Carl "Stacey" Neese, Individually and A/N/F of Logen Neese, Cameron Neese v. Ted B. Lyon, Marquette Wolf
2015 Tex. App. LEXIS 8102
| Tex. App. | 2015Background
- Appellants sought barratry relief and related remedies after a 2010 pipeline explosion injured Neese and Hooper and killed James Neese.
- Lyon & Wolf law firm and Heidelberg allegedly engaged in deceptive solicitation to obtain clients for contingency-fee arrangements.
- Contingent-fee agreements were 40% and later the Clients learned Heidelberg was paid for soliciting them.
- Trial court granted a traditional take-nothing summary judgment; appellate review concerns barratry, fiduciary duty, fraud, rescission, and related remedies.
- Statutory framework: original § 82.065(b) (voidable contracts) and 2011 amendments § 82.0651 with broader remedies, plus DTPA, under Texas law.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| viability of barratry claim under original §82.065(b) | Neese contends §82.065(b) allowed voiding and restitution. | Lyon/Wolf contend no private action under original §82.065(b) and limits apply. | Original §82.065(b) authorizes rescission/restitution; not barred. |
| availability of rescission and restitution under §82.065(b) | Clients may rescind and recover fees with counter-restitution. | Full performance bars rescission under Arizola-like logic. | Rescission/restitution viable; full performance does not bar if counter-restitution feasible. |
| application of §82.0651 to post-2011 conduct | §82.0651 creates remedies for post-2011 barratry acts. | §82.0651 does not apply to pre-2011 conduct; records insufficient. | §82.0651 does not apply to pre-2011 conduct; viable basis only for 2011-2013 acts. |
| ratification as a defense to barratry claims | No full knowledge of barratry; ratification not proven. | Clients knew facts constituting barratry and ratified via settlement. | Ratification not proven; does not defeat barratry claims. |
| DTPA damages and other remedies | DTPA claims include mental anguish; statutory cap and damages issue unresolved. | No damages or cap applicability resolved; summary judgment appropriate. | DTPA damages issues reversible; certain damages claims survive. |
Key Cases Cited
- Cruz v. Andrews Restoration, Inc., 364 S.W.3d 817 (Tex. 2012) (restoration/restitution under rescission; counter-restitution framing)
- Morton v. Nguyen, 412 S.W.3d 506 (Tex. 2013) (rescission/restatement restitution principles in property code context)
- Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) (fee forfeiture as a potential remedy for fiduciary breach)
- In re Estate of Arizola, 401 S.W.3d 664 (Tex. App.—San Antonio 2013) (contrasted with rescission timing after full performance)
- Quintero v. Jim Walter Homes, Inc., 709 S.W.2d 225 (Tex. App.—Corpus Christi 1985) (aggregate settlement validity; voidable vs void context)