Upchurch v. Albear, 082599

• Decision Date: 25 August 1999
• Parties: (Tex.App.-Amarillo 1999) TOM UPCHURCH, JR. AND TOM UPCHURCH, JR. & ASSOCIATES, WAYNE B. BARFIELD, INDIVIDUALLY AND D/B/A WAYNE BARFIELD, P.C., APPELLANTS v. SAN JOSE AND NATALIA ALBEAR, et al., Appellees. NO. 07-98-0009-CV
• Court: Texas Court of Appeals

Page 274

5 S.W.3d 274 (Tex.App.-Amarillo 1999)

TOM UPCHURCH, JR. AND TOM UPCHURCH, JR. & ASSOCIATES WAYNE B. BARFIELD, INDIVIDUALLY AND D/B/A WAYNE BARFIELD, P.C., APPELLANTS v. SAN JOSE AND NATALIA ALBEAR, et al., Appellees.

NO. 07-98-0009-CV

IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS AT AMARILLO

AUGUST 25, 1999

Opinion Rehearing Oct. 22, 1999.

Rehearing Overruled Nov. 22, 1999.

FROM THE 47TH DISTRICT COURT OF POTTER COUNTY; NO. 79,998-A; HONORABLE HUME COFER, JUDGE

[Copyrighted Material Omitted]

Before QUINN and REAVIS and JOHNSON, JJ.

DON H.REAVIS, Justice.

Tom Upchurch, Jr., and Tom Upchurch, Jr. & Associates, and Wayne B. Barfield, individually, and Wayne B. Barfield, P.C. (attorneys) bring this appeal from a summary judgment that they take nothing against San Jose Albear, et al., approximately 140 clients (clients), and attorney John Lesly. The clients also appeal from a summary judgment that they take nothing against the attorneys and also contend the trial court erred in denying their motions to abate the actions of the attorneys. Based upon our review of the clerk's record which includes over 7000 pages of pleadings, summary judgment motions and evidence, and also based upon the rationale and authorities expressed herein, we affirm the judgment of the trial court in part and reverse in part, remanding a portion of the cause to the trial court for further proceedings.

The attorneys represented approximately 870 clients as plaintiffs in two underlying toxic tort cases. Following receipt of two settlement offers from the defendants totaling approximately $27 million, the attorneys conducted individual settlement conferences with the clients. After completion of multiple settlement conferences with the clients, most agreed to settle and executed confidential settlement agreements, except Douglas Allan Coffee and Judy Stone Sablatura, Executrix of the Estate of Mike Sablatura, appellees herein who did not settle.¹ Following completion of settlement documentation and distribution of settlement proceeds in May 1994, the clients engaged other counsel who commenced sending 60-day notice letters to the attorneys relating the clients' intentions to file suit for negligence, legal malpractice and violations of the Texas Deceptive Trade Practices Act.² Before expiration of the 60-day period, on July 15, 1994, attorney Upchurch filed an action against the clients in cause number 79,998-A, and on July 28, 1994, attorney Barfield filed a similar action against the clients in cause number 80,038-A, both in the 47th District Court of Potter County.³ After the clients answered in the Potter County actions, they then filed suit against the attorneys in the 165th District Court of Harris County on February 8, 1995. Next, the clients filed pleas in abatement in each cause in Potter County on May 16, 1995, which were denied on August 4, 1995. Following recusal of the presiding judge, the clients presented their pleas in abatement for reconsideration to the assigned visiting judge, who declined to reconsider them. Before we consider all parties' contentions regarding the granting of the summary judgments, we will first consider the clients' second cross-issue, by which they assert the trial court erred in denying the motions to abate and in denying reconsideration of the motions to abate.

Abatement

Notwithstanding the rule that the court where proceedings are filed first acquires dominant jurisdiction, relying on Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 248 (Tex. 1988) and Abor v. Black, 695 S.W.2d 564 (Tex. 1985), the clients contend the trial court erred in denying their pleas in abatement. However, under Wyatt, 760 S.W.2d at 247-48, which involved a compulsory counterclaim, the 47th District Court of Potter County acquired dominant jurisdiction. Moreover, Abor is not controlling here because the attorneys' pleadings sought affirmative relief in addition to a declaration of non-liability. The clients also contend that the attorneys are estopped by their conduct to assert the rule of dominant jurisdiction. Estoppel is a fact question, 4M Linen & Uniform v. W.P. Ballard & Co., 793 S.W.2d 320, 322 (Tex.App.--Houston [1st Dist.] 1990, writ denied); however, we have not been provided with a reporter's record of the hearing where the pleas in abatement were presented.⁴ In the absence of evidence to support a plea in abatement, the trial court should not grant abatement. Atkinson v. Reid, 625 S.W.2d 64, 67 (Tex.App--San Antonio 1981, no writ). Thus, we cannot determine whether the trial court erred in denying the pleas in abatement and in refusing to reconsider the pleas. Vestal v. Jackson, 598 S.W.2d 724, 725 (Tex.Civ.App.--Waco 1980, no writ). Cross-issue two raised by the clients asserting that the trial court erred in denying and in reconsidering the pleas in abatement is overruled.

Because the multiple claims, summary judgment evidence, and proceedings are not common to all parties, and the issues presented are diverse, we are compelled to conduct our review and analysis of relevant issues on a party basis. Before commencing our analysis however, we set forth the appropriate standard of review which is common to all contentions presented on appeal.

Summary Judgment Standard Of Review And Preservation of Error

For a party to prevail on a motion for summary judgment, he must conclusively establish the absence of any genuine question of material fact and that he is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). This requirement dictates that when the defendant is the movant, he must conclusively negate at least one of the essential elements of the plaintiff's cause of action. Likewise, a defendant who conclusively establishes each element of an affirmative defense is entitled to summary judgment. Randall's Food Markets, Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). In Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985), the Court set out the standard by which we are to review a summary judgment:

1. The movant for summary judgment has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law.

2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true.

3. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor.

Once the movant has established a right to summary judgment, the non-movant has the burden to respond to the motion for summary judgment and present to the trial court any issues that would preclude summary judgment. City of Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 678 (Tex. 1979); Barbouti v. Hearst Corp., 927 S.W.2d 37, 64 (Tex.App.--Houston [1st Dist.] 1996, writ denied). Issues which the non-movant contends preclude the granting of a summary judgment must be expressly presented to the trial court by written answer or other written response to the motion and not by mere reference to summary judgment evidence. McConnell v. Southside School Dist., 858 S.W.2d 337, 341 (Tex. 1993). Issues not expressly presented to the trial court in writing shall not be considered on appeal as grounds for reversal. Tex. R. Civ. P. 166a(c). Further, all theories in support of or in opposition to a motion for summary judgment must be presented in writing to the trial court. Casso v. Brand, 776 S.W.2d 551, 553 (Tex. 1989). When a summary judgment does not specify or state the grounds relied on, the summary judgment will be affirmed on appeal if any of the grounds presented in the motion are meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); Insurance Co. Of N. Am. v. Security Ins., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ).

Attorneys v. Clients and Attorney John Lesly

By their live pleading, the attorneys sought relief against the clients and attorney John Lesly alleging seven causes of action: (1) a declaratory judgment requesting (a) construction of contracts with the clients, (b) a declaration regarding their fees, and (c) a declaration regarding expenses, court costs and the like; (2) fraud by the settling and non-settling clients; (3) tortious interference with their contracts with clients by clients and John Lesly; (4) conspiracy; (5) perjury; (6) interception of communications; and (7) spoliation of evidence. Because the attorneys' sole issue on appeal is that fact issues were raised by the summary judgment evidence regarding their claims of conspiracy to commit fraud and fraud, we limit our analysis to those claims.

In their brief, the attorneys distill thousands of pages of summary judgment evidence and pleadings by summarizing their claims alleging that while settlement conferences were in progress in the underlying toxic tort cases, some clients conspired with Lesly, a former Upchurch associate, and Larry Sexton, a former non-lawyer employee of Upchurch, to plot a malpractice suit against the attorneys. According to the attorneys, the plan was for Lesly to suggest questions which the clients should ask during settlement conferences while secretly recording the conversations. The attorneys conclude that this conduct by the clients during settlement conferences constituted knowing misrepresentations which they relied on, causing them to sustain damages. By their motion for summary judgment, the clients urged that the attorneys' claims failed as a matter of law because Texas law does not impose any such duty by clients to attorneys. After restating the duty question,⁵ the clients also urged that they had a right to seek a "second opinion" from other counsel regarding the settlement proposal and asserted that the summary judgment evidence precluded the fraud claim. Also, by his separate motion for summary judgment, attorney Lesly presented the question whether he owed a duty to the attorneys...