Roger Gerdes v. Murray Fogler, Individually, McDade Fogler, LLP, and John Kennamer, Individually ( 2009 )

Affirmed and Memorandum Opinion filed May 7, 2009

Affirmed and Memorandum Opinion filed May 7, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-07-01020-CV

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ROGER GERDES, Appellant

V.

MURRAY FOGLER, INDIVIDUALLY, MCDADE FOGLER, LLP, AND JOHN KENNAMER, INDIVIDUALLY, Appellees

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2006-15924

M E M O R A N D U M   O P I N I O N

This case arises out of a post-judgment collection dispute that culminated in the judgment debtor=s imprisonment for contempt.  After a higher court declared the contempt order void, the judgment debtor filed a civil lawsuit against the judgment creditor and the attorney who represented the judgment creditor, alleging abuse of process, false imprisonment, and malicious prosecution.  The judgment creditor and his attorney filed traditional and no-evidence motions for summary judgment, which the trial court granted.  The judgment debtor now complains, in two issues, that the trial court erred in granting the motions for summary judgment.  We affirm.

I.  Factual and Procedural Background

Appellant Roger Gerdes and appellee John Kennamer were friends and business associates who became embroiled in litigation.  In a prior civil suit, Kennamer, through his attorney, appellee Murray Fogler of the law firm McDade Fogler, LLP, also an appellee,^[1] brought claims against Gerdes seeking a judgment for damages and injunctive relief involving investments made in real property in Mexico (the APrior Suit@).  In that litigation, the trial court rendered judgment in favor of Kennamer and against Gerdes for $915,362.65 and enjoined Gerdes from transferring interests in or encumbering the Mexico property (the APrior Judgment@).

The First Contempt Order

To obtain satisfaction of the Prior Judgment, Fogler, on Kennamer=s behalf, sought and obtained three turnover orders requiring Gerdes to produce, among other things, stock certificates, documents, and other original evidence of ownership and transfers pertaining to the Mexico property.  Gerdes did not comply with the turnover orders.  On February 10, 2003, the trial court held Gerdes in civil contempt of court for violation of two turnover orders.  The trial court ordered Gerdes confined Auntil such time as he fully complies with the [turnover] orders@ (the AFirst Contempt Order@).

Gerdes was confined in the Matagorda County jail beginning on September 17, 2003.  The record reflects that Gerdes=s confinement was to last until the earlier of (1) the date he complied with the trial court=s turnover orders, or (2) March 16, 2005, the date marking the expiration of eighteen months from his initial confinement.  By signing the First Contempt Order the court continued a prior injunction enjoining Gerdes and those acting in concert with him from transferring, selling, wasting, or encumbering the Mexico property until Gerdes complied with the turnover orders.

The Second Contempt Order

After Gerdes=s confinement, Kennamer and Fogler learned that shortly before the confinement, on August 7, 2003, a lease agreement on the disputed property had been executed in violation of the trial court=s injunction.  Fogler, on Kennamer=s behalf, filed a motion for contempt against Gerdes alleging Gerdes had violated the trial court=s injunction.  The motion, in relevant part, is set forth below:

Gerdes has been held in civil (or coercive) contempt for refusal to comply with an order directing him to turn over property.  But he is also subject to criminal (or punitive) contempt for blatant disobedience of this Court=s injunction.  The two acts of contempt are separate and distinct, and thus the power of the Court to hold Gerdes in punitive contempt is not restricted by the proper order of coercive contempt. Even separate contempt charges brought at the same time are subject to separate punishments.  Ex parte Stanford, 557 S.W.2d 346, 349 (Tex. Civ. App.CHouston [1st Dist.] 1977, no writ).  In this case, Gerdes has clearly committed two separate acts of contempt, a second one occurring months after being held in contempt for the first.

Fogler attached to the motion a sworn affidavit in which he attested to the following in pertinent part:

1.  My name is Murray Fogler.  I represent the plaintiff in case number 01-H-0435-C on the docket of this court styled John Kennamer, Mora Kennamer and Laguna Vista International, Inc. v. Roger Gerdes, Jr. and Carolyn Gerdes.  I am over twenty-one years of age, of sound mind, and in all respects qualified to make this affidavit.

2.  I have read the foregoing Motion for Show Cause Hearing, for Order of Contempt against Roger Gerdes, Jr., and know the contents thereof.  The facts stated therein are within my personal knowledge and the same are, in all respects, true and correct.  More specifically, the Final Judgment in this case in favor of John Kennamer remains unsatisfied, and the Turnover Orders issued by the Court have never been complied with.

At a hearing on the matter, Fogler presented a photocopy of the lease, which was purportedly signed by Gerdes=s son.^[2] Fogler offered a sworn affidavit in which Gerdes=s son denied knowledge of the lease.  Gerdes sought to cross-examine Fogler as to how Fogler obtained the document.  Fogler was sworn in and testified to the following in response to Gerdes=s questions pertaining to the lease:

$ Fogler is legal counsel to Kennamer in the Prior Suit and has been licensed as an attorney in Texas since 1978.

$ Fogler received the photocopy of the lease in September 2003 from his client, Kennamer, who received it from another person.

$ Fogler confirmed that the metes and bounds within the lease appear to match the description of the property contained within documents from trial in the Prior Suit.

$ Fogler does not know any of the parties whose names are included in the lease. 

Gerdes also sought to cross-examine Kennamer as to the source of the document.  In response to Gerdes=s questions, Kennamer testified that he received the photocopy of the lease from a woman associated with the property.

In his closing arguments to the trial court, Fogler indicated that the motivation behind the motion for contempt, based on the injunction, was to force Gerdes=s compliance with the turnover orders for the purpose of satisfying the Prior Judgment, which remained uncollected. Fogler pointed to evidence of the prior injunction and the existence of the lease executed in violation of the injunction.  Gerdes argued that the lease was forged and fraudulent.

The trial court held Gerdes in contempt of court, and, on March 11, 2005, ordered Gerdes to be confined for an additional eighteen months after March 16, 2005, the expiration of the First Contempt Order, or until Gerdes complied with all turnover orders.  The record does not indicate whether Gerdes ever complied with the turnover orders; however, Gerdes was released following a decision by the Thirteenth Court of Appeals that the Second Contempt Order was void.^[3] By the time the Thirteenth Court of Appeals declared the Second Contempt Order void and ordered Gerdes released, Gerdes had spent an additional ten months and fifteen days in confinement beyond the initial eighteen-month contempt period.

The Claims Asserted in this Case

Upon his release, Gerdes sued Kennamer and Fogler seeking damages for abuse of process, malicious prosecution, and false imprisonment. All of these claims were based on Kennamer=s motion for contempt, which culminated in the Second Contempt Order.  At the heart of each claim was Gerdes=s allegation that he was imprisoned for a period of ten months and fifteen days longer than the law permits. 

Kennamer and Fogler filed traditional and no-evidence motions for summary judgment.  They raised a defense of privilege, claiming immunity from liability because their conduct, in filing the motion for contempt, arose out of judicial proceedings.  In support of their traditional summary judgment motion, they attached, among other things, the turnover orders, the motion for order of contempt, the trial court=s contempt orders, and depositions of both Gerdes and Fogler.  Gerdes, in response to both motions, submitted evidence, including the trial transcript from the contempt hearing, depositions from Fogler and Kennamer, the Thirteenth Court of Appeals= opinion and judgment voiding the Second Contempt Order, Kennamer=s response to Gerdes=s writ to the Thirteenth Court of Appeals, and Gerdes=s sworn affidavit attesting that the lease is fraudulent.  The trial court granted both motions for summary judgment and ordered that Gerdes take nothing on his claims.

II.  Issues Presented

In two issues, Gerdes challenges the summary judgment.  In his first issue, Gerdes complains the trial court erred in granting the no-evidence summary-judgment motion, arguing that he proffered more than a scintilla of evidence for each element of each claim alleged.  In his second issue, Gerdes complains the trial court erred in granting the appellees= traditional summary-judgment motion, claiming that, as matter of law, Kennamer and Fogler were not entitled to summary judgment under a defense of judicial privilege because they misrepresented the facts and law.  Gerdes also claims that material issues of fact remain as to his claims for abuse of process and false imprisonment.

III.  Standards of Review

In a traditional motion for summary judgment, if the movant=s motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment.  M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam).  In reviewing a no-evidence motion for summary judgment, we ascertain whether the nonmovant pointed out summary-judgment evidence raising a genuine issue of fact as to the essential elements attacked in the no-evidence motion.  Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206B08 (Tex. 2002).  In our de novo review of a trial court=s summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).  The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence.  Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007) (per curiam). When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). 

IV.  Analysis

False Imprisonment

Gerdes argues that he offered more than a scintilla of evidence as to each of the elements of his false-imprisonment claim.  To establish a claim for false imprisonment, a claimant must show:  (1) willful detention, (2) without consent, and (3)  without authority of law.  Bossin v. Towber, 894 S.W.2d 25, 29 (Tex. App.CHouston [14th Dist.] 1994, writ denied).  A person who directs, requests, or participates in the detention may be liable.  Id.

Notably, the Thirteenth Court of Appeals determined that the Second Contempt Order was void because in it the trial court essentially re-punished Gerdes=s prior acts of contempt and ordered him confined for a period that exceeded the maximum confinement period permitted under statute.  See Ex parte Gerdes, 228 S.W.3d at 713, 714.  Although liability on a false-imprisonment claim may turn on the nature and degree of a person=s participation in the detention, to the degree that Gerdes asserts Fogler and Kennamer Adirected@ or Arequested@ the trial court to order detention, Aa complainant should not be held liable for any errors made by a magistrate in ordering the detention.@  See Bossin, 894 S.W.2d at 32.  Instead, the extent and nature of the attorney=s participation in the detention is viewed as a critical factor for determining whether to impose liability against the attorney (Fogler) for false imprisonment.  See id.  AOnly if the attorney is the active and procuring cause of the detention, and misrepresents the facts or the law, should he or she be held liable.@  Id.

Gerdes contends that Fogler made misrepresentations of fact and law to the trial court in procuring the Second Contempt Order.  The record reflects that, at the contempt hearing, Fogler explained that he filed the motion for contempt on Kennamer=s behalf because the lease, by its very existence, constituted a violation of the trial court=s injunction. According to Fogler, the injunction was the only mechanism to preserve the property until satisfaction of the Prior Judgment, and was to be lifted upon Gerdes=s compliance with the turnover orders.  The motion for contempt contemplated that Gerdes would continue to Ahold the keys to his own prison,@ and would warrant release from confinement by his compliance with the turnover orders.

As evidence, Fogler offered the photocopy of the lease that purportedly contained Gerdes=s son=s signature, the son=s affidavit denying knowledge of the lease, and the son=s testimony from the Prior Suit explaining that Gerdes often asked his son to sign documents pertaining to the property.  By sworn affidavit, Fogler indicated that the facts, as contained within the contempt motion, were within his personal knowledge.  Fogler, through his own testimony at the hearing, when cross-examined by Gerdes, indicated that his connection to the lease was via his client, Kennamer and his representation of him in the Prior Suit.  Fogler denied knowledge of the execution of the lease and presumed that the lease, on its face, is what it purported to beCa lease covering the Mexico property.  Although Gerdes claimed the lease was fraudulent or forged, Gerdes did not deny the existence of the lease, and, in fact, in cross-examination, asked Fogler to confirm the metes and bounds to verify the lease=s connection with the disputed property.  Fogler explained that in connection with Kennamer=s  efforts to satisfy the Prior Judgment, the injunction served to preserve the property until Gerdes complied with the turnover orders.  According to Fogler, the lease, on its face, was executed in violation of the injunction, prevented satisfaction of the Prior Judgment, and permitted Gerdes or those affiliated with him to circumvent the turnover orders and thus collection of the Prior Judgment.  We conclude that Fogler did not misrepresent the facts surrounding the execution of the lease.

Gerdes presented the transcript from the contempt hearing in which Gerdes contends that, in procuring the Second Contempt Order, Fogler misrepresented the law to the trial court.^[4] In Fogler=s argument to the trial court, he explained that the maximum amount of time a person can be held in civil contempt for refusing to obey a court order is eighteen months.  Gerdes asserts that Fogler admitted his familiarity with the law, which allows for a maximum incarceration period of eighteen months for civil confinement, yet Fogler drafted the Second Contempt Order Aunder the >theory= that is was for punitive contempt.@

Gerdes cannot establish liability based on the actions of Fogler and Kennamer in seeking his confinement for criminal contempt.  The trial court ordered Gerdes=s confinement under civil contempt, which was inconsistent with the relief sought.  Ex Parte Gerdes, 228 S.W.3d at 712B713.  The Second Contempt Order was not void because Fogler pursued criminal contempt; it was void because the civil contempt order re-punished Gerdes for a prior act of contempt when an order for civil contempt could not exceed the maximum period permitted.  See id. at 713B14.  Fogler Ashould not be held liable for any errors made by a magistrate in ordering the detention.@  See Bossin, 894 S.W.2d at 32.

Gerdes faults Fogler for representing to the trial court at the contempt hearing that there was no case law interpreting Texas Government Code section 21.002(h), which provides for a maximum of eighteen months= incarceration for civil contempt.  Gerdes asserts that Fogler next argued to the Thirteenth Court of Appeals that In re Surgent, 133 S.W.3d 744 (Tex. App.CCorpus Christi 2003, no pet.), was Aat the center of the parties= dispute.@^[5]

Gerdes=s complaints lack merit.  As reflected in the record, any purported statements about the applicability of In re Surgent were not misrepresentations of law in light of the factual differences between that case and the case at hand.  The case at hand involved two separate orders for contempt, one involving the turnover orders and the other involving an injunction.  See Ex parte Gerdes, 228 S.W.3d at 712 (AThe act at issue, that is, Gerdes=s failure to comply with the trial court=s injunction . . . constitutes a completed act of disobedience.@).  Neither subsection 21.002(h) nor In re Surgent prohibits incarceration under a second contempt order for violation of a second, separate order.  See In re Surgent, 133 S.W.3d at 751 (providing that multiple civil contempt orders provided for potentially unlimited incarceration for a relator=s failure to comply with a single discovery order, and, therefore, the incarceration was in excess of the limits set by Texas Government Code subsection 21.002(h)); Tex. Gov=t Code Ann. ' 21.002(h) (Vernon 2004) (providing for a maximum of eighteen months= incarceration for civil contempt); see also Ex Parte Gerdes, 228 S.W.3d at 712B13 (reasoning that the trial court, in ordering civil contempt, could not punish Gerdes a second time for failing to comply with the turnover orders).  We determine that Fogler did not make misrepresentations of law to the trial court in procuring the Second Contempt Order.  We, therefore, conclude as a matter of law that Fogler is not liable to Gerdes for false imprisonment.^[6] See Bossin, 894 S.W.2d at 32.

Furthermore, the derivative liability of Kennamer, Fogler=s client, to Gerdes is contingent on Fogler=s liability under the principles of respondeat superior.  See id. at 33.  Because we conclude Fogler is not liable to Gerdes for false imprisonment, Kennamer cannot be held liable either.  See id.  Accordingly, the trial court did not err in granting summary judgment on Gerdes= false-imprisonment claim.  See id.

Abuse of Process

Gerdes argues that he offered more than a scintilla of evidence for each element of his abuse-of-process claim and he contends that issues of material fact remain.  The elements of a claim for abuse of process are (1) the defendant made an illegal, improper or perverted use of the process that is neither warranted nor authorized by the process; (2) the defendant had an ulterior motive or purpose in exercising the improper use of process; and (3) the plaintiff incurred damage as the result of the illegal act.  Id.

An abuse-of-process claim involves the use of a process, such as a writ, that has been utilized to achieve an end beyond the purview of what the process was designed to accomplish or to compel a party to do a collateral thing that otherwise he could not be compelled to do.  Id.  For abuse of process to be established, the process must have been used improperly after issuance.  Id.  Even if the process is accompanied by an ulterior motive, if the process is used for the purpose for which it was intended, no abuse of process occurs.  Id.  If the claimant alleges that wrongful intent or malice caused the process to be issued initially, then the claim, instead, is a claim for malicious prosecution.  Id.

Gerdes complains that the contempt process, as used by Fogler in filing the motion for contempt, was not used as it was intended because Fogler allegedly filed a motion for criminal contempt for Gerdes=s violation of the injunction to compel Gerdes=s compliance with the turnover orders. Gerdes, pointing to Fogler=s arguments at the contempt hearing, claims that Fogler knew Gerdes already was incarcerated for civil contempt by his non-compliance.  We reject Gerdes=s contentions for two reasons.  First, the process that caused Gerdes=s confinement was the trial court=s contempt order, for which Aa complainant should not be held liable for any errors made by a magistrate in ordering the detention.@  See id. at 32.  Second, Gerdes has not presented evidence that Fogler or Kennamer used the Second Contempt Order in any manner other than as the trial court prescribed.  See id. at 34 (emphasizing improper use of the process).  For this reason, Gerdes cannot prevail on his abuse-of-process claim against Fogler.

Because we conclude Gerdes has not demonstrated Fogler=s liablity for abuse of process, including any purported wrongful litigation conduct, Kennamer cannot be held liable either.  See Bossin, 894 S.W.2d at 33 (applying proposition to false-imprisonment claim).  Therefore, the trial court did not err in granting summary judgment in favor of Fogler and Kennamer on Gerdes=s claim for abuse of process.

Malicious Prosecution

Gerdes contends that he presented more than a scintilla of evidence on his malicious-prosecution claim.  Malicious prosecution involves procuring the arrest or prosecution of the plaintiff under lawful process, but with malice and without probable cause.  Dallas Joint Stock Land Bank of Dallas v. Britton, 134 Tex. 529, 537, 135 S.W.2d 981, 985 (1940); see also Reicheneder v. Skaggs Drug Ctr., 421 F.2d 307, 310 (5th Cir. 1970) (quoting Britton for distinguishing malicious prosecution, which stems from imprisonment under lawful process, from false imprisonment, which stems from imprisonment without lawful authority); Gonzalez v. City of El Paso, No. EP-05-CA-447-FM, 2006 WL 2827259, *5 (W.D. Tex. Sept. 27, 2006) (same). However, if a contempt order is void, then malicious prosecution is not a remedy.  Britton, 134 Tex. at 537, 135 S.W.2d at 985.

We find Britton to be instructive.  As in this case, the contempt order in Britton was void.  See id. (involving an order of contempt that was void for want of jurisdiction).  Because the process in this case was void, as in Britton, a claim for malicious prosecution is not a remedy.  See id. (AIn our research we have been unable to find any case in any court where malicious prosecution has been sustained as a result of a contempt action.  Plaintiff seems to rest his whole case upon the fact that the Supreme Court held the contempt order void. The process being void, malicious prosecution is not a remedy.@) (emphasis in original).  In support of their traditional motion for summary judgment, appellees cited Britton with respect to Gerdes=s claim for malicious prosecution on the element of probable cause.  The trial court did not commit error in granting summary judgment on these grounds.^[7]

V.  Conclusion

The summary judgment record contains no evidence to support one or more of the essential elements of Gerdes=s claims for false imprisonment, abuse of process, and malicious prosecution.  Therefore, the trial court did not err in granting summary judgment in favor of Fogler and Kennamer on these claims.  Accordingly, we overrule all issues raised on appeal and affirm the trial court=s judgment.

/s/      Kem Thompson Frost

Justice

Panel consists of Justices Frost, Brown, and Boyce.

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^[1]  In their briefing, the parties do not distinguish between Fogler and McDade Fogler, LLP regarding the issues in question. Therefore, for simplicity, we refer throughout this opinion to Fogler, although the same analysis applies to McDade Fogler, LLP.

^[2]  Fogler also presented a transcript of the son=s testimony in the Prior Suit in which the son explained his father often asked him to sign documents in connection with the property even though the son did not understand the documents written in Spanish.

^[3]  The appellate court determined that the Second Contempt Order was imposed as a coercive civil sanction against Gerdes in requiring his compliance with the turnover orders.  See Ex parte Gerdes, 228 S.W.3d 708, 712B13 (Tex. App.CCorpus Christi 2006, no pet.).  The appellate court concluded that the Second Contempt Order, as imposed, was inconsistent with the relief requested: criminal contempt.  See id. at 712, 713.  In the order, the trial court attempted to impose a second coercive civil sanction against Gerdes by attempting to force his compliance with the turnover orders, rather than impose a sanction for his encumbrance on the disputed property.  See id.  The appellate court ordered Gerdes to be released from jail under the Second Contempt Order, reasoning that, in its civil order, the trial court attempted to re-punish Gerdes for a prior act of contempt, and concluding that a civil contempt order could not exceed the maximum confinement period permitted.  Id. at 713, 714.

^[4]  Gerdes relies upon Fogler=s asserted misrepresentations to establish false imprisonment, and also to establish the malice element of Gerdes=s malicious prosecution claim  We address malicious prosecution below.

^[5]  In his appellate brief, Gerdes does not provide record citation of this statement he claims Fogler made regarding the applicability of In re Surgent.  Our own independent review of the record evidence does not reveal whether Fogler made this statement, although it appears this statement may have been made in Fogler=s AResponse to a Supplement to the Writ of Habeas Corpus@ to the Thirteenth Court of Appeals, which is not included in our appellate record. However, in our review of the record, we found the following statements at an October 17, 2005 hearing:  AI don=t believe that=s what the law is.  I don=t believe they have any case[s] that say that.  The statute is very new.  I=m not aware of any cases that interpret it that way. It=s our interpretation and what we=re here today on is to seek an order of contempt on a new order that the Court has never heard before for which Mr. Gerdes has never been held in contempt for.@  Although the record does not reflect who spoke these words, we presume Fogler made these statements.  Following these statements, Gerdes=s attorney tendered the case of In re Surgent for Fogler=s review; however, the record does not contain a transcript for the rest of the hearing.

^[6]  Likewise, because we conclude Fogler did not misrepresent either the facts or the law to the trial court, we do not reach the merits of Gerdes=s argument that the appellees were not entitled to summary judgment based on a defense of judicial privilege with respect to the alleged misrepresentations.

^[7]  Because disposition of this issue favors Fogler, we do not reach the merits of Fogler=s conditional cross-issue in which he contends that the trial court should not have excluded an affidavit in which Fogler=s expert discussed the legal effect of the lease.