John A. Broderick, Inc. v. Kaye Bassman International Corp.
333 S.W.3d 895
| Tex. App. | 2011Background
- KBIC challenged a default judgment entered against it in favor of Worldbridge on a bill of review; Worldbridge sought attorney's fees under §38.001 and based them on a purported Rule 11 settlement; a March 2009 hearing addressed attorney's fees after an associate judge previously ruled on summary judgment; the trial court ruled the April 29, 2008 email exchange created an enforceable Rule 11 high/low agreement and awarded only $6,239.77 for pre-June 30, 2008 fees; Worldbridge sought the larger pre-June 30 fee and post-June 30 fees; KBIC argued service papers were misplaced and that Fidelity governs, not Alexander, for bill of review standards; the appellate court reversed in part, rendered on pre-June 30 fees, and remanded for post-June 30 fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the email exchange created a valid Rule 11 high/low agreement | KBIC: email constitutes enforceable Rule 11 | Worldbridge: no enforceable Rule 11; lacks essential terms | Not an enforceable Rule 11 agreement |
| Whether pre-June 30, 2008 attorney's fees of $36,538 are reasonable | KBIC: fees not properly proven | Worldbridge: pre-June 30 fees established by affidavits | $36,538 reasonable; Worldbridge entitled to this amount pre-June 30 |
| What standard governs bill of review when service papers are misplaced | KBIC: Fidelity controls post-misplacement | Worldbridge: Alexander remains controlling | Alexander standard applies; Fidelity not controlling in this context |
| Whether post-June 30, 2008 attorney's fees should be considered and how they are calculated | KBIC: trial court erred by excluding post-June 30 fees | Worldbridge: proper post-June 30 evidence should be admitted | Remand for post-June 30 fees; not decided here |
Key Cases Cited
- Fidelity & Guaranty Ins. Co. v. Drewery Construction Co., Inc., 186 S.W.3d 571 (Tex. 2006) (default-judgment relief where service papers misplaced; focus on why defendant did not appear; Craddock elements if not due to service papers)
- Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (Tex. 1950) (three elements for bill of review: meritorious defense, prevented by fraud/accident, without fault)
- Craddock v. Sunshine Bus Lines, Inc., 133 Tex. 388, 133 S.W.2d 124 (Tex. 1939) (default judgment set aside when failure to answer due to mistake/accident unless fault)
- Padilla v. LaFrance, 907 S.W.2d 454 (Tex. 1995) (rule 11 requires a writing containing all essential terms of settlement)
- Employers Reinsurance Corp. v. Gordon, 209 S.W.3d 913 (Tex. App.-Texarkana 2006) (definition of high/low settlement)
- Baylor Coll. of Med. v. Camberg, 247 S.W.3d 342 (Tex. App.-Houston [14th Dist.] 2008) (high/low rule 11 context)