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### MEMORANDUM OPINION
No. 04-07-00610-CV Robert P. WILSON , Appellant

v. Enrique “Rick” DOVALINA and Dovalina & Eureste, L.L.P., Appellees From the 57th Judicial District Court, Bexar County, Texas Trial Court No. 2004-CI-18575 Honorable Lori Massey, Judge Presiding Opinion by: Rebecca Simmons, Justice Sitting: Catherine Stone, Justice Sandee Bryan Marion, Justice Rebecca Simmons, Justice Delivered and Filed: July 16, 2008
AFFIRMED This is a dispute between lawyers over a fee- sharing agreement. We affirm the judgment of the trial court.
B ACKGROUND In 2002, auto dealer Rick Perez asked his atto rney, Appellant Robert P. Wilson, to evaluate claims, including some involving allegations of raci al discrimination, that Perez might have against Daimler Chrysler arising out of a dealership Per ez owned in Galveston County. Perez also contacted Appellee Enrique Dovalina, an attorney with Appellee Dovalina & Eureste, LLP (Dovalina and04-07-00610-CV

-2- Dovalina & Eureste are collectively referred to as “Dovalina”), to assist with the litigation. Dovalina is past president of the League of United Latin American Citizens (“LULAC”). Perez filed a lawsuit against Chrysler in Ga lveston sometime in mid-2003. On at least some of the pleadings, both Wilson and Dovalina are lis ted as Perez’s counsel. In August 2003, Wilson sent Dovalina a letter confirming that “we have ag reed to pay you 10% of the attorney’s fees for your assistance in relation to your assistance with Rick Perez’[s] case against Chrysler.” Because some of Perez’s claims involved alleged breach es of Texas statutes regulating franchise relationships between auto manufacturers and deal ers, the lawsuit was abated while Perez pursued administrative remedies in the Texas Department of Transportation, Motor Vehicle Board. In 2004, while those matters were being litigated in the ad ministrative proceeding, Pe rez and Chrysler settled. Upon learning of the settlement, Dovalina cont acted Wilson to request his portion of the attorney’s fees. Wilson sent Dovalina a letter informing Dovalina that, because Perez terminated Dovalina as counsel before the settlement was reached, Dovalina was not entitled to any fees. Wilson and Perez then filed suit in Bexar County s eeking a declaration that Dovalina breached the agreement and was not entitled to any fees. Dovalin a counter-claimed for breach of contract. After a bench trial, the trial court entered judgmen t against Wilson only, awarding Dovalina damages of $56,725.00 and attorney’s fees of $10,000.00. Wilson appeal ed from this judgment, asserting that: (1) there is no evidence to support the trial cour t’s findings that the fee agreement was between Wilson and Dovalina only and was valid despite the absence of written consent from Perez; (2) the evidence conclusively established that Dovalin a breached the agreement; and (3) the evidence conclusively established Wilson’s affirmative defense of fraud in the inducement.04-07-00610-CV

-3- S TANDARD OF R EVIEW A trial court’s findings of fact are reviewed for legal sufficiency under the same standards as no-evidence challenges to a jury verdict. See Oritz v. Jones , 917 S.W.2d 770, 772 (Tex. 1996). Where a party contests the legal sufficiency of a finding about which it did not have the burden of proof, the appellant must demonstrate that there is no evidence to support the finding. La. Pac. Corp. v. Holmes , 94 S.W.3d 834, 838 (Tex. App.—San Antonio 2002, pet. denied). In reviewing a no-evidence issue, the appellate court considers “a ll the evidence in the lightmost favorable to the prevailing party and every reasonable inference deducible from the evidence is indulged in that party’s favor.” Assoc. Indem. Corp. v. CAT Contracting, Inc. , 964 S.W.2d 276, 285-86 (Tex. 1998). When a party bearing the burden of proof on an issue asserts that the evidence conclusively established the critical facts such that the finding was established as a matter of law, the reviewing court examines the record for evidence that s upports the court’s refusal to find that fact. Sterner v. Marathon Oil Co. , 767 S.W.2d 686, 690 (Tex. 1989). If there is evidence supporting the court’s refusal to find the fact, the inquiry ends; but if th ere is no evidence to support the refusal, then the entire record must be examined to determine if the contrary proposition is established as a matter of law. Id. We review de novo a trial court’s conclusions of law. Benedictine Sisters of the Good Shepherd v. Ellison , 956 S.W.2d 629, 631 (Tex. App.—San Antonio 1997, pet. denied). A NALYSIS A. Fee Agreement – Former Rule 1.04 The trial court found that the fee agreement was between Wilson and Dovalina, and only Wilson could terminate the agreement, not Perez. Wilson asserts that there is no evidence to support04-07-00610-CV

1 All citations to the Texas Disciplinary Rules of Professiona l Conduct are to the version in effect at the time of the agreement.

-4- this finding. He argues that the fee agreement wa s dependent on Perez’s written consent and the fee agreement ceased to be valid after Perez allegedly terminated Dovalina’s representation of him. The trial court assessed the fee agreement’s va lidity under the version of Rule 1.04(f) of the Texas Disciplinary Rules of Professional Conduct ineffect at the time the agreement was reduced to writing. That rule stated: A division or agreement for division of a fee between lawyers who are not in the same firm shall not be made unless: (1) the division is: (i) in proportion to the professional services performed by each lawyer; (ii) made with a forwarding lawyer; or (iii) made, by written agreement with the client, with a lawyer who assumes joint responsibility for the representation; (2) the client is advised of, and does not object to, the participation of all the lawyers involved; and (3) the aggregate fee does not violate paragraph (a) [which prohibits lawyers from charging an unconscionable fee].
T EX
. D ISCIPLINARY R. P ROF ’ L C ONDUCT 1.04(f) (Vernon 2005) (former version) (current version can be found in T EX
. G OV ’ T C ODE A NN ., tit. 2, subtit. G app. A (Vernon Supp. 2007)). 1 Wilson asserts that this rule reflects a public po licy that once a client terminates an attorney, any agreement to share fees with that attorney also terminates. See Johnson v. Brewer & Pritchard,
P.C. , 73 S.W.3d 193, 205 (Tex. 2002) (stating that under Rule 1.04, there can be no fee-sharing arrangement absent client’s knowledge and consen t). Here, however, there is evidence supporting the trial court’s determination that Perez knew about and consented to the fee-sharing arrangement.
T EX
. D ISCIPLINARY R. P ROF ’ L C ONDUCT 1.04(f)(2). Evidence also s upports the trial court’s other findings related to Rule 1.04: that the fee agreement was proportional to the work Dovalina04-07-00610-CV

2 That work included reviewing and signing pleadings, attending a deposition, monitoring the status of the case, and traveling to Seattle with Wilson to investigate the case prior to filing.

-5- performed; 2 and that the fee agreement was not unconscionable. T EX
. D ISCIPLINARY R. P ROF ’ L C ONDUCT 1.04(f)(1)(i); 1.04(f)(3). The trial court further concluded, and we agree, that while Perez was free to withdraw his consent to have Dovalina represent him, there was no contract regarding division of attorneys’ fees between Perez and Dovalina. The agreement that Wilson would share a percentage of his fee with Dovalina was between Wilson and Dovalina only, and, therefore, only Wilson or Dovalina could terminate the fee agreement. See Gibson v. Ellis , 126 S.W.3d 324, 329 (Tex. App.—Dallas 2004, no pet.). There is some evidence to support the trial court’s finding that Wilson never attempted to fire Dovalina or retract the agreement until afte r the settlement was made. Accordingly, Wilson’s no-evidence challenge to the existence of a valid agreement between Wilson and Dovalina is without merit. Citing Rule 1.04(d), Wilson also asserts that the validity of the fee-sharing agreement is dependent on a written agreement between Perez and Dovalina that Dovalina shall recover a contingent fee for representing Perez. T EX
. D ISCIPLINARY R. P ROF ’ L C ONDUCT 1.04(d) (contingent fee agreement must be in writing to be valid). Rule 1.04(d) is inapplicable because Dovalina did not contract to recover a contingent fee, or any fee, from Perez. Gibson , 126 S.W.3d at 329. To the contrary, Dovalina contracted with Wilson to recei ve a contingent portion of Wilson’s fees, and that contract satisfied the Rule 1.04(d) requirement that it be in writing. B. Breach of the Fee Agreement Citing Mustang Pipeline Co. Inc. v. Driver Pipeline Co. Inc. , 134 S.W.3d 195, 196 (Tex. 2004), Wilson contends that the evidence conclusive ly established that D ovalina breached the fee-04-07-00610-CV

3 The trial court found (and there is evidence) that Dovalina wa s hired to assist in the litigation, that he performed work consistent with what a local counsel would provide, and th at having a past president of LULAC on the court pleadings provided a benefit to Perez. The trial court made no findi ng that Dovalina’s efforts to secure LULAC’s assistance with persuading Chrysler to settle was any part of the consid eration supporting the agreement between Wilson and Dovalina.
-6- sharing agreement by failing to perform and, therefor e, cannot enforce any right to fees he has under the agreement. However, as previously noted, ther e is legally sufficient evidence to support the trial court’s finding that Dovalina provided services proportionate to his role in the litigation. We, therefore, overrule this issue. C. Fraud in the Inducement Finally, Wilson argues that the evidence conclu sively established that Dovalina fraudulently induced Perez to consent to the fee-sharing ag reement and, therefore, Wilson’s performance under the agreement was excused. A contract induced by fraud is voidable and relieves the defrauded party from performing under the contract. Harris v. Archer , 134 S.W.3d 411, 427 (Tex. App.—Amarillo 2004, pet. denied). The alleged fraud-in-the-inducement was Dovalina’s purported representations that he would use his connections with LULAC to influence Chrysler to settle, when Dovalina knew that LULAC rules and regulations pr evented him from using his influence as past president of LULAC for private gain. However, even assuming that the agreemen t between Wilson and Dovalina was predicated on Perez’s understanding that Dovalina would use LULAC-derived influence on Perez’s behalf, 3 there is still evidence to support the trial court’s finding that there was no fraudulent inducement. One of the elements of a fraudulen t inducement claim is reliance. Stone v. Lawyers Title Ins. Corp. , 554 S.W.2d 183, 185 (Tex. 1977). Perez testified that he expressed moral misgivings to Wilson about the idea of paying Dovalina to use his LULAC connections to influence Chrysler. Perez also testified to significant personal involvement withLULAC, supporting an inference that he knew in general terms what LULAC members could and could not do. Thus, some evidence supports the04-07-00610-CV

-7- trial court’s finding that Perez di d not rely on any alleged statemen ts by Dovalina that he could use his influence with LULAC. This issue is overruled. C ONCLUSION The evidence is sufficient to support the trial court’s findings in this case, and the trial court committed no legal errors warranting reversal. The judgment of the trial court is affirmed.

Rebecca Simmons, Justice