In The
Court of Appeals
Ninth District of Texas at Beaumont
___________________
NO. 09-19-00019-CV
___________________
NICHOLAS MARTENY, Appellant
V.
BRENT W. COON AND BRENT W. COON, PC D/B/A BRENT COON &
ASSOCIATES, Appellees
_________________________________________________________________
On Appeal from the 60th District Court
Jefferson County, Texas
Trial Cause No. B-199,855
_________________________________________________________________
MEMORANDUM OPINION
In this legal malpractice case, Nicholas Marteny appeals the trial court’s grant
of a traditional motion for summary judgment in favor of Brent Coon and Brent W.
Coon, PC d/b/a Brent Coon & Associates (collectively “BCA”). In three issues,
Marteny asks (1) whether the trial court erred by granting traditional summary
judgment based on lack of duty and damages, (2) whether the trial court abused its
discretion by implicitly denying the motion to compel discovery, and (3) whether
the trial court abused its discretion by implicitly denying the motion to continue the
1
summary judgment hearing so Marteny could obtain additional discovery. We affirm
in part, and reverse and remand in part.
I. Background
Following the Deepwater Horizon oil spill on April 20, 2010, the United
States Department of the Interior placed a moratorium on offshore drilling. After the
oil spill and the imposition of the moratorium, Marteny, a merchant mariner, lost his
job and had difficulty finding another due to reduced demand. Prior to hiring BCA,
Marteny submitted his economic loss claim through the Gulf Coast Claims Facility
(“GCCF”). 1
Thereafter, on June 10, 2011, Marteny entered into an agreement with BCA
and retained the law firm
to investigate and, if appropriate, file suit for and attempt to recover any
damages and compensation to which [Marteny] may be entitled against
any party or parties responsible for same, as well as attempt to
compromise and settle all claims of [Marteny], in connection with or
arising out of the events surrounding the April 20, 2010 explosion of
the Deepwater Horizon offshore drilling rig.
The agreement allowed BCA to negotiate an aggregate settlement for Marteny along
with BCA’s other “similarly situated” clients and apportion joint expenses among
these clients. On September 7, 2011, the GCCF denied Marteny’s initial claim but
advised that he had a right to appeal, and the right to file a multidistrict litigation
1
The GCCF was the official claims handling program for individuals filing
claims for damages related to the Deepwater Horizon oil spill.
2
claim in court. A BCA attorney apprised Marteny of this initial denial in a letter
dated December 5, 2011, and informed Marteny that BCA “inten[ded] to dispute”
the GCCF’s denial.
On January 20, 2012, BCA sent another demand to the GCCF on Marteny’s
behalf under the Oil Pollution Act of 1990 (“OPA”). BCA demanded $162,445.20
for Marteny’s economic losses and asserted that BP was designated a responsible
party pursuant to the OPA. BCA left the demand open for ninety days at which point
BCA would pursue remedies outside the OPA presentment process. This demand
was rejected on June 13, 2012, and Marteny asserts BCA never disclosed this to
him.2
On June 25, 2012, Marteny terminated BCA due to alleged difficulties
communicating with BCA. Marteny had second thoughts and asked BCA on
September 11, 2012 to “disregard the termination letter and continue to represent
[him].” Subsequently, on November 20, 2012, BCA staff asked Marteny via email
to confirm his desire to cancel the termination and have BCA continue to represent
him under the terms of the original contract, which Marteny did the same day. On
January 15, 2013, BCA filed a presentment form on Marteny’s behalf indicating that
Marteny suffered $100,000 in loss of income, profits and/or earning capacity.
2
Marteny alleges in his brief that BCA never properly submitted this demand,
which led to the claim’s rejection.
3
On April 19, 2013, BCA filed two petitions in state court on behalf of over
4,000 BP clients but did not name Marteny as a plaintiff. These petitions included
plaintiffs who were “[o]il service, exploration and/or drilling service companies,
workers, providers, or suppliers . . . affected by the Moratorium issued by the United
States Department of the Interior[.]” BCA included tort claims such as negligence
and gross negligence and sued under the OPA.
In November of 2015, Marteny retained another lawyer to verify what BCA
was telling him. He learned the GCCF claim had been “abandoned” and that no
timely lawsuit was filed on his behalf against BP. In April 2017, Marteny sued BCA
for negligence, breach of fiduciary duty and violations of the Texas Deceptive Trade
Practices Act (“TDTPA”).
In April 2017, Marteny propounded discovery to BCA attempting to obtain
settlement information regarding other “similar clients.” 3 BCA responded to this
discovery, lodging objections and providing limited information. The day after the
summary judgment hearing, Marteny sent correspondence to BCA regarding the
3
The discovery requests defined “similar clients” as “those clients or plaintiffs
[BCA] represented in claims with the GCCF, the Settlement Program, any other
settlement or claim program relating to the spill, or in litigation against BP arising
out of the Deepwater Horizon Oil Spill that occurred on or about April 20, 2010 and
who were oil service, exploration or marine workers, providers, or suppliers that,
like Marteny, claimed to suffer economic losses as a result of the oil spill or the
moratorium issued by the United States Department of the Interior following the
spill.”
4
deficient discovery responses. In response, BCA provided a one-page privilege log.
Thereafter, Marteny filed a motion to compel written discovery complaining of
BCA’s objections and inadequate privilege log. BCA responded, arguing the
settlement information was sealed and confidential but offered to produce copies of
the MDL confidentiality order for in camera inspection.
BCA filed a traditional motion for summary judgment solely addressing the
legal malpractice cause of action. BCA argued in the motion for summary judgment
that it did not represent Marteny after June 25, 2012, and therefore, owed him no
duty. BCA also contended that Marteny did not have any damages because he only
suffered moratorium losses, and a federal court ruled that BP was not responsible
under the OPA for economic losses resulting from the moratoria.4 BCA did not
contest that some plaintiffs received compensation for moratoria claims under
settlement agreements, rather BCA argued that the MDL court ruled moratoria-only
claims like Marteny’s were not compensable. BCA’s summary judgment motion did
not address the breach of fiduciary duty or TDTPA causes of action. BCA did not
submit any affidavits or expert testimony in support of its motion. The only evidence
BCA attached in support of its summary judgment motion was unauthenticated
copies of: (a) Marteny’s termination letter; (b) Marteny’s written discovery
4
There were multiple drilling moratoria imposed but BCA references a single
moratorium.
5
responses; (c) Marteny’s original petition and request for disclosure; (d) MDL notice
of filing of the economic and property damages settlement agreement; and (e) order
and reasons “[As to the OPA Test Cases/Moratorium Claims].” 5
Marteny responded to BCA’s summary judgment motion asserting: (1) that a
genuine issue of material fact remained regarding BCA’s continued representation
of him after June 25, 2012; and (2) genuine issues of fact existed as to whether
BCA’s conduct caused Marteny damages. Marteny’s response included the
following evidence: (1) Marteny’s affidavit; (2) the original retention agreement
with BCA; (3) various correspondence and demands to and from the GCCF
regarding Marteny; (4) email exchanges between Marteny and BCA regarding
Marteny withdrawing his termination and desire for ongoing representation under
the terms of the original retention agreement; (5) “Deepwater Horizon Oil Pollution
Act Presentment Claim Form” submitted on January 15, 2013, by BCA on behalf of
Marteny; (6) petitions BCA filed in Texas state court naming thousands of plaintiffs
but not Marteny; (7) March 17, 2017 MDL Order regarding Moratoria Hold Claims;
(8) MDL Pretrial Order No. 60; (9) MDL Order regarding remaining plaintiffs in B1
5
In his summary judgment response, Marteny objected to BCA’s summary
judgment exhibits because they were unauthenticated. BCA subsequently responded
in its reply to Marteny’s response that two of the exhibits were documents from a
federal court and were self-authenticated, and BCA provided the affidavit of an
office employee for the third document, which was Marteny’s June 25, 2012, letter
terminating BCA.
6
pleading bundle; (10) Marteny’s Second Set of Interrogatories, Second Requests for
Production, and First Request for Admissions to BCA; (11) email from Marteny’s
counsel to BCA requesting depositions beginning March 21, 2018; and (12)
Marteny’s counsel’s affidavit authenticating documents.
The trial court granted BCA’s motion for summary judgment without ruling
on the pending motion to compel written discovery. 6 The trial court dismissed
Marteny’s claims against BCA and indicated it “finally disposes of all parties and
all claims[.]” Marteny timely appealed. Marteny contends on appeal that BCA owed
him a duty as it continued representing him, and BCA failed to negate the damages
element as a matter of law.7 Marteny also argues he used diligence in attempting to
obtain discovery, and the discovery was necessary to establish damages under
6
The trial court’s first summary judgment order dismissed Marteny’s claims
without prejudice. While it still had plenary power, the trial court subsequently
entered a nunc pro tunc summary judgment order that dismissed the claims with
prejudice. See Tex. R. Civ. P. 329b(d) (giving trial court plenary power for thirty
days after the judgment is signed).
7
On appeal, Marteny does not challenge the dismissal of the breach of
fiduciary duty or TDTPA claims by assigning error. Accordingly, we do not disturb
the dismissal of these additional causes of action. See Yiamouyiannis v. Thompson,
764 S.W.2d 338, 342 (Tex. App.—San Antonio 1988, writ denied) (citing
Prudential Ins. Co. v. J.R. Franclen, Inc., 710 S.W.2d 568, 569 (Tex. 1986); Gulf
Consol. Int’l, Inc. v. Murphy, 658 S.W.2d 565, 566 (Tex. 1983)) (explaining that
where the trial court erroneously dismissed all causes of action, although the motion
for summary judgment did not address them all but appellant failed to assign error
on appeal, the court of appeals would not disturb the rulings); see also Sanchez v.
Rodriguez, Nos. 13-00-059-CV, 13-00-060-CV, 2001 WL 34616782, at *7 (Tex.
App.—Corpus Christi Oct. 4, 2001, no pet.) (citations omitted).
7
Elizondo v. Krist, therefore, the trial court abused its discretion in denying the motion
to compel. See 415 S.W.3d 259, 263 (Tex. 2013).
II. Issue One: Summary Judgment
In his first issue, Marteny argues that the trial court erred by granting summary
judgment in favor of BCA on the elements of duty and damages. Specifically,
Marteny challenges BCA’s contention that it no longer represented him and thus,
owed him no duty. Marteny also argues that BCA did not conclusively negate the
damages element with competent summary judgment evidence.
A. Traditional Summary Judgment: Law and Standard of Review
We review a trial court’s grant of a traditional summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). The moving
party has the burden to show with competent summary judgment evidence that no
genuine issue of material fact exists and it is entitled to summary judgment as a
matter of law. See Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors,
Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985). On appeal, we review the summary-judgment
record “in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion.” City of Keller v. Wilson, 168
S.W.3d 802, 824 (Tex. 2005). We credit evidence in favor of the verdict if reasonable
8
jurors could and disregard evidence that contradicts the verdict evidence unless
reasonable jurors could not. Id. at 827.
Summary judgment for a defendant is proper only if the defendant negates at
least one element of each of the plaintiff’s theories of recovery. Sci. Spectrum, Inc.
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). When a trial court grants a summary
judgment without specifying the basis, we will affirm if any one of the movant’s
theories has merit. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995).
B. Analysis
To establish a legal-malpractice claim, a client must establish that: (1) the
lawyer owed him a duty of care; (2) the lawyer breached the duty; and (3) the
lawyer’s breach proximately caused the client damages. 8 Starwood Mgmt., LLC v.
Swaim, 530 S.W.3d 673, 678 (Tex. 2017); Rogers v. Zanetti, 518 S.W.3d 394, 400
(Tex. 2017); Stanfield v. Neubaum, 494 S.W.3d 90, 96 (Tex. 2016). When a legal
malpractice suit arises from prior litigation, a client must show that he would have
obtained a more favorable result in the underlying litigation if the attorney exercised
8
The anti-fracturing rule prevents a plaintiff from converting professional
negligence or legal malpractice claims into other claims. Won Pak v. Harris, 313
S.W.3d 454, 457 (Tex. App.—Dallas 2010, pet. denied). Professional negligence, or
the failure to exercise ordinary care, includes improperly representing a client. Id.
Marteny sued BCA alleging negligence and TDTPA violations; however, we note
that the heart of Marteny’s complaint is legal malpractice arising from BCA’s
alleged failure to adequately represent him. Likewise, BCA’s traditional summary
judgment motion only addressed the legal malpractice claim. See supra note 7.
9
the appropriate standard of care. Elizondo, 415 S.W.3d at 263; see also Rogers, 518
S.W.3d at 401. This is the suit-within-a-suit analysis and is the traditional way
plaintiffs prove legal malpractice claims. See Rogers, 518 S.W.3d at 401 (citation
omitted). “Where the injury claimed does not depend on the merits of the underlying
action, however, the case-within-a-case methodology does not apply.” Id. (citations
omitted). When a plaintiff alleges negligent settlement in a legal malpractice case,
the “suit within a suit” analysis is not required. Elizondo, 415 S.W.3d at 270. Rather,
in such a case, the alternative method available to prove attorney-malpractice
damages necessitates an analysis of settlements made under comparable
circumstances. Id.
In the trial court, BCA moved for traditional summary judgment challenging
the duty and damages elements of Marteny’s legal malpractice claim. Specifically,
BCA argued that: (1) it owed no duty to Marteny because it no longer represented
him; and (2) there were no damages because the MDL court determined moratoria-
only claims were not compensable. The trial court did not specify its basis for
granting the summary judgment motion, so we examine whether any grounds were
meritorious. See Star-Telegram, Inc., 915 S.W.2d at 473.
1. BCA Failed to Conclusively Negate the Duty Element
Marteny argues that BCA failed to conclusively negate the duty element in its
summary judgment motion, because, despite BCA’s assertion to the contrary, it
10
continued to represent him after June 25, 2012. “An attorney only owes a duty to his
clients.” Sotelo v. Stewart, 281 S.W.3d 76, 80 (Tex. App.—El Paso 2008, pet.
denied) (citing McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991
S.W.2d 787, 792 (Tex. 1999); Stancu v. Stalcup, 127 S.W.3d 429, 432 (Tex. App.—
Dallas 2004, no pet.)). If a defendant moves for summary judgment based on the
lack of an attorney-client relationship, the defendant must prove the non-existence
of the relationship as a matter of law. Stancu, 127 S.W.3d at 432 (quoting Yaklin v.
Glusing, Sharpe & Krueger, 875 S.W.2d 380, 383 (Tex. App.—Corpus Christi 1994,
no pet.)).
In support of its motion for summary judgment, BCA provided
correspondence from Marteny indicating his desire to terminate the attorney-client
relationship. The summary judgment record reveals that in response, Marteny
produced the original retention agreement and emails expressing his desire to
withdraw the June 25 termination and for BCA to continue representing him. In one
email exchange, BCA asked Marteny to confirm via return email that he wished for
them to continue representing him under the terms of their original agreement, which
he did. Although usually created by contract, an attorney-client relationship can be
implied based on the parties’ conduct. Sotelo, 281 S.W.3d at 80 (citations omitted).
Marteny also produced evidence that BCA acted on his behalf following this written
confirmation in January of 2013 by sending a new demand for economic damages.
11
Based on this record, we hold that BCA failed to conclusively negate the existence
of an attorney-client relationship and consequently, the duty element. 9 See id. at 81
(explaining that where an attorney failed to negate the duty element as a matter of
law, summary judgment could not be properly granted on that ground).
2. BCA Failed to Conclusively Negate Damages
Another essential element of a legal-malpractice claim is that the attorney’s
breach of a duty caused the client damages. Starwood Mgmt., LLC, 530 S.W.3d at
678; Rogers, 518 S.W.3d at 400. As the movant for a traditional motion for summary
judgment, a defendant is entitled to summary judgment if the evidence disproves as
a matter of law at least one element of the plaintiff’s cause of action or if it
conclusively establishes all elements of an affirmative defense. See Randall’s Food
Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). Having failed to negate
the duty element, BCA’s evidence must disprove the damages element as a matter
of law. See id.
Case law has recognized
that legal-malpractice damages are the difference between the result
obtained for the client and the result that would have been obtained with
competent counsel. They do not require that damages can only be
measured against the result the client would have obtained if the case
had been tried to a final judgment.
9
At the summary judgment hearing, BCA’s counsel agreed there was
“probably a fact issue” on the duty element and BCA’s continued representation of
Marteny and “that summary judgment may not be appropriate there.”
12
Elizondo, 415 S.W.3d at 263. In the mass tort context, “where the same defendant
settled thousands of cases,” the Texas Supreme Court has determined that an expert
can “base his opinion of malpractice damages on a comparison of what similarly
situated plaintiffs obtained from the same defendant.” Id. This data, the Court
explained “is perhaps the best evidence of the real-world settlement value of the
case.” Id. Experts can do so
when, in a mass tort litigation involving thousands of similar claimants
arising out of the same event, the expert measures the ‘true’ settlement
value of a particular case by persuasively comparing all the
circumstances of the case to the settlements obtained in other cases with
similar circumstances arising from the event.
Id.
BCA filed suit on behalf of over 4,000 other plaintiffs arising from the same
oil spill, some of whom had moratoria-only claims, and yet BCA did not name
Marteny in these petitions. Assuming, without deciding, that the relied-upon MDL
order was proper summary judgment evidence, the MDL court ruled that BP was not
responsible under the OPA for moratoria-only claims. That says nothing about other
common-law tort claims BCA pleaded when they filed suit in state court on behalf
of other plaintiffs with moratoria-only claims. Finally, there was evidence that court
appointed neutrals recommended settlement values even for these moratoria claims,
and some of the plaintiffs were compensated, which a BCA attorney acknowledged
at the summary judgment hearing. BCA did not produce any affidavits or expert
13
testimony regarding a lack of damages. It simply pointed to the MDL court’s ruling
as being dispositive.
Unlike the plaintiffs in Elizondo, Marteny offered no expert testimony on
damages; however, he was not required to because BCA did not file a no-evidence
motion for summary judgment. Rather, it filed a traditional motion for summary
judgment, which meant the burden remained on BCA to conclusively negate
damages rather than shifting the burden to Marteny to provide more than a scintilla
of evidence on damages.10 Compare Tex. R. Civ. P. 166a(c), with 166a(i); see also
Elizondo, 415 S.W.3d at 263 (analyzing no-evidence motion for summary judgment
and damages element in mass tort legal malpractice case); Burrow v. Arce, 997
S.W.2d 229, 237 (Tex. 1999) (analyzing traditional motion for summary judgment
and damages element in legal malpractice case). Marteny requested information in
discovery that the Elizondo Court outlined as acceptable proof and explained why
he needed the information by specifically citing to Elizondo.
10
As the dissent in Elizondo pointed out, that case involved a no-evidence
motion for summary judgment, which was distinguishable from the facts of its prior
opinion in Burrow v. Arce, where the defendants moved for a traditional summary
judgment. See Elizondo v. Krist, 415 S.W.3d 259, 277 (Tex. 2013) (Boyd, J.
dissenting) (citing Burrow v. Arce, 997 S.W.2d 229, 237 (Tex. 1999). In Burrow,
the defendants moving for traditional summary judgment were required to prove the
absence of damages as a matter of law. Id. Likewise, BCA moved for traditional
summary judgment.
14
BCA’s traditional motion for summary judgment argued that because
Marteny’s damages resulted from the government-imposed moratorium, his
damages were not compensable, and therefore Marteny sustained no damages. An
attorney’s “bare assertions that [the client] would have lost anyway do not constitute
summary judgment proof and cannot support their motion for summary judgment.”
Silvio v. Ostrom, No. 01-11-00293-CV, 2013 WL 6157358, at *3 (Tex. App.—
Houston [1st Dist.] Nov. 21, 2013, no pet.) (mem. op.) (citing Adams v. Downey,
124 S.W.3d 769, 773 (Tex. App.—Houston [1st Dist.] 2003, no pet.)). BCA
provided no expert testimony supporting its contention that an MDL court’s
determination of lack of compensability under the OPA would have resulted in no
settlement value for Marteny’s claims.
In Burrow v. Arce, the Texas Supreme Court reversed a traditional summary
judgment in favor of defendant attorneys where expert affidavits were found to be
deficient. 997 S.W.2d at 237. There, the Court ultimately concluded that the
attorneys failed to establish as a matter of law that the clients did not suffer actual
damages, thus the attorneys were not entitled to summary judgment on that ground.
Id. In explaining their decision, the Court reasoned that the attorneys providing
affidavits had “substantial credentials to render expert opinions on issues of attorney
practice, but their affidavits . . . offer[ed] no basis for the opinions stated.” Id. Here,
15
BCA failed to provide any expert testimony on the damages element, by affidavit or
otherwise.
The summary judgment record shows that BCA submitted multiple demands
for Marteny’s economic losses through various avenues. The summary judgment
record also established that BCA filed suit on behalf of many plaintiffs who
sustained economic damages related to the moratoria, according to petitions filed in
state court. BCA has provided no evidence nor even argued that the named plaintiffs’
claims were distinct from Marteny’s. See Elizondo, 415 S.W.3d at 263. Specifically,
BCA failed to present evidence that other plaintiffs did not receive settlements for
claims similar to Marteny’s. See id.; Burrow, 997 S.W.2d at 237.
Viewing the summary judgment evidence in the light most favorable to the
non-movant, we conclude a genuine issue of material fact remains as to Marteny’s
damages and the settlement value of the case. See Elizondo, 415 S.W.3d at 263
(noting what a plaintiff must prove to establish negligent settlement damages in the
mass tort context); Burrow, 997 S.W.2d at 237 (explaining defendant attorneys’
failure to provide adequate expert testimony on damages in support of traditional
summary judgment); see also City of Keller, 168 S.W.3d at 824. Because BCA failed
to meet its burden by conclusively negating one or more essential elements of
Marteny’s legal malpractice claim and genuine issues of material fact remain, we
sustain issue one.
16
III. Issues Two and Three: Motion to Compel and Motion for Continuance
In his second and third issues, Marteny contends the trial court abused its
discretion by implicitly denying his motion to compel as well as his requested
continuance of the summary judgment hearing.
A. Motion to Compel
Having determined the trial court erred in granting BCA’s traditional
summary judgment, we find it necessary to address the implicit denial of Marteny’s
motion to compel. “Because this issue will likely recur on remand, we address it in
the interest of judicial economy and to provide guidance to the trial court.”11 De
Anda v. Jason C. Webster, P.C., No. 14-17-00020-CV, 2018 WL 3580579, at *7
(Tex. App.—Houston [14th Dist.] July 26, 2018, pet. denied) (mem. op.) (citing Clay
Expl., Inc. v. Santa Rosa Operating, LLC, 442 S.W.3d 795, 802–03 (Tex. App.—
Houston [14th Dist.] 2014, no pet.)).
We review a trial court’s ruling on a motion to compel discovery for an abuse
of discretion. Stewart v. Lexicon Genetics, Inc., 279 S.W.3d 364, 373 (Tex. App.—
Beaumont 2009, pet. denied); see also Dillard Dept. Stores, Inc. v. Hall, 909 S.W.2d
11
See also Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex. 1997)
(explaining they addressed issue not essential to appeal’s disposition to provide the
trial court with guidance); Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626
(Tex. 1996) (noting that an appellate court could consider other grounds the movant
preserved for review and the trial court did not rule on “in the interest of judicial
economy”).
17
491, 492 (Tex. 1995). A trial court abuses its discretion when it acts unreasonably
or arbitrarily or without reference to guiding rules and principles. In re Colonial
Pipeline Co., 968 S.W.2d 938, 941 (Tex. 1998).
Rule 193.3 provides that a party claiming privilege may withhold privileged
material but “must state” in its response or in a separate document that: “(1)
information or material responsive to the request has been withheld, (2) the request
to which the information or material relates, and (3) the privilege or privileges
asserted.” Tex. R. Civ. P. 193.3(a) (emphasis added). After receiving a response
indicating material has been withheld from production, the party seeking discovery
may serve a written request that the withholding party identify the information and
material withheld. Id. 193.3(b). Within fifteen days of receiving a request, the
withholding party “must serve a response that: (1) describes the information or
materials withheld that, without revealing the privileged information itself or
otherwise waiving the privilege, enables other parties to assess the applicability of
the privilege, and (2) asserts a specific privilege for each item or group of items
withheld.” Id.
There is no presumption that documents are privileged. In re E.I. DuPont de
Nemours and Co., 136 S.W.3d 218, 223, 225 (Tex. 2004). The party asserting a
privilege has the burden to produce evidence concerning the privilege’s
applicability. Peeples v. Honorable Fourth Supreme Judicial Dist., 701 S.W.2d 635,
18
637 (Tex. 1985). Simply listing a specific privilege in a response or a privilege log
does not preserve the privilege. In re Monsanto Co., 998 S.W.2d 917, 928 (Tex.
App.—Waco 1999, orig. proceeding); see also In re Park Cities Bank, 409 S.W.3d
859, 868 (Tex. App.—Tyler 2013, orig. proceeding). “[I]n addition to the privilege
log, the party resisting discovery must establish a prima facie case for the privilege
by testimony or affidavit.” In re Park Cities Bank, 409 S.W.3d at 868 (citing In re
Living Ctrs. of Tex., Inc., 175 S.W.3d 253, 261 (Tex. 2005)); see also In re E.I.
DuPont de Nemours and Co., 136 S.W.3d at 223.
Unlike Elizondo, where the plaintiffs’ attorneys did not ask the trial court to
defer ruling on a summary judgment motion until it could obtain from the third
parties (or the attorneys) evidence of other settlements, Marteny did so. In Elizondo,
the Texas Supreme Court disagreed with the appellate court’s dissent, because
none of [the trial court] discovery skirmishes indicate that the Elizondos
took the position in the trial court that (1) discovery of the dollar amount
of other settlements in similar cases was needed so their expert could
make a valid, non-conclusory determination of the adequacy of the
Elizondo settlement or better describe his analysis, and (2)
consideration of the summary judgment motions on damages should be
continued until such discovery was provided.
Elizondo, 415 S.W.3d at 269.
The record here establishes that Marteny attempted to obtain written
discovery regarding settlement information of other BCA clients similarly situated
to him, who sustained economic losses as a result of the oil spill and subsequent
19
moratoria. Marteny argued these were relevant and necessary to have his experts
assess damages pursuant to Elizondo. Marteny points to deficiencies in BCA’s
prophylactic objections, assertions of privilege, and privilege log. BCA’s privilege
log was a single page, and while it provided broad classes of documents, it did not
provide descriptions of the specific documents withheld by identifying the authors,
the dates, or the recipients. It also did not provide date ranges for the documents
withheld and failed to identify which requests the withheld materials were
responsive to.
In BCA’s response to the motion to compel, it relied on a purported
confidentiality order issued by the MDL pertaining to the settlements; however, the
document produced in camera for the trial court’s review pertained to a single
individual, not an entire class of settling plaintiffs. This does not establish that the
information requested for BCA’s similarly situated clients in this mass tort litigation
was covered by a similar confidentiality provision. This document, in the absence of
affidavit or other testimony, failed to establish a prima facie case for the applicability
of a privilege that would preclude the production of information pertaining to other
settling plaintiffs. Moreover, a settlement agreement’s inclusion of a confidentiality
provision does not render the agreement or its contents undiscoverable as a matter
of law. In re DCP Midstream, L.P., No. 13-14-00502-CV, 2014 WL 5019947, at *7
(Tex. App.—Corpus Christi Oct. 7, 2014, orig. proceeding) (citations omitted).
20
A trial court abuses its discretion by not requiring the production of an
adequate privilege log so that claims of privilege can be properly assessed. See In
Re Lumbermen’s Underwriting Alliance, 421 S.W.3d 289, 295 (Tex. App.—
Texarkana 2014, orig. proceeding). Additionally, “[a] trial court is required to
consider and rule upon a motion within a reasonable time.” Safety-Kleen Corp v.
Garcia, 945 S.W.2d 268, 269 (Tex. App.—San Antonio 1997, no pet.). Considering
the deficient privilege log and BCA’s failure to make a prima facie case for the
applicability of the asserted privileges, we determine the trial court abused its
discretion by refusing to rule on Marteny’s motion to compel. 12 We sustain
Marteny’s second issue and remand to the trial court to order the production of an
adequate privilege log and development of affidavit or other testimony, so that the
applicability of the asserted privileges can be properly assessed by the trial court.
See In Re Lumbermen’s Underwriting Alliance, 421 S.W.3d at 295.
B. Motion to Continue Summary Judgment Hearing
Based on our resolution of Marteny’s other issues, we do not address his last
issue as it would afford him no greater relief on appeal. See Tex. R. App. P. 47.1.
12
The record reveals that after the trial court granted the BCA’s summary
judgment, Marteny filed a motion to reconsider. In that motion, Marteny pointed out
that the trial court refused to rule on the motion to compel before ruling on the
summary judgment and requested an explicit ruling on the motion to compel and
production of an adequate privilege log. Therefore, Marteny preserved his complaint
regarding the trial court’s refusal to rule on his motion to compel. See Tex. R. App.
P. 33.1(a).
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IV. Conclusion
Marteny did not challenge the trial court’s dismissal of his breach of fiduciary
duty and TDTPA claims, we therefore, affirm the trial court’s judgment dismissing
those claims. We hold that BCA failed to carry its burden as a traditional summary
judgment movant to conclusively negate the challenged elements of duty and
damages in this legal malpractice case. Because genuine issues of material fact
remain, the trial court erred in granting summary judgment. We reverse and remand
Marteny’s legal malpractice claim. We further conclude that BCA’s privilege log
was inadequate, and it failed to make a prima facie case for the applicability of the
asserted privileges. Accordingly, the trial court abused its discretion by refusing to
rule on Marteny’s motion to compel and ordering the production of an adequate
privilege log. We remand that issue to the trial court for further proceedings
consistent with this opinion.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
_____________________________
CHARLES KREGER
Justice
Submitted on March 12, 2020
Opinion Delivered September 24, 2020
Before McKeithen, C.J., Kreger and Johnson, JJ.
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