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

Opinion

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

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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

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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.

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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

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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

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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.” –

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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.

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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

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

....