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Diaz v. Monnig

Court of Appeals of Texas, Fourth District, San Antonio

May 31, 2017

Berenice C. DIAZ, individually and as next friend of J.P.L., Appellant
v.
James E. MONNIG, Appellee Berenice C. DIAZ, individually and as next friend of J.P.L., Appellant
v.
John A. MEAD, Appellee

         From the 224th Judicial District Court, Bexar County, Texas Trial Court No. 2015-CI-13493 Honorable Cathleen M. Stryker, Judge Presiding

          Sitting: Marialyn Barnard, Justice Patricia O. Alvarez, Justice Irene Rios, Justice.

          MEMORANDUM OPINION

          Irene Rios, Justice.

         Appellant Berenice Diaz, individually and as next friend of her minor child, J.P.L., sued James Monnig and John Mead asserting a variety of claims she alleged arose during Monnig's and Mead's representation of her former husband during a custody suit. Diaz appeals from the trial court's summary judgments in favor of Monnig and Mead, as well as the trial court's exclusion of summary judgment evidence. We affirm.

         Background

         In 2004, Jean Phillipe Lacombe and appellant Berenice Diaz obtained a divorce from a Mexican court. The divorce decree awarded custody of their minor son, J.P.L., to Lacombe. The parties engaged in a series of court cases in Mexico regarding custody and possession of J.P.L., and, according to Diaz, a subsequent order from a Mexican court awarded custody to her. Diaz obtained possession of J.P.L. and moved to San Antonio, Texas with the child in 2007.

         In early 2009, Lacombe learned Diaz and J.P.L. were living in San Antonio. Lacombe contacted appellee John Mead in March 2009 regarding representation in Bexar County. Mead then contacted appellee James Monnig to serve as co-counsel. On October 15, 2009, Lacombe, represented by Monnig and Mead, filed a petition for enforcement of a child custody determination under the Hague Convention on the Civil Aspects of International Child Abduction ("Hague Convention") and its implementing legislation, the International Child Abduction Remedies Act ("ICARA") ("the Petition") in Bexar County, Texas.

         Lacombe alleged he was entitled to custody and possession of J.P.L. and that Diaz had no right to custody or possession of J.P.L. A certified copy of Lacombe and Diaz's Mexican divorce decree was attached to Lacombe's petition, as were other translated Mexican court documents. Lacombe specifically pointed out a September 28, 2009 Mexican court of appeals opinion, which found that Diaz's removal of J.P.L. from Mexico violated a lower court's orders and issued an arrest warrant for Diaz. Lacombe requested that he be awarded immediate custody of J.P.L. Further, Lacombe relied on a January 18, 2006 Mexican appeals court order, in which the court suspended an order subsequent to the divorce decree that transferred custody to Diaz when Lacombe failed to timely report his new phone number. Lacombe argued the language of the January 18, 2006 order made the divorce decree the controlling custody order.

         An ex parte emergency hearing was held the same day the petition was filed. Lacombe and Arturo Ochoa, one of Lacombe's Mexican attorneys, were present at the emergency hearing, affording the trial court the opportunity to question counsel regarding the contents of the documents presented with the petition. The trial court granted Lacombe's request for a warrant to take physical custody of J.P.L. and ordered Lacombe, with J.P.L., and Diaz to appear on Monday, October 19, 2009, for a hearing on Lacombe's petition. The warrant was executed, and Lacombe obtained possession of J.P.L. on October 16, 2009.

         The morning of October 19, 2009, at Lacombe's direction via voicemail message, Monnig announced to the presiding judge he was nonsuiting the case on Lacombe's behalf. Neither Diaz nor her counsel objected, and the presiding judge signed an order nonsuiting Lacombe's action. Lacombe did not appear with J.P.L., and it was later discovered Lacombe left the country with J.P.L.

         On October 28, 2009, Diaz filed a Motion for Sanctions pursuant to Section 10 of the Texas Civil Practices and Remedies Code, which was denied by the trial court following a hearing. Diaz then filed a Motion to Set Aside Nonsuit, which was denied by the trial court on November 17, 2009.

         In October 2011, Diaz added Monnig and Mead as defendants in her Fourth Amended Petition for Enforcement of Child Custody Determination Pursuant to the Hague Convention and ICARA, alleging interference with possessory right of child, abuse of process, negligent/fraudulent misrepresentation, and civil conspiracy. In subsequent amended petitions, Diaz added additional causes of action against Monnig and Mead, including negligent misrepresentation per se, negligence, false imprisonment, fraud by nondisclosure, constructive fraud, negligent misrepresentation by omission, and assisting and encouraging.

         Monnig and Mead filed hybrid no-evidence and traditional motions for summary judgment, which were granted by the trial court. Monnig's and Mead's motions for severance were also granted. Thereafter, Diaz perfected these appeals.

         Exclusion of Summary Judgment Evidence

         Diaz contends the trial court erred by excluding Exhibits 10 and 11, which were attached to her responses to Monnig's and Mead's motions for summary judgment. Exhibit 10 is testimony given by the Bexar County District Attorney ("ADA") who presented the case against Lacombe to the grand jury. The testimony refers to the criminal investigation into, indictment of, and criminal case against Lacombe. Exhibit 11 is a copy of a grand jury indictment alleging Lacombe committed multiple offenses, including kidnapping, interference with child custody, and making false statements. Monnig and Mead objected to Exhibits 10 and 11, arguing the contents of the exhibits were inadmissible hearsay. The trial court agreed, and excluded the exhibits from the summary judgment evidence. Diaz argues the trial court's exclusion of the indictment and ADA's testimony prevented her from adequately presenting evidence of Lacombe's criminal conduct.

         Standard ...


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