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

CourtCourt of Appeals of Texas
DecidedNovember 4, 2021
Docket14-17-00223-CV
StatusPublished

This text of Rebecca Wilson v. George Fleming and Fleming & Associates, L.L.P. (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., (Tex. Ct. App. 2021).

Opinion

Reversed and Remanded and Memorandum Opinion filed November 4, 2021.

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

MEMORANDUM OPINION

This case returns to us on remand from the Supreme Court of Texas. Appellants—approximately 4,000 former clients of George Fleming and Fleming & Associates (collectively, “the Fleming Firm”)—sued the Fleming Firm, claiming that it breached contractual and fiduciary duties. Based on a jury verdict favorable to the Fleming Firm in a related case,2 the Fleming Firm moved for traditional

1 See attached Appendix A for a list of all appellants in this appeal. 2 Harpst v. Fleming, 566 S.W.3d 898 (Tex. App.—Houston [14th Dist.] 2018, no pet.). 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. Appellants appealed to this court.

We held that the Fleming Firm failed to establish conclusively its right to judgment as a matter of law on each affirmative defense, and thus we reversed and remanded the case for further proceedings. As to the firm’s collateral estoppel defense in particular, we stated that the reason the Fleming Firm failed to carry its summary judgment burden was because the firm’s evidence, consisting of uncertified copies of a judgment and verdict in the related Harpst case, was not properly authenticated. In so holding, we followed binding precedent from this court3 and persuasive authority from the First Court of Appeals.4

The Fleming Firm appealed to the Supreme Court of Texas. The Fleming Firm challenged our holding regarding the collateral estoppel defense, but not release or waiver. The supreme court granted review and concluded that the trial court did not abuse its discretion by finding the documents authentic and competent as summary judgment evidence, reversed our judgment, and remanded the case to this court for consideration of the issue we previously did not reach— whether the Fleming Firm was entitled to judgment as a matter of law on collateral estoppel grounds.

Having now considered the parties’ arguments regarding the Fleming Firm’s collateral estoppel defense, we hold that the firm failed to conclusively establish its

3 See Albert Lee Giddens, APLC v. Cuevas, No. 14-16-00772-CV, 2017 WL 4159263, at *4 (Tex. App.—Houston [14th Dist.] Sept. 19, 2017, no pet.) (mem. op.); Klein Indep. Sch. Dist. v. Noack, 830 S.W.2d 796, 798 (Tex. App.—Houston [14th Dist.] 1992, writ denied). 4 See Anders v. Mallard & Mallard, Inc., 817 S.W.2d 90, 94 (Tex. App.—Houston [1st Dist.] 1991, no writ).

2 defense. Accordingly, we reverse the trial court’s judgment and remand the case for further proceedings.

Background

A more extensive discussion of the facts underlying this appeal are set forth in prior opinions.5 We summarize only the relevant facts here.

Appellants all used the prescription diet drug fen-phen,6 allegedly experienced heart problems as a result, and sought to hold the drug maker, Wyeth, legally responsible. Due to the high number of potential claimants, a federal court certified a nationwide class action but also set forth certain procedures and requirements for individual suits. Any claimant preferring to opt out of the nationwide class action and pursue an individual claim had to establish his or her eligibility to sue by undergoing an echocardiogram resulting in a “FDA-positive” reading.

To facilitate this opt-out process, the Fleming Firm established a nationwide echocardiogram program—at an alleged cost of at least $20 million. Appellants underwent echocardiograms, opted out of the certified class, and retained the Fleming Firm to assert their individual claims against Wyeth. Ultimately, appellants, along with approximately 4,000 additional claimants, agreed to settle their claims against Wyeth for $339 million. Each of the firm’s clients received a twenty-five page “settlement packet,” which explained the nature of the settlement

5 See Wilson v. Fleming, 566 S.W.3d 410, 415 (Tex. App.—Houston [14th Dist.] 2018) (“Wilson I”), rev’d, 610 S.W.3d 18 (Tex. 2020) (per curiam); Harpst, 566 S.W.3d at 901-03; see also 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.). 6 “Fen-phen” is a combination of fenfluramine and phentermine.

3 and included a statement showing that particular client’s individual net settlement amount after deductions for attorney’s fees and client expenses. One of these deducted expenses was for each client’s pro rata share of the nationwide echocardiogram program—i.e., not just the cost of each client’s own echocardiogram, but a portion of the aggregate cost to test tens of thousands of potential claimants, even those who ultimately did not receive a qualifying “FDA- positive” reading.

Appellants later sued the Fleming Firm, alleging that the firm wrongfully deducted these expenses from appellants’ settlements and misrepresented or concealed a number of material facts during the settlement process.7 Specifically, appellants alleged that the deduction for the echocardiogram program was impermissible under the terms of their fee agreements and, further, the Fleming Firm did not fairly and fully disclose to them the nature and extent of the deduction. Appellants 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.

Following separate motions from both sides, the trial court selected a small group of plaintiffs to proceed to trial and severed the claims of those plaintiffs into a separate cause number. The six plaintiffs in the severed cause (the “Harpst plaintiffs”) went to a jury trial on their contract and fiduciary duty claims. The

7 Appellants were not the only claimants to sue the Fleming Firm after the Wyeth settlement based on similar allegations of an improperly deducted expense. In 2008, two years before appellants instituted the present suit, another group of approximately 600 former clients filed suit in cause number 2008-65396; styled Kinney, et al. v. Fleming; in the 215th Judicial District Court of Harris County. A group of ten plaintiffs prevailed on a claim for breach of fiduciary duty after a jury trial, but that judgment was reversed on appeal. See Fleming v. Kinney ex rel. Shelton, 395 S.W.3d 917, 920 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).

4 jury found against the Harpst plaintiffs, finding that the firm complied with its fiduciary duty and did not fail to comply with the applicable fee agreements by deducting unreasonable expenses. See Harpst, 566 S.W.3d at 903. The trial court signed a take-nothing judgment in the Fleming Firm’s favor.8

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 jury findings and judgment collaterally estopped appellants’ claims or, alternatively, that appellants waived or released their claims against the firm.

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