Sommers v. Concepcion
| Decision Date | 24 February 2000 |
| Docket Number | NO. 14-98-00053-CV,14-98-00053-CV |
| Citation | 20 S.W.3d 27 |
| Parties | RONALD SOMMERS, CHAPTER 7 TRUSTEE FOR VICENTE R. VELASQUEZ, Appellant v. EMMANUEL CONCEPCION, INDIVIDUALLY AND AS NEXT FRIEND FOR RONALD CONCEPCION, A MINOR, AND RONALD CONCEPCION, Appellees |
| Court | Texas Court of Appeals |
George M. Bishop, H. Miles Cohn of Houston, TX, for appellants.
L.T. Bradt, Corwin L. Teltschik of Houston, TX, for appellees.
JUDGES: Panel consists of Justices Yates, Fowler and Lee. 11
11 Senior Justice Norman Lee sitting by assignment.
OPINION
Ronald Sommers, trustee of the bankruptcy estate of Vicente Velasquez, appeals from an order granting summary judgment in favor of appellees and from an order denying appellant's motion to recuse. The Trustee brings six points of error. Because we find the trial court improperly assessed sanctions against the Trustee's counsel, we modify the order on the motion to recuse to delete these sanctions. As so modified, we affirm.
Vicente Velasquez is an attorney who represented Emmanuel Concepcion, individually and as next friend for his minor son, Ronald Concepcion, in a personal injury suit subject to a contingency fee contract signed in 1987. Under this contract, Velasquez was to receive a fee of forty percent of the amount recovered plus reimbursement of expenses advanced by him. In 1989, Emmanuel Concepcion entered into a contingency fee agreement with another attorney, Lloyd Lunsford. Before the case went to trial, the parties reached a settlement, with the minor child to receive $ 800,000 and his father to receive $ 162,500. The trial judge subsequently held a hearing on attorney's fees and approved the contingency fee contract and the fees requested by Velasquez pursuant to his contract with Concepcion.
Before the funds were distributed to Velasquez and Concepcion, Lloyd Lunsford, who claimed to represent Emmanuel Concepcion individually, filed a plea in intervention, as did Ken Harrison, who was employed by Velasquez in 1993 to assist in the Concepcion suit. The guardian ad litem for the minor, Corwin Teltschik, requested reconsideration of the court's approval of Velasquez's fees. The trial judge severed the attorney's fees issues into a separate cause to allow the judgment in the personal injury case to become final.
On September 29, 1993, Emmanuel Concepcion faxed a handwritten letter to Velasquez, terminating their relationship and demanding a release of Velasquez's interest in the case. Attorneys Lunsford, Harrison, and Teltschik were included in the certificate of service. The trial judge, Brady Elliott, conducted an expedited hearing the next day on the pleas in intervention. At this hearing, Concepcion was represented by yet another attorney, L.T. Bradt. Harrison, Lunsford, and Teltschik were present, but Velasquez was neither present nor represented by counsel.
During the hearing, the trial judge acknowledged that the hearing was being held in violation of the notice and time requirements of the rules of civil procedure. The trial judge asked the attorneys present to waive those requirements. In response to the trial judge's questions, the attorneys present indicated they were not aware of other parties to the suit.
The parties dictated a settlement into the record whereby attorney's fees would be divided among Harrison, Lunsford, Teltschik, and Bradt, and judgment was rendered in accordance with this agreement. The court stated that Velasquez was not a party because he had not asserted a claim in the severed case. The court admonished the Concepcions, however, that the settlement did not dispose of Velasquez's claims and the Concepcions acknowledged that Velasquez might have outstanding claims.
In May 1994, Velasquez filed a voluntary petition under Chapter 11 of the Bankruptcy Code. Velasquez subsequently filed a lawsuit in federal court against the Concepcions to recover his fees, against Lunsford, Teltschik, and Harrison for interference with contract, and against Judge Elliott for violation of Velasquez's civil rights and for conspiracy. The claims against Judge Elliott were later dismissed. While the federal suit was pending, the bankruptcy proceeding was converted to a Chapter 7 proceeding and appellant, Ronald Sommers, was appointed trustee. The federal case was tried to a jury in November 1995 and the jury rendered a verdict in favor of the Trustee on all issues. 1
In September 1995, while the federal lawsuit was pending, Velasquez brought a lawsuit in the 215th District Court against Teltschik, Lunsford, and the Concepcion family to recover fees. In this state court proceeding, Velasquez filed an affidavit of inability to pay costs and the defendants filed a contest to this affidavit. During the hearing on defendants' contest, the court found that Velasquez's affidavit of inability did not comply with Rule 145 and that it was false, frivolous and malicious. The court added that it "took judicial notice of the evidence previously adduced in this case and listened to the new evidence presented, examined the pleadings on file and listened to the argument of counsel." Based on this, the court found that Velasquez's action was "frivolous, malicious and vexatious." Accordingly, the court ordered the case dismissed with prejudice. 2
The Trustee, who was not involved in the case filed in the 215th District Court, pursued an appeal of the judgment in the 268th District Court, which had ordered funds disbursed to the other attorneys without notice to Velasquez. The appeal was filed in this court and the panel found an abuse of discretion by the trial court in failing to recognize that Velasquez was a party to the judgment and entitled to notice of the hearing on attorney's fees. Velasquez v. Lunsford, 1996 Tex. App. LEXIS 4242, No. 14-95-00172- CV, 1996 WL 544429 (Tex. App.-Houston [14th Dist.] 1996, no writ)(not designated for publication)(Velasquez I). 3 Because the case dealt with a minor settlement, and other attorneys challenged Velasquez's entitlement to the entire amount of the attorney's fees, this court reversed the judgment and remanded the cause to the trial court "to determine the appropriate amount of attorney's fees to award to the various attorneys after an adversarial hearing on [the allegations of malfeasance by Velasquez]." Id.
On remand, the Trustee filed a first amended petition in intervention on March 17, 1997, claiming Velasquez's entitlement to recovery of the forty percent attorney's fees. On April 23, 1997, the Trustee filed a motion to require the redeposit and return of funds taken from the court registry. In this motion, the Trustee sought the return of funds paid to Lunsford and Harrison as attorney's fees. The trial court denied this motion. The case went to the jury and the jury found: (1) there was an agreement between Concepcion and Velasquez; (2) Concepcion failed to comply with that agreement; and (3) the reasonable value of Velasquez's legal services was $ 345,000. The jury also awarded attorney's fees to the Trustee.
The Concepcions filed a motion for judgment notwithstanding the verdict, or alternatively, a motion for new trial. The judge granted the motion for new trial. Thereafter, the Trustee filed a motion to recuse Judge Elliot. The motion was heard by Judge Joseph Ann Ottis. Judge Ottis denied the motion and assessed sanctions, in the amount of $ 2,400 against the Trustee's attorney, George Bishop.
On October 15, 1997, the Concepcions filed a motion for summary judgment, arguing that uncontroverted facts entitled the Concepcions to summary judgment. These facts included: (1) Velasquez's testimony that he would waive his fee if Lunsford was paid a fee; and (2) the dismissal with prejudice of Velasquez's prior state court suit to recover fees. The motion was granted.
On appeal, the Trustee raises six issues. Before addressing these issues, however, we must address a jurisdictional issue raised in a motion to dismiss.
Before submission of this case, the Concepcions filed a motion to dismiss and for damages, claiming the judgment was not final and appealable. Because the Concepcions contend this court is without jurisdiction over the appeal, they assert the appeal is frivolous and damages should be assessed against appellant. This motion was taken with the case. The Concepcions seek the same relief in a cross-point, asserted in their brief.
The Concepcions claim the summary judgment order is not final because it does not dispose of the Concepcions' counterclaims against Velasquez. The order granting summary judgment states that summary judgment is granted "against all of Plaintiff's claims and that Plaintiff have and take nothing by his claims against Emmanuel Concepcion herein." This order does not purport to render judgment on the Concepcions' counterclaim against appellant.
To be final and appealable, a summary judgment order must dispose of all parties and issues before the court. See Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993). If the order does not dispose of all parties and issues, it is interlocutory and not appealable absent a severance. Id. Although "take nothing" language may, under certain circumstances, render a summary judgment final, see id. at 592 & n.1, the language in this judgment clearly disposes of the Trustee's claims against the Concepcions and nothing else. Therefore, the judgment appears to be interlocutory.
In his response to the motion to dismiss, the Trustee raises a number of reasons for denying the motion: (1) the pendency of the automatic stay renders the counterclaims void; (2) to the extent the counterclaim seeks recoupment or offset, those claims are moot in light of the judgment rendered in favor of the Concepcions; (3) the counterclaim concerning post-petition conduct, to which the automatic stay does not apply, is improperly pled and does not allege wrongful conduct...
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