AFFIRMED and Opinion Filed September 24, 2019




                                            Court of Appeals
                                                             S     In The


                                     Fifth District of Texas at Dallas
                                                        No. 05-18-00714-CV

                                            ROBERT L. WILSON, Appellant
                                                       V.
                                          J. RANDLE HENDERSON, Appellee

                                 On Appeal from the 116th Judicial District Court
                                              Dallas County, Texas
                                      Trial Court Cause No. DC-16-15162

                                           MEMORANDUM OPINION
                                       Before Justices Myers, Osborne, and Nowell
                                               Opinion by Justice Osborne
           After a bench trial, the trial court rendered judgment for appellant Robert L. Wilson on one

of his claims for breach of fiduciary duty against appellee J. Randle Henderson, his former

attorney. Wilson appeals, contending the trial court erred by denying Wilson’s other claims for

breach of fiduciary duty and fraud. Because the evidence was sufficient to support the trial court’s

findings of fact and conclusions of law, we affirm the trial court’s judgment.

                                                             BACKGROUND

           The Securities and Exchange Commission (“SEC”) brought suit against Wilson on April

28, 2011 for violations of federal securities law.1 Henderson represented Wilson in the suit and


     1
       The SEC’s complaint is not included in the appellate record. Wilson explains in his appellate brief that “[t]he underlying case concerned a
marketing campaign involving the stock of China Voice Holding Corporation” and involved approximately 20 defendants. Wilson was “charged
with three offenses: (1) misstatement of amount compensated; (2) misstatement of the source of compensation, and; (3) use of deceptive and
manipulative devices that disseminated information.”
also during the SEC’s pre-suit investigation in 2010. Wilson consented to judgment on December

16, 2011, without admitting or denying the SEC’s allegations. The consent judgment included

permanent injunctive relief against Wilson. It also provided that Wilson would pay disgorgement

and a civil penalty in amounts to be determined by the court. Henderson submitted Wilson’s

financial information to the federal court and argued that the civil monetary penalty assessed

against Wilson should not exceed $100,000 in the aggregate. But in a final judgment dated

November 28, 2012, the court ruled that Wilson was liable for disgorgement, penalties, and interest

exceeding $1.4 million.

       Wilson and Henderson initially agreed that Wilson would pay Henderson $250 per hour

for representing him. On September 5, 2011, however, Henderson sent Wilson an email stating,

“Balance due is $23,500.00. This is the final (turnkey) billing irrespective of whether we settle or

go to trial.” Wilson paid the balance due without objection, and Henderson continued to represent

him until early 2013.

       On November 28, 2016, Wilson filed suit against Henderson, asserting claims for breach

of fiduciary duty, legal malpractice, fraud and fraudulent concealment, deceptive trade practices,

and breach of contract. The parties filed multiple motions for summary judgment that the court

granted in part and denied in part. The case proceeded to trial before the court on Wilson’s claims

in his sixth amended petition, including allegations of fraud and five alleged breaches of fiduciary

duty. Wilson alleged that Henderson breached his fiduciary duty when he:

              Failed to return unearned fees and charged unnecessary fees (“Breach of Fiduciary
               Duty Count I”);

              Modified his fee arrangement and failed to explain it (“Breach of Fiduciary Duty
               Count II”);

              Failed to provide a detail of fees to justify his billings (“Breach of Fiduciary Duty
               Count III”);



                                                –2–
              Failed to provide or return Wilson’s files and records (“Breach of Fiduciary Duty
               Count IV”); and

              Failed to have a written fee agreement for legal services (“Breach of Fiduciary Duty
               Count V”).

Wilson’s fraud claim arose from his allegation that Henderson falsely represented that the fees for

his services would remain at $250 per hour.

       Wilson and Henderson represented themselves at trial. Each testified, and Henderson also

called an expert witness to discuss representation of clients in suits by the SEC in general and in

the suit against Wilson in particular. The trial court made findings of fact and conclusions of law

and rendered judgment for Wilson on Breach of Fiduciary Duty Count I, awarding Wilson

$1,214.43 in damages and disgorgement of $10,000, plus interest on both amounts. But the court

rendered judgment for Henderson on Breach of Fiduciary Duty Counts II, III, IV, and V, and on

Wilson’s fraud claim. Wilson now appeals, alleging in seven issues that “the trial court erred in

ignoring substantial evidence” of his claims. Although Wilson’s list of “issues presented” in his

appellate brief contains only challenges to the sufficiency of the evidence, Wilson also presents

argument and authorities to challenge the admissibility of expert testimony.

                                      STANDARDS 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


                                                 –3–
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 a party attacks the legal sufficiency of an adverse finding on

an issue on which he has the burden of proof, he must demonstrate that the evidence establishes,

as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d

237, 241 (Tex. 2001) (per curiam).

        When an appellant challenges the factual sufficiency of the evidence on an issue, we

consider all the evidence supporting and contradicting the finding. Sheetz, 503 S.W.3d at 502. 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) (per

curiam). 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 will not substitute our judgment for that of the fact-finder. Id.

        We review de novo a trial court’s conclusions of law. See Fulgham v. Fischer, 349 S.W.3d

153, 157 (Tex. App.—Dallas 2011, no pet.). 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, 503 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.

        Expert testimony is admissible if (1) the expert is qualified, and (2) the testimony is

relevant and based on a reliable foundation. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d

                                                  –4–
797, 800 (Tex. 2006). The trial court’s determination that these requirements are met is reviewed

for abuse of discretion. Id. A trial court abuses its discretion if it acts without reference to any

guiding rules or principles. Id.

                                         APPLICABLE LAW

       “‘The elements of a breach-of-fiduciary-duty claim are: (1) a fiduciary relationship existed

between the plaintiff and defendant; (2) the defendant breached its fiduciary duty to the plaintiff;

and (3) the defendant’s breach resulted in injury to the plaintiff or benefit to the defendant.’” Neese

v. Lyon, 479 S.W.3d 368, 386–87 (Tex. App.—Dallas 2015, no pet.) (quoting Anderton v. Cawley,

378 S.W.3d 38, 51 (Tex. App.—Dallas 2012, no pet.)). An attorney owes his client a fiduciary

duty as a matter of law. Id. at 387.

       In the attorney-client context, a fiduciary duty claim focuses on whether the attorney’s

conduct involved his integrity and fidelity, and whether the attorney obtained an improper benefit

from representing the client. Id. An attorney commits a fiduciary breach when he benefits

improperly from the attorney-client relationship by, among other things, subordinating his client’s

interests to his own, retaining the client’s funds, engaging in self-dealing, improperly using client

confidences, failing to disclose conflicts of interest, or making misrepresentations to achieve those

ends. Id. An attorney also owes a client a duty to inform the client of matters material to and within

the scope of the representation. Id. Contracts between attorneys and their clients negotiated during

the existence of the attorney-client relationship are closely scrutinized. Keck, Mahin & Cate v.

Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 699 (Tex. 2000) (citing Archer v.

Griffith, 390 S.W.2d 735, 739 (Tex.1964)). Because the relationship is fiduciary in nature, there is

a presumption of unfairness or invalidity attaching to such contracts. Id.

       To prevail on a fraud claim, a plaintiff must show: (1) the defendant made a material

representation that was false; (2) the defendant knew the representation was false or made it

                                                 –5–
recklessly as a positive assertion without any knowledge of its truth; (3) the defendant intended to

induce the plaintiff to act upon the representation; and (4) the plaintiff actually and justifiably

relied upon the representation and suffered injury as a result. JPMorgan Chase Bank, N.A. v. Orca

Assets G.P., L.L.C., 546 S.W.3d 648, 653 (Tex. 2018). The fourth element has two requirements:

the plaintiff must show that he actually relied on the defendant’s representation and, also, that such

reliance was justifiable. Id.

                                                              DISCUSSION

           Although his issues on appeal challenge the sufficiency of the evidence to support the trial

court’s findings and conclusions regarding the change in Henderson’s billing from an hourly rate

to a flat fee, the crux of Wilson’s complaint is Henderson’s failure to achieve an early—and

comparatively small—settlement of the underlying litigation. He argues that Henderson

“intentionally prolong[ed] litigation, inflate[d] billings, [and] prevent[ed] reasonable and

expeditious settlement[ ]” of the SEC’s claims, in violation of his fiduciary duties to Wilson.

           At the conclusion of trial, the trial court identified four questions to be resolved regarding

Wilson’s claims for breach of fiduciary duty and fraud:

           1.         Whether there was evidence to support the fees Henderson charged between May
                      13, 2010, after Wilson’s appearance before the SEC,2 and April 19, 2011, when the
                      SEC filed suit;

           2.         Whether Henderson’s September 5, 2011 email modifying the fee structure from
                      an hourly rate to a flat fee was a breach of fiduciary duty;

           3.         Even if changing the fee structure was not a breach of fiduciary duty, whether the
                      $23,500.00 flat fee was an overcharge; and

           4.         Whether Henderson committed fraud by changing the parties’ fee arrangement
                      from an hourly rate to a flat fee.




     2
       During the SEC’s pre-suit investigation, Wilson appeared before the SEC, represented by Henderson. At trial, the parties disputed whether
Wilson’s appearance could be called a “deposition” or not, but this dispute is not material to any of the issues in this appeal.

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           The trial court found in Wilson’s favor on the first of these questions, and rendered

judgment that Wilson “is entitled to disgorgement of fees for charges incurred from Defendant

Henderson from 5/13/2010 to 4/19/2011 in the amount of $10,000.00 plus judgment interest of

$3,787.97.” On the remaining three questions, the trial court found Henderson’s explanation of his

reasons for changing the fee structure to be credible. The trial court’s finding of fact 6 provides:

           Plaintiff acquiesced to Defendant’s change of the fee arrangement from hourly to a
           flat fee. There is no or insufficient evidence of any objection by Plaintiff to the
           change in the fee arrangement. Moreover, the change to a flat fee was, more likely
           than not, for the benefit of Plaintiff.

Conclusion of law 15 provides that Henderson met his “burden to demonstrate that he did not

breach his fiduciary duty in changing the fee arrangement between the Parties from hourly to a flat

fee.”

           Wilson’s seven issues all arise from his complaints about Henderson’s fees. He complains

of lack of documentation to support the fees charged (Issues 5, 6, and 7), as well as breaches of

fiduciary duty and fraud for changing from an hourly rate to a flat fee (Issues 1 through 4).

Although the record is not entirely clear, it appears that Wilson contends he reached a settlement

with the SEC after a mediation on September 1, 2011, but Henderson then advised him to “bypass”

settlement. Wilson alleges that Henderson so advised him for the sole purpose of generating more

fees, citing Henderson’s imposition of the new flat fee immediately after the mediation.

           Wilson testified that the day after the mediation, he met, by himself, with the two SEC

representatives who had attended the mediation. He testified that “I went to settle, I went there, I

signed” in front of the two representatives, without Henderson or any other attorney on his behalf

present.3 The representatives did not give him a copy of the document he signed. Although he

relies on a “mediation attendance roster” showing his attendance at the September 1 mediation,


     3
       In his reply brief, Wilson contends that he and the SEC agreed that he would pay a $65,000 penalty and be enjoined from marketing penny
stocks for five years. His supporting record cite is to the testimony of Henderson’s expert witness that a settlement “did occur” in September. Only
Wilson, however, testified to the alleged terms.

                                                                       –7–
the roster shows that Henderson and others also were present, and there is no record from the

following day. The roster also contains an agreement to mediate, but the agreement does not

include any settlement terms among any of the parties.

        Although Henderson agreed the mediation took place, he testified that no settlement of the

SEC’s claims against Wilson resulted. He explained his reasoning for changing from the hourly

rate at that time:

        As far as the modification of the fee. The modification of the fee I determined
        because at the point of mediation we had no agreement, we had no settlements, we
        might have to go to trial or it will take a long time to settle. And what I had proposed
        was an hourly—dividing 23,500 by $250 and see what it was—and to estimate what
        it would take to go through trial and/or settlement at or around the time that we had
        the hearing on the disgorgement and civil money penalty.

        Mr. Wilson was very, very, very strapped for funds. And based on my experience
        and knowing that a settlement process or litigation could take up to a year or two,
        it would be far, far more expensive for Mr. Wilson and his family who were in dire
        straits at that point in time.

        ....

        [I]n my best judgment, . . . the modification was in his best interest so that no matter
        how long and how many hours I worked, he would be—that would be his maximum
        exposure in the middle of an SEC case where we had a lot of work to do either to
        settle or to go to trial.

        That number was arrived at and put in the form of an invoice for his protection. . . .
        It’s for his protection so he doesn’t have to worry about any more legal fees on this
        case given his current circumstances. That, to me, was part of fulfilling my
        obligation as a fiduciary to look out for the best interest of Mr. Wilson to allow him
        to budget, put down final payment to Henderson. And as I’ve testified, it was
        approximately 15 months of negotiations and motions that were covered by the
        $23,500. . . . It would have been in my opinion more harmful to Mr. Wilson to
        continue at a running $250 an hour when we did not know how long [before] this
        was going to come to a conclusion.

        Henderson also presented evidence of the work he performed during the course of the

representation. He testified that the SEC’s charges against Wilson were serious, including

allegations that Wilson participated in a stock promotion campaign involving materially false and

misleading statements and material omissions. The federal court’s memorandum opinion and order

                                                 –8–
was admitted into evidence at trial, and reflects that Wilson “orchestrated a blast fax campaign”

during a six-month period, sending faxes “to thousands of people at once” that contained false and

misleading statements about a corporation’s stock. Henderson testified that the SEC froze the

defendants’ bank accounts, and part of his work on Wilson’s behalf included working with the

SEC and Wilson’s bank to restore Wilson’s access to an account that had been frozen in error.

Henderson negotiated with the SEC, emphasizing that Wilson did not own any of the stock in

question, and attempted to determine the likelihood that the SEC would pursue criminal charges

against Wilson. He prepared Wilson’s response to a motion for summary judgment filed by the

SEC. He attended the court-ordered mediation, although he was not optimistic about it resulting

in a settlement because he did not believe the persons attending on the SEC’s behalf had final

authority to bind the SEC to any agreement reached. Henderson also testified that he charged

Wilson $250 per hour until he proposed the change to the flat fee. There is no evidence that

Henderson knowingly made a false representation about his fee in 2010 when he began

representing Wilson at an hourly rate.

        The trial court heard the testimony of all of the witnesses and was the sole judge of their

credibility. Shaw v. Cty. of Dallas, 251 S.W.3d 165, 169 (Tex. App.—Dallas 2008, pet. denied).

The trial court may believe one witness and disbelieve others and may resolve inconsistencies in

a witness’s testimony. Id. An appellate court may not substitute its judgment for that of the

factfinder even if there is conflicting evidence that would support a different conclusion. See In re

Shipman, 540 S.W.3d 562, 565 (Tex. 2018) (per curiam) (orig. proceeding) (“Appellate courts

may not substitute their judgment for the trial court’s determination of factual matters committed

to the trial court’s discretion.”). Here, the trial court’s findings of fact that (1) Wilson did not object

to the change in the fee arrangement, (2) the change to a flat fee was for Wilson’s benefit, and

(3) Henderson did not knowingly or recklessly make “his statement regarding having an hourly

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fee arrangement” are supported by the evidence in the record. We conclude there was legally and

factually sufficient evidence to support the trial court’s findings of fact and conclusions of law

regarding the change in the fee arrangement, and we decide Wilson’s first, third, and fourth issues

against him.

       In his second issue, Wilson asserts that “[t]he trial court erred in ignoring substantial

evidence of Appellee’s breach of fiduciary duty for charging $10,000 on April 28, 2010.” Wilson

contends that Henderson did not provide a written fee agreement or billing for this fee, and

Henderson’s testimony that the fee was a “one-time ‘true’ non-refundable retainer where no legal

work was provided” was false. The record reflects that Henderson charged the fee after the SEC

filed suit. Henderson offered his own testimony and the testimony of his expert that a fee of

$10,000 was reasonable to retain a lawyer with expertise in defending SEC suits, and the fee

precluded him from representing other individuals in the same matter as well as from taking on

other work. As Wilson points out, the failure of a lawyer to explain how a fee is to be calculated

may weigh in favor of a conclusion that the fee is unconscionable. See Hoover Slovacek LLP v.

Walton, 206 S.W.3d 557, 565 (Tex. 2006) (citing TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04

cmt. 8). But the trial court was the sole judge of the credibility of the evidence, and Henderson

offered evidence from which the trial court could find and conclude that Henderson did not breach

his fiduciary duty in charging the retainer fee. See Sheetz, 503 S.W.3d at 502. We decide Wilson’s

second issue against him.

       Although not included in his list of issues presented, Wilson also argues that the trial court

erred in admitting the testimony of Daniel Kirschbaum, Henderson’s expert witness, that

Henderson’s fees were reasonable. When Henderson called Kirschbaum to testify at trial, Wilson

objected that Kirschbaum’s testimony did “not meet any of the Daubert/Robinson factors,” “fails

the Gammill test,” and improperly relied on Henderson’s testimony. He also objected that

                                               –10–
Kirschbaum’s affidavit lacked specificity, although as the trial court noted, he had agreed to its

admission into evidence. The court explained to Wilson, “if you have an objection that [a] certain

opinion offered by him lacks foundation as those opinions are being elicited, the Court will receive

your objection and rule upon it.” Wilson, however, did not make any such objection to

Kirschbaum’s direct testimony. Consequently, we construe Wilson’s argument on appeal as a no-

evidence complaint. See Reisler v. Reisler, 439 S.W.3d 615, 623 (Tex. App.—Dallas 2014, no

pet.) (party who did not object to expert’s testimony at trial may argue on appeal that expert’s

testimony constitutes no evidence and is mere conclusion); see also TEX. R. APP. P. 33.1(d) (in

civil nonjury case, complaint regarding legal or factual sufficiency of evidence may be made for

first time on appeal).

         Kirschbaum, a lawyer, testified that his primary area of practice is securities law. After

obtaining his law degree in 1968, he worked on the enforcement staff of the SEC and then managed

the SEC’s Houston office before entering private practice in 1979. He testified that he was familiar

with the type of case the SEC brought against Wilson and his codefendants. He discussed the type

of work an attorney would undertake in representing a client in a similar case. He explained the

materials he had reviewed, and opined that Henderson’s fee was “an absolute bargain” under the

circumstances and in comparison to similar cases he had handled. We conclude Kirschbaum’s

testimony provided some evidence to support his opinions. Cf. Reisler, 439 S.W.3d at 623 (expert

provided basis for opinion; further complaints about methodology were waived by failure to object

at trial).

         The trial court, as factfinder, was entitled to make credibility determinations and weigh the

expert’s testimony. Duke Realty Ltd. P’ship v. Harris Cnty. Appraisal Dist., No. 14-15-00543-CV,

2016 WL 3574666, at *3 (Tex. App.—Houston [14th Dist.] June 30, 2016, no pet.) (mem. op.).

We conclude the evidence was sufficient to support Kirschbaum’s opinion that Henderson’s fee

                                                 –11–
was reasonable, and it was within the trial court’s discretion to consider it. See Reisler, 439 S.W.3d

at 623. We decide Wilson’s complaint about the admission of Kirschbaum’s testimony against

him.

       In his fifth, sixth, and seventh issues Wilson argues the trial court “ignored substantial

evidence” that Henderson breached his fiduciary duty by failing to provide billings, a written fee

agreement, and Wilson’s client files. Wilson relies on several federal court decisions addressing

applications for attorney’s fee awards under federal law, an issue not presented here. See, e.g.,

Walker v. U.S. Dep’t of Hous. & Urban Dev., 99 F.3d 761 (5th Cir. 1996) (considering attorney’s

fee application under federal civil rights statute). Henderson responds that he offered evidence that

Wilson did not request his file until November 2016, five years after the flat fee arrangement

began, and after Henderson had replaced the computer that held Wilson’s file. He also offered

evidence that in the course of the representation, he copied Wilson on all correspondence with the

SEC, and the pleadings and other filings made in the SEC’s lawsuit against Wilson were publicly

available. He testified that the flat fee arrangement was for the remainder of the representation so

that hourly billing and detailed invoices were not required.

       Considering the entire record, we conclude there was legally and factually sufficient

evidence from which the trial court could find and conclude that Henderson did not improperly

benefit from his attorney-client relationship with Wilson, engage in self-dealing, or otherwise

breach his fiduciary duties to Wilson. See Neese, 479 S.W.3d at 387. We decide Wilson’s fifth,

sixth, and seventh issues against him.




                                                –12–
                                        CONCLUSION

      We affirm the trial court’s judgment.




                                                /Leslie Osborne/
                                                LESLIE OSBORNE
                                                JUSTICE


180714F.P05




                                              –13–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

 ROBERT L. WILSON, Appellant                       On Appeal from the 116th Judicial District
                                                   Court, Dallas County, Texas
 No. 05-18-00714-CV        V.                      Trial Court Cause No. DC-16-15162.
                                                   Opinion delivered by Justice Osborne;
 J. RANDLE HENDERSON, Appellee                     Justices Myers and Nowell, participating.

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

       It is ORDERED that appellee J. Randle Henderson recover his costs of this appeal from
appellant Robert L. Wilson.


Judgment entered September 24, 2019




                                            –14–
