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Goodarzi v. Clements

Court of Appeals of Texas, First District

January 11, 2018

FOROUZAN GOODARZI, Appellant
v.
ROBERT D. CLEMENTS, JR., Appellee

         On Appeal from the 412th Judicial District Brazoria County, Texas Trial Court Case No. 83321-CV.

          Panel consists of Chief Justice Radack and Justices Higley and Bland.

          MEMORANDUM OPINION

          JANE BLAND, JUSTICE

         This appeal arises from an attorney's suit against a former client to recover his contingency fee. Forouzan Goodarzi appeals the trial court's judgment requiring a sheriff's sale of pieces of her jewelry and awarding her attorney, Robert D. Clements, Jr., $32, 205.31 in fees and expenses. On appeal, Goodarzi contends that the trial court erred in (1) granting Clements' motion for partial summary judgment and interpreting the parties' contingency-fee contract to include the jewelry's value as part of her "recovery" subject to the contingent-fee apportionment, (2) refusing to grant Goodarzi adequate time to retain new counsel to represent her at trial after Clements withdrew from representing her, and (3) excluding Goodarzi's newly hired attorney from testifying as an expert on attorney's fees. We reverse and remand.

         BACKGROUND

         Sometime before the end of 2011, Goodarzi procured insurance coverage from Jewelers Mutual Insurance Company for two diamond earrings, a pendant, and a tennis bracelet. The jewelry was stolen from her, and she filed a claim with the insurer. According to the policy's terms, the insurer paid approximately $148, 000 in proceeds to D.M. Diamond Co., which had contracted with Jewelers Mutual to provide replacement jewelry.

         D.M. Diamond provided Goodarzi replacement jewelry purportedly worth approximately $148, 000. Goodarzi initially took possession of the jewelry but later returned it, contending that her original jewelry was worth more than the replacement jewelry and that she was entitled to the difference in value.

         Goodarzi received a May 7, 2014 letter from D.M. Diamond, signed by Danny Mushin, demanding that she pick up the replacement jewelry as the company had not agreed to store it. The letter warned Goodarzi that if she did not pick up the jewelry by 4:30 P.M. on May 16, 2014, it would be placed in a box outside the office door.

         The record does not divulge exactly what happened next, but the jewelry evidently remained in D.M. Diamond's possession. Goodarzi entered into a contingency-fee contract with Robert Clements, Jr., for his professional legal assistance in resolving the dispute. The July 31, 2014 contingency-fee contract between Goodarzi and Clements authorizes Clements "to represent [Goodarzi] to fully prosecute, litigate and/or compromise and settle all claims" that Goodarzi has

against all necessary, responsible or agreed upon parties arising from, because of or in any way connected to: Jewelry Insurance claim as a result of theft on 12-13-11 against Jeweler's Mutual and Danny Mushin, D.M. Diamonds and all other responsible parties.

         The agreement held Goodarzi responsible for paying any costs and expenses incurred and for paying Clements

[a]n amount equal to forty percent (40%) of the value of any recovery by way of settlement, judgment or otherwise achieved or received by the Client(s) in connection with the matter(s) for which the Attorney is hereby retained if such recovery is achieved or received after the filing of any lawsuit . . . .

         In an affidavit supporting his motion for partial summary judgment, Clements averred that he proposed to Goodarzi that they "would attempt to recover damages from Jeweler's Mutual, then would try to get her jewelry returned . . ., sell the jewelry, and then finish the suit against the primary defendants D.M. Diamonds and Daniel Mushin."

         Acting on behalf of Goodarzi, Clements sued Jeweler's Mutual; D.M. Diamond; and its owner, Danny Mushin, in Harris County district court. Jeweler's ...


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