Douglas-Peters v. Cho, Choe & Holen, P.C.
| Decision Date | 03 March 2017 |
| Docket Number | No. 05-15-01538-CV,05-15-01538-CV |
| Parties | JOSEPHINE DOUGLAS-PETERS, Appellant v. CHO, CHOE & HOLEN, P.C., Appellee |
| Court | Texas Court of Appeals |
On Appeal from the 116th Judicial District Court Dallas County, Texas
Before Justices Lang, Myers, and Evans
Opinion by Justice Lang
Josephine Douglas-Peters1 appeals the trial court's final judgment in favor of Forest Law, P.C. d/b/a Cho, Choe & Holen, P.C.,2 as assignee of Choe, Holen, Yoo & Burchfiel, P.C.,3 on its claim against Douglas-Peters for breach of a legal representation retainer agreement and awarding it $90,453.21 in damages. Douglas-Peters raises four issues on appeal, arguing: (1) the evidence is legally and factually insufficient to support the trial court's finding of fact andconclusion of law on her affirmative defense of limitations; (2) the trial court erred when it concluded that (a) Forest Law had standing, (b) Forest Law had capacity, and (c) there was no defect of parties;4 (3) the trial court erred when it concluded the contingent-fee provision of the retainer agreement was enforceable; and (4) (a) the trial court erred when it denied her motion for summary judgment on her counterclaims for unjust enrichment and conversion and (b) the evidence is legally and factually insufficient to support the trial court's finding of fact that the $80,000 Texas Kore Law retrieved from the registry of the court should be credited against Forest Law's actual damages. We conclude the trial court did not err in its holdings as to standing, capacity, defect of parties, or enforceability of the contingent-fee provision of the retainer agreement, the evidence is legally and factually sufficient to support the trial court's judgment, and Douglas-Peters may not appeal the trial court's denial of her pro se motion for summary judgment. The trial court's final judgment is affirmed.
On April 18, 2008, Texas Kore Law, P.C., filed an assumed name certificate with the Dallas County Clerk, stating that it intended to conduct business under the name "Choe, Holen, Yoo & Burchfiel, P.C."
In August 2008, Douglas-Peters filed her original pro se petition against C.F. & H. Corporation d/b/a South Dallas Nursing Home, Dr. Leona Hawkins, Juliette Wesley, and Charles W. Smith for retaliatory discharge under section 242.133 of the Texas Health and Safety Code. On September 12, 2008, Douglas-Peters signed a retainer agreement with Michael Burchfiel and the law firm of "Choe, Holen, Yoo & Burchfield" to represent her in the underlying case against her former employer. "[Texas Kore Law's] rights under the [retainer agreement] were notconditioned upon Burchfiel's continued involvement in the case."5 The retainer agreement contained a contingent-fee provision, stating, in part, that "[t]hirty days before this case is first set for trial, whether or not the case actually goes to trial on that date or is reset, [Douglas-Peters] agrees to pay [Texas Kore Law and Burchfiel] forty percent (40.00%) of the total recovery."
On June 2, 2009, Texas Kore Law filed a motion for partial summary judgment on Douglas-Peters' behalf. The trial court granted that motion.
After Yoo and Burchfiel stopped working with the firm, Texas Kore Law filed an assumed name certificate with the Dallas County Clerk on June 10, 2009, stating that it intended to conduct business under the name "Choe Holen, P.C." Also, on June 12, 2009, Texas Kore Law filed an assumed name certificate with the Texas Secretary of State, stating that the assumed name under which the business or professional service is to be conducted or rendered is "Choe Holen, P.C."
On October 19, 2009, there was a bench trial on the remaining issue of damages. At the trial, Douglas-Peters appeared in person and through her attorney, but South Dallas Nursing Home, Hawkins, Wesley, and Smith did not appear. On October 27, 2009, the trial court signed a final judgment awarding Douglas-Peters $197,714 for economic damages, $50,000 for mental anguish damages, $75,000 for exemplary damages, and that South Dallas Nursing Home, Hawkins, Wesley, and Smith pay $80,000 for attorneys' fees Douglas-Peters incurred through trial, plus post-judgment interest. Afterward, Douglas-Peters, through her attorneys, began efforts to collect on the final judgment, including having certain real property belonging to the judgment debtors sold at auction.
On January 1, 2010, Douglas-Peters sent Texas Kore Law a letter asking that it withdraw from representing her and, requesting that in lieu of the contingent fee, it accept, according to theletter, "reasonable payment from the recovery for hours actually worked on the case . . . along [with] any other fees and cost[s] paid." On January 19, 2010, Texas Kore Law sent Douglas-Peters a letter advising that it had filed a motion to withdraw based on her termination of the attorney-client relationship and, according to that letter, was "treating [her] . . . request to reduce fees as a dispute of the attorneys['] fees and expenses due under the retainer agreement." On January 29, 2010, the trial court granted Texas Kore Law's motion to withdraw as attorney of record.
"[O]n February 2, 2010, [the] [a]ssistant [d]eputy [c]onstable [] conducted an auction and sold [South Dallas Nursing Home, Hawkins, Wesley, and Smith's] property for $412,000 to satisfy the judgment with interest of $411,872.19."6 Andrew Holen attended the auction. After the sale was completed, at the site of the auction, Holen approached Douglas-Peters and requested that she tender the contingent fee plus expenses. Douglas-Peters refused. "The portion of the judgment awarded to [Douglas-Peters] as attorneys' fees, [i.e., $80,000,] was [deposited] into the Court's registry due to the dispute between [Texas Kore Law] and Douglas-Peters over contractual attorneys' fees."7 Also, as a result of Douglas-Peters' refusal to pay the contingent fee, that same day, Texas Kore Law filed its original petition in intervention in the underlying suit, seeking to enforce the retainer agreement and recover attorneys' fees of "approximately $164,000" plus expenses of $6,000. Then, Texas Kore Law filed a motion for summary judgment on its petition in intervention, which the trial court granted on May 5, 2010. Shortly afterward, the trial court ordered the $80,000 held in the registry of the court to be released to Texas Kore Law as partial satisfaction of the judgment. Douglas-Peters' appealed the trial court's decision. On appeal, this Court vacated the trial court's May 5, 2010 final summaryjudgment because the petition in intervention was filed after the trial court's plenary power had expired and dismissed the appeal. See Douglas-Peters v. Choe, Holen, Yoo & Burchfiel, P.C., No. 05-10-00208-CV, 2010 WL 4946612, at *1 (Tex. App.—Dallas Dec. 7, 2010, no pet.) (mem. op.).
On October 15, 2012, Texas Kore Law, P.C. d/b/a Choe Holen, P.C., executed an asset purchase agreement with Forest Law, P.C. d/b/a Cho, Choe & Holen. The asset purchase agreement stated it included an assignment of "[a]ll of [Texas Kore Law's] right, title and interest to any claims it may have against [Texas Kore Law's] former client, [] Douglas-Peters, including claims for attorneys['] fees and costs associated with [] Douglas-Peters in that case entitled Josephine Douglas-Peters v. C.F. & H. Corp. et al., Cause No. 0809621."
On February 3, 2014, Forest Law, as assignee of Texas Kore Law's claims, filed its original petition against Douglas-Peters, asserting a claim for breach of contract. Forest Law claimed that pursuant to the retainer agreement it was owed $164,800, 40% of the amount recovered pursuant to the final judgment in favor of Douglas-Peters on her claims against South Dallas Nursing Home, Hawkins, Wesley, and Smith. In her first amended original answer, Douglas-Peters generally denied the claim and asserted the affirmative defenses of collateral estoppel, res judicata, and that the suit was barred by the statute of limitations.8 Douglas-Peters also stated she was filing a "verified denial" on the basis that the mediation requirement contained in the retainer agreement had not been satisfied and the consideration for the retainer agreement had failed. See TEX. R. CIV. P. 93(9). However, Douglas-Peters' first amended original answer was not verified by affidavit.9 See TEX. R. CIV. P. 93. Additionally, Douglas-Peters filed a counterclaim against Forest Law for conversion and sought attorneys' fees. ForestLaw answered, generally denying the claim, and asserted the affirmative defense that the claim was barred by the statute of limitations.
Then, on March 20, 2014, Douglas-Peters filed third-party claims against Choe, individually, Holen, individually, and Burchfiel, individually, for breach of contract, negligence, conversion, and malicious prosecution, and sought attorneys' fees. Choe and Holen filed their original answer to the third-party claims, generally denying the allegations, and asserted the affirmative defense that all of the third-party claims against them were barred by the statute of limitations. Burchfiel also filed an answer to the third-party claims, generally denying the allegations, and asserted several affirmative defenses.
On October 15, 2014, Douglas-Peters filed a motion for summary judgment seeking traditional summary judgment on her affirmative defense that Forest Law's breach of contract claim was barred by the statute of limitations.
On October 29, 2014, Forest Law, Holen, and Choe filed a motion for traditional and no-evidence summary judgment on Forest Law's claim for breach of contract, and Douglas-Peters' conversion counterclaim against Forest Law and third-party claims against Holen and Choe for conversion.
In addition to the motion for summary judgment filed by her attorney, on December 12, 2014, Douglas-Peters filed a pro se motion for summary judgment. Based on the argument in the...
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