KENNETH DON JONES, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF RAMONIA FAYE JONES, Appellant v. PHIL J. POLLAN AND COLLIN D. PORTERFIELD, Appellees

AFFIRMED; Opinion Filed May 4, 2010.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-09-00517-CV
............................
KENNETH DON JONES, INDIVIDUALLY AND AS REPRESENTATIVE
OF THE ESTATE OF RAMONIA FAYE JONES, Appellant
V.
PHIL J. POLLAN AND COLLIN D. PORTERFIELD, Appellees
.............................................................
On Appeal from the 95th District Court
Dallas County, Texas
Trial Court Cause No. 07-06262-D
.............................................................
MEMORANDUM OPINION
Before Justices O'Neill, Lang, and Myers
Opinion By Justice Myers
        Kenneth Don Jones, individually and as representative of the estate of Ramonia Faye Jones appeals the trial court's order granting Phil J. Pollan and Collin D. Porterfield's motion for summary judgment on appellant's claims against them for professional negligence. Appellant contends the trial court erred in concluding the affidavit of appellant's expert witness was conclusory, in not considering the expert's affidavit, and in granting appellees' motion for summary judgment. We affirm the trial court's judgment.
 
BACKGROUND
 
        Ramonia Jones was injured and incapacitated when a pharmacy in Oklahoma City incorrectly filled a prescription for her. In December 2001, she and her husband, appellant, retained an Oklahoma attorney, Joe Wheeler, to pursue a claim against the pharmacy. The Joneses signed a 1/3-contingency-fee agreement, and Wheeler filed suit against the pharmacy. Appellant alleged Wheeler sought to affiliate on the case with another attorney, Mark Bialick, and they agreed to split the fee. Wheeler then told the Joneses that his expenses in the case were greater than he expected, and he asked them to agree to change the contingency fee to fifty percent. Wheeler told them if they did not agree to the higher contingency fee, the lawsuit “would come to a halt and they would never collect a dime.” The Joneses agreed to the increased contingency fee. Three months later, Wheeler settled the case for $3.5 million, which was paid in December 2003 and February 2004. Appellant asserts the disbursement statement showed Wheeler's expenses were only $12,000. The changed contingency fee reduced the Joneses' recovery by over $500,000.
        Appellant alleged that in 2004, he asked Pollan, a Texas attorney, about the propriety of the Wheeler's conduct, and Pollan told appellant he had a case for fraud and breach of fiduciary duty against Wheeler. The Joneses signed a fee agreement with Pollan, and Pollan told them he would engage Porterfield, another Texas attorney, to assist him in the case. Appellees sent demand letters to Wheeler. In March 2006, Porterfield filed suit against Wheeler and Bialick in federal court in the Western District of Oklahoma, alleging breach of contract, negligence, and breach of fiduciary duty. Appellant claims the Oklahoma federal lawsuit was dismissed on May 11, 2006 because the complaint failed to allege diversity.
        Appellant then filed this case for legal malpractice against appellees in Texas district court in Dallas County, alleging negligence.   See Footnote 1  Appellant alleged appellees were negligent by failing to timely file appellant's claim against Wheeler and by failing to obtain the assistance of an Oklahoma attorney to file the suit and advise appellees about Oklahoma law.
        Appellees moved for summary judgment under rule of civil procedure 166a(i), asserting appellant had no evidence of the elements of his cause of action. Appellant filed a response to the motion for summary judgment, attaching the affidavit of Gary Corley, appellant's expert witness, as evidence to support his claim.
        According to the trial court's docket sheet, on the day of the summary judgment hearing, November 24, 2008, Pollan filed objections to Corley's affidavit. The docket entry states the trial court ruled the objections were untimely and denied the motion for summary judgment “irrespective of objections.” Appellees later moved for reconsideration of their motion for summary judgment.   See Footnote 2 
        Porterfield served appellant with objections to Corley's affidavit, but the objections were not filed with the clerk until more than five months after the final judgment in the case. Appellant filed responses to Pollan's and Porterfield's objections.
        The final judgment granted appellees' motion for summary judgment. In the judgment, the trial court stated appellees' motion for summary judgment “previously was heard by this Court. At that time, the Court did not consider the Defendant's [sic] objections to Plaintiff's evidence and also did not enter any orders either overruling the objections or denying the motion for summary judgment.” The judgment also states the court found Corley's affidavit conclusory, sustained appellees' objection that it was conclusory, and based on that objection, struck Corley's affidavit. The court concluded it need not reach any of the other written objections to the affidavit and granted appellees' motion for summary judgment.
SUMMARY JUDGMENT
        A no-evidence summary judgment under rule 166a(i) is essentially a pretrial directed verdict, and a reviewing court applies the same legal sufficiency standard. Flood v. Katz, 294 S.W.3d 756, 762 (Tex. App.-Dallas 2009, pet. denied). The party moving for summary judgment on this basis must specifically state the elements as to which there is no evidence. See Tex. R. Civ. P. 166a(i). The nonmovant must produce evidence raising a fact issue on the challenged elements. Id. When reviewing a no-evidence summary judgment, the reviewing court views the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. “More than a scintilla of evidence exists when the evidence rises to a level that would enable reasonable, fair-minded persons to differ in their conclusions.” Id. (quoting Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). “Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion' of a fact.” Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).
        Appellant argues Porterfield waived any complaint about the adequacy of Corley's affidavit because his objections were not filed before the trial court heard the motion for summary judgment. Defects in the form of an affidavit must be objected to, and the opposing party must have the opportunity to amend the affidavit. Tex. R. Civ. P. 166a(f). The failure to obtain a ruling on an objection to the form of an affidavit waives the objection. Thompson v. Curtis, 127 S.W.3d 446, 450 (Tex. App.-Dallas 2004, no pet.). Defects in the substance of an affidavit are not waived by the failure to obtain a ruling from the trial court on an objection, and they may be raised for the first time on appeal. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.-Dallas 2004, pet. denied). An affidavit that is conclusory is substantively defective. Id. Because conclusory affidavits are substantively defective, and substantive defects are not waived by the failure to object, Porterfield did not waive any objections to the conclusory nature of Corley's affidavit by not having his objections timely filed. See id.
        Appellant argues Corley's affidavit was admitted into evidence at the November 24, 2008 hearing when, appellant asserts, the trial court denied appellees' motion for summary judgment. Appellant argues the affidavit was therefore an admitted exhibit at the subsequent hearing on the motion to reconsider and was before the court for any and all purposes at that hearing. Appellant relies on the docket entry for November 24, 2008 to support this argument. However, docket entries ordinarily are not considered by appellate courts. They are memoranda prepared for the clerk's convenience and are usually unreliable. Rush v. Barrios, 56 S.W.3d 88, 95 (Tex. App.-Houston [14th Dist.] 2001, pet. denied). In this case, the final judgment partially contradicts the docket entry: the docket entry for November 24, 2008 states the motion for summary judgment was denied at that hearing, but the judgment states the court did not enter an order denying the motion for summary judgment at the first hearing. A written order or judgment controls over a docket entry. See Guyot v. Guyot, 3 S.W.3d 243, 247 (Tex. App.-Fort Worth 1999, no pet.) (docket entry may not be used to impeach an order or judgment). Moreover, even if Corley's affidavit was initially admitted at the hearing on the motion to reconsider, appellant does not explain why that prevented the trial court from concluding the affidavit was conclusory and striking it.
        Appellant contends the trial court erred by concluding Corley's affidavit was conclusory and by striking the affidavit. A conclusory statement is one that does not provide the underlying facts to support the conclusion. Paragon Gen. Contractors, Inc. v. Larco Constr., Inc., 227 S.W.3d 876, 883 (Tex. App.-Dallas 2007, no pet.).
        Corley's affidavit was presented as expert testimony and was the only evidence appellant presented that appellees owed a duty to appellant, that they breached the duty, and that the breach proximately caused appellant damages. It was also the only evidence appellant presented that appellant had a meritorious claim for breach of fiduciary duty against Wheeler. An expert's affidavit must be clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and readily controvertible. Tex. R. Civ. P. 166a(c). Sworn or certified copies of all papers referred to in an affidavit must be attached to the affidavit or served with it. Tex. R. Civ. P. 166a(f); Brown, 145 S.W.3d at 752.
        In Brown v. Brown, this Court considered the effect of the failure of an expert's affidavit in a legal-malpractice case to attach the documents referred to by the witness. See Brown, 145 S.W.3d at 751-53. In that case, the plaintiff sued the attorneys who represented him in his divorce. Id. at 748. The attorneys filed no-evidence motions for summary judgment. The plaintiff filed a response supported by his affidavit and the affidavit of an attorney as an expert witness. Id. The expert's affidavit made conclusions about the attorneys negligence based on her review of the records of the divorce case, but those records were not attached to the affidavit or included in the summary judgment record. Id. at 752. We stated in Brown that an affidavit is substantively defective when the absence of the referenced documents makes the affidavit conclusory. Id. We decided that without the records of the divorce case on which the expert based her conclusions that the attorneys were negligent, the affidavit was conclusory and, therefore, substantively defective. Id. at 753; see also Paragon Gen. Contractors, Inc., 227 S.W.3d at 884.
        In this case, Corley stated in his affidavit that he was hired by appellant to review the four underlying cases (the suit against the pharmacy, appellees' two suits against Wheeler,   See Footnote 3  and this suit) and formulate and express opinions about them. He also stated he reviewed the materials in the files of the various cases and court actions leading to this malpractice case, “including, but not limited to,” the employment agreements between the Joneses and Wheeler, appellant's and Wheeler's depositions, and the pleadings in the federal cases and this case. However, none of these documents were attached to the affidavit, filed with it, or otherwise included in the summary judgment record.
        The only documents attached to Corley's affidavit were a letter from Porterfield to Wheeler stating Porterfield was about to file suit against him arising out of a case styled “Ramona F. Jones v. Eckerd Corp.,” and some email correspondence between Porterfield and another attorney with the subject line “jones v. wheeler” and expressing concerns about “sol problems.” Neither of these documents provided the facts on which Corley based his conclusions about Wheeler's and appellees' breach of duty to appellant.
        Without the inclusion in the summary-judgment record of the underlying documents referenced by Corley, none of Corley's conclusions about appellees' and Wheeler's breaches of duty, proximate causation, and appellant's damages were supported by the underlying facts. Therefore, Corley's affidavit was conclusory, and the trial court did not abuse its discretion in striking the affidavit. Without Corley's affidavit, there was no evidence to support the elements of appellant's negligence cause of action, and the trial court did not err in granting appellees' no-evidence motion for summary judgment.
        Even if the trial court did err by striking Corley's affidavit, the error would not be reversible unless it probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). Thus, if the trial court would have been correct to grant the motion for summary judgment with Corley's affidavit in evidence, then any error in striking the affidavit did not result in an improper judgment and is not reversible.
        In a legal-malpractice claim, the plaintiff must prove the defendant breached a duty owed to the plaintiff and that the breach of duty proximately caused the plaintiff to suffer damages. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009). When the legal-malpractice claim alleges the defendant attorney improperly represented the plaintiff in another case, the plaintiff must prove the amount of damages that would have been recoverable and collectible if the other case had been properly prosecuted. Id. Collectibility is not presumed but must be proved. Id. at 115. One of the grounds on which appellees asserted appellant had no evidence was that “Plaintiff has no evidence that he suffered any damages or any collectible damages.”
        The collectibility of a judgment in the underlying case is measured at the time of the signing of the final judgment in the underlying case. Id. at 113-14. Evidence the underlying defendant could have satisfied a judgment before the final judgment in the underlying case was signed is generally not relevant unless the evidence shows a reasonable probability that the underlying defendant's financial condition did not change adversely before the judgment was signed. Id. “Absent such evidence as to the gap time period, however, a factfinder could only speculate as to how events during the period affected the judgment debtor's finances. Findings based on speculation are not based on legally sufficient evidence.” Id. at 114. The evidence to show the amount of an underlying judgment that would have been collectible is:
 
the greater of either (1) the fair market value of the underlying defendant's net assets that would have been subject to legal process for satisfaction of the judgment as of the date the first judgment was signed or at some point thereafter, or (2) the amount that would have been paid on the judgment by the defendant or another, such as a guarantor or insurer.
 
Id.
        Appellant asserts the statements in Corley's affidavit that Wheeler received $875,000 in the settlement with the pharmacy in February 2004 is some evidence of the collectibility of damages from Wheeler. The final judgment in the lawsuit allegedly brought by appellees against Wheeler was the order of dismissal on May 11, 2006. As the supreme court stated, evidence of collectibility before the final judgment in the underlying case is not relevant unless the plaintiff presents evidence the underlying defendant's financial condition did not change adversely. Here, appellant presented no evidence of the stability of Wheeler's financial condition in the two-year gap between Wheeler's receipt of the settlement funds in February 2004 and the final judgment in the Oklahoma federal case in May 2006. Appellant also presented no evidence of Wheeler's net assets subject to legal process or his insurance coverage for appellant's claims. Thus, appellant presented no evidence that any damages he suffered in the underlying case would have been collectible.
        Accordingly, the trial court did not err by granting appellees' motion for summary judgment. We overrule appellant's issues.
        We affirm the trial court's judgment.
 
 
                                                          
                                                          LANA MYERS
                                                          JUSTICE
 
090517F.P05
 
Footnote 1 Appellant's original petition also alleged a cause of action for breach of contract. Appellees stated in their objections to appellant's summary-judgment evidence that appellant filed an amended petition omitting the breach-of-contract claim. The amended petition is not in the appellate record. However, appellant states in his brief he “now concedes he represented to the trial court that Appellants' [sic] breach of contract claim had, in fact, been amended away, or otherwise non-suited.”
Footnote 2 The motion for reconsideration is not in the clerk's record; none of the parties designated the motion to be included in the clerk's record. Nor is there any written order in the record denying the motion for summary judgment on November 24, 2008.
Footnote 3 According to Corley's affidavit, after the dismissal of Porterfield's suit against Wheeler, appellant hired a new attorney, who in October 2006 filed suit in federal court against Wheeler. Wheeler moved for summary judgment on the defense that all claims were barred by Oklahoma's statute of limitations. Before the motion was heard, Wheeler and his law firm settled the case with appellant for $20,000.