Opinion
NUMBER 13-14-00514-CV
04-08-2016
BELINDA LOPEZ, Appellant, v. ERASMO LOPEZ AND SANTOS MALDONADO, Appellees.
On appeal from the 275th District Court of Hidalgo County, Texas.
ORDER OF ABATEMENT
Before Chief Justice Valdez and Justices Rodriguez and Garza
OrderPer Curiam
On October 17, 2014, this Court abated and remanded this cause to the trial court for clarification. Specifically, we requested the trial court to address whether it intended the judgment to completely dispose of all claims and all parties.
On November 18, 2014, appellant Belinda Lopez filed the Trial Court's Clarification Pertaining to Abatement Concerning Finality of Decree ("the Clarification") in this Court. The same document was later provided in a Supplemental Clerk's Record filed April 14, 2015. The Clarification states that the trial court severed Intervenor Santos Maldonado's claims against Lopez and Lopez's counterclaims against Maldonado into a separate cause, and that the final decree of divorce at issue in the present cause is "without question, a final and appealable order." The Clarification notes that the severance was granted on November 12, 2014, and that a copy of the order will be provided to this Court.
We note that the Trial Court's Clarification is dated January 30, 2015, more than two months after the copy was provided to this Court. We assume that the date on the Clarification is an error.
Belinda Lopez has appealed a summary judgment granted in favor of Santos Maldonado in appellate cause number 13-15-042-CV. That cause remains pending before this Court. --------
On April 21, 2015, a supplemental clerk's record was filed containing Maldonado's motion to sever and the November 12, 2014 order granting the motion to sever. However, the motion requests that only Belinda Lopez's counterclaims against Maldonado be severed into a separate cause; the order granting the motion specifically states that only Belinda Lopez's claims against Maldonado are severed into a separate cause. Thus, the November 12, 2014 order does not comport with the trial court's description of its action in the Clarification.
Intervenor Maldonado's claims against Lopez are claims for recovery of attorney's fees and expenses. Lopez's counterclaims against Maldonado assert claims for negligence and legal malpractice. Texas courts have held that a claim of attorney malpractice is a compulsory counterclaim to a claim for attorney's fees under rule 97(a). See TEX. R. CIV. P. 97(a); Goggin v. Grimes, 969 S.W.2d 135, 138 (Tex. App.—Houston [14th Dist.] 1998, no pet.); CLS Assocs., Ltd. v. A---- B----, 762 S.W.2d 221, 224 (Tex. App.—Dallas 1988, no writ) (citing Bailey v. Travis, 622 S.W.2d 143 (Tex. App.—Eastland 1981, writ ref'd n. r. e.); Corpus Christi Bank & Trust v. Cross, 586 S.W.2d 664 (Tex. Civ. App.—Corpus Christi 1979, writ ref'd n.r.e.)); see also Richter v. Mery, No. 04-10-00098-CV, 2010 WL 3782186, at **2 (Tex. App.—San Antonio Sept. 29, 2010, pet. denied) (mem. op.); Flanagan v. Raborn, No. 01-98-00634-CV, 1999 WL 280483, at *1 (Tex. App.—Houston [1st Dist.] May 6, 1999, no pet.) (op.). The trial court therefore erred in severing Lopez's counterclaims into a separate cause.
Accordingly, we again ABATE the appeal and REMAND the cause to the trial court. Upon remand, we instruct the trial court to VACATE its severance order dated November 12, 2014. We further request that the trial court enter a new severance order that is consistent with the Clarification. The trial court shall cause these orders to be included in a supplemental clerk's record. Furthermore, the trial court shall cause a supplemental reporter's record of any proceedings to be prepared. The supplemental clerk's record and supplemental reporter's record, if any, shall be filed with the Clerk of this Court on or before the expiration of thirty days from the date of this order. The appeal will be reinstated upon receipt of the foregoing orders and upon further order of this Court.
It is so ORDERED.
PER CURIAM Delivered and filed the 8th day of April, 2016.