Mardoche Abdelhak v. L. Brent Farney--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-07-00121-CV

Mardoche ABDELHAK,

Appellant

v.

L. Brent FARNEY,

Appellee

From the 225th Judicial District Court, Bexar County, Texas

Trial Court No. 2006-CI-01063

Honorable John J. Specia, Jr., Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Rebecca Simmons, Justice

Delivered and Filed: November 28, 2007

AFFIRMED

This appeal stems from a legal malpractice case. Appellant Mardoche Abdelhak ( Abdelhak ) asserts the trial court erred in: (1) denying his motion to modify discovery; (2) denying his motion for a continuance of a no-evidence summary judgment hearing; and (3) granting Appellee L. Brent Farney s ( Farney ) motion for no-evidence summary judgment. Because the trial court did not abuse its discretion in denying Abdelhak s motions to modify discovery and for a continuance, and Abdelhak failed to meet his burden of proof under a no-evidence summary judgment, we affirm the judgment of the trial court.

Background

Abdelhak filed his original petition against Farney on January 23, 2006. In his petition, Abdelhak alleged legal malpractice and violations of the Texas Deceptive Trade Practices Act (DTPA) stemming from a lawsuit in which Farney served as legal counsel for Abdelhak. Discovery on Abdelhak s lawsuit against Farney was conducted under level 2 of Texas Rule of Civil Procedure 190.3.

The discovery period ended on or about December 4, 2006. Abdelhak failed to designate an expert prior to the deadline, which in this case was 90 days before the end of discovery or September 4, 2006. Farney, however, designated an expert prior to his deadline. On October 26, 2006, Farney filed a no-evidence summary judgment motion. Shortly thereafter Abdelhak filed a Motion to Modify Discovery Control Plan or to Allow Designation of Expert Out of Time, Motion for Continuance of Hearing on No Evidence Motion for Summary Judgment, and Response to No Evidence Motion for Summary Judgment. In response, Farney filed objections and motions to strike the testimony of Roy Sullivan and the affidavits of Abdelhak and John Carl Stromberger. Farney also objected to the use of his expert s report by Abdelhak as summary judgment evidence.

On November 20, 2007, the trial court sustained some of Farney s objections and struck the testimony of Roy Sullivan and portions of the affidavits of Abdelhak and Stromberger because neither had been timely designated as experts. Additionally, the trial court denied Abdelhak s motions and granted Farney s motion for a no-evidence summary judgment. Abdelhak challenges the trial court s denial of his motions and the granting of Farney s motion for summary judgment.

Motions For a Continuance, to Modify Discovery Deadlines, and to Allow Designation of Experts

In issues two and three, Abdelhak asserts the trial court erred in denying his motions for a continuance of the summary judgment hearing and to modify the discovery control plan. We review the trial court s decision to deny Abdelhak s motions to modify discovery and for a continuance of the summary judgment hearing under an abuse of discretion standard. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex. 2002); City of San Antonio v. El Seguido, Ltd., 227 S.W.3d 237, 240 (Tex. App. San Antonio 2007, no pet.); Brown v. Brown, 145 S.W.3d 745, 749 (Tex. App. Dallas 2004, pet. denied). The trial court abuses its discretion when it acts without reference to any guiding principles. Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 270 (Tex. App. Austin 2002, pet. denied).

A. Motion for a Continuance

In his motion for a continuance, Abdelhak requested additional time to conduct discovery in order to respond to Farney s motion for summary judgment and expert report. We consider the following nonexclusive factors in evaluating a trial court s denial of a motion for continuance seeking additional time to conduct discovery:

[1] the length of time the case has been on file, [2] the materiality and purpose of the discovery sought, [3] and whether the party seeking the continuance has exercised due diligence to obtain discovery sought.

Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004).

In particular, Abdelhak stated in his affidavit that he needed additional time to depose Farney to explore the facts surrounding the actions and decisions of . . . his representation . . . so that a determination can be made regarding what, if any, experts are needed, and to afford any such expert or experts a factual basis upon which to render an opinion. Abdelhak stated that his attorney sent a letter on June 16, 2006 to Farney s attorney to schedule the deposition of Farney. In response, on June 29, 2006, Farney s attorney requested an opportunity to conduct the deposition of Abdelhak the day after the deposition of Farney and provided several scheduling options both before and after Abdelhak s deadline to designate his experts of September 4, 2006. By agreement, Farney s and Abdelhak s depositions were scheduled on September 7th and 8th. Abdelhak then postponed the depositions scheduled for September 7th and 8th due to his attorney s illness.

If Farney s deposition was vital to the determination of whether an expert was necessary, it was incumbent upon Abdelhak to conduct the deposition in a timely manner, prior to the expert designation deadline. Abdelhak initiated his attempt to schedule the deposition of Farney almost five months after he filed his original petition and did not request a modification of the discovery deadlines prior to September 4, 2006. Although Abdelhak states that his attorney s illness resulted in the postponement of the depositions, this does not excuse the lack of designation, since the scheduled deposition date was after Abdelhak s deadline to designate an expert. Based on Abdelhak s explanations and his lack of diligence in designating an expert, we are unable to conclude that the trial court abused its discretion in denying his request for a continuance. Accordingly, Abdelhak s issue number two is overruled.

B. Motion to Modify Discovery Control Plan

Abdelhak asserts similar arguments regarding the denial of his motion to modify the discovery control plan. Abdelhak stated that his motion to modify the discovery control plan was filed pursuant to Rule 190.5. Tex. R. Civ. P. 190.5.

The court may modify a discovery control plan at any time and must do so when the interest of justice requires. Tex. R. Civ. P. 190.5. Rule 190.5 specifies two situations when the trial court must allow additional discovery.[1] Id. Abdelhak, however, does not argue that either of these two situations applies. For the same reasons that the trial court did not abuse its discretion in denying Abdelhak s motion for a continuance, we conclude that it was within the trial court s discretion to hold that the interest of justice did not require modification of the discovery period. See Brown v. Brown, 145 S.W.3d 745, 750 (Tex. App. Dallas 2004, pet. denied) (affirming the trial court s decision to deny plaintiff s motion for modification of discovery procedures when there was some evidence that the plaintiff did not exercise due diligence).

C. Out of Time Expert Designation

Finally, Abdelhak asserts that Farney would not be unduly prejudiced or surprised if the trial court allowed him to designate experts and submit an expert report. If a party fails to timely designate an expert witness, then the trial court will exclude the expert s testimony unless the party seeking to introduce the evidence establishes either (1) good cause for failing to timely designate or (2) that it would not unfairly surprise or prejudice the other parties. Villegas v. Texas Dep t of Transp., 120 S.W.3d 26, 35 (Tex. App. San Antonio 2003, pet. denied). Abdelhak does not assert that he had good cause for failing to timely designate an expert, but he claims Farney will not be prejudiced.

Specifically, Abdelhak contends that Farney would not be prejudiced because he has been fully apprised of the claims against him and the evidence proposed to be asserted to the point that he was able to produce an elaborate expert report. Thus, according to Abdelhak, Farney could not be unfairly surprised or prejudiced if he were allowed to designate an expert and file an expert report after the scheduled deadline.

In Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 915 (Tex. 1992), the supreme court addressed whether a witness, not identified in response to a discovery request, should be allowed to testify at trial. With regards to the element of unfair surprise, the supreme court noted that:

[d]etermining whether a party is really surprised by an offer of testimony not formally identified in discovery is difficult. The better prepared counsel is for trial, the more likely he is to have anticipated what evidence may be offered against his client, and the less likely he is to be surprised. It would hardly be right to reward competent counsel s diligent preparation by excusing his opponent from complying with the requirements of the rules.

Id. at 915. Taking into account the principle announced in Alvarado, we disagree with Abdelhak that Farney s timely elaborate report should be a factor in determining if unfair surprise would follow.

In Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 272 (Tex. App. Austin 2002, pet. denied), the appellate court reviewed facts similar to the present case. Ersek filed a lawsuit against Davis & Davis, P.C. (Davis) for legal malpractice and violations of the Texas Deceptive Trade Practices Act. Ersek, however, failed to timely designate an expert. Id. Thereafter, Davis filed a motion for summary judgment. Id. The trial court granted the motion based, at least in part, on the absence of expert testimony to support Ersek s causes of action. Id. at 274.

On appeal, Ersek argued that Davis was not unfairly surprised or prejudiced because an expert witness was required to establish this cause of action and because Ersek offered [Davis] open access to depose the expert witness. Id. at 273. The appellate court concluded the fact that an expert witness is necessary to establish Ersek s cause of action does not establish that the defense would not be unfairly surprised by this expert named at this time. Id. We similarly agree that although Farney may have been aware that Abdelhak s legal malpractice claim required an expert, this alone does not establish that Farney would not be unfairly surprised or prejudiced.

We believe both the discussion of the supreme court in Alvarado and the holding in Ersek support the trial court s decision to deny Abdelhak s motions. Because the trial court s decision to deny Abdelhak s motion was supported by the evidence, we conclude the trial court did not abuse its discretion. We overrule Abdelhak s issue number three.

No-Evidence Summary Judgment

  Farney sought a no-evidence summary judgment on Abdelhak s legal malpractice and DTPA claims. With regards to the legal malpractice claim, Farney argued that without expert testimony there was no evidence of the appropriate standard of care, breach of that standard of care, causation, or damages. Similarly, Farney claimed that there was no evidence to support the element of causation in Abdelhak s DTPA claim. In issue number one, Abdelhak asserts that the trial court erred in granting Farney s motion for no-evidence summary judgment because expert testimony was not required to prove his claims. We disagree.

We review a no-evidence summary judgment de novo. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997); Nixon v. Mr. Property Management, 690 S.W.2d 546, 549 (Tex.1985). When a party moves for summary judgment under Rule 166a(i) asserting that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial, the burden is on the nonmovant to present more than a scintilla of probative evidence to raise a genuine issue of material fact on each of the challenged elements. Tex.R. Civ. P. 166a(i); Reynosa v. Huff, 21 S.W.3d 510, 512 (Tex. App. San Antonio 2000, no pet.). If the nonmovant fails to do so, the trial judge must grant the motion. See Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex. App. Austin 1998, no pet.). We construe the record in the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Havner, 953 S.W.2d at 711.

In Alexandar v. Turtur & Assocs., Inc., 146 S.W.3d 113, 115 (Tex. 2004), the supreme court explained the necessity of an expert in certain legal malpractice cases as follows:

[d]ecisions of which witnesses to call, what testimony to obtain or when to cross-examine almost invariably are matters of judgment. As such, the wisdom and consequences of these kinds of tactical choices made during litigation are generally matters beyond the ken of most jurors. And when the causal link is beyond the jury s common understanding, expert testimony is necessary.

Id. at 120 (internal citations omitted).

Abdelhak s petition alleges that Farney committed malpractice because he did not call certain witnesses, failed to elicit certain testimony, and did not thoroughly cross-examine a witness during the underlying litigation. Pursuant to Alexander, proof of the causal link between Farney s decisions not to call certain witnesses or elicit certain testimony and Abdelhak s injury, if any, requires expert testimony. Id. Abdelhak argues that Alexander involved a jury trial case and this was a bench trial. Thus, Abdelhak contends, Farney s negligence would be more obvious to the trial court as the trier of fact as opposed to a jury. Abdelhak, however, does not provide any authority to support the proposition that the necessity of expert testimony depends on the identity of the trier of fact.

Further, we disagree that Alexander is distinguishable on the basis that the trier of fact in the present case was the court and not a jury. Abdelhak bore the burden to present more than a scintilla of evidence to raise a genuine issue of material fact during the no-evidence summary judgment hearing. Abdelhak s proposition appears to be premised on judges having some experience and legal education superior to that of most jurors. Inevitably, this premise would turn an objective criterion is it beyond the knowledge of most jurors into a subjective one. We are unable to conclude that Alexander is inapplicable to cases presented to the trial court rather than a jury.

The trier of fact, whether the court or a jury, must have some basis for understanding the causal link between the attorney s negligence and the client s harm. Id. at 119. Based on Abdelhak s petition, expert testimony was necessary on the element of causation of fact for both his legal malpractice and DTPA claims. Having failed to provide the necessary evidence, the trial court properly granted Farney s motion for a no-evidence summary judgment. We overrule Abdelhak s issue number one.

Conclusion

The trial court s denial of Abdelhak s motions was supported by the evidence and therefore, was not an abuse of discretion. Further, because Abdelhak failed to provide expert testimony, the trial court properly granted a no-evidence summary judgment in favor of Farney. Having overruled all of Abdelhak s issues, we affirm the judgment of the trial court.

Rebecca Simmons, Justice

[1] Rule 190.5 provides:

The court may modify a discovery control plan at any time and must do so when the interest of justice requires. The court must allow additional discovery:

 
(a) related to new, amended or supplemental pleadings, or new information disclosed in a discovery response or in an amended or supplemental response, if:

(1) the pleadings or responses were made after the deadline for completion of discovery or so nearly before that deadline that an adverse party does not have an adequate opportunity to conduct discovery related to the new matters, and

(2) the adverse party would be unfairly prejudiced without such additional discovery;

 
(b) regarding matters that have changed materially after the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period ends.

Tex. R. Civ. P. 190.5.