John Biggar v. Adrian M. Overstreet and Overstreet, Winn & Edwards, P.C.--Appeal from 200th District Court of Travis County

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-94-00003-CV
John H. Biggar, Appellant
v.
Adrian M. Overstreet and Overstreet, Winn & Edwards, P.C., Appellees
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. 93-05891, HONORABLE JERRY DELLANA, JUDGE PRESIDING

John H. Biggar appeals from a summary judgment rendered against him in his legal malpractice action against Adrian M. Overstreet and Overstreet, Winn & Edwards, P.C. ("Overstreet"). We will reverse the trial-court judgment and remand the cause to the trial court.

 
THE CONTROVERSY

In 1985, Biggar executed and delivered his promissory note payable to National Fidelity Life Insurance Company ("NFLIC") and secured by a mortgage on real property. After Biggar's default and NFLIC's threat to foreclose its lien, Biggar and NFLIC agreed that upon foreclosure NFLIC would bid at least seventy-five percent of the value of the property as assessed in a Master Appraisal Institute ("MAI") appraisal. The mortgage was foreclosed. Biggar hired Overstreet to defend him in a subsequent suit by NFLIC seeking a deficiency judgment.

The central issue in that suit was whether the appraisal used by NFLIC to determine the value of the property was an MAI appraisal. The trial court excluded a portion of the testimony of Biggar's appraisal expert, Mr. W.F. Smith, because in his pre-trial deposition Smith testified that he had not yet been retained as an expert to review the appraisal, but if he were subsequently asked to render an expert opinion, he would notify opposing counsel in order that he might be deposed again. Opposing counsel was never so notified, however, and part of Smith's testimony was excluded. Smith was the only expert that Biggar called. Overstreet made a bill of exceptions regarding the excluded testimony. The jury found that NFLIC did not fail to secure an MAI appraisal. The trial court rendered judgment against Biggar. On appeal, this Court, in an unpublished opinion, held that the trial court did not abuse its discretion by refusing to permit Smith to testify as a sanction for failure to supplement discovery, stating that even if the exclusion was erroneous, it constituted harmless error. Biggar v. National Fidelity Life Ins. Co., No. 3-91-278-CV, slip op. at 6 (Tex. App.--Austin Aug. 12, 1992, writ denied) (not designated for publication).

After the appeal, Biggar instituted a legal malpractice suit against Overstreet, alleging negligence and gross negligence. Overstreet moved for summary judgment. In one point of error, Biggar complains the trial court erred in granting Overstreet's motion for summary judgment because Overstreet's affidavit did not constitute competent summary-judgment evidence, Overstreet's affidavit was contradicted by evidence offered by Biggar, and this Court's unpublished decision was neither competent evidence nor dispositive on the issue of causation.

 
COURT OF APPEALS DECISION

The parties disagree over whether this Court's previous opinion deciding the underlying case constitutes competent summary-judgment evidence and if it conclusively negates causation. In pertinent part, the unpublished opinion states: "In any event, even if erroneous, the exclusion of Smith's testimony was harmless error for two reasons. First, in his bill of exception, Biggar failed to ask Smith the question to which National objected. Second, the testimony elicited in the bill was subsequently elicited in front of the jury." Biggar, slip op. at 6.

Rule 90(i) provides that "[u]npublished opinions shall not be cited as authority by counsel or by a court." Tex. R. App. P. 90(i). It is unclear whether a court can rely on an unpublished court of appeals opinion deciding the underlying suit upon which a legal malpractice action is based. However, rule 90(i) has been interpreted to mean only that an unpublished opinion has no stare decisis value. Bullock v. Sage Energy Co., 728 S.W.2d 465, 469 (Tex. App.--Austin 1987, writ ref'd n.r.e.). Stare decisis, the policy of adhering to precedent, differs considerably from the preclusion doctrines of res judicata and collateral estoppel. Horne v. Moody, 146 S.W.2d 505, 509 (Tex. Civ. App.--San Antonio 1940, no writ). "The rule of stare decisis has reference only to questions of law; it involves no element of estoppel, and it operates upon all persons, and not merely the parties to the particular proceeding and their privies." Id.

In the instant cause, the issue is not one of stare decisis, but one of collateral estoppel. Therefore, we must determine whether the issue of proximate cause has been conclusively determined by examining the three elements of collateral estoppel as they relate to the harmless-error analysis in our unpublished decision. Collateral estoppel may be invoked if (1) the facts sought to be litigated in the prior action were fully and fairly litigated; (2) those facts were essential to the judgment in the prior action; and (3) the parties were cast as adversaries in the prior action. Eagle Properties, Ltd. v. Scharbauer, 807 S.W.2d 714, 721 (Tex. 1990); Bonniwell v. Beech Aircraft Corp., 663 S.W.2d 816, 818 (Tex. 1984). The burden of proof rests on Overstreet, the party who seeks to invoke the doctrine of collateral estoppel. Bonniwell, 663 S.W.2d at 820.

We find difficulty with the attempted application of collateral estoppel for several reasons. First, the assertion of collateral estoppel must fail because the parties to the malpractice suit were not adversaries in the earlier suit. Heath v. Hearon, 732 S.W.2d 748, 750 (Tex. App.--Houston [14th Dist.] 1987, writ denied); McPherson v. Stovall, 603 S.W.2d 375, 377 (Tex. Civ. App.--Waco, 1980, no writ). Mutuality of parties is not required for the invocation of collateral estoppel. However, collateral estoppel can only be asserted against a party who was a former party or was in privity with a former party in the prior litigation, provided that the party had a full and fair opportunity to litigate the particular issue in the prior suit. Scharbauer, 807 S.W.2d at 721. The issue decided in the first suit only concerned whether the trial court abused its discretion in excluding the testimony of Smith, Biggar's expert witness. We found no abuse of discretion. Additionally, the exclusion was found harmless because: (1) Overstreet failed to ask Smith in his bill of exceptions the question to which National objected at trial, and (2) everything in the bill was later elicited in front of the jury. The opinion did not address whether Overstreet was negligent in tendering the bill or whether he was negligent as Biggar claims in his malpractice action. (1) Overstreet has not shown that the facts sought to be litigated in the present cause were fully and fairly litigated in the prior action, nor has he shown that a harmless-error analysis was essential to the judgment in the underlying suit. Under these circumstances, the doctrine of collateral estoppel is unavailable to determine the issue of proximate cause.

 
OVERSTREET'S AFFIDAVIT

Biggar contends that Overstreet's affidavit is deficient because it is based wholly upon conclusory statements. Summary judgment based upon the affidavit of an interested expert witness may be upheld if the affidavit meets the requirements of rule 166a of the Texas Rules of Civil Procedure. (2) Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991); Shook v. Herman, 759 S.W.2d 743, 746-47 (Tex. App.--Dallas 1988, writ denied). However, summary judgment will not be upheld if the interested expert testimony is comprised of only conclusory statements regarding the law. Anderson, 808 S.W.2d at 55; Hidalgo v. Surety Sav. & Loan Ass'n, 487 S.W.2d 702, 703 (Tex. 1972); Vinklarek v. Cane, 691 S.W.2d 108, 111 (Tex. App.--Austin 1985, writ ref'd n.r.e.).

In Anderson, a legal malpractice action, the defendant attorney filed a motion for summary judgment supported by his uncontroverted affidavit, which stated in part:

 

I have reviewed the Plaintiff's Original Petition, my file and the relevant and material documents filed with the Court, and it is clear that I acted properly and in the best interest of Mrs. Jimmie F. Anderson when I represented her, and that I have not violated the [DTPA]. I did not breach my contract with Mrs. Jimmie F. Anderson, and have not been guilty of any negligence or malpractice. Mrs. Jimmie F. Anderson has suffered no damages or legal injury as a result of my representation of her.

 

Anderson, 808 S.W.2d at 54. This affidavit was found to be conclusory because it did not include the legal basis or reasoning for the attorney's opinion. Without this information, the attorney's affidavit constituted only a sworn denial of Anderson's claims. Id. at 55.

The pertinent part of Overstreet's affidavit states:

 

[T]he legal services provided . . . in the preparation, designation of experts, presentation and trial . . . fell within the standard of care required . . . in Travis County. Notwithstanding, the Court's exclusion of some of the expert witnesses' testimony, the same testimony was elicited in front of the jury. In my opinion it was prudent and within the standard of care to use only one expert witness on the issue of whether a certain appraisal constituted an "MAI appraisal," as having more than one expert on that issue would have led to the possibility of contradictory and confusing testimony before the jury. In my opinion, the jury heard, and rejected, our expert's opinion that the appraisal in question was not an MAI appraisal.

 

(Emphasis added.)

Biggar countered Overstreet's affidavit with the affidavit of C.L. Ray, which stated in part that the excluded testimony was "an issue central to any decision in the case," and that Overstreet breached his duty to supplement seasonably his discovery responses and that "it was reasonably foreseeable that the failure to supplement would result in the exclusion of the expert's opinion and that such breach was the cause in fact for the trial court's exclusion of Mr. Smith's testimony and opinion on the . . . appraisal."

This record does not reveal what evidence the jury actually heard. Since we have determined that the previous opinion of this Court does not negate the element of proximate cause, Overstreet's motion for summary judgment must find support elsewhere in the record. Overstreet contends that his affidavit negates causation by stating that the excluded testimony was elicited in front of the jury and the jury rejected Smith's opinion that the appraisal was not an MAI appraisal. These statements, however, are factual issues to be determined by the jury. They are not issues of "which the trier of fact must be guided solely by the opinion testimony of experts." Tex. R. Civ. P. 166a(c). See also Mosaga, S.A. v. Baker & Botts, 780 S.W.2d 3, 5 (Tex. App.--Eastland 1989, no writ) (expert testimony not needed to raise fact issue as to whether attorney negligently prepared referral agreement as jury could easily determine that the agreement violated provisions of the Real Estate License Act). In a legal malpractice action based on an attorney's negligence in the trial court, (3) the determination of negligence is generally a question of fact for the jury. Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex. 1989); Rhodes v. Batilla, 848 S.W.2d 833, 840 (Tex. App.--Houston [14th Dist.] 1993, writ denied); Mosaga, 780 S.W.2d at 6. Ordinarily, after the jury makes its factual determinations, the trial court decides whether the facts establish legal malpractice as a matter of law. Rhodes, 848 S.W.2d at 840. The trier-of-fact is in a better position to determine precisely what testimony was elicited in front of the previous jury, than is this Court working without a record of the trial. Under these facts, the determination of proximate cause is a question of fact, not an issue to be decided as a matter of law. Millhouse, 775 S.W.2d at 627; Rhodes, 848 S.W.2d at 840; Mosaga, 780 S.W.2d at 6.

 
CONCLUSION

We hold that there is a genuine issue of material fact regarding whether the jury heard and rejected testimony that the appraisal was not an MAI appraisal and thus whether Overstreet's handling of the expert witness proximately caused Biggar's damages as a matter of law. We reverse the trial-court judgment and remand the cause to that court.

 

John Powers, Justice

Before Justices Powers, Aboussie and B. A. Smith

Reversed and Remanded

Filed: March 15, 1995

Do Not Publish

1. Specifically, Biggar alleges Overstreet was negligent in:

 

a) failing properly and adequately to prepare Smith for his deposition testimony or, in the alternative, for failing to instruct Smith that a key part of his expert testimony was whether the Appraisal constituted a current MAI appraisal;

 

b) failing properly to supplement Smith's interrogatory answers in compliance with Texas Rule of Civil Procedure 166b(6);

 

c) failing to notify NFLIC's attorneys following Smith's deposition that Smith would testify at trial that the Appraisal was not a current MAI appraisal;

 

d) failing to designate other expert witnesses to testify on Biggar's behalf regarding if the Appraisal was a current MAI appraisal;

 

e) failing to make an adequate bill of exception regarding the trial court's exclusion of Smith's testimony;

 

f) failing to elicit from Smith during his bill of exception the answer to the question National objected to at trial;

 

g) failing to seek leave to show cause why Smith should be permitted to testify that the Appraisal was not a current MAI appraisal;

 

h) failing to seek leave to show cause why other expert witnesses should be permitted to testify on the issue of whether the Appraisal was not a current MAI appraisal;

 

i) failing to advise Biggar before trial that Smith's testimony might be excluded thereby enabling Biggar to seek settlement of National's claim prior to trial;

 

j) failing to develop evidence that the Appraisal was not conducted before the foreclosure date.

2. Rule 166a(c), in part, provides that:

 

A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the testimony of the interested witness is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

 

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

3. Each allegation of negligence arose from Overstreet's pre-trial and trial performance. However, "in cases of appellate legal malpractice, where the issue of causation hinges on the possible outcome of an appeal, the issue is to be resolved by the court as question of law." Millhouse v. Wiesenthal, 775 S.W.2d 626, 628 (Tex. 1989).