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CAUSE NO. 2021-36031
MICHAEL D. SYDOW, § IN THE DISTRICT COURT OF
Plaintiff/Applicant, §
§
vs. § HARRIS COUNTY, TEXAS
§
LISA MINTON EF/K/A LISA § /
PENAFIEL, §
Defendant/Respondent. § 295th JUDICIAL DISTRICT /
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INAL JU) FIRMING. 10) ‘Al |
On this day, the Court head Plaintiff/Applicant Michael D. Sydow’s Motion for Default
Judgment and Confirmation of Arbitration Award against Lisa Minton, formerly known as Lisa
Penafiel. The Court grants the motion as follows:
The Court finds Lisa Minton f/k/a Lisa Penafiel executed A contract & Agreement of
Employment with a Contingent Fee with Michael D. Sydow on or about March 19, 2007 (“the
Sydow fee agreement”), (A true and correct copy of the fee agreement is attached to this judgment,
and incorporated herein, as Exhibit 1.)
The Court further finds that the Sydow fee agreement, as well as a separately executed
Arbitration Agreement executed in July 2020, called for any disputes regarding Sydow’s fee
agreement to be submitted to binding arbitration.
By agreement of the parties, an arbitration ensued before arbitrators Jeff Uzick, Hon
Reagan Clark and Hon. Charles Seymore regarding Michael D. Sydow’s claim for fees, costs and
damages related to an underlying Judgment and Decree of Divorce issued in Cause No. 2003-
03866 in the 295" Judicial District Court of Harris County, Texas which was transferred to the
311" Judicial District Court of Harris County, Texas.
On June 11, 2021, the arbitrators issued an arbitration award in favor of Michael D. Sydow
against Lisa Minton f/k/a Lisa Penafiel. (4 true and correct copy of the Final Binding Arbitration
Award is attached hereto and incorporated herein as Exhibit 2.)
Pursuant to Chapter 171 of the Texas Civil Practice and Remedies Code, and under the
Texas General Arbitration Act, Michael D. Sydow filed an Application To Confirm the Arbitration
Award, and sought judgment thereon pursuant to Tex. Civ. Prac. & Rem. Code § 171.092.
The Court finds that it has proper venue and jurisdiction pursuant to Tex. Civ. Prac. &
Rem. Code §§ 171.081, 171.082, 171.096.
The Court further finds that Lisa Minton f/k/a Lisa Penafiel was personally served with
citation on July 6, 2021, as reflected in the return of service, which has been on file with the Court
more than 10 days and that Lisa Minton’s date for answer was August 2, 2021, by 10:00 am. The
Court further finds that she has filed not appeared or answered as of the date of this Judgment, nor
1has she filed a Motion To Vacate the Arbitration Award under Tex. Civ. Prac. & Rem. Code §
171.088; Therefore, Lisa Minton f/k/a Lisa Penaficl is in default, and Michael D. Sydow is entitled
to confirmation of the arbitration award.
Michael D. Sydow has filed an Affidavit of Last Known Address and Affidavit of Non-
military Service. Sydow has also proven up Arbitration Agreement, and the June 11, 2021 Final
Binding Arbitration Award, and these documents were properly attached to the Application and
this Motion for Default Judgment and Confirmation of the Arbitration Award under Tex. Civ.
Prac. & Rem. Code § 171.085,
The Court thus grants the motion and confirms the June 11, 2021 Final Binding Arbitration
Award pursuant to Tex. Civ. Prac. & Rem Code §§ 171,086(b)(6), 171.087.
In addition, pursuant to Tex. Civ. Prac. & Rem. Code § 171.092, the Court grants judgment
in favor of Michael D. Sydow and against Lisa Minton f/k/a Lisa Penafiel.
Accordingly,
IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the June 11, 2021 Final
Binding Arbitration Award, attached as Exhibit 2, is confirmed and on which Judgment is now
rendered as the findings and Judgment of this Court. It is further
ORDERED, ADJUDGED AND DECREED that the March 19, 2007 Contract &
Agreement of Employment with a Contingent Fee between Michael D. Sydow and Lisa Minton
fik/a Lisa Penafiel is valid, binding and enforceable as against Lisa Minton f/k/a Lisa Penafiel, and
her heirs, agents, representatives, successors and assigns. It is further,
ORDERED, ADJUDGED AND DECREED that Lisa Minton f/k/a Lisa Penafiel
terminated that March 19, 2007 Contract & Agreement of Employment with a Contingent Fee with
Michael D. Sydow without just cause, and that Lisa Minton f/k/a Lisa Penafiel failed to establish
any defense to the enforceability of that agreement.
It is further ORDERED, ADJUDGED AND DECREED that, under the March 19, 2007
Contract & Agreement of Employment with Contingent Fee, Michael D, Sydow is entitled to 33
1/3% of the gross recovery by Lisa Minton f/k/a Lisa Penafiel of any and all money and property
Lisa Minton f/k/a Lisa Penafiel is awarded or otherwise receives from any source or proceeding in
Cause No. 2003-03866 including without limitation to the $249,600,000.00 Judgment received in
this cause and the $1,822,808.00 in attorney’s fees, and $134,830.40 in sanctions whether by
settlement, or by whatever causes of action necessary to procure collection of such amounts and
Judgments due Lisa Minton f/k/a Lisa Penafiel from Jose Alejandro Penafiel a/k/a Jose Alejandro
Penafiel Saldago, and Michael D. Sydow is hereby assigned such a 33 1/3% interest in these
amounts and Judgments contained in the Final Decree of Divorce in Cause 2003-03866, as
amended, modified or reformed pursuant to that certain appellate mandate issued in Case No. 14-
19-00240-CV and 14-20-00023-CV.
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|IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Michael D. Sydow is
awarded a Judgment against Lisa Minton f/k/a Lisa Penafiel in the amount of $469,636.90 with
interest at 5% compounded per annum commencing on June 11, 2021 until paid in full comprising
the following amounts:(1) $134,830.40 owed Michael D. Sydow for unpaid and unreimbursed
expenses; (2) $82,500.00 for attorney’s fees due Michael D. Sydow; (4) $2,500.00 for discovery
sanctions incurred by Michael D. Sydow in this arbitration proceeding; and (5) $249,806.50 for
reasonable and necessary attorneys’ fees owed to Michael D. Sydow as set out in the arbitration
award. Michael D. Sydow is granted all writs of execution and other process as necessary to
enforce this Judgment.
It is further ORDERED, ADJUDGED AND DECREED that all costs of the arbitration
incurred or paid by Michael D. Sydow are awarded against Lisa Minton f/k/a Lisa Penafiel and
that Judgment in the amount of $50,025.86 is awarded Michael D. Sydow against Lisa Minton
f/k/a Lisa Penafiel for costs incurred in the arbitration proceeding and any further costs, to be
determined by the Clerk of the Court. Such Judgment shall bear interest at the maximum legal
rate of interest that being 5%, compounded per annum from June 11, 2021, until paid in full.
Michael D. Sydow is granted all writs of execution and other process as necessary to enforce this
Judgment.
IT further ORDERED, ADJUDGED AND DECREED that, should Lisa Minton f/k/a Lisa
Penafiel appeal this Judgment and Michael D. Sydow prevails in that appeal, that Michael D.
Sydow shall be awarded a Judgment against Lisa Minton f/k/a Lisa Penaficl in the sum of
$40,000.00 for which if not timely paid, let all writs of execution and other process necessary to
enforce this Judgment issue.
All relief that is sought or could have been otherwise sought by the parties is hereby
DENIED. This constitutes a final judgment addressing all claims as to all parties which is
appealable.
Signed on this the day of August 2021.
THE HONORABLE DONNA ROTHEXHIBIT “1”MDS EXHIBIT Ic
CONTRACT & AGREEMENT OF EMPLOYMENT
WITH A CONTINGENT FRE
The undersigned Client, LISA PENAFIEL, hereinafter sometimes referred to as “CLIENT”
or “MRS. PENAFIEL”, and MICHAEL D, SYDOW, RONALD J. KORMANIK AND DAVID J.
WUKOSON, hereinafter sometimes referred to as “Attorneys” or “Lawyers” hereby enter into the
following Contract and Agreement of Employment with a Contingent Fee, hereinafter sometimes
referred to as “Agreement,” regarding Attorney’s representation of MRS. PENAFIEL in the
following matters, which are hereinafter referred to as the “Litigation” to wit:
A. Cause No. 2003-03866; In The Matter of The Marriage of Lisa Penaftel and Jose
Alejandro Penafiel; In The 312" District Court of Haris County, Texas
B. Cause 1999-42857; Bast Asia Gas Co, LTD and Canada Grande, LTD., vs. Tripetrol
Holdings, Inc.; In The 151* District Court of Harris County, Texas
C. Intervention filed by John Nichols, Sr.
MRS. PENAFIEL and Attorneys assert the following representation and understandings
regarding employment of Attorneys. ~~
Inconsideration of the mutual promises herein contained, the parties hereto agree as follows:
PURPOSE OF REPRESENTATION
1. The parties agree that attorney MICHAEL D. SYDOW shall be the lead counsel .
(attorney in charge) for all representation of Client covered under this Agreement. RONALD J.
KORMANIK and DAVID J. WUKOSON will assist MICHARL D. SYDOW as required by the
tepresentation or as requested by either Client or MICHAEL D. SYDOW.
2. At the time of MRS. PENAFIEL’s initial request that Attorneys represent her in her
divorce case, MRS. PENAFIEL wasrepresented by other Attorneys. MRS, PENAFTEL has approved
MICHAEL D, SYDOW, RONALD J. KORMANIK AND DAVID J, WUKOSON and desires and
agrees that MICHAEL D, SYDOW, RONALD J. KORMANIK AND DAVID J. WUKOSON
substitute in as Attomeys of record for her current Aitommey. MRS. PENAFIEL desired and agreed
that MICHAEL D. SYDOW, RONALD J, KORMANIK AND DAVID J. WUKOSON notify John
F. Nichols, Sr., that MRS. PENAFIEL had terminated his employment, requested her files be
delivered to MICHAEL D. SYDOW, RONALD J. KORMANIK AND DAVID J, WUKOSON, and
requested a final invoice of fees and expenses incurred, and balance owing. MRS. PENAFIEL
acknowledges that she may owe Attorney’s fees and expenses (possibly including a contingent fee)
to John F. Nichols, Sr., and that MICHAEL D. SYDOW, RONALD J. KORMANIK AND DAVID
J. WUKOSON shall not be liable in any manner for any fees or expenses that may be owed to John
Contract & Employment Agreement of Employment
With a Contingent Fee
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LP. MDS. RIK. DA¥. Nichols, Sr. MRS. PENAFIEL and MICHAEL D. SYDOW, RONALD J. KORMANIK AND
DAVID J, WUKOSON further agree and acknowledge that MICHAEL D, SYDOW has previously
represented MRS. PENAFIBL in the civil court proceeding (item B above) and that all previous N
agreements related to that representation will be seseinded-and-censid ulLand-reid-whea-this pe
by thw Agreement. pay ese
3. MRS. PENAFIEL hereby retains and employs Attorneys to represent her in a divorce
action in Harris County, Texas in which her husband is in control of all, or most of all the assets
accumulated during the marriage, and is claiming all assets ( or most of all) are owned by other
parties, which may be accurate. MRS. PENAFIEL desires Attorneys to obtain for MRS. PENAFIEL
a fair and equitable division of the parties’ estate, MRS. PENAFIEL is not in control of sufficient
funds to hire MICHAEL D. SYDOW, RONALD J. KORMANIK AND DAVID J. WUKOSON on
an hourly basis.
4, ___ Client represents that she is currently married to Alejandro Pefiafiel, and has adivorce
proceeding pending in the Family Law Courts in Harris County, Texas (Cause No. 2003-03866; In
the Matter of the Marriage of Lisa Penafiel and Jose Alejandro Penafiel; In the 312" Judicial
District Court of Harris County, Texas), as well as an intervention in the Civil District Courts of
Harris County, Texas (Cause No. 1999-42857; East Asia Gal Co., LTD and Canada Grande, LTD.
y. Tripetrol Holdings, Inc,In the 151“ Judicial District Court of Harris County, Texas). These
proceedings allege, among other things, that as the spouse of Alejandro Pefiafiel, Client is entitled
to, and has an interest in, all assets acquired either by Client or Alsjandro Pefiafiel during their
marriage, as well as any property, whether it be real, personal or otherwise, which is, or shall be
determined to be commumity property, as that term is defined under the laws of the State of Texas,
which marriage occurred in Harris County, Texas, on or about December, 1981, (“Marriage”) and
any otherbenefitto which Client maybe entitled as aresult of the Marriage (“‘Contemplated Asset”);
It is our understanding the the Marriage was an informal marriage with a declaration of Informal
Marriage being filed on or about November 19, 1984, Clienthereby engages Attorneys to locate and
collect any and all assets of any kind or nature or character from Alejandro Pefiafiel, or any other
person or entity that possesses or controls any assets of any kind or nature that would be
Contemplated Asset pursuant to this Agreement, regardless of the nature or character of the asset 7
its location, within the bounds of applicable law. Clients hereby retains and employs Attorneys to
evaluate, file suitifnecessary or to talce any other action required, including any administrative claim
or action, to collect any asset contemplated by this Agreement, after consultation with, and with
approval of, the client. Attorney’s services will consist of the court appearances, telephone
conferences, travel, investigative work, legal research, review of material received from all sources,
drafting of pleadings and incidental correspondence, participation in setilement conferences, and
other necessary preparation for your representation,
FERRG
5. ‘There may be other proceedings, whether litigation or administrative, orclaims ofany
type, currently pending in other jurisdictions, or that may be filed in other jurisdictions, seeking
recovery of assets from Alejandro Penafiel on behalf of | Client. Attorneys may not be the attorney
of record in those cases, however, any recovery or benefit obtained from any such proceeding is
specifically covered as a Contemplated Asset in this Agreement, This includes without limitation,
Contract & Employment Agreement of Employment
‘With a Contingent Fee
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LP. sD.S.proceedings in Ecuador, for which Attomeys are not counsel of record for Client, but are assisting
Client and her other lawyers, The ferm Contemplated Assets also includes all assets which are the
separate assets of Client.
6. Itis further understood between the parties to this Agreement that there are currently
at least two cases pending in Harris County Texas, one in the Civil District Court and one in the
Family Courts. This Agreement covers any recovery made in either of these, or any other litigation,
that now exists or that may, in the future, exist, whether the litigation is directly for the recovery of
the Contemplated Assets or not, Any recovery of any Contemplated Assets, in any forum or any :
manner, either litigation or not, is covered by this Agreement. Contemplated Assets specifically \
include, but is not limited to, the house located at 10935 Wickwild Street, in Houston, Harris |
County, Texas, 77024 and the lake house located at_WI44 (l¥ésha . Mo netgomery, ; TK :
ATTORNEYS’ FEES-CONTINGENT AND HOURLY 41396
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7. Client acknowledges that this case is very complex in nature. This case involves a
complex corporate and banking structures, and the application of multinational laws. This case will “Wee
require not only the application of foreign laws, but resolving conflicts of foreign laws with the laws Uo ,
of the State of Texas. CHent acknowledges that this case will require bl ABA el time
trying to unravel Respondent’s attempts to hide community assets, It will require international travel
and negotiations with international government agencies to enforce any orders or judgment that \
night be taken in this case, if any. Client acknowledges that reasonable fees for such legal work
would be $650.00 per hour, but Client cannot afford to pay those fees and/or expenses,
8. In consideration of the services rendered and to be rendered for MRS. PENAFIEL
by Attomeys, and taking into account the complexities of the case as described in Paragraph 7 above,
and the fact that MRS. PENAFIEL cannot afford the hourly rate or expenses, and in consideration
of the fact that Attorneys are willing to risk a part of their fees, MRS. PENAFIEL agrees to pay
MICHAEL D. SYDOW, RONALD J. KORMANIK AND DAVID J. WUKOSON 33 18%
(hereinafter sometimes referred to as “contingent fee”) of the gross recovery by Lisa Penafiel of any
and all sums of money and property MRS. PENAFIEL is awarded or otherwise receives from any
source or proceeding, including but not limited to the Litigation. In addition to the contingent fee
described herein, MRS, PENAFIEL agrees to pay Attorneys $175.00 per hour for work
performed on her file, based on increments of 1/4 of an hour as incurred. “Sums of money”
shall include spousal support and alimony, but not child support. The value of “property” awarded
to MRS. PENAFIEL shall be defined as the fair market value (after deducting any liens, mortgages,
encumbrances, etc. that MRS. PENAFIEL will be solely responsible for) of the property. All sums
of money and property (except child support), whether separate or community, awarded to MRS.
PENAFIEL in the Litigation or otherwise, whether by settlement or trial, by whatever cause of action
procured such awards, shall be included to determine the contingent fee, Such contingent
Attorneys’s fees will be figured on the total value of monies, real and personal property, or other
community and separate property assets of any nature awarded to MRS. PENAFIBL in the divorce
and the other Litigation between MRS. PENAFIEL and JOSE ALEJANDRO PENAFIEL, including
the award of money or property to MRS. PENAFIEL for any other claim, including but not limited
Contract & Employment Agreement of Employment
With a Contingent Fee
Page 3 of 11
LP, MDS. RIK. Du.to tort, Attorneys fees, or contract claims against JOSE ALEJANDRO PENAFIEL in such divorce i
action, whether by settlement or trial. Any attorney’s fees awarded and collected cannot ethically
be shared with Client. Any interim attomey’s fees awarded by any court and collected by attorneys,
shall be credited against the reduced hourly charges
9. The contingent fee discussed in the Agreement shall be void and ofno force or effect
ifthe parties reconcile without a division or partition of assets, In such event, no contingent fee will
be due and owing, but MRS. PENAFIEL agrees to compensate the Attorneys at their hourly rate of |
$650 per hour. t
10. MRS. PENAFIEL and Attomeys have discussed this agreement and the “Contingent
fee” contained herein. Attorneys have also provided MRS. PENAFIEL a copy of Rule 104 of the
Texas Disciplinary Rules of Professional Conduct, including relevant section(d), and comment 9 of
Rule 104 (which are attached to this contract as Exhibit *A”), MRS. PENAFTEL understands that
contingent fees are rarely justified in family law cases. MRS. PENAFIEL and Attorneys agree,
because of the current circumstances, that a contingent fee is justified in MRS. PENAFIEL’s
case. MRS. PENAFIEL hereby states that she believes that the contingent Attorneys fee
charged in this /jagreement is justified and is fair and reasonable based on current
circumstances. LP.
MRS. PENAFIEL acknowledges that some of the current cirenmstances, which justify,
and make this contingent fee fair and reasonable, include but are not limited to: ~~
- the time and labor required, the novelty and difficulty of the questions involved, and
the skill requisite to perform the legal service properly;
- the likelihood that the acceptance of the particular employment will a
employment by the Lawyers; pat
- the time limitation imposed by the client or by the circumstances>
- the experience, reputation, and ability of the Lawyers or Lawyersf performing the
services; and
- whether the fee is fixed or contingent on results obtained or uncertainty of collection
before the legal services have been rendered. Although it is anticipated that MRS.
PENAFIEL will receive monies/property in her divorce case, if no recovery is made,
or property received, then MRS. PENAFIEL will not owe Aftorneys a contingency
fee, but only the hourly fee set herein.
11. MRS. PENAFIEL has been told by Attomeys that contingent fees are rarely used in
family law cases, and should generally only be made the basis of a fee contract after MRS.
PENABFIEL obtains advice and input of an independent Attorneys. Further, MRS. PENAFIEL
acknowledges that she has been advised and understands that employment of Attomeys on a
contingent fee basis may result in MRS. PENAFIEL ultimately paying a much larger fee than if
MRS. PENAFIEL employed Attomeys on an hourly basis (which MRS, PENAFIEL insists cannot
be done by her because she states that she has no funds to pay hourly rates ta Attorneys). MRS.
PENAFIEL states she is familiar with the use of contingent fees. MRS. PENAFIEBL is aware that the
Contract & Employment Agreement of Employment
‘With a Contingent Fee
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LP, MDS. RIE. DJcontingent fee is not based on amount of hours/time spent by MICHAEL D. SYDOW, RONALD.
i, KORMANIK AND DAVID J. WUKOSON on MRS. PENAFIEL’s case. MRS. PENAFIEL
acknowledges the right to consult with other independent Attorneys in connection with entering into
this agreement, including the payment of Attorneys fees on a “contingent fee” basis. MIRS,
PENAFIEL has consulted with dependent Attorneys in connection with this agreement,
including the “contingent fee”. LP.
APPEALS
12. Inthe event any appeal of the case is made, Attorneys will receive an additional 10%
of the recovery for services rendered in handling the appeal.
ASSIGNMENT OF INTEREST
13. In consideration of Attomeys services, and as security for the payment of the fees,
costs and/or expenses incurred on MRS. PENAFIEL's behalf as provided in this agreement, MRS.
PENAFIEL agrees to, and does hereby assign, grant, and convey to Attorneys an undivided 33 1/3%
interest on all of MRS. PENAFIEL’s monies, real-and personal property, other community or
separate property assets, or other assets of any nature whatsoever that MRS. PENAFIEL owns, has
interest in, has or will be awarded to, or received by her in the Litigation, or in any other proceeding
or in any other manner, in any jurisdiction. or country, including in the divorce case.
COSTS AND EXPENSES
14. MRS. PENAFIEL further agrees to pay all out-of-pocket costs and expenses incurred
in connection with this case, and agrees to timely (within 30 days) reimburse Attorneys for such
costs.and Expenses advanced on MRS. PENAFIEL’s behalf.
15. MRS. PENAFTEL acknowledges that Attorneys will be required to incur costs in
pursuing MRS, PENAFIEL’s claim. These expenses may include, but are not limited to, the
following: investigation, travel, airfare, lodging, retention of experts, consultants , exhibit and
demonstrative evidence preparation, depositions, photocopying, court reporters’ fees, computer
research, database charges, equipment expenses, and videotaping fees. MRS. PENAFIEL authorizes
Attorneys fo incur such costs to accomplish a satisfactory resolution. Attorneys are authorized to
pay these expenses on behalf of MRS, PENAFIEL and keep a systematic record of them.
PRO CESS ‘OR SET NT
16. Nosettlement of any nature shall be made without MRS. PENAFIEL’s approval, and
MRS. PENAFIEL agrees to make no settlement or offer of settlement without approval of Attorneys,
except if the parties reconcile.
REPRESENTATIONS/WITHDRA WAL
Contract & Employment Agreement of Employment
With a Contingent Fee
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L17. Norepresentations have been made by Attorneys as to the ultimate success of the case
and the only material representations made by Attorneys to MRS. PENAFIEL is that they will exert
their best professional efforts in their representation of MRS. PENAFIEL. It is understood and
agreed that Attorneys cannot warrant or guarantee the outcome of the case, and Attorneys have not
represented to MRS. PENAFIEL that she will be awarded all or any of the funds or assets so desired,
MRS, PENAFIEL realizes that Attorneys will be investigating the law and facts applicable to her
case on a continuing basis and MRS, PENAFIEL agrees that Attorneys retain the right at any time,
to release themselves (or anyone of them) from this Contract upon reasonable notice to MRS.
PENAFIEL, and to withdraw from the representation of MRS. PENAFIEL. The reasons for such
withdrawal may include, but are not limited to the following: Legal barriers have been discovered
which seriously impede successful resolution, factual barriers have been discovered which seriously
impede successful resolution, continued pursuit of the Case would be cost prohibitive, or MRS.
PENAFIEL’s conduct has seriously impeded successful resolution of the case;
A. _In the event Attorneys exercise their option to withdraw under the terms of this
"paragraph, they will provide MRS. PENAFIEL with the names, addresses, and
telephone numbers of the opposing party or Attorneys, and a list of all deadlines and
pending matters.
B. Tn the event Attorneys exercises their option to withdraw under the terms of this
paragraph, Attorneys releases MRS. PENAFIEL from the contingent fee, but retains
_ their lion in MRS. PENAFIEL”S case to the extent of the expenses and costs that
“were incurred on behalf of MRS. PENAFIEL prior to the exercise of the option to
withdraw as well as any unpaid hourly fees. MRS, PENAFIEL agrees toprotect-such
costs and expenses out of any recovery MRS. PENAFIEL obtains.
PRIOR AGREEMENTS SUPERSEDED
18. This Agreement constitutes the sole and only agreement of the parties hereto and
upon a signature of MRS. PENAFIEL, MICHAEL D. SYDOW, RONALD J. KORMANIK AND
DAVID J. WUKOSON, supersedes any prior understandings or written or oral agreement ‘between
the parties respecting the subject matter described herein.
ADDITIONAL TERMS
19. MRS.PENAFIBL fully understands that Attormeys acceptno responsibility or liability
of any nature for any matters or concern or interest in this cause preceding the date of this
Agreement.
20. MRS. PENAFIEL fully understand that this instrament represents a contract for
services rendered atid to be rendered by Attorneys and that such services are conditioned upon the
terms of this Agreement.
Contract & Employment Agreement of Employment
‘With a Contingent Fee
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LP. Wee RIK. DJ.21. ‘If there is any type of settlement whereby MRS. PENAFIEL is to receive or be paid
future payments, then at the option of Attorneys, the settlement will be reduced to present value, and
the settlement will be arranged whereby there will be sufficient cash at the time of the settlement to
pay Attorneys fees, which will be figured on the present value of the total settlement including the
present value of future payments. If there is insufficient cash available to pay Attorneys’ fees in the
manner described in this paragraph, Attomeys reserve the right to receive Attorneys’s portion of said
future payments when received. MRS. PENAFIEL and Attorneys will attempt to ratify the division
of any future payments in writing, so that MRS. PENAFIEL and Atiomeys will each now their
exact Portion of any future payment, but in the event that such written ratification does not take
place, this agreement still controls said future payments/receipts. If there is insufficient cash
available to pay Attorneys’ fees in the manner described in this paragraph, Attomeys reserve the right
to assign any portion or all of their fees to third parties.
22, The State Bar of Texas investigates and prosecutes professional misconduct
committed by Texas Attorneys. Although not every complaint against or dispute with a Lawyers
involves professional misconduct, the State Bar’s Office of General Counsel will provide you with
information about how to file a complaint. Please call 1-800-932-1900 toll-free for more
information,
23. Attorneys, their agents, and employees are authorized to tale all steps deemed by
them to be reasonably necessary and appropriate to obtain a satisfactory result for MRS. PENAFIEL,
including but not limited to securing a complete investigation of the case, instituting legal
proceedings, employing consultants, expert/witnesses and associate counsel, entering into settlement
negoations, preparing settlement schedules, preparing for and proceeding to trial, and discontinuing
the case or litigation, if any.
24. Upon resolution of the Litigation (or any part thereof), MRS. PENAFIEL agrees to
promptly execute such documents as are reasonably necessary to the resolution, including releases,
compromise settlement agreements, agreed judgments or orders of dismissal, indemnity agreements,
and settlement drafts, checks, or negotiable instruments.
25, MRS. PENAFIEL gives Attorneys Power of Attorney to execute all documents on
behalf of MRS. PENAFIEL in connection with the Case. Attorneys are authorized to sign all
documents necessary to present and prosecute MRS. PENAFIEL’s case, including but iiot Iinited
to the following: pleadings, releases, settlement agreements, interim or temporary judgements, orders
of dismissal, indemnity agreements, settlement drafts, checks, or negotiable instruments.
26. MRS. PENAFIEL grants to Attomeys a lien on the case and any suit or action based
upon the case, and a lien on any proceeds and any judgments recovered in connection with the case
as security for the payment of Attorneys’s fees, MRS. PENAFIEL authorizes Attorneys to file
documents necessary to give notice of the lien, and to cause Attorneys’ portion of recovery to be
awarded to Attorneys in any judgement or order.
Contract & Employment Agreement of Employment .
With a Contingent Fes
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|27. MRS. PENAFIEL agrees to Attorneys’ adherence to the guidelines set forth in the
Texas Lawyerss’ Creed, attached as Exhibit B.
28. MRS. PENAFIEL authorizes Attorneys to use any licensed investigators Attomeys
chooses to investigate MRS. PENAFIEL’s case and MRS. PENAFIEL agrees to pay a reasonable
fee and costs thereof.
29, It is our experience that the tax considerations are sophisticated and often complex.
Therefore, although tax considerations may be addressed in each case, the Attorneys’s services do
not include tax advice, and you will be expected to obtain independent tax advice about any division
or award of property in this case before entering into any settlement agreement.
30. These firms reserve the right and privilege to destroy a client's file four (4) years from
the date the file is closed,
31. You hereby agree that, if you should at any time become displeased or dissatisfied
with any aspect whatsoever of the legal representation, or if you should at any time have any serious
question conceming that representation, you will immediately notify MICHAEL D. SYDOW,
RONALD J. KORMANIK AND DAVID J. WUKOSON of that fact in writing by certified mail,
return receipt requested.
THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION.
32. Ifaparty to this agreement has a dispute or claim against the other party or anyone
employed under this agreement and the dispute or claim arises out of, is related to, or concerns any
aspect of this agreement or services performed or not performed under this agreement, all such
disputes or claims shall be submitted to binding arbitration. Any such arbitration shall be held in
Houston, Texas, and no legal proceedings may be instituted except to enforce the award of the
arbitrator or to preserve the jurisdiction of any court with existing jurisdiction of any of the parties,
whether related or not to this agreement.
33. Unless the parties can mutually agree on an arbitrator, each party shall select one
arbitrator and the two selected arbitrators shall select a third person who shall arbitrate the claims
and disputes,
34, [fone party fails to designate an arbitrator within ten days from written demand to
arbitrate, the arbitrator selected by the other party shall solely arbitrate the case.
35. The arbitrator shall notify all parties and set a date, time, and place for the arbitration
heating. The arbitrator's decision shall be based on evidence submitted and governed by the Texas
Rules of Civil Procedure, Texas Rules of Evidence, and statutory and case law. The decisions shall
be based on a preponderance of the evidence. Notification of the details of the hearing shall be
mailed to the addresses of the parties as shown on the employment agreement unless the arbitrator
knows of a more current address, The notice shall be postage prepaid and deemed received within
Contract & Employment Agreement of Employment
“ With 2 Contingent Fee
Page 8 of 1t
LP. 4.8. RIK. DJfive days from deposit with the United States Postal Service. No hearing shall be had sooner than }
fifteen days from date of mailing of the notice. The arbitration fees shall be deemed costs of court |
and paid as provided in the Texas Rules of Civil Procedure. If the parties employ Attorneys to :
represent them in the arbitration, the arbitrator shall be authorized to award reasonable Attomey's
fees for the proceedings and for any appeal.
36. On the date of the arbitration hearing, the arbitrator shall proceed to hear the dispute
or claim, whether or not all parties to the arbitration appear, and on conclusion of the facts and
evidence presented make an award, The award shall be final and binding on the parties.
i
|
}
|
CIATION OTHER ATTORNEY(S) h
37. Attorneys , is their sole discretion, may employ associate counsel to assistthemin “2
the prosecution of the Litigation, and may refer all or any portion of the case te other counsel. In the
event Attorneys refers the Case to other-counsel, MRS. PENAFIEL shall not be required to pay
additional Attorneys fees, and this Agreement shall continue as the fee agreement with the new
couse: Cui Jd Lp ryt to syopraene “Ube duvibion
bp pe betwee ithe ied dudy * pdditinnal atteemuyo.*
38. This agreement shall be binding upon and inure to the benefit of tbe parties hereto /
and their respective heirs, executors, administrators, legal representatives, successors and assign. |
LEGAL CONSTRUCT |
39. Incase any one or more of the provisions contained in this agreement shall for any
reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or
unenforceable shall not effect any other provisions thereof and this agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been contained herein. !
unless by mutual agreement of all Attorneys and MRS, PENAFIEL in writing.
eveept for couse,
41, MRS, PENAFIEL understands, And hereby agrees that she cannot terminate the :
contingent fee obligations under this contract . PENAFIEL understands that this paragraph /
means that, upon signing of this agreement, MRS. PENAFIEL will still be zesponsible for the she |
contingent fee, even is she terminates Attorneys’s ployment (or any one of them) at a later date, 1% |
except for GAUSe WS defined by lawn, . Wh '
E AGREEMENT OF P ae
42, This contract embodies the entire agreement of the parties here to with respect to the |
matters herein contained, and it is agreed that the terms and conditions and stipulations hereof shall
not be Modified or revoked unless by written agreement signed by both parties. FURTHER, MRS. !
PENAFIEL ACKNOWLEDGES THAT IN ADDITION TO HAVING READ THIS AGREEMENT
40, This contract cannot be modified or terminated by Attorneys or MRS. PEN, naigylt ;
Contract & Employment Agreement of Employment
With a Contingent Fee
Page 9 of Ii Wo
Cent
LP.
MDS. RIK. DI.IN ITS ENTIRETY, Attorneys HAVE ANSWERED ANY QUESTIONS CONCERNING THIS
AGREEMENT RAISED BY MRS. PENAFIEL, AND MRS. PENAFIEL UNDERSTANDS THIS
AGREEMENT.
43. MRS. PENAFIEL certifies and aclnowledges that she has read this Agreement
carefully and voluntarily entered into this agreement fully aware of its terms and conditions.
44, This Agreement is entered into Harris County, Texas which shall also be the place
of performance and payment. Texas Law shall govern its terms.
45. This is the entire agreement between Attorneys and MRS. PENAFIEL. No
representations were made to induce MRS. PENAFIEL’s signature on this Agreement. There are
no representations or watranties made a part of this Agreement, other than those contained in this
agreement. It may not be amended except by a written document signed by MRS. PENAFIEL and
Attéineys.
46. Read this document carefully. This Agreement protects both you and your
Attorneys, and will prevent misunderstandings in the future. If you do not understand this
Agreement, or if it does not contain all agreements, do not sign it. I have read this entire
Agreement, afd understand it. I have read, and understand the contingent fee part of this
Agreement. LP.
SIGNED and ACCEPTED this | 4th day of. | A JU, Oe , 2007.
LISA PENAPIEL, Client
Contract & Employment Agreement of Employment
With a Contingent Fee
Page 10 of 11
LP. ve && D.By:
ONAL T,
ney at Li
SYDOW & MCDONALD, LLP,
Michael Sydow and David J.
Wukoson,
DAV: OSON
Attorney Law, Independent of
SYDOW & MCDONALD, LIP.,
Michael D. Sydow and Ronald J.
Kormanik
up
LP.
Contract & Employment Agreement of Employment
‘With a Contingent Fee
Page 11 of 11
/Source: jources > Texas > Statutes & Regulatlons > TK - Texas Cade, Constitutton, Gourt Rules & ALS, |
Combined
Too: le Annot x >Liw/ >. GLIENT-LAWYER RELATIONSHIP > |
Rule 1.04 Faas
Tex. R. Prof Conduct 1.04
TEXAS RULES “practitioner's Toolbox ge
Copyright © 2007 by ‘
Matthew Bender & Company, Inc. & Case Notes
a member of the LexisNexis Group, ~ i
All rights reserved. : |
*#** This document Is current through January 15, 2007 ***
*** Annotations current through January 2, 2007, #**
STATE RULES
TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT
I, CLIENT-LAWYER RELATIONSHIP L
Tex. R. Prof Canduct 1.04 (2007)
Rule 1.04 Fees
(a) A lawyer shall not enter Into an arrangement for, charge, ‘or collect arrillegal fee or
unconscionable fae.:A fee is unconscionable if a competent lawyer could not form a
reasonable bellef that the fee Is reasonable,
(b) Factors that may be considered in determining the reasonableness of a fee include, but
not to the exclusion of other relevant factors, the follawing:
(1) the time and fabor required, the novelty and difficulty of the questions invalved, and
the skiil requisite to perform the fagal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer; !
(3) the fee customarily charged in the locaillty for similar legal services;
{4} the amount Involved and the results obtained;
(5) the time timitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and abllity of the lawyer or lawyers performing the
services; and ‘
(8) whether the fee Is fixed or contingent on results obtained or uncertainty of collection
_ before the legal services have been rendered.
(c) When the lawyer has not regularly represented the client, the basis or rate of the fee shall
be communicated to the client, preferably in writing, before or within a reasonable time after
commencing the representation.
(d) A fea may be contingent on the outcome of the matter for which the service Is rendered,
By habe SA 4except In a matter in which a contingent fee Is prohibited by paragraph (e) or other law. A
contingent fee agreement shall be In writing and shail state the method by which the fee is to
be determined. If there Is to be a differentiation In the percentage or percentages that shal!
accrue to the lawyer In the event of settlement, trial or appeal, the percentage for each shall
be stated, The agreement shall state the Iltigation and other expenses to be deducted from
the recovery, and whether such expenses are to be deducted before or after the contingent
fee is calculated. Upan conclusion of a contingent fee matter, the lawyer shall provide the
client with a written statement describing the outcome of the matter and, If there is a
recovery, showing the remittance ta the cllent and the method of its determination.
(e) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for
representing a defendant In a criminal case.
(f) A division or arrangement for division of a fee between lawyers who are not in the same
firm may be made only If:
(1) the division ts: oes
(1) In proportion to the professional services performed by each lawyer; or
(i) made between lawyers who assume joint responsibility for the representation; and
(2) the client consents in writing to the terms of the arrangement prior to the time of the
association or referral proposed, Including
(1) the identity of all lawyers or law firms who will participate in the fee-sharing
arrangement, and
(i) whether fees will be divided based on the proportion of services performed or by
lawyers agreeing to assume joint responsibility for the representation, and i
(ii) the share of the fee that each lawyer or law firm will recelve or, if the division Is
based-on the proportion of services performed, the basis on which the division will be made;
rel
(3) the aggregate fee does not violate paragraph (a),
(g) Every agreement that allows a lawyer or law firm to associate other counsel In the
~~ ~——representation of a person, or to refer the person to other counsel for such representation,
and that results in such an assaclation with or referral to a different law firm or a lawyer In
such a different firm, shall be confirmed by an arrangement conforming to paragraph (f),
Consent by a cllent or a prospective client without knowledge of the information specified in
subparagraph (f)(2) does not constitute a confirmation within the meaning of this rue. No |
attorney shall collect or seek to collect fees or expenses In connection with any such
agreement that is not confirmed in that way, except for:
(1) the reasonable value of legal services provided to that person; and
(2) the reasonable and nacessary expenses actually Incurred on behalf of that person,
(h) Paragraph (f) of this rule does not apply to payment to a former partner or associate
pursuant to a separation or retirement agreement, or to a lawyer referral program certifled '
by the State Bar of Texas in accordance with the Texas Lawyer Referral Service Quality Act, \
Tex. Occ, Code 952.001 et seq., or any amendments or recodifications thereof.
NOTES:unless some benefit will be derived by the client, they should be avoided. The monitoring
requirement Is only that the referring lawyer be reasonably Infarmed of the matter, respond
to client questions, and assist the handling lawyer when necessary. Any referral or
association of other counsel should be made based solely on the client's best Interest.
LEGISLATIVE NOTE. --14. In the aggregate, the minimum activities that must be undertaken
by referring or assoclating lawyers pursuant to an arrangement for a division of fees are
substantially greater than those assumed by a lawyer who forwarded a matter to other
counsel, undertook no ongoing obligations with respect to It, and yet recelved a portion of
the handling lawyer's fee once the matter was concluded, as was permitted under the prior
version of this rule, Whether such activities, or any additional activities that a lawyer might
agree to undertake, suffice to make one lawyer participating In such an arrangement
responsible for the professional misconduct of another lawyer who is participating in It and, if
so, to what extent, are intended to be resolved by Texas Civil Practice and Remedies Code,
ch. 33, or other applicable law. LEGISLATIVE NOTE, ~-15, A client must consent In writing to
the terms of the arrangement prior to the time of the assoclation or referral proposed. For
this consent to be effective, the client must have been advised of at least the key features of
~--that arrangement, Those essential terms, which are specified In subparagraph (f)(2), are
LEGISLATIVE NOTE. -- 1) The identity of all lawyers or law firms who will participate in the
fee-sharing agreement, LEGISLATIVE NOTE. -- 2) Whether fees will be divided based on
the proportion of services performed or by lawyers agreeing to assume joint responsibility for
the representation, and LEGISLATIVE NOTE. -- 3) The share of the fee that each lawyer or
law firm will receive or the basis on which the division will be made if the division is based on
proportion of service performed, Consent by a client or prospective client to the referral to or
association of other counsel, made prior to any actual such referral or association but without
knowledge of the Information specified In subparagraph (F)(2), does not constitute sufficient
cllent.confirmation within the meaning of this rule. The referring or associating lawyer or any
other.lawyer who employs another lawyer to assist in the representation has the primary
duty to ensure full disclosure and compliance with this rule. LEGISLATIVE NOTE, --
16, Paragraph (g) facilltates the enforcement of the requirements of paragraph (f), Zt does so
by providing that agreements that authorize an attorney either to refer a person's case to
another lawyer, or to associate-other counsel In the handling of a client's case, and that
actually result In such a referral or association with counsel in a different jaw firm from the
one entering into the agreement, must be confirmed by an arrangement between the person
———-- and_the_ lawyers Involved_that-conforms-to-paragraph-(f).-As-noted-there,-that-arrangement
must be presented to and agreed to by the person before the referral or association between
the lawyers Involved occurs. See subparagraph (f)(2), Because paragraph (g) refers to the
party whose matter Is involved as a "person" rather than as a “cllent," It Is not possible to
evade its requirements by having a referring lawyer not formally enter Into an attorney-client
relationship with the person invalved-before referring that person's matter to other counsel.
Paragraph (g) does provide, hawever, for recovery In quantum meruit In Instances where Its
requirements are nat met. See subparagraphs (g)(1) and (g)(2). LEGISLATIVE NOTE. ~~
17, What should be done with any otherwise agreed-to fee that Is forfelted in whole or in part
due to a lawyer's fallure ta comply with paragraph (g) is not resolved by these rules.
LEGISLATIVE NOTE, --18. Subparagraph (f)(3) requires that the aggregate fee charged to
clients In connection with a given matter by all of the lawyers Involved meet the standards of
paragraph (a)-that Is, not be unconscionable. LEGISLATIVE NOTE. -~ Fee Disputes and
Determinations LEGISLATIVE NOTE. --19. If a procedure has been established for resolution
of fee disputes, such as an arbitration or mediation procedure established by a bar
association, the lawyer should conscientiously consider submitting to it. Law may prescribe a
procedure for determining a lawyer's fee, for example, in representation of an executor or
administrator, or when a class or a person js entitled to recover a reasonable attorneys fee as
part of the measure of damages. All Invoived lawyers should comply with any prescribed
procedures,LEGISLATIVE NOTE. --
Comment:
LEGISLATIVE NOTE. --1. A lawyer In good conscience should not charge or collect more
than a reasonable fee, although he may charge fess or no fee at all. The determination of the
reasonableness of a fee, or of the range of reasonableness, can be a difficult question, and a
standard of reasonableness is too vague and uncertain to be an appropriate standard ina
disciplinary action. For this reason, paragraph (a) adopts, for disciplinary purposes only, a
clearer standard: the lawyer Is subject to discipline for an Illegal fee or an unconscionable
fee. Paragraph (a) defines an unconscionable fee In terms of the reasonableness of the fee
but In a way to ellminate factual disputes as to the fees reasonableness. The Rules
unconscionable standard, however, does not preclude use of the reasonableness standard of
paragraph (b) in other settings. LEGISLATIVE NOTE. -- Basis or Rate of Fee LEGISLATIVE:
NOTE. --2. When the lawyer has regularly represented a client, they ordinarily wil! have
evolved an understanding concerning the basis or rate of the fee. If, however, the basis or
rate of fee being charged to a regularly represented client differs from the understanding that
has evolved, the lawyer should so advise the client. In a new clilent-lawyer relationship, an —
understanding as to the fee should be promptly astabiished. It Is not necessary to recite all
the factors that underlie the basis of the fee, but only those that are directly involved In its
computation. It is sufficient, for example, to state that the basic rate Is an hourly charge or a
fixed amount or an estimated amount, in order to identify the factors that may be taken Into
account In finally fixing the fee. When developments occur during the representation that
render an earlier estimate substantially inaccurate, a revised estimate should be provided to
the client. A written statement concerning the fee reduces the possibility of
misunderstanding, and when the lawyer has not regularly represented the client It Is -
preferable for the basis or rate of the fee to be cammunicated to the client In writing.
Furnishing the client with a simple memorandum or a copy of the lawyer's customary fee
schedule {s sufficient if the basis or rate of the fee Is set forth. In the case of a contingent
fee, a written agreement Is mandatory. LEGISLATIVE NOTE. -- Types of Feas LEGISLATIVE
NOTE. --3. Historically fawyers have determined what fees to charge by a varlety of methods.
Commonly employed are percentage fees and contingent fees (which-may vary In accordance
with the amount at stake o
Preview
CAUSE NO. 2021-36031 MICHAEL D. SYDOW, § IN THE DISTRICT COURT OF Plaintiff/Applicant, § § vs. § HARRIS COUNTY, TEXAS § LISA MINTON EF/K/A LISA § / PENAFIEL, § Defendant/Respondent. § 295th JUDICIAL DISTRICT / | INAL JU) FIRMING. 10) ‘Al | On this day, the Court head Plaintiff/Applicant Michael D. Sydow’s Motion for Default Judgment and Confirmation of Arbitration Award against Lisa Minton, formerly known as Lisa Penafiel. The Court grants the motion as follows: The Court finds Lisa Minton f/k/a Lisa Penafiel executed A contract & Agreement of Employment with a Contingent Fee with Michael D. Sydow on or about March 19, 2007 (“the Sydow fee agreement”), (A true and correct copy of the fee agreement is attached to this judgment, and incorporated herein, as Exhibit 1.) The Court further finds that the Sydow fee agreement, as well as a separately executed Arbitration Agreement executed in July 2020, called for any disputes regarding Sydow’s fee agreement to be submitted to binding arbitration. By agreement of the parties, an arbitration ensued before arbitrators Jeff Uzick, Hon Reagan Clark and Hon. Charles Seymore regarding Michael D. Sydow’s claim for fees, costs and damages related to an underlying Judgment and Decree of Divorce issued in Cause No. 2003- 03866 in the 295" Judicial District Court of Harris County, Texas which was transferred to the 311" Judicial District Court of Harris County, Texas. On June 11, 2021, the arbitrators issued an arbitration award in favor of Michael D. Sydow against Lisa Minton f/k/a Lisa Penafiel. (4 true and correct copy of the Final Binding Arbitration Award is attached hereto and incorporated herein as Exhibit 2.) Pursuant to Chapter 171 of the Texas Civil Practice and Remedies Code, and under the Texas General Arbitration Act, Michael D. Sydow filed an Application To Confirm the Arbitration Award, and sought judgment thereon pursuant to Tex. Civ. Prac. & Rem. Code § 171.092. The Court finds that it has proper venue and jurisdiction pursuant to Tex. Civ. Prac. & Rem. Code §§ 171.081, 171.082, 171.096. The Court further finds that Lisa Minton f/k/a Lisa Penafiel was personally served with citation on July 6, 2021, as reflected in the return of service, which has been on file with the Court more than 10 days and that Lisa Minton’s date for answer was August 2, 2021, by 10:00 am. The Court further finds that she has filed not appeared or answered as of the date of this Judgment, nor 1has she filed a Motion To Vacate the Arbitration Award under Tex. Civ. Prac. & Rem. Code § 171.088; Therefore, Lisa Minton f/k/a Lisa Penaficl is in default, and Michael D. Sydow is entitled to confirmation of the arbitration award. Michael D. Sydow has filed an Affidavit of Last Known Address and Affidavit of Non- military Service. Sydow has also proven up Arbitration Agreement, and the June 11, 2021 Final Binding Arbitration Award, and these documents were properly attached to the Application and this Motion for Default Judgment and Confirmation of the Arbitration Award under Tex. Civ. Prac. & Rem. Code § 171.085, The Court thus grants the motion and confirms the June 11, 2021 Final Binding Arbitration Award pursuant to Tex. Civ. Prac. & Rem Code §§ 171,086(b)(6), 171.087. In addition, pursuant to Tex. Civ. Prac. & Rem. Code § 171.092, the Court grants judgment in favor of Michael D. Sydow and against Lisa Minton f/k/a Lisa Penafiel. Accordingly, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the June 11, 2021 Final Binding Arbitration Award, attached as Exhibit 2, is confirmed and on which Judgment is now rendered as the findings and Judgment of this Court. It is further ORDERED, ADJUDGED AND DECREED that the March 19, 2007 Contract & Agreement of Employment with a Contingent Fee between Michael D. Sydow and Lisa Minton fik/a Lisa Penafiel is valid, binding and enforceable as against Lisa Minton f/k/a Lisa Penafiel, and her heirs, agents, representatives, successors and assigns. It is further, ORDERED, ADJUDGED AND DECREED that Lisa Minton f/k/a Lisa Penafiel terminated that March 19, 2007 Contract & Agreement of Employment with a Contingent Fee with Michael D. Sydow without just cause, and that Lisa Minton f/k/a Lisa Penafiel failed to establish any defense to the enforceability of that agreement. It is further ORDERED, ADJUDGED AND DECREED that, under the March 19, 2007 Contract & Agreement of Employment with Contingent Fee, Michael D, Sydow is entitled to 33 1/3% of the gross recovery by Lisa Minton f/k/a Lisa Penafiel of any and all money and property Lisa Minton f/k/a Lisa Penafiel is awarded or otherwise receives from any source or proceeding in Cause No. 2003-03866 including without limitation to the $249,600,000.00 Judgment received in this cause and the $1,822,808.00 in attorney’s fees, and $134,830.40 in sanctions whether by settlement, or by whatever causes of action necessary to procure collection of such amounts and Judgments due Lisa Minton f/k/a Lisa Penafiel from Jose Alejandro Penafiel a/k/a Jose Alejandro Penafiel Saldago, and Michael D. Sydow is hereby assigned such a 33 1/3% interest in these amounts and Judgments contained in the Final Decree of Divorce in Cause 2003-03866, as amended, modified or reformed pursuant to that certain appellate mandate issued in Case No. 14- 19-00240-CV and 14-20-00023-CV. i | i |IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Michael D. Sydow is awarded a Judgment against Lisa Minton f/k/a Lisa Penafiel in the amount of $469,636.90 with interest at 5% compounded per annum commencing on June 11, 2021 until paid in full comprising the following amounts:(1) $134,830.40 owed Michael D. Sydow for unpaid and unreimbursed expenses; (2) $82,500.00 for attorney’s fees due Michael D. Sydow; (4) $2,500.00 for discovery sanctions incurred by Michael D. Sydow in this arbitration proceeding; and (5) $249,806.50 for reasonable and necessary attorneys’ fees owed to Michael D. Sydow as set out in the arbitration award. Michael D. Sydow is granted all writs of execution and other process as necessary to enforce this Judgment. It is further ORDERED, ADJUDGED AND DECREED that all costs of the arbitration incurred or paid by Michael D. Sydow are awarded against Lisa Minton f/k/a Lisa Penafiel and that Judgment in the amount of $50,025.86 is awarded Michael D. Sydow against Lisa Minton f/k/a Lisa Penafiel for costs incurred in the arbitration proceeding and any further costs, to be determined by the Clerk of the Court. Such Judgment shall bear interest at the maximum legal rate of interest that being 5%, compounded per annum from June 11, 2021, until paid in full. Michael D. Sydow is granted all writs of execution and other process as necessary to enforce this Judgment. IT further ORDERED, ADJUDGED AND DECREED that, should Lisa Minton f/k/a Lisa Penafiel appeal this Judgment and Michael D. Sydow prevails in that appeal, that Michael D. Sydow shall be awarded a Judgment against Lisa Minton f/k/a Lisa Penaficl in the sum of $40,000.00 for which if not timely paid, let all writs of execution and other process necessary to enforce this Judgment issue. All relief that is sought or could have been otherwise sought by the parties is hereby DENIED. This constitutes a final judgment addressing all claims as to all parties which is appealable. Signed on this the day of August 2021. THE HONORABLE DONNA ROTHEXHIBIT “1”MDS EXHIBIT Ic CONTRACT & AGREEMENT OF EMPLOYMENT WITH A CONTINGENT FRE The undersigned Client, LISA PENAFIEL, hereinafter sometimes referred to as “CLIENT” or “MRS. PENAFIEL”, and MICHAEL D, SYDOW, RONALD J. KORMANIK AND DAVID J. WUKOSON, hereinafter sometimes referred to as “Attorneys” or “Lawyers” hereby enter into the following Contract and Agreement of Employment with a Contingent Fee, hereinafter sometimes referred to as “Agreement,” regarding Attorney’s representation of MRS. PENAFIEL in the following matters, which are hereinafter referred to as the “Litigation” to wit: A. Cause No. 2003-03866; In The Matter of The Marriage of Lisa Penaftel and Jose Alejandro Penafiel; In The 312" District Court of Haris County, Texas B. Cause 1999-42857; Bast Asia Gas Co, LTD and Canada Grande, LTD., vs. Tripetrol Holdings, Inc.; In The 151* District Court of Harris County, Texas C. Intervention filed by John Nichols, Sr. MRS. PENAFIEL and Attorneys assert the following representation and understandings regarding employment of Attorneys. ~~ Inconsideration of the mutual promises herein contained, the parties hereto agree as follows: PURPOSE OF REPRESENTATION 1. The parties agree that attorney MICHAEL D. SYDOW shall be the lead counsel . (attorney in charge) for all representation of Client covered under this Agreement. RONALD J. KORMANIK and DAVID J. WUKOSON will assist MICHARL D. SYDOW as required by the tepresentation or as requested by either Client or MICHAEL D. SYDOW. 2. At the time of MRS. PENAFIEL’s initial request that Attorneys represent her in her divorce case, MRS. PENAFIEL wasrepresented by other Attorneys. MRS, PENAFTEL has approved MICHAEL D, SYDOW, RONALD J. KORMANIK AND DAVID J, WUKOSON and desires and agrees that MICHAEL D, SYDOW, RONALD J. KORMANIK AND DAVID J. WUKOSON substitute in as Attomeys of record for her current Aitommey. MRS. PENAFIEL desired and agreed that MICHAEL D. SYDOW, RONALD J, KORMANIK AND DAVID J. WUKOSON notify John F. Nichols, Sr., that MRS. PENAFIEL had terminated his employment, requested her files be delivered to MICHAEL D. SYDOW, RONALD J. KORMANIK AND DAVID J, WUKOSON, and requested a final invoice of fees and expenses incurred, and balance owing. MRS. PENAFIEL acknowledges that she may owe Attorney’s fees and expenses (possibly including a contingent fee) to John F. Nichols, Sr., and that MICHAEL D. SYDOW, RONALD J. KORMANIK AND DAVID J. WUKOSON shall not be liable in any manner for any fees or expenses that may be owed to John Contract & Employment Agreement of Employment With a Contingent Fee bun Page 1 of 11 We LP. MDS. RIK. DA¥. Nichols, Sr. MRS. PENAFIEL and MICHAEL D. SYDOW, RONALD J. KORMANIK AND DAVID J, WUKOSON further agree and acknowledge that MICHAEL D, SYDOW has previously represented MRS. PENAFIBL in the civil court proceeding (item B above) and that all previous N agreements related to that representation will be seseinded-and-censid ulLand-reid-whea-this pe by thw Agreement. pay ese 3. MRS. PENAFIEL hereby retains and employs Attorneys to represent her in a divorce action in Harris County, Texas in which her husband is in control of all, or most of all the assets accumulated during the marriage, and is claiming all assets ( or most of all) are owned by other parties, which may be accurate. MRS. PENAFIEL desires Attorneys to obtain for MRS. PENAFIEL a fair and equitable division of the parties’ estate, MRS. PENAFIEL is not in control of sufficient funds to hire MICHAEL D. SYDOW, RONALD J. KORMANIK AND DAVID J. WUKOSON on an hourly basis. 4, ___ Client represents that she is currently married to Alejandro Pefiafiel, and has adivorce proceeding pending in the Family Law Courts in Harris County, Texas (Cause No. 2003-03866; In the Matter of the Marriage of Lisa Penafiel and Jose Alejandro Penafiel; In the 312" Judicial District Court of Harris County, Texas), as well as an intervention in the Civil District Courts of Harris County, Texas (Cause No. 1999-42857; East Asia Gal Co., LTD and Canada Grande, LTD. y. Tripetrol Holdings, Inc,In the 151“ Judicial District Court of Harris County, Texas). These proceedings allege, among other things, that as the spouse of Alejandro Pefiafiel, Client is entitled to, and has an interest in, all assets acquired either by Client or Alsjandro Pefiafiel during their marriage, as well as any property, whether it be real, personal or otherwise, which is, or shall be determined to be commumity property, as that term is defined under the laws of the State of Texas, which marriage occurred in Harris County, Texas, on or about December, 1981, (“Marriage”) and any otherbenefitto which Client maybe entitled as aresult of the Marriage (“‘Contemplated Asset”); It is our understanding the the Marriage was an informal marriage with a declaration of Informal Marriage being filed on or about November 19, 1984, Clienthereby engages Attorneys to locate and collect any and all assets of any kind or nature or character from Alejandro Pefiafiel, or any other person or entity that possesses or controls any assets of any kind or nature that would be Contemplated Asset pursuant to this Agreement, regardless of the nature or character of the asset 7 its location, within the bounds of applicable law. Clients hereby retains and employs Attorneys to evaluate, file suitifnecessary or to talce any other action required, including any administrative claim or action, to collect any asset contemplated by this Agreement, after consultation with, and with approval of, the client. Attorney’s services will consist of the court appearances, telephone conferences, travel, investigative work, legal research, review of material received from all sources, drafting of pleadings and incidental correspondence, participation in setilement conferences, and other necessary preparation for your representation, FERRG 5. ‘There may be other proceedings, whether litigation or administrative, orclaims ofany type, currently pending in other jurisdictions, or that may be filed in other jurisdictions, seeking recovery of assets from Alejandro Penafiel on behalf of | Client. Attorneys may not be the attorney of record in those cases, however, any recovery or benefit obtained from any such proceeding is specifically covered as a Contemplated Asset in this Agreement, This includes without limitation, Contract & Employment Agreement of Employment ‘With a Contingent Fee . . Page 2 of 11 We f LP. sD.S.proceedings in Ecuador, for which Attomeys are not counsel of record for Client, but are assisting Client and her other lawyers, The ferm Contemplated Assets also includes all assets which are the separate assets of Client. 6. Itis further understood between the parties to this Agreement that there are currently at least two cases pending in Harris County Texas, one in the Civil District Court and one in the Family Courts. This Agreement covers any recovery made in either of these, or any other litigation, that now exists or that may, in the future, exist, whether the litigation is directly for the recovery of the Contemplated Assets or not, Any recovery of any Contemplated Assets, in any forum or any : manner, either litigation or not, is covered by this Agreement. Contemplated Assets specifically \ include, but is not limited to, the house located at 10935 Wickwild Street, in Houston, Harris | County, Texas, 77024 and the lake house located at_WI44 (l¥ésha . Mo netgomery, ; TK : ATTORNEYS’ FEES-CONTINGENT AND HOURLY 41396 Wa 7. Client acknowledges that this case is very complex in nature. This case involves a complex corporate and banking structures, and the application of multinational laws. This case will “Wee require not only the application of foreign laws, but resolving conflicts of foreign laws with the laws Uo , of the State of Texas. CHent acknowledges that this case will require bl ABA el time trying to unravel Respondent’s attempts to hide community assets, It will require international travel and negotiations with international government agencies to enforce any orders or judgment that \ night be taken in this case, if any. Client acknowledges that reasonable fees for such legal work would be $650.00 per hour, but Client cannot afford to pay those fees and/or expenses, 8. In consideration of the services rendered and to be rendered for MRS. PENAFIEL by Attomeys, and taking into account the complexities of the case as described in Paragraph 7 above, and the fact that MRS. PENAFIEL cannot afford the hourly rate or expenses, and in consideration of the fact that Attorneys are willing to risk a part of their fees, MRS. PENAFIEL agrees to pay MICHAEL D. SYDOW, RONALD J. KORMANIK AND DAVID J. WUKOSON 33 18% (hereinafter sometimes referred to as “contingent fee”) of the gross recovery by Lisa Penafiel of any and all sums of money and property MRS. PENAFIEL is awarded or otherwise receives from any source or proceeding, including but not limited to the Litigation. In addition to the contingent fee described herein, MRS, PENAFIEL agrees to pay Attorneys $175.00 per hour for work performed on her file, based on increments of 1/4 of an hour as incurred. “Sums of money” shall include spousal support and alimony, but not child support. The value of “property” awarded to MRS. PENAFIEL shall be defined as the fair market value (after deducting any liens, mortgages, encumbrances, etc. that MRS. PENAFIEL will be solely responsible for) of the property. All sums of money and property (except child support), whether separate or community, awarded to MRS. PENAFIEL in the Litigation or otherwise, whether by settlement or trial, by whatever cause of action procured such awards, shall be included to determine the contingent fee, Such contingent Attorneys’s fees will be figured on the total value of monies, real and personal property, or other community and separate property assets of any nature awarded to MRS. PENAFIBL in the divorce and the other Litigation between MRS. PENAFIEL and JOSE ALEJANDRO PENAFIEL, including the award of money or property to MRS. PENAFIEL for any other claim, including but not limited Contract & Employment Agreement of Employment With a Contingent Fee Page 3 of 11 LP, MDS. RIK. Du.to tort, Attorneys fees, or contract claims against JOSE ALEJANDRO PENAFIEL in such divorce i action, whether by settlement or trial. Any attorney’s fees awarded and collected cannot ethically be shared with Client. Any interim attomey’s fees awarded by any court and collected by attorneys, shall be credited against the reduced hourly charges 9. The contingent fee discussed in the Agreement shall be void and ofno force or effect ifthe parties reconcile without a division or partition of assets, In such event, no contingent fee will be due and owing, but MRS. PENAFIEL agrees to compensate the Attorneys at their hourly rate of | $650 per hour. t 10. MRS. PENAFIEL and Attomeys have discussed this agreement and the “Contingent fee” contained herein. Attorneys have also provided MRS. PENAFIEL a copy of Rule 104 of the Texas Disciplinary Rules of Professional Conduct, including relevant section(d), and comment 9 of Rule 104 (which are attached to this contract as Exhibit *A”), MRS. PENAFTEL understands that contingent fees are rarely justified in family law cases. MRS. PENAFIEL and Attorneys agree, because of the current circumstances, that a contingent fee is justified in MRS. PENAFIEL’s case. MRS. PENAFIEL hereby states that she believes that the contingent Attorneys fee charged in this /jagreement is justified and is fair and reasonable based on current circumstances. LP. MRS. PENAFIEL acknowledges that some of the current cirenmstances, which justify, and make this contingent fee fair and reasonable, include but are not limited to: ~~ - the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; - the likelihood that the acceptance of the particular employment will a employment by the Lawyers; pat - the time limitation imposed by the client or by the circumstances> - the experience, reputation, and ability of the Lawyers or Lawyersf performing the services; and - whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. Although it is anticipated that MRS. PENAFIEL will receive monies/property in her divorce case, if no recovery is made, or property received, then MRS. PENAFIEL will not owe Aftorneys a contingency fee, but only the hourly fee set herein. 11. MRS. PENAFIEL has been told by Attomeys that contingent fees are rarely used in family law cases, and should generally only be made the basis of a fee contract after MRS. PENABFIEL obtains advice and input of an independent Attorneys. Further, MRS. PENAFIEL acknowledges that she has been advised and understands that employment of Attomeys on a contingent fee basis may result in MRS. PENAFIEL ultimately paying a much larger fee than if MRS. PENAFIEL employed Attomeys on an hourly basis (which MRS, PENAFIEL insists cannot be done by her because she states that she has no funds to pay hourly rates ta Attorneys). MRS. PENAFIEL states she is familiar with the use of contingent fees. MRS. PENAFIEBL is aware that the Contract & Employment Agreement of Employment ‘With a Contingent Fee p Page 4 of 11 W oo : LP, MDS. RIE. DJcontingent fee is not based on amount of hours/time spent by MICHAEL D. SYDOW, RONALD. i, KORMANIK AND DAVID J. WUKOSON on MRS. PENAFIEL’s case. MRS. PENAFIEL acknowledges the right to consult with other independent Attorneys in connection with entering into this agreement, including the payment of Attorneys fees on a “contingent fee” basis. MIRS, PENAFIEL has consulted with dependent Attorneys in connection with this agreement, including the “contingent fee”. LP. APPEALS 12. Inthe event any appeal of the case is made, Attorneys will receive an additional 10% of the recovery for services rendered in handling the appeal. ASSIGNMENT OF INTEREST 13. In consideration of Attomeys services, and as security for the payment of the fees, costs and/or expenses incurred on MRS. PENAFIEL's behalf as provided in this agreement, MRS. PENAFIEL agrees to, and does hereby assign, grant, and convey to Attorneys an undivided 33 1/3% interest on all of MRS. PENAFIEL’s monies, real-and personal property, other community or separate property assets, or other assets of any nature whatsoever that MRS. PENAFIEL owns, has interest in, has or will be awarded to, or received by her in the Litigation, or in any other proceeding or in any other manner, in any jurisdiction. or country, including in the divorce case. COSTS AND EXPENSES 14. MRS. PENAFIEL further agrees to pay all out-of-pocket costs and expenses incurred in connection with this case, and agrees to timely (within 30 days) reimburse Attorneys for such costs.and Expenses advanced on MRS. PENAFIEL’s behalf. 15. MRS. PENAFTEL acknowledges that Attorneys will be required to incur costs in pursuing MRS, PENAFIEL’s claim. These expenses may include, but are not limited to, the following: investigation, travel, airfare, lodging, retention of experts, consultants , exhibit and demonstrative evidence preparation, depositions, photocopying, court reporters’ fees, computer research, database charges, equipment expenses, and videotaping fees. MRS. PENAFIEL authorizes Attorneys fo incur such costs to accomplish a satisfactory resolution. Attorneys are authorized to pay these expenses on behalf of MRS, PENAFIEL and keep a systematic record of them. PRO CESS ‘OR SET NT 16. Nosettlement of any nature shall be made without MRS. PENAFIEL’s approval, and MRS. PENAFIEL agrees to make no settlement or offer of settlement without approval of Attorneys, except if the parties reconcile. REPRESENTATIONS/WITHDRA WAL Contract & Employment Agreement of Employment With a Contingent Fee Page 5 of 11 este f\ LP! 8. RIK. DI | L17. Norepresentations have been made by Attorneys as to the ultimate success of the case and the only material representations made by Attorneys to MRS. PENAFIEL is that they will exert their best professional efforts in their representation of MRS. PENAFIEL. It is understood and agreed that Attorneys cannot warrant or guarantee the outcome of the case, and Attorneys have not represented to MRS. PENAFIEL that she will be awarded all or any of the funds or assets so desired, MRS, PENAFIEL realizes that Attorneys will be investigating the law and facts applicable to her case on a continuing basis and MRS, PENAFIEL agrees that Attorneys retain the right at any time, to release themselves (or anyone of them) from this Contract upon reasonable notice to MRS. PENAFIEL, and to withdraw from the representation of MRS. PENAFIEL. The reasons for such withdrawal may include, but are not limited to the following: Legal barriers have been discovered which seriously impede successful resolution, factual barriers have been discovered which seriously impede successful resolution, continued pursuit of the Case would be cost prohibitive, or MRS. PENAFIEL’s conduct has seriously impeded successful resolution of the case; A. _In the event Attorneys exercise their option to withdraw under the terms of this "paragraph, they will provide MRS. PENAFIEL with the names, addresses, and telephone numbers of the opposing party or Attorneys, and a list of all deadlines and pending matters. B. Tn the event Attorneys exercises their option to withdraw under the terms of this paragraph, Attorneys releases MRS. PENAFIEL from the contingent fee, but retains _ their lion in MRS. PENAFIEL”S case to the extent of the expenses and costs that “were incurred on behalf of MRS. PENAFIEL prior to the exercise of the option to withdraw as well as any unpaid hourly fees. MRS, PENAFIEL agrees toprotect-such costs and expenses out of any recovery MRS. PENAFIEL obtains. PRIOR AGREEMENTS SUPERSEDED 18. This Agreement constitutes the sole and only agreement of the parties hereto and upon a signature of MRS. PENAFIEL, MICHAEL D. SYDOW, RONALD J. KORMANIK AND DAVID J. WUKOSON, supersedes any prior understandings or written or oral agreement ‘between the parties respecting the subject matter described herein. ADDITIONAL TERMS 19. MRS.PENAFIBL fully understands that Attormeys acceptno responsibility or liability of any nature for any matters or concern or interest in this cause preceding the date of this Agreement. 20. MRS. PENAFIEL fully understand that this instrament represents a contract for services rendered atid to be rendered by Attorneys and that such services are conditioned upon the terms of this Agreement. Contract & Employment Agreement of Employment ‘With a Contingent Fee 0 Page 6 of 11 LP. Wee RIK. DJ.21. ‘If there is any type of settlement whereby MRS. PENAFIEL is to receive or be paid future payments, then at the option of Attorneys, the settlement will be reduced to present value, and the settlement will be arranged whereby there will be sufficient cash at the time of the settlement to pay Attorneys fees, which will be figured on the present value of the total settlement including the present value of future payments. If there is insufficient cash available to pay Attorneys’ fees in the manner described in this paragraph, Attomeys reserve the right to receive Attorneys’s portion of said future payments when received. MRS. PENAFIEL and Attorneys will attempt to ratify the division of any future payments in writing, so that MRS. PENAFIEL and Atiomeys will each now their exact Portion of any future payment, but in the event that such written ratification does not take place, this agreement still controls said future payments/receipts. If there is insufficient cash available to pay Attorneys’ fees in the manner described in this paragraph, Attomeys reserve the right to assign any portion or all of their fees to third parties. 22, The State Bar of Texas investigates and prosecutes professional misconduct committed by Texas Attorneys. Although not every complaint against or dispute with a Lawyers involves professional misconduct, the State Bar’s Office of General Counsel will provide you with information about how to file a complaint. Please call 1-800-932-1900 toll-free for more information, 23. Attorneys, their agents, and employees are authorized to tale all steps deemed by them to be reasonably necessary and appropriate to obtain a satisfactory result for MRS. PENAFIEL, including but not limited to securing a complete investigation of the case, instituting legal proceedings, employing consultants, expert/witnesses and associate counsel, entering into settlement negoations, preparing settlement schedules, preparing for and proceeding to trial, and discontinuing the case or litigation, if any. 24. Upon resolution of the Litigation (or any part thereof), MRS. PENAFIEL agrees to promptly execute such documents as are reasonably necessary to the resolution, including releases, compromise settlement agreements, agreed judgments or orders of dismissal, indemnity agreements, and settlement drafts, checks, or negotiable instruments. 25, MRS. PENAFIEL gives Attorneys Power of Attorney to execute all documents on behalf of MRS. PENAFIEL in connection with the Case. Attorneys are authorized to sign all documents necessary to present and prosecute MRS. PENAFIEL’s case, including but iiot Iinited to the following: pleadings, releases, settlement agreements, interim or temporary judgements, orders of dismissal, indemnity agreements, settlement drafts, checks, or negotiable instruments. 26. MRS. PENAFIEL grants to Attomeys a lien on the case and any suit or action based upon the case, and a lien on any proceeds and any judgments recovered in connection with the case as security for the payment of Attorneys’s fees, MRS. PENAFIEL authorizes Attorneys to file documents necessary to give notice of the lien, and to cause Attorneys’ portion of recovery to be awarded to Attorneys in any judgement or order. Contract & Employment Agreement of Employment . With a Contingent Fes Page 7 of 11 We “ ene A MDS. ne A | i |27. MRS. PENAFIEL agrees to Attorneys’ adherence to the guidelines set forth in the Texas Lawyerss’ Creed, attached as Exhibit B. 28. MRS. PENAFIEL authorizes Attorneys to use any licensed investigators Attomeys chooses to investigate MRS. PENAFIEL’s case and MRS. PENAFIEL agrees to pay a reasonable fee and costs thereof. 29, It is our experience that the tax considerations are sophisticated and often complex. Therefore, although tax considerations may be addressed in each case, the Attorneys’s services do not include tax advice, and you will be expected to obtain independent tax advice about any division or award of property in this case before entering into any settlement agreement. 30. These firms reserve the right and privilege to destroy a client's file four (4) years from the date the file is closed, 31. You hereby agree that, if you should at any time become displeased or dissatisfied with any aspect whatsoever of the legal representation, or if you should at any time have any serious question conceming that representation, you will immediately notify MICHAEL D. SYDOW, RONALD J. KORMANIK AND DAVID J. WUKOSON of that fact in writing by certified mail, return receipt requested. THIS AGREEMENT IS SUBJECT TO BINDING ARBITRATION. 32. Ifaparty to this agreement has a dispute or claim against the other party or anyone employed under this agreement and the dispute or claim arises out of, is related to, or concerns any aspect of this agreement or services performed or not performed under this agreement, all such disputes or claims shall be submitted to binding arbitration. Any such arbitration shall be held in Houston, Texas, and no legal proceedings may be instituted except to enforce the award of the arbitrator or to preserve the jurisdiction of any court with existing jurisdiction of any of the parties, whether related or not to this agreement. 33. Unless the parties can mutually agree on an arbitrator, each party shall select one arbitrator and the two selected arbitrators shall select a third person who shall arbitrate the claims and disputes, 34, [fone party fails to designate an arbitrator within ten days from written demand to arbitrate, the arbitrator selected by the other party shall solely arbitrate the case. 35. The arbitrator shall notify all parties and set a date, time, and place for the arbitration heating. The arbitrator's decision shall be based on evidence submitted and governed by the Texas Rules of Civil Procedure, Texas Rules of Evidence, and statutory and case law. The decisions shall be based on a preponderance of the evidence. Notification of the details of the hearing shall be mailed to the addresses of the parties as shown on the employment agreement unless the arbitrator knows of a more current address, The notice shall be postage prepaid and deemed received within Contract & Employment Agreement of Employment “ With 2 Contingent Fee Page 8 of 1t LP. 4.8. RIK. DJfive days from deposit with the United States Postal Service. No hearing shall be had sooner than } fifteen days from date of mailing of the notice. The arbitration fees shall be deemed costs of court | and paid as provided in the Texas Rules of Civil Procedure. If the parties employ Attorneys to : represent them in the arbitration, the arbitrator shall be authorized to award reasonable Attomey's fees for the proceedings and for any appeal. 36. On the date of the arbitration hearing, the arbitrator shall proceed to hear the dispute or claim, whether or not all parties to the arbitration appear, and on conclusion of the facts and evidence presented make an award, The award shall be final and binding on the parties. i | } | CIATION OTHER ATTORNEY(S) h 37. Attorneys , is their sole discretion, may employ associate counsel to assistthemin “2 the prosecution of the Litigation, and may refer all or any portion of the case te other counsel. In the event Attorneys refers the Case to other-counsel, MRS. PENAFIEL shall not be required to pay additional Attorneys fees, and this Agreement shall continue as the fee agreement with the new couse: Cui Jd Lp ryt to syopraene “Ube duvibion bp pe betwee ithe ied dudy * pdditinnal atteemuyo.* 38. This agreement shall be binding upon and inure to the benefit of tbe parties hereto / and their respective heirs, executors, administrators, legal representatives, successors and assign. | LEGAL CONSTRUCT | 39. Incase any one or more of the provisions contained in this agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality, or unenforceable shall not effect any other provisions thereof and this agreement shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. ! unless by mutual agreement of all Attorneys and MRS, PENAFIEL in writing. eveept for couse, 41, MRS, PENAFIEL understands, And hereby agrees that she cannot terminate the : contingent fee obligations under this contract . PENAFIEL understands that this paragraph / means that, upon signing of this agreement, MRS. PENAFIEL will still be zesponsible for the she | contingent fee, even is she terminates Attorneys’s ployment (or any one of them) at a later date, 1% | except for GAUSe WS defined by lawn, . Wh ' E AGREEMENT OF P ae 42, This contract embodies the entire agreement of the parties here to with respect to the | matters herein contained, and it is agreed that the terms and conditions and stipulations hereof shall not be Modified or revoked unless by written agreement signed by both parties. FURTHER, MRS. ! PENAFIEL ACKNOWLEDGES THAT IN ADDITION TO HAVING READ THIS AGREEMENT 40, This contract cannot be modified or terminated by Attorneys or MRS. PEN, naigylt ; Contract & Employment Agreement of Employment With a Contingent Fee Page 9 of Ii Wo Cent LP. MDS. RIK. DI.IN ITS ENTIRETY, Attorneys HAVE ANSWERED ANY QUESTIONS CONCERNING THIS AGREEMENT RAISED BY MRS. PENAFIEL, AND MRS. PENAFIEL UNDERSTANDS THIS AGREEMENT. 43. MRS. PENAFIEL certifies and aclnowledges that she has read this Agreement carefully and voluntarily entered into this agreement fully aware of its terms and conditions. 44, This Agreement is entered into Harris County, Texas which shall also be the place of performance and payment. Texas Law shall govern its terms. 45. This is the entire agreement between Attorneys and MRS. PENAFIEL. No representations were made to induce MRS. PENAFIEL’s signature on this Agreement. There are no representations or watranties made a part of this Agreement, other than those contained in this agreement. It may not be amended except by a written document signed by MRS. PENAFIEL and Attéineys. 46. Read this document carefully. This Agreement protects both you and your Attorneys, and will prevent misunderstandings in the future. If you do not understand this Agreement, or if it does not contain all agreements, do not sign it. I have read this entire Agreement, afd understand it. I have read, and understand the contingent fee part of this Agreement. LP. SIGNED and ACCEPTED this | 4th day of. | A JU, Oe , 2007. LISA PENAPIEL, Client Contract & Employment Agreement of Employment With a Contingent Fee Page 10 of 11 LP. ve && D.By: ONAL T, ney at Li SYDOW & MCDONALD, LLP, Michael Sydow and David J. Wukoson, DAV: OSON Attorney Law, Independent of SYDOW & MCDONALD, LIP., Michael D. Sydow and Ronald J. Kormanik up LP. Contract & Employment Agreement of Employment ‘With a Contingent Fee Page 11 of 11 /Source: jources > Texas > Statutes & Regulatlons > TK - Texas Cade, Constitutton, Gourt Rules & ALS, | Combined Too: le Annot x >Liw/ >. GLIENT-LAWYER RELATIONSHIP > | Rule 1.04 Faas Tex. R. Prof Conduct 1.04 TEXAS RULES “practitioner's Toolbox ge Copyright © 2007 by ‘ Matthew Bender & Company, Inc. & Case Notes a member of the LexisNexis Group, ~ i All rights reserved. : | *#** This document Is current through January 15, 2007 *** *** Annotations current through January 2, 2007, #** STATE RULES TEXAS DISCIPLINARY RULES OF PROFESSIONAL CONDUCT I, CLIENT-LAWYER RELATIONSHIP L Tex. R. Prof Canduct 1.04 (2007) Rule 1.04 Fees (a) A lawyer shall not enter Into an arrangement for, charge, ‘or collect arrillegal fee or unconscionable fae.:A fee is unconscionable if a competent lawyer could not form a reasonable bellef that the fee Is reasonable, (b) Factors that may be considered in determining the reasonableness of a fee include, but not to the exclusion of other relevant factors, the follawing: (1) the time and fabor required, the novelty and difficulty of the questions invalved, and the skiil requisite to perform the fagal service properly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; ! (3) the fee customarily charged in the locaillty for similar legal services; {4} the amount Involved and the results obtained; (5) the time timitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and abllity of the lawyer or lawyers performing the services; and ‘ (8) whether the fee Is fixed or contingent on results obtained or uncertainty of collection _ before the legal services have been rendered. (c) When the lawyer has not regularly represented the client, the basis or rate of the fee shall be communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation. (d) A fea may be contingent on the outcome of the matter for which the service Is rendered, By habe SA 4except In a matter in which a contingent fee Is prohibited by paragraph (e) or other law. A contingent fee agreement shall be In writing and shail state the method by which the fee is to be determined. If there Is to be a differentiation In the percentage or percentages that shal! accrue to the lawyer In the event of settlement, trial or appeal, the percentage for each shall be stated, The agreement shall state the Iltigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upan conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement describing the outcome of the matter and, If there is a recovery, showing the remittance ta the cllent and the method of its determination. (e) A lawyer shall not enter into an arrangement for, charge, or collect a contingent fee for representing a defendant In a criminal case. (f) A division or arrangement for division of a fee between lawyers who are not in the same firm may be made only If: (1) the division ts: oes (1) In proportion to the professional services performed by each lawyer; or (i) made between lawyers who assume joint responsibility for the representation; and (2) the client consents in writing to the terms of the arrangement prior to the time of the association or referral proposed, Including (1) the identity of all lawyers or law firms who will participate in the fee-sharing arrangement, and (i) whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and i (ii) the share of the fee that each lawyer or law firm will recelve or, if the division Is based-on the proportion of services performed, the basis on which the division will be made; rel (3) the aggregate fee does not violate paragraph (a), (g) Every agreement that allows a lawyer or law firm to associate other counsel In the ~~ ~——representation of a person, or to refer the person to other counsel for such representation, and that results in such an assaclation with or referral to a different law firm or a lawyer In such a different firm, shall be confirmed by an arrangement conforming to paragraph (f), Consent by a cllent or a prospective client without knowledge of the information specified in subparagraph (f)(2) does not constitute a confirmation within the meaning of this rue. No | attorney shall collect or seek to collect fees or expenses In connection with any such agreement that is not confirmed in that way, except for: (1) the reasonable value of legal services provided to that person; and (2) the reasonable and nacessary expenses actually Incurred on behalf of that person, (h) Paragraph (f) of this rule does not apply to payment to a former partner or associate pursuant to a separation or retirement agreement, or to a lawyer referral program certifled ' by the State Bar of Texas in accordance with the Texas Lawyer Referral Service Quality Act, \ Tex. Occ, Code 952.001 et seq., or any amendments or recodifications thereof. NOTES:unless some benefit will be derived by the client, they should be avoided. The monitoring requirement Is only that the referring lawyer be reasonably Infarmed of the matter, respond to client questions, and assist the handling lawyer when necessary. Any referral or association of other counsel should be made based solely on the client's best Interest. LEGISLATIVE NOTE. --14. In the aggregate, the minimum activities that must be undertaken by referring or assoclating lawyers pursuant to an arrangement for a division of fees are substantially greater than those assumed by a lawyer who forwarded a matter to other counsel, undertook no ongoing obligations with respect to It, and yet recelved a portion of the handling lawyer's fee once the matter was concluded, as was permitted under the prior version of this rule, Whether such activities, or any additional activities that a lawyer might agree to undertake, suffice to make one lawyer participating In such an arrangement responsible for the professional misconduct of another lawyer who is participating in It and, if so, to what extent, are intended to be resolved by Texas Civil Practice and Remedies Code, ch. 33, or other applicable law. LEGISLATIVE NOTE, ~-15, A client must consent In writing to the terms of the arrangement prior to the time of the assoclation or referral proposed. For this consent to be effective, the client must have been advised of at least the key features of ~--that arrangement, Those essential terms, which are specified In subparagraph (f)(2), are LEGISLATIVE NOTE. -- 1) The identity of all lawyers or law firms who will participate in the fee-sharing agreement, LEGISLATIVE NOTE. -- 2) Whether fees will be divided based on the proportion of services performed or by lawyers agreeing to assume joint responsibility for the representation, and LEGISLATIVE NOTE. -- 3) The share of the fee that each lawyer or law firm will receive or the basis on which the division will be made if the division is based on proportion of service performed, Consent by a client or prospective client to the referral to or association of other counsel, made prior to any actual such referral or association but without knowledge of the Information specified In subparagraph (F)(2), does not constitute sufficient cllent.confirmation within the meaning of this rule. The referring or associating lawyer or any other.lawyer who employs another lawyer to assist in the representation has the primary duty to ensure full disclosure and compliance with this rule. LEGISLATIVE NOTE, -- 16, Paragraph (g) facilltates the enforcement of the requirements of paragraph (f), Zt does so by providing that agreements that authorize an attorney either to refer a person's case to another lawyer, or to associate-other counsel In the handling of a client's case, and that actually result In such a referral or association with counsel in a different jaw firm from the one entering into the agreement, must be confirmed by an arrangement between the person ———-- and_the_ lawyers Involved_that-conforms-to-paragraph-(f).-As-noted-there,-that-arrangement must be presented to and agreed to by the person before the referral or association between the lawyers Involved occurs. See subparagraph (f)(2), Because paragraph (g) refers to the party whose matter Is involved as a "person" rather than as a “cllent," It Is not possible to evade its requirements by having a referring lawyer not formally enter Into an attorney-client relationship with the person invalved-before referring that person's matter to other counsel. Paragraph (g) does provide, hawever, for recovery In quantum meruit In Instances where Its requirements are nat met. See subparagraphs (g)(1) and (g)(2). LEGISLATIVE NOTE. ~~ 17, What should be done with any otherwise agreed-to fee that Is forfelted in whole or in part due to a lawyer's fallure ta comply with paragraph (g) is not resolved by these rules. LEGISLATIVE NOTE, --18. Subparagraph (f)(3) requires that the aggregate fee charged to clients In connection with a given matter by all of the lawyers Involved meet the standards of paragraph (a)-that Is, not be unconscionable. LEGISLATIVE NOTE. -~ Fee Disputes and Determinations LEGISLATIVE NOTE. --19. If a procedure has been established for resolution of fee disputes, such as an arbitration or mediation procedure established by a bar association, the lawyer should conscientiously consider submitting to it. Law may prescribe a procedure for determining a lawyer's fee, for example, in representation of an executor or administrator, or when a class or a person js entitled to recover a reasonable attorneys fee as part of the measure of damages. All Invoived lawyers should comply with any prescribed procedures,LEGISLATIVE NOTE. -- Comment: LEGISLATIVE NOTE. --1. A lawyer In good conscience should not charge or collect more than a reasonable fee, although he may charge fess or no fee at all. The determination of the reasonableness of a fee, or of the range of reasonableness, can be a difficult question, and a standard of reasonableness is too vague and uncertain to be an appropriate standard ina disciplinary action. For this reason, paragraph (a) adopts, for disciplinary purposes only, a clearer standard: the lawyer Is subject to discipline for an Illegal fee or an unconscionable fee. Paragraph (a) defines an unconscionable fee In terms of the reasonableness of the fee but In a way to ellminate factual disputes as to the fees reasonableness. The Rules unconscionable standard, however, does not preclude use of the reasonableness standard of paragraph (b) in other settings. LEGISLATIVE NOTE. -- Basis or Rate of Fee LEGISLATIVE: NOTE. --2. When the lawyer has regularly represented a client, they ordinarily wil! have evolved an understanding concerning the basis or rate of the fee. If, however, the basis or rate of fee being charged to a regularly represented client differs from the understanding that has evolved, the lawyer should so advise the client. In a new clilent-lawyer relationship, an — understanding as to the fee should be promptly astabiished. It Is not necessary to recite all the factors that underlie the basis of the fee, but only those that are directly involved In its computation. It is sufficient, for example, to state that the basic rate Is an hourly charge or a fixed amount or an estimated amount, in order to identify the factors that may be taken Into account In finally fixing the fee. When developments occur during the representation that render an earlier estimate substantially inaccurate, a revised estimate should be provided to the client. A written statement concerning the fee reduces the possibility of misunderstanding, and when the lawyer has not regularly represented the client It Is - preferable for the basis or rate of the fee to be cammunicated to the client In writing. Furnishing the client with a simple memorandum or a copy of the lawyer's customary fee schedule {s sufficient if the basis or rate of the fee Is set forth. In the case of a contingent fee, a written agreement Is mandatory. LEGISLATIVE NOTE. -- Types of Feas LEGISLATIVE NOTE. --3. Historically fawyers have determined what fees to charge by a varlety of methods. Commonly employed are percentage fees and contingent fees (which-may vary In accordance with the amount at stake o