Anderson v. Snider

809 S.W.2d 505, 1990 Tex. App. LEXIS 3225, 1990 WL 299402
CourtCourt of Appeals of Texas
DecidedAugust 30, 1990
DocketNo. 09-89-096 CV
StatusPublished

This text of 809 S.W.2d 505 (Anderson v. Snider) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anderson v. Snider, 809 S.W.2d 505, 1990 Tex. App. LEXIS 3225, 1990 WL 299402 (Tex. Ct. App. 1990).

Opinion

OPINION

PER CURIAM.

Appeal from a summary judgment which was adverse to Jimmie F. Anderson. The cause of action in the district court set forth that the Appellee, an attorney-at-law, had been guilty of malpractice as well as legal negligence. A further cause of action based on the breach of a contract and a case founded on a violation of the Texas Deceptive Trade Practices-Consumer Protection Act were pleaded by live pleadings. Appellee was a practicing attorney in Jefferson County. Appellee had undertaken to represent and did represent the Appellant in certain matters from some time in August of 1984 through about the middle part of February 1986. The legal representation was in connection with a prior divorce proceeding. Appellant’s former husband was George Anderson.

The Appellant specifically pleaded that the defendant at the material times was an attorney-at-law in the practice of his profession as an attorney-at-law. The record [506]*506reflects that on or about August 21, 1985, Jimmie F. Anderson, the plaintiff below, retained and employed the defendant as an attorney-at-law to prosecute and to conduct in the 279th District Court of Jefferson County a defense against a certain motion to modify that was filed in that said court by her former husband, George G. Anderson. The motion to modify was seeking a decrease in child support. The child involved who was the subject of the said motion to modify was one Jennifer Lea Anderson, a female whose date of birth was set out as being May 17, 1977. In the motion to modify there were certain allegations concerning the possession and access of the child concerning certain weekends and summertime matters as well as Easter, Father’s Day, Thanksgiving and Christmas. There was entered an order on the motion to modify in the suit affecting the parent-child relationship, certain visitation matters being modified. It was further ordered that George G. Anderson pay to Jimmie F. Anderson child support at the rate of $500 per month in two installments per month of $250 each on the first and fifteenth of each month. That order was signed January 16, 1986.

Thereafter, on February 12, 1986, there was signed by the judge presiding an “Amended Order on Motion to Modify And Second Amended Decree of Divorce.” This amended order on the motion to modify specifically dealt with visitation matters such as weekends, holidays, and the summertime matters. Each period of possession was specifically dealt with in the February 12th amended order and the child support was increased to $700 per month in two installments per month of $350 each. The amended order further ordered that the money that was in the duPont Thrift Plan was by that very order made the sole and separate property of George G. Anderson. But in exchange for Jimmie’s interest in the duPont Thrift Plan, Jimmie was awarded a money judgment in the amount of $7,800. This amended order was approved both as to form and substance by James A. Morris, attorney for George G. Anderson, the movant, and by George Anderson. The amended order was also approved by Walter D. Snider and Jimmie F. Anderson, as respondent. The February 1986 order certainly appears to be an agreed order. After the agreed order was entered, the Appellee withdrew from his legal representation of the Appellant with permission of all parties and the court.

It was against this background that the suit which is the basis of this appeal was filed. The Appellee filed a motion for summary judgment and then an amended motion for summary judgment which the court granted on January 3, 1989, acting upon the amended motion for summary judgment. In the affidavit attached to the Appellee’s motion for summary judgment (being identified as Exhibit 1) the Appellee in a positive, direct and unequivocal manner swore that George Anderson had filed a motion to modify requesting the court to lower child support from $700 per month to $500 per month. This motion was filed in August of 1985. A hearing was scheduled on George’s motion to modify child support for November 8. After the hearing of November 8, 1985, there was a reduction in child support from $700 per month to $500 per month.

By order signed and entered on January 16, 1986, this matter was accomplished, however, the Appellee swears that he did not approve that judgment either as to form or substance. Later on there was a motion for new trial filed. There was a hearing on February 12, 1986, and there was an agreed order entered which reinstated the child support back to the original amount of $700 per month, effective as of November 1985. After the agreed order was actually entered restoring the child support and making other provisions, the Appellee notes that he withdrew as attorney of record for Mrs. Jimmie Anderson. Certain docket sheets are attached as exhibits to the motion for summary judgment showing the activity after November 8, 1985, showing certain hearings and orders entered as of the month of January 1986. The docket reflects that in the early part of February 1986, there was an order entered setting the hearing on a motion for new [507]*507trial. It is very difficult to read with certainty the docket entry for February 13, 1986, but it reasonably appears that the modifications were granted as per the order on file. Shortly thereafter there was an order allowing Walter Snider to withdraw which was signed as per order on file. That docket notation is dated February 18, 1986.

As stated above, there was an amended motion for summary judgment filed and urged by Appellee. A second affidavit was attached to the amended motion for summary judgment. In the second affidavit the Appellee swore, and we think the documentary evidence in the court’s records below bear out the fact, that an agreed order was entered which reinstated the child support to the amount of $700 per month. Certain attached correct copies of the Jefferson County Child Support ledger record shows that George Anderson has paid the child support in the amount of $700 per month. The affidavit states that the attorney acted properly and in the best interest of Mrs. Jimmie F. Anderson and that the attorney had not violated the Texas Deceptive Trade Practices Act and that he had not breached his contract in any way with Mrs. Anderson and had not been guilty of any negligence or malpractice and further, that Mrs. Anderson had suffered no damages or legal injury.

A certified court reporter took the testimony of Mrs. Anderson at the February 1986 proceeding. The attorney announced to the court in open court that the parties had reached an agreement and the parties were examined. We find in the record:

Q Mrs. Anderson, is this your agreement?
A Yes.
Q You have read it — as a matter of fact, you typed it.
A I typed it.
Q And you understand it?
A Yes, sir.
Q And you’re asking the Court to enter it and sign it as your and Mr. Anderson’s agreement?
A Yes.

Mrs. Anderson was further questioned and examined by the Appellee:

Q Mrs. Anderson, we have a Motion for New Trial pending before this Court and an Amended Motion for New Trial. Is it your position that both of these Motions for New Trial should be withdrawn?
A Yes, please.
Q And, also, following the conclusion of this hearing, and after the entry of the order, you and Mr.

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Bluebook (online)
809 S.W.2d 505, 1990 Tex. App. LEXIS 3225, 1990 WL 299402, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anderson-v-snider-texapp-1990.