in Re: Tony R. Saad ( 2015 )

ACCEPTED
05-15-00104-CV
FIFTH COURT OF APPEALS
DALLAS, TEXAS
2/6/2015 10:14:43 AM
LISA MATZ
CLERK
NO. 05‐15‐00104‐CV
FILED IN
5th COURT OF APPEALS
IN THE COURT OF APPEALS DALLAS, TEXAS
FOR THE FIFTH DISTRICT OF TEXAS 2/6/2015 10:14:43 AM
DALLAS, TEXAS LISA MATZ
Clerk
In re TONY R. SAAD
FROM 254TH DISTRICT COURT
DALLAS COUNTY, TEXAS
HON. JAMES MARTIN PRESIDING
CAUSE NO. DF‐14‐14203
REPLY IN SUPPORT OF PETITION FOR WRIT OF MANDAMUS
BY RELATOR TONY R. SAAD
Jeffrey W. Hellberg, Jr.
Texas State Bar No. 00796738
jeff.hellberg@wickphillips.com
Darla J. Gabbitas
Texas State Bar No. 24089458
darla.gabbitas@wickphillips.com
WICK PHILLIPS GOULD MARTIN, LLP
3131 McKinney Ave., Suite 100
Dallas, Texas 75204
(214) 692‐6200 (office)
(214) 692‐6255 (facsimile)
ATTORNEYS FOR RELATOR
TONY R. SAAD
I. INDEX
I.  INDEX .................................................................................................................................. i
II.  TABLE OF CASES ............................................................................................................. ii
III.  PRELIMINARY STATEMENT ......................................................................................... 1
IV.  ARGUMENT AND AUTHORITIES .................................................................................. 2
A.  The Award Did Not Make Anderson A Party of Record. ................................................. 3
B.  Equity Cannot Extend A Trial Court’s Plenary Jurisdiction. ........................................... 5
C.  Reframing Anderson’s Post‐Decree Motions Does Not Provide the Required Vacation
of the Decree Within Thirty Days. ..................................................................................... 7
1.   It is Not Necessary to View Anderson’s Post‐Decree Motions as Motions To
Modify The Judgment Under Rule 329b(g). .............................................................. 7
2.  Regardless of a Formal Post‐Decree Intervention, the Decree Was Not Set Aside
Within Thirty Days. ..................................................................................................... 8
V.  CONCLUSION .................................................................................................................. 11
VI.  PRAYER ............................................................................................................................ 12
VII.  CERTIFICATE OF COMPLIANCE ................................................................................. 13
VIII.  VERIFICATION................................................................................................................ 14
IX.  CERTIFICATE OF SERVICE .......................................................................................... 15
i
II. TABLE OF CASES
Cases Page
Daniels v. Pecan Valley Ranch, Inc.,
831 S.W.2d 372, 382 (Tex. App.—San Antonio 1992, writ denied) .................. 5
First Alief Bank v. White, 682 S.W.2d 251 (Tex. 1982) ............................................... 11
In re Florence, 377 S.W.3d 837 (Tex. App.—Dallas 2012, orig. proceeding) ....... 5
In the Interest of H.G.,
267 S.W.3d 120 (Tex. App.—San Antonio 2008, pet. denied) ........................... 4,5
Malone v. Hampton,
182 S.W.3d 465 (Tex. App.—Dallas 2006, no pet.) ........................................ passim
Serna v. Webster, 908 S.W.2d 487 (Tex. App.—San Antonio 1995) .................... 3,9
State and County Mut. Fire Ins. v. Kelly,
915 S.W.2d 224 (Tex.App.—Austin 1996, no writ) ................................................. 2
Texas Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31 (Tex. 2008) ................................... 8,9
Other Authorities
TEX. FAM. CODE § 106.002 ........................................................................................................ 1,3
Rules
Tex. R. Civ. P. 329b(d) ................................................................................................................. 2
-ii-
III. PRELIMINARY STATEMENT
It is undisputed that Anderson1 did not file a Motion to Intervene prior
to October 2, 2014, and the trial court did not set aside the Final Decree before
November 2, 2014. Therefore, Anderson’s Motion for New Trial did not
extend the trial court’s plenary jurisdiction, and the trial court’s ruling on his
Motion for New Trial is void. Anderson does not dispute the plain meaning of
the law and does not address the seminal Malone decision. Instead, Anderson
suggests that he did not need to intervene because the pre‐Decree attorneys’
fees award2 made him a party. This argument is not supported by Tex. Fam.
Code section 106.002. Alternatively, Anderson contends Tony invited the
error and is estopped from raising the failure to intervene. Anderson is wrong
because equity does not extend plenary jurisdiction. Anderson’s remaining
arguments that his post‐Decree pleadings3 are sufficient to extend plenary
jurisdiction fail because the trial court did not set aside the judgment within
thirty days.
1
Unless otherwise noted, terms have the same meaning defined in the Petition for
Writ of Mandamus by Relator, Tony Saad (“Writ”).
2 See Associate Judge’s Report (Divorce), Response at Appendix 3.
3 See Motion to Render Judgment on Attorney’s Fees, Response at Appendix 9; First
Amended Motion to Render Judgment on Attorney’s Fees, Response at Appendix 10; and
Motion for Severance, Response at Appendix 11.
1
IV. ARGUMENT AND AUTHORITIES
A party’s motion for new trial extends a trial court’s plenary
jurisdiction, while a non‐party’s Motion for New Trial does not.4 Moreover, a
post‐decree intervention alone is insufficient to extend plenary jurisdiction.
The trial court must also set aside the judgment within thirty days.5 These
rules apply to the facts in this case.
Anderson’s Response to Relator’s Petition for Writ of Mandamus
(“Response”) ignores the law and fails to raise a dispositive issue for at least
three reasons: 1) the Associate Judge’s temporary award of Shereen’s
attorneys’ fees (“Award”)6 did not make Anderson a party; 2) equity cannot
extend plenary jurisdiction; and 3) Anderson did not have the trial court set
aside the Final Decree within thirty days. Accordingly, Anderson’s post‐
Decree, non‐party Motion for New Trial did not extend plenary jurisdiction,
and the trial court’s grant of that motion more than ninety days after entry of
the Final Decree is void.
4 See Tex. R. Civ. P. 329b(d); Malone v. Hampton, 182 S.W.3d 465, 46 (Tex. App.—
Dallas 2006, no pet.); State and County Mut. Fire Ins. v. Kelly, 915 S.W.2d 224, 227
(Tex.App.—Austin 1996, no writ).
5 See Malone, 182 S.W.3d at 468.
6 See Associate Judge’s Report (Divorce), Response at Appendix 3.
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A. The Award Did Not Make Anderson A Party of Record.
The Award, rendered in default, temporarily ordered the “Father to pay
Mother’s attorney’s fees . . . directly to Mother’s attorneys.”7 While Texas law
authorizes an attorney to enforce an award of attorneys’ fees in his own name,
such enforcement does not make the attorney a party or a de facto
intervenor.8 Anderson became Tony’s creditor by statutory privilege, but he
remained a non‐party to the litigation dissolving the Saads’ marriage and
addressing the interests of their children.9 Anderson’s suggestion that he
became a party litigant, and thus all domestic law attorneys with interim fee
awards become party litigants, does not logically follow the clear statutory
language. Indeed, such a result would create conflicts of interest in some
cases.
An intervention is the preferred method for attorneys to collect their
fees,10 however, Anderson’s proposed reading of the statute would not require
7 See Response at Appendix 3.
8 See TEX. FAM. CODE § 106.002 (“(a) In a suit under this title, the court may render
judgment for reasonable attorney's fees and expenses and order the judgment and post
judgment interest to be paid directly to an attorney. (b) A judgment for attorney's fees and
expenses may be enforced in the attorney's name by any means available for the
enforcement of a judgment for debt.”).
9 See id.
10
See Serna v. Webster, 908 S.W.2d 487, 491 (Tex. App.—San Antonio 1995) (“A plea
in intervention in the principle suit is an appropriate vehicle by which a discharged
attorney may recover fees for services rendered.”)
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any attorney with a fee award to file an intervention. Had the legislature
intended to create instant conflicts of interest between lawyers and their
clients and obviate the need for attorneys to intervene, the statute would be
clearly worded to express such intentions.
Anderson’s contention that he did not need to file a petition for
intervention is supported by one case, In the Interest of H.G.,11 a case that
neither holds that an attorney becomes a party following an award of
attorneys’ fees nor holds that Anderson did not need to intervene under the
present facts.12 In the Interest of H.G. rejected a set of grandparents’ attempts
to intervene and modify the adjudicated parent‐child relationship of their
biological grandchildren with the adoptive parents.13 The case does not
address an attorney’s fee award and, importantly, the grandparents filed a
petition to intervene as the procedural vehicle through which they attempted
to secure their alleged rights.14 The case is inapposite to the propositions
Anderson cited it to support. Without support, Anderson’s claims that his fee
award “[is] better than a mere motion for intervention” should be rejected.15
11 See In the Interest of H.G., 267 S.W.3d 120 (Tex. App.—San Antonio 2008, pet.
denied).
12 See id. at 126. 13 See id. at 122‐23. 14 See id.
15 See Response at p. 1.
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B. Equity Cannot Extend A Trial Court’s Plenary Jurisdiction.
In the Interest of H.G. also addresses equity and equitable estoppel, and
holds that equity cannot confer jurisdiction where it does not exist.16 A trial
court’s orders issued without subject matter jurisdiction are void.17 Thus,
Anderson’s argument that Tony invited the error and cannot assert the court’s
lack of plenary jurisdiction is incorrect.
Factually, Tony did not invite any error. First, Tony did not request the
court make rulings following the termination of its plenary jurisdiction;
therefore, Anderson’s reliance on Daniels is misguided.18 In Daniels, the
plaintiff moved for a new trial, and then, on appeal, the same plaintiff
complained of the Court’s error in granting the requested new trial.19 Here,
Tony did not submit any post‐trial motions, thus, he never invited the Court to
exceed its plenary jurisdiction.20
16 See In the Interest of H.G., 267 S.W.3d at 124‐25 (addressing standing as a
component of subject matter jurisdiction the court said, “while equity may estop a party
from relying on a mere statutory bar to recovery, it cannot confer jurisdiction where none
exists.”).
17 See In re Florence, 377 S.W.3d 837, 839 (Tex. App.—Dallas 2012, orig. proceeding).
18 See Daniels v. Pecan Valley Ranch, Inc., 831 S.W.2d 372, 382 (Tex. App.—San Antonio
1992, writ denied).
19 See id.
20 Daniels does not hold that the doctrine of invited error restores a Court’s plenary
power after it has been divested of jurisdiction. Id.
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In addition, Tony has clean hands and equity favors him. Anderson
invented Tony’s involvement in a “secret” conspiracy.21 Anderson’s
complaints about his client’s lack of communication are irrelevant to Tony, an
adverse party. Despite the claim of secrecy, Anderson’s attorney‐client
communication dated October 2, 2014, indicates that his firm knew Shereen
had a new attorney, knew the new attorney had drafted a Final Decree, and
knew that Shereen might have the Final Decree entered.22 Anderson further
claims not to have withdrawn from the litigation,23 but he attached a copy of
the Order allowing him to withdraw signed on October 22, nine days before he
filed his Motion for New Trial.24 Anderson’s claims of a “secret” divorce
mischaracterize his actual knowledge. There is not a scintilla of evidence that
Tony “secretly obtained a divorce.” Anderson’s issues with Shereen and her
new counsel were addressed by the trial court.25 Tony was not involved in
these issues. Thus, Anderson’s allegations are insufficient to create an issue
where none actually exists.
21 See Response at p. 7.
22 See Response at Appendix 7.
23 See Response at p. 8.
24 See Response at Appendix 15.
25 See Response at Appendix 13, p. 2.
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Accordingly, even if equity could extend jurisdiction—which it cannot—
an extension is not warranted in this case.
C. Reframing Anderson’s Post‐Decree Motions Does Not Provide the
Required Vacation of the Decree Within Thirty Days.
Anderson’s final two arguments are that his post‐Decree motions: 1)
sought a substantive change and were motions to modify the judgment; and 2)
should be viewed as interventions. Both arguments fail in light of the
requirement that the trial court set aside the judgment within the thirty‐day
window of its plenary power.26
1. It is Not Necessary to View Anderson’s Post‐Decree
Motions as Motions To Modify The Judgment Under Rule
329b(g).
Anderson asks the Court to view his post‐Decree Motions under Rule
329b(g) as proper attempts to modify the Judgment, thus, extending the trial
court’s plenary jurisdiction. However, the argument is unnecessary in light of
Anderson’s Motion for New Trial. If Anderson were a party, his Motion for
New Trial would have extended the trial court’s plenary jurisdiction without
reframing his other post‐Decree Motions. Anderson provides no authority
that a non‐party’s 329b(g) motion would extend plenary jurisdiction.
Fundamentally, the argument does not change the issue—Anderson was not a
26 See Malone v. Hampton, 182 S.W.3d 465, 46 (Tex. App.—Dallas 2006, no pet.).
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party, and neither his Motion for New Trial nor his post‐Decree Motions
extended the court’s jurisdiction.
2. Regardless of a Formal Post‐Decree Intervention, the
Decree Was Not Set Aside Within Thirty Days.
i. Anderson Is Not Shereen’s Subrogee.
Anderson’s suggestion that he should be treated as if he were a
subrogee of his client is in error.27 Anderson did not assert a subrogation
interest and no statute provides him with a subrogated interest in his client’s
recovery; therefore, Ledbetter’s holding that a statutory subrogee had a right
to intervene in a worker’s litigation does not support Anderson’s argument.28
In Ledbetter, initially the issue was one of timing; the subrogee moved to
intervene after the plaintiff, who had previously represented the subrogee’s
interest, filed a non‐suit and asked the court to award the subrogee nothing.29
The timing issue was withdrawn before appeal.30 The rule in the case,
however, provided that the subrogee, whose interests were adequately
represented and then suddenly abandoned, could still intervene after showing
27 See Malone, 182 S.W.3d at 468 (“[A] plea in intervention comes too late if filed after
judgment and may not be considered unless and until the judgment has been set aside.”)
(Citation omitted); see also Response at p. 9.
28 See Texas Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31 (Tex. 2008).
29 See Ledbetter, 251 S.W. 3d at 36.
30 See id. at 37. -8-
that there is neither unnecessary delay nor prejudice to existing parties.31 The
rule is narrowly tailored to subrogees.32 Neither Ledbetter nor cases citing
Ledbetter have extended the holding beyond that context. Four important
points prevent applying this rule to this case: 1) Anderson was a creditor, not
a subrogee to his client’s recovery; 2) he did not intervene post‐trial, but
instead he filed other motions and withdrew as counsel; 3) he failed to
demonstrate that his actions would not cause unnecessary delay or prejudice;
and 4) regardless of a post‐Decree intervention, the Decree was not set aside
within thirty days of its issuance.
ii. Anderson’s post‐Decree Pleadings are not Interventions.
Serna does not cure Anderson’s failure to properly intervene.33 Serna
addressed pre‐judgment pleadings in a personal injury case and interpreted a
Notice of Lawyer’s Lien as an intervention.34 Serna does not hold that, outside
the contingent fee situation, post‐Decree pleadings can be re‐interpreted to
create plenary jurisdiction where none exists.
31 See id. at 36. 32 See id. (“But when a subrogee's interest has been adequately represented and then
suddenly abandoned by someone else, it can intervene . . .”); id. (“a party has an absolute
right to nonsuit their own claims, but not someone else’s claim they are trying to avoid.”).
33 See Serna v. Webster, 908 S.W.2d 487, 491 (Tex. App.—San Antonio 1995) (“[A]n
intervention must be timely filed; in any case, before the judgment.”).
34 See id.
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iii. There is no Exception to the Requirement That the Court
Set Aside the Final Decree Within Thirty Days.
Anderson suggests that this case fits into numerous exceptions;
however, none of his citations to non‐domestic decisions squarely address the
issue currently before this Court. Malone35 squarely addresses the facts, and
there is no factual dispute the Saad’s Decree was not set aside within thirty
days of its issuance.
Malone addressed an attorney’s fee dispute in domestic litigation.36
Malone represented a party but moved to withdraw after his client entered
into an agreement with her former spouse without Malone’s knowledge.37
Malone withdrew, intervened after the final judgment, and filed a motion for
new trial.38 The former spouse of Malone’s client sought sanctions for
Malone’s Motion for New Trial.39 Those sanctions were awarded more than
thirty days after the final judgment.40 The appellate court overturned the
sanction award because the trial court lacked plenary jurisdiction at the time
35 See Malone, 182 S.W.3d 465.
36 See Malone, 182 S.W.3d at 467‐68.
37 See id.
38 See id.
39
See id.
40 See id.
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of the award.41 The Malone court applied Texas Supreme Court law and held
that a non‐party may intervene post judgment, but only where the Decree is
set aside within the first thirty days.42 Therefore, Malone’s intervention and
Motion for New Trial had not extended the trial court’s plenary jurisdiction
because the Decree had not been set aside within thirty days.43
Here, Anderson, a non‐party just like Malone, complains that his client
acted to conclude the litigation without him. After the Final Decree, Anderson
withdrew as counsel and filed a Motion for New Trial. The Malone and Saad
facts are almost identical; the cases should have an identical outcome.
Anderson’s attempt to extend the trial court’s plenary jurisdiction was
unsuccessful because he did not intervene (before or) after the Decree and did
not have the Decree set aside within thirty days. Therefore, the trial court’s
rulings that followed the expiration of its plenary jurisdiction are void.
V. CONCLUSION
Anderson’s arguments ask the Court to layer unsupported exception
upon unsupported exception, and require the Court to ignore both the long
standing principle that intervention is not permitted after a final judgment,
41 See id. at 468. 42 See id. (citing First Alief Bank v. White, 682 S.W.2d 251, 252 (Tex. 1982) (“[a] plea in
intervention comes too late if filed after judgment and may not be considered unless and
until the judgment has been set aside.”) (emphasis added).
43 See id. at 470. -11-
and that a Decree cannot be set aside after thirty days, certainly not by a non‐
party or as a matter of equity. Anderson’s challenge is without merit.
VI. PRAYER
For the foregoing reasons, and those contained in the Petition for Writ
of Mandamus, Tony R. Saad prays that this Court issue a writ of mandamus
directing the Hon. James Martin to vacate the Rendition dated January 11,
2015, and the Order Granting a New Trial dated January 15, 2015, and grant
him such other and further relief in law and in equity to which he may show
himself to be justly entitled.
Respectfully submitted,
/s/ Darla J. Gabbitas
Jeffrey W. Hellberg, Jr.
Texas State Bar No. 00796738
jeff.hellberg@wickphillips.com
Darla J. Gabbitas
Texas State Bar No. 24089458
darla.gabbitas@wickphillips.com
WICK PHILLIPS GOULD MARTIN, LLP
3131 McKinney Ave., Suite 100
Dallas, Texas 75204
(214) 692‐6200 (office)
(214) 692‐6255 (facsimile)
ATTORNEYS FOR RELATOR
TONY R. SAAD
-12-
VII. CERTIFICATE OF COMPLIANCE
Pursuant to Texas Rules of Appellate Procedure 9.4, I hereby certify
that, absent the caption, identity of parties and counsel, statement regarding
oral argument, table of contents, index of authorities, statement of the case,
statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of
compliance, and appendices, the computer program used to prepare this
document prior to its conversion to portable document format calculates the
number of words in the foregoing reply brief as 2,530.
/s/ Darla J. Gabbitas _
Darla J. Gabbitas
-13-
VII. VERIFICATION
STATE OF TEXAS §
§
COUNTY OF DALLAS §
Before me, the undersigned authority, on this day personally appeared
Darla J. Gabbitas, known to me to be the person whose name is subscribed
hereto, and who, being first duly sworn, upon oath stated that she is the
attorney for Tony R. Saad, that she has reviewed the foregoing Reply In
Support Of Petition For Writ Of Mandamus By Relator Tony R. Saad and
concluded that every factual statement in the reply is supported by competent
evidence.
SUBSCRIBED AND SWORN TO before me on February k_, 2015.
FRANCES WHISLER
Notary Public in and for the State of Texas
-14-
IX. CERTIFICATE OF SERVICE
A true copy of the foregoing Reply In Support Of Petition For Writ Of
Mandamus By Relator Tony R. Saad has been served the following persons by
EFS, on February 6, 2015:
Elizabeth Hunter James Bell
ehunter@qslwm.com Jbell@fflawoffice.com
Cynthia Dunn Friedman Feiger, LLP.
cdunn@qslwm.com 5301 Spring Valley Road, Suite 200
Quilling Selander Lownds Dallas, Texas 75254
Winslett & Moser, P.C.
2001 Bryan Street, Suite 1800 Former Counsel for Tony R. Saad
Dallas, Texas 75201
Jeffrey O. Anderson
Counsel for Tony R. Saad jeff@ondafamilylaw.com
Orsinger, Nelson,
Sam Almasri Downing & Anderson, LLP.
sam@theamlawgroup.com 5950 Sherry Lane, Suite 800
9330 LBJ Freeway, Suite 900 Dallas, Texas 75225
Dallas, Texas 75243
Former Counsel for Shereen Yasin
Counsel for Shereen Yasin Saad Saad and Real Party in Interest
And by hand‐delivery on the Respondent:
The Honorable James Martin
254th Judicial District Court
600 Commerce, Third Floor
Dallas, Texas 75202
RESPONDENT
/s/ Darla J. Gabbitas
Darla J. Gabbitas
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