George Neil Lewis v. Jack D. Nolan--Appeal from 270th District Court of Harris County

Opinion issued October 5, 2006

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00865-CV

____________

GEORGE NEIL LEWIS, Appellant

V.

JACK D. NOLAN, Appellee

On Appeal from 270th District Court

Harris County, Texas

Trial Court Cause No. 2001-29811

MEMORANDUM OPINION

Appellant, George Neil Lewis, appeals from a take-nothing summary judgment rendered against him in his malpractice suit against appellee, Jack D. Nolan, his former attorney. We first affirm the judgment to the extent that it was rendered on Lewis s negligent-misrepresentation claim because he abandoned that claim below and thus assigned no error to it on appeal. We then determine (1) whether Lewis needed expert testimony to prove the causation element of his negligence claim; (2) whether we must affirm the judgment rendered on Lewis s breach-of-contract claim for his failure to challenge every basis asserted against that claim in the summary-judgment motion; and (3) whether Lewis s having asserted an unpleaded Deceptive Trade Practices Consumer Protection Act ( DTPA ) // claim in response to Nolan s summary-judgment motion raised a fact issue on that claim and, if not, whether Lewis has properly assigned error to the rendition of judgment on the only DTPA claim that he pleaded. We affirm.

Background

Federated Financial Services, Inc. ( FFS ) was the holder of two notes. One note, dated April 7, 1987 and in the principal amount of $17,255, was signed by Lewis and a man who was his business partner at that time, Bill White ( the April 1987 note ). The borrowers on the April 1987 note were listed as G. Niel [sic] Lewis & Bill White Baja Trax, Inc. The second note, dated November 21, 1987 and in the principal amount of $9,431.99, was signed by White alone ( the November 1989 note ). The borrower on the April 1987 note was listed as Bill White dba BAJA TRAX, INC.

FFS sued Lewis and White based on the two notes ( the collection suit ). Nolan represented Lewis in the collection suit. In his deposition testimony in that lawsuit, Lewis admitted his liability on the April 1987 note. In affidavits filed in the later malpractice suit from which appeal is now taken, however, Lewis averred that

[t]he [April 1987] note that I was testifying to in the deposition [in the collection suit] was paid off after my then-partner [White] borrowed money at which time he signed on to pay the [November 1989] note. I was not obligated to pay the [November 1989] note, and the [April 1987] note (which the deposition testimony refers to) was paid off in full.

FFS moved for traditional summary judgment against Lewis in the collection suit based on the November 1989 note. It is undisputed that Nolan did not answer the motion or appear at the summary-judgment hearing, that the motion was granted, and that judgment was rendered against Lewis in May 1995 for $13,229.26. The parties disputed below the reasons for Nolan s failure to respond or to appear: Lewis filed affidavits averring that Nolan had told him that the suit against him was non-meritorious and that Nolan later denied having received the summary-judgment motion, even though he had. In contrast, Nolan filed an affidavit averring that he had advised Lewis that the lawsuit was meritorious, that Nolan received FFS s summary-judgment motion, that he tried unsuccessfully and repeatedly to contact Lewis about the motion, and that Nolan was never notified of the summary-judgment hearing.

On June 13, 2001, Lewis sued Nolan for legal malpractice (negligence), negligent misrepresentation, violations of the DTPA, and breach of contract. The factual bases that Lewis alleged for all causes of action were as follows:

While representing [Lewis], [Nolan] failed to respond to a motion for summary judgment or to an amended motion for summary judgment filed by the plaintiff in that case. Prior to the motions for summary judgment being filed and served on [Nolan], [Lewis s] deposition had been taken by the plaintiff in the [collection suit]. After the deposition [Nolan] told [Lewis] that he did not have to worry about the case and that it would be dismissed. However, on May 31, 1995, a final summary judgment was entered against [Lewis] in the amount of $13,229.26 plus court costs, prejudgment interest and post judgment interest. In late May 2001, [Lewis] discovered that judgment had been entered against him . . . . Eventually, [Lewis] negotiated a payoff of the judgment for the amount of $15,000.00. But for [Nolan s] failure to respond to the motion for summary judgment, [Lewis] would not have lost the case.

Lewis sought fee forfeiture, actual damages, mental-anguish damages, and treble damages under the DTPA, as well as attorney s fees, pre- and post-judgment interest, and costs.

Nolan answered with a general denial and raised the affirmative defense of limitations. Nolan then moved for traditional summary judgment on the sole basis of limitations. The trial court granted the motion, rendering a take-nothing judgment against Lewis. Lewis appealed to the Fourteenth Court of Appeals, which reversed the judgment and remanded the cause. See Lewis v. Nolan, 105 S.W.3d 185, 190 (Tex. App. Houston [14th Dist.] 2003, pet. denied). On remand, Nolan filed six summary-judgment motions:

1.a traditional summary-judgment motion against Lewis s DTPA claim;

2.a no-evidence summary-judgment motion against Lewis s breach-of-contract claim;

3.a first amended traditional summary-judgment motion against all claims on the ground of limitations;

4.a traditional summary-judgment motion against Lewis s legal-malpractice claim;

5.a no-evidence summary-judgment motion against Lewis s legal-malpractice claim; // and

6.a no-evidence summary-judgment motion against Lewis s negligent-misrepresentation claim.

Simultaneously with the filing of his summary-judgment motion against Lewis s legal-malpractice claim, Nolan moved the trial court to consolidate Lewis s causes of action under the heading of legal malpractice because the attempt to style the legal-malpractice claim as anything else (e.g., breach of contract, DTPA violation, or negligent misrepresentation) amounted to an impermissible fracturing of the legal-malpractice claim. This impermissible fracturing argument was not also asserted as a basis for summary judgment, however. The trial court neither expressly nor impliedly ruled on Nolan s motion to consolidate.

Lewis responded to each summary-judgment motion except for the motion attacking his negligent-misrepresentation claim: with respect to that claim, Lewis expressly stated below that he no longer wished to pursue it. Nolan raised various objections to all of Lewis s summary-judgment evidence, but the trial court expressly overruled each of these objections before it rendered summary judgment. Nolan does not complain on appeal of the trial court s having overruled these evidentiary objections, although he does discuss on appeal the bases of at least some of his evidentiary complaints.

In August 2004, the trial court rendered a take-nothing summary judgment on all of Lewis s claims. The trial court did not state on which motions or grounds it was basing its ruling.

Standard of Review

Traditional [s]ummary judgment under rule 166a(c) is proper only when a movant establishes that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 262 (Tex. App. Houston [1st Dist.] 2005, pet. denied). A defendant is entitled to [traditional] summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff s causes of action or if it conclusively establishes all elements of an affirmative defense. Id.

A party may move for a no-evidence summary judgment under rule 166a(i) if there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial. Id. (quoting Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App. Houston [1st Dist.] 1999, no pet.)). A no-evidence summary judgment is, therefore, like a directed verdict. Id. at 263. The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements. Id. (quoting Flameout Design & Fabrication, Inc., 994 S.W.2d at 834).

In reviewing either type of summary judgment, we indulge every reasonable inference in favor of the non-movant, resolve any doubts in its favor, and take as true all evidence favorable to it. Id. When an order granting summary judgment does not specify the grounds upon which the trial court ruled, we must affirm to the extent that any of the summary judgment grounds is meritorious. Id.

Nelgigent Misrepresentation

Although the record does not contain Nolan s no-evidence summary-judgment motion that attacked Lewis s negligent-misrepresentation claim, the parties summary-judgment pleadings and appellate briefing indicate that such a motion was filed; the record supports that the summary-judgment motion on that cause of action was granted; and, as he did below, Lewis expressly states on appeal that he does not challenge the summary judgment to the extent that it disposed of that cause of action. Accordingly, we affirm the summary judgment to the extent that it disposed of Lewis s cause of action for negligent misrepresentation. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993); Garcia v. Nat l Eligibility Express, Inc., 4 S.W.3d 887, 889 (Tex. App. Houston [1st Dist.] 1999, no pet.).

Legal Malpractice (Negligence)

In his first, second, and third issues, Lewis argues that the trial court erred in granting Nolan s no-evidence and traditional summary-judgment motions against his legal-malpractice claim.

To prevail on a legal malpractice claim, a plaintiff must show that (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff s injuries, and (4) damages occurred. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004) (quoting Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995)). Nolan appears to have attacked only the third element in his summary-judgment motions, i.e., causation. Accordingly, we consider whether Lewis raised a material fact issue on the third element.

When the plaintiff s allegation is that some failure on the attorney s part caused an adverse result in prior litigation, the plaintiff must produce evidence from which a jury may reasonably infer that the attorney s conduct caused the damages alleged. Id.; Hoover v. Larkin, 196 S.W.3d 227, 231 (Tex. App. Houston [1st Dist.] 2006, pet. denied). Cases often refer to this causation aspect of the plaintiff s burden as the suit-within-a-suit requirement. Hoover, 196 S.W.3d at 231. The suit-within-a-suit element is not shown merely by proving a breach of the standard of care, i.e., even when negligence is admitted, causation is not presumed. Alexander, 146 S.W.3d at 119.

[T]he trier of fact must have some basis for understanding the causal link between the attorney s negligence and the client s harm. Id. In general, this is accomplished through expert testimony on causation. Hoover, 196 S.W.3d at 231. Although lay testimony may sometimes suffice, expert testimony of causation is necessary when the causal link is beyond the jury s common understanding. Alexander, 146 S.W.3d at 119.

It is undisputed that Lewis presented no expert opinion testimony concerning causation. However, Lewis contends that causation was so obvious here that expert testimony was unnecessary. Lewis relies instead on his own affidavit testimony, in which he averred as follows:

At the deposition that I gave in [the collection suit], I was asked a series of questions . . . regarding one of the two notes that were at issue in [the collection suit] and are now the basis of this case. The note that I was testifying to in the deposition was paid off after my then-partner [White] borrowed money at which time he signed on to pay the [November 1989] note. I was not obligated to pay the [November 1989] note, and the [April 1987] note (which the deposition testimony refers to) was paid off in full. Accordingly, I did not owe any money on either of the notes in question and the judgment that was entered against me in [the collection suit] was improperly entered and was totally defensible.

Lewis contends that he did not need expert testimony on causation because Nolan s failure to respond to FFS s summary-judgment motion when Lewis allegedly had an iron-clad defense to both notes and, thus, to the collection suit was tantamount to a fail[ure] to appear at trial and thus to the situation in which counsel allows a default judgment to be entered against his client. We reject this analogy.

Failing to file an answer or to appear at all is not necessarily the same as failing to respond to a traditional summary-judgment motion. For example, the burden is entirely on the party moving for traditional summary judgment (in the collection suit, plaintiff FFS) to establish its entitlement to summary judgment as a matter of law; therefore, only if FFS carried its burden as a matter of law would the burden have shifted to Lewis to raise a fact issue on FFS s cause of action. See Phan Son Van v. Pena, 990 S.W.2d 751, 753 (Tex. 1999).

The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant s summary judgment proof is legally insufficient. . . . Summary judgments must stand on their own merits, and the non-movant s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant s right.

City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). Whether Nolan responded was thus irrelevant to whether FFS had carried its initial summary-judgment burden as a matter of law because only if FFS had done so would the burden have shifted to Lewis to answer and to raise a fact issue. Intricacies of summary-judgment burdens and procedure such as these are beyond the understanding of jurors, and expert testimony is needed to explain these matters.

More importantly, determining whether FFS actually carried its initial summary-judgment burden, and also whether its suit would have been meritorious as a matter of law, required expert testimony. We reach this conclusion even taking as true Lewis s affidavit testimony that the April 1987 note was paid off after my then-partner [White] borrowed money[,] at which time [White] signed on to pay the second note. There were two notes, only one of which Lewis signed personally. FFS moved for summary judgment on the November 1989 note, which Lewis had not signed. Could Lewis have been liable on the November 1989 note, which he did not personally sign, (1) when Lewis admitted that the man who signed it (White) was his business partner; (2) when the April 1987 note that he did co-sign listed him, White, and Baja Trax, Inc. as borrowers; and (3) when the November 1989 note listed Bill White dba Baja Trax, Inc. as the borrower? Under what circumstances can a non-signatory to a note be legally liable for a note that his business partner signs for what may have been a joint business venture? These are legal questions, controlling of the collection suit s outcome and of FFS s summary-judgment motion, that only a legal expert can answer. Accordingly, Lewis needed to produce expert testimony to defeat Nolan s no-evidence summary-judgment motion on the issue of causation for his legal-malpractice claim. // See Alexander, 146 S.W.3d at 119 20; cf. F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221 (Tex. App. Eastland 2005, no pet.) (holding that expert testimony was required to prove causation in legal-malpractice suit based on attorney s having allowed dismissal for want of prosecution ( DWOP ) of state-court suit because of attorney s failure to obtain lift of bankruptcy stay, to notify state court of bankruptcy s filing, or to appeal DWOP, among other matters).

We distinguish some of the authority on which Lewis relies because, in it, the only issue was whether the attorney s faulty advice caused the client to make a bad decision that he would otherwise not have made. See Delp v. Douglas, 948 S.W.2d 483, 495 96 (Tex. App. Fort Worth 1997), rev d on other grounds, 987 S.W.2d 879 (Tex. 1999); Streber v. Hunter, 221 F.3d 701, 726 27 (5th Cir. 2000). A non-expert client can testify to whether he would have made a particular decision had his attorney not misled him. The issue in those cases was not whether an underlying lawsuit would have been meritorious had the attorney not committed a complained-of action within that lawsuit, as the issue here is. We distinguish the rest of Lewis s authority for the following reasons: (1) the cited holdings in those cases involved the standard of care and its breach, rather than causation; // (2) whether expert testimony was required to prove causation was apparently not an issue in the case because it was not discussed; // or (3) the case involved a default judgment or failure to appear at trial, which we have already held are distinguishable situations from the situation here. //

We overrule Lewis s first issue, complaining of the rendition of no-evidence summary judgment on his legal-malpractice claim, and his third issue, arguing that he raised a fact issue on the causation element of this claim. Because we have held that no-evidence summary judgment was properly rendered on his legal-malpractice claim, we need not reach Lewis s second issue, which complains of the rendition of traditional summary judgment on that claim.

Breach of Contract

In his fourth and fifth issues, Lewis argues that the trial court erred in rendering no-evidence summary judgment on his claim for breach of contract.

Nolan s no-evidence summary-judgment motion on Lewis s breach-of-contract claim asserted that Lewis could produce no evidence of (1) the existence of a written contract between Nolan and Lewis, (2) Nolan s breach of that contract, and (3) damages proximately caused by that breach. See Wright v. Christian & Smith, 950 S.W.2d 411, 412 (Tex. App. Houston [1st Dist.] 1997, no writ) ( The elements of a breach of contract claim are: (1) the existence of a valid contract; (2) performance or tendered performance by the plaintiff; (3) breach of the contract by the defendant; and (4) damages to the plaintiff resulting from that breach. ). On appeal, Lewis s challenge focuses only on the first ground that Nolan asserted: that no written contract existed between the parties. Lewis does not assign error to the judgment to the extent that it might have been rendered on the other two grounds asserted in Nolan s no-evidence summary-judgment motion: Nolan s breach and damages proximately caused by that breach. The trial court s summary-judgment order did not recite on which basis the trial court rendered judgment on Lewis s contract-breach claim.

[W]hen a summary judgment motion alleges multiple grounds and the order granting summary judgment does not specify the ground on which the summary judgment was rendered, the appellant must challenge and negate all summary judgment grounds on appeal. Britton v. Tex. Dep t of Criminal Justice, 95 S.W.3d 676, 681 82 (Tex. App. Houston [1st Dist.] 2002, no pet.) (citing Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App. Houston [1st Dist.] 2002, no pet.) and Armbruster v. Mem l S.W. Hosp., 857 S.W.2d 938, 941 (Tex. App. Houston [1st Dist.] 1993, no writ)). If summary judgment may have been rendered, properly or improperly, on a ground not challenged, the judgment must be affirmed. Id. at 682 (quoting Ellis, 68 S.W.3d at 898).

Because Lewis has failed to challenge every summary-judgment ground that could independently have been the basis for the trial court s ruling, we overrule his fourth and fifth issues, and we affirm the judgment to the extent that it was rendered against this claim. See id.

DTPA

In his ninth and tenth issues, Lewis argues that the trial court erred in rendering traditional summary judgment on his DTPA claim.

Nolan s summary-judgment motion asserted that Lewis s DTPA claim failed as a matter of law because that claim which asserted that, sometime before 1995, Nolan had advised Lewis that FFS could not prove its case and that Lewis needed to do nothing else, and which further alleged that Nolan had misrepresented that he would contact Lewis if anything changed was based on Nolan s advice, judgment, or opinion, which were unactionable under the DTPA. See Tex. Bus. & Com. Code Ann. 17.49(c)(3) (Vernon Supp. 2005) ( Nothing in this subchapter shall apply to a claim for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill. ). Lewis responded below, as he does on appeal, with evidence supporting a different DTPA claim from the one that he had alleged in his petition: sometime after May 2001, Nolan misrepresented that he had not received FFS s motion for summary judgment in the collection suit, when in fact he had received it.

The following allegations applied to all of Lewis s causes of action, including his DTPA claim:

While representing [Lewis], [Nolan] failed to respond to a motion for summary judgment or to an amended motion for summary judgment filed by the plaintiff in that case. Prior to the motions for summary judgment being filed and served on [Nolan], [Lewis s] deposition had been taken by the plaintiff in the underlying case. After the deposition [Nolan] told [Lewis] that he did not have to worry about the case and that it would be dismissed. However, on May 31, 1995, a final summary judgment was entered against [Lewis] in the amount of $13,229.26 plus court costs, prejudgment interest and post judgment interest. In late May 2001, [Lewis] discovered that judgment had been entered against him . . . . Eventually, [Lewis] negotiated a payoff of the judgment for the amount of $15,000.00. But for [Nolan s] failure to respond to the motion for summary judgment, [Lewis] would not have lost the case.

(Emphasis added.) Given these allegations, Lewis s DTPA claim was that Nolan s statements about whether the case would be dismissed, and also Nolan s alleged negligent acts leading to 1995 judgment in the collection suit, caused him damages. Lewis s petition did not assert a separate DTPA claim that Nolan s false statement, made about six years later, that he had not received the summary-judgment motion had caused Lewis damages.

Pleadings in the district and county courts shall . . . consist of a statement in plain and concise language of the plaintiff s cause of action or the defendant s grounds of defense. That an allegation be evidentiary or be of legal conclusion shall not be grounds for objection when fair notice to the opponent is given by the allegations as a whole . . . . Tex. R. Civ. P. 45(b) (emphasis added). Rule 45(b) thus creates a fair notice standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). Under this standard, [a] petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim. The purpose of this rule is to give the opposing party information sufficient to enable him to prepare a defense. Id. at 897 (quoting Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982)).

Even viewed under the fair-notice standard, Lewis s petition did not allege a second DTPA claim like the one about which he offered evidence for the first time in his summary-judgment response. Nolan did not have to move for summary judgment to counter a misrepresentation that was never alleged, much less alleged to have been actionable; rather, his pleaded DTPA claim concerned only misrepresentations leading up to the conclusion of the collection suit. See, e.g., Newsom, 171 S.W.3d at 262 ( A defendant is entitled to [traditional] summary judgment if the evidence disproves as a matter of law at least one element of each of the plaintiff s causes of action . . . . ).

We are left, then, with the summary-judgment ground that Nolan asserted in his motion: that the only pleaded factual basis for Lewis s DTPA claim was an unactionable statement of advice, judgment, or opinion. Lewis has not challenged the summary judgment rendered against his DTPA claim to the extent that that claim was based on the statement alleged in his petition, and he has totally failed to brief whether that statement was an unactionable statement of advice, judgment, or opinion. Because Lewis has not challenged on appeal the rendition of judgment on the sole DTPA claim that he actually pleaded, we must overrule Lewis s ninth and tenth issues and affirm the judgment rendered on that claim without regard to the merits. See Walling, 863 S.W.2d at 58; Garcia, 4 S.W.3d at 889.

Conclusion

Given our disposition of the above issues, we need not reach Lewis s sixth, seventh, or eight issues, which complained of the granting of Nolan s traditional summary-judgment motion against all claims on the basis of limitations.

We affirm the judgment of the trial court.

Tim Taft

Justice

Panel consists of Justices Taft, Higley, and Bland.