Richard Alan Haase v. Meissner, Bolte & Partner GBR

Appeal Dismissed and Memorandum Opinion filed June 19, 2012.
In The
Fourteenth Court of Appeals
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NO. 14-11-00114-CV
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RICHARD ALAN HAASE, Appellant
V.
MEISSNER, BOLTE & PARTNER, GBR, Appellee
On Appeal from the 400th District Court
Fort Bend County, Texas
Trial Court Cause No. 08-DCV-167368
MEMORANDUM OPINION
This appeal began as a breach-of-contract case in which a law firm sued a corporate
client for unpaid legal fees. After a shareholder in the client corporation intervened in the
suit, the claims and counterclaims multiplied. The shareholder has attempted to appeal
the trial court’s order striking his plea in intervention and dismissing his counterclaims; in
addition, the shareholder challenges the trial court’s failure to sanction the law firm for
discovery abuse. We conclude, however, that there is no final appealable judgment, and
we accordingly dismiss the appeal for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL BACKGROUND
Richard Alan Haase developed a process for purifying water and licensed his work
to ClearValue, Inc. Through Haase, ClearValue retained the law firm of Golden &
Rhodes, L.L.P. to apply for patents for the invention in thirteen countries. Philip Golden
advised Haase that the legal work would have to be performed by a variety of foreign law
firms in different countries, and that the best way to collect estimates for those legal fees
would be to obtain them directly from the law firms that would be working on the patent
application in each country. Because Haase wanted estimates before this could be done,
Golden estimated the cost for preparing and filing applications in each country, exclusive
of prosecution costs, annuity fees, examination costs, or issue fees. He estimated that the
costs for applying for a patent in Germany would be $3500. ClearValue paid Golden &
Rhodes a retainer of $54,000, and Golden & Rhodes hired various foreign firms to apply
for the patents. As relevant here, Golden & Rhodes hired the law firm of Meissner, Bolte
& Partner, GBR (“Meissner Bolte”) to apply for the patent in Germany. Golden &
Rhodes did not pay the foreign law firms, however, and ultimately returned the retainer to
ClearValue.
ClearValue paid only a part of the fees owed to Meissner Bolte, and Meissner Bolte
sued to recover the remainder of its outstanding fees. The case became complicated when
Haase intervened in the suit, and Meissner Bolte added Haase as a defendant. Haase then
asserted various claims for relief, representing that he asserted some of the claims as an
intervenor, some as a defendant, and some as both. Meissner Bolte responded by
asserting “counterclaims” against Haase. Specifically, the record shows that on May 10,
2010, Meissner Bolte filed both a “Fourth Amended Original Petition for Suit on Written
Contract” and a separate pleading in which it asserted “Plaintiff’s Amended Counterclaim”
2
against Haase. Five months later, Haase filed “Intervener/Defendant’s Third Amended
Petition,” styling some of his allegations as claims by “Intervenor Haase,” some as claims
by “Defendant Haase,” some as claims by “Intervenor/Defendant Haase.” Although he
attempted to assert some claims that belonged to ClearValue and for which he lacked
standing, “Defendant Haase” also asserted counterclaims that, to the extent they exist,
belong to him in his individual capacity, such as his counterclaims for conversion and for
violation of state and federal statutes governing fair debt-collection practices.
On November 5, 2010, the trial court rendered default judgment against ClearValue.
Three days later, the trial court held a final pretrial conference, addressing all outstanding
motions, including Meissner Bolte’s motion to strike “intervenor’s pleadings” on the
grounds that “Intervenor does not meet the requirements of Rule 60 of the Texas Rules of
Civil Procedure and applicable case law.” On the same day, Meissner Bolte filed a
document bearing the title, “Meissner Bolte & Partner’s Non Suit of Richard Haase,” in
which it stated, “Meissner, Bolte & Partner non suits the Fourth Amended Claim and all
Petitions filed against Richard Haase after Richard Haase sued them, but specifically
preserves his answer to Haase’s law suit and his counterclaims against Richard Haase.”
Meissner Bolte did not address “Defendant Haase’s” counterclaims for conversion and for
violations of fair debt-collection-practices statutes, and the firm specifically reserved its
own “counterclaims.”
After a hearing, the trial court signed an order granting Meissner Bolte’s motion to
strike “intervenor’s pleadings.” In the order, the trial court wrote as follows:
The Court finds Intervener Richard Haase has no standing to bring his
cause of action, that claims asserted by Intervener are claims belonging to the
Corporation ClearValue, Inc. In addition, Intervenor’s claims are based
upon legal pleadings filed by [Plaintiff] in response to pleadings filed by
Richard Haase individually as Intervenor.
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Accordingly, the Court dismisses with prejudice Richard Haase’s
case herein.
Haase then filed a notice of appeal and both parties filed appellate briefs.
II. ANALYSIS
As an intermediate appellate court, we “lack jurisdiction to review an interlocutory
order unless a statute specifically authorizes an exception to the general rule, which is that
appeals may only be taken from final judgments.” Qwest Commc’ns Corp. v. AT & T
Corp., 24 S.W.3d 334, 336 (Tex. 2000). When, as here, there has been no conventional
trial on the merits, “an order or judgment is not final for purposes of appeal unless it
actually disposes of every pending claim and party or unless it clearly and unequivocally
states that it finally disposes of all claims and all parties.” Lehmann v. Har-Con Corp., 39
S.W.3d 191, 205 (Tex. 2001). The orders in this case do neither.
Although Meissner Bolte filed a document styled as a “nonsuit,” it did not attempt
to dismiss the entire case, or even to dismiss all of its claims against one party. 1 Instead,
the firm abandoned the causes of action it asserted against Haase in pleadings styled as
petitions, while reserving causes of actions it styled as “counterclaims.” No order of the
trial court purports to dispose of those “counterclaims,” nor does a “nonsuit” affect the
opposing party’s counterclaims for affirmative relief. TEX. R. CIV. P. 162; Austin State
Hosp. v. Graham, 347 S.W.3d 298, 301 (Tex. 2011) (per curiam) (same).
1
Strictly speaking, a plaintiff “dismisses” or “nonsuits” a case, “dismisses” parties, and
“abandons” individual claims or defenses. Compare TEX. R. CIV. P. 162 (“At any time before the plaintiff
has introduced all of his evidence other than rebuttal evidence, the plaintiff may dismiss a case, or take a
non-suit . . . .”) with TEX. R. CIV. P. 163 (“When it will not prejudice another party, the plaintiff may
dismiss his suit as to one or more of several parties who were served with process, or who have
answered . . . .”) and TEX. R. CIV. P. 165 (“A party who abandons any part of his claim or defense, as
contained in the pleadings, may have that fact entered of record, so as to show that the matters therein were
not tried.”). The term “non-suit” accordingly is most commonly used to refer to the voluntary dismissal of
all of a plaintiff’s claims. See C/S Solutions, Inc. v. Energy Maint. Servs. Grp. LLC, 274 S.W.3d 299,
305–06 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (“Strictly speaking, a Rule 162 nonsuit applies to
the dismissal of the entire case.”).
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Meissner Bolte’s counsel suggested in the trial court that striking Haase’s petition in
intervention would eliminate all “counterclaims,” whether filed by Haase or by Meissner
Bolte. This is incorrect. Although Haase entered the lawsuit as an intervenor, Meissner
Bolte then made Haase a defendant, and this changed the dynamics of the suit. Before
Meissner Bolte sued Haase, the firm could have had his pleadings stricken if Haase could
not demonstrate, inter alia, that he had a justiciable interest in the only matter then at issue,
i.e., Meissner Bolte’s claim against ClearValue for outstanding legal fees. See TEX. R.
CIV. P. 60 (“Any party may intervene by filing a pleading, subject to being stricken out by
the court for sufficient cause on the motion of any party); In re Union Carbide Corp., 273
S.W.3d 152, 154–55 (Tex. 2008) (“If any party to the pending suit moves to strike the
intervention, the intervenors have the burden to show a justiciable interest in the pending
suit.”).2 But, once Meissner Bolte made Haase a defendant in his individual capacity,
Haase could assert his own counterclaims against Meissner Bolte even if he had no
justiciable interest in Meissner Bolte’s claims against ClearValue. See TEX. R. CIV. P. 97
(“A pleading may state as a counterclaim any claim against an opposing party whether or
not arising out of the transaction or occurrence that is the subject matter of the opposing
party’s claim.”). Thus, striking Haase’s plea in intervention after he became a defendant
would not affect the “counterclaims” filed by either party.3
2
Even if the intervenor has a justiciable interest in the suit, the trial court could strike the petition in
intervention upon the motion of any party if, for example, the intervention was not necessary to protect the
intervenor’s interest and would complicate the case by an excessively multiplying the issues. See Guar.
Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990).
3
Things became further confused at the hearing on Meissner Bolte’s motion to strike Haase’s
petition in intervention. When the trial court attempted to clarify whether Haase had stated claims other
than those comprising his petition in intervention, counsel for Meissner Bolte stated, “He called himself
intervenor to the last pleading. He says ‘Intervenor wants damages.’” This answer was incomplete,
because Haase identified himself as “Defendant Haase” when referring to those causes of actions he styled
as counterclaims. Even though Haase pointed out to the trial court that he had asserted counterclaims
against Meissner Bolte, the trial court seemed initially to have the impression that Haase asserted a
counterclaim against Meissner Bolte only for filing a frivolous lawsuit against him; thus, the trial court told
Meissner Bolte’s counsel, “[G]et me an order that specifies that the Defendant’s counterclaims for frivolous
lawsuits are denied.” (emphasis added). At Haase’s request, the trial court subsequently filed findings of
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In sum, the orders in this case, whether taken individually or collectively, do not
dispose of all of the parties’ “counterclaims.” See Lehmann, 39 S.W.3d at 205 (“An order
that adjudicates only the plaintiff’s claims against the defendant does not adjudicate a
counterclaim, cross-claim, or third party claim, nor does an order adjudicating claims like
the latter dispose of the plaintiff’s claims.”) We therefore dismiss the appeal for lack
jurisdiction.
/s/ Tracy Christopher
Justice
Panel consists of Justices Boyce, Brown, and Christopher.
fact and conclusions of law, and referred in its legal conclusions to Haase’s claims for negligence, breach of
duty, misrepresentation, and deceptive trade practices. Curiously, however, the trial court did not
specifically mention Haase’s claims for conversion and his allegations that Meissner Bolte violated state
and federal fair debt-collection-practices statutes by suing Haase, in his individual capacity, for
ClearValue’s debt, even though Haase had asserted such claims and had standing to do so. Instead, the
trial court stated in its conclusions of law that “Haase’s claim for defamation had no legal basis”—even
though Haase never asserted such a cause of action against Meissner Bolte.
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