Hightower, Russo & Capellan v. Ireson, Weizel & Hightower, P.C. ( 2013 )

Affirmed and Plurality, Concurring, and Dissenting Opinions filed December
31, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00685-CV
HIGHTOWER, RUSSO & CAPELLAN, Appellant
V.
IRESON, WEIZEL & HIGHTOWER, P.C., Appellee
On Appeal from the 80th District Court
Harris County, Texas
Trial Court Cause No. 2010-80230
DISSENTING OPINION
In the often-quoted maxim attributed to Abraham Lincoln, “A lawyer’s time
and advice are his stock in trade.”1 Here, the client received a favorable settlement
as a result of the time and advice provided by the attorneys employed successively
by two law firms. Although the evidence is uncontroverted that the attorneys’ time
spent in working on the case was divided equally between the two firms, the trial
1
Attributed to Abraham Lincoln, OXFORD DICTIONARY OF AMERICAN LEGAL QUOTATIONS 257
(Fred R. Shapiro ed. 1993).
court apportioned the legal fees to award one firm nearly seven times the amount
awarded to the other firm. Because the majority affirms this result, which I believe
is contrary to the overwhelming weight of the evidence concerning the division of
the attorneys’ time, I respectfully dissent.
The majority fails to analyze the “reasonable value of legal services”
provided by the Hightower firm under the factors established by the Supreme
Court in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818
(Tex. 1997). There the court held that the factors to consider when determining the
reasonableness of an attorney’s fee include the following:
(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.
Because the total fee is undisputed, factors 4 and 8 are not at issue. Factors
2, 3, 5, 6, and 7 are the same for both firms because the same lawyers were doing
the work. This left only factor 1 for the trial court to consider.
The only testimony at trial came from Hightower and Mutchler. Mutchler
testified that fifty percent of their time was spent at each firm. There was no
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testimony from the Ireson firm as to the reasonableness of splitting the fee in the
manner adopted by the trial judge and affirmed by the majority. There also is no
evidence that the novelty and difficulty of the questions involved in the case were
different at the two firms, or that the attorneys rendered more skillful
representation while employed by one of the firms.
We are left, then, with the question of time, and on that issue, there is no
question of fact. The undisputed evidence is that during fifty percent of the time
that the attorneys worked on the case, they were employed by the Ireson firm, and
fifty percent of the time they were employed by the Hightower firm.
I therefore would conclude that the trial court’s finding that $7,446.15 is the
reasonable value of the Hightower firm’s services is against the overwhelming
weight of the evidence. Because the majority upholds the trial court’s judgment
based on that finding, I respectfully dissent.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
(Donovan, J., plurality). (Frost, C.J., concurring).
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