                             NUMBER 13-17-00672-CV

                             COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI – EDINBURG

GENE S. HAGOOD AND WILLIAM G.
NEUMANN, INDIVIDUALLY
AND D/B/A HAGOOD & NEUMANN,                                                   Appellants,

                                             v.

MADHAVAN PISHARODI, M.D., P.A.
D/B/A PISHARODI CLINIC,                                                         Appellee.


                    On appeal from the 404th District Court
                         of Cameron County, Texas.


                          MEMORANDUM OPINION
  Before Chief Justice Contreras and Justices Hinojosa and Tijerina
          Memorandum Opinion by Chief Justice Contreras

       Appellants Gene S. Hagood and William G. Neumann, individually and d/b/a

Hagood & Neumann, appeal the trial court’s order setting aside a 2013 judgment in favor

of appellants’ clients in a medical malpractice suit. Appellants argue: (1) their clients had
capacity to assert their claims; (2) appellee Madhavan Pisharodi, M.D., P.A., d/b/a

Pisharodi Clinic (Pisharodi), waived his challenge to the plaintiffs’ capacity to bring the

underlying suit; (3) appellants own an equitable interest in the 2013 judgment; and (4) the

trial court erred by concluding the 2013 judgment was void and by refusing to compel

post-judgment discovery from Pisharodi. We reverse and remand.

                                           I. BACKGROUND

        Appellants represented Mario Saldana, Nancy Lamas, and Jesus Lamas (the

plaintiffs) in a lawsuit arising from the 2007 treatment and subsequent death of Micaela

Lamas, the plaintiffs’ mother. According to their petition, on or about October 29, 2007,

Pisharodi performed an epidural steroid injection to treat Micaela’s lower back pain.

However, complications arose during her recovery. Micaela was diagnosed with severe

anoxic brain injury, and she died intestate on November 3, 2007.

        The underlying suit, alleging both survival and wrongful death claims, was filed on

May 7, 2009. Pisharodi filed a plea in abatement alleging that the plaintiffs lacked

capacity to bring a survival claim because they had not been appointed as personal

representatives of Micaela’s estate. The plaintiffs responded that they have capacity to

sue on behalf of the estate because they are Micaela’s only natural heirs and because no

estate administration was necessary. The trial court denied Pisharodi’s plea in abatement

and the case proceeded to jury trial. The jury found Pisharodi sixty percent liable, and it

found that Micaela would be fairly and reasonably compensated by $175,000 for medical

expenses and $12,000 for funeral and burial expenses.1 See TEX. CIV. PRAC. & REM.



        1 The jury found another physician, Alejandro Betancourt, M.D., forty percent liable. The jury was
also asked whether the negligence of Xanodyne, a pharmaceutical company, proximately caused Micaela’s
death; the jury answered in the negative. Neither Betancourt nor Xanodyne were parties to the trial court
proceedings, and neither is party to this appeal.

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CODE ANN. § 71.021 (survival statute). The jury did not award any damages to the

plaintiffs in their individual capacities under the wrongful death statute. See id. § 71.002

(wrongful death statute). The trial court rendered judgment on the verdict on September

25, 2013; we affirmed; and the Texas Supreme Court denied review. See Pisharodi v.

Saldana, No. 13-13-00721-CV, 2015 WL 7352301, at *1 (Tex. App.—Corpus Christi–

Edinburg Nov. 19, 2015, pet. denied) (mem. op.).

        At some point after our mandate issued, the plaintiffs—independently of

appellants—entered into a settlement agreement with Pisharodi.2 In accordance with the

settlement agreement, on February 18, 2016, plaintiff Saldana filed a pro se “Motion For

Nonsuit With Prejudice” stating that he and the other plaintiffs “no longer desire to

prosecute this suit against [Pisharodi].” Appellants moved to strike the “Motion For

Nonsuit With Prejudice,” arguing that the plaintiffs had no right to non-suit their claims

because final judgment had already been rendered. Appellants noted that they had a

contingency fee agreement with the plaintiffs, and they argued that they therefore own an

equitable interest in the 2013 judgment. The trial court granted the motion to strike

Saldana’s non-suit.

        On March 8, 2016, appellants filed a petition in intervention asking “that their

ownership interest in the Judgment be protected” and that they “recover from Defendants

and Plaintiffs their interest in said Judgment.” Pisharodi moved to strike the plea in

intervention, arguing that, although the 2013 judgment had become final, appellants lack

a justiciable interest in the case. The court denied Pisharodi’s motion to strike the plea in


        2   Under the settlement agreement, the plaintiffs agreed to release Pisharodi from all “claims,
demands, obligations, actions, [or] causes of action . . . on account of the claims and judgment that was
the subject of this suit” in exchange for Pisharodi’s provision of “information and evidence of liability against
[Xanodyne] and [Betancourt].” Plaintiff Saldana signed the agreement on his own behalf and as attorney-
in-fact for the other two plaintiffs.

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intervention.

       Appellants then filed a motion to compel post-judgment discovery, seeking to

identify Pisharodi’s executable assets in an attempt to enforce the 2013 judgment.

Pisharodi filed a motion for protective order. A hearing on both motions was set for

September 20, 2017. That day, Pisharodi filed a response to the motion to compel stating

that he was represented by new counsel and that, “[b]ased on the advice of new counsel,”

he “bring[s] this response raising a collateral attack on the underlying judgment, which

would void the judgment and relieve [Pisharodi] entirely from any further collection

efforts.” Pisharodi alleged in particular that the 2013 judgment is void because the

plaintiffs were not appointed as personal representatives of Micaela’s estate.

       Following the hearing, the trial court signed an order on November 9, 2017,

denying appellants’ motion to compel and “granting in part defendants’ collateral attack

on the judgment.” The order stated:

       1.       After a jury trial in the above styled cause, the jury awarded no
                damages to the heirs of Micaela Lamas under the wrongful death
                statute;

       2.       The jury awarded $187,000 in medical expenses and funeral
                expenses to the deceased, Micaela Lamas;

       3.       Although Plaintiffs’ Third Amended Original Petition states that no
                probate estate was necessary, there is no evidence in the final
                judgment that the Court reached a final determination on that issue;

       4.       Notwithstanding Intervenor’s argument that Defendants waived their
                right to object that no probate case was filed or that one was
                necessary, the final judgment on its face is written for the benefit of
                the Estate of Micaela Lamas as follows:

                       “Based on the foregoing, the Court is of the opinion that
                       Judgment should be rendered in favor of Plaintiffs, Mario
                       Saldana, Nancy Lamas and Jesus Lamas, as representatives
                       of the estate of Micaela Lamas, deceased, against
                       [Pisharodi], as set for [sic] below.”


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      5.     There is no evidence before the Court that a probate case was ever
             established and/or filed and due to the passage of time (statute of
             limitations), there is no evidence before the Court that indicates that
             one can be established and/or filed in the future;

      6.     Intervenor’s contingency fee contract with the heirs of Micaela
             Lamas was signed in their individual capacity. There is no evidence
             of a contractual relationship with the Estate of Micaela Lamas.

      7.     Based on the foregoing, the defects on the face of the judgment
             cannot be remedied.

      It is therefore ORDERED, ADJUDGED, AND DECREED, that
      Intervenor’s . . . MOTION TO COMPEL is DENIED; it is further ORDERED,
      ADJUDGED, AND DECREED that the final judgment entered on
      September 25, 2013 is void and uncollectible only as it relates to any
      amount awarded to the representatives of the estate of Micaela Lamas
      and/or to the estate of Micaela Lamas.

Appellants perfected this appeal.

                                     II. DISCUSSION

A.    Motion to Dismiss Appeal

      In his brief, Pisharodi argues in part that the appeal should be dismissed on

mootness and standing grounds. Pisharodi has also filed a separate motion to dismiss

the appeal on the same grounds, and appellants filed a response to the motion.

      A case is moot when either no live controversy exists between the parties or the

parties have no legally cognizable interest in the outcome. City of Krum, Tex. v. Rice,

543 S.W.3d 747, 749 (Tex. 2017) (per curiam). “Put simply, a case is moot when the

court’s action on the merits cannot affect the parties’ rights or interests.” Heckman v.

Williamson County, 369 S.W.3d 137, 162 (Tex. 2012). “A case becomes moot if a

controversy ceases to exist between the parties at any stage of the legal proceedings,

including the appeal.” In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005)

(orig. proceeding). When a case becomes moot, the parties no longer have standing,

and the court must dismiss for lack of jurisdiction. City of Krum, 543 S.W.3d at 750.

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       Pisharodi notes in his motion to dismiss that the plaintiffs in the underlying suit

have settled their claims with him. A copy of the settlement agreement, signed by the

plaintiffs and Pisharodi but not by appellants, was attached to the motion. Pisharodi

contends that this settlement agreement renders the instant appeal moot. In response,

appellants argue that the appeal is not moot because: (1) they have an “equitable

interest” in the September 25, 2013 judgment by virtue of their contingency fee agreement

with the plaintiffs3; and (2) the post-judgment settlement agreement between the plaintiffs

and Pisharodi is unenforceable. They make largely the same arguments in the third issue

of their appeal.

       We agree with appellants on both points. The Texas Supreme Court’s opinion in

Dow Chemical Co. v. Benton, 357 S.W.2d 565 (Tex. 1962), is instructive. There, the

plaintiff in a personal injury suit failed to appear for a deposition, so the defendant moved

to dismiss. Id. at 566. The plaintiff’s attorney then filed a petition in intervention “based


       3   The contingency fee agreement provides in relevant part:
                                                    III.
       Subject to Paragraph VI below, for and in consideration of the services rendered and to be
       rendered, Client(s) does hereby give, grant, sell and assign to Attorneys the following
       interest in and to said claims and agrees to pay the Attorneys as follows:
       A.        An amount equal to one third (33 1/3%) of the value of any recovery by way of
                 settlement, judgment or otherwise achieved or received by the Client(s) in
                 connection with the matter(s) for which the Attorneys are hereby retained if such
                 recovery is achieved or received prior to the filing of any lawsuit; or
       B.        An amount equal to forty percent (40%) of the value of any recovery by way of
                 settlement, judgment or otherwise achieved or received by the Client(s) in
                 connection with the matter(s) for which the Attorneys are hereby retained if such
                 recovery is achieved or received after the filing of any lawsuit.
       ....
                                                    VI.
       In the event no recovery is made upon Client’s(s’) claims, Client(s) will not owe attorneys
       anything for legal fees or litigation expenses that Attorneys have incurred in the prosecution
       of the matters for which Attorneys are hereby retained. Otherwise and in the event there
       is a recovery made upon the Client’s(s’) claims, Attorneys fees are to be calculated and
       deducted from the recovery first and the litigation expenses will then be deducted after
       attorneys’ fees.

                                                     6
on the contingent interest of the law firm in the plaintiff’s cause of action.” Id. The attorney

argued that the contingency fee agreement “created . . . an immediate, vested,

unrestricted, separate and distinct interest in the plaintiff’s cause of action” which he was

entitled to pursue separately. Id. The trial court struck the intervention and dismissed the

plaintiff’s suit. Id. The Texas Supreme Court affirmed the trial court’s ruling, noting that

“as long as the attorney-client relationship endures, with its corresponding legal effect of

principal and agent, the acts of one must necessarily bind the other as a general rule.”

Id. at 568 (holding that “so long as the existing agency relationship is not terminated, as

by the opposite party’s buying out the client’s interest, the attorney must be bound by that

election”). However, the Court distinguished the case from others in which “a client has

conspired with a third party to circumvent the attorney-client relationship with the intention

of terminating it unilaterally.” Id. (citing Davidson v. Gray, 97 S.W.2d 488, 492 (Tex.

App.—Eastland 1936, no writ); Gibson v. Tex. Pac. Coal Co., 266 S.W. 137 (Tex. Comm’n

App. 1924); Powell v. Galveston, H. & S.A. Ry. Co., 78 S.W. 975 (Tex. App.—San Antonio

1904, no writ); Tex. & P. Ry. Co. v. Vaughan, 40 S.W. 1065 (Tex. App.—Dallas 1897, writ

ref’d)). “In each case, the client has attempted to satisfy financially his legal claim without

compensating the attorney for his efforts in the case, despite the fact that the attorney’s

previous efforts probably had much influence on the opposite party's desire to settle.” Id.

In those cases, “[o]ne of the attorney’s remedies . . . is to continue the litigation on his

own account to realize his contingent fee.” Id.

       Here, by independently entering into a post-judgment settlement agreement with

Pisharodi, the plaintiffs demonstrated their intent to circumvent the contingency fee

agreement and unilaterally terminate the attorney-client relationship. Therefore, under

Dow Chemical and the cases cited therein, appellants were entitled to intervene in the


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litigation “on [their] own account to realize [their] contingent fee.” See id.

       Moreover, the settlement agreement is not enforceable with respect to appellants.

See Honeycutt v. Billingsley, 992 S.W.2d 570, 584 (Tex. App.—Houston [1st Dist.] 1999,

pet. denied) (“If a client, after having assigned an interest in the case to his attorney,

attempts to compromise the entire case without the attorney’s agreement, the attorney is

not bound by the settlement.”) (citing Galveston H. & S. Ry. Co. v. Ginther, 72 S.W. 166,

167 (Tex. 1903); Seiter v. Marschall, 147 S.W. 226, 228 (Tex. 1912); Groves-Barnes

Lumber Co. v. Freeman, 33 S.W.2d 218, 219 (Tex. App.—Texarkana 1930, no writ)).

Accordingly, plaintiffs’ execution of the settlement agreement does not render this appeal

moot with respect to appellants. We deny Pisharodi’s motion to dismiss the appeal, and

we sustain appellants’ third issue.

B.     Plaintiffs’ Capacity in the Trial Court

       By their first issue, appellants contend that the plaintiffs had capacity to assert their

survival claim in the trial court despite the fact that they were not named personal

representatives of Micaela’s estate. By their second issue, appellants contend that

Pisharodi waived his challenge to plaintiffs’ capacity. And by part of their fourth issue,

appellants contend that the trial court erred in concluding that the 2013 judgment was

void. We consider these issues together.

       A void order is subject to collateral attack in a new lawsuit, while a voidable order

must be corrected by direct attack. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863

(Tex. 2010) (citing Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985)). Unless

successfully attacked, a voidable judgment becomes final. Id. “A judgment is void only

when it is apparent that the court rendering judgment had no jurisdiction of the parties or

property, no jurisdiction of the subject matter, no jurisdiction to enter the particular


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judgment, or no capacity to act.” Id. (citing Browning v. Prostok, 165 S.W.3d 336, 346

(Tex. 2005)).

       In his written response to appellants’ motion to compel, Pisharodi alleged only that

the 2013 judgment is void because the plaintiffs were not appointed as personal

representatives of Micaela’s estate and therefore lacked capacity to bring their survival

claim. Appellants contend on appeal that the trial court erred in sustaining this collateral

attack on the 2013 judgment in part because Pisharodi waived his complaint regarding

the plaintiffs’ capacity.

       We agree. Pisharodi perfected an appeal from the 2013 judgment but did not

argue that the trial court erred in denying his plea in abatement regarding the capacity

issue. See Pisharodi, 2015 WL 7352301, at *1–9. The trial court’s plenary power over

the 2013 judgment has since expired. Thus, in order to mount a successful attack on the

judgment, Pisharodi had to show that the trial court lacked jurisdiction in 2013. See

Travelers Ins. Co., 315 S.W.3d at 863. But unlike standing, a party’s lack of capacity is

an affirmative defense that must be raised by a verified pleading in the trial court and

does not deprive a court of subject matter jurisdiction. See TEX. R. CIV. P. 93(1)–(2);

Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex. 2005); Sixth RMA Partners

v. Sibley, 111 S.W.3d 46, 56 (Tex. 2003); Intracare Hosp. N. v. Campbell, 222 S.W.3d

790, 795 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also City of S. Padre Island

v. La Concha Condo. Ass’n, No. 13-18-00037-CV, 2018 WL 5289720, at *3 (Tex. App.—

Corpus Christi–Edinburg Oct. 25, 2018, no pet.) (mem. op.). Because Pisharodi never

alleged any legally cognizable basis for the trial court to conclude that it lacked jurisdiction

in 2013, the court erred in declaring the 2013 judgment void.

       Even if Pisharodi had not waived his complaint regarding the capacity of the


                                               9
plaintiffs to bring a survival claim, the trial court’s ruling in this case would be erroneous.

In general, only an estate’s personal representative has the capacity to bring a survival

claim. Austin Nursing Ctr., 171 S.W.3d at 850 (citing Frazier v. Wynn, 472 S.W.2d 750,

752 (Tex. 1971) (“[T]he personal representative . . . is ordinarily the only person entitled

to sue for the recovery of property belonging to the estate.”)). But the Texas Supreme

Court has acknowledged that “under certain circumstances heirs may be entitled to sue

on behalf of the decedent’s estate.” Id. (citing Shepherd v. Ledford, 962 S.W.2d 28, 31–

32 (Tex. 1998)). For example, “[h]eirs at law can maintain a survival suit during the four-

year period the law allows for instituting administration proceedings if they allege and

prove that there is no administration pending and none [is] necessary.” Id. at 851 (citing

Shepherd, 962 S.W.2d at 31–32).

       Here, the plaintiffs alleged in their 2012 petition that they are Micaela’s heirs and

that no administration of Micaela’s estate “was or is necessary.” Pisharodi has never

disputed these factual allegations, nor has he ever disputed that the suit was brought

within the four-year period for instituting administration proceedings. Accordingly, the

plaintiffs had capacity to bring suit on behalf of Micaela under the survival statute. See

id. We sustain appellants’ first, second, and fourth issues.

C.     Motion to Compel Post-Judgment Discovery

       By the remainder of their fourth issue, appellants argue that the trial court erred in

declining to grant their motion to compel post-judgment discovery under Texas Rule of

Civil Procedure 621a. See TEX. R. CIV. P. 621a.4 We review a trial court’s ruling on a


       4   Rule 621a provides in part:
       At any time after rendition of judgment, and so long as said judgment has not been
       suspended by a supersedeas bond or by order of a proper court and has not become
       dormant . . . , the successful party may, for the purpose of obtaining information to aid in
       the enforcement of such judgment, initiate and maintain in the trial court in the same suit

                                                   10
such a motion for abuse of discretion. See In re Longview Energy Co., 464 S.W.3d 353,

362 (Tex. 2015) (orig. proceeding); Sintim v. Larson, 489 S.W.3d 551, 558 (Tex. App.—

Houston [14th Dist.] 2016, no pet.).

        Appellants stated in their motion that they propounded interrogatories and requests

to produce on Pisharodi on April 27, 2016, but that he failed to respond. According to

appellants’ motion, after they filed an initial motion to compel, the trial court held a hearing

and then rendered an order on December 5, 2016, directing Pisharodi to fully respond to

the discovery requests within thirty days.5 Appellants contended in a second motion to

compel that Pisharodi failed to comply with the December 5, 2016 order. They asked that

Pisharodi be held in contempt of court and sanctioned.

        Pisharodi’s written response to appellants’ motion to compel was limited entirely

to the argument that the 2013 judgment was void—an argument that we have already

rejected. Accordingly, we agree that the trial court abused its discretion in denying post-

judgment discovery under Texas Rule of Civil Procedure 621a. That said, appellants do

not provide any argument or authority regarding their request for sanctions and a

contempt order. See TEX. R. APP. P. 38.1(i). Thus, we cannot conclude the trial court

abused its discretion in failing to award sanctions or in failing to hold Pisharodi in

contempt. Nevertheless, in light of the circumstances and the underdeveloped record,

we hold that the trial court is not precluded from awarding this relief in further proceedings




        in which said judgment was rendered any discovery proceeding authorized by these rules
        for pre-trial matters. . . .
TEX. R. CIV. P. 621a.
        5   The appellate record does not contain an order compelling Pisharodi to respond to discovery
responses, nor does it contain a transcript of any hearing regarding appellants’ motion to compel. However,
in his written response to appellants’ motion to compel in the trial court, Pisharodi stated that he “do[es] not
dispute generally the state of post judgment discovery as stated in [appellants’ motion].”

                                                      11
if supported by the facts and the law.

D.     Attempted Cross-Issues

       In his appellee’s brief, Pisharodi purports to raise two cross-issues: (1) the trial

court abused its discretion in refusing to strike appellants’ plea in intervention; and (2) the

trial court abused its discretion in setting aside Saldana’s motion for non-suit. However,

Pisharodi did not file a notice of appeal. A party who seeks to alter the trial court’s

judgment or other appealable order must file a notice of appeal. TEX. R. APP. P. 25.1(c).

We “may not grant a party who does not file a notice of appeal more favorable relief than

did the trial court except for just cause.” Id. Pisharodi has not suggested or argued that

there is just cause to consider the merits of the challenged rulings in the absence of a

notice of appeal. Accordingly, we are without jurisdiction to consider these purported

cross-issues. See id.

                                      III. CONCLUSION

       The trial court’s judgment is reversed in its entirety, and the cause is remanded for

further proceedings consistent with this opinion.

                                                                 DORI CONTRERAS
                                                                 Chief Justice

Delivered and filed the
12th day of December, 2019.




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