*1
679
74.351(b).
Watkins,
defendant.5 See In re
Accordingly, we reverse the tri-
(Tex.2009);
S.W.3d
633-34
id. at 636-
Lambi,
al court’s order as to
and remand
(Willett, J., concurring).
Though the
to the trial court with instructions to dis-
high
yet
court has not
addressed this fact miss the claims against Lambi and award
Rivenes,
pattern,
this
court did so
her
attorney’s
reasonable
fees and costs of
precedent by which we are bound. See
74.351(b).
court under section
Rivenes,
Therefore, we cannot follow cases from
other appeals contrary courts of to Ri See, Santillan, e.g., Scoresby
venes. v. 324 (Tex.App.-Fort Worth
2009, pet. granted) (concluding that “no
report” category Badiga only includes
instances in which purporting no document Ronald J. KORMANIK and Michael a report to be within served the Time Sydow, Appellants, D. Period). We follow this precedent. court’s v. reports
Because the three Claimant served are “no report” rather SEGHERS, Appellee. Victor Lambi, report than a deficient as to No. 14-09-00815-CV. court has appellate jurisdiction over Lam- appeal bi’s from the trial court’s denial of Texas, of Appeals Court her motion to Badiga, dismiss. See (14th Dist.). Houston 683-85; Rivenes, S.W.3d at S.W.3d. 339-41. reports Because the three are “no June 2011. Lambi, report” as to the trial court abused Supplemental Opinion on Overruling of
its discretion
denying Lambi’s motion
Rehearing Jan.
74.351(b).
to dismiss under section
Rivenes,
ingly, we appellate sustain the issue as to
Lambi.
III. Conclusion Thomas,
As to Dr. the Claimant served report deficient within the Time Period appellate therefore there is no juris- 51.014(a)(9).
diction under section For reason, Dr. ap- we dismiss Thomas’s
peal for jurisdiction. lack of As to Lambi’s
appeal, the three reports that the Claimant report”
served are “no rather than a defi- Therefore,
cient report. this court has
appellate jurisdiction, and we hold that the
trial court abused its discretion denying
Lambi’s motion to dismiss under section Santillan, Supreme sby
5. The may Court of Texas address which has been submitted in opinion this issue when it issues its in Score cause number 09-0497 in that court. *2 Houston, Akers, appellants. Brock C. Generes, Dallas, rates, A. David J. hourly billing Carl Wuko- discounted Houston, son, Kormanik, ers agreed pay appellee. as additional fees, proceeds sale, “2½% ANDERSON, Panel of Justices consists *3 rent, disposition lease or other of the Tikar FROST, and BROWN. owned, artwork now or to be acquired by through or [Seghers].” Seghers paid Kor- OPINION $25,000 retainer, manik the par- which the orally ties later FROST, agreed simply be a KEM THOMPSON Justice. flat fee. Two lawyers sued an African art aficion- a claiming pay ado breached contract to The Mbiam Lawsuit implementing them a flat fee for a market- September Kormanik filed suit ing plan for an Tikar art extensive collec- Mbiam, foreign national, a and oth- jury attorney- tion. The found that an er defendants in state a district court in relationship client between of existed one County, Bell Texas. The in defendants
the lawyers and the art aficionado at the the Mbiam suit removed the case feder- lawyer time of contract al court and moved to dismiss for lack of comply did fiduciary duty. with his personal jurisdiction. Before the federal jury damages did find to the issue, court jurisdictional ruled lawyer resulting other from this breach. parties reached a settlement which in On appeal, lawyers challenge the suffi- agreed Mbiam return the art in ex- ciency as of the evidence to these for a change full and final release findings. We affirm. by Seghers and all claims related to the Tikar art. The settlement agreement, Background I. Factual PROCEDURAL fully which on April executed Appellee/defendant a Seghers, Victor judgment followed a final dismiss- Belgian cardiologist, is an aficionado of ing Seghers’s with prejudice. claims art and culture of Tikar people Seghers, Cameroon. who had accumulat- Trip Cameroon art, ed a substantial collection of Tikar in Before settlement the Mbiam law- arrangements made with a contact finalized, Seghers suit was asked Korman- Cameroon, Mbiam, ship- Emmanuel ik accompany and others to him to Came- ment portion of a of the collection to Tex- get physical roon to control of the Tikar as, Seghers Seghers where lives. encoun- art proposed collection. Kormanik a flat significant expense tered difficulties and $25,000, plus expenses fee of estimated to process. gain When he was unable to $25,000. be an additional ulti- Seghers art, possession Seghers as- sought $50,000, mately agreed pay Kormanik sistance J. appellant/plaintiff from Ronald out came Kormanik’s fee and Kormanik, lawyer. Seghers a Texas met expenses. They trip made the and were with and consulted Kormanik in Texas obtaining physical possession successful explained problems he had encoun- of the art. tered. Conflicting Testimony as to what In July Seghers and Kormanik Happened after the an agreement entered into entitled “Con- Trip Cameroon Employment
tract of and Power of Attor- ney.” agreed pay Seghers presented conflicting Kormanik testimo- Witnesses $25,000. retainer agreed ny Kormanik as to transpired trial what after first fol- manik’s office. This was the Kormanik as trip. Cameroon Seghers Sydow, had met time lows: introduced (cid:127) attorney- that his Kormanik believed Seghers. name to educated relationship end- client Before Sydow about the Tikar art. part latter ed in the “somewhere 8, 2006, Kormanik received a of 2006.” Kormanik did not June $20,000. from On check terminating letter send date, already representation Kormanik’s $20,000 of Seghers’s money. ers. *4 (cid:127) Seghers’s sugges- next day, (cid:127) Cameroon, trip After their to Kor- tion, Texas Temple, the trio went to in willing participate manik was to After to look at the Tikar art there. art project make the Tikar helping art, looking at the the trio went successful. Temple. Seghers in Seghers’s house (cid:127) Kormanik had some discussions with and continued to educate Kormanik Seghers about the need market art, about Tikar the Tikar art collection. Kormanik gave Seghers them about six books Seghers then had discussions with study in they could the books so Sydow. Michael D. appellant about for- preparation project to move (cid:127) 8, July At least one month before ward. 2006, Seghers and his wife met with (cid:127) had that would be an idea it Kormanik in Houston to discuss if they better could interest celebri- ,Seghers’s desire to take further ac- try in the ties Tikar culture and tion against Mbiam. Kormanik ex- Seghers’s idea that convince them plained the that Seghers releases this art “is essential- going change signed had when the Mbiam lawsuit ly Sydow thought the world.” Seghers settled. Kormanik told be the value of the Tikar art could likely end,” a dead “was brought increased if celebrities Seghers not pursue did further ac- public. this art importance of to the tion Mbiam. (cid:127) 2006, 10, July Seghers, Korman- On (cid:127) Kormanik asked to send ik, again met in for hours $20,000. him Seghers was not Kor- They Kormanik’s Houston office. manik’s client when Kormanik re- plan four marketing discussed a 30, the June 2006 check for ceived phases. $20,000. $20,000 This was not sent (cid:127) I work, goal generate In Phase specifically for legal and Kor- among interest Tikar se- culture manik and “had come to what, They lected celebrities. discussed any- agreement about be process by they would [they] going thing, were to do.” identifying, contacting, educating Kormanik asked to send celebrities,” $20,000 the re- including “lead because Jackson, nowned Michael artist knew Kormanik did work for rep- family. the Jackson free going and Kormanik was to set in various resented Michael Jackson time to aside his visit with him about dealings. marketing plan. business (cid:127) (cid:127) Seghers, II, Sydow, publicity and Kormanik met In Phase there would be art, July regarding Houston on in Kor- the Tikar celebrity would seek going endorsements Kormanik was not to do legal work on specials marketing and television movie project, Sydow. Sy- nor was about the Tikar art. dow only to market art. (cid:127) negotiation Phase III would be acquisition the art. Sydow stated he had no knowledge ers was that the value convinced prior dealings Kormanik’s with Seghers. him project every- the whole after Sydow testified there meeting was a one else paid would be at least July of the minds on regarding million. $80 the marketing plan2 and that Seghers pay $350,000, flat fee to be (cid:127) Phase IV would involve the exhibi- evenly divided Sy- between Kormanik and tion of the Tikar art museums and dow. testified that Seghers paid traveling exhibits. $110,000 on July but Sydow did (cid:127) By meeting end of the being not recall aware pay- 10, 2006, Kormanik, Seghers, ment in July According to Sydow’s *5 Sydow meeting came to a 10, testimony, 2006, on July Sydow be- (1) Sydow minds that and Kormanik $110,000 lieved that Seghers paid had go would forward with the marketing pay $240,000 would the remaining (2) art; plan Seghers the Tikar $20,000. monthly Sydow installments pay would Sydow Kormanik and testified Sydow that Kormanik and would $350,000; (3) Sy- their pay expenses, own except Segh- that pay dow would own expenses, their pay ers would expenses their relating except Seghers pay that would their African Sydow academicians. expenses African relating to acade- that this agreement did not involve micians. The three men outlined the legal work that Seghers at all and express- a marketing plan on white board.1 ly acknowledged that neither Kormanik $20,000 They agreed that that Sydow nor performing any would be legal Seghers already paid Kormanik work. July would count pay- as the testified, Seghers among other as things, ment, Seghers would pay follows: $110,000 right and then away, pay
$20,000 (cid:127) paid each month until he had 30, Seghers gave Kormanik the June $350,000. a total of $20,000 2006 check for to investigate (cid:127) pursue against action Mbiam Seghers was excited and could not Tikar, (hereinafter, Inc. “Tikar
wait to get Seghers started. wrote a Foundation”), nonprofit a foundation $110,000 check for Kormanik by Seghers, established or to explore gave July it to him on 2006. options. different Seghers asked to include (cid:127) Sydow as a but payee, Seghers point did The of this action try not do so. Kormanik does not re- see if the million that Mbiam $2.8 seeing “attorney member the words had received from could be fees” on the memo line of the improve check. used to local infrastruc- photograph agreed 1. A board ket the that he this white was ad- Tikar art and to edu- into mitted evidence. cate certain about celebrities Tikar culture help rather than to sell this art. During parts testimony 2. some of his trial Sydow agreed testified that he never to mar- Sydow by Kormanik and rather than for Suit
ture in Cameroon
against Seghers
benefit.
personal
Mbiam’s
ensued. Af-
Shortly
litigation
thereafter
(cid:127)
Kormanik was
Seghers stated
procedural developments
ter
various
attorney during the meet-
Seghers’s
parties
appeal,
are
to this
not relevant
Segh-
between
ing
July
on
below,
in the trial court
found themselves
ers, Kormanik,
Sydow.
plain-
as
(cid:127)
agreed that
Though Seghers
tiffs/counterdefendants, asserting breach-
plan
out-
three men discussed
against
claims
of-contract
defendant/coun-
on
board Korman-
lined
the white
terplaintiff Seghers.
Seghers asserted
defenses,
counterclaim,
office,
denied that he
ik’s
and in
various
breach-of-fiduciary duty
a
any agreement
asserted
entered into
Seghers alleged
claim
Kormanik.
on
kind with Kormanik
engaged
conspiracy
in a
Seghers denied that
July
duty.
fiduciary
breach Kormanik’s
any deal with Korman-
he had made
to a
found in
jury,
case was tried
the Tikar art
ik or
to market
pertinent part as follows:
collection.
(cid:127)
Kormanik,
Seghers,
(cid:127)
Seghers gave Kormanik
check
pay a
agreed that
fee
on
$350,000 in
for the im-
exchange
“attorney fees”
ers wrote
marketing plan.
plementation
*6
check at
time.
memo line of the
that
(cid:127)
attorney-client relationship exist-
An
Seghers
and
ed between Kormanik
that, during
Sydow
the three
agreement
the time of the
10, 2006, Sydow
days
July
began
after
to the
and im-
negotiations
extended
reading
Seghers
provid-
that
had
materials
agreement.
plementation
ed,
research, and
independent
conducted
(cid:127)
that he com-
Kormanik did
show
several
of conversations with
had
hours
fiduciary duty
-withhis
plied
Jackson,
Jackson,
Randy
and
Michael
ers.
about
some of Michael Jackson’s advisors
(cid:127)
dollars,
cash,
if
now in
paid
Zero
culture,
theories,
Seghers’s
Tikar
and the
fairly
reasonably compen-
and
would
theories.
significance
these
any,
if
damages,
sate
during
eve-
Kormanik testified that
that resulted from the failure to com-
ning
Seghers
talked to
agreement.
with the
ply
and told him that
phone
Kormanik
(cid:127)
$130,000, paid
The sum of
if
now in
they
major
judgment,
had made a
error
cash,
fairly
reasonably
and
this,”
Seghers did not “want to do
and that
Seghers for his dam-
compensate
Seghers
any,
proximately
wanted the
returned.
that were
ages,
caused Kormanik’s breach
fidu-
Seghers sent an email to Kormanik the
ciary duty.
day,
essentially
saying
next
the same
thing.
Kormanik told
that
The trial court denied the motion for
Kormanik
made contacts and that
judgment notwithstanding the verdict filed
ready
go
getting
California by
Sydow.
The trial court
Kormanik
marketing plan.
and initiate Phase I of the
judgment
Kormanik
rendered a final
go
wanted to
nothing
stated
take
and that
$130,000 plus
inter-
prejudgment
forward.
recover
Sy-
trary
est
Kormanik. Kormanik and
the overwhelming weight of the
trial,
clearly
which the
evidence as to be
wrong
unjust.
dow filed a motion for new
Co.,
trial
Pool v. Ford
court denied.
Motor
715 S.W.2d
(Tex.1986).
jurors
are the sole
Presented
II.Issues
judges
credibility of the witnesses
weight
and the
given
to be
their
testi-
appeal
present
On
mony. GTE Mobilnet
v.
S. Tex.
Pas-
first, they
three
In the
issues.
assert
couet,
61 S.W.3d
(Tex.App.-
615-16
legally
is
factually
evidence
insuffi-
denied).
Houston
pet.
[14th Dist.]
cient to
an
support
jury’s finding that
mayWe
judgment
substitute our own
attorney-client
relationship
be-
existed
for that of the jury, even if we would reach
tween
Kormanik and
at the time
a different answer on the evidence. Mari-
of marketing agreement.
In their sec-
Ellis,
time
Corp.
Overseas
971 S.W.2d
issue, they
ond
assert that the
is
evidence
(Tex.1998).
402, 407
The amount of evi-
legally
factually
insufficient to support
necessary
dence
to affirm judgment
is
jury’s finding regarding
breach of fidu-
than
far less
that necessary to reverse a
issue,
ciary duty. Under their third
Kor-
Pascouet,
judgment.
When to the factu- negotiations imple- extended the evidence, al sufficiency we examine agreement. mentation of the The trial record, considering entire both the evi- court instructed the as follows: of, to, dence in contrary favor Bain, challenged finding. 709 attorney[-]client relationship Cain An is a (Tex.1986). whereby After consid- contractual an at- relationship evidence, ering weighing torney all set agrees to render professional finding only may aside the fact if it is relationship so con- services. The be ere- $20,000, him evidence con- byor the actions of to send by ated contract meeting reflecting emails that Kormanik re- must be tains parties. There $20,000 relationship as to determined on or June quested minds before upon objective an standard based 2006. Kormanik admitted that he did not did, not deter- parties Seghers any terminating said letter what send subjective state parties!’] representation mined legal Seghers. Korman- $20,000 of mind. ik claimed that the sent work, that Kor- specifically legal July Seghers and Kormanik Seghers manik and “had not come agreement estab- into a written entered what, if agreement anything, [they] about attorney-client relationship. lishing an going to do.” Kormanik also con- unambiguous language Under Seghers tended he asked to send him agreement, Seghers paid Korman- written $20,000 Seghers because knew Kormanik $25,000. contract ik a retainer of This did not work for free and Kormanik was provided, [Seghers] empowers “Client going to set aside his time to visit with ac- Attorney to take such said [Kormanik] Seghers marketing plan. about the may any legal tions and to file actions as $20,000 being did not recall aware of this Attorney’s judgment with be advisable Seghers Kormanik in payment from and to respect legal services rendered July 2006. Art regard rendered to the Tikar be with currently which is in Texas Collection July meeting began, Before the plain meaning Africa.” Under the Kormanik had cashed the June $25,000 agreement, retain- written is a $20,000. July meetings check for on replenished, er that must be July 2006 occurred Kormanik’s hour, per Seghers will bill even $250 Houston law office. testified that $25,000. billings these exceed 10, 2006, gave he Kormanik the $110,000, placed check for after Seghers he and “attorney the notation fees” on the check. orally agreed change agreement supports Segh- A document in evidence into a flat than a fee of rather testimony regard, ers’s in this and Kor- billings upon retainer and based the hours has manik no recollection as to whether he worked. Kormanik also testified that the notation on the when check orally agreed travel with it it. Seghers received and cashed stated paid to Cameroon and to be an *8 Seghers’s was $25,000 attorney that Kormanik additional flat fee of for his ser- 2006, 10, $25,000 during meeting on at- expenses. vices and another Kormanik, Sydow. by tended Seghers, in Feb- returning After from Cameroon 2006, ruary Seghers render that Kormanik gave Kormanik continued to testified legal Seghers regarding investigate services to the June 2006 check to April pursue against by Mbiam lawsuit. In the releas- Mbiam the Tikar action were a docu- According explore options. es executed. to Foundation or to different According re- prepared, Seghers, point ment Kormanik Kormanik to this relating try to viewed documents to the dismissal action see if the million $2.8 received be used Mbiam lawsuit June that Mbiam had could attorney-client improve that his local in Kormanik testified infrastructure Came- relationship Seghers personal “some- roon rather than for with ended Mbiam’s part Seghers argue where in the latter of June of 2006.” benefit. Kormanik in Seghers Seghers’ testimony regard Kormanik that he that this can- asked that, Kormanik, based on the Emails possibly according be true release re release, in Mbiam In this lated to the or negotiation implementation lawsuit. (1) Seghers he was the sole and the marketing plan stated that state that by claims in that sent acting exclusive owner of the case Kormanik on behalf of his and that had been assignment professional corporation. no made of Kormanik testi that, any any person, career, claims to fied portion of these for most he has (2) firm, corporation, personal lawyer, or released been a injury that he was Mbiam from all claims which not a any lawyer, business and that he knows any any nothing from marketing arose manner transaction about art. The jury by impliedly and Mbiam Seghers Seghers’s and between did not credit testimo regard ny to the But this that Tikar art. release there was agreement regarding no way in no from precludes acting marketing plan, Kormanik there were incon Seghers’s attorney investigation as sistencies and in Seghers’s contradictions of a potential against by testimony. Nonetheless, action Mbiam the the jury still exploration Tikar Foundation or free to parts Seghers’s credit the testi Further, options. presuming mony different showing attorney-client that an rela argument tionship sake of suit existed between Kormanik and against Tikar Foundation Mbiam would be during negotiation imple summary judgment dismissed on based on mentation of this agreement. As factfin- der, release, still could retain the jury an had the prerogative believe attorney another, investigate possibility of one witness and disbelieve to be filing such a parts lawsuit. lieve some of a testimony witnesses’s and disbelieve other and to parts, resolve face, On its the June 2006 check does in any inconsistencies witnesses’ testimo not indicate whether it comes from a Tikar ny. Duruji Duruji, WL from Seghers Foundation account or ac- 582282, at *5 (Tex.App.-Houston [14th count. Some evidence indicates that the (mem. 27, 2007, Feb. pet.) op.). Dist.] no June came from 2006 check a Tikar Foundation bank account.3 Other evi- The record contains evidence would dence, including testimony, Kormanik’s in- jurors allow reasonable conclude that dicates that came from Segh- this check there was a meeting of the minds between jury reasonably ers’s funds. The could Kormanik and based on what the have indicating credited the evidence parties said and did. There is evidence (1) Seghers’s came from funds. discussed a event, (2) Mbiam; even if the against concluded second action that these funds from a Tikar gave came Foun- Kormanik the June 2006 check to account, investigate dation would not pursue mean that action any attorney-client relationship relating to Mbiam the Tikar or to Foundation ex- (3) these funds have to be plore options; between different *9 $20,000, Kormanik and the Tikar Foundation. See asked to send Kormanik (4) $20,000 Healey, Roberts v. 991 S.W.2d 880-81 Kormanik the check cashed (5) 8, 2006; (Tex.App.-Houston July pet. Dist.] before and Kormanik [14th denied). cashed the check with the 2006 email, Seghers 3. In a June 2006 states “I check was drawn Tikar Foundation ac- on a today sent a check to Tikar Foundation fund Seghers gave count after the Foundation 20,000 you with send a instructions to payment to fund the of the check. US$ check.” This email indicates that the 688 the factually support it. evi- and insufficient to “attorney fees” on
notation
an
4
regarding
response Question
conflicting
jury’s finding
dence is
whether
to
be-
attorney-client
relationship existed
the
to Kormanik’s
jury charge relating
during the
tween
and Kormanik
the
compliance
duty.
his
At
fiduciary
with
of the
negotiation
implementation
and
conference,
charge
party
no
asserted
the
marketing agreement.
judges
As
sole
ques-
to
in this
objection
valid
defect
the
credibility
of the witnesses and
tion; therefore,
sufficiency
we measure the
testimony,
to be
their
weight
given to
in this
of the evidence
the standard
free
jury was
to make
determination.
question.
Energy
Tractebel
Market-
See
Pascouet,
at
61 S.W.3d
615-16.
See
Inc.,
ing,
at
In its answer
In their “clients second Seghers argue generate evidence Coast” to see if could legally that the is Sy- preserve presume, error. We for the sake contends *10 argument, in Kormanik and ade- preserve dow failed to error the trial court that so, regarding factual-sufficiency challenge. quately preserved complaint. this Even this Sydow argue complaint we that lacks merit. Kormanik and that did conclude this cess, Sy- the topics. According jury reasonably in these to interest could have found dow, the to that Kormanik failed generate prove idea was interest to that the clients, among pertaining these which dramati- transaction to marketing would was equitable fair and to or importance enhance the value of that Kor- cally placed Seghers’s manik Tikar art interests the collection. before Keck, obligation his own. See agree- that he had no under the Mahin & Cate v. Nat’l Co., Union Fire Ins. selling ment to assist in Tikar art S.W.3d (Tex.2000) (holding that firm Sydow’s to clients. testified that law not did as a of help Sydow prove agreement in his matter law it Kormanik was to efforts that negotiated of pay that was to each them with one its clients fair of was reasonable). dependent flat not applicable fee Under the review, the of the standards of upon amount hours worked or we conclude that the evidence is According Sy- legally factually of success the efforts. to sufficient dow, support jury’s finding Kormanik would do whatever that Korman- ik required him to do to assist in these did make the showing asked efforts. un- Question der See Accordingly, 4.5 id. going stated that Kormanik was (1) overrule Kormanik Seghers’s Sydow’s about second is- educate himself theo- (2) culture, sue. regarding ries Tikar in assist
identifying African who academicians Sydow’s C. Breach-of-Contract Sydow’s going meet with West Coast Damages (3) clients, interested, if these clients were issue, Under their third the academicians to prepare discuss Sydow argue that the legally evidence is Seghers’s Tikar culture and theories with insufficient to support jury’s answer (4) clients, up in setting these assist Question Sy- damages question for meetings receptions. against dow’s breach-of-contract claim evidence, upon Based trial the Seghers. party Because no asserted that, jury reasonably could have found un objection any valid in ques- defect this agreement, der the Korman- conference, tion the charge we measure ik, art, nothing marketing who knew about sufficiency of evidence $175,000in guaranteed would receive com in question. standard set forth this pensation, dependent on the amount Inc., Marketing, Energy Tractebel hours worked or success the efforts. at 932. The jury asked compensation “[wjhat Kormanik would receive this money, any, paid sum of if if now in assisting Sydow his efforts to cash, edu fairly reasonably in would com- Segh- cate West Coast clients about pensate [Sydow] damages, any, for his ers’s Tikar culture theories about and art comply that resulted from the failure to generate and to interest subject agreement?” with the The trial court in- lack speci with these clients. Given the only jury structed consider the ben- ficity as to what services Kormanik would efit-of-the-bargain of damages, measure any be lack providing, the minimum trial court defined as follows: number hours Kormanik needed to agreed price difference between the “[t]he work, any and the requirement [Sydow] lack and the cost have incurred fulfilling Kormanik achieve benchmark of marketing plan.” suc- event, presume, argument, challenge We sake of we conclude that this lacks Sydow adequately preserved merit. But, challenge. factual-sufficiency *11 690 (none).” context, in the it would have been position In this
answered “$0.00
an
Data
jury’s
fully performed”);
of the
been
interpretation
contract
proper
the
not
Ini
Sydow
Foundry,
Integration
found
did
v. Silicon
swer is that the
Inc.
(Tex.
tiative, Inc.,
2336464,
that
by a
of evidence
at *3
prove
preponderance
2010 WL
(mem.
11, 2010,
the meas
any damages under
App.-Austin
pet.)
he sustained
June
no
by the trial
damages
of
submitted
of
applicable
ure
standards
op.). Under
Co.,
v.
review,
legally
See Sterner Marathon Oil
to
court.
the evidence is
sufficient
686,
(Tex.1989); & R.
S.W.2d
690
C.
that
jury finding
Sydow
767
a
did
support
Campbell,
406 S.W.2d
Transport,
by
Inc.
a
of the evidence
prove
preponderance
(Tex.1966);
v. Dumas Glass
194
Gant
have
had he
the costs
would
incurred
(Tex.
Mirror,
Inc.,
209
plan.
&
to
marketing
able
fulfill the
been
1996, writ);
fact,
no
Am. Recre
App.-Amarillo
no
of the
the record contains
evidence
Hawkins,
Agency v.
ational Markets Gen.
amount of these costs.
(Tex.App.-Houston
846 S.W.2d
testimony
The record contains
that Kor-
writ).
1993, no
[14th Dist.]
trip to
Sydow
planning
manik and
were
a
Sydow
Sydow’s
that
to
to some
argue
talk
California
art,
Tikar
both
conclusively
Sy-
regarding
that
clients
proves
the evidence
$220,000
agreed
that
damages
Sydow
were
dow’s contract
talking
have
liquidated
pay
would
had to
costs
based
the uncontroverted
Sydow’s
Pre
relating
agreement.
visiting
amounts
to the
to and
clients.7 Under
review,
the evi-
suming
argument
applicable
sake of
that
standard
to
conclusively proved
legally
support
that
dence is
sufficient
evidence
$350,000
Question
finding
a flat
answer to
its
supposed
pay
jury’s
fee of
by
agreement
prove
preponder-
and that
that
did not
under
$130,000,6
any
that he
Seghers is entitled to credit of
ance
evidence
sustained
damages
proof
damages
under the measure of
not constitute conclusive
5.
the trial court. See Data
Sydow’s damages
Question
under
Un
submitted
Inc.,
damages
ques Foundry,
that
2010 WL
at *3
der the measure of
in
conclusively
that
(holding
company
tion the
would have to subtract
did not
jury still
benefit-of-the-bargain damages
that
prove
from
amount
costs that
fully
not find
per
appropriately
would have incurred had he
that factfinder
did
any damages because
did not
agreement.
company
formed under the
See Clear
it
City
Auth.
or losses
Lake
v. Friendswood
offer
evidence
costs
Water
Co.,
having to
(Tex.App.
fully perform);
Dev.
avoided
344 S.W.3d
h.) (stat
Gant,
(holding
Houston
no
matter in controversy
$100,000,
exceeded
V. Conclusion
interest,
excluding
statutory
punitive
or
damages
penalties,
attorney’s
fees
legally
The evidence is
suf-
factually
costs,
alleged
as
on the face of the
jury’s
to support
findings
ficient
that
petition.
See Tex. Gov’t Code Ann.
attorney-client
an
be-
relationship existed
25.0003(c)(1), 25.1032(a) (West 2011).
§§
tween Kormanik and
at the time
Sydow disagreed
and ar-
marketing agreement
and that Kor-
gued
the county
that
at law
court
did not
the showing required
manik
make
subject-matter jurisdiction.1
complied
that he
prove
his fiducia-
duty.
ry
legally
county
is
The
evidence
sufficient
court at law transferred the
support
Sydow case to
district
jury’s finding
that
court. The case was
initially pending
prove by
preponderance
did
a
evi-
the 189th District
Court of Harris
but
County
later
dence that he sustained
dam-
contract
transferred to the 190th District Court of
we
trial
ages. Accordingly,
affirm the
County.
trial,
Harris
a
Following
judgment.
court’s
presiding judge of the 190th District Court
signed
judgment
a final
that Kormanik and
SUPPLEMENTAL OPINION
Sydow
nothing
take
re-
$130,000 plus prejudgment
cover
interest
FROST,
KEM THOMPSON
Justice.
Kormanik. Kormanik and
issue
supplemental opinion
We
appealed the trial
judgment
court’s
to this
jurisdictional
appel-
address
issue that
submission,
original
court. On
Kormanik
lants Ronald J. Kormanik
D.
and Michael
challenge
jurisdic-
did not
Sydow have
for the
on
raised
first time
court,
tion of the trial
did
nor
chal-
rehearing. Concluding
jurisdic-
that this
jurisdiction
lenge the
of this court.
issue
other
tional
and the
issues
brief,
raised
opening appellate
their
Kormanik
merit,
rehearing lack
mo-
overrule the
procedural
stated that “the
his-
for rehearing.
tory
complicated,
tion
case is
of this
rather
but
that,
argues
Seghers's
8. Kormanik
court
also
9. We need not and do not address
issue,
argument
cannot recover on
second
he
his
sustains
first or
then
agreement
contract claim because
agree-
be
should
able to recover under the
product
fiduciary
of Kormanik’s breach of
ment. We have not sustained either issue
duty.
and,
event,
show
could not
conclusively proved
dam-
his contract
juncture,
At this
ages for the same reasons
in this
discussed
represented by different counsel
than the
section.
represented
counsel
them at trial in the
court
appeal
district
and on
this court.
*13
court
jurisdictional
of the Texas
ultimately
pertinent
to the issues on
structure
“has
appeal.”
is
system unimaginably abstruse”
...
Byzantine.”
from elaborate
gone
After
affirmed the trial court’s
this court
Mathew,
747, 753
178
See Sultan v.
S.W.3d
filed a
judgment,
(Tex.2005) (Hecht, J.,
by
dissenting, joined
for the first
rehearing asserting
motion for
JJ.).
Medina,
Wainwright
Various
is void
judgment
time that the trial court’s
of a
subject-mat-
provide
court
Texas
transfer
because the trial
lacked
statutes
jurisdiction.
ter
Kormanik and
from
when
case
one trial court
another
argue
court at law
county
now
court in
the case
filed lacks
subject-matter jurisdiction
lacked
over the
See,
subject-matter
e.g., Tex.
jurisdiction.
petition that
filed in that
original
they
(West 2011) (pro
§
Prop.Code Ann. 21.002
at law
county
court. Because the
court
viding for
of eminent-domain case
transfer
jurisdiction, Kor-
subject-matter
lacked
at law
county
from a
court
district
assert,
county
manik and
court
when
an issue of
court
the case involves
required
and had
to dismiss the case
title);
art.
Proc. Ann.
Tex.Code Crim.
transfer
case to the
authority
no
(West 2009)
for transfer
(providing
21.26
Even
the district
though
district court.
criminal
from
court to an
case
district
subject-matter juris-
court would have
if the district court lacks
inferior court
diction
the case
review the
over
under
charged
offense
in the
jurisdiction over the
court,
originally
case had been
filed in that
court). The
indictment filed in the district
Sydow argue
that the coun-
governing the
from the
statute
transfer
ty
purported
subject-
court
lack of
at law’s
county court
court in
at law to
district
jurisdiction deprived
matter
the district
requires that
the case under review
jurisdiction
court of
over the transferred
subject-matter jurisdic
have
district court
case,
judgment
making the district court’s
over the
does not
tion
transferred case but
void.
county
at law have
require
court
subject-matter
the trans
jurisdiction over
Analysis of Jurisdictional
Issue
Ann.
ferred case.
Tex. Gov’t
See
Code
county
To determine whether the
74.121(b)(1) (West 2011);
§
The Cadle Co.
subject-matter jurisdic
at
court
law had
205,
Bray,
(Tex.App.
v.
S.W.3d
212-13
suit,
tion
we
over this
need to review the
denied)
2008, pet.
Houston [1st Dist.]
allegations
made
(making
substan
same observation about
in the original petition
filed in
tially
language in Government
similar
county
court. See Continental Coffee
74.121(a)).
Supreme
section
The
Code
Cazarez,
Prods.
v.Co.
937 S.W.2d
proper
Court of Texas has indicated that
Sanchez,
(Tex.1996);
Weidner v.
transferring
a civil case from one
basis
(Tex.App.-Houston
360-61
may
court to
be the lack of sub
pet.).
no
We are unable
another
[14th Dist.]
to review
it
original petition
because
is
ject-matter
jurisdiction
the transferor
Nonetheless,
our appellate record.
Employers’
Ass’n
court.
Texas
presume,
deciding,
without
that under
(Tex.
Cashion,
1112, 1113-14
130 S.W.2d
original petition,
county
court at
ref'd)
(basing
writ
Civ.App.-Dallas
subject-matter jurisdiction
law lacked
over holding upon
from an intermedi
statement
case
under review.
transfer
proper
ate court that a
reason for
ring a case
one trial court to another
jus-
from
pointed
As has
out
three
been
Texas,
jurisdiction
a lack of
the transferor
Supreme
tices
Court of
“the
is
filed).2
Cashion,
court in which the case was
See dismiss the case. See
130 S.W.2d
Co.,
1113-14;
Co.,
also The
issues
overrule motion.
ANDERSON, J., participating
rehearing. *15 FARRAR, Appellant,
Thomas CORPORA MANAGEMENT
SABINE Properties Man
TION Sabine a/k/a
agement, Build Inc. and Northwest Ltd., Appellees.
ing,
No. 01-09-00492-CV. Texas, of Appeals of
Court Dist.). (1st
Houston 11, 2011.
Aug.
Rehearing En Banc Overruled 31, 2011.
Oct. motion, 74.121(b)(1), pendency rehearing their section nor would juris suggest may subject-matter affect of such a case also that the district court jurisdiction may county at law or the diction of either court have lacked or transfer County. See in in Harris Tex. improper have been because another case district court 74.121(b)(1); §Ann. Gammill v. volving subject pending matter Gov’t Code same Gammill, 14-07-01013-CV, 2009 WL County. No. in Bell But the district court (Tex.App.-Houston [14th *2 pendency Dist.] would not make such case pet.) (mem.op.). improper Jun. no Government Code transfer under