ROBERT M. FILLMORE

AFFIRM; Opinion issued August 7, 2012

On Appeal from the 14th Judicial District Court

Dallas County, Texas

Trial Court Cause No. 96-06467-A

MEMORANDUM OPINION

Before Justices Morris, Fillmore, and Myers

Opinion By Justice Fillmore

We abated this appeal in 2001 after receiving notice that appellant Baltasar D. Cruz had filed for bankruptcy. We reinstated the appeal on June 21, 2010, after the conclusion of the bankruptcy proceedings. We now consider Cruz's eighteen issues complaining of the trial court's rulings, or in some instances, failures to rule, before and after a previous appeal and remand. We affirm the trial court's judgment.

Background

In February 1994, appellant Baltasar D. Cruz was terminated from his employment as an attorney at the law firm of Schell, Beene & Vaughn, L.L.P. On June 26, 1996, Cruz sued the firm, partners Russell W. Schell, R. Michael Beene, and John K. Vaughn, as well as the firm's administrator Rebecca Fisher, alleging numerous causes of action arising from his termination. On January 8, 1998, the trial court granted summary judgment in favor of appellees. Cruz appealed, and in opinions dated August 5, 1999, and November 4, 1999, the Eastland Court of Appeals affirmed the trial court's judgment in part, and reversed and remanded in part. Cruz v. Schell, Beene, & Vaughn, L.L.P., No. 11-98-00075-CV, 1999 WL 33748017 (Tex. App.-Eastland August 5, 1999, no pet.) (not designated for publication); Cruz v. Schell, Beene & Vaughn, L.L.P., No. 11-98-00075- CV, 1999 WL 33747898 (Tex. App.-Eastland November 4,1999, no pet.) (op. on reh'g) (not designated for publication) (together, the First Appeal). The Eastland Court of Appeals's mandate provided:

This court has inspected the record in this cause and concludes that there is error in the judgment below. Therefore, in accordance with this court's opinion, the judgment of the trial court insofar as it granted summary judgment on the causes of action for intentional infliction of emotional distress and for conversion is reversed and remanded to the trial court. In all other matters, the judgment of the trial court is affirmed.

Additional pretrial proceedings were held in the trial court after remand. On March 12, 2001, the trial court signed an "Amended Order Granting Severance of Plaintiff's Conversion Cause of Action and Establishing Finality of Matters Pending in Cause No. DV 96-06467-A." This appeal followed.

Scope of Trial Court's Jurisdiction

We first address the scope of the trial court's jurisdiction on remand and, consequently, the scope of this appeal. In eighteen issues, Cruz complains of the trial court's rulings and failures to rule on numerous motions he filed both before and after the First Appeal. On remand, the trial court had no jurisdiction to consider issues already addressed by the court of appeals and not included in the scope of the remand as stated in the mandate. Cessna Aircraft Co. v. Aircraft Network, LLC, 345 S.W.3d 139, 144 (Tex. App.-Dallas 2011, no pet.) ("When an appellate court remands a case with specific instructions, the trial court is limited to complying with the instructions and cannot re- litigate issues controverted at the former trial."). The scope of the remand is determined by referring to both the appellate opinion and to the mandate itself. See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (in interpreting mandate of appellate court, "courts should look not only to the mandate itself, but also to the opinion of the court").

Here, the court of appeals's mandate specifically limited the trial court's jurisdiction to "the causes of action for intentional infliction of emotional distress and for conversion," and affirmed the trial court's judgment "[i]n all other matters." In addition to the causes of action for conversion and intentional infliction of emotional distress, the court of appeals's opinion addressed Cruz's causes of action for breach of contract, libel, slander, tortious interference with a prospective business relationship, civil conspiracy, fraud, breach of the duty of good faith and fair dealing, unfair insurance practices, tortious interference with Cruz's employment and contractual relationship, violations of property and due process rights, and wrongful termination. See First Appeal, 1999 WL 33748017 at *1. The court of appeals also reviewed the trial court's rulings on several pretrial motions, including a motion for continuance and several discovery motions. See id. at *1-*2. The court concluded that summary judgment was not proper on Cruz's claim for intentional infliction of emotional distress because appellees did not move for summary judgment on the claim. Id. at *9. The court further concluded that a fact issue existed on Cruz's conversion claim because there was conflicting proof concerning the number of checks sent and cashed that were the basis for Cruz's claim. Id. at *8. With respect to all other causes of action, the trial court's summary judgment was affirmed. Id. at *9. Thus, the trial court's jurisdiction was limited to Cruz's causes of action for intentional infliction of emotional distress and conversion. See Cessna Aircraft Co., 345 S.W.3d at 144. The trial court severed the conversion cause of action and assigned to it a new cause number. That cause remains pending in the trial court. Although we review Cruz's issues challenging the propriety of the severance, the merits of Cruz's conversion cause of action are not before us.

In reaching our conclusion regarding the trial court's limited jurisdiction, we disagree with Cruz that the opinions in Simulis, L.L.C. v. General Electric Capital Corp., No. 14-09-01055-CV, 2011 WL 505334 (Tex. App.-Houston [14th Dist.] Feb. 15, 2011, pet. denied) (not yet reported), and Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460 (Tex. App.-Houston [14th Dist.] 2005, pet. denied), required the trial court to reopen all issues decided in the First Appeal. Cruz relies on statements in both cases that when a mandate "is not limited by special instructions," then the effect is to remand the case to the lower court for a new trial on all issues of fact and the case is re-opened in its entirety. Johnson, 167 S.W.3d at 465; Simulis, L.L.C., 2011 WL 505334 at *4. In both cases, as here, on a prior appeal, summary judgment on some issues was affirmed and on other issues was reversed and remanded. Johnson, 167 S.W.3d at 464; Simulis, L.L.C., 2011 WL 505334 at *4. Both opinions make clear, however, that remand does not reopen causes of action on which summary judgment was affirmed. Johnson, 167 S.W.3d at 465 ("the case was remanded for a new trial on all issues of fact related to the remanded causes of action") (emphasis added); Simulis, L.L.C., 2011 WL 505334 at *4 ("Because our opinion and mandate did not include any language limiting Simulis to a quantum meruit claim only, Simulis was free to amend its pleadings to add new claims or parties, except as to those claims on which we rendered summary judgment in GE's favor.") (emphasis added). Our conclusion regarding the scope of the trial court's jurisdiction is consistent with the appellate court opinions in Johnson and Simulis.

Appellees also rely on the "law of the case" doctrine to prevent relitigation of questions of law decided in the First Appeal. Under this doctrine, we do "not again pass upon any matter presented to, directly passed upon, or in effect disposed of" in an earlier appeal. Cessna Aircraft Co., 345 S.W.3d at 149 (citing J.O. Lockridge Contractors, Inc. v. Morgan, 848 S.W.2d 248, 250 (Tex. App.-Dallas 1993, writ denied)). The law of the case doctrine "is intended to achieve uniformity of decision as well as judicial economy and efficiency" by "narrowing the issues in the successive stages of the litigation." Hudson, 711 S.W.2d at 630. The doctrine applies unless the previous decision was "clearly erroneous." Cessna Aircraft Co., 345 S.W.3d at 150. The record does not reflect that the court's decision in the First Appeal was clearly erroneous; therefore, we will not consider further the questions of law finally adjudicated in it. Id.

Issues

Cruz does not specifically challenge any trial court ruling disposing of his remanded claim for intentional infliction of emotional distress. Instead, in eighteen issues, Cruz complains of the trial court's failure to rule, both before and after remand, on a motion for continuance (Issues 1, 2, 7, and 8), and a set of discovery motions (Issues 3, 4, 5, and 6); a denial of and refusal to consider the merits of a motion to reconsider based on previously unavailable evidence (Issues 9 through 12); rulings regarding a set of requests for admissions (Issues 13 through 16); and the trial court's orders to sever and to replead (Issues 17 and 18).

Discussion

A. Appeal of failures to rule prior to appellate court's mandate

In his first four issues, Cruz challenges the trial court's failures to rule on a motion for continuance and a set of discovery-related motions that he filed on January 2 and January 5, 1998. In the First Appeal, Cruz complained that the trial court abused its discretion by denying these same motions. See First Appeal, 1999 WL 33748017 at *1. The court of appeals concluded Cruz had failed to preserve these issues for review. See id.

Before his first appeal, it was Cruz's burden to obtain a ruling on the motions, and to ensure that the record reflected either the trial court's ruling or refusal to rule. Tex. R. App. P. 33.1(a)(2) (as prerequisite to presenting complaint for appellate review, record must show that trial court ruled or refused to rule). Cruz now contends that the trial court refused to hear these motions at the summary judgment hearing held on January 5, 1998, and states that there was no record made of the hearing. Regardless of whether his complaint was of a refusal to rule or of an actual ruling, Cruz was required to comply with Rule 33.1. See Fox v. Maguire, 224 S.W.3d 304, 306 (Tex. App.-El Paso 2005, pet. denied) (where trial court expressly stated on the record that motion would not be heard, appellant failed to obtain ruling on motion and nothing was preserved for appellate review). In order to preserve his complaint that the trial court refused to hear the motions, the record must have shown both the trial court's refusal to rule and Cruz's objection to the refusal. Tex. R. App. P. 33.1(a)(2)(B) ("record must show that" trial court "refused to rule on the . . . motion, and the complaining party objected to the refusal"); Fox, 224 S.W.3d at 306. Cruz's failure to preserve his complaint was decided in the First Appeal. First Appeal, 1999 WL 33748017 at *1.

Cruz argues that "because the trial court regained jurisdiction over the entire case" after remand, and because in the First Appeal, the court "did not consider whether the trial court judge abused his discretion in refusing to hear or rule upon" the motions, he may now complain that the trial court abused its discretion with respect to these motions. We disagree. As discussed above, on remand, the trial court's jurisdiction was limited to the issues specified in the court of appeals's mandate, specifically, Cruz's causes of action for conversion and intentional infliction of emotional distress. See Cessna Aircraft Co., 134 S.W.3d at 144. And in the First Appeal, the court expressly decided that Cruz failed to preserve his complaint regarding these motions. First Appeal, 1999 WL 33748017 at *1. Cruz cannot rely on his failure to preserve error in the First Appeal as an opportunity to present the identical issue to us now. See Cessna Aircraft Co., 345 S.W.3d at 144 (on remand with specific instructions, trial court cannot re-litigate issues controverted at former trial). We decide Cruz's first four issues against him.

B. Appeal of refusal to rule on motions after remand

In issues five through eight, Cruz complains of the trial court's refusal to rule after remand on the same motion for continuance and discovery-related motions discussed above. For the reasons explained above, these motions were decided in the First Appeal, and the trial court had no jurisdiction to consider them. See Cessna Aircraft Co., 345 S.W.3d at 144. We decide issues five through eight against Cruz.

C. Post-remand motions regarding previously unavailable evidence

Issues 9 through 12 relate to Cruz's request to the trial court, after remand, to reconsider the summary judgment based on previously unavailable evidence. Even if the trial court had jurisdiction to reconsider the summary judgment on this basis, Cruz failed to preserve his complaint by requesting a hearing on his motion for new trial. In re J.P., 365 S.W.3d 833, 836 (Tex. App.-Dallas 2012, no pet.) (stating requirements for motion for new trial based on newly- discovered evidence; "admissible evidence must be introduced at a hearing on the motion for new trial establishing such essential facts as no prior knowledge on the part of the movant, the prior diligence exercised by the movant, and the nature of the newly-discovered evidence") (citing Strong v. Strong, 350 S.W.3d 759, 771 (Tex. App.-Dallas 2011, pet. denied)). Cruz filed his notice of this appeal two days after filing his motion for new trial, so that no hearing was held on the motion and no ruling from the trial court was obtained. No error was preserved. See id.; see also Tex. R. Civ. P. (b)(1) (motion for new trial is prerequisite to complaint on appeal "on which evidence must be heard such as . . . newly discovered evidence"). We decide issues 9 through 12 against Cruz.

D. Motions regarding requests for admissions

Issues 13 through 16 relate to the trial court's rulings regarding Cruz's third request for admissions. After remand, in the pretrial order dated March 12, 2001, the trial court ruled that "Plaintiff's Third Request for Admissions served December 17, 1997, is deemed moot by reason of the appeal which affirmed all but two causes of action or, alternatively, deemed admissions, if any, thereto are stricken." The court permitted written discovery to be reopened "related solely to the pending cause of action for conversion and any defenses thereto." The pretrial order recites that the requests for admissions "were pending on the date this matter was originally appealed to the Court of Appeals." The pretrial order also recites that appellees filed objections and a motion to strike regarding Cruz's third request for admissions.

A trial court has broad discretion in matters of discovery. Macy v. Waste Mgmt., Inc., 294 S.W.3d 638, 651 (Tex. App.-Houston [1st Dist.] 2009, pet. denied). The trial court found that appellees' objections to the requests for admissions were well taken, "especially in light of the approximately 37 causes of action for which summary judgment have been granted, the length of this case, and the numerosity of discovery requests and their relation to prior causes of action which have been severed from the pending action." The court found that good cause existed for reopening discovery on "the one remaining cause of action pending in this case," and "deemed moot" or struck the prior requests for admissions. The trial court did not abuse its discretion by limiting discovery to the matters over which it had jurisdiction. See Macy, 294 S.W.3d at 651. We decide issues 13 through 16 against Cruz.

E. Appeal of orders regarding conversion claim

In his seventeenth and eighteenth issues, Cruz complains that the trial court abused its discretion by severing his conversion claim from the remainder of his claims, and by ordering that Cruz amend his pleadings. Cruz contends that these orders required him "to effectively nonsuit" his claims on all causes of action except conversion when the trial court had not ruled on the merits of his motion regarding previously unavailable evidence. He also contends that he was not required to amend his pleadings "after an appellate court has partially reversed a summary judgment" against him.

As discussed above, the trial court had no jurisdiction to further consider the causes of action determined adverse to Cruz in the First Appeal. Entering a final judgment on those causes of action was appropriate. See Espalin v. Children's Med. Ctr. of Dallas, 27 S.W.3d 675, 680 (Tex. App.-Dallas 2000, no pet.) (trial judge may sign order severing cause of action or issue thereby rendering otherwise interlocutory judgment final). Further, Rule 41 of the Texas Rules of Civil Procedure provides that "[a]ny claim against a party may be severed and proceeded with separately." This rule "grants the trial court broad discretion in the matter of severance and consolidation of causes." Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. 1990). In addition, Rule 68 of the Texas Rules of Civil Procedure provides that a trial court "may order a repleader on the part of one or both of the parties, in order to make their pleadings substantially conform to the rules." See Stein v. Highland Park Sch. Dist., 574 S.W.2d 807, 809 (Tex. App.-Texarkana 1978, writ dism'd) (trial court had authority to order repleader under Rule 68 after remand from appeal of summary judgment).

The trial court's order recites the reasons for both the severance and the repleader. As to the severance, the court found "that a severance of the pending cause of action for conversion is proper to allow finalization of the approximately 37 causes of action upon which summary judgment has been granted, and that a new cause number shall be assigned to the only remaining claim of Plaintiff relating to conversion." Regarding repleader, the trial court found:

[A]s a result of the numerosity of claims asserted previously on which summary judgment has been granted, the age of this case, including the last pleadings filed herein, the need to define the real issues upon which the remaining case shall be tried and to clarify the factual allegations and claims upon which Plaintiff relies, as well as specific claims and defenses of Defendants, the parties should replead their existing claims and defenses, if any, in order to give fair notice.

F. Constitutional issues

For each issue alleging abuse of discretion by the trial court, Cruz asserts an accompanying issue alleging that the trial court's rulings or refusal to rule also denied him due process under the Fourteenth Amendment to the United States Constitution or due course of law under Article I, Section 19 of the Texas Constitution. These complaints are asserted in issues 2, 4, 6, 8, 10, 12, and 15. In issue 16, Cruz also asserts that the trial court's ruling regarding his requests for admissions denied him equal protection and equal rights under the Fourteenth Amendment to the United States Constitution and Article I, Section 3 of the Texas Constitution. Cruz argues that due process requires "a legitimate review upon the merits" of his motions.

The due process "right to be heard" includes the right to "a full and fair hearing before a court having jurisdiction over the matter." Soefje v. Jones, 270 S.W.3d 617, 625 (Tex. App.-San Antonio 2008, no pet.). But a party's right to due process "does not mean that a case may never be disposed of before a trial." Id. Cruz relies on Striedel v. Streidel, 15 S.W.3d 163, 166 (Tex. App.-Corpus Christi 2000, no pet.), for the proposition that "[g]eneral principles of due process dictate that a litigant has a right to be heard and that the court must protect that right." In Striedel, the trial court "denied appellant any opportunity to present evidence" before granting a protective order to the appellee. Id. Here, in contrast, Cruz's complaints arising out of his termination by appellees have been heard by at least three trial judges and two courts of appeals over the course of more than a decade. The Eastland Court of Appeals, for example, carefully considered in two opinions the thirty-four issues raised by Cruz directed to the trial court's original summary judgment ruling. See First Appeal, 1999 WL 33748017 at *1-*9; 1999 WL 33747898 at *1. The trial court's conformance to the court of appeals's mandate did not deprive Cruz of his constitutional right to be heard. We overrule his complaints to the contrary in issues 2, 4, 6, 8, 10, 12, 15, and 16.

Conclusion

We decide Cruz's eighteen issues against him. We affirm the trial court's judgment.

ROBERT M. FILLMORE

JUSTICE

010565F.P05

Court of Appeals Fifth District of Texas at Dallas JUDGMENT

BALTASAR D. CRUZ, Appellant

V.

SCHELL, BEENE & VAUGHAN, L.L.P., REBECCA FISHER, RUSSELL W. SCHELL, R. MICHAEL BEENE, and JOHN K. VAUGHN, Appellees

No. 05-01-00565-CV

Appeal from the 14th Judicial District Court of Dallas County, Texas. (Tr. Ct. No. 96- 06467-A).

Opinion delivered by Justice Fillmore, Justices Morris and Myers, participating.

In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED. It is ORDERED that appellee Schell, Beene & Vaughan, L.L.P., Rebecca Fisher, Russell W. Schell, R. Michael Beene, and John K. Vaughn recover their costs of this appeal from appellant Baltasar D. Cruz.

Judgment entered August 7, 2012.

ROBERT M. FILLMORE

JUSTICE