                                                                          ACCEPTED
                                                                      01-14-0799-CV
                                                           FIRST COURT OF APPEALS
                                                                   HOUSTON, TEXAS
                                                                2/12/2015 5:53:29 PM
                                                                 CHRISTOPHER PRINE
                                                                              CLERK

                     NO. 01-14-0799-CV

                                              FILED IN
                                       1st COURT OF APPEALS
             IN THE C    O A
                        OURT F PPEALS      HOUSTON, TEXAS
                                       2/12/2015 5:53:29 PM
         FOR THE FIRST D     O T
                           ISTRICT F EXAS
                                       CHRISTOPHER A. PRINE
                                               Clerk


               BARBARA REGINA SCHLEIN,
                                Appellant,
                         V.

                  ANTHONY P. GRIFFIN,
                                  Cross-Appellant.


           Appeal from County Court at Law, No. 2
                  Galveston County, Texas
             Trial Court Cause No. CV-0069481


        CROSS-APPELLANT’S, ANTHONY P. GRIFFIN,
                  BRIEF ON APPEAL



                           NORMA VENSO
                           STATE BAR NO. 20545250
                           ATTORNEY AT LAW
                           830 APOLLO
                           HOUSTON, TEXAS 77058
                           409.789.8661
                           FACSIMILE NO. 281.286.9990
                           EMAIL: nvenso@earthlink.net

                           Attorneys for Cross-Appellant

ORAL ARGUMENT REQUESTED
              IDENTITY OF PARTIES AND COUNSEL

APPELLANT:

BARBARA REGINA SCHLEIN

APPELLANT’S COUNSEL AT TRIAL COURT LEVEL AND
ON APPEAL:

STEPHEN H. CAGLE, JR.

HEATHER C. PANICK

CHRISTIAN SMITH & JEWELL, L.L.P.
2302 FANNIN, SUITE 500
HOUSTON, TEXAS 77002

LOCAL COUNSEL AT TRIAL ONLY

STEPHEN R. “STRETCH” LEWIS, JR.
LEWIS & WILLIAMS, L.L.P.
2200 MARKET STREET, SUITE 750
GALVESTON, TEXAS 77550

CROSS-APPELLANT:

ANTHONY P. GRIFFIN

CROSS-APPELLANT COUNSEL AT TRIAL COURT LEVEL
AND ON APPEAL:

NORMA VENSO
ATTORNEY AT LAW
830 APOLLO
HOUSTON, TEXAS 77058




                                  ii
                                      TABLE OF CONTENTS
                                                                                                        Page

IDENTITY OF PARTIES AND COUNSEL . . . . . . . . . . . . . . . . . . . . . . . .                           ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .              v

STATEMENT REGARDING ORAL ARGUMENT . . . . . . . . . . . . . . . . . .                                     vii

STATEMENT OF THE CASE AND PROCEDURAL HISTORY . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

STANDARD OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

POINT OF ERROR NO. 1: THE FINDING OF NO ACTUAL DAMAGES
                      ON THE UNCONSCIONABILITY QUESTION
                      IS FATAL TO THE FINDING OF
                      ADDITIONAL DAMAGES UNDER
                      THE DECEPTIVE TRADE PRACTICES
                      ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43

POINT OF ERROR NO. 2: THE TRIAL COURT ERRED IN NOT
                      GRANTING JNOV ON THE DECEPTIVE
                      TRADE PRACTICES QUESTIONS
                      SUBMITTED TO THE JURY . . . . . . . . . . . . . . 46

PRAYER/CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54

CERTIFICATION OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56

                                                       iii
APPENDIX ……………………………………………………   Appendix 1-101




                  iv
                                        INDEX OF AUTHORITIES

Cases

Aquila Southwest Pipeline, Inc. v. Harmony Exploration, Inc., 48 S.W.3d 225
(Tex.App.-San Antonio 2001, pet. denied) ...................................................... 41, 42

Brennan v. Manning, No. 07-06-0041-CV, 2007 WL 1098476 (Tex. App.-
Amarillo Apr. 12, 2007).................................................................................... 40, 49

Cain v. Bain, 709 S.W.2d 175 (Tex.1986) ..............................................................42

CDB Software, Inc. v. Krell, 992 S.W.2d 31 (Tex. App.-Houston [1st Dist.]
1998, pet. denied) ....................................................................................................46

Chastain v. Koonce, 700 S.W.2d 579 (Tex.1985) ...................................................52

City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005) .............................................45

East Hill Marine, Inc. v. Rinker Boat Co., 229 S.W.3d 813 (Tex. App.-
Fort Worth 2007) .....................................................................................................53

Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392 (Tex. 1991)……… 46

Greathouse v. McConnell, 982 S.W.2d 165 (Tex. App.-Houston [1st Dist.]
  1998)……………………………………………………………………….40, 50

Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731 (Tex. App.-Fort Worth
  2005)……………………………………………………………………….40, 49

Jabri v Alsayyed, 145 S.W.3d 664 (Tex. App. – Houston [14th Dist.] 2004) ..........42

James J. Flanagan Shipping Corporation v. Del Monte Fresh Produce, N.A., Inc.,
403 S.W.3d 360 (Tex. App. – Houston [1st Dist.] 2013) .........................................45

Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617 (Tex. 1986) ........................ 39, 45

Mazuca and Asssociates v. Schumann, 82 S.W.3d 90 (Tex. App. – San Antonio
(2002) ................................................................................................................ 50, 52



                                                              v
Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997) .......................41

Nast v. State Farm Fire & Cas. Co., 82 S.W.3d 114 (Tex. App.—San Antonio
2002, no pet.) ...........................................................................................................48

Phar-Mor, Inc. v. Chavira, 853 S.W.2d 710 (Tex. App.-Houston [1st Dist.]
1993, writ denied) ...................................................................................................46

Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442 (Tex.1989) .............................41

Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.-Houston [1st Dist.] 2005) .......... 40, 49

Southwestern Bell Telephone Co. v. Delanney, 809 S.W.2d 493 (Tex. 1991) ........46

Texas Motor Coach, L.C. v. Blue Bird Body Co., No. 4:05CV34, 2005 WL
3132482 (E.D. Tex. Nov. 22, 2005) ........................................................................53

Transp. Ins. Co. v. Moriel, 879 S.W.2d 10 (Tex. 1994) ..........................................41

Rules & Statutory Authority

TEX. R. CIV. P. 301 ................................................................................................46

TEX. R. APP. PROC. 25.1 ..... ……………………………………………………….4

TEX. R. APP. PROC. 38.1(e) ... ……………………………………………………..vii

TEX. R. APP. PROC. 39 ........... ……………………………………………………..vii

TEX. BUS. & COM. CODE § 17.45 (j)………………………………………… 50

TEX. BUS. & COM. CODE § 17.49 (a)………………………………………... 46
TEX. BUS. & COM. CODE § 17.49 (c)……………………………….... 40, 48, 52
TEX. BUS. & COM.CODE ANN. § 17.49(f) (g)……………………………….. 53




                                                            vi
                STATEMENT REGARDING ORAL ARGUMENT
       Cross-Appellant requests the opportunity to present oral argument to the

Court, pursuant to Texas Rules of Appellate Procedure 38.1(e) and 39. Although

Cross-Appellant believes that the trial court’s judgment should be affirmed in most

parts, save the submissions complained on appeal by Cross-Appellant.

       Cross-Appellant believes that oral argument would aid the Court’s resolution

in this case.




                                        vii
                                NO. 01-14-0799-CV


                     IN THE COURT OF APPEALS
                 FOR THE FIRST DISTRICT OF TEXAS

                          BARBARA REGINA SCHLEIN,
                                           Appellant,

                                          V.

                             ANTHONY P. GRIFFIN,
                                             Cross-Appellant.


                    Appeal from County Court at Law, No. 2
                           Galveston County, Texas
                      Trial Court Cause No. CV-0069481


              CROSS-APPELLANT’S, ANTHONY P. GRIFFIN,
                        BRIEF ON APPEAL


TO THE HONORABLE JUSTICES FOR THE FIRST COURT OF APPEALS:

      Cross-Appellant, Anthony P. Griffin, hereinafter and sometimes referred to

Cross-Appellant Griffin, submits his initial brief, with respect to his cross-appeal in

this matter. Cross-Appellant submits as follows:

       STATEMENT OF THE CASE AND PROCEDURAL HISTORY

      Cross-Appellant brought his original petition on March 14, 2013 against

Appellant, Barbara Regina Schlein (Index on Appeal at Tab 1, CR [Clerk’s
Record], at 000003-000009; Cross-Appellant’s Appendix, Tab 1; see also

Plaintiff’s Original Petition at id. at CR 10-21; Cross-Appellant’s Appendix, Tab

2). Cross-Appellant complained that Appellant, a former client, breached her

contract of employment by failing to pay his attorneys’ fee and costs. The initial

pleading also asserted alternative theories of recovery, including quantum meruit,

unjust enrichment, fraud, and theft of services (id.).       Appellant’s operative

pleading/answer, at that the time of trial, was Defendant’s Amended Answer and

Counterclaim filed on June 18, 2013 (CR. 00026-00059; Cross-Appellant’s

Appendix, Tab 3). Cross-Appellant filed a partial motion for summary judgment

on September 30, 2013 (CR. at 223-286) and his amended petition on October 4,

2014 (CR 287-292); Cross-Appellant’s amended petition dropped all claims save

the breach of contract claim (id., see first amended petition at CR. at 287-292; see

second amended petition at CR. at 628-632; Cross-Appellant’s Appendix, Tab 4).

The order denying the partial motion for summary judgment was entered on

December 27, 2013 (CR. at 420; Cross-Appellant’s Appendix, Tab 5).

Defendant’s Motion for Summary Judgment was filed on January 31, 2013 (CR. at

472-558). The Court likewise denied Defendant’s Motion on February 28, 2014

(CR. at 751; Cross-Appellant’s Appendix, Tab 6).

      The case was called to trial on May 8, 2014 (jury) and was tried on the

following days, to-wit: May 7– 9, 12-13, 19, 21-22, 27, 2014 (Reporter’s Record



                                         2
[RR.], Master Index, Vol. 1). The jury rendered a verdict on May 22, 2014 (RR. at

Vol. 13; Cross-Appellant’s Appendix, Tab 7 (jury charge), found at CR. at [SUPP.

CLERK RECORD]; Cross-Appellant’s Appendix, Tab 8 (verdict confirmation by

jury). Cross-Appellant filed his motion to enter a final judgment on June 12, 2014

(CR at 1135-1155); he amended the amended motion on June 13, 2014 (CR. 1166-

1186).   Contained in Cross-Appellant’s motion for judgment as a motion for

judgment notwithstanding the verdict on certain unsupported portions of the

verdict; the trial court denied the motion notwithstanding and entered a final

judgment on June 30, 2014 (CR. at 1208; Cross-Appellant’s Appendix, Tab 9; CR.

at 1249-1250; Cross-Appellant’s Appendix, Tab 10).

      Appellant Schlein filed a motion for new trial on July 30, 2014 (CR. at

1209-1224). The trial court denied the motion for new trial on September 11, 2014

(CR. at 1245; Cross-Appellant’s Appendix, Tab 11). Appellant filed her notice of

appeal on September 26, 2014 (CR. at 1238-1241; Cross-Appellant’s Appendix,

Tab 12). Cross-Appellant filed his notice of cross-appeal on October 10, 2014

(CR. 1242-1244; Cross-Appellant’s Appendix, Tab 13).

      This case is properly before this Court.




                                         3
                      STATEMENT OF JURISDICTION

      This Court’s jurisdiction vests under Rule 25.1, Texas Rules of Appellate

Procedure (commenced by filing a notice of appeal from district court judgment).

                          __________________________

                              STATEMENT OF FACTS

      During opening statement, counsel for Cross-Appellant Griffin framed the

matter as a simple breach of contract claims, asserting Appellant Schlein failed to

pay attorney’s fees and costs due and owing to Cross-Appellant (RR. at Vol. 4 at

74, lines 19-25; 75, lines 1-19). “I think the evidence will show that she hasn’t

paid him a red cent.” Cross-Appellant’s counsel explanation in opening framed the

underlying factual history:

      I don’t know of anything that she wanted that he failed to do, but we’ll wait

      and see what happens with that. I don’t think that you’re going to find that

      Mr. Griffin did anything wrong in this case, except get on his horse and act

      as a knight for her, who he thought was an abused woman, who was also not

      getting a fair shake in court and that he took it without getting a fair shake in

      court and that he took it without getting any money up front because they

      couldn’t and he trusted her all the way through and that to this day he has

      not been paid a red cent; and yet, when he sues for collection, they now

      claim that he has malpracticed her in some way. She says that was by him



                                          4
       telling her to show up in court for him once. He denies that. I have no idea

       what that’s about and that she wasn’t kept informed.

Id. at 82, lines 9-23.

       Appellant Schlein and Cross-Appellant Griffin entered a legal services

contract on November 3, 2009 (RR., Vol. 14, pp. 5-14; labeled as Plaintiff’s

Exhibit 1 (Contractual Agreement) and Plaintiff’s Exhibit 2 (cover letter to

contract); Cross-Appellant’s Appendix, Attachment 14). The contract explicitly

set out the following language:            representation in “all matters concerning the

divorce/family related matter/civil issues (tort issues) in a matter styled In the

Matter of the Marriage of Barbara Regina Schlein and Robert Schlein; in the

County Court at Law, No. 2; Galveston County, Texas; Cause No. 08FD2371

(supra, Plaintiff’s Exhibit 1).

       The contract required the payment of a retainer of $35,000.00, but also

contained a footnote stating, “[c]urrently Petitioner is under an order of the Court

that prevents the expenditure of funds without the approval of the Court. No

payment of fees will take place unless and until the Court approves the payment of

the retainer amount and/or an order is entered releasing the injunction overbroad

scope (can be interpreted to include separate property of Petitioner).”1



1
    At the time of the resolution of the divorce the temporary injunction entered by the trial court
    had ceased being in effect (RR., Vol. 8 at 90, lines 4-25; 9, lines 1-5).

                                                 5
      The contract also provided the retainer fee should not be interpreted as

constituting the full reasonable fee to which the Lawyers may be entitled for

services performed pursuant to an award of the Court or settlement (id. at

unnumbered page 3). The work of Cross-Appellant was billed at $300.00 an hour

(id. at unnumbered page 4). Cross-Appellant’s lawsuit made clear that neither the

retainer nor any additional fees and costs had been paid.

      Appellant was called as the first witness during the trial; when questioned

whether she had paid “a red cent to Anthony Griffin for his services,” she

responded, “[t]hat is not true.” When asked what money has been paid, Appellant

explained, “I have paid him in product, which is the same as money” (RR., Vol. 4

at 101, lines 7-12). Appellant went on to explain it was her belief has overpaid

“[h]e owes me money” (id. at 101, lines 14-21). When the witness was brought to

the question of “money”, the witness then asked for a definition of money.

Appellant then affirmed she stated she has not “paid him cash dollar money. I’ve

paid him in product (id. at 102, lines 1-4).

      The contract of employment between Appellant and Cross-Appellant was

admitted as Plaintiff’s Exhibit 1 (id. at 104, lines 1-7; Cross-Appellant’s Appendix,

Tab 14). Appellant testified the contract was executed in person (id. at 105, lines

13-25), contained a section relating to the payment of a retainer on hiring A Griffin




                                           6
Lawyers/Anthony P. Griffin, Inc. (id. at 107, lines 5-25; 108, lines 1-2).2

Appellant testified the contract did not apply to her, although her signature

appeared on same. Appellant testified the contract was amended orally (id. at 110,

lines 18-25; 111, lines 1-6), “it was explained to me differently and that’s why we

have a letter of explanation of contract and letter agreement [;] otherwise, there

would be no purpose for this to have been drawn up” (id.). Appellant stated she

was given a flat fee of $35,000.00, even though the contract never used the words

flat fee. Appellant against restated her position – she had paid by the tender of

product, “Peruvian tile” (id. at 112, lines 3-10).

       And I’ll tell you what: $35,000 is a lot more [sic] than $110,000; and I’m a

       single parent; and trust me, I just didn’t have that kind of money. 3 I wasn’t


2
    Appellant explained Anthony P. Griffin, Inc. was a defunct corporation, and that A Griffin
    Lawyers was an assumed named used by Anthony P. Griffin, with Anthony P. Griffin being
    entitled to collect the debts for either entity (RR., Vol. 8 at 86, lines 4-25; 87, lines 1-25; 88,
    lines 1-15).
3
    Appellant was referred to Appellee by a Marie Trefethern (RR., Vol. 6 at 155, line 21-25).
    At the time, Trefethern was employed on a part-time basis with the Galveston County
    District Attorney’s Office doing protective orders (id. at 156, lines 1-14) and travelled to
    Appellee’s office with Appellant. Trefethern participated in the first meeting.

    Appellant had previously been represented by four other lawyers, all family law practitioners
    (id. at 157, lines 7-25; 158, lines 1-9). Trefethern travelled to Appellee’s office with
    Appellant (id). Appellant paid her first lawyer, Greg Enos, $21,000.00, for 30 days of work;
    her second lawyer, Rebecca Reitz, $90,000.00 - $100,000.00, for three to four months; her
    third lawyer, Marcia Zimmerman, $40,000.00 - $50,000.00, for three months of work; her
    fourth lawyer, Christopher Beck, some $23,000.00 for four months of work. Beck’s payment
    took place even though the trial court (Judge C.G. Dibrell) had ordered Appellant not to
    expend any more money on attorneys’ fees (id. at 158-161, lines 1-25; 162, lines 1-11).
    Appellant feigned memory problems with regards to what she expended on previous lawyers

                                                  7
   prepared for that. If he would have billed me or even told me, “Hey, look,

   you know, I’m going to need some more money,” or verbally or billed be,

   which he said he would do according to his own contract, I would have

   known. I would’ve been prepared. The reason for me showing up at his

   office was to write him a check for $35,000. We’re done. That’s it.




but ultimately concede a figure ranging from $179,000.00 - $250,000.00 (RR, Vol. 5 at 57,
lines 11-25; 58-65, lines 1-25; 66, lines 1-17). Trefethern brought Appellant to Appellee’s
office because the problems she was having in Judge Dibrell’s court and the belief the Judge,
her spouse’s lawyer were personal friends - she felt she was not getting a fair shake (supra,
RR, Vol. 6 at 157, lines 7-25). Appellant also expressed dissatisfaction with her current
lawyers (Beck), contemplated filing suit against former counsel Reitz over her fee, and made
it clear she had already hired an expert willing to testify against Reitz (Lillian Hardwick)
(RR., Vol. 7 at 18, lines 8-23). Appellee represented Appellant for some 700 days (RR., Vol.
7 at 10, lines 1-25).

The jury also heard the amount of fees Appellant had incurred and paid to her current trial
counsel, Christian, Smith & Jewell, LLP (RR., Vol. 11, at 72). Gary Jewell, an
administrative partner with the firm (id. at 74, lines 14-25), explained Appellant has incurred
and paid $50,638.50 on matters outside of the divorce (id. at 83, lines 4-10 (identified these
fees as matters started by Anthony Griffin in which his firm finalized). (id.) and $369,892.89
for work related to the dispute herein, Griffin v. Schlein, plus $27,541.06 in expenses (id. at
84, lines 6-25; 85, lines 1-15). Albeit, Appellant’s counsel discounted their bill in front of
the jury to $260,000.00, the jury heard the sum did not include the fees being incurred during
the trial itself (id. at 87, lines 1-25; 88 lines 1-8). This amount did not include the $27,541.06
sought in expenses (id.). This sum did not include any fees paid to local counsel, Stephen
Lewis, for his work and appearance at trial (id. at 119, lines 20-25; 120, lines 1-25; 125, lines
18-25; 126-129, lines 1-25; 151, lines 14-25; 152, lines 1-25; 153-154, lines 1-25; 155, lines
21-25; 156, lines 1-5).

Thus the fees paid to counsel, prior to Griffin’s hire, was between $174,000-194,000.00. The
amount paid to trial counsel, after Griffin terminated the relationship because of non-
payment was minimally $370,000.00, not including $276,541.06 paid in expenses and an
additional sum unknown paid to local counsel. The jury ultimately rejected Appellant’s
claim for fees against Griffin and awarded Griffin his entire fees and costs incurred,
discussed infra.



                                              8
RR., Vol. 4 at 113, lines 16-25.

       Appellant accused Cross-Appellant of backdating his bill – the contract was

dated August 5, 2011 (id. at 114, lines 11-20). Appellant contended she did not

receive the contract until four days after the divorce was final, which was October

28th (id.).4 Appellant said when travelled to Cross-Appellant’s office to write the

check for $35,000.00, she experienced a “bait and switch” by Cross-Appellant (id.

at 115, lines 1-4). When asked what a bait and switch was, Appellant explained,

“Well, you know, when you’re expecting to pay $35,000 - - which I don’t know

about you guys, but that’s a lot of money – that’s a ton of money for me being a

single parent especially. [$] 111,000 was astronomically mind blowing. I just – I

was just shocked. I threw up. I had to go in his bathroom and throw up.” Id. at

115, lines 5-11). Appellant then told the jury, “If the retainer exceeded $35,000, he

would have been billing me during the divorce process; and he didn’t do one single

bill. So, how would I know” (id. at 116, lines 19-25; 117, line 1).5

         Appellant admitted being required to paid $70,000.00, as interim attorney’s

fee, to her husband’s lawyer (id. at 117, lines 2-23), in addition to $40,000.00 as

temporary support for her spouse (id.). The jury also heard these payments were


4
    Four days after October 28, 2011, for purposes this record, would be November 1st. Appellee
    denied the assertion of backdating the bill, he testified the bill was mailed August 5, 2011
    and was not backdated (RR., Vol. 7 at 24, lines 15-25; 25, lines 1-21).
5
    No language in the contract between the parties required monthly billing.

                                               9
because Appellant was accused in the underlying divorce of hiding and wasting

community assets (RR., Vol. 6 at 161, lines 9-25; 162, lines 1-11 (spending money

on lawyers after injunction by the trial court); 168, lines 1-25; 169, lines 1-4

(attempt by spouse to appoint receiver to protect assets of the community estate,

including separate funds in attempt); RR., Vol. 7 at 28, lines 17-25; 29-32, lines 1-

25; 33, lines 1-7; 35, lines 14-25; 36, lines 1-11 (preparation for trial revelation

deletion from records, hiding funds, refusal to answer; issue of avoiding suborning

perjury prior to trial).   The following additional exchange in reflective of the

testimony at trial:

      [NORMA VENSO]

      Q. Okay. I’m not asking you about that yet. While the case was pending

           when Judge Dibrell ordered that you pay the interim attorney’s fees of

           Mr. Schlein, did you ask your lawyer to take any action about that?

      …

      [BARBARA SCHLEIN]

      A. Okay. I’m sorry, what is your question again?

      Q. The question is: After Judge Dibrell had ordered you to pay your

          husband’s lawyer while the case was still pending, did you ask Mr.

          Griffin what could be done about that?

      A. I don’t recall that conversation; and I don’t recall, you know, the divorce,



                                         10
   like you said, lasted a few years. I don’t recall the time frame, dollar

   amounts. That would be impossible. Remember, my divorce started in

   2008. We’re almost in 2015. That as so many years ago, I don’t know.

Q. Okay. Did you object to Anthony Griffin filing a mandamus in the Court

   of Appeals appealing that ruling that you - - appealing it during the time

   that the divorce was pending an extraordinary remedy, did you object to

   him trying to get you a remedy for that in the Court of Appeals?

A. I don’t recall. There was so much paperwork going on, I just don’t

   remember.

Q. So you don’t remember any mandamus being filed by Mr. Griffin and

    whether – it’s just out of your mind?

A. Part of it is I’m not an attorney and I don’t know all your legal jargon.

   And if you said was there paperwork filed, I’d say, “Yeah, there was lots

   of paperwork filed.” But what the paperwork that was filed was called,

   I’m not a legal expert; and I’m not going to pretend to be; and I just

   don’t know. I don’t know what he filed. He never had communication

   with me so bottom line is: I could never get ahold of the man.

             I never knew was going on. His status was horrible. No billing

   statements ever, not one during the divorce. I might have had an inkling

   of what was going on if I read it, so the answer is no.”


                                   11
Id. at 119, lines 10-25; 120, lines 1-25; 121, lines 1-3.

      Coupled with Appellant not remembering paperwork related to any

mandamus, or any pleadings filed with the courts on her behalf (id. at 121, lines

13-25; 122, lines 1-7), she summarily again informed the jury, “He never kept me

informed” (id. at 122, lines 7-23). Appellant testified Cross-Appellant kept her

client files, did not return the same (id. at 123, lines 1-5). The Court sustained

Cross-Appellant counsel’s objection. “I don’t recall getting much from him, if

anything. I could get ahold of him on the phone let alone get anything from him” –

was the consistent tenor of Appellant’s testimony (id. at 123, lines 12-14).

      When asked specifically how Cross-Appellant malpracticed her; Appellant

set out a number of allegations:
          
              He fired me and he would not “give me client file back and I

              absolutely was beside myself. Here I am fired. Now he wants – he’s

              got a new billing statement for me. I have no attorneys. I have no

              client file and my house is ready for foreclose on January 2 nd and

              we’re hitting the holidays.”6


   Id. at 132, lines 15-25; 133, lines 1-2 5; 134, lines 1-2 (further testimony that Appellee’s
   failure to tender her file was the cause of the loss of the house in foreclosure). With regards
   to the allegation of failure to return the client’s file, contrary testimony was also heard by the
   jury, including the testimony of Rita Westerman, Linda Griffin, and Appellee.

   Rita Westerman testified she was employed with Appellee for twenty-three years at the time
   of the trial and remembered Appellant as a client of the office (RR., Vol. 6 at 139, lines 4-25;
   140, lines 1-4). Westerman explained she was present in the office when Appellant came to

                                                12
           
               That Cross-Appellant should have filed an insurance claim on her

               house under construction at 1628 Enterprise (also same house which

               was foreclosed on by the County. There was testimony the house was

               hit by Hurricane Ike and uninsured at the time of the strike).7 When

               asked whether she was blaming Cross-Appellant for the foreclosure,

               Appellant ultimately explained, “I’m not placing blame, but I’m


    retrieve her client files (id. at 143, lines 1-25; 144, lines 1-25 (“there could have been 30 or
    40 boxes of files we had to give her back”).

    Linda Griffin identified herself as a relative of Appellee (sister). Griffin testified she worked
    part-time for Appellee and possessed a law degree, and prior to becoming a lawyer she
    worked as a court reporter in federal court (id. at 123, lines 1-25). She also testified she
    witnessed Schlein retrieve her files from the office (id. at 129, lines 8-25130, lines 1-16).

    Appellee Griffin testified the file was returned after preparing the file for pickup (RR., Vol. 7
    at 40, lines 10-25; 41, lines 1-25; 42, lines 1-21).
7
    Appellant argued that Appellee should have filed an insurance claim and identified the
    insurance in effect at the time as Builder’s Risk Insurance (RR., Vol. 5 at 27, lines 11-25).
    Appellant then postured she had “no idea if there was flood or wind. I wasn’t’ the builder so,
    you know, he paid for the policy so how would I know that? I don’t know. That’s what I’m
    saying. I don’t know what policies he had in effect at the time and that’s why Anthony got
    this letter to find out, to subpoena them.” Id. at 41, lines 4-13. Appellant then admitted he
    informed Appellant there builder failed to have wind and flood insurance during the
    hurricane, “Most likely told him, but did I know? No. It’s, like I said, I most likely. I don’t
    know. I wasn’t the builder.” Id. at 42, lines 6-10. Appellant also confirmed her previously
    informing Appellant that the wind and flood insurance expired May 26, 2007 (prior to Ike’s
    landing of September 2008) (id. at 43, lines 6-25; 44, lines 1-21; 45, lines 1-22).

    Appellee explained that a lawsuit was brought against the builder for not having insurance,
    per the client’s request. There was no wind and flood insurance at the time the Hurricane hit
    and the Enterprise home suffered substantial damages (RR., Vol. 7 at 11, lines 9-25).
    Appellee testified he initially learned there was no insurance from Appellant; he was
    ultimately tendered documents affirming as much. Id. Appellee said notion of filing a claim
    when no insurance was in existence did not make sense (id. at 12, lines 18-25; 13, lines 1-25;
    14, line 1).



                                                 13
                saying he contributed to issues at hand and he knows what those

                issues are” (RR., Vol. 5 at 97, lines 16-25; 98, lines 1-25; 99, lines 1-

                22).8 Appellant testified Cross-Appellant should be responsible to her

                for the sum of $700,000.009 on this claim because “I felt like he

                should have made a claim.” When counsel inquired whether this

                meant the Builder’s Risk Insurance, Appellant answered in context of

                a possible wish, “[o]n whatever insurance policies that he was going

                to go get from the custodian of records at the insurance company” (id.

                at 52, lines 11-25; 53, lines 1-11).10


8
     Later in her testimony, Appellant changed her testimony and contended Cross-Appellant
     advised her not to pay the taxes on the house, “therefore, due to my lawyer’s advice, it did
     foreclose” (RR., Vol. 6 at 13, lines 16-25; 14, lines 1-5). Appellant retreated from this
     position when her documents revealed she requested Cross-Appellant to negotiate a payment
     plan on the taxes, which Cross-Appellant accomplished (id. at 14, lines 18-25; 15, lines 1-25;
     16, lines 1-25; 17, lines 1-24).
9
     When asked to quantify this sum, Appellant explained the sum would be the difference of
     what she got at the foreclosure sale (received $760,000.00) of the property and the sum
     $1,550,000. Appellant stood by the $1,550,000.00 even though her own appraiser valued the
     property, at most, at $724,000.00 – all because of the uninsured storm damage (RR., Vol., 5
     at 94, lines 9-25; 95, lines 1-25; 96, lines 1-18).

     Appellant then tied herself in a proverbial knot, explaining, “if the builder negligence claim
     had been made, which would make it $1,550,000.00 and you take the difference between that
     number and the $760,000, that is a number that you should have been received for that house,
     not the $760,000 dollar loss” (id. at 96, lines 13-25). Appellant admitted a builder’s
     negligence lawsuit was filed, but said she didn’t consent to the filing of the claim (id. at 96,
     lines 19-23), that he wants to hold Cross-Appellant Griffin liable for the builder’s negligence
     (id. at 96, lines 24-25; 97, line 3), even though she testified she objected to him filing the
     builder’s negligence lawsuit (id. at 97, lines 2-4).
10
     In trying to obtain a handle on the malpractice claim, Cross-Appellant’s counsel had the
     following exchange with Appellant. The discussion related to a letter/email drafted by

                                                 14
            
                That Cross-Appellant failed to keep her informed and undertook

                actions willy-nilly. The notion Appellant was not kept informed took

                the form of denying receiving any of the multitude of letters, emails,

                etcetera, keeping her informed (RR., Vol. 5 at 115, lines 4-25; 116-



   Appellant to Cross-Appellant.

       [NORMA VENSO]

       Q.       Have I offered Plaintiff’s Exhibit 75? Let me show you the part of this letter
                when you are talking about the way Bill De La Garza is treating your lawyer - -


   [BARBARA SCHLEIN]

       A.       Ma’am, can I get a copy of that?
       Q.       Does No. 2 start with, “Who’s in control of this court, Bill or Judge Roberts?”
       A.       Yes.
       Q.       “Just read Bill’s letter,” which you obviously had; is that correct?
       A.       Yes.
       Q.        “His language to you is highly condescending and controlling and offensive. Bill
                makes you look bad to this judge ever[y] chance he gets. You should be offended
                that Mr. De La Garza treats you with such disrespect and unprofessionalism. I’m
                appalled and offended that he does this to you because you [,] Anthony are the
                good guys in this horrible situation that Bill De La Garza has created and
                continues to create,” but you’ve changed your mind about who the good guy is in
                this case and now you’re asking that Anthony Griffin pay the $700,000 that you
                say you lost on your house at Enterprise? Are you asking for $700,000 from Mr.
                Griffin because you think he’s malpracticed you?
       A.       Yes.
       Q.       Do you want to explain that again, how he’s malpracticed you? You were
                looking confused.
       A.       Well, I was just trying to make the correlation.
       …
       Q.       (By Ms. Venso) When did you change your mind about Anthony Griffin
                being the good guy.
       A.       I never changed my mind. Anthony Griffin fired me.

RR, Vol. 5 at 89, lines 15-25; 90, lines 1-24; emphasis added.



                                                15
                118, lines 1-25; 119, lines 1-12; 120, lines 7-25; 121-126, lines 1-25;

                127, lines 1-4).11


11
     During Cross-Appellant’s testimony, Plaintiff’s Exhibits 85 through 117 were admitted into
     evidence. All such exhibits were identified by Cross-Appellant as letters, emails and
     documents directed to Appellant keeping her informed with regards to her case (RR., Vol. 8
     at 14, lines 10-25; 15-31, lines 1-25; 32, lines 1-21). In addition, Plaintiff’s Exhibits 118-136
     were admitted reflecting the same type of information (id. at 32, lines 22-25; 33-42, lines 1-
     25; 43, lines 1-9).

     Cross-Appellant testified the Appellant was not dissatisfied with his services and that the
     dispute arose when he refused her offer of her tile and a reduction of his fees and costs. Prior
     to coming into his office in October, Appellant had drafted a document apologizing for
     Cross-Appellant not being paid. The document reads in part:

                “I’m sorry you haven’t been paid. I thank God every day that you and your staff
                have stayed with Austin and I. You are obviously passionate about your job.
                Now I know why people say really good things about you that they do. I wish
                everyone could read this e-mail and see things how they really are in this case.
                The Court is bankrupting us, even though I have separate property money to live
                on.”

     Id. at 46, lines 2-125; 47, lines 1-18; see email at RR., Vol. 15, Plaintiff’s Exhibit 83.

     Cross-Appellant testified Appellant prevailed in the divorce. The community assets were
     split 50/50%, with Appellant received the community home (her request to the Court), with a
     reimbursement order to her spouse of $371,000 (approximately $150,000 less than his share
     contributed to house) (RR., Vol. 7 at 34, lines 12-22). Albeit the jury found against Appellant
     her cruelty, adultery and abuse claims (id. at 34, lines 20-25; 35, lines 1-10), the 50/50% split
     and awarding of home to Appellant still took place. In addition, Appellant was able to avoid
     the payment of attorneys fee to the opposing lawyer ($450,000 claim), reimbursement to her
     former spouse, contribution to the community estate ($400,000 claim), and avoiding the
     claim of her having possession of his separate property ($300,000 claim) (RR., Vol. 6, 171,
     24-25; 172, lines 1-10). Appellant also received her separate property funds ($600,000 -
     $800,000.00) (id. at 172, lines 15-25). Appellant expressed happiness with the trial, but
     disappointment with her not receiving funds on the civil tort portions of the verdict in the
     divorce. Appellant was also happy she received the Enterprise home, in that it is something
     she requested of the trial court (id. at 173, lines 1-25; 174, lines 1-25; 175, lines 1-25).




                                                   16
      Appellant   also   contended    Cross-Appellant    breached    his   fiduciary

responsibility to her by revealing things she told him in confidence (RR., Vol. 6 at

6, lines 9-13). This claim related to Appellant’s contention that Cross-Appellant

placed in his original pleadings filed with the Court matters she contends should

have been confidential conversations – even though in the same breath she

contends the confidential conversation never took place (id. at 6, lines 14-25; 7,

lines 1-25). Appellant also contended Cross-Appellant defamed her by placing

information in the lawsuit claiming she had taken and hidden evidence from the

other side in the divorce proceeding - Appellant contended this too as an event

never occurred. Id.

      Appellant admitted Cross-Appellant never tried to bill her for any of the

other work he performed for her (RR., Vol. 6, at 30, lines 13-20). And with

regards to the allegation by Appellant she paid Cross-Appellant in property,

Appellant contended the tile was worth $57,000 and “he had kept it and he’s only

due and owing $35,000. So the difference is almost $22,000 that he owes me” (id.

at 33, lines 10-17). Appellant admitted she paid $20,301.88 for the tile (id. at 36,

lines 1-18).

      The jury heard testimony that the valuation of the tile also ultimately was

problematic.   The tile’s value was tendered by a Paulette Varner.           Varner

identified herself as an interior designer by profession.     Varner testified she



                                        17
attended South Dakota State University in interior design and ultimately finished

her degree in interior design at North Dakota State University [sic] (RR., Vol. 11 at

42, lines 8-25; 43, lines 1-5). Varner is the owner of Vstudios, located in the

Woodlands area (id. at 43, lines 19-21). She described the tile as venato, from

Peru (id. at 46, lines 7-25; 47, lines 1-19). Varner appraised the tile at $56,338.85

(id. at 52, lines 11-13; see report at Defendant’s Exhibit 7); testifying the tile has

appreciated in value (id. at 55, lines 14-25; 56, lines 1-19), because of its rare

nature (id.). When asked about a sample tile labeled Defendant’s Exhibit 82,

Varner testified she didn’t know where the tile came from, only it was given to her

by Schlein and her lawyers (id. at 59, lines 13-25). It was her assumption the tile

was taken from the Schlein home prior to the tile going to the warehouse (id. at 60,

lines 1-6). When presented with Plaintiff’s Exhibit 150, a tile from the warehouse,

Varner stated the tile was not vernato (id. at 60, lines 7-25). The jury also heard,

the other products/items ordered for the Enterprise home ended up being

fraudulent/fake (concrete pilings or columns instead of the travertine columns

being delivered) (id. at 62, lines 8-25; 63, lines 1-19).

      Varner’s resume reflected she possessed a master’s of architecture from the

University of Texas; she said he as a student in 1981, 1982 (id. at 58, lines 9-11). .

She testified it took her a year and a half to complete the degree (id. at 57, lines 2-

18) and that the degree was obtained in her maiden name, Ellington. Id. Varner


                                           18
stated she is not a license architect, “I passed every section except for structures the

first time, and the structures portion I took five times and just didn’t pass it” (id. at

58, lines 1-8). After Varner’s credential were checked, it was determined she

never attended the University of Texas (see Plaintiff’s Exhibit 153; RR., Vol. 12 at

117, lines 18-25; 118, lines 1-25; 119, lines 1-22). The witness’ bold face

misstatement of her qualifications is something the jury was free to consider.

        To support her claims against Cross-Appellant, Appellant called Lillian

Hardwick.       Hardwick testified she has co-authored a treatise on attorney judicial

ethics in 2002 (RR., Vol. 10 at 120, lines 6-25; 121, 1-4). Hardwick explained she

is also involved presenting at continuing legal education courses, participation in

State Bar Committees (id. at 121, lines 1-25) and advising lawyers or law firms on

the disciplinary rules (id. at 122, lines 2-12).

        Hardwick stated she was hired by Appellant to figure out which of the

attorney’s fiduciary duties might have been violated by Cross-Appellant (id. at

122, lines 13-20). Hardwick expressed a view Cross-Appellant violated his duty of

loyalty,12 candor, and confidentiality13 (id. at 123, lines 9-21). In this context,


12
     With regards to the duty of loyalty, the witness explained as follows:

        My opinion is that he breached the duty of loyalty in that this agreement, whether taken
        individually or together, is unconscionable in that it is overreaching and not clear; and
        that is at the outset of the relationship, the lawyer, of course, knows much more about
        what’s going on and what will be going on than the client does. So it’s the lawyer’s
        obligation to set out what’s going to happen and particularly how the lawyer is going to
        be paid in a way that is clear to the client” (id. at 126, lines 1-16).

                                                19
Hardwick express a view the sending of only one invoice constituted a breach of

fiduciary duty (id. at 132, lines 5-25), a view that nothing in the contract allowed

for Cross-Appellant to bill for copy cost (id. at 133, lines 7-23; 134, line 1 (breach

of fiduciary duty to not disclose and then charge for it) ). Hardwick also criticized

Cross-Appellant saying he breached the duty of confidentiality (id. at 137, lines 7-

25). This opinion related to the Appellant’s contention her file was not turned over

to her and the retention of the tile (id. at 137, lines 8-25; 138, lines 1-23). At no

point did Appellant submit a question to the jury as to who owned the tile.

        On cross examination, Hardwick affirmed she had previously been hired by

Schlein in the Reitz representation of Schlein (id. at 141, lines 7-25). Hardwick

testified she never talked to Schlein, only to her lawyers and documents provided



     Hardwick explained her problem with the agreement related to the language identifying
     stating “all matters concerning this divorce,” whether they were civil issues, tort issues,
     whatever (id. at 127, lines 2-17). Hardwick expressed the opinion that “it gives the lawyer an
     opportunity later on to do exactly what I said, to interpret it to his or her advantage down the
     road (id. at 127, lines 21-25).

     Cross-Appellant testified his bill was segregated and the only matter billed was the divorce
     matter and all other matters performed by Cross-Appellant were not billed (RR., Vol. 8 at 61,
     lines 22-25; 62-64, lines 1-25). Even in this context, Appellant’s counsel incorrectly held out
     to the expert, “Mr. Griffin has testified that there is no limit as to what his fees might be that
     Ms. Schlein has to pay under this agreement” (id. at 129, lines 18-25; 130, 1-4). The expert
     then responded “Yes, because by no means do I think this agreement communicates that. So
     if that’s what he intended to communicate, then he has breached the duty of communication,
     as well as created an overreaching or unconscionable agreement that does not clearly convey
     that at the outset.” Id.
13
     This was explained as “Mr. Griffin revealed in a pleading, which is public things that Ms.
     Schlein told him in attorney-client communications; and they are set out there now for all the
     world to see” (id. at 159, lines 10-15).

                                                  20
by the lawyers (id. 142, lines 1-25). “We talked about what I would testify which

is breach of fiduciary duty” (id. at 142, lines 19-24). Hardwick admitted never

sitting first chair at trial, never handling a divorce, and never having done free

legal work for someone under order not to spend any more money on attorney’s

fee (id. at 143, lines 20-25; 144, lines 1-4).        The witness admitted she was

expressing an opinion with regards to Cross-Appellant’s standard of care in a

practice-specific area of divorce, “I am not a divorce lawyer; and I’m not here to

testify about the standard of care or to give it for you” (id. at 146, lines 2-13).

      When asked about the home not having insurance, Hardwick stated she

recalled the discussion, “I’m not sure that I know the difference between them” (id.

at 147, lines 12-25; 148, lines 1-6). When asked whether Cross-Appellant violated

his duty by failing to file a builder’s risk claim on behalf of Ms. Schlein, the

witness backed away again, “Whatever he did or did not do, I’m saying it was his

duty to explain to her what he was doing and why he was doing it or why he was

not doing it” (id. at 148, lines 9-21). The expert however is clear in imposing on

Cross-Appellant a standard of requiring him to pursue the charges and objectives

or Appellant, or an explanation of why not (id. at 149, lines 10-25; 150, lines 1-2).

      [NORMA VENSO]

      Q.     But if she did get an explanation, then there was no breach of

              fiduciary duty?



                                           21
       [LILLIAN HARDWICK]

       A.     Assuming the explanation classified that for her, yes; and it’s for the

              jury to decide whether that explanation was sufficient.

Id. at 150, lines 3-7.

       Hardwick expressed no opinion whether the house being foreclosed was

Cross-Appellant fault (id. at 151, lines 8-11). She expressed no opinion on the

email from Schlein expressing satisfaction with Griffin’s work and Schlein regrets

Griffin had not been paid (id. at 154, lines 1-6), nor the work performed by Griffin

with regards to her taxes and working out an arrangement (id. at 154, lines 7-13).

Hardwick also expressed no opinion whether there was wind or flood insurance

(id. at 155, lines 1-4).

       [NORMA VENSO]

       Q. So you’re not here saying there was a viable insurance claim. You’re

            just saying that if what the other side tells you is true, that Mr. Griffin

            didn’t explain to her enough of why an insurance claim wasn’t file?

       [LILLIAN HARDWICK]

       A. Yes.

       Q. And you’re calling that a breach of fiduciary duty?

       A. Yes.

       Q. The failure to explain.



                                           22
        A. Yes, it’s the breach of duty of loyalty and of communication.

        Q. Would you agree with me that in a legal malpractice claim, it is the

            burden to prove that there would have been a different result but for the

            negligence of the lawyer?

        A. It depends on how you define legal malpractice. I think you’re talking

            about negligence cases.


        Q. Yes, I am.

        A. I’m here testifying about breach of fiduciary duty.

Id. at 156, lines 4-25.

        There was a series of witnesses who were called by Cross-Appellant after

his character was moved into evidence, over objection.14 Those witnesses included




14
        During Cross-Appellant’s testimony, the Court allowed Appellant to inquire of Cros-
     Appellant sanctions by State Bar of Texas, regarding client complaints. With respect to a
     client named Guzman (RR., Vol. 10, at 55, lines 15-25; 56, lines 1-25; 57, lines 1-25
     (testimony entered in agreement with State Bar on sanction, probated suspension). Likewise
     in matter involving a client named Cusick, Cross-Appellant agreed to a public reprimand,
     voluntarily sent a letter of apology to Mr. Cusick (id. at 59, lines 7-25; 60, lines 1-25; 61,
     lines 10-24). And finally, in regards to a client named Vereen, a judgment of public
     reprimand for neglecting the client’s matter (id. at 61, lines 23-25; 62, lines 1-25; 63, lines 1-
     25). Cross-Appellant explained his office was affected by Hurricane Ike, receiving 4 to 5
     feet of water, destroying one-half of open and pending files (lost or destroy) (id. at 68, lines
     13-25; 69, lines 1-15). With regards to large litigation files., stored in a warehouse, the
     warehouse received eight (8) feet of water, with the destruction of one-half of those files
     destroyed (id.).



                                                  23
Michael Landolt,15 Helen Truscott,16 Mary Luna,17 Joanna Mora,18 and Lloyd

Gilliam.19




15
      Landolt explained he is a current client of Cross-Appellant. Landolt is a wealth financial
     manager by profession, his wife the owner of an Anheuser-Busch distributor (RR., Vol. 162,
     lines 14-25). Landolt stated Cross-Appellant represents he and his wife in a suit against their
     homeowner’s association. Landolt testified he was kept well-informed by Griffin and had no
     problem finding out about his case (id. 10 at 162, lines 14-25; 163, lines 1-22). Landolt paid
     an initial retainer of $15,000.00 and ultimately a fee of $70,000.00 (id. at 163, lines 22-25;
     164, lines 1-11).
16
     Truscott identified herself as a practicing attorney, having been licensed since November,
     1980 (RR., Vol. 11 at 7, lines 19-25). Truscott is a graduate of the University of Texas
     School of Law, graduating in 1980 (id. at 8, lines 23-25; 9, lines 1-2), a former assistant
     district attorney in the Galveston County District Attorney’s Office (id. at 9, lines 3-15) and
     currently has a practice which concentrates on family law (id. at 8, lines 5-6). Truscott
     affirmed she appeared at the deposition of Barbara Schlein at a time Cross-Appellant was
     required to be elsewhere (id. at 9, lines 16-25; 10, lines 1-23).
17
     Mary Alice Luna identified herself as a former client of Cross-Appellant. Luna is a retired
     Registered Nurse, a bachelor’s degree in nursing from the University of Texas, a Master’s
     degree from HBU, a teaching certificate from Prairie View A & M (RR., Vol. 11 at 13, lines
     1-16). Luna testified she hired Cross-Appellant in a real estate dispute. He testified with
     regards to Griffin’s character (good) and his work as a lawyer (kept informed) (id. at 13, lines
     19-25; 14, lines 1-25; 15, lines 1-3).
18
      Joanna Mora identified herself as a former client of Cross-Appellant. Mora hired Griffin
     because of his reputation and after her mother read an article in Texas Monthly (RR., Vol. 11
     at 154, lines 22-25; 16, lines 1-11). Mora hired Cross-Appellant in a divorce matter, after he
     explained he was not a family lawyer (id. at 16, lines 11-19). Griffin explained he could
     refer her to other lawyer, but she decided to hire because of her husband being in law
     enforcement (id. at 16, lines 15-25; 17, lines 1-25). She, Mora, too testified with regards to
     Cross-Appellant’s character (kept informed and reliable) (id. at 18, lines 10-21).
19
       Lloyd Gilliam identified himself as a current client of Cross-Appellant. Gilliam is a self-
     employed in the oil industry and hired Cross-Appellant in a nuisance case along with 28
     other families in the Santa Fe, Texas area (RR., Vol. 27, lines 23-25; 28, lines 1-21). Gilliam
     explained the case is at the Houston Court of Appeals for the second time (id. at 29, lines 4-
     25) and attested to Cross-Appellant’s character even in cases where politics may intrude in
     the case (id.). He too testified Cross-Appellant has kept him informed and to Cross-
     Appellant’s good character (id. at 30, lines 1-25; 31, lines 1-18).

                                                 24
      After the admission of character related evidence, Cross-Appellant testified

with regards to his own character, explaining he was licensed on May 15, 1978.

Cross-Appellant identified his previous work included serving as General Counsel

for both the Texas Civil Liberties Union and the NAACP, both on a statewide

basis. Cross-Appellant has served as an adjunct professor at the University of

Houston Law Center, teaching both civil and criminal trial advocacy (id. at 79,

lines 4-25). Griffin explained he has published in both legal and non-legal circles

(id. at 80, lines 8-20), and was the first recipient of the Justice William Brennan

Award for his representation of the Texas Knight of the Ku Klux Klan (id. at 80,

lines 8-25; 81, lines 1-25; 82, lines 1-9). Cross-Appellant testified his trial and

appellate work was throughout the country (id. at 82, lines 9-15); in the Schlein

matter he filed two mandamuses with the court of appeal (id.) - All in an attempt to

make the trial process fairer for the client.

      Cross-Appellant explained his practice and history created circumstances

where at times his enemies became his friends, or his friends became his enemies -

depending of the case. He testified that divorces were not a routine part of his

practice, an election he made because, “[t]hey’re emotionally too hard (id. at 83,

lines 4-25; 84, line 1; 84, lines 13-25).

      Cross-Appellant billed at $300.00 an hour at 352.5 hours, for a bill in the

amount of $105,750.00. The copy costs was $18,000.00, the expenses on behalf of


                                            25
the client was $4,399.29 for a total of $128,149.29 (id. at 85, lines 14-25; 86, lines

1-6).

        Genevieve McGarvey, a licensed lawyer, testified on behalf of Cross-

Appellant. McGarvey testified she has known Cross-Appellant since 1991 or 1992

(RR., Vol. 10 at 94, lines 12-25). McGarvey explained her previous career was as

a social worker and peace officer. When she worked as a peace officer she was

employed by the University of Texas System and rose to the rank of Sergeant (id.

at 95, lines 1-9). McGarvey is a partner in the firm of McLeod, Alexander located

in Galveston, Texas (id. at 96, lines 13-15); some twenty five percent of her

practice is family (id. at 97, lines 20-25).

        McGarvey testified she knew Cross-Appellant’s reputation in the

community, having met Cross-Appellant during litigation styled [Arceaneaux] v.

City of Galveston (voting rights dispute) (id. at 98, lines 17-25). McGarvey

expressed the view the hourly rate and fee of Cross-Appellant was reasonable and

necessary (id. at 100, lines 11-25; 101, lines 1-25; 102, lines 17-25; 103, lines 1-

18).    On cross-examination she reaffirmed her view of Cross-Appellant’s good

character of Cross-Appellant (id. at 1054, lines 10-18; 106, lines 1-25; 107, lines 1-

25) (expressing the same view even in light of the recent adverse events).

        The last witness who testified in Cross-Appellant’s case-in-chief was his

counsel, Norma Venso. Venso identified herself as being licensed February 1978,


                                           26
after graduating from the University of Texas Law School in December 1977 (RR.,

Vol. 10 at 110, lines 17-25). Venso served as a trial lawyer for 17 years prior to

being elected to the 56th Judicial District Court, Galveston County, Texas (id.).

She served as a judge from 1997 to 2004 (id. at 111, lines 1-4).

       Venso’s rate charged was $425.00 an hour.                She testified the fee was

reasonable and necessary in the Houston Galveston legal market (id. at 111, lines

5-13). Her hours billed was 29.5 hours for fees in the amount of $29,962.50

(testifying she cut her hours half). She continued to explain, “The hundred hours

that had been in my report, the first hundred hours have been reduced to 70.5 and

so adding to that another 69.5; and by the way, we estimated the trial work to be 40

hours, which is way less than what it’s actually turned out to be; but that comes up

to a total of $59,500.00 (id. at 112, lines 6-24).

       The trial court granted Cross-Appellant’s requested dismissal on the claim

directed at the defamation claim (RR., Vol. 12 at 104, line 25; 105-109, lines 1-25;

110, lines 1-16). After the charge conference, the Appellant elected not to submit

any questions on the malpractice allegations (RR., Vol. 12 at 103, line 25; 104, line

1-25). The Questions submitted by the Court and the jury answers are set out

below.20    The jury found Barbara Schlein breached the contract in question


20
  After the presentation of evidence and arguments of counsel, the Court presented the following
questions to the jury and the jury answered in the manner, to-wit:



                                              27
                                    QUESTION 1

Did Barbara Schlein fail to comply with the terms of the agreement for legal services
dated November 3, 2009, between her and Anthony P. Griffin d/b/a A Griffin Lawyers?

          [Yes]
Answer: _______________


                                    QUESTION 2

Did Anthony Griffin fail to comply with the agreement for legal services dated
November 3, 2009?

       …

         [No]
Answer: _______________

If you answered “Yes” to both Question 1 and Question 2, then answer the following
question. Otherwise, do not answer the following question.

                                    QUESTION 3

Who failed to comply with the Agreement first?

         [N/A]
Answer: _______________

                                    QUESTION 4

Was Barbara Schlein’s failure to comply excused?

       …

         [No]
Answer: _______________

If you answered “Yes” to Question 1, then answer the following question. Otherwise, do
not answer the following question.

                                    QUESTION 5

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Anthony P. Griffin d/b/a A Griffin Lawyers, for his damages, if any, that resulted from

                                      28
such failure to comply?

       …

       a.    Attorneys’ fee incurred in the representation of Barbara Schlein in
             her divorce from Robert Schlein?

       ANSWER: [$105,750.00]

       b.   Costs incurred by Anthony P. Griffin in the representation of Barbara
            Schlein in her divorce from Robert Schlein.

       ANSWER: [$22,399.29]

If you have answered “Yes” to Question 2, then answer the following question.
Otherwise, do not answer the following question.

                                      QUESTION 6

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Barbara Schlein for her damages, if any, that resulted from such failure to comply?

       …

       a. The reasonable and necessary attorney’s fees and costs incurred to complete
          the divorce matter started but not finished by Anthony Griffin.

       ANSWER: [N/A]

       b. The reasonable and necessary attorney’s fees and costs incurred to complete
          the other matters started but not finished by Anthony P. Griffin.

       ANSWER: [N/A]

                                   QUESTION NO. 7

What is a reasonable fee for the necessary services of Anthony P. Griffin’s attorney in
this case, stated in dollars and cents?

       …

      a. For preparation and trial.
              [$62,866.00]
   Answer: ____________________.



                                        29
      b. For an appeal to the Court of Appeals.
              [$15,000.00]
   Answer: ____________________.

       c. For an appeal to the Supreme Court of Texas
               [$25,000.00]
   Answer: ____________________.

If you answered “Yes” to Question 2, then answer the following question. Otherwise, do
not answer the following question.

                                   QUESTION NO. 8

What is a reasonable fee for the necessary services of Barbara Schlein’s attorney in this
case, stated in dollars and cents?

       …

       a. For pre-trial preparation and representation in the trial court.

                       [N/A]
       Answer:        ____________________.

       b. For representation through the Court of Appeals.

                      [N/A]
       Answer:        ____________________.

       c. For representation [through] the petition for review stage in the Supreme
          Court of Texas.

                       [N/A]
       Answer:        ____________________.

       d. For representation in the merits briefing stage in the Supreme Court of Texas.
                     [N/A]
       Answer:       ____________________

       e. For representation through oral argument and the completion of proceedings
          in the Supreme Court of Texas.

                      [N/A]
       Answer:        ____________________

                               QUESTION NO. 9



                                        30
       Did Barbara Schlein substantially rely on her detriment on Anthony Griffin’s promise, if
       any, and was this reliance foreseeable by Anthony Griffin?

              …

       Answer:       [No]

If you have answered “Yes” to Question 9, then answer the following question. Otherwise, do
not answer the following question.

                                       QUESTION 10

       What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
       Barbara Schlein for her damages, if any, that resulted from such her reliance on Anthony
       Griffin’s promise?

              …

              b. The reasonable and necessary attorney’s fees and costs incurred to
                 complete the divorce matter started but not finished by Anthony
                 Griffin.

              Answer: [N/A]20

              c. The reasonable and necessary attorney’s fees and costs incurred to
              complete the other matters started but not finished by Anthony P. Griffin.

              Answer: [N/A]

                                           QUESTION 11

       Did Anthony Griffin fail to comply with his fiduciary duty to Barbara Schlein?

       As Barbara Schlein’s attorney, Anthony Griffin, owed Barbara Schlein a fiduciary duty.
       To prove Anthony Griffin failed to comply with his fiduciary duty, Barbara Schlein must
       show:

              a. the transaction and action in question were not fair and equitable to Barbara
                 Schlein; or
              b. Anthony Griffin did not make reasonable use of the confidences that Barbara
                 Schlein placed in him; or
              c. Anthony Griffin failed to act in the utmost good faith or exercise the most
                 scrupulous honesty toward Barbara Schlein; or
              d. Anthony Griffin placed his own interests before Barbara Schlein’s, used the
                 advantage of his position to gain a benefit for himself at the expense of

                                              31
          Barbara Schlein, or place himself in a position where his self-interest might
          conflict with his obligations as a fiduciary; or
       e. Anthony Griffin failed to fully and fairly disclose all important information to
          Barbara Schlein concerning the transaction.

Answer:        No.

If you answer “Yes” to Question 11, then answer the following question. Otherwise, do
not answer the following question

                                     QUESTION 12

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Barbara Schlein for her damages, if any, that were proximately caused by such conduct?

       …

       a. The amount, if any, that Barbara Schlein paid in excess to Anthony Griffin for
          legal services promised by Anthony Griffin.

                       [N/A]
       Answer:         ____________________


       b. the amount of reasonable and necessary attorney’s fees incurred as a result of
          Barbara Schlein having to hire new attorneys to complete the divorce matter.

                       [N/A]
       Answer:         ____________________

       c. the amount of reasonable and necessary attorney’s fee incurred as a result of
          Barbara Schlein having to hire new attorneys to complete the other matters
          started by Anthony Griffin.

                       [N/A]
       Answer:         ____________________


       d.    the difference between the sales price of Barbara Schlein’s house located at
            1628 Enterprise Avenue at foreclosure and the value of the house if repairs
            had been made because of the filing of an insurance claim.

                       [N/A]
       Answer:         ____________________



                                       32
       e. mental anguish sustained from November 3, 2009 to date.

                      [N/A]

       Answer:        ____________________

                                 QUESTION 13

Did Anthony Griffin commit fraud against Barbara Schlein?

Fraud occurs when:

       a. a party makes a materials misrepresentation, and
       b. the misrepresentation is made with knowledge of its falsity or made recklessly
          without any knowledge of the truth and as a positive assertion, and
       c. the misrepresentation is made with the intention that it should be acted on by
          the other party, and
       d. the other party relies on the misrepresentation and thereby suffers injury; or
       e. a party fails to disclose a material fact within the knowledge of that party, and
       f. the party knows that the other party is ignorant of the fact and does not have
          an equal opportunity to discovery the truth, and
       g. the party intends to induce the other party to take some action by failure to
          disclose the fact, and
       h. the other party suffers injury as a result of acting without knowledge of the
          undisclosed fact.

“Misrepresentation” means:
      a. A false statement of fact; or
      b. A promise of future performance made with an intent, at the time the promise
          was made, not to perform as promised; or
      c. A statement of opinion based on a false statement of fact; or
      d. A statement of opinion that the maker knows to be false.

Answer: No.

                              QUESTION 14 & 1520

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Barbara Schlein for her damages, if any, that resulted from such fraud?

       …

       a. The amount, if any, that Barbara Schlein paid in excess to Anthony Griffin for
          legal services promised by Anthony Griffin.



                                       33
                             [N/A]
               Answer:       ____________________


       b. the amount of reasonable and necessary attorney’s fees incurred as a result of
          Barbara Schlein having to hire new attorneys to complete the divorce matter.

                             [N/A]
               Answer:       ____________________

       c. the amount of reasonable and necessary attorney’s fee incurred as a result of
          Barbara Schlein having to hire new attorneys to complete the other matters
          started by Anthony Griffin.

                             [N/A]
               Answer:       ____________________

       d. mental anguish sustained from November 3, 2009 to date.

                             [N/A]
               Answer:       ____________________


                              QUESTION NO. 16

Did you find by clear and convincing evidence that the harm to Barbara Schlein resulted
from malice or fraud?

       …


Answer: [N/A]

                              QUESTION NO. 17

Did Anthony Griffin engage in any false, misleading, or deceptive act or practice that
Barbara Schlein relied on to her detriment and that was a producing cause of damages to
Barbara Schlein?

       …

Answer: [No]

                              QUESTION NO. 18



                                       34
Did Anthony Griffin engage in any unconscionable action or course of action that was a
producing cause of damages to Barbara Schlein?

       “Producing cause” means a cause that was a substantial factor in bringing about
       the damages, if any, and without which the damages would not have occurred.
       There may be more than one producing cause.

       An “unconscionable action” or “course of action” is an act or practice that, to a
       customer’s detriment, takes advantage of the lack of knowledge, ability,
       experience, or capacity of the consumer to a grossly unfair degree.

Answer: [Yes]

If you answer “Yes” to Question 17 or Question 18, then answer the following question.
Otherwise, do not answer the following question.

                              QUESTION NO. 19

Did Anthony Griffin engage in any such conduct knowingly or intentionally?

       …

Answer: [Yes]

                              QUESTION NO. 20

What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Barbara Schlein for her damages, if any, that resulted from such conduct?

       …

       a. The amount, if any, that Barbara Schlein paid in excess to Anthony Griffin for
          legal services promised by Anthony Griffin.

                             [0]
              Answer:        ____________________

       b. the amount of reasonable and necessary attorney’s fees incurred as a result of
          Barbara Schlein having to hire new attorneys to complete the divorce matter.

                             [0]
              Answer:        ____________________



                                       35
       c. the amount of reasonable and necessary attorney’s fee incurred as a result of
          Barbara Schlein having to hire new attorneys to complete the other matters
          started by Anthony Griffin.

                              [0]
               Answer:        ____________________

       d. mental anguish sustained from November 3, 2009 to date.

                              [0]
               Answer:        ____________________


                                   QUESTION NO. 21

What sum of money, if any, in addition to actual damages, should be awarded to Barbara
Schlein against Anthony Griffin because Anthony Griffin’s conduct was committed
knowingly or intentionally?

       …

Answer: [$5,000.00]

If you answered “Yes” to Question 17, then answer the following question. Otherwise, do
not answer the following question.

                               QUESTION NO. 22

What is a reasonable fee for the necessary services of Barbara Schlein’s attorney in this
case, stated in dollars and cents?

       …

       a. For pre-trial preparation and representation in the trial court.

                               [N/A]
               Answer:        ____________________.

       b. For representation through the Court of Appeals.

                              [N/A]
               Answer:        ____________________.

       e. For representation [through] the petition for review stage in the
          Supreme Court of Texas.

                                        36
(Questions 1 and 4). The final judgment finding entered by the trial court reflected

the jury’s answers. The jury also found that Appellant’s breach caused damages in

the amount of one hundred and five thousand seven hundred and fifty dollars

($105,750.00) (for the reasonable attorney’s fee incurred in the representation of

Barbara Schlein), twenty two thousand three hundred and ninety nine dollars and

29/00 cents ($22,399.29) (for the costs expended on Barbara Schlein’s behalf), and

reasonable attorneys’ fees incurred due to such breach in the amount of sixty two

thousand eight hundred and sixty six dollars for the work up to trial, fifteen

thousand dollars ($15,000.00) if the case is appealed to the Court of Appeals; and

twenty five thousand dollars ($25,000.00) if the case is appealed to the Supreme

Court (representing the attorney’s fee incurred in seeking to enforce the subject

breach) (Questions 5-8).


                                     [N/A]
                      Answer:       ____________________.

              f. For representation in the merits briefing stage in the Supreme Court of Texas.
                                     [N/A]
                    Answer:         ____________________

              g. For representation through oral argument and the completion of proceedings
                 in the Supreme Court of Texas.

                                    [N/A]
                      Answer:       ____________________

Cross-Appellant’s Appendix, Tab 7. The Record on Appeal does not contain the Court’s
   Charge. The cited referenced is derived from Appellee’s Motion for Judgment. The
document included in the appendix was taken off-line from the Galveston County District
Clerk’s Office. A request to supplement the record on appeal will be filed with the Clerk of the
Court to forward the Court’s Charge and all jury notes.

                                              37
         The jury found adversely against Appellant Schlein on a detrimental reliance

submission (Question 9 & 10), breach of fiduciary responsibility (Question (11 &

12), fraud and malice (Questions 13, 14, 15, 16), deceptive trade (in any false,

misleading, or deceptive act or practice that Barbara Schlein relied on to her

detriment and that was a producing cause of damages to Barbara Schlein)

(Question 17), and any predicated attorney fee questions (see Questions 8, 10, 12,

14, 15, 20 & 22).

         The jury found in the favor of Appellant Schlein on Questions 18 (Did

Anthony Griffin engage in any unconscionable action or course of action that was

a producing cause of damages to Barbara Schlein?) and 19 (Did Anthony Griffin

engage in any such conduct knowingly or intentionally?). In response to the

damage questions on these questions, the jury found no actual damages suffered

(Question 20), but found punitive damages in the amount of $5,000.00 (Question

21); all which is part of parcel of the issues brought by the Cross-Appellant to this

Court.

         It is in this factual context this matter is before this Honorable Court.




                                             38
                         SUMMARY OF ARGUMENT

      There was a finding of unconscionable conduct (Question 18) against Cross-

Appellant Griffin.     With respect to the questions of damages for the

unconscionable conduct, the answer was none (zero) (Question 20). There was a

finding the unconscionable conduct was knowingly (Question 19), and with

regards to the additional damage question there was a finding of $5,000.00, even

though there was no actual damage finding. This finding cannot stand as a matter

of law (see Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 618 (Tex. 1986)

(reversing the additional damages award under DTPA, “To support an award of

exemplary damages in this case, the plaintiff must prove a distinct tortious injury

with actual damages. Bellefonte Underwriters Insurance Co. v. Brown, supra;

Luna v. North Star Dodge Sales, Inc., supra; City Products Corp. v. Berman,

supra. The only issue on actual damages inquired as to the cost of repairing the

home to the condition it was represented to be in at the time of sale. Although the

Reeds sought recovery for mental anguish in their petition, no issue was submitted

on those damages.”) In the case at bar, the question is cleaner – there was an

adverse finding on the actual damages question.

      Lawyers’ work involve advice, judgment or legal opinions, and are not

cognizable under the DTPA under Texas’s common law rule against “fracturing”

or are exempt from its application under Section 17.49(c) (see Brennan v.



                                        39
Manning, No. 07-06-0041-CV, 2007 WL 1098476 (Tex. App.-Amarillo Apr. 12,

2007) (unpublished) (incorrect advice to plaintiff in a divorce proceeding that she

was not entitled to any interest in funds owed to her husband exempt under the

DTPA as the essence of the services provided was the provision of advice,

judgment or opinion); Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.-Houston [1st

Dist.] 2005) (plaintiffs claim that attorney created confusion as to the source of

services by representing that he was board certified when he was not, and by

leading plaintiff to believe that a paralegal was an attorney, which plaintiff claimed

caused him to weigh the firm’s advice with undue favor, was barred by Section

17.49(c)); Head v. U.S. Inspect DFW, Inc., 159 S.W.3d 731 (Tex. App.-Fort Worth

2005) (a DTPA claim premised on representations by a home inspection company

that a licensed real estate inspector would do the inspection, when an unlicensed

apprentice was used, was a claim that the inspector was negligent in rendering an

erroneous opinion based upon an apprentice’s unsupervised inspection, and was

therefore an inseparable part of the professional services and was barred by the

DTPA); Greathouse v. McConnell, 982 S.W.2d 165 (Tex. App.-Houston [1st Dist.]

1998) (alleged false representation that legal services were of competent quality

was a re-stated negligence claim not cognizable under the DTPA.

      In the case at bar, nothing in the case represented any actions outside the

exempted areas of advice, judgment and opinion. In addition, the Court’s Jury



                                         40
Charge gives no guidance as to the alleged action which allegedly was

unconscionable (“Did Anthony Griffin engage in any unconscionable action or

course of action that was a producing cause of damages to Barbara Schlein?”).

                           STANDARD OF REVIEW

      When a party attacks the legal sufficiency of an adverse finding on an issue

it did not have the burden to prove at trial, it must demonstrate that there is no

evidence to support the adverse finding (Aquila Southwest Pipeline, Inc. v.

Harmony Exploration, Inc., 48 S.W.3d 225, 236 (Tex.App.-San Antonio 2001, pet.

denied)). In reviewing a no-evidence issue, this Court is required to consider all of

the record evidence in a light most favorable to the verdict and indulge every

reasonable inference from that evidence in support of the verdict. Id. This Court

must determine whether the proffered evidence as a whole rises to a level that

would "enable reasonable and fair-minded people to differ in their conclusion"

(Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)).

      A challenge to the legal sufficiency of the evidence must be sustained when

the record discloses one of the following: (1) a complete absence of evidence of a

vital fact; (2) the court is barred by rules of law or evidence from giving weight to

the only evidence offered to prove a vital fact; (3) the evidence offered to prove a

vital fact is no more than a mere scintilla; or (4) the evidence conclusively




                                         41
establishes the opposite of a vital fact (Merrell Dow Pharm., Inc. v. Havner, 953

S.W.2d 706, 711 (Tex. 1997)).

      When reviewing a challenge to the factual sufficiency of the evidence, this

Court must consider all of the evidence in the record (see Plas-Tex, Inc. v. U.S.

Steel Corp., 772 S.W.2d 442, 445 (Tex.1989)). If a party is attacking the factual

sufficiency of an adverse finding when the other party has the burden of proof that

party must demonstrate there is insufficient evidence to support the adverse finding

(Aquila, 48 S.W.3d at 236). In reviewing a factual insufficiency challenge, we

weigh and examine all of the evidence that supports the verdict and that which is

contrary to it. Id. We set aside the verdict only if the evidence is so weak the

verdict is clearly wrong and manifestly unjust (see Cain v. Bain, 709 S.W.2d 175,

176 (Tex.1986); see also Jabri v Alsayyed, 145 S.W.3d 664 (Tex. App. – Houston

[14th Dist.] 2004)).




                                        42
                                   ARGUMENT

POINT OF ERROR NO. 1: THE FINDING OF NO ACTUAL DAMAGES ON
                      THE UNCONSCIONABILITY QUESTION IS
                      FATAL TO THE FINDING OF ADDITIONAL
                      DAMAGES UNDER THE DECEPTIVE TRADE
                      PRACTICES ACT.

    The applicable Questions are noted below:

                                 QUESTION NO. 18

    Did Anthony Griffin engage in any unconscionable action or course of action that was a
    producing cause of damages to Barbara Schlein?

           “Producing cause” means a cause that was a substantial factor in bringing about
           the damages, if any, and without which the damages would not have occurred.
           There may be more than one producing cause.

           An “unconscionable action” or “course of action” is an act or practice that, to a
           customer’s detriment, takes advantage of the lack of knowledge, ability,
           experience, or capacity of the consumer to a grossly unfair degree.

    Answer: [Yes]

    If you answer “Yes” to Question 17 or Question 18, then answer the following question.
    Otherwise, do not answer the following question.

                                 QUESTION NO. 19

    Did Anthony Griffin engage in any such conduct knowingly or intentionally?

           …

    Answer: [Yes]

                                 QUESTION NO. 20

    What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
    Barbara Schlein for her damages, if any, that resulted from such conduct?

           …

           a. The amount, if any, that Barbara Schlein paid in excess to Anthony Griffin for
              legal services promised by Anthony Griffin.


                                          43
                                   [0]
                    Answer:        ____________________

             b. the amount of reasonable and necessary attorney’s fees incurred as a result of
                Barbara Schlein having to hire new attorneys to complete the divorce matter.

                                   [0]
                    Answer:        ____________________

             c. the amount of reasonable and necessary attorney’s fee incurred as a result of
                Barbara Schlein having to hire new attorneys to complete the other matters
                started by Anthony Griffin.

                                   [0]
                    Answer:        ____________________

             d. mental anguish sustained from November 3, 2009 to date.

                                   [0]
                    Answer:        ____________________


                                       QUESTION NO. 21

      What sum of money, if any, in addition to actual damages, should be awarded to
      Barbara Schlein against Anthony Griffin because Anthony Griffin’s conduct was
      committed knowingly or intentionally?

             …

      Answer: [$5,000.00]

      If you answered “Yes” to Question 17, then answer the following question. Otherwise, do
      not answer the following question.

                              ________________________


      There was a finding of unconscionable conduct (Question 18). With respect

to the questions of damages for the unconscionable conduct, the answer was none

(zero) (Question 20).       There was a finding the unconscionable conduct was


                                             44
knowingly ( Question 19), and with regards to the additional damage question

there was a finding of $5,000.00, even though there was no actual damage finding.

This finding cannot stand as a matter of law (see Jim Walter Homes, Inc. v. Reed,

711 S.W.2d 617, 618 (Tex. 1986) (reversing the additional damages award under

DTPA, “To support an award of exemplary damages in this case, the plaintiff must

prove a distinct tortious injury with actual damages. Bellefonte Underwriters

Insurance Co. v. Brown, supra; Luna v. North Star Dodge Sales, Inc., supra; City

Products Corp. v. Berman, supra. The only issue on actual damages inquired as to

the cost of repairing the home to the condition it was represented to be in at the

time of sale. Although the Reeds sought recovery for mental anguish in their

petition, no issue was submitted on those damages.”) In the case at bar, the

question is cleaner – there was an adverse finding on the actual damages question.

      The judgment cannot stand as a matter of law.            Evidence is legally

insufficient when (1) the record discloses a complete absence of evidence of a vital

fact; (2) the court is barred by rules of law or rules of evidence from giving weight

to the only evidence offered to prove a vital fact; (3) the evidence offered to prove

a vital fact is no more than a mere scintilla; or (4) the evidence establishes

conclusively the opposite of a vital fact (City of Keller v. Wilson, 168 S.W.3d 802,

810 (Tex.2005); see also James J. Flanagan Shipping Corporation v. Del Monte

Fresh Produce, N.A., Inc., 403 S.W.3d 360, 367 (Tex. App. – Houston [1st Dist.]



                                         45
2013); Southwestern Bell Telephone Co. v. Delanney, 809 S.W.2d 493 (Tex.

1991)).

POINT OF ERROR NO. 2: THE TRIAL COURT ERRED IN NOT GRANTING
                      JNOV ON THE DECEPTIVE TRADE PRACTICES
                      QUESTIONS SUBMITTED TO THE JURY.

        In Cross-Appellant’s Motion for Judgment Notwithstanding the Verdict, the

trial court was requested to enter a verdict adverse to the findings by the jury on

Questions 19 and 21. Cross-Appellant submitted to the trial court and submits to

this Court the questions were precluded as a matter of law. In addition, there is no

evidence and/or insufficient evidence to support the verdict.21

        The Deceptive Trade Practices Act exempts professional advice from its

dictates.     The relationship between Appellant and Cross-Appellant was an

attorney-client relationship and as such judgment notwithstanding the verdict

should be granted.22



21
     See TEX. R. CIV. P. 301; Fort Bend Cnty. Drainage Dist. v. Sbrusch, 818 S.W.2d 392, 394
     (Tex. 1991); CDB Software, Inc.v. Krell, 992 S.W.2d 31, 35 (Tex. App.-Houston [1st Dist.]
     1998, pet. denied). A motion for jnov should be granted when the evidence is conclusive
     and one party is entitled to recover as a matter of law or when a legal principle precludes
     recovery. Phar-Mor, Inc. v. Chavira, 853 S.W.2d 710, 713 (Tex. App.-Houston [1st Dist.]
     1993, writ denied) (citing Mancorp, Inc. v. Culpepper, 802 S.W. 2d 226, 227 (Tex. 1990)).
22
     The relevant provisions of the Act are as follows:

                Sec. 17.49. EXEMPTIONS. (a) Nothing in this subchapter shall apply to the
               owner or employees of a regularly published newspaper, magazine, or telephone
               directory, or broadcast station, or billboard, wherein any advertisement in
               violation of this subchapter is published or disseminated, unless it is established
               that the owner or employees of the advertising medium have knowledge of the

                                                46
false, deceptive, or misleading acts or practices declared to be unlawful by this
subchapter, or had a direct or substantial financial interest in the sale or
distribution of the unlawfully advertised good or service. Financial interest as
used in this section relates to an expectation which would be the direct result of
such advertisement.
    (b) Nothing in this subchapter shall apply to acts or practices authorized under
    specific rules or regulations promulgated by the Federal Trade Commission
    under Section 5(a)(1) of the Federal Trade Commission Act [15 U.S.C.A.
    45(a)(1)]. The provisions of this subchapter do apply to any act or practice
    prohibited or not specifically authorized by a rule or regulation of the Federal
    Trade Commission. An act or practice is not specifically authorized if no rule
    or regulation has been issued on the act or practice.
    (c) Nothing in this subchapter shall apply to a claim for damages based
    on the rendering of a professional service, the essence of which is the
    providing of advice, judgment, opinion, or similar professional skill. This
    exemption does not apply to:
             (1) an express misrepresentation of a material fact that cannot be
             characterized as advice, judgment, or opinion;
             (2)     a failure to disclose information in violation of Section
             17.46(b)(24);
             (3) an unconscionable action or course of action that cannot be
             characterized as advice, judgment, or opinion;
             (4) breach of an express warranty that cannot be characterized as
             advice, judgment, or opinion; or
             (5) a violation of Section 17.46(b)(26).
     (d) Subsection (c) applies to a cause of action brought against the person who
     provided the professional service and a cause of action brought against any
     entity that could be found to be vicariously liable for the person's conduct.
              (e) Except as specifically provided by Subsections (b) and (h),
              Section 17.50, nothing in this subchapter shall apply to a cause of
              action for bodily injury or death or for the infliction of mental
              anguish.
     (f) Nothing in the subchapter shall apply to a claim arising out of a
     written contract if:
             (1) the contract relates to a transaction, a project, or a set of
             transactions related to the same project involving total
             consideration by the consumer of more than $100,000;
             (2) in negotiating the contract the consumer is represented by legal
             counsel who is not directly or indirectly identified, suggested, or
             selected by the defendant or an agent of the defendant; and
               (3) the contract does not involve the consumer's residence.
     (g) Nothing in this subchapter shall apply to a cause of action arising from a
    transaction, a project, or a set of transactions relating to the same project,
    involving total consideration by the consumer of more than $500,000, other

                                47
         Section 17.49(c) of the Texas Deceptive Trade practices Act ("DTPA")

states the statute is inapplicable to "a claim for damages based on the rendering of

a professional service, the essence of which is the providing of advice, judgment,

opinion, or similar professional skill" (Tex. Bus. & Com. Code § 17.49(c)). A

professional service is one that consists of acts particular to the individual's

specialized vocation (Nast v. State Farm Fire & Cas. Co., 82 S.W.3d 114, 122

(Tex. App.—San Antonio 2002, no pet.)). An act is not a professional service if its

only distinction is performance by a professional; rather, it must be an act that

requires the professional to use his specialized knowledge or training. Id. This


                      than a cause of action involving a consumer of more than $500,000, other than
                      a cause of action involving a consumer's residence.
                       (h) A person who violates Section 17.46(b)(26) is jointly and severally liable
                      under that subdivision for actual damages, court costs, and attorney's fees.
                      Subject to Chapter 41, Civil Practice and Remedies Code, exemplary damages
                      may be awarded in the event of fraud or malice.
                       (i) Nothing in this subchapter shall apply to a claim against a person licensed
                      as a broker or salesperson under Chapter 1101, Occupations Code, arising
                      from an act or omission by the person while acting as a broker or salesperson.
                      This exemption does not apply to:
                               (1) an express misrepresentation of a material fact that cannot be
                               characterized as advice, judgment, or opinion;
                                 (2) a failure to disclose information in violation of Section
                               17.46(b)(24); or
                               (3) an unconscionable action or course of action that cannot be
                               characterized as advice, judgment, or opinion.
Added by Acts 1973, 63rd Leg., p. 322, ch. 143, Sec. 1, eff. May 21, 1973. Amended by Acts 1995, 74th Leg., ch.
414, Sec. 4, eff. Sept. 1, 1995; Acts 2001, 77th Leg., ch. 1229, Sec. 28, eff. June 1, 2002; Acts 2003, 78th Leg., ch.
1276, Sec. 4.001(b), eff. Sept. 1, 2003. Amended by: Acts 2011, 82nd Leg., R.S., Ch. 189 (S.B. 1353), Sec. 1, eff.
May 28, 2011.




                                                         48
exemption from the DTPA does not apply to an express misrepresentation of

material fact that cannot be characterized as advice, judgment, or opinion (Tex.

Bus. & Com.Code § 17.49(c)(1)).

      Lawyers’ work involve advice, judgment or legal opinions, and are not

cognizable under the DTPA under Texas’s common law rule against “fracturing”

or are exempt from its application under Section 1749(c) (see Brennan v. Manning,

No. 07-06-0041-CV, 2007 WL 1098476 (Tex. App.-Amarillo Apr. 12, 2007)

(unpublished) (incorrect advice to plaintiff in a divorce proceeding that she was not

entitled to any interest in funds owed to her husband exempt under the DTPA as

the essence of the services provided was the provision of advice, judgment or

opinion); Rangel v. Lapin, 177 S.W.3d 17 (Tex. App.-Houston [1st Dist.] 2005)

(plaintiffs claim that attorney created confusion as to the source of services by

representing that he was board certified when he was not, and by leading plaintiff

to believe that a paralegal was an attorney, which plaintiff claimed caused him to

weigh the firm’s advice with undue favor, was barred by Section 17.49(c)); Head

v. U.S. Inspect DFW, Inc., 159 S.W.3d 731 (Tex. App.-Fort Worth 2005) (a DTPA

claim premised on representations by a home inspection company that a licensed

real estate inspector would do the inspection, when an unlicensed apprentice was

used, was a claim that the inspector was negligent in rendering an erroneous

opinion based upon an apprentice’s unsupervised inspection, and was therefore an



                                         49
inseparable part of the professional services and was barred by the DTPA);

Greathouse v. McConnell, 982 S.W.2d 165 (Tex. App.-Houston [1st Dist.] 1998)

(alleged false representation that legal services were of competent quality was a re-

stated negligence claim not cognizable under the DTPA)).23

        In the case at bar, nothing in the case represented any actions outside the

exempted areas of advice, judgment and opinion. In addition, the Court’s Jury

Charge gives no guidance as to the alleged action which allegedly was

unconscionable (“Did Anthony Griffin engage in any unconscionable action or

course of action that was a producing cause of damages to Barbara Schlein?”).24

Cross-Appellant’s evidence centered around four allegations: 1) failure to file in

the insurance claim; 2) failure to continue on Defendant’s case; 3) failure to return

the Cross-Appellant’s file and property; 4) failure to follow the terms of the alleged

agreement that the fee was a flat fee of $35,000.00.


23
     See the case of Mazuca and Asssociates v. Schumann, 82 S.W.3d 90, 94 (Tex. App. – San
     Antonio (2002), wherein the Court explained:

     TEX. BUS. & COM.CODE ANN. § 17.45(5) (Vernon 1987). The 1995 amendments to the
     DTPA allow an attorney to be held liable for an unconscionable action or course of action
     that cannot be characterized as advice, judgment, or opinion. Tex. Bus. & Com.Code Ann. §
     17.49(c)(3). It further requires a showing that the resulting unfairness was "glaringly
     noticeable, flagrant, complete, and unmitigated...." Chastain v. Koonce, 700 S.W.2d 579, 584
     (Tex.1985). In contrast, "[a] claim based upon the failure to exercise that degree of care, skill
     and diligence that a lawyer of ordinary skill and knowledge commonly possesses and
     exercises, despite its label, is a malpractice claim." Kahlig v. Boyd, 980 S.W.2d 685, 689
     (Tex.App.-San Antonio 1998, pet. denied).
24
     The definition of unconscionable action or course of action in the charge was defined from
     the Act (id. at Section 17.45(5)).

                                                  50
      Appellant Schlein’s expert (Hardwick) testified to a breach of fiduciary

responsibility and used the word “unconscionable” in describing alleged violations

by Cross-Appellant. Hardwick also asserted in context of the breach of fiduciary

responsibility, Cross-Appellant file the underlying lawsuit and asserting false

allegations in the original petition. Hardwick stated she was hired by Appellant to

figure out which of the attorney’s fiduciary duties might have been violated by

Cross-Appellant (RR., Vol. 10 at 122, lines 13-20). Hardwick expressed a view

Cross-Appellant violated his duty of loyalty, candor, and confidentiality (id. at 123,

lines 9-21). All related to a finding the jury found against Appellant (breach of

fiduciary responsibility).

      Hardwick’s testimony is insufficient to get around the exemption engrafted

in the law. With regards to the issue of false allegations in the original petition,

this issue was resolved when the claim was dismissed at the close of Cross-

Appellant’s case (e.g., litigation exception under both the Disciplinary Rules

(claim or defense), and litigation exception associated with legal pleadings/court

proceedings. Hardwick also testified the contract itself was unconscionable and

was not clear enough for the consumer. Hardwick’s testimony is not sufficient in

light of her self-imposed limitations of her testimony, that is, to testify only with

regards to matters related to breach of fiduciary responsibility.         It is worth

repeating, “The 1995 amendments to the DTPA allow an attorney to be held liable



                                         51
for an unconscionable action or course of action that cannot be characterized as

advice, judgment, or opinion. Tex. Bus. & Com.Code Ann. § 17.49(c)(3). It

further requires a showing that the resulting unfairness was "glaringly

noticeable, flagrant, complete, and unmitigated...." Chastain v. Koonce, 700

S.W.2d 579, 584 (Tex.1985). In contrast, "[a] claim based upon the failure to

exercise that degree of care, skill and diligence that a lawyer of ordinary skill and

knowledge commonly possesses and exercises, despite its label, is a malpractice

claim." Kahlig v. Boyd, 980 S.W.2d 685, 689 (Tex.App.-San Antonio 1998, pet.

denied)” supra, Mazuca and Asssociates v.Schumann, 82 S.W.3d 90, 94 (Tex. App.

– San Antonio (emphasis added).

      In addition, any such recovery is barred by an additional exemption under

§ 17.49(f), which is in fact more explicit:

      Nothing in the subchapter shall apply to a claim arising out of a written
      contract if:
            (1) the contract relates to a transaction, a project, or a set of
                transactions related to the same project involving total
                consideration by the consumer of more than $100,000;

             (2) in negotiating the contract the consumer is represented by legal
                 counsel who is not directly or indirectly identified, suggested, or
                 selected by the defendant or an agent of the defendant; and

             (3) the contract does not involve the consumer’s residence.


Where a contract does not state a face dollar amount, but nevertheless

contemplates a transaction which will in the future involve consideration of more


                                          52
than $100,000, Section 17.49(f) and (g) exemptions apply and bar relief. In Texas

Motor Coach, L.C. v. Blue Bird Body Co., No. 4:05CV34, 2005 WL 3132482

(E.D. Tex. Nov. 22, 2005), a motor coach dealer entered into a franchise dealership

agreement with a manufacturer. The motor coach dealer constructed improvements

on real property, obtained floor plan financing to operate the franchise, hired

employees, and expended funds on advertising. Later, the manufacturer delivered

three motor coaches, which were determined to be defective and were returned.

The court dismissed the plaintiffs DTPA claims, finding that because the contract”

assumed delivery” of three motor coaches, the cost of which were in excess of

$200,000 each, the exemptions under Section 17.49(f) and (g) barred relief.

Similarly, in East Hill Marine, Inc. v. Rinker Boat Co., 229 S.W.3d 813 (Tex.

App.-Fort Worth 2007), the parties entered into a dealership agreement, with no

minimum purchase requirement. The plaintiff, however, ultimately ordered boats

from the defendant worth more than $859,000. The court ruled that the Section

17.49(g) exemption applied to bar the plaintiffs’ claims. The plaintiff argued that at

the time the dealer relationship was established, there was no promise to pay more

than $500,000; rather, the plaintiff argued, there was merely an agreement under

which it might never purchase anything. The fees and costs incurred by Anthony

P. Griffin in this case exceeded $100,000.00 and as such the contract and services

rendered are exempt under the statute. In addition, subsection (2) is met in light of


                                         53
Appellant’s testimony reflecting she visited Cross-Appellant’s office on the advice

of Marie Trefethern, a lawyer, who recommended she come because of the alleged

$35,000.00 flat fee.     There is no evidence the lawyer (Trefethern) was

recommended, suggested or selected by Cross-Appellant.

       The trial court erred in not granting the JNOV. The judgment should be set

aside and rendered in Cross-Appellant’s favor on no evidence and insufficient

evidence grounds.

                            PRAYER FOR RELIEF

      Cross-Appellant prays in this his initial brief on appeal the judgment finding

of unconscionable act be reversed and rendered, as well as the additional damage

finding of $5,000.00

      DATE: February 12, 2015.

                                      Respectfully submitted,

                                      /s/ Norma Venso
                                      Norma Venso
                                      State Bar No. 205456250
                                      830 Apollo Lane
                                      Houston, Texas 77058
                                      (409) 789.8661
                                      281.286.9990 (facsimile)
                                      nvenso@earthlink.net

                                      ATTORNEYS FOR
                                      CROSS-APPELLANT
                                      ANTHONY P. GRIFFIN




                                        54
                    CERTIFICATION OF COMPLIANCE

      I certify that the foregoing brief is in compliance with Texas Rule of

Appellate Procedure 9.4 because it contains 13,993 words and has been prepared in

a proportionally spaced typeface using Microsoft Word 2007 in 14-point Times

New Roman font for text and 12-point Times New Roman font for footnotes meets

the typeface requirements.



                                     /s/ Norma Venso ___________________
                                     NORMA VENSO




                                       55
                         CERTIFICATE OF SERVICE

      This is to certify that on this the 12th day of February, 2015, a true and

correct copy of this brief was forwarded to opposing counsels by mailing the same

by electronic filing of the same and/or by certified mail, return receipt requested,

postage prepaid when noted, to-wit:



                                      /s/ Norma Venso______________
                                      Norma Venso




                                        56
                                APPENDIX

Appendix, Tab 1 [CR-000003-000009]       Index on Appeal

Appendix, Tab 2 [CR-000010-000021]       Plaintiff’s Original Petition

Appendix, Tab 3 [CR-000026-000031]       Defendant’s Amended Answer and
                                         Counterclaim

Appendix, Tab 4 [CR-000628-000632]       Plaintiff’s Second Amended Petition


Appendix, Tab 5 [CR-429]                 Order Denying Plaintiff’s Partial
                                         Motion for Summary Judgment

Appendix, Tab 6 [CR-760]                 Order denying Defendant’s Motion
                                         for Summary Judgment

Appendix, Tab 7 [SUPP CR]                Court’s Charge

Appendix, Tab 8 [RR, VOL. 13]            Jury Verdict

Appendix, Tab 9 [CR-001208]              Order Denying Plaintiff’s Motion
                                         Notwithstanding Verdict

Appendix, Tab 10 [CR-01249-01250]        Final Judgment

Appendix, Tab 11 [CR-001245]             Order Denying Defendant’s Motion
                                         for New Trial

Appendix, Tab 12 [CR-001247-001248]      Defendant’s Notice of Appeal

Appendix, Tab 13 [CR-001251-1253]        Plaintiff’s Cross-Appeal

Appendix, Tab 14 [RR, VOL. 14, pp. 5-15] Contract of Employment and cover
                                         letter




                                    57
Cross-Appellant's Appendix1
000003




                                 CAUSE NO. CV-0069481

    Anthony P Griffin                         §             IN THE COUNTY COURT
                                              §
                                              §
                                              §
    vs.                                       §           AT LAW NUMBER TWO (2)
                                              §
                                              §
                                              §
    Barbara Regina Schlein                    §      GALVESTON COUNTY, TEXAS


                                            INDEX


    Document:                                       File Date:   Volume:    Page:
    Original Petition                               03/14/13        1       1 - 12


    Administrative Order of Assignment by           05/23/13        1      13 - 13
    Presiding Judge (admn)

    Certificate(s)                                  06/14/13        1      14 - 16


    Amended Answer and Counter Claim                06/18/13        1      17 - 50


    Demand For Jury Trial                           06/20/13        1      51 - 51


    Certificate(s)                                  06/21/13        1      52 - 53


    Response To Motion                              07/19/13        1      54 - 75


    Docket Control Order                            08/15/13        1      76 - 77


    Motion For Continuance                          09/18/13        1      78 - 85




                                                                                000003
                            Cross-Appellant's Appendix2
000004




    Motion To Quash                          09/20/13     1     86 - 96


    Special Exceptions                       09/23/13     1    97 - 104


    Order For Continuance                    09/23/13     1   105 - 105


    Docket Control Order                     09/23/13     1   106 - 107


    Motion                                   09/24/13     1   108 - 186


    Order Setting Hearing                    09/25/13     1   187 - 187


    Special Exceptions                       09/26/13     1   188 - 195


    Fiat                                     09/27/13     1   196 - 196


    Response                                 09/30/13     1   197 - 200


    Response                                 09/30/13     1   201 - 213


    Response                                 09/30/13     1   214 - 217


    Response                                 09/30/13     1   218 - 222


    Motion for Partial Summary Judgment      09/30/13     1   223 - 286


    Amended Petition                         10/04/13     1   287 - 292




                                                                     000004
                            Cross-Appellant's Appendix3
000005




    Order                                    10/07/13    1   293 - 293


    Order Denying Motion                     10/07/13    1   294 - 294


    Order To Compel                          10/07/13    1   295 - 295


    Fiat                                     10/07/13    1   296 - 296


    Notice(s)                                10/14/13    1   297 - 298


    Order On Motion To Quash                 10/15/13    1   299 - 300


    Response                                 11/07/13    1   301 - 317


    Amended Counterclaim                     11/07/13    1   318 - 350


    Original Answer                          11/07/13    1   351 - 353


    Amended Affidavit                        11/15/13    1   354 - 357


    Response To Motion For Partial Summary   12/02/13    1   358 - 419
    Judgment

    Order Denying Motion                     12/27/13    1   420 - 420


    Motion                                   01/06/14    1   421 - 454


    Order For Hearing                        01/14/14    1   455 - 455




                                                                    000005
                           Cross-Appellant's Appendix4
000006




    Motion To Quash                           01/30/14   1   456 - 463


    Motion To Quash                           01/31/14   1   464 - 471


    Motion For Summary Judgment               01/31/14   2   472 - 558


    Motion To Strike                          01/31/14   2   559 - 576


    Motion To Compel                          01/31/14   2   577 - 601


    Motion To Compel                          01/31/14   2   602 - 607


    Notice Of Submission                      02/05/14   2   608 - 609


    Notice Of Submission                      02/06/14   2   610 - 611


    Response                                  02/06/14   2   612 - 614


    Rule 11 - Letter                          02/12/14   2   615 - 616


    Certificate(s)                            02/18/14   2   617 - 618


    Amended Petition                          02/24/14   2   619 - 623


    Response To Motion For Summary Judgment   02/24/14   2   624 - 632


    Motion For Leave                          02/24/14   2   633 - 643




                                                                    000006
                           Cross-Appellant's Appendix5
000007




    Affidavit In Support Of Attorney's Fees   02/25/14   2   644 - 689


    Reply To Response                         02/27/14   2   690 - 717


    Response To Motion                        02/27/14   2   718 - 742


    Order Allowing Extension Of Time          02/27/14   2   743 - 743


    Reply To Response                         02/28/14   2   744 - 750


    Order Denying Motion                      02/28/14   2   751 - 751


    Motion For Continuance                    03/10/14   2   752 - 754


    Amended Counterclaim                      04/04/14   2   755 - 796


    Motion To Reconsider Hearing/Ruling       04/07/14   2   797 - 823


    Response To Motion                        04/11/14   2   824 - 876


    Motion For Continuance                    04/16/14   2   877 - 881


    Motion In Limine                          05/06/14   2   882 - 890


    Witness List                              05/06/14   2   891 - 894


    List Of Exhibits                          05/06/14   2   895 - 902




                                                                    000007
                           Cross-Appellant's Appendix6
000008




    Business Records Affidavit               05/07/14     2    903 - 961


    List Of Exhibits                         05/07/14     2    962 - 969


    Order On Motion In Limine                05/07/14     2    970 - 979


    Order                                    05/07/14     3    980 - 981


    Order Granting Motion                    05/07/14     3    982 - 982


    Amended Motion                           05/09/14     3    983 - 995


    Order Granting Motion                    05/09/14     3    996 - 996


    Motion                                   05/14/14     3   997 - 1005


    Brief                                    05/19/14     3       1006 -
                                                                   1071

    Supplement                               05/19/14     3       1072 -
                                                                   1133

    Order                                    05/21/14     3       1134 -
                                                                   1134

    Motion For Entry Of Judgment             06/12/14     3       1135 -
                                                                   1155

    Response To Motion                       06/12/14     3       1156 -
                                                                   1165

    Amended Motion                           06/13/14     3       1166 -
                                                                   1186




                                                                      000008
                            Cross-Appellant's Appendix7
000009




    Amended Response                        06/18/14     3   1187 -
                                                              1198

    Order Denying Motion                    06/30/14     3   1199 -
                                                              1199

    Motion For New Trial                    07/30/14     3   1200 -
                                                              1215

    Response To Motion For New Trial        08/19/14     3   1216 -
                                                              1227

    Motion To Compel                        09/11/14     3   1228 -
                                                              1235

    Order Denying Motion For New Trial      09/11/14     3   1236 -
                                                              1236

    Order To Compel                         09/12/14     3   1237 -
                                                              1237

    Notice Of Appeal                        09/26/14     3   1238 -
                                                              1241

    Notice Of Appeal                        10/10/14     3   1242 -
                                                              1244

    Motion                                  10/14/14     3   1245 -
                                                              1250

    Notice Of Submission                    10/17/14     3   1251 -
                                                              1252

    Motion                                  11/05/14     3   1253 -
                                                              1257

    Response In Opposition To Motion        11/13/14     3   1258 -
                                                              1261




                                                                 000009
                           Cross-Appellant's Appendix8
Cross-Appellant's Appendix9
                                                                       Filed
000010                                                                 13 March 14 P6:43
                                                                       Dwight D. Sullivan
                                                                       County Clerk
                                                                       Galveston County
                          CAUSE NO. CV-69481

ANTHONY P. GRIFFIN                IN THE COUNTY COURT


v.                                AT LAW NO.     2



BARBARA REGINA SCHLEIN            GALVESTON COUNTY, TEXAS

           PLAINTIFF'S, ANTHONY P. GRIFFIN, ORIGINAL PETITION

TO THE HONORABLE JUDGE OF SAID COURT:

         This lawsuit is brought to collect on outstanding debts due

and owing to Anthony P. Griffin, hereinafter and sometimes

referred to as Plaintiff, with regards to services rendered to

Barbara Regina Schlein, hereinafter and sometimes referred to as

Defendant.      Plaintiff would show unto the Court as follows, to-

wit:

                                   I.

         This is a Schedule 2 matter and as such it is requested

that the Court establish a scheduling order herein.

                                   II.

         At all times material to this action,       Plaintiff is a

licensed lawyer in the State of Texas engaged in the practice of

law.

         Defendant, Barbara Schlein, can be served with process by

serving her at 2106 Pleasant Palm Circle, League City, Texas

77573.




                                                                      000010
                     Cross-Appellant's Appendix10
000011




         All matters material to this action occurred in Galveston

and/or Harris County, Texas.

                                    III.

                 Breach of Contract Claim -     Family Claim

         In November 3, 2009,   Plaintiff entered a contract of

employment with Plaintiff.       The contract called for the

Defendant to pay to Plaintiff an initial retainer of $35,000.00

and for counsel to be paid a reduced hourly rate of $250.00 an

hour for any work over $35,000.00.         The contract was entered

with knowledge of previous counsel's representation of the

Defendant and the long-term and protracted nature of the

underlying family/business law litigation. 1         Even though

referenced in the contract, the Defendant never paid the initial

retainer of $35,000.00, but explained to Plaintiff that she was

trustworthy, that she always paid her bills and that if the

Plaintiff took care of her interest, she would take care of him.

Plaintiff explained that she simply had to abide with the terms

of the contract.

         Plaintiff represented Defendant in the family litigation

and maintained business records during the course of the

representation.      At the end of the representation,       Plaintiff



1
  In the Matter of the Marriage of Barbara Regina Schlein and Robert John
Schlein; Case No. 08FD2371; in the County Court at Law, No. 2, Galveston,
County, Texas.
                                      2



                                                                            000011
                     Cross-Appellant's Appendix11
000012




forwarded a bill setting out the total amount of time expended

on Plaintiff's behalf was 352.50 hours for a total of

$88,125.00.         Plaintiff's office also incurred some $22,339.29 in

costs.         The total attorneys'   fee and costs incurred on behalf of

the client and due and owing is $110,524.29.

         Plaintiff sues for this amount and prays for judgment.

                                         IV.

                       Additional Work -       Quantum Meruit

         Plaintiff also engaged in other work for Defendant that was

external to the contract of employment surrounding the family

litigation.         The agreement of representation was based upon

trust and promises that Defendant was "honest, trustworthy and a

Christian woman and that she paid her bills" (Defendant's

words).         Plaintiff was informed by Defendant on multiple

occasions that if her money in the family case was cleared up

she would immediately get Plaintiff paid - "trust me."               The

worked performed on Defendant's behalf included the following:

         i)      Civil litigation over debt in Justice Court       (Bank of

                America v. Barbara and Robert Schlein) -        the defense

                was successful;

         ii)     Criminal litigation in criminal case       (State of Texas

                 v. Barbara Schlein, in the County Criminal Court,

                 Harris County, Texas)    & ultimately work on an


                                          3



                                                                           000012
                        Cross-Appellant's Appendix12
000013




                expunction and filing an expunction in Harris County,

                Texas with respect to same -     the defense was

                successful, the expunction matter is pending at this

                submission;

         iii)   Ticket work/criminal litigation in Manvel, Texas -

                (State of Texas v. Barbara Schlein) -     the defense was

                successful;

         iv)    Representation of Defendant's son     (State of Texas v.

                Austin Reed)     the defense was successful;

         v)     Representation of Barbara Schlein in tax litigation

                matter pending in Galveston County, Texas      (pending)

                (County of Galveston v. Barbara Schlein and Robert

                Schlein);

         vi)    Representation of Barbara Schlein in contingent fee

                litigation with regards to builder's negligence

                (Barbara Schlein v. Centre Builders, et al.;       in the

                lOth Judicial District Court; Galveston County, Texas);

         vii)   Representation of Barbara Schlein in litigation in

                real estate litigation and lien placed on community

                property (Barbara Schlein v. Robert Schlein and Bill

                De La Garza,   et al.,   in the 212th Judicial District

                Court; Galveston County, Texas).

         The reasonable value of the subject work is sixty


                                          4


                                                                            000013
                       Cross-Appellant's Appendix13
000014




thousand ($60,000.00) dollars; this amount does not include the

contingent fee in existence in the building negligence matter

pending in Galveston County.      Plaintiff sues for his reasonable

and necessary attorney's fees and costs incurred on behalf of

Plaintiff in these cases     ($15,000.00 in costs).    Plaintiff seeks

a declaratory judgment with respect to the contingent fee

contract on the construction litigation that the contract is a

valid and enforceable contract and remains in effects.

                                   v.
                            Unjust Enrichment

         Plaintiff incorporates by reference the above information

for all purposes.      In addition and/or in the alternative to the

foregoing,     Plaintiff would show that it is entitled to recover

under the doctrine of unjust enrichment.        According to this

equitable principle of justice, equity, and/or good conscience,

Plaintiff is entitled to recover for the products, materials,

and services that Defendant received and benefited from without

compensating Plaintiff.      Under the theory of unjust enrichment,

Plaintiff is entitled to recover all actual damages, together

with attorneys'     fees and costs of Court.




                                    5



                                                                    000014
                     Cross-Appellant's Appendix14
000015




                                    VI.

                             Fraud Allegations

         Plaintiff brings suit on the basis of fraud.   It is

Plaintiff's contention that Defendant has defrauded both him and

the court during the course of the contractual relationship.

Plaintiff signed a contract imposing an obligation on the client

to be honest in her dealings with the Plaintiff and the court.

The applicable language under the contract reads as follows:

                   Withdrawal, Malfeasance, Breach of Contract
         1.   Withdrawal:  Lawyers have an ethical obligation to
              represent the Client zealously within the bounds of the
              law, but the Lawyers also have an obligation, when
              material representation surfaces or where there is a
              breach of the terms of this contract by the Client, to
              withdraw from the representation of the Client.
              Nothing in this contract guarantees any results,
              including whether a suit will or will not be filed or
              any other matters that border on guarantees.   The only
              guarantee relates to the representation within the
              confines of the Code of Professional Responsibility
              (zealously within the bounds of the law).   It has been
              explained orally that the Lawyers' obligation to the
              Court and the rules of ethics require investigation and
              examination of the facts.
         2.   Investigation/If No Case:   If the facts reveal no case
              exists, the Lawyer shall promptly advise the client and
              terminate the relationship.   The retainer again is non-
              refundable.




                                     6


                                                                   000015
                      Cross-Appellant's Appendix15
000016




         3.   Investigation/Material Breach:  If the
              investigation reveals a material breach, lie, or
              misstatement by the client, the Lawyer will advise
              the Client as to how such breach affects the
              Lawyer's ability to proceed in the representation.
              If termination is appropriate, the Lawyer(s) shall
              advise the client of her rights and shall promptly
              take any necessary acts to protect the Client
              (advise as to action) and the firm's rights.
              Again, the retainer shall be deemed non-
              refundable.


    Prior to the signing of the contract, the contract was

    explained to the client and Plaintiff relied upon

    Defendant's statements with regard to telling the truth, be

    forthright and honest and not to conceal any information

    during the process.        Defendant affirmed her understanding

    and held out that she would remain honest and that she

    would not conceal information from Plaintiff and/or from

    the Court.        However, during the course of the relationship,

    Defendants actions revealed fraud that struck at the

    fundamental relationship between the parties.        These

    actions included the following:

                 1)      Requesting to see banking records before the

                         lawyer after banking records were tendered

                        by the banking entity.   After the lawyer

                         learned that the client had gone through the

                         records prior to his review, copying and

                         tendering to the other side, he prohibited




                                       7
                                                                        000016
                         Cross-Appellant's Appendix16
000017




              the client's access to any such documents

              until after the lawyer touched the documents

              first;

         2)   In preparation for trial, the lawyer

              discovered a discrepancy in checks and the

              financial records and inquired of the

              client.    In the discussion, the lawyer

              became angry and stated that "if I was the

              judge, I would put you in jail."    The

              Defendant, instead of addressing the

              problem/discrepancy the client engaged in

              tears and continued to repeat .... "I don't

              know."    When the contradiction was revealed

              in the examination, the client simply

              stated, "I just have to go to jail."       The

              client was instructed that if the question

              was asked at a trial or hearing, Defendant

              had to answer honestly, even if it meant not

              answering and/or repeating her statement, "I

              just have to go to jail."    The question was

              not asked at trial;

         3)   The client held out to Plaintiff that his

              fees would be paid.    "I have the money, I

              will pay you.    You trust me don't you?"



                              8
                                                               000017
              Cross-Appellant's Appendix17
000018




              Defendant explained that when the process

              was over she would immediately get a check

              issued to pay Plaintiff.   Plaintiff relied

              on these statements.

         4)   After the presentation of the bill,

              Plaintiff explained in the bill and orally

              that he would discount the bill   (fees and

              costs), in order to make it better on the

              client and in order to receive compensation.

              On or about October 28, 2011,   Plaintiff was

              informed by Defendant that she would not and

              could not pay Plaintiff's fees.    Plaintiff

              had been informed that she had worked with

              her financial advisor, Ritchie Faulk to

              protect her funds from collection.    In the

              conversation of October 28, 2011, Defendant

              said the funds were placed in an IRA and

              that she could not remove the same until she

              was 59.   Presumably, Defendant wanted

              Plaintiff to wait until a period of in

              excess of ten (10) years for compensation.

              The Defendant's statement was related to the

              IRA is inconsistent with Defendant holding

              out that after taking out "your" lawyer's



                             9
                                                              000018
              Cross-Appellant's Appendix18
000019




                           fees,   I will place my other funds in a

                          protective status.     Plaintiff relied on the

                           Defendant's statements.

            Plaintiff has been defrauded by Defendant and seeks a

    judgment finding that "fraud" has taken place.

                                         VII.

                      Theft of Services - Theft Liability Act

            Plaintiff incorporates by reference the above factual

    paragraphs setting out the factual history.            Defendant

    misappropriated monies owed to Plaintiff with the intent to

    deprive Plaintiff of that property and/or without

    Plaintiff's consent.            Defendant has engaged in theft of

    services under the Theft Liability Act by intentionally and

    knowingly securing the performance of services by

    deception,         false token, and/or by securing the performance

    of those services by agreeing to provide compensation to

    Plaintiff and, after the services were rendered, by failing

    to make payment after receiving notice demanding payment.

    To the extent necessary or appropriate,           Plaintiff

    incorporates the following provisions of the Texas Penal

    Code:    §§      31.01(1), 31.01(3), 31.01(4), 31.01(5), and

    31. 01 I 6 I .




                                           10
                                                                           000019
                           Cross-Appellant's Appendix19
000020




         Defendant has unlawfully diverted and/or held monies

    owed to Plaintiff for services rendered and, pursuant to

    the Theft Liability Act.

                                 VIII.

                           Prayer for Relief

         Plaintiff prays for the following relief in this

    matter:

         1.     Actual damages incurred by Plaintiff associated

    with all claims asserted herein;

         2.     A declaratory judgment that Defendant has engaged

    in fraud;

         3.     A judicial finding that Plaintiff is entitled to

    quantum meruit and/or a finding of unjust enrichments on

    the portions of the work that no contract existed;

         4.     A finding that Defendant has engaged in theft of

    services in violation of Texas law;

         5.     Plaintiff seeks exemplary damages for Defendant's

    conduct;

         6.     Plaintiff seeks pre-judgment interest, post

    judgment interest, court costs, and reasonable and

    necessary attorney's fees   (fees associated when counsel is

    hired to represent the Plaintiff's interest) that Plaintiff

    is entitled to recover.




                                   11
                                                                   000020
                     Cross-Appellant's Appendix20
000021




           7.      Plaintiff seeks the recovery of all damages under

    law and equity that Plaintiff is entitled to recover.

           DATE:     March 14, 2013.

                                         Respectfully submitted,

                                         /S/ NORMA VENSO



                                         NORMA VENSO
                                         ATTORNEY AT LAW
                                         830 APOLLO
                                         HOUSTON, TEXAS 77058
                                         409.789.8661
                                         FACSIMILE NO. 281.286.9990

                                         STATE BAR NO. 20545250




    c:word.griffin_anthony_[schlein_barbara]_original_petition




                                               12
                                                                      000021
                          Cross-Appellant's Appendix21
Cross-Appellant's Appendix22
                                                                                                  Filed
000026                                                                                            13 June 18 P3:29
                                     CAUSE NO. CV-0069481                                         Dwight D. Sullivan
                                                                                                  County Clerk
ANTHONY GRIFFIN                                   §                     IN THE COUNTY        COU~~veston County
    Plaintiff,                                    §
                                                  §
v.                                                §                                 AT LAW NO.2
                                                  §
BARBARA REGINA SCHLEIN                            §
    Defendant.                                    §              GALVESTON COUNTY, TEXAS


               DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM

TO THE HONORABLE JUDGE OF SAID COURT:

         COMES NOW, Defendant Barbara Regina Schlein ("Defendant") files this Amended

Answer to the Original Petition filed by Plaintiff Anthony Griffin ("Plaintiff') and Counterclaims

as follows:

                                     AMENDED ANSWER

                                          General Denial

         1.1    Pursuant to Tex. R. Civ. P. 92, Defendant generally denies all allegations made

against her and on trial hereof demand strict proof of Plaintiffs allegations by a fair preponderance

of the evidence, as required by law and the Constitution of the State of Texas.

                                       Affirmative Defenses

         1.2    Defendant is not liable or in breach of contract due to accord and satisfaction, as

Plaintiff agreed to and acknowledged receipt of items of tangible value in exchange for

extinguishment of debt owed under one or more of the alleged contracts between Plaintiff and

Defendant.

         1.3    Defendant is not liable or in breach of contract as one or more of Plaintiff's claims

regarding an alleged contract between Plaintiff and Defendant are barred for failure of consideration.

         1.4    Defendant is not liable as Plaintiff cannot recover under quantum meruit since

Plaintiff has unclean hands.


DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM                                              PAGE 1 OF 6
                                                                                                000026
                           Cross-Appellant's Appendix23
000027




         1.5    Defendant asserts that the conduct and/or damages alleged by Plaintiff are the result

of acts or omissions committed by Plaintiff. Defendant therefore invokes the procedures and

protections set forth in Texas Civil Practice and Remedies Code §33.001, et seq.

         1.6    Defendant is or may be entitled to certain credits and/or off-sets pursuant to the

common law of the State of Texas and/or Chapter 32 and/or Chapter 33 of the Texas Civil Practice

& Remedies Code.

         I. 7   Defendant is entitled to contribution and/or indenmity from any Plaintiff, Defendant,

or third party Defendant now or hereinafter named in this lawsuit, pursuant to contract and/or as

provided under the common law of the State of Texas and/or pursuant to Chapters 33 and/or Chapter

41 of the Texas Civil Practice & Remedies Code.

                                ORIGINAL COUNTERCLAIM

                                   FACTUAL BACKGROUND

         2.1    On November 3, 2009, Schlein and Griffin, representing the Griffin Law Firm, signed

a Contractual Agreement to retain Griffin's legal services to represent Schlein in her divorce

proceedings. See Contractual Agreement (hereinafter "Contractual Agreement," attached as Exhibit

A). The Contractual Agreement provides for a $35,000 retainer fee to be paid by Schlein, subject

to an understanding that there was a court order which prevented Schlein from expending funds

without approval of the court. Ex. A. The Contractual Agreement further provides that the retainer

is "non-refundable" and that "once the fee is paid, it shall be deemed earned." Ex. A.

         2.2    Griffin supplemented the Contractual Agreement by providing Schlein with an

Explanation of Contract and Letter Agreement (hereinafter "Letter Agreement," attached as Exhibit

B. The Letter Agreement provides that the "contract relates to the family matter but contemplates

adding claims and/or amending the pleadings" in a separate pending action. !d.            The Letter



DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM                                              PAGE 2 OF 6
                                                                                               000027
                           Cross-Appellant's Appendix24
000028




Agreement further states that "the retainer is set at an amount that it is anticipated that no additional

fees will be charged." !d.

         2.3      The Letter Agreement also contemplates possible separate lawsuits and states that a

separate contract will be drawn for those cases and that a contingent fee arrangement is

contemplated. Ex. B.

         2.4      On October 24, 2011, a Final Decree of Divorce was entered for Schlein. See Final

Decree of Divorce (attached as Exhibit C). In this Final Decree, the court awarded to Schlein several

pallets of Travertine marble as her sole and separate property. !d. at 3. Furthermore, the court

specifically stated that this Travertine marble belonging to Schlein was in Griffin's possession. !d.

         2.5      Professional appraisal of this Travertine marble has been valuated at $56,338.85. See

Product Appraisal (attached as Exhibit D).

         2.6    Following this resolution of her divorce proceedings, Griffin accepted this Travertine

marble as payment for legal services rendered.

                                     BREACH OF CONTRACT

         3 .I     All proceeding paragraphs are hereby incorporated by reference. There was a valid,

enforceable contract-specifically the Contractual Agreement and Letter Agreement-between the

parties to this suit. Schlein fully performed her duties under the Contractual Agreement and Letter

Agreement. Griffin failed to perform his duties and breached the Contractual Agreement and Letter

Agreement. Griffin's breach proximately caused Schlein's injury. As a result, Schlein seeks to

recover actual damages, benefit of the bargain damages, and reliance damages.

                                      LEGAL MALPRACTICE

         4 .I     All proceeding paragraphs are hereby incorporated by reference. As her attorney,

Griffin owed a duty of care to Schlein. Griffin's negligent acts and/or omissions breached that duty.



DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM                                                PAGE 3 OF 6
                                                                                                   000028
                             Cross-Appellant's Appendix25
000029




As a result of Griffin's breach, Schlein was injured and suffered damages. As a result, Schlein seeks

to recover actual damages, benefit of the bargain damages, and reliance damages.

                                BREACH OF FIDUCIARY DUTY

         5 .I   All proceeding paragraphs are hereby incorporated by reference. As a result of the

attorney-client relationship, Griffin owed a fiduciary duty to Schlein. Griffin breached his fiduciary

duty by failing to do one or more of the following actions: (I) preserve client confidences; (2)

represent the client with undivided loyalty; (3) act with absolute perfect candor, openness and

honesty without any concealment or deception; (4) to be strictly honest about the fee arrangement

and refrain from self dealing; (5) inform client of matters material to the representation; (6) to turn

over funds belonging to the client; and (7) to follow the client's instructions. As a result ofGriffin's

breach, Schlein was injured and suffered damages. Furthermore, Griffin also benefitted financially

from the breach. As a result, Schlein seeks to recover actual damages, benefit of the bargain

damages, and reliance damages.

                                               FRAUD

         6.1    All proceeding paragraphs are hereby incorporated by reference. Griffin made a

material representation to Schlein in the Contractual Agreement and Letter Agreement that any

Griffin's representation of Schlein in any additional matters would be on a contingency fee basis and

covered by a separate agreement. Griffin knew this representation was false at the time it was made.

Griffin made this representation to Schlein with the intent that she rely on the representation and

enter into the Contractual and Letter Agreements. Schlein relied on these representations and entered

into the Contractual and Letter Agreements with Griffin, and as a result she was injured. As a result,

Schlein seeks to recover actual damages, benefit of the bargain damages, attorney's fees and reliance

damages.



DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM                                               PAGE 4 OF 6
                                                                                                  000029
                            Cross-Appellant's Appendix26
000030




                            FRAUD FOR FAILURE TO DISCLOSE

         7 .I   All proceeding paragraphs are hereby incorporated by reference. Griffin concealed

material facts relating to the his representation of Schlein from her. Due to the fiduciary relationship

between the parties, Griffin had a duty to disclose these facts to Schlein. The omitted facts were

material to the decisions that were made by Schlein. Griffin knew that Schlein was ignorant of the

facts and that she did not have an opportunity to discover the facts. Griffin was deliberately silent

regarding the material facts and intended to induce Schlein to sign the Contractual Agreement by

omitting these facts. Schlein relied on Griffin's non-disclosure when consenting to the Contractual

and Letter Agreements and as a result was injured. Schlein seeks to recover attorney's fees pursuant

to Tex. Civ. Prac. & Rem. Code Ch. 38.

                                  DEMAND FOR JURY TRIAL

         8.1    Defendant hereby demands a trial by jury and tenders the appropriate fee.

                                         RELIEF REQUESTED

         WHEREFORE, PREMISES CONSIDERED, Defendant respectfully requests the Court to

dismiss this suit or render judgment that Plaintiff take nothing by reason of this suit. Furthermore,

upon trial of this case, Counter-Plaintiff Schlein respectfully asks to be awarded:

                a.     Actual damages;

                b.      Exemplary damages;

                c.      Pre-judgment and post-judgment interest;

                d.      Costs of suit;

                e.     Attorney's fees pursuant to Tex. Civ. Prac. & Rem. Code Ch. 38; and

                f.      Such other and further relief to which Schlein may be justly entitled.




DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM                                               PAGE 5 OF 6
                                                                                                  000030
                            Cross-Appellant's Appendix27
000031




                                              Respectfully submitted,

                                              CHRISTIAN SMITH & JEWELL, LLP


                                              By:     /s/ Stephen H Cagle, Jr.
                                                      Stephen H. Cagle, Jr.
                                                      State Bar No. 24045596
                                                      Heather C. Panick
                                                      State Bar No. 24062935
                                                      2302 Fannin, Suite 500
                                                      Houston, Texas 77002
                                                      (713) 659-7617 (Phone)
                                                      (713) 659-7641 (Fax)

                                              ATTORNEYSFORDEFENDANT




                                 CERTIFICATE OF SERVICE

       I hereby certify that on this l8 1h day ofJune, 2013, a true and correct copy of the above and
foregoing document has been duly served upon all attorneys of record via hand delivery and/or
facsimile and/or regular mail and/or certified mail, return receipt requested.

Norma Venso
Attorney at Law
830 Apollo
Houston, Texas 77058
Phone: (409) 789-8661
Fax: 281-286-9990


                                                            /s/ Stephen H Cagle, Jr.
                                                              Stephen H. Cagle, Jr.




DEFENDANT'S AMENDED ANSWER AND COUNTERCLAIM                                             PAGE 6 OF 6
                                                                                               000031
                           Cross-Appellant's Appendix28
Cross-Appellant's Appendix29
000628




                             CAUSE NO. CV-0069481

    ANTHONY P. GRIFFIN,                    IN THE COUNTY COURT
    INQIVIDUALLY D/B/A
    A GRIFFIN LAWYERS

    v.                                     ATLAWN0.2               ~ ~ ~
                                                                   ::;     ""·     ...,
                                                                         :S ; ,._, g      ·n
    BARBARA REGINA SCHLEIN                 GALVESTON COUNTY, .WXfo.S ~

                PLAINTIFF(S)'S, ANTHONY P. GRIFFIN AND . .~ -~ ,~
            A GRIFFIN LA WYERS, SECOND AMENDED PETIT~~.

    TO THE HONORABLE JUDGE OF SAID COURT:

          This lawsuit is brought to collect on outstanding debts due and owing

    to Anthony P. Griffin, as owner of the assumed name of A Griffin Lawyers

    (an r assumed name for Anthony P. Griffin), and sole owner of a former

    corporate legal entity known as Anthony P. Griffin, Inc. (defunct

    corporation, not good standing), hereinafter and sometimes referred to as

    Plaintiff(s)), with regards to services rendered to Barbara Regina Schlein,

    hereinafter and sometimes referred to as Defendant. Plaintiff(s) would show

    unto the Court as follows, to-wit:
     I



                                           I.

          This is a Schedule 2 matter and as such it is requested that the Court

    establish a scheduling order herein.




                                           1
                                                                                     000628
                       Cross-Appellant's Appendix30
000629




                                           II.

           At all times material to this action, Plaintiff is a licensed lawyer in the

    State of Texas engaged in the practice of law. Plaintiff is also the sole

    owner of the debts and assets of the defunct professional corporation known

    as Anthony P. Griffin, Inc., and did business as A Griffin Lawyers. Anthony

    P. Griffin is also the sole owner of the debts and assets of the assume name

    of A Griffin Lawyers.

         . Defendant, Barbara Schlein, has been served and has answered in this

    matter.

             All matters material to this action occurred m Galveston County,

    Texas.

                                           III.

                       Breach of Contract Claim- Family Claim

             In November 3, 2009, Plaintiff(s) entered a contract of employment

    with Defendant. The contract called for the Defendant to pay to Plaintiff(s)

     an initial retainer of $35,000.00 and for Plaintiff(s) to be paid a reduced

     hourly rate for any work over $35,000.00. The contract was entered with
     ; t
     knowledge of the long-term and protracted nature of the underlying




                                             2
                                                                                    000629
                        Cross-Appellant's Appendix31
000630




    family/business law litigation. 1 Defendant never paid the initial retainer of

    $35,000.00, but explained to Plaintiff(s) that she was trustworthy, that she

    always paid her bills and that if the Plaintiff(s) took care of her interest, she

    would take care of him.

           Plaintiff(s) represented Defendant in the family litigation and

    maintained business records during the course of the representation. At the

    end of the representation, Plaintiff( s) forwarded a bill setting out the total

    amount of time expended on Plaintiff(s)'s behalf was 352.50 hours x

    $300.00 an hour for a total of$105,750.00. Plaintiff(s)'s office also incurred

    some $22,339.29 in costs. The total attorneys' fee and costs incurred on

    behalf of the client and due and owing is $128,089.29.

           Plaintiff( s) sues for this amount and prays for judgment.

                                              III.

                                      Prayer for Relief

            Plaintiff( s) prays for the following relief in this matter:

            1.     Actual damages incurred by Plaintiff(s) associated with all

     claims asserted herein ($11 0,524.29);




     1
      In the Matter of the Marriage of Barbara Regina Schlein and Robert John Schlein; Case
     No. 08FD2371; in the County Court at Law, No.2, Galveston, County, Texas.


                                               3
                                                                                        000630
                         Cross-Appellant's Appendix32
000631




           2.     Plaintiff( s) seeks pre-judgment interest, post judgment interest,

    court costs, and reasonable and necessary attorney's fees for the breach of

    contract that Plaintiff(s) is entitled to recover.

           3.     Plaintiff( s) seeks the recovery of all damages under law and

    equity that Plaintiff(s) is entitled to recover.

           DATE: February 24,2014.

                                       Respectfully submitted,

                                       /~AVENSO

                                        ~~4 ~Pfi~!X?
                                       NORMA VENSO
                                       ATTORNEY ATLAW
                                       830APOLLO
                                       HOUSTON, TEXAS 77058
                                       409.789.8661
                                       FACSIMILE NO. 281.286.9990

                                       STATE BAR NO. 20545250




                                                                                 N
                                                                                 co




                                              4
                                                                                  000631
                         Cross-Appellant's Appendix33
000632




                                         CERTIFICATE OF SERVICE

               This is to certify that on this the 24th day of February, 2014, a true and

    correct copy of the foregoing Plaintiff(s)'s Second Amended Petition was

    forwarded to opposing counsel, by facsimile transmission and by regular

    mail (confirmation copy), to:

                                      STEPHEN H. CAGLE, JR.
                                            JOE E. LUCE
                                         GARY M. JEWELL
                                 CHRISTIAN, SMITH & JEWELL, L.L.P.
                                      2302 FANNIN, SUITE 500
                                      HOUSTON, TEXAS 77002



                                                          19~
                                                            .A VENSO -~
                                                               ~~~'~ .~
                                                          NORMAVENSO




     c:word.griffin_anthony_[schlein_barbara]_plaintiff(s)_second_amended_petition          rn
                                                                                            CJ




                                                                    5
                                                                                       000632
                                    Cross-Appellant's Appendix34
Cross-Appellant's Appendix35
000429




                                       CAUSE NO. CV 69481

ANTHONY GRIFFIN                                     §     IN THE COUNTY COURT AT LAW
         Plaintiff                                  §
                                                    §                            N0.2
v.                                                  §
                                                    §        GALVESTON COUNTY, TEXAS
BARBARA REGINA SCHLEIN                              §
         Defendant                                  §

                          ORDER DENYING PLAINTIFF'S
                    PARTIAL MOTION FOR SUMMARY JUDGMENT

         CAME ON THIS DAY for consideration, Plaintiff Anthony Griffin's Partial Motion for

Summary Judgment. After considering Plaintiffs Motion, Defendant's opposition, arguments of

counsel, and the law, the Court finds that Plaintiffs Motion should be denied. It is therefore,

         ORDERED that Plaintiffs Partial Motion for Summary Judgment is Denied.

         Signed this 2ih day ofDecember 2013.

                                             t~&e"'--=--~~=:...=......::.~~=-=----.,.,.c;=-...:~--"""-----==----
                                             BARBARA E. ROBERTS, JUDGE PRESIDING




                                                                                                           -n
                                                                                                           -r.
                                                                                                            rn
                                                                                                            0




                                                                                                        000429
                          Cross-Appellant's Appendix36
Cross-Appellant's Appendix37
000760




                                       CAUSE NO. CV 69481

ANTHONY GRIFFIN                                    §   IN THE COUNTY COURT AT LAW
                                                   §
v.                                                 §                     N0.2
                                                   §
BARBARA REGINA SCHLEIN                             §       GALVESTON COUNTY, TEXAS

                    ORDER DENYING DEFENDANT'S TRADITIONAL
                    MOTION FOR PARTIAL SUMMARY JUDGMENT

         CAME ON THIS DAY for consideration, Defendant Barbara Schlein's Traditional

Motion for Partial Summary Judgment.          After considering Defendant's Motion, Plaintiffs

opposition, arguments of counsel, and the law, the Court finds that Defendant's Motion should

be denied. It is therefore,

         ORDERED that Defendant Barbara Schlein's Traditional Motion for Partial Summary

Judgment is Denied.

         Signed this 281h day of February 2014.

                                            ~~~
                                              BARBARA E. ROBERTS, JUDGE PRESIDING



                                                                                    C)
                                                                                                      -~,
                                                                                   >                   \ <::             --4




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                                                                                                                        000760
                              Cross-Appellant's Appendix38
Cross-Appellant's Appendix39
Cross-Appellant's Appendix40
Cross-Appellant's Appendix41
Cross-Appellant's Appendix42
Cross-Appellant's Appendix43
Cross-Appellant's Appendix44
Cross-Appellant's Appendix45
Cross-Appellant's Appendix46
Cross-Appellant's Appendix47
Cross-Appellant's Appendix48
Cross-Appellant's Appendix49
Cross-Appellant's Appendix50
Cross-Appellant's Appendix51
Cross-Appellant's Appendix52
Cross-Appellant's Appendix53
Cross-Appellant's Appendix54
Cross-Appellant's Appendix55
Cross-Appellant's Appendix56
Cross-Appellant's Appendix57
Cross-Appellant's Appendix58
Cross-Appellant's Appendix59
Cross-Appellant's Appendix60
Cross-Appellant's Appendix61
Cross-Appellant's Appendix62
Cross-Appellant's Appendix63
Cross-Appellant's Appendix64
Cross-Appellant's Appendix65
Cross-Appellant's Appendix66
Cross-Appellant's Appendix67
Cross-Appellant's Appendix68
Cross-Appellant's Appendix69
                                                                          1
                               VERDICT
                             May 27, 2014



1                        REPORTER'S RECORD
                      VOLUME 13 OF 19 VOLUMES
2                 TRIAL COURT CAUSE NO. CV-0069481    FILED IN
                                                1st COURT OF APPEALS
              APPELLATE COURT CAUSE NO. 01-14-00799-CV
                                                     HOUSTON, TEXAS
3
                                                  10/28/2014 3:07:32 PM
4                                                 CHRISTOPHER A. PRINE
                                                           Clerk
5    ANTHONY P. GRIFFIN          ) IN THE COUNTY COURT
                                 )
6    vs.                         ) AT LAW NO. 2
                                 )
7    BARBARA REGINA SCHLEIN      ) GALVESTON COUNTY, TEXAS
8

9
10         _____________________________________________
11                            VERDICT
           _____________________________________________
12
13
14         On the 27th day of May, 2014, the following

15   proceedings came on to be held in the above-titled and
16   numbered cause before the Honorable Barbara Roberts,
17   Judge Presiding, held in Galveston, Galveston County,

18   Texas.
19         Proceedings reported by computerized stenotype
20   machine.

21
22
23

24
25




                Cross-Appellant's Appendix70
                                                                2
                            VERDICT
                          May 27, 2014



1                          APPEARANCES
2    Ms. Norma Venso
     SBOT NO. 20545250
3    Clear Lake Arbitration
     830 Apollo Lane
4    Houston, Texas 77058
     Telephone: 409.789.8661
5    Fax: 409.737.9245
     E-mail: nvenso@earthlink.net
6    Counsel for Plaintiff

7    Mr. Stephen H. Cagle, Jr.
     SBOT NO. 12314500
8           and
     Ms. Heather Panick
9    SBOT NO. 24062935
     Christian, Smith & Jewell, LLP
10   2302 Fannin, Suite 500
     Houston, Texas 77002
11   Telephone: 713.659.7617
     Fax: 713.659.7641
12   E-mail: scagle@csi-law.com
     Counsel for Defendant
13
     Mr. Stephen R. 'Stretch' Lewis, Jr.
14   SBOT NO. 12314500
     Attorney-at-Law
15   2200 Market St., Suite 750
     Galveston, Texas 77550-1551
16   Telephone: 409.762.1900
     Counsel for Defendant
17
                              INDEX
18                          VOLUME 13
                             VERDICT
19
20   May 27th, 2014                           Page No.   Vol.

21   Appearances ..........................      2       13
22   Jury questions .......................      3       13
23   Jury Verdict .........................      3       13

24   Reporter's Certificate ...............      7       13
25




               Cross-Appellant's Appendix71
                                                                    3
                              VERDICT
                            May 27, 2014



1                     THE COURT:   The first question is:    "Can
2    we see the tile?"
3                     And I'm going to say, "Yes, the bailiff

4    will bring it to them."
5                     The second is:   "Can we choose who gets
6    the tile?"

7                     MS. VENSO:   I knew that would be an
8    issue.   I think we just have to answer that that you

9    only answer the questions in the Court's charge.
10                    THE COURT:   Right.   Okay.
11                    Are you okay with that?

12                    MR. CAGLE:   I'm okay with that.
13                    THE COURT:   All right.   "Yes, you may see
14   the tile.    The bailiff will bring it to you."

15                    Two will be:   "Answer the questions
16   proposed, or answer the questions submitted?"
17                    MR. CAGLE:   I think either is fine.

18                    THE COURT:   I understand from the bailiff
19   that they're going to work through lunch until 1:00
20   O'clock; and then they will leave because one of the

21   juror's 5-year-old daughter is apparently ill; and so
22   mom needs to get home; but they want to return early
23   tomorrow.    I think they're talking about 8:00 or 8:30.

24   So we'll get a definite time and let everyone know.
25                    (Recess taken)




                  Cross-Appellant's Appendix72
                                                                   4
                              VERDICT
                            May 27, 2014



1                     THE COURT:    I understand the jury has
2    reached a verdict; is that correct?
3                     THE FOREPERSON:      Yes, your Honor.

4                     THE COURT:    All right.   Would you hand
5    the verdict to the bailiff, please?
6                     All right.    Question No. 1:   Yes.

7                     Question 2:    No.
8                     Question 3 is not applicable.

9                     Question 4:    No.
10                    Question 5:    A is $105,750.
11                    5 B) $22,399.29.

12                    Question 6 is not answered.
13                    7 A) $62,836.    B) 15,000    C) 25,000.
14                    Question 8:    A through E are marked NA.

15                    Question 9:    No.
16                    Question 10:    A, B, and C are marked NA.
17                    Question 11:    No.

18                    Question 12:    A, B, C, D, and E are
19   marked NA.
20                    Question 13:    No.

21                    Question 14:    A, B, C, D:   NA.
22                    Question 15:    A, B, C, D:   NA.
23                    Question 16:    NA.

24                    Question 17:    No.
25                    Question 18:    Yes.




                  Cross-Appellant's Appendix73
                                                                   5
                              VERDICT
                            May 27, 2014



1                   Question 19:   Yes.
2                   Question 20:   A) zero.   B) zero.    C)
3    zero.

4                   Question 21:   Answer:    $5,000.
5                   Question 22:   A, B, C, D, E:   NA.
6                   Question 23:   NA.

7                   All right.   And the presiding juror has
8    signed it and so has all six jurors -- is that

9    correct -- this was unanimous?
10                  THE FOREPERSON:   Yes.
11                  THE COURT:   All right.   Does anybody need

12   the jury poled?
13                  MS. VENSO:   No, your Honor.
14                  MR. CAGLE:   No, your Honor.

15                  THE COURT:   All right.   I'm going to
16   release the jury.
17                  Okay.   Ladies and gentlemen, I'm

18   releasing you from all instructions.     You may update
19   your status on Facebook.    You may talk about this case
20   with anyone.   I will tell you that frequently the

21   attorneys like to talk to members of the jury, just to
22   see what may suede you one way or the other, but just to
23   talk to you.   That is totally your discretion.     You may

24   speak to one or more of the attorneys in this matter if
25   you wish to or if you don't wish to, you're under no




               Cross-Appellant's Appendix74
                                                              6
                              VERDICT
                            May 27, 2014



1    obligation to do so.
2                  You may now follow the bailiff to get
3    your personal belongings, and I'll be right back there

4    to answer any questions or concern you may have.
5                  (Proceedings concluded)
6

7
8

9
10
11

12
13
14

15
16
17

18
19
20

21
22
23

24
25




               Cross-Appellant's Appendix75
                                                                7
                             VERDICT
                           May 27, 2014



1    STATE OF TEXAS
2    COUNTY OF GALVESTON
3

4         I, Jana Fowler, Official Court Reporter in and for
5    the County Court at Law No. 2 of Galveston, State of
6    Texas, do hereby certify that the above and foregoing

7    contains a true and correct transcription of all
8    portions of evidence and other proceedings requested in

9    writing by counsel for the parties to be included in
10   this volume of the Reporter's Record in the above-styled
11   and numbered cause, all of which occurred in open court

12   or in chambers and were reported by me.
13        I further certify that this Reporter's Record of
14   the proceedings truly and correctly reflects the

15   exhibits, if any, offered by the respective parties.
16        I further certify that the total cost for the
17   preparation of this Reporter's Record is $38.50 and was

18   paid Mr. Cagle.
19
                              /s/Jana Fowler
20

21                            Jana Fowler, CSR
                              Texas CSR 8658
22                            Official Court Reporter
                              County Court at Law No. 2
23                            Galveston County, Texas
                              600 59th Street
24                            Galveston, Texas 77551
                              Telephone: 409.765.2407
25                            Expiration: 12/31/2014




               Cross-Appellant's Appendix76
Cross-Appellant's Appendix77
001208




                                     CAUSE NO. CV-0069481

   ANTHONY GRIFFIN                                                    IN THE COUNTY COURT
       Plaintiff

   v.                                                                                  AT LAW NO.2

   BARBARA REGINA SCHLEIN
       Defendant.                                             GALVESTON COUNTY, TEXAS


                        ORDER DE:\fYI~G PLAI:\fTIFFS' :\10TION FOR
                       JUDG:\1E:\fT NOT\VITHST ANDING THE VERDICT

         On this day, the Court considered Plaintiffs' Motion for Judgment Notwithstanding the

  Verdict and after considering the motion, the response and argument of counseL the Court hereby

  denies the motion.

         IT IS THEREFORE ORDERED that Plaintiffs' Motion for Judgment Notwithstanding the

  Verdict is denied. It is further

         ORDERED that Defendant's objections to Plaintiffs proposed judgment are sustained.




                                                         ;f}&l~z;~
                                                            Judge Presiding



                                                                      cq
                                                                      '
                                                                                  r-n
                                                                            ' ·-··- L- '-"

                                                                14 JUL - I M1 8: 23


                                                               GAI.V::- '




                                                                                                    1001208
                            Cross-Appellant's Appendix78
   ORDER DENYING PLAINTIFFS" MOTION FOR JNOV                                                 PAGE    OF I
Cross-Appellant's Appendix79
001249




                                        CAUSE NO. CV-0069481

                                                                             IN THE COUNTY COURT


                                                                                              AT LAW N0.2

  B                                                                 GALVESTON COUNTY, TEXAS


                                                 FINAL JUDGMENT

                                                                                                           Plaintifff'

                                             s and Defendant Barbara Schlein appeared and announced

                                                    swom, it heard evidence and art,ruments of counsel.

                                                                  estions of fact in the case to the jury. In



  charge of the court and the verdict oftl




  Griffin Lawyers is entitled to recover from Defenda

  fees as set forth below.




  Barbara Schlein, as follows:

             a)



             b) The sum of SIXTY TWO THOUSAND EIGHT HUND!4:Dllt.IX
                  00/100 DOLLARS ($62,862.00) for reasonable and nec4_sa~y ~tto::· ev.'-f fees. for
                  preparation and trial;                                       /~   .
                                                                     . ..,...:.r/.-~·t- .'V
                                                                                          \."
                                                                                              '<--f~;;L"i~
                                                                                                  ..~-""

                                                                                        :r·ft~ITY l~'· ~-~~
                                                                               GA.\ v~--~         ··.·        ·;-v \S
                                                                                            Ex. 1
                                                                                                           001249
  NOTICE OF HEARING
                             Cross-Appellant's Appendix80                                           PAGE 1 OF2
001250




             c) The sum    of~USAND                AND 00/100 DOLLARS ($15,000.00) in the event
                 fa appeal to the Court of Appeals; for reasonable and necessary attorney's fees
                f r representation through appeal to the Court of Appeals.

                  The sum ofTWENTY FIVE THOUSAND DOLLARS ($25,000.00) in the event of
                  an appeal   e Supreme Court ofTexas for reasonable and necessary attorney's
                  fees f re esentation at the petition for review stage in the Supreme Court of
                  T

                                 nterest on the sum of SIXTEEN THOUSAND EIGHTEEN AND
                                      ($16,0 18.66).

                                    te est on the total sum awarded at the annual rate of Five Percent


             g)

         It is further ORDER



                                                                         from Griffin's unconscionable




         It is further ORDERED, ADJUDGE

  enforcement and collection of this Judgment or th

         All relief not expressly I:,rranted is denied.



         SIGNED this    .j()       day of June, 2014.




                                                                                             /.
 APPROVED AS TO FORM ONLY- Defendant (I) disagrees with the cont                         , j({<J~!-~~'-"~,_.,
 agrees only to the fonn of this judgment, and (3) plans to appeal this d ~l '{[!                   . 9fe,
 Defendant expr~ssly reserves all rights to modify or appeal this proposed ju8~111e · ·.--S ,- First Na1.~ 5
 Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989)




                                                                                                  001250
  :'IIOTICE OF HEARING       Cross-Appellant's Appendix81                                    PAGE20F2
Cross-Appellant's Appendix82
001245




                                   CAUSE NO. CV-0069481

  ANTHONY GRIFFIN                             §                           IN THE COUNTY COURT
      Plaintiff,                              §
                                              §
  v.                                          §                                       ATLAWN0.2
                                              §
  BARBARA REGINA SCHLEIN                      §
      Defendant.                              §                   GALVESTON COUNTY, TEXAS

                 ORDER ON DEFENDANT'S MOTION FOR NEW TRIAL


         The Court has considered the Defendant's Motion for New Trial. It is ORDERED that

  Defendant's Motion for New Trial is

                    ap AJ>JTFD            DiilSI IE R   d!id   tit 2 F pe 1 bdgmept dated   lppg   20, 26t4



         SIGNED this    !/       dayof~                         ,2014.



                                                  ~~;;'~
                                                   JUDGE PRESIDING




                                                                         F\LED
                                                                   14SEP I 2 AH 9: 58
                                                                  {iJ. ~ ;.t
                                                                          ;f.~~-
                                                                 ~OUtHY       CLERK
                                                                  IM;YESTON COI!!ot!V, TC(A.S
  ORDER ON DEFENDANT'S FIRST MOTION FOR NEW TRIAL                                            PAGEl OFt




                                                                                                      001245
                         Cross-Appellant's Appendix83
Cross-Appellant's Appendix84
                                                                                                                 Filed
                                                                                                 9/26/2014 2:32:09 PM
001247                                                                                              Dwight D. Sullivan
                                                                                                         County Clerk
                                                                                              Galveston County, Texas


                                     CAUSE NO. CV-0069481

ANTHONY GRIFFIN                                   §                      IN THE COUNTY COURT
    Plaintiff,                                    §
                                                  §
v.                                                §                                 AT LAW NO. 2
                                                  §
BARBARA REGINA SCHLEIN                            §
    Defendant.                                    §              GALVESTON COUNTY, TEXAS


                             DEFENDANT’S NOTICE OF APPEAL

         COMES NOW, Defendant Barbara Regina Schlein (“Schlein”) and files her Notice of

Appeal pursuant to Texas Rule of Appellate Procedure 25.1.

         Please take notice that Defendant desires to appeal to either the First or Fourteenth Circuit

of Appeals the Final Judgment in Cause No. CV-0069481; Anthony Griffin v. Barbara Regina

Schlein; in the County Court at Law No. 2, Galveston County, Texas on June 30, 2014. A copy of

the Final Judgment is attached hereto as Exhibit 1.

         Pursuant to the Texas Rule of Appellate Procedure 26.1(a)(1) the deadline for filing this

Notice of Appeal is Monday, September 29, 2014 as Defendant timely filed a Motion for New Trial.



                                               Respectfully submitted,

                                               CHRISTIAN SMITH & JEWELL, LLP

                                               By:      /s/ Stephen H. Cagle, Jr.
                                                       STEPHEN H. CAGLE, JR.
                                                       State Bar No. 24045596
                                                       HEATHER C. PANICK
                                                       State Bar No. 24062935
                                                       2302 Fannin, Suite 500
                                                       Houston, Texas 77002
                                                       (713) 659-7617 (Phone)
                                                       (713) 659-7641 (Fax)

                                               ATTORNEYS FOR DEFENDANT

DEFENDANT’S NOTICE OF APPEAL
                                                                                                001247
                            Cross-Appellant's Appendix85
001248




                                   CERTIFICATE OF SERVICE

         I hereby certify that on this 26th day of September, 2014, a true and correct copy of the above

and foregoing document has been duly served upon all attorneys of record via hand delivery and/or

facsimile and/or regular mail and/or certified mail, return receipt requested and/or by eService.



         Norma Venso
         Attorney at Law
         830 Apollo
         Houston, Texas 77058
         Phone: (409) 789-8661
         Fax: (281) 286-9990

         Stephen R. “Stretch” Lewis, Jr.
         Lewis & Williams, LLP
         2200 Market Street, Suite 750
         Galveston, Texas 77550
         Phone: (409) 762-1900
         Fax: (409) 762-4606

                                                         /s/ Stephen H. Cagle, Jr.
                                                        Stephen H. Cagle, Jr.




DEFENDANT’S NOTICE OF APPEAL
                                                                                                  001248
                             Cross-Appellant's Appendix86
Cross-Appellant's Appendix87
                                                                                                   Filed
                                                                                 10/10/2014 6:13:22 PM
001251                                                                                Dwight D. Sullivan
                                                                                           County Clerk
                                                                                Galveston County, Texas




                               CAUSE NO. CV0069481

ANTHONY P. GRIFFIN                               IN THE COUNTY COURT

V.                                               AT LAW NO. 2

BARBARA REGINA SCHLEIN                           GALVESTON COUNTY, TEXAS

                       PLAINTIFFS’, ANTHONY P. GRIFFIN,
                           CROSS NOTICE OF APPEAL

TO THE HONORABLE JUDGE OF SAID COURT:

         Plaintiff/Counter-Defendant, hereinafter referenced as Griffin, files this his

cross-notice of appeal. Griffin would show unto the Court as follows:

                                            I.

                             On Finding Adverse to Griffin

           Griffin appeals the finding adverse to Griffin (finding of unconscionable

conduct and a $5,000.00 damage award. This appeal is to the Court of Appeals

and is a cross-appeal from the appeal of Barbara Schlein on September 26, 2014

(case already assigned to a Court).

         DATE: October 10, 2014.
                                         Respectfully submitted,

Toll Free: 888-388-TODD (8633) 1-6/s/ NORMA VENSO
                                   ______________________________
                                   NORMA VENSO




                                            1

                                                                                  001251
                         Cross-Appellant's Appendix88
001252




                    ATTORNEY AT LAW
                    830 APOLLO
                    HOUSTON, TEXAS 77058
                    409.789.8661
                    FACSIMILE NO. 281.286.9990

                    STATE BAR NO. 20545250

                    ATTORNEYS FOR PLAINTIFF/
                    COUNTER-DEFENDANT GRIFFIN




                      2
                                                 001252
         Cross-Appellant's Appendix89
001253




                                            CERTIFICATE OF SERVICE

          This is to certify that on this the 10th day of October, 2014, a true and correct

copy of the foregoing Plaintiff /Counter-Defendant’s Cross-Appeal was forwarded

to opposing counsel by facsimile transmission and regular mail (confirmation

copy), to-wit:

                                       STEPHEN H. CAGLE, JR.
                                             JOE E. LUCE
                                          GARY M. JEWELL
                                  CHRISTIAN, SMITH & JEWELL, L.L.P.
                                       2302 FANNIN, SUITE 500
                                       HOUSTON, TEXAS 77002


                                                                 /s/ NORMA VENSO
                                                                 _____________________________

                                                                 NORMA VENSO




c:word.griffin_anthony_[schlein_barbaral]_plaintiff_cross_notice_appeal




                                                                     3
                                                                                                 001253
                                      Cross-Appellant's Appendix90
Cross-Appellant's Appendix91
Cross-Appellant's Appendix92
Cross-Appellant's Appendix93
Cross-Appellant's Appendix94
Cross-Appellant's Appendix95
Cross-Appellant's Appendix96
Cross-Appellant's Appendix97
Cross-Appellant's Appendix98
Cross-Appellant's Appendix99
Cross-Appellant's Appendix100
Cross-Appellant's Appendix101
