Bosheng Wen v. Stewart Lin

Opinion issued December 23, 2014

In The

Court of Appeals
For The

First District of Texas
————————————
NO. 01-13-00962-CV
———————————
BOSHENG WEN, Appellant
V.
STEWART LIN, Appellee

On Appeal from the 234th District Court
Harris County, Texas
Trial Court Case No. 2013-28916

MEMORANDUM OPINION

Bosheng Wen (“Wen”) appeals the trial court’s order granting summary

judgment in favor of appellee, Stewart Lin (“Lin”), on Wen’s claims of legal

malpractice and breach of fiduciary duty. We affirm.
 Background

In May 2008, Wen’s company, Wen’s Royal Remodeling, Inc. (“Wen’s

Remodeling”), entered into a contract with 121 Chinese Restaurant to perform

remodeling work. After a dispute arose between Andy Wu, the restaurant’s owner,

and Wen, the restaurant filed suit against Wen’s Remodeling alleging breach of

contract and tortious interference with contract.1 Wen retained attorney Lin of Lin

& Valdez LLP to represent him in the litigation.

Lin filed an answer and counterclaim against the restaurant on behalf of

Wen’s Remodeling.2 Wen’s Remodeling subsequently filed a motion to substitute

counsel, seeking to discharge Lin and his firm and substitute Kristopher K. Ahn as

attorney-in-charge. The trial court granted the motion.

The case proceeded to trial on April 20, 2010. Upon the jury’s verdict, the

trial court entered judgment on July 5, 2010, in favor of the restaurant on its breach

of contract claim, awarding $200 in damages and $10,000 in attorney’s fees, and

rendered a take-nothing judgment against Wen’s Remodeling on its counterclaims.

On May 15, 2013, Wen, acting pro se, filed suit against Lin alleging, among

other things, that Lin (1) performed no work on his case for more than a year;

1
The suit is styled DN Development Corporation d/b/a Café 121 Chinese
Restaurant v. Wen’s Royal Remodeling, Inc., Cause No. 2008-69877.
2
In its counterclaim, Wen’s Remodeling asserted causes of action for suit on a
sworn account and breach of contract and sought restitution to collect the $8,800 it
claimed the restaurant owed.
2
(2) colluded with Wu to falsely accuse Wen of having caused plumbing problems

and the resulting odor in the restaurant; (3) failed to contact the police regarding its

investigation into Wu’s alleged assault of Wen; (4) released the mechanic’s lien

Wen had placed on the restaurant to collect the money Wu allegedly owed him

without Wen’s permission and then told Wen that the court had decided to release

it; (5) performed work for and received money from Wu; (6) forced Wen to pay

additional money for Lin’s services through deceit and threats; (7) told Wen that

the court had dismissed his case when, in fact, it had not; and (8) requested a

continuance of the trial date without informing Wen. Lin filed his answer and

asserted several affirmative defenses including the statute of limitations, lack of

capacity in which he was sued, and defect of party defendants.

Lin moved for traditional summary judgment on Wen’s claims. In his

motion, Lin contended that he was entitled to summary judgment on Wen’s legal

malpractice claim on two grounds. First, Wen failed to file his claim within the

applicable two-year statute of limitations. Second, Lin was not liable in the

individual capacity in which he was sued because his firm provided the legal

services to Wen and, thus, Wen’s suit against him, individually, was improper.

In his summary judgment response, Wen, now represented by counsel,

contended that the discovery rule applied to toll the statute of limitations on his

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legal malpractice claim.3 Wen then filed a supplemental summary judgment

response asserting that he properly sued Lin in his individual capacity because Lin

had acted as Wen’s counsel. In his supplemental response, Wen also asserted that

Lin had withdrawn his argument that Wen’s suit was barred by the statute of

limitations at the last hearing before the court. Afterwards, Lin filed special

exceptions to Wen’s original petition, complaining that Wen’s petition failed to

assert a cognizable claim, alleged insufficient facts, and failed to specify the

amount or type of damages sought.

On October 7, 2013, the trial court granted summary judgment on Wen’s

claims. Wen timely filed this appeal.

Discussion

On appeal, Wen contends that the trial court erred in granting summary

judgment on his claims for legal malpractice and breach of fiduciary duty because

issues of material fact existed. Specifically, he argues that his failure to sue Lin &

Valdez, LLP does not preclude Lin from being held individually liable, as a firm

partner, for the acts committed by his firm. He also asserts that the discovery rule

tolled the statute of limitations on his legal malpractice claim. Lin argues that the

trial court properly granted summary judgment on Wen’s legal malpractice claim

3
Wen initially filed a pro se response to defendant’s summary judgment motion
essentially restating the allegations contained in his petition without addressing
either summary judgment ground raised in Lin’s motion.
4
because the claim belonged to Wen’s Remodeling, not Wen, individually, and thus,

the lack of privity between them precludes Wen’s suit against him. Lin also asserts

that Wen’s malpractice claim is barred by the two-year statute of limitations. Lin

argues that he was entitled to summary judgment on Wen’s breach of fiduciary

duty claim because the claim is an impermissible attempt to fracture his legal

malpractice claim.

A. Standard of Review

We review de novo a trial court’s ruling on a motion for summary judgment.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848

(Tex. 2009). In a traditional motion for summary judgment, the movant must

establish that no genuine issue of material fact exists and that the party is entitled

to summary judgment as a matter of law. TEX. R. CIV. P. 166a(c). In determining

whether there are disputed issues of material fact, we take as true all evidence

favorable to the nonmovant and indulge every reasonable inference in the

nonmovant’s favor. See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548–549

(Tex. 1985).

A defendant is entitled to summary judgment on an affirmative defense if it

conclusively proves all of the elements of the affirmative defense. Rhone–Poulenc,

Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999). We will affirm summary judgment

only if the record establishes that the movant conclusively proved all elements of

5
its affirmative defense as a matter of law. City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678 (Tex. 1979). Where a defendant seeks summary

judgment on the basis of limitations, it must (1) conclusively prove when the cause

of action accrued and, if the plaintiff has pleaded the discovery rule,

(2) conclusively negate it. Velsicol Chem. Corp. v. Winograd, 956 S.W.2d 529,

530 (Tex. 1997). If the movant establishes that the statute of limitations bars the

action, the nonmovant must then adduce summary judgment proof raising a fact

issue in avoidance of the statute of limitations. KPMG Peat Marwick v. Harrison

Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).

If, as here, the summary judgment does not specify the grounds on which it

was granted, the appealing party must demonstrate that none of the proposed

grounds is sufficient to support the judgment. Rogers v. Ricane Enters., 772

S.W.2d 76, 79 (Tex. 1989). Because the trial court in this case did not specify the

ground upon which it relied for its ruling, we will affirm if any theory advanced by

Lin in his summary judgment motion is meritorious. See Joe v. Two Thirty Nine

Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

B. Legal Malpractice Claim

Wen contends that the trial court erred in granting Lin’s motion for summary

judgment because his legal malpractice cause of action against Lin was not barred

6
by the statute of limitations.4 Specifically, Wen argues that the rule enunciated in

Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991), tolled the statute of

limitations on his legal malpractice claim.5

A two-year statute of limitations governs legal malpractice claims. TEX.

CIV. PRAC. & REM. CODE ANN. § 16.003 (West Supp. 2014); Willis v. Maverick,

760 S.W.2d 642, 644 (Tex. 1988). The statute of limitations begins to run when

the claim accrues. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003. A legal

malpractice claim accrues when the client sustains a legal injury or, in cases

governed by the discovery rule, when the client discovers or should have

discovered through the exercise of reasonable care and diligence the facts

establishing the elements of the claim. Hughes, 821 S.W.2d at 156; Nowak v.

Pellis, 248 S.W.3d 736, 739 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

4
In light of our disposition of this issue, we do not reach Wen’s additional
argument regarding whether his failure to sue Lin & Valdez, LLP, precludes Lin
from being held individually liable for the acts committed by his firm. We further
note that Lin’s argument in his summary judgment motion—that he lacked
capacity to be sued because his law firm provided legal services to Wen—does not
comport with his argument on appeal that Wen could not sue him because the
malpractice claim belonged to the corporation and not Wen, individually.
5
In his supplemental summary judgment response and in his brief on appeal, Wen
asserts that Lin “withdrew that argument based on the statute of limitations
defense from the Court’s consideration, following [Wen’s] current counsel’s
briefing in his response in opposition to that motion.” There is nothing in the
record reflecting that Lin withdrew his limitations argument from the court’s
consideration. Further, we note that both parties address the limitations defense on
appeal.

7
However, in Hughes, the Texas Supreme Court established an equitable tolling rule

for the statute of limitations in legal malpractice cases: “[W]hen an attorney

commits malpractice in the prosecution or defense of a claim that results in

litigation, the statute of limitations on the malpractice claim against the attorney is

tolled until all appeals on the underlying claim are exhausted.” 821 S.W.2d at 157.

In his motion for summary judgment, Lin argued that Wen’s malpractice

claim accrued on November 19, 2008, the date of the first negligent act alleged in

Wen’s petition.6 Lin then asserted that the latest point in time that limitations

could have begun to accrue on Wen’s malpractice claim was upon the trial court’s

entry of judgment on July 5, 2010. Lin asserts that because Wen filed his lawsuit

on May 15, 2013—more than two years after either date—Wen’s malpractice

claim is barred by limitations under either scenario.

Once Lin met his summary judgment burden on limitations, it was

incumbent upon Wen to adduce summary judgment proof raising a fact issue to

avoid the statute of limitations through some recognized exception. See Trousdale

v. Henry, 261 S.W.3d 221, 234–35 (Tex. App.—Houston [14th Dist.] 2008, pet.

denied). In his summary judgment response, Wen argued that the Hughes tolling

6
Although Lin contends that November 19, 2008, is the date of the first alleged act
of negligence in Wen’s petition, Wen alleged that Lin first acted negligently after
he hired him on July 28, 2008: “Lin didn’t do anything regarding my case for six
months.”

8
rule applies to his case. However, Wen failed to attach any affidavits or other

admissible summary judgment evidence to show that he filed a motion for new

trial, a motion to modify the judgment, or otherwise timely perfected an appeal in

the underlying suit.7 Further, we note that although Wen discusses at length the

cases addressing the Hughes rule in his summary judgment response and his brief

on appeal, he provides no argument or analysis of how the law applies to the facts

of his case and no citation to the record. See TEX. R. APP. P. 38.1(i). Because Wen

failed to adduce summary judgment proof raising a fact issue to avoid the statute of

limitations, the trial court properly granted summary judgment on his legal

malpractice claim.

C. Breach of Fiduciary Duty Claim

Wen also summarily contends that the trial court erred in granting summary

judgment on his breach of fiduciary duty claim. Lin argues that the trial court

7
A panel of this Court recently issued a memorandum opinion in Wen’s appeal of
the trial court’s order granting summary judgment on his legal malpractice claim
against his second attorney, Kristopher Ahn. See Wen v. Ahn, No. 01-13-00837-
CV, 2014 WL 5780251 (Tex. App.—Houston [1st Dist.] Nov. 6, 2014, no pet. h.).
In that opinion, the Court notes that Wen appealed the judgment in the underlying
suit through subsequent counsel and, on December 6, 2011, the Fourteenth Court
of Appeals issued a memorandum opinion affirming the trial court’s judgment.
See Wen’s Royal Remodeling, Inc. v. DN Dev. Corp., No. 14-10-00919-CV, 2011
WL 6042845, *1–2 (Tex. App.—Houston [14th Dist.] Dec. 6, 2011, no pet.). As
in Wen’s other appeal before this Court, however, the record in the appeal before
us does not contain any discussion of the appeal of the underlying suit, nor does
the record contain a copy of the opinion, judgment, or mandate from that appeal.
See Wen, 2014 WL 5780251, at *1.

9
properly granted summary judgment on Wen’s breach of fiduciary duty claim

because Wen has merely recast his legal malpractice claim and such fracturing of a

malpractice claim is not permitted.8

An appellate brief “must contain a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.” TEX.

R. APP. P. 38.1(h). “Rule 38 requires [a party] to provide us with such discussion

of the facts and the authorities relied upon as may be requisite to maintain the point

at issue.” Tesoro Petroleum Corp. v. Nabors Drilling USA, Inc., 106 S.W.3d 118,

128 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). “This is not done by

merely uttering brief conclusory statements, unsupported by legal citations.”

Daniel v. Falcon Interest Realty Corp., 190 S.W.3d 177, 189 (Tex. App.—Houston

[1st Dist.] 2005, no pet.). When a party fails to adequately brief a complaint, it

waives the issue on appeal. See Fredonia State Bank v. Gen. Am. Life Ins. Co., 881

S.W.2d 279, 284 (Tex.1994) (appellate court has discretion to waive point of error

due to inadequate briefing). Here, Wen offers no argument, analysis, or citation to

authority or the record to support his bare assertion that the trial court erred in

granting summary judgment on his breach fiduciary duty claim. As such, he has

failed to preserve this issue for our review. See TEX. R. APP. P. 38.1(i); Tesoro

Petroleum Corp., 106 S.W.3d at 128. We overrule Wen’s appellate issues.

8
A four-year statute of limitations governs breach of fiduciary duty claims. See
TEX. CIV. PRAC. & REM. CODE § 16.004(a)(5) (West 2010).
10
 Conclusion

We affirm the trial court’s judgment.

Jim Sharp
Justice

Panel consists of Justices Jennings, Sharp, and Massengale.

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