Weeks after a Texas Appeals Court affirmed sanctions against a Dallas lawyer for attempting to reopen a couple’s divorce case in order to recover his attorney fees, the court has issued a separate decision allowing the same lawyer to pursue a contract claim against the former client.
According to the Dallas Fifth Court of Appeals’ recent decision in Wyde v. Francesconi, Tatianna Francesconi originally hired Dan Wyde to represent her in criminal case involving alleged family violence against her husband. After Wyde successfully obtained a no-bill for the criminal offense, Wyde continued representing the woman in a contentious divorce involving her husband, a neurologist.
Francesconi signed a contract agreeing to pay Wyde $475 an hour for litigation services. The agreement also provided that in the event that no payment was made, Wyde could withdraw from representation, and no further duty would be owed to Francesconi.
At the time she signed the contract, the court said, Francesconi was working as a freelance artist and was never able to pay any invoice Wyde sent her, though she made sporadic payments of between $200 and $500 against the balance she owed. According to Francesconi, Wyde never intended to hold her responsible for full payment. Instead, she believed her husband would be responsible for the fees.
Despite Francesconi’s failure to pay under the agreement, Wyde continued to represent her and never considered withdrawing from representation, the court said.
In 2015, the trial court filed a final divorce decree ordering the husband to pay 50 percent of Francesconi’s attorney fees, but it left blank the total amount of attorney fees. The fees Francesconi owed to Wyde totaled nearly $80,000.
In 2016, Francesconi and her husband entered into an amended agreement requiring the husband to pay half of the money owed to Wyde. The same day as the parties entered that agreement, Francesconi fired Wyde.
Because the divorce decree was not appealed by Francesconi, her husband or Wyde within the applicable time period under the Texas Rules of Appellate Procedure, the Fifth Court rejected an attempt by Wyde to appeal the divorce decree, because it was too late to meet appellate deadlines.
And in 2017, the trial court found a motion by Wyde to enforce the decree was filed in bad faith, explaining that the matter had been litigated several times before, and ruling that Wyde had caused the husband to appear in court “frivolously, in bad faith, and for the purposes of harassment.” The court awarded the husband a $1,350 judgment against Wyde and awarded the husband’s attorneys $7,000 in fees, a decision that was affirmed by the Fifth Court.
Wyde has appealed that decision.
In a separate move, Wyde also filed a separate complaint against Francesconi for breach of contract for failure to pay the debt owed under their agreement. During a bench trial, Wyde testified he was seeking nearly $80,000. According to the court, he testified he was not counting on the husband to pay part of the attorney fees, but was “just hoping that the judge would see that he had the financial wherewithal to pay her reasonable and necessary attorney’s fees for her to get a fair or a just result regarding the child custody issues.”
Although Wyde admitted he could have filed a motion to withdraw when Francesconi stopped paying her bills, he explained he did not like taking a case and then withdrawing, stating: “We attempt to avoid that at all costs.” He also did not believe Francesconi was in financial distress, because she had an income of $4,000 a month in child and spousal support and money earned as an artist. Wyde believed she simply chose not to pay him, he claimed.
The trial court eventually awarded Wyde $7,500 because he had met his burden on some of his breach-of-contract claims. However, the court also ruled that Wyde had a duty to mitigate his damages and failed to do that because he didn’t terminate his services earlier with Francesconi. The trial court also ruled that Wyde was estopped from recovering part of his damages because of false or fraudulent representations he made to Francesconi.
Just like the sanction, Wyde appealed that decision to the Fifth Court, too.
And in its most recent decision in the matter, the Fifth Court concluded that the trial court erred by concluding that Wyde had a duty to mitigate his damages.
“Moreover, requiring or encouraging attorneys to file a motion to withdraw as soon as a client fails to pay conflicts with the aspirational goals of the Texas Lawyer’s Creed, which reminds attorneys that ‘as members of a learned art we pursue a common calling in the spirit of public service’ and are ‘responsible to assure that all persons have access to competent representation,’” Justice David Bridges wrote.
The Fifth Court also concluded that the breach-of-contract case should be remanded for a new trial on damages because there was no evidence that Wyde defrauded Francesconi.
“Nothing indicates that at the time Wyde told Francesconi ‘he would look to defendant’s ex-husband to pay the remainder’ of the fees his statement was false or made recklessly without knowledge of the truth,” Bridges wrote. “To the contrary, it is routine in family law cases for attorneys to seek recovery of their fees from a spouse and the trial court to award such fees.”
Wyde was pleased with the decision.
“It’s very rare that an appellate court will reverse a trial court judge in a nonjury trial. The appellate court clearly saw what a gross injustice occurred at the trial court level,’’ Wyde said. “Our former client, based on our legal representation and work done of her behalf, received hundreds of thousands of dollars in the underlying family law case. And for that reason, we believe that we’re entitled to be compensated based on the contract she signed with us.’’
Pete Rowe, a Dallas attorney who represents Francesconi, declined to comment.