REVERSE and REMAND in part; AFFIRM in part and Opinion Filed December 19, 2018 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-17-01333-CV 

DAN WYDE, INDIVIDUALLY AND DAN WYDE & ASSOCIATES LLC, Appellants 

V. 

TATIANNA FRANCESCONI, Appellee 

On Appeal from the County Court at Law No. 2 

Dallas County, Texas 

Trial Court Cause No. CC-16-02902-B 

OPINION 

Before Justices Bridges, Brown, and Whitehill 

Opinion by Justice Bridges 

After a bench trial, the trial court awarded appellants Dan Wyde, individually, and Wyde 

& Associates LLC (together, “Wyde”) $7,500.00 in damages based on appellee Tatianna 

Francesconi’s breach of contract for legal services. On appeal, Wyde challenges the award because 

(1) the evidence does not support the trial court’s findings of fact and conclusions of law regarding 

Francesconi’s affirmative defenses of failure to mitigate damages and fraud/equitable 

estoppel; (2) the damages award is unreasonable, arbitrary, and capricious in light of evidence 

establishing over $80,000 in damages; and (3) to the extent the trial court awarded attorney’s fees 

to Wyde as the prevailing party in the underlying family lawsuit, such award is not supported by 

the record and is not the proper basis for calculating damages in this case. Because we conclude 

the record does not support Francesconi’s affirmative defenses, we affirm the trial court’s 
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judgment in part, reverse the judgment in part, and remand to the trial court for a new trial on 

damages based on Francesconi’s breach of contract. 

Background 

 Francesconi first hired Wyde to represent her in an underlying criminal case involving 

family violence against her husband. Wyde successfully obtained a no-bill for the offense of 

aggravated assault with a deadly weapon in Collin County on her behalf. Following the no-bill, 

Wyde continued to represent her in a contentious divorce involving Husband, who is a neurologist. 

On April 8, 2014, Francesconi signed a contract agreeing to pay Wyde $475 an hour for 

his litigation services. The agreement further provided, “in the event payment is not made as 

specified in this agreement, Attorney may withdraw from representation of Client and will owe no 

further duty as attorney for Client.” 

At the time Francesconi signed the contract, she was a freelance artist, but this provided 

her little income. She was never able to completely pay any invoice Wyde sent her, but she made 

sporadic payments between $200 and $500 against the balance she owed. According to 

Francesconi, Wyde never intended to hold her responsible for full payment. Instead, she believed 

Husband would be responsible for the fees. 

Despite Francesconi’s failure to pay under the fee agreement, Wyde continued to represent 

her and never considered withdrawing from representation. 

 On November 10, 2015, the trial court signed a final divorce decree ordering Husband to 

pay fifty percent of Francesconi’s attorney’s fees, which totaled over $77,000. However, the 

judgment left blank the amount of reasonable and necessary attorney’s fees incurred and stated 

that “50% of this amount is _________.” Wyde unsuccessfully tried to set a hearing for the trial 

judge to fill in the blank. 
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 Subsequent to the divorce, the trial court scheduled a hearing regarding Husband’s possible 

violations of the Electronic Communications Act based on information that surfaced during the 

divorce proceedings. The hearing was scheduled for January 19, 2016. 

On January 18, 2016, Francesconi and Husband entered into a Rule 11 Agreement stating, 

in part, that the final divorce decree would be corrected with a nunc pro tunc decree and “[p]ursuant 

to the [Decree], [Husband] is responsible for half of the debt owed to attorney, Dan Wyde totaling 

$40,000. This will be paid in bi-monthly payments of $200 each, totaling $400 a month.” The 

Rule 11 Agreement also provided, “Tatianna Francesconi shall be responsible for the remaining 

balance of attorney fees that are presently due and owing to Wyde & Associates in relation to this 

matter.” Later that same evening, Francesconi fired Wyde. 

 When Wyde appeared the next day for the hearing, he discovered Husband’s attorney had 

filed a motion to show authority arguing Wyde no longer had a right to represent Francesconi or a 

right to discuss or seek attorney’s fees as a third-party beneficiary to the Rule 11 Agreement. The 

court agreed and continued to refuse any attempts by Wyde to resolve the outstanding attorney’s 

fees issue, including his attempt to modify, reform, and correct the decree and a later filed motion 

to enforce the decree.1

 

 Despite the decree requiring Husband to pay fifty percent of the attorney’s fees, Wyde has 

never collected any money from Husband. 

 Wyde filed an original petition against Francesconi for breach of contract, and in the 

alternative, quantum meruit, based on her failure to pay the debt owed under the fee agreement. 

Francesconi answered and asserted numerous affirmative defenses, including equitable estoppel 

and failure to mitigate damages. The case proceeded to a bench trial. 

 1

 These issues are the subject of a separate appeal. See Wyde & Assoc., LLC. v. Francesconi, No. 05-17-00587-CV, 2018 WL 6273409 (Tex. 

App.—Dallas Nov. 30, 2018, no pet. h.) (mem. op.). 
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 During the bench trial, Wyde testified he was seeking $77,779 in attorney’s fees for the 

breach of contract in addition to the fees incurred in attempting to collect the debt. He testified he 

was not counting on Husband to pay part of the attorney’s fees but “just hoping that the judge 

would see that he had the financial wherewithal to pay her reasonable and necessary attorney’s 

fees for her to get a fair or a just result regarding the child custody issues.” 

 Although Wyde admitted he could have filed a motion to withdraw when she stopped 

paying her bills, he explained he did not like taking a case and then filing motions to withdraw: 

“We attempt to avoid that at all costs.” He did not believe Francesconi was in financial distress 

because she had an income of $4,000 a month between child and spousal support and money 

earned as a freelance artist. Rather, she simply chose not to pay him. 

Francesconi testified she told Wyde several times she could not pay his bills, and he said 

she would not have to because “[Husband] was going to have to pay for it. . . . That was always 

the game plan.” She felt like she was in an inferior bargaining position when she signed the fee 

agreement, and Wyde encouraged her to let him represent her in the family law matter because he 

was familiar with the criminal case. He said, “[I]t would be unwise to have too many lawyers, 

too many cooks in the kitchen.” She told Wyde up front she did not have any money to pay him 

except for “maybe” using their tax refund to pay for the retainer. 

She testified she relied on Wyde’s representation that Husband would be responsible for 

her fees and “definitely” relied on that before signing the fee agreement. When she expressed her 

concern about Wyde’s fee after the first hearing in the family law case, he told her not to worry 

about it because Husband would have to pay. 

The trial court took the matter under advisement and subsequently signed a final judgment 

awarding Wyde $7,500.00 because “Plaintiffs have met their burden on some of their claims.” 

The court issued findings of fact and conclusions of law in which the court determined Francesconi 
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breached a valid and enforceable contract for legal services; however, Wyde had a duty to mitigate 

his damages and failed to mitigate his damages by not terminating his services or withdrawing 

from representation following her initial breach on or about April 8, 2014. The court further 

concluded Wyde was estopped from recovering part of his damages because of his false or 

fraudulent representations to Francesconi. This appeal followed. 

Standard of Review 

In an appeal from a bench trial, the trial court’s findings of fact have the same weight as a 

jury verdict. Sheetz v. Slaughter, 503 S.W.3d 495, 502 (Tex. App.—Dallas 2016, no pet.). When 

the appellate record contains a reporter’s record, as in this case, findings of fact are not conclusive 

and are binding only if supported by the evidence. Id. We review a trial court’s findings of fact 

under the same legal and factual sufficiency of the evidence standards used when determining if 

sufficient evidence exists to support an answer to a jury question. Id. When an appellant 

challenges the legal sufficiency of an adverse finding on which he did not have the burden of proof 

at trial, he must demonstrate there is no evidence to support the adverse finding. Id. When 

reviewing the record, we determine whether any evidence supports the challenged finding. Id. If 

more than a scintilla of evidence exists to support the finding, the legal sufficiency challenge fails. 

Id.; see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (more than a scintilla 

of evidence exists when evidence “rises to a level that would enable reasonable and fair-minded 

people to differ in their conclusions”). When an appellant challenges the factual sufficiency of the 

evidence on an issue, we consider all the evidence supporting and contradicting the finding. Id. 

We set aside the finding for factual insufficiency only if the finding is so contrary to the evidence 

as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986). 

The trial court, as factfinder, is the sole judge of the credibility of the witnesses. Sheetz, 503 

S.W.3d at 502. As long as the evidence falls “within the zone of reasonable disagreement,” we 
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will not substitute our judgment for that of the fact-finder. Id. (quoting City of Keller v. Wilson, 

168 S.W.3d 802, 822 (Tex. 2005)). 

We review de novo a trial court’s conclusions of law. See BMC Software Belg., N.V. v. 

Marchand, 83 S.W.3d 789, 794 (Tex. 2002). We are not bound by the trial court’s legal 

conclusions, but conclusions of law will be upheld on appeal if the judgment can be sustained on 

any legal theory supported by the evidence. Sheetz, 502 S.W.3d at 502. Incorrect conclusions of 

law will not require reversal if the controlling findings of fact will support a correct legal theory. 

Id. Moreover, conclusions of law may not be reversed unless they are erroneous as a matter of 

law. Id. 

Discussion 

Before starting our analysis, we note Wyde’s opening brief fails to include a detailed 

discussion of the findings of fact and conclusions of law he purports to challenge on appeal but 

instead merely lists them as part of “Issue 3.” Despite any detailed discussion of evidence, we 

nonetheless liberally construe his issue as challenging the sufficiency of the evidence to support 

all the findings listed, which include both Francesconi’s affirmative defenses of failure to mitigate 

damages and fraud/equitable estoppel. See TEX. R. APP. P. 38.9 (“briefing rules to be construed 

liberally”); Sterner v. Marathon Oil Co., 767 S.W.2d 686, 690 (Tex.1989) (“[I]t is our practice to 

construe liberally points of error in order to obtain a just, fair and equitable adjudication of the 

rights of the litigants.”); Wise Elec. Coop., Inc. v. Am. Hat Co., 476 S.W.3d 671, 680 n.9 (Tex. 

App.—Fort Worth 2015, no pet.). 

We now consider whether the trial court erroneously concluded as a matter of law that 

Wyde had a duty to mitigate his damages following Francesconi’s breach of contract. The trial 

court supported its conclusion by finding the following: 

Plaintiffs failed to mitigate their damages following Defendant’s 

breach of contract by not terminating their services and withdrawing 
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their representation of Defendant in a timely fashion following

Defendant’s initial breach on or about April 8, 2014 and with each 

subsequent invoice, including their first invoice of April 22, 2014, 

which resulted in Defendant owing Plaintiffs a net amount of 

approximately $6,900.00. 

Contract law broadly supports the idea that a plaintiff should minimize damages by taking 

affirmative steps, when applicable, to stop the accumulation of losses. See, e.g., Gunn Infiniti, Inc. 

v. O’Byrne, 996 S.W.2d 854, 857 (Tex. 1999) (plaintiff asserting claim under DTPA has duty to 

mitigate damages); White v. Harrison, 390 S.W.3d 666, 675 (Tex. App.—Dallas 2012, no pet.) 

(landlord has duty to mitigate damages if a tenant abandons leased premises and failure to do so 

bars recovery to the extent damages reasonably could have been avoided); Alamo Cmty. Coll. Dist. 

v. Miller, 274 S.W.3d 779, 788 (Tex. App.—San Antonio 2008, no pet.) (wrongfully discharged 

employee must exercise reasonable diligence to mitigate damages by pursuing other employment 

or else employee is barred from recovering those losses that could have been avoided). Such 

rationale stems from economic considerations and avoidance of waste. Thus, the doctrine of 

mitigation of damages prevents a party from recovering for damages resulting from a breach of 

contract that could be avoided by reasonable efforts on the part of the plaintiff. Great Am. Ins. v. 

N. Austin Mun. Util. Dist. No. 1, 908 S.W.2d 415, 426 (Tex. 1995); see RESTATEMENT (SECOND)

OF CONTRACTS ch. 16, § 350 cmt. b (“Once a party has reason to know that performance by the 

other party will not be forthcoming, he is ordinarily expected to stop his own performance to avoid 

further expenditures.”). As such, a claimant is required “to mitigate damages if it can do so with 

trifling expense or with reasonable exertions.” Gunn Infiniti, Inc., 996 S.W.2d at 857. 

Despite these general contract principles, neither party has cited, nor have we found, any 

applicable case law regarding whether an attorney has a duty to mitigate damages by withdrawing 

from representation when a client breaches an attorney-client fee agreement. However, the Texas 

Disciplinary Rules of Professional Conduct indicate the mitigation of damages doctrine does not 
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impose a duty on attorneys to mitigate their damages when a client breaches a contract by failing 

to pay the agreed fee. Rule 1.15 dictates when a lawyer must or may withdraw from representing 

a client. 

Rule 1.15(a) provides the circumstances under which an attorney’s withdrawal is required, 

and rule 1.15(b) lists specific instances under which an attorney may seek withdrawal. See TEX.

DISCIPLINARY RULES PROF’L CONDUCT R. 1.15(a), (b). A client’s failure to pay an agreed fee falls 

under rule 1.15(b)(5); therefore, an attorney may file a motion to withdraw in such circumstances, 

but nothing within the disciplinary rules of professional conduct mandates an attorney to withdraw 

and mitigate damages. In fact, after accepting representation, a lawyer should endeavor to handle 

a matter to completion. TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.15 cmt 1. The option

to withdraw from representation belongs to the lawyer. TEX. DISCIPLINARY RULES PROF’L 

CONDUCT R. 1.15 cmt 7 (“A lawyer may withdraw if the client refuses, after being duly warned, 

to abide by the terms of an agreement relating to the representation . . . .”). Thus, the fact that 

Francesconi had limited resources during the divorce did not automatically mandate Wyde’s 

withdrawal as her attorney. 

Here, Wyde explained he did not like taking cases and then filing motions to withdraw. He 

“attempt[ed] to avoid that at all costs.” He was “dedicated to her cause” and “firmly believed” she 

had been a victim of domestic abuse and wanted to help her get primary custody of the children. 

He opposed the “Rambo litigation that the opposing counsel was attempting to do” and remained 

dedicated to Francesconi. 

He further testified, “[W]hen we take on a client, we’re loathed [sic] to make it a purely 

financial relationship, okay. We don’t do business that way.” Thus, rather than immediately filing 

a motion to withdraw after Francesconi failed to pay his fees, Wyde continued with his duty to 

represent his client. See Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.—
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Houston [1st Dist.] 2005, pet. denied) (attorney has duty to zealously represent client within 

bounds of law). As he said, “we stuck it out . . . we aren’t just lawyers who say pay us or to hell 

with you.” This philosophy should be encouraged given the nature of the attorney–client 

relationship, which is one encompassing a fiduciary duty and confidentiality, thereby making it 

different from other relationships such as landlord-tenant that apply the mitigation of damages 

doctrine. Moreover, requiring or encouraging attorneys to file a motion to withdraw as soon as a 

client fails to pay conflicts with the aspirational goals of the Texas Lawyer’s Creed, which reminds 

attorneys that “[a]s members of a learned art we pursue a common calling in the spirit of public 

service” and are “responsible to assure that all persons have access to competent representation.” 

See Texas Lawyer’s Creed–A Mandate for Professionalism (adopted November 7, 1989); see also

TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 1.15 cmt 1 (“Having accepted the representation, 

a lawyer normally should endeavor to handle the matter to completion.”). Accordingly, the trial 

court erroneously concluded as a matter of law that Wyde had a duty to mitigate his damages. 

 We now consider whether the damages award can be sustained under Francesconi’s second 

affirmative defense of fraud/equitable estoppel. The trial court made the following relevant 

finding of fact (finding 24): “Plaintiffs expressed to Defendant that she should pay the amount of 

Plaintiffs’ invoices that she could afford and then Plaintiffs would look to Defendant’s ex-husband 

to pay the remainder of Defendant’s outstanding balance owed to Plaintiffs.” Because Wyde 

challenges the sufficiency of an adverse finding on which he did not have the burden of proof at 

trial, he must demonstrate there is no evidence to support the adverse finding. Sheetz, 503 S.W.3d 

at 502. 

Equitable estoppel is an affirmative defense that is established when: (1) a false 

representation or concealment of material facts; (2) is made with knowledge, actual or 

constructive, of those facts; (3) with the intention that it should be acted upon; (4) to a party without 
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knowledge or means of obtaining knowledge of the facts; (5) who detrimentally relies on the 

representations. Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515–

16 (Tex. 1998); Sefzik v. City of McKinney, 198 S.W.3d 884, 895 (Tex. App.—Dallas 2006, no 

pet.). The elements of equitable estoppel are substantially the same as the elements of fraud. 

Johnson & Higgins of Tex., Inc., 962 S.W.2d at 524. Thus, Francesconi was required to establish 

that Wyde falsely represented, with his knowledge of such falsity, that he expected Husband and 

not her to pay the legal fees. Id. at 515. 

Here, the record indicates Wyde encouraged Francesconi to continue their attorney-client 

relationship after he successfully no-billed her criminal case because he was familiar with the 

underlying facts. Francesconi told Wyde up front she did not have any money to pay him except 

for “maybe” using their tax refund to pay for the retainer. She testified she relied on Wyde’s 

representation that Husband would be responsible for her fees and “definitely” relied on that before 

signing the fee agreement. She had the impression and was told Husband would have to pay for 

everything. 

Wyde testified he explained to Francesconi that if there is any legal basis or remedy to 

recover attorney’s fees, he tries to collect them as “part of [my] fiduciary obligation.” He told 

Francesconi he would attempt to minimize costs and fees and recover as much as he could from 

Husband: “That’s our duty in providing competent legal representation to her.” 

None of this testimony establishes any false representations by Wyde. Nothing indicates 

that at the time Wyde told Francesconi “he would look to Defendant’s ex-husband to pay the 

remainder” of the fees his statement was false or made recklessly without knowledge of the truth. 

Id. at 526. To the contrary, it is routine in family law cases for attorneys to seek recovery of their 

fees from a spouse and for the trial court to award such fees. See TEX. FAM. CODE ANN. § 6.708(c) 

(“In a suit for dissolution of a marriage, the trial court may award reasonable fees and expenses.”), 
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§ 106.002(a) (court may render judgment for reasonable attorney’s fees in a SAPCR proceeding); 

see also In re T.L.T., No. 05-16-01367-CV, 2018 WL 1407098, at *4 (Tex. App.—Dallas Mar. 21, 

2018, no pet.) (mem. op.) (recognizing trial court’s broad discretion to award attorney’s fees in 

suit for dissolution of marriage); Tull v. Tull, 159 S.W.3d 758, 760 (Tex. App.—Dallas 2005, no 

pet.) (recognizing trial court’s broad discretion to award attorney’s fees under section 106.002). 

Moreover, paragraph 15 of the legal services contract, which Francesconi initialed, 

provided the following: 

It is expressly agreed and understood that NO PROMISES OR 

GUARANTEES as to the outcome of the case have been made to 

Client by Attorney. It is further expressly agreed and understood 

that no other representations have been made to Client, except for 

those set out in this Employment Contract. 

As such, the record contains no evidence supporting the trial court’s finding Wyde made any false 

representations. Because we conclude there is no evidence Wyde made any false representations, 

we do not consider whether there is evidence satisfying the other elements of fraud. See TEX. R.

APP. P. 47.1. Likewise, because there is no evidence supporting Francesconi’s affirmative defense 

of fraud/equitable estoppel, the evidence is legally insufficient to support the damages award. 

Accordingly, we sustain Wyde’s third issue. Because of our disposition of this issue, we need not 

consider Wyde’s first and second issues challenging the amount of damages awarded. TEX. R.

APP. P. 47.1. 

Conclusion 

We reverse the trial court’s judgment awarding $7,500 in damages, and remand the case to 

the trial court for a new trial on damages based on Francesconi’s breach of contract. 

 
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We affirm the judgment in all other respects. 

 

171333F.P05 

 

/David L. Bridges/ 

DAVID L. BRIDGES 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

DAN WYDE, INDIVIDUALLY AND 

DAN WYDE & ASSOCIATES LLC, 

Appellants 

No. 05-17-01333-CV V. 

TATIANNA FRANCESCONI, Appellee 

 On Appeal from the County Court at Law 

No. 2, Dallas County, Texas 

Trial Court Cause No. CC-16-02902-B. 

Opinion delivered by Justice Bridges. 

Justices Brown and Whitehill participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court’s 

judgment awarding damages and REMAND to the trial court for a new trial to determine damages 

based on appellee Tatianna Francesconi's breach of contract. In all other respects, the trial court's 

judgment is AFFIRMED. 

 It is ORDERED that appellants DAN WYDE, INDIVIDUALLY AND DAN WYDE & 

ASSOCIATES LLC recover their costs of this appeal from appellee TATIANNA 

FRANCESCONI. 

Judgment entered December 19, 2018.