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Border Demolition & Environmental, Inc. v. Pineda

Court of Appeals of Texas, Eighth District, El Paso

November 8, 2017

BORDER DEMOLITION & ENVIRONMENTAL, INC., Appellant,
v.
ERNESTO PINEDA, Appellee.

         Appeal from the 171st District Court of El Paso County, Texas (TC# 2014DCV1097)

          Before Rodriguez, J., Palafox, J., and Larsen, J. (Senior Judge) Larsen, J. (Senior Judge), sitting by assignment

          OPINION

          GINA M. PALAFOX, JUSTICE

         This is an appeal from a judgment granting a hybrid motion for summary judgment. Appellant Border Demolition & Environmental, Inc. ("Border Demolition"), filed tort and contract claims against Appellee Ernesto Pineda, a licensed Texas attorney, based on alleged duties flowing from a continuing relationship and implied agreement of representation. We affirm in part, and reverse and remand in part.

         I. BACKGROUND

         A. Factual Background

         Border Demolition, an environmental and demolition contractor, is a Texas corporation wholly owned by its principals, Raul and Bonnie Solis, who are husband and wife.[1] Raul Solis serves as president and Bonnie Solis serves as vice-president, secretary, and treasurer. Ernesto Pineda is a self-employed attorney who provided legal services to the Solises over the course of nearly ten years beginning in 2003.

         In March 2007, Border Demolition hired Luis Reza, a construction worker recommended by Pineda who had recently been laid off from his prior job. Months later, in November 2007, Border Demolition terminated Reza's employment when a Solis family member reported she had seen Reza speeding and driving erratically in a company-owned truck. As she caught up to confront the driver, Reza rudely responded with an obscene hand gesture. Raul Solis informed Pineda of Reza's termination in December 2007 during a phone conversation in which they were also discussing other unrelated business issues.

         After Reza's termination, Border Demolition received notice that Reza had filed a workers' compensation claim alleging he had been injured on the job and that he was seeking workers' compensation benefits.[2] On May 5, 2008, Bonnie Solis sent an email addressed to Pineda's paralegal containing the subject line "Luis Reza, " which stated:

Sandra,
Will you please show this to [M]r. [P]ineda. I don't want to give anyone information on Mr. Reza. If I receive a subpoena, then I will. Ask Mr. Pineda if he agree[s] .. [I] know he's more than familiar with the situation with [M]r. Reza. Thx.
Bonnie Solis
Vice President
Border Demolition and Environmental, Inc.
[Address Omitted]

         Pineda claimed that he did not see Bonnie Solis's email at the time it was sent, and that he only became aware of Reza's workers' compensation claim sometime the next year.

         On April 16, 2009, Reza served Border Demolition with a wrongful discharge lawsuit he had filed alleging he was fired based on workers' compensation retaliation (the "Reza lawsuit"). That same day, Bonnie Solis sent an email to Pineda with the subject line "luis reza, " stating:

Mr. Pineda,
Remember that supervisor you recommended to us, Luis Reza? We just got served a lawsuit by him. I realize that the workers comp will step in, but attached is the lawsuit for your review.
Bonnie Solis
Vice President
Border Demolition and Environmental Inc.
[Address Omitted]

         Pineda acknowledged both receiving and reading Bonnie Solis's email and the Reza lawsuit attached. He also acknowledged that he did not reply, nor take any other steps relevant to the suit on behalf of Border Demolition. In an affidavit, he explained he thought Bonnie Solis was going to turn over the suit to her workers' compensation insurance carrier as she had written. At his deposition, he added he had waited for Bonnie Solis to contact him or call, "to see if there was going to be any follow up." Although he continued meeting with both Solises on other matters, he claimed he never had any conversations with either of them about the Reza suit. Bonnie Solis acknowledged that she did not have any additional conversations with Pineda after she emailed the Reza lawsuit. She admitted that she did not personally retain Pineda to represent Border Demolition, did not enter a fee agreement with him, or receive any bills from him on the Reza matter. She asserted, however, that Pineda spoke mostly with her husband about Reza. She explained that she had partially overheard one side of a phone conversation but could not remember the exact verbiage of their call.

         Raul Solis stated that within a few days after his wife sent her email, he spoke with Pineda by phone and, based on this conversation, he believed that Pineda had agreed to represent Border Demolition. Raul Solis testified that during this call, Pineda explained he had spoken to Reza and asked him, "Why are you suing these people? These are good people."[3] Raul Solis reported he then asked Pineda, "What are we going to do next?" Pineda responded with two comments: "I don't know if he'll drop it, " and, "We'll have to keep an eye on it." From this conversation, Raul Solis understood that Pineda had agreed to assist with the Reza matter and would receive his "normal" hourly rate, even though Pineda had never represented Border Demolition in a litigation matter.

         Because Border Demolition never answered the Reza lawsuit, Reza obtained a default judgment on July 15, 2009, awarding damages to him in the amount of three hundred forty-five thousand one hundred thirty-four dollars. The district clerk's office mailed a notice of default judgment to Border Demolition the next day. Bonnie Solis testified that she did not recall receiving the notice, and further acknowledged that Border Demolition took no action to either timely move for a new trial or appeal the judgment.[4] Four years later, in September 2013, Bonnie Solis ...


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