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Barraza v. Law Offices of Smith & Gopin2/29/1996
February 29, 1996
O P I N I O N
Appellant Manuel J. Barraza, defendant in the underlying lawsuit, appeals from an adverse judgement of conversion arising from a bench trial. The trial court found that Barraza converted $6,000 belonging to plaintiffs Howard Hickman and the Law Offices of Smith and Gopin. The $6,000 represents the plaintiffs' share of an $18,000 check made out to Barraza, Hickman, and a third party, Cecilia Flores. Barraza alleges in one point of error that we must reverse the judgment of the trial court because a necessary party, Flores, was absent from the proceedings. We affirm.
FACTUAL SUMMARY
Barraza has failed to timely file a statement of facts. The following is a summary of the trial court's findings of fact which are not disputed on appeal by either party. On May 26, 1992, Cecilia Flores was involved in an automobile accident. On May 28, she visited the Law Offices of Smith and Gopin ("S&G;) and signed an employment contract which conveyed to S&G;a one-third ownership interest in Flores' claim for personal injuries arising out of the accident. Attorney Hickman, an employee of S&G; handled the lawsuit for Flores for approximately two weeks until Flores terminated S&G;s representation on June 10. The trial court found that Flores did not have good cause to terminate the contract, and that S&G;retained its one-third interest in Flores' claim. Without a statement of facts or the contract as an exhibit, we must assume that Flores' contract with S&G;entitled S&G;to retain its ownership interest in Flores' claim unless Flores could demonstrate "good cause" to terminate S&G;s services. See Vasquez v. Vasquez, 645 S.W.2d 573, 575 (Tex.App.--El Paso 1982, writ ref'd n.r.e.)(in the absence of a statement of facts, findings of fact are binding on the parties and presumed justified by the evidence). After Flores terminated the contract, Attorney Barraza began representing her. Barraza negotiated an $18,000 settlement for Flores and the settlement check, issued December 31, 1992, was payable to Flores, Barraza, and Hickman. Although Barraza was aware of Flores' contract with S&G; Barraza did not inform S&G;or Hickman that he had settled the case, nor did he attempt to contact Hickman to secure Hickman's endorsement on the check. Barraza deposited the check in his escrow account with Hickman's signature forged on it, dispersed two-thirds of the funds to Flores, and dispersed the remaining funds to himself. The trial court concluded that S&G;owned a one-third interest in Flores' $18,000 personal injury recovery, and that one-third of Flores' recovery equaled $6,000. The trial court found that Barraza had unlawfully and without authority assumed dominion and control over S&G;s share of the proceeds in the settlement check.
WAS FLORES A NECESSARY PARTY?
Barraza alleges in his sole point of error that we must reverse the judgement because a necessary party, Flores, was not made a party to the lawsuit. Tex.R.Civ.P. 39(a) states that:
A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.
From the record before us, we cannot conclude that Flores
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