Court of Appeals of Texas, Houston (1st Dist.).

Aaron HICKS, Appellant,

v.

CROWN EQUIPMENT CORPORATION d/b/a Crown Lift Trucks Company, Appellee.

No. 01-98-00631-CV.

|

Oct. 21, 1999.

Justices COHEN, NUCHIA, and DUGGAN.⁴

OPINION

NUCHIA.

*1 This is an appeal of an agreed take-nothing judgment that was rendered after the parties reached a settlement. We affirm.

BACKGROUND

Appellant, Aaron Hicks, sued appellee, Crown Equipment Corporation d/b/a Crown Lift Trucks Company, for damages allegedly caused by a work-place accident involving a lift truck designed, manufactured, and marketed by Crown. Insurance carrier American Protection Insurance Company had a workers’ compensation lien in excess of $436,000 against any recovery by appellant.

This case was set for trial on January 23, 1998. After a jury had been selected, appellant and Crown reached a settlement in which Crown agreed to pay appellant approximately $770,000. The written agreement, entitled “Rule 11 Settlement Agreement,” redacts the settlement amount. It provides, as an additional term, “Crown will pay all workers compensation subrogation interests as of today. This does not include future benefits.” The parties announced their settlement on the record to the court. The judge then called the jury in and stated on the record:

Ladies and gentlemen of the jury, the parties have approached the bench this morning and advised the Court that they have settled their lawsuit. They have read the terms of the settlement onto the record. It is confidential; however, I’m rendering judgment on that confidential settlement agreement. If there’s any dispute over it the suit will change from a products liability case to a suit to enforce the settlement agreement.

On February 16, 1998, the trial court signed a final judgment reciting that the parties had compromised and settled their case; the consideration had been paid in full; and the parties requested the court “to enter judgment that the Plaintiff take nothing by reason of this suit….” The judgment is signed “approved as to form” by attorneys for both appellant and Crown.

On February 18, 1998, appellant filed a motion for award of attorney’s fees and expenses, asserting that Crown had agreed to pay the workers compensation subrogation lien, the lien was in excess of $450,000,¹ and, to his knowledge, the lien had been paid in full. He asked the court to order the carrier to pay appellant one-third the amount of the lien as attorney’s fees and a commensurate percentage of expenses, as required under section 417.003 of the Texas Labor Code.

On February 24, 1998, appellant filed a second motion for award of attorney’s fees and expenses. This second motion is similar to the first, except that it omits the amount of the lien and does not specify who should be ordered to pay the attorney’s fees and expenses.

On March 9, 1998, appellant filed a motion to enforce the settlement agreement and for award of attorney’s fees and expenses. He alleged that Crown had not paid the subrogation interests as required under the agreement and asked the court to order Crown to pay the lien and to award appellant one-third of the lien as attorney’s fees and a percentage of expenses in the case. He attached copies of the rule 11 settlement agreement and a release in full executed by appellant in favor of Crown on February 9, 1998.

*2 On March 13, 1998, counsel for Crown filed with the court a letter from counsel for the carrier to show that Crown had agreed to purchase the workers’ compensation lien from the carrier for $100,000. The carrier asked that the following provision be included in the assignment document:

Nothing in this document shall be construed to be a waiver or relinquishment of American Protection Insurance Company’s rights to receive credit for its statutory advance under the Texas Labor Code, and in particular under Section 417.002 of the Texas Labor Code.

The letter also stated, “My understanding is that American Protection Insurance Company is assigning its worker’s compensation lien as of January 22, 1998 in the amount of $436,562.65 to Crown Equipment Corporation.”

On March 16, 1998, the trial court held a hearing on the motion to enforce the settlement agreement, and, on March 17, 1998, the court signed an order denying the motion. The court found that there was an agreement on January 22, 1998 between Crown and the carrier that Crown would purchase the lien for $100,000.

On March 18, 1998, appellant filed a motion to modify the judgment, asking that the judgment be modified to reflect “the defendant’s” statutory obligation to pay attorney’s fees and a proportionate share of expenses and to award such fees and expenses to appellant. Crown responded that section 417.003 does not authorize the court to order Crown to pay attorney’s fees and expenses but provides that the award to the attorney is to be paid out of the insurance carrier’s recovery, which was $100,000 paid by Crown in settlement of the lien.

On April 13, 1998, the court held a hearing on appellant’s motion to modify the judgment, and, on April 22, 1998, the trial court signed an order finding that Crown had complied with the settlement agreement between Crown and appellant and denying the motion to modify the judgment, a motion for new trial, and a motion to reconsider the court’s earlier order denying the motion to enforce the settlement agreement.

On May 1, 1998, the trial court signed an order, on appellant’s motion, that the carrier pay counsel for appellant $33,333 as attorney’s fees (one-third of $100,000) and $10,723 as the carrier’s proportionate share of expenses. Although not a party to the lawsuit, the carrier appeared in court voluntarily and stated on the record that it did not object to the award of attorney’s fees and expenses to appellant. The order was signed as approved by counsel for the carrier and for appellant. Appellant made no objection to the order, either at the hearing on the motion or in writing after the order was signed.

DISCUSSION

Appellant presents four issues, complaining that (1) the trial court failed to compel enforcement of the rule 11 settlement agreement; (2) the attorney’s fees and expenses awarded by the trial court were insufficient as a matter of law; (3) the trial court did not have jurisdiction to determine the existence of an enforceable agreement between Crown and the workers’ compensation carrier; and (4) no enforceable agreement existed between Crown and the workers’ compensation carrier. The central theme of all appellant’s issues is his contention that the rule 11 settlement agreement required Crown to pay the entire subrogation lien; that Crown should be compelled to pay the full amount, which was $436,562.65; and that appellant is entitled, under section 417.003 of the Texas Labor Code, to be awarded one-third of that amount, i.e., $145,188, from the carrier as attorney’s fees and his proportionate share of expenses, which he claims to be $33,585.

*3 Section 417.003 of the Labor Code provides:

(a) An insurance carrier whose interest is not actively represented by an attorney in a third-party action shall pay a fee to an attorney representing the claimant in the amount agreed on between the attorney and the insurance carrier. In the absence of an agreement, the court shall award to the attorney payable out of the insurance carrier’s recovery:

(1) a reasonable fee for recovery of the insurance carrier’s interest that may not exceed one-third of the insurance carrier’s recovery; and

(2) a proportionate share of expenses.

Tex.Lab.Code Ann. § 417.003(a) (Vernon 1996).

Crown’s Agreement to Pay the Carrier

In his first issue, appellant complains that the trial court failed to compel enforcement of the rule 11 settlement agreement and refused to require Crown to pay the worker’s compensation lien.² We construe appellant’s complaint as an attack on the trial court’s construction of the agreement between appellant and Crown. We note that neither party contends that the agreement, as written, is ambiguous.

In construing a written contract, our primary concern is to ascertain the true intentions of the parties as expressed in the written instrument. Lenape Resources Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex.1996). We give terms their plain, ordinary, and generally accepted meaning unless the instrument shows that the parties used them in a different sense, and we enforce the unambiguous document as written. Heritage Resources, Inc. v. NationsBank, 939 S.W.2d 118, 121 (Tex.1996).

In this case, the settlement agreement does not require Crown to pay the entire subrogation lien. Crown agreed to “pay all workers compensation subrogation interests as of today.” The agreement also does not require Crown to pay a specific amount of money to the carrier. Rather, Crown assumed the liability to pay the subrogation interest, thereby relieving appellant of liability for the lien, which otherwise would have been paid out of appellant’s recovery. Therefore, the trial court properly denied appellant’s motion to enforce the settlement agreement.

We overrule appellant’s first issue.

Insufficiency of Attorney’s Fees and Expenses

In his second issue, appellant contends that the amount of attorney’s fees and expenses awarded by the trial court were insufficient as a matter of law, pursuant to section 417.003 the Texas Labor Code. Appellant complains that his award of $33,333 in attorney’s fees and $10,723 in expenses was based on the carrier’s recovery of $100,000 from Crown rather than the full amount of the lien, which was $436,562. In his brief, appellant states, “the statute normally entitles plaintiff’s counsel to receive one-third of the amount that is paid to the workers’ compensation carrier….” (Emphasis added.) He then argues for an award of attorney’s fees based on the total amount of the lien.

*4 The attorney’s fees recovered by appellant were not awarded by the court based on its determination that appellant was entitled to such fees. The award was the result of an agreement between appellant and the carrier, who was not a party to this suit and, until it voluntarily appeared for entry of the order awarding attorney’s fees, was not under the jurisdiction of the court. Counsel for appellant signed the order as approved, and we find nothing in the record to indicate that appellant objected to the award. Therefore, he has waived this complaint. See Tex.R.App.P. 33.1(a).

Even if he had not waived this issue, his complaint would be without merit. Section 417.003 does not create an entitlement to one-third of the lien. It provides for “a reasonable fee” that may not exceed one-third of the carrier’s recovery if the carrier’s interest is not actively represented by another attorney. Tex.Lab.Code Ann. § 417.003(a). The standard of review of a trial court’s award of attorney’s fees under this section is abuse of discretion. Twin City Fire Ins. Co. v. Jones, 834 S.W.2d 114, 116 (Tex.App.-Houston [1st Dist.] 1992, writ denied).

In this case, there is no indication that counsel for appellant represented the carrier’s interest. His negotiation for payment of the subrogation lien was not for a specific amount of money. The agreement served only to shift liability for payment of the lien from appellant to Crown. Counsel for the carrier negotiated separately with Crown for settlement of the lien. Under these circumstances, any award of attorney’s fees would be made under subsection (c) of section 417.003, which provides for the apportionment of attorney’s fees when the claimant and carrier are represented separately in a third-party action. Tex.Lab.Code Ann. § 417.003(c).

Furthermore, “only the amount recovered for benefits” is to be considered in awarding the attorney’s fees. Tex.Lab.Code Ann. § 417.003(d). It is uncontested that the carrier did not recover the full amount of the lien. Thus, there is no basis for appellant’s claim that he is entitled to $145,188 in attorney’s fees and $33,585 in expenses.

We overrule issue number two.

The Agreement Between Crown and the Carrier

In his third issue, appellant argues that the trial court did not have jurisdiction to determine the existence of an enforceable agreement between Crown and the worker’s compensation carrier.

In the order denying appellant’s motion to enforce the settlement agreement, the court stated, “The Court … is of the opinion that there was an agreement on January 22, 1998 between Crown Equipment Corporation and [the carrier] whereby Crown agreed to purchase the … lien … for $100,000.” The court then denied the motion to enforce the settlement.

The carrier was not then a party to this lawsuit.³ The trial court, in determining that there was an enforceable agreement between Crown and the carrier, was not attempting to exercise jurisdiction over the carrier or to enforce the agreement between Crown and the carrier. The court was, in essence, finding an agreement between Crown and the carrier sufficient to determine that Crown had not breached its settlement agreement with appellant. The court recognized that the carrier was not before the court, and, on the record, stated that the determinations of the court were not binding on the carrier. The court clearly had jurisdiction to rule on the existence of an agreement as it related to Crown for the purpose of ruling on appellant’s motions. The court did not exceed its authority in so ruling.

*5 We overrule appellant’s third issue.

The Enforceability of the Agreement Between Crown and the Carrier

In his fourth issue presented, appellant asserts that there was no enforceable agreement between Crown and the carrier and asks this Court to enforce the rule 11 agreement between Crown and appellant and to order Crown to pay the carrier $436,562.65.

The enforceability of the agreement between Crown and the carrier is not an issue before this Court. Furthermore, the amount of money to be paid by Crown to the carrier, if any, to extinguish the carrier’s lien, is entirely between Crown and the carrier. The carrier is not before this Court and was not before the trial court until after the judgment was rendered, when it voluntarily appeared at a hearing for entry of an agreed order awarding attorney’s fees to appellant.

Any ruling by this Court on the enforceability of the agreement between Crown and the carrier would be an advisory opinion, which the courts of this state are not empowered to give. See Patterson v. Planned Parenthood of Houston and Southeast Texas, Inc., 971 S.W.2d 439, 443 (Tex.1998).

We overrule appellant’s fourth issue.

We affirm the judgment.

	Footnotes
1		The subrogation lien was actually in the amount of $436,562.65.
2		Crown contends that appellant’s motion to enforce is not a sufficient pleading because appellant’s complaints were made after the final judgment was rendered. Crown argues that, under Mantas v. Fifth Court of Appeals, 925 S.W.2d 656 (Tex.1996), appellant is required to file a separate breach of contract claim to enforce the settlement agreement. Although Crown is correct when the trial court has lost jurisdiction of the case, if the dispute arises while the trial court still has jurisdiction over the underlying action, a claim to enforce the settlement agreement should be asserted in the trial court under the same cause number. Id. at 658. The claimant must, however, plead the cause of action, including an allegation of the contractual relationship and the substance of the contract that supports a right to recover. Cadle Co. v. Castle, 913 S.W.2d 627, 630-31 (Tex.App.-Dallas 1995, writ denied). Appellant’s motion to enforce contained sufficient notice of his complaint that Crown had not complied with its contractual obligations under the settlement agreement.
3		The carrier became a party to the lawsuit when, on May 1, 1998, it appeared voluntarily at a hearing on appellant’s motion for attorney’s fees and announced that it did not object to an order awarding attorney’s fees to appellant to be paid by the carrier.
4		The Honorable Lee Duggan, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.