Leasure v. Peat, Marwick, Mitchell & Co.
| Decision Date | 04 December 1986 |
| Docket Number | No. 01-86-0252-CV,01-86-0252-CV |
| Citation | 722 S.W.2d 37 |
| Parties | W.C. LEASURE, Individually, Appellant, v. PEAT, MARWICK, MITCHELL & CO., Appellee. (1st Dist.) |
| Court | Texas Court of Appeals |
Joe M. Kirkham, Wendy E. Siceloff, Kirkham & Siceloff, Houston, for appellant.
Jim L. Flegle, G. Cresswell Templeton, III, Bracewell & Patterson, Houston, (of counsel), for appellee.
Before LEVY, HOYT and DUGGAN, JJ.
This is an appeal from the entry of summary judgment against appellant on the grounds that his counterclaim was barred by limitations, res judicata, and collateral estoppel.
Appellant, W.C. Leasure, is the major shareholder and former president of Mira-Pak, Inc. ("Mira-Pak"), a company specializing in the manufacture of fast food packaging machines. On April 16, 1979, Mira-Pak voluntarily filed a petition in bankruptcy seeking reorganization.
Appellee, Peat, Marwick, Mitchell & Co. ("PMM"), is an accounting partnership that had performed audits for Mira-Pak for the fiscal years 1976 and 1977.
On February 8, 1980, Leasure, individually and on behalf of Mira-Pak's shareholders, filed suit in state court against PMM, alleging gross negligence, "conspiracy to cover up," attempted fraudulent misrepresentation and omission, breach of fiduciary duty, and "business duress." These alleged causes of action all related to PMM's performance of Mira-Pak's audits for the fiscal years 1976 and 1977.
On September 6, 1980, the trial court entered an order dismissing Leasure's individual claim and abating the claims asserted on behalf of Mira-Pak's shareholders. Leasure subsequently amended his petition to sue derivatively and on behalf of Mira-Pak. In January 1981, Mira-Pak's trustee in bankruptcy intervened in the suit, asserting causes of action against PMM for "negligence and other torts." Subsequently, the trial court entered an order granting Leasure's motion for nonsuit of his derivative claims.
Leasure then entered into a settlement agreement with the trustee whereby Leasure and two related creditor companies agreed to prosecute the trustee's claims in return for an assignment of a one-half interest in any proceeds realized from the litigation. Leasure then filed his amended petition in intervention to allege causes of action for negligence and breach of contract arising from the audits for the fiscal years 1976 and 1977.
In response, PMM filed a motion for summary judgment alleging that the claims were barred by the statute of limitations. The trial court granted PMM's motion and entered final summary judgment against Leasure, dismissing all causes of action asserted in the amended intervention. Leasure appealed, and the court of appeals affirmed the summary judgment; the Supreme Court of Texas refused Leasure's application for writ of error and overruled his motion for rehearing.
After the judgment became final, PMM instituted a cause of action against Leasure for malicious prosecution arising from Leasure's previous suit ("the 1980 suit"). Leasure then filed a counterclaim, again asserting the causes of action that he had asserted individually in the 1980 suit. PMM filed a motion for summary judgment alleging that Leasure's counterclaim was barred by limitations, res judicata, and collateral estoppel, and seeking severance of the counterclaim. The trial court granted PMM's motion and entered a take-nothing judgment against Leasure, severing Leasure's counterclaim from the main suit, thus making PMM's judgment appealable.
Leasure contends, in his first point of error, that the trial court erred in concluding that his counterclaim was barred by limitations and in granting appellee's motion for summary judgment on that ground. Relying upon Tex.Civ.Prac. & Rem.Code Ann. sec. 16.069 (Vernon 1986), Leasure argues that his counterclaim was not barred because:
(a) If a counterclaim or cross claim arises out of the same transaction or occurrence that is the basis of an action, a party to the action may file the counterclaim or cross claim even though as a separate action it would be barred by limitation on the date the party's answer is required.
(b) The counterclaim or cross claim must be filed not later than the 30th day after the date on which the party's answer is required.
Leasure concedes that his action would be barred by limitations but for sections 16.069(a) and (b); there is no dispute that his action was filed within the time period prescribed in section 16.069(b).
PMM contends that section 16.069 is inapplicable because Leasure's counterclaim did not arise "out of the same transaction or occurrence" as appellee's action for malicious prosecution.
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Pitts & Collard, L.L.P. v. Schechter
...560 S.W.2d 85, 88 (Tex.1977) (interpreting predecessor statute substantially similar to section 16.069); accord Leasure v. Peat, Marwick, Mitchell & Co., 722 S.W.2d 37, 38 (Tex.App.-Houston [1st Dist.] 1986, no writ); Wells v. Dotson, 261 S.W.3d 275, 280–81 (Tex.App.-Tyler 2008, no pet.). “......
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Collard v. Schechter
...560 S.W.2d 85, 88 (Tex. 1977) (interpreting predecessor statute substantially similar to section 16.069); accord Leasure v. Peat, Marwick, Mitchell & Co., 722 S.W.2d 37, 38 (Tex. App.—Houston [1st Dist.] 1986, no writ); Wells v. Dotson, 261 S.W.3d275, 280-81 (Tex. App.—Tyler 2008, no pet.).......
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Rotella v. Pederson
...Appellees argue, § 16.069 does not control, because the counterclaims did not arise out of the same incident. In Leasure v. Peat, Marwick, Mitchell & Co., 722 S.W.2d 37 (Tex.App.--Houston[1st Dist.] 1986, no writ), a Texas court held that Leasure's counterclaims based on an audit that Peat ......
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