                            NUMBER 13-12-00361-CV

                              COURT OF APPEALS

                      THIRTEENTH DISTRICT OF TEXAS

                        CORPUS CHRISTI - EDINBURG


RICHARD WHATLEY, INDIVIDUALLY,                                            Appellant,

                                          v.

O.F. JONES III, INDIVIDUALLY, AND
D/B/A LAW OFFICE OF O.F. JONES III,                                       Appellee.


                   On appeal from the 267th District Court
                        of Calhoun County, Texas.


                            MEMORANDUM OPINION

     Before Chief Justice Valdez and Justices Garza and Longoria
            Memorandum Opinion by Chief Justice Valdez
      By multiple issues, appellant, Richard Whatley, challenges the trial court’s

judgment awarding appellee, O.F. Jones, III, individually and d/b/a Law offices of O.F.

Jones III (“Jones”), $45,000 in his suit to recover fees and costs resulting from the

present case and from his representation of Whatley in a case in Medina County. We

reverse and remand for a new trial.
                                          I.      BACKGROUND1

        Jones sued Whatley in Calhoun County under the theory of quantum meruit for

attorney’s fees incurred during his representation of Whatley in a trial in Medina

County.2 The jury in the Medina County case awarded $18,600 as "a reasonable fee for

the necessary [legal] services" Jones "rendered in preparation [of] and [for the] trial of

this case . . . ." and the San Antonio Court of Appeals affirmed finding that this amount

was within the range of testimony and supported by sufficient evidence. Whatley v.

Lindeman, Inc., No. 04-04-00351-CV, 2005 Tex. App. LEXIS 1078, at **1, 7–16 (Tex.

App.—San Antonio 2005, no pet.).

       On April 7, 2009, the Calhoun County trial court issued a take-nothing judgment in

favor of Whatley, ruling, in part, that “[o]n the question of quantum meruit, the Court

finds that the services rendered by O.F. Jones, III have been paid by Richard Whatley

and no further money should be paid by Richard Whatley to O.F. Jones.” The trial court

also found Jones liable for Whatley’s attorney’s fees in the amount of $9,900.                          In

response to Jones’s request, the trial court entered findings of fact and conclusions of

law on May 1, 2009, stating in part of its conclusions of law that Jones violated the

unclean hands doctrine and that “[b]ased on his inequitable conduct he is not entitled to

any additional fees.”

       Jones appealed the trial court’s judgment.                We reversed the judgment and

remanded the case, finding that the clean hands doctrine did not apply to this case.


        1
           Because this is a memorandum opinion and the parties are familiar with the facts, we will not
recite them here except as necessary to advise the parties of the Court’s decision and the basic reasons
for it. See TEX. R. APP. P. 47.4.
        2
         This is the second appeal to this Court in this case. The facts leading up to the first appeal are
discussed in greater detail in our previous opinion. Jones v. Whatley, No. 13-09-00355, 2011 Tex. App.
LEXIS 4380, at **1–5 (Tex. App.—Corpus Christi June 9, 2011, no pet.) (mem. op.).

                                                    2
Jones v. Whatley, No. 13-09-00355, 2011 Tex. App. LEXIS 4380, at *30 (Tex. App.—

Corpus Christi June 9, 2011, no pet.) (mem. op.). We were not presented with, nor did

we consider, the issue of whether any attorney’s fees owed to Jones had been paid. Id.

Our reasoning regarding the award of attorney’s fees in the Medina County case was

confined to our consideration of the applicability of the clean hands doctrine. Id.

       On remand, the trial court held a hearing on October 13, 2012. After the hearing,

the trial court issued a judgment stating that it took judicial notice of all evidence

heretofore presented and that Jones sought recovery of $37,728.35 for legal services

rendered in the lawsuits in Medina County plus prejudgment interest on fees and

$23,224.54 in connection with this cause and appeal to the Court of Appeals plus

accrued costs.         The trial court awarded Jones a recovery of $26,694 including all

prejudgment interest and all costs incurred.

       On November 10, 2011, Whatley filed a motion for new trial arguing that the

court’s findings were legally and factually insufficient and contrary to the great weight of

the evidence. The trial court set a hearing on the motion for November 22, 2011. At the

hearing, Jones stated that he also wanted to request a new trial because he believed he

was entitled to more money from Whatley, and the parties agreed to another hearing to

be scheduled in late January.3

       On January 13, 2012, the trial court signed an “agreed” order granting the motion

for new trial and vacating the October 13, 2011 judgment. In a letter to Whatley’s

attorney dated January 13 2012,4 Jones explained that he “was finally able to get [the


       3
           Jones never actually filed a motion for new trial.
       4
           This letter is attached to Whatley’s second motion for new trial.


                                                       3
trial court] to sign the order granting the Motion for New Trial today.” The letter states

that Jones had a conversation with the trial court judge, who told him that the parties

needed to consider mediation again and that the judge was “inclined to sign a judgment

that would provide me with a larger amount than he had previously . . . .” On February

3, 2012, Jones sent another letter5 to Whatley’s attorney stating that he met the trial

judge in his office and that, because the trial court had not received a response to

Jones’s trial brief,6 the trial court signed Jones’s proposed order and inserted the sum of

$45,000. On February 8, 2012, the trial court filed a judgment which was signed and

dated January 2, 2012 that awarded Jones $45,000. On February 8, 2012, the trial

court issued a judgment nunc pro tunc stating that its previous judgment was

“inadvertently dated January 2, 2012 when, in fact, it was signed February 2, 2012.”

The judgment nunc pro tunc also stated that prior to issuing the first judgment, “plaintiff

filed a Trial Brief with the court on November 29, 2011. Defendant did not file any

response thereto.” The judgment again stated that it awarded Jones $45,000 including

all prejudgment interest and all costs incurred.

        In response to Jones’s motion to correct judgment to comply with the Texas

Finance Code, the trial court issued a second judgment nunc pro tunc signed April 16,

2012.       This judgment stated that “upon plaintiff’s request the court took judicial notice

of the record in this cause and all evidence heretofore presented.” The court concluded


        5
            This letter is attached to Whatley’s second motion for new trial.
        6
         The trial court received a trial brief from Jones after the November 22 hearing. On September
13, 2012, the trial court held a hearing to consider whether the brief was lost or destroyed. At the hearing
Jones stated he submitted the brief with a letter to the court clerk on November 29, 2011. The trial court
judge found that the document was lost and that it should be included in the record sent to the court of
appeals because “it is part of the basis for my decision to award $45,000 in attorney’s fees to Mr. Jones.”
On appeal, Whatley challenges the admission of that brief into evidence, but we decline to consider that
issue because we are remanding for a new trial. See TEX. R. APP. P. 47.1.

                                                        4
that “based upon the conflicting testimony, the Court finds that [Jones] is entitled to

recover the sum of [$45,000] including all prejudgment interest and all costs incurred.”

Whatley filed a motion for new trial (“second motion for new trial”) arguing that he was

entitled to a new trial because the $45,000 judgment was completely without basis in

law or in fact and because the trial court entered judgment without giving him an

opportunity to be heard after it granted the motion for new trial on January 13, 2012.

This second motion for new trial was denied by the trial court. Whatley now appeals the

April 16, 2012 judgment nunc pro tunc.

                                            II.     NEW TRIAL

        Whatley argues that his due process rights were violated because the motion for

new trial was granted by agreed order but “the court never held the promised trial or

even a hearing.” He states that if judgment is not rendered in his favor, he prays for

“reversal and remand because his right to a full and fair hearing was violated.” See

TEX. R. APP. P. 43.3 (“When reversing a trial court's judgment, the court must render the

judgment that the trial court should have rendered, except when: (a) a remand is

necessary for further proceedings; or (b) the interests of justice require a remand for

another trial.”).7

A.      Applicable Law

        The United States Constitution provides that a person shall not be deprived of

life, liberty, or property without due process of law. U.S. CONST. amend. XIV, § 1; see

        7
           Notably, Whatley also argues that this Court has the authority to reverse and render a take
nothing judgment in his favor. However, as we discuss in the subsequent section, we do not find this
argument persuasive; we only address Whatley’s due process argument and Jones’s counter argument in
this section. While a ruling in Whatley’s favor on the legal sufficiency issue would provide him greater
relief, we discuss his due process argument first because our ruling on his legal sufficiency argument is
contingent on our due process finding.


                                                   5
TEX. CONST. art. 1, § 19. “Fundamental to the concept of due process is the right to be

heard.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972). The 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.). Complete

denial of the opportunity to present any evidence is a clear violation of due process.

Producer's Const. Co. v. Muegge, 669 S.W.2d 717, 718–19 (Tex. 1984).

      “[W]hen a trial court grants a motion for new trial, the case is reinstated on the

trial court's docket as though no trial had occurred, and the slate is essentially wiped

clean as to orders such as an oral pronouncement of judgment and written judgment

based on the trial.” In re Dep't of Fam. & Protective Servs., 273 S.W.3d 637, 644 (Tex.

2009) (internal citation omitted). Furthermore, “[w]hen a motion for new trial is granted,

the original judgment is set aside and the parties may proceed without prejudice from

the previous proceedings.” Gathe v. Gathe, 376 S.W.3d 308, 314 (Tex. App.—Houston

[14th Dist.] 2012, no pet.). Additonally, when a trial court's order vacates the original

judgment, it puts the case in the position as if there had been no trial. In re Burlington

Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 831 (Tex. 2005); Jordan v.

Bustamante, 158 S.W.3d 29, 36 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

However, a trial court does have the power to set aside or “ungrant” an order granting a

motion for new trial “any time before a final judgment is entered.” In re Dep't of Fam. &

Protective Servs., 273 S.W.3d at 644.

B.    Discussion

      In the present case, the trial court did not purport to nor did it “ungrant” the

motion for new trial or its order to vacate its previous judgment. Instead, it considered



                                            6
new arguments made in a “trial brief” and entered a new judgment based on these

arguments without allowing Whatley an opportunity to respond. In fact, the trial court

explicitly stated in its first judgment nunc pro tunc that “the Court signed an Agreed

Order, granting a new trial in the above styled and numbered cause, in order to provide

more time for the Court and the parties to consider this matter.” (emphasis added).

However, granting the motion for new trial and vacating the October 13 order did not

merely give the court and parties more time to consider the matter; rather, it put the

case in a position as if there had been no trial. See In re Burlington Coat Factory

Warehouse of McAllen, Inc., 167 S.W.3d at 831; Jordan, 158 S.W.3d at 36. The trial

court granted a new trial agreed to by both parties; then, after it “reconsidered” its prior

judgment, it issued a new judgment in favor of Jones without allowing Whatley to

present evidence or arguments. Because granting the motion for new trial “wiped the

slate clean” and vacating the October 13 judgment put the case in a position as if there

had been no trial, we conclude that the court had no authority to render this judgment

without affording Whatley his right to be heard. See In re Dep't of Fam. & Protective

Servs., 273 S.W.3d at 644; In re Burlington Coat Factory Warehouse of McAllen, Inc.,

167 S.W.3d at 831; Jordan, 158 S.W.3d at 36.

       Jones, on appeal, admits that “it is true that with respect to a jury trial, the rules

and law are different, and a new hearing would be required and an opportunity to

present new evidence to a jury is required.” However, he argues that “those rules are

not applicable to a bench trial and particular[ly] not when the only issue is attorney[‘s]

fees under CPRC §38.001.8 Or when the defendant’s only real arguments are not fact

founded.” First, we find no authority to support the proposition that because there was a
       8
           See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (West,   )

                                                  7
bench trial, the trial court was not required to provide Whatley with an opportunity to be

heard after it granted a new trial and rendered a judgment based on new arguments

proffered by Jones. Second, it is impossible for us to find that Whatley’s only real

arguments are not founded in fact when he was not given an opportunity to respond or

present evidence after the new trial was granted.9

       To support his argument that the trial court’s judgment should be affirmed

because it was an award of attorney’s fees governed by Section 38.001 of the Texas

Civil Practice and Remedies Code, Jones cites Coward v. Gateway National Bank of

Beaumont. The Coward court held that, because the minimum tax fee schedule is

prima facie evidence of attorney’s fees, it could base the amount of an attorney’s fees

award on that without taking any further evidence. Coward v. Gateway National Bank of

Beaumont, 525 S.W.2d 857, 857 (Tex. 1975). Jones, however, has not shown how this

applies to a suit for quantum meruit after a new trial has been granted. Furthermore,

the Coward case does not stand for the proposition that attorney’s fees or any other

recovery can be awarded at trial without affording the other party an opportunity to be

heard. Id.

       Accordingly, we must reverse the April 16, 2012 judgment nunc pro tunc and

remand this case so that the trial court can consider the arguments and evidence

presented by both parties. See U.S. CONST. amend. XIV, § 1; TEX. CONST. art. 1, § 19.;

TEX. R. APP. P. 43.3(b). We sustain Whatley’s Due Process issue.




       9
          Furthermore, we note that both parties have presented conflicting facts throughout this
continuing litigation that must be resolved by the trial court.

                                               8
                           III.     WHATLEY’S LEGAL SUFFICIENCY ARGUMENTS

        In the alternative, Whatley asks us to reverse the judgment of the trial court and

render judgment in his favor because there is no evidence that he owes Jones money.10

Whatley argues that this Court has authority to consider evidence from the previous

trials and hearings in this case which, he asserts, shows that all money owed has been

repaid.11 He bases his argument on Gorman v. Countrywood Prop. Owner’s Ass’n. in

which the Beaumont Court of Appeals reasoned that a trial court, at a bench trial

following the granting of motion for new trial, “considered the evidence from the new

trial, the hearing on the motion for new trial, and the prior trial.” 1 S.W.3d 915, 919 n.4

(Tex. App.—Beaumont 1999, pet. denied). The court of appeals, therefore, “likewise

consider[ed] that evidence as being part of [its] scope of review.” Id. In the Gorman

case, however, the trial court held proceedings in a new trial in which both parties

presented arguments and referred to evidence from the prior trial. Id. Additionally, the

Gorman Court was considering evidence that supported a trial court judgment at the

new trial, as it was affording the trial court discretion in affirming its judgment. Id. at

921.




        10
            We must consider this issue because a ruling in appellant’s favor would provide him greater
relief than a motion for new trial. See National Life & Accident Ins. Co. v. Blagg, 438 S.W.2d 905, 909
(Tex. 1969).
        11
           Whatley argues that the trial court made this determination before our remand in the first
appeal. We note that, while the trial court stated that “the services rendered by O.F. Jones, III have been
paid by Richard Whatley” in its first judgment, it did not list this finding in its findings of fact or conclusions
of law. In the first appeal, we considered only whether the unclean hands exception applied to this case.
We did not overturn any finding regarding whether the money had been paid, but could not affirm on that
basis because it was not listed in the trial court’s findings of fact or conclusions of law. We specifically
“remand[ed] for proceedings consistent with this opinion to determine the amount of Jones’s attorney’s
fees based on quantum meruit only, without applying the clean hands doctrine.” Whatley, 2011 Tex. App.
LEXIS 4380 at *30. Accordingly, the amount of attorney’s fees owed to Jones is a determination that
must be made by the trial court on remand.

                                                        9
        Here, Whatley asks us to go back into the record from the previous trial and find

evidence to reverse the judgment of the trial court in a trial which did not even occur.

However, we have found that Whatley is correct in asserting in his brief that a motion for

new trial was granted, but “the court never held the promised trial or even a hearing.”

As discussed above, by granting the motion for new trial and vacating the October 13

judgment, the trial court wiped the slate clean and put the case in a position as if there

had been no trial. The parties were therefore entitled to an opportunity to be heard in a

new trial conducted without prejudice from the previous trial. See In re Dep't of Fam. &

Protective Servs., 273 S.W.3d at 644; Gathe, 376 S.W.3d at 314.                            Therefore, as

Whatley was not given an opportunity to present any evidence or arguments at the new

trial, we have no evidence before us which would show that the money has or has not

been paid.12       Accordingly, the trial court must determine on remand whether the

evidence shows that the money has been paid. We overrule Whatley’s issue.

                                 IV.     WHATLEY’S OTHER ARGUMENTS

        Whatley also argues that, based on the law of the case and collateral estoppel,

the trial court is bound by the finding of the Medina County court that Whatley owes

$18,600 and that under the theory of quantum meruit, he can owe no more.

Additionally, he argues that Jones was not entitled to attorney’s fees for the appeal of

the Medina County court’s finding on attorney’s fees to the San Antonio Court of

Appeals. We cannot consider these issues at this time because they have not been

argued to the trial court after the new trial was granted and must be properly raised to

the trial court on remand. See In re Dep't of Fam. & Protective Servs., 273 S.W.3d at

        12
             Additionally, we note that there seems to be a legitimate factual dispute between the parties as
to what funds are considered payment of attorney’s fees. This is a fact issue that must be resolved by the
trial court.

                                                    10
644; Swain v. State, 181 S.W.3d 359, 367 (Tex. Crim. App. 2005) (setting out that

appellant did not preserve issue for appellate review because his argument at trial did

not comport with his argument on appeal); see also Keeter v. State, 175 S.W.3d 756,

759–60 (Tex. Crim. App. 2005) (explaining that an appellate court cannot find that the

trial court erred when the appellant failed to make a complaint to it). Whatley’s other

issues are overruled.

                                   V.     CONCLUSION

          We reverse and remand for a new trial.


                                               ____________________
                                               ROGELIO VALDEZ
                                               Chief Justice

Delivered and filed the
23rd day of May, 2013.




                                          11
