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Opinion issued March 22, 2007















In The

Court of Appeals

For The

First District of Texas




NO. 01-06-00589-CV




CHUCK OKO, Appellant



V.



SAMUEL OGUNTOPE, Appellee




On Appeal from County Civil Court at Law No. 4 (1)

Harris County, Texas

Trial Court Cause No. 817272


MEMORANDUM OPINION

Appellant, Chuck Oko, appeals from a judgment in the amount of $2,334 in damages and $9,500 in attorney's fees, which was rendered after a bench trial in favor of appellee, Samuel Oguntope, on his claim of fraud. We determine (1) whether appellant sufficiently presented his challenge that the trial court erred by rendering judgment in favor of appellee because the evidence showed that appellant was authorized to enter into settlement negotiations; (2) whether the evidence was legally and factually insufficient to prove that appellant made a material representation to appellee that there was a settlement agreement; and (3) whether the trial court erred by awarding "an excessive amount of attorney's fees." We affirm.Background

On January 23, 2003, Emmanuel Ajibade was awarded a judgment ("the Ajibade judgment") against appellee in the amount of $4,000, plus interest and $5,500 in attorney's fees. Ajibade had retained Okorafor & Associates (also referred to in the record as Okorafor & Mgbaraho) ("the law firm") to represent him against appellee. James Okorafor and appellant were lawyers at the law firm. While at the law firm, appellant prepared and filed legal documents and attended hearings in Ajibade's case. The law firm was restructured and eventually dissolved. Okorafor represented Ajibade after the dissolution of the law firm.

Appellant sought a writ of execution for the Ajibade judgment against appellee. As a result, appellee contacted appellant and entered into negotiations with him to "settle" the Ajibade judgment. At the time that appellant filed the writ of execution and engaged in negotiations with appellee, appellant was no longer affiliated with the law firm. Appellant contacted Ajibade, who did not know that appellant was no longer with the law firm, and informed Ajibade that appellee wanted to settle the Ajibade judgment. Ajibade told appellant that he "[could] not accept appellee's money . . . ." Appellant accepted three payments from appellee totaling $2,334, but did not tender the money to Ajibade; instead, he deposited the money into his trust account. After receiving those payments, appellant contacted appellee and demanded more money. Appellant then sought another writ of execution against appellee on the Ajibade judgment.

After appellee discovered that appellant did not have the authority to settle the Ajibade judgment, he filed the suit underlying this appeal against appellant. In his petition, appellee alleged that appellant was "acting without authority and defrauding [appellee] out of [appellee's] money" and requested that the trial court "declare that the Writ of Execution and the settlement agreement was done without authority and [appellee] is entitled to have his money returned to him plus additional damages [that appellee] incurred."

At trial, appellee introduced an "Agreement Regarding the Final Judgment Against Samuel Oguntope" ("the settlement agreement"), which stated that appellee agree to settle the Ajibade judgment against him for $6,500. The settlement agreement stated that appellee would pay to appellant $1,500 on March 30, 2004 and the balance in monthly installments of $417, with the final payment to be made on or before April 2005. The settlement agreement was signed by appellee and notarized by Babs Olodade. The signature portion of the agreement was partially covered with a receipt signed by appellant, dated on March 30, 2004, for $1,500. (2)

At trial and in his answer to appellee's petition, appellant contended that he had retained an interest in the attorney's fee portion of the Ajibade judgment because he had represented Ajibade in the case against appellee. Appellant contended that he performed 80 percent of the legal work in Ajibade's case against appellee--including attending several hearings that were conducted after appellant was no longer affiliated with the law firm. Appellant argued below that he was offsetting money owed to him in the Ajibade case by collecting on the $5,500 in attorney's fees awarded in the Ajibade judgment.

After a bench trial, the trial court rendering a judgment in favor of appellee for $2,334 as damages, $9,500 in attorney's fees, court costs, and interest.

Authority to Settle

In his first point of error, appellant argues that the trial court erred by rendering judgment in favor of appellee because the evidence showed that appellant was authorized to enter into settlement negotiations for the Ajibade judgment.

In order properly to present an issue on appeal, a party must discuss in his brief the facts and the authorities upon which he relies to maintain the issue. McPherson Enters., Inc. v. Producers Coop. Mktg. Ass'n, Inc., 827 S.W.2d 94, 96 (Tex. App.--Austin 1992, writ denied). A party does not sufficiently present a point of error if he fails to provide supporting argument and authorities. Id.; see Tex. R. App. P. 38.1(g) (stating that brief must contain succinct, clear, and accurate statement of the arguments made in body of brief).

Appellant's brief contains no argument or authorities in support of this point of error. Accordingly, this issue is not properly briefed and will not be considered. (3) See Tex. R. App. P. 38.1(h); Ratsavong v. Menevilay, 176 S.W.3d 661, 666 (Tex. App.--El Paso 2005, pet. denied) (indicating that failure to cite authority in support of contention constitutes "waiver" of issue on appeal); Wolfe v. C.S.P.H. Inc., 24 S.W.3d 641, 646-47 (Tex. App.--Dallas 2000, no pet.).

We overrule appellant's first point of error.

Settlement Agreement

In his second point of error, appellant argues that the trial court erred by rendering judgment in favor of appellee because the evidence showed that "[a]t no time did Appellant enter into a settlement agreement with Appellee."

Appellant lists the evidence that he introduced at trial to prove that he did not fraudulently enter into a settlement agreement with appellee. We construe this portion of appellant's argument to be that the evidence is legally and factually insufficient to prove that appellant made a material representation to appellee that there was a settlement agreement for the Ajibade judgment.

Neither party requested post-judgment findings of fact and conclusions of law pursuant to rule 296 of the Texas Rules of Civil Procedure, and the trial court filed none. See Tex. R. Civ. P. 296. Accordingly, the trial court's judgment implies all findings necessary to support it, provided that the necessary findings are raised by the pleadings and supported by the evidence. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Wade v. Comm'n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex. App.--Houston [1st Dist.] 1997, no writ). The trial court's decision can be sustained on any reasonable theory consistent with the evidence and the governing law. Friedman v. New Westbury Vill. Assocs., 787 S.W.2d 154, 157-58 (Tex. App.--Houston [1st Dist.] 1990, no writ). Because the record on appeal contains a full reporter's record of the trial, appellant may challenge the trial court's implied findings for legal and factual sufficiency, under the same standards that govern challenges to a jury's findings. See BMC, 83 S.W.3d at 795; Fair Deal Auto Sales v. Brantlev, 24 S.W.3d 543, 546 (Tex. App.--Houston [1st Dist.] 2000, no pet.). Appellant must, however, demonstrate that the trial court's judgment cannot be sustained by any theory raised by the evidence. See Friedman, 787 S.W.2d at 158.

When a party attacks the legal sufficiency of an adverse finding on an issue that it did not have the burden to prove at trial, it must demonstrate that there is no evidence to support the adverse finding. See Croucher v. Croucher, 660 S.W.2d 55, 58 (Tex. 1983). The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). "[L]egal-sufficiency review in the proper light must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id. If the evidence "would enable reasonable and fair-minded people to differ in their conclusions, then jurors," and here, the trial court, as trier of fact, "must be allowed to do so." Id. at 822. As long as the evidence falls within the zone of reasonable disagreement, "[a] reviewing court cannot substitute its judgment for that of the trier-of-fact." Id. at 822. Although the reviewing court must "consider evidence in the light most favorable to the judgment, and indulge every reasonable inference that would support it[,] . . . if the evidence allows of only one inference, neither jurors nor the reviewing court may disregard it." Id.

In determining the factual sufficiency of the evidence on a matter on which the appellant did not have the burden of proof, this Court weighs all of the evidence, both supporting and conflicting, and may set the finding aside only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); see Comm'n of Contracts v. Arriba Ltd., 882 S.W.2d 576, 582 (Tex. App.--Houston [1st Dist.] 1994, no writ). In an appeal from a bench trial, we may not invade the fact-finding role of the trial court, which alone determines the credibility of the witnesses, the weight to give their testimony, and whether to accept or to reject all or any part of that testimony. See Nordstrom v. Nordstrom, 965 S.W.2d 575, 580-81 (Tex. App.--Houston [1st Dist.] 1997, pet. denied).

To recover on an action for fraud, the plaintiff must prove (1) that a material representation was made; (2) that the representation was false; (3) that when the speaker made the representation, he knew that it was false or made it recklessly without knowledge of the truth as a positive assertion; (4) that the speaker made it with the intention that it should be acted upon by the other party; (5) that the other party acted in reliance upon it; and (6) that the other party thereby suffered injury. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998).

Fraud by omission is a subcategory of fraud because an omission or non-disclosure may be as misleading as a positive misrepresentation of fact when a party has a duty to disclose. See Manon v. Solis, 142 S.W.3d 380, 387 (Tex. App.--Houston [14th Dist.] 2004, pet. denied). A failure to disclose does not constitute fraud unless there is a duty to disclose the information. See Ins. Co. of N. Am. v. Morris, 981 S.W.2d 667, 674 (Tex. 1998); Hoggett v. Brown, 971 S .W.2d 472, 487 (Tex. App.--Houston [14th Dist.] 1997, pet. denied). A duty to disclose may arise not only when there is a confidential or fiduciary relationship, but also in the three following situations: (1) when one voluntarily discloses information, he has a duty to disclose the whole truth; (2) when one makes a representation, he has a duty to disclose new information when he is aware that the new information makes the earlier representation misleading or untrue; and (3) when one makes a partial disclosure and conveys a false impression, he has a duty to speak. Anderson, Greenwood & Co. v. Martin, 44 S.W.3d 200, 212-13 (Tex. App.--Houston [14th Dist.] 2001, pet. denied).

The evidence viewed in the light most favorable to the judgment shows that appellant made a material representation to appellee that there was a settlement agreement for the Ajibade judgment. Appellant sought a writ of execution for the Ajibade judgment against appellee. As a result, appellee contacted appellant and entered into negotiations with him to "settle" the Ajibade judgment. At the time that appellant filed the writ of execution and engaged in negotiations with appellee, he did not represent Ajibade, but appellant did not disclose that information to appellee. Appellee introduced into evidence the receipts for payments made to appellant and the settlement agreement for the Ajibade judgment. Appellant drafted the settlement agreement for the Ajibade judgment and represented to appellee that that agreement was binding. Appellant accepted three payments, totaling $2,334, from appellee. Appellant then told appellee that Ajibade disagreed with the settlement agreement and executed a writ of execution. Appellee later discovered that appellant was no longer with the law firm and that Ajibade had not authorized either the settlement agreement or the writs of execution filed by appellant. Viewing the evidence in the proper light, we hold that the evidence is legally sufficient to support the trial court's implicit finding of fraud.

Appellant concedes that he "accepted tender of a good faith payment of $1,500 on the judgment by Appellee which Appellant deposited into his trust account." In support of his factual-sufficiency argument appellant argues that he was not negotiating on behalf of Ajibade, but, rather, "merely [had] relayed an offer and counter offer between Appellee and Mr. Ajibade." Appellant testified that he did not draft or sign the settlement agreement that appellee introduced at trial and that he did not individually write the receipt to appellee for the $1,500 payment, but that his office issued it in his name. As fact finder, the trial court is given great latitude to believe or to disbelieve a witness's testimony, particularly if the witness is interested in the outcome. See In re Doe 4, 19 S.W.3d 322, 325 (Tex. 2000); Texaco, Inc. v. Phan, 137 S.W.3d 763, 768 (Tex. App.--Houston [1st Dist.] 2004, no pet.). The trial court could simply have disbelieved appellant's testimony. Accordingly, viewing the evidence in a neutral light, we hold that the evidence is not against the great weight and preponderance of the evidence and is thus factually sufficient to support the trial court's implicit finding of fraud.

Additionally, appellant argues that the settlement agreement was not enforceable because it was "not 'signed, and filed with the papers as part of the record.'" See Kennedy v. Hyde, 682 S.W.2d 525, 526 (Tex. 1984); see also Tex. R. Civ. P. 11 (stating, "Unless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it be in writing, signed and filed with the papers as part of the record, or unless it be made in open court and entered of record."). However, appellee was not seeking to enforce the settlement agreement; rather, he sought to recover the three payments that he had made to appellant in accordance with a non-existent settlement agreement on which he was fraudulently induced to pay money. The trial court rendered judgment in favor of appellee, ordering appellant to reimburse appellee the $2,334 that appellee had been fraudulently induced to make. Accordingly, the trial court did not enforce the settlement agreement of the parties, rule 11 is simply inapposite.

We overrule appellant's second point of error.

Attorney's Fees

In his third point of error, appellant argues that "the trial court erred in awarding such an excessive amount of attorney's fees."

We review the trial court's finding of the amount of reasonable and necessary attorney's fees incurred for sufficiency of the evidence. See Carlile, 138 S.W.3d at 409. We must be mindful that we may not substitute our judgment for that of the factfinder. C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 802 (Tex. App.--Houston [1st Dist.] 2004, no pet.) When a party attacks the legal sufficiency of an adverse finding on an issue that it did not have the burden to prove at trial, it must demonstrate that there is no evidence to support the adverse finding. Carlile, 138 S.W.3d at 409. In reviewing a no-evidence issue, we consider all of the record evidence in the light most favorable to the verdict and indulge every reasonable inference from that evidence in support of the verdict. Id. If a party is attacking the factual sufficiency of an adverse finding on which it did not have the burden of proof, that party must demonstrate that there is insufficient evidence to support the adverse finding. Id. at 410.

Factors to be considered in determining the reasonableness of a fee include, but are not limited to, (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (citing Tex. Disciplinary R. Prof. Conduct 1.04, reprinted in Tex. Gov't Code, tit. 2, subtit. G app. (State Bar Rules, art. X, 9)); C.M. Asfahl Agency, 135 S.W.3d at 801-02 (quoting Andersen factors).

Appellant argues that because there was no discovery on attorney's fees and the trial lasted only two hours, the $9,500.00 award of attorney's fees was excessive. Appellant includes no record citations to support his argument. Appellant also does not address any of the reasonableness factors to support his argument that the trial court's award was excessive. Appellant cites to a federal case and merely states that the attorney's fees are "unreasonably exorbitant and grossly unjust and do[es] not comply with the twelve required factors of reasonableness set forth in Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974)."

The record shows that appellee's counsel testified concerning appellee's attorney's fees. See Tesoro Petroleum Corp. v. Coastal Ref. & Mktg., Inc., 754 S.W.2d 764, 767 (Tex. App.--Houston [1st Dist.] 1988, writ denied); Goad v. Goad, 768 S.W.2d 356, 359 (Tex. App.--Texarkana 1989, writ denied) (noting that when party's counsel has personal knowledge through representing client, counsel is qualified at trial to give expert opinion testimony concerning attorney's fees incurred in case). Appellee's counsel testified that his representation of appellee included the following: discussing the case with appellee, preparing and filing a motion to enforce the settlement agreement, negotiating with the constable and Okorafor regarding the writ of execution that appellant had filed, communicating with appellant about the case, preparing and filing the pleadings in this lawsuit, preparing and filing a response to appellant's motion for summary judgment, and negotiating with appellant in court-ordered mediation. Appellee's counsel testified that his hourly rate is $250 per hour and that he spent 38 hours on appellee's case.

Viewing the evidence in the light most favorable to the verdict, we hold that the evidence is legally sufficient to support the trial court's award of attorney's fees. Having reviewed appellant's challenge and viewing the evidence in a neutral light, we cannot say that the evidence that supports the award of attorney's fees is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. In addition, after having reviewed the record based on the Andersen factors and "having also drawn upon our common knowledge and experience as lawyers and judges," we likewise cannot say that the evidence that appellee offered fails to show that the trial court's award was reasonable and necessary. See C.M. Asfahl Agency, 135 S.W.3d at 803; see also Arthur Andersen Co., 945 S.W.2d at 818. Accordingly, we hold that legally and factually evidence supports the trial court's award of attorney's fees so that the fees awarded were not excessive.

We overrule appellant's third point of error.

Conclusion

We affirm the judgment of the trial court.

Tim Taft

Justice



Panel consists of Justices Taft, Alcala, and Hanks.

1. Although the judgment reflects "County Court at Law No. 4," it is erroneous and should read "County Civil Court at Law No. 4." See Tex. Gov't Code Ann. 25.1031, 25.1032 (Vernon 2004).

2. Appellant's signature on the settlement agreement is not visible in the appellate record.

3. Appellant's previous brief filed October 18, 2006 was struck because it did not comply with the following rules of the Texas Rules of Appellate Procedure: (1) rule 9.4(d) (line spacing), rule 38.1 (h) (insufficient record citations, i.e., not given for each factual contention made), and (3) rule 38.1 (h) (insufficient authority cited, with authority sometimes entirely lacking for specific arguments). See Tex. R. App. P. 9.4(d), 38.1(h).