Opinion
05-23-00695-CV
12-31-2024
On Appeal from the 471st Judicial District Court Collin County, Texas Trial Court Cause No. 471-04134-2022
Before Justices Partida-Kipness, Pedersen, III, and Carlyle
MEMORANDUM OPINION
BILL PEDERSEN, III JUSTICE
In this lawsuit involving alleged legal malpractice, appellant complains of the trial court's (1) granting appellee's motion for summary judgment and dismissing appellant's sole claim with prejudice, (2) denying appellant's cross-motion for summary judgment, and (3) sustaining appellee's motion to strike appellant's evidence. Appellant also asks this Court to grant a change of trial-court venue. We affirm the trial court's orders. We do not reach the venue issue.
Background
Appellant filed her original petition in this lawsuit August 3, 2022. The petition's substantive provisions allege in full:
Appellant appeared in the trial court and appears in this Court pro se.
[Appellee] failed to perform his Duty when representing me throughout case #417-53396-2018 specifically on August 6th, 2020 which was a Breach of Duty and did not perform standard care. I will also be able to prove there was proximate cause in this case.
Relief Requested:
Because of his gross negligence I am asking for exemplary damages in the amount of $500,000 due to his actions which caused me a financial burden along with mental anguish. Because of his GROSS, negligence I was forced to file this suit and I'm also requesting all court cost and fees. I am also requesting a Jury trial.(Capitalization in original.) Appellee filed an original answer containing a general denial and affirmative defenses.
In subsequent summary-judgment documents, appellant alleged that appellee had committed legal malpractice while representing her in a previous lawsuit concerning conservatorship of her grandchildren and other related issues. Specifically, she contends the alleged malpractice occurred during an August 6, 2020 temporary-order hearing.
Appellee filed a combination no-evidence and traditional motion for summary judgment on June 2, 2023, and secured a setting for hearing on the motion for July 5, 2023. The no-evidence motion stated, "There is no evidence that [appellee] breached any duty which proximately caused [appellant's] alleged damages."
On June 5, 2023, appellant filed a cross-motion for traditional summary judgment. Appellant failed provide expert opinion in support of the motion.
On June 23, 2023, appellee filed a partial no-evidence motion for summary judgment. The motion in part stated, "[Appellant] has not produced any evidence that would support a claim for exemplary damages."
On June 28, 2023, appellee filed his response to appellant's cross-motion for summary judgment and objection to appellant's summary-judgment evidence. Appellee objected to the evidence because it constituted hearsay, lacked required authentication, and contained conclusory statements. See Tex. R. Evid. 802, 901.
On June 29, 2023, appellant filed trial transcripts of proceedings in the previous lawsuit.
On July 3, 2023-two days before the noticed hearing-appellant filed her response to appellee's "tradition [sic] no-evidence motion for summary judgement, [sic] additional evidence for my cross motion for summary judgement [sic] and objection to defendant's summary judgement [sic] evidence." Appellant's additional evidence did not include expert opinion to evidence her legal-malpractice claim.
On July 5, 2023, appellee filed a motion to strike appellant's summary-judgment response and evidence as late filed.
On July 5, 2023, the trial court heard argument on (1) appellee's motion for no-evidence and traditional summary judgment, (2) appellant's cross-motion for summary judgment, and (3) appellee's motion to strike appellant's summary-judgment response and attached evidence as late filed. Appellee's counsel argued appellant had not designated an expert to support appellant's legal-malpractice claim. He also argued appellant's summary-judgment evidence did not contain expert opinion to support her claim. Appellant failed to argue to the contrary. The trial court did not rule from the bench.
On July 6, 2023, the trial court issued orders that (1) sustained appellee's motion to strike appellant's evidence filed on June 29, 2023 as late filed, (2) sustained appellee's motion to strike appellant's July 3, 2023 response and all evidence attached and referenced therein as untimely, (3) denied appellant's cross-motion for summary judgment in its entirety, and (4) granted appellee's no-evidence and traditional motion for summary judgment and dismissed appellant's sole claim with prejudice. The trial court did not provide reasons for its orders.
Appellant filed a notice of appeal. This appeal followed.
Standard of Review
We review an order granting summary judgment de novo. See Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013).
"[I]f a no-evidence motion for summary judgment and a traditional motion for summary judgment are filed which respectively asserts the plaintiff has no evidence of an element of its claim and alternatively asserts that the movant has conclusively negated that same element of the claim, we address the no-evidence motion for summary judgment first." Great Hans, LLC v. Liberty Bankers Life Ins. Co., No. 05-17-01144-CV, 2019 WL 1219110, at *3 (Tex. App.-Dallas Mar. 15, 2019, no pet.) (mem. op.).
In a no-evidence motion for summary judgment, the movant need only allege there is no evidence to support an essential element of a claim on which a nonmovant has the burden of proof at trial. See Tex. R. Civ. P. 166a(i); Sw. Elec. Power v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). Then, the burden shifts to the nonmovant to present evidence that raises a fact issue on the challenged elements. See Tex. R. Civ. P. 166a(i); Swan v. GR Fabrication, LLC, No. 05-17-00827-CV, 2018 WL 1959486, at *1 (Tex. App.-Dallas Apr. 26, 2018, no pet.) (mem. op.). The nonmovant will defeat a no-evidence summary judgment by presenting more than a scintilla of evidence to raise a genuine issue of material fact. See Swan, 2018 WL 1959486, at *1; see also Tex. R. App. P. 166a(i). More than a scintilla of evidence exists if the evidence rises to a level that would enable reasonable and fair-minded people to differ in their conclusions. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004).
We affirm the summary judgment if any of the theories presented to the trial court and preserved for appellate review are meritorious. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004). Where there are multiple grounds for summary judgment and the order does not specify the ground on which the summary judgment was granted, the appellant must negate all grounds on appeal. See Chatman v. Martin Preferred Foods, LP, No. 05-07-01263, 2008 WL 2440300, at *1 (Tex. App.-Dallas June 18, 2008, no pet.) (mem. op.). If the appellant fails to negate each ground on which the judgment may have been granted, the appellate court must uphold the summary judgment. See id.
The Trial Court Did Not Err in Granting Appellee's
No-Evidence Motion for Summary Judgment
In what we understand to be appellant's first issue on appeal, she argues that the trial court erred by granting appellee's no-evidence motion for summary judgment.
Appellee, in his no-evidence motion for summary judgment, argued,
The essential elements of a suit for negligence are: (1) the defendant owed a legal duty to the plaintiff, (2) the defendant breached the duty, and (3) the breach proximately caused the plaintiff's injury.
There is no evidence that [appellee] breached any duty which proximately caused [appellant's] alleged damages. Accordingly, summary judgment is appropriate as to [appellant's] claim for negligence against [appellee].(Footnote omitted.) Appellant failed to present expert testimony in response to appellee's no-evidence summary judgment.
Because a claim for legal malpractice is one for negligence, the malpractice plaintiff must establish the traditional elements of duty, breach, causation, and damages. See Zive v. Sandberg, 644 S.W.3d 169, 174 (Tex. 2022). It is the former client's burden to prove proximate cause, which includes proof of cause in fact. See, e.g., Rogers v. Zanetti, 518 S.W.3d 394, 402 (Tex. 2017). The evidence of cause in fact is tested, in part, by means of the "but for" test: would the harm alleged have occurred absent the attorney's alleged breach. See id. at 403. In legal-malpractice cases, this is a "suit within a suit" inquiry-the actual result with the alleged misconduct or omission is compared with a hypothetical result the plaintiff claims would have occurred absent the misconduct or omission. See id. at 411-12.
Appellant contends no expert testimony is required to evidence her allegations of legal malpractice. In the hearing on the summary-judgment motions, appellant stated, "I . . . plan to call Shayna Sanborn, who I did also sue for malpractice in a small claims court." Appellee argued,
And so, you know, there has been mention that an individual named Shayna Sanborn-who is an attorney that [appellant] hired after my client-might provide some testimony. However, one, none of that is included in any of the response, and, two, I have spoken with Ms. Sanborn, and, actually, [appellant] sued Ms. Sanborn in her own legal malpractice, actually, and Ms. Sanborn will not be providing any such testimony.
So there is no evidence before this Court that would support a legal malpractice claim, and so for that reason, both our motion [sic] should be granted and her motion should be denied because the same reason, Judge.
A plaintiff must generally present expert testimony to establish the breach and causation elements of a legal malpractice claim. See Pierre v. Steinbach, 378 S.W.3d 529, 533 (Tex. App.-Dallas 2012, no pet.); see also Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 679 (Tex. 2017) (per curiam) ("Generally, in a legal malpractice case, expert witness testimony is required to rebut a defendant's motion for summary judgment challenging the causation element."); NexBank, SSB v. Winstead PC, No. 05-18-01345-CV, 2020 WL 1921683, at *3 (Tex. App.-Dallas Apr. 21, 2020, no pet.) (mem. op.).
An exception to the requirement of expert testimony to prove breach and causation in a legal malpractice case occurs when the attorney's lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge. See Nelson v. Williams, No. 05-23-00594-CV, 2024 WL 4112847, at *3 (Tex. App.-Dallas Aug. 30, 2024, no pet.) (mem. op.) (unless the attorney's alleged negligence is obvious, a former client must present expert testimony to establish the breach and causation elements of her legal malpractice claim); see also Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 (Tex. 2004) (expert opinion is necessary to address causation when the causal link between the attorney's breach and the client's harm is beyond the jury's common understanding). The San Antonio appellate court identified an "obvious" case of legal malpractice that falls within the exception of requiring expert testimony-an attorney's failure to commence an action within a statute of limitations. See Mazuca & Assocs. v. Schumann, 82 S.W.3d 90, 97 (Tex. App.-San Antonio 2002, pet. denied) ("The most common example of a case requiring no expert testimony is one in which an attorney allows the statute of limitations to run on a client's claim.").
In her response to the no-evidence motion, appellant asserted appellee committed legal malpractice in several respects, including:
• Appellee failed to object in the April 6, 2020 hearing to a witness's recommendations concerning conservatorship. She argues the recommendations violated § 104.008 of the family code. See Tex. Fam. Code Ann. § 104.008.
• Appellee did not obtain a signed temporary order from the trial court after the April 6, 2020 hearing.
• "[Appellee] never addressed the fact that the children's father had suffered a traumatic brain injury, yet no psychiatric evaluations had been performed on him."
• Appellee "did not even address" the trial court's statement that appellant's grandchildren "need to continue counseling."
Appellant argues no expert opinion is necessary to prove her case. She provides no substantive argument or legal authority that appellee's alleged malpractice is so obvious that a trier of fact can find negligence as a matter of common knowledge.
Initially, we consider appellant's claim based on § 104.008 of the family code. Section 104.008 provides:
(a) A person may not offer an expert opinion or recommendation relating to the conservatorship of or possession of or access to a child at issue in a suit unless the person has conducted a child custody evaluation relating to the child under Subchapter D, Chapter 107.
(a-1) Subsection (a) does not prohibit a person from offering an expert opinion regarding the qualifications of, reliability of the methodology used by, or relevance of the information obtained by a person who has conducted a custody evaluation relating to the child under Subchapter D, Chapter 107, as long as the person's testimony does not violate Subsection (a).
(b) In a contested suit, a mental health professional may provide other relevant information and opinions, other than those prohibited by Subsection (a), relating to any party that the mental health professional has personally evaluated.
(c) This section does not apply to a suit in which the Department of Family and Protective Services is a party.Fam. § 104.008 (footnote omitted).
We conclude that appellant's malpractice claim based on § 104.008 is unlike the exceptional case-for instance, an attorney's failure to commence an action within a statute of limitations-in which no expert testimony is required to establish breach or proximate cause. Rather, § 104.008 contains legal terms of art and cross references to other provisions of the family code. These provisions and their significance, interrelation, construction, and application are beyond the ken of a factfinder's common understanding. See Nelson, 2024 WL 4112847, at *3; Mazuca & Assocs., 82 S.W.3d at 97; see also Alexander, 146 S.W.3d at 119. Appellant's generalized claim for legal malpractice based on § 104.008 is not so obvious that a trier of fact can find negligence as a matter of common knowledge. See Nelson, 2024 WL 4112847, at *3; Mazuca & Assocs., 82 S.W.3d at 97; see also Alexander, 146 S.W.3d at 119. A factfinder would not have common knowledge of whether the result of the April 6, 2020 hearing would have been different had appellee objected, based on § 104.008, to the complained-of testimony. See Rogers, 518 S.W.3d at 411-12. Consequently, appellant was required to produce expert opinion to evidence breach of duty and proximate cause.
We also conclude that the remaining bases of appellant's malpractice claim- appellee's alleged failure to secure a signed order or to "address" particular trial matters-require expert opinion to establish breach of duty and proximate cause. These bases of appellee's alleged malpractice are not so obvious that a factfinder may find negligence within common understanding. See Nelson, 2024 WL 4112847, at *3; Mazuca & Assocs., 82 S.W.3d at 97; see also Alexander, 146 S.W.3d at 119. Whether the result of the April 6, 2020 hearing would have been different had appellee obtained a signed order, assuming he had a duty to do so, or "addressed" other avenues of possible inquiry in the previous litigation are matters beyond the common knowledge of a factfinder. See Rogers, 518 S.W.3d at 411-12.
We conclude appellant failed to present more than a scintilla of competent evidence of breach of duty or causation to raise a genuine issue of material fact to controvert appellee's no-evidence motion for summary judgment. See Nelson, 2024 WL 4112847, at *3 ("Our review of the record establishes that Nelson offered no expert testimony, and for that reason alone, her malpractice claim failed."); see also Tex. R. App. P. 166a(i).
We overrule appellant's first issue on appeal.
The Trial Court Did Not Err in Denying Appellant's Traditional Motion for Summary Judgment
In what we understand to be appellant's second issue on appeal, appellant argues that the trial court erred by denying her traditional motion for summary judgment. In her traditional motion, appellant identifies the same alleged bases of legal malpractice as she did in her response to appellee's no-evidence motion and which we described above. We concluded above that those claimed bases required appellant to produce expert opinion to establish essential elements of her legal- malpractice claim-including breach of duty and causation. Appellant argues she can prove her case without expert testimony. She does not contend that she produced expert opinion. The appellate record contains no such expert opinion. Consequently, we conclude appellant failed to produce summary-judgment evidence necessary to demonstrate that there is no genuine issue of material fact and that she is entitled to judgment as a matter of law on her legal-malpractice claim. See Tex. R. Civ. P. 166a(c). The trial court did not err by denying appellant's traditional motion for summary judgment.
We overrule appellant's second issue on appeal.
The Trial Court Did Not Abuse Its Discretion in Striking Appellant's Late-Filed Summary-Judgment Evidence and Response
Appellant argues in what we understand to be her third issue on appeal that the trial court abused its discretion by granting appellee's motion to strike her summary-judgment evidence and summary-judgment response as late filed.
In a summary-judgment proceeding, the nonmoving party may file and serve opposing affidavits or other written responses no later than seven days prior to the scheduled date of the hearing. See Tex. R. Civ. P. 166a(c). A trial court should grant a motion to file a summary judgment response late if the movant establishes: (1) good cause for failing to timely respond, "showing that the failure to respond was not intentional or the result of conscious indifference, but the result of accident or mistake" and (2) that "allowing the late response will occasion no undue delay or otherwise injure the party seeking summary judgment." Nazary v. Solid Classic, LP, No. 05-21-01058-CV, 2023 WL 3881108, at *3 (Tex. App.-Dallas June 8, 2023, no pet.) (mem. op.) (quoting Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 688 (Tex. 2002)).
To file late summary judgment evidence or a late-filed response, Plaintiffs must obtain leave of court. See Tex. R. Civ. P. 166a(c); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). If a party files late summary judgment evidence, and no order appears in the record granting leave to file, the evidence will not be considered as being before the court. See Mathis v. RKL Design/Build, 189 S.W.3d 839, 843 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (citing Benchmark Bank, 919 S.W.2d at 663).
We review the trial court's ruling on a motion for leave to file a late response to motion for summary judgment under an abuse of discretion standard. See Brown v. Melissa 121/5 Partners, Ltd., No. 05-13-01189-CV, 2014 WL 3811120, at *1 (Tex. App.-Dallas Aug. 4, 2014, no pet.) (mem. op.) (citing Carpenter, 98 S.W.3d at 686-87). Similarly, we review a district court's decision to strike summary judgment evidence under an abuse of discretion standard. See Brushy Creek Enters., Inc. v. Heller First Cap. Corp., No. 03-07-00542-CV, 2010 WL 2698750, at *4 (Tex. App.-Austin July 7, 2010, no pet.) (mem. op.) (citing Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 270 (Tex. App.-Austin 2002, pet. denied)). The trial court abuses its discretion when it acts without reference to any guiding rules or principles. See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
In this lawsuit, even if striking appellant's evidence was erroneous-which we expressly do not decide-it was harmless error. See Tex. R. App. P. 44.1 ("No judgment may be reversed on appeal on the ground that the trial court made an error of law unless the court of appeals concludes that the error complained of . . . probably caused the rendition of an improper judgment[.]"). As we concluded above, it was necessary for appellant to produce expert opinion to prevail on her traditional motion for summary judgment and to defeat appellee's no-evidence motion for summary judgment. See Tex. R. App. P. 166a(c), (i). However, none of appellant's evidence- neither that stricken by the trial court nor any remaining evidence-contained necessary expert opinion concerning breach of duty or proximate cause of her legal-malpractice claim. Consequently, the outcome of the parties' motions for summary judgment would be the same whether the trial court had stricken appellant's evidence or not. In sum, the trial court's striking appellant's evidence did not probably cause the rendition of an improper judgment. See Tex. R. App. P. 44.1.
We overrule appellant's third issue on appeal.
Conclusion
We affirm the trial court's final judgment.
In light of our disposition of appellant's issues on appeal, we do not address appellant's request to change trial-court venue pursuant to rule 257 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 257.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee DANIEL L. WHITE recover his costs of this appeal from appellant DANIELLE SPOSITO.
Judgment entered.