Levine v. Shackelford, Melton & McKinley, L.L.P., No. 05-05-00374-CV (TX 4/7/2006)
| Decision Date | 07 April 2006 |
| Docket Number | No. 05-05-00374-CV.,05-05-00374-CV. |
| Court | Texas Supreme Court |
| Parties | SOL LEVINE, DOROTHEA LEVINE, and MARDAN ENERGY CORPORATION, Appellants, v. SHACKELFORD, MELTON & MCKINLEY, L.L.P., BRAGG CHUMLEA McQUALITY; and JOSEPH G. CHUMLEA, P.C., Appellees. |
On Appeal from the 68th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 04-11185-C.
Affirmed.
Before Justices RICHTER, LANG, and MAZZANT.
This is an appeal from a no-answer default judgment rendered in a lawsuit filed by appellees, Shackelford, Melton & McKinley, L.L.P.; Bragg Chumlea McQuality; and Joseph G. Chumlea, P.C (collectively, "the law firms"), to collect legal fees and a contingent fee interest allegedly owed to them by appellants, Sol and Dorothea Levine and Mardan Energy Corporation (collectively, "the Levines"). The Levines raise six issues on appeal: (1) the trial court erred in granting a default judgment in favor of the law firms because an answer was on file when the final judgment was signed; (2) the Levines are entitled to a new trial because no hearing was held on the motion for default judgment and the motion was not served on them; (3) the trial court abused its discretion in denying the Levines a new trial because they satisfied the Craddock requirements; (4) the law firms presented no evidence that their attorney's fees were reasonable and necessary; (5) the trial court lacked jurisdiction to award the law firms a contingent fee because the claim was not ripe; and (6) the final judgment grants more relief than was pleaded by the law firms. We affirm the judgment of the trial court.
The law firms filed their lawsuit on November 3, 2004, asserting causes of action against the Levines for suit on a sworn account, for breach of contract, and for a debt. The petition alleged that the Levines breached their obligations under a written fee agreement with the law firms in connection with litigation pending in Madison County, Texas.1 Prior to filing the lawsuit, the trial court allowed the law firms to withdraw from the Madison County litigation, with the consent of the Levines. Shackelford, Melton, & McKinley ("SMM") sought $123,081.32 and the other two firms collectively sought $34,777.05 in unpaid legal fees dating back to the summer of 2004.
The record indicates that the Levines' answer was due on November 29, 2004. On November 23, 2004, the Levines' attorney contacted an attorney for SMM, acknowledging the November 29th deadline and requesting a standstill agreement. The next day the SMM attorney advised him to file the answer because no agreement for standstill was possible. The Levines' attorney agreed to file an answer by the deadline. When the answer was not filed as promised, on December 6, 2004, another SMM attorney left a voice mail message advising that the law firms would take a default if no answer was filed. The next day, the Levines' attorney advised that an answer would be filed on December 8, 2004; however, on that day, the Levines' attorney sent by e-mail a draft of the proposed answer with an assurance that he would send the answer to the court "by the end of the week," if there were no changes. The record reflects that no changes were made to the draft.
On December 17, 2004, with no answer from the Levines on file with the court, the law firms filed their motion for default judgment, along with a Soldiers and Sailors Relief Act affidavit and a certificate of last known address. On that same date, the trial court entered the default judgment against the Levines without a hearing.
On January 31, 2005, the trial court held a hearing on the Levines' first amended motion to vacate and set aside default judgment and for new trial. The Levines attached as an exhibit to this motion a copy of the answer to the law firms' petition that their attorney claimed to have placed in the outgoing mail bin in his office on December 13, 2004. After hearing argument, the trial court denied the motion. On February 24, 2005, the Levines filed Defendants' Supplement to Previous Motions to Vacate and Set Aside Default Judgment and for New Trial, and Alternatively, Motion to Dismiss Plaintiffs' Contingent Fee Claim. Additionally, they filed an amended answer to the original petition, as well as a motion for leave to file the amended answer. The supplemental motion was heard by the trial court on March 1, 2005, and denied on March 2, 2005. Leave to file the amended answer was never granted by the court.
On March 2, 2005, the Levines and the law firms entered into a Rule 11 agreement, which was filed with the court. The agreement authorized the court to correct a "clerical error" in the December 17th default judgment by interlineating the word "net" in the provisions concerning the contingent fee recovery. The court made the requested correction the day before it lost plenary power.
On April 4, 2005, the Levines filed Defendants' Motions to Vacate and Set Aside Modified Default Judgment and for New Trial, and Alternatively, Motion to Dismiss Plaintiffs' Contingent Fee Claim. The Levines contended that, by modifying the default judgment on March 2nd, the trial court's plenary power to grant them a new trial had been extended. There is nothing in the record to indicate that the trial court addressed this motion. The Levines subsequently filed this appeal.
In their first issue, the Levines argue that the trial court erred in granting a default judgment in favor of the law firms because an answer was on file when the final judgment was signed. See Tex. R. Civ. P. 239; Ferguson v. Naylor, 860 S.W.2d 123, 128-29 (Tex. App.-Amarillo 1993, writ denied) (). Specifically, the Levines contend that the trial court created a new final judgment on March 2, 2005 when it made the interlineations. According to the Levines, they had two answers on file with the trial court at that time: (1) their original answer, which was filed January 14, 2005, as Exhibit D to their first amended motion to vacate and set aside default judgment and for new trial, and (2) their amended answer, which was filed on February 24, 2005.
We must first determine if the Levines are correct regarding the date of the final judgment for purposes of default. An appeal can be prosecuted only from a final appealable judgment (with certain statutory exceptions that are not relevant here). See Tex. Civ. Prac. & Rem. Code Ann. § 51.012 (Vernon 1997), § 51.014 (Vernon Supp.2005). As a general rule, any change to a judgment made by a trial court while it retains plenary jurisdiction will restart the appellate timetable. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 313 (Tex. 2000). However, in the case before us, there was also an enforceable Rule 11 agreement signed by the Levines' attorney on their behalf. See Tex. R. Civ. P. 11 (). This "contract" specifically provided that "[a]ll deadlines for appeal in this case relating to the date of judgment shall relate to the date of the Default Judgment, namely December 17, 2004." See In re T.M., 33 S.W.3d 341, 347 (Tex. App.-Amarillo 2000, no pet.) (a Rule 11 agreement is nothing more than a contract that satisfies the terms of Rule 11 of the Texas Rules of Civil Procedure).2
By signing the Rule 11 agreement, the Levines' attorney bound them to its terms. Nevertheless, the Levines argue that the interlineation of the default judgment created a new judgment on March 2, 2005 for the purpose of determining default. We conclude that this is not consistent with the Rule 11 agreement's provision that December 17, 2004 be used to determine appellate deadlines.
Because only one final judgment may be rendered in a lawsuit, there cannot be two final default judgments here-one for determining the appellate deadlines and another to determine default. Tex. R. Civ. P. 301; Logan v. Mullis, 686 S.W.2d 605, 609 (Tex. 1985); Ferguson, 860 S.W.2d at 127. Pursuant to the Rule 11 agreement, December 17, 2004 must therefore be considered the date of the final default judgment for all purposes in this case. The trial court did not err in granting the no-answer default judgment. Accordingly, we overrule the Levines' first issue.
In their second issue, the Levines argue that they are entitled to a new trial because (a) no hearing was held on the motion for default judgment and (b) the motion was not served on them. We disagree because neither was required in this case.
Here, the trial court found that the law firms' claim on the sworn account was liquidated pursuant to Rule 185 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 185. A claim is liquidated under Rule 185 if the amount of damages can be accurately calculated by the trial court from the factual allegations, as opposed to the conclusory allegations, in the plaintiff's petition and from the instrument in writing evidencing the account. Pine Trail Shores Owners' Ass'n, Inc. v. Aiken, 160 S.W.3d 139, 144 (Texas App.-Tyler 2003, no pet.). If the trial court was correct in its assessment, then it did not need to hear evidence as to damages. See Tex. R. Civ. P. 241 (); Rizk v. Financial Guardian Ins. Agency, 584 S.W.2d 860, 862 (Tex. 1979) (). The Levines, however, contend that the law firms did not present the written fee agreement as the instrument in writing to the trial court in support of the account and that, as a result, a hearing was...
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