Lott v. Lott, 20181

• Decision Date: 06 August 1980
• Docket Number: No. 20181,20181
• Citation: 605 S.W.2d 665
• Parties: Daryl Glenn LOTT, Appellant, v. Claudia E. LOTT, Appellee.
• Court: Texas Court of Appeals

Page 665

605 S.W.2d 665

Daryl Glenn LOTT, Appellant, v. Claudia E. LOTT, Appellee.

No. 20181.

Court of Civil Appeals of Texas, Dallas.

Aug. 6, 1980.

Rehearing Denied Sept. 24, 1980.

Philip R. Russ, Dallas, for appellant.

Michael F. Pezzulli, Kelsoe & Ayres, Dallas, for appellee.

Before GUITTARD, C. J., and AKIN and HUMPHREYS, JJ.

HUMPHREYS, Justice.

Daryl Glenn Lott appeals from a divorce decree appointing his ex-wife, Claudia E. Lott, managing conservator of their child, and ordering child support. He also contends that his motion to disqualify appellee's counsel should have been granted, and that the court erred in entering a judgment nunc pro tunc without hearing evidence after it had granted appellant's motion for new trial. We affirm.

Eleven days after the original divorce decree was entered on June 15, 1979, appellant filed a motion for new trial or to set aside the judgment. A hearing on this motion was heard by a judge other than the one who tried the case. The hearing was held on July 13th, the thirtieth day after final judgment was rendered. At that hearing, appellant repeatedly informed the court that he was only asking the court to enter a corrected judgment, reciting that appellant did not announce ready for trial and changing the property division in certain respects. He asserted that he only wanted the court to set aside the judgment, and that it would not be necessary to retry the case. At the end of the hearing the judge stated, "(t)he court is going to grant the motion to set aside." The order signed on that day, however, grants a new trial. After the judge who heard the case returned, he signed a "Decree of Divorce Nunc Pro Tunc" on August 9, 1979, which amended the original decree only by stating that appellant had announced not ready for trial.

On appeal appellant contends that this judgment "nunc pro tunc" is void because the court did not hear evidence after it granted the motion for new trial. Appellee counters that appellant is estopped from arguing this point because of his assertions to the judge at the hearing on the motion for new trial that a new trial would not be necessary. We agree with appellee. After appellant argued to the trial court that if his motion was granted a new trial would not be necessary, and obtained a ruling based upon this assertion, he cannot change his position. A party who takes a position successfully in a judicial proceeding cannot then take an inconsistent position, especially if his adversary is thereby prejudiced. See May v. Wilcox Furniture Downtown, Inc., 450 S.W.2d 734, 739 (Tex.Civ.App.-Corpus Christi 1969, writ ref'd n.r.e.); Lobit v. Crouch, 323 S.W.2d 618, 620 (Tex.Civ.App.-Austin 1959, writ ref'd n.r.e.); Marvin v. Pierson, 115 S.W.2d 712, 713 (Tex.Civ.App.-Dallas 1938, writ dism'd). Appellee would be prejudiced if the second decree is declared void because a new trial would then be necessary. Consequently, appellant's argument that the decree is not valid because no evidence was taken prior to its rendition is overruled.

Appellant argues that if he is estopped from arguing that the court should have taken evidence prior to entry of this second judgment, then appellee is estopped from arguing that the "Decree of Divorce Nunc Pro Tunc" is valid. He bases this contention on the fact that appellee, prior to filing her brief in this court, in response to questions from this court, stated in a latter brief to the court that this second judgment was not valid. We cannot agree that appellee is estopped to assert that the judgment is valid. This action was not dismissed by the court pursuant to her contention. Therefore, she did not successfully maintain one position and then change her position in a subsequent proceeding. In appellee's brief filed with this court, and at oral argument, she contended the decree was indeed valid, and that she was mistaken in her earlier statement to the court that it was not. Appellant argues that he was prejudiced by this statement because he did not bring forward several points of error which he would have presented. As this court has now allowed appellant to raise these contentions in a supplemental brief, appellant has not been prejudiced.

We next consider appellant's arguments concerning his motion to disqualify appellee's counsel. At a hearing on this motion, appellant testified that he had employed the law firm of Kelsoe and Ayres to represent him in a lawsuit against Reproductive Services, Inc., and that subsequently, he and his wife both employed them in that suit. About this time appellee, represented by Kelsoe and Ayres, filed suit for divorce from appellant. Although appellant later testified that he never received a copy of the letter, he admitted that he saw a letter from the firm of Kelsoe and Ayres saying that they could no longer represent him in the suit against Reproductive Services, Inc. Appellant later intervened in that suit. He now argues that the trial court erred in not granting his motion to disqualify counsel because the above facts reveal a conflict of interest. In particular, he relies on the Code of Professional Responsibility, Canon 9 of the American Bar Association, which provides that an attorney shall avoid even the appearance of impropriety.

The rule is that the attorney shall be disqualified from representing a client when the adverse party is a former client, if the matter in which he represented the former client is "substantially related" to the present action. Westinghouse Electric Corp. v. Gulf Oil Corp., 588 F.2d 221, 223 (7th Cir. 1978); Howard Hughes Medical Institute v. Lummis, 596 S.W.2d 171, 174 (Tex.Civ.App.-Houston (14th Dist.) 1980, no writ). On this record, we cannot say that the two actions are substantially related. The pleadings in the suit against Reproductive Services, Inc. were not admitted into evidence. All the record discloses is that the action against Reproductive Services, Inc. was for personal injuries to appellee. In the divorce decree, the court awarded appellee the proceeds of that claim as her separate property, and appellant was awarded the amount of his claim in intervention as his separate property.

Appellant argues that the suits are related because appellee changed her pleadings in the Reproductive Services, Inc. action from a claim for treble damages under the Deceptive Trade Practices Act, Tex.Bus.&Com. Code Ann. §§ 17.41-17.63 (Vernon Supp. 1980), to a claim only for negligence, thereby changing the proceeds from community property to her separate property. The record of this hearing, however, does not reflect this fact. While there may be the appearance of impropriety here, it is not sufficient to warrant the disqualification...