Toles v. Toles

• Decision Date: 29 August 2003
• Docket Number: No. 05-98-00844-CV.,05-98-00844-CV.
• Citation: 113 S.W.3d 899
• Court: Texas Court of Appeals
• Parties: Lougay Malone TOLES, Appellant, v. H. Edward TOLES, III and John V. McShane, McShane, Davis & Hance, L.L.P., Appellees.

113 S.W.3d 899

Lougay Malone TOLES, Appellant, v. H. Edward TOLES, III and John V. McShane, McShane, Davis & Hance, L.L.P., Appellees.

No. 05-98-00844-CV.

Court of Appeals of Texas, Dallas.

August 29, 2003.

Bill C. Hunter, Dallas, for Appellant.

Lawrence J. Friedman, Friedman & Feiger, L.L.P., Dallas, A. Robert Gloyna, Campero & Gloyna, P.C., Irving, George R. Bienfang, McShane, Davis, & Hance, L.L.P., Dallas, for Appellees.

Before Justices MOSELEY, BRIDGES, and LAGARDE.¹

OPINION

Opinion by Justice MOSELEY.

Lougay Malone Toles (Lougay) sued her ex-husband H. Edward Toles, III (Ed) and his former lawyers, John V. McShane and the law firm of McShane, Davis & Hance, L.L.P.² (the McShane parties). The trial court granted summary judgment in favor of Ed and the McShane parties on all of Lougay's claims. Lougay appeals. In two issues, she complains the trial court erred in granting the McShane parties' motion for summary judgment. In three issues, she complains the trial court erred by granting Ed's motions for summary judgment. We affirm in part and reverse and remand in part the trial court's judgment pertaining to the McShane parties and to Ed.

BACKGROUND

Lougay and Ed were married. In February 1987, they bought a home where they lived together. They later separated, with Lougay continuing to live in their home. In 1993, Ed filed for divorce. John McShane and McShane, Davis & Hance, L.L.P. represented Ed during the divorce suit. In the course of the divorce proceedings, the divorce court entered an "Agreed Temporary Injunction" prohibiting the parties from taking certain actions and specifically allowing them to take other actions. Less than one month later, the divorce court entered an "Agreed Temporary Order" providing for temporary conservatorship of the parties' child, support for Lougay and the child, payment of liabilities (including mortgage payments) and health insurance, and possession of certain property. On December 20, 1994, the divorce court entered an order modifying the Agreed Temporary Order to decrease the support Ed was required to pay to Lougay and ordering Ed to make certain payments out of a joint checking account held by Ed and Lougay. Specifically, the divorce court ordered Ed to make mortgage payments he had missed. Ed filed for bankruptcy the following February.

The holder of the mortgage on the Toles' home, Guaranty Federal Bank, F.S.B., sought to foreclose on the house because Ed had not made several mortgage payments. Guaranty Federal obtained, by default, a lift of the bankruptcy stay and posted the home for foreclosure. Lougay subsequently requested and obtained a temporary restraining order from the divorce court preventing the foreclosure sale. Lougay also requested the appointment of a receiver. On October 23, 1995, the divorce court appointed Greg Pape as receiver to sell the Toles' home.

On May 6, 1996, the divorce court entered an order approving the sale of the Toles' home. Lougay refused to execute the contract for the sale of the home and had testified under oath that she did not intend to move from the home on the scheduled closing date of May 31, 1996. On May 29, 1996, the divorce court signed an emergency order, ex parte, ordering packers and movers to enter the property and to pack and transport its contents to a storage facility on May 30, 1996. The next day, the divorce court signed an order compelling Pape to execute any necessary documents to sell the home and transfer title. The home was finally sold on May 31, 1996. After further proceedings, including a jury trial on Lougay's tort claims against Ed, the divorce court signed a final divorce decree on November 22, 1996.³

Lougay filed the present suit on January 26, 1996, as a petition to perpetuate testimony. The docket sheet indicates Lougay filed a first amended petition on January 8, 1997, but that petition is not in our record. In her second amended petition, Lougay complained the divorce court's orders and proceedings appointing Pape as receiver and approving the sale of the home were "fatally deficient" in several respects, and the actions of several of the parties involved, including Ed, the McShane parties, Pape, and others,⁴ were wrongful. Lougay alleged causes of action for negligence, "wrongful deprivation and destruction of homestead rights and eviction," tortious interference with contract (against the McShane parties only), "abuse of litigation process," breach of fiduciary duties (against Pape), and breach of contract (against Ed only).

The McShane parties and Ed filed motions for summary judgment against Lougay's claims. The McShane parties asserted: (1) that they could not be liable on any cause of action because as attorneys representing an opposing party in litigation they owed no duty to Lougay; (2) that as a matter of law, Texas did not recognize several of Lougay's alleged causes of action; and (3) that the summary judgment evidence negated at least one element of each of the remaining causes of action, and thus that they were entitled to judgment as a matter of law. Ed's motion asserted that as a matter of law, Texas did not recognize some of Lougay's causes of action and that the summary judgment evidence negated at least one of the elements of the remaining causes of action. Both motions attached certified copies of several orders, pleadings, and the final divorce decree from the divorce court. The motions also relied on alleged judicial admissions in Lougay's live petition.

While these motions were pending, Lougay filed a third amended petition, expanding somewhat her factual allegations and adding alleged causes of action for "abuse of litigation, litigation process & process," aiding and abetting Pape's breach of fiduciary duties (against Ed and the McShane parties), intentional infliction of emotional distress, invasion of privacy, spoliation of evidence, constructive fraud, and conspiracy.

The McShane parties and Ed each filed first amended motions for summary judgment. Each motion raised the same grounds as the respective movant's original motion and specifically addressed the new causes of action alleged in Lougay's third amended petition. Both motions incorporated by reference the summary judgment evidence attached to the respective original motion. The McShane parties attached to their first amended motion for summary judgment an affidavit of John V. McShane swearing that, at all times and in all fact situations pled in Lougay's third amended petition, the McShane parties were acting as Ed's attorneys in the divorce action.

On July 29, 1997, the trial court overruled all of Lougay's objections to the McShane parties' summary judgment evidence and granted the McShane parties' summary judgment motion as to all of Lougay's claims against them. On August 29, 1997, the trial court overruled Lougay's objections to Ed's summary judgment motion and evidence and granted the motion as to all of her claims against Ed except the claims of spoliation of evidence and intentional infliction of emotional distress. The court did not specify the grounds on which it was granting either motion.

On July 29, 1997, Ed filed a second motion for summary judgment. The trial court sustained Lougay's objections to some of Ed's summary judgment evidence, but granted this motion on September 8. Again, the court did not specify the grounds on which it was granting Ed's second motion.

Pape filed a motion for summary judgment on October 17, 1997. The trial court, without specifying the grounds, granted Pape's motion on May 8, 1998. All claims Lougay asserted against the other named defendants, not parties to this appeal, were dismissed, and the trial court signed a final judgment on May 20, 1998.

Lougay appeals raising issues against the McShane parties and Ed, but she raises no issues against Pape. On appeal, Lougay acknowledges she has no cause of action for spoliation of evidence after the supreme court's decision in Trevino v. Ortega, 969 S.W.2d 950, 952 (Tex.1998).

SUMMARY JUDGMENT STANDARDS

Appellate courts apply well-established standards when reviewing a summary judgment. See Nixon v. Mr. Prop. Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985). To prevail on summary judgment, a defendant must either disprove at least one element of each of the plaintiff's theories of recovery or plead and conclusively establish all the essential elements of an affirmative defense. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832 (Tex.App.-Dallas 2000, no pet.). If the defendant establishes a right to summary judgment as a matter of law, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact to preclude summary judgment. Id. If the trial court's order granting summary judgment does not specify the grounds for its decision, the summary judgment will be affirmed if any of the theories advanced are meritorious. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79 (Tex.1989). We review a trial court's decision to grant a summary judgment de novo. Foreness v. Hexamer, 971 S.W.2d 525, 527 (Tex.App.-Dallas 1997, pet. denied).

SUMMARY JUDGMENT EVIDENCE

A trial court may consider all evidence on file at the time of the summary judgment hearing, and all evidence filed with the permission of the court after the hearing but before judgment. Judwin Prop., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 503 (Tex.App.-Houston [1st Dist.] 1995, no writ). Evidence attached to an original motion for summary judgment may be considered when a trial court decides an amended motion for summary judgment. See Brandes v. Rice Trust, Inc. 966 S.W.2d 144, 148 (Tex.App.-Houston [14th Dist.] 1998, pet. denied); Whitaker v. Huffaker, 790 S.W.2d 761, 763-64 (Tex.App.-El Paso 1990, writ denied).

THE McSHANE PARTIES

In two issues, Lougay argues the trial court erred in overruling several of her objections to the McShane parties' amended motion for summary judgment, concerning the...