Opinion
NO. 14-17-00579-CV
07-24-2018
LOU ANNE PERKINS, INDIVIDUALLY AND AS HEIR AT LAW OF WARNER W. PERKINS, DECEASED, Appellant v. ARTHUR WALKER, INDIVIDUALLY; GERALD BRIGHT, INDIVIDUALLY; DAVID CRAFT, INDIVIDUALLY; CHRISTOPHER HANLON, INDIVIDUALLY; AND WALKER BRIGHT, P.C., Appellees
On Appeal from the 53rd District Court Travis County, Texas
Trial Court Cause No. D-1-GN-14-004360
MEMORANDUM OPINION
In this legal malpractice suit, appellant Lou Anne Perkins claims that a law firm, Walker Bright, P.C., and four of the firm's attorneys negligently mishandled a health care liability claim. In the underlying lawsuit filed by appellees on Perkins's behalf, Perkins asserted a claim against a company that provided allegedly faulty oxygen tanks to her husband, who Perkins claimed died because of the faulty tanks. The trial court dismissed the underlying suit on limitations grounds, and Perkins now alleges that appellees committed legal malpractice, among other wrongful conduct, by not filing the underlying lawsuit within the applicable limitations period.
Appellees filed a combined traditional and no-evidence motion for summary judgment, which the trial court granted. Concluding that the trial court properly granted appellees' no-evidence motion, we affirm the trial court's judgment dismissing all of Perkins's claims against appellees.
Background
Apria Healthcare provided oxygen equipment and therapy to Perkins's husband, Warner. The last date that Apria delivered oxygen to Warner was September 26, 2008. Warner was hospitalized on October 3, 2008 and died on October 16, 2008. Perkins contacted the Walker Bright firm on September 27, 2010. On Perkins's behalf, Walker Bright filed suit against Apria on October 7, 2010, claiming that the oxygen tanks Apria delivered did not function properly, causing Warner's death. Apria moved for summary judgment, contending that Perkins's claim was a health care liability claim under Chapter 74 of the Texas Civil Practice and Remedies Code and was subject to a two-year statute of limitations. See Tex. Civ. Prac. & Rem. Code § 74.251(a). Apria argued that limitations began to run on the final day that Apria provided defective service, and therefore Perkins's claim was based on conduct that preceded the two-year limitations period. The court in that suit granted Apria's motion for summary judgment and dismissed Perkins's claim. Our record does not indicate whether Perkins appealed the judgment.
Perkins sued Walker Bright and four of the firm's attorneys in Travis County district court (collectively, Walker Bright or appellees). Walker Bright initially represented Perkins in the Apria lawsuit. Perkins alleged that Walker Bright negligently failed to timely file the Apria lawsuit within the statute of limitations. In the present suit, Perkins asserted claims for legal malpractice, breach of fiduciary duty, breach of contract, unjust enrichment, and fraud.
By order of the Supreme Court of Texas, this appeal was transferred to this court from the Third Court of Appeals. See Tex. Gov't Code § 73.001. We are unaware of any conflict between precedent of the Third Court of Appeals and that of this court on any relevant issue. See Tex. R. App. P. 41.3.
Appellees filed a combined traditional and no-evidence motion for summary judgment. In their traditional motion, appellees argued that the statute of limitations for Perkins's health care liability claim against Apria had expired before Perkins and appellees entered into an attorney-client relationship. As such, appellees contended they were entitled to summary judgment on all of Perkins's present claims. In their no-evidence motion, appellees argued that Perkins could present no evidence that appellees breached any duty owed to Perkins, that Perkins suffered any damage, or that any breach proximately caused damage.
The trial court granted the combined motion for summary judgment in appellees' favor without specifying the grounds for its ruling.
Perkins appeals.
Analysis
Perkins argues that the trial court erred in granting summary judgment because there were genuine issues of material fact as to whether: (1) Walker Bright committed legal malpractice or was otherwise negligent; (2) Walker Bright breached its fiduciary duties; (3) Walker Bright breached its contract with Perkins; (4) Walker Bright was unjustly enriched by using Perkins's retainer for something other than its intended use; (5) Walker Bright committed fraud; and (6) Perkins's claims were barred by the statute of limitations. We address only Perkins's first issue because we conclude that she impermissibly fractured her malpractice claim against appellees and we need not reach her sixth issue. We further conclude that she failed to produce any evidence supporting an essential element of her legal malpractice claim. Therefore, the trial court properly granted appellees' no-evidence motion for summary judgment.
A. The nature of Perkins's claims
In her petition, Perkins asserted claims for legal malpractice, breach of fiduciary duty, breach of contract, unjust enrichment, and fraud. Walker Bright contends that Perkins's only potentially viable cause of action 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 in the legal malpractice context.
Texas law does not permit a plaintiff to divide or "fracture" a legal malpractice claim into additional causes of action that do not sound in negligence. See Vara v. Williams, No. 03-10-00861-CV, 2013 WL 1315035, at *3 (Tex. App.—Austin Mar. 28, 2013, no pet.) (mem. op.); Meullion v. Gladden, No. 14-10-01143-CV, 2011 WL 5926676, at *4 (Tex. App.—Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.). "The rule against fracturing a negligence claim prevents legal-malpractice plaintiffs from opportunistically transforming a professional-negligence claim into other causes of action." Brescia v. Slack & Davis, L.L.P., No. 03-08-00042-CV, 2010 WL 4670322, at *8 (Tex. App.—Austin Nov. 19, 2010, pet. denied) (mem. op.).
This rule does not preclude clients from asserting causes of action other than negligence against their attorneys if such claims are supported by the facts. Vara, 2013 WL 1315035, at *3. But to do so, the plaintiff "must do more than merely reassert the same claim for legal malpractice under an alternative label." Id. (internal quotation omitted). Determining whether allegations against a lawyer—labeled as breach of fiduciary duty, fraud, or some other cause of action—are actually claims for professional negligence is a question of law to be determined by the court. See Duerr v. Brown, 262 S.W.3d 63, 70 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
After reviewing Perkins's allegations, we conclude that "the gist of [her] claims is that [appellees] did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess and exercise." Vara, 2013 WL 1315035, at *4. As grounds for her breach of fiduciary duty claim, Perkins alleges that appellees breached their fiduciary duty "when they . . . made misrepresentations about the ability to pursue the claims against Apria . . . [and] failed to provide full disclosure to Perkins about the underlying litigation." In support of her breach of contract and unjust enrichment claims, Perkins alleges that appellees "failed to perform in accordance with the retention agreement" and charged a retainer "for work they did not perform." Her fraud claim rests on allegations that appellees made one or more false material representations concerning "their ability to pursue a claim against Apria." Perkins alleges related conduct in her "fraud by nondisclosure" claim.
Each of these claims is based on the same factual underpinnings, the substance of which is that appellees did not competently fulfill their duties as Perkins's legal counsel by failing to file the Apria lawsuit within the limitations period. Characterizing appellees' allegedly negligent conduct as involving "misrepresentation" or "nondisclosure" does not transform the essence of her claim from professional negligence to non-negligence based theories such as fraud, unjust enrichment, breach of fiduciary duty, or breach of contract. "In short, the crux of these purported causes of action is that [appellees] did not provide adequate legal representation to [Perkins], these claims should be pursued only as a professional negligence claim, and [Perkins] impermissibly fractured her malpractice claim by asserting them as [other causes of action]." Id.
Having determined that Perkins's allegations raise only a claim for legal malpractice, we next determine whether the trial court properly granted appellees' motion for summary judgment.
B. Appellees' no-evidence motion for summary judgment on Perkins's legal malpractice claim
1. Standard of review and governing law
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) (per curiam). 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 reasonable fact finders could and disregard contrary evidence unless reasonable fact finders 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).
When a trial court grants a combined traditional and no-evidence motion for summary judgment without specifying the grounds, we first review the trial court's summary judgment under the no-evidence standard of Texas Rule of Civil Procedure 166a(i). See Franco v. Cronfel, 311 S.W.3d 600, 605 (Tex. App.—Austin 2010, no pet.). 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); Franco, 311 S.W.3d at 605. 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). If the non-movant fails to produce more than a scintilla of evidence raising a genuine fact issue on the challenged elements of her claims, there is no need to analyze whether the movant's summary judgment proof on the same claim satisfied the traditional summary judgment burden of proof under Texas Rule of Civil Procedure 166a(c). Franco, 311 S.W.3d at 605.
In their no-evidence motion, appellees claimed that Perkins had no evidence that: (1) appellees owed her a duty of care; (2) appellees breached that duty; and (3) the breach proximately caused Perkins damage. Duerr, 262 S.W.3d at 76; see also Hansen v. Roach, No. 03-15-00378-CV, 2017 WL 2417982, at *3 (Tex. App.—Austin May 31, 2017, no pet.) (mem. op.). 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 she would have prevailed in the underlying case "but for" the attorney's negligence. Hackett v. Littlepage & Booth, No. 03-08-00056-CV, 2009 WL 416620, at *7 (Tex. App.—Austin Feb. 20, 2009, no pet.) (mem. op.) (citing Alexander v. Turtur & Assocs., 146 S.W.3d 113, 117 (Tex. 2004); Cosgrove v. Grimes, 774 S.W.2d 662, 665-66 (Tex. 1989)); 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; Hansen, 2017 WL 2417982, at *3. As the non-movant responding to a no-evidence motion for summary judgment on the causation element, Perkins was required to present more than a scintilla of evidence that she would have prevailed in the underlying case "but for" the attorney's negligence.
2. Application
In response to appellees' motion, Perkins attached the following evidence: her deposition; the parties' retention agreement; the parties' indemnification agreement; appellees' billing entries and transaction records; pleadings and filings in the Apria lawsuit; emails between the parties; and Perkins's pleadings in the present suit. This evidence, however, speaks only to appellees' purported failure to file the Apria lawsuit within the limitations period. Even assuming Perkins is correct that appellees acted negligently in this regard, she presented no evidence as to whether she would have prevailed on her underlying claim against Apria. See, e.g., Hackett, 2009 WL 416620, at *8 (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 medical malpractice claim); see also Cantu v. Horany, 195 S.W.3d 867, 874 (Tex. App.—Dallas 2006, no pet.) (same); 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, Perkins failed to raise a fact issue as to whether appellees proximately caused her any injury. Hackett, 2009 WL 416620, at *8.
The elements of a medical malpractice claim are: (i) a physician's duty to act according to a certain standard of care; (ii) breach of the applicable standard of care; (iii) an injury; and (iv) a causal connection between the breach of care and the injury. See Grider v. Mike O'Brien, P.C., 260 S.W.3d 49, 57 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); see also Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). Further, the causation element generally must be supported by expert testimony. See Guevara v. Ferrer, 247 S.W.3d 662, 665 (Tex. 2007).
On appeal, Perkins relies on two expert reports attached to appellees' motion for summary judgment as support for the elements of her underlying medical malpractice claim. Appellees attached the expert reports as part of their combined motion for traditional and no-evidence summary judgment. In reviewing the propriety of summary judgment on no-evidence grounds, we ignore evidence attached to a combined summary judgment motion and offered in support of traditional summary judgment, unless the non-movant directs the trial court to that evidence in her response to the movant's no-evidence motion. See, e.g., Dyer v. Accredited Home Lenders, Inc., No. 02-11-00046-CV, 2012 WL 335858, at *3 (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied) (mem. op.) (court required to ignore traditional summary judgment evidence attached to combined summary judgment motion unless non-movant directed trial court to that evidence in its response to no-evidence motion); see also 1997 cmt. to Tex. R. Civ. P. 166a ("To defeat a motion made under paragraph (i), the respondent is not required to marshal its proof; its response need only point out evidence that raises a fact issue on the challenged elements."); Gallien v. Goose Creek Consol. Indep. Sch. Dist., No. 14-11-00938-CV, 2013 WL 1141953, at *3-4 (Tex. App.—Houston [14th Dist.] Mar. 19, 2013, pet. denied) (mem. op.).
Here, Perkins did not direct the trial court to the expert evidence filed by appellees as support for denying appellees' no-evidence motion. Perkins was required, at a minimum, to identify the portions of that evidence showing the existence of a fact issue. See B.C. v. Steak N Shake Operations, Inc., 532 S.W.3d 547, 551 (Tex. App.—Dallas 2017, pet. filed). Rather than stating her reliance on the expert reports and arguing how they created a genuine issue of material fact on a challenged element, Perkins expressly objected to the two expert reports in their entirety. By objecting to the expert evidence, Perkins disavowed any reliance on them as an evidentiary basis to defeat summary judgment.
Perkins also argues in her reply brief that appellees' no-evidence motion for summary judgment was premature because an adequate time for discovery had not elapsed before appellees filed their motion. Although Perkins raised this objection in her summary judgment response and attached an affidavit supporting a continuance, Perkins did not brief this point in her opening brief in this court. We decline to address new issues raised in a reply brief. See, e.g., Ross v. Sims, No. 03-16-00179-CV, 2017 WL 672458, at *8 n.12 (Tex. App.—Austin Feb. 15, 2017, pet. denied) (mem. op.) (citing Tex. R. App. P. 38.1, 38.3).
For these reasons, we conclude that the trial court did not err in granting summary judgment in appellees' favor under Rule 166a(i). Having reached this conclusion, we need not address whether the trial court properly granted summary judgment on appellees' contention that Perkins's Apria claim was barred by limitations before their representation began. See Tex. R. App. P. 47.1.
We overrule all of Perkins's issues on appeal.
Conclusion
We affirm the trial court's judgment.
/s/ Kevin Jewell
Justice Panel consists of Justices Jamison, Wise, and Jewell.