SONIA GARCIA MORA v. JESUS VILLALOBOS, ET AL.--Appeal from 139th District Court of Hidalgo County

 NUMBER 13-02-00691-CV

 COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI  B EDINBURG

SONIA GARCIA MORA, Appellant,

v.

JESUS VILLALOBOS, RAMON GARCIA, AND

LAW OFFICES OF RAMON GARCIA, P.C., Appellees.

 On appeal from the 139th District Court of Hidalgo County, Texas.

 MEMORANDUM OPINION

 Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Hinojosa

This is an appeal of a take nothing judgment entered after a jury verdict in a legal malpractice case. Appellant, Sonia Garcia Mora, sued appellees, Jesus Villalobos, Ramon Garcia, and the Law Offices of Ramon Garcia, P.C. (ALaw Offices@), for legal malpractice. In four issues, appellant contends (1) the evidence is legally insufficient to support the judgment, (2) the evidence is factually insufficient to support the judgment, (3) the trial court erred in granting an instructed verdict to dismiss Garcia as a defendant, and (4) the trial court erred in dismissing the Law Offices as a defendant. As cross appellants, appellees contend the trial court erred by not awarding them costs under rule 131 of the Texas Rules of Civil Procedure. We modify the trial court=s judgment and, as modified, affirm.

A. Factual Background

On August 16, 1990, appellant was detained at a Dillard=s Department Store after Dillard=s employees accused her of shoplifting. Appellant was directed to an office where she was questioned by employees and local law enforcement officers. Employees performed a partial strip search of appellant, who was later escorted by law enforcement officers out of the store in handcuffs and taken to a police station where she was arrested and charged with theft.

After the district attorney=s office dismissed the theft charges for lack of evidence, appellant filed suit against Dillard=s for malicious prosecution, false arrest, negligence, intentional infliction of emotional distress, and defamation. The jury answered liability questions in favor of appellant=s claims for malicious prosecution, false arrest, and defamation. However, the jury determined that appellant did not suffer any damages. Accordingly, the trial court entered judgment for Dillard=s. Appellant appealed that judgment, which this Court affirmed.[1]

On January 10, 2000, appellant sued appellees, claiming the jury found zero damages in her suit against Dillard=s because of appellees= legal malpractice. A jury later found that appellees had not committed legal malpractice and the trial court signed a take-nothing judgment. This appeal ensued.

B. Instructed Verdict

In her third issue, appellant complains the trial court erred in granting an instructed verdict to dismiss Garcia as a defendant. In her fourth issue, appellant contends the trial court erred in granting an instructed verdict to dismiss the Law Offices as a defendant.

The record shows that at the close of appellant=s case in chief, the trial court granted Garcia=s request for a instructed verdict. The trial court did not grant an instructed verdict to dismiss the Law Offices as a defendant. Villalobos and the Law Offices were both retained as defendants in the case. Appellant=s fourth issue is overruled.

We review the denial of an instructed verdict under a legal sufficiency or "no evidence" standard of review. Koepke v. Martinez, 84 S.W.3d 393, 395 (Tex. App.BCorpus Christi 2002, pet. denied). When we review a Ano evidence@ or legal sufficiency of the evidence issue, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). A no evidence issue will be sustained when the record discloses that (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Merrell Dow Pharms. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). If there is more than a scintilla of evidence to support the finding, the no evidence challenge fails. Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987). When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is not more than a scintilla and, in legal effect, is no evidence. Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983). More than a scintilla of evidence exists where the evidence supporting the finding, as a whole, rises to a level that would enable reasonable and fair minded people to differ in their conclusions. Havner, 953 S.W.2d at 711.

Garcia was sued in his individual capacity. He was dismissed on a motion for instructed verdict after the trial judge concluded that no evidence had been presented connecting Garcia to the alleged acts of malpractice outlined in appellant=s petition. On appeal, appellant contends the trial court=s dismissal of Garcia was improper because (1) she and Garcia had an attorney-client relationship and (2) Garcia was vicariously liable for the actions of Villalobos.

At trial, appellant did not respond to Garcia=s motion for instructed verdict on the issue of vicarious liability. Because she did not object to Garcia=s motion for instructed verdict on the issue of vicarious liability, we conclude appellant failed to preserve error on that issue. See Tex. R. App. P. 33.1(a)(1)(A); see also Sherman v. Merit Office Portfolio, Ltd., 106 S.W.3d 135, 140-41 (Tex. App.BDallas 2003, pet. denied).

The record contains no evidence that Garcia committed legal malpractice. Testimony from appellant=s expert witnesses bolstered her malpractice claim against Villalobos only; Garcia was not implicated. The record evidence shows that Villalobos was assigned to, and in charge of, appellant=s case. Villalobos made the decisions and performed the acts that serve as the basis for appellant=s malpractice suit. We conclude the trial court did not err in granting an instructed verdict to dismiss Garcia from the case. Appellant=s third issue is overruled.

C. Legal Malpractice

In her first and second issues, appellant contends the evidence is legally and factually insufficient to support the jury=s finding that appellees did not commit legal malpractice.

A legal malpractice action is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989). A lawyer in Texas is held to the standard of care that would be exercised by a reasonably prudent attorney:

If an attorney makes a decision which a reasonably prudent attorney could make in the same or similar circumstance, it is not an act of negligence even if the result is undesirable. Attorneys cannot be held strictly liable for all of their clients= unfulfilled expectations. An attorney who makes a reasonable decision in the handling of a case may not be held liable if the decision later proves to be imperfect. The standard is an objective exercise of professional judgment, not the subjective belief that his acts are in good faith.

Id. at 665. The attorney=s conduct must be evaluated by the fact finder based on the information the attorney has at the time of the alleged act of negligence. Id. at 664. To recover on a negligence claim, a plaintiff must prove (1) that there is a duty owed to him by the defendant, (2) that there is a breach of that duty, (3) that the breach proximately caused the plaintiff injury, and (4) that damages occurred. Id. at 665 (citing McKinley v. Stripling, 763 S.W.2d 407 (Tex. 1989)).

1. Legal Sufficiency

In her first issue, appellant contends the evidence is legally insufficient to support the jury=s finding that appellees did not commit legal malpractice. Appellant asserts Villalobos failed to (1) object to a conflict in the jury verdict, (2) develop and introduce appellant=s medical evidence, and (3) submit a jury question for nominal and general damages.

When a party attacks the legal sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001). In reviewing a "matter of law" challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary. Id. If there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary proposition is established as a matter of law. Id. The issue should be sustained only if the contrary proposition is conclusively established. Id.

In her suit against Dillard=s, the jury found that Dillard=s had committed malicious prosecution, but found no damages. Appellant points out that one of the elements which must be pleaded and proved to recover for malicious prosecution is that the plaintiff has suffered damages. See Leal v. Am. Nat=l Ins. Co., 928 S.W.2d 592, 597 (Tex. App.BCorpus Christi 1996, writ denied). Therefore, appellant asserts, when the jury answered Ayes@ to appellant's malicious prosecution question, it impliedly found that appellant suffered an injury. This finding, she argues, is in direct conflict with the jury=s express finding of no damages. Appellant contends that Villalobos=s failure to object to the verdict constituted legal malpractice and effectively prevented appellant from raising the issue on appeal.

Based on the facts of this case, we find no conflict in the verdict. The jury charge instructed the jury only to award damages for past and future mental anguish. The charge defined mental anguish as:

a relatively high degree of mental pain and distress; more than mere disappointment, anger, resentment, or embarrassment. It includes a mental sensation of pain resulting from such painful emotions as grief, severe disappointment, indignation, wounded pride, shame, despair, loss of reputation or public humiliation.

Though an element of malicious prosecution involves a finding that the plaintiff suffered Adamage,@ there is no expressed or implied mandate that such damage rise to the level required for a finding of mental anguish. The jury was free to find that appellant had incurred damages B such as Adisappointment, anger, resentment, or embarrassment@ B but that she did not endure a Arelatively high degree of mental pain and distress@ as was necessary to be awarded damages under the jury charge. Appellant=s complaint that her medical evidence was insufficiently developed at trial lends support to our resolution of the alleged conflict in the jury verdict. Additionally, Villalobos presented testimony from two expert witnesses, both of whom asserted that there was no conflict in the jury charge. Appellant further complains that Villalobos committed legal malpractice when he failed to present expert medical testimony to bolster her mental anguish claim. Appellant contends that Villalobos=s failure to provide expert medical testimony proximately caused the jury to award her zero damages.

While representing appellant, Villalobos decided not to call the two medical experts he had retained for trial. These experts, a medical doctor and a psychologist who treated appellant, were to address the mental health effects suffered by her as a result of her arrest, as well as the extent of medical assistance she consequently sought. Instead, Villalobos chose to address these issues by having appellant and her grandmother testify.

An attorney who makes a decision based on professional judgment for his client is not negligent for alleged errors in judgment. Villalobos testified that he considered many factors in deciding not to have his expert witnesses testify. Villalobos said that if his experts had testified, the defense would have been able to show that appellant only incurred minor medical expenses and easily destroy his experts= credibility. Villalobos was of the opinion that if appellant=s medical treatment and expenses were fully exposed to the jury, it would more likely conclude that her damages were much less than the two million dollars she was requesting. Villalobos=s decision on this issue was a matter of professional judgment that was carried out in good faith and in the best interest of his client. Villalobos will not be held liable for pursuing the course dictated by his judgment.

Appellant further contends that even if Villalobos was correct in not having the expert witnesses testify, he still committed legal malpractice by not acquiring additional, more credible medical experts to testify on appellant=s behalf. Expert testimony, however, is only necessary when the alleged negligence is of such a nature as not to be within the experience of the layperson. Roark v. Allen, 633 S.W.2d 804, 809 (Tex. 1982). The question then becomes whether the law requires expert testimony by which the jury can evaluate the allegation that appellant suffered from mental anguish as a result of her arrest at Dillard=s. We conclude that no such requirement exists. Claims for mental anguish can be substantiated by testimony from either the claimant, third parties, or experts. Parkway Co. v. Woodruff, 901 S.W.2d 434, 444 (Tex. 1995).

In her final legal sufficiency complaint, appellant asserts that Villalobos committed legal malpractice by not submitting a jury question for nominal and general damages. According to appellant, the failure to submit these questions not only prevented her from recovering nominal and general damages, but the jury was also prevented from granting her exemplary damages.

Villalobos testified that he did not want to seek a two-million-dollar mental anguish award because he felt the jury would be angered by the size of the request. However, he inevitably did so because appellant refused to accept anything less. Concerned about the jury=s response to that request, Villalobos decided not to ask for nominal or general damages because he believed that doing so would undercut the already fragile validity of their two-million-dollar request. Expert witnesses in the malpractice suit supported Villalobos=s concern.

After reviewing the record, we hold that appellant has not demonstrated that the evidence establishes, as a matter of law, all vital facts in support of legal malpractice. Appellant's legal sufficiency challenge must fail because legal malpractice was not conclusively established. Appellant=s first issue is overruled.

2. Factual Sufficiency

In her second issue, appellant contends the evidence is factually insufficient to support the jury=s finding that appellees did not commit legal malpractice. When a party attacks the factual sufficiency of an adverse finding on an issue on which she has the burden of proof, she must demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence. Francis, 46 S.W.3d at 242. The court of appeals must consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust. Id. We review the evidence, keeping in mind that it is the jury=s role, not ours, to judge the credibility of the evidence, to assign the weight to be given to testimony, and to resolve inconsistencies within or conflicts among the witnesses= testimony. Corpus Christi Area Teachers Credit Union v. Hernandez, 814 S.W.2d 195, 197 (Tex. App.BSan Antonio 1991, no writ).

Appellant=s legal sufficiency arguments also serve as the basis for her factual sufficiency challenge. She further asserts, however, that the jury=s negligence finding should be set aside because the evidence countervailing her legal malpractice claim consisted of testimony that was either wrongfully bolstered or improperly admitted hearsay. Appellant concedes, however, that this testimony was not objected to at trial and error has not been preserved for our review. See Tex. R. App. P. 33.1(a). We are not at liberty to take away evidence from the jury that was properly admitted without protest. The jury was free to utilize the complained of testimony in concluding that appellees did not commit legal malpractice.

After reviewing all of the evidence, we conclude that the evidence is not so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. Accordingly, we hold the evidence is factually sufficient to support the jury=s finding that appellees did not commit legal malpractice. Appellant=s second issue is overruled.

D. Allocation of Costs

On cross appeal, appellees contend the trial court abused its discretion in failing to award them costs pursuant to rule 131 of the Texas Rules of Civil Procedure. Under rule 131, a successful party in a suit is entitled to recover all the taxable costs it incurred. Tex. R. Civ. P. 131. A Asuccessful party@ is one who obtains a judgment of a competent court of jurisdiction vindicating a civil claim of right. See State Farm Mut. Auto. Ins. Co. v. Grayson, 983 S.W.2d 769, 770 (Tex. App.BSan Antonio 1998, no pet.). For costs to be taxed otherwise, the trial court must find good cause and state the reasons on the record. Tex. R. Civ. P. 141; Furr=s Supermarkets, Inc. v. Bethune, 53 S.W.3d 375, 376 77 (Tex. 2001). We review a trial court=s determination of good cause and assessment of court costs under an abuse of discretion standard. See State v. Castle Hills Forest, Inc., 842 S.W.2d 370, 372 (Tex. App.BSan Antonio 1992, writ denied).

Appellees requested that they be awarded costs in their motion to enter judgment. The trial court summarily denied the request, predicating its decision on both parties= entitlement to their day in court. The record does not reflect that appellant offered any justification for not awarding costs to the appellees, nor does the record indicate that appellees engaged in conduct to support the court's ruling. See Tex. R. Civ. P. 141; see also Bethune, 53 S.W.3d at 377 (stating good cause means the prevailing party unnecessarily prolonged the proceedings, unreasonably increased costs, or did something that should be penalized).

The trial court=s Aday in court@ justification does not establish a good cause basis for refusing to tax costs in accordance with rule 131. Because appellees were the prevailing parties below and good cause for not awarding costs to them is not stated on the record, we hold the trial court abused its discretion in failing to award appellees= costs under rule 131. Accordingly, appellees= cross issue is sustained.

We modify the trial court=s judgment to provide that all costs are taxed against appellant. As modified, the judgment of the trial court is affirmed.

FEDERICO G. HINOJOSA

Justice

Memorandum Opinion delivered and filed this

the 22nd day of August, 2005.

[1] Garcia v. Dillard=s Dep=t. Stores, No. 13-96-116-CV, 1998 Tex. App. LEXIS 133, at *3 (Tex. App.BCorpus Christi Jan. 8, 1998, pet. denied) (op. on reh=g).