George Neil Lewis v. Jack D. Nolan

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Opinion issued December 14, 2006

















In The

Court of Appeals

For The

First District of Texas



NO. 01-04-00865-CV

____________



GEORGE NEIL LEWIS, Appellant



V.



JACK D. NOLAN, Appellee



On Appeal from 270th District Court

Harris County, Texas

Trial Court Cause No. 2001-29811



SUPPLEMENTAL MEMORANDUM OPINION ON REHEARING

Appellant, George Neil Lewis, moves for rehearing and for en banc reconsideration of our opinion, issued October 5, 2006, that affirmed a take-nothing summary judgment rendered against him in his malpractice suit against appellee, Jack D. Nolan, his former attorney. We grant the motion for rehearing addressed to the panel. However, our disposition of the appeal remains the same, and our October 5, 2006 memorandum opinion and judgment remain intact. We issue this supplemental memorandum opinion to address matters raised by Lewis on rehearing. (1)

Legal-Malpractice Claim

Nolan argues that we erred in affirming the no-evidence summary judgment rendered on his legal-malpractice claim because the basis on which we affirmed the judgment--that Lewis did not raise a genuine issue of material fact because he did not present expert opinion testimony on causation--was not raised in the summary-judgment motion in the trial court. In support, Lewis cites well-established authority that a summary-judgment motion must stand or fall on the grounds expressly presented in the motion and may not be affirmed on a basis that was not asserted as a ground for summary judgment. See, e.g., Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 205 (Tex. 2002).

Our disposition does not run afoul of this rule. Nolan filed both a traditional and a no-evidence summary-judgment motion against Lewis's legal-malpractice claim. Lewis's rehearing motion cites to and relies on the grounds asserted in Nolan's traditional summary-judgment motion and on the lay-testimony affidavits that he submitted in response to both motions. We did not base our holding on Nolan's traditional summary-judgment motion, however. Rather, our holding was based on Nolan's no-evidence summary-judgment motion, which attacked the causation element of Lewis's legal-malpractice claim.

This distinction is important. A no-evidence summary-judgment motion may simply specify the element or elements of the claim or defense that lacks evidentiary support as long as the adverse party would have the burden of proof on that claim or defense at trial. See Tex. R. Civ. P. 166a(i) ("The [no-evidence summary-judgment] motion must state the elements as to which there is no evidence."); Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 262 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). The rule requires no further elaboration by the movant. Once a movant carries its burden of specifying the element or elements of the claim or defense on which he seeks judgment, the burden shifts to the non-movant to produce "more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements.'" Newsom, 171 S.W.3d at 263 (quoting Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.--Houston [1st Dist.] 1999, no pet.)). To raise a material fact issue, the non-movant's evidence must be, among other things, legally competent. See Garcia v. Nat'l Eligibility Express, Inc., 4 S.W.3d 887, 891 (Tex. App.--Houston [1st Dist.] 1999, no pet.) (citing Yates v. Fisher, 988 S.W.2d 730 (Tex. 1998), for conclusion that trial court properly rendered no-evidence summary judgment against party who produced only incompetent evidence in response to motion).

Nolan's no-evidence summary-judgment motion attacked the causation element of Lewis's legal-malpractice claim. (2) Once Nolan did so, the burden shifted to Lewis to produce more than a scintilla of evidence raising a material fact issue on that element. See Newsom, 171 S.W.3d at 263. To carry that burden in this case, Nolan had to produce expert opinion testimony of causation. See, e.g., Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119-20 (Tex. 2004); Hoover v. Larkin, 196 S.W.3d 227, 231 (Tex. App.--Houston [1st Dist.] 2006, pet. denied); see also F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221 (Tex. App.--Eastland 2005, no pet.). Lay testimony could not suffice to raise a material fact issue and thus to carry Lewis's summary-judgment burden. Cf. City of Keller v. Wilson, 168 S.W.3d 802, 812 ("When expert testimony is required, lay evidence supporting liability is legally insufficient."). It is for this reason that we discussed the need for expert opinion testimony in our original opinion.

Nor is our basis for resolving the legal-malpractice claim without foundation in the briefs. Nolan asserted the expert-testimony issue in his appellee's brief, and Lewis devoted a substantial portion of his reply brief to rebutting Nolan's contention that expert opinion testimony was necessary. Lewis did not contend, as he does on rehearing, that any consideration of expert opinion testimony was outside the grounds asserted in Nolan's summary-judgment motion. Rather, Lewis addressed the merit of the issue, contending that lay testimony that he produced in support of this cause of action was legally competent to show causation, even though it was not expert testimony. The parties thus fully joined the issue.

We overrule this rehearing argument.



Breach-of-Contract Claim

Lewis also argues that we erred in disposing of his breach-of-contract claim on the basis that he had not challenged every ground that Nolan had asserted against him in Nolan's no-evidence summary-judgment motion. Specifically, he argues that Nolan asserted only two challenges, not the three that our opinion identified, against Lewis's cause of action and that he adequately assigned error on appeal to both of the grounds that Nolan's motion had asserted.

We agree with Lewis that the applicable ground of Nolan's no-evidence summary-judgment motion challenged only two elements--the existence of a contract and damages. Nolan's no-evidence summary-judgment motion asserted in pertinent part:

Nolan contends that no contract of employment was executed between the parties. With no written contract between the parties, it is legally impossible for Nolan to have breached the terms of any such contract. With no contract, it is legally impossible to succeed on a breach of contract claim. Any allegation that Lewis has against Nolan would fall under the category of negligence and not under the category of breach of contract. Furthermore, Nolan contends that no evidence exists to prove that Lewis was damaged as a proximate result of Nolan's alleged failure to perform the contract according to its terms. In short, there is no evidence sufficient to raise a fact issue on the element that a contract existed between Nolan and Lewis, nor that Lewis was damaged by any alleged failure of Nolan to perform said contract according to its terms.



Nonetheless, our disposition remains unchanged. As we noted in our original opinion, Lewis challenged only the first ground that Nolan asserted--that no written contract existed between the parties. In his opening brief, Lewis argued:

Nolan does not dispute that breach of contract is a viable theory of recovery in the legal malpractice context. Nolan's no-evidence argument with respect to the contract theory of recovery is that there is no written contract, and in that regard states: [quoting only the first three sentences of Nolan's above-quoted summary-judgment argument]. There is no need that a contract be in writing. Oral contracts are enforceable just as are written contracts. In that regard, the Bar Rules contemplate oral contracts between attorneys and there [sic] clients. . . . Also, Nolan made an appearance and was present at Lewis's deposition in the underlying case. These circumstances, with Lewis's affidavit, are some evidence of an attorney-client relationship and indicate that Nolan agreed to represent Lewis.



(Citations omitted; emphasis in original.) Lewis did not assign error to the judgment to the extent that it might have been rendered on the ground of damages generally or that Nolan's alleged failure to perform did not proximately cause any damages to Lewis.

On rehearing, Lewis argues that he assigned error on appeal to the damages ground asserted against the breach-of-contract cause of action. The above quotation shows, however, that he raised issues with regard to the existence of a contract, not causation or damages. Lewis nonetheless contends:

[Nolan] argued throughout the case that there were no damages because [Lewis] had confessed to owning the debt in the underlying promissory note case. The damages model of this case has always been that [Lewis] had to pay the debt in question because the underlying case was not defended. [Nolan's] defense in this regard was that [Lewis] confessed to owning the debt. [Lewis] repeatedly responded to this argument . . . .



As examples of his having assigned error to the damages ground, Lewis cites a sentence in the introductory statement in his reply brief, as well as his client's summary-judgment affidavits. Although we must liberally and fairly construe parties' briefs, (3) Lewis devoted a section of his brief specifically to the breach-of-contract claim, and nowhere in that section did he mention damages or that Nolan's alleged breach proximately resulted in damages.

We are prohibited from reversing a judgment on a basis that is not assigned as error on appeal. See Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993) ("We have held repeatedly that the courts of appeals may not reverse the judgment of a trial court for a reason not raised in a point of error."). Accordingly, we conclude that we correctly affirmed the judgment rendered against Lewis's breach-of-contract claim for Lewis's having failed to challenge every summary-judgment ground that could independently have been the basis for the trial court's ruling. See Britton v. Tex. Dep't of Criminal Justice, 95 S.W.3d 676, 681-82 (Tex. App.--Houston [1st Dist.] 2002, no pet.).

We overrule this rehearing argument.



Tim Taft

Justice



Panel consists of Justices Taft, Higley, and Bland.

1. Because we grant Lewis's rehearing motion and issue this supplemental opinion on rehearing, the motion for en banc reconsideration is rendered moot. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 n.4 (Tex. App.--Houston [1st Dist.] 2004, pet. denied) (op. on reh'g), cert. denied, 127 S. Ct. 256 (2006).

2. As we noted in our original opinion, this no-evidence summary-judgment

motion was not included in the appellate record. Lewis's opening brief referred to the motion and implied that he might seek a supplemental record containing it because his briefing cited to a supplemental record without page references. However, no such supplemental clerk's record was filed. Nolan did not dispute the representations about this summary-judgment motion made in Lewis's brief. Because both parties acknowledged the existence of a no-evidence motion for summary judgment on causation, we accepted as true Lewis's statement that Nolan had filed a no-evidence summary-judgment motion on this ground. See Tex. R. App. P. 38.1(f) ("In a civil case, the court will accept as true the facts stated [in the appellant's brief] unless another party contradicts them.").



Lewis did not supplement the record with the no-evidence summary-judgment motion itself. We thus could not know what more the motion may have asserted, other than both parties' representation that it attacked the element of causation. Once a party has designated an item for inclusion in the record, or if the rules require that that item be included in the record, and has arranged for payment, it is our responsibility to order the record supplemented with that item. See Tex. R. App. P. 34.5, 35.3(c). Lewis did not request that this no-evidence summary-judgment motion be included in the record, however, and it is not an item that the rules require be included. See id.

3. See Tex. R. App. P. 38.9.