Opinion
No. 05-20-00278-CV
08-11-2020
IN RE GAIL CORDER FISCHER ("A.W.E."), Relator
Original Proceeding from the 254th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-18-11265
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Osborne, and Justice Reichek
Opinion by Justice Osborne
The parties to this original proceeding filed competing lawsuits arising from their disputes about a company they jointly owned while they were married. Relator challenges the trial court's order (1) transferring the suit relator filed in the 68th Judicial District Court to the 254th Judicial District Court and consolidating it with post-divorce proceedings pending there and (2) denying relator's pleas in abatement and to the jurisdiction to those post-divorce proceedings. We grant relator's petition in part and deny it in part.
BACKGROUND
The trial court (the "254th Court") signed the final decree of divorce between relator Gail Corder Fischer and real party in interest Clifford R. Fischer on October 24, 2019. Real party in interest Clifford Fischer & Company (the "Company"), equally owned by Gail and Clifford during their marriage, was a third party defendant in the divorce (the "Divorce Action"). Under the divorce decree, Clifford and Gail each received one-half of the Company's 10,000 shares of stock. The following day, Gail filed an appeal of the divorce decree that is now pending in this Court in case number 05-19-01303-CV.
Although the parties were identified in the divorce proceeding only as "A.W.E." (Gail Corder Fischer) and "D.M.F.N." (Clifford R. Fischer), and many of the relevant documents have been filed under seal, the parties have identified themselves by name in their publicly available petition for writ of mandamus and response. Consequently, for clarity we refer to the parties by their first names. Regarding the sealed materials, we make "every effort to preserve the confidentiality of the information the parties have designated as confidential," see MasterGuard L.P. v. Eco Techs. Int'l, LLC, 441 S.W.3d 367, 371 (Tex. App.—Dallas 2013, no pet.), consistent with our obligation to hand down a public opinion explaining our decisions based on the record. See Kartsotis v. Bloch, 503 S.W.3d 506, 510 (Tex. App.—Dallas 2016, pet. denied) (citing TEX. R. APP. P. 47.1, 47.3 and TEX. GOV'T CODE § 552.022(a)(12) for proposition that opinions are public information).
Shortly thereafter, Gail, Clifford, and the Company filed four additional actions:
1. On October 29, 2019, Clifford filed in the Company's name an original petition and application for injunctive relief in the 254th Court alleging that Gail misappropriated assets in violation of the court's standing order and the divorce decree. Asserting causes of action for breach of fiduciary duty, conversion, civil theft, and other claims, the Company sought damages, exemplary damages, and attorney's fees in addition to equitable and injunctive relief (the "Company's Lawsuit").
2. Later the same day, Gail filed suit in the 68th Judicial District Court (the "68th Court") against Clifford individually and two of the
Company's directors and officers, Ted Uzelec and Larry Teel, alleging breaches of fiduciary duty and other claims relating to their management of the Company ("Gail's Lawsuit"). The Company intervened in Gail's Lawsuit on December 16, 2019.
3. On December 10, 2019, Clifford filed a "Motion for Enforcement of Final Decree of Divorce and Dallas County Standing Order" in the 254th Court, alleging that Gail violated the decree and the standing order by misappropriating assets, removing furnishings and artwork from a residence, and refusing to sign required documents ("Clifford's Enforcement Action").
4. The following day, the Company (again, through Clifford) filed a "Motion and Brief for Order Granting Criminal and Civil Contempt" in the 254th Court, alleging among other complaints Gail's unauthorized withdrawal of funds from the Company's accounts ("Company's Enforcement Action").
The parties entered into agreed temporary injunctions pending appeal on December 18, 2019, in the 254th Court. Next, Gail sought to abate the Company's Lawsuit in the 254th Court and transfer it to the 68th Court, as the court of dominant jurisdiction, to be consolidated with her Lawsuit. The Company responded by filing an emergency application for temporary and permanent injunctive relief in the 68th Court.
After proceedings in both courts and consultation between the presiding judges, the 254th Court heard all of the requests for relief pending in both courts and signed an order on February 12, 2020, (1) denying Gail's plea in abatement and plea to the jurisdiction to the Company's Lawsuit and (2) transferring Gail's Lawsuit to the 254th Court and consolidating it with "Cause No. DF-18-11265" under which the Company's Lawsuit and the Enforcement Actions were filed (the "February 12 Order"). In this proceeding, Gail seeks a writ of mandamus to order the 254th Court to (1) stay or vacate the February 12 Order and (2) grant her pleas in abatement and to the jurisdiction.
Following the hearing, the trial court also signed a temporary injunction order that is the subject of Gail's pending appeal in our case number 05-20-00196-CV. The injunction order is not at issue in this proceeding.
STANDARD FOR MANDAMUS RELIEF
A relator seeking mandamus relief must demonstrate that the trial court clearly abused its discretion and the relator has no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding). "[A] relator need only establish a trial court's abuse of discretion to demonstrate entitlement to mandamus relief with regard to a plea in abatement in a dominant-jurisdiction case." In re J.B. Hunt Transp., Inc., 492 S.W.3d 287, 299-300 (Tex. 2016) (orig. proceeding). "Permitting a case to proceed in the wrong court necessarily costs 'private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.'" Id. at 299 (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d at 136).
APPLICABLE LAW
We note that Gail and Clifford had no minor children whose support or conservatorship was at issue in their divorce. Consequently, the divorce decree addressed only the division of marital property; provisions of the family code governing suits affecting the parent-child relationship are not at issue.
Chapter 9 of the Texas Family Code permits "[a] party affected by a decree of divorce . . . providing for a division of property" to "request enforcement of that decree by filing a suit to enforce as provided by this chapter in the court that rendered the decree." TEX. FAM. CODE § 9.001(a). The court that rendered the decree retains the power to enforce the decree's property division. Id. § 9.002. The court may "render further orders to enforce the division of property made or approved in the decree of divorce" or "to clarify the prior order." Id. § 9.006(a). The court may not, however, "amend, modify, alter, or change the division of property made or approved in the decree of divorce." Id. § 9.007(a). An order that "amends, modifies, alters, or changes the actual, substantive division of property made or approved in a final decree of divorce . . . is beyond the power of the divorce court and is unenforceable." Id. § 9.007(b).
DISCUSSION
1. The parties' arguments
Gail argues that mandamus relief is warranted because:
• the 254th Court lacks jurisdiction over the Company's claims for breach of fiduciary duty, theft, conversion, and money had and received in the Company's Lawsuit;
• Gail's Lawsuit is not identical to the Company's Lawsuit. Gail has asserted claims for breach of fiduciary duty and other torts against Clifford, Uzelec, and Teel that were not tried or adjudicated in the Divorce Action;
• the Company's Lawsuit violates the one final judgment rule (see TEX. R. CIV. P. 301);
• the Company's Lawsuit violates civil procedure rules 37 and 63 by adding parties and amending pleadings long after trial; and
• remedy by appeal is inadequate because it is a waste of judicial resources to proceed with an improperly conducted trial.
Clifford and the Company respond that Gail's request for mandamus relief should be denied because:
• the 254th Court has jurisdiction over all of the claims asserted by all of the parties in both Lawsuits and in the Enforcement Actions and has dominant jurisdiction because the Company's Lawsuit was filed before Gail's Lawsuit;
• the trial court correctly found that there are substantially similar claims asserted in the Company's Lawsuit, Gail's Lawsuit, and the Enforcement Actions, so consolidation was proper to resolve common questions of law or fact;
• Gail's Lawsuit improperly challenges the Company's agreements with Teel and Uzelec because Gail signed an agreed judgment in the Divorce Action that those agreements were valid and enforceable. Gail is attempting to relitigate claims resolved in the Divorce Action that are barred by res judicata and collateral estoppel. She is also forum shopping; and
• there were no violations of civil procedure rules 37, 63, or 301, because the Enforcement Actions were new proceedings brought under family code Chapter 9, not pleading amendments in the Divorce Action, and trial of the Divorce Action had been held and concluded.
2. Enforcement of divorce decree and motion for contempt
We first conclude that the trial court correctly assumed jurisdiction over all of the claims in any of the four actions for enforcement of the divorce decree and for contempt for violations of the decree. Family code sections 9.002 and 9.012 provide that courts rendering divorce decrees retain the power to enforce them. See TEX. FAM. CODE §§ 9.002 (continuing power to enforce); 9.012 (contempt). In the Enforcement Actions, Clifford and the Company alleged that Gail violated specific provisions of the divorce decree and the Dallas County Standing Order that applied to the divorce proceeding. Further, family code section 9.001 expressly permits parties affected by divorce decrees to file "a suit to enforce" in the court that rendered the decree. Id. § 9.001(a).
Consequently, we reject Gail's contention that Clifford's and the Company's requests for enforcement of the divorce decree violate civil procedure rules 37 and 63 regarding joinder of parties and pleading amendments. See TEX. R. CIV. P. 37 (additional parties may not be joined "at a time nor in a manner to unreasonably delay the trial of the case"); 63 (time for filing pleading amendments). Family code Chapter 9 expressly authorizes suits for enforcement after a divorce decree has been rendered. See TEX. FAM. CODE § 9.001. Further, section 9.001(b) provides that suits for enforcement "shall be governed by the Texas Rules of Civil Procedure applicable to the filing of an original lawsuit," not a continuation of the pleadings and timetables applicable to the concluded divorce proceeding. Id. § 9.001(b) (emphasis added); see also id. § 9.001(c) (party "whose rights, duties, powers, or liabilities" may be affected by enforcement suit "is entitled to receive notice by citation"); Allmond v. Loe, Warren, Rosenfield, Kaitcer, Hibbs & Windsor, P.C., No. 2-09-132-CV, 2010 WL 1267786, at *1 (Tex. App.—Fort Worth Apr. 1, 2010, pet. denied) (mem. op.) (suit to enforce decree under Chapter 9 "is the equivalent of a new suit").
We also disagree that orders enforcing the divorce decree, including enforcement by contempt, violate civil procedure rule 301. See TEX. R. CIV. P. 301 (providing in part that only one final judgment shall be rendered in any case); TEX. FAM. CODE §§ 9.001-9.014 (expressly permitting enforcement and contempt orders). Unlike judgments, contempt proceedings "are not concerned with disposing of all claims and parties before the court." In re Office of Atty. Gen. of Tex., 215 S.W.3d 913, 915 (Tex. App.—Fort Worth 2007, orig. proceeding). "[I]nstead, contempt proceedings involve a court's enforcement of its own orders, regardless of the status of the claims between the parties before it." Id. at 915-16. Because a contempt motion does not result in another judgment, it comports with the one judgment rule. See also TEX. FAM. CODE § 9.006(c) (trial court's enforcement order "does not alter or affect the finality of the decree of divorce").
We conclude that Gail has not shown her entitlement to mandamus relief regarding the Company's and Clifford's claims for enforcement of the decree and for contempt under Chapter 9 of the family code. The trial court did not clearly abuse its discretion by the portions of its February 12 Order regarding those claims. See In re Prudential Ins. Co. of Am., 148 S.W.3d at 135-36. We deny Gail's request to order the trial court to abate the Enforcement Actions or any claims in the Company Lawsuit to enforce the divorce decree.
3. Claims regarding management of the Company
Relying on the broad grant of jurisdiction to family district courts in section 24.601 of the government code, Clifford and the Company argue that the 254th Court properly exercised its jurisdiction over the Company Lawsuit and Gail's Lawsuit. See TEX. GOV'T CODE § 24.601(a) ("A family district court has the jurisdiction and power provided for district courts by the constitution and laws of this state. Its jurisdiction is concurrent with that of other district courts in the county in which it is located."). Section 24.601(b) provides that "[a] family district court has primary responsibility for cases involving family law matters. These matters include: . . . (3) divorce and marriage annulment; . . . and (6) husband and wife." Id. § 24.601(b); see also TEX. CONST. art. V, § 7; TEX. GOV'T CODE § 24.431 (creation of 254th District Court providing it "shall give preference to family law matters").
But neither this Court nor the Texas Supreme Court has held that section 24.601 permits a family court under family code Chapter 9 to hear cases involving "issues other than those related to division of a marital estate." Brown v. Fullenweider, 52 S.W.3d 169, 170-71 (Tex. 2001) (per curiam). In Brown, the court held that an attorney may not file a motion under family code Chapter 9 to collect fees for representing a client in a divorce. Id. at 170. The court explained that "the obvious purpose" of family code Chapter 9 "was to provide an expeditious procedure for enforcing and clarifying property divisions in divorce decrees." Id. at 170-71. The court concluded, "Suffice it to say that none [of the provisions relating to Chapter 9 proceedings] contemplates that such proceedings would involve any issues other than those related to the division of a marital estate." Id. at 171; see also Wyde & Assocs., LLC v. Francesconi, No. 05-17-00587-CV, 2018 WL 6273409, at *5 (Tex. App.—Dallas Nov. 30, 2018, pet. denied) (mem. op.) (following Brown and concluding that Chapter 9 did not apply to attorney's claim against his client for fees incurred in a divorce proceeding).
Former section 3.70(a) of the family code was applicable to the trial court's ruling in Brown, but the court noted that the section had been recodified as family code section 9.001(a). See Brown, 52 S.W.3d at 170 n.1.
Similarly, in Solares v. Solares, 232 S.W.3d 873, 877-78 (Tex. App.—Dallas 2007, no pet.), a former wife (Alicia) sued her former husband (George) regarding the transfer of real property awarded to her in the parties' divorce. George argued that the family court granting the divorce had exclusive jurisdiction under family code section 9.001 over Alicia's claims. Id. at 878. He argued that Alicia sued to enforce a deed he was required to execute before entry of the final divorce decree, and Alicia's suit sought a declaration of the parties' rights "under documents signed under the divorce court's orders." Id. We rejected George's arguments, explaining:
George's position is unfounded. Alicia sued for damages for common law fraud and conversion. She sued for damages on a warranty of title in a Deed conveying real estate, a legal instrument distinct from the divorce decree and subject to laws governing conveyances of realty. She sued for a declaration of rights to a tract of real property and
whether a partnership existed under Texas law. Her suit is not one to enforce or clarify the divorce decree.Id.
Although the Company filed its Lawsuit first, there are exceptions to the rule that the court with a first-filed case has dominant jurisdiction and should proceed and later-filed cases should abate. See Perry v. Del Rio, 66 S.W.3d 239, 252 (Tex. 2001) (orig. proceeding). One exception is "when the first court does not have the full matter before it." See id.; see also Farmers Grp. Inc. v. Geter, No. 09-03-404-CV, 2004 WL 2365394, at *8 (Tex. App.—Beaumont Oct. 21, 2004, no pet.) (mem. op.) (no abuse of discretion to deny plea in abatement where first-filed suit did not have the full matter before it). Here, we have concluded that an enforcement action under family code Chapter 9 does not extend to "issues other than those related to division of a marital estate." See Brown, 52 S.W.3d at 170-71. Consequently, the 254th Court "does not have the full matter before it," see Perry, 66 S.W.3d at 252, and the dominant jurisdiction rule does not apply.
Clifford's and the Company's arguments that Gail's claims are barred by res judicata and collateral estoppel do not alter our conclusion that Gail's plea to the jurisdiction and motion to transfer should have been granted. These arguments are not relevant to the question of which court should decide the parties' claims arising from the management of the Company but may be asserted in the proper court after transfer.
We conclude that Gail has shown her entitlement to mandamus relief on the ground that the trial court improperly exercised its jurisdiction over the parties' claims that seek relief other than enforcement of the divorce decree. See J. B. Hunt Transp., Inc., 492 S.W.3d at 299-300; Brown, 52 S.W.3d at 170-71. As we have discussed, Gail's Lawsuit does not seek enforcement of the decree. Similarly, in the Company's Lawsuit, the Company seeks damages and injunctive relief for Gail's alleged breaches of fiduciary duty as an officer of the Company and asserts other claims not relating to enforcement of the divorce decree. For those reasons, we conclude that the trial court abused its discretion by transferring Gail's Lawsuit to the 254th Court and consolidating it with the proceedings seeking enforcement of the decree under family code Chapter 9, and by denying Gail's motions (1) to transfer the Company's and Clifford's claims, other than their claims to enforce the divorce decree, to the 68th Court and (2) to consolidate those claims with Gail's Lawsuit that was then pending there.
CONCLUSION
We grant the petition for mandamus in part and deny it in part. We order the 254th Judicial District Court to vacate the portions of its February 12, 2020 order (1) denying Gail's plea to the jurisdiction and motion to transfer all claims that Gail, the Company, or Clifford have asserted that do not seek enforcement of the divorce decree, and (2) granting transfer and consolidation of "Cause No. DC-19-17340 styled Gail Corder Fischer v. Cliff Fischer et al." with "Cause DF-18-11265 currently pending in the 254th Judicial District Court." We further order the 254th Court to grant Gail's motion to transfer in part and to order transfer of all claims that Gail, the Company, or Clifford have asserted that do not seek enforcement of the divorce decree. A writ will issue only if the trial court fails to comply.
/Leslie Osborne/
LESLIE OSBORNE
JUSTICE 200278F.P05