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Scott Pelley P.C. v. Wynne

Court of Appeals of Texas, Fifth District, Dallas

June 13, 2019

SCOTT PELLEY P.C., SCOTT PELLEY, INDIVIDUALLY, AND THE PELLEY FAMILY LIMITED PARTNERSHIP, Appellants
v.
MICHAEL C. WYNNE, JOHN HUNTER SMITH, AND THE M&S WYNNE FAMILYLIMITED PARTNERSHIP, Appellees

          On Appeal from the 15th Judicial District Court Grayson County, Texas Trial Court Cause No. CV-11-1026.

          Before Justices Myers, Molberg, and Carlyle

          OPINION

          KEN MOLBERG JUSTICE.

         In this appeal, we address whether the trial court exceeded our mandate from a prior appeal and whether the evidence supported the appellate attorney's fees awarded by the trial court on remand.

         This case was tried, appealed, reversed and remanded in part, tried again on the issue of appellate attorney's fees, and is now before us on a second appeal. In two issues, Scott Pelley P.C., Scott Pelley, and The Pelley Family Limited Partnership (Pelley Family L.P.) (collectively, Pelley parties) assert the trial court (1) exceeded the scope of this Court's remand and erred in awarding Michael C. Wynne, John Hunter Smith, and the M&S Wynne Family Limited Partnership (collectively, Wynne parties) post-judgment overhead expenses and (2) erred because no evidence supports the appellate attorney's fees awarded. We reverse the portion of the trial court's order awarding post-judgment overhead expenses and render judgment that the Wynne parties take nothing with respect to those expenses. We affirm the remainder of the trial court's judgment.

         Background

         The factual and procedural backgrounds of this case are fully discussed in this Court's prior opinion. See Scott Pelley P.C. v. Wynne, No. 05-15-01560-CV, 2017 WL 3699823 (Tex. App.- Dallas Aug. 28, 2017, pet. denied) (mem. op.). We do not repeat them here, except to the extent necessary.

         The underlying litigation involved multiple claims, counterclaims, and cross-claims arising out of the dissolution of the law partnership of Nall, Pelley, Wynne & Smith. After a bench trial, the trial court signed a final judgment generally in favor of Wynne and Smith on their counterclaims and cross-claims for breach of contract, an accounting, and attorney's fees. Among other things, the final judgment ordered Pelley and Scott Pelley P.C. to pay $55, 672.80 to Wynne and Smith as reimbursement for overhead operation expenses incurred as part of the law firm's post-dissolution expenses during the years "2012 to present"[1] and ordered the Pelley parties to pay $40, 000 to the Wynne parties for attorney's fees incurred "in connection with the Gibbs Estate and Shankles Estate cases."

         In the first appeal, Scott Pelley P.C. appealed the trial court's final judgment in favor of Wynne and Smith on its claims for repudiation, breach of contract, conversion, theft, damages under the Texas Theft Liability Act, and breach of fiduciary duty. Pelley appealed the trial court's final judgment in favor of Wynne and Smith on their cross-claims for breach of contract, specific performance, and voluntary judicial winding up of the partnership. The Pelley parties appealed the trial court's final judgment imposing joint and several liability as to Wynne's and Smith's counterclaims against Scott Pelley P.C. and the Pelley Family L.P. In a cross-appeal, Wynne and Smith appealed the trial court's final judgment in favor of Pelley on their cross-claims for breach of fiduciary duty and request for appellate attorney's fees.

         We reversed the trial court's final judgment to the extent it failed to award contingent appellate attorney's fees sought by Wynne and Smith. We affirmed the remainder of the trial court's judgment. We remanded the case to the trial court "for a determination of the reasonable amount of appellate attorneys' fees to be awarded to Wynne and Smith in view of the fact that Wynne and Smith successfully defended this appeal and were partially successful in their cross-appeal, and to make a determination of appellate attorneys' fees should the Pelley parties unsuccessfully appeal to the Texas Supreme Court." Scott Pelley P.C., 2017 WL 3699823, at *33. The supreme court denied the Pelley parties' petition for review on January 12, 2018. Our mandate issued on February 27, 2018.

         On April 9, 2018, the trial court conducted a hearing and addressed our appellate attorney's fee directive. It also considered the Wynne parties' claim against the Pelley parties for additional overhead expenses that allegedly accrued from the time of the trial court's final judgment to the date of the hearing on remand.

         Award on Remand of Post-Judgment Overhead Expenses

         In their first issue, the Pelley parties contend that the trial court's award of post-judgment overhead expenses exceeded this Court's mandate, was error, and should be reversed and rendered. In response, the Wynne parties argue the Pelley parties failed to preserve the issue for appeal, the trial court did not exceed our mandate because "the judicially supervised winding up of the partnership was not yet over," and the award for reimbursement of post-judgment overhead expenses was consistent with our opinion.

         A mandate is an appellate court's formal command requiring the lower court to comply with the appellate court's judgment. Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex. App.-Dallas 2011, no pet.). When an appellate court affirms a trial court's judgment, or renders the judgment the trial court should have rendered, that judgment becomes the judgment of both courts. Id. When an appellate court reverses a portion of the trial court's judgment and remands the case, as we did here, the trial court is authorized to take all actions necessary to give full effect to the appellate court's judgment and mandate. Phillips v. Bramlett, 407 S.W.3d 229, 234 (Tex. 2013). "The scope of the mandate is determined with reference to both the appellate court's opinion and the mandate itself." Cessna Aircraft Co., 345 S.W.3d at 144.

         The trial court, however, has no authority to take any action that is inconsistent with or beyond what is necessary to give full effect to the appellate court's judgment and mandate. See Phillips, 407 S.W.3d at 234. The trial court must observe and carry out the mandate of the court of appeals, and its orders carrying out the mandate are ministerial. Cessna Aircraft Co., 345 S.W.3d at 144. "When [the appellate] court remands a case and limits a subsequent trial to a particular issue, the trial court is restricted to a determination of that particular issue." Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); see also Cessna Aircraft Co., 345 S.W.3d at 144 ("When an appellate court remands a case with specific instructions, the trial court is limited to complying with the instructions and cannot re-litigate issues controverted at the former trial."). Moreover, the appellate court's judgment is final, "not only in reference to the matters actually litigated, but as to all other matters that the parties might have litigated and had decided in the cause." Martin v. Credit Prot. Ass'n, Inc., 824 S.W.2d 254, 257 (Tex. App.-Dallas 1992, writ dism'd w.o.j.).

         When a trial court exceeds its authority under a mandate, the resulting judgment is erroneous. Phillips, 407 S.W.3d at 234. In a subsequent appeal, instructions given to a trial court in the former appeal will be adhered to and enforced. Hudson, 711 S.W.2d at 630.

         Here, our judgment and mandate remanded the case to the trial court "for further proceedings consistent with this opinion." ...


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