*1 GHIDONI, Appellant, E. Donald INC., Country OAK, Hill
STONE Water- Co., Country,
works, Ltd., Hill S.A. Ghidoni-Meehan,
Nancy Appellees. J.
No. 04-94-00837-CV. Texas, Appeals
Court Antonio.
San 28, 1998.
Jan.
Rehearing Overruled March
575
tate, Joy Campbell Clare and Lori Jane Campbell, (collectively as lessors referred to Ghidoni, “Campbells”), herein as the as 11, 1983, February Camp- lessee. On bells entered into a second lease (the Lease”). “Campbell Campbell Crofts, Callaway, Callaway E. Sharon & appears property; Lease to be for the same Jefferson, P.C., Antonio, Appellant. San however, Lease states that the Ross, Antonio, Ron D. San Kathleen W. portions lease is for “Lots 183 and those Foster, Carlton, P.C., Dallas, 185B, Godwin & Sea- by” 184B and covered Wilder, gal Wheatley, Bradley event, V. S. Jenkens dispute regarding Lease. Groce, *4 Hebdon, & Gilchrist Locke & San right of first refusal in a resulted Antonio, Appellees. against Campbells suit filed Ghidoni and Stone Oak. This suit was settled on HARDBERGER, C.J., Before and 17, 1984, September with the execution of a RICKHOFF, LÓPEZ, STONE, GREEN,1 Compromise Agreement by Settlement Ghi- DUNCAN, ANGELINI and ANTONIO G. (the doni, Campbells Stone Oak and the CANTU,2 JJ. “CSA”). CSA, Under terms of the Stone Oak Opinion Appellees’ On Motion Property to continued lease the from the Rehearing For En Banc however, Campbells; Stone Oak subleased RICKHOFF, Justice. Property excep- all the Ghidoni tion of three en banc filed rehearing The motion for water well sites and certain addition, Oak, Inc., In appellees assigned Hill easements. Stone Oak Country Stone Wa- Co., S.A., option purchase Property Hill its under the Country terworks and Ltd. on Campbell Lease to In the granted. opinion March 1997 is Ghidoni. event Our and judgment option, pro- Ghidoni exercised the February 1997 are with- CSA drawn, opinion vided that he would become the Lessor un- judgment and this and are Lease, der the terms of the and substituted. property leased to Oak would Stone History limited to three water well sites and ease- Factual and Procedural required ments. The also CSA Stone Oak to (“Ghidoni”), Appellant, Donald E. Ghidoni arrange company operating for the the water appeals judgment from a in a entered suit (which wells at the time of the CSA was Hill dispute involving rights por- over the to a Works, (“HCWW’)) Country Water Inc. (lots 183, 184B, property tion of real provide 2,500,000 Ghidoni with gallons of wa- 185B) located at near 107 Bitters Road year Finally, ter each at no charge. the CSA Antonio, Highway and U.S. 281 San Bexar provided place that Stone Oak could no more (the County, “Property”). dispute Texas The Property than three water wells on the giving litigation underlying rise to the this required comply that the water wells with all appeal dispute was second between statutes, regulations Texas rules and and not parties regarding Property. generate noise in excess of 50 decibels mea- dispute The crux of the first was Ghidoni’s perimeter. sured at the well site right purchase Proper- first refusal 17, 1986, ty. Our record does not contain the docu- On December Ghidoni exercised evidencing right, option purchase Property. mentation but from his On record, 15, 1991, wife, February other in our documentation we dis- Ghidoni and (“Meehan”), Nancy right grant- cern that the of first refusal were was J. Ghidoni-Meehan (the Lease”) provided ed in a lease “Ghidoni dated divorced. divorce decree 26, 1982, August they between the Tomerlin Es- would be tenants common Assigned 1. Justice Paul W. Green recuses and does 2. to this case the Chief Justice of himself participate opinion. Supreme in this en banc Court of Texas. 9,1992 addition, placed had decree that the June letter Property. the divorce the lease notice of its under separately provided assignments that “all Oak on default evenly days in which gave are to be be- Stone Oak fourteen water leases divided which further parties. Such leases are to cure the default. The notice tween the water manag- level tests were Ghidoni named states that additional noise with Stone Oak.” was 17, 1992, it was Property, pro- August on er was to conducted Meehan operating that the right with a first refusal on wells were vide Ghidoni determined Therefore, 19, 1991, range Mee- of 88-85 Property. February On decibels. four- within Property since the default not cured conveyed han her interest from June Ghidoni by special warranty days teen deed. September lease terminating the effective 9, 1992, notified Stone On March writing that the from the well Oak in noise 16,1992, attor- September noise level. agreed motor was excess On Stone Oak’s Thereafter, attorney referencing who ney responded Ghidoni hired Ghidoni’sletter 9,1992 notifying sent a second letter June states conversation. The letter an earlier pump of the noise violation. The letter Stone Oak have the that Stone Oak was unable to July states: given in the time frame in its reworked scheduling prob- letter because covenant in the settlement [noise] This *5 high in the months incorporated the use of water agreement was into the lease lems and making main- my opinion July, August September in of this cove- of violation impeding pump- the grounds is for of the tenance difficult without nant termination lease_ My the of HCWW. currently ing client contem- of water for customers pump mo- plating right he will his letter further states that the whether exercise The 18, upon by September to terminate lease based tor would be reworked this in tests would be breach of covenant and will be 1992 after which noise level steps you shortly regarding his de- additional contact with taken to determine whether However, right necessary to level. asserting cision. he reduce the noise were you you request on in that Ghi- place to notice that are The letter concludes with a in terminating within from the lease breach covenant contained doni forbear acceptable hereby intending lease and is not reach an resolution. order to rights waive his the lease terminate 12,1992, sent Stone On November Ghidoni upon this based breach. reiterating the lease had Oak a letter that 10, 1992, 18, July responded September On Stone Oak been terminated effective 1992, stating invoicing equipment second letter that it was in for Ghidoni’s Stone Oak process allegations charges, demanding payment for investigating storage 19, respond upon completion September 1992. and would water withdrawn since investigation. replied The letter states that dated November further Stone Oak letter 1992, 19, “our landscaping had been in an effort wherein Stone Oak states: undertaken In been and pump position muffle the sound of motor. this entire matter has Oak, addition, arrangements letter Inc. is not states that continues to be Stone your a result pump made to motor under the Lease and as had been have default attempts esti- terminate same are of reworked to reduce noise level and completed standpoint.” effect from our mated that the work be force or would days Finally, to two letter further states that Stone within 10 weeks. Oak’s of a for construction purposes of this had contracted “[f]or letter asserts completed letter, building the ‘contract’ means that certain Com- around well site completed Agreement Sep- days. building This promise dated Settlement within 17, Campbells, of 1992. 1984 between in December [the tember Ghidoni].” Stone Oak and 12, 1992, employees December On HCWW 9, 1992, attorney installed September that a new lock had been On discovered prevent- Property, thereby to the gate written of termination on the sent Stone Oak notice The access to wells. Campbell ing Lease. The notice states their the water underlying appeal lawsuit January stating was then filed specifically as to day, December 1992. On the same a whether Mr. grant Ghidoni will to HCSA a temporary restraining order was issued sanitary control easement and under what the trial court enjoining Ghidoni from taking 25, 1994, January conditions.” On any action to prevent restrict or Stone Oak’s responded to by offering HCSA’s demand access to Property or the pending wells grant $5,000,000. the easement for the sum of further order of the court. On March January On HCSA sent Ghidoni a original Ghidoni filed his answer and rejecting letter his offer as unreasonable but counterclaims for breach of arising contract stating that willing HCSA would be to con- from the noise level damages default and for sider a reasonable offer. based on the value of the water removed By 3, 1994, February letter dated HCSA allegedly after the lease was terminated. foregoing negoti- notified the TNRCC of the 18, 1993, (Ghidoni’s On June Meehan ex- response, ations. the TNRCC notified wife) plea filed a intervention the suit HCSA that it would allow the continued use filed claiming Stone Oak interest of the wells in sanitary the absence of the Property Campbell and the Lease based on provided control easement that HCSA collect 30, 1993, July divorce decree. On Hill certain samples analysis water and take (“HCSA”) Country, S.A. Ltd. also intervened if further measures the test results so dictat- stating purchased lawsuit that it had ed. Ghidoni then amended his answer and HCWW, the assets of Stone Oak and includ- counterclaims to relating assert claims ing rights Stone Oak’s under the failure to obtain the sanitary control ease- Lease. ments. 23, 1993, August On Ghidoni sent written parties August went to trial on notice to they Stone Oak and HCSA appeals judgment from the were default under the lease for failure to eighteen points rendered therein and raises *6 comply laws, with all rules and of ordinances of error. points We will address the in the federal, state, municipal governments. order raised. Specifically, Ghidoni asserted Stone Oak regu- and HCSA were in violation of a Texas Disqualify Motion To requiring lation sanitary them to have a con- error, point In his first Ghidoni trol easement around the water well loca- contends the trial court abused its discretion 4, 1993, tions. On October Ghidoni notified in denying disqualify his motion to the law Stone Oak and HCSA that the lease had Wheatley firm of Sharpe represent & from been canceled failure to cure the default ing HCSA. Ghidoni’s contention rests August referenced in the 1993 letter. allegations that he disclosed confidences re 15,1993, On October HCSA sent Ghidoni a garding the underlying ap .suit the instant stating letter that it renewing its request peal when Wheatley he consulted with & agree grant Ghidoni to sanitary HCSA a Sharpe request representation to in another control easement. This apparent- letter was Therefore, matter. Ghidoni concludes that ly response in to Ghidoni’s termination letter Wheatley Sharpe & should have been dis and a notice from the Texas Natural Re- qualified representing from HCSA based on (“TNRCC”) source Conservation Commission allegedly prelim information disclosed that Stone Oak needed take remedial mea- inary regarding possible consultation re sures to correct certain deficiencies in the tention of firm represent Ghidoni in operation wells, of the including water ob- the other matter. taining sanitary control easement. On No- 22, 1993, vember sent HCSA Ghidoni a sec- generally The first issue addressed request ond enclosing the documentation Supreme reviewing the Texas Court in necessary grant sanitary questions control ease- relating attorney disqualification 1,1994, January ment. attorney On prior HCSA’s based on access confidences is sent demanding Ghidoni a letter disqualification Ghidoni whether the action in is which provide response by Thursday, “a written sought substantially related to the matter trial court allegedly dis “whether acted in which the confidences were determine See, any guiding rules or reference e.g., closed. Enter without National Medical arbitrary or unrea- principles, or acted an prises, Godbey, 924 Inc. v. S.W.2d Metropolitan Ins. manner.” Co. sonable (Tex.1996)(addressing substantial relation Life 319, 321 Syntek Corp., Finance 881 S.W.2d v. analyzing duty to ship attorney’s issue before (Tex.1994). may judg- not substitute our We preserve pri confidences based on nature court, that of the trial resolv- ment for movant); relationship or Texas NCNB issues, the trial Coker, ing factual we will reverse Bank v. National 765 S.W.2d only the trial court (Tex.1989). court if we determine prove order to Id.; could have made but one decision. matters, relationship substantial between two (Tex. Packer, 833, 839 827 S.W.2d Walker specif produce must movant “evidence 1992); Appeals, v. Fourth Court Johnson capable being ic recited similarities (Tex.1985); & Susie J.K. Coker, disqualification at order.” 765 S.W.2d Wadley Research Blood Bank v. L. Inst. & allegations 400. conduct “Mere unethical Morris, 280. showing a of a possibility remote evidence not disciplinary violation of the rules will disqualification hearing, Ghidoni At Spears suffice under standard.” Duffey, he Mike testified that met with Appeals, Fourth Court firm, Sharpe law Wheatley & member (Tex.1990). Furthermore, movant stated that he May may rely upon conclusory but statements firm Wheatley Sharpe be- contacted the & “provide must the trial sufficient court with pursuing cause he interested both pains engage information so that it can in a against Hill Coun- inverse condemnation suit taking analysis facts.” L. J.K. & Susie Village relating zoning dispute in- try ato Wadley Inst. & Bank v. Research Blood changing volving Property and in attor- Morris, (Tex.App neys in the Stone suit. Ghidoni further . —Dal 1989, orig. proceeding). las movant specifies “While he testified that discussed the confidences, divulge any need Duffey he must matter with and the strat- Stone Oak matter, specificity subject pursue delineate with intended in that suit. egy issues causes of action presented [the] Duffey hearing. also testified at the Duf- representation.” former Id. any strategies fey that he denied discussed with Ghidoni. relating to the Stone Oak case
“Disqualification
a severe reme
dy.”
meeting
Spears, 797 S.W.2d
In view of
a few weeks after the
be-
at 656.
Within
*7
Ghidoni,
severity
Duffey
Duffey
this
to
discourage
and
the use
tween
and
notified
tactic,
3,1993
disqualify
dilatory
as a
trial
letter
that the
motions to
Ghidoni
dated June
required
“strictly
Wheatley
Sharpe
declining
trial courts are
adhere
&
firm was
exacting
considering
representation.
to an
All
standard when
the documents retained
Coker,
400;
in
by Duffey
such
at
were returned to Ghidoni
motions.”
Although Duffey
A trial
that Ghi-
Spears,
see also
at 656.
letter.
admitted
S.W.2d
only
refusing
brought
court
will
be
for
doni
folder of documents
reversed
only
meeting, Duffey
if it
he
disqualification
order
abuses its discre
stated that
reviewed
Therefore,
relating
Spears,
copied
tion.
documents
zon-
581 cation, alternative, evidence that the letters introduced into In the Ghidoni contends dispute present the relating to the noise level question relating to the modification jury the regarding the modi law, parties’ conflicting views if question misstated the or the issue Although letters as issue. Ghidoni’s submitted, fication complains properly Ghidoni was requirement the was that noise level sert jury’s against great the was the that answer Lease, Campbell there incorporated the into preponderance of evidence. weight and the subject provisions the by making it default a con proving The that burden therein, reflect its under Stone Oak’s letters party has been modified is on the as tract requirement had standing that noise level the Adams, at serting 848 S.W.2d modification. part Lease. Campbell not become party modifi asserting The contractual 189. presented re conflicting evidence Where prove party cation must that the other had issue, upon garding an we are called change the change notice of evidence; thus, jury’s verdict reweigh the 229; Hathaway, accepted. at S.W.2d generally matters considered to be on such Adams, 189; Elec at Greenbelt S.W.2d Guerrero, Sanchez v. conclusive. Johnson, Cooperative, tric Inc. v. writ); (Tex.App. Paso — El prove n. 7. that the other at 324 order Co., Carney Inv. v. Roberts change, party had it must be notice denied); writ see (Tex.App. Tyler — party knowledge that the had shown other Powers, Rat- generally William Jr. & Jack change. Hathaway, nature of ” cliff, Another Look at “No Evidence 229; Coopera Greenbelt Electric Evidence,” L. Rev. Tex. “Insufficient Johnson, tive, Inc. v. n. 7. S.W.2d at 324 (1991). conflicting In view of the following trial, trial The court submitted the presented at we will not dis evidence question regarding modification: jury’s finding. turb the through points of second sixth
QUESTION NO. 1 are overruled. error Compromise Did the and Settlement Breach of Contract Absent Modification Agreement modify Lease? error, point In his seventh Ghido- You are that in instructed order to find the trial court erred ni contends that changed CSA modified denying his for new trial because motion prove Lease that must from the Ghidoni jury have the consid was entitled to evidence that: claims er his for breach the CSA 1. The Stone Oak Plaintiffs knew that noise levels and breach of excessive the 50 level limitation was to decibel comply failure to Campbell Lease subject default clause regardless law of whether CSA state Lease, regard Campbell Lease. modified With accepted Stone Oak Plaintiffs that he entitled to Ghidoni’s contention such modification based on regarding a breach of the CSA to an issue knowledge. regardless of whether the CSA modified merely You are further instructed Lease, note that did we change or party alleged because one regarding request an breach of issue to it is agreed modification not sufficient independent asserted breach CSA evidence, you standing alone for answer lease.” further “original or modified We change that such or modification occurred. only pled that Ghidoni that the “Ghidoni note opera Lease” was breached Stone Oak’s comparison question A as submitted *9 noise of the water in excess of the tion wells precedent and the aforecited reveals that Therefore, requirement. we hold Ghi- level properly forth question sets the elements right his to assert this conten waived doni Therefore, prove. required Ghidoni tion. jury question did not misstate the law. respect assertion regard jury’s to the failure With Ghidoni’s With regarding to an issue regarding find in favor of modifi- that he was entitled Ghidoni Campbell breach of the finding question Lease based on the Question number 10. failure of comply Stone Oak and HCSA to inquired number 10 complied whether HCSA n withstate law, initially we note that Ghido- applicable with the relating laws to the sani ni’s pleadings support do not this assertion. tary control easement. pled Ghidoni that the “Ghidoni Lease” was addressing In sufficiency a factual chal comply breached the failure to with state lenge, required we are to review all of the pleading law. Ghidoni’s defines the “Ghidoni evidence; however, may pass we on the Lease, Campbell Lease” as the as modified credibility of the weight witnesses or the Furthermore, the CSA. even if we assume given testimony, may their we inter properly pled that the issue was and the trial jury’s fere with the resolution of conflicts court in refusing erred to submit the issue Constr., the evidence. Lawson-Avila Inc. v. Lease, regarding Campbell breach of the we Stoutamire, (Tex.App.— find such error would be harmless. denied). San Antonio writ The evi if, Jury charge only error is reversible primarily dence this case consists of the light record, of the entire the error was' relating letters to the negotiation of the sani reasonably calculated to cause probably tary control easement between Ghidoni and did improper cause the rendition of an judg- HCSA At the negotia conclusion of these Tex.R.App. 81(b)(1);
ment. P. Reinhart v. tions, the TNRCC notified HCSA that (Tex.1995); Young, 906 Is- would allow the continued use of the wells in land Development Corp. Recreational v. Re- sanitary the absence of the control easement Ass’n, public Savings Texas 710 S.W.2d provided that HCSA collected certain water (Tex.1986). Although the trial court samples analysis and take further mea regarding did not submit an issue whether if sures the test results so dictated. HCSA’s Campbell Lease was breached expert testified that the effect of the TNRCC law, comply following failure to with state grant exception was to HCSA an question jury was submitted which the an- sanitary requirement control easement swered the affirmative: granting that the exception of such an
youDo preponderance find from a of the permissible regulations. under the Lease, evidence that under HCSA present any did not evidence to contradict laws, complied statutes, with all the rules expert’s opinion. Based on forego regulations of the State of Texas and ing, we find the evidence was sufficient to its agencies regarding sanitary control support jury’s finding and overrule Ghi- easement Property? on the eighth point doni’s of error.
By finding complied that HCSA with the regarding sanitary
laws Injunction control ease- ment, jury necessarily concluded that points ninth and tenth of error complied provisions HCSA with the permanent injunction relate entered requiring compliance. Lease such against points Ghidoni. Under these of er- Therefore, any in failing error to submit an ror, arguments Ghidoni raises various relat- regarding issue comply HCSA’s failure to ing to the contractual modification issue and original lease was rendered immate- compliance HCSA’s with state law. addi- rial jury’s response and harmless tion, complains Ghidoni also the evi- City the defensive issue. Brownsville Cf. supporting jury’s finding regarding dence Alvarado, (Tex.1995). operation his continued threat to the point Ghidoni’s seventh of error is over- factually wells was insufficient based on his ruled. argument conclusively that the record estab- right lishes that he had the to terminate
Compliance with State Law Property HCSA’s access to the for breach of error, eighth point In his previ- the lease covenants. For the reasons contends the trial court in denying ously given addressing erred the modification issues, compliance reject motion for new trial because the evidence is and state law we factually support jury’s arguments. insufficient to these
583 Lease,” prohibition “pursuant the first per also that the to the Ghidoni contends has similarly and Ghidoni injunction overly manent is broad en is restricted. Since legal to access to joins right him activities are a lawful a restrict HCSA’s from which “Lease,” first proper Specifical provided of his under the rights. and exercise the overly Accordingly, we ly, prohibition is broad. Ghidoni asserts: injunction modify prohibition first permanent injunction A has entered been prohibit to and limit the restraint HCSA, possession in who favor of holds restricting pre- directly indirectly from or or only by way a lease. The the land venting “pursuant to access Lease” owner of land Ghidoni is and lessor HCSA. posses- forbidden interfere with HCSA’s property though sion even there are DECLARATORY JUDGMENT lease, which
numerous covenants error, point In his eleventh Ghido- any could be at and would breached time granting in ni the trial erred contends court entitle him to terminate the lease. declaratory request because the HCSA relief injunction an Ghidoni is correct that by moot for relief was rendered Ghidoni’s prevent as a defen cannot be so broad reject conten counterclaim. We exercising legal rights. from his dant See tion. Valley Kulkarni Braeburn West Civic petition seeking ’n, Inc., original filed 277, Stone Oak (Tex.App.— Ass 880 S.W.2d declaratory judgment regarding rights its writ); 1994, Houston no Hitt v. [14th Dist.] which were subse under the Lease Mabry, (Tex.App. S.W.2d — San writ). assigned to in es quently HCSA. Ghidoni injunction Antonio no con that he and did render sence asserts could judgment provides tained as follows: request declaratory relief “moot” IT IS FURTHER ORDERED filing involving the same is counterclaim permanent injunction oral issuance of a on may sues. shift the While counterclaim 22,1994, reaffirmed, August is ratified and proof and burden of affect manner permanent injunction hereby and is- jury to the which a case submitted Ghidoni, or any sued such that Donald E. authority cited accordance with Ghido him, person entity acting or in concert with ni, filing we do not believe that such attorneys, including but limited to his deprives original plaintiff counterclaim servants, successors, agents, employees, originally pursuing requested. from the relief hereby assigns, heirs and are com- and Thomas, See Thomas v. permanently manded and per- forthwith (ad denied) (Tex.App. writ petually perma- desist and refrain and are — Austin awarding attorney’s fees dressing where 1) nently perpetually restrained from sought orig declaratory judgment initially directly indirectly restricting pre- or or petition). point inal Ghidoni’s eleventh HCSA, venting agents, access its em- error is overruled. servants, ployees, assigns successors and (as property encompass- to the defined as ing of 30 feet 30 feet area around Attorney’s Fees each of the three water areas Lots well the trial has the Since court discre 5833E, 184r-B, County Hill 183 and Block deny attorney’s or in a grant tion fees Estates, Country County, Unit Bexar actions, only declaratory judgment we will Texas all easements for HCSA’s in- attorney’s reverse the trial court’s award legal purposes gress egress and for all if its discretion. Oake v. Col fees it abused areas) 2) pertaining to these well (Tex.1985); County, lin
way interfering with the use of afore- Thomas, 626; Pea Thomas v. Lease, pursuant property, said (Tex. Schroeder, cock v. HCSA, servants, agents, employees, its writ). App. Antonio — San assigns. successors error, point of asserts twelfth awarding attorney’s court erred in Although prohibition second limits trial ways: property use of to use fees Oak and HCSA three HCSA’s continued *11 584
(1) declaratory judgment the action for support was was some evidence to the submission counterclaim; rendered moot jury. theses claims to the (2) the CSA modified the lease as a matter of law; (3) Standard Review Directed party Verdict required each to bear for attorney’s
his or its own fees. reviewing In whether a trial verdict, granting court erred in a directed we previously given, reject For the reasons we light review the evidence in the most favor Ghidoni’s first and second contentions and party against able to the whom the directed only argument further address his that each rendered, disregard verdict was all con party required to bear his or its own trary Qantel evidence and inferences. Busi contention, fees. As to this third Systems, Co., ness Inc. v. Custom Controls has misconstrued the law. 302, (Tex.1988); 761 S.W.2d 303 Connell v. support Ghidoni cites two cases to Connell, 534, (Tex.App. 889 S.W.2d 538 — San parties assertion that where both have denied). 1994, Antonio writ If no evidence is legitimate rights pursue declaratory presented support plaintiffs cause of judgment action, party each should bear its action, Qan- proper. an instructed verdict is attorney’s own fees. While Ghidoni is cor Inc., Systems, tel Business 761 at S.W.2d in stating rect that the trial court refused to 302. If there is conflicting evidence of attorney’s award fees under the facts in probative plain value on each element of the cases, appeals those the court of in each case claim, jury. tiffs the issue is Connell attorney’s noted that the award of fees was Connell, 538; University 889 at S.W.2d discretionary. Knighton v. International Whinney, Nat ’l Bank v. Ernst & 773 S.W.2d Corp., 206, Business Machines 856 S.W.2d 707, (Tex.App. 709-10 no Antonio — San (Tex.App. [1st Dist.] — Houston writ). denied); Interests, writ United Inc. v. Brew ington, (Tex.App.— Conversion n.r.e.). Houston [14th Dist.] writ refd wrongful Conversion is the exer may attorney’s The trial court award fees cise proper of dominion and control over the just.” “as equitable are Tex. Civ. PRAc. & Bank, ty Bandy of another. v. First State (Vernon 1997). § 37.009 In Rem.Code Ann. (Tex.1992); Campos S.W.2d awards, reviewing such we cannot substitute Inc., Management Properties, Investment judgment our for that of the trial court. (Tex.App. Antonio — San Schroeder, Peacock v. at 912. denied). Generally, writ damages for attorney’s pre Whether to award fees to the property conversion are the value vailing party declaratory judgment ac together legal the time of conversion parties tion “legitimate where both have Imperial interest Sugar thereon. Co. v. Tor rights pursue” discretionary remains rans, (Tex.1980). decision of the trial court. See Peacock v. contends that the directed im verdict was Schroeder, 846 (awarding S.W.2d at 911-12 proper because the record reflects some evi prevailing party attorney’s fees where both significant dence that amounts of water were relief). parties pursued right declaratory Property removed from the after Ghidoni us, Based on the record before we do not find Campbell terminated the Lease. Stone Oak that the trial court’s award was an abuse of sup and HCSA counter that the evidence discretion. porting Ghidoni’s conversion claim had point Ghidoni’s twelfth of error is over- probative they in rightful force because were ruled. possession in light water of the fact
that there was no breach Lease. CONVERSION AND CONSPIRACY points fourteen, position of error thirteen and taken Stone Oak and grant- ignores
Ghidoni asserts the trial court erred in HCSA our standard of review with ing a regard Applying directed verdict on his conversion and to a directed verdict. standard, conspiracy applicable causes action because there we must view the evi- Ghidoni, appeal on a light ordered in an based determi denee in the most favorable to *12 appellate “unless the court disregard contrary all evidence and infer- nation error ences, opinion evi- that the error com and determine whether there was shall be the support to such a denial of the probative plained dence of force to Ghidoni’s amounted wrongfully reasonably rights appellant claim that Stone Oak and HCSA of the as was wa- probably and control over the did exercised dominion to cause and cause calculated Viewing light, the in this we improper judgment ter. evidence in the of an rendition respond case, must in the affirmative conclude jury and In failed to ease.” the instant the directing the court in the trial erred the terms of the find that CSA modified the verdict. Lease; therefore, jury Campbell the was not required regarding the issue termi reach properly the lease terminat- Whether was noise nation in connection with the level re Oak, thereby terminating as to ed Stone Furthermore, jury found quirement. rights assigned Oak have Stone could complied regard with laws that HCSA state HCSA, initially the issue turned on of wheth- sanitary ing the control easement. Based Campbell er the was Lease modified answers, find that the trial court’s these we discussed, this was previously CSA. As issue directing against in a verdict error jury properly jury. to the If the submitted claim harmless. on his conversion was See affirmative, it had this answered issue Services, Group Hospital v. & Two Inc. One required have been consider would then (Tex. Center, 704 889 Brookriver S.W.2d Campbell whether the Lease was terminated. 1986, writ); Padgett v. App. Bert conditionally This issue was submitted to — Dallas Motor’s, Inc., Ogden S.W.2d jury. recog- these The submission of issues (Tex.App. Corpus writ Christi de question nizes that a of fact was raised re- — nied). In the absence an affirmative find garding right had whether Ghidoni ing regarding in favor termination Ghidoni’s Campbell terminate the Lease breach lease, there could be no conversion of requirement level and Ghi- noise whether the water. rightfully doni terminated the lease. question
This same of fact underlies Ghido- Conspiracy prop- ni’s conversion claim. If the lease was terminated, erly jury should have been The essential elements civil required to determine whether the subse- (1) (2) persons; or conspiracy are: two more quent removal of water HCSA and Stone (3) object accomplished; an to be and wrongful assumption Oak was the of domin- object meeting with a minds on water, ion and control over the or conversion. (4) action; commit one or more course Therefore, conflicting regarding evidence (5) acts; unlawful or overt there are continuing rights of Stone Massey damages proximate as a result. v. Campbell HCSA under Lease entitled (Tex. Co., Armco Steel at least Ghidoni to a conditional submission Connell, 1983); at 541. Connell v. issue, and the trial court conversion joint in Merely proving engage intent to rendering erred in a directed verdict. not injury that results is suffi the conduct conspiracy. to establish a claim for civil cient
Although we have determined (Tex. 640, 644 verdict, Airington, v. Juki S.W.2d directing erred in trial court 1996). Instead, requires conspiracy civil requires we do not believe that the error agree accomplish un specific intent to an jury’s reversal view the answers Tex.R.App. purpose accomplish pur a lawful lawful or to questions were submitted.5 81(b)(1) means. pose unlawful Id. provides P. that a new trial shall requested); applying analysis, recognize pleadings properly this harm we and evidence Dearman, (Tex. imply Autry that cally decisions such error automati other analy conducting denied). reversible such App. writ Dist.] [14th — Houston Perez, See, e.g., Corp. sis. Exxon However, analysis appropri we believe a harm (Tex.1992)(judgment where reversible reviewing type of error. ate in party theory by the denied submission of raised contends that trial court seeking filed lawsuits to set aside a deed granting transferring
erred the motion for directed Meehan which executed her in- conspiracy verdict as to the claim because property terest the real and leasehold agreement between Oak and declaratory seeking estate Ghidoni and assign HCSA to Lease was granted,6 relief. The consolidation promulgated pump attempt in an to continue plea Meehan then her amended interven- ing water from leasehold after the lease previously tion to assert the claims made We find assertion terminated. single pleading. the other causes in one *13 to be an in unreasonable inference view of 1994, April In ten months after Meehan presented the evidence and hold that first intervened months and five after consol- proper. directed was Connell v. verdict See idation, severance, a motion for filed (fact Connell, may 889 at 541 not be S.W.2d separate trials and as to abatement Meehan’s proved by from other unreasonable inference hearing, Following claims. a the motion was circumstances). facts and is no evi There 18,1994. April on overruled When the cause dence in the record that the sale assets 15, 1994, August was called for trial no on between Stone Oak and HCSA was unlawful. sought. further relief on the was motion Therefore, specific there was no intent to act, agree accomplish to an and no unlawful Sever Motion to conspiracy support evidence to Ghidoni’s error, In his point fifteenth Ghido- Babcock, claim. v. 14-94- See White No. complains ni of the trial court’s denial of his - 00468-CV, *3, 502942, WL 1995 motion to sever claims Meehan’s based on 5.W.2d-,-(Tex.App [14th . —Houston the contention that Meehan’s intervention Dist.], 24, 1995, August n.w.h.)(summary brief, improper. In was Ghidoni asserts judgment conspiracy proper claim where justiciable why various reasons a interest illegal); no evidence sale assets v. Connell not shown was Meehan. Connell, (no conspiracy 889 at 534 S.W.2d conveyance property based on absent Rule 60 of the Texas Rules unlawful). showing that Fur transfer permits any party Civil Procedure to inter thermore, supports the evidence the conclu “subject being vene in an action to stricken only convey, sion that Stone Oak intended out the court for sufficient cause on the only acquire, HCSA intended to those any party.” motion of Tex.R. Civ. P. 60. An rightfully assets possessed, Stone Oak intervenor is not required secure the trial any reference in the documentation permission intervene; party court’s Oak, including asset not Stone Lot owned opposing intervention has the burden to chal 185B, Therefore, we con erroneous. Guaranty lenge it a motion strike. granting clude the trial court did err Savings Operat Federal Bank v. Horseshoe respect the motion for verdict directed Co., 652, (Tex.1990); ing 793 657 S.W.2d conspiracy claim. Melo-Palacios, 399, v. 921 Flores S.W.2d 404 1996,. (Tex.App. Corpus writ Christi de —
Intervention nied). However, a trial court abuses its dis (Ghidoni’s ex-wife) in striking plea Meehan cretion intervened a intervention in 1993, citing Guaranty Stone Oak lawsuit June of the absence a motion to strike. her disputed Savings Operat one-half interest lease Federal Bank v. Horseshoe Co., 657; in a 793 ing awarded her divorce decree and com- S.W.2d at Flores v. Melo- Palacios, plaining pay Oak’s her at 404. failure to S.W.2d portion payments. of the lease did Ghidoni admits that he did not file a mo- plea move to strike the in intervention. Meehan, tion to strike the intervention of but severance, urges separate November Meehan to con- that his motion moved previously essentially solidate with the instant suit two trials and abatement asked for granting right 6. The to file a order consolidation recites motion for severance.” prejudice [sic] “without to Donald Ghidoni Cherry, v. An ation has received. Johnson disagree. the same relief. We order he (Tex.1987); striking “totally v. dismissing or an Guerrero intervention S.W.2d Inc., dispose[s] relating Systems, issues to the inter- Hagco Bldg. writ). interest in the suit and (Tex.App. dismissefs] venors’ Antonio no — San totally suit, the suit” Bar the intervenors from granted in such When rescission (Tex.Civ. Ezer, rows generally must original parties status writ). A App. [14th Dist.] Cherry, 726 Johnson v. be restored. See — Houston severance, hand, “splits single on the other 8; & Associates v. J S.W.2d at Shenandoah actions, independent more (Tex. suit into two or Inc., Properties, K resulting appealable action final denied). each However, App. writ — Dallas Boswell, O’Toole, Dyke v.
judgment.” Van
complete
be
without
may
allowed
rescission
(Tex.
381, 383
Pickering, 697
Davis &
particular circum
restoration where the
1986);
Therefore,
see
Tex.R. Civ. P. 41.
also
more equitable
that to
stances indicate
sought by
relief
to strike inter
motion
K
result.
Associates
J &
Shenandoah
severance, separate
and motion for
vention
Inc.,
474-76;
Properties,
Tur
741 S.W.2d at
*14
clearly
are
trial and abatement
different and
Corp.,
Agricultural
ner v.
Credit
Houston
distinguishable.
clearly
motion
Ghidoni’s
(Tex.Civ.App.
— Houston
sought
available
relief
severance.
n.r.e.).
1980,writ ref 'd
[1st Dist.]
arguments
in
The
raised
Ghidoni
brief-
judgment
renders a
Where the trial court
to
ing
point
his
of error relate
fifteenth
but fails to
rescinding a contract or deed
propriety of
not the
Meehan’s intervention
restoration,
relating to
equities
resolve the
propriety
deny-
trial
in
court’s action
remedy is
remand the cause to
proper
to
ing
to
the severance. Because Ghidoni failed
for resolution
the issue.
trial court
intervention,
file a motion to strike
Ghi-
Cherry,
A a suit for rescission And, Ghidoni, Mr. party generally he is THE COURT: of a deed to which return, return, you for too. must or offer consider- Absolutely, judgment rescinding
MR. ROSS: and we don’t special war- deny going there is ranty some deed from Meehan Ghidoni is re- versed, judgment reimbursement. And we will— declaring rendered special void, (ATTORNEY warranty GHIDONI) deed null and and the FOR MS. cause remanded to the trial court for de- That’s "WILLIAMSON: what we’re afraid termination of the of, Honor, restoration issue. The will, know, Your you that it if judgment remainder of the is affirmed. now, get we don’t it it resolved would— Well, dear, see, THE COURT: I can’t DUNCAN, J., part opinion
resolve it here because it
has
dissents
ANGELINI, J.,
urge
here.
I
Mr.
joins.
can
Ross to take care of which
Otherwise,
that matter.
he wants
unless
J.,
CANTU,
ANTONIO G.
dissents with
lawsuit,
get
in a
and he doesn’t need
opinion.
lawsuit,
another
so I
suggest -just
would
a —
suggestion.
DUNCAN, Justice, dissenting.
understand,
MR.
I
Judge,
ROSS:
majority’s opinion
evidences a funda-
doing
we
if
intend on
that we
work out
can
misunderstanding
misapplication
mental
think, you know,
what we
agree what is
procedural
of basic Texas contractual and
briefly,
Ghidoni,
Nancy
due. Just
in-
When
properly ap-
law.
the correct law is
tervenor,
have
judg-
we
reviewed this final
case,
plied in this
both
is clear
that the
objections
ment. We have no
to it. We
Campbell Lease
into
merged
Compro-
urge
would
sign
judgment
the Court to
*15
Agreement
mise
as a
Settlement
matter of
as—
law and that the trial court abused its discre-
THE
given
COURT: You have
counsel a
denying
tion in
Ghidoni’smotion to sever and
copy of this?
abate Meehan’s intervention. Because these
Yes,
MR. CAMPAGNOLO:
Your Hon-
probably
errors
resulted
erroneous
or, to all counsel.
I
judgment, would sustain Ghidoni’s second
you very
THE COURT: Thank
much.
error,
points
and fifteenth
of
reverse the trial
Therefore,
record
the
reflects that the trial
judgment
entirety,
court’s
its
and remand
court improperly
to
refused
address the res-
the case
the trial court for
pro-
further
toration
Contrary
issue.
asser-
Ghidoni’s
ceedings
governing
under the
I
law.
there-
tion, however, the trial court’s failure to ad-
respectfully
fore
dissent.
dress
require
this issue does not
reversal
the
portion
of
of
judgment
the
the
granting the
MERGER OF THE CAMPBELL
only requires
rescission but
that the cause be
the CSA
Lease
remanded to the trial court for consideration
error,
point
In his second
of
Ghidoni ar
of
Accordingly,
the restoration issue.
we
gues
Campbell
CSA
the
modified the
Lease
portion
reverse that
judg-
the trial court’s
law;
majority
as a matter of
The
overrules
relating
special
ment
rescission of the
error, holding
point
deed,
Ghidoni’s
warranty
judgment declaring
render
argument fails because
a contract
“fw]hether
special warranty
deed null and void and
depends
parties’
has been modified
on the
setting
conveyance
aside the
reflected there-
fact,”
question
intentions and is a
in,
and the
and remand the cause to
court to
the trial
testimonial evidence as to intent is conflict
equities
consider
relating
to Ghidoni’s
Oak,
ing.
Ghidoni v. Stone
claim for restoration. See Johnson v. Cher-
n.w.h.)
Antonio, 1998,
(Tex.App
580
ry, 726
at 8.
S.W.2d
. —San
Mills, Inc.,
Hathaway
(citing
General
(Tex.1986)).
Conclusion
227, 228-29
But
S.W.2d
the ma
permanent
injunction
The
granted
jority’s
Hathaway
in the
misplaced
reliance on
is
trial
judgment
court’s final
employment-at-will
is modified to
since it involved an oral
contract,
limit
directly
indirectly
written, fully-executed,
the restraint
or
not a
restricting
preventing
“pursuant
fully-integrated
access
like the
contract
CSA. Even
addition,
however,
portion
HCSA In
importantly,
majority’s
Lease” to
more
Coker,
1996)
curiam);
(per
only
issue
Coker
holding
to address the
fails
(Tex.1983);
Tex
Oil Co. v.
presented,
seriously
also
misconstrues
Sun
S.W.2d
(Tex.1981).
Madeley,
as law.
unambiguous contract thus renders ex-
An
Whether
Not
The
Issue:
Modification
parties’subjective
un-
evidence of
trinsic
the Extent
But
Modification
derstanding
E.g.,
intent
immaterial.
Co.,
282-83;
effectively
CSA Friendswood Dev.
Stone
concedes the
Oak
Co.,
This
at 732.
is the
Campbell Lease in certain mate-
Oil
modifies the
Sun
But,
“existing precedent” by
majority
recognizes,
which
respects.1
rial
as Stone
quote
from
this concession does not resolve Ghidoni’s
bound” —not
and should “feel
issue,
complaint.
paraphrase
The
Stone
from the con-
Hathaway completely divorced
Oak,
“an alleged
breach of a CSA
Texas law.
whether
letter
text
decades
black
provision
by the
or] cannot be enforced
[can
Applying these well-established rules
[Campbell]
Lease.”
provision
default
yields
construction
the CSA
contract
words,
precise point upon
In
which
other
governs
rule
law that
precise
whether
joined
parties
have
issue is
agreement
point of error: When one
second
Campbell
but
the CSA modifies the
Lease
another,
agree-
the two
expressly references
the extent
to which it does so. Ghidoni
parties’
together
taken
constitute the
ments
argues
complete
the modification was
so
contract,
agreements
two
must be
and the
effectively
Campbell
Lease and the CSA
light
of one another as matter
construed
provi-
became one contract and the default
Perry
Langbehn,
E.g., E.H.
& v.
of law.
Co.
Campbell
necessarily ap-
sions in the
Lease
(1923).
72, 79,
Tex.
252 S.W.
ply to
promises
Stone Oak’s
the CSA.
hand,
that,
Oak, on the
argues
other
Langbehn,
question posed
may
modify
while the CSA
certain terms
parties
had contracted for the
whether
Lease,
Campbell
are nonetheless
two
freight
use of the
transportation of
or for
independent contracts so that
the default
parties’
space
freight
occupy.
would
only
provisions
apply
Lease
a “freight [shipping]
contract consisted
*16
promises
to Stone Oak’s
in that lease.
incorporat-
engagement
expressly
note” that
lading
bill of
that
to be issued
ed the
was
Governing
Merger
The
Texas Law:
shipment.
freight
when the
was delivered
by Express Reference
context,
Supreme
of
In this
the
Court
Texas
states,
majority
As the
whether a contract
of
express incorporation
held that the
the bill
upon
parties’
has been modified centers
the
lading
freight
engagement
shipping
of
the
intent,
question
a
which is
of fact. Hatha
together
be
meant “the two are to
considered
However,
way, 711
at
this
228-29.
actually
constituting the contract
executed
as
fact,
other,
question
proved
like
can
of
be
result,
partial
upon.” Id. As a
“the
and acted
at
conclusively.
parties’
Id.
229. And the
by
engagement
evidenced
the
note
contract
conclusively
by
proved
unambig
intent
is
into,
merged
and to the extent of all inconsis-
supreme
has
uous contract. As the
court
completed
by, the
superseded
tencies was
stated,
repeatedly
unambigu
if
is
a contract
by that note and the bill
contract evidenced
ous,
parties’
presents
“question
the
intent
a
thereof;
part
lading issued and made a
of
gleaned
the
of law for the Court” to be
from
is,
the
...
engagement
that
the terms of
note
because,
situation,
language
contract
this
accep-
by the issuance
were modified
objective,
subjective,
not
“it is
intent
...,
lading
the
later
tance
bill
City
Ad
Spooner
controls.”
of Pinehurst
at
controls.” Id. 252 S.W.
475-76.
(Tex.
Co.,
dition
432 S.W.2d
518
Water
1968);
also, e.g.,
recently
by
Klinge-
more
stated
Friendswood Dev. Co.
As
Justice
see
Co.,
(Tex.
court,
of this
a later contract
“[w]hether
+
man
McDade
926 S.W.2d
brief,
that,
the
page
opening
Oak
or
if
became
land-
[Ghidoni]
1. At
26 of its
Stone
of water
lord,
dispute
be
to his
a
the size
all notices would
sent
address.”
states: “There
never
CSA,
argued [it
property
by
is]
Stone Oak has "never
was reduced
In
leased
short.
by
gallons
of the CSA.”
to 2.5 million
bound
terms
[Ghidoni]
entitled
one,
independent
circumstances,
be deemed an
or incor
Under these
to the extent
porated
inconsistent,
with or
agree
Campbell
correlated to the old
Lease is not
it is
ment, is to
intention
merged
paragraph
determined
into the CSA virtue of
parties
expressed
agree
See,
as
later
e.g.,
18 of
CSA a
as matter of law.
Jones,
ment.” Keith A.
v. R.L.
Nelson Co.
Langbehn,
Necessarily,
(1901) (promissory expressly-refer notes and Meehan’s Intervention
enced lien instrument to be “construed to contract”). gether as constituting one error, point In his fifteenth trial denying
asserts the court erred in motion to sever and abate Meehan’s claims Standard Be Novo Review: dispute. overruling from In the lease this “A trial court has no ‘discretion’ deter- error, point majority holds Ghidoni mining applying what the law is or law to point by filing waived the a sever motion to Packer, the facts.” Walker v. S.W.2d and abate rather than a motion to strike. (Tex.1992). Accordingly, we review Ghidoni, 586-87. majority at The incor- trial unambigu- court’s construction anof rect. contract ous under a de novo standard. Governing Texas Law Application Governing Texas Law Texas, person may intervene and Undisputed Material Facts party pending simply litigation become by filing pleading. P. 60. Crv. Tex.R. asserts, correctly party As Ghidoni Thereafter, any party that believes the inter litigation this has ever asserted the CSA is improper vention is bears the burden ambiguous, and the trial court did not so “challenging] a motion to strike.” disingenuous, rule. To do so would be Guaranty Op Fed. Sav. Bank v. Horseshoe best, parties’ because modify intent Co., (Tex.1990). erating Campbell by entering Lease the CSA propriety Once the intervention is example, could be more clear. For as raised, intervenor must show she has court, concedes its brief interest,” “present justiciable “legal equi paragraph 3 expressly of the CSA modifies table, Brewer, in the lawsuit.” Mendez v. Lease to it to restrict three 498, 499 (Tex.1982). lessor, if wells Ghidoni para- becomes *17 4 of graph expressly requires the CSA prove If an fails to has intervenor that she provide gal- present 2.5 million justiciable proceed with a interest in the year charge lons of water each ing, “may at no court “[d]ur- the trial dismiss the inter id., or, ing Campbell vention,” the terms of ... appropriate Lease.” circum stances, Boswell, dispelling any par- separately Further try doubt about the sever or it. Lease, O'Toole, Stewart, modify Campbell intent to Pickering ties’ Davis & 531 12(c) paragraph unambiguously of (Tex.Civ.App. the CSA 382 S.W.2d — Houston reserve, parties writ); that all “expressly states no [14th Saldana v. Dist.] Salda na, protect rights they may and save all (Tex.App Corpus 320 S.W.2d .— 1990, writ). sepa have connection no A [the with Christi severance or Lease],” when, instance, paragraph appropriate while un- of CSA rate trial is for CSA], ambiguously states that contingent “[the includ- an intervenor asserts a interest ing present the instruments to reference may justiciable which has become a inter herein, agree- made particular party prevails been contains the entire est if a main hereto, See, parties e.g., Taheny, ment between the and the action. Schwartz v. of (Tex.App [the CSA] terms are contractual and not S.W.2d . —Houston denied) (trial merely recitals....” writ court [14th Dist.] See, Schwartz, sought complains. e.g., at contingent S.W.2d severed intervention attorney’s fee 622-23. because interest would become
present justiciable
only
attorney’s
if
interest
Question
Legal
Prong
Standard
Review:
action).
If
prevailed
client
in main
former
Discretion Standard
Abuse of
justicia-
disputed,
a
the facts are not
whether
question
a
ruling
ble interest
is shown is
law.
on an
appeal, the trial court’s
On
Comm’n, 62
subject
Ortiz Oil Co. v. Railroad
an abuse of discre-
intervention
Mendez,
(Tex.Civ.App.
review.
tion standard
— Texarkana
writ).
An
of discretion is
at 499.
abuse
respect
only
with
to factual matters
shown
that “the trial
when the record establishes
Preservation
Error
reasonably
only one
have reached
court could
Walker,
How-
tervention. CANTU, (Assigned),
ANTONIO G. Justice dissenting. Disposition Harm and Believing that controversy correct- discussion, As demonstrated the above ly submission, original on decided I adhere to points second fifteenth of error position expressed opinion panel ruling establish the trial court erred in on the with additional observations in re- made modification and intervention issues. There- sponse majority to remarks noted the new fore, points these of error must be sustained banc, opinion sitting of the court en but if the errors rise to the level of reversible primarily ignored potest issues non adduci i.e., error, “probably error that caused the exceptio ejus cujus petitwr rei dissolutio. improper of an judgment” “prob- rendition ably prevented properly pre- from [Ghidoni] Initially, it is appropriate to note that the senting the appeals” case to the court of panel of my dissent brother did not Rickhoff App. 44.1(a)(l)-(2). Tex. R. anything allude to in the record that would call contrary for a result. he While ex- Plainly, the error as to the trial court’s pressed litigants a concern for fairness to ruling on the modification issue was harmful- lawyers in general, the focus should have court incorrectly trial directed verdict litigants lawyers remained before against merger Ghidoni on the and termi- very this court and the narrow issues raised issues, nation as as well his tort counter- herein.1 claims; incorrectly precluded jury and it Moreover, by focusing only appel- on the deciding from Ghidoni’s breach of contract lant’s Disqualify single Motion to without a charge. Perhaps counterclaims in its less testimony presented reference to the clear, but nonetheless established the rec- court, trial the dissent incorrectly assayed ord, is that the ruling trial court’s on Mee- Nothing presented by issues. has been han’s intervention was harmful because it Rehearing change Motion for to merit deprived properly Ghidoni of trial confined the direction that this court should move. presented by evidence and issues dispute subjected lease and instead him to a Today majority the new urging at the trial these issues within context of a appellees, expeditiously overrules Ghido- proceeding. bitter divorce ni’s disqualification challenge by characteriz- ing simple the entíre matter as a case of permeates Because reversible error relegated conflicting evidence the trial judgment trial court’s with respect to both discretion, court’s as the trier of fact. dispute claims, the lease and Meehan’s entirety. should in its be reversed On re- approach en undertaken banc mand, trial court should be instructed to represents majority departure clear from conduct proceedings further consistent applicable mandated standard review governing majority, with the law. The how- reviewing the trial court as well as to the ever, judgment against instead affirms the observations, preliminary court. With these dispute Ghidoni on the simply lease I reurge panel re- the correctness the court’s majority mands Meehan’s claims for a opinion. “restoration purposes attorney disqualification privilege 1. For of an client limited more than the ethical *19 motion, public suspicion the likelihood of the obligation lawyer guard of a to the confidences legal profession outweighs any social interest of ”) (quoting and secrets of his client.’ State Bar of attorney’s representation. continued See Texas Ethical on Considerations Code Profes- 577, (Tex. Hoggard Snodgrass, (1984)). Responsibility sional EC 1989, writ) (’’ App. attorney- 'The —Dallas 17,1986, his exercised History December Ghidoni of the Case On The Procedural property option became the owner and (Ghidoni) appeals from Donald E. Ghidoni Campbell lease. and lessor injunctive judgment granting declaratory, relief, including equitable the rescission and the in the some of terms The altered CSA attorneys warranty and of a certain deed to by redesignating who was Campbell lease judgment further denied Ghidoni fees. The notices. It also payments and receive rental on relief his various counterclaims. to Oak the area to be leased Stone reduced that exercise the event Ghidoni proceeding The arose out of a breach of purchase.4 Ghidoni, lessor, option dispute as lease between (Stone Oak) Oak, Country Inc. and Hill Stone CSA, made additional In the Stone Oak (HCWW),2 lessees, and Hill as Waterworks by the previously covered covenants (HCSA), Country as successor les- S.A. Ltd. (1) that Campbell Among lease. these were Nancy by way assignment. J. Ghido- see completed within a certain would be the wells (Meehan), ex-wife, in- ni-Meehan (2) time, ex- that the noise level would not proceeding seeking in the rescission tervened (3) decibels, each well area ceed 50 special warranty declaratory and of a deed feet, space 30 feet would not exceed a judgment relief. (4) would receive additional and that Ghidoni 11, 1983, February On Stone Oak entered gallons of compensation of 2.5 million water Estate, with the Lori into lease Tomerlin year charge. noat each Joy Campbell3 for June and Clare 15, 1991, February a divorce decree On (lots 183, 184B, portion property of real entered Ghidoni and Meehan was between 185B) (the “property’) and located at near in- awarding party each one-half undivided Highway 107 Bitters Road U.S. San (lots 183, property 184B and terest in the Antonio, County, Bexar Texas. Under 185B). also awarded a one-half Each was lease, right Stone Oak had the to drill water covering lease undivided interest and, property pursuant on wells said operations. February On water well HCWW, wholly right, engaged owned sub executed a deed of her one-half Meehan sidiary, operate the water wells and to property to Ghidoni. interest supply the water needs of the thousands learned late Ghidoni Sometime large portion of a of North residents San the assets of Stone Oak HCWW Antonio, to, including, but not limited the RTC. On were advertised sale Oak, Country communities of Hill Vil Stone 4, 1991, Ghidoni notified Stone Oak October Hollywood lage Park. lease also The Paragraph 9c that was default granted option purchase Oak an Stone of the default. Ad- CSA and demanded cure property. default were also ditional notices of same thereafter, Ghidoni sued Stone Sometime to Stone Oak on October given Ghidoni dispute Campbells over a re- Oak and February 1992. Stone Oak 1991 and right purchase garding his of first refusal to required within the did cure the default property. Sep- suit was settled terminate period but did not seek to Ghidoni 17,1984 of a com- tember with the execution at that time. lease (CSA) agreement promise Ghi- settlement doni, February tests Campbells by Ghidoni conducted Oak and which Stone perimeter of Well # 7 and concluded promised to dismiss the suit and Ghidoni decibels. noise level exceeded 50 agreed property to sublease the Oak This, breach of alleged, constituted a wells it excluding three water then noti- assigned paragraph its 13 of the CSA. Ghidoni operated. also then Stone Oak 9,1992 June on March purchase property to Ghidoni. fied Stone Oak option to only Collectively event was cover as Stone 4.The area such hereinafter referred to plaintiffs or Stone Oak. and to limit their location three water well sites to lots 183 and 184B. in the record as 3. This lease referred to "Campbell lease.” *20 1992 of under paragraph Campbell the defaults 18 of seeking lease to Ghidoni and de- pursuant provisions the CSA to the claratory notice judgment. in- sought Meehan also Campbell lease. tervention the suit between Oak. Stone Ghidoni did not move to strike the interven- 9, 1992, Ghidoni, September On by letter tion. Oak, gave to Stone notice of termination of 18,1992. September lease effective 20, 1993, July On the Texas Water Com- 28,1992, September On mission, Stone Oak entered now Texas Natural Resource Con- Agreement into an whereby Asset Purchase (TNRCC), servation Commission issued Cer- agreed Oak and Stone HCWW to sell their Necessity tificate Convenience No. assets to HCSA. 10664(CCN) One the assets of Stone Country to HCSA Hill d/b/a Campbell Oak to be sold lease. System Waterwork for the facilities and ser- Country vice area of Hill Waterworks Co.
By 12,1992, letter dated November Ghido- ni advised property Stone Oak leave the 30, 1993, July On HCSA intervened in the equipment. and to remove their Neverthe- Ghidoni, suit between Stone Oak on less, relinquish possession Stone Oak did not 3, 1993, August sent Ghidoni was notice of but to operate continued the wells. Stone assignment of the lease from Stone Oak Oak, attempt alleged to cure the noise to HCSA. default, level building erected an acoustical 23, 1993, August On Ghidoni notified both 1992; # 7 around Well in December howev- they Stone Oak and HCSA that were er, 12,1992, employees December HCWW provisions default under the lease for viola- gate arrived to find a new lock on the Health, Department tions of Texas Water property prevented which their access to the Division, 290.41, Hygiene Rules 290.40 and water wells. that neither Stone Oak nor HCSA ob- had 22, 1992, On December filed required sanitary tained a control easement against seeking suit Ghidoni a declaration of around each well location. parties’ rights pray- under the lease September 9, 1993, Ghidoni, through On ing permanent for a injunction. parte exAn time, attorney his at the filed motion to temporary restraining order was entered en- disqualify Wheatley Sharpe the law firm of & joining “taking from action to represented which HCSA. prevent restrict or property access the wells.” Because HCSA failed to obtain the sani- 1, 1993, On March easement, Ghidoni, Ghidoni filed coun- tary control on October terclaim, alleging breach contract HCSA, by let- notified Stone Oak and Stone Oak for noise ter, level violations and seek- their required failure to obtain the ing damages for the water removed from the paragraph easement constituted violation property after he declared the lease termi- Campbell paragraph lease and 13 of nated. was, therefore, the CSA and that the lease Nevertheless, terminated. HCSA continued 18, 1993, May On Stone Oak’s assets were operate the wells. Country Sys- sold Hill HCSA Water d/b/a (HCWS) in tems accordance with the terms 10,1993, On November trial court con- Agreement of the Asset Purchase entered separate solidated Meehan’s two into suits 28,1992. on September into Included the instant suit. assignment sale was an HCSA Stone appeal, assigned eighteen On has Campbell Oak’s interest as under lessee points of error. assignment lease. The contains an acknowl- edgment by parties of lease Disqualify The Motion to and the as well as a CSA reference “Ghidoni lease.” complains Point of error number one 18, 1993,
On June Meehan a suit disqualify filed trial court’s refusal to the law firm conveying Wheatley set aside Sharpe representing the deed her one-half & from interest in the property covered the HCSA because: *21 (a) be- Disciplinary testified that discussion Rules Pro- Ghidoni under Texas 1.09, Duffey and read fessional Conduct 1.05 and included the interrela- tween him conjunction, Wheatley Sharpe an & had Country Village tionship the Hill between to impermissible conflict of interest which lawsuit with Stone problems pending and a consent; not did Ghidoni lease.5 He further well over a water Oak (b) 1.05, duty maintain Rule to under had he during the discussions claimed that prospective to a client confidences extends his status of and Duffey to revealed Ghidoni, sought employ who client like lawsuit, including strategy in the Stone Oak prior attorney Sharpe Wheatley an & defaulting Oak for against his claims S.A., Country representation of Hill its regard to a noise level with on lease Ltd., by un- duty that breached and was took numerous docu- requirement. Ghidoni representation of ad- dertaking Ghidoni’s meeting Duffey, some ments for his versary very litigation in the about which Duffey for further review. left with which he imparted; confidences were Duffey were retained The documents (c) the that client confi- record establishes Country Hill Vil- mainly with the concerned present litigation about the were dences Ghidoni, Duffey According lage suit. imparted during the course of Ghidoni’s he retained the documents wanted to review Sharpe employ Wheatley & seeking situation with other and discuss law, thus, as attorney and a matter of both attorneys in the firm.6 “implied attorney-client for an re- the test lationship” for a “substantial and the test a letter Ghidoni received On June prior relation- relation” between client his and returning firm documents from the met; ship litigation the current are and declining to him the firm was notifying that and month, following represent him. The Ghido- (d) met, having disqualifi- tests those been Sharpe Wheatley had ni and learned Wheatley firm of & cation of the entire law on behalf of HCSA filed an intervention suit Country Sharpe representing from Hill that he suit. Ghidoni felt in the Stone Oak S.A., as a matter of Ltd. was mandated regarding exposed all of claims had law. disputes such cre- zoning lease and that disqualify hearing A on Ghidoni’smotion to advantage for HCSA once an unfair ated was held on October 1993. record repre- Sharpe their Wheatley and undertook that, reflects sometime about the middle and intervened the Stone sentation May telephoned law firm of suit. Wheatley speak to Sharpe & asked to Wheatley Seagal because he had read disqualify, hearing At on the motion to recently newspaper Wheatley had won was never argued that Ghidoni HCSA had an inverse condemnation suit. Ghidoni client, was given legal advice and was never recently zoning against Hill lost suit Coun- fee, consequently, charged and that never appeals try Village in the court was relationship es- attorney-client was never recourse, seeking legal advice about further tablished. as inverse condemnation. Ghidoni’s such Therefore, 1.06 1.09 argued, Rule HCSA Wheatley’s firm was with associate contact at such a rela- apply in the absence of did with him Duffey, arranged Mike who meet tionship. Additionally, HCSA claimed later that week. being prior and that he had majority opinion retained HCSA banc notes that the 5. The en investigation also included Ghidoni’s interest discussion a conflicts conducted attorneys changing in the Stone Oak suit. proper- the same aware that the lawsuit involved <y- Wheatley Campagnolo, a 6. Ted member of firm, pending Wheatley aware of the admitted that he was aware of the testified that he was Duffey meeting file and Ghidoni before he had examined the court’s between lawsuit because attorney represent wanted and had learned that Ghidoni’s was made not to decision Campagnolo admitted that further to withdraw. June Duffey meeting with he had discussed Ghidoni’s (8) apply Galindo, Rule 1.057 nothing Mayo City did because A from document Attorney Country disclosed Village; furtherance rendition for Hill *22 legal services. (9) charge The trial jury court’s to the case; zoning argued nothing also
HCSA that revealed (10) Ghidoni was confidential that judgment zoning The case dat- did not give specific the court more 22,1990; informa- May ed tion about matters revealed to his firm. (11) copy Duffey’s A letter to Ghidoni representa- declining dated June appeal, position
On HCSA’s remains that tion. attorney- Ghidoni failed to establish that an existed; event, relationship any client that in Duffey discussing strategy regard- denied all the documents tendered to the law firm ing the water well suit with Ghidoni. record; and, public were matters of that following excerpt representative of Duf- produce Ghidoni failed to sufficient evidence fey’s testimony hearing. at the any ground to establish for disqualification. Q. Okay. Mr. [MR. WHEATLEY] Did Ghido- 14,16. HCSA’s Br. at ni, Duffey, any during Mr. at time those In opposition Disqualify, to the Motion to meetings you any strategies discuss with inappropriately permitted the trial court Duf- pending litigátion relevant to over a wa- fey testify to meeting that his with Ghidoni ter at well situation Stone Oak? limited zoning to discussions about a A. No. [MR. DUFFEY] (Stone case the water well case lease Q. give you Did he any ever documents suit). However, Duffey admitted to hav- private that were or confidential memo- ing knowledge indirect about Ghidoni’s case any you randum of character that saw? through even before he met with Ghidoni brought A. Mr. some sort of prior attorney. conversations with Ghidoni’s talked, of documents in. As we folder Moreover, Duffey say was not able to wheth- he showed me certain documents. We er the firm had had contacts with HCSA put They copied. them a stack. were the time he met with Ghidoni. Those were the documents that I sent Duffey described the documents retained back to I Mr. Ghidoni. didn’t even re- being only as zoning related case. copies tain I documents that sent These documents were either into admitted back to Mr. Ghidoni. Those were the or adequately evidence were identified to the documents —the documents that we had as:
trial court up today here were the ones I at. looked (1) card; Ghidoni’s business Q. right. you All Let me show what (2) February A 1993 letter from the has been marked and admitted as Plain- City Ghidoni; Country Village of Hill just you tiffs Exhibit 1 and ask to scan (3) January A 1993 letter from the through that. Are those the documents Ghidoni; Texas Water Commission you that sent back Mr. Ghidoni that you (4) looked at? Unidentified notes from Bexar Coun- ty City Public Works or the of San Anto- Yes, A. sir. nio; there, Q. Anything Duffey, Mr. (5) Appeals opinion The Court of you represented was either even zoning case on September delivered privileged some confidential document 1991; pleadings? other than the letters and (6) February A 1993 letter from Ghi- No, sorry. A. I’m I No. sir. What City Country Village; doni of Hill looking I understood that was at are (7) A City March 1993 letter from the documents related to this unsuccessful Ghidoni; of Hill Country Village to zoning inverse condemnation case that 1.05, to rules 1.06 References and 1.09 are to duct. Disciplinary Texas Rules Professional Con- (a) includes anything “Confidential information’5 see if could be he wanted to “unprivi “privileged information” and both on. done “Privileged in leged client information.” any Q. Okay. Are there documents information of refers formation” you that relate to that stack see lawyer-client privi protected client problem of lease or water well breach of the Texas Rules of Rule 503 lege property he owned? at —on Rules of the Texas or of Rule 503 Evidence anything along seen A I have not principles by the Evidence or of Criminal regard. privilege governed attorney-client Duffey that he was under further testified *23 Rules of the Federal Evidence Rule represented impression the that Ghidoni Magistrates. and States Courts for United attorney zoning by lawsuit Nicholas in the information” means “Unprivileged client record, however, reflects that Milam.8 or fur relating to a client all information attorney pending Milam was Ghidoni’s client, privileged than by the other nished suit.9 Stone Oak information, during lawyer acquired a motion to as Ghido- Milam filed withdraw represen byor reason of the the course of attorney 1993 and the order ni’s on June tation of the client. July on granting request was entered (b) Except permitted paragraphs as in Plea Intervention filed 1993. HCSA’s (e) (d), by paragraphs required or as day with Ghidoni and on the same service on (e) (f), knowingly: lawyer shall not a Milam, notation that on and with the further (1)Reveal information of confidential OF service on Milam was as “ATTORNEY a client to: a client or former DEFENDANT RECORD FOR DONALD (1) in- has person that the client a (SUBJECT AND TO MOTION GHIDONI the informa- structed is not receive WITHDRAWAL).” LETTER OF tion; or denying The trial court’s order Ghidoni’s (ii) client, else, than the anyone other disqualify on October motion to entered representatives, or the client’s 1993recites: members, associates, employees or lawyer’s law firm. (2) a information of confidential Use ... the Court that Defendant’s finds disadvantage the client client to Disqualify Motion to insufficient and after consulta- unless the client consents should be DENIED. tion. It is THEREFORE ORDERED (3) information of confidential Use Donald E. Ghidoni’s Motion Defendant disadvantage former client to Disqualify in all re- is DENIED representation is former client after the spects. ... client con- unless the former concluded or confiden- consultation sents after Disciplinary Rules of Professional Texas generally tial information has become 1.09, part pertinent 111.05 and Conduct known. provide: (4) Confidentiality privileged information of of Informa- Use Rule 1.05 lawyer or advantage client for tion heretofore, majority’s Duffey Contrary en conclusion having to the banc admitted to 8. As noted support court found the evidence knowledge even trial about Ghidoni's case indirect insufficient, disqualification order through the court’s met conversa- before he with Ghidoni insufficient, which prior attorney. that the motion is recites tions with clearly is not. 22, 1993, pro Ghidoni filed his se 9. On June reprinted in Prop’l Disciplinary alleged attorney to fire Milam based motion Conduct, 11. Tex. R. app. A tit. handling 2, subtit. mat- G. incompetence in the of a collateral Code Gov’t Ann., Tex. X, (Vernon R. art. Supp.1998) [not 89CI20438 other- State ter docketed as Cause No. Bar (Tex. 9).§ wise identified]. (1) person, aof third unless the con- substantially client involves a related mat- sents after consultation. person’s ter which that interests are
materially directly adverse in- lawyer terests of another client of the or firm; lawyer’s or Rule 1.09. Conflict of Interest: Former (2) reasonably appears to be or become Client adversely lawyer’s limited or law (a) prior consent, Without a lawyer who responsibilities firm’s to another client or personally formerly represented has person to a lawyer’s third or law client a matter shall rep- not thereafter firm’s own interests. person resent another in a matter adverse (c) lawyer may represent A client to the former client: (b) circumstances described in if: (1) lawyer reasonably believes the representation of each client will not be affected; materially (2) representation if reasonable *24 (2) each or potentially affected affected probability will a involve violation of representation client consents to such after Rule 1.05. existence, nature, full disclosure of the im- (3) if it is the a substantially same or plications, possible and adverse conse- related matter. quences representation of the common (b) Except by the extent authorized involved, advantages any. the if 1.10, lawyers Rule when or are have be- (d) A lawyer represented has multiple who come members of or associated with a parties in a matter shall not thereafter firm, none them knowingly repre- shall represent any parties dispute such in a if any sent a client practicing one them among parties arising the out of the mat- prohibited alone would doing be from so ter, prior unless consent is obtained from (a). paragraph parties dispute. all such (c) lawyer When the association of with a (e) lawyer accepted If representation has terminated, lawyers firm has the who were Rule, multiple in or violation this if lawyer then associated with that shall not representation properly accepted becomes knowingly represent if lawyer a client Rule, improper under this lawyer shall whose association with that firm has termi- promptly withdraw from rep- one more prohibited doing nated would from so necessary resentations to the extent (a)(1) by paragraph representa- or if the any remaining representation not to inbe tion in reasonable probability will involve a violation of these Rules. violation of Rule 1.05. (f) lawyer prohibited If a would be Although Ghidoni does not cite to Rule conduct, engaging particular Rule from 1.06, pertinent I believe that it to his lawyer no other while a or associ- member argument provides: as well. The rule lawyer’s may engage with that ated firm Rule 1.06. Conflict that conduct. of Interest: General Rule Disciplinary Tex. R. PRof’l Conduct 1.06. (a) lawyer represent A opposing shall not parties acknowledge reported All that no parties litigation. to the same Texas case has addressed the factual circum- (b) except In other situations disqualification prelimi- stances of a based on permitted (c), by paragraph
extent nary law- an attorney consultation with 12forthe yer represent person shall not if purpose him retaining unique under the representation person: of that facts before the court.13 majority Perhaps en majority implication, 12. The banc does agrees not address this with attorney-client preliminary inquiry, glosses this dissent issue. but instead over to inquiry disqualification hearing. the next under a Montgomery, 13. But see Samuels v. 337, (Tex.App. 339-40 [14th Dist.] — Houston University in the evic- Nevertheless, for New York parties us to counsel both direct motion for dis- Id. filed a holdings jurisdictions in other tion suit. Simon following during the second qualification, alleging the issue: squarely have addressed which Co., attorney, had im- he Lavery Audi Kearns v. Fred Porsche conversation (Fed.Cir.1984); 600, Westing confidential information parted important F.2d However, Corp., the hear- Corp. tenancy. v. Kerr-McGee Id. at house Electric about his (7th Cir.1978); divulge information ing, 580 F.2d 1319 & n. Simon would Estate, Cal.App.2d Dupont’s attorney. re Id. imparted he had 288-290, 140 Ct.App. disqualifi- P.2d Dist. court, overruling 873 Cal. 662. The (1943); Leisman, motion, Leisman 208 A.D.2d grant held that could cation (N.Y.App.Div.1994); 617 N.Y.S.2d mere conclusion motion based on Simon’s Simon, University v. 130 Misc.2d significant New York were the matters discussed 1019,498 (N.Y.City Civ. N.Y.S.2d should at least further held that Simon Ct.1985); Quantum Bridge Products nature of the information stated the have 88-C-10734, Corp., No. 1990 WL Chemical Id. at 662.15 revealed. (N.D.Ill. 1990) July (unpubl for the foregoing basis Aside from the ished).14 following I think holding, court’s ultimate recognize that Oak and HCSA attention: language opinion merits University v. underlying in New York facts disqualifying one’s general principle Simon, parallel supra, closely the facts representing an ad- attorney from former uphold urge ease and this court to instant versary to situations where is not limited disqualify for the same trial court’s refusal prior representation was a tradition- given reasons the New York Court *25 Although attorney-client relationship. al addressing the merits of that motion. Re- 4 of the Code Professional Canon Simon, lawyer should sponsibility declares that “a disqualify
In
the motion to
and secrets of
telephone
preserve the confidences
upon
having had two
based
Simon
client,”
4-1 states
attorney
pur-
Ethical Consideration
conversations with an
for the
fiduciary relationship exist-
deciding
him to de-
that “both the
pose of
whether to hire
the
lawyer and client and
by
ing
York Uni-
between
against
fend
an eviction
New
legal
re-
Simon,
functioning
system
the
versity.
proper
600
Simon,
(emphasis
tation client but also Tex. R. Prof’l Conduct 1.05 cmt. early legal tial clients to seek assistance.
601 v. Can Co. Citrus relationship); American by a client "with nary prospective consultation Cir.1971). (5th Co., 1129 436 F.2d lawyer although Feed to retention a view result); Wilson does not employment actual HCSA Stone Oak and agree I with do Corp. Armco Steel v. P. Abraham Constr. may upon a not be based disqualification that (attor (5th Cir.1977) Corp., 559 F.2d 253 an with attor preliminary consultation single relationship ney-client between attor existed retaining him and ney purpose of for the conspiracy in a ney codefendant and each relationship is neces attorney-client a formal necessity each consulting case due to under Rules 1.05 sary to a former client other); Processing Validi In re Yarn Patent Supreme recognized our 1.09. As (5th Cir.l976)(attor- ty Litig., 530 F.2d Godbey, Enter.v. in National Medical Court relationship by imputation); ney-client arose (Tex.1996), 123,132 “The difficul Inc., Williamsburg Museum v. Historic Wax confidences, and the ty proving a misuse of (D.D.C. Inc., Figures, F.Supp. occur, may is no less anxiety a misuse 1980) 4-1 Ethical (citing from Consideration upon the The doubt cast for the non-client. 1 to to comment language almost identical same legal profession is the integrity of the Rules; E.F. Texas’s Bar Rule 1.05 of State I would hold situation.” either Brown, 371, 388 F.Supp. Hutton & Co. enough 1.05 broad language of Rule (relation (S.D.Tex.1969)) attorney and state privilege preliminary extend fee dependent payment client not attorney good faith to an made in ments contract); of a formal upon nor the execution seeking employ in the course of while Leisman, (preliminary N.Y.S.2d at 807 Moreover, the inter ment as an advocate. attorney by husband with wife’s consultation pretation placed Oak and HCSA regarding prior action between husband purpose contrary obvious runs required in a and former wife divorce case salutary nullifies the policy of the rule and Sheldon, Taylor disqualification); Ohio persons protection to intended: effect (1961) (disclo 173 N.E.2d St. attorneys. See Tex. DISCIPLINARY consulting attorney’s with a view enlist sures made ¶ 13; see also preamble R. PROf’l Conduct privileged). services are Godbey, 924 Enter. v. Medical National 131-132. S.W.2d at party seeking disqualification has A fiduciary rela- that a Having established establishing at the outset that burden satisfy the attor- tionship sufficient to relationship, existed attorney-client or some other prelimi- ney-client requirement virtue implied relationship giving rise to an fiducia by prospective client with Implement ry obligation nary consultation arose. Rio Hondo (Tex. attorney, it is Euresti, to retention view Co. v. universally to next turn to the proceed appropriate App. Corpus orig. Christi — Brown, mov- accepted disqualification. The *27 Corp. rule on ing); Occidental Chemical v. during that 27, ing party must next show (Tex.App —Corpus 877 S.W.2d 30-32 . attorney-client relationship, 1994, orig. proceeding), vacated sub existence Christi duration], regard to its without Appeals, this case [in v. Thirteenth Court nom. Grant of so (Tex.1994); that are matters were involved factual 888 466 see also Govern S.W.2d litigation17 Inc., Indus., pending in the to the facts 569 F.2d related ment India v. Cook of Cir.1978) confi- (involvement now exists that 737, (2d genuine threat such that that 739 attorney former will to his discovery dences revealed of confidential information adversary. present See divulged be Processing Patent Validi likely); In re Yarn Coker, (duties 765 Nat’l Bank loyalty Texas ty Litig., of and NCNB 530 F.2d 90 (Tex.1989).18 398, Sustaining attorney-client confidentiality only arise from S.W.2d application Although of DR relationship, involved the speaks Coker of substantial 17. The test 101(B) Code of Professional Re- of the Texas identity, legal factual elements of substantial 4— 1, 1990), (repealed pend- sponsibility eff. Jan. prior representation and the between the Marsh, engrafted holding essentially into in Coker ing litigation. Co. v. See Home Ins. appli- 1990, requiring orig. language and 1.09 (Tex.App. in Rules 1.06 Paso —El "substantially test. See Tex. related" cation of a proceeding). this requires burden specific evidence of Q. sim- you spend How much time did capable being ilarities Duffey? recited the dis- Mr. qualification order. Id. at 400. If this bur- say IA. would an hour about and a met, den can moving party is entitled half to two hours. presumption ato conclusive that confidences Q. you Did leave the documents with imparted and secrets were to the former him? attorney. Id. A He selected the documents that he The factual matters need be “relevant” was interested in. He didn’t all take evidentiary in the sense “substantially to be just them. very portion He took a small related.” They “only need be akin to the them and said that he wanted discuss present way action in persons reasonable attorneys those with the other in the office. important
would understand as
to the issues
Q.
you
Did
discuss with
Duffey
Mr.
Corrugated
involved.” In re
Anti
Container
your
whether or not
conversation with him
(5th
Litig.,
trust
659 F.2d
Cir.
privileged
would be
information?
1981),
A
grounds,
Unit
overruled on other
A.
I don’t think I
specifically
said
that.
(5th
Paluk,
Cir.1984).
Gibbs v.
Therefore, if proves the movant a substantial relationship representa between the two
tions, establishes, law, he as a matter of appearance of impropriety exists. See Honor, MR. WHEATLEY: Your I Coker, 400; 765 S.W.2d at see J.K. also object would he unless asks what the infor- Wadley Susie L. Research Inst. and Blood mation was. stillWe haven’t found out Morris, (Tex. Bank v. what the information was. App. orig. proceeding). The — Dallas objection. THE COURT: Sustain the trial court should disqualify then counsel Walks) Q. Ghidoni, (By Mr. Mr. what representation pending from further you Duffey information did reveal to Mr. litigation. Exploration See HECI v.Co. Cla you felt was confidential essential Co., jon Gas (Tex.App.— your case? denied); Austin writ Howard Texas Serv., I Dep’t gave A Human him —some the documents writ). think, kept, that he I (Tex.App. Corpus was the —I Christi had some — letters from the Texas Water Commission following excerpts representative are me, City some notes on—from the proof: of Ghidoni’s offer County San Antonio and also Bexar City Country relation to Village. Hill Q. (By Ghidoni, attorney) Movant’s Mr. you what did Duffey? discuss with Mr. I him agreement showed that was so much morning. talked about That A. I discussed the inverse condemna- was in October of 1983. We talked about *28 tion I that was in interested with Hill I where was with the —with the Stone Oak Country Village. I was—also discussed particular point case at that in time. And interrelationship with him the between the probably let’s see. The whole folder was Village Stone suit Hill Country Oak and about two and a half inches thick of infor- they and I how related. showed him docu- mation, only kept quarter he but about a ments, including agreement that has it, maybe inch of a half an inch. many been mentioned so times this morn- ing, I strategy Q. you any and discussed the overall your specific Did discuss both cases with him. you against claims that had Oak? Stone Disciplinary 1.06(b)(1), 1.09(a)(3). R. Conduct Prof’l totally words, both cases are virtually In other everything I out
A. Yes.
laid
very
It
have been
nice
would
Oak
interrelated.
happening
that
with the Stone
was
attorney, and I was
to have one
to be able
at that time.
case
quality of Nicholas
strongly suspect
controversy
Q.
you
Did
discuss the
present
attorney.
I
Milam as an
did
the noise levels?
about
particular case at
taking over that
them
Yes,
paragraph 9C of
A.
and also about
they
if
I
to see
was interested
the time.
compromise
agreement
the default
taking
over the
interested
would be
agreement.
settlement
condemnation suit....
inverse
Q.
you
your beliefs as
Did
discuss then
you
why
felt that
was in
Stone Oak
default?
Duffey
Q.
you
with Mr.
Did
discuss
both
A. Yes. And I also discussed how
you
your
felt the
any of
theories about how
interrelated,
agree-
how the
cases were
case should be handled?
that Stone Oak was
ment was—that stated
What case?
MR. WHEATLEY:
Country Village harm-
to hold Hill
going
Well,
just—
I was
A.
we
any
from
actions me. And
less
finding
agree-
other
interested
out what
sorry,
I’m
Your
WHEATLEY:
MR.
at that time. And it—
ments were made
Honor.
appeared
all the information
and it
that
The ease with Stone
MR. WALLIS:
meetings
from all the
between Stone
Oak.
Country Village
disappeared
had
and Hill
in—
Q. Yes. And I was also interested
May of
prior to
1985.
interrelationship
between
because
Q.
you
Did
discuss Stone Oak’s claim
Oak,
Country
I ad-
Village
Hill
and Stone
against you?
strategy
my
on both cases.
vised them of
A Yes.
that
testi-
Stone Oak and HCSA contend
Q.
you
Specifically, what did
discuss?
merely
shows that he
mony
firm in a
sought representation from the
point
A I
that
I had
discussed the
case.19
zoning
the Stone Oak
case and
everything
up
that led
canceled
in the course
agrees but states that
agreement
cancellation of the lease
and the
representation
zoning
case
seeking
compromise
agreement with
settlement
applicable to
divulged
he
confidential matters
Oak, and,
know,
you
testing
all the
Stone
fact, Wheatley’s
Oak ease.
Stone
that had been done from the different au-
associate, Campagnolo,
aware of the na-
was
companies,
testing
that
dio
from con-
pending
ture of
lawsuit
supposed
to have been done
Stone Oak.
investigation and in con-
ducting
conflicts
agreement
And that within the
between
court’s file of Ghidoni’s lawsuit.
sulting the
Oak,
Village
Country
Hill
there
Stone
majority
recognizes
also
The new
meeting
where Stone Oak was re-
attorneys was also dis-
changing
matter
Country Village
Hill
three
quired
do
cussed.
tests,
was,
believe,
I
noise levels
argue
they
HCSA also
agreement,
And
Stone Oak and
1985.
also
representative testimony of
foregoing
Ghido-
agreed
had
to—that the noise levels would
conclusory
nothing more than
neighbor-
ni constitutes
not create
nuisance for
regarding the substance
statements
hood.
Disciplinary
testimony
"generally
R.
Duffey’s
generally de
them
known.”
in rebuttal
Tex.
8;
Indus.,
Conduct 1.05(b)(3)
Stone Oak case but did
&
nied
mention of the
cmt.
Emle
Prof’l
deny
Patentex, Inc.,
(2d
or discussion
not otherwise
consultation
478 F.2d
Inc. v.
so,
zoning
Oak and
about the
case. Even
Cir.1973);
Corp., 428
Co. v. Valeron
General Elec.
position
regard to
matters rele
HCSA’s
(E.D.Mich.1977);
F.Supp.
Fleischer v.
*29
zoning
to be that all the
vant to the
case seems
Inc.,
(S.D.N.Y.1958),
F.Supp.
163
551
A.A.P.
public
by
provided Ghidoni were
rec
documents
nom.,
Phillips,
264
appeal
'd sub
Fleischer
dism
the fact that some of the documents
ords. But
Cir.1959).
(2d
F.2d 515
necessarily
may
public
make
records does not
be
discussions
Duffey
between
and Ghidoni.
would
during
confidences
be disclosed
the
Simon,
See
(analyzed
N.Y.S.2d at 662
at
rebutting
presumption
by
course
pp.
opinion).
14-16 of
I
agree.
do not
attorney,
presumption
or if the
was consid-
rebutted,
might again
ered
the client
testimony proffered by
The
Ghidoni was
put
position
having
into the
anomalous
sufficiently specific,
only
identify
to
factu
to show what
he
confidences
entrusted to
al similarities
between
consultation and
his
attorney
prevent
order
con-
to
those
litigation
capable
being
at hand
recited
being
fidences from
revealed.
order,
in a disqualification
but
establish
preponderance
of the
Id.;
Hutton,
evidence that
E.F.
F.Supp.
see
at 395
subject matter of the consultation included
(attorney cannot defeat
disqualify
motion to
very
matters
litigation
involved
by showing that
he received
confidential
disqualification
which the
sought.
was
Once
information from the former client. To
sodo
proffered
establishing
his evidence
engender
feeling
would
in the client that
relationship,
substantial
Stone Oak and
attorney
escaped
technicality);
has
on a
prohibited
inviting
HCSA were
from
the trial
Note,
Dockery,
see also Harva Ruth
Motions
engage
court
credibility
in a
assessment
Disquality
Representing
Counsel
an In-
putting
general
their
against
denial
Client,
terest
to a
Adverse
Former
57 Tex. L.
proof.
Marsh,
(1979).
tender of
Home Ins.
v.Co.
Rev. Cf.
(Tex.App.
Paso
— El
required
Ghidoni was not
to reveal the
1990, original proceeding)
[leave denied]. very
sought
protect.
confidences he
See
point
This
is
majority
where the en banc
Marsh,
Home Ins.
v.Co.
former there ais substantial rela- tionship between the matters involved specifics” MR. WHEATLEY: “Discuss representations, two a presumption that con- vague too for me to cross-examine this given attorney fidences were on. witness susceptible former client is not rebuttal
proof. id. at See 1347. rebuttable, If presumption were Q. you strategy Did discuss the
is, if attorney attempt prove could ease? that he did not recall disclosure of MR. Again, WHEATLEY: I cannot cross- information, confidential or that no confi- examine it. disclosed, dential information was fact purpose keep- this could also defeat the I do not believe the circumstances ing the clients confidential. The secrets instant case are much different from those Campagnolo pending spoken Duffey. aware law- had about property suit involved the same of which Ghidoni *30 has devi ticularly the trial court Clajon true where Exploration v. Gas Co. Co. HECI hearing require mandated ated from the which occurred conduct wherein offensive parties in both the ments. representation is Exploration, proceeding. same See HECI us, on the record before I hold that would 628; at see also Petroleum 843 S.W.2d 1.05, 1.06 in Rules upon language based Wholesale, Marshall, v. 751 S.W.2d Inc. standard, 1.09, it was the Coker upon and and proceed orig. (Tex.App. — Dallas trial court to for the of discretion an abuse (offensive attor occurred where ing) conduct op- (1) credibility engage in a assessment party in representing one ney with firm (2) that Ghi- conclude posing testimonies and represent pending to firm case transferred prove existence of a required to doni myself party). I concern
ing other do not relationship, prior attorney-client traditional impu disqualification and the with vicarious (3) matters involved the factual and knowledge of his attorney’s tation of the pend- to the facts were so related to his associates former clients’ confidences genuine threat litigation that created a ing undisputed it is because the instant case Wheatley to the & revealed that confidences Duffey and un consulted with disclosed divulged to would Sharpe law firm be regarding Ghidoni disclosed firm associates I would sustain Ghidoni’s and HCSA. It clear that seeking representation. is also one. point of error number relationship between Ghidoni fiduciary first my approach to Ghidoni’s In view of circumstances and the law firm arose out points I point of would address error representation by which culminated through fourteen com- two error numbers litiga opposing parties to the same firm Instead, I error. plaining of trial court proof consent. This tion without Ghidoni’s numbers pass points of error would on 1.06(a), of Rules shows clear violations relating ap- through eighteen fifteen 1.06(b)(1) 1.09(2)(3), (2), 1.09(a)(2), pellee Meehan. 1.05(b)(3). 1.05(b)(l)(ii), pro Under the (e) 1.06(d), (f), none of the visions of Rule Meehan The Intervenor permitted contin of the firm are members complains the trial Point of error fifteen party. representation opposing ue Motion Sever court’s denial on ruling of a The standard of review dispute with claims from the lease Meehan’s disqualify question is limited motion to in- Meehan’s HCSA because Stone Oak and trial its discre- whether the court abused was, allegedly, improper.21 tervention Coker, 400; see also tion. See that the trial alleges error sixteen Point of Metropolitan Syntek Fin. Ins. Co. Life entering judgment rescind- court erred in (Tex.1994). Corp., 881 sought warranty deed ing special is for abuse of discretion whether test Meehan is said set Meehan because aside without reference to trial court acted the un- the benefits under to have retained principles, or in an guiding rules or acted derlying contract. Syntek arbitrary manner. or unreasonable error, claims error seventeen Corp., at 321. Point of Fin. alternative, court en- the trial because where shown A clear abuse discretion nothing that Ghidoni take judgment tered attorney disqualify an refuses to the court evidentiary hear- post-trial him a and denied subject it is although self-evident him would restore ing what sum to establish representations are sub of the two matters spe- quo after rescission to the status Coman, stantially related. See Gleason warranty deed. cial (Tex.App. — Houston n.r.e.) that the trial claims (citing eighteen re Point of error to In ref 'd [14th Dist.] determining entering an order Litig., court erred Corrugated Container Antitrust Cir.1981)). payments the re- (5th of lease because 1341, 1346 par a method This F.2d correctly position. addressed I the matter was believe reurge dis- original the same submission *31 (3) special warranty was, scission of the authorize, deed an affirmation she not did allegedly, erroneous. ratify consent to or alleged termi- (4) lease, alternative, of nation and original 1992, In the suit in filed December adoption, own, as her of Ghidoni’s causes Oak injunctive Stone sued Ghidoni for relief of pleadings against action and Stone and a rights parties declaration of of the and HCSA. Ghidoni did move strike under lease and the In CSA. plea the amended in intervention. 1993, March against Ghidoni counterclaimed Oak for of 1994, Stone breach April lease and CSA. In ten months after Meehan 1993, May Stone Oak’s assets were sold first intervened and five months after consol- HCSA, July idation, in and HCSA in intervened Ghidoni filed his motion for sever- mirroring ance, suit request separate Oak’s for relief. trials and abatement as Following hearing, intervenor. a the motion In June Meehan in intervened April was overruled on 1994. "Whenthe lawsuit, citing her one-half interest August 15,1994, cause was called for trial on disputed lease awarded to her a divorce no further relief on the motion sought. complaining decree and of Stone Oak’s fail- pay portion ure to her of payments. appeal, lease On challenges Ghidoni Meehan’s Meehan further terminating agree- right denied or to intervene allegedly because she did ing Oak, to terminate the justiciable lease with Stone brief, not have a interest. In his alternatively but sought to recover one half why justici- Ghidoni asserts various a reasons any damages recovered Ghidoni should able interest was not shown Meehan and the lease found be to have been portions terminated. us testimony directs at trial Ghidoni did not move to plea strike the and some the exhibits admitted therein. intervention. challenges urged appeal Some now on are reflected in the motion to sever filed In November Meehan moved to con- were, fact, presented Ghidoni and previously solidate with the instant suit two hearing April trial court 1994. seeking filed lawsuits to set aside a deed for appeal. Some are raised the first time on transferring which she executed her interest property in the real and leasehold estate and Subsequent to the overruling Ghidoni’s seeking declaratory sever, relief. The 2, 1994, consolidation motion to on June Ghidoni granted,22 and Meehan then amended filed his Fourth Original Amended Answer plea her in intervention to which, time, assert the claims and Counterclaim23 for the first previously made in the other sought declaratory causes in one judgment regarding relief single pleading. pleading The amended in- rights lease, under the for and the first (1) (2) deed, cluded an action to set aside a sought an time against also affirmative relief any offer to restore benefits she attorney by way received Meehan and her of a coun subject to an pro- offset for lease rental requesting and terclaim sanctions under Rule entitled, ceeds to which she would have been Texas Rules of Civil Procedure.24 In his granting pose Attorneys parties 22. The order consolidation recites that or harassment. who prejudice is bring "without to Donald experiment [sic] shall a fictitious suit as an right court, file a motion for severance.” get opinion an or shall who file pleading fictitious cause for such 23. The same claims were carried forward in Ghi- purpose, pleading or shall make statements in Original doni’s Fifth Amended Answer and Coun- false, they groundless which know to be and July terclaim filed on purpose securing delay for the of the trial cause, guilty contempt. shall be held of a provides: Signing 24. Rule 13 Rule 13. Effect of pleading, paper signed If a or motion other Pleadings, Papers; Motions and Other Sanc- rule, court, upon in violation of this motion tions initiative, upon or its own after and notice signatures hearing, impose appropriate attorneys parties shall or consti- sanction 215-2b, they upon person tute a certificate them available under Rule have read motion, it, pleading, represented paper; signed party, who other that to or both. information, presume knowledge, pleadings, the best of their Courts shall mo- tions, inquiry papers good belief formed after reasonable in- and other are filed in faith. groundless brought may imposed strument bad No sanctions under this rule cause, groundless brought pur- except good faith or for particulars of which (Tex.Civ. Inc., Christ, counterclaim, damages of sought n.r.e.). $100,000.00 App. Tyler writ ref'd attorneys in reasonable fees — *32 in the of Meehan’s claims.25 curred defense a discretion The trial court has wide sufficiency party’s opposing of an judging the Procedure, 60, of Rule Texas Rules Civil motion to the intervention. See Galveston permits any party to in an action intervene & Ass’n v. Bay Preservation Conservation obtaining approval the trial court’s without Bd., 634, 641 Air Control 586 S.W.2d Texas subject being out for sufficient to stricken n.r.e.). 1979,writ ref'd (Tex.Civ.App. party. — Austin opposite on the motion of the cause However, subject is to review that discretion 60; v. Civ. P. see also Helton See Tex.R. Moody, 411 at 589. See S.W.2d for abuse. Kimbell, 675, (Tex.App.— 621 S.W.2d 678 writ). 1981, Thus, any party no Fort Worth he not file a mo Ghidoni admits that did subject Meehan, of an in the matter a having interest but strike the intervention tion to litigation parties severance, pending separate between other urges for that his motion obtaining permitted essentially to intervene without asked for trials abatement approval purpose outset, as trial court’s for the we that same relief. At the note interest, protecting subject serting and to grant of a motion strike intervention dismissal, being although cause on the order to stricken out for sufficient results in a Helton, party. may judgment. be a final See opposite itself not motion Distance, 678; Bissett, Hughes, v. Long 402 Inc. 621 v. Metromedia S.W.2d Pfeiffer 494, 938, (Tex.App.—San to (Tex.Civ.App. 939 Antonio 810 S.W.2d An — San denied). 1991, Conversely, 1966, writ); writ sever Corp. nio Inter-Continental v. operate as a dismissal of 578, ance does not (Tex.Civ.App.— Moody, 411 S.W.2d Moore, 14, suit, 1966). 740 S.W.2d Harris a The intervenor must have Houston proceeding), orig. (Tex.App Paso lawsuit, justiciable legal in the it a interest . —El into two or more rather divides a lawsuit Mendez v. equitable one or an one. See causes, of which separate independent each Brewer, (Tex.1982). It 626 S.W.2d judgment separate which is can lead to that the essential the intervention final, appealable, Hall v. enforceable and necessary party pending applicant be a to the (Tex. Austin, 836, 837-38 City 450 S.W.2d suit; merely proper if it is sufficient he is 1970). party, participation multiplicity since prevented. Jones v. of suits will be See to strike sought a motion The relief 238, 240 English, (Tex.Civ.App.— 235 S.W.2d severance, sep for intervention and a motion dism’d). San Antonio writ clearly dif trials and abatements are arate distinguishable. the absence ferent and pleaded by the Where the cause of action par urged one of the a motion to strike face, intervenor, although on its good does ties, court was not authorized the trial particular not authorize intervention Guaranty Fed. the intervention. See strike suit, proper, to strike is and if the a motion Co., Operating v. Horseshoe Bank Sav. sustained, the intervention will be motion is (Tex.1990); Schwartz v. Ta prejudice. DeCato v. dismissed without Cf. (Tex.App heny, . —Hous Inc., Constr., Krebs denied). (14th writ Dist.] ton n.r.e.). (Tex.Civ.App writ ref'd . —Waco in- complain improper opposing party may if fails to move to But intervention, alleged error in party guise waives tervention under strike denying his motion for There- right complain. Delley See severance. Unknown reversal, the fore, Brotherly Sisterly in order be entitled & Club Stockholders order. TexR. Civ. P. must be stated in the sanction purposes of this rule means "Groundless” for no basis in law or fact and not warranted before us does not disclose 25. The record extension, argument modifi- good faith for the urged sought the trial was ever before the relief cation, existing general or law. A and, reversal of presumably, was abandoned court of this does not constitute violation denial waived. damages requested amount does rule. The a violation of this rule. not constitute error sever, and, therefore, claimed must be on an based abuse of point would overrule by the overruling discretion trial court in of error fifteen. Ghidoni’s motion for severance because Ghi- point Ghidoni’s sixteenth of error com- right
doni has waived urge a motion to plains was, law, that Meehan aas matter of strike. not entitled to equitable remedy of re- assumption
“The law forbids the of an scission because she retained the benefits appeal giving attitude inconsistent with that tak- the transaction rise execution of trial, appeal litigants warranty sought en at the and on are deed she to set aside. *33 theory upon complains restricted to the which the cause Point error of seventeen prosecuted was or grant post-trial defended the court trial court’s refusal to a evi- below.” Boatner v. Providence-Washington dentiary hearing to establish the amount nec- Co., 186, (Tex. Ins. 241 S.W. essary Comm’n to restore after of Ghidoni rescission App.1922). warranty eighteen Point of deed. error complains of entering the trial court’s For proper, severance to be “there must determining pay- order the method of lease be more than one cause of action involved ments. controversy, the severed cause must be one proper subject that would be the of a argues judg- Ghidoni that the trial court’s independently asserted, lawsuit if and the ment allows special Meehan to rescind cause of action severed must not be so inter warranty conveying deed interest in her lots 183, woven as to involve 185B, the same identical facts 184B and that it her restores co- nor, instances, and issues tenancy certain relate to property and allows her subject the same matter as the cause from take with her all the that benefits she ob- Norman, Hayes which it is severed.” v. conveyance, tained in consideration of the 477, (Tex.Civ.App. Corpus S.W.2d including paid by monies to Meehan Ghidoni — n.r.e.).26 Christi writ refd Whether obligations or debts of Meehan assumed granted severance Ghidoni, should be by within in addition to the benefit of court, sound of discretion the trial and its improvements property made and mo- order will only be disturbed on a showing of expended by nies managing Ghidoni as the Hamilton, abuse. See v. Hamilton 154 Tex. preserve proper- co-tenant to the value of the 511, 280 (1955). ty. argues Ghidoni further that Meehan is legally responsible for expenditures made examining body of Ghidoni’sbrief during years him the two and one half error, support point of his of I believe that he since the execution of the deed and that he right depend has made his upon severance is, law, as a of matter entitled to reimburse- right his to strike I intervention. would not Moreover, of expenses. ment these Ghidoni presented rule on an issue not to the trial states that the mere offer to tender court. paid, consideration as made Meehan’s Nevertheless, under the of counsel hearing state the record at the on motion to enter court, before this voluntarily judgment, comply waived does not with the doctrine any right complain required restitution equitable the trial court’s for the rem- edy Finally, refusal to dismiss complains Meehan’s intervention and rescission. urge severance filing requiring pay counterclaim trial court’s order him to against proceeds seeking declaratory Meehan and lease over Meehan and her attor- CSA, rights ney. relief of his under lease and
the identical relief sought by Meehan and the appeared The record reflects that Ghidoni appellees. other asking before the trial court judg- that the
I no part find abuse discretion on the ment include restoration of due him monies the trial court in overruling following Ghidoni’s motion cancellation the deed. The Co., 26. See Lasater v. Franklin Ins. claims of intervenors where related to claims Life (Tex.Civ.App. subject Paso same matter as the cause from which it —El writ) (error severed). to sever the crossclaim and counter- you very much. THE Thank COURT: recognized entitlement trial court stated: rule, party seeking can general As a “Well, you right to this ex- think are I must restore of an instrument cellation tent, to—since he be entitled that would party prea- the other offer to restore cancelled, enti- would be he the deed was precedent. position as condition greement money recoup (Tex. the amount tled to Cherry, 726 S.W.2d v. See Johnson question about There is no given. City San 1987); City New Braunfels ...” part of this deal (Tex.Civ. that. But Antonio, n.r.e.). par A ref App. writ d place: took exchange then following — Austin repudiate an permitted to ty not be will might suggest I this THE COURT: time, and, retain the the same instrument litigation over avoid future in order to Arnold thereunder. benefits received Cf. you arrangements thing, make (Tex.Civ. Wheeler, 368, 370 about the reimbursement. n.r.e.). ref'd App. Antonio writ — San (ATTORNEY MEEHAN) MR. FOR results cancellation of transaction Where *34 to his counsel intend to talk ROSS: We plaintiff, the property to the return agree what the reim- and if we can see equi for plaintiff must make reimbursement arrangements. is and make bursement placing as the arising out of such matters ties Yeah, that would save THE COURT: property, improvements on the of valuable attorneys fees. (Tex. Martinez, v. Wilson Absolutely. MR. ROSS: 1934, writ), no as well as Civ.App Paso . —El And, Ghidoni, Mr. THE COURT: Dean, taxes, etc., v. Dean repairs, for you for too. writ). no (Tex.Civ.App.1919, S.W. Absolutely, don’t and we MR. ROSS: must offer restoration be The tender some deny going there is be that kept dispensed is not good and continued and And we reimbursement. will— the suit. See Davis by the institution of (ATTORNEY GHIDONI) MS. FOR (Tex.Civ. Burkholder, 1101, 1103 v. 218 S.W. we’re afraid WILLIAMSON: That’s what writ). no for But App. — Amarillo will, know, of, Honor, if you Your required one of restoration is mal tender now, it get it would— we don’t resolved fact, re equity will seeking cancellation. see, Well, dear, I can’t THE COURT: condition be made as a quire an offer to part it here because it has no resolve failed pleadings if the have precedent, even urge pro I Mr. Ross to take care so, here. can cancellation at time do Otherwise, wants matter. unless he proper parties if court has the nounced lawsuit, he need get adjust in a doesn’t power to of its it as an exercise before lawsuit, suggest just Johnson, 8; so I would another rights. See their — suggestion. 10 Tex. Cancellation generally see JuR. 3d, (1980), § 42 at 436-37. understand, Judge, I MR. ROSS: Reformation if can work out doing we intend on that we court has that the trial suggests Meehan think, know, agree you on what what we con already the situation and has addressed Ghidoni, briefly, Nancy in- Just due. She required. is not restoration cluded that tervenor, judg- this final we have reviewed support calculations numerous offers objections it. We ment. have no We conclusion, including other offsets and this sign judgment urge the Court to would allegedly court mea which the considerations as— position Meehan’s The record belies sured. given counsel THE You have COURT: court dele the trial it is clear that because copy of this? procedures outside responsibility to gated its questions Yes, despite the fact judgment Your Hon- MR. CAMPAGNOLO: rentals, offsets,27credits, expenditures, or, to all counsel. necessary amount could Barclay, Tex.Civ.App. because restoration 27. See The Oriental v. (1897) (no tender 41 S.W. fraud28 and other factors 29are addressed to quest trial court’s discretion its to do Texas, Appellant, STATE Osborne, fairness. See Warren (Tex.Civ.App. — Texarkana (cast-iron w.o.m.) writ ref'd do RHODES, Appellee. rules Stella
govern equity courts of require which No. 04-97-00183-CR. flexibility adapt pre circumstances to gross wrongs). vent Texas, Appeals Court of San Antonio. Therefore, I would sustain Ghidoni’s six- points teenth and seventeenth of error be- Jan. cause the trial court properly failed to ad- Opinion Supplementing Decision on I, however, dress the reimbursement issue. 20, 1998. of Rehearing May Denial would not eighteenth address his point error because it has not been briefed
compliance briefing with the rules. There is
but one purporting sentence complain
about trial court argument error. Neither
nor provided authorities have been this court proper
for a addressing of the contention.
Moreover, complained the order about re- hearing
cites that a was held and court
has not been report- favored with the court transcription
er’s hearing. For all reasons, foregoing I would hold that the
point of error has been waived.
CONCLUSION portion
The judgment of the trial
court in favor of Stone Oak and HCSA
against Ghidoni should reversed and that
cause remanded for a new trial. portion judgment in favor of against
Meehan Ghidoni should be
The judgment of the trial court should be in part
affirmed and reversed and remanded
in part. majority Because the does other-
wise, I respectfully my register dissent. Brown, damages deducted from amount of found 29. See Hooks v. jury). n.r.e.)(de (Tex.Civ.App. writ ref'd — Austin eq fendant not entitled to restoration where the Davis, (Tex.Civ.
28. See Oar v.
135 S.W.
favor).
uities are not in his
App. 1911),
105 Tex.