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Wilson v. Shamoun & Norman, LLP

Court of Appeals of Texas, Fifth District, Dallas

April 13, 2017

CHARLES M. WILSON, III AND GORANSON BAIN, PLLC, Appellants
v.
SHAMOUN & NORMAN, LLP, Appellee

         On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-14-12331

          Before Justices Bridges, Evans, and Schenck

          OPINION

          DAVID EVANS, JUSTICE

         Appellants Charles M. Wilson, III and Goranson Bain, PLLC assert that the trial court did not have jurisdiction to render a discovery sanctions order for $1, 837.50. Wilson and Goranson Bain further assert they did not abuse the discovery process or act in bad faith by suspending a deposition. Finally, Wilson and Goranson Bain assert the trial court abused its discretion in rendering the sanctions order. We affirm.

         BACKGROUND

         Appellee Shamoun & Norman, LLP represented Dr. Robert Schwartz in his divorce case in the 254th district court. Shamoun & Norman withdrew from the case and was succeeded by Goranson Bain. Wilson is an attorney at Goranson Bain. Shamoun & Norman later filed a petition in intervention in the divorce case alleging Schwartz failed to pay its fees. Shamoun & Norman then nonsuited its intervention and filed a new case against Schwartz in the 101st district court. Schwartz responded by filing an answer and a motion to transfer the fee case back to the 254th district court.

         By order dated February 2, 2015 ("Denial of Transfer Order"), the 101st district court denied the motion to transfer. The Denial of Transfer Order included the following language:

IT IS THEREFORE, ORDERED, ADJUDGED AND DECREED that Defendant Robert Schwartz's Motion to Transfer is hereby DENIED, in its entirety.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that all relief requested in this case and not expressly granted herein is DENIED.

         On April 1, 2015, Shamoun & Norman served a deposition notice for Schwartz for April 15, 2015. On April 14, 2015, Wilson filed a verified plea to the jurisdiction arguing that the Denial of Transfer Order constituted a final judgment and that the 101st district court lost plenary jurisdiction on March 4, 2015.

         By letter dated April 14, 2015, Wilson requested Shamoun & Norman to stipulate to a suspension of the deposition and advised that if it did not so stipulate Wilson intended to suspend the deposition once Schwartz was sworn in. Shamoun & Norman did not agree to suspend the deposition and Wilson suspended Schwartz's deposition after he was sworn in.

         On April 23, 2015, Nathan Johnson filed an agreed motion to substitute counsel to replace Wilson and Goranson Bain as Schwartz's counsel. Johnson set the plea to the court's jurisdiction for hearing. The trial court denied the plea to the jurisdiction.

         Shamoun & Norman filed a motion to compel Schwartz's deposition and requested sanctions. The trial court heard and granted the motion ("Sanctions Order"). The trial court specifically found that Wilson and Goranson Bain were "liable for abusing the discovery process in seeking, making, and/or resisting discovery in a timely manner as required by TEX. R. CIV. P. 199.4." Pursuant to rule 215.2(b)(8), the trial court did not find that "the noncompliance was substantially justified or any other circumstances that would make this award of expenses unjust." The trial court ordered Wilson and Goranson Bain to pay Shamoun & Norman's attorney's fees and expenses related to the deposition in the amount of $1, 837.50. The trial court severed the Sanctions Order and this appeal was timely filed.

         ANALYSIS

         A. Denial of Transfer Order

         In their first issue, Wilson and Goranson Bain argue that the Denial of Transfer Order constituted a final judgment so thirty days thereafter the trial court did not have jurisdiction to render the Sanctions Order. In support of this argument, Wilson and Goranson Bain contend that (1) the Denial of Transfer Order disposes of all parties and claims, (2) the second paragraph is a final order, and (3) it is irrelevant if this final order was rendered by mistake. We disagree.

         We review a lower court's determination of its jurisdiction de novo. See CMH Homes v. Perez, 340 S.W.3d 444, 447 (Tex. 2011) (citing Villafani v. Trejo, 251 S.W.3d 466, 467 (Tex. 2008)).

         1. Denial of Transfer Order does not dispose of all parties and claims

         Wilson and Goranson Bain assert that a judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record. Wilson and Goranson Bain note that this lawsuit involves Shamoun & Norman's claim against Schwartz for the unpaid portion of its fees. Without reference to the record or any case law, Wilson and Goranson Bain summarily conclude that "[a]fter a review of this record it is clear there are no parties and/or claims that are not disposed of by the 101st District Court's February 2, 2015, Order."

         We disagree. The supreme court decided that a judgment issued without a conventional trial is final for purposes of appeal if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties. Lehmann v. Har-Con Corp, 39 S.W.3d 191, 192-93 (Tex. 2001). Here, the petition filed by Shamoun & Norman included claims against Schwartz for suit on sworn account, breach of contract, and attorney's fees. In the motion to transfer, the only relief sought by Schwartz was a mandatory transfer of the case to the 254th judicial district court. In the Denial of Transfer Order, the trial court only considered and denied the motion to transfer. The order did not purport to render judgment as to any party or claim. Indeed, there is nothing in the Denial of Transfer Order or the record that indicates that the trial court intended to address any of the substantive claims raised by the parties.

         2. Denial of Transfer Order contains no indication of finality

         The supreme court defined a mother hubbard clause as the statement "all relief not granted is denied" or "essentially those words." Lehmann, 39 S.W.3d at 203. In Lehmann, the supreme court noted that the routine inclusion of mother hubbard clauses in otherwise plainly interlocutory orders and their ambiguity in many contexts have rendered the clause inapt for determining finality when there has not been a trial. Id. at 192. The supreme court concluded that "[w]e no longer believe that a Mother Hubbard clause in an order or in a judgment issued without a full trial can be taken to indicate finality." Id. The supreme court then provided guidelines for determining when an order or judgment does provide finality for purposes of an appeal:

From the cases we have reviewed here, we conclude that when there has not been a conventional trial on the merits, an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties. An order that adjudicates only the plaintiff's claims against the defendant does not adjudicate a counterclaim, cross-claim, or third party claim, nor does an order adjudicating claims like the latter dispose of the plaintiff's claims. An order that disposes of claims by only one of multiple plaintiffs or against one of multiple defendants does not adjudicate claims by or against other parties. An order does not dispose of all claims and all parties merely because it is entitled "final", or because the word "final" appears elsewhere in the order, or even because it awards costs. Nor does an order completely dispose of a case merely because it states that it is appealable, since even interlocutory orders may sometimes be appealable. Rather, there must be some other clear indication that the trial court intended the order to completely dispose of the entire case. Language that the plaintiff take ...

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