Mariano Diaz, Individually and a/n/f of Mariano Diaz II, a Minor Child v. Kevin Johnson, John Edward Johnson, Johnnie M. Williams, and Joe Oran Williams

Appellant Mariano Diaz appeals the failure of the trial court to award his

counsel’s attorney’s fees on a minor’s settlement. In three issues, he asserts:

(1) the trial court denied his counsel due process of law by ordering the forfeiture

of his attorney’s fees; (2) the intervenor lacked authority to effectuate the

settlement; and (3) this court should remand for determination of a reasonable fee

if we do not award the contracted contingency fee rate. We affirm.

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I. BACKGROUND

M.D. suffered serious personal injuries when a pickup truck fell on him

while he was doing some mechanical work under the supervision of his mother’s

boyfriend, appellant Kevin Johnson (“Kevin”). Following life flight transport,

M.D. remained in intensive care for nine days but ultimately fully recovered from

his serious injuries.

M.D.’s father, Mariano Diaz (“Mariano”), filed the underlying suit on behalf

of the minor against Kevin and the other appellants;1 Mariano retained counsel on

a contingency fee basis to pursue the claim. The parties attempted to reach a

settlement for Kevin’s insurance policy limits; however, the negotiations initially

stalled because Kevin’s insurer discovered Mariano did not have the authority to

bring legal actions on behalf of M.D. Specifically, it is undisputed that pursuant to

Diaz’s divorce from M.D.’s mother, Marie Sol Johnson (“Marie”), Marie has the

sole authority to bring legal actions on behalf of M.D. The insurer offered to settle

any and all claims for Kevin’s policy limit of $30,000, but the insurer needed a

release from Marie to undertake the settlement.

Marie intervened in the underlying suit as next friend of M.D.2 She asserted

that, by virtue of the divorce decree between her and Mariano she had the

exclusive right to maintain the action on M.D.’s behalf. Marie pleaded for the

damages incurred by the minor. No party asked the trial court to strike Marie’s

intervention. On March 28, 2014, Mariano notified the trial court that the parties

had reached a settlement pending “final approval by the Court.” As part of this

1 None of the other appellants appear to have any involvement in the underlying case or

this appeal.

2 Marie’s plea in intervention was drafted by Kevin’s attorney.

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settlement, his counsel was to receive attorney’s fees in the amount of a 25%

contingency fee.

The trial court convened a minor’s settlement conference on April 25, 2015.3

Neither Mariano nor his counsel appeared at the hearing. M.D.’s guardian ad litem

appeared and indicated that she received a voicemail from Mariano’s counsel the

night before the hearing who stated he would need to reschedule the hearing

because Mariano could not attend.4 According to the trial court’s records,

however, Mariano’s counsel did not ask the court to cancel or reschedule the

hearing. Marie took time off of work and appeared with M.D., whom she took out

of school so he could likewise attend the hearing. Counsel for Kevin also

appeared.

Notwithstanding Mariano’s failure to appear for the hearing, Marie asked the

trial court to proceed because she had intervened as next friend for her son. Marie

also indicated that Mariano has no interaction with M.D. and knows nothing about

M.D.’s physical recovery. Moreover, Marie expressed frustration that “every time

we go to court, he’s never been to court once.” The guardian ad litem also

explained a need to finalize the settlement to resolve the liens. She stated that the

outstanding medical bills amounted to around $110,000, but she had negotiated a

substantial reduction in those bills to approximately $6,700. But the guardian ad

litem explained that, until the health care liens were actually resolved, there was a

chance M.D. and his family’s health insurance would stop providing benefits.

3 See Tex. R. Civ. P. 44.

4 Mariano’s counsel later alleged that the guardian ad litem agreed to cancel the hearing.

However, the guardian ad litem denied such an agreement and played a tape recording of the

conversation to refute the allegation. The recording, transcribed within the reporters record

contains no indication or agreement that the guardian ad litem should or would cancel the

hearing.

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The trial court proceeded with the settlement hearing. The court took

judicial notice of the final decree of divorce between Marie and Mariano, including

Marie’s “exclusive right to represent the children in legal action and to make other

decisions of substantial legal significance concerning the children.” Marie testified

regarding the minor’s injuries, his complete recovery, and the proposed settlement,

which she asked the trial court to approve. Marie testified that, based on the

guardian ad litem’s negotiations with the health care providers for M.D., no one

would be responsible for any additional amounts for this incident. She also

acknowledged that she had agreed to allow Mariano’s attorneys to have a fee in the

personal injury case if Mariano would dismiss a motion filed in family court to

modify the decree for the purpose of recovering a fee in the underlying action. She

was unaware of the actual amount of the fee Mariano’s attorneys wanted, but

understood it was 25%. Marie did not have the written agreement where she

agreed that Mariano could recover attorney’s fees for the suit; Mariano had it.

Marie requested that any remaining proceeds from the $30,000 settlement be

placed in the registry of the court for M.D.’s benefit when he turned 18.

After hearing Marie’s testimony, the trial court announced its approval of

the settlement and further ordered that “[a]s far as the legal fees for the plaintiff,

any costs and legal fees are reduced to $2,500.00.” The parties agreed to submit

the settlement to the trial court for approval.

Mariano filed an “Emergency Motion to Reconsider Ruling Regarding

Attorney Fees.” After a hearing, at which Mariano again did not appear, the trial

court denied reconsideration and later signed a final judgment. Specifically, the

judgment (a) resolved the outstanding medical bills as negotiated by the guardian

ad litem; (b) established periodic annuity payments for M.D.; (c) awarded $2,500

to Mariano’s counsel for fees and expenses in the prosecution of this matter; and

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(d) ordered the deposit into the court’s registry of additional funds for the “use and

benefit” of M.D. “pending final resolution of the appeal of the court’s order

relating to attorney fees filed by counsel for plaintiffs.” Further, Kevin was

ordered to pay $3,500 as fees to the guardian ad litem.

Mariano timely noticed his appeal of only the attorney’s fee issue.

II. STANDARD OF REVIEW

The parties do not debate our standard of review. We review a trial court’s

award of attorney’s fees for abuse of discretion. Robinson v. Brannon, 313 S.W.3d

860, 868 (Tex. App.—Houston [14th Dist.] 2010, no pet.). That is, we reverse

only if the trial court’s award of attorney’s fees is arbitrary, unreasonable, and

without reference to guiding principles. Id. (citing Goode v. Shoukfeh, 943 S.W.2d

441, 446 (Tex.1997)).

III. ANALYSIS

As outlined above, Mariano challenges the trial court’s judgment on two

grounds: (1) due process; and (2) impropriety of Marie’s intervention. He further

seeks remand to the trial court for the determination of a reasonable fee if we do

not determine he is entitled to the 25% contingency fee for attorney’s fee.

As a preliminary matter, Mariano complains that the trial court awarded only

costs of $2,500, but no fees. This statement is not supported by the record. As

outlined above, the final judgment states that “[t]he sum of $2,500.00 is to be paid

to [Mariano’s counsel] for fees and expenses in the prosecution of this matter”

(emphasis added). The trial court stated on the record that the “legal fees for the

plaintiff, any costs and legal fees are reduced to $2,500.00” (emphasis added).

Further, in each of his issues, Mariano challenges only the trial court’s

decision to order fee forfeiture, fee disgorgement, or sanctions. The trial court did

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not order or mention fee forfeiture. The trial court did not order or mention fee

disgorgement. The trial court did not order sanctions.

To the extent that Mariano claims a due process violation,5 the trial court did

not act without affording Mariano notice and an opportunity to be heard. Indeed,

Mariano requested the initial settlement hearing, yet failed to attend. Mariano then

sought and obtained a hearing on reconsideration. Mariano thus had an

opportunity to be heard, twice. There is no due process violation in this case, and

we overrule this issue. See, e.g., Tex. Worker’s Comp. Comm’n v. Patient

Advocates of Tex., 136 S.W.3d 643, 658 (Tex. 2004) (“Due process requires notice

and an opportunity to be heard at a meaningful time and in a meaningful

manner.”).

Mariano next asserts that the trial court abused its discretion by “replac[ing]

[Mariano] as next friend at the settlement hearing and it abused its discretion by

penalizing [Mariano]’s counsel with the severe sanction of fee forfeiture for

demonstrating [Marie]’s manifest conflict of interest.” But, as discussed above,

there is no fee forfeiture in this case. Thus, this issue presents nothing for our

review, and it is overruled.6

5 Mariano asserts that his trial counsel’s right to due process was violated. But his

counsel is not a party to the suit; thus it is difficult to discern how his counsel had a right to due

process in this case. We thus consider whether Mariano’s right to due process was denied.

6 Moreover, neither Mariano nor his counsel appeared at the settlement hearing. At that

hearing, the trial court took judicial notice of Mariano’s and Marie’s divorce decree, which

afforded Marie the exclusive right to represent M.D. in legal action and to make other decisions

of substantial legal significance concerning M.D. The trial court also heard testimony that

Mariano had not been involved in M.D.’s life for several years, that the medical bills associated

with M.D.’s treatment for this injury had been reduced by the actions of the guardian ad litem to

around $6,700, and that both M.D.’s guardian ad litem and Marie believed that it was in M.D.’s

best interest to settle this suit.

Mariano’s counsel urged at the hearing on his motion to reconsider that Marie “would not

have made a claim against the insurance company” about this incident. But he points to no

record evidence to support this claim. Mariano has failed to establish that Marie sought to waive

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In his third issue, Mariano seeks remand for determination of a “reasonable

fee” if we do “not see fit to award the contracted 25 percent contingency fee rate.”

Yet Mariano has proffered no argument about why the trial court abused its

discretion in awarding $2,500 rather than the $7,500 sought on reconsideration or

why the award of $2,500 is against the great weight and preponderance of the

evidence. Mariano has failed to adequately brief this argument or analyze the

evidence before the trial court and, therefore, he has waived his third issue.7 See

Tex. R. App. P. 38.1(i).

M.D.’s cause of action for personal injuries. See Munoz v. II Jaz Inc., 863 S.W.2d 207, 290–10

(Tex. App.—Houston [14th Dist.] 1993, no pet.) (holding that the Family Code, which grants to

the parents of a minor child the power to make decisions of substantial legal significance, “does

not give parents the power to waive a child’s cause of action for personal injuries”). There is

nothing in our record to overcome the presumption that Marie’s decision about the settlement of

this suit was not in the best interest of M.D. See In re KC Greenhouse Patio Apartments, LP,

445 S.W.3d 168, 174 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (“[W]hen parents make

decisions about the well-being of their children, courts are to presume that the parent is acting in

the child’s best interest.”). Indeed, by seeking additional attorney’s fees in this case, it appears

that Mariano is not acting in M.D.’s best interest because doing so would reduce the amount

awarded to M.D.

7 Eeven if we determined that the argument was not waived, we would conclude that the

trial court did not abuse its discretion in reducing Mariano’s attorney fee award. Any settlement

involving the interests of a minor, including any proposed apportionment of fees and costs, must

be approved by the trial court. See Tex. R. Civ. P. 44(2). Because Mariano did not appear at the

hearing, he presented no evidence to support any award of fees. Moreover, the information

before the trial court during the hearing was that Mariano (a) brought the action without

authority to act as M.D.’s next friend; (b) filed a motion in family court to obtain authority to

recover a fee, an action which did not benefit M.D.; and (c) relied upon the guardian ad litem to

negotiate a reduction in substantial hospital bill from $110,000 to $6,700. The only “fee”

evidence Mariano relies upon is a contingency fee agreement that was not before the trial court

until reconsideration. Further, Mariano does not dispute that a contractual contingent fee may be

reduced at the discretion of the trial court. Cf. Hoffert v. Gen. Motors Corp., 656 F.2d 161, 164

(5th Cir. 1981) (fact that no party questioned propriety of contingency fee and that injured

plaintiff’s guardian ad litem acquiesced to its reasonableness did not shield from court’s scrutiny

as part of the overall settlement of the injured minor’s settlement).

None of Mariano’s issues have merit. The judgment of the trial court is

affirmed.