Shaw, Evan Lane (Van) v. Lemon, D. Brent
2014 Tex. App. LEXIS 3585
| Tex. App. | 2014Background
- Shaw and Lemon were former law partners who litigated fee-splitting disputes arising from their practice together (1990–2003).
- Lemon sued Shaw for breach of contract, breach of fiduciary duty, and theft under the Texas Theft Liability Act; Shaw counterclaimed for breach of contract and fiduciary duty.
- A jury found both breached the contract but awarded zero damages; trial court entered a take-nothing judgment and denied Shaw attorney’s fees under the Theft Act.
- Shaw sought fees under the Theft Act post-trial but had not pleaded fees under that statute in his operative pleadings (he pleaded fees for breach of contract and filed unpresented “Special Exceptions” the day before trial).
- At charge conference the trial court omitted the Theft Act claim from the charge (construed as implicitly granting the Special Exceptions); Shaw’s counsel noted for the record the theft claim was dismissed.
- Lemon cross-appealed numerous procedural rulings, including disqualification from examining witnesses under disciplinary rule 3.08, denial of mistrial/continuance, admission of certain exhibits, and refusal to submit jury questions on several claims.
Issues
| Issue | Plaintiff's Argument (Shaw) | Defendant's Argument (Lemon) | Held |
|---|---|---|---|
| Whether Shaw was entitled to attorney’s fees under the Theft Act without pleading them | Mandatory statute; pleading not required for mandatory fee-shifting | Pleading must specifically request fees under the Theft Act; no notice given | Court: Pleading must request fees under Theft Act; denial affirmed |
| Whether attorney’s-fees issue was tried by consent | Fees were tried by consent/post-trial submission | Lemon did not consent to fees under the Theft Act; he objected | Court: Not tried by consent; no fee award |
| Whether trial court abused discretion by disqualifying Lemon (rule 3.08) | Disqualification unnecessary; no showing of actual prejudice | Rule 3.08 applies because Lemon retained counsel and acted as advocate-witness | Court: Disqualification was an abuse of discretion but error was harmless (no reversible harm shown) |
| Whether trial court erred by refusing to submit Lemon’s fiduciary duty, theft, and conversion questions | Sufficient evidence to submit questions | Evidence not tied to identified legal elements; trial court within discretion | Court: No abuse of discretion; questions properly refused |
Key Cases Cited
- Cricket Communications, Inc. v. Trillium Indus., 235 S.W.3d 298 (Tex. App.—Dallas 2007) (pleading requirement for attorney’s fees under Theft Act; cannot award on unpleaded statutory basis)
- Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877 (Tex. App.—Dallas 2009) (pleadings must invoke court’s jurisdiction to award attorney’s fees; discussion of mandatory statute exception)
- In re Sanders, 153 S.W.3d 54 (Tex. 2004) (disqualification is severe; advocate-witness rule requires showing of necessity and actual prejudice)
- Baylor Univ. v. Sonnichsen, 221 S.W.3d 632 (Tex. 2007) (special exceptions require opportunity to amend before dismissal)
- Elbaor v. Smith, 845 S.W.2d 240 (Tex. 1992) (trial court must submit only claims raised by pleadings and evidence)
- Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (abuse-of-discretion standard for procedural rulings)