IN THE
TENTH COURT OF APPEALS
No. 10-03-00337-CV
Randall C. Boyd,
Appellant
v.
Koons, Fuller,
Vanden Eykel & Robertson, P.C.,
Appellee
From the 116th District Court
Dallas County, Texas
Trial Court # 02-09480-F
MEMORANDUM Opinion
This is a legal malpractice action in a divorce and child custody case. The trial judge granted a traditional motion for summary judgment in favor of Koons, Fuller, Vanden, Eykel & Robertson, P.C. (“Fuller”). Randall C. Boyd, Fuller’s client, appeals in one issue: Is there an issue of fact as to whether Fuller’s negligence was a substantial cause of Boyd’s divorce not having been finalized before Boyd received certain stock and options? We will overrule Boyd’s issue and affirm the summary judgment.
BACKGROUND
A Mediated Settlement Agreement (“MSA”) was entered in May 1997. Boyd’s wife Ginger and their daughter Ashley (through her attorney) contested the MSA in August 1997 because: (1) it did not comply with the Family Code (requirement to name the county of residence or the conservator with exclusive right to establish primary residence); (2) Boyd did not disclose a bonus that was already due in the amount of $230,000; and (3) the MSA was not in Ashley’s best interest. Boyd filed a motion to enforce the MSA. A hearing was held on the motion to enforce in September 1998. In April 1999, the motion to enforce was denied because the MSA did not consider “the bonus money which might have affected the allocation decisions made by the Petitioner and is unenforceable with respect to the visitation and access issues.” However, in July 1998, Boyd had received a stock and options bonus worth $8,000,000. A divorce decree was entered in the fall of 1999, which considered the $8,000,000 bonus received in July 1998 as part of the community estate and divided the bonus with Ginger.
Boyd sued Fuller for legal malpractice claiming Fuller: (1) failed to investigate the extent of the community estate; (2) advised Boyd that he did not have to disclose the $230,000 bonus already due; and (3) drafted an MSA that was not compliant with the Family Code. He argues that these negligent actions delayed the final decree and allowed the July 1998 bonus worth $8,000,000 to become community property.
Fuller filed a traditional motion for summary judgment challenging the causation element of legal malpractice. The motion was granted.
ARGUMENTS
Boyd argues that Fuller’s negligence caused the delay in the finalization of the divorce. He argues that without these negligent acts, there would have been no grounds to challenge the MSA. He asserts that his expert raised a fact issue as to causation with testimony that there would have been “no basis on which to move to set aside the MSA,” and “[w]ithout a basis for moving to set aside the [MSA], an attorney would be highly unlikely to file such a motion and even less likely to continue to pursue it as late as July of 1998.”
Fuller argues that the delay was attributable to: (1) the court’s delay in having a hearing on the motion to enforce; (2) Boyd and Ginger could never have agreed on enforceable visitation and access provisions; and (3) Boyd’s expert testimony was purely speculative and does not raise a fact issue on causation. The lawyers for Ginger and Ashley testified that they would have challenged the MSA regardless of Fuller’s negligence because Ashley “violently” opposed the visitation and access provisions. Ashley’s attorney further stated that he would have challenged the agreement on whatever reasonable and ethical grounds he could have come up with, including a family law court’s ability to set aside agreements that are not in the child’s best interest. He testified that, if this approach failed, he would have sought a modification. Ginger’s attorney testified that: “I would have pursued this claim on behalf of Mrs. Boyd so long as I had a client and some judge told me not to – had not told me to go home, that I didn’t have anything to do; in other words, get out of my courtroom. Whether she would’ve come in with a decree based on this MSA, or just the MSA, I would’ve attacked it.” Fuller’s expert testified that the “primary factor in the harm that Mr. Boyd suffered was the judge’s failure to hold a hearing on the motion for enforcement.”
SUMMARY JUDGMENT
Standard of Review
We review the decision to grant or deny a summary-judgment motion de novo. See Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex. App.—Waco 2000, pet. denied). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex. App.—Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. If the movant for summary judgment is a defendant, then the movant must negate at least one of the elements of the non-movant's cause of action, or, alternatively, the movant must conclusively establish each element of an affirmative defense. Clifton v. Hopkins, 107 S.W.3d 755, 757 (Tex. App.—Waco 2003, pet. denied). The non-movant need not respond to the motion for summary judgment unless the movant meets its burden of proof. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999). But if the movant meets its burden of proof, the non-movant must present summary-judgment evidence to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
Legal Malpractice
To recover on a claim for legal malpractice, the plaintiff must establish: (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff's injuries, and (4) damages occurred. Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995). The proximate cause element of a legal malpractice claim requires proof that the plaintiff would have prevailed in the underlying action but for the attorney’s negligence. Schlager v. Clements, 939 S.W.2d 183, 186-87 (Tex. App.—Houston [14th Dist.] 1996, no writ).
Causation
A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Ridenour v. Herrington, 47 S.W.3d 117, 120 (Tex. App.—Waco 2001, pet. denied) (citing Triton Oil & Gas Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982)); accord Appleton v. Appleton, 76 S.W.3d 78, 83 (Tex. App.—Houston [14th Dist.] 2002, no pet.). We conclude that the record conclusively establishes that the negligent acts of Fuller did not cause the $8,000,000 bonus to become community property. See Ridenour, 47 S.W.3d at 120.
We overrule Boyd’s single issue.
CONCLUSION
Having overruled Boyd’s single issue, we affirm the summary judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed January 5, 2005
[CV06]
an>
Bittle filed a motion for summary judgment, which was granted on Feb. 17, 2003. The Final Summary Judgment states in relevant part:
IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that the January 28, 2002, decision of the hearing examiner is final and binding on all parties.
IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that Defendant has failed to comply with the final decision of the hearing examiner and Texas Local Government Code § 143.053(f).
IT IS FURTHER ORDERED, ADJUDGED AND DECLARED that Plaintiff is entitled to mandamus relief requiring the City to (1) pay him “full compensation for the actual time lost as a result of the suspension” (in the total sum of $19,914.56), and (2) restore and give credit to Plaintiff for sick leave, vacation leave, and holiday leave lost as a result of the suspension (263.5 hours of sick leave[7], 75 hours of vacation leave, and 48 hours of holiday leave), pursuant to Texas Local Government Code § 143.053(f), for which a writ of mandamus shall be issued by the Clerk of the Court to be served on Defendant.[8]
. . .
All relief requested in this case and not expressly granted is denied. This judgment finally disposes of all parties and claims and is appealable.
The City now appeals the trial court’s summary judgment in two issues: (1) error in granting summary judgment when there was a genuine issue of material fact as to whether the City “failed and refused” to comply with the hearing examiner’s decision or Texas Local Government Code section 143.053(f) when the City sought a declaratory judgment; and (2) error in granting summary judgment when there was a genuine issue of material fact as to whether Bittle’s attorney’s fees were reasonable and necessary.
JURISDICTION
Among its other arguments, the City says Bittle was not entitled to mandamus relief because he did not exhaust his administrative remedies under Chapter 143. The City asserts that because it is the duty of the commission to determine if Chapter 143 is being obeyed, Bittle should have taken his post-examiner dispute to the commission.
Bittle says he is not appealing the hearing examiner’s decision—he is trying to enforce it. He states that mandamus is an appropriate remedy to enforce a final hearing examiner’s decision when the City refuses to comply with the decision and the Act.
If an administrative agency has exclusive jurisdiction, a party must exhaust all administrative remedies before seeking review of the agency’s action. Cash Am. Int’l, Inc. v. Bennett, 35 S.W.3d 12, 15 (Tex. 2000). Until the party has exhausted all administrative remedies, a trial court lacks subject matter jurisdiction and must dismiss any claim within the agency’s exclusive jurisdiction. Subaru of Am. v. David McDavid Nissan, 84 S.W.3d 212, 221 (Tex. 2002) (citing Tex. Educ. Agency v. Cypress-Fairbanks Indep. Sch. Dist., 830 S.W.2d 88, 90 (Tex.1992); Tex. Bd. of Exam'rs in Optometry v. Carp, 162 Tex. 1, 343 S.W.2d 242, 246 (Tex.1961)).
We agree with the City that the dispute is grounded in whether the City violated Chapter 143 of the Texas Local Government Code. It was clear that Bittle’s contention was that the City was violating section 143.053(f) by failing to pay the back pay using his method of calculation (i.e., no offset). Thus, if the commission had exclusive jurisdiction over disputes arising out of Chapter 143, the trial court lacked subject matter jurisdiction over the underlying lawsuit. Our only inquiry then is whether the commission had exclusive jurisdiction over the dispute.[9]
An agency will have exclusive jurisdiction only when a pervasive regulatory scheme indicates that the Legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed. See David McDavid Nissan, 84 S.W.3d at 221. Whether an agency has exclusive jurisdiction is a question of law. Id. at 222.
The purpose of the Fire Fighters’ and Police Officers’ Civil Service Act (“Act”) is: “to secure efficient fire and police departments composed of capable personnel who are free from political influence and who have permanent employment tenure as public servants.” Tex. Loc. Gov’t Code § 143.001(a) (Vernon 1999). “The members of the Fire Fighters’ and Police Officers’ Civil Service Commission shall administer this chapter in accordance with this purpose.” Id. at § 143.001(b). “The commission or a commission member designated by the commission may investigate and report on all matters relating to the enforcement and effect of this chapter and any rules adopted under this chapter and shall determine if the chapter and rules are being obeyed.” Id. at § 143.009(a) (emphasis added). The legislature provided the commission with tools to ensure compliance with Chapter 143. Id. at § 143.009(b) (administer oaths, issue subpoenas, and cause depositions of witnesses).
Based on Texas Local Government Code sections 143.001 and 143.009, we believe the commission’s role was designed to create a fair, consistent, and orderly process to ensure Chapter 143 is being obeyed. See City of Houston v. Jackson, 42 S.W.3d 316, 322 (Tex. App.—Houston [14th Dist.] 2001, pet. dism’d w.o.j.). The commission has specifically been given the authority to ensure the enforcement of Chapter 143 and to determine if Chapter 143 and the rules promulgated pursuant to Chapter 143 are being obeyed. Tex. Loc. Gov’t Code § 143.009 (Vernon 1999); see also City of Garland v. Byrd, 97 S.W.3d 601, 606 (Tex. App.—Dallas 2002, pet. denied) (citing Tex. Local Gov’t Code § 143.009).
We acknowledge that the Act does not explicitly state the commission has “exclusive jurisdiction” over a Chapter 143 dispute nor does it provide an explicit method to enforce a decision of a hearing examiner. However, we believe the legislature intended that judicial intervention be the last resort in disputes between civil servants and their employers arising under Chapter 143. We further note that a firefighter who is dissatisfied with a decision of the commission, as opposed to a hearing examiner, has an unfettered right to appeal to a district court. Tex. Loc. Gov’t Code § 143.015 (Vernon 1999).
We conclude that the commission has exclusive jurisdiction[10] over Chapter 143 disputes. The Act is a pervasive regulatory scheme that indicates the Legislature intended for the appeal process to the commission to be the exclusive means of remedying a dispute that alleges a violation of the Act.[11] See David McDavid Nissan, 84 S.W.3d at 221. Bittle failed to exhaust his administrative remedies by not taking this back pay/leave dispute to the commission for resolution. Because he failed to exhaust his administrative remedies, the district court lacked subject matter jurisdiction. See David McDavid Nissan, 84 S.W.3d at 221.
CONCLUSION
Because we find the trial court lacked subject matter jurisdiction, we vacate the judgment and dismiss this case. Tex. R. App. P. 42.3(e).
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Dismissed for lack of jurisdiction
Opinion delivered and filed November 10, 2004
[CV06]
[1] A fire fighter can appeal an indefinite suspension to an independent third party hearing examiner instead of to the Fire Fighters’ and Police Officers’ Civil Service Commission (commission). Tex. Loc. Gov’t Code § 143.057(a) (Vernon 1999). The hearing examiner's decision is final and binding on all parties, and the appealing fire fighter automatically waives all rights to appeal to a district court except as provided by subsection (j). Id. at 143.057(c) Subsection (j) allows an appeal to a district court only on the grounds that the examiner was without jurisdiction or exceeded his jurisdiction or that the order was procured by fraud, collusion, or other unlawful means. Id. at § 143.057(j).
[2] Bittle was on administrative leave with pay from August 31, 2001 to September 4, 2001.
[3] The City argued for reconsideration for reasons unrelated to this appeal.
[4] The City argued that Bittle could have sought reconsideration with the City Manager to take advantage of the savings clause.
[5] This reconsideration/clarification decision did not state that “[t]he arbitrator maintains jurisdiction to assist the parties” as the original decision did. The statute is silent about the duration of the examiner’s jurisdiction, and we express no opinion about it.
[6] Bittle argues that “his rights and benefits lost as a result of the suspension” only include the 188.5 hours of sick leave that were not “cashed out”, and the benefits he would have accrued during his time of suspension (75 hours sick leave, 75 hours vacation leave, and 48 hours holiday).
[7] 188.5 sick leave hours not “cashed out” and 75 sick leave hours accrued during time of suspension.
[8] The Court also awarded Bittle reasonable and necessary attorney’s fees in the amount of $14,600.00 for the prosecution of the suit in the trial court and an additional $10,000.00 in attorney’s fees in the event of an appeal.
[9] Issues of subject matter jurisdiction cannot be waived by the parties and may be raised for the first time on appeal. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993).
[10] Subject to the employee’s right to choose a hearing examiner instead of the commission.
[11] We note Thomas v. Long, 97 S.W.3d 300, 303 (Tex. App.—Houston [14th Dist.] 2003, pet. granted), where the court found the Sheriff’s Department Civil Service Commission did not have exclusive jurisdiction.