Tummel & Casso, Harold K. Tummel and Lydia Casso Tummel v. William Snyder, M.D., Patricia Snyder and Rio Grande Orthopaedic Institute, P.A.--Appeal from 93rd District Court of Hidalgo County

NUMBER 13-04-223-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG

TUMMEL & CASSO, HAROLD

K. TUMMEL AND LYDIA CASSO

TUMMEL, Appellants,

 
v.

WILLIAM SNYDER, M.D., PATRICIA

SNYDER AND RIO GRANDE

ORTHOPAEDIC INSTITUTE, P.A., Appellees.

On appeal from the 93rd District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Hinojosa (1) and Ya ez
Memorandum Opinion by Justice Ya ez

Appellants, Tummel & Casso ("T&C"), Harold K. Tummel ("Tummel"), and Lydia Casso Tummel, appeal from several trial court orders granting summary judgment in favor of appellees, William K. Snyder, M.D., Patricia Snyder, and Rio Grande Orthopaedic Institute, P.A. We reverse the judgments granted in appellees' favor and remand to the trial court for further proceedings.

Background

T&C sued appellees for unpaid attorneys' fees and related note balances for legal representation that T&C provided to appellees. (2) Appellees filed a counterclaim, alleging legal malpractice. On April 20, 2000, the trial court granted summary judgment in T&C's favor on its claim for attorneys' fees. The trial court's April 20, 2000 order also severed T&C's claims into a separate cause number, cause number C-4419-99-B(1) ("the severed cause").

On May 9, 2000, appellees filed a motion for reconsideration in the parent cause number, requesting the trial court to reconsider and vacate its April 20 order in T&C's favor. On May 19, 2000, the trial court granted appellees' motion for reconsideration and vacated its April 20, 2000 summary judgment order. Thereafter, T&C filed a motion in the parent cause number, arguing that the trial court lacked jurisdiction to grant the May 19, 2000 order because it was granted in the parent cause rather than in the severed cause. The trial court rejected T&C's argument.

On March 1, 2001, appellees filed a no-evidence motion for partial summary judgment, (3) alleging that as a matter of law, T&C did not have the evidence necessary to sustain its claim for attorneys' fees. Specifically, appellees alleged that T&C had no evidence establishing the reasonableness and necessity of the attorneys' fees at issue. In the motion, appellees also challenged T&C's reliance on certain demand promissory notes executed by William and Patricia Snyder in favor of T&C.

On March 29, 2001, appellees filed a "traditional" motion for partial summary judgment, alleging that appellants had committed legal malpractice in connection with their representation of appellees in two legal matters. Specifically, appellees alleged that appellants committed malpractice by pursuing (on appellees' behalf) the enforcement of a non-compete agreement against Dr. Michael Sweeney ("the Sweeney litigation"), despite the absence of any chance of successful enforcement because there was no written agreement. Secondly, appellees alleged that appellants committed malpractice by filing a lawsuit to protect Dr. Snyder's right to continue practicing at a surgery center, despite the absence of any chance of success because Dr. Snyder had failed to exhaust his administrative remedies. In support of their motion, appellees attached numerous documents, including copies of the unsigned non-compete agreement.

On August 31, 2001, the trial court granted appellees' no-evidence motion, ordering that T&C take nothing on its claim for attorneys' fees.

On February 21, 2003, appellees filed a third motion for partial summary judgment, alleging that appellants committed malpractice in their handling of the Sweeney litigation (4) and seeking damages of the attorneys' fees paid to T&C.

On April 25, 2003, the trial court granted appellees' traditional motion for summary judgment for legal malpractice against appellants in connection with the Sweeney litigation. On April 5, 2004, the trial court granted appellees' third motion for summary judgment, awarding them damages in the amount of $134,074.64. On June 18, 2004, the trial court granted final judgment in appellees' favor and denied appellants' motion for sanctions.

In seven issues, appellants generally challenge the trial court's orders granting judgment in appellees' favor.

Standard of Review

The standard of review for the grant of a motion for summary judgment is determined by whether the motion was brought on no-evidence or traditional grounds. (5) We review de novo a trial court's grant or denial of a traditional motion for summary judgment. (6) The movant bears the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. (7) In deciding whether there is a genuine issue of material fact, we take evidence favorable to the non-movant as true. (8) We make all reasonable inferences and resolve all doubts in favor of the non-movant. (9) When a trial court grants summary judgment without specifying the basis on which it is granted, the appellant must show that it was error to base the summary judgment on all grounds asserted in the motion. (10)

A no-evidence summary judgment is equivalent to a pretrial directed verdict, and this Court applies the same legal sufficiency standard on review. (11) In an appeal of a no-evidence summary judgment, this Court reviews the evidence in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. (12) If the nonmovant produces evidence to raise a genuine issue of material fact, summary judgment is improper. (13) All that is required of the non-movant is to produce a scintilla of probative evidence to raise a genuine issue of material fact. (14) "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.'" (15) Conversely, more than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." (16) The burden of producing evidence is entirely on the non-movant; the movant has no burden to attach any evidence to the motion. (17)

Applicable Law

An attorney malpractice action in Texas is based on negligence and requires proof of four elements: the existence of a duty, the breach of that duty, that the breach was a proximate cause of damages, and that the plaintiff was damaged. (18) The components of proximate cause are cause-in-fact and foreseeability. (19) These elements cannot be established by mere conjecture, guess, or speculation. (20) If an attorney demonstrates that his malfeasance was not the cause of any damages to the client, a summary judgment may be proper. (21)

The test for cause-in-fact is whether the negligent "act or omission was a substantial factor in bringing about injury," without which the harm would not have occurred. (22) The word "substantial" is used to denote the fact that the defendant's conduct has such an effect in producing the harm as to lead reasonable men to regard it as a cause, using that word in the popular sense, in which there always lurks the idea of responsibility. (23)Cause-in-fact is not shown if the defendant's negligence did no more than furnish a condition which made the injury possible. (24) Although proximate cause in a legal malpractice action is usually a question of fact, it may be determined as a matter of law if the circumstances are such that reasonable minds could not arrive at a different conclusion. (25)

As the Texas Supreme Court has noted,

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. (26)

 

Because a lawyer is held to the standard of care that would be exercised by a reasonably prudent attorney, expert testimony of an attorney is usually necessary to establish the standard of skill and care ordinarily exercised by an attorney. (27) To establish compliance with the standard, expert testimony is also usually required. (28)

Analysis

In their first two issues, appellants contend the trial court erred in granting appellees' February 21, 2003 traditional motion for partial summary judgment for legal malpractice and damages. Specifically, appellants contend that appellees failed to establish at least two elements of their malpractice claim: breach of the standard of care and causation. In their third issue, appellants contend the trial court erred in granting summary judgment establishing damages as a matter of law based on appellees' legal malpractice claims. We address these issues together.

In their motion, appellees contend that appellants committed malpractice by seeking to enforce a non-compete agreement against Sweeney even though they knew there was no written agreement. The motion asserts that appellants failed to discharge their "duty to explain the applicable law, explain any potential defenses or impediments to the goal sought, and allow [appellees] the opportunity to make a reasoned decision about initiating and/or continuing to pursue litigation." It also asserts that appellants "induced" appellees into signing promissory notes for legal invoices and that appellees "believe" appellants were using the notes and invoices as collateral for a line of credit through appellants' bank.

Appellees' summary judgment evidence includes the affidavits of (1) William Snyder, (2) Patricia Snyder, (3) Reynaldo Ortiz, appellees' counsel, and (4) Steven L. Lee, an attorney and appellees' expert. The summary judgment evidence also includes various documents attached to the affidavits.

William Snyder's affidavit states that when he initially met with Tummel to discuss the Sweeney matter, he gave him copies of a non-compete agreement that had been discussed with Sweeney, but made it clear that the agreements had never been signed. Snyder states that he "incurred thousands of dollars in legal fees to advance a claim that apparently had no hope of prevailing." He further states that Tummel "required" that he and Patricia sign promissory notes for the legal fees incurred. A copy of the unsigned "employment agreement" was also provided as summary judgment evidence.

Patricia Snyder's affidavit also states that Tummel was told that an agreement had been discussed with Sweeney but that no signed written agreement existed. She stated that Tummel insisted he could enforce the non-compete agreement against Sweeney despite the absence of a written agreement.

Attached to Reynaldo Ortiz's affidavit is an excerpt from Tummel's responses to appellees' interrogatories. In the responses, Tummel asserts that although appellees did not provide him a copy of the written agreement with Sweeney, they represented to him that Sweeney had agreed in writing to certain "non-compete" provisions in the agreement.

Steven L. Lee's affidavit states that Tummel had a duty to inform his clients (appellees) that without a written agreement, enforcement of an oral covenant-not-to-compete was "highly unlikely under the existing law." He states that the Tummel defendants were stuck on the "fixed notion" of enforcing an oral contract, and that there was an appearance of an "absence of attention to finding the appropriate vehicle" to pursue appellees' goals. He also states that

the evidence gives every appearance that the Tummel Defendants sacrificed their fiduciary duties of utmost fairness, candor, rendition of independent legal advice and judgment, and placing paramount the clients' interest in order to provide financial benefit to themselves. Bluntly stated, it appears that the Tummel Defendants identified a client with a legal problem and deep pockets and proceeded to bill that client with great vigor, based more on the lawyers' financial needs than the client's legal needs.

 
*
* * *

As I am unaware of any evidence that Dr. Snyder or an agent was ever presented with information concerning potential downside risks and the attendant costs of certain of the services. l am also unaware of any evidence that Dr. Snyder turned the Tummel Defendants loose with instructions to "spare no expenses" or to "vigorously pursue this even though it is a long shot," without regard to costs or ultimate outcome. When this is coupled with the unusual financial arrangement of securing each invoice with a promissory note and using the notes and/or receivables to maintain a line of credit at a bank, the inescapable conclusion is that the Tummel Defendants breached their fiduciary duties.

 

Appellants contend that appellees' summary judgment evidence is inadequate to establish causation as a matter of law. In their brief, appellees assert that "[t]he proximate cause of [their] damages is therefore the fact that by not disclosing the vast remoteness of success the Appellants continued to bill for a claim destined to fail." We agree with appellants that appellees' summary judgment evidence is insufficient to establish their right to judgment as a matter of law. (29)

An affidavit that merely contains an expert's conclusory statements is insufficient to support or defeat summary judgment. (30) This is true because such statements are not credible or susceptible to being readily controverted. (31) An expert's affidavit supporting a motion for summary judgment must be clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and readily controvertible. (32) Here, Lee's affidavit asserts the "appearance" of an absence of attention by appellants to finding an appropriate legal strategy for accomplishing their clients' goals and a "strong appearance" that appellants' "judgment was impaired by their own financial interests." After reviewing Lee's affidavit, we conclude it contains no more than conclusory statements that are insufficient to support summary judgment. (33) We sustain appellants' first and second issues.

In their third issue, appellants challenge the trial court's summary judgment as to damages. We agree. No recovery is allowed unless liability has been established. (34) In the absence of liability, the question of damages becomes immaterial. (35) We sustain appellants' third issue.

In their fourth issue, appellants contend that the trial court lacked jurisdiction to grant appellees' no-evidence motion for summary judgment because the court's May 9, 2000 order granting appellees' motion for reconsideration and vacating the summary judgment in appellants' favor was granted in the parent cause rather than in the severed cause. We disagree.

This Court has previously considered and rejected appellants' argument. (36)

We again reject appellants' argument that the trial court lacked jurisdiction. We overrule appellants' fourth issue.

In their fifth issue, appellants contend the trial court erred in granting appellees' no-evidence summary judgment motion on appellants' claims for attorneys' fees. We agree.

In their no-evidence summary judgment motion, appellees argued that appellants lacked "legally sufficient evidence to establish the reasonableness and necessity of [their attorneys'] fees." In response to the motion, appellants presented four affidavits of Harold Tummel. (37) Attached to Tummel's December 21, 1999 affidavit are nine promissory notes executed by William and Patricia Snyder. Tummel's affidavit identifies T&C as the holder of the notes and identifies the unpaid balances due to T&C under the notes. Appellants cite Hall v. Fowler, 389 S.W.2d 730, 732 (Tex. App.-Dallas 1965, no writ), in support of their argument that when a client has given a promissory note in lieu of payment for legal services already rendered, the client is estopped from later claiming that the charges for such services were not reasonable. In Fowler, a client executed a promissory note to her attorney for legal fees rendered pursuant to the client's divorce. (38) After the client defaulted, the attorney sued and moved for summary judgment, which was granted and affirmed on appeal, even though the former client claimed inadequate consideration for the note. (39) In affirming the summary judgment in favor of the attorney, the Fowler court stated:

One cannot receive and accept the personal services of another, and thereafter execute a promissory note for the amount of the fee demanded by the one performing the services, and then defeat liability on that note by contending that the services were not worth the amount of the note. If there was a question as to the value of services already rendered, that question must be considered as resolved by the execution of the note. (40)

 

We agree with the Fowler court's reasoning. We hold that Tummel's affidavits and the promissory notes constitute more than a scintilla of evidence supporting the reasonableness and necessity of T&C's attorneys' fees. We hold the trial court erred in granting appellees' no-evidence motion for summary judgment as to T&C's claim for attorneys' fees. We sustain appellants' fifth issue.

In their sixth issue, appellants contend that their motions for summary judgment on their claim for attorneys' fees, "granted on April 20, 2000, established entitlement to summary judgment as a matter of law." In support, however, appellants simply challenge appellees' evidence in response to their motions as incompetent. Appellants then urge that "the only summary judgment evidence which this Court needs to consider in determining whether Tummel & Casso proved its entitlement to summary judgment as rendered on April 20, 2000, is the summary judgment evidence submitted by Tummel & Casso in support of its motions." As noted, the summary judgment granted in favor of appellants was vacated. As movants, appellants bear the burden of showing both no genuine issue of material fact and entitlement to judgment as a matter of law. (41) In the absence of any authority or citations to the record in support of their argument, we hold that appellants have waived their sixth issue. (42)

In their seventh issue, appellants contend the trial court erred in denying their motion for sanctions. On November 6, 2003, appellants filed a "Third Amended Answer," which included the following paragraph:

In addition, [appellants] would show that all of the claims which have been asserted herein are groundless, brought in bad faith, brought for the purpose of harassment, and brought for an improper purpose for which [appellants] seek redress under Section 9.012 of the Texas Civil Practice and Remedies Code and Texas Rule of Civil Procedure 13.

 

In their brief, appellants assert that their evidence established, among other things, that appellees (1) only asserted malpractice claims against them after appellants demanded payment of past due legal fees, (2) did not assert malpractice claims against other attorneys who served as co-counsel with appellants, (3) failed to present competent opinion testimony supporting their malpractice claims, (4) resisted discovery, and (5) non-suited some of their claims against appellants without consideration. In support, appellants refer us to "Plaintiffs' Exhibit 3," an exhibit consisting of approximately 134 pages. Absent specific argument as to how appellants' evidence supports their claim for sanctions and specific citations to the record, we are unpersuaded that the trial court abused its discretion in denying appellants' request. (43) We overrule appellants' seventh issue.

Conclusion

We (1) reverse the trial court's August 31, 2001 order granting appellees' no-evidence motion for summary judgment on appellants' claims for attorneys' fees, (2) reverse the trial court's April 25, 2003 order granting appellees' traditional motion for summary judgment for legal malpractice, (3) reverse the trial court's April 5, 2004 order granting appellees' motion for partial summary judgment and awarding damages, (4) reverse the trial court's June 18, 2004 final judgment, and (5) remand this cause to the trial court for further proceedings consistent with this opinion.

 

LINDA REYNA YA EZ,

Justice

 

Memorandum opinion delivered and filed

this the 15th day of February, 2007.

 

1. The Honorable Federico G. Hinojosa, former Justice of this Court, did not participate in this opinion because his term of office expired December 31, 2006. See Tex. R. App. P. 41.1(c).

2. T&C's lawsuit was filed in trial court cause number C-4419-99-B ("the parent cause number").

3. Appellees' counterclaim for legal malpractice was not included in the motion.

4. The February 21, 2003 motion notes that two other litigation matters in which appellees allege appellants committed legal malpractice-- the day surgery litigation and the "Dove McColl Properties litigation"-- are "reserved for disposition during trial on the merits." All of appellees' claims were subsequently non-suited except for the legal malpractice claims regarding the Sweeney litigation, which are the subject of the February 21, 2003 motion. Accordingly, we view the February 21, 2003 motion as superseding the March 29, 2001 motion.

5. See Tex. R. Civ. P. 166a(i), (c); see also Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.-Corpus Christi 2003, no pet.) (op. on reh'g).

6. Ortega, 97 S.W.3d at 772.

7. See Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985); see also Ortega, 97 S.W.3d at 771.

8. Ortega, 97 S.W.3d at 771.

9. Id.

10. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).

11. Ortega, 97 S.W.3d at 772.

12. Id.

13. Tex. R. Civ. P. 166a(i).

14. Ortega, 97 S.W.3d at 772.

15. Id. (quoting Kindred v. Con/Chem Inc., 650 S.W.2d 61, 63 (Tex. 1983)).

16. Id. (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)).

17. Tex. R. Civ. P. 166a(i).

18. Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989); Rodriguez v. Klein, 960 S.W.2d 179, 184 (Tex. App.-Corpus Christi 1997, no pet.).

19. Klein, 960 S.W.2d at 184.

20. Id.

21. Id. (citing cases).

22. Id.

23. Id. at 184-85.

24. Id. at 185.

25. Id.

26. Cosgrove, 774 S.W.2d at 665 (emphasis in original).

27. Zenith Star Ins. Co. v. Wilkerson, 150 S.W.3d 525, 530 (Tex. App.-Austin 2004, no pet.).

28. Id.

29. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991).

30. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996).

31. See id.

32. See Tex. R. Civ. P. 166a(c).

33. See Hood, 924 S.W.2d at 122.

34. Turner v. Lone Star Indus., Inc., 733 S.W.2d 242, 246 (Tex. App.--Houston [1st Dist.] 1987, writ ref'd n.r.e.).

35. Id.

36. See Tummel v. Mega Life Ins. Co., Nos. 13-02-312-CVV, 13-02-313-CV, 13-02-314-CV, 13-02-315-CV, and 13-02-316-CV, 2004 Tex. App. LEXIS 7735, at *10 (Tex. App.-Corpus Christi 2004, pet. denied) (relying on rule 329b(d) of the rules of civil procedure in noting that on May 19, 2000, the trial court vacated its April 20, 2000 summary judgment order at a time when it still enjoyed plenary power over the order).

37. Specifically, appellants' response identifies Harold Tummel's affidavits dated December 21, 1999, February 16, 2000, May 17, 2001, and May 22, 2001. The response states that Tummel's December 21, 1999 and February 16, 2000 affidavits and attachments were previously filed in the case and were attached to appellants' motions for summary judgment. The response states that both earlier-filed affidavits and attachments are "incorporated herein by reference as if fully set forth at length as evidence in opposition to the [appellees'] Motion for Partial Summary Judgment." Tummel's May 22, 2001 affidavit (attached to the response) refers to the February 16, 2000 affidavit and states that the charges for legal services rendered by appellants to appellees were reasonable.

38. Hall v. Fowler, 389 S.W.2d 730, 731 (Tex. App.-Dallas 1965, no writ).

39. Id. at 732.

40. Id.

41. See Tex. R. Civ. P. 166a(c); Nixon, 690 S.W.2d at 548; Ortega, 97 S.W.3d at 771.

42. See Tex. R. App. P. 38.1(h).

43. See Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852 (Tex. 1992) (noting abuse-of-discretion standard applies to trial court's decision to impose sanctions).