*1 45 exception. Tubing, Reeled Inc. v. Chad M/V (5th Cir.1986). G, 1026, 794 F.2d Pre
judgment interest should be in ad awarded
miralty penalty, cases not as a but as com
pensation for the use funds to which rightfully Ceja
claimant was entitled. v. Hooks, Inc., (5th 1191,
Mike 690 F.2d Cir.1982). prejudgment We hold that inter usually type
est is available in this of case.
The second issue is whether right prejudgment waived the in
Waiters presenting prejudg
terest the issue of jury.
ment interest to the maritime Under
law, prejudgment in the decision award solely province
terest within the Lines,
jury. Carey v. Bahama Cruise (1st Cir.1988). 201, F.2d 208 n. 6 When the prejudgment
issue of interest is not submit jury, to the
ted district court has Morales,
authority to award such interest. Carey,
regarding prejudgment precluded receiving
found she was from it. Morales,
vacated the award of interest to
a seaman who was awarded maintenance and
cure benefits because no issue was submitted jury.
to the
We sustain six error five and prejudg-
reform the to eliminate interest, reformed, and as affirm. KLEIN, Appellant,
Edward J.
REYNOLDS, CUNNINGHAM, CORDELL,
PETERSON &
Appellee.
No. 01-93-00528-CV. Texas, (1st Dist.). Houston
Aug. 1995. Overruling Rehearing
Opinion
Nov. *2 Houston, Neely, Appellant.
George R. for O’Brien, Houston, Appellee. Mike C.J., OLIVER-PARROTT, Before MIRABEL, JJ. HUTSON-DUNN OPINION ON MOTION FOR REHEARING OLIVER-PARROTT, Chief Justice. rehearing, grant appellee’s motion opinion January original withdraw our opinion place. in its and substitute this summary judg- appeal This is an from firm in a granted in favor of the law legal malpractice ease. The will be affirmed. firm against the law
Appellant brought suit Reynolds, Cunningham, Peterson & Cor- (Reynolds) negligence, breach of con- dell tract, fiduciary duty, violat- violating Deceptive Practices Act ing the Trade (DTPA). represent retained Court of
him after the Fourteenth of the trial had affirmed Coming litigation against appellant. into timely motion stage, at this filed asserting rehearing on behalf of error, containing argu- but points of in Millhouse procedural rules. As the court ment or The motion for noted, requires of the trial since this a review overruled. in order to determine record and the briefs application then filed an for writ the trial court committed reversible whether Supreme con- of error with the Texas judge clearly position” “a a better *3 taining argument and six of error with Millhouse, jury. this than is a to do application The of error writ Therefore, at where the issue was denied. hinges possible the outcome of causation on Appellant Reynolds alleging ap- sued the question of causation is to be appeal, an the peal inadequate was lost to its motion for due law. by question court as a resolved the rehearing before the Fourteenth Court Id. Appeals. Reynolds moved for appeal of turn our attention to the We now judgment, asserting appellant had not the sole underlying the case. was established causation as a matter of law. shareholder, director, executive of- and chief Reynolds’ granted The trial court Inc., Exchange, the a firearms ficer of Gun to as Ex- inventory of the Gun dealership. The action, concluding causes of as a matter of security change pledged as on a had been present argument law that the failure to $622,500 Ap- to Interfirst Bank. debt owed rehearing in the motion for was authorities pellant also owed to various other not the loss of the ease cause creditors, unsecured. Interfirst which was appeal. on appellant intention to fore- informed of its inventory public it at a close on the and offer appellant In his second satisfy appellant the auction to debt. Since by grant contends that the trial court erred guaranty the personal had executed a on the because debt, personally responsible for he was to be not establish as a matter of law that its did any deficiency following the sale. proximate acts or omissions were not the appellant’s damages. cause auction, appellant incor- public the Before Store, corporation, porated a new the Gun plaintiff In a a $650,000 line of credit with and obtained a attorney’s negli prove must that but for the se- This line of credit was CharterBank. gence, prevailed the have on client would of the Store which cured the assets Gun Wiesenthal, appeal. 775 S.W.2d Millhouse purchase to at the fore- intended (Tex.1989). 626, 627 sale, appellant pur- sale. At the closure requiring The rationale for this determina- Exchange chased the assets Gun appeal if the not have tion is that would $650,000; considerably larger than the next succeeded and the trial court $175,000. Had that bid been highest bid of affirmed, the would have been person- appellant would have been accepted, plain- caused the could have resulting deficiency. ally responsible for the hand, if any damage. On the other tiff sale, remaining only asset of After the reversing in appeal would have succeeded pay the other Exchange available to the Gun obtaining judgment and a the trial court’s $12,000 account. The a bank creditors was result, plaintiff then the more favorable however, creditors, any received never other damage attor- because of the sustained payment. ney’s negligence. inventory Possessing the from the now Id. began Exchange, Gun the Gun Store defunct and with the cases, operations in the same location the determination of In most unpaid filed personnel. The creditors El same question is a of fact. See proximate cause Poole, against appellant account 314 suit on sworn Corp. v. 732 S.W.2d Chico (Tex.1987). individually, Exchange, and the Gun the Gun involving appellate In cases claims for the In addition to their question of Store. malpractice, wheth $231,484.60, creditors unpaid these appeal would have been successful er an corporate fiction used the had analysis of the law and depends on an Exchange present per- perpetuate rehearing of the Gun to a fraud in' order to the same corporate appeals and therefore the fiction should be court of suasive to the disregarded. Exchange The an- presented supreme Gun never it to the this supreme swered lawsuit and default application for writ of error. The against court, however, was entered it for the amount entire application denied the of the debt. This default became nothing in the record writ of error. There is Exchange final when severed the Gun was suggest trial, from the suit. Before failing request filing an extension proceeded non-suited the Gun Store because there is no only against appellant, asserting trial con- any evidence that it would have made differ- trial, structive fraud. At found that appeals already re- ence. The court of had *4 appellant Exchange had used the Gun as a analyzed viewed the record and all of the corporate perpetuate fiction in order to a appellant in had applicable holding law that result, unpaid fraud on the creditors. aAs against perpetuated a fraud his creditors and corporate disregarded, the and fiction was personally was therefore liable for the de- personally for the the became liable Exchange. fault of the Gun Exchange, obligations debts and of the Gun reviewing underlying case of con- After the which was the from the default against appellant, agree structive fraud we judgment. any alleged acts or with the trial court Relying primarily on Appellant appealed. by Reynolds not the cause of omissions were Branscum, Castleberry 721 270 v. S.W.2d appellant’s appeal. failure to on win (Tex.1986), Fourteenth of point of error. overrule second affirmed, holding corporate that when the In of his first fraud, perpetuate a fiction is used to by grant contends that the trial court erred disregarded. fiction is to Id. at 271. be appel summary judgment as to all of appeal, appellant argued his the evi Reynolds’ mo lant’s causes of action because support judg insufficient to dence was only summary judgment addressed tion for that, court, however, “the ment. The held have concluded that the Gun could well causes of action. merely a continuation of the Gun Store was being Exchange, sale with the foreclosure summary judg reviewing a When a to avoid creditors.” Klein used as method ment, the issue is whether Inc., Goods, 173, 176 Sporting 772 S.W.2d v. establishes, judgment proof as a matter of 1989, (Tex.App writ [14th Dist.] .—Houston law, genuine of material that there is no issue denied). or of the essential ele fact as to one more ap- by the court of After the affirmance causes of of each of the ments Reynolds appellant retained to conduct peals, Corp., Motors 450 action. Gibbs v. General appeal. Appellant con- the remainder of his (Tex.1970). 827, All evidence S.W.2d 828 filing in a tends will be taken as favorable to the non-movant rehearing containing 38 of true, every inference must be reasonable argument or any supporting error without any indulged in the non-movant’s favor Tex.R.App.P. 74(f)(2) re- authority. While in favor. Nixon v. Mr. doubts resolved in a brief to include quires an Co., 546, Management 690 Property S.W.2d argument, Tex. authority supporting the (Tex.1985). may A trial court not 548-49 RApp.P. 100(a) argu- require does not either a matter of law on a cause grant as rehearing. authority in a motion for ment or summary judg in a of action not addressed speculation by appellant, there than Other proceeding. Chessher v. Southwestern Reynold’s failure nothing to show (Tex.1983); Co., 563, 658 S.W.2d 564 Bell Tel. authority in the motion argument or include Inspection, Chaparral Energy Prod. v. LTV reason it was denied. was the 593, (Tex.App [1st 594 827 S.W.2d .—Houston denied). 1992, The have writ Dist.] could Appellant argues that supporting evidence summary judgment and to file the motion an extension obtained
49 of light yet as a matter law analyzed pleadings must be has established effectively ensure that the motion defeats of material genuine that there are no issues every action petition. cause of raised particularly concerned with fact. We were 337, Yancy City Tyler, 836 341 v. S.W.2d appellant’s summary judgment evidence that 1992, denied). (Tex.App. Tyler writ appellant that he would Joe told — get that he could handle the case himself and If a order support rehearing. would This evidence final, appears by language to be as evidenced a return of causes action for claims, purporting dispose judg contract, based on breach of fees breach pur ment should be treated as final for the fiduciary duty, the DTPA. and violations of poses Ross, appeal. Mafrige v. (Tex.1993). 590, judg The final Matthews, Jampole 857 S.W.2d states, ment of the trial court “Defendant (Tex.App. Dist.] [1st Reynolds, Cunningham, Peterson & Cordell —Houston denied), recognized writ a cause action we has moved that be en independent legal for breach of contract against tered Plaintiff Edward J. Klein on all malpractice claims claim. That limit against the Plaintiff has added.) (Emphasis against them.” If the ed this distinction to actions attor grants requested, more relief than it should neys for excessive fees: *5 remanded, be reversed and but not dis distinguish ... an action We between for Thus, missed. Id. a defendant is not enti negligent one legal malpractice and for summary judgment tled to a on the entire allegedly by attorney fraud an committed summary case unless the defendant files a relating establishing to charging and of addresses, that and conclu then Similarly, distinguish fees for services. we demonstrates, sively plaintiff that the is not between an action for mal- any theory liability entitled to recover on of practice of and one for breach contract alleged. relating to for services. excessive fees contends that moved Id. summary judgment only negli- for on his gence and claims and not consideration, Upon further we contract, fiduciary his breach of breach of petition appellant’s have concluded that sim .duty, Reynolds’ and DTPA causes of action. ply action support does not a cause of for summary judgment motion was limited to Rather, attorneys’ ap we believe that fees. of argued issue causation. pellant’s of action are alternative causes Supreme there was no causation because the essentially to achieve “means to an end” one Castleberry clearly Court’s decision “was LTV, complaint legal malpractice. of claim,” fatal to and pre- therefore appellant’s petition, at 594 — 95. outcome, regardless cluded a different headings negligence, under each of the rehearing’s motion for lack of contract, legal malpractice, breach already overruling As we held fiduciary duty, appellant lays breach of out appellant’s Reynold’s second an identical list acts and omissions summary judgment evidence did that he him the claims all caused same prove establish could not cau- petition damages, amount of but the never legal malprac- sation on his once mentions the return of fees. tice of action. causes carefully appellant’s petition, reviewing After submission, original Rey- we held On Reynold’s motion we must conclude that summary nold’s motion for failed appel all of judgment addressed to a matter of law there establish as lant’s causes of action. genuine were issues of material fact relat- trial We affirm the court. remaining causes of action contract, appellee’s light disposition, fiduciary our for breach of breach duty, of the DTPA. held motion en bane rendered and violations action, Reynolds that as those causes of moot.
OPINION ON MOTION
FOR REHEARING
We overrule motion for rehear-
ing, following with the clarification.
Appellee Reynolds, Cunningham, (Reynolds)
Peterson & Cordell filed a “Mo
tion for Partial Summary Judgment” in this granted. specifi which was The motion
cally Reynolds’ stated that claim for attor fees,
neys’ contained in its counterclaim
against appellant, by was not covered partial summary judgment. After
partial granted, counterclaim, causing dismissed its to become final and
appealable.
Appellant’s petition original first amended Reynolds’ attorneys’
addressed fees claim
seeking a declaration that “owes no money [Reynolds] attorneys’
sums of attempted
fees.” There nowas resolution of attorneys’ through fees issue the sum- rather,
mary judgment proceeding; it was through Reynolds’
resolved dismissal of its *6 against appellant.
counterclaim STRUVE, Appellant, L.
Valton APARTMENTS, Appellee.
PARK PLACE
No. 12-95-00053-CV. Struve, pro Valton L. se. Texas, Belt, Austin, appellee. Terry L. Tyler. HOLCOMB, Justice.
Sept. 1995. county appeal from a This is an Rehearing Overruled June first four detainer action. his forcible error, contends that points of Valton Struve county it awarded Park court erred when possession apart- his Apartments Place pleadings because Park Place’s sworn point of Struve were false. In his last it award- that the court erred when contends Apartments the sum ed Park Place affirm. past-due rent. We will