Van Dyke v. Boswell, O'Toole, Davis & Pickering

GONZALEZ, Justice,

dissenting.

I respectfully dissent. I would affirm the judgment of the court of appeals on the basis that the malpractice issue has already been litigated.

The record shows that Mr. Holloway, Mrs. Van Dyke’s attorney, repeatedly questioned witnesses concerning the propriety of a nonsuit taken by O’Toole. In addition to raising questions concerning this specific act of malpractice, Holloway asserted that O’Toole’s actions had been worthless to Mrs. Van Dyke and that his representation had been ineffective. Thus, all issues presented by Mrs. Van Dyke’s allegations of malpractice were raised by the evidence. Further, Holloway argued these facts to the jury in his closing argument.

The requirements of a successful claim of issue preclusion are that “(1) the facts sought to be litigated in the second action were fully and fairly litigated in the prior action; (2) those facts were essential to the judgment in the first action; and (3) the parties were cast as adversaries in the first action.” Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex.1984). These requirements have been satisfied. See also Restatement (Second) of Judgments § 27 (1982); Comment, The Future of Offensive Collateral Estoppel in Texas, 35 Baylor L.Rev. 291, 293 (1983).

The court bases its holding upon two theories. First, the opinion states that

“[w]hile the malpractice issues were properly raised, the trial judge’s granting of separate trials prevented those issues from being submitted for determination and actually determined in the action for fees. Thus, the malpractice issues were not actually litigated in the trial on the intervention claim for fees.”

697 S.W.2d at 384. This argument begs the question. When determining whether the issue was actually litigated in the first trial, it is no answer to say that it was not so litigated because of the mere fact of the grant of separate trials. Further, a party *386has no right to a second trial when the determination of the first disposes of the issues to be tried in the second. See Hernandez v. Light Pub. Co., 245 S.W.2d 553 (Tex.Civ.App. San Antonio 1952, writ ref'd); 3 R. McDonald, Texas Civil Practice, § 10.26 (rev. ed. 1983).

The second basis advanced by the court ignores the wording of the issues submitted to the jury and the findings thereon. Special Issue No. 4 asked the jury to find “the value of the reasonable and necessary attorney’s fees, ... services ... and ... expenses incurred by Boswell, O’Toole, Davis & Pickering in representing Theresa Van Dyke_” (emphasis added). The jury was to consider the following factors in reaching this determination of the value of the fees: “... the skill requisite to perform the legal services properly ... [t]he amount involved and the results ... obtained ... [t]he experience, reputation and ability of the lawyer or lawyers performing the services.” (emphasis added). The jury has already considered the alleged malpractice in its finding of the value of reasonable and necessary fees.

Obviously, detrimental actions negligently taken by O’Toole would have little or no value to Mrs. Van Dyke and would not be “reasonable.” Fees that are “reasonable” are those that are “fair, proper, just, moderate, suitable under the circumstances” and are “[f]it and appropriate to the end in view.” Blacks Law Dictionary, p. 1138 (5th ed. 1979). Negligent work does not generate fees that are “reasonable and necessary.” The jury did not find the value of fees in a vacuum devoid of realistic expectations of value received. Neither were they ignorant of the “results ... obtained” or the skill required to perform the services when they awarded $87,232.91 to O’Toole in fees.

This finding by the jury contains more than an implication as to the quality of the services rendered by O’Toole. In light of the factors considered by the jury it is an affirmative finding which takes into account the totality of the circumstances surrounding the assessment of fees and the value to Mrs. Van Dyke of the services rendered. This conclusion is buttressed by the fact that in Special Issue No. 5 the jury determined that the firm had rendered “beneficial services” to Mrs. Van Dyke worth $87,248.91.

The court also suggests that a determination in a separate trial is not a judgment sufficiently final to serve as the basis for issue preclusion. In assessing finality a court is to determine if “the decision to be carried over was adequately deliberated and firm, even if not final in the sense of forming a basis for a judgment already entered.” Restatement (Second) of Judgments § 13, comment (g) (1982). The determination rests on the fact that the decision is “procedurally definite.” Id. It would be ludicrous to establish a procedure for separate trials, try issues in separate trials and then subsequently allow relit-igation of those issues formerly decided. The procedure allowing separate trials would be meaningless if the findings in those trials were not afforded a substantial degree of finality. Indeed, this court has said that an order for separate trials “leaves the lawsuit intact but enables the court to hear and determine one or more issues without trying all controverted issues at the same hearing.” Hall v. City of Austin, 450 S.W.2d 836, 838 (Tex.1970) (emphasis added).

I would hold that Mrs. Van Dyke is precluded from relitigating any issues concerning the alleged malpractice of O’Toole. Those issues have already been heard. The final, and crucial step that the court refuses to recognize is that the jury found by its answers to the special issues that O’Toole rendered valuable and necessary services to Mrs. Van Dyke. This is a finding totally at odds with an allegation of legal malpractice by O’Toole or his firm. She is collaterally estopped from relitigat-ing this issue.

In conclusion, the holding of the court unfairly allows Mrs. Van Dyke two bites at the apple. First, she is allowed to present evidence and argue malpractice in an attempt to deny fees owed to O’Toole. She is *387then allowed to reargue the same facts again in an attempt to collect a money judgment for malpractice against O’Toole. The net effect is to unfairly subject O’Toole to defend himself twice against the same allegations of misconduct.

For the above reasons, I dissent.

McGEE, J., joins in this dissenting opinion.