AFFIRM; and Opinion Filed August 22, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-00714-CV
MELVIN ALLARD LIPSITZ JR., Appellant
V.
MIKE MCCURLEY, CARMEN ELAINE EIKER, R. SCOTT DOWNING, AND
MCCURLEY, ORSINGER, MCCURLEY, NELSON & DOWNING, L.L.P., Appellees
On Appeal from the 301st Judicial District Court
Dallas County, Texas
Trial Court Cause No. 11-16019
MEMORANDUM OPINION
Before Justices Moseley, Bridges, and Lang-Miers
Opinion by Justice Lang-Miers
Appellees Mike McCurley, Carmen Elaine Eiker, R. Scott Downing, and McCurley,
Orsinger, McCurley, Nelson & Downing, L.L.P. represented Marcie Kay Lipsitz, the former
wife of appellant Melvin Allard Lipsitz Jr., during their divorce. Pursuant to court orders, Melvin
paid Marcie’s interim attorney’s fees while the divorce was pending. Appellees ceased
representing Marcie and intervened in the divorce seeking payment from Melvin of Marcie’s
unpaid attorney’s fees. Melvin counterclaimed against appellees challenging the reasonableness
and necessity of appellees’ fees he had already paid as interim fees. Appellees nonsuited their
claim against Melvin and filed a motion for summary judgment as to his counterclaims. The
court granted appellees’ motion and rendered a take-nothing judgment against Melvin. The court
severed the counterclaims from the divorce proceeding, and Melvin appeals, arguing that the trial
court erred by granting appellees’ motion for summary judgment. Because all dispositive issues
are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.2(a), 47.4. We affirm
the trial court’s judgment.
BACKGROUND
After Melvin and Marcie were married, they signed a postmarital agreement setting out
their respective marital property rights and spousal rights and obligations. Marcie agreed, among
other things, to indemnify Melvin from liabilities and obligations she incurred in the past and in
the future. Melvin agreed, among other things, to pay their and their children’s living expenses as
long as he and Marcie were married. Melvin and Marcie both agreed that if either incurred any
liabilities for credit transactions that the party incurring the credit debt would satisfy it from that
party’s separate property and would indemnify the other party from the credit debt. 1
1
The agreement provided:
The Parties agree that their marital property rights and spousal rights and obligations shall be determined by this
Agreement during the marriage, and that certain payments, along with the disposition of property and debts upon the
dissolution of the Parties’ marriage by divorce, annulment or death shall be in accordance with the terms of this
Agreement.
Section VI of the agreement styled “Liabilities” stated:
All liabilities and obligations incurred solely by Wife in connection with Wife’s separate property, whether
incurred or arising before, on or after the date of this Agreement, shall be paid from, enforceable against and discharged
solely from the separate property of Wife, and not from the separate property of Husband or from the Parties’ community
property, if any. Wife shall hold Husband and his property harmless from, and shall indemnify Husband against all
liabilities and obligations of Wife which have been previously incurred or which will be incurred in the future. “Liabilities
and obligations” include, but are not limited to, those that are contractual and noncontractual, contingent and
noncontingent, known and unknown, tortious or nontortious, and any taxes attributable to Wife’s property or income
including, but not limited to, any penalties and interest associated therewith.
Section VII of the agreement styled “Future Credit Transactions” stated:
If either party enters into a transaction where credit is extended to that party or if either party is or becomes
liable or obligated for the repayment of credit extended to a third party, then that obligation will be satisfied by the party
incurring it solely from that party’s separate property, and the party incurring the obligation will hold the other party and
his or her property harmless from the obligation.
Section VIII of the agreement styled “Provisions for Support” stated:
As long as the Parties are married, Husband agrees to timely pay all the Parties’ living expenses, including those
of Husband, Wife and the Parties’ children[.]
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About nine years after they were married, Marcie filed for divorce from Melvin and filed
a suit affecting the parent-child relationship (SAPCR) to determine conservatorship of their
children. Appellees represented Marcie.
Interim Attorney’s Fees Under Postmarital Agreement
In a series of interim orders in the case, an associate judge temporarily required Melvin to
pay Marcie’s attorney’s fees up to various capped amounts. See TEX. FAM. CODE ANN. § 6.502
(West 2006), § 105.001 (West 2008). The orders specifically stated that the provisions about the
temporary payment of attorney’s fees were interim in nature and that both parties could make
claims against the other for attorney’s fees at the final trial, even for those fees that were paid
pursuant to the judge’s interim rulings. In addition, the orders authorized Melvin to pay the
interim attorney’s fees from any source or combination of sources available to him and to sell,
liquidate, or borrow against property under his control to obtain the funds to pay the attorney’s
fees.
Melvin argued that Marcie’s request that he pay her attorney’s fees violated the
provisions in the postmarital agreement requiring Marcie to indemnify him for her liabilities and
to pay her own contractual obligations. Marcie responded that Melvin misconstrued the
postmarital agreement. Melvin filed a motion for partial summary judgment arguing that the
postmarital agreement was valid and enforceable. The parties submitted an agreed order to the
district court, which the court signed, ruling that the postmarital agreement between Melvin and
Marcie “is valid and enforceable.”
The associate judge ruled that he could require Melvin to pay Marcie’s interim attorney’s
fees without violating the postmarital agreement because the interim fees constituted
“necessaries and temporary spousal support”; the postmarital agreement required Melvin to pay
for Marcie’s living expenses, and if the court did not “order interim fees,” Marcie would not be
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able to cover her living expenses; the postmarital agreement did not bar an order to pay
attorney’s fees in the SAPCR; and there were no provisions in the agreement prohibiting the
payment of interim attorney’s fees.
Appellees’ Intervention, Melvin’s Counterclaim and Cross-Claim
At some point, appellees withdrew from representing Marcie and later intervened in the
divorce proceeding seeking payment from Melvin of Marcie’s unpaid attorney’s fees. Melvin
counterclaimed against appellees for equitable relief asserting that the attorney’s fees he had
already paid to appellees on Marcie’s behalf were not reasonable and necessary. Melvin also
cross-claimed against Marcie for indemnity citing provisions of the postmarital agreement
requiring Marcie to indemnify Melvin for her contractual and credit obligations.
Melvin’s Partial Summary Judgment
Melvin moved for summary judgment on his cross-claim against Marcie for indemnity
under the postmarital agreement, and the court granted the motion. The trial court ordered that
Marcie was liable to Melvin “for contractual indemnity pursuant to the Postmarital
Agreement . . . with respect to the claims asserted by [appellees] against Melvin[.]” The trial
court ordered that Marcie was liable to Melvin for (1) any judgment or settlement amount that
appellees recovered from Melvin for the claims asserted in their petition in intervention, (2) the
attorney’s fees and expenses Melvin incurred in defending against appellees’ petition in
intervention or in defending the partial summary judgment on appeal, (3) the attorney’s fees
Melvin incurred in prosecuting his contractual cross-claim against Marcie based on indemnity,
and (4) interest and costs.
The trial court, however, reserved the determination of the amount of damages Marcie
owed under the partial summary judgment and said the amount would “be determined in a
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further order or judgment of this Court upon final motion, hearing or trial, as may be
appropriate.”
Appellees’ Summary Judgment
After the trial court ruled that Marcie was responsible for appellees’ unpaid fees,
appellees nonsuited their claims against Melvin and filed a combined no-evidence and traditional
motion for summary judgment on his counterclaims. They argued, among other things, that
Melvin’s counterclaims did not state viable causes of action for equitable relief, he did not have
standing to sue them because he was a third party who lacked privity with them, and he was
collaterally estopped from challenging the reasonableness and necessity of Marcie’s interim
attorney’s fees.
While the appellees’ motion for summary judgment was pending, Melvin and Marcie
settled their claims and controversies in a Mediated Settlement Agreement (MSA). 2 The trial
court subsequently granted appellees’ summary judgment motion “on all the grounds asserted
therein” and dismissed “the entirety of Melvin Alard [sic] Lipsitz Jr.’s counter-claims[.]” The
court then severed Melvin’s counterclaims from the divorce proceeding, and Melvin filed this
appeal arguing that the trial court erred in granting summary judgment in favor of appellees.
STANDING
Arguments of the Parties
Appellees contend that Melvin lacked standing to maintain his claims against them
because the attorney’s fees were incurred and owed by Marcie. They contend, among other
things, that (1) although the fees Melvin paid them temporarily came out of his pocket, the trial
court reserved Melvin’s and Marcie’s rights to “challenge their ultimate obligations” to pay the
2
Appellees cite the MSA in their brief on appeal. However, the MSA is not part of the summary judgment record and there is nothing in the
record to show that the trial court considered the MSA in ruling on appellees’ motion for summary judgment. As a result, we do not consider it on
appeal.
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attorney’s fees at final trial; and (2) in granting the earlier partial summary judgment, the trial
court “ultimately ruled that Melvin ha[d] no obligation to pay the fees” and that “the ultimate and
final obligor” of the fees was Marcie, “thereby putting the fees in Marcie’s debt column as a debt
she owed to Melvin[.]”
In reply, Melvin argues that he had standing to challenge the reasonableness and
necessity of the fees he paid to them because he suffered “a concrete and particularized injury”
of an “overpayment of hundreds of thousands of dollars[,]” regardless of whether the legal
services were ultimately for Marcie’s benefit. Melvin argues that appellees “confuse the issue of
standing with the issue of duty to pay for the attorney’s fees.” He also argues that his earlier
partial summary judgment addressed only Marcie’s obligation to indemnify him for any of his
liabilities on appellees’ claims in intervention, and that the partial summary judgment “says
nothing” about Marcie’s obligation to indemnify him for the fees he already paid pursuant to the
temporary orders.
Melvin also contends that the cases appellees rely on do not apply because, although
Marcie had the obligation to pay her attorney’s fees under the postmarital agreement, the fees
Melvin paid “were actually paid largely from separate property that belonged to Melvin” and he
“ha[d] standing to challenge unreasonable fees that he was personally required to pay[.]”
Standard of Review and Applicable Law
We review a trial court’s summary judgment de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Summary judgment is appropriate
when the moving party establishes that there is no genuine issue of material fact and it is entitled
to judgment as a matter of law. When the trial court does not specify the grounds upon which it
relied in granting summary judgment, as here, we will affirm on any ground that is meritorious.
FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
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Standing implicates a court’s subject matter jurisdiction and is a constitutional
prerequisite to maintaining a suit under Texas law. Tex. Ass’n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 444–45 (Tex. 1993); OAIC Commercial Assets, L.L.C. v. Stonegate Village,
L.P., 234 S.W.3d 726, 735 (Tex. App.—Dallas 2007, pet. denied). A plaintiff has standing if, at
every stage of the legal proceedings, a controversy exists between the parties. Williams v. Lara,
52 S.W.3d 171, 184 (Tex. 2001). Whether a plaintiff has standing is a question of law that we
review de novo. Coons-Andersen v. Andersen, 104 S.W.3d 630, 634 (Tex. App.—Dallas 2003,
no pet.) (citing Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998)); OAIC
Commercial Assets, L.L.C., 234 S.W.3d at 735. In order to have standing, Melvin bore the
burden of alleging facts that affirmatively demonstrate the court’s jurisdiction. Tex. Ass’n of
Bus., 852 S.W.2d at 446; OAIC Commercial Assets, L.L.C., 234 S.W.3d at 735.
Analysis
We agree with appellees that Melvin did not have standing to maintain these claims
against them. See Double S Petroleum Ltd. v. Super Circle 7 Stores, Inc., No. 07-07-0278-CV,
2008 WL 4192709, at *3 (Tex. App.—Amarillo Sept. 12, 2008, no pet.) (mem. op.) (concluding
party did not have standing to challenge attorney’s fees award based on attorneys’ contingency
fee contract with another party); Davis v. Davis, No. 2-00-436-CV, 2003 WL 1564824, at *6
(Tex. App.—Fort Worth Mar. 27, 2003, no pet.) (mem. op.) (concluding appellant, in his
capacity as trustee of a family trust, did not have standing to challenge award of attorney’s fees
assessed against him individually).
The postmarital agreement provided that Marcie would hold Melvin “and his property
harmless from, and shall indemnify [Melvin] against all liabilities and obligations of” Marcie
“which have been previously incurred or which will be incurred in the future.” “Liabilities and
obligations” included contractual liabilities. The agreement also provided that Marcie would be
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liable for any “transaction where credit [was] extended” to her and that she would hold Melvin
and his property harmless from that credit obligation. See BLACK’S LAW DICTIONARY 396 (8th
ed. 2004) (defining “consumer credit” as “[c]redit extended to an individual to facilitate the
purchase of consumer goods and services”). Under these terms of the postmarital agreement, the
attorney’s fees that Marcie incurred pursuant to her contract with appellees were her liabilities.
See Sheshunoff v. Sheshunoff, 172 S.W.3d 686, 694 (Tex. App.—Austin 2005, pet. denied)
(“[T]he Texas Legislature manifested a strong policy preference that marital property agreements
should be enforced whenever persons who are married or intend to marry voluntarily enter into
them.”). And the court ruled that the postmarital agreement was valid and enforceable.
The trial court’s earlier ruling on Melvin’s cross-claim against Marcie that Marcie was
liable to Martin “for contractual indemnity pursuant to the Postmarital Agreement . . . with
respect to the claims asserted by Intervenors against Melvin” was based on and in accord with
the terms of the postmarital agreement, which provided that Marcie’s attorney’s fees were her
liability and she was ultimately responsible for indemnifying Melvin for amounts that he paid
toward those fees. And although the associate judge determined that the postmarital agreement
did not prohibit the court from awarding Marcie interim attorney’s fees in the divorce suit and
the SAPCR suit, he repeatedly stated in his orders that the temporary award of attorney’s fees did
not affect the parties’ claims for attorney’s fees at final trial and in the division of the marital
estate. See Marshall v. Marshall, 735 S.W.2d 587, 597 (Tex. App.—Dallas 1987, writ ref’d
n.r.e.) (concluding provision in agreed temporary order indicating the debts a spouse was
responsible for during pendency of divorce case did not bind trial court in its division of debts
and property after trial on the merits).
We also disagree with Melvin’s argument—for which he cites no authority—that,
because the fees “were actually paid largely from separate property that belonged to Melvin[,]”
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he had standing to challenge these “unreasonable fees that he was personally required to pay[.]”
The trial court’s temporary orders stated that Melvin could pay the interim attorney’s fees from
any source or combination of sources available to him. And Melvin acknowledges that, while
interim attorney’s fees are generally paid with community property, “the trial court can also
require the fees to be paid from the primary earner’s separate property if needed.” Cf. Ferris v.
Ferris, No. 05-08-01705-CV, 2010 WL 5158444, at *5 (Tex. App.—Dallas Dec. 21, 2010, no
pet.) (mem. op.) (involving temporary order that specified “that the interim fees and expenses be
paid from community funds”).
The two cases that Melvin cites as support for his argument that he has a “concrete and
particularized injury” are distinguishable. Congleton v. Shoemaker, Nos. 09-11-00453-CV, 09-
11-00654-CV, 2012 WL 1249406, at *5 (Tex. App.—Beaumont Apr. 12, 2012, pet. denied)
(mem. op.), involved the determination of fees owed to a receiver appointed after entry of a
divorce decree, and held that the trial court “abused its discretion in pre-setting the receiver’s fee
at 25%” because the record contained no evidence “establishing what percentage or amount
constitutes a fair, reasonable, or necessary fee[.]” Additionally, Farm Credit Bank of Texas v.
Snyder National Bank, 802 S.W.2d 709, 714–15 (Tex. App.—Eastland 1990, writ denied),
concerned whether the owner of a property interest had standing to challenge attorney’s fees
awarded to a lien holder with a priority interest. In contrast, at issue here are interim attorney’s
fees paid pursuant to temporary court orders in a divorce proceeding and the effect of the terms
of a postmarital agreement, a partial summary judgment declaring the postmarital agreement
“valid and enforceable[,]” and a partial summary judgment decreeing the wife liable for her
outstanding attorney’s fees under the terms of the postmarital agreement.
We conclude that Melvin lacked standing to maintain these claims against appellees.
Melvin’s lack of standing is one ground upon which the trial could have based its order granting
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appellees’ motion for summary judgment and dismissing Melvin’s counterclaims. Accordingly,
we conclude that Melvin has not shown that the trial court erred. Because of our disposition of
the issue of standing, we do not need to reach the remaining issues.
CONCLUSION
We affirm the trial court’s order granting appellees’ motion and dismissing Melvin’s
counterclaims.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
110714F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MELVIN ALLARD LIPSITZ JR., Appellant On Appeal from the 301st Judicial District
Court, Dallas County, Texas
No. 05-11-00714-CV V. Trial Court Cause No. 11-16019.
Opinion delivered by Justice Lang-Miers,
MIKE MCCURLEY, CARMEN ELAINE Justices Moseley and Bridges participating.
EIKER, R. SCOTT DOWNING, AND
MCCURLEY, ORSINGER, MCCURLEY,
NELSON & DOWNING, L.L.P., Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Mike McCurley, Carmen Elaine Eiker, R. Scott Downing,
and McCurley, Orsinger, McCurley, Nelson & Downing, L.L.P. recover their costs of this appeal
from appellant Melvin Allard Lipsitz Jr.
Judgment entered this 22nd day of August, 2013.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
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