Evan Lane (Van) SHAW, Appellant and Cross Appellee v. D. Brent LEMON, Appellee and Cross Appellant.
No. 05-12-00903-CV.
Court of Appeals of Texas, Dallas.
April 2, 2014.
summary judgment on Ennis‘s tortious-interference claims against appellees. Ennis contends, correctly, that the sole ground for summary judgment raised by appellees and considered by the trial judge was that Scarborough‘s employment agreement with Ennis was unenforceable under California law and therefore, as a matter of law, could not support a tortious-interference claim. Because the trial judge erred by ruling that California law governed the enforceability of the agreement for purposes of appellees’ summary-judgment motion, it follows that the judge also erred by granting the summary-judgment motion.
III. CONCLUSION
For the foregoing reasons, we reverse the trial judge‘s January 17, 2012 order granting appellees’ motion for summary judgment. We remand the case for further proceedings on Ennis‘s tortious-interference claims against appellees. We express no opinion as to which state‘s law should be applied to the issues in this case in those further proceedings. See Hughes Wood Prods., 18 S.W.3d at 209 (“We leave open the question of which state‘s law the trial court should apply to the particular substantive issues to be resolved below.“). We affirm the judgment in all other respects.
D. Brent Lemon, Law Office of D. Brent Lemon, Dallas, for Appellee.
Before Justices FRANCIS, LANG-MIERS, and BROWN.
OPINION
Opinion by Justice LANG-MIERS.
This appeal arises from a dispute over a fee-splitting agreement between two lawyers who practiced law together from 1990 to 2003. D. Brent Lemon sued Evan Lane (Van) Shaw for, among other things, breach of contract, breach of fiduciary duty, and theft under the Texas Theft Liability Act (the Theft Act). Shaw counterclaimed for breach of contract and breach of fiduciary duty. A jury found that both parties breached the contract and awarded zero damages. The trial court denied Shaw‘s motion for attorney‘s fees as the prevailing party on Lemon‘s claim under the Theft Act and rendered a take-nothing judgment against both parties. Both parties appeal. The background and facts of this case are well known to the parties and we refer to the facts only as necessary to resolve the issues on appeal. For the following reasons, we affirm the trial court‘s judgment.
ATTORNEY‘S FEES UNDER THE THEFT ACT
In his sole issue on appeal, Shaw argues that the trial court erred by denying him an award of attorney‘s fees as the prevailing party on Lemon‘s claim under the Theft Act for three reasons: (1) a pleading for an award of attorney‘s fees under the Theft Act is not required because an award of attorney‘s fees is mandatory, (2) the issue of attorney‘s fees was tried by consent, and (3) he pleaded for an award of attorney‘s fees under the Theft Act. Shaw argues that the theft claim “was dismissed on directed verdict at the charge conference” and “[t]he trial court had no discretion to refuse to award Shaw his” attorney‘s fees. We affirm the trial court‘s denial of an award of attorney‘s fees to Shaw.
Background
Shaw pleaded for an award of attorney‘s fees for his breach of contract claim. The day before trial began, Shaw filed a document titled “Special Exceptions and Motion to Dismiss the Theft Liability Claim” (Special Exceptions). In the document, Shaw argued that this case “is a contractual dispute with multiple variables . . . and always has been a bona fide dispute over the payment of attorney‘s fees. There is no intentional criminal behavior to divert
After the evidence was presented and during the charge conference, the trial court presented a proposed jury charge to the parties that contained jury questions only on the parties’ respective breach of contract claims. Lemon‘s claim under the Theft Act was not included in the proposed charge. The trial court told the parties that it had considered all the proposed jury questions submitted by them and if those proposed jury questions were not in the charge they were denied. Then the following exchange occurred:
[SHAW‘S COUNSEL]: Just one more thing. Just for the record, I know you‘ve taken theft out [of the charge], but I just want to get on the record that I did file a Motion to Dismiss the theft claim and that claim is being dismissed. Is that correct?
THE COURT: Okay. You filed a motion?
[SHAW‘S COUNSEL]: To dismiss the theft claim and that‘s being taken out of this charge.
THE COURT: There is no theft claim in this charge.
. . .
[SHAW‘S COUNSEL]: So my Motion to Dismiss that claim is granted.
THE COURT: Oh, I think—I think implicitly that‘s true.
The record does not show that Shaw moved for directed verdict on the theft claim or that the trial court granted a directed verdict on the theft claim.
Discussion
Shaw‘s pleading asked for an award of attorney‘s fees specifically for his breach of contract claim; it did not ask for an award of attorney‘s fees specifically under the Theft Act. Shaw argues, however, that an award of attorney‘s fees to the prevailing party under the Theft Act is mandatory and that it is not necessary to plead for an award of attorney‘s fees under a mandatory fee-shifting statute. See
Lemon argues that Cricket Communications controls the resolution of this issue and because Shaw did not plead for an award of attorney‘s fees under the Theft Act he was not entitled to an award of attorney‘s fees under the Theft Act. Lemon also cites Kreighbaum v. Lester, No. 05-06-01333-CV, 2007 WL 1829729 (Tex. App.-Dallas June 27, 2007, no pet.) (mem. op.), to support his argument. We agree with Lemon.
In Kreighbaum, we affirmed the trial court‘s denial of an award of attorney‘s fees on a breach of contract claim because the appellants’ written pleading did not specifically ask for an award of attorney‘s
Then, in Cricket Communications, the trial court denied an award of attorney‘s fees under the Theft Act. On appeal, the cross appellees argued that they were the prevailing parties on the theft claim and the trial court had no discretion to refuse to award them their fees. Cricket Communications, 235 S.W.3d at 310. We affirmed the denial because none of the cross appellees had pleaded for an award of attorney‘s fees under the Theft Act. Id. We said that the purpose of the pleading requirement is “to give an adversary notice of claims and defenses, as well as notice of the relief sought.” Id. We said the cross appellees’ plea for an award of attorney‘s fees under a different statute would not support an award of attorney‘s fees under the Theft Act. Id. We also said a trial court cannot render “judgment on a theory of recovery not sufficiently set forth in the pleadings or otherwise tried by consent.” Id.
Shaw contends that those cases are at odds with later decisions from this Court. We do not agree. In Alan Reuber Chevrolet, we said “[a]bsent a mandatory statute, a trial court‘s jurisdiction to render a judgment for attorney‘s fees must be invoked by pleadings, and a judgment not supported by pleadings requesting an award of attorney‘s fees is a nullity.” 287 S.W.3d at 884 (citations omitted). Although a mandatory statute was not at issue in that case, we said that under a mandatory statute, a pleading for an award of attorney‘s fees was not required to invoke a trial court‘s jurisdiction. See id. We also said that a judgment for attorney‘s fees must be supported by the pleadings. Id. And we pointed out the reasons for requiring a party to plead for an award of attorney‘s fees—“to define the issues at trial, and to give the opposing party information sufficient to enable him to prepare a defense.” Id. Additionally, Imagine Automotive Group did not discuss the pleading requirement that was the issue in Cricket Communications. The issue in Imagine Automotive Group was whether attorney‘s fees awarded under the Theft Act must be included in the security amount posted to suspend enforcement of a judgment pending appeal. 356 S.W.3d at 716-20. We conclude that Alan Reuber Chevrolet and Imagine Automotive Group do not support Shaw‘s argument.
In summary, a pleading that does not ask for an award of attorney‘s fees under a mandatory statute does not give notice to the opposing party of all the relief sought. See Cricket Communications, 235 S.W.3d at 310. And a plea for an award of attorney‘s fees for breach of contract will not support an award of attorney‘s fees under the Theft Act. See id.; Kreighbaum, 2007 WL 1829729, at *2-3. Because Shaw pleaded specifically for an award of attorney‘s fees for his breach of contract claim, but not for an award of attorney‘s fees under the Theft Act, we conclude that the trial court did not err by denying an award of attorney‘s under the Theft Act on that basis.
Shaw also argues that the issue of attorney‘s fees under the Theft Act was tried by consent. Again, we disagree. Although the parties agreed to submit the
Shaw also claims that he specifically asked for an award of attorney‘s fees under the Theft Act in his Special Exceptions. But Shaw did not present the Special Exceptions to the trial court, the trial court did not conduct a hearing on the Special Exceptions, and the court did not give Lemon an opportunity to respond or amend his pleading. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) (generally trial court must give nonmovant opportunity to amend pleading before sustaining special exceptions and dismissing nonmovant‘s claim); see also
CROSS APPEAL
In a cross appeal, Lemon raises five issues challenging the trial court‘s rulings (1) prohibiting him from participating in his own representation; (2) denying his motion for mistrial and continuance; (3) admitting certain evidence; (4) implicitly granting Shaw‘s untimely special exceptions and motion to dismiss the theft claim; and (5) failing to submit jury questions on his claims for breach of fiduciary duty, theft, and conversion.
Background
Lemon and Shaw were represented at trial by their respective retained counsel. On the first day of trial, Lemon, as plaintiff, testified as a witness in his case in chief. At the beginning of the second day of trial, Lemon intended to call as a witness the court-appointed computer expert to testify about Shaw‘s alleged spoliation of evidence on Shaw‘s computer. Lemon had personally prepared to conduct the examination of the expert and his retained counsel had prepared to conduct the examination of the other witnesses and make closing arguments. Before Lemon called the expert to the witness stand, however, Shaw objected arguing that under rule 3.08 of the rules of professional conduct, Lemon could not be a party represented by counsel and also participate as an advocate.
Shaw argued that rule 3.08 prohibits a lawyer from serving in the dual role of advocate and witness unless an exception applies.
Disqualification of Lemon
In cross appeal issue one, Lemon argues that the trial court denied him the right to counsel of his choice by disqualifying him from examining witnesses and that Shaw did not show actual prejudice as a result of Lemon‘s participation in the examination of witnesses. The trial court stated that the basis of his disqualification of Lemon was rule 3.08(a)(4)—that Lemon had retained counsel and, as a result, was not appearing pro se. See
We examine a trial court‘s ruling under rule 3.08(a)(4) for an abuse of discretion. See Ayres v. Canales, 790 S.W.2d 554, 557 (Tex.1990) (orig. proceeding). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to guiding rules and principles. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex.1992); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex.1985).
Rule 3.08 was “promulgated as a disciplinary standard” but also provides guidance for procedural disqualification disputes.
Disqualification is a severe remedy. Disqualification is a measure that can cause immediate harm by depriving a party of its chosen counsel and disrupting court proceedings. Thus, “[m]ere allegations of unethical conduct or evidence showing a remote possibility of a violation of the disciplinary rules will not suffice” to merit disqualification. The fact that a lawyer serves as both an advocate and a witness does not in itself compel disqualification. Disqualification is only appropriate if the lawyer‘s testimony is “necessary to establish an essential fact.” Consequently, the party requesting disqualification must demonstrate that the opposing lawyer‘s dual roles as attorney and witness will cause the party actual prejudice. Without these limitations, the rule could be improperly employed “as a tactical weapon to deprive the opposing party of the right to be represented by the lawyer of his or her choice.”
In re Sanders, 153 S.W.3d at 57 (internal citations omitted).
To support his motion to disqualify Lemon, Shaw argued:
[M]y understanding—obviously attorneys can be witnesses and cross-examine witnesses in some situations, but I think the rule that would apply here is that given the fact Mr. Lemon‘s a lawyer and
a party however he‘s not pro se, that the lead lawyer should be taking the witnesses and we‘re not allowed—we‘re doing the same thing for Mr. Shaw. And normally I wouldn‘t make this kind of objection, but given the history of this case and the hostility I would appreciate—[interruption by trial court].
We agree with Lemon that Shaw did not satisfy his burden of showing actual prejudice. Because disqualification is a severe remedy and requires a showing of actual prejudice, and Shaw did not state how Lemon‘s participation as an advocate and a witness would actually cause him prejudice, we conclude that the trial court abused its discretion by granting Shaw‘s motion to disqualify. See In re Sanders, 153 S.W.3d at 57. Having concluded there was error, we now must determine whether the error probably caused the rendition of an improper judgment. See
In responding to Shaw‘s motion to disqualify, Lemon argued primarily that the motion had been waived as untimely. Lemon asked the trial court to make an exception to its ruling by allowing him to examine the expert because he had “come from Austin.” But the record is silent about whether Lemon advised the trial court that his retained counsel was unprepared to examine the expert. And neither Lemon nor his retained counsel made an offer of proof or a formal bill of exceptions. See
Lemon advised the trial court for the first time that his retained counsel was unprepared to examine the expert in his affidavit attached to his motion for new trial. Lemon said that with his “accounting and computer information system background along with [his] extensive familiarity with the actions taken, the testing performed, and the data information obtained by [the expert] . . . it has been my intent since December 2003 and throughout trial preparation to be the attorney who called and examined [the expert] at trial.” Lemon generally stated in his affidavit that retained counsel “was not prepared to present and examine [the expert,] [and] information and evidence relative to Van Shaw‘s spoliation were not revealed and presented to the jury.” He also said that “[i]naccurate representations made by counsel for Van Shaw as to [the expert]‘s actions and findings also were not refuted due to the lack of preparation by [retained counsel] to handle the [expert] testimony and evidence.” But Lemon did not present any evidence at the hearing or in his motion for new trial about what he anticipated the expert would have said about Shaw‘s alleged spoliation, what the expert would have said about the “[i]naccurate representations,” or how the expert would have refuted the alleged “[i]naccurate representations.” And he did not state in his affidavit any specific testimony he would have elicited that his retained counsel failed to elicit due to his lack of preparation. Because there is nothing in the record about what the expert would have testified to if Lemon had not been disqualified and had been allowed to examine the expert, we cannot conclude that the error probably caused the rendition of an improper judgment. We resolve cross appeal issue one against Lemon.
Motion for Continuance
In cross appeal issue two, Lemon argues that the trial court abused its discretion by denying him a mistrial or alternatively a one-day continuance after refusing to allow him to participate as an advocate. He argues that his retained counsel was unprepared to examine the expert witness and, as a result, failed to elicit opinions
We review a trial court‘s ruling on a motion for mistrial or continuance under an abuse of discretion standard. Deese v. Combined Specialty Ins. Co., 352 S.W.3d 864, 866 (Tex.App.-Dallas 2011, no pet.) (mistrial); BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.2002) (continuance).
Lemon did not present any arguments to the trial court and does not make any arguments on appeal about why a mistrial should have been granted. Consequently, we cannot conclude that the trial court abused its discretion by denying a mistrial. With respect to Lemon‘s motion for continuance, an application for continuance must be based on “sufficient cause supported by affidavit.”
Evidentiary Rulings
In cross appeal issue three, Lemon argues that the trial court abused its discretion by admitting two exhibits offered by Shaw. We review a trial court‘s evidentiary rulings for an abuse of discretion. Barfield v. SST Truck Co., L.L.C., 220 S.W.3d 206, 210 (Tex.App.-Dallas 2007, no pet.).
Lemon first complains about the trial court‘s admission of an exhibit titled “Summary of Damages and Breakdown of Categories of Damages.” The court admitted this document under rule 1006, which permits the admission of summaries of records that are “voluminous [and] otherwise admissible, which cannot conveniently be examined in court[.]”
The Summary of Damages is nine pages. It itemizes in detail by case the attorney‘s fees received by Shaw and Lemon and by month the office and non-case related expenses. It refers to specific trial exhibits and Bates-numbered documents produced in discovery for support of the calculations contained in the document. And it reflects that Shaw owes Lemon $720,493, and Lemon owes Shaw $818,942.
The Summary of Damages was prepared by Shaw and given to Lemon shortly before trial. During Lemon‘s examination of Shaw, Lemon asked Shaw to confirm the portion of the document showing Shaw owes Lemon $720,493. Then when Shaw‘s counsel began his examination of Shaw, he offered the document as evidence. Lemon objected that the document contained hearsay and had not been produced in discovery. The trial court overruled Lemon‘s objections.
On appeal, Lemon argues that the trial court should have excluded the Summary of Damages because Shaw did not produce it in discovery, did not include it on his trial exhibit list until the day before trial, and the document “was not accurate and it contained highly prejudicial statements.” The only appellate complaints raised below are whether the Summary of Damages was produced in discovery or timely included on Shaw‘s trial exhibit list. See
Rule 1006 states that a summary‘s underlying records must have been made available to the opponent for inspection,
Lemon next complains about the trial court‘s admission of an exhibit titled “Terms of Settlement.” The Terms of Settlement is a two-page document and was part of a multiple-document exhibit offered by Shaw as a business record. It appears to be a prior settlement of the parties’ dispute dated August 13, 2004. Lemon objected that the document contained hearsay and “they‘re not actually business records. These are records that were produced between the two parties during the course of litigation.” The trial court overruled the objection.
On appeal, Lemon does not argue that the document contained hearsay or was not a business record. Instead, he contends that the trial court should have excluded the document because the court had previously ruled the document was void and unenforceable and “the purpose of the submission of the document into evidence was to advise the jury of the terms of the prior settlement.” See
Shaw‘s Special Exceptions and Motion to Dismiss
In cross appeal issue four, Lemon contends that the trial court abused its discretion by implicitly granting Shaw‘s Special Exceptions and dismissing Lemon‘s claim under the Theft Act.1 As we have explained, Shaw filed the Special Exceptions the day before trial. He did not present the Special Exceptions to the trial court, and there is no written order granting the Special Exceptions and dismissing the theft claim. However, we construe the trial court‘s remarks at the charge conference as an implicit ruling on Shaw‘s Special Exceptions. See AIS Servs., LLC v. Mendez, No. 05-07-01224-CV, 2009 WL 2622391, at *1-2 (Tex.App.-Dallas Aug. 27, 2009, no pet.) (mem. op.). We review a trial court‘s ruling on special exceptions for an abuse of discretion. Sonnichsen, 221 S.W.3d at 635.
The Theft Act states, “A person who commits theft is liable for the damages resulting from the theft.”
The purpose of special exceptions is to require a pleader to be more specific and clear in its allegations. Sonnichsen, 221 S.W.3d at 635. When a court grants a party‘s special exceptions, generally the court must give the other party an opportunity to amend the pleadings before the court dismisses the claim. Id. The record is undisputed that the trial court did not conduct a hearing on Shaw‘s Special Exceptions and did not give Lemon an opportunity to amend his pleading before refusing to submit the theft claim to the jury. Lemon must show, however, that any error in dismissing the claim “probably caused the rendition of an improper judgment[.]”
Lemon argues that he offered evidence proving Shaw violated the Theft Act. He specifically refers us to the Summary of Damages showing monies owed to Lemon by Shaw and evidence that Shaw “handled all the details for distribution and Lemon was not provided a reconciliation or the calculations,” Lemon “felt betrayed and hurt when he learned his partner had unilaterally changed the terms of their agreement and had completely withheld payment on some of the cases,” Shaw “authorized the destruction of the case files with his handwritten note of ‘DESTROY,‘” “Shaw admitted he still owes Lemon some fees recovered by the firm,” and “Shaw admit[ted] he was asked to hold in trust the funds due Lemon in the Cull matter but that he refused to do so.” But Lemon does not state whether his Theft Act claim is based on an alleged violation of penal code section 31.03 (theft) or section 31.04 (theft of service), does not identify the elements of a claim under either section, and does not explain how any of the evidence he cites constituted more than a scintilla of evidence on any of the unidentified elements of his claim. We conclude that Lemon has not shown that any error in implicitly granting Shaw‘s Special Exceptions probably caused the rendition of an improper judgment. We resolve cross appeal issue four against Lemon.
Jury Charge
In cross appeal issue five, Lemon argues that the trial court erred by refusing to submit jury questions on his claims for breach of fiduciary duty, theft, and conversion. We review a trial court‘s decision to submit or refuse a jury question for an abuse of discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006) (per curiam).
Lemon argues that there was more than a scintilla of evidence to support submission of these claims to the jury. He argues that “[t]he testimony and documentary evidence established a partnership/joint venture existed between Lemon and Shaw, that Shaw was the senior part-ner
A trial court is required to submit only those claims raised by the pleadings and the evidence.
DALLAS/FORT WORTH INTERNATIONAL AIRPORT BOARD, Appellant v. ASSOCIATION OF TAXICAB OPERATORS, USA, Appellee.
No. 05-12-00777-CV.
Court of Appeals of Texas, Dallas.
April 4, 2014.
Rehearing Overruled May 12, 2014.
CONCLUSION
We affirm the trial court‘s judgment.