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New Deliverance Church, Inc., Appellant v. Adam Miller and Houssiere

April 25, 2013

NEW DELIVERANCE CHURCH, INC., APPELLANT
v.
ADAM MILLER AND HOUSSIERE, DURANT & HOUSSIERE, LLP, APPELLEES



On Appeal from the 189th District Court Harris County, Texas Trial Court Cause No. 2004-70043A

The opinion of the court was delivered by: Sharon McCally Justice

Affirmed and Majority and Dissenting Opinions filed April 25, 2013.

In The Fourteenth Court of Appeals

D I S S E N T I N G OPINION

I agree with the majority opinion on the resolution of the issues pertaining to HRD because this appeal is not between the Church and HRD and this appeal does not involve the propriety of the trial court's order enforcing the settlement between the Church and HRD. However, the fact that the trial court has enforced the settlement between the Church and HRD is pertinent to these proceedings inasmuch as the Attorneys' Petition in Intervention at issue here is the Attorneys' claim to a portion of the HRD settlement proceeds as fees for services to the Church in connection with the HRD litigation.

I do not agree with the majority on Issue No. 3 and the decision to reverse the trial court's summary judgment on the Attorneys' Petition in Intervention. The trial court granted the Attorneys' motion for summary judgment on their Petition in Intervention for fees because the Church did not challenge their justiciable interest in the HRD litigation and the Attorneys eliminated all genuine issue of fact on the amount of fees. I would find no error. Therefore, I respectfully dissent.

PROCEDURAL BACKGROUND

I do not disagree with the accuracy of the facts stated by the majority. The factual statement is, however, wholly incomplete because it ignores the procedural facts. The procedural facts are dispositive of this action because they establish the matters upon which the Attorneys needed to offer proof to obtain summary judgment. Therefore, I recite those procedural facts here.

The Attorneys filed the underlying lawsuit on behalf of the Church. The suit involved a chemical plant explosion that was alleged to have caused injury and property damage. The Attorneys represented the Church from the time they filed suit on behalf of the Church in September 2005 until the mediation in February 2007. Thus, on behalf of the Church, the Attorneys filed pleadings, conducted discovery, and hired expert witnesses in preparation for trial of the claims of the Church. The Attorneys even defended the Church against an intervention by the Church's secured lender Church Mortgage and Loan Corporation.

The Church, with the Attorneys by its side, settled its claim at mediation for $300,000. Subsequently, the Church fired the Attorneys, and contested the settlement. The Attorneys withdrew. The trial court ordered the Attorneys to deposit the contested settlement funds pending determination of enforcement and who was entitled to the funds. On May 7, 2010, the trial court entered an order enforcing the 2007 settlement between the Church and HRD.

The Attorneys filed the instant Petition in Intervention alleging a justiciable interest in the Church's recovery. The Church filed an answer with a verified denial. The Church also filed a motion to strike the intervention. The Attorneys filed a motion for summary judgment. The Church filed a response. The attorneys then moved to strike all three of the Church's pleadings-the answer, the motion to strike, and the response to the summary judgment-alleging they were filed in violation of the Texas Disciplinary Rules of Professional Conduct. The trial court granted the Attorneys' motion to strike and struck the Church's pleadings. The trial court then granted the Attorneys' motion for summary judgment and severed the matter between the Church and the Attorneys.

The Church appeals the summary judgment granted to the Attorneys, arguing there is a fact issue regarding whether its pastor was acting in a representative capacity for the Church when she signed the original contingency-fee contract. The Attorneys respond, urging correctly in my view, that they did not need evidence of capacity because the Church did not put them to that burden with a motion to strike or a verified denial as required by TEX. R. CIV. P. 60 and 93(7).

Significantly, the Church does not appeal the trial court's orders striking its answer, its verified denial, its motion to strike the Petition in Intervention, and its response ...


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