Wilson v. Fleming
| Decision Date | 21 December 2018 |
| Docket Number | NO. 14-17-00223-CV,14-17-00223-CV |
| Citation | 566 S.W.3d 410 |
| Parties | Rebecca WILSON, et al., Appellants v. George FLEMING and Fleming & Associates, L.L.P., Appellees |
| Court | Texas Court of Appeals |
Murray Fogler, Sylvia R. Davidow, Jasdeep S. Brar, David M. Gunn, Michelle Gray, Houston, TX, for Appellees.
Paul S. Kirklin, Houston, TX, Appellants.
Panel consists of Justices Busby, Brown, and Jewell.
Appellants, approximately 4,000 former clients of George Fleming and Fleming & Associates (collectively, "the Fleming Firm"), appeal a summary judgment granted in favor of the Fleming Firm. Appellants claimed that the law firm breached contractual and fiduciary duties. Based on a jury verdict favorable to the Fleming Firm in a related case,2 the Fleming Firm moved for traditional summary judgment in this case, asserting affirmative defenses of collateral estoppel, waiver, and release. The trial court granted the Fleming Firm’s summary judgment motion without stating reasons.
Concluding that the Fleming Firm failed to establish conclusively its right to judgment as a matter of law on each affirmative defense, we reverse and remand for further proceedings.
The present appeal arises from the same facts as those detailed in Harpst v. Fleming , which we also issue today. See Harpst v. Fleming , No. 14-17-00209-CV, ––– S.W.3d ––––, 2018 WL 6722349 (). We summarize the pertinent background here.3
The Fleming Firm represented appellants (and others) in a mass-tort settlement against a drug manufacturer, Wyeth. Together with approximately 4,000 additional claimants, appellants agreed to settle their claims against Wyeth for $339 million. The Fleming Firm prepared, and each appellant signed, a settlement "packet," which included, among other things, information regarding the global settlement and each client’s settlement amount. Each appellant signed a release and accepted their respective settlement payment.
Appellants later sued the Fleming Firm, alleging that the firm wrongfully deducted certain expenses from appellants' settlements and misrepresented or concealed a number of material facts during the settlement process. Specifically, appellants claim that the Fleming Firm deducted from their respective settlement amounts the cost of a large-scale echocardiogram
program, which the firm utilized to qualify a small percentage of claimants (including appellants) to bring individual suits against Wyeth.4 Although the Fleming Firm tested more than 40,000 potential claimants, most individuals' echocardiograms did not reveal heart damage (and the parties refer to those results as "negative" or "rejected" echocardiograms ). Fen-phen users with negative echocardiograms could not assert individual claims against Wyeth. The Fleming Firm deducted the cost of the entire program from the settlement payments due to their clients who did assert individual claims, including appellants. Thus, each of the Fleming Firm’s clients bore a proportionate share of the expense of the entire echocardiogram program, including the negative echocardiograms, in addition to the cost of their own echocardiogram tests. According to appellants, this deduction was impermissible under the terms of their fee agreements and, further, the firm did not fairly and fully disclose to them the nature and extent of the deduction.
Appellants sued the Fleming Firm and asserted claims for (a) breach of fiduciary duty/constructive fraud/suit for accounting, (b) breach of contract, (c) statutory theft, (d) conversion, (e) common-law and constructive fraud, and (f) unjust enrichment/money had and received. At the request of both sides, the trial court severed the claims of a small group of plaintiffs into a separate cause number. The six plaintiffs in the severed cause (the "Harpst plaintiffs") proceeded to jury trial on their claims, which resulted in a verdict and judgment favorable to the Fleming Firm.5 See Harpst , No. 14-17-00209-CV, ––– S.W.3d at ––––, slip op. at 5.
Following the judgment in Harpst , the Fleming Firm moved for traditional summary judgment against appellants (the approximately 4,000 non-severed plaintiffs), arguing that the Harpst judgment collaterally estopped appellants' claims or, alternatively, that the settlement documents appellants signed and accepted, which included waiver and release language, foreclosed their claims. In support of the motion, the Fleming Firm attached uncertified copies of the jury verdict and final judgment from the Harpst case (to establish collateral estoppel) and Kathy Harpst’s settlement packet (to establish waiver and release). Appellants responded to the merits and also objected to all three exhibits on lack of authentication and hearsay grounds. The trial court overruled appellants' objections, granted the Fleming Firm’s motion without specifying reasons, and dismissed all of appellants' claims.
Appellants raise four issues. In their first issue, appellants argue that the Fleming Firm submitted no competent summary judgment evidence, and that the trial court’s consideration of objectionable evidence was an abuse of discretion. In their second, third, and fourth issues, appellants contend that the Fleming Firm failed to prove conclusively its entitlement to judgment on the merits of each asserted affirmative defense: collateral estoppel, waiver, and release.
A movant for traditional summary judgment must prove that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). As the Fleming Firm sought summary judgment on three affirmative defenses, it bore the burden to present evidence establishing conclusively all essential elements of each defense. See Chau v. Riddle , 254 S.W.3d 453, 455 (Tex. 2008) (per curiam).
If the movant establishes its entitlement to judgment as a matter of law, the burden shifts to the non-movant to respond with evidence raising a genuine issue of material fact. If the non-movant fails to show that a genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law and the summary judgment should be granted. See Tex. R. Civ. P. 166a(c) ; Chau , 254 S.W.3d at 455.
We review the grant of summary judgment de novo. Katy Venture, Ltd. v. Cremona Bistro Corp. , 469 S.W.3d 160, 163 (Tex. 2015) (per curiam). We review the evidence presented by the motion and response in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Painter v. Amerimex Drilling I, Ltd. , 561 S.W.3d 125, 130–31, 2018 WL 2749862, at *3 (Tex. Apr. 13, 2018). We must affirm the judgment if any one of the Fleming Firm’s affirmative defenses is meritorious. See Sheller v. Corral Tran Singh, LLP , 551 S.W.3d 357, 362 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
The Fleming Firm attached three exhibits to its summary judgment motion: (1) an unofficial and uncertified copy of the Harpst jury verdict; (2) an unofficial and uncertified copy of the Harpst final judgment; and (3) Kathy Harpst’s settlement packet. Appellants contend that the summary judgment cannot stand because none of the exhibits was authenticated. We conclude that the uncertified jury verdict and uncertified judgment in Harpst are not authenticated and cannot support summary judgment in the firm’s favor on its collateral estoppel defense. Our conclusion is dispositive of appellants' challenge to collateral estoppel. We address the authenticity of Kathy Harpst’s settlement packet below in connection with the waiver and release defenses.
"Under the summary judgment standard, copies of documents must be authenticated in order to constitute competent summary judgment evidence." In Estate of Guerrero , 465 S.W.3d 693, 703 (Tex. App.—Houston [14th Dist.] 2015, pet. denied) (en banc); see also Tex. R. Civ. P. 166a(c) ().
To properly authenticate a document, the proponent must "produce evidence sufficient to support a finding that the item is what the proponent claims it is." Tex. R. Evid. 901(a). Some documents are self-authenticating, such as certified copies of public records or public documents that are sealed and signed. Tex. R. Evid. 902(2), (4).
Neither the jury verdict nor the judgment from the Harpst case (Exhibits 1 and 2) were sealed and signed or otherwise certified in accordance with rule 902. Both exhibits bear watermarks stating each document is an "Unofficial Copy" from the district clerk’s office. The Fleming Firm did not offer any other evidence to support a finding that either document was "what the proponent claims it is." Tex. R. Evid. 901. Accordingly, we agree with appellants that the documents were not authenticated. We have held, as has our sister court, that uncertified copies of court documents are not sufficient to support summary judgment. See Albert Lee Giddens, APLC v. Cuevas , No. 14-16-00772-CV, 2017 WL 4159263, at *4 (Tex. App.—Houston [14th Dist.] Sept. 19, 2017, no pet.) (mem. op.) (exhibit purporting to be final judgment from prior suit but bearing the text "UNOFFICIAL COPY" not authenticated and thus not competent summary judgment evidence to support limitations defense); see also Anders v. Mallard & Mallard, Inc. , 817 S.W.2d 90, 94 (Tex. App.—Houston [1st Dist.] 1991, no writ) (requiring certified copies of prior petition and prior judgment to establish res judicata defense on summary judgment; "care must be taken to attach certified copies of both the prior petition and prior judgment to the motion for summary judgment.") (emphasis omitted).
The Fleming Firm argues that we may presume the trial court took judicial notice of the Harpst...
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Wilson v. George Fleming & Fleming & Assocs., L.L.P.
...Harpst were not authenticated and could not support summary judgment in the firm's favor on its collateral estoppel defense, see Wilson I, 566 S.W.3d at 416-18 (sustaining issue and, further, we held that the firm failed to establish its entitlement to judgment as a matter of law on waiver ......
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