David Lancaster v. Diane St.Yves and the Law Office of Diane St. Yves, P.L.L.C ( 2018 )

Opinion issued November 27, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00250-CV
———————————
DAVID LANCASTER, Appellant
V.
DIANE ST. YVES AND THE LAW OFFICE OF DIANE ST. YVES, P.L.L.C,
Appellees
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Case No. 2013-05066
MEMORANDUM OPINION
Appellant, David Lancaster, challenges the trial court’s rendition of summary
judgment in favor of appellees, Diane St. Yves and The Law Office of Diane St.
Yves, P.L.L.C. (collectively, “St. Yves”), on his counterclaims against her for fraud,
negligence, gross negligence, breach of contract, breach of fiduciary duty, and
violations of the Texas Deceptive Trade Practices Act (“DTPA”).1 In four issues,
Lancaster contends that the trial court erred in granting summary judgment in favor
of St. Yves on the ground that his claims are barred by res judicata and in failing to
vacate a “void” protective order and certain “void” criminal convictions.
We affirm.
Background2
On September 9, 2009, the trial court issued a default protective order (the
“2009 protective order”) against Lancaster, prohibiting him from contacting or
committing violence against his then-wife, Barbara Lancaster.3 In December 2011,
Lancaster retained St. Yves to represent him in his divorce proceedings against
Barbara and in two criminal contempt proceedings related to his violations of the
2009 protective order.4
1
See TEX. BUS. & COM. CODE ANN. § 17.46 (Vernon Supp. 2018).
2
An appellate court may take judicial notice of its own records in the same or related
proceedings involving the same or nearly the same parties. See In re Chaumette,
456 S.W.3d 299, 303 n.2 (Tex. App.—Houston [1st Dist.] 2014, orig. proceeding);
Douglas v. Am. Title Co., 196 S.W.3d 876, 878 n.1 (Tex. App.—Houston [1st Dist.]
2006, no pet.). We take judicial notice of the records filed in Lancaster’s previous
appeal in Lancaster v. Lancaster, No. 01-14-00845-CV, 2015 WL 9480098 (Tex.
App.—Houston [1st Dist.] Dec. 29, 2015, no pet.) (mem. op.).
3
Cause No. 2009–53749 (247th Dist. Ct., Harris Cty., Tex., Sept. 9, 2009, order).
4
In July 2012, Lancaster pleaded guilty to two separate offenses of violating the 2009
protective order. See Lancaster v. St. Yves, No. 01-16-00911-CV, 2017 WL
5494975, at *1 n.3 (Tex. App.—Houston [1st Dist.] Nov. 16, 2017, pet. denied)
(mem. op.).
2
In 2012, the trial court issued an agreed final decree of divorce, dissolving
Lancaster’s marriage to Barbara. In addition, the 280th District Court granted
Barbara a second protective order against Lancaster (the “2012 protective order”).5
On January 13, 2013, Lancaster filed a petition for a bill of review,
challenging the 2009 protective order, with St. Yves representing him in the matter.
On April 3, 2014, she moved to withdraw as Lancaster’s attorney in the
bill-of-review proceeding and filed a petition in intervention, asserting a claim
against Lancaster for unpaid attorney’s fees. After unsuccessfully moving to strike
St. Yves’s petition in intervention, Lancaster filed an answer, generally denying the
allegations in her petition. He did not file any counterclaims. On May 9, 2014, the
trial court granted St. Yves’s motion to withdraw, but did not initially rule on her
intervening claim for attorney’s fees.
On July 23, 2014, the trial court denied Lancaster’s petition for a bill of review
(the “bill-of-review order”), and on October 16, 2014, Lancaster appealed the
bill-of-review order to this Court.6 On December 16, 2014, this Court sent Lancaster
notice of our intent to dismiss his appeal of the bill-of-review order for a lack of
jurisdiction because the record showed that St. Yves’s claim, in her petition for
5
See TEX. FAM. CODE ANN. § 85.002 (Vernon 2014); Lancaster v. Lancaster, No.
01-12-00909-CV, 2013 WL 3243387, at *1–2 (Tex. App.—Houston [1st Dist.] June
25, 2013, no pet.) (mem. op.) (affirming 2012 protective order).
6
See Lancaster, 2015 WL 9480098, at *1–5.
3
intervention, for attorney’s fees remained pending. In response, Lancaster informed
the Court that the trial court’s bill-of-review order had in fact become final because
the trial court, on December 15, 2014, signed an “Order on Intervenor’s Petition for
Attorney’s Fees” (the “order on intervention”), disposing of St. Yves’s claim for
attorney’s fees against him. In the order on intervention, the trial court found that
St. Yves’s fees for representing Lancaster were reasonable and necessary, and it
awarded St. Yves a judgment of $27,258.56 in unpaid attorney’s fees.
Subsequently, in Lancaster’s appeal of the bill-of-review order, this Court
held that the record did not affirmatively show strict compliance with the Texas
Rules of Civil Procedure in the serving of Lancaster with Barbara’s application
underlying the 2009 protective order.7 Thus, the trial court was without jurisdiction
over Lancaster, the 2009 protective order was void, and the trial court erred in
issuing the 2009 protective order against Lancaster because he was not properly
served.8 Accordingly, the Court reversed the trial court’s bill-of-review order and
remanded the case to the trial court for further proceedings in accordance with our
opinion.9 Lancaster also asserted on appeal that after the trial court had issued its
2009 protective order, he was globally “subjected to additional due process
7
See id. at *3–4.
8
See id.
9
See id. at *5.
4
violations” by various courts and in various orders, including the 2012 protective
order and the order on intervention.10 (Internal quotations omitted.) However, he
did not specifically challenge the merits of the trial court’s December 15, 2014 order
on intervention, which had awarded St. Yves a judgment of $27,258.56 on her claim
for attorney’s fees.11 Thus, this Court expressly limited our review on appeal to the
order that Lancaster had actually appealed from, i.e., the trial court’s bill-of-review
order.12
Upon remand of Lancaster’s bill-of-review proceeding, the trial court found
that because the record did not affirmatively show strict compliance with the Texas
Rules of Civil Procedure in the serving of Lancaster with Barbara’s application
underlying the 2009 protective order, the trial court “did not acquire personal
jurisdiction over [Lancaster]” and the 2009 protective order was void. Thus, the trial
court granted Lancaster’s petition for a bill of review.
Lancaster then filed in the trial court a “First Amended Original Answer,
Denial and Counterclaim” in response to St. Yves’s previously filed April 2014
petition in intervention, in which she had asserted her intervening claim for
attorney’s fees. In addition to generally denying the allegations in the petition in
10
See id.
11
See id.
12
See id.
5
intervention, Lancaster, in his answer, brought counterclaims against St. Yves for
fraud, negligence, gross negligence, breach of contract, breach of fiduciary duty, and
violations of the DTPA. And he alleged that St. Yves had committed malpractice
while representing him in bringing a claim against him for attorney’s fees because
she had “knowingly t[aken] an inconsistent position against her own client’s
interests.”
In regard to his fraud counterclaim, Lancaster alleged that St. Yves had
“submitted invoices to [him] which contained falsified entries of time and hours
worked,” made false and misleading representations that “the actions [that she had]
billed for [were] necessary,” and “concealed from or failed to disclose certain
material facts” that she “had a duty to disclose.”
In regard to his negligence counterclaim, Lancaster alleged that St. Yves
breached the “duty to exercise reasonable care in the[] legal representation” of him
by failing to “properly initiate and prosecute to final judgment the required claims
and causes of actions to protect and secure [his] legal rights,” “act as a reasonably
prudent lawyer,” “look out for [his] best interest,” “fully and zealously represent
[him],” “properly research all issues and facts,” “properly advise [him],”
“adequately review records,” and “follow [his] instructions.”13
13
Lancaster also brought a counterclaim against St. Yves for gross negligence.
6
In regard to his breach-of-contract counterclaim, Lancaster alleged that St.
Yves had “breached her fee agreement with [him] by charging excessive and
unconscionable legal fees” and by “[f]ail[ing] to fulfill her promises to provide
adequate legal services.” And in regard to his breach-of-fiduciary-duty
counterclaim, Lancaster alleged that St. Yves had breached the “dut[ies] of candor,
loyalty, integrity,” “fair and honest dealing,” and “full disclosure,” which she owed
to him by virtue of their attorney-client relationship, because she had “charg[ed]
[him] excessive, unconscionable and unreasonable attorney[’s] fees.”
In regard to his counterclaim for violations of the DTPA, Lancaster alleged
that St. Yves violated the DTPA by “[f]ailing to disclose to [him] information
concerning rights,” misrepresenting that her services were of a particular standard
or quality or had certain characteristics or benefits, misrepresenting that she was a
“competent and ethical lawyer[],” and “testif[ying] against” his interests.
In regard to each of his counterclaims, Lancaster further alleged that St.
Yves’s misrepresentations and breaches proximately caused him to “suffer[]
damages,” and he sought fee forfeiture and actual and exemplary damages in excess
of $1,000,000.00.
In response to Lancaster’s counterclaims, St. Yves answered, generally
denying the allegations and asserting various affirmative defenses, including that
Lancaster’s counterclaims were barred by res judicata. She then moved for summary
7
judgment, arguing that she was entitled to judgment as a matter of law on all of
Lancaster’s counterclaims because the evidence conclusively established her
affirmative defense of res judicata. Specifically, St. Yves asserted that the evidence
showed that there was a prior final judgment on the merits, i.e., the trial court’s
December 15, 2014 order on intervention, which had disposed of her claim for
attorney’s fees, she and Lancaster were the parties to the intervention, and his
counterclaims should have been raised in the intervention proceeding and before the
trial court entered its order on intervention.
In response to St. Yves’s summary-judgment motion, Lancaster argued that
she could not meet her burden of establishing the affirmative defense of res judicata
because this Court, in its opinion in his previous appeal of the trial court’s
bill-of-review order,14 reversed and remanded the “entirety” of his case, including
the trial court’s December 15, 2014 order on intervention, in which it had awarded
St. Yves her attorney’s fees; the trial court’s order on intervention was thus “void”;
and his counterclaims were “timely filed as a matter of right.”
The trial court granted St. Yves summary judgment and dismissed all of
Lancaster’s counterclaims against her.
14
See id. at *1–5.
8
Summary Judgment
In his third and fourth issues, Lancaster argues that the trial court erred in
granting St. Yves summary judgment based on her affirmative defense of res
judicata because the trial court’s December 15, 2014 order on intervention was
“void” and she could not “show a valid final judgment.”
We review a trial court’s summary judgment de novo. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v.
Knott, 128 S.W.3d 211, 215 (Tex. 2003). In conducting our review, we take as true
all evidence favorable to the non-movant, and we indulge every reasonable inference
and resolve any doubts in the non-movant’s favor. Valence Operating, 164 S.W.3d
at 661; Knott, 128 S.W.3d at 215.
To prevail on a matter-of-law summary-judgment motion, the movant must
establish that no genuine issue of material fact exists and the trial court should grant
judgment as a matter of law. See TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v.
Harrison Cty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). When the
movant moves for summary judgment on an affirmative defense, she must plead and
conclusively establish each essential element of the affirmative defense, thereby
defeating the non-movant’s cause of action. See Cathey v. Booth, 900 S.W.2d 339,
341 (Tex. 1995); Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995);
Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App.—Houston [1st
9
Dist.] 2005, pet. denied). Once the movant meets her burden, the burden shifts to
the non-movant to raise a genuine issue of material fact precluding summary
judgment. See Siegler, 899 S.W.2d at 197; Transcon. Ins. Co. v. Briggs Equip. Trust,
321 S.W.3d 685, 691 (Tex. App.—Houston [14th Dist.] 2010, no pet.). The
evidence raises a genuine issue of fact if reasonable and fair-minded fact finders
could differ in their conclusions in light of all of the summary-judgment evidence.
Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007).
Res judicata is an affirmative defense that bars relitigation of claims that have
been finally adjudicated or that arise out of the same subject matter and that could
have been litigated in the prior action. Amstadt v. U.S. Brass Corp., 919 S.W.2d
644, 652 (Tex. 1996); see TEX. R. CIV. P. 94 (identifying res judicata as affirmative
defense). A party relying on res judicata must prove (1) a prior final determination
on the merits by a court of competent jurisdiction, (2) identity of parties or those in
privity with them, and (3) a second action based on the same claims as were or could
have been raised in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860,
862 (Tex. 2010).
We apply a “transactional approach” to res judicata, which requires that
“claims arising out of the same subject matter . . . be litigated in a single lawsuit.”
Hallco Tex., Inc. v. McMullen Cty., 221 S.W.3d 50, 58 (Tex. 2006); see also Gracia
v. RC Cola–7–Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984) (“The judgment
10
in the first suit precludes a second action by the parties and their privies on matters
actually litigated and on causes of action or defenses arising out of the same subject
matter that might have been litigated in the first suit.”). The doctrine of res judicata
is “substantially similar” to the compulsory counterclaim rule, which requires a
defendant to bring as a counterclaim “any claim that ‘arises out of the transaction or
occurrence that is the subject matter of the opposing party’s claim.’” Barr v.
Resolution Trust Corp. ex rel. Sunbelt Fed. Sav., 837 S.W.2d 627, 630 (Tex. 1992)
(quoting TEX. R. CIV. P. 97(a)). The doctrine of res judicata “serves vital public
interests” by promoting the finality of judgments and prevents needless, repetitive
litigation. Hallco Tex., Inc., 221 S.W.3d at 58 (internal quotations omitted).
Here, Lancaster does not challenge the trial court’s summary judgment in
regard to the second and third elements of St. Yves’s res judicata defense, i.e., that
the identity of the parties are the same and the second action is based on the same
claims or claims that could have been raised in the first action. See Travelers Ins.
Co., 315 S.W.3d at 862. Instead, Lancaster only challenges the first element of St.
Yves’s res judicata defense, i.e., the existence of a prior final determination on the
merits by a court of competent jurisdiction. See id.
Lancaster argues that there is no prior final determination on the merits by a
court of competent jurisdiction because the trial court’s order on intervention is
11
“void.”15 He asserts that the trial court’s July 23, 2014 bill-of-review order was a
final judgment, the trial court’s plenary power expired thirty days after the
bill-of-review order was signed, i.e., on August 22, 2014, and the trial court’s
December 15, 2014 order on intervention, awarding St. Yves a judgment against him
on her claim for attorney’s fees, was signed after the trial court’s plenary power had
expired.
Generally, a judgment is final if it disposes of all pending parties and claims
in the record. Lehmann v. Har–Con Corp., 39 S.W.3d 191, 204 (Tex. 2001). In
cases in which there is not a conventional trial on the merits, a judgment is final for
purposes of appeal only if it either actually disposes of all claims and parties before
the court, regardless of its language, or it states with unmistakable clarity that it is a
final judgment. Id. at 192–93. If other claims remain in the case, “an order
determining the last claim is final.” Id. at 200.
After a trial court signs a final judgment, absent a timely post-judgment
motion extending the trial court’s plenary power, it retains jurisdiction over a case
for thirty days. TEX. R. CIV. P. 329b(d); Lane Bank Equip. Co. v. Smith S. Equip.,
15
Lancaster previously asserted in a petition for a writ of mandamus filed in this Court
that the trial court’s December 15, 2014 order on intervention was void because of
procedural deficiencies. This Court denied his petition. See In re Lancaster, Nos.
01-14-000985-CV, 01-14-00986-CV, 2015 WL 555057, at *1 (Tex. App.—
Houston [1st Dist.] Feb. 10, 2015, orig. proceeding) (mem. op.); see also St. Yves,
2017 WL 5494975, at *4 n.12.
12
Inc., 10 S.W.3d 308, 310 (Tex. 2000); Penny v. Shell Oil Prods. Co., 363 S.W.3d
694, 697 (Tex. App.—Houston [1st Dist.] 2011, no pet.). While the trial court retains
its plenary power over a case, it has the power to correct, modify, vacate, or reform
its judgment. TEX. R. CIV. P. 329b(d), (e). Any modified, corrected, or reformed
judgment signed after the trial court’s plenary power has expired is void. TEX. R.
CIV. P. 329b(f); Latty v. Owens, 907 S.W.2d 484, 486 (Tex. 1995); Penny, 363
S.W.3d at 697.
St. Yves’s summary-judgment evidence shows that she, on April 3, 2014,
while Lancaster’s petition for a bill of review was pending in the trial court, moved
to withdraw as Lancaster’s attorney and filed a petition in intervention, asserting a
claim against Lancaster for unpaid attorney’s fees.16 On July 23, 2014, the trial court
signed the bill-of-review order, denying Lancaster’s petition, but not addressing St.
Yves’s intervening claim for attorney’s fees. Because there remained a claim
16
We note that “[a] plea in intervention in [a] principal suit is an appropriate vehicle
by which a discharged attorney may recover fees for services rendered.”
Maldonado v. Rosario, No. 01-12-01071-CV, 2013 WL 1316385, at *2 (Tex.
App.—Houston [1st Dist.] Apr. 2, 2013, no pet.) (mem. op.) (internal quotation
omitted)); see also St. Yves, 2017 WL 5494975, at *5 n.13. Generally, an
intervention is timely if brought any time before the trial court renders a judgment.
Jefferson Sav. & Loan Ass’n v. Adams, 802 S.W.2d 811, 813 (Tex. App.—San
Antonio 1990, writ denied); see also St. Yves, 2017 WL 5494975, at *5 n.13. On
the filing of the petition in intervention, unless stricken by the trial court, the
intervenor becomes a party to the suit for all purposes. See In re E.C., 431 S.W.3d
812, 815 (Tex. App.—Houston [14th Dist.] 2014, orig. proceeding [mand. denied]);
In re D.D.M., 116 S.W.3d 224, 231 (Tex. App.—Tyler 2003, no pet.); see also St.
Yves, 2017 WL 5494975, at *5 n.13.
13
outstanding, the trial court’s July 23, 2014 bill-of-review order was interlocutory and
not a final judgment. See Guajardo v. Conwell, 46 S.W.3d 862, 863–64 (Tex. 2001)
(summary-judgment order interlocutory because intervenor’s claim for attorney’s
fees remained pending); Lancaster v. St. Yves, No. 01-16-00911-CV, 2017 WL
5494975, at *5 (Tex. App.—Houston [1st Dist.] Nov. 16, 2017, pet. denied) (mem.
op.); see also Flores v. Sandoval, No. 01-02-01197-CV, 2004 WL 966328, at *2
(Tex. App.—Houston [1st Dist.] May 6, 2004, no pet.) (mem. op.) (agreed judgment
interlocutory because did not include intervening party’s claim for attorney’s fees).
It is well-established that when a judgment rendered in a bill of review proceeding
does not dispose of the entire controversy, it is not a final judgment from which an
appeal will lie. St. Yves, 2017 WL 5494975, at *5; Kessler v. Kessler, 693 S.W.2d
522, 525 (Tex. App.—Corpus Christi 1985, writ ref’d n.r.e.). Because the trial
court’s July 23, 2014 bill-of-review order was interlocutory, the trial court’s plenary
power did not expire on August 22, 2014. See Farmer v. Ben E. Keith Co., 907
S.W.2d 495, 496 (Tex. 1995); St. Yves, 2017 WL 5494975, at *5; see also TEX. R.
CIV. P. 329b(d); Harris Cty. Appraisal Dist. v. Wittig, 881 S.W.2d 193, 194 (Tex.
App.—Houston [1st Dist.] 1994, orig. proceeding) (signing of final order begins
countdown of loss of trial court’s plenary power).
Further, the evidence shows that on December 15, 2014, the trial court signed
its order on intervention, which disposed of St. Yves’s claim for attorney’s fees
14
against Lancaster. And at that point, no outstanding claims or parties remained.
Thus, the trial court’s order became final. See Lehmann, 39 S.W.3d at 200 (when
other claims remain in case, “an order determining the last claim is final”); see also
St. Yves, 2017 WL 5494975, at *6. And because the trial court signed its order on
intervention within its plenary jurisdiction, that order is not void. See St. Yves, 2017
WL 5494975, at *6; see also TEX. R. CIV. P. 329b(d).
Moreover, we note that in connection with Lancaster’s previous appeal of the
trial court’s bill-of-review order, this Court, on December 16, 2014, sent Lancaster
notice of our intent to dismiss his appeal for a lack of jurisdiction because the record
showed that St. Yves’s claim for attorney’s fees in her petition in intervention
remained pending. In response, Lancaster informed the Court that the trial court’s
bill-of-review order had in fact become final because the trial court, on December
15, 2014, had signed the order on intervention, disposing of St. Yves’s claim for
attorney’s fees. Lancaster then asserted that this Court had jurisdiction over his
appeal from the bill-of-review order because no outstanding claims or parties
remained. See St. Yves, 2017 WL 5494975, at *6; see also Lancaster v. Lancaster,
No. 01-14-00845-CV, 2015 WL 9480098, at *1–5 (Tex. App.—Houston [1st Dist.]
Dec. 29, 2015, no pet.) (mem. op.) (addressing merits of Lancaster’s appeal of
bill-of-review order because we had jurisdiction to do so).
15
Lancaster further argues that there is no prior final determination on the merits
by a court of competent jurisdiction because this Court, in his previous appeal,
reversed the trial court’s bill-of-review order,17 resulting in a reversal of the trial
court’s December 15, 2014 order on intervention.
Generally, when an appellate court reverses and remands a case for further
proceedings, and the mandate is not limited by special instructions, the effect is to
remand the case to the lower court on all issues of fact, and the case is reopened in
its entirety. Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986); St. Yves, 2017
WL 5494975, at *6; Simulis, L.L.C. v. Gen. Elec. Capital Corp., 392 S.W.3d 729,
734 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). However, if 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.
See St. Yves, 2017 WL 5494975, at *6; Denton Cty. v. Tarrant Cty., 139 S.W.3d 22,
23 (Tex. App.—Fort Worth 2004, pet. denied). “Thus, 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. When interpreting our mandate, the trial
court should “look not only to the mandate itself[,] but also to the opinion of the
[appellate] court.” Simulis, L.L.C., 392 S.W.3d at 734; see also St. Yves, 2017 WL
5494975, at *6; Freightliner Corp. v. Motor Vehicle Bd. of Tex. Dep’t of Transp.,
17
See Lancaster, 2015 WL 9480098, at *5.
16
255 S.W.3d 356, 363 (Tex. App.—Austin 2008, pet. denied) (“The opinion of the
appellate court is instructive in interpreting any limitations placed on the scope of
the remand.”).
Here, in Lancaster’s previous appeal of the trial court’s July 23, 2014
bill-of-review order, this Court “reverse[d] the trial court’s order denying
[Lancaster’s] petition for a bill of review,” and we “remand[ed] the case to the trial
court for further proceedings consistent with [our] opinion.” See Lancaster, 2015
WL 9480098, at *5. In doing so, this Court held that the trial court erred in denying
Lancaster’s petition for a bill of review because the record did not affirmatively show
strict compliance with the Texas Rules of Civil Procedure in the serving of him with
Barbara’s application for the underlying 2009 protective order. See id. at *3–4. And
we noted that Lancaster had also asserted that after the trial court had issued its 2009
protective order, he was globally “subjected to additional due process violations” by
various courts and in various orders, including the 2012 protective order and the
order on intervention; however, he did not specifically challenge the merits of the
trial court’s December 15, 2014 order on intervention, which had disposed of St.
Yves’s intervening claim for unpaid attorney’s fees. (Internal quotations omitted.)
See id. at *5. Thus, this Court expressly limited our review in Lancaster’s appeal to
the order from which Lancaster had appealed, i.e., the trial court’s bill-of-review
order. See id. Notably, this Court did not review, and thus could not have reversed
17
and remanded to the trial court, the order on intervention in which the trial court had
awarded St. Yves a judgment on her claim for attorney’s fees. See id.; see also Pat
Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998) (appellate court may not
reverse case on unassigned error); St. Yves, 2017 WL 5494975, at *6.
St. Yves conclusively established that the trial court’s December 15, 2014
order on intervention, awarding her $27,258.56 in unpaid attorney’s fees, was a prior
final judgment on the merits by a court of competent jurisdiction. And Lancaster
does not challenge on appeal that the identity of the parties in the prior and instant
suit are the same or that his counterclaims should have been raised in St. Yves’s
intervention proceeding. Thus, St. Yves has conclusively established the elements
of her res judicata defense. See Joachim, 315 S.W.3d at 862; St. Yves, 2017 WL
5494975, at *7. Accordingly, we hold that the trial court did not err in granting St.
Yves summary judgment on Lancaster’s counterclaims.
We overrule Lancaster’s third and fourth issues.18
18
In response to Lancaster’s fourth issue, St. Yves also asserts that the trial court’s
August 18, 2016 judgment in David Lancaster v. St. Yves, Cause No.
2016-07653-A, in the 61st District Court of Harris County, Texas is another “prior
final [judgment] on the merits by a court of competent jurisdiction.” See St. Yves,
2017 WL 5494975, at *1–7 (affirming trial court’s rendition of summary judgment
in favor of St. Yves in Lancaster’s suit against her for fraud, negligence, gross
negligence, breach of contract, breach of fiduciary duty, and violations of DTPA
filed in 61st District Court of Harris County, Texas). Because we have held that St.
Yves has conclusively established that the trial court’s December 15, 2014 order on
intervention was a prior final judgment on the merits by a court of competent
jurisdiction, we need not address appellant’s assertion that the trial court erred in
granting St. Yves summary judgment “based upon [r]es [j]udicata of the 61st
18
Void Protective Order and Criminal Convictions
In his first issue, Lancaster argues that the trial court erred in not vacating the
“void” 2009 protective order because it was “illegally entered” and he was “entitled
to have . . . [it] vacated as a matter of right.” In his second issue, Lancaster argues
that the trial court erred in not vacating certain “void” criminal convictions because
the 2009 protective order was “void,” “[t]he void convictions are a violation of [his]
rights of due process,” and the trial court had “jurisdiction o[ver] th[e] collateral
attack of the void convictions” and a “ministerial duty to vacate the void convictions
as a matter of law.”
An appellant’s brief “must contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.” TEX.
R. APP. P. 38.1(i). “This requirement is not satisfied by conclusory statements.”
Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 75 (Tex. App.—San
Antonio 2011, no pet.); Yoonessi v. D’Arcy, No. 05-07-00689-CV, 2008 WL
4981631, at *1 (Tex. App.—Dallas Nov. 25, 2008, pet. denied) (mem. op.) (pro se
appellant bears burden of discussing his assertions of error). A failure to provide
substantive analysis of an issue or cite appropriate authority waives a complaint on
appeal. Vogt, 373 S.W.3d at 75; Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—
Judicial District Court[’s] . . . [s]ummary [j]udgment” order. See TEX. R. APP. P.
47.1.
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Dallas 2006, no pet.); Cervantes-Peterson v. Tex. Dep’t of Family & Protective
Servs., 221 S.W.3d 244, 255 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Here, Lancaster does not provide the Court with any appropriate analysis,
discussion, or support for his complaints on appeal that the trial court erred in not
vacating the “void” 2009 protective order and certain “void” criminal convictions.
See TEX. R. APP. P. 38.1(i); Richardson v. Marsack, No. 05-18-00087-CV, 2018 WL
4474762, at *1 (Tex. App.—Dallas Sept. 19, 2018, no pet.) (mem. op.) (“Our
appellate rules have specific requirements for briefing. These rules require
appellants to state concisely their complaints, to provide succinct, clear, and accurate
arguments for why their complaints have merit in law and fact, to cite legal authority
that is applicable to their complaints, and to cite appropriate references in the
record.” (internal citation omitted)); Huey, 200 S.W.3d at 854 (“We have no duty to
brief appellant’s issue for [him]. Failure to cite to applicable authority or provide
substantive analysis waives an issue on appeal.”); see also Mansfield State Bank v.
Cohn, 573 S.W.2d 181, 184–85 (Tex. 1978) (pro se litigants held to same standards
as licensed attorneys and required to comply with applicable laws and rules of
procedure); Hopes-Fontenot v. Farmers New World Life Ins. Co., No.
01-12-00286-CV, 2013 WL 4399218, at *1 (Tex. App.—Houston [1st Dist.] Aug.
15, 2013, no pet.) (mem. op.) (pro se litigant must properly present his case on
appeal; we “may not make allowances or apply different standards for litigants
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appearing without . . . counsel”). And a party who does not adequately brief a
complaint on appeal waives his issue. Washington. v. Bank of N.Y., 362 S.W.3d 853,
854–55 (Tex. App.—Dallas 2012, no pet.); see also Fredonia State Bank v. Gen.
Am. Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994); Strange v. Cont’l Cas. Co.,
126 S.W.3d 676, 677–78 (Tex. App.—Dallas 2004, pet. denied) (we cannot remedy
deficiencies in appellant’s brief and argue his case for him).
Accordingly, we hold that Lancaster has waived his complaints that the trial
court erred in not vacating a “void” protective order and certain “void” criminal
convictions.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Chief Justice Radack and Justices Jennings and Bland.
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