Lopez, Richard M. v. Yates, III, Sam M.

Affirmed and Opinion filed November 21, 2002 Affirmed and Opinion filed November 21, 2002. In The Fourteenth Court of Appeals _______________ NO. 14-01-00649-CV _______________ RICHARD M. LOPEZ, Appellant V. SAM M. YATES, III, Appellee _____________________________________________________________ On Appeal from the County Civil Court at Law No. 2 Harris County, Texas Trial Court Cause No. 728,103 _____________________________________________________________ O P I N I O N Appellant Richard M. Lopez appeals from a summary judgment granted in favor of appellee Sam M. Yates, an attorney who had represented Lopez. In six issues, Lopez contends (1) the summary judgment was not an appealable order; (2) the trial court erred in granting summary judgment on causes of action not addressed in the motion for summary judgment; (3) Yates failed to conclusively establish his affirmative defense of limitations; (4) genuine issues of material fact preclude traditional summary judgment; (5) Lopez’s evidence precludes no evidence summary judgment; and (6) summary judgment is precluded because the element of causation is usually a question of fact. We affirm. I. Background Lopez paid Yates a $750 retainer fee. Lopez referred five litigation matters to Yates. Subsequently, Lopez discovered that (1) two of his cases were barred by the statute of limitations; (2) Yates failed to account for all the work performed; (3) Yates failed to communicate or forward copies of pleadings; and (4) Yates failed to provide monthly invoices detailing tasks performed. Lopez sued Yates for breach of contract, violation of the Deceptive Trade Practices Act (DTPA), and legal malpractice. One of Lopez’s chief complaints was that Yates allowed the statute of limitations to run on two of the five cases. After a visiting judge denied the first motion for summary judgment, Yates filed his second motion for summary judgment and motion to sever, which the presiding trial judge granted. Lopez then untimely filed his response to Yates’s summary judgment motion and failed to attach counter affidavits or other proof. Subsequently, the trial court signed a second order granting summary judgment, disposing of all issues without granting the motion for severance.[1] Thereafter, the trial court granted Lopez’s motion for leave to file a response to Yates’s motion for summary judgment.[2] Lopez then filed his second response to Yates’s motion for summary judgment and attached, among other things, an affidavit from an attorney who opined that Yates breached the standard of care for attorneys in Houston and that such breach directly and proximately caused Lopez’s damages. Lopez brings six points of error, arguing that this appeal is interlocutory, that we do not have jurisdiction to decide it, and that the trial court erred in granting summary judgment for Yates. II. Interlocutory Summary Judgment? In his first issue, Lopez contends that the second order granting Yates’s motion for summary judgment is not final for two reasons. First, Lopez argues that the second order is interlocutory because the trial court’s decision to grant leave to file an amended response to Yates’s summary judgment motion “is tantamount to a rehearing” on the summary judgment issued nearly a month earlier.[3] Texas Rule of Civil Procedure 166a(c) provides, in part: “[e]xcept on leave of court, the adverse party not later than seven days prior to the day of the hearing may file and serve opposing affidavits or other written response.” Tex. R. Civ. P. 166a(c). Under this rule, the trial court clearly has discretion to allow late filing of opposing proof any time before the signing of the summary judgment. Travelers Constr., Inc. v. Warren Bros. Co., 613 S.W.2d 782, 785 (Tex. Civ. App.—Houston [14th Dist.] 1981, no writ) (holding it is within the trial court’s discretion to allow the late filing of opposing proof or to consider any late-filed answer at any time before the signing of the summary judgment). Conversely, in the instant case, the trial court granted Lopez’s motion for leave to file an amended response after the trial court had signed the summary judgment. At this point, the trial court no longer had discretion to allow late filing of opposing proof. See Nava, 700 S.W.2d at 670. Accordingly, we find the trial court’s decision to grant leave to file an amended response does not render the summary judgment interlocutory. Second, Lopez argues that because Yates did not intend his motion for summary judgment to result in a final summary judgment on all Lopez’s claims—insofar as the motion only addressed the legal malpractice claims and included a motion to sever—the second summary judgment order is interlocutory. Lopez further argues this interlocutory summary judgment was not made final for purposes of appeal because the trial court did not grant a severance. Finally, Lopez argues that we must decide the finality of the summary judgment by determining the court’s intention as indicated by the language[4] in the decree and with reference to the entire record, perhaps informed by the parties’ conduct. An appeal may be taken only from a final judgment. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). A judgment is final if it disposes of all pending parties and claims in the record. Guajardo v. Conwell, 46 S.W.3d 862, 863–64 (Tex. 2001) (citing Lehmann, 39 S.W.3d at 195). An order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it contains language that clearly, unequivocally, and finally disposes of all claims and all parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205 (Tex. 2001). An order that does not dispose of all issues and parties is interlocutory and not appealable, absent a severance. Mafrige v. Ross, 866 S.W.2d 590, 591 (Tex. 1993), overruled on other grounds, Lehmann, 39 S.W.3d at 204. Here, the trial court granted summary judgment as to all claims between the only existing parties. Because there are no causes of action not disposed of by the summary judgment, we find it was not interlocutory and, therefore, severance was not necessary for the order to become final and appealable. Accordingly, we conclude that this Court has jurisdiction and may address the merits of this appeal. We overrule Lopez’s first issue. III. Summary Judgment on Malpractice Claim In his fifth and sixth issues, Lopez challenges the no evidence summary judgment. Yates filed a motion for summary judgment based on both traditional and no evidence grounds. Colson v. Grohman, 24 S.W.3d 414, 420 (Tex. App.—Houston [1st Dist.] 2000, pet. denied) (discussing hybrid motion). In the no evidence portion of the motion, Lopez’s primary contention was that Yates failed to present expert testimony showing Lopez’s actions caused Yates’s injury. The trial court granted Yates’s motion and entered a written order that does not express specific grounds for the summary judgment. A party appealing from a summary judgment that does not contain a recitation of the grounds on which it is granted assumes the burden of pointing the appellate court to competent summary judgment evidence in the record establishing that none of the independent grounds the motions asserted are sufficient to support the judgment. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). Consequently, we must affirm if any of the motion’s grounds are meritorious. A legal malpractice action in Texas is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989). The elements of a legal malpractice claim are (1) a duty; (2) a breach of duty; (3) the breach proximately caused the injury; and (4) resulting damages. Id. at 665. When a legal malpractice claim arises from prior litigation, the plaintiff has the burden to prove that but for the attorney’s negligence, he or she would be entitled to judgment, and to show what amount would have been recovered in the judgment. MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31 (Tex. App.—Houston [14th Dist.] 1987, no writ). In Texas, a lawyer is held to the standard of care that would be exercised by a reasonably prudent attorney. Campbell v. Doherty, 899 S.W.2d 395, 397 (Tex. App.—Houston [14th Dist.] 1995, writ denied). Therefore, expert testimony of an attorney is necessary to establish this standard of skill and care ordinarily exercised by an attorney.[5] Hall v. Rutherford, 911 S.W.2d 422, 424. Moreover, to prove proximate causation in a legal malpractice case, the plaintiff must show that, had the alleged negligence not occurred, the underlying action would have been successful. Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex. 1989). A no-evidence motion for summary judgment must specify the essential elements of a claim to which there is no-evidence, shifting the burden to the nonmovant to come forward with some evidence of the essential element or elements challenged in the motion. Tex. R. Civ. P. 166a(I); Lampasas v. Spring Ctr. Inc., 988 S.W.2d 428, 436 (Tex. App.—Houston [14th Dist.] 1999, no pet.). If the nonmovant does not satisfy its burden of producing some evidence on the challenged element or elements, the trial court must grant the motion covering all claims or defenses composed of the challenged element or elements. Tex. R. Civ. P. 166a(I); Lampasas, 988 S.W.2d at 436. Failure to respond to a no-evidence motion is fatal. Michael v. Dyke, 41 S.W.3d 746, 751 (Tex. App.—Corpus Christi 2001, no pet.); Tex. R. Civ. P. 166a(I). In a no-evidence motion for summary judgment, the movant “must state the elements as to which there is no evidence.” Tex. R. Civ. P. 166a(I). We refer to the comment under rule 166a(I): “[t]he motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (I) does not authorize conclusory motions or general no-evidence challenges to an opponent’s case.” Tex. R. Civ. P. 166a(I) cmt. Yates’s motion for summary judgment specifically challenges the lack of evidence as to the elements of causation, breach of the standard of care, and damages. In his summary judgment motion, Yates alleged that Lopez failed to provide expert testimony related to breach of the standard of care or causation despite the requirement of expert testimony as to these elements.[6] Lopez’s response to the summary judgment motion, which included an affidavit from an expert witness, was not before the trial court when it rendered summary judgment. Because the affidavit of Lopez’s expert witness was not before the court when the judgment was rendered, it cannot be considered on appeal. See Knapp v. Eppright, 783 S.W.2d 293, 295 (Tex. App.—Houston [14th Dist.] 1989, no writ). Effectively, then, Lopez filed no response. Without expert testimony, Lopez had no evidence to support his cause of action for legal malpractice. Accordingly, we find that the trial court properly granted summary judgment.[7] We overrule Lopez’s fifth and sixth issues. In his second issue, Lopez claims the trial court erred in granting summary judgment as to all claims when Yates’s motion for summary judgment and motion for severance addressed only the legal malpractice claim. A review of the record reveals that Lopez’s breach of contract and DTPA causes of action are based on the same facts and circumstances that form the basis of Lopez’s legal malpractice cause of action. In his petition, Lopez alleged Yates committed malpractice in allowing the statute of limitations to run on two lawsuits. In support of his cause of action under the DTPA, Lopez contends Yates represented that he was competent to represent him in those matters, but that representation was false, misleading, and deceptive in that Yates was not competent. Lopez further alleged that Yates breached his contract of representation. Lopez did not plead independent facts or circumstances to support the causes of action for breach of contract or violation of the DTPA. Because Lopez produced no evidence of causation with regard to the legal malpractice action, and the same facts and circumstances form the basis of his breach of contract and DTPA causes of action, summary judgment was also proper on those claims. See Ross v. Arkwright Mut. Ins. Co., 892 S.W.2d 119, 133–34 (Tex. App.—Houston [14th Dist.] 1994, no writ). We overrule appellant’s second issue. Accordingly, the judgment of the trial court is affirmed. /s/ Charles W. Seymore Justice Judgment rendered and Opinion filed November 21, 2002. Panel consists of Justices Yates, Seymore, and Guzman.. Do Not Publish — Tex. R. App. P. 47.3(b). [1] Although Lopez contends the trial court granted Yates’s motion to sever, we do not read the order as doing so. The title of the order is “Order Granting Defendant Sam M. Yates, III’s First Amended Motion for Summary Judgment and Motion for Severance.” However, it is the substance of a judgment, and not its caption, that controls. Parking Co. of Am. v. Wilson, 57 S.W.3d 1, 3 (Tex. App.—Dallas 2000), rev’d on other grounds, 58 S.W.3d 742 (Tex. 2001). The substance of this order shows that the trial court granted only a summary judgment, not a severance because the order expresses that the court considered the motion for summary judgment and motion for severance but that it was granting only the motion for summary judgment: “On this day, came on for re-hearing and consideration Defendant SAM M. YATES, III’s, First Amended Motion for Summary Judgment and Motion for Severance. After hearing argument of counsel and consideration of same the Court finds as follows: IT IS ORDERED that Defendant SAM M. YATES, III’s First Amended Motion for Summary Judgment is in all things GRANTED disposing of all issues before this Court.” [2] Lopez then filed a motion for new trial and motion to reconsider. The trial court denied Lopez’s motion for new trial but granted leave to file another motion for new trial. [3] Lopez further contends the trial court granted his motion for rehearing and set aside Yates’s summary judgment. He refers to the docket sheet as support for this assertion, acknowledging that the order setting aside the summary judgment is not included in the record. However, it is not included in the record, therefore, we may not consider it. See, e.g., First Nat’l Bank v. Birnbaum, 826 S.W.2d 189, 190–91 (Tex. App.—Austin 1992, no writ) (op. on reh’g) (holding that a docket sheet lacks the formality of an order or judgment, is considered inherently unreliable, and generally forms no part of the record that an appellate court will consider). Moreover, the trial court changed the language in the order from granting both the summary judgment and the severance to granting only the summary judgment. Accordingly, we find the second judgment is final and the first was rendered void by the trial court’s entry of the second. See Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 39–40 (Tex. App.—Houston [14th Dist.] 2000, pet. denied) (construing the trial court’s subsequent order identifying different grounds for summary judgment a change sufficient to conclude that the trial court presumptively vacated the previous order, making the subsequent order the only final judgment). [4] Lopez refers us to Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001), and argues that neither the inclusion of “mother hubbard” language or use of the word “final” in the title conclusively establishes that a judgment rendered without trial is final. See id. at 203–05. [5] Some courts acknowledge an exception to this general rule requiring expert testimony to establish the standard of care in a legal malpractice action when the attorney’s lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge, such as when an attorney allows the statute of limitations to run on a client’s claim. See, e.g., Mazuca and Associates v. Schumann, 82 S.W.3d 90, 97 (Tex. App.—San Antonio 2002, pet. filed). However, we need not decide this issue because Lopez failed to file an affidavit demonstrating that he had a “case within a case” that would have entitled him to damages. [6] In his motion, Yates states that Lopez had provided no expert testimony regarding negligence or alleged damages “with the exception of opinion testimony offered by Plaintiff’s trial counsel . . . .” Elsewhere in his motion, Yates instead states that Lopez designated his own trial counsel as his expert offering opinion testimony and that (1) his trial counsel is disqualified from offering opinion testimony while serving as Lopez’s attorney of record; and that (2) Lopez presented no expert witness or testimony as to Yates’s alleged legal malpractice or related theories of causation. Viewing the record, we find that Lopez failed to submit proof via expert testimony until he attached affidavits to his untimely response to Yates’s motion for summary judgment. Thus, as stated above, we may not consider it on appeal. [7] Because the summary judgment was properly granted on no evidence grounds, we need not consider Lopez’s third and fourth issues, which address whether summary judgment was proper under traditional summary judgment grounds. See Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989) (when an order granting summary judgment does not specify the grounds on which it is granted, judgment will be affirmed on appeal if any of the grounds raised in the motion are meritorious).