Roy Tavarez v. Dan Alfaro, Individually, Dan Alfaro & Associates, Michael Hogue, Individually, Patterson & Associates, and Juan Baldwin, Individually

NUMBER 13-98-564-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI ____________________________________________________________________ ROY TAVAREZ, Appellant, v. DAN ALFARO, INDIVIDUALLY, DAN ALFARO & ASSOCIATES, MICHAEL HOGUE, INDIVIDUALLY, PATTERSON & ASSOCIATES, AND JUAN BALDWIN, INDIVIDUALLY, Appellees. ____________________________________________________________________ On appeal from the 28th District Court of Nueces County, Texas. ____________________________________________________________________ O P I N I O N Before Chief Justice Seerden and Justices Hinojosa and Yañez Opinion by Justice Hinojosa Appellant, Roy Tavarez, sued appellees Dan Alfaro, Dan Alfaro and Associates, Michael Hogue, Patterson and Associates, and Juan Baldwin for legal malpractice.(1) Appellees filed motions for summary judgment, and the trial court granted the motions. By three issues, appellant contends the trial court erred in granting summary judgment because: (1) the appellees did not conclusively negate at least one element of each cause of action asserted by appellant; (2) appellant presented genuine issues of fact as to each element of each cause of action asserted; and (3) any lack of notice under the Deceptive Trade Practices -- Consumer Protection Act (DTPA) was waived. We affirm. 1. Background Appellant retained the law firm of Alfaro and Associates because of health problems he believed had resulted from his exposure to "Varsol," a chemical used at his former place of employment. Appellant claimed that a "runner" from Alfaro and Associates came to his home, solicited his case, and provided him with a contract in which Alfaro & Associates agreed to assist him on "all causes of action and matters arising out of and resulting from ." Appellant produced a copy of this document as summary judgment evidence. The blank space is not filled-in, and the document is not signed by Dan Alfaro or anyone from Alfaro & Associates. Appellant further claimed that Alfaro & Associates agreed to "work together" with him, and said they would "do everything we can to help." Alfaro and Associates denied appellant's rendition of facts concerning the contract, but admitted they had been hired by appellant to pursue a third-party products liability claim against the manufacturer(s) of Varsol chemicals. Alfaro and Associates claimed they made it clear to appellant that he would have to hire other counsel for any workers' compensation claim he might have. Appellant hired Alfaro and Associates on March 13, 1998. On March 25, 1998, Alfaro and Associates referred appellant's case to Patterson and Associates. Patterson and Associates admits to being in privity with appellant for the sole purpose of pursuing a third-party products liability claim against the manufacturer(s) of Varsol chemicals. On May 17, 1993, appellant visited Dr. A. Lee Guinn, Jr. Dr. Guinn determined that appellant suffered from obstructive lung disease with chronic bronchitis, headache syndrome, fatigue syndrome, intermittent pyrosis and weight loss of undetermined causation, and at the time, was not able to rule out a possible brain injury. It was Dr. Guinn's opinion that, while further testing was necessary to confirm these diagnoses, Tavarez's condition probably resulted from exposure to Varsol, a solvent, at work. On May 28, 1993, both law firms received a report from Dr. Guinn regarding appellant's condition. On August 16, 1993, appellant filed his own Employee's Notice of Injury or Occupational Disease and Claim for Compensation with the Texas Workers' Compensation Commission (TWCC). Appellant's application indicates he knew that his disease was work-related on May 17, 1993. Patterson and Associates claim they sent a letter to appellant on November 2, 1993, withdrawing from his case. Appellant denies receiving this letter. On November 11, 1993, appellant retained H. Thomas Hirsch to handle his workers' compensation claim. On November 19, 1993, Hirsch represented appellant at a TWCC benefit review conference. The TWCC review officer declined appellant's application, citing a failure to produce medical records or records from his place of employment which indicated that his condition made him unable to work. On December 8, 1993, Hirsch requested copies of appellant's file from Patterson and Associates. On January 24, 1994, Patterson and Associates belatedly sent appellant's file to Hirsch, and four days later sent Dr. Guinn's most recent medical report concerning appellant's health. On March 2, 1994, Hirsch represented appellant at a benefit contested case hearing before a TWCC tribunal. Appellant lost. The tribunal made the following findings of fact and conclusions of law: Findings of Fact: (1) Tavarez was aware that his headaches and breathing problems might be employment related no later than May 28, 1993; (2) Tavarez did not notify his employer of an alleged occupational disease until October 28, 1993; (3) Tavarez failed to prove by a preponderance of the evidence that a causal relationship existed between his medical problems and his employment; and (4) Appellant had been able to obtain and retain employment at wages equivalent to his pre-injury wage since June 4, 1993, the date of his termination with his employer. Conclusions of Law: (1) Tavarez did not timely file a notice of injury(2) with his employer or have good cause for failing to do so; (2) Tavarez did not suffer an injury in the course and scope of his employment in the form of an occupational disease; and (3) Tavarez has not suffered any disability due to an alleged occupational injury. Based on these findings of fact and conclusions of law, the TWCC issued the following decision and order: [Tavarez] did not suffer an injury in the course and scope of his employment on May 17, 1993 in the form of an occupational disease due to the inhalation of toxic fumes. If [Tavarez] had suffered an injury, he still failed to file a timely report with his employer. His carrier is thereby relieved of liability for benefits on the claim. [Tavarez] has not suffered disability due to alleged injury of May 17, 1993, and is not entitled to temporary income benefits. Carrier is ordered not to pay benefits on the claim. This decision and order was affirmed by a TWCC appeals panel. Appellant did not appeal the TWCC ruling. He filed suit against appellees under claims of common law negligence, violations of the DTPA, violations of the Texas Disciplinary Rules of Professional Conduct, and breach of contract. 2. Summary Judgment In his first and second issues, appellant contends the trial court erred in granting appellees' motions for summary judgment because: (1) the appellees did not conclusively negate at least one element of each cause of action asserted by appellant; and (2) appellant presented genuine issues of fact as to each element of each cause of action asserted. The proper inquiry on appeal is whether the defendant, in seeking summary judgment, fulfilled his initial burden: (1) to establish as a matter of law that there remained no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action, or (2) to establish his affirmative defense to the plaintiff's cause of action as a matter of law. Casso v. Brand, 776 S.W.2d 551, 556 (Tex. 1989); Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex. 1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true. Nixon, 690 S.W.2d at 549. Every reasonable inference must be indulged in favor of the non-movant and any doubt resolved in his favor. Id. Once the movant establishes an affirmative defense which would bar the suit as a matter of law, the non-movant must produce summary judgment proof raising a fact issue in avoidance of the affirmative defense. Gonzalez v. City of Harlingen, 814 S.W.2d 109, 112 (Tex. App.--Corpus Christi 1991, writ denied). A final judgment arising out of an administrative proceeding may conclusively establish the absence of causation in fact in the context of attorney malpractice cases. See MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31 (Tex. App.--Houston [14th Dist.] 1987, no writ.); Tijerina v. Wennermark, 700 S.W.2d 342, 344 (Tex. App.--San Antonio 1985, no writ); Gibson v. Johnson, 414 S.W.2d 235, 238-40 (Tex. Civ. App.--Tyler 1967, writ ref'd n.r.e.). The judgment of the TWCC is therefore relevant evidence that may support a summary judgment if not controverted. See Gibson, 414 S.W.2d at 238-40. Appellant contends appellees committed malpractice because they failed to make clear that the scope of their employment did not include his workers' compensation claim. Appellant asserts that Dan Alfaro had the responsibility of representing him, but Alfaro referred his case to Patterson and Associates without his permission. Appellant contends that both law firms had the responsibility of at least notifying him of his need to file a notice of his injury with his employer. In their motions for summary judgment, both parties argued that they were not engaged for and did not accept employment to represent appellant in any potential workers' compensation claim and had no duty to advise appellant about or assist appellant in his workers' compensation claim. They contended they committed no act of negligence, and that no act or omission on their part constituted a proximate cause of appellant's damages. Finally, they argued they did not receive the proper notice required before they could be sued under the DTPA.(3) The TWCC ruled against appellant. The findings of the panel directly relate to the dispute and are relevant. Tex. R. Evid. 401. This case is not an appeal of an administrative agency decision. When appellant did not appeal the TWCC appeals' panel ruling, it became final. Therefore, the opinion of the TWCC was properly admitted before the trial court and was not hearsay. See Tex. R. Evid. 803(8)(C); Mary Lee Found. v. Texas Empl. Comm'n, 817 S.W.2d 725, 728 (Tex. App.--Texarkana 1991, writ denied) (fact findings of the Texas Employment Commission are admissible under 803(8)(C), but not relevant in a trial de novo in direct appeal of an order from an administrative agency.). The TWCC rejected the medical evidence appellant presented to it, Dr. Guinn's competency, and the scientific basis of his opinion. Reasons found in the TWCC opinion include: (1) there was no evidence that toxic fume inhalation was the cause of appellant's medical problems; (2) there was no evidence that Dr. Guinn was familiar with Varsol or knew about the chemical substances it contains; and (3) there was no evidence from Dr. Guinn of what effects might result from a person's exposure to Varsol. Consequently, appellees' proof, in the form of the TWCC findings, established that appellant had not suffered a disability or a compensable injury for which he might recover damages. The burden, therefore, shifted to appellant to raise an issue of fact. Schlager v. Clements, 939 S.W.2d 183, 186-87 (Tex. App.--Houston [14th Dist.] 1996, writ denied) (in attorney malpractice actions, once causation in fact is conclusively negated, the burden shifts to the plaintiff to raise a material fact issue). Appellant offered an affidavit from Dr. Guinn to rebut the findings of the TWCC tribunal. Appellees object on appeal that Dr. Guinn's affidavit is conclusory, but did not do so at the trial level. Generally, objections to defects in the form of affidavits must be raised in the trial court. Tex. R. Civ. P. 166a(f). However, objections to defects in the substance of affidavits may be raised for the first time on appeal. Progressive County Mut. Ins. Co. v. Carway, 951 S.W.2d 108, 117 (Tex. App.--Houston [14th Dist.] 1997, no writ). An objection to an affidavit on the ground that it states only a legal conclusion is one that relates to a defect of substance. Bell v. Moores, 832 S.W.2d 749, 756 (Tex. App.--Houston [14th Dist.] 1992, writ denied). The relevant standard for an expert's affidavit opposing a motion for summary judgment is whether it presents some probative evidence of the facts at issue. Trapnell v. John Hogan Interests, Inc., 809 S.W.2d 606, 611 (Tex. App.--Corpus Christi 1991, writ denied). An affidavit that merely contains an expert's conclusory statements is insufficient to support or defeat summary judgment. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). This is true because such statements are not credible or susceptible to being readily controverted. See id. An expert's affidavit supporting a motion for summary judgment must be clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and readily controvertible. See Tex. R. Civ. P. 166a(c). After reviewing Dr. Guinn's affidavit, we conclude it contains no more than conclusory statements that repeat the evidence rejected by the TWCC tribunal. See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (affidavits containing no more than conclusory statements are not enough to raise fact issues.). To establish an occupational disease, there must be probative evidence of a causal connection between the claimant's work and the disease; the disease must be indigenous to the work, or must be present in an increased degree in that work as compared with employment generally. See Schaefer v. Texas Emp. Ins. Ass'n, 612 S.W.2d 199, 204-05 (Tex. 1980). Dr. Guinn's affidavit fails to close the scientific gaps in the evidence identified by the TWCC tribunal. It does not mention what levels of any substance appellant was exposed to, nor does it mention in what amounts and conditions Varsol can be determined to be deadly. See, e.g., Austin v. Kerr-McGee Ref. Corp., 2000 Tex. App. LEXIS 4317 (Tex. App.--Texarkana June 29, 2000) ("It is fundamental that a plaintiff [in a case involving exposure to toxic materials] must prove the levels of exposure that are dangerous to humans generally, and must prove the actual level of exposure of the injured party to the defendant's toxic substances."). Appellant did not plead that appellees' negligence caused his failure to establish that he had suffered a disability or had a compensable injury. Hence, appellant would have lost his malpractice case even if everything he sought to prove is true. See Jackson v. Urban, Coolidge, Pennington and Scott, 516 S.W.2d 948, 949 (Tex. Civ. App.--Houston [1st Dist.] 1974, writ ref. n.r.e.). ("Where a client sues his attorney on the ground that the latter caused him to lose his cause of action, the burden of proof is on the client to prove that his suit would have been successful, but for the negligence of his attorney."). We conclude the summary judgment evidence establishes as a matter of law that none of the negligent acts or omissions alleged by appellant proximately caused the injuries that he claims. We overrule appellant's first and second issues. In his third issue, appellant contends the trial court erred in granting appellees' motions for summary judgment because any lack of notice under the DTPA was waived. Appellant argues that the remedy for lack of notice is merely abatement. Even if this argument is true, it does not change the problems appellant had with his pleadings or the TWCC findings used against him. We overrule appellant's third issue. We hold the trial court did not err in granting appellees' motions for summary judgment. We affirm the trial court's order granting appellees' motions for summary judgment. FEDERICO G. HINOJOSA Justice Do not publish. Tex. R. App. P. 47.3. Opinion delivered and filed this the 24th day of August, 2000. 1. The elements of legal malpractice are: (1) a duty owed to the plaintiff; (2) breach of that duty; (3) that the breach proximately caused the plaintiff's injury; and (4) damages. Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989). 2. See Tex. Lab. Code § 409.001(a)(1),(2) (An employee or a person acting on the employee's behalf shall notify the employer of the employee of an injury not later than the date on which the injury occurs or, if the injury is an occupational disease, the employee knew or should have known that the injury may be related to the employment.). 3. Thirty days before filing suit, a plaintiff must give written notice to the entity he wishes to bring a claim against, if the claim is over $1000. This notice must include the consumer's specific complaint, and the amount of damages and expenses, including attorney's fees, reasonably incurred in pursuing the claim. See Tex. Bus. & Com. Code Ann. § 17.505.