Roman-Perez v. Alvarez

• Decision Date: 19 November 2020
• Docket Number: NUMBER 13-19-00044-CV,NUMBER 13-19-00067-CV
• Parties: JESUS ROMAN-PEREZ, Appellant, v. ADOLFO ALVAREZ, Appellee. JOHN C. OSBORNE AND JESUS ROMAN-PEREZ, Appellants, v. ADOLFO 'AL' ALVAREZ, Appellee.
• Court: Texas Court of Appeals

JESUS ROMAN-PEREZ, Appellant, v. ADOLFO ALVAREZ, Appellee.

JOHN C. OSBORNE AND JESUS ROMAN-PEREZ, Appellants, v. ADOLFO 'AL' ALVAREZ, Appellee.

NUMBER 13-19-00044-CV

NUMBER 13-19-00067-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

November 19, 2020

On appeal from the 92nd District Court of Hidalgo County, Texas.

On appeal from the County Court at Law No. 8 of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Justices Benavides, Longoria, and Tijerina

Memorandum Opinion by Justice Benavides

Appellants John Osborne and Jesus Roman-Perez challenge the judgments rendered against them in favor of appellee Adolfo "Al" Alvarez.

In appellate cause number 13-19-00044-CV,¹ Roman-Perez² argues that the trial court erred by granting summary judgment (1) because there was no justiciable controversy between the parties and a declaratory judgment was not proper and (2) because there was a material fact issue regarding which of the two judgments (one from Harris County and one from Hidalgo County) was valid.

In appellate cause number 13-19-00067-CV,³ Osborne and Roman-Perez raise eight issues: (1-2) whether their bill of review states a cause of action that has a basis in law or fact; (3) whether their bill of review has a basis in law if the allegations entitled them to relief; (4) whether the trial court erred because Alvarez waived dominant jurisdiction in Hidalgo County; (5) whether the trial court erred by granting Alvarez's motion to dismiss because the Harris County judgment superseded the Hidalgo County judgment; (6) whether the Harris County judgment legally disposed of all claims between the parties; (7) whether the trial court lacked jurisdiction to enter a default judgment because of the Harris County judgment disposed of all claims between the parties; and (8) whether the trial court erred when it held there was no showing that the bill of review had no basis in fact. We reverse and remand in appellate cause number 13-19-00067-CV. We reverse and render in appellate cause number 13-19-00044-CV.

I. BACKGROUND

A. Background Facts

The multiple cases between the parties stem from an employment agreement gone wrong. Roman-Perez was indicted on federal drug trafficking charges and retained Alvarez, an attorney, to defend him. According to their pleadings and brief, Roman-Perez agreed to pay Alvarez a $15,000 retainer and instructed Alvarez to contact Roman-Perez's wife to collect payment of the retainer. Roman-Perez's wife put Alvarez in touch with a third-party agent who would pay the retainer. When Alvarez contacted the agent, Alvarez increased the amount of the retainer to $75,000, which was paid.

Alvarez represented Roman-Perez in the initial federal appearance hearing and conducted some discovery before Roman-Perez learned of the increased retainer amount and terminated his employment. Roman-Perez then hired Osborne to represent him and to recover the unused portion of the $75,000 retainer. On January 8, 2008, Osborne sent Alvarez a letter requesting an accounting of the $75,000 retainer and a refund of any unused money stating in accordance with the Texas Disciplinary Rules of Professional Conduct. Osborne asked for the accounting and refund within one week, or he would advise Roman-Perez to file a grievance with the State Bar of Texas.

B. Lawsuits Filed

1. Hidalgo County Lawsuit

Instead of providing the requested accounting and refund, Alvarez filed a lawsuit in Hidalgo County against Osborne and Roman-Perez on January 23, 2008 (Hidalgo County lawsuit).⁴ Alvarez alleged that Osborne and Roman-Perez's conduct "constitutes conspiracy, breach of contract, and tortious interference with a contract" and requested damages and attorney's fees. Although Alvarez filed the lawsuit in January 2008, he did not serve Osborne or Roman-Perez with the lawsuit at that time.

On August 8, 2008, following service of an additional lawsuit filed in Harris County by Roman-Perez, Alvarez finally served Osborne and Roman-Perez with the Hidalgo County lawsuit. Following service, on September 19, 2008, Osborne filed a motion to transfer venue in the Hidalgo County lawsuit alleging that Alvarez "engaged in forum shopping" and Hidalgo County was not the proper venue because the facts surrounding the case occurred in Harris County. Osborne's motion to transfer venue was denied by the Hidalgo County Court trial court on November 19, 2008.

The Hidalgo County trial court granted an interlocutory default judgment against Roman-Perez for $75,000 on October 27, 2008 based on "Plaintiff's motion for default judgment." Alvarez then filed a "First Amended Plaintiff's Original Petition" against Osborne and Roman-Perez on November 19, 2008, which appeared to raise the same causes of action.

On January 10. 2011, Alvarez requested and was granted a temporary injunction by the Hidalgo County court in response to a judgment issued in Harris County. On November 26, 2014, after Roman-Perez did not appear, Alvarez obtained a final judgment against Osborne and Roman-Perez in the Hidalgo County court for $475,000.

2. Harris County Lawsuit

In the meantime, on June 19, 2008, Roman-Perez filed suit against Alvarez in Harris County (Harris County lawsuit).⁵ Roman-Perez alleged legal malpractice, common law fraud, negligent misrepresentation, breach of contract, conversion, breach of fiduciary duties, breach of fiduciary duties-fee forfeiture, gross negligence, intentional conduct, and/or malice, and requested damages and attorney's fees. Alvarez was promptly served with the Harris County lawsuit.

On August 8, 2008, Alvarez filed a motion to transfer venue and motion to abate in the Harris County lawsuit, stating that Hidalgo County was the proper venue and the Hidalgo County lawsuit involved the same facts and dispute. Alvarez did not request a hearing for these motions, never filed an answer, and never filed a special appearance.

On March 3, 2009, Roman-Perez filed a motion for default judgment in the Harris County lawsuit and Alvarez failed to answer. On March 3, 2010, the Harris County trial court granted a default judgment on all of Roman-Perez's causes of action and ordered that Roman-Perez recover $330,575 for actual and exemplary damages, attorney's fees, court costs, and pre and post judgment interest. The default judgment also stated that "all relief not expressly granted herein is denied."

In December 2010, Roman-Perez began collection efforts on the Harris County judgment. On December 22, 2010, Alvarez filed an "Original Bill of Review" on the Harris County judgment which incorrectly alleged that Roman-Perez filed the Harris County lawsuit after their motion to transfer venue had been denied. Alvarez argued that Hidalgo County had dominant jurisdiction. His bill of review stated that what happened after he filed his motion to abate and motion to transfer venue in the Harris County lawsuit

is not entirely clear. It may be that the Court's clerk missed Alvarez's appearance, because the remaining documents in the file were sent only to the Defendant Roman-Perez's counsel, not to the undersigned. Exhibit G. For whatever reason, counsel for the Defendant Roman-Perez also did not provide copies of the documents he filed in the Court to Alvarez's counsel as he was required by rule to do, and in fact none of his filings reflected that Alvarez had retained the undersigned counsel to represent him. Exhibit H (documents filed with the court which do not contain a Certificate of Service and fail to reflect they were sent to Alvarez or his counsel). He then filed a Motion for Default Judgment affirmatively misrepresenting to the Court that Alvarez had "failed to appear or file an answer." Exhibit I. As set forth above, Alvarez had, in fact, appeared, which counsel for the Defendant knew, as he received Alvarez's Motions to Abate and to Transfer Venue. Exhibit J.

E. Neither Alvarez nor his lawyer received any notices from the Court about this case being retained on the docket or regarding the Defendant's request for a default. Nor did the Defendant or his counsel (both of whom were involved in the suit pending in Hidalgo County) mention the pendency of the second lawsuit or this request for a default to the undersigned.

F. On March 3, 2010 the Court signed a default judgment against Alvarez. Exhibit K. For some reason, the Court's file reflects that no notice that the default had been taken was sent to Alvarez after it happened. Exhibit K. The first notice Alvarez had that a default judgment had been taken against him was when he received a letter from his bank regarding a Writ of Garnishment that had been served on it by the Defendant, seeking to enforce the default. Exhibit L.

Roman-Perez filed a motion for summary judgment in the Harris County lawsuit on September 20, 2013, which countered the allegations Alvarez made in his bill of review. On October 25, 2013, the Harris County trial court granted Roman-Perez's motion for summary judgment and denied Alvarez's bill of review in "all respects."

C. Actions in Hidalgo County Trial Courts Following the Judgments at Issue

1. Osborne and Roman-Perez's Bill of Review

On November 26, 2018, Osborne and Roman-Perez filed their petition for bill of review in the Hidalgo County trial court alleging that Hidalgo County was not the dominant jurisdiction, denial of due process due to Alvarez's behavior, fraud, wrongful acts, and official mistake. Alvarez filed an original answer and motion to dismiss Osborne and Roman-Perez's bill of review. On January 18, 2019, the Hidalgo County trial court granted Alvarez's motion to dismiss with prejudice, awarded attorney's fees and appellate fees and stated that any relief not expressly granted herein was denied. Osborne and Roman-Perez appealed the court's dismissal order in cause number 13-19-00067-CV.

2. Alvarez's Default Judgment

On January 12, 2018, Alvarez filed a motion for declaratory judgment against Roman-Perez in a different Hidalgo County trial court to...