Griffin's expert witness testimony was insufficient to support the amount of damages.
Griffin appealed the award of the additional DTPA damages, and the appeals court found that the jury's finding of zero actual damages was "supported by legally and factually sufficient evidence" and as a matter of law, additional damages are not available.