Jose Ramirez v. Daniel V. Pozza--Appeal from 408th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00881-CV

Jose RAMIREZ,

Appellant

v.

Dan POZZA,

Appellee

From the 408th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-CI-17325

Honorable Fred Shannon, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 13, 2005

AFFIRMED

Jose Ramirez appeals a no-evidence summary judgment granted in favor of Dan Pozza in a legal malpractice lawsuit. Because the issues in this appeal involve the application of well-settled principles of law, we affirm the trial court s judgment in this memorandum opinion.

A trial court must grant a no-evidence motion for summary judgment unless the respondent produces summary judgment evidence raising a genuine issue of material fact. Tex. R. Civ. P. 166a(i); Southwestern Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 436-37 (Tex. App. Houston [14th Dist.] 1999, no pet.). After special exceptions were granted and Ramirez failed to file an amended pleading, Pozza moved for summary judgment or, in the alternative, for a dismissal of Ramirez s claims. Prior to the hearing on Pozza s motion, Ramirez filed a response which the trial court appears to have construed as an amended pleading asserting a claim that Pozza engaged in legal malpractice by failing to inform Ramirez of the 51% negligence rule. The trial court granted a partial summary judgment in favor of Pozza as to all of Ramirez s claims except the claim that he was not informed of the 51% negligence rule. // Pozza then filed a no-evidence motion for summary judgment specifically challenging the breach, causation, and damages elements of that claim. Although Ramirez claimed to have three witnesses who could provide evidence, Ramirez failed to present any competent summary judgment evidence in opposition to Pozza s motion. // Because Ramirez failed to produce any evidence in response to Pozza s no-evidence motion, the trial court did not err in granting the no-evidence motion for summary judgment. See Petroscience Corp. v. Diamond Geophysical, Inc., 684 S.W.2d 668 (Tex. 1984) (summary judgment proper even if it was granted on an erroneous ground if it may properly be upheld on an alternative ground expressly presented to the trial court).

The trial court s judgment is affirmed.

Sandee Bryan Marion, Justice