Affirmed and Opinion filed January 9, =
2007.
In The
Fourteenth Court=20
of Appeals
____________
NO. 14-06-00031-CV
____________
DAVID=20
MANDELL, =
Appellant
V.
JEANNE=20
MANDELL, JOYCE FIELD, AND SUSAN ALEXANDER, INDEPENDENT =
CO-EXECUTRICES OF=20
THE ESTATE OF SAM FIELD, DECEASED, =
Appellees
On Appeal from the =
Probate Court No. 2
Harris County, =
Texas
Trial Court Cause =
No. 275,758-401
O P I N I=20
O N
Appellant,=20
David Mandell, appeals a summary judgment granted in favor of =
appellees,=20
Jeanne Mandell, Joyce Field, and Susan Alexander, executrices of =
the=20
Estate of Sam Field (AThe=20
Estate@). =20
In five issues, appellant contends the trial court erred in =
(1)=20
granting appellees=3D =
motion=20
for summary judgment, (2) denying his motion for summary judgment, =
(3)=20
overlooking the finality of the partial summary judgment, =
(4)=20
awarding attorney=3Ds fees to=20
appellees, and (5) denying appellant=3Ds right to=20
a jury trial. We affirm.
Factual=20
and Procedural Background
In 1956,=20
William Mandell, David=3Ds father,=20
purchased a 15% interest in 240 acres in northwest Houston. =
In 1966,=20
William purchased the remaining 85% interest in the property and =
gave a=20
50% interest to Sam Field, who had lent William the purchase =
money. =20
In the intervening years, William married Rene Deutser. =
David=20
Mandell is William and Rene=3Ds only=20
child. On August 4, 1972, William shot and killed =
Rene. =20
William was subsequently convicted of murder without malice and =
served two=20
years of a two to five year sentence. While his father was=20
incarcerated, David lived with his aunt and uncle, Jeanne and =
Milton=20
Mandell. Milton was appointed guardian of David=3Ds=20
estate.
In 1987,=20
when David reached the age of majority, Milton Mandell, acting in =
his=20
capacity as guardian, conveyed a 17.5% interest in the 240 acres =
to=20
David. The 17.5% interest represented David=3Ds=20
mother=3Ds=20
community interest in the 35% interest William acquired after the=20
marriage. After Sam Field=3Ds death,=20
his interest in the property passed to the Estate.
In 1995,=20
David sued William, Jeanne and Milton Mandell, and the Estate for =
alleged=20
mismanagement of his mother=3Ds=20
estate. David hired the law firm of Spencer & Associates =
(ASpencer@) to=20
represent him, and entered into a contingency fee contract in =
which he=20
agreed to give Spencer 50% of his recovery in the suit. As =
part of=20
the settlement, David received an additional 7.5% interest in the=20
property, which increased his total interest to 25%. On =
March 27,=20
1998, the parties entered into a settlement agreement in which =
they=20
agreed, among other things, to a preferential purchase right. =20
Specifically, the parties agreed that, ADavid=20
Mandell and all other owners of the 240 Acre Tract reserve the =
first right=20
to purchase from the remaining owners the share of that owner at =
the price=20
offered by any subsequent purchaser.@ =
On=20
November 5, 1998, David executed a general warranty deed =
transferring=20
3.75% of the property to Spencer. In his deposition, David =
admitted=20
he did not inform William or the Estate about the transaction at =
that=20
time. On July 19, 1999, Spencer sent a letter to William and =
the=20
Estate advising that, AAs part of=20
the fee agreement for our attorney=3Ds fees in=20
the representation of [David], Mr. David Mandell will grant to the =
firm a=20
portion of his ownership interest in the 240 acre tract of=20
land[.]@ On=20
July 30, 1999, William and the Estate wrote a letter rejecting=20
David=3Ds attempt=20
to convey the property as part of a fee agreement. The =
letter stated=20
that William and the Estate considered the conveyance a breach of =
the=20
settlement agreement. On August 5, 1999, in a letter sent to =
William, but not the Estate, Spencer informed William that the =
deed had=20
already been executed. On November 18, 1999, David sent a =
letter to=20
the Estate stating he did not intend to convey any of his =
ownership=20
interest, but intended to maintain his 25% interest in the=20
property.
More than=20
three years later, on January 31, 2003, the Estate accepted=20
William=3Ds offer to=20
purchase its 50% interest in the property. On February 3, =
2003, the=20
general warranty deed, executed in 1998, conveying a 3.75% =
interest in the=20
property to Spencer was recorded. On March 7, 2003, the =
Estate sold=20
its interest to William for approximately $10,000 per acre. =
David=20
subsequently filed this suit alleging that the Estate had breached =
the=20
settlement agreement by not permitting him an opportunity to =
purchase the=20
Estate=3Ds=20
interest. Both parties filed motions for summary judgment =
alleging=20
that the other party had breached the agreement as a matter of =
law. =20
The trial court granted the Estate=3Ds motion,=20
and entered a partial summary judgment on January 6, 2006. A =
hearing=20
on attorney=3Ds fees was=20
later held and final judgment was entered granting judgment in =
favor of=20
the Estate, including attorney=3Ds=20
fees.
Standard=20
of Review
Under the=20
traditional standard for summary judgment, the movant has the =
burden to=20
show that no genuine issue of material fact exists and that the =
movant is=20
entitled to judgment as a matter of law. Tex. R. Civ. P. =
166a(c); =20
KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 =
S.W.2d=20
746, 748 (Tex. 1999). When both parties move for summary =
judgment,=20
each party Abears the=20
burden of establishing that it is entitled to judgment as a matter =
of=20
law.@ =20
Guynes v. Galveston County, 861 S.W.2d 861, 862 (Tex. =
1993). =20
When, as here, a trial court=3Ds order=20
granting summary judgment does not specify the grounds relied =
upon, we=20
must affirm the summary judgment if any of the summary judgment =
grounds=20
are meritorious. Oliphint v. Richards, 167 S.W.3d =
513,=20
515B16 (Tex.=20
App.CHouston=20
[14th Dist.] 2005, pet. denied).
Breach=20
of Contract
In his=20
first and second issues, David contends the trial court erred in =
granting=20
the Estate=3Ds motion=20
for summary judgment and in denying his motion. Both David =
and the=20
Estate argue that the other party breached the settlement =
agreement. =20
The Estate argues that by selling a 3.75% interest in the property =
within=20
months of signing the settlement agreement, David breached the =
agreement=20
first, thereby excusing the Estate from performance. David =
argues he=20
did not breach the settlement agreement because (1) the conveyance =
of the=20
property did not trigger the preferential purchase right, (2) the =
Estate=20
had notice of the conveyance because it had notice of =
David=3Ds=20
contingent fee agreement with Spencer, and (3) the Estate waived =
its right=20
of first purchase by failing to timely assert it. =20
A=20
preferential right of purchase is a right granted to a party =
giving him or=20
her the first opportunity to purchase property if the owner =
decides to=20
sell it. North Central Oil Corp. v. Louisiana Land and=20
Exploration Co., 22 S.W.3d 572, 579 (Tex. App.CHouston=20
[1st Dist.] 2000, pet. denied). A preferential purchase =
right is=20
essentially a dormant option. A.G.E., Inc. v. Buford, =
105=20
S.W.3d 667, 673 (Tex. App.CAustin=20
2003, pet. denied). It requires the property owner, before =
selling=20
it to another, to offer it to the rightholder on the terms and =
conditions=20
specified in the contract granting the right. West Texas=20
Transmission, L.P. v. Enron Corp., 907 F.2d 1554, =
1561B62 (5th=20
Cir. 1990). When a sale is made in breach of the right of =
first=20
purchase, it therefore creates in the rightholder an enforceable =
option to=20
acquire the property according to the terms of the sale. =
Koch=20
Indus., Inc. v. Sun Co., 918 F.2d 1203, 1211 (5th Cir. =
1990). =20
The option is not perpetual, however, and the rightholder must =
choose=20
between exercising it or acquiescing in the transfer of the=20
property. A.G.E., 105 S.W.3d at 673.
The=20
summary judgment proof shows that David breached the settlement =
agreement=20
by selling a portion of his interest in the property without first =
offering William or the Estate the first right to purchase the=20
property. The record reflects a general warranty deed in =
which David=20
conveyed a 3.75% interest in the property in exchange for ten =
dollars=20
Aand other=20
good and valuable consideration.@ The=20
settlement agreement states that the Aowners of=20
the 240 Acre Tract reserve the first right to purchase from the =
remaining=20
owners the share of that owner at the price offered by any =
subsequent=20
purchaser.@ By=20
its plain language, the settlement agreement required David to =
give=20
William and the Estate the right to purchase the 3.75% interest at =
the=20
same purchase price. Because David failed to give the other =
owners=20
this opportunity, he breached the contract. The fact that =
David now=20
calls the transfer of the property a Aconveyance@ =
instead=20
of a Asale@ =
does not=20
change the nature of the transaction. See A.G.E., 105 =
S.W.3d=20
at 673B74=20
(conveyance of property in satisfaction of attorney=3Ds fees=20
considered a sale that invoked first right of =
purchase).
Waiver of=20
Preferential Purchase Right
David=20
argues that even if the conveyance is considered a sale, the =
Estate waived=20
its preferential purchase right by failing to timely assert =
it. =20
David contends that the Estate knew of the terms of his agreement =
with=20
Spencer and was obligated to assert its right at that time. =
The only=20
summary judgment proof regarding David=3Ds=20
contingent fee agreement was his deposition testimony in the 1995 =
lawsuit=20
and his affidavit in support of summary judgment stating that he =
agreed to=20
give his attorneys 50% of his recovery in the lawsuit. In =
his=20
deposition, David testified that he had a written agreement with =
his=20
attorneys, but did not produce it based on his counsel=3Ds=20
advice.
David=20
argues that his testimony concerning his contingent fee agreement =
put the=20
Estate on notice that he intended to sell a portion of his =
interest in the=20
property. When a property owner expresses his or her =
intention to=20
sell the property the holder of a right of preferential purchase =
is=20
obligated to elect to either purchase the property or permit the =
property=20
owner to sell it. A.G.E., 105 S.W.3d at 673; =
Martin v.=20
Lott, 482 S.W.2d 917, 922 (Tex. Civ. App.CDallas=20
1972, no writ). By informing the Estate of his contingent =
fee=20
agreement, David did not express an intention to sell a portion of =
the=20
property. The only intention expressed by David was that he =
would=20
pay his attorneys 50% of his recovery in the lawsuit. The =
Estate was=20
not put on notice that David intended to sell the =
property.
For the=20
first time on appeal, David argues that the conveyance of the =
property=20
occurred prior to his agreement to the preferential purchase right =
because=20
Spencer=3Ds interest=20
in the property Avested@ =
at the=20
time the agreement was signed. David waived this argument by =
failing=20
to raise it in the trial court. See McConnell v. =
Southside Ind.=20
School Dist., 858 S.W.2d 337, 341 (Tex. 1993) (issues a =
non‑movant=20
contends avoid the movant=3Ds=20
entitlement to summary judgment must be expressly presented by =
written=20
answer to the motion or by other written response to the=20
motion).
Finally,=20
David argues that the Estate received notice of the conveyance in =
the July=20
19, 1999 letter, but waived its preferential purchase right by =
failing to=20
timely assert it. Acquiescence in a sale that violates=20
one=3Ds=20
preferential purchase right constitutes conduct inconsistent with =
an=20
intention to purchase. Koch Indus., 918 F.2d at =
1212. =20
Here, the Estate did not acquiesce in the conveyance to =
Spencer. =20
Upon receipt of the letter notifying it of the potential sale, the =
Estate=20
rejected the proposed sale and informed David it would treat the =
proposed=20
conveyance as a breach of the agreement. Several months =
later, the=20
Estate received a letter from David stating he did not intend to =
sell any=20
of his interest in the property. Therefore, the Estate had =
no notice=20
of the conveyance until it was recorded on February 3, 2003, three =
days=20
after the acceptance of William=3Ds offer to=20
purchase the Estate=3Ds interest=20
in the property. Therefore, the Estate did not waive its=20
preferential purchase right by acquiescing in the=20
conveyance.
Conclusion
David=20
breached the preferential purchase right in 1998 when he conveyed =
an=20
interest in the property without permitting the Estate or William =
the=20
opportunity to purchase that interest. The Estate breached =
the=20
agreement when it conveyed its interest to William in 2003. When =
one party=20
to a contract commits a material breach of that contract, the =
other party=20
is discharged or excused from further performance. =
Mustang=20
Pipeline Co., Inc. v. Driver Pipeline Co., Inc., 134 =
S.W.3d=20
195, 196 (Tex. 2004). Therefore, David=3Ds prior=20
breach excused the Estate=3Ds=20
breach. Further, a party who has breached a contract cannot =
then=20
maintain a suit for the subsequent breach by another party. =20
Id. at 198; Dobbins v. Redden, 785 S.W.2d 377, 378 =
(Tex.=20
1990). Because David breached the settlement agreement by =
conveying=20
the property to his attorney, he cannot maintain a suit against =
the Estate=20
for breach of the same provision. The trial court correctly =
granted=20
the Estate=3Ds motion=20
for summary judgment, and denied David=3Ds=20
competing motion. David=3Ds first=20
and second issues are overruled.
Finality=20
of Judgment
In his=20
third issue, David contends that the trial court erred in =
overlooking the=20
finality of the January 6, 2006, judgment. On January 6, =
2006, the=20
trial court granted partial summary judgment in favor of the =
Estate. =20
A summary judgment that does not dispose of all the parties or =
issues is=20
interlocutory. Schlipf v. Exxon Corp. 644 S.W.2d 453, =
454=20
(Tex. 1982). The judgment entered on January 6, 2006, =
disposed of=20
the breach of contract and declaratory judgment issues. =20
In addition to relief on the breach of contract and declaratory =
judgment=20
issues, the Estate sought to recover its attorney=3Ds=20
fees. The summary judgment did not become final and =
appealable until=20
January 23, 2006, when the trial court entered judgment on the =
breach of=20
contract and the Estate=3Ds=20
attorney=3Ds=20
fees. See=20
McNally v. Guevara, 52 S.W.3d 195, 196 =
(Tex. 2001)=20
(holding summary judgment order was not a final judgment because =
it did=20
not dispose of the defendants=3D claim for =
attorney=3Ds fees). David=3Ds third=20
issue is overruled.
Attorney=3Ds=20
Fees
In his=20
fourth issue, David contends the trial court erred in awarding=20
attorney=3Ds fees=20
because (1) the Estate is not entitled to attorney=3Ds fees=20
under the Declaratory Judgments Act; and (2) evidence submitted in =
support=20
of attorney=3Ds fees=20
should have been excluded.
Declaratory=20
Judgments Act
Under the=20
Declaratory Judgments Act, the trial court has discretion to award =
attorney=3Ds fees=20
subject to certain requirements. Bocquet v. Herring, =
972=20
S.W.2d 19, 21 (Tex. 1998); Tex.=20
Civ. Prac. & Rem. Code Ann. ' =
37.009. The award of attorney=3Ds fees is=20
not limited to the plaintiff or the party affirmatively seeking=20
declaratory relief. Knighton v. IBM Corp., 856 S.W.2d =
206,=20
210 (Tex. App.CHouston=20
[14th Dist.] 1993, writ denied).
The=20
Declaratory Judgments Act entrusts attorney=3Ds fee=20
awards to the trial court=3Ds sound=20
discretion, subject to the requirements that any fees awarded be=20
reasonable and necessary, which are matters of fact, and to the =
additional=20
requirements that fees be equitable and just, which are matters of =
law. Bocquet, 972 S.W.2d at 21. In reviewing an =
attorney=3Ds fee=20
award under the Act, we review the evidence for factual =
sufficiency. =20
Id. In considering whether attorney=3Ds fees are=20
reasonable and necessary, we are guided by the non-exhaustive list =
of=20
factors set forth in disciplinary rule 1.04. See =
id. =20
Those factors include:
(1) the time and =
labor=20
required, the novelty and difficulty of the questions involved, =
and the=20
skill requisite to perform the legal service properly;
(2) the likelihood, =
if=20
apparent to the client, that the acceptance of the particular =
employment=20
will preclude other employment by the lawyer;
(3) the fee =
customarily=20
charged in the locality for similar legal services;
(4) the amount =
involved and=20
the results obtained;
(5) the time =
limitations=20
imposed by the client or by the circumstances;
(6) the nature and =
length of=20
the professional relationship with the client;
(7) the experience, =
reputation, and ability of the lawyer or lawyers performing the =
services;=20
and
(8) whether the fee =
is fixed=20
or contingent on results obtained or uncertainty of collection =
before the=20
legal services have been rendered.
Tex. Disciplinary R.=20
Prof=3Dl=20
Conduct 1.04,=20
reprinted in Tex.=20
Gov=3Dt=20
Code Ann., tit. 2,=20
subtit. G app. A (Texas State Bar R. art. X, ' =
9).
Robert=20
MacIntyre, the Estate=3Ds=20
attorney, testified that the Estate had incurred fees of =
$108,354.53 up to=20
the time of trial, and fees of approximately $30,000 since January =
1,=20
2006. With regard to the first factor, MacIntyre testified =
that his=20
firm spent seven to eight months responding to a claim in excess =
of one=20
million dollars. MacIntyre also testified that he was =
deprived of=20
employment on other cases due to the resources required to respond =
to=20
David=3Ds=20
suit. He further testified that his fees were consistent =
with those=20
charged in Harris County. With regard to the sixth and =
seventh=20
factors, MacIntyre testified that he had a long standing =
relationship with=20
the Estate and that he had thirty-three years=3D =
experience as the administrator and representative of similar=20
estates. With regard to the eighth factor, MacIntyre =
testified that=20
his fee was a fixed fee not dependent on the outcome of the=20
case.
David=20
contends, for the first time on appeal, that because his claim for =
declaratory relief mirrored his breach of contract claim, the =
Estate=20
cannot recover attorney=3Ds fees=20
under the Declaratory Judgments Act. See Adams v. First=20
Nat=3Dl Bank of=20
Bells/Savoy, 154=20
S.W.3d 859, 873 (Tex. App.CDallas=20
2005, no pet.) (When a party brings a declaratory judgment action =
that=20
mirrors relief sought by the original claim, attorney=3Ds fees=20
cannot be recovered under the Declaratory Judgments Act). As =
a=20
prerequisite to presenting a complaint for appellate review, the =
record=20
must show that the complaint was made to the trial court by a =
timely=20
request, objection, or motion. Tex. R. App. P. =
33.1(a). By=20
failing to raise this issue in the trial court, David waived =
error. =20
See Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Utility=20
Dist., 198 S.W.3d 300, 318 (Tex. App.CTexarkana=20
2006, pet. filed) (identical Amirror=20
image@ =
argument=20
waived when not raised in the trial court).
Evidentiary=20
Issues
David next=20
complains that the trial court abused its discretion in admitting =
evidence=20
of the Estate=3Ds=20
attorney=3Ds fees=20
because the Estate failed to produce the documents relied on in =
seeking=20
attorney=3Ds=20
fees. An appellate court reviews a complaint regarding the =
admission=20
or exclusion of evidence under an abuse of discretion =
standard. =20
City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex.=20
1995).
On August=20
1, 2005, David requested disclosure of all items required by Rule =
194.2 of=20
the Texas Rules of Civil Procedure. Under Rule 194.2(f), the =
Estate=20
was required to disclose any documents relied on by a testifying=20
expert. At the time of its initial response, the Estate =
stated that=20
it would supplement with any required documents for testifying=20
experts. Following the trial court=3Ds ruling=20
on January 6, 2006, the Estate=3Ds counsel=20
contacted David=3Ds counsel=20
and asked whether David intended to try the issue of =
attorney=3Ds fees to=20
a jury. The Estate=3Ds counsel=20
further stated that he assumed David would want copies of the=20
attorney=3Ds billing=20
statements and that the Estate was in the process of assembling =
that=20
information. David=3Ds counsel=20
responded by continuing to insist that the January 6, 2006, order =
was a=20
final judgment, and that Aany=20
attempts by [the Estate=3Ds counsel]=20
or the court to conduct a pre-trial conference or evidentiary =
hearing will=20
be construed as an ex parte communication in violation of State =
Bar=20
Rules.@ At=20
4:41 p.m., January 20, 2006, the Friday before the hearing on=20
attorney=3Ds fees was=20
set to take place on Monday, January 23, 2006, David filed a =
motion to=20
exclude any expert testimony regarding attorney=3Ds fees due=20
to discovery violations.
David=20
waived any complaint about the Estate=3Ds failure=20
to supplement discovery responses by first refusing the =
Estate=3Ds offer of=20
the documents. The Estate attempted to supplement its =
discovery=20
responses, but David refused to accept any discovery, and informed =
the=20
Estate that any hearing it attempted to hold would be considered =
an ex=20
parte communication. Second, David failed to obtain a ruling =
compelling discovery prior to the start of trial. See =
Remington=20
Arms Co. v. Caldwell, 850 S.W.2d 167, 170 (Tex. 1993) =
(Athe=20
failure to obtain a pretrial ruling on discovery disputes that =
exist=20
before commencement of trial constitutes a waiver of any claim for =
sanctions based on that conduct.@). =20
David did not file a motion to exclude expert testimony until this =
court=20
denied his attempt to delay the hearing. By waiting until =
the eve of=20
trial to file his motion, David waived his complaint on the =
exclusion of=20
evidence.
David=20
further complains of the trial court=3Ds failure=20
to exclude lay testimony on attorney=3Ds=20
fees. Jeanne Mandell, one of the executrices of the Estate, =
and=20
Laura Charleson, a former employee of Sam Field, testified that at =
the=20
time of trial, the Estate had paid $108,354.53 in =
attorney=3Ds fees to=20
defend David=3Ds=20
suit. David objected to the testimony on the grounds of =
irrelevancy=20
and hearsay. On appeal, David contends the evidence should =
have been=20
excluded and that the lay testimony cannot support an award of=20
attorney=3Ds=20
fees. Even if the lay testimony could not support an award =
of fees,=20
MacIntyre=3Ds=20
testimony was factually sufficient to support the trial =
court=3Ds award of=20
attorney=3Ds=20
fees. Therefore, the trial court=3Ds=20
admission of Mandell=3Ds and=20
Charleson=3Ds=20
testimony was not harmful. David=3Ds fourth=20
issue is overruled.
Jury=20
Trial
In his=20
fifth issue, David contends the trial court erred in denying his =
request=20
for a jury trial. At the time David filed his original =
petition, he=20
requested a jury trial and paid the jury fee. After granting =
the=20
Estate=3Ds motion=20
for summary judgment, the trial court asked the following=20
questions:
THE COURT: If you =
would all=20
agree to it and approve it as to form. Does this leave =
anything to=20
try in three weeks?
MR. MACINTYRE [The=20
Estate=3Ds counsel]: Our=20
attorney=3Ds fees.
THE COURT: Do you =
want a jury=20
trial on that?
MR. MACINTYRE: No,=20
sir.
THE COURT: =
Good. I=20
don=3Dt either. =
When is that=20
set?
* * * *=20
*
THE COURT: =
That=3Ds all right. =
So we will=20
go ahead and do the trial on the 23rd just on the =
attorney=3Ds fees, unless you =
can work=20
something out.
MR. MACINTYRE: Yes, =
sir.
THE COURT: All =
right. =20
Thank ya=3Dll.
MR. HROCH =
[David=3Ds counsel]: May we =
be=20
dismissed?
THE COURT: =
Yes.
Following=20
the hearing, on January 11, 2006, the Estate=3Ds counsel=20
wrote to David=3Ds counsel=20
stating, AFirst, you=20
have requested a jury and paid a jury fee. At the hearing =
last=20
Friday, you were silent when Judge Wood raised the matter of using =
a=20
jury. Is it your intent to try the attorney=3Ds fees=20
issue to a jury?@ =20
David=3Ds response=20
to the Estate=3Ds question=20
about a jury trial was the same as his response to the =
Estate=3Ds offer to=20
produce billing records. David chose to treat the January 6, =
2006,=20
judgment as final and refused to participate in any proceeding =
concerning=20
attorney=3Ds=20
fees. Not until this court denied David=3Ds eleventh=20
hour attempt to delay the hearing on attorney=3Ds fees did=20
David file his objection to the court=3Ds removal=20
of the case from the jury docket.
The Estate=20
contends that David failed to timely object to the removal of the =
case=20
from the jury docket and thereby waived his right to a jury trial. =
See In re J.N.F., 116 S.W.3d 426, 434B35 (Tex.=20
App.CHouston=20
[14th Dist.] 2003, no pet.). Waiver requires either the =
intentional=20
relinquishment of a known right or intentional conduct =
inconsistent with=20
claiming that right. In re General Electric Cap. =
Corp., 203=20
S.W.3d 314, 316 (Tex. 2006). For a court to determine if =
waiver has=20
occurred, it must examine the acts, words, or conduct of the=20
parties. Robinson v. Robinson, 961 S.W.2d 292, 299 =
(Tex.=20
App.CHouston=20
[1st Dist.] 1997, no writ).
Through=20
his actions at the summary judgment hearing, and his =
correspondence with=20
counsel after the hearing, David waived a jury trial on the issue =
of=20
attorney=3Ds=20
fees. The trial court specifically asked if the Estate =
wanted a jury=20
trial on the issue of attorney=3Ds=20
fees. When the Estate=3Ds counsel=20
stated he did not want a jury trial, David did not assert his =
right to a=20
jury trial. Further, the Estate again questioned David about =
his=20
right to a jury trial. David chose to treat the partial =
summary=20
judgment as a final judgment and the hearing on =
attorney=3Ds fees as=20
an Aex parte=20
communication.@ =20
Having made that choice, David intentionally waived his right to a =
jury=20
trial on the issue of attorney=3Ds=20
fees. David=3Ds fifth=20
issue is overruled.
The=20
judgment of the trial court is affirmed.
/s/ =20
Adele Hedges
Chief =
Justice
Judgment=20
rendered and Opinion filed January 9, 2007.
Panel=20
consists of Chief Justice Hedges and Justices Fowler and=20
Edelman.
Although appellant attempts to =
distinguish=20
the terminology, a preferential right of purchase provides no =
greater=20
rights than a right of first refusal. See McMillan v. =
Dooley,=20
144 S.W.3d 159, 171 (Tex. App.CEastland 2004, pet. =
denied).
The summary judgment order =
contained no=20
AMother Hubbard@=20
language. |