Crox Quintanilla v. Law Office of Jerry J. Trevino, P.C. ( 2015 )

FILED
IN THE 13TH COURT OF APPEALS
CORPUS CHRISTI
CAUSE NO 13-15-00105-CV
9/3/15
In The Thirteenth Court of Appeals
CLERK
Corpus Christi and Edinburg, Texas
CROX QUINTANILLA
V.
LAW OFFICE OF JERRY J. TREVIÑO, P.C. and JERRY J. TREVIÑO
Appeal from the 347th Judicial District Court of Nueces County, Texas
Cause No. 2013-DCV-2066-H
Hon. Honorable David Wellington Chew ,Presiding by Assignment
APPELLANT’S BRIEF
Respectfully submitted,
Craig S. Smith René Rodriguez
SB #18553570 SB #17148400
LAW OFFICE OF CRAIG S. SMITH LAW OFFICE OF RENÉ RODRIGUEZ
14493 S.P.I.D., Suite A; P.M.B. 240 433 South Tancahua
Corpus Christi, Texas 78418 Corpus Christi, Texas 78401
(361) 728-8037 (361) 882-1919 Telephone
csslaw@stx.rr.com (361) 882-2042 Telecopier
ATTORNEYS FOR APPELLANT
CROX QUINTANILLA
IDENTITY OF PARTIES AND COUNSEL
Appellant: Counsel for Appellant:
Crox Quintanilla Craig S. Smith
LAW OFFICE OF CRAIG S. SMITH
14493 S.P.I.D., Suite A; P.M.B. 240
Corpus Christi, Texas 78418
361.728.8037 Telephone
csslaw@stx.rr.com
Appellate Counsel
René Rodriguez
LAW OFFICE OF RENÉ RODRIGUEZ
433 South Tancahua
Corpus Christi, Texas 78401
361.882.1919 Telephone
361.882.2042 Telecopier
Trial and Appellate Counsel
Appellee: Counsel for Appellee:
Law Office of Jerry J. Treviño P.C. Tony Canales
and Jerry J. Treviño CANALES & SIMONSON, P.C.
2601 Morgan Ave.
Corpus Christi, Texas 78405
361.883.0601 Telephone
361.884.7023 Telecopier
Trial and Appellate Counsel
ii
Parities to Underlying Case and Not Parties to this Appeal:
Parties: Counsel for Parties:
Randall Barrera Ron Barroso
5350 S. Staples Street, #401
Corpus Christi, Texas 78411-4654
361.994.7200 Telephone
361.994.0069 Telecopier
René Rodriguez Kevin W. Grillo
Rey Peña
1240 Third St.
Corpus Christi, Texas 78401
361.356.1882 Telephone
361.356.1882 Telecopier
Reynaldo A. Peña René Rodriguez
LAW OFFICE OF RENÉ RODRIGUEZ
433 South Tancahua
Corpus Christi, Texas 78401
361.882.1919 Telephone
361.882.2042 Telecopier
DOE Defendant No. 1
DOE Entity No. 1
iii
TABLE OF CONTENTS
Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii and iii
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v
Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi
Record References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .vi
Statement of Facts .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
iv
INDEX OF AUTHORITIES
CASES
Page(s)
Firefighters v. Cleveland,
478 U.S. 501, 528-529, 106 S. Ct. 3093, 3078-3079 (1986). . . . . . . . . . . . . . . . . . . .7
Guaranty Fed. Sav. Bank v. Horseshoe Oper. Co.,
793 S.W.2d 652, 657 (Tex. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Hensley v. Salinas,
583 S.W.2d 617 (Tex. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Hill v. Hill,
599 S.W.2d 691 (Tex. Civ. App. 1980, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
H. Tebbs, Inc. v. Silver Eagle Distributors, Inc.,
797 S.W.2d 80 (Tex. App.- Austin 1990, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . 6,7
Serna v. Webster,
908 S.W.2d 487 (Tex. App. - San Antonio 1995, no writ). . . . . . . . . . . . . . . . . . . . .6
Travelers Insurance Co. v. Williams,
603 S.W.2d 258 (Tex. Civ. App. 1980, no writ). . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
v
STATEMENT OF THE CASE
This appeal concerns a trial court’s order dismissing appellant’s claims.
STATEMENT REGARDING ORAL ARGUMENT
Appellant believes oral argument would not be necessary to the Court in determining
this case. Therefore, Appellant Crox Quintanilla respectfully does not request oral argument
in this matter.
RECORD REFERENCES
Citations to the Clerk’s Record shall be referred to herein as “(C.R. page ).”
ISSUE PRESENTED
Whether the trial court abused its discretion by dismissing Appellant’s case.
vi
CAUSE NO 13-15-00105-CV
In The Thirteenth Court of Appeals
Corpus Christi and Edinburg, Texas
CROX QUINTANILLA
V.
LAW OFFICE OF JERRY J. TREVIÑO, P.C. and JERRY J. TREVIÑO
Appeal from the 347th Judicial District Court of Nueces County, Texas
Cause No. 2013-DCV-2066-H
Hon. Honorable David Wellington Chew ,Presiding by Assignment
APPELLANT’S BRIEF
TO THE HONORABLE JUSTICES OF THE 13TH COURT OF APPEALS:
COMES NOW Appellant, Crox Quintanilla, filing his Appellant’s Brief
respectfully showing the Court as follows:
STATEMENT OF FACTS
On or about April 15, 2013, Appellee Law Offices of Jerry J. Treviño sued Randall
Barrera, Individually, René Rodriguez, Individually, and René Rodriguez, Trustee, for,
inter alia, a debt/contract, tortious interference with a contract, conversion, breach of
fiduciary duty and assisting in breach of fiduciary duty, arising from a Settlement and
Confidentiality Agreement between Appellant and Randall Barrera. (C.R. page 5).
Appellee Law Offices of Jerry J. Treviño was essentially asserting that there was a valid
and enforceable assignment of said Settlement and Confidentiality Agreement by
Appellant Crox Quintanilla to Appellee Law Offices of Jerry J. Treviño. Appellee Law
Offices of Jerry J. Treviño also was seeking a declaratory judgment and a temporary restraining
order. (On a subsequent pleading Appellees included Reynaldo A. Peña, Individually, DOE
Defendant No. 1, Individually, an Unknown Person, and DOE Entity No. 1, an Unkonwn Entity
as Defendants.)
Less than a month after filing this litigation, Quintanilla filed an Original Petition in
Intervention on May 6, 2013. Quintanilla thereafter filed his First Amended Original Petition in
Intervention on August 2, 2013 to include Appellee Jerry J. Treviño as a party to the litigation
alleging the following: Fraud by Nondisclosure, Common Law Fraud, Tortuous Interference
with Contract, Breach of Fiduciary Duty, Fraudulent Inducement, Negligent Misrepresentation,
Negligence and Theft of Property.
Appellee Jerry J. Treviño was the lawyer for Quintanilla when this alleged assignment
occurred. This breached fiduciary duties and constitutes a fraud on Quintanilla. Treviño paid
Quintanilla $28,000.00 for an assignment of a settlement agreement valued at
approximately $200,000.00.
On September 3, 2014, counsel for the Law Office of Jerry J. Treviño and Jerry J.
Treviño submitted to all counsel a proposed settlement requesting that “all parties”
dismiss their respective suits (C.R. page 227), attaching a document entitled All Parties’
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Motion for Non Suit (C.R. page 229) with signature lines for all lawyers and an Order of
Dismissal. (C.R. page 233) All parties (i.e., Defendants and Intervenor) refused to sign
the proposed Motion.
On September 24, 2014, the Appellees filed another document entitled
Plaintiffs’, Law Office of Jerry J. Trevino, P.C. and Jerry Trevino, Individually, Motion
for Non Suit (C.R. pages 192 & 235) with a proposed Order of Dismissal. (C.R. page
238). Since no other party to this litigation agreed to dismiss their causes of action, this
Motion specifically sought the dismissal of only all claims “filed under the pleading
entitled ‘Plaintiff’s First Amended Petition’ against Randall Barrera, Rene Rodriguez,
Individually & as Trustee” and “for non-suit of all claims made in Jerry Trevino’s
‘Intervenor Counter Claim’ against all parties including Crox Quintanilla, Reynaldo A.
Pena and unnamed defendants.” On that same day, the Court signed an Order of
Dismissal granting the non-suit “and all claims of the Plaintiffs’ Law Office of Jerry J.
Trevino and Jerry J. Trevino, Individually are hereby dismissed.” (C.R. page 191) No
motions to reconsider, motions for new trial and/or appeals were filed by Appellees Law
Office of Jerry J. Treviño and Jerry J. Treviño within the following thirty (30) days.
Since assigned Judge Chew had not made any appearances or rulings on pending
discovery and summary judgment motions for over a year, counsel for Appellant filed
Motions on August 18, 2014, to set a hearing on all pending motions, to set a trial date
and, in the alternative, to have the 5th Administrative Judicial Region Judge Rolando
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Olvera, Jr. assign a new judge in this litigation. (C.R. page 186) The Court had scheduled
a hearing for January 30, 2015, regarding all pending Motions in this matter. (C.R. page
186) Appellant had the following Motions pending:
Traditional Motion for Partial Summary Judgment as to the Law Offices of
Jerry J. Treviño
Amended Motion to Compel against the Law Office of Jerry J. Treviño, P.C.
to respond to Request for Disclosures, Requests for Production and
Interrogatories
Motion to Compel Responses to Second Set of Request for Production to the
Law Office of Jerry J. Treviño, P.C.
Motion to Remove Monies from Trust Account
Although the Appellees Law Office of Jerry J. Treviño and Jerry J. Treviño were
not parties to this lawsuit on January 12, 2015, and had no standing to file a request for a
ruling on any of its prior Motions, which had been the subject of the Order of Dismissal
of September 24, 2015, the former Plaintiffs filed Plaintiffs’ Memorandum in Support of
Motion to Dismiss Plea in Intervention. (C.R. page 196) Without a hearing or notice to
anyone, the Court sua sponte on January 22, 2015 executed an Order on Interpleader
Petition incorrectly stating that “the Plaintiff’s Motion to Non-Suit and Order of dismissal
entered on September 24, 2014, disposed of all issues and causes of actions of all
parties.” (Emphasis added) (C.R. page 201).
The Motion for Non Suit filed on September 24, 2014 by Plaintiffs/Appellees was
-4-
very specific. The Plaintiffs/Appellees sought the Non Suit of all claims “filed under the
pleading entitled ‘Plaintiff’s First Amended Petition’ against Randall Barrera, Rene
Rodriguez, Individually & as Trustee” and “for non-suit of all claims made in Jerry
Trevino ‘Intervenor Counter Claim’ against all parties including Crox Quintanilla,
Reynaldo A. Pena and unnamed defendants.” The Order of Dismissal of September 24,
2015 was a non suit and dismissal of only Plaintiffs’/Appellees’ claims - which does not
dispose of all issues and causes of actions of all parties, including the Amended Original
Petition in Intervention filed by Crox Quintanilla.
On January 26, 2015, Appellant filed Intervenor Plaintiff’s Motion to Reconsider,
or in the alternative, Motion for New Trial. (C.R. page 220) On January 27, 2015, Judge
David Wellington Chew again sua sponte issued an Order on Intervenor Plaintiff’s
Motion to Reconsider and Motion for New Trial summarily denying the requested relief.
(C.R. page 207).
SUMMARY OF THE ARGUMENT
The Court abused its discretion by dismissing Appellant’s pleadings.
ARGUMENT
On Mary 6, 2013, Crox Quintanilla filed an Original Petition in Intervention and
on August 2, 2013 a First Amended Original Petition in Intervention. He did not file a
Plea in Intervention or a Motion to Intervene as stated in Appellees Memorandum in
-5-
Support of Motion to Dismiss Plea in Intervention. (C.R. page 196) In addition and
contrary to Appellees’ Memorandum, “an intervenor is not required to secure the court’s
permission to intervene.” See: Guaranty Fed. Sav. Bank v. Horseshoe Oper. Co., 793
S.W.2d 652, 657 (Tex. 1990). Once Intervenor Plaintff intervened, he/she is before the
Court for all purposes. Plaintiffs’ cannot dismiss their claims and affect the intervenor’s
rights in this litigation as to Trevino. Thus, contrary to Trevino’s Motion for Non Suit
(C.R. pages 192 & 235) (which was the subject of a Non Suit/Order of Dismissal dated
September 24, 2014) and Memorandum (which was filed more than 30 days after the
signing of the Order of Dismissal dated September 24, 2014), Quintanilla had live claims
that could not be dismissed.
Quintanilla was entitled to a merits resolution by a Texas court under the Due
Process Clause and Open Courts Provision. His claim could not be stricken out by the
trial court arbitrarily. The Honorable trial court wrongfully denied Quintanilla his right to
a trial, and this Court must reverse.
In the Memorandum in Support of Motion to Dismiss Plea in Intervention,
Appellees cite Serna v. Webster and H. Tebbs, Inc. v. Silver Eagle Distributors, Inc. for
the proposition that “There is no lawsuit pending.” These cases do not support any of the
Appellees’ arguments regarding a dismissal of Intervenor Plaintiff’s Petition in
Intervention or that the Petition in Intervention is not a “lawsuit pending.” In fact, no
where in any of these two cases do those courts state: “There is no lawsuit pending.” –
-6-
not at page 492 (Serna case) nor at page 84 (Silver Eagle case) as cited by Appellees on
page 2 of their Memorandum in Support of Motion to Dismiss Plea in Intervention. (C.R.
page 196) It does not state that a Dismissal of an Original Petition dismisses a Petition in
Intervention. Both of these cases hold to the contrary. Quintanilla’s pleadings were a
pending lawsuit.
In fact, Serna noted: “If appellants intervened in the suit, they were properly
parties before the Court.” @ 491. The Court further stated that: “We hold that
appellants, having intervened and appeared, were parties before the court for all
purposes.” @ 492. As such, once Appellant filed his Petition in Intervention, he is
before the Court for all purposes and Appellees cannot dismiss Intervenor Plaintff’s
claims and affect the intervenor’s rights.
In H. Tebbs, Inc., Silver Eagle Distributors, Inc.’s contention was that the court’s
Agreed Order constituted an agreed judgment and is therefore not subject to attack absent
an allegation of fraud or mistake. H. Tebbs, Inc. claimed the court’s Agreed Order was a
nullity without the consent of all parties, which included the intervenor (H. Tebbs, Inc.).
While it is true that an agreed judgment is not subject to attack absent an allegation of
fraud or mistake, Hill v. Hill, 599 S.W.2d 691 (Tex. Civ. App. 1980, no writ), it is also
generally true that an agreed judgment can be rendered only if all parties agree. Hensley
v. Salinas, 583 S.W.2d 617 (Tex. 1979); H. Tebbs, Inc. v. Silver Eagle Distributors, Inc.,
797 S.W.2d 80 (Tex.App. - Austin, 1990). In the H. Tebbs, Inc. case, Silver Eagle
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argued that even if the district court had permitted intervention by H. Tebbs, Inc., the
intervention would not affect the validity of this Agreed Order. The Court stated that the
validity of judgments made on the basis of agreements between some of the parties
without the consent of intervenors was addressed by the United States Supreme Court:
It has never been supposed that one party -- whether an original party,
a party that was joined later, or an intervenor -- could preclude other
parties from settling their own disputes and thereby withdrawing from
litigation . . . . Of course, parties who choose to resolve litigation through
settlement may not dispose of the claims of a third party, and a fortiori may
not impose duties or obligations on a third party, without that party's
agreement. A court's approval of a consent decree between some of the
parties therefore cannot dispose of the valid claims of nonconsenting
intervenors.
Firefighters v. Cleveland, 478 U.S. 501, 528-529 (1986). See also: Travelers Insurance
Co. v. Williams, 603 S.W.2d 258 (Tex. Civ. App. 1980, no writ) (treating intervenors as
parties whose consent was necessary to the agreed judgment).
Thus, just as a consent judgment cannot affect the intervenor's rights without the
consent of the intervenor, neither can a voluntary dismissal by a third party effect the
intervenor's rights.
-8-
PRAYER
WHEREFORE, PREMISES CONSIDERED, Appellant Quintanilla respectfully
prays that this Court remand.
Respectfully submitted,
LAW OFFICE OF RENÉ RODRIGUEZ
433 South Tancahua
Corpus Christi, Texas 78401
TELEPHONE: (361) 882-1919
FACSIMILE: (361) 882-2042
rene.rodriguez@rdrlaw.com
By: /s/ René Rodriguez
RENÉ RODRIGUEZ
State Bar No. 17148400
LAW OFFICE OF CRAIG SMITH
14493 S.P.I.D., suite A, P.M.B. 240
Corpus Christi, Texas 78418
TELEPHONE: (361) 728 8037
csslaw@stx.rr.com
ATTORNEYS FOR APPELLANT
CROX QUINTANILLA
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CERTIFICATE OF SERVICE AND COMPLIANCE
I hereby certify that the above and foregoing APPELLANT’S BRIEF was served
upon counsel of record via the method indicated on September 1, 2015.
I certify there are 2455 words in this entire document.
/s/ René Rodriguez
René Rodriguez
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Sep. 24. 2014 4:19PM 319\h DISTRICT COURT No. 9715 P. 1/1
' I
CAUSE NO. lQU-DCV-2%6--H
LAW OFPICEOII J£RRY J. TREVINO, P.C. § IN 'tHE DISTRICT COURT
Plaintift~ §
§
vs. §
§
RANDALL BARRERA, lnclivldually; §
RENE RODRIOUEl.; Individually; §
RENE RODRIGUEZ, Trusreei §
REYNALDO A, PENA, Individually; §
DOE DBFENDANT NO, 1, Individually, §
An Uttknown Penon; and §
DOE ENTITY NO. 1, an Unkno-wn Entity: §
Defendants) §
§
CROX QUINTANILLA, §
lntorvenor Plaintiff § 347™ !UDICIAL DISTRICT
§
vs. §
§
LAW OFFICE OF JERRY J. TREVINO, §
P.C.; and JERRY J. TREVINO, §
Tndivldually, §
Jntertenor·Defendents and §
Cou.nter·Intervenor Plaintiffii, §
§
vs. '§
~
CROX Q'OJNI'ANILLA, §
IntesVenor P1~tiff Wld §
Cowiter-lnten-enor Defendant. § NUECES COUNTY, TEXAS
ORDER OF DIWISSAL
Plalntlffs, Law Office of Jerry J. Trevino artd Jerry I. Trevino, lndividually move for a
Non·Sult of 11.il of the parti~ In lntereru. The Court after considering the request GRANTS THE
NON-SUIT at1d all claims of the Plaintiffs law Office of Jerry J. Trevino and Jerry J. Trevino,
lndivlduolly are hi
Si.gned thiti
~d.
day of ~
David Well~ngton Che~ ~
Senior· Juetice, Sitt~ng by .Aa~igmnent
Ja.n. 27. 2015 5:24PM 31q1~ DISTRICT COURT No. 2361 P. 1/1
Ca.use No. 2013-DCV-2066-H
LAW OFFICE OF JERRY J . TltEVlNO, P.C., § IN THE DISTR1CT COURT
Plai11tijJ §
§
vs. §
§
RANOALL BARRERA, Individually; §
RENE RODRIGUEZ, Indivldually & as Trustee, §
Defeflda11ts §
§
CROX QUINTANILLA,, § 347rn JUDICIAL DISTRICT
· /11terve11or Pla/1ttiff §
§
vs. §
§
LAW OFFICE OF JERRY J. TREVINO, P,C, §
and JERRY J. TREVINO §
lflterve11or Defendants § NUECES COUNTY, TEXAS
ORDER ON INTERVENOR PLAINTIFF'S MOTION TO RECONSIDER and
MOTION FOR NEW TRIAL
After considering Intervenor Plai11r.if's Motion to Reconsil/er and Motion for New
Trial, the response, the pleadings and arguments of counsel, it i:; the Order of the Court, and it is
so ORDERED that the Motions are Denied. "
Signed the 27tll day of January, 2015.
LLINGTON CHEW,
Senior Justice
Sitting by Assignment
....