Yogi Evans and Jim Evans v. Samuel D. Adamo--Appeal from 113th District Court of Harris County

Opinion issued July 20, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00872-CV

YOGI EVANS AND JIM EVANS, Appellants

V.

SAMUEL D. ADAMO, Appellee

On Appeal from the 113th District Court

Harris County, Texas

Trial Court Cause No. 2003-42991

MEMORANDUM OPINION

Appellants, Yogi Evans and Jim Evans, appeal from a summary judgment rendered in favor of appellee, Samuel D. Adamo. The trial court s judgment, signed July 19, 2004, granted summary judgment for Adamo, ordered that Yogi and Jim take nothing by their suit, and assessed costs against Yogi and Jim. In three issues on appeal, Yogi and Jim assert that (1) the sole proximate cause defense does not apply to this case because they were not convicted of a crime; (2) an attorney s improper legal advice that results in a client s being arrested and indicted can be the basis of a legal malpractice claim even if the conduct recommended was non-criminal; and (3) they produced some evidence of damages by introducing evidence of the attorney s fees that they had incurred. We conclude that the trial court properly granted Adamo s no-evidence motion for summary judgment because Yogi and Jim failed to produce any evidence regarding whether Adamo breached the standard of care owed by Adamo. We affirm.Background

Yogi and Jim were relatives of Eddie Evans, who was criminally charged with forgery for having presented forged checks to a check-cashing business owned by Fatimah Ghanbarzadeh. Yogi had a pre-existing business relationship with Ghanbarzadeh. According to Yogi, Ghanbarzadeh called him more than 10 times to help her get her money that had been taken by Eddie through forgery because she knew that Yogi and Eddie were related. Yogi and Jim wanted to pay restitution to her and to request that she drop the charges against Eddie. Yogi and Jim contacted Adamo to make sure that it was legal to approach Ghanbarzadeh. Adamo was Eddie s attorney. According to Yogi, Adamo assured Yogi and Jim that it was legal to offer to assist Ghanbarzadeh to recover the money. Adamo also told Jim that if Ghanbarzadeh agreed to restitution, it needed to be in writing. Adamo s assistant typed up an affidavit for Ghanbarzadeh to sign.

Yogi, Jim, and two relatives went to Ghanbarzadeh s business to speak with her about the charges against Eddie. Because of a complaint from Ghanbarzadeh regarding Eddie s relatives attempting to persuade her to drop the case against Eddie, police officers monitored and recorded the conversation between Ghanbarzadeh and Yogi, Jim, and the other two relatives. The transcript of the conversation was introduced into the record, but the speakers were identified only as Witness 1, Witness 2, Witness 3, Witness 4, and Witness 5. During the course of the conversation, which lasted over 90 minutes, Eddie s relatives encouraged Ghanbarzadeh to tell the district attorney that she had mistakenly identified Eddie as the person who had presented the forged check to her for cashing. Eddie s relatives told Ghanbarzadeh that they had encountered a similar situation once before, in California, where they had paid $100,000 in restitution on behalf of a family member, but the State of California had continued to pursue charges. Eddie s relatives tried to secure a promise from Ghanbarzadeh that, if they paid restitution, she would say that she had mistakenly identified Eddie. Eddie s relatives specifically conditioned an offer to pay Ghanbarzadeh on her go[ing] to court and say[ing] it s not [Eddie]. After continuing to try to convince Ghanbarzadeh that they would pay her only after she had retracted her statements made about Eddie, one of Eddie s relatives explained that he had shot a man that tried to cheat me and that he had put four bullets in him, and he s hurt for the rest of his life. After having listened to the conversation, the officers arrested Yogi, Jim, and their two relatives. Both Yogi and Jim were indicted for witness-tampering. // Later, the charges were dismissed for reasons not shown by the record before us.

Yogi and Jim filed this suit against Adamo, alleging legal malpractice as the sole theory of recovery. After having answered the suit, Adamo filed a motion for summary judgment. Adamo moved for traditional summary judgment, asserting that the evidence conclusively established the affirmative defense of sole proximate cause because Yogi s and Jim s criminal conduct, and not any alleged malpractice, was the sole proximate cause of their injuries. In the alternative, Adamo asserted that the advice that he had given Yogi and Jim was proper, that no criminal violation occurred, and that the sole proximate cause of their damages was the prosecutor s decision to arrest and to indict them. Adamo also moved for summary judgment by asserting that there was no evidence that Adamo owed Yogi and Jim any duty, that Adamo had breached any duty owed to Yogi and Jim, that Adamo s alleged breach of any legal duty owed to Yogi and Jim had proximately caused them to sustain or to incur any damages, or that Yogi and Jim had sustained or incurred any recoverable damages as a result of Adamo s alleged breach. The trial court granted summary judgment for Adamo, but did not specify the grounds upon which it relied.Summary Judgment

We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When, as here, a summary judgment does not specify the grounds on which it was granted, we will affirm the judgment if any one of the theories advanced in the motion is meritorious. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). After adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which the opposing party has the burden of proof. Tex. R. Civ. P. 166a(i). In a no-evidence motion for summary judgment, the movant must specifically state the elements as to which there is no evidence. Id. The trial court must grant the motion unless the nonmovant produces summary judgment evidence raising a genuine issue of material fact. Id. We review a no-evidence summary judgment by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Patriacca v. Frost, 98 S.W.3d 303, 306 (Tex. App. Houston [1st Dist.] 2003, no pet.). A trial court improperly renders a no-evidence summary judgment if the nonmovant presents more than a scintilla of probative evidence to raise a genuine issue of material fact. Greathouse v. Alvin Indep. Sch. Dist., 17 S.W.3d 419, 423 (Tex. App. Houston [1st Dist.] 2000, no pet.). More than a scintilla of evidence exists when the evidence would enable reasonable and fair-minded people to differ in their conclusions. Forbes Inc. v. Granada Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).

Adamo s no-evidence motion for summary judgment stated that there was no evidence of any of the elements of Yogi and Jim s claim for legal malpractice: duty, breach, causation, or damages. See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004) (stating elements of legal malpractice). In Texas, lawyers are held to the standard of care that would be exercised by a reasonably prudent attorney in the same or similar circumstances. See Zenith Star Ins. Co. v. Wilkerson, 150 S.W.3d 525, 530 (Tex. App. Austin 2004, no pet.) (citing Cosgrove v. Grimes, 774 S.W.2d 662, 664 65 (Tex. 1989)). Thus, in a legal malpractice case, expert testimony is generally required to prove the standard of care and the breach of that standard. See id. at 530 (standard and breach); Longaker v. Evans, 32 S.W.3d 725, 735 (Tex. App. San Antonio 2000, pet. withdrawn) (standard); Onwuteaka v. Gill, 908 S.W.2d 276, 281 (Tex. App. Houston [1st Dist.] 1995, no writ) (breach).

The affidavits introduced by Yogi and Jim are silent regarding whether Adamo breached the standard of care. Yogi s affidavit established that Adamo prepared a document for Ghanbarzadeh to sign and that Adamo represented that it was legal to approach Ghanbarzadeh. Jim s affidavit stated that Adamo told him that any agreement with Ghanbarzadeh needed to be in writing and that Adamo s assistant prepared the affidavit for Jim to present to Ghanbarzadeh. Jim said that he assumed the prosecution ok d his talking to Ghanbarzadeh because Adamo was working with the prosecution to get Eddie s charges dropped.

The record contains no evidence, expert or otherwise, that indicates whether Adamo breached the standard of care that would be exercised by a reasonably prudent attorney in the same or similar circumstances. // The trial court therefore properly granted the no-evidence motion for summary judgment in favor of Adamo. Because the trial court properly granted summary judgment on the ground that there was no evidence on the element of breach of the standard of care in Yogi s and Jim s malpractice claim, we do not address Yogi and Jim s issues attacking other possible grounds for summary judgment. See Two Thirty Nine Joint Venture, 145 S.W.3d at 157.

Conclusion

We affirm the judgment of the trial court.

Elsa Alcala

Justice

Panel consists of Justices Keyes, Alcala, and Bland.