Opinion
NO. 14-16-00540-CV
03-02-2021
FELIX P. BABAUTA, Appellant v. DEBRA V. JENNINGS AND RALPHAELL V. WILKINS, Appellees
On Appeal from the 295th District Court Harris County, Texas
Trial Court Cause No. 2012-23475
MEMORANDUM OPINION
In this legal malpractice suit, appellant Felix P. Babauta claims that appellees Debra V. Jennings and Ralphaell V. Wilkins negligently mishandled claims of illegal search, false arrest, and excessive force filed under 42 U.S.C. § 1983. In the underlying lawsuit in which Babauta was represented by appellees, Babauta asserted claims in federal district court against Harris County Sheriff's Deputy John Mook and the Harris County Sheriff's Office in which Babauta alleged that Mook used excessive force when handcuffing him at a hospital. The federal district court dismissed the underlying suit on summary judgment. In state district court appellees filed motions for no-evidence summary judgment, which the trial court granted. Babauta appealed the grant of those summary judgments. Concluding the trial court properly granted appellees' no-evidence motions, we affirm the trial court's judgment dismissing Babauta's claims against appellees.
BACKGROUND
On January 20, 2006, Babauta drove his wife to the Cypress-Fairbanks Medical Center Hospital Emergency Care Unit for emergency care. After a lengthy and frustrating wait in the emergency room, Babauta witnessed a woman complain to the admissions clerk of the four-hour delay in the examination of her 90-year-old father. After being rebuffed by some members of the medical staff, the woman began to phone family members to complain of the lack of treatment for her father. A few minutes later the woman's father fell from his wheelchair and began convulsing on the floor. The woman's screams for help went unanswered so Babauta yelled to the admissions clerk and a nurse in the vicinity to summon a doctor to what appeared to be a "life and death situation." In a short period of time the man was taken to a treatment room. See Babauta v. Harris County Sheriff's Dep't, No. CV H-08-251, 2009 WL 10711840, at *1 (S.D. Tex. May 29, 2009).
Following the incident, Babauta mentioned to Nurse Linda Justice that the hospital was potentially liable for medical malpractice by virtue of what he had witnessed. In response, Justice summoned a security guard, James Kelly, who told Babauta to sit down and "shut up." Id. Within a few minutes, Babauta's wife was taken to a treatment room. During his wife's medical treatment, Babauta fell asleep in a chair in the treatment room. Babauta awoke to find Justice and Deputy Mook had entered the room. Justice pointed a finger at Babauta and left. Mook then asked Babauta to step outside the treatment room.
After stepping out of the treatment room, the remaining facts about Babauta's encounter with Mook are best reported in his own words, as related in his affidavit submitted as summary judgment evidence in the federal district court:
Deputy Mook asked me for my name. . . I politely told him that my name is "Felix P. Babauta." . . . Deputy Mook asked me to take my wallet out of my pocket. As I was complying with his request, I politely and respectfully asked him for his name . . . Deputy Mook became so enraged and agitated . . . he did not tell me his name . . . Deputy Mook, with his hand on his gun holster, ordered me to turn around. As I was complying with his order, Deputy Mook immediately grabbed my right hand, forcibly twisted it behind my back, and pulled it all the way up to my left should blade causing long-term injury to my right shoulder rotator cuff which required physical therapy. At the same time, he grabbed my left hand and in a loud boisterous, angry, and threatening voice told me, "I'm arresting you for criminal trespass, disorderly conduct, and failure to identify. Do you understand these charges." When I politely told Deputy Mook that I did not understand the charges . . . he yelled at me telling me, "What is your medical malfunction you knuckle head?" Deputy Mook . . . handcuffed me so tightly that my hands became swollen and numb. I mercifully pleaded with Deputy Mook . . . to loosen the handcuffs on my wrists. I told Deputy Mook that the handcuffs is hurting my wrists. Deputy Mook completely ignored my plea. Deputy Mook . . . reached into my pocket and took out my wallet . . . when he found my DAV identification card . . . Deputy Mook partially taunted me by telling me, "So you are from California." . . . and . . . in a loud boisterous and angry voice, "I will make sure that you don't do this in Texas because I am going to take you to jail." After . . . threatening me, Deputy Mook violently grabbed the handcuffs and forcibly dragged me from inside the hospital all the way out to the hospital's parking lot where he parked his vehicle. I pleaded with him to loosen the handcuffs because its causing excruciating pain on my wrists and numbness on my hands. Instead of loosening the handcuffs, Deputy Mook ordered me to bend over on my waist. As I was complying with his order, Deputy Mook placed his hand behind my head and shoved it against the right front fender of his vehicle . . . Deputy Mook padded [sic] me down for any weapon. When he was finished, Deputy Mook ordered me to get in the back of his sheriff vehicle with all of the windows rolled up, the engine and the air
conditioning off, the door shut, and the vehicle under the sun. It was extremely hot and humid inside the sheriff vehicle and I was almost suffocating and perspiring . . . Deputy Mook left me in his hot sheriff vehicle and went back into the hospital. After a delay of some thirty (30) minutes Deputy Mook returned to his vehicle. He opened the door on the driver's side, got into the vehicle and rolled down his windows. Deputy Mook continue to detain and interrogate me while I was still in handcuffs and in custody in the back seat of his sheriff vehicle . . . when he was finished interrogating me, Deputy Mook asked me to step out of the vehicle. At this time, Deputy Mook advised me that I have two choices. Either I go to jail or go back to the hospital and not say a word. I told Deputy Mook that I'd rather go back to the hospital . . . Deputy Mook finally released the handcuffs from my wrists and placed my wallet on the top of the sheriff vehicle. He then issued me citation no. ES9480181 charging me with "failure to identify to police officer" and "failure to report change of address." . . . On November 13, 2007, Judge William V. Yeoman, Harris County Justice of the Peace, dismissed the criminal charges . . . As a result of Deputy Mook's . . . use of physical force against me I suffered . . . bruised wrists and red wale marks where I was handcufffed too tightly; and . . . injury to my right shoulder rotator cuff which led to physical therapy and rehabilitation.Babauta, 2009 WL 10711840, at *2.
The federal district court dismissed Babauta's suit against Mook and Harris County on summary judgment. See Babauta v. Harris Cnty, Tex., No. CV H-08-0251, 2009 WL 10711841, at *4 (S.D. Tex. Aug. 14, 2009). Babauta's "Notice of Appeal" and his subsequent "Motion for Extension of the Time in Which to File Notice of Appeal" were both filed too late and his appeal was, therefore, dismissed for lack of jurisdiction. Babauta v. Harris Cnty Sheriff's Dep't, No. CIV.A. H-08-251, 2010 WL 5186797, at *1 (S.D. Tex. Oct. 19, 2010), report and recommendation adopted, CIV.A. H-08-251, 2010 WL 5188055 (S.D. Tex. Dec. 14, 2010).
Following the dismissal of his appeal in federal court, Babauta sued Jennings and Wilkins in Harris County district court alleging that Jennings and Wilkins negligently failed to conduct discovery in the underlying suit and misinformed Babauta about the federal mailbox rule causing his notice of appeal to be filed untimely. Babauta asserted claims for breach of contract, negligence, fraud, and violations of the Deceptive Trade Practices Act ("DTPA").
Jennings and Wilkins each filed no-evidence motions for summary judgment in which they alleged that Babauta had improperly fractured his legal malpractice claim and had failed to present evidence of each of the elements of his malpractice claim. The trial court granted appellees' motions for summary judgment without stating its reasons. Babauta appeals.
Wilkins' no-evidence motion was granted March 18, 2016; the grant of Jennings's motion made that order final. While the first sentence of Babauta's notice of appeal references the order granting Jennings's motion, later portions of the notice of appeal complain of "Defendants'" motion. This court has held "the rules do not require an appellant to list in the notice of appeal every interlocutory ruling that he desires to challenge on appeal." Human Biostar, Inc. v. Celltex Therapeutics Corp., 514 S.W.3d 844, 846 (Tex. App.—Houston [14th Dist.] 2017, pet. denied) (citing Ostrovitz & Gwinn, LLC v. First Specialty Ins. Co., 393 S.W.3d 379, 386 (Tex. App.-Dallas 2012, no pet.)). Babauta has successfully challenged both orders of summary judgment in his notice of appeal to this court. --------
ISSUES ON APPEAL
Babauta brings the following issues on appeal:
1. Did Judge Baker committed [sic] egregious legal error when she granted Jennings and Wilkins' no evidence motion for summary judgment based on fraud upon the court and their violation of the Texas Disciplinary Rules of Professional Conduct which caused a rendition of an improper judgment[?]
2. Did Judge Baker committed [sic] egregious legal error when she granted Jennings and Wilkins no evidence motion for summary judgment based on the inaccuracies in the reporter's record which prevented Babauta from properly presenting his case to the court of appeals[?]
ANALYSIS
In Babauta's first issue he challenges the trial court's orders granting Jennings and Wilkins' no-evidence motions for summary judgment. We conclude Babauta impermissibly fractured his malpractice claim against Jennings and Wilkins and that Babauta failed to produce any evidence supporting an essential element of his legal malpractice claim. Therefore, the trial court properly granted Jennings and Wilkins' no-evidence motions for summary judgment.
I. The trial court did not err in granting summary judgment.
A. The nature of Babauta's claims
In his petition Babauta asserted claims for breach of contract, negligence, fraud, breach of fiduciary duty, and violations of the DTPA. Jennings and Wilkins contend that Babauta's only potentially viable claim based on the facts pleaded is one for legal malpractice, and all other claims are not actionable because they violate Texas's prohibition against fracturing a legal malpractice claim.
Under Texas law, a plaintiff is not permitted to divide or "fracture" a legal-malpractice claim into additional claims that do not sound in negligence. Perkins v. Walker, No. 14-17-00579-CV, 2018 WL 3543525, at *2 (Tex. App.—Houston [14th Dist.] July 24, 2018, no pet.) (mem. op.). Although other claims can co-exist with a legal-malpractice claim, "the plaintiff must do more than merely reassert the same claim for legal malpractice under an alternative label." Duerr v. Brown, 262 S.W.3d 63, 70 (Tex. App.—Houston [14th Dist.] 2008, no pet.). "If the gist of a client's complaint is that the attorney did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess, then that complaint should be pursued as a negligence claim, rather than some other claim." Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex. App.—Houston [14th Dist.] 2002, no pet.). Whether a claim styled as breach of contract, fraud, breach of fiduciary duty, or violation of the DTPA is actually a claim for legal malpractice is a question of law to be determined by the court. See Powell v. Grijalva, No. 14-19-00080-CV, 2020 WL 4097274, at *5 (Tex. App.—Houston [14th Dist.] July 21, 2020, no pet.) (mem. op.).
Attorneys owe their clients the duty to act in a manner consistent with the standard of care expected to be exercised by a reasonably prudent attorney. Saulsberry v. Ross, 485 S.W.3d 35, 42 (Tex. App.—Houston [14th Dist.] 2015, pet. denied). A legal malpractice claim is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989). To prevail in a professional negligence case against an attorney, the plaintiff must prove (1) the attorney owned a duty to the plaintiff; (2) the attorney breached that duty; (3) the breach caused the plaintiff's injuries; and (4) damages occurred. Id. at 665; Duerr, 262 S.W.3d at 76.
This rule does not preclude clients from asserting claims other than negligence against their attorneys if supported by the facts. See Deutsch, 97 S.W.3d at 189. The claimant must do more than "merely reassert the same claim for legal malpractice under an alternative label." Duerr, 262 S.W.3d at 70.
After reviewing Babauta's breach of contract, fraud, breach of fiduciary duty, and DTPA allegations, we conclude that the gist of those claims is that Jennings and Wilkins did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess and exercise and they are thus components of a fractured malpractice claim.
In Babauta's breach of contract claim he asserted that Jennings and Wilkins breached the contract by "failing to perform in good faith their promise to keep Babauta reasonably and adequately inform[ed] regarding" a telephone conference call. Babauta further alleged that Jennings and Wilkins breached the contract by "failing to perform in good faith their promise to conduct discovery[.]" In alleging fraud Babauta claimed that Jennings and Wilkins did not intend to timely file a notice of appeal of the federal district court's decision. In asserting breach of fiduciary duty Babauta claimed that Wilkins' advice on the federal mailbox rule was fraudulent. In asserting a DTPA violation Babauta alleged, "Wilkins' acts in representing to Babauta that, if he filed the Notice of Appeal through the long-standing doctrine known as the [sic] is a DTPA violation because it is one of material fact."
Each of these claims is based on the same factual underpinnings, the substance of which is that Jennings and Wilkins did not competently fulfill their duties as Babauta's legal counsel by failing to conduct discovery and misinforming him as to the timely filing of the notice of appeal. Characterizing Jennings and Wilkins' allegedly negligent conduct as involving "failure to perform" does not transform the essence of Babauta's claim from professional negligence to non-negligence based theories such as fraud, breach of contract, breach of fiduciary duty, or violation of the DTPA. The crux of Babauta's claims is that Jennings and Wilkins did not provide adequate legal representation to Babauta; therefore, his claims should be pursued only as a professional negligence claim, and Babauta impermissibly fractured his professional negligence claim. See Perkins, 2018 WL 3543525, at *3.
B. Jennings and Wilkins' no-evidence motion for summary judgment on Babauta's legal malpractice claim
We review de novo a trial court's decision to grant summary judgment. Ferguson v. Bldg. Materials Corp. of Am., 295 S.W.3d 642, 644 (Tex. 2009). We consider the evidence in the light most favorable to the non-movant, indulging reasonable inferences and resolving doubts in the non-movant's favor. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). We credit evidence favorable to the non-movant if a reasonable fact finder could and disregard contrary evidence unless a reasonable fact finder could not. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). When, as here, the trial court grants the judgment without specifying the grounds, we will affirm if any of the theories presented to the trial court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).
In asserting a no-evidence motion, the movant must allege that there exists no evidence to support one or more essential elements of a claim for which the non-movant bears the burden of proof at trial and must identify the particular element or elements on which evidence is missing. Tex. R. Civ. P. 166a(i). The non-movant must then present evidence raising a genuine issue of material fact on the challenged elements. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006).
In their no-evidence motions, Jennings and Wilkins claimed that Babauta had no evidence that Jennings and Wilkins breached a duty of care and the alleged breach proximately caused Babauta damage. See Duerr, 262 S.W.3d at 76. To satisfy the causation element of a negligence claim for legal malpractice when the plaintiff alleges that some failure on the attorney's part caused an adverse result in prior litigation, a plaintiff must establish that he would have prevailed in the underlying case "but for" the attorney's negligence. Alexander v. Turtur & Assocs., 146 S.W.3d 113, 117 (Tex. 2004); see also Stanfield v. Neubaum, 494 S.W.3d 90, 96 n.3 (Tex. 2016). This causation burden is referred to as the "suit within a suit" requirement. Duerr, 262 S.W.3d at 77. As the non-movant responding to a no-evidence motion for summary judgment on the causation element, Babauta was required to present more than a scintilla of evidence that he would have prevailed in the underlying case "but for" the attorneys' negligence.
In response to Jennings' and Wilkins' motions Babauta attached the following evidence:
• Babauta's original complaint in federal district court;
• A report and recommendation from Judge Samuel Kent regarding discovery on the federal complaint;
• Interrogatories and answers in the federal suit;
• The federal district court's order granting Harris County's motion for summary judgment;
• A letter from Jennings to Babauta explaining that Jennings no longer represented Babauta;
• Babauta's late-filed notice of appeal in federal district court;
• A federal district court opinion dismissing Babauta's claims against Harris County and Deputy Mook;
• A redacted order from the Fifth Circuit Court of Appeals dismissing Babauta's appeal;
• A response to Babauta's motion for relief from judgment filed in federal district court; and
• A "History Report" of Deputy Mook from an unknown source.
Babauta's evidence speaks only to Jennings and Wilkins' purported failure to seek discovery and file a timely notice of appeal in the underlying suit in federal district court. Even assuming Babauta is correct that Jennings and Wilkins acted negligently in this regard, he presented no evidence as to whether he would have prevailed on his underlying claims against Harris County and Deputy Mook. See e.g., Perkins, 2018 WL 3543525, at *4 (trial court did not err in granting no-evidence summary judgment on legal malpractice claim when plaintiff's evidence did not raise a material fact issue as to merits of underlying claim); see also Rangel v. Lapin, 177 S.W.3d 17, 22-23 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (plaintiff failed to present expert testimony to show he would have prevailed in underlying products liability action). Accordingly, Babauta failed to raise a fact issue as to whether appellees proximately caused him any injury. See Perkins, 2018 WL 3543525, at *4.
On appeal Babauta focuses on statements made by Jennings and Wilkins in their motions, and statements made by Jennings at the summary judgment hearing. Babauta argues Jennings "perpetrated fraud" on the trial court and did not accurately reflect the facts of the underlying suit. As stated above, in reviewing a no-evidence motion, we consider the evidence in the light most favorable to the non-movant. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 2003). Even if we discounted Jennings and Wilkins' representations to the trial court and assumed Jennings and Wilkins acted negligently, Babauta has presented no evidence of causation, i.e, that he would have prevailed on appeal of the federal district court's summary judgment absent Jennings and Wilkins' alleged negligence. For these reasons, we conclude that the trial court did not err in granting summary judgment in Jennings and Wilkins' favor under Rule 166a(i). We overrule Babauta's first issue.
II. The trial court did not err in granting summary judgment based on alleged inaccuracies in the reporter's record.
In Babauta's second issue he asserts that the trial court erred in granting summary judgment based on inaccuracies in the reporter's record.
While this appeal was pending, appellant filed a motion to correct alleged inaccuracies in the court reporter's record. This court granted the motion and abated the appeal to permit the trial court to hold a hearing pursuant to Texas Rule of Appellate Procedure 34.6(e)(3), which allows the appellate court, if a dispute arises regarding accuracy after filing of the reporter's record to submit the dispute to the trial court for resolution. The trial court held a hearing to determine whether the reporter's record contained inaccuracies and, if so, what corrections were needed to make the record conform to what occurred in the trial court. At the hearing, the court reporter testified that the reporter's record was accurate. Babauta appeared at the hearing, but refused to give sworn testimony and refused to affirm that the statements he made to the court were accurate. The trial court found that the reporter's record filed in this court was accurate.
On appeal Babauta does not challenge the trial court's ruling as to the accuracy of the reporter's record, but challenges the trial court's ruling on summary judgment. We note that no testimony was taken at the summary-judgment hearing. Babauta was permitted to submit his documentary evidence, which was also filed in the clerk's record on appeal. In the argument section of Babauta's brief under this issue Babauta lists his reasons for filing his brief late, but does not assert any inaccuracies in the reporter's record. The trial court found the record was accurate and Babauta has not challenged that finding. We overrule Babauta's second issue.
CONCLUSION
Having overruled Babauta's issues on appeal we affirm the trial court's no-evidence summary judgment.
/s/ Jerry Zimmerer
Justice Panel consists of Justices Bourliot, Zimmerer, and Spain.