Sharpe v. Turley

• Decision Date: 23 March 2006
• Docket Number: No. 05-04-01521-CV.,05-04-01521-CV.
• Citation: 191 S.W.3d 362
• Parties: Francis SHARPE, Appellant, v. Windle TURLEY, Appellee.
• Court: Texas Court of Appeals

191 S.W.3d 362

Francis SHARPE, Appellant, v. Windle TURLEY, Appellee.

No. 05-04-01521-CV.

Court of Appeals of Texas, Dallas.

March 23, 2006.

Rehearing Overruled May 25, 2006.

John E. Wall, Jr., Law Offices of John E. Wall, Jr., Dallas, for Appellant.

Thomas B. Cowart, Turley Law Firm, Dallas, for Appellee.

Before Justices FITZGERALD, LANG-MIERS, and MAZZANT.

OPINION

Opinion by Justice LANG-MIERS.

Francis Sharpe appeals the trial court's summary judgment dismissing his fraud claim against Windle Turley and an order denying his special exceptions. We affirm.

BACKGROUND

This lawsuit is based on Sharpe's claim that he is entitled to items that he removed from a trash dumpster maintained by the Roman Catholic Diocese.¹ Turley is an attorney who represented several plaintiffs in a lawsuit against the Diocese.² While that lawsuit was pending, Sharpe contacted Turley and told him that he had documents that Turley might find useful in that lawsuit, including financial information that he found in the Diocese's trash dumpster. Ultimately, Turley subpoenaed some items from Sharpe and took his deposition. In response to the subpoena, Sharpe delivered items to Turley that he had removed from the Diocese's dumpster.³

Once that case was concluded, Turley did not want to keep the items, and both the Diocese and Sharpe contended that they were the rightful owners of the items. Turley turned them over to Randall Mathis, the attorney for the Diocese, to hold until the court determined who was ultimately entitled to them. Turley, on Sharpe's behalf, as well as Mathis and Sharpe all filed motions asking the trial court to decide who was entitled to the items. Mathis claimed the items should be returned to the Diocese, and Sharpe and Turley claimed that they should be returned to Sharpe. Ultimately, this Court concluded that the trial court was without jurisdiction to make the decision of who was entitled to the items and that, to have that issue decided, Sharpe had to file another lawsuit that included the Diocese as a party.⁴

Sharpe filed this lawsuit claiming, among other things, that Turley obtained those items from him through fraud. Turley filed a motion for summary judgment claiming that (1) the unlawful acts rule bars Sharpe's claim, (2) Sharpe did not suffer damages because the trash is worthless, (3) Turley did not misrepresent that he would file a motion protecting Sharpe's interest in the documents, (4) Sharpe cannot bring a fraud claim on the basis of Turley's opinions about the law, (5) Turley never agreed to represent Sharpe, (6) public policy bars Sharpe's claim, (7) Sharpe cannot show causation because the trial court order had already determined ownership, (8) Sharpe cannot show that he relied on any statement by Turley, and (9) a two-year statute of limitations bars Sharpe's claim.

STANDARD OF REVIEW

Appellate courts review a grant of summary judgment de novo. Dickey v. Club Corp. of Am., 12 S.W.3d 172, 175 (Tex. App.-Dallas 2000, pet. denied). To prevail on a traditional motion for summary judgment, the movant must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002). Courts will resolve any doubts about the existence of a genuine issue of material fact against the movant. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex.1985). Reviewing courts will view all evidence and any reasonable inferences in the light most favorable to the nonmovant. Id. They will also view as true all evidence favorable to the nonmovant, Southwestern Elec. Power Co., 73 S.W.3d at 215, and not consider any evidence but uncontroverted evidence favorable to the movant. Great Am. Reserve Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex.1965). A defendant must therefore either negate at least one element of the plaintiff's theory of recovery or plead and conclusively prove each element of an affirmative defense. See Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). When the trial court fails to specify the grounds upon which it is granting summary judgment, the reviewing court will affirm the judgment if any one of the theories advanced in the motion is meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993). In this case, the summary judgment order states that all of Turley's grounds are meritorious.

UNLAWFUL ACTS RULE

In his first three issues, Sharpe complains that the trial court erred in granting summary judgment based on the unlawful acts rule. He argues that Turley failed to both properly plead and prove that defense. Turley responds that the defense was properly pleaded and proven. He contends that Sharpe could not prove that he had a lawful interest in the items because he had obtained the items without the Diocese's permission and from its private property and that summary judgment was properly granted because Sharpe could not prove that he was unlawfully deprived of those items by Turley.

Turley's Pleadings

Initially, Sharpe claims that the unlawful acts rule was not timely pleaded as a defense and was waived. But we note that Turley pleaded the defense of unlawful acts in his March 25, 2004 motion for summary judgment on the fraud claim, his August 11, 2004 first supplement to his motion for summary judgment on the fraud claim, his August 11, 2004 second amended answer, and his September 1, 2004 third amended answer. Additionally, the trial court expressly allowed the parties to supplement the record before it ruled on the motion for summary judgment and established deadlines for doing so. See TEX.R. CIV. PROC. ANN. 63 (providing that party must obtain leave of court to file otherwise untimely pleadings). And, in its order granting summary judgment, the trial court expressly held that those pleadings were all considered by the court in making its decision. Cf. Goswami v. Metropolitan Sav. and Loan Ass'n, 751 S.W.2d 487, 490 (Tex.1988) (presuming that court granted leave to file belated pleadings when amended petition part of record before trial court and trial court's judgment stated that it considered all pleadings on file). Sharpe does not claim that the court erred in considering those pleadings. Consequently, Sharpe has not demonstrated that the pleadings were not timely or that the defense was waived.

Summary Judgment Motion

In his motion for summary judgment, Turley contended that Sharpe's fraud claim was based upon his own unlawful act of taking items from the Diocese dumpster without permission.⁵ Because Sharpe claimed that he was defrauded into turning over the items to Turley and Sharpe's claim was premised on his contention that he was lawfully entitled to the items, Turley argued that Sharpe's illegal conduct in obtaining the items precluded him from recovering on a claim relating to those items.

Applicable Law: Unlawful Acts

Under the unlawful acts rule, a plaintiff cannot recover for his claimed injury if, at the time of the injury, he was engaged in an illegal act. The Gulf C. & S.F. Ry. Co. v. Johnson, 71 Tex. 619, 621-22, 9 S.W. 602, 603 (1888). Texas courts have applied this rule, along with public policy principles, to prevent a plaintiff from recovering claimed damages that arise out of his or her own illegal conduct. See, e.g., Saks v. Sawtelle, Goode, Davidson & Troilo, 880 S.W.2d 466 (Tex.App.-San Antonio 1994, writ denied); Rodriquez v. Love, 860 S.W.2d 541 (Tex.App.-El Paso 1993, no pet.); Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441 (Tex. App.-Hous. [1st Dist.] 1993, no pet.). Courts have interpreted this defense to mean that if the illegal act is inextricably intertwined with the claim and the alleged damages would not have occurred but for the illegal act, the plaintiff is not entitled to recover as a matter of law. See Ward v. Emmett, 37 S.W.3d 500, 503 (Tex.App.-San Antonio 2001, no pet.) (holding that because appellant would not have suffered alleged injury in absence of illegal conduct, trial court properly granted summary judgment against her); Saks, 880 S.W.2d at 470; Dover, 859 S.W.2d at 451.

Additionally, a property owner's rights are superior to any rights of a subsequent possessor who has stolen the property or purchased stolen property. See, e.g., Olin Corp. v. Cargo Carriers, Inc., 673 S.W.2d 211, 216 (Tex.App.-Hous. [14th Dist.] 1984, no writ) (holding that one who purchases stolen property from a thief, no matter how innocently, acquires no title in the property; title remains in the owner); A. Benjamini, Inc. v. Dickson, 2 S.W.3d 611, 613-14 (Tex.App.-Hous. [14th Dist.] 1999, no pet.) (holding that owner's rights to property were superior to rights of people who stole property as well as subsequent purchasers); Texas Diamond Intern., Inc. v. Tiffany and Co., 47 S.W.3d 589, 592-93 (Tex.App.-San Antonio 2001, pet. ref'd) (recognizing that bailees of property are obligated to return property to rightful owner where the claim was that the property that was delivered to the bailee had been stolen). But property that is abandoned cannot be the subject of theft. See Jordan v. State, 107 Tex.Crim. 414, 296 S.W. 585 (1927) (holding that jury should have been instructed to acquit appellant of stealing if they found he believed the property was abandoned by the owner); see also State v. Bartee, 894 S.W.2d 34, 40 (Tex.App.-San Antonio 1994, no pet.) (explaining that in order to be subject of larceny or theft, thing or property taken must be capable of individual ownership); Nicholson v. State, 369 So.2d 304, 307 (Ala. Crim.App.1979) (explaining that because abandoned property belongs to no one, nor is it in anyone's possession, there is no property right in it, and it cannot therefore be the subject of larceny).

Were the items abandoned by the Diocese?

Sharpe argues that his claim is not barred by his unlawful acts and that he lawfully obtained the items because the ...