Nalle Plastics Family Limited Partnership v. Porter, Rogers, Dahlman & Gordon, P.C. and Patrick P. Rogers
406 S.W.3d 186
Tex. App.2013Background
- Nalle Plastics Family Limited Partnership sues Porter in Nueces County for unpaid legal fees; venue challenge to Travis County is denied.
- Nalle prosecuted Cypress dispute in Austin; Rogers drafted and filed a Memorandum recorded in Travis County public records, interpreting lease terms.
- Cypress sued in Travis County for declaratory relief and alleged interference; Nalle counterclaimed for negligence, fiduciary breach, and fraud.
- Nalle asserted counterclaims based on (a) filing the Memorandum, (b) alleged negligent entry to photograph lease infractions, and (c) other acts; Porter moved for summary judgment on counterclaims.
- Trial court granted summary judgment dismissing all counterclaims; later trial proceeded on Porter’s claims for fees; jury awarded damages and substantial attorney’s fees to Porter; post-trial, the appellate court partially reversed and remanded for appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Venue transfer was proper? | Nalle independently proved proper venue in Travis County. | Nueces County proper under the general venue statute; transfer not required. | No abuse; Nueces was proper; denial of transfer sustains. |
| Memorandum and failure-to-advise claims merit? | Rogers’s actions breached the standard of care by advising filing the Memorandum and by not advising against it. | Memorandum was justified; law unsettled; advice not negligent given paragraph 11 of the lease. | Summary judgment proper for Memorandum and failure-to-advise claims. |
| Photography and related contract/quiet enjoyment claims? | Rogers’s photography directive caused Cypress to claim breach of quiet enjoyment and contract. | Actions within lease rights; entry authorized by lease; no causation shown. | Summary judgment proper; no viable claims from photography conduct. |
| Attorney’s fees—appellate recovery? | Appellate fees should be awarded as reasonable and necessary. | Appellate fees not proven; some in-house vs. outside counsel duplication. | Appellate fees must be awarded; remand to determine conditional appellate fees; other fee rulings affirmed. |
Key Cases Cited
- Henry v. McMichael, 274 S.W.3d 185 (Tex. App.—Houston [1st Dist.] 2008) (venue proof standards and plaintiff’s choice of venue controls unless challenged by motion to transfer)
- Crown Cent. LLC v. Anderson, 239 S.W.3d 385 (Tex. App.—Beaumont 2007) (multiple-plaintiff venue considerations and interlocutory review)
- Hernandez v. Ebrom, 289 S.W.3d 316 (Tex. 2009) (interlocutory venue review may proceed on final appeal; plain-language may/place of review)
- Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195 (Tex. 2004) (materiality in contract performance and the Mustang Pipeline factors)