Opinion issued November 21, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-11-00293-CV
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KAREN KRISTINE SILVIO, Appellant
V.
JASON B. OSTROM AND NICOLE SAIN, Appellees
On Appeal from County Civil Court at Law No. 2
Harris County, Texas
Trial Court Case No. 937164
MEMORANDUM OPINION
Appellees, Jason Ostrom and Nicole Sain, sued Appellant, Kristine Silvio,
for outstanding attorney’s fees from an earlier suit, and Silvio counter-sued with a
number of claims relating to Ostrom and Sain’s representation of her. Ostrom and
Sain filed a motion for summary judgment on their claims against Silvio as well as
Silvio’s claim against them. The trial court granted the motion on Silvio’s claim
and denied the motion on Ostrom and Sain’s claims. Ostrom and Sain later
nonsuited their claims. On appeal, Silvio argues (1) the trial court erred by
granting Ostrom and Sain’s motion on her claim because Ostrom and Sain failed to
carry their burden of disproving her element of harm, (2) the trial court erred by
allowing Ostrom and Sain to nonsuit their claims, and (3) she has newly
discovered evidence regarding the earlier suit.
We affirm, in part, and reverse and remand, in part.
Background
In 2007, Silvio’s siblings sued Silvio over two deeds that purported to
convey an interest in real property to Silvio from her siblings and their mother.
Silvio retained Ostrom and Sain as counsel for that suit. Part way through the suit,
Silvio fired Ostrom and Sain as her counsel, retained new counsel, and later
represented herself pro se at trial. At the end of that suit, the trial court ruled that
both deeds lacked consideration and that the deed from her siblings lacked proper
delivery. 1
Shortly afterwards, Ostrom and Sain filed suit against Silvio for unpaid
attorneys’ fees, alleging breach of contract and suit on a sworn account. Silvio
1
We reversed on the mother’s deed, holding no consideration was needed and the
deed valid. Silvio v. Boggan, No. 01-10-00081-CV, 2012 WL 524420, at *5 (Tex.
App.—Houston [1st Dist.] Feb. 16, 2012, pet. denied) (mem. op.).
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filed a counterclaim, alleging legal malpractice. Ostrom and Sain filed a
traditional motion for summary judgment on Silvio’s legal malpractice claim as
well as their breach of contract and suit on a sworn account claims. The trial court
granted the motion on Silvio’s legal malpractice claim but denied the motion on
Ostrom and Sain’s breach of contract and suit on a sworn account claims. Ostrom
and Sain subsequently filed a non-suit without prejudice on their claims.
Motion for Summary Judgment
In her first issue, Silvio argues the trial court erred by granting summary
judgment on her claims against Ostrom and Sain.
A. Standard of Review
The standard for reviewing a traditional summary-judgment motion under
Texas Rule of Civil Procedure 166a(c) is whether the successful movant at the trial
level carried its burden of showing there is no genuine issue of material fact and
judgment should be granted as a matter of law. TEX. R. CIV. P. 166a(c). To prevail
on a traditional summary-judgment motion, the movant must establish no issue of
material fact exists and it is entitled to judgment as a matter of law. See id.; SAS
Inst. Inc. v. Breitenfeld, 167 S.W.3d 840, 841 (Tex. 2005). There is no issue of
material fact and a matter is conclusively proven when reasonable people could not
differ in their conclusions, a matter that depends on the facts of each case. City of
Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).
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In conducting our review, we take as true all evidence favorable to the
nonmovant, and we make all reasonable inferences in the nonmovant’s favor.
KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748
(Tex. 1999). Because summary judgment is a question of law, we review a trial
court’s summary judgment decision de novo. Mann Frankfort Stein & Lipp
Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).
A defendant who moves for summary judgment must either (1) disprove at
least one element of each of the plaintiff’s causes of action or (2) conclusively
establish each essential element of any affirmative defense, thereby rebutting the
plaintiff’s causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995).
B. Analysis
Silvio asserted a number of counterclaims against Ostrom and Sain, alleging
they failed to file documents with the court within the required time period, failed
to provide adequate legal research for her motion for summary judgment, and did
not adequately prepare for depositions and mediation. Ostrom and Sain argued in
their motion for summary judgment that Silvio’s counterclaim amounted to a
single legal malpractice claim. Silvio did not dispute their characterization of her
counterclaim.
When a plaintiff’s alternative causes of action are essentially means to an
end to achieve one complaint of legal malpractice, then the causes of action will be
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bundled as one legal malpractice cause of action. See Klein v. Reynolds,
Cunningham, Peterson & Cordell, 923 S.W.2d 45, 49 (Tex. App.—Houston [1st
Dist.] 1995, no writ). Because Silvio did not dispute the characterization of her
counter-petition as one claim for legal malpractice, we will treat it as such.
The elements of legal malpractice are (1) the attorney owed the plaintiff a
duty; (2) the attorney breached that duty; (3) the breach proximately caused the
plaintiff’s injuries; and (4) damage occurred. Greathouse v. McConnell, 982
S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (citing Farah
v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 670 (Tex. App.—Houston [1st
Dist.] 1996, no writ)). Ostrom and Sain did not urge no-evidence grounds for
summary judgment. Instead, their motion recited only traditional summary-
judgment authorities and made only traditional summary-judgment arguments to
the effect that they could negate the third element of the legal malpractice claim,
that they proximately caused Silvio’s harm.
As traditional summary-judgment movants, it was Ostrom and Sain’s burden
to prove the absence of any issue of material fact. This they failed to do. The first
argument in the motion was that “Defendant fails to plead with any clarity what act
or omission gives rise to her cause of action.” This complaint about Silvio’s
pleadings did nothing to satisfy their summary-judgment burden.
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Their second argument was that Silvio “fails in her ability to establish
proximate cause and harm, just as Delcourt did.” This argument refers to
Humphreys v. Delcourt, No. 01-09-00025-CV, 2009 WL 5174245 (Tex. App.—
Houston [1st Dist.] Dec. 31, 2009, no pet.), a legal malpractice case that Ostrom
and Sain characterized as being very “similar” to theirs. The comparison fails
because Humphreys was a legal-sufficiency review after a trial on the merits. Id. at
*4. Unlike the no-evidence standard applied to review the judgment in
Humphreys, in this appeal we evaluate the summary-judgment motion and
supporting evidence to determine whether Ostrom and Sain conclusively
demonstrated the absence of a material fact. See TEX. R. CIV. P. 166a(c) (requiring
movant to establish “there is no genuine issue as to any material fact and the
moving party is entitled to judgment as a matter of law on the issues expressly set
out in the motion”).
Ostrom and Sain then argued that they “were involved in the beginning of
[Silvio’s] suit, and put her in a good position to settle the case for less than the cost
of litigating it fully,” asserting that Silvio “chose not to take that settlement offer,
and at trial lost because there was no consideration for either of the deeds, and no
delivery for one of the deeds.” They offered no summary-judgment evidence to
support their contentions about the alleged settlement opportunity, which in any
case was irrelevant to the viability of Silvio’s claims. The only evidence they did
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attach was the final judgment entered by the trial court, which indicated that the
deed purportedly conveying property to Silvio from her siblings “is declared to be
void ab initio and is of no force and effect, there being no consideration, as this
term is understood in law, supporting such deed from Grantee to Grantor.” Based
on this evidence, Ostrom and Sain further argued:
The injury that [Silvio] suffered was the loss of her case; no act or
omission by [Ostrom and Sain] could have changed the fact that she
did not pay consideration to her siblings or mother, nor could it have
changed the fact that she could not establish delivery of the deed
signed by her siblings. In the same vein, [Ostrom and Sain] could not
have anticipated that anything they did, or did not do, would impact
the facts supporting [Silvio’s] siblings’ suit against her.
Ostrom and Sain’s only evidence to support these assertions was the final
judgment from the siblings’ case against Silvio. But that judgment addressed only
the outcome at trial. It did not address, and therefore could not conclusively
establish, whether Silvio’s case had been prejudiced in any fashion by Ostrom and
Sain’s representation.
Ostrom and Sain’s bare assertions that she would have lost anyway do not
constitute summary judgment proof and cannot support their motion for summary
judgment. See Adams v. Downey, 124 S.W3d 769, 773 (Tex. App.—Houston [1st
Dist.] 2003, no pet.) (holding bare assertions in motion for summary judgment
cannot support summary judgment). Accordingly, Ostrom and Sain did not meet
their burden to negate the harm element of Silvio’s legal malpractice claim.
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The dissent argues that Ostrom and Sain met their summary judgment
burden by attaching the original judgment and their billing records to their motion.
We cannot agree. Ostrom and Sain only relied on the billing records in support of
the motion for summary judgment on their claim of breach of contract against
Silvio. Ostrom and Sain did not argue that their billing records could somehow
disprove Silvio’s malpractice claim. See State Farm Lloyds v. Page, 315 S.W.3d
525, 532 (Tex. 2010) (holding “[s]ummary judgment may not be affirmed on
appeal on a ground not presented to the trial court in the motion”).
Even including Ostrom and Sain’s billing records in the scope of the
summary judgment evidence on Silvio’s malpractice claim, this evidence only
amounts to proof that legal services were provided. We find no legal support—and
the dissent has not cited to any—for the argument that proof of legal services
establishes as a matter of law that legal malpractice was not committed.
We sustain Silvio’s first issue. 2
Nonsuit
In her second issue, Silvio argues the trial court erred by allowing Ostrom
and Sain to nonsuit their claims against her. It appears that Silvio’s main argument
2
Silvio argues in her third issue that she has newly discovered evidence of
allegations pleaded against her in the earlier suit that Ostrom and Sain had failed
to notify her about. If anything, this is a basis for Silvio’s allegation that Ostrom
and Sain committed malpractice. Because we have already reversed the trial
court’s grant of summary judgment on this claim, we do not need to address this
issue. See TEX. R. APP. P. 47.1.
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is that nonsuit was improper because she sought to maintain her malpractice claim
against Ostrom and Sain. To the degree that Silvio is arguing any error in the
nonsuit distinct from her complaint on the grant of summary judgment, we note,
“A plaintiff has an absolute right to nonsuit a claim before resting its case-in-chief,
but a nonsuit ‘shall not prejudice the right of an adverse party to be heard on a
pending claim for affirmative relief,’” CTL/Thompson Tex., LLC v. Starwood
Homeowner's Ass'n, Inc., 390 S.W.3d 299, 300 (Tex. 2013) (quoting TEX. R. CIV.
P. 162). Because Silvio’s legal malpractice claim had been disposed of before they
filed their notice of nonsuit, Otsrom and Sain had an absolute right to nonsuit their
claims.
We overrule Silvio’s second issue.
Conclusion
We reverse the portion of the trial court’s judgment granting summary
judgment on Silvio’s claims against Ostrom and Sain. We affirm the remainder of
the trial court’s judgment.
Laura Carter Higley
Justice
Panel consists of Justices Keyes, Higley, and Massengale.
Justice Keyes, dissenting.
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