Opinion
NO. 01-16-00911-CV
11-16-2017
DAVID LANCASTER, Appellant v. DIANE ST. YVES AND THE LAW OFFICE OF DIANE ST. YVES, P.L.L.C., Appellees
On Appeal from the 61st District Court Harris County, Texas
Trial Court Case No. 2016-07653-A
MEMORANDUM OPINION
Appellant, David Lancaster, challenges the trial court's summary judgment in favor of appellees, Diane St. Yves and The Law Firm of Diane St. Yves (collectively, "St. Yves"), in Lancaster's suit against St. Yves for fraud, negligence, breach of contract, breach of fiduciary duty, and violations of the Texas Deceptive Trade Practices Act ("DTPA"). In two issues, Lancaster contends that the trial court erred in granting summary judgment in favor of St. Yves on the ground that Lancaster's claims are barred by res judicata.
See TEX. BUS. & COM. CODE ANN. § 17.46 (West Supp. 2016).
We affirm.
Background
A. The Prior Suit
Lancaster alleges that on September 9, 2009, the 247th District Court of Harris County issued a default protective order (the "2009 protective order") against him, prohibiting him from contacting or committing violence against his then wife, Barbara. In 2011, Lancaster retained St. Yves to represent him in a divorce from Barbara and in criminal contempt proceedings, pertaining to his violations of the 2009 protective order.
Cause No. 2009-53749 (247th Dist. Ct., Harris Cty., Tex., Sept. 9, 2009, order).
In July 2012, Lancaster pleaded guilty to two separate offenses of violating the 2009 protective order.
In 2012, the 247th District Court issued an agreed final decree of divorce, dissolving Lancaster's marriage to Barbara. In addition, the 280th District Court of Harris County granted Barbara a second protective order against Lancaster (the "2012 protective order").
See TEX. FAM. CODE ANN. § 85.002 (West 2014); see also Lancaster v. Lancaster, No. 01-12-00909-CV, 2013 WL 3243387, at *2 (Tex. App.—Houston [1st Dist] June 25, 2013, no pet.) (mem.op.) (affirming August 2012 protective order).
From the record, Lancaster, on January 13, 2013, filed a petition for a bill of review, challenging the 2009 protective order.
On April 3, 2014, St. Yves moved to withdraw as Lancaster's attorney and filed a petition in intervention in the bill-of-review proceeding, seeking a judgment against Lancaster for unpaid attorney's fees. After moving unsuccessfully to strike the intervention, Lancaster filed an answer. He did not file any counterclaims. The trial court subsequently granted St. Yves's motion to withdraw, but did not rule on St. Yves's petition in intervention for attorney's fees.
On July 23, 2014, the trial court denied Lancaster's petition for a bill of review (the "bill-of-review order"), and Lancaster appealed the bill-of-review order to this Court. On December 16, 2014, this Court sent Lancaster a notice of intent to dismiss for lack of jurisdiction Lancaster's appeal of the trial court's bill-of-review order because the record showed that St. Yves's claim in her petition in intervention remained outstanding. Lancaster responded that the trial court's bill-of-review order had in fact become final because the trial court had, the day before, signed an order on St. Yves's intervention, disposing of her claims.
See Lancaster v. Lancaster, No. 01-14-00845-CV, 2015 WL 9480098 (Tex. App.—Houston [1st Dist.] Dec. 29, 2015, no pet.) (mem. op.).
The record showed that on December 15, 2014, the trial court signed an "Order on Intervenor's Petition for Attorney's Fees" (the "order on intervention"), in which it found that St. Yves's fees for representing Lancaster in the prior proceedings were reasonable and necessary, and granted St. Yves a judgment against Lancaster in the amount of $27,258.56.
In Lancaster's appeal of the trial court's bill-of-review order, the Court held that the record did not affirmatively show strict compliance with the rules of civil procedure in serving him with Barbara's application underlying the trial court's 2009 protective order. The Court reversed the trial court's bill-of-review order and remanded the case to the trial court for further proceedings in accordance with its opinion. Although Lancaster had also argued that after the trial court issued its 2009 protective order, he was globally "subjected to additional due process violations" by various courts and in various orders, including the 2012 protective order and the order on the intervention, he did not specifically challenge on the merits the trial court's order on the intervention, awarding St. Yves a judgment for unpaid attorney's fees. Thus, this Court expressly limited its review to the order Lancaster appealed from, that is, the trial court's bill-of-review order.
See id. at *4.
See id. at *5.
See id.
See id.
B. The Instant Suit
In 2016, Lancaster filed the instant new suit, in the 61st District Court of Harris County, against St. Yves for fraud, negligence, breach of contract, breach of fiduciary duty, and violations of the DTPA. Lancaster alleged that St. Yves had committed malpractice throughout the course of representing him in the prior proceedings. He further alleged that St. Yves, by filing a petition in intervention seeking payment of her attorney's fees, had "knowingly [taken] an inconsistent position against her own client's interests."
Specifically, in his fraud claim, Lancaster alleged that St. Yves had submitted invoices to him on which she had falsified her hours worked. He further alleged that St. Yves made false and misleading representations that the actions for which she billed were necessary. In his negligence claim, Lancaster alleged that St. Yves breached her duty to exercise reasonable care in her legal representation of him by failing to adequately review records, research all issues and advise him, and follow his instructions. In his claim for breach of contract, Lancaster alleged that St. Yves breached her fee agreement with him by charging excessive and unconscionable legal fees and failing to "fulfill her promises to provide adequate legal services." In his claim for breach of fiduciary duty, Lancaster alleged that St. Yves breached her duty of candor, loyalty, and integrity, which she owed him by virtue of their attorney-client relationship, by charging him excessive, unconscionable, and unreasonable attorney's fees. Finally, Lancaster alleged that St. Yves violated the DTPA by failing to disclose "information" about his rights; misrepresenting that her services were of a particular standard or quality, or had certain characteristics or benefits; misrepresenting that she was competent and ethical; and "testifying against" his interests. In each of his claims, Lancaster alleged that St. Yves's misrepresentations and breaches of duty proximately caused him to "suffer[] damages." He sought actual and exemplary damages in excess of $1,000,000.00 and fee forfeiture.
St. Yves answered, generally denying the allegations and asserting various affirmative defenses, including that Lancaster's claims are barred by res judicata. St. Yves also filed a motion for summary judgment, arguing that she is entitled to judgment as a matter of law on Lancaster's claims because the evidence conclusively establishes her affirmative defense of res judicata. Specifically, the evidence shows that there is a prior final judgment on the merits, i.e., the trial court's December 15, 2014 order awarding her $27,258.56 in unpaid attorney's fees; that she and Lancaster were parties to the intervention in the prior lawsuit in the 247th District Court; and that Lancaster's instant suit is based on claims that he could have, and should have, raised as counterclaims in the prior suit.
A bill of review is an independent proceeding. See Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex. 1979); Boateng v. Trailblazer Health Ents., L.L.C., 171 S.W.3d 481, 493-94 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
To her summary-judgment motion, St. Yves attached her motion to withdraw and petition in intervention; Lancaster's answer and motion to strike the intervention; and the trial court's bill-of-review and order on the intervention.
In his summary-judgment response, Lancaster argued that St. Yves did not conclusively establish her right to judgment as a matter of law on her affirmative defense of res judicata because the trial court's order on the intervention is not a final judgment. Specifically, he asserted that the order on the intervention is void because the trial court entered it after issuing its bill-of-review order and after its plenary power had expired. He further asserted that this Court's reversal of the trial court's bill-of-review order in his prior appeal also constituted a reversal of the trial court's order on the intervention. The record reflects that Lancaster did not attach evidence to his response.
The trial court granted a summary judgment in favor of St. Yves, ordering that Lancaster take nothing on his claims. The trial court denied Lancaster's motion for a new trial. The trial court further severed Lancaster's claims against St. Yves from those against his other attorney, Yexenia Gilmet and The Gilmet Law Firm, making final its summary judgment.
Res Judicata
In his first and second issues, Lancaster argues that the trial court erred in granting summary judgment in favor of St. Yves on her affirmative defense of res judicata because there is not a prior final judgment on the merits of their dispute. Specifically, he asserts that the trial court's order on the intervention is void because the trial court entered it on December 15, 2014, after entering its July 23, 2014 bill-of-review order and long after its plenary power had expired. He further asserts that this Court's reversal of the trial court's bill-of-review order in the prior appeal also constituted a reversal of the trial court's order on the intervention.
See Lancaster, 2015 WL 9480098, at *5.
St. Yves argues that the trial court's order on the intervention is not void because she filed her petition in intervention in the bill-of-review proceeding prior to the trial court issuing its bill-of-review order, and her claim was still pending when the trial court rendered the bill-of-review order. Thus, the trial court's bill-of-review order was interlocutory, and the trial court still had plenary power when it signed its order on the intervention. Further, this Court did not reverse the trial court's order on the intervention because Lancaster did not specifically challenge the award of attorney's fees in his prior appeal. St. Yves asserts that the quality and necessity of her work was litigated in the prior suit in the 247th District Court and that Lancaster, by filing the instant new suit in a new trial court, alleging legal malpractice and seeking fee forfeiture, seeks to re-litigate the fees issue.
We review a trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. Id. To prevail on a traditional summary-judgment motion, the movant must establish that no genuine issue of material fact exists and the trial court should grant judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A defendant moving for traditional summary judgment on an affirmative defense has the burden to conclusively prove all the elements of the affirmative defense as a matter of law. See Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Premium Plastics Supply, Inc. v. Howell, —S.W.3d—, No. 01-16-00481-CV, 2017 WL 4288074, at *2 (Tex. App.—Houston [1st Dist.] Sept. 28, 2017, no pet. h.). Once the movant meets her burden, the burden shifts to the non-movant to raise a genuine issue of material fact precluding summary judgment. See Siegler, 899 S.W.2d at 197. The evidence raises a genuine issue of fact if reasonable and fair-minded factfinders could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755-56 (Tex. 2007).
Res judicata is an affirmative defense that bars relitigation of claims that have been finally adjudicated or that arise out of the same subject matter and that could have been litigated in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d 644, 652 (Tex. 1996); see TEX. R. CIV. P. 94 (identifying res judicata as an affirmative defense). A party relying on res judicata must prove (1) a prior final determination on the merits by a court of competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second action based on the same claims as were or could have been raised in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010).
We apply a "transactional approach" to res judicata, which requires that "claims arising out of the same subject matter . . . be litigated in a single lawsuit." Hallco Tex., Inc. v. McMullen Cty., 221 S.W.3d 50, 58 (Tex. 2006); see also Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984) ("The judgment in the first suit precludes a second action by the parties and their privies on matters actually litigated and on causes of action or defenses arising out of the same subject matter that might have been litigated in the first suit."). The doctrine of res judicata is "substantially similar" to the compulsory counterclaim rule, which requires a defendant to bring as a counterclaim "any claim that 'arises out of the transaction or occurrence that is the subject matter of the opposing party's claim.'" Barr v. Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 630 (Tex. 1992) (quoting TEX. R. CIV. P. 97(a)). The doctrine of res judicata "serves vital public interests" by promoting the finality of judgments and prevents needless, repetitive litigation. Hallco Texas, Inc., 221 S.W.3d at 58.
Here, Lancaster does not challenge the summary judgment with respect to the second and third elements of St. Yves's res judicata defense, i.e., that the identity of the parties in the prior and instant suit are the same and that the instant suit, the second action, is based on claims that could have been raised in the first action. See Travelers Ins. Co., 315 S .W.3d at 862. Rather, Lancaster solely challenges the first element, i.e., the existence of a prior final determination on the merits by a court of competent jurisdiction. See id.
Lancaster argues that there is not a prior final determination on the merits by a court of competent jurisdiction because the order on the intervention is void. He asserts that the trial court's July 23, 2014 bill-of-review order was a final judgment, the trial court's plenary power expired 30 days after it was signed, on August 22, 2014, and thus the trial court's December 15, 2014 order on the intervention, awarding St. Yves a judgment against him on his unpaid attorney's fees, was signed outside of the trial court's plenary power.
Although, as St. Yves notes, Lancaster previously raised this complaint in a petition for a writ of mandamus in this Court, the Court, as stated in its order, denied Lancaster's petition for writ of mandamus, in which he challenged the trial court's December 15, 2014 order as void, based on procedural deficiencies in Lancaster's petition. See In re Lancaster, Nos. 01-14-00985-CV, 01-14-00986-CV, 2015 WL 555057, at *1 (Tex. App.—Houston [1st Dist.] Feb. 10, 2015, orig. proceeding) (mem. op.).
Generally, a judgment is final if it disposes of all pending parties and claims in the record. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 204 (Tex. 2001). In cases in which there is not a conventional trial on the merits, a judgment is final for purposes of appeal only if it either actually disposes of all claims and parties before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment. Id. at 192-93. If other claims remain in the case, "an order determining the last claim is final." Id. at 200.
After a trial court signs a final judgment, absent a timely post-judgment motion extending the trial court's plenary power, the trial court retains jurisdiction over a case for thirty days. TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000); Penny v. Shell Oil Prods. Co., 363 S.W.3d 694, 697 (Tex. App.—Houston [1st Dist.] 2011, no pet.). While the trial court retains its plenary power over a case, it has the power to correct, modify, vacate, or reform its judgment. TEX. R. CIV. P. 329b(d), (e). Any modified, corrected, or reformed judgment signed after the trial court's plenary power has expired is void. TEX. R. CIV. P. 329b(f); Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); Penny, 363 S.W.3d at 697.
St. Yves's summary-judgment evidence shows that on April 3, 2014, while Lancaster's petition for bill of review was pending in the trial court, St. Yves moved to withdraw as his attorney and filed a petition in intervention, seeking a judgment against Lancaster on her unpaid invoices as damages.
We note that "[a] plea in intervention in the principal suit is an appropriate vehicle by which a discharged attorney may recover fees for services rendered." Maldonado v. Rosario, No. 01-12-01071-CV, 2013 WL 1316385, at *2 (Tex. App.—Houston [1st Dist.] Apr. 2, 2013, no pet.) (mem. op.) (internal quotation omitted)). Generally, an intervention is timely if brought anytime before the trial court renders a judgment. Jefferson Sav. & Loan Ass'n v. Adams, 802 S.W.2d 811, 813 (Tex. App.—San Antonio 1990, writ denied). On the filing of the petition in intervention, unless stricken out by the trial court, the intervenor becomes a party to the suit for all purposes. See In re E.C., 431 S.W.3d 812, 815 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding); In the Interest of D.D.M., 116 S.W.3d 224, 231 (Tex. App.—Tyler 2003, no pet.).
On July 23, 2014, the trial court signed an order denying the bill of review, but not addressing St. Yves's intervening claim for attorney's fees. Because there remained a claim outstanding, the trial court's July 23, 2014 bill-of-review order was interlocutory. See Guajardo v. Conwell, 46 S.W.3d 862, 864 (Tex. 2001) (holding that summary judgment was interlocutory because intervenor's claim for attorney's fees remained pending); First Nat'l Bank v. Martinez De Villagomez, 54 S.W.3d 345, 348 (Tex. App.—Corpus Christi 2001, pet. denied) (holding that default judgment was interlocutory because it did not finally adjudicate third-party defendant's claims); see also Flores v. Sandoval, No. 01-02-01197-CV, 2004 WL 966328, at *2 (Tex. App.—Houston [1st Dist.] May 6, 2004, no pet.) (mem. op.) (holding that agreed judgment was interlocutory because it did not include intervening party's claim for attorney's fees). It is well-established that when a judgment rendered in a bill of review proceeding does not dispose of the entire controversy, it is not a final judgment from which an appeal will lie. Kessler v. Kessler, 693 S.W.2d 522, 525 (Tex. App.—Corpus Christi 1985, writ ref'd n.r.e.). Because the bill-of-review order was interlocutory, the trial court's plenary power did not begin to expire. See Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995); see also TEX. R. CIV. P. 329b(d); Harris Cty. Appraisal Dist. v. Wittig, 881 S.W.2d 193, 194 (Tex. App.—Houston [1st Dist.] 1994, orig. proceeding) (signing of final order begins countdown of loss of trial court's plenary power).
The evidence further shows that on December 15, 2014, the trial court signed the order on the intervention, disposing of St. Yves claim against Lancaster. It is undisputed that, at that point, there remained no other outstanding claims or parties. Thus, the trial court's order became final. See Lehmann, 39 S.W.3d at 200 (holding that when other claims remain in the case, "an order determining the last claim is final"). Because the trial court signed its order on the intervention within its plenary jurisdiction, the order is not void.
Moreover, after this Court notified Lancaster, in his prior appeal of the trial court's bill-of-review order, of its intent to dismiss the appeal for lack of jurisdiction because the record showed that St. Yves's petition in intervention for attorney's fees remained outstanding, Lancaster relied on the trial court's order on the intervention in asserting that the trial court's bill-of-review order was final and that the Court therefore had jurisdiction over his appeal.
Next, Lancaster argues that there is not a prior final judgment on the merits of the parties' dispute because, in his prior appeal, this Court reversed the trial court's bill-of-review order, which he asserts also constituted a reversal of the trial court's order on the intervention.
See Lancaster, 2015 WL 9480098, at *5.
Generally, when an appellate court reverses and remands a case for further proceedings, and the mandate is not limited by special instructions, the effect is to remand the case to the lower court on all issues of fact, and the case is reopened in its entirety. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); Simulis, L.L.C. v. Gen. Elec. Capital Corp., 392 S.W.3d 729, 734 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). If an appellate court remands a case with specific instructions, the trial court is limited to complying with the instructions and cannot re-litigate issues controverted at the former trial. Denton Cty. v. Tarrant Cty., 139 S.W.3d 22, 23 (Tex. App.—Fort Worth 2004, pet. denied). "Thus, in a subsequent appeal, instructions given to a trial court in the former appeal will be adhered to and enforced." Hudson, 711 S.W.2d at 630. When interpreting our mandate, the trial court "should look not only to the mandate itself, but also to the opinion of the [appellate] court." Simulis, L.L.C., 392 S.W.3d at 734; Freightliner Corp. v. Motor Vehicle Bd. of Tex. Dep't of Transp., 255 S.W.3d 356, 363 (Tex. App.—Austin 2008, pet. denied) ("The opinion of the appellate court is instructive in interpreting any limitations placed on the scope of the remand.").
Here, in Lancaster's prior appeal of the trial court's bill-of-review order, this Court held: "We reverse the trial court's order denying [Lancaster's] petition for a bill of review and remand the case to the trial court for further proceedings consistent with this opinion." In the opinion, the Court held that the trial court erred in denying Lancaster's bill of review because the record did not affirmatively show strict compliance with the rules of civil procedure in serving him with Barbara's application underlying the trial court's 2009 protective order. Although Lancaster had also argued that, after the trial court issued its 2009 protective order, he was globally "subjected to additional due process violations" by various courts and in various orders, including the 2012 protective order and the order on the intervention, he did not specifically challenge on the merits the trial court's order on the intervention, awarding St. Yves a judgment for unpaid attorney's fees. Thus, this Court expressly limited its review to the order Lancaster appealed from, that is, the trial court's bill-of-review order. This Court did not review, and thus did not reverse and remand, the order on the intervention for attorney's fees. An appellate court may not reverse a case on unassigned error. Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998).
See id.
See id. at *4.
See id. at *5.
Because St. Yves conclusively established that that there is a prior final determination on the merits by a court of competent jurisdiction and Lancaster does not challenge on appeal that the identity of the parties in the prior and instant suit are the same or that the instant action is based on claims that could have been raised in the prior action, we conclude that St. Yves has conclusively established the elements of her res judicata defense. See Joachim, 315 S.W.3d at 862. Accordingly, we hold that the trial court did not err in granting St. Yves summary judgment on Lancaster's claims.
We overrule Lancaster's first and second issues.
Although Lancaster also asserts, in the "Prayer" of his appellate brief, that the trial court erred in granting St. Yves's motion and severing the summary judgment from Lancaster's claims against his other attorney, Lancaster did not assert this as an issue in his brief and does not provide any argument or authorities in support in the body of his brief. As such, his implied issue is waived. See TEX. R. APP. P. 38.1(i) (providing that "brief must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record"); Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118, 128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (holding that Rule 38 requires appellant to provide sufficient discussion of facts and authorities relied upon to maintain point at issue).
Conclusion
We affirm the trial court's judgment.
Sherry Radack
Chief Justice Panel consists of Chief Justice Radack and Justices Keyes and Caughey.