Reversed and Remanded, and Memorandum Opinion filed April 6, 2010.
In The
Fourteenth Court of Appeals
___________________
NO. 14-08-00130-CV
___________________
James O. Okorafor, Appellant
v.
Raymond B. Lewis and REBECCA LEWIS, Appellees
On Appeal from the 334th District Court
Harris County, Texas
Trial Court Cause No. 2005-78796
MEMORANDUM OPINION
This appeal arises from a legal-malpractice suit brought against multiple law firms and attorneys, including appellant James O. Okorafor, by the appellees, Raymond Lewis and Rebecca Lewis. The plaintiffs successfully moved for summary judgment in the absence of a response from Okorafor, and the trial court awarded them $1,280,502 in damages plus interest and costs. In this appeal, Okorafor challenges, among other things, the sufficiency of the Lewises’ summary-judgment motion and evidence.
We hold appellees did not conclusively prove their damages as a matter of law. Therefore, we are compelled, under current Texas law, to reverse the judgment and remand for a new trial on liability and damages. See Tex. R. App. P. 44.1(b).
I.
Background
On December 15, 2005, appellees, Raymond Lewis and Rebecca Lewis, sued some of their former lawyers,[1] alleging negligence, gross negligence, breach of fiduciary duty, and violations of the Texas Deceptive Trade Practices Act. See Tex. Bus. & Com. Code Ann. §§ 17.41–.63 (Vernon 2002 & Supp. 2009). Generally, the Lewises accuse the defendants of mishandling their personal-injury lawsuit by allowing the statute of limitations to run on their claims.
Appellant, James O. Okorafor, was among those sued. He denies owing any legal duty to the Lewises, however, claiming he never entered into an attorney-client relationship with them. In response, the Lewises contend Okorafor should be held vicariously liable, under the law of partnerships, for the alleged malpractice of his former law partner, Uche Mgbaraho. See Tex. Bus. Orgs. Code Ann. § 152.304(a) (Vernon 2009) (holding partners jointly and severally liable for debts and obligations of a general partnership). Okorafor and Mgbaraho filed answers to the lawsuit and denied liability to the claimants.[2]
On November 27, 2007, the Lewises filed a “Motion for Partial Summary Judgment (On Liability)” against the defendants.[3] Okorafor had notified appellees’ counsel he would be out of the country until “the end of the year,” and counsel attempted to serve him by restricted-delivery mail.[4] The parcel was returned as “unclaimed,” and in the absence of a response from Okorafor, the trial court granted the claimants’ motion on December 20, 2007.
Two days later, the Lewises filed a “Motion for Rendition and Entry of Final Judgment” against the defendants.[5] On January 28, 2008, the trial court granted the motion and entered a final judgment ordering the defendants, jointly and severally, to pay lump-sum damages of $1,093,682.00 to Raymond Lewis and $186,820.00 to Rebecca Lewis, plus interest and costs. Okorafor filed multiple motions for new trial, in which he denied receiving notice of the summary-judgment motion and hearing. The trial court denied the motions.
This appeal ensued.[6] Here, in five issues, Okorafor contends the judgment must be reversed because (1) he did not receive notice of the summary-judgment motion or hearing; (2) the claimants did not prove he owed them a legal duty; (3) the statute of limitations bars the negligence claims against him; (4) the Lewises did not provide sufficient notice of their DTPA claims against him; and (5) the evidence does not conclusively establish the appellees’ damages or entitlement to summary judgment.[7]
II.
Analysis
We begin with Okorafor’s fifth issue, in which he argues the judgment must be reversed because the Lewises did not conclusively prove their damages as a matter of law. We agree, on the record presented, for two reasons. First, the trial court erred by awarding unliquidated damages in a summary proceeding, because such damages are subjective and therefore cannot be proven as a matter of law. Second, the record contains no proof that the Lewises’ alleged medical expenses were reasonable and necessarily incurred, a requisite showing before such damages may be awarded. We will discuss both of these points following a recitation of the standard of review to be applied here.
A. Standard of Review
The standards by which we review a traditional motion for summary judgment are well-established. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–49 (Tex. 1985); Seidner v. Citibank (S.D.), N.A., 201 S.W.3d 332, 334 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). A plaintiff who moves for summary judgment, as here, must conclusively establish all elements of his cause of action, including damages, as a matter of law. See Rivera v. White, 234 S.W.3d 802, 805–06 (Tex. App.—Texarkana 2007, no pet.); Rabe v. Dillard’s, Inc., 214 S.W.3d 767, 768 (Tex. App.—Dallas 2007, no pet.). An issue is treated as “conclusively established” if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Wohlfahrt v. Holloway, 172 S.W.3d 630, 636 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
If the summary-judgment evidence demonstrates the movant’s entitlement to judgment as a matter of law, the burden shifts to the nonmovant to present evidence raising a genuine issue of material fact. Horizon Offshore Contractors, Inc. v. Aon Risk Servs. of Tex., 283 S.W.3d 53, 57 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). We must consider summary-judgment evidence in the light most favorable to the nonmovant, crediting evidence in his favor if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not. See id.
A nonmovant’s failure to respond to the motion for summary judgment, as here, does not preclude him from challenging the legal sufficiency of the grounds expressly raised in the motion:
The trial court may not grant a summary judgment by default for lack of an answer or response to the motion by the non-movant when the movant’s summary judgment proof is legally insufficient. The movant still must establish his entitlement to a summary judgment on the issues expressly presented to the trial court by conclusively proving all essential elements of his cause of action or defense as a matter of law. Summary judgments must stand on their own merits, and the non-movant’s failure to answer or respond cannot supply by default the summary judgment proof necessary to establish the movant’s right.
City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979); see Tello v. Bank One, N.A., 218 S.W.3d 109, 118–19 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
B. Summary Judgment on Unliquidated Damages
Okorafor contends the trial court could not award “unliquidated” damages to the Lewises in a summary-judgment proceeding.[8] Briefly, damages are said to be “liquidated” if the amount may be accurately calculated by a trial court from the factual allegations in the plaintiff’s pleading and a written instrument. See Novosad v. Cunningham, 38 S.W.3d 767, 773 (Tex. App.—Houston [14th Dist.] 2001, no pet.). By contrast, damages that do not fit within that category are described as “unliquidated.” See Aavid Thermal Techs. of Tex. v. Irving Indep. Sch. Dist., 68 S.W.3d 707, 711 (Tex. App.—Dallas 2001, no pet.). The latter category encompasses most personal-injury damages because they are not susceptible to precise calculation. See id.; Jones v. Andrews, 873 S.W.2d 102, 107 (Tex. App.—Dallas 1994, no writ).
Under certain circumstances, a trial court properly may award definable and measurable damages, such as past medical bills,[9] in a summary-judgment proceeding if adequately proven. See Rivera, 234 S.W.3d at 805. The rationale for this rule is that liquidated damages may be precisely calculated and proven as a matter of law and are therefore appropriate for summary judgment. See Tex. R. Civ. P. 166a(c); Rivera, 234 S.W.3d at 805, 806–07.
By contrast, unliquidated damages, such as those compensating for physical pain and mental anguish, should not be awarded in summary-judgment proceedings. See Rivera, 234 S.W.3d at 805; Newsom v. State, 922 S.W.2d 274, 281 (Tex. App.—Austin 1996, writ denied); Moeller v. Fort Worth Capital Corp., 610 S.W.2d 857, 862 (Tex. Civ. App.—Fort Worth 1980, writ ref’d n.r.e.).[10] As the Rivera court observed: “[T]he process of awarding damages for amorphous, discretionary injuries such as mental anguish or pain and suffering is inherently difficult because the alleged injury is a subjective, unliquidated, nonpecuniary loss. The process is not readily susceptible to objective analysis.” Rivera, 234 S.W.3d at 806 (citations omitted). Accordingly, the Rivera court held that, because there is no way to quantify the value of unliquidated damages as a matter of law, an award of such damages necessarily must be decided by the trier of fact rather than summary judgment. See id.; Newsom, 922 S.W.2d at 281; see also Tex. R. Civ. P. 166a(c) (requiring traditional-summary-judgment movant to show entitlement to judgment as a matter of law).
Here, the trial court awarded $1,280,302.00 but did not segregate this lump-sum figure among the various categories of damages, both liquidated and unliquidated, claimed by the appellees.[11] Moreover, while the record contains some reference to the medical bills incurred by the Lewises, the total amount of those expenses – $87,632.23 – does not sufficiently account for the remainder of the damages awarded by the trial court. In fact, the trial court’s award actually exceeds, by exactly $50,000.00, the total amount of damages requested by the Lewises for all of their alleged injuries, including their unliquidated claims for, inter alia, physical pain and mental anguish.[12]
Therefore, on the record presented, we must conclude the trial court erroneously included some unspecified amount of unliquidated damages in its award to the claimants. Because appellees did not conclusively prove these damages as a matter of law, we must reverse.
C. Sufficiency of Evidence of Past Medical Expenses
In addition, we must conclude that, on the record presented, the evidence is legally insufficient to support an award of past medical expenses. To recover medical expenses incurred in the past, a claimant must prove such expenses were reasonable and necessarily incurred as a result of his injuries. See Whitaker v. Rose, 218 S.W.3d 216, 223 (Tex. App.—Houston [14th Dist.] 2007, no pet.); Jackson v. Gutierrez, 77 S.W.3d 898, 902 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
In the record before us, the only evidence of past medical expenses appears in the affidavit of Raymond Lewis, who testified, “As a result of the accident, I have incurred past medical expenses of at least $87,632.23.”[13] Evidence of amounts charged or paid, however, does not prove necessity of the treatment or reasonableness of the bills. See Jackson, 77 S.W.3d at 902. Therefore, his affidavit is not sufficient to satisfy this evidentiary requirement.
Instead, to prove the reasonableness and necessity of past medical expenses, a plaintiff may either (1) present expert testimony on those topics or (2) file one or more affidavits in compliance with section 18.001 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 18.001 (Vernon 2008); Whitaker, 218 S.W.3d at 223; Jackson, 77 S.W.3d at 902. According to the record, however, the Lewises did not present expert testimony or affidavits in support of their claimed expenses. Therefore, because there is no evidence proving appellees’ past medical expenses were reasonable and necessarily incurred, we must sustain appellant’s fifth issue and reverse the judgment.
III.
Conclusion
Our resolution here does not expressly affect the liability portion of the trial court’s summary judgment. However, under current Texas law, we are nevertheless required to remand this proceeding for a new trial on both damages and liability.[14] That is, when liability is contested, as here,[15] we are not permitted to remand for a separate trial solely on unliquidated damages. See Tex. R. App. P. 44.1(b); Willis v. Donnelly, 199 S.W.3d 262, 276 (Tex. 2006); Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001).
Accordingly we sustain appellant’s fifth issue on appeal, reverse the trial court’s judgment, and remand for a new trial as to appellant James O. Okorafor.
/s/ Kent C. Sullivan
Justice
Panel consists of Chief Justice Hedges and Justices Seymore and Sullivan.
[1] The defendants include attorneys Bartholomew C. Okonkwo, Yvonne Okonkwo, Uche Mgbaraho, and James O. Okorafor, and several law firms associated with these individuals.
[2] The other individual defendants, Bartholomew Okonkwo and Yvonne Okonkwo, failed to answer, and the trial court granted a default judgment against them.
[3] The motion’s caption suggests the appellees sought a ruling only as to the defendants’ liability. Within the body of the motion, however, the Lewises also presented evidence of their alleged injuries and repeatedly asked the trial court to grant them summary judgment on damages, as well.
[4] Restricted-delivery mail, according to postal documents contained in the record, may be delivered to, and received by, only the addressee or his authorized agent.
[5] This document does not appear in the record but is briefly mentioned in another pleading.
[6] Mgbaraho also filed a notice of appeal. However, because he failed to timely file an appellate brief or request an extension to do so, his appeal was dismissed. See Okorafor v. Lewis, No. 14-08-00130-CV, 2009 WL 975959, at *1 (Tex. App.—Houston [14th Dist.] Feb. 26, 2009, no pet.) (mem. op.). Okorafor’s appeal was similarly dismissed but then reinstated upon his motion.
[7] Okorafor did not raise limitations or the claimed lack of DTPA notice, the subjects of his third and fourth issues, before the trial court. We may not consider either argument for the first time on appeal. See Tex. R. App. P. 33.1(a); Hines v. Hash, 843 S.W.2d 464, 469–70 (Tex. 1992) (holding defendant waived right to receive DTPA notice by failing to timely object and request abatement of lawsuit); Tello v. Bank One, N.A., 218 S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (“[A] non-movant [who] relies on an affirmative defense to oppose the summary judgment motion . . . must provide sufficient summary judgment evidence to create a fact issue on each element of the defense.”). Accordingly, we overrule appellant’s third and fourth issues, in which he requests dismissal of the underlying lawsuit. See also Tex. R. App. P. 43.3; Bradleys’ Elec., Inc. v. Cigna Lloyds Ins. Co., 995 S.W.2d 675, 677 (Tex. 1999) (per curiam) (instructing appellate courts to address possible rendition points before issues seeking remand).
[8] The record does not suggest the court conducted a bench trial on damages inasmuch as trial was not scheduled to begin until February 11, 2008, two weeks after the final judgment was signed. Therefore, we construe the Lewises’ motion for rendition, in which they attempted to obtain a final judgment through motion practice in lieu of trial, as a second motion for summary judgment. See Tex. R. Civ. P. 71; Johnson v. State Farm Lloyds, 204 S.W.3d 897, 899 n.1 (Tex. App.—Dallas 2006), aff’d, 290 S.W.3d 886 (Tex. 2009); BCY Water Supply Corp. v. Residential Invs., Inc., 170 S.W.3d 596, 604 (Tex. App.—Tyler 2005, pet. denied).
[9] Future medical expenses, by contrast, are considered unliquidated because they represent only a prediction of expenses to be incurred. See Rivera, 234 S.W.3d at 807.
[10] See also Badall v. Durgapersad, No. 09-08-00188-CV, 2009 WL 857995, at *2 (Tex. App.—Beaumont Apr. 2, 2009, no pet. h.) (mem. op.) (holding trial court erred by awarding damages for pain, mental anguish, and loss of consortium in summary-judgment proceeding).
[11] In appellees’ motion for summary judgment, Raymond Lewis asked to be compensated for his (1) past and future physical pain and mental anguish; (2) past and future loss of earning capacity; (3) past and future physical impairment; (4) past and future medical expenses; and (5) exemplary damages. Separately, Rebecca Lewis requested an award of her (1) past and future loss of household services and (2) past and future loss of consortium.
[12] In the summary-judgment motion, the Lewises stated, “Plaintiffs have previously presented argument and evidence on the measure of damages available in the Underlying Suit, and that Plaintiffs’ [sic] sustained a total of $1,230,502 in damages. Rather than regurgitating the basis for and evidence of such damages, Plaintiffs simply incorporate the same by reference.” However, the record does not contain any document explaining how the Lewises arrived at this total.
[13] Appellees also presented the affidavit of their retained expert, an attorney, who similarly confirmed only the amount of medical expenses charged to the claimants.
[14] Therefore, we need not address appellant’s first and second issues, which involve the liability portion of the summary judgment, because a favorable ruling on those issues would not afford him any greater relief. See Tex. R. App. P. 47.1.
[15] A party contests liability by simply filing a general denial in the trial court, as Okorafor did in this case. See Estrada v. Dillon, 44 S.W.3d 558, 562 (Tex. 2001).