Philip Gregory Byrd, Lucy Leasing Co. v. Vick

• Decision Date: 12 September 2013
• Docket Number: No. 02–11–00468–CV.,02–11–00468–CV.
• Citation: 409 S.W.3d 772
• Parties: Philip Gregory BYRD, Lucy Leasing Co., LLC, and PGB Air, Inc., Appellants v. VICK, CARNEY & SMITH LLP, Cantey Hanger LLP, and Nancy Ann Simenstad, Appellees.
• Court: Texas Court of Appeals

409 S.W.3d 772

Philip Gregory BYRD, Lucy Leasing Co., LLC, and PGB Air, Inc., Appellants

v.VICK, CARNEY & SMITH LLP, Cantey Hanger LLP, and Nancy Ann Simenstad, Appellees.

No. 02–11–00468–CV.

Court of Appeals of Texas, Fort Worth.

Aug. 1, 2013.

Rehearing Overruled Sept. 12, 2013.

Lindsey M. Rames, Rames Law Firm, P.C., Dallas, TX, for Appellants.

Russell R. Barton, Roland K. Johnson, Johnson & J. Zach Burt, Harris, Finley & Bogle, P.C., Lisa V. Lumley, Joseph W. Spence & M. Keith Ogle, Shannon, Gracey, Ratliff & Miller, LLP, Fort Worth, TX, for Appellees.

Nancy Ann Simenstad, Aledo, TX, pro se.

PANEL: LIVINGSTON, C.J.; GARDNER and MEIER, JJ.

OPINION

TERRIE LIVINGSTON, Chief Justice.

This is an appeal from the trial court's final judgment incorporating a partial summary judgment and an order of dismissal. We reverse and remand in part and affirm in part.

Background

Appellant Philip Gregory Byrd and appellee Nancy Ann Simenstad were divorced in Parker County, Texas, in August 2008; the judge of the 415th District Court signed an agreed decree on August 11, 2008 and a decree nunc pro tunc on November 17, 2008. At different times during the divorce proceedings, appellees Vick, Carney & Smith LLP and Cantey Hanger LLP represented Nancy. In August 2010, Philip, Lucy Leasing Co., LLC, and PGB Air, Inc. sued appellees, bringing claims arising from appellees' alleged actions during and after the divorce proceedings. Lucy Leasing and PGB Air were companies formed by Philip before the divorce; a majority of the “right, title, and interest” in both companies was awarded to Philip in the agreed decree.¹ Appellants brought claims for aiding and abetting under family code section 42.003 (child custody interference), conspiracy, fraud, conversion, defamation, unfair debt collection practices, intentional infliction of emotional distress (IIED), unjust enrichment, and violations of the temporary orders and final decree.

On January 27, 2011, Cantey Hanger filed a motion to dismiss and motion for summary judgment on all of appellants' claims. Vick Carney filed a motion for summary judgment, or in the alternative a motion to dismiss, in March 2011. Nancy filed a pro se motion to dismiss and for summary judgment.

Appellants filed a second amended petition in May 2011, in which they removed their section 42.003 child custody interference allegation from their aiding and abetting claim and removed their claims regarding violation of the decree and temporary orders. On June 3, the trial court heard the summary judgment motions and granted the motions of Cantey Hanger and Vick Carney on all of appellants' claims. The trial court denied Nancy's motion, however.

Nancy filed a second motion to dismiss and for summary judgment, which the trial court ultimately granted, dismissing all of appellants' claims against Nancy and making all of the orders final and appealable. See Lehmann v. Har–Con Corp., 39 S.W.3d 191, 195 (Tex.2001).

Points on Appeal

Appellants bring nine points. In their first five points, they contend the trial court erred by concluding it had no jurisdiction over their claims against Nancy for fraud, conspiracy, conversion, defamation, and IIED. In their sixth through ninth points, they contend that the trial court erred by granting summary judgment for Cantey Hanger on their claims for fraud, conspiracy, aiding and abetting, and IIED. Although appellants' notice of appeal indicates the intent to appeal the summary judgment for Vick Carney, appellants' prayer asks this court to reverse only the summary judgment for Cantey Hanger and the order dismissing the claims against Nancy. Therefore, we will review only the orders for Cantey Hanger and Nancy. See Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex.1970); Murphy v. Gruber, 241 S.W.3d 689, 700 (Tex.App.-Dallas 2007, pet. denied).

Motion to Dismiss

Appellants did not challenge the trial court's dismissal of their unjust enrichment claim; thus, we will review the propriety of the dismissal order as to their claims for fraud, conspiracy, conversion, defamation, and IIED only.

Nancy's motion contends that because appellants' claims are based on the final decree—and thus are more properly brought in an enforcement action—they must be brought in the divorce court. According to Nancy, all of the claims against her are based on appellants' allegations that she failed to comply with the property division in the decree and that she failed to comply with the decree's provisions regarding possession of and access to the couple's children.

Although Nancy characterizes the suit as an enforcement action,² appellants, by their claims, do not seek to enforce the provisions of the decree; rather, they seek damages based on alleged wrongful conduct by Nancy during and after the divorce proceedings. See James v. Easton, 368 S.W.3d 799, 802–04 (Tex.App.-Houston [14th Dist.] 2012, pet. denied) (holding that claims against opposing litigant for wrongful conduct in lawsuit need not be brought in the suit in which the conduct occurs and can be the basis of an independent tort). Appellants' fraud and conspiracy claims are based on their allegations that Nancy conspired with Cantey Hanger to falsify an airplane bill of sale after the divorce and that she withdrew large amounts of money from a PGB bank account knowing she did not have the authority to do so. The conversion claims are likewise based on Nancy's alleged withdrawal of money from Lucy Leasing and PGB's bank account. The defamation and IIED claims are based on alleged actions occurring after the decree. These are not claims attempting to enforce the terms of the decree. See Fernander v. Fernander, No. 03–08–00222–CV, 2010 WL 1814672, at *3 (Tex.App.-Austin May 7, 2010, no pet.) (mem.op.); Solares v. Solares, 232 S.W.3d 873, 878 (Tex.App.-Dallas 2007, no pet.).

We conclude and hold that Nancy's claims are not enforcement claims for which the divorce court has exclusive, continuing jurisdiction³ and, thus, that the trial court erred by granting the motion to dismiss on that ground. ⁴ We sustain appellants' first through fifth issues.

Summary Judgment for Cantey Hanger

Appellants challenge the trial court's summary judgment for Cantey Hanger on their fraud, conspiracy, aiding and abetting, and IIED claims only. Therefore, we will review the propriety of the summary judgment on those claims only.

Standard of Review

We review a summary judgment de novo. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.2010). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to the nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex.2009). We indulge every reasonable inference and resolve any doubts in the nonmovant's favor. 20801, Inc. v. Parker, 249 S.W.3d 392, 399 (Tex.2008). A defendant who conclusively negates at least one essential element of a cause of action is entitled to summary judgment on that claim. Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 508 (Tex.2010); seeTex.R. Civ. P. 166a(b), (c). The defendant is required to meet the plaintiff's case as pleaded to demonstrate that the plaintiff cannot prevail. Cook v. Brundidge, Fountain, Elliott & Churchill, 533 S.W.2d 751, 759 (Tex.1976).

Applicable Facts

Appellants alleged in their second amended petition that Cantey Hanger and Nancy falsified a bill of sale for a Piper Seminole No. N21113 owned by Lucy Leasing to show that Nancy was a manager of Lucy Leasing and had authority to transfer ownership of the airplane. According to appellants, Cantey Hanger and Nancy did so to shift tax liability for the airplane sale to Lucy Leasing. Appellants also alleged that Cantey Hanger “purposefully failed to notify [Philip] and the [trial] Court of their changes to the Final Decree to Divorce so that the Court would grant the Motion for Judgment Nunc Pro Tunc and effectively change the division of debts past the date allowed for modification of the Decree.” Appellants do not challenge summary judgment on the second allegation, only the first relating to alleged falsification of the airplane bill of sale, which is the basis of their fraud, conspiracy, and aiding and abetting claims.

Specifically, appellants alleged as their aiding and abetting claim that

Defendant CANTEY HANGER assisted Defendant SIMENSTAD to commit fraud in the sale of aircraft belonging to Plaintiff LUCY. Defendant CANTEY HANGER aided Defendant SIMENSTAD by falsifying the bill of sale for the aircraft listing Defendant SIMENSTAD as a manager of Plaintiff LUCY and having Defendant SIMENSTAD sign as a manager of LUCY. Defendant CANTEY HANGER further assisted Defendant SIMENSTAD to evade tax liability for her sale of the aircraft and to shift the tax liability to Plaintiff LUCY.

Their conspiracy claim is that

Defendant CANTEY HANGER conspired with Defendant SIMENSTAD to complete a fraudulent bill of sale (a federal document) for an airplane awarded to her in the Decree by signing as “Nancy Byrd” and listing her title as “Manager” of Plaintiff LUCY, even though Defendant CANTEY HANGER and SIMENSTAD were aware that Defendant SIMENSTAD was never an officer, owner or manager of Plaintiff LUCY and that she changed her last name back to “Simenstad.” Defendants CANTEY HANGER and SIMENSTAD did so to fraudulently avoid tax liability, shifting it to Plaintiff LUCY.

Finally, under their fraud cause of action, they claimed that

Defendants CANTEY HANGER and SIMENSTAD, with the intent to avoid paying taxes and with the intent to shift tax liability to Plaintiff LUCY, falsified an aircraft bill of sale (a federal document) and refused to properly change the registration of the aircraft. Defendant SIMENSTAD was not allowed by law to sell the aircraft directly to a purchaser on behalf of Plaintiff LUCY.

Cantey Hanger moved for...