Mahaffey Apt Co v. Fleming Hovenkamp GR ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-20403
THE MAHAFFEY APARTMENT COMPANY,
Plaintiff-Appellant,
versus
FLEMING HOVENKAMP GR; FLEMING,
HOVENKAMP & GRAYSON, PC; GEORGE
M FLEMING; DANIEL J “PETE” PETROSKI,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Texas
H-98-CV-4242
March 12, 2001
Before POLITZ, DeMOSS, and STEWART, Circuit Judges.
POLITZ, Circuit Judge:*
The Mahaffey Apartment Company appeals an adverse summary judgment on
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
its claims for breach of fiduciary duty and misrepresentation. Mahaffey retained
Fleming, Hovenkamp & Grayson to represent it in litigation involving defective
polybutylene pipes. The litigation involved a very large number of claimants but was
not certified as a class action. The various lawsuits ultimately were consolidated in
Texas state court and settled. The state trial judge held a series of hearings to
determine the fairness and reasonableness of the attorney’s fees included as part of the
settlement.1 Mahaffey asserts that Fleming failed to notify it of these hearings.
Invoking diversity jurisdiction Mahaffey filed the instant action, urging violation
of the Texas Deceptive Trade Practices Act, misrepresentation, and breach of fiduciary
duty. Mahaffey sought $1.2 million in actual damages, forfeiture of all attorneys’ fees
earned by Fleming, $2.4 million in punitive damages, and attorney’s fees incurred
through this action.
A detailed review and consideration of the record, briefs, oral arguments of
counsel, and applicable law persuades that the judgment appealed should be, and the
same is, AFFIRMED.
1
The trial judge’s decision respecting the attorneys’ fees and expenses was reversed
on appeal. See In re Polybutylene Plumbing Litigation, 23 S.W.3d 428 (Tex. App. 2000).
2