Enrique Manzano v. Daniel P. Garrigan--Appeal from 44th District Court of Dallas County

IN THE

TENTH COURT OF APPEALS

No. 10-94-098-CV

ENRIQUE MANZANO,

Appellant

v.

DANIEL P. GARRIGAN,

Appellee

From the 44th District Court

Dallas County, Texas

Trial Court # 92-11878-B

O P I N I O N

This is an appeal by Appellant Manzano from a summary judgment that he take nothing in his legal malpractice suit alleging negligence against Appellee Garrigan, who was Appellant's attorney in a criminal case.

In October 1991, Appellant retained Appellee to represent him in a criminal case in which Appellant was charged with possession of over twenty-eight grams of cocaine. Appellant was arrested by police officers after they observed what they believed was a drug transaction at a location where many drug transactions had occurred. The officers saw Appellant holding a brown-paper sack with his fingers inside the bag. Appellant threw down the bag and began walking away when he saw the police. The officers arrested Appellant and retrieved the bag which contained sixty-four small bags and seventeen larger bags of cocaine. Appellant was found guilty by a jury of the lesser offense of possession with intent to deliver less than twenty-eight grams of cocaine and was sentenced by the judge to twenty-five years in prison. Appellant had two previous convictions for the possession and delivery of cocaine for which he had received sentences for ten years and sixteen years. He was on parole for both convictions at the time of arrest for the new offense.

After his conviction, Appellant brought this malpractice case, pro se, against Appellee alleging that Appellee failed to investigate the case by contacting potential witnesses, verifying potential facts, challenging the legality of evidence, pursuing proper objection, and challenging the selection of the jury. Appellant sought $500,000 damages.

Appellee filed his motion for summary judgment that plaintiff take nothing. He filed his affidavit to the effect he was a former prosecutor and had more than twenty years as a criminal defense lawyer. He detailed all the steps he had taken on Appellant's behalf, explaining why he had so acted, and giving his expert opinion that he was guilty of no negligence or legal malpractice.

Also attached to Appellee's motion for summary judgment was the affidavit of John R. Leigh, a criminal law specialist and former criminal district judge. Judge Leigh stated that, after carefully reviewing the record in the criminal trial, he found no negligence on the part of Appellee.

Appellant, in his response to Appellee's motion for summary judgment, produced no expert summary judgment evidence that controverted or disputed the summary judgment proof of Appellee. The trial court granted Appellees motion for summary judgment that Appellant taking nothing.

Appellant appeals, pro se, on five points of error.

Point one: "The affidavit of John R. Leigh, a certified criminal law specialist, did not comply with Rule 166a(e) of the Texas Rules of Civil Procedure."

Rule 166a(e) is inapplicable here. Rule 166a(f) does state that "sworn or certified copies of all papers referred to in an affidavit shall be attached thereto or served therewith."

Judge Leigh stated: "I also have carefully reviewed the statement of facts containing the voir dire and trial testimony and conclude that, in my opinion as an expert, Appellant's complaints of negligence are baseless and that Appellee's actions showed a skillful presentation of Appellant's defense."

Judge Leigh was not asking the court to consider the statement of facts. He was merely apprising the court of the materials he reviewed to arrive at his conclusion, as an expert witness, that Appellee had committed no negligence in representing Appellant. Thus he was not required to attach the statement of facts to his affidavit for his affidavit to be considered proper summary judgment evidence.

In any event, the affidavit of Appellee which is not challenged, is sufficient to support the summary judgment. Point one is overruled.

Point two alleges: "Incompetent summary judgment proof to support the rendition of a motion for summary judgment."

Point three: "The trial court erred in granting Appellee's motion for summary judgment because Appellee failed to establish that there is no genuine issue as to any material fact, and that he is entitled to judgment as a matter of law."

Point four: "The trial court erred in granting movant's motion for summary judgment because, as a movant-defendant, he failed to assume his negative burden of proof."

An attorney malpractice action is based on negligence. There is no subjective good-faith excuse for attorney negligence, but rather a lawyer is held to the standard of care which would be exercised by a reasonably prudent attorney. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989).

An affidavit of an interested expert witness can support a summary judgment if it meets the requirements of the governing rule, even if that expert is a party to the suit. Tex. R. Civ. P. 166a; Anderson v. Snider, 808 S.W.2d 54 (Tex. 1991).

Where expert witness evidence presents legally sufficient evidence in support of a motion for summary judgment, the opposing party must produce other expert testimony to controvert the claims. Anderson v. Snider, supra. Judge Leigh's affidavit sets forth the standard of care required of attorneys, the documents he reviewed, an analysis of the actions taken by Appellee in defense of Appellant, and he sets forth his legal reasoning and basis, as an expert witness, to his conclusion that Appellee committed no negligence.

Appellee, in his affidavit, described in detail his investigation of the facts, his visits to the scene with an investigator who took photographs and was available at trial to testify, his interview with one witness and his inability to find another, the composition of the jury, the testimony of the State's witnesses, his reasons for not calling the investigator or Appellant to testify, his strategy in developing a viable defensive theory when his client was caught at the scene of the offense, his basis and reasons for not filing an application for probation or a motion to suppress evidence, and his success in keeping Appellant's prior conviction from increasing his sentence.

Appellant produced no expert witness or other summary judgment evidence to controvert the ample summary judgment proof produced by Appellant.

Points, two, three and four are overruled.

Point five: "The trial court erred in granting movant's motion for summary judgment without first ordering defendant to produce the statement of facts in cause number F91-69249-V, State of Texas v. Enrique Manzano, or rule on plaintiff's motion for to compel discovery and motion for default."

Appellant has not provided a sufficient record for appellate review of this point. Rule 52a, Texas Rules of Appellate Procedure, requires that to preserve a complaint for appellate review, a party must obtain a ruling upon the party's request, objection, or motion. Appellant has not done this. Failing to obtain a ruling on his motion, Appellee has waived his right to complain on appeal.

Moreover, Rule 166b(2)(b), Texas Rules of Civil Procedure, provides that a person is not required to produce a document or other tangible thing unless it is within the person's possession, custody, or control. Appellee was not appointed to represent Appellant on appeal and was not in possession of the statement of facts or transcript of Appellant's criminal trial. Point five is overruled.

The judgment is affirmed.

FRANK G. McDONALD

Chief Justice (Retired)

Before Justice Cummings,

Justice Vance, and

Chief Justice McDonald (Retired)

Affirmed

Opinion delivered and filed January 6, 1995

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