Opinion
No. 05-10-00045-CV
Opinion Filed August 3, 2011.
On Appeal from the County Court at Law, Rockwall County, Texas, Trial Court Cause No. 1-09-0402.
Before Justices RICHTER, LANG, and MURPHY.
MEMORANDUM OPINION
Caprice Wilkerson Swiercinsky appeals the trial court's take-nothing judgment rendered on her claim against Michael Swiercinsky (Mike) for breach of a Rule 11 agreement to pay attorney's fees. See Tex. R. Civ. P. 11. Caprice brings ten issues on appeal, asserting, among other things, the evidence does not support certain of the trial court's findings and that she conclusively proved Mike's breach of the agreement. Because we conclude that other unchallenged grounds may support the trial court's judgment, we affirm.
BACKGROUND
Caprice was represented by the law firm of Easley Marquis, PLLC in her divorce from Mike. After Caprice discharged the firm and hired new counsel, Easley Marquis intervened in the divorce seeking to recover the attorney's fees Caprice owed for the firm's representation of her. After the trial court severed the intervention from the divorce proceedings, Caprice and Mike settled the divorce, and the intervention suit proceeded to a separate trial before the court. This appeal arises out of the severed action.
In its original petition in intervention, Easley Marquis sought recovery of its attorney's fees from Caprice pursuant to the firm's fee agreement with her. Easley Marquis then amended its petition and also sought payment of its fees from Mike, claiming he promised to pay $20,000 into the firm's trust account. The firm alleged Mike's promise to pay arose from a Rule 11 agreement made on October 15, 2008 at a hearing on various motions filed in the divorce. At that hearing, Easley Marquis complained of billing issues with Caprice and asked to have an amount of money put in its retainer account to "deal with [the firm's] cash flow." Mike agreed to the request. Specifically, Mike agreed to deposit a $20,000 retainer in the firm's trust account and to pay all legal bills "initialed and okayed" by Caprice within three days of receipt. He also agreed to pay the bills sent to him for Caprice's experts and doctors.
Caprice responded to Easley Marquis's petition, denying the claim asserted against her and asserting various counterclaims against the firm. She also alleged a cross-claim against Mike for breach of the Rule 11 agreement. Caprice asserted Mike "failed to make the initial deposit of $20,000 into the trust account of Easley Marquis" and claimed Mike was "liable for any fees and expenses" owed to that firm. She also claimed Mike's breach of the Rule 11 agreement, "caused [her] damages in whatever amount is recovered by Easley Marquis, PLLC."
In response to Caprice's cross-claim, Mike asserted the affirmative defenses of release, res judicata, waiver, and payment, contending he "paid fees to [Caprice's] attorneys exactly as she instructed him to do." He further alleged that Caprice "cannot make any claim against [him] for damages because she instructed [him] not to pay any attorney's fees to [Easley Marquis] after the October 15, 2008 hearing and thus, is the sole cause of her own damages, if any." Relying on certain provisions in the couple's divorce decree, Mike also alleged an indemnification claim against Caprice.
At trial, the evidence showed Caprice fired Easley Marquis the day after the Rule 11 agreement was made and hired a new attorney, Charles Schuerenberg, to represent her. Shortly thereafter, Schuerenberg sent a letter to Mike's counsel asking for payment of certain fees and expenses, including $25,000 for Schuerenberg's retainer, a $10,000 retainer for local counsel, and an $8,000 retainer for Caprice's expert. Mike testified he paid these fees as requested and that after the Rule 11 agreement was made, he never refused or failed to pay a legal expense that Caprice or her attorneys asked him to pay. He also testified that if Caprice had told him to pay Easley Marquis, he would have done so but that she never made that request; Mike believed he was acting as Caprice instructed. Mike's counsel, Todd White, testified that after October 15, Mike paid over $65,000 for Caprice's legal fees and expenses and that "those amounts were paid as directed by [Caprice] or her counsel."
Caprice confirmed that after she fired Easley Marquis, Mike paid all of her legal expenses. She testified she knew that as part of the Rule 11 agreement she had to approve any bill from Easley Marquis before Mike would be obligated to pay that firm and admitted that she did not approve any bill from Easley Marquis for payment after the October 15 hearing. Caprice explained she did not approve Easley Marquis's bills for payment because she thought the bills were unreasonable and would be adjusted.
The trial court granted Mike's motion for judgment on Easley Marquis's claim against him, and on its own, the trial court "knock[ed]" out Caprice's cross-claim against Mike. As to Caprice's cross-claim, the trial court explained Caprice's testimony showed that although she was unclear what fees were paid, she knew attorneys other than those with Easley Marquis were paid on her behalf. The trial court stated it could not "find a breach of that Rule 11 agreement" because Caprice's testimony established Mike paid over $20,000 in attorney's fees for Caprice.
On September 23, 2009, the trial court rendered judgment in favor of Easley Marquis against Caprice for $32,535.52 plus attorney's fees; otherwise, it was a take-nothing judgment on Caprice's cross-claim against Mike and on her counterclaims against Easley Marquis. The trial court's findings of fact and conclusions of law consisted of forty-eight factual findings and twenty-six legal conclusions related to Easley Marquis's claim against Caprice, as well as Caprice's cross-claim against Mike and counterclaims against the firm. As to Caprice's claim that Mike breached the Rule 11 agreement, the trial court found (1) the Rule 11 agreement stated that Mike would pay a $20,000 retainer on Caprice's behalf and any attorney bill approved by Caprice; (2) Caprice instructed Mike not to pay the $20,000 retainer to Easley Marquis; (3) Mike paid a retainer to Caprice's new attorneys per Caprice's instructions; (4) Caprice did not approve any Easley Marquis bill for payment after the Rule 11 agreement was made; and (5) Caprice never requested Mike to pay Easley Marquis after the Rule 11 agreement. The trial court concluded Mike performed his obligations to Caprice under the Rule 11 agreement and that he did not breach the Rule 11 agreement.
As to Easley Marquis's claim against Caprice, the trial court found the damages owed by Caprice were caused by her breach of the fee agreement with Easley Marquis. In that regard, the trial court found Caprice failed to perform her obligations under her fee agreement with Easley Marquis, she refused to pay the amounts properly due Easley Marquis under the fee agreement, and that Easley Marquis was damaged by Caprice's breach. The trial court concluded Caprice's failure to pay Easley Marquis constituted a breach of her contract with the firm and that the firm was entitled to judgment against Caprice for her breach of the fee agreement. Caprice appealed.
Caprice initially appealed the trial court's judgment in favor of both Easley Marquis and Mike. Less than two months after filing her notice of appeal, however, Caprice moved to dismiss her appeal as to Easley Marquis. A panel of this Court granted Caprice's motion and ordered the appeal as to Easley Marquis dismissed.
DISCUSSION
Caprice raises ten issues in her appeal as to Mike. Several of her issues include legal sufficiency challenges to certain of the trial court's findings (Issues Two through Seven). She also seeks rendition in her favor on the grounds she conclusively proved the elements of her cause of action (Issue Eight). When, as here, the record includes a complete reporter's record, we ordinarily may review the trial court's factual findings under the same standards we apply to address the sufficiency of the evidence to support a jury's verdict. See Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam); Rich v. Olah, 274 S.W.3d 878, 883 (Tex. App.-Dallas 2008, no pet.). We review the trial court's legal conclusions de novo and will uphold them if the judgment can be sustained on any legal theory supported by the evidence. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); see also Young v. Gumfory, 322 S.W.3d 731, 741 (Tex. App.-Dallas 2010, no pet.) ("We uphold conclusions of law if the judgment can be sustained on any legal theory supported by the evidence."); cf. Guar. Cnty. Mut. Ins. Co. v. Reyna, 709 S.W.2d 647, 648 (Tex. 1986) (per curiam) (explaining reviewing court must uphold correct lower court judgment on any legal theory properly before it, even if court gives incorrect reason for its judgment).
Specifically, Caprice claims there is no evidence to support the trial court's findings or implied findings that she (1) released Mike from payment of Easley Marquis's fees and expenses (Issue Two); (2) waived Mike's obligation to pay Easley Marquis for fees and expenses (Issue Three); or (3) instructed Mike not to pay the $20,000 retainer to Easley Marquis (Issue Four). She further claims there is no evidence to support the trial court's finding that Mike fulfilled his obligation to pay Easley Marquis for fees and expenses by making payment (Issue Six) or that the Rule 11 agreement required Mike to Pay only one $20,000 retainer for Caprice's legal fees (Issue Seven). Within her arguments related to these issues, Caprice also asserts the Rule 11 agreement cannot be orally or implicitly released or waived (Issue Five).
As to the remaining issues, Caprice asserts there are no factual findings or legal conclusions to support Mike's res judicata affirmative defense and that Mike's indemnification claim is moot (Issue One) and that the trial court misconstrued the Rule 11 agreement as a matter of law (Issue Nine). Alternatively, she contends the trial court's failure to find that Mike breached the Rule 11 agreement was against the great weight and preponderance of the evidence (Issue Ten).
As a general proposition, however, an appellant must attack all independent bases or grounds that fully support a complained-of ruling or judgment on appeal. Oliphant Fin. LLC v. Angiano, 295 S.W.3d 422, 423-24 (Tex. App.-Dallas 2009, no pet.) (citing Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681 (Tex. App.-Houston [1st Dist.] 2002, no pet.)). If an appellant fails to do so, we must affirm the ruling or judgment. See Britton, 95 S.W.3d at 681; see also Prater v. State Farm Lloyds, 217 S.W.3d 739, 740-41 (Tex. App.-Dallas 2007, no pet.) ("When a separate and independent ground that supports a ruling is not challenged on appeal, we must affirm the lower court's ruling."). This proposition is based on the understanding that if an independent ground fully supports the complained-of ruling or judgment, but the appellant assigns no error to that independent ground, we must accept the validity of that unchallenged independent ground. Britton, 95 S.W.3d at 681. As a result, any error in the grounds challenged on appeal is harmless because the unchallenged independent ground fully supports the complained-of ruling or judgment. Id.; cf. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) (per curiam) (except in cases of fundamental error, we "may not reverse the judgment of a trial court for a reason not raised in a point of error").
According to Caprice, the trial court should have rendered judgment in her favor because she proved Mike's breach of the Rule 11 agreement and her damages as a matter of law and no evidence supports the trial court's findings related to Mike's affirmative defenses. The trial court's findings of fact and conclusions of law, however, do not indicate that the trial court rendered judgment in favor of Mike solely because he did not breach the agreement or successfully proved his affirmative defenses. Rather, in its findings of fact and conclusions of law, the trial court found that the damages Caprice owed to Easley Marquis were caused by her breach of the fee agreement with the firm.
To succeed on her claim for breach of the Rule 11 agreement against Mike, Caprice was required to establish (1) a valid agreement between her and Mike; (2) her performance or tendered performance; (3) breach of the agreement by Mike; and (4) damages she sustained as a result of Mike's breach. See Allman v. Butcher, 314 S.W.3d 671, 674 (Tex. App.-Dallas 2010, no pet.); see also Mead v. Johnson Grp., Inc., 615 S.W.2d 685, 687 (Tex. 1981) (causation element requires plaintiff's damages to be natural, probable, and foreseeable consequence of defendant's conduct); David L. Smith Assocs., L.L.P. v. Stealth Detection, Inc., 327 S.W.3d 873, 880 (Tex. App.-Dallas 2010, no pet.) (Rule 11 agreement enforceable as a contract). Caprice alleged Mike's breach caused her damages in the amount she owes Easley Marquis. In response, Mike pleaded various affirmative defenses and also specifically denied the causation element of her claim, denying that any action of his, or failure to act, was the cause of any damage to Caprice, but rather, Caprice was the sole cause of her own damages.
The trial court found Mike paid the retainer as Caprice instructed and therefore performed his obligations under the Rule 11 agreement and "did not breach the Rule 11 [agreement] with Caprice." The trial court also found Caprice failed to perform her obligations under the contract with Easley Marquis, refused to pay the amounts properly due Easley Marquis under the contract, and that Easley Marquis was damaged by Caprice's breach. Based on those findings, the trial court concluded Easley Marquis was entitled to a judgment of $32,535 against Caprice for her breach of contract. The trial court's findings which refer to and relate to her breach of the fee agreement and the conclusion that the damages she owed were caused by her breach of that agreement could justify the trial court's rendition of judgment in favor of Mike because they show Caprice did not prove that a breach by Mike, if any, caused her damages. Caprice nevertheless has not assigned error to any of the trial court's findings and conclusions in this regard. Indeed, she makes no affirmative, substantive argument directed toward the causation element of her claim nor does she address Mike's contention that she was the sole cause of her own damages. Caprice's argument regarding the elements of her cause of action focus on her contention that she proved Mike's breach and her damages as a matter of law. Because an unchallenged, independent ground fully supports the trial court's rendition of judgment in favor of Mike and against Caprice on her claim for breach of the Rule 11 agreement, any error in the grounds Caprice actually challenged on appeal is harmless. See Britton, 95 S.W.3d at 681. We must affirm the trial court's judgment. Id.; Prater, 217 S.W.3d at 740-41.
Accordingly, we overrule Caprice's issues and affirm the trial court's take-nothing judgment in favor of Mike.