Jose Diaz De Leon v. Tesco Corporation

• Court: Court of Appeals of Texas
• Decided: November 16, 2006
• Docket: 14-04-00513-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed November 16, 2006

Affirmed and Memorandum Opinion filed November 16, 2006.

In The

Fourteenth Court of Appeals

_______________

NO. 14-04-00513-CV

JOSE DIAZ de LEON, Appellant

V.

TESCO CORPORATION, Appellee

On Appeal from 215th District Court

Harris County, Texas

Trial Court Cause No. 03‑33519B

M E M O R A N D U M   O P I N I O N

Jose Diaz de Leon (Ade Leon@) appeals a summary judgment granted in favor of Tesco Corporation (ATesco@) on the grounds that: (1) declaratory relief was not available to Tesco; (2) the trial erred in concluding that Texas law applied; and (3) Tesco was not entitled to recover attorney=s fees.  We affirm.

Background

Tesco, a Canadian corporation with both United States and Mexican subsidiaries, hired de Leon in 1996 as its Financial and Contracts Administrator, Latin America, for its United States= subsidiary.  In 2001, Tesco eliminated de Leon=s position.  In return for a severance package from Tesco, de Leon executed a confidential release (the Arelease@),  releasing Tesco and its affiliates from all liability stemming from his employment relationship.  However, in 2002, de Leon filed suit against Tesco in a Mexican court (Athe Mexican lawsuit@) asserting claims for profit sharing, overtime pay, unjustified termination, back salary, and various other benefits he claimed under Mexican law.  Tesco thereafter sued de Leon in this lawsuit for breach of the release and damages, and a declaration of the parties= respective rights and obligations under the release.  Tesco filed a motion for partial summary judgment, seeking: (1) a declaratory judgment that the release bars subsequent claims related to de Leon=s employment; and (2) a finding that by bringing and prosecuting the Mexican lawsuit, de Leon had materially breached the release.  The trial court granted the declaratory judgment sought by Tesco, but made no finding as to whether de Leon had breached the release.  Tesco then filed a motion for attorney=s fees, severance, and final judgment on its claim for declaratory relief.  After the trial court granted those motions, Tesco non-suited its remaining claim for breach of contract.

                                                            Standard of Review

A traditional summary judgment may be granted if the motion and summary judgment evidence show that, except as to the amount of damages, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Tex. R. Civ. P. 166a(c).  In reviewing a summary judgment, we take as true all evidence favorable to the nonmovant and indulge every reasonable inference, and resolve any doubts, in the nonmovant=s favor.  Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

                                                         Declaratory Judgment

De Leon=s first issue challenges the summary judgment on the grounds that the declaratory relief Tesco sought was: (1)  encompassed within its breach of contract claim in this action; and (2) already pending in the Mexican lawsuit.

A declaratory judgment is generally not available to settle issues already raised by an opposing party in a case, unless the request for declaratory relief seeks additional relief, such as defining parties= ongoing obligations under a contract.  BHP Petroleum Co. v. Millard, 800 S.W.2d 838, 841-42 (Tex. 1990).  In this case, Tesco=s claim for declaratory relief was not foreclosed by its claim for breach of contract claim because: (1) the two claims were being asserted by the same party, which is permissible;^[1] (2) to the extent the two claims sought overlapping relief, the breach of contract claim was non-suited; and (3) the request for declaratory relief sought (and obtained^[2]) a declaration of the parties= rights to pursue claims arising from de Leon=s employment prospectively, i.e., beyond the alleged breach of the release.

As to the effect of the Mexican lawsuit, de Leon has cited, and we have found, no cases in which a lawsuit pending in a foreign jurisdiction operated to curtail a claim for declaratory relief in Texas.  In addition, in the Mexican lawsuit, de Leon seeks relief under Mexican law to which he is not entitled under Texas law.  Therefore, the decision in the Mexican lawsuit will not address the same issue as the declaratory judgment in this case, namely, whether the release bars subsequent claims relating to de Leon=s employment with Tesco under Texas law.  Because de Leon=s first issue thus fails to demonstrate that the trial court erred in granting the declaratory judgment, it is overruled.

Choice-of-Law

De Leon=s second issue contends that the trial court erred in determining that Texas law, rather than Mexican law, controlled the construction of the release.  Because much of his employment with Tesco either occurred in Mexico or benefitted Tesco=s Mexican subsidiary, de Leon argues that the release should be construed under Mexican law, under which the release would not be enforceable.

However, the trial court=s judgment did not determine what law would apply in enforcing the release, but only stated the legal effect of the release to the extent Texas law does apply: Aunder applicable Texas law, the parties= contract bars subsequent claims related to [de Leon=s] employment, including all claims asserted in the Mexican [lawsuit]@ (emphasis added).  Because de Leon=s second issue does not demonstrate that the trial court made a choice of law determination, it is overruled.

Attorney=s Fees

De Leon=s third issue challenges the trial court=s award of attorney=s fees because: (1) Tesco was not entitled to a declaratory judgment (addressed in the first section, above);  (2) even if a declaratory judgment was proper,^[3]  the evidence was insufficient to support the award because it did not address all of the required factors enumerated in Arthur Andersen;^[4] and (3) the evidence did not contain detailed billing records containing time expended and billing rates for all of the work performed.

An award of attorney=s fees under the Declaratory Judgment Act is reviewed for abuse of discretion.  Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).  A trial court does not abuse its discretion if some evidence reasonably supports its decision.  Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

Contrary to de Leon=s brief, Arthur Andersen does not require an award of attorney=s fees to be supported by evidence of every factor enumerated, but states only that the factors relevant to determining the reasonableness of a fee include those enumerated.^[5]  Tesco sought, and was awarded, attorney=s fees of $25,000 for prosecution of its claim for declaratory relief, $15,000 for an appeal to the court of appeals, $7,500 if a petition for review is filed with the Texas Supreme Court, and an additional $5,000 if the petition for review is granted.  At the hearing on fees, de Leon stipulated that Tesco=s lead attorney, Geoffrey Bracken, was qualified to provide expert testimony concerning the fees.  Bracken testified about the work performed, the hourly rates of the attorneys and support staff principally involved in the work, the novelty of the issues, the rapid pace at which the case developed, and the result obtained.  He opined that the fees were reasonable, and the order awarding attorney=s fees recites that the trial court also considered the pleadings on file, which were a further indication of the amount and character of work involved.  Because this evidence reasonably supports the award of attorney=s fees, de Leon=s third issue is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed November 16, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman.

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^[1]           See Tex. R. Civ. P. 47, 48; Regency Advantage, Ltd. v. Bingo Idea - Watauga, Inc., 936 S.W.2d 275, 278 (Tex. 1996).

^[2]           The declaratory judgment states that Aunder applicable Texas law, the parties= contract bars subsequent claims related to [de Leon=s] employment, including all claims asserted in the Mexican [lawsuit]. . . .@

^[3]           Attorney=s fees are recoverable under the Declaratory Judgment Act.  See Tex. Civ. Prac. & Rem. Code Ann. ' 37.009 (Vernon 2001).

^[4]           Factors that a factfinder should consider when determining the reasonableness of a fee include:  (1) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly; (2) the likelihood that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the locality for similar legal services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the professional relationship with the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered.  Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

^[5]           Id.; see Acad. Corp. v. Interior Buildout & Turnkey Constr., Inc., 21 S.W.3d 732, 742 (Tex. App.CHouston [14th Dist.] 2000, no pet.).