Affirmed and Plurality, Concurring, and Dissenting Opinions filed December
31, 2013.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-12-00685-CV

              HIGHTOWER, RUSSO & CAPELLAN, Appellant
                                        V.

             IRESON, WEIZEL & HIGHTOWER, P.C., Appellee

                    On Appeal from the 80th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2010-80230

                  CONCURRING OPINION

      Intervenor/appellee Ireson, Weizel & Hightower, P.C. (the “Ireson Firm”)
has a valid and enforceable contingency-fee contract with the plaintiff in the trial
court below (the “Client”). Under this contract, the Ireson Firm is entitled to
recover the entire contingency fee at issue in this appeal. Intervenor/appellant
Hightower, Russo & Capellan (the “Hightower Firm”) does not have any
contingency-fee contract with the Client, nor does the Hightower Firm claim to
have one.

      The Ireson Firm intervened in the trial court below seeking to protect its
contingency-fee interest in the amounts paid by the defendants in settlement of the
Client’s claims. Timothy Hightower, individually and on behalf of the Hightower
Firm, intervened in the trial court below. But, this intervention was based on
ongoing disputes between Hightower and the Ireson Firm and its other
shareholders. In this intervention, Ira Weizel, a shareholder of the Ireson Firm,
was named as a defendant.

      In their intervention petition, Hightower and the Hightower Firm
(collectively the “Hightower Parties”) alleged that (1) Weizel and the Ireson Firm
breached fiduciary duties that they owed to the Hightower Parties and caused
damages to the Hightower Parties by using proceeds from the Ireson Firm’s
accounts receivables to pay off more than $200,000 on a bank note that Hightower
had not guarantied rather than to pay a bank note that Hightower had guarantied,
on which approximately $160,00 was owed; (2) because of these alleged breaches
of fiduciary duty, Weizel and the Ireson Firm should be required to pay off the
note that Hightower had guarantied; (3) the Ireson Firm is not entitled to recover
any part of its contingency fee under its agreement with the Client until the note
Hightower guarantied is paid in full and until Hightower receives a fair and
equitable distribution of the Ireson Firm’s assets according to the Ireson Firm
“partnership documents”; (4) the trial court should render a declaratory judgment
ordering Weizel and the Ireson Firm to recover the $200,000 paid on the note not
guarantied by Hightower, to pay in full the note guarantied by Hightower, and to
place the remainder of these funds in the registry of the court for distribution
consistent with the findings of a jury or the trial court.

      Notably, the Hightower Firm did not assert any quantum-meruit claim

                                            2
against the Client or against the Ireson Firm. Nor did the Hightower Firm plead
that it had an enforceable contingency-fee contract with the Client, and at trial
there was no evidence of such a contract. The Hightower Firm did not plead that it
had an agreement or arrangement with the Ireson Firm under which the Ireson
Firm agreed to divide or share part of the Ireson Firm’s contingency fee with the
Hightower Firm, and at trial there was no evidence of such an agreement or
arrangement.

      At the end of the bench trial on the interventions, the trial court granted the
Ireson Firm’s motion to strike the Hightower Parties’ interventions to the extent
these interventions deal with “partnership issues” or claims regarding the assets
and liabilities of the Ireson Firm.       On appeal, the Hightower Firm has not
challenged the striking of this part of its intervention.

      To the extent subsections (f) and (g) of Texas Disciplinary Rule of
Professional Conduct 1.04 apply in the case under review, the Hightower Firm has
not pleaded or presented evidence of a written consent by the Client in compliance
with subsection (f)(2).      See Tex. Disciplinary R. Prof’l Conduct 1.04(f),(g)
(adopted by order of Jan. 28, 2005, effective Mar. 1, 2005, and reprinted in Tex.
Gov’t Code Ann., tit. 2, subtit. G app. A). Indeed, the Hightower Firm has not
pleaded or presented evidence of any arrangement or agreement between the
Ireson Firm and the Hightower Firm for a division of the Ireson Firm’s
contingency fee that could have been the subject of such a consent by the Client.
See id. Even if subsections (f) and (g) of Texas Disciplinary Rule of Professional
Conduct 1.04 did not apply in the case under review, the Hightower Firm has not
pleaded or proved a legal theory under which the Hightower Firm has rights to all
or a part of the contingency-fee interest that the Client assigned to the Ireson Firm
under the contingency-fee contract. After the trial court’s order striking part of the

                                            3
Hightower Firm’s intervention, the Hightower Firm is not asserting a claim against
the Client or the Ireson Firm for a money judgment. On this record, the pleadings
and the trial evidence do not entitle the Hightower Firm to recover any part of the
Ireson Firm’s contingency-fee interest. The Ireson Firm agreed at trial that the
Hightower Firm could receive $7,446.15 of the $56,928.15 contingency fee, and
the trial court rendered judgment on this basis. The pleadings and trial evidence do
not provide a basis for awarding the Hightower Firm more than $7,446.15.

      Based on this analysis, this court should affirm the trial court’s judgment.
Because it does not, I respectfully decline to join the plurality opinion, but I concur
in the judgment.




                                        /s/       Kem Thompson Frost
                                                  Chief Justice

Panel consists of Chief Justice Frost and Justices Christopher and Donovan.
(Donovan, J., plurality) (Christopher, J., dissenting).




                                              4
