Houston Bar Association - Family Law Section

Gray's Interesting Cases - June 2004

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  1. Alexander v. Lynda's Boutique, No. 01-1248, 47 Tex. Sup. Ct. J 31. L sued A for negligence. The T/C signed a scheduling order setting a pre-trial conf. for a date certain stating "...failure to appear w/o excuse may result in a dismissal of the case for want of prosecution." L didn't appear and had no excuse. Case dismissed. L appealed on the basis that TRCP 165a(1) says a case may be DWOPed upon notice of the ct's intent to DWOP but no notice was given of that intent other than the boiler-plate language of the scheduling order.

    CA reversed holding that the T/C should have set a separate hearing on the dismissal issue.

    In a 6-3 decision the Supremes reversed holding that the scheduling order's notice of a possible DWOP due to a failure to appear was sufficient notice of the T/C's intent to dismiss.

    Comment - As most of the scheduling orders issued have these boiler-plate DWOP notices, you better darn well pay attention, especially as this is an easy way for the T/C to clear its docket.

  2. In re: Rogers, No. 06-04-00058-CV, will not be published- memorandum opinion (CA, Texarkana). H filed for divorce against W but the district clerk refused to issue citation (W was probably the clerk's 3rd cousin twice removed). H filed for mandamus in the CA to force the dist. clerk to issue citation.

    CA refused. Why not for God's sake? 'Cause the CA can only issue a writ of mandamus against "a judge" which the dist. clerk isn't.

    Comment - Not really significant but I'd love to know why the clerk wouldn't issue citation. What can H do? File the mandamus with the Supremes & campaign against the clerk's re-election.

  3. Ginsburg v. Chernoff/Silver & Assoc., No. 01-02-01118-CV, not yet published (CA, Houston-1st). H filed for divorce and W filed a c/c. W operated a business (G) which did business with with W's prior employer (Def.). H made G & Def parties to the divorce suit claiming that G & Def. conspired with each other to reduce H & W's community estate, i.e. reduce or hide W's income from her business (G). The T/C severed out H's suit against Def. Later H & W settled (including H's suit against G). The AID said that each spouse: (1) released the other from any claim that he/she might have and (2) considered the settlement to be a fair and just division of their community estate. The AID also reserved the right of H to pursue his claims against Def. H then went after Def who filed for S/J which the T/C granted.

    CA affirms. Per the Supreme=s opinion in Cohrs v. Scott (338/127) when the spouses settle with a "fair and just division of their marital estate", it is presumed that such division takes into consideration all claims and counterclaims between them including any loss a spouse may have suffered as a result of the other spouse's conspiracy with a 3rd party. Since H has been fully compensated for any loss caused by Def., H has suffered no damages thus his suit against Def. dies.

    Comment - WOW! How do you protect H's suit against Def. and still settle with W? Maybe you have to say the settlement is fair and just taking into consideration the possibility of additional recoveries by H against Def. Would this work? I don't know but this case and Cohrs seem to say if you settle the divorce, you can forget about any claim against 3rd parties or try the divorce hoping the T/C will award you the 3rd party claim as a part of the T/C=s "fair and just" division of the parties= estate. But doesn't the T/C take into consideration the damages caused to the community estate by the 3rd party when making the division so the innocent spouse is fully compensated? Tough questions with no real answers.

  4. Brown v. Fullenweider, No. 06-03-00051-CV, not yet published (CA, Texarkana). F represented B in a divorce suit in M County which settled in '94. B stiffed F for his atty fees so in '97 F sued B in M County. Rather than filing a standard suit for his fees, F maintained that F was entitled to judgment against B per the clarification/enforcement provisions of the F/C as the AID between B and his ex-wife said each party would pay the atty fees incurred by that spouse. The T/C agreed and awarded F judgment against B including atty fees.

    The Bmt. CA affirmed (see the criticism of this opinion in the Feb. 2000, issue of this rag). In 2001 the Supremes reversed the Bmt. CA and dismissed F's suit for want of juris. (52/169/3) (see Gray's comments in the April 2001 issue of this rag). Within 60 days of the Supremes' dismissal, F filed a breach of K suit for his atty fees against B in H County. Note that this suit was filed more than 7 years after the initial c/a arose so B plead the 4 yr. S of L. F countered by citing §16.064, Tex. Civ. Prac. & Rem. Code, which tolls the S of L when the original suit is filed in the "wrong ct." and a new suit is filed in the correct ct. within 60 days after a final judgment determines that the original suit was filed in the "wrong ct." The T/C agreed with F and awarded him a $406,000 judgment against B including $112,000 in atty fees incurred by F in the 1st suit.

    CA affirms after modifying. B's position is that F's 1st suit wasn't filed in the "wrong ct."-- it was filed in a proper ct. but under a "wrong cause of action" so the §16.064 tolling isn't applicable so F's 2nd suit is barred. The CA discusses several CA opinions which appear to support B's position but ultimately holds that there are no Texas cases discussing the filing of "wrong pleadings" (the wrong c/a) as opposed to filing in the "wrong ct." The CA found that since F's pleadings in the 1st suit didn't invoke the juris. of the M County T/C (remember the Supremes dismissed this suit for want of juris.), the term "wrong ct." was the same as a "ct. of improper juris." F's 1st suit was filed in the "wrong ct." and §16.064 does toll the S of L. So F wins - right? Not quite. The CA modified the $406,000 judgment by deleting the $112,000 in atty fees incurred in the 1st suit. F claims that the 2 suits are one continuous action whereas B says there are 2 separate suits so you can't include the $112,000 in the 2nd suit. The CA could not find any case law to support F's position so the $112,000 incurred in the 1st suit can not be a part of the atty fee award in the 2nd suit.

    Comment - I dare say B will appeal this case to the Supremes who may well grant review due to the split of authority on the tolling issue and the rationale of the dissenting opinion this case. Additionally this type of case arises once every 100 years so naturally the Supremes will write on this while ignoring the split of authority on the numerous family law issues which arise everyday. To me the most significant point to the everyday lawyer is that you can't recover atty fees incurred in an earlier action in a subsequent suit. This case also emphasizes the rule to never, never, never let the client get ahead of you on fees - if he/she can't or won't pay you, withdraw from the case as a properly drawn fee contract should permit.

  5. In re Moore, No. 12-03-00290-CV, not yet published (CA, Tyler). H filed for divorce apparently after paying a $10,000 retainer to his atty. The T/C entered a temp. order which enjoined H's atty from accepting any further atty fee retainers from, or on behalf of, H without prior ct. approval. After the signing of the temp. order, H=s atty received an additional $20,000 retainer -- $10,000 from H & $10,000 from an unknown 3rd party. Upon learning of the payments, W filed a motion to disqualify H's atty from representing H & disgorgement of the $20,000 paid and received in violation of the T/C's temp. order. At the hearing H's atty refused to answer any questions regarding who paid him what claiming the atty/client privilege. When W's atty started quizzing H's atty about the "fraud on the community" by accepting fees in violation of the T/C's temp. order, H's atty refused to answer claiming the 5th. The T/C ordered H's atty to disgorge the $20,000 into the ct's registry and further ruled that the atty's claiming the 5th disqualified him from representing H.

    H's atty filed a mandamus which was granted. H's atty can be disqualified if he takes part in a conspiracy to defraud the parties' community estate; however, the atty's use of the 5th amendment doesn't create an inference of such conspiracy or the atty's participation therein. As to the disgorgement, the T/C didn't abuse its discretion when ordering it.

    Comment - I love the disgorgement issue. As to the atty's disqualification, just a hint to H -- GET A NEW LAWYER.

  6. In re Marriage of Zvara, No. 131 S.W. 3d 566 (CA, Texarkana). H & W divorced with a decree that ordered H to list the community home for sale with himself (he was a realtor) or some other realtor. H listed with himself but apparently he did not actively seek a buyer. W filed a motion to clarify which resulted in the T/C ordering H to list the home for sale with a realtor other than himself or any of his associate realtors. H appealed saying this was an impermissible clarification.

    CA affirmed. §9.007(a) authorizes a T/C to enter orders to implement the property division and this order did not substantially change the original decree.