Rebecca Wilson v. George Fleming and Fleming & Associates, L.L.P.

566 S.W.3d 410
CourtCourt of Appeals of Texas
DecidedDecember 21, 2018
Docket14-17-00223-CV
StatusPublished
Cited by11 cases

This text of 566 S.W.3d 410 (Rebecca Wilson v. George Fleming and Fleming & Associates, L.L.P.) 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
Rebecca Wilson v. George Fleming and Fleming & Associates, L.L.P., 566 S.W.3d 410 (Tex. Ct. App. 2018).

Opinion

Reversed and Remanded and Opinion filed December 21, 2018.

In The

Fourteenth Court of Appeals

NO. 14-17-00223-CV

REBECCA WILSON, ET AL., Appellants1 V. GEORGE FLEMING AND FLEMING & ASSOCIATES, L.L.P., Appellees

On Appeal from the 189th District Court Harris County, Texas Trial Court Cause No. 2010-25097

OPINION Appellants, approximately 4,000 former clients of George Fleming and Fleming & Associates (collectively, “the Fleming Firm”), appeal a summary judgment granted in favor of the Fleming Firm. Appellants claimed that the law firm breached contractual and fiduciary duties. Based on a jury verdict favorable to

1 See attached Appendix A for a list of all appellants in this appeal. the Fleming Firm in a related case,2 the Fleming Firm moved for traditional summary judgment in this case, asserting affirmative defenses of collateral estoppel, waiver, and release. The trial court granted the Fleming Firm’s summary judgment motion without stating reasons.

Concluding that the Fleming Firm failed to establish conclusively its right to judgment as a matter of law on each affirmative defense, we reverse and remand for further proceedings.

Background

The present appeal arises from the same facts as those detailed in Harpst v. Fleming, which we also issue today. See Harpst v. Fleming, No. 14-17-00209-CV, ---S.W.3d--- (Tex. App.—Houston [14th Dist.] Dec. 21, 2018, no pet. h.). We summarize the pertinent background here.3

The Fleming Firm represented appellants (and others) in a mass-tort settlement against a drug manufacturer, Wyeth. Together with approximately 4,000 additional claimants, appellants agreed to settle their claims against Wyeth for $339 million. The Fleming Firm prepared, and each appellant signed, a settlement “packet,” which included, among other things, information regarding the global settlement and each client’s settlement amount. Each appellant signed a release and accepted their respective settlement payment.

2 Harpst v. Fleming, No. 14-17-00209-CV, ---S.W.3d--- (Tex. App.—Houston [14th Dist.] Dec. 21, 2018, no pet. h.). 3 The interested reader may also refer to this court’s many opinions addressing earlier iterations of this dispute. See Fleming v. Kinney, 395 S.W.3d 917 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Fleming v. Curry, 412 S.W.3d 723 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Fleming & Assocs., L.L.P. v. Barton, 425 S.W.3d 560 (Tex. App.—Houston [14th Dist.] 2014, pet. denied); Fleming v. Kirklin Law Firm, P.C., No. 14-14-00202-CV, 2015 WL 7258700 (Tex. App.—Houston [14th Dist.] Nov. 17, 2015, no pet.) (mem. op.).

2 Appellants later sued the Fleming Firm, alleging that the firm wrongfully deducted certain expenses from appellants’ settlements and misrepresented or concealed a number of material facts during the settlement process. Specifically, appellants claim that the Fleming Firm deducted from their respective settlement amounts the cost of a large-scale echocardiogram program, which the firm utilized to qualify a small percentage of claimants (including appellants) to bring individual suits against Wyeth.4 Although the Fleming Firm tested more than 40,000 potential claimants, most individuals’ echocardiograms did not reveal heart damage (and the parties refer to those results as “negative” or “rejected” echocardiograms). Fen-phen users with negative echocardiograms could not assert individual claims against Wyeth. The Fleming Firm deducted the cost of the entire program from the settlement payments due to their clients who did assert individual claims, including appellants. Thus, each of the Fleming Firm’s clients bore a proportionate share of the expense of the entire echocardiogram program, including the negative echocardiograms, in addition to the cost of their own echocardiogram tests. According to appellants, this deduction was impermissible under the terms of their fee agreements and, further, the firm did not fairly and fully disclose to them the nature and extent of the deduction.

Appellants sued the Fleming Firm and asserted claims for (a) breach of fiduciary duty/constructive fraud/suit for accounting, (b) breach of contract, (c) statutory theft, (d) conversion, (e) common-law and constructive fraud, and (f) unjust enrichment/money had and received. At the request of both sides, the trial court severed the claims of a small group of plaintiffs into a separate cause number. The six plaintiffs in the severed cause (the “Harpst plaintiffs”) proceeded to jury trial

4 See Harpst, No. 14-17-00209-CV, slip op. at 4-5.

3 on their claims, which resulted in a verdict and judgment favorable to the Fleming Firm.5 See Harpst, No. 14-17-00209-CV, slip op. at 5.

Following the judgment in Harpst, the Fleming Firm moved for traditional summary judgment against appellants (the approximately 4,000 non-severed plaintiffs), arguing that the Harpst judgment collaterally estopped appellants’ claims or, alternatively, that the settlement documents appellants signed and accepted, which included waiver and release language, foreclosed their claims. In support of the motion, the Fleming Firm attached uncertified copies of the jury verdict and final judgment from the Harpst case (to establish collateral estoppel) and Kathy Harpst’s settlement packet (to establish waiver and release). Appellants responded to the merits and also objected to all three exhibits on lack of authentication and hearsay grounds. The trial court overruled appellants’ objections, granted the Fleming Firm’s motion without specifying reasons, and dismissed all of appellants’ claims.

Issues on Appeal

Appellants raise four issues. In their first issue, appellants argue that the Fleming Firm submitted no competent summary judgment evidence, and that the trial court’s consideration of objectionable evidence was an abuse of discretion. In their second, third, and fourth issues, appellants contend that the Fleming Firm failed to prove conclusively its entitlement to judgment on the merits of each asserted affirmative defense: collateral estoppel, waiver, and release.

Standard of Review

A movant for traditional summary judgment must prove that no genuine issue of material fact exists and it is entitled to judgment as a matter of law. Tex. R. Civ.

5 As discussed in Harpst, the jury found that the Fleming Firm complied with its fiduciary duties to the Harpst plaintiffs and did not breach its fee agreements with those plaintiffs. See Harpst, No. 14-17-00209-CV, slip op. at 5.

4 P. 166a(c). As the Fleming Firm sought summary judgment on three affirmative defenses, it bore the burden to present evidence establishing conclusively all essential elements of each defense. See Chau v. Riddle, 254 S.W.3d 453, 455 (Tex. 2008) (per curiam).

If the movant establishes its entitlement to judgment as a matter of law, the burden shifts to the non-movant to respond with evidence raising a genuine issue of material fact. If the non-movant fails to show that a genuine issue of material fact exists, the moving party is entitled to judgment as a matter of law and the summary judgment should be granted. See Tex. R. Civ. P. 166a(c); Chau, 254 S.W.3d at 455.

We review the grant of summary judgment de novo. Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam). We review the evidence presented by the motion and response in the light most favorable to the non-movant, crediting evidence favorable to the non-movant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. See Painter v. Amerimex Drilling I, Ltd., --- S.W.3d ---, 2018 WL 2749862, at *3 (Tex. Apr. 13, 2018). We must affirm the judgment if any one of the Fleming Firm’s affirmative defenses is meritorious.

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