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Affirmed and Opinion filed July 3,=20 2008.

 

In The

 

Fourteenth=20 Court of Appeals

_______________

 

NO. 14-07-00619-CV

_______________

 

SCOTT DUERR AND KIMBERLY DUERR,=20 Appellants

 

V.

 

RON BROWN, AARON = DICKEY,=20 BROWN & CROUPPEN, P.C., GEORGE FLEMING, ANDRES PEREIRA, AND = FLEMING=20 & ASSOCIATES, L.L.P.

Appellees

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On Appeal from the 334th District=20 Court

Harris County, Texas

Trial Court Cause No. = 2006-10199

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O P I N I=20 O N

Scott Duerr appeals = from orders=20 granting summary judgment on his claims for breach of fiduciary = duty=20 against Ron Brown, Aaron Dickey, Brown & Crouppen, P.C., = (collectively=20 ABrown@), and George = Fleming, Andres=20 Pereira, and Fleming & Associates, L.L.P., (collectively = AFleming@).  Duerr also = contends=20 the trial court abused its discretion in striking = Duerr=3Ds legal malpractice = expert and=20 denying Duerr=3Ds request for a = continuance to=20 conduct additional discovery before deciding the case on summary=20 judgment.  We affirm.

 

Background

Duerr received two = Sulzer hip=20 replacement implants in 2000.  Duerr underwent additional = surgeries=20 after the implants failed.  Duerr hired Brown to represent = him=20 against Sulzer in connection with the failed hip implants.  = Brown=20 associated with Fleming to handle the case because Fleming already = was=20 engaged in implant litigation against Sulzer.

Duerr had the option = to pursue=20 his claim individually or as part of a class.  In April 2002, = Duerr=20 chose to pursue his claim individually; after Sulzer threatened=20 bankruptcy, however, he changed his mind based upon consultation = with=20 Brown and Fleming.  Duerr signed a letter revoking his = initial=20 opt-out and agreed to rejoin the class settlement.  Duerr = received=20 $1.6 million as payment for revoking his opt-out and becoming a = part of=20 the settlement class; of this amount, $960,000 was paid directly = to him=20 after attorney=3Ds fees were = deducted. =20

Duerr contends = Fleming and=20 Brown promised he would receive additional compensation from his=20 participation in the class settlement as an inducement to re-join = the=20 class.  When combined with his existing recovery of $960,000, = Duerr=20 says he was promised a total payment of $1.68 million after=20 attorney=3Ds fees.  =

Duerr was eligible = for=20 additional settlement benefits pursuant to the Sulzer hip implant = class=20 settlement if he could show his injury fell within the purview of = the=20 AAffected Product = Revision=20 Surgery@ (APRS) fund or the=20 AExtraordinary Injury=20 Fund@ (EIF).  APRS = provided=20 benefits to implant recipients who developed major complications = from=20 removal or replacement of the defective hip implants.  EIF = benefits=20 were available to implant recipients who demonstrated permanent = injury as=20 a result of the defective hip implants.  These benefits were = computed=20 under a complex system of matrices, ranging from Matrix I to = Matrix V,=20 with each having specific qualification = criteria.

Duerr contends that = Fleming and=20 Brown incorrectly filed Duerr=3Ds requests for = additional=20 benefits under the Matrix IV and V benefit schemes, and that his = requests=20 were denied as a result.  Duerr contends Fleming and Brown = did not=20 properly appeal the denial of additional benefits, and that he = received no=20 benefits under Matrix IV and V as a result.  Duerr also = contends he=20 had a valid claim under the EIF Matrix II settlement scheme; that = Fleming=20 and Brown failed to pursue his claim, leaving him to file his own = Matrix=20 II claim; and that he received only $36,000 in additional benefits = as a=20 result.  Duerr contends he was damaged because he did not = receive all=20 of the additional settlement benefits after attorney=3Ds fees that he was=20 promised. 

Duerr received = another $320,000=20 after attorney=3Ds fees from his APRS = claims,=20 leaving him with a total recovery of nearly $1.3 million.  = This=20 amount still is less than the $1.68 million recovery net of=20 attorney=3Ds fees that Duerr = says he was=20 promised.

On February 16, 2006, = Duerr and=20 his wife sued Fleming and Brown asserting claims for legal = malpractice,=20 breach of contract, breach of fiduciary duty, and Deceptive Trade=20 Practices Act violations.  On April 21, 2006, the trial court = issued=20 a docket control order under which Duerr=3Ds expert witnesses = would be=20 designated by December 22, 2006; discovery would end on February = 22, 2007;=20 and trial would begin on April 23, 2007. 

On February 16, 2007, = Fleming=20 filed a combined traditional and no-evidence motion for partial = summary=20 judgment.  Fleming challenged Duerr=3Ds claims for breach = of=20 contract, breach of fiduciary duty, and DTPA violations.  = Fleming=20 contended that these claims were an impermissible attempt to = fracture a=20 single legal malpractice claim into multiple causes of action, and = that=20 Duerr could proffer no evidence to support these claims.  = Fleming did=20 not seek summary judgment on Duerr=3Ds legal malpractice=20 claim. 

On February 23, 2007, = Brown=20 filed a traditional motion for summary judgment challenging all of = Duerr=3Ds claims.  Like = Fleming,=20 Brown contended that Duerr=3Ds claims for breach = of=20 contract, breach of fiduciary duty, and DTPA violations were an=20 impermissible attempt to fracture a single legal malpractice claim = into=20 multiple causes of action.  Brown asserted additional grounds = for=20 dismissal of the DTPA and breach of contract claims.   = Brown=20 denied any liability for the legal malpractice claim because = Fleming was=20 the principal attorney to whom the case had been referred.  = Both=20 summary judgment motions were set for hearing on March 23,=20 2007.

Duerr filed a = response to these=20 motions on March 16, 2007.  On the day of the summary = judgment=20 hearing he filed a motion seeking to continue the hearing and the = trial,=20 and to re-open the discovery period. 

On March 26, 2007, = the trial=20 court (1) denied Duerr=3Ds motion for a = continuance of=20 the summary judgment hearing; (2) denied Duerr=3Ds motion for a = continuance of=20 the trial; (3) granted Fleming=3Ds motion for partial = summary=20 judgment; (4) granted Brown=3Ds motion for summary = judgment=20 on all claims asserted by Duerr; and (5) dismissed all claims = against=20 Brown.  At that point, only the legal malpractice claim = against=20 Fleming remained pending.

On March 28, 2007, = Fleming=20 filed a no-evidence summary judgment motion targeting = Duerr=3Ds remaining legal = malpractice=20 claim and set the motion for hearing on April 16, 2007.  = Fleming=20 contended that Duerr was unable to proffer evidence of a breach of = duty,=20 causation, or damages.  Fleming noted that the discovery = cutoff was=20 February 22, 2007.  Fleming contended that Duerr unilaterally = cancelled the deposition of his only legal malpractice expert set = for=20 February 27, 2007; although the deposition initially had been = rescheduled=20 by agreement for March 1, 2007, that date too was passed because=20 Duerr=3Ds legal malpractice = expert=20 wanted more time to consider the summary judgment = motions.  =20 Duerr offered to have his legal malpractice expert available on = dates in=20 late March or early April.  Fleming insisted on dates in = early=20 March.  No agreement was reached.

  On April 3, = 2007,=20 Fleming filed a motion to strike Duerr=3Ds legal malpractice = expert,=20 contending that Duerr had not made his expert available for=20 deposition.   On April 13, 2007, Duerr filed a motion = requesting=20 a continuance of the summary judgment hearing set for April 16, = 2007; a=20 response to Fleming=3Ds motion to strike = his legal=20 malpractice expert; and a response to Fleming=3Ds motion for summary = judgment=20 subject to the continuance. 

On April 20, 2007, = the trial=20 court signed an order granting Fleming=3Ds motion to strike=20 Duerr=3Ds legal malpractice = expert;=20 denying Duerr=3Ds motion for a = continuance of=20 the summary judgment hearing; and granting Fleming=3Ds second summary = judgment=20 motion on the remaining legal malpractice claim.  = Duerr=3Ds motion for a = continuance of=20 the trial was denied as moot.

With that order, all = of=20 Duerr=3Ds claims against = Fleming and=20 Brown were resolved against Duerr.  Duerr field a motion for = new=20 trial on May 22, 2007, which was denied on July 3, 2007, and Duerr = appealed.[1] =20

Standards=20 of Review

Summary=20 Judgment

An appellate court = applies=20 de novo review to a grant of summary judgment, using the = same=20 standard that the trial court used in the first instance.  = Valence=20 Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. = 2005).  A=20 party may move for a traditional summary judgment after the = adverse party=20 has appeared or answered, and for a no-evidence summary judgment = after an=20 adequate time for discovery has passed.  Tex. R. Civ. P. = 166a(a),=20 (i); McMahan v.=20 Greenwood, 108=20 S.W.3d 467, 498 (Tex. App.CHouston=20 [14th Dist.] 2003, pet. denied). 

A traditional summary = judgment=20 may be granted if the motion and evidence show  there is no = genuine=20 issue of material fact and the moving party is entitled to = judgment as a=20 matter of law. Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. = Mgmt.=20 Co., 690 S.W.2d 546, 548 (Tex. 1985).  In reviewing a = summary=20 judgment we take as true all evidence favorable to the nonmovant, = indulge=20 every reasonable inference in favor of the nonmovant, and resolve = any=20 doubts in the nonmovant=3Ds favor.  = Sudan v.=20 Sudan, 199 S.W.3d 291, 292 (Tex. 2006).=20

A no‑evidence = motion for=20 summary judgment must be granted if (1) the moving party asserts = that=20 there is no evidence of one or more specified elements of a claim = or=20 defense on which the adverse party would have the burden of proof = at=20 trial; and (2) the respondent produces no summary judgment = evidence=20 raising a genuine issue of material fact on those elements. =20 See Tex. R. Civ. P. 166a(i). In reviewing a = no‑evidence motion for=20 summary judgment, we view all of the summary judgment evidence in = the=20 light most favorable to the non-movant,=20 Acrediting=20 evidence favorable to that party if reasonable jurors could, and=20 disregarding contrary evidence unless reasonable jurors could=20 not.@ Mack Trucks, Inc. = v.=20 Tamez, 206 S.W.3d 572, 582 (Tex. 2006).  The non-moving = party is=20 not obligated to marshal its proof, but it is required to present = evidence=20 that raises a genuine fact issue on the challenged element.  = Sw.=20 Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). =

Sanctions

We review a trial=20 court=3Ds decision imposing = sanctions=20 for discovery abuse under an abuse of discretion standard.  = Am.=20 Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. = 2006). =20 To establish an abuse of discretion, the complaining party must = show that=20 the trial court=3Ds actions were = arbitrary or=20 unreasonable in light of all the circumstances.  Id. = at=20 583. =

Continuance

 A trial = court=3Ds order denying a = continuance=20 of a summary judgment hearing will not be disturbed except for a = clear=20 abuse of discretion.  See Joe v. Two Thirty Nine Joint=20 Venture, 145 S.W.3d 150, 161 (Tex. 2004).  Factors to = consider=20 when deciding whether a trial court abused its discretion in = denying a=20 continuance include the length of time the case has been on file; = the=20 materiality and purpose of the discovery sought; and whether the = party=20 seeking the continuance exercised due diligence to obtain the = requested=20 discovery.  Id.

Analysis

The arguments on = appeal focus=20 primarily on whether Duerr has stated a claim for breach of = fiduciary duty=20 that is distinct from his claim for legal malpractice.  Duerr = abandoned his breach of contract claim in his response to=20 Brown=3Ds and = Fleming=3Ds motions for summary = judgment,=20 conceding that it was an improperly fractured legal malpractice=20 claim.  Duerr abandoned his DTPA claim on appeal because he = has not=20 challenged the granting of summary judgment on that claim.  = Duerr=20 challenges on appeal the dismissal of his breach of fiduciary duty = claim=20 against Brown and Fleming. Duerr challenges the dismissal of his = legal=20 malpractice claim against Fleming based upon the trial = court=3Ds decision to strike=20 Duerr=3Ds only legal = malpractice=20 expert.  Duerr also challenges the dismissal of his legal = malpractice=20 claim against Fleming and Brown based upon the trial = court=3Ds refusal to grant a=20 continuance of summary judgment hearings and allow additional time = for=20 discovery.  We address each issue in turn.

Breach of Fiduciary=20 Duty

Attorneys=20 Fleming and Brown owed a fiduciary duty to their client = Duerr. =20 See Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. 1965).=20 Duerr=3Ds first=20 issue contends that the trial court erred in granting summary = judgment on=20 his claim that Fleming and Brown breached their fiduciary duty to=20 him.  Fleming=3Ds motion=20 was presented as both a traditional motion under Rule 166a(a) and = a=20 no-evidence motion under Rule 166a(i).  Brown filed only a=20 traditional motion.  Duerr=3Ds claim=20 for breach of fiduciary duty was resolved as to all defendants in = the=20 March 26, 2007 order.

Fleming=20 and Brown predicated their traditional motions for summary = judgment on the=20 impermissibility of fracturing a single legal malpractice claim = into=20 multiple causes of action.  See Goffney v. Rabson, 56 = S.W.3d=20 186, 190 (Tex. App.CHouston=20 [14th Dist.] 2001, pet. denied) (Texas law does not permit a = plaintiff to=20 fracture legal malpractice claims).   They = contend=20 Duerr improperly attempted to split a single claim for legal = malpractice=20 based on the alleged mishandling of his request for additional = benefits=20 into separate claims for legal malpractice and breach of fiduciary = duty.  AWhether allegations = against a=20 lawyer, labeled as breach of fiduciary duty, fraud, or some other = cause of=20 action, are actually claims for professional negligence or = something else=20 is a question of law to be determined by the court.@  Murphy v. = Gruber,=20 241 S.W.3d 689, 692 (Tex. App.CDallas 2007, pet. = denied);=20 see also Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. = App.CHouston [14th Dist.] = 1998, pet.=20 denied) (the appellate court is tasked with determining the = precise nature=20 of the claims before deciding whether the trial court=3Ds grant of summary = judgment to=20 the defendant was appropriate).[2]

The prohibition = against=20 fracturing a legal malpractice claim does not necessarily = foreclose the=20 simultaneous pursuit of a negligence-based malpractice claim and a = separate breach of fiduciary duty claim. A[W]hen cases say that = clients=20 cannot divide or fracture their negligence claims against their = attorneys=20 into other claims, this does not mean that clients can sue their = attorneys=20 only for negligence.@ Deutsch v. Hoover, = Bax &=20 Slovacek, 97=20 S.W.3d 179, 189 (Tex. App.CHouston [14th Dist.] = 2002, no=20 pet.).  But the plaintiff must do more than merely reassert = the same=20 claim for legal malpractice under an alternative label. The = plaintiff must=20 present a claim that goes beyond what traditionally has been = characterized=20 as legal malpractice.  See Kimleco Petroleum, Inc. v. = Morrison=20 & Shelton, 91 S.W.3d 921, 924 (Tex. App.CFort Worth 2002, pet. = denied)=20 (ARegardless=20 of the theory a plaintiff pleads, as long as the crux of the = complaint is=20 that the plaintiff=3Ds attorney=20 did not provide adequate legal representation, the claim is one = for legal=20 malpractice@).

In Deutsch, = this court=20 discussed=20 the analysis for determining when a single legal malpractice claim = has=20 been fractured improperly into multiple causes of action. =20

If the=20 gist of a client=3Ds=20 complaint is that the attorney did not exercise that degree of = care,=20 skill, or diligence as attorneys of ordinary skill and knowledge = commonly=20 possess, then that complaint should be pursued as a negligence = claim,=20 rather than some other claim.  If, however, = the=20 client=3Ds complaint is more=20 appropriately classified as another claim, for example, fraud, = DTPA,=20 breach of fiduciary duty, or breach of contract, then the client = can=20 assert a claim other than negligence.

97 S.W.3d at 189 = (citations=20 omitted).  A legal malpractice claim focuses on whether an = attorney=20 represented a client with the requisite level of skill, while a = breach of=20 fiduciary duty claim encompasses whether an attorney obtained an = improper=20 benefit from the representation. =20 See Aiken v. Hancock, 115 S.W.3d 26, 28 (Tex. = App.CSan=20 Antonio 2003, pet. denied).  Breach of fiduciary duty = involves=20 conduct including failure to disclose conflicts of interest; a = failure to=20 deliver funds belonging to the client; placing personal interests = ahead of=20 a client=3Ds=20 interests; misuse of client confidences; taking advantage of the=20 client=3Ds trust;=20 engaging in self-dealing; and making material = misrepresentations. =20 See Goffney, 56 S.W.3d at 193.

In=20 determining whether Duerr asserted a breach of fiduciary claim = that is=20 distinct from his legal malpractice claim, we examine the = petition;=20 Duerr=3Ds response=20 to the defendants=3D = motions=20 for summary judgment; and Duerr=3Ds=20 deposition. Duerr alleges as follows in his First Amended = Petition:=20

Plaintiffs restate = and=20 incorporate herein the factual background and allegations above = and would=20 show unto the Court the following:

At all=20 times mentioned herein an attorney/client relationship existed = between=20 Defendants and Plaintiff which required Defendants to exercise the = highest=20 degree of care and loyalty to their client and to place the=20 client=3Ds interest=20 above that of their own firms.  This duty was breached and = the breach=20 of that duty proximately caused damages to Plaintiff in the amount = within=20 the jurisdictional limits of this Court.

From=20 Duerr=3Ds=20 petition, therefore, it is not clear what conduct he targets as a = breach=20 of a fiduciary duty.

Brown and=20 Fleming contend that Duerr=3Ds breach=20 of fiduciary duty claim is merely a fractured legal malpractice = claim=20 because Duerr=3Ds petition=20 sets forth no facts under the label ASecond=20 Cause of Action: Breach of Fiduciary Duty.@ =20 See=20 Greathouse,=20 982 S.W.2d at 172 = (plaintiff determined to have impermissibly fractured a legal = malpractice=20 claim after simply listing a number of identical paragraphs under=20 different headings, including negligence, breach of fiduciary = duty, and=20 breach of duty of good faith and fair dealing, without separate = and=20 specific allegations of wrongdoing); see also = O=3DDonnell v.=20 Smith, 234=20 S.W.3d 135, 146 (Tex. App.CDallas 2007, pet. = granted)=20 (merely asserting attorney did not Aexercise the highest = degree of=20 care, good faith, and honest dealing@ is insufficient to = make an=20 independent claim for breach of fiduciary duty without presenting = some=20 additional evidence); cf.=20 Deutsch, 97=20 S.W.3d at 190 (a party may allege the same facts under legal = malpractice=20 and under breach of fiduciary duty; Texas Rule of Civil Procedure = 48=20 allows a party to plead in the alternative).

Duerr=20 predicates his legal malpractice claim on allegations that Fleming = and=20 Brown mishandled the filing of Duerr=3Ds requests=20 for additional benefits under the settlement matrices and = mishandled the=20 appeal of the benefit decision.  In this appeal, Duerr = predicates his=20 breach of fiduciary claim on three theories: (1) Brown and Fleming = induced=20 Duerr to rejoin the class settlement by promising him a recovery = of $1.68=20 million net of attorney=3Ds fees,=20 but Duerr=3Ds recovery=20 was less; (2) Brown and Fleming had a Aconflict=20 of interest@ = because=20 they used the settlement of Duerr=3Ds valuable=20 claim as leverage to obtain a larger settlement for four other = plaintiffs=20 and larger fees for themselves; and (3) Brown and = Fleming did=20 not disclose the Aconflict of=20 interest@ to Duerr.[3] =

Duerr=3Ds first=20 theory is that Brown and Fleming breached their fiduciary = duty to him because = they=20 promised him a larger recovery net of attorney=3Ds fees than he = ultimately=20 received.  Duerr alleges that the proper information was not = filed=20 under the matrices governing additional compensation; items were = filed=20 incorrectly; improper information was filed; and an administrative = appeal=20 from the denial of benefits was not pursued timely or to its = fullest=20 extent.  Duerr alleged that Brown and Fleming had = opportunities to=20 correct these asserted errors, and Amay have mitigated = the=20 negligence of all Defendants@ had they done=20 so.

These are allegations = that=20 Duerr=3Ds Aattorney[s] did not = exercise=20 that degree of care, skill, or diligence as attorneys of ordinary = skill=20 and knowledge commonly possess.@  See = Deutsch, 97=20 S.W.3d at 189; see also Murphy, 241 S.W.3d at 692-93 = (giving=20 erroneous legal opinion or advice, delaying or failing to handle a = matter,=20 or not using ordinary care in preparing, managing, and prosecuting = a case=20 constitutes legal malpractice); Goffney, 56 S.W.3d at 193=20 (allegations attorney abandoned client at trial, did not properly = prepare=20 lawsuit for trial, and misled client into believing attorney was = prepared=20 for trial were claims for legal malpractice). Because = Duerr=3Ds first theory = focuses on the=20 quality of representation provided, it alleges legal malpractice = and=20 nothing more.  See Greathouse, 982 S.W.2d at 172 (when = the=20 crux of complaint is failure to provide adequate legal = representation, the=20 claim asserts legal malpractice).

Duerr=3Ds second theory is = that Brown=20 and Fleming had a conflict of interest arising from the settlement = of=20 Duerr=3Ds claim together with = claims by=20 four other hip implant recipients who were less severely = injured. =20 Duerr contends that his more valuable claim was used as leverage = to=20 increase the amount paid to the other four claimants.   = In=20 Duerr=3Ds summary judgment = response, he=20 asserts that his lawyers wanted to Aforce Plaintiff to = rejoin the=20 class for $1.6 million so that the four less injured clients would = be paid=20 a total of $900,000 [out] of which Fleming and Associates would = receive a=20 large fee.@  Duerr points = to a letter=20 from Sulzer=3Ds attorney to Fleming = memorializing a confidential agreement under which Sulzer agreed = to pay=20 $2.5 million to five Sulzer claimants represented by Fleming = (Duerr and=20 four others) in exchange for each claimant signing a revocation of = Aprior written=20 opt-outs@ and agreeing to = participate in=20 the class settlement.  The letter indicated that Duerr would = receive=20 $1.6 million; litigant Cassone would receive $100,000, litigant = Martin=20 would receive $250,000, litigant Heathington would receive = $300,000, and=20 litigant Retherford would receive $250,000.  =

Because = Duerr=3Ds petition makes only = a=20 perfunctory reference to breach of fiduciary duty, = Duerr=3Ds deposition = testimony=20 necessarily assumes an important role in answering the legal = question of=20 whether the Aconflict of=20 interest@ theory describes a = breach of=20 fiduciary duty claim distinct from any alleged legal = malpractice. =20 Duerr=3Ds deposition = identifies the=20 reason he is suing, which in turn helps to focus the analysis of = whether=20 Duerr asserts a freestanding breach of fiduciary duty claim or = instead=20 simply affixes a different label to his legal malpractice=20 claim.

Duerr testified as=20 follows:

 

Q.        Now,=20 I believe that the crux of the lawsuit is that you are upset = because you=20 believe that you were promised that you would receive in your = pocket=20 $1,680,000; is that correct?

 

A.       =20 = Yes.           &nb= sp;    =20

 

* * *

 

Q.        So=20 with regard to your lawsuit or your claims against Sulzer because = of the=20 hips that were defective, you pocketed approximately $1.3 million; = is that=20 right?

 

A.        That=20 sounds about right, yes.

 

Q.        So=20 that leaves a net difference of approximately $300,000 that you = believe=20 B

 

A.        380=20 B

 

Q.       =20 $380,000 that you believe was promised to you?

 

A.       =20 Yes

 

Q.        And=20 that=3Ds why you filed this lawsuit?

 

A.       =20 Yes.

 

When he was asked to = discuss=20 fiduciary duty specifically, Duerr testified that AI think [Fleming and = Brown] . .=20 . took me and used me as a trump card and used my case as leverage = to=20 better all the other cases that they had; therefore, making more = money for=20 them and then throwing me to the wayside.@  Duerr also = testified as=20 follows:

 

Q.        What=20 facts do you have to support your allegation, Mr. Duerr, that you = believe=20 Fleming & Associates or Brown & Crouppen used your case to = better=20 all their other cases?

 

A.       =20 Pretty much common sense.

 

Q.       =20 You=3Dre basing that opinion on common sense, = your=20 common sense?

 

A.        I=20 have no answer.

 

Q.        So=20 you don=3Dt know why you=3Dve made that allegation?

 

A.       =20 Because of conversations with [an attorney from Brown & = Crouppen] . .=20 . that brought me to that.

 

Q.        What=20 conversations?

 

A.        That=20 I was one of the worst cases that they had and that Fleming had = and that=20 with me now with them they would be able to pursue more and=20 harder.

 

Immediately following = his=20 statement about having been thrown Ato the = wayside,@ Duerr described his = belief=20 that Fleming and Brown failed to prosecute a timely and proper=20 administrative appeal within the class settlement structure from = the=20 denial of his requests for additional benefits.  Elsewhere in = his=20 deposition, Duerr testified as follows:

Q.        You=20 claim in your petition that the defendants abandon[ed] you; is = that=20 correct?

 

A.       =20 Yes.

 

Q.        When=20 do you believe that they abandon[ed] you?

 

A.       =20 Right after they collected their 40 percent off the 1.6 million to = opt=20 back in.

 

In light of this = deposition=20 testimony, Duerr=3Ds Aconflict of=20 interest@ theory boils down to = a=20 contention that other hip replacement claimants represented by his = lawyers=20 obtained greater recoveries than they otherwise would have = obtained=20 because of Duerr=3Ds participation in = the class=20 settlement, and that his lawyers thereby obtained additional = fees. =20 But the Acrux@ of Duerr=3Ds lawsuit remains his = contention that he got less than the promised $1.68 million = recovery net=20 of attorney=3Ds fees.

Duerr does not = attribute his=20 failure to obtain the promised $1.68 million net recovery to the=20 participation of other hip implant claimants who allegedly = received larger=20 recoveries than they otherwise would have received.  Duerr = does not=20 attribute this failure to his attorneys=3D receipt of fees in = connection=20 with recoveries by these other claimants.  Rather, Duerr = attributes=20 this failure to being thrown Ato the = wayside@ and Aabandon[ed]@ by attorneys who = allegedly=20 mishandled his requests for additional benefits within the = settlement=20 class structure, and then allegedly mishandled an appeal from the = denial=20 of those requests.  Given his testimony, Duerr=3Ds Aconflict of=20 interest@ theory does not = describe a=20 breach of fiduciary duty claim distinct from his legal malpractice = allegations.  See Judwin Props., Inc. v. Griggs = &=20 Harrison, 911 S.W.2d 498, 507 (Tex. App.CHouston [1st Dist.] = 1995, no=20 pet.) (breach of fiduciary duty claim was impermissibly fractured = legal=20 malpractice claim because plaintiff failed to demonstrate how = alleged=20 breach of fiduciary duty benefitted fiduciary at the expense of = the=20 beneficiary).

Duerr tries to = bolster his=20 position by stressing that he has requested fee forfeiture, which = is a=20 remedy available for breach of fiduciary duty.  See Burrow = v.=20 Arce, 997 S.W.2d 229, 246 (Tex. 1999).  Duerr=3Ds invocation of fee = forfeiture=20 does not change the analysis.  During his = deposition,=20 Duerr testified as follows:

Q.       =20 Okay.  And why, if they did get you so much money, should = they give=20 you back half of the fee you paid them?

 

A.       =20 Because they didn=3Dt do what they = promised and=20 they cause me hardships to this day.

This testimony = confirms that=20 Duerr=3Ds breach of fiduciary = duty=20 contention (1) centers on the lawyers=3D alleged failure to=20 Ado what they=20 promised@ by failing to = deliver a $1.68=20 million net recovery; and (2) does not assert that he suffered = this=20 specific monetary consequence because his interests were = subordinated to=20 those of his attorneys or other claimants. 

This analysis also = addresses=20 Duerr=3Ds third theory = predicated on a=20 failure to disclose the asserted Aconflict of=20 interest.@  Duerr=3Ds=20 deposition testimony establishes that breach of fiduciary duty = arising=20 from a Aconflict=20 of interest@ = is=20 merely an alternative label for Duerr=3Ds=20 underlying legal malpractice complaint about receiving less money = than=20 he was promised.  The Aconflict=20 of interest@ = contention is not a distinct breach of fiduciary duty claim that = stands=20 apart from the asserted legal malpractice.  Because the = Aconflict=20 of interest@ = is not a=20 distinct claim, the asserted failure to disclose the Aconflict=20 of interest@ = also is=20 not a distinct breach of fiduciary duty claim that stands apart = from the=20 alleged legal malpractice.

In sum,=20 Duerr does not state a separate breach of fiduciary duty claim = based on=20 the failure to deliver a promised level of recovery = because=20 that failure is attributed to mishandling of = Duerr=3Ds claims=20 within the class settlement structure.  That is a malpractice = claim=20 as a matter of law. Duerr does not state a separate = breach of=20 fiduciary duty claim based on a Aconflict=20 of interest@ arising=20 from the settlement of multiple claims because Duerr = contends his=20 interests were compromised by the failure to deliver a promised = level of=20 recovery attributable to his lawyers=3D = inattention to his benefit requests and appeal.  That is = a=20 malpractice claim as a matter of law.  See Deutsch, 97 = S.W.3d=20 at 188-90 (failure to represent client on appeal is claim for = legal=20 malpractice, not breach of fiduciary duty).  =  Duerr does=20 not state a separate breach of fiduciary duty claim based on a = failure to=20 disclose the asserted Aconflict=20 of interest@ = because=20 the Aconflict=20 of interest@ = is not a=20 separate claim, and because Duerr contends his interests were = compromised by the failure to deliver a promised level of recovery = attributable to his lawyers=3D = inattention. That too is a malpractice claim as a matter of=20 law.

We=20 overrule Duerr=3Ds first=20 issue.

 

 

Legal=20 Malpractice

Duerr next claims = that the=20 trial court erred in striking his legal malpractice expert and in = granting=20 summary judgment in favor of Fleming on Duerr=3Ds legal malpractice = claim.[4] =20 This claim against Fleming was the only claim remaining after the = trial=20 court=3Ds March 26, 2007 = order. =20 Duerr concedes that in striking his expert, the trial court dealt = a fatal=20 blow to his legal malpractice claim.

Duerr filed this = lawsuit on=20 February 16, 2006.  On April 21, 2006, the trial court issued = a=20 docket control order mandating that Duerr designate his experts by = December 22, 2006, and stated that failure to timely respond would = be=20 governed by Texas Rule of Civil Procedure 193.6.  The docket = control=20 order set a discovery deadline of February 22, 2007.  Trial = was set=20 for April 23, 2007. On June 22, 2006, Duerr amended his petition = for the=20 first and only time. 

In the months that = followed,=20 Duerr deposed no witnesses and engaged in no discovery beyond = mandated=20 written disclosures under Texas Rule of Civil Procedure 194.  = Duerr=20 complied with the docket control order by designating attorney = Robert=20 Charles Lyon as his testifying expert. =  His=20 designation was made in this response:

It is expected Mr. Lyon will testify on = the issues=20 of the Defendant=3Ds failure to comply with the standard of = care,=20 that their conduct was negligent, that their conduct was a = proximate cause=20 of the damages claimed by the Plaintiffs; and that a fiduciary=20 relationship existed between Plaintiffs and Defendants which was = violated=20 and a refund of all or a part of the attorney=3Ds fees received should be = made.  =20

 

Because Lyon provided = no=20 report, Duerr was obligated to make Lyon available for deposition=20 Areasonably = promptly@ after designating = him. See=20 Tex. R. Civ. P. 195.3.  Under Texas Rule of Civil = Procedure=20 194.2(f)(3), Lyon=3Ds deposition was = necessary to=20 provide the Ageneral substance of = the=20 expert=3Ds mental impressions = and=20 opinions and a brief summary of the basis for them,@ which had not been = made=20 available through the designation or through any = supplementation. =20

Duerr initially = agreed to make=20 Lyon available for deposition on February 6, 2007 B  before the = discovery=20 cutoff.  Lyon cancelled this deposition, and it was = rescheduled by=20 agreement after the discovery cutoff on March 1, 2007.  Lyon = again=20 cancelled.  Fleming insisted on a new date within the next = two weeks=20 because of the looming trial scheduled to begin on April 23, = 2007. =20 Fleming offered to depose Lyon in early March, but Lyon had other=20 commitments.  Duerr offered to make Lyon available on dates = in late=20 March or early April.  Fleming contended that these dates = were too=20 close to the April 23, 2007 trial.  On April 3, 2007, Fleming = moved=20 to strike Lyon as an expert witness in the case. 

Duerr filed three = documents on=20 April 13, 2007: a response to Fleming=3Ds motion for summary = judgment;=20 a motion for a continuance of the summary judgment hearing; and a = response=20 to Fleming=3Ds motion to strike=20 Duerr=3Ds legal malpractice=20 expert.  In his response to Fleming=3Ds motion to strike, = filed on=20 April 3, 2007, Duerr included a report by Lyon addressing the = scope and=20 basis of his opinion.   The trial court considered these = motions=20 on April 20, 2007, only three days before the scheduled trial, at = a single=20 hearing that encompassed Fleming=3Ds motion for final = summary=20 judgment filed March 28, 2007.  

The trial court heard = both=20 sides with respect to all motions pending at the hearing, and = thereafter=20 signed its order granting Fleming=3Ds motion for final = summary=20 judgment and simultaneously granting Fleming=3Ds motion to strike = Lyon. =20 The trial court stated:

The record of the cause seems = undisputed: It was=20 not until April 13, 2007, via response to motion for summary = judgment and=20 ten days prior to the trial setting, that Defendants were afforded = their=20 first peek at the nature of Mr. Lyon=3Ds expert opinions in this cause.  = Prior to=20 that time, Plaintiff=3Ds disclosures provided nothing more than = an=20 indication that Mr. Lyon would testify about the standard of care = and=20 breach thereof.  The Court is mindful of and sympathetic with = Plaintiff=3Ds counsel=3Ds personal issues; however, those = issues, which=20 occurred during 2006, do not explain a failure to comply with = expert=20 disclosures in 2007 of failure to timely seek relief from the=20 Court=3Ds scheduling order. The Court determines = that the=20 motion must be GRANTED.

The failure to = provide expert=20 information as required by the rules is sanctionable by exclusion = of that=20 expert=3Ds report.  = See Tex.=20 R. Civ. P. 193.6; Moore v. Mem=3Dl Hermann Hosp. Sys., = Inc.,=20 140 = S.W.3d=20 870, 875 (Tex. App.CHouston [14th Dist.] = 2004, no=20 pet.).  To avoid this sanction, Duerr had to demonstrate that = his=20 failure to make such disclosures would not have unfairly surprised = or=20 prejudiced Fleming, or that his failure to make such disclosures = was for=20 good cause.  See Tex. R. Civ. P. 193.6; Moore, = 140=20 S.W.3d at 875.

The trial court acted = within=20 its discretion in striking Lyon and his affidavit.  The trial = court=20 was entitled to conclude that Fleming was prejudiced by the = failure to (1)=20 make Lyon available for deposition, or (2) provide Fleming with=20 Lyon=3Ds expert = report. =20 Similarly, Duerr did not establish good cause for waiting until = the eve of=20 trial to begin engaging in discovery, or for failing to make his = expert=20 witness available until after the close of discovery. =20 Duerr=3Ds only argument was = that=20 Fleming did not make sufficient concessions to Duerr in scheduling = Lyon,=20 and that any failure to make Lyon available was not due to=20 Duerr=3Ds lack of = willingness. =20 The trial court acted within its discretion in concluding that = Duerr=20 failed to establish good cause under Rule 193.6.

Duerr cannot prevail = on appeal=20 even if Lyon=3Ds affidavit is=20 considered.  A legal malpractice plaintiff must prove: (1) = the=20 attorney owed the plaintiff a duty of care; (2) the attorney = breached that=20 duty; (3) the breach proximately caused the plaintiff=3Ds injuries; and (4) = damage=20 occurred. Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d = 663,=20 670 (Tex. App.CHouston [1st Dist.] = 1996, no=20 writ).  A legal malpractice claim must be supported by expert = testimony.  See Alexander v. Turtur & Assocs., = Inc., 146=20 S.W.3d 113, 119-20 (Tex. 2004).  When the asserted legal = malpractice=20 involves the results of prior litigation, the plaintiff bears the=20 additional burden of proving that, Abut for@ the = attorney=3Ds breach of duty, he = would have=20 prevailed on the underlying cause of action and would have been = entitled=20 to judgment.  See Greathouse, 982 S.W.2d at 172; = Schlager=20 v. Clements, 939 S.W.2d 183, 186-87 (Tex. App.CHouston [14th Dist.] = 1996, writ=20 denied).  This requirement is known as the  Asuit within a = suit@ requirement.  = See=20 Greathouse, 982 S.W.2d at 173. 

Fleming=3Ds no-evidence motion = for=20 summary judgment on legal malpractice contends that Duerr failed = to raise=20 a fact issue as to whether the alleged legal malpractice was the = proximate=20 cause of Duerr=3Ds damages.  Even = if=20 Lyon=3Ds report had been = considered,=20 that expert report could not forestall summary judgment because = Lyon=20 failed to establish that Duerr would have prevailed in his = underlying=20 claims for additional benefits.[5]  The=20 expert report by Robert Charles Lyon makes several conclusory = statements=20 to the effect that Fleming=3Ds negligent acts were = the=20 proximate cause of Duerr=3Ds damages.  = However, Lyon=20 does not state that Duerr would have prevailed on the underlying = requests=20 for additional benefits.  Lyon does not establish that Duerr = was=20 eligible for a greater recovery than that already received under = the=20 settlement agreement.  Fleming has contended that Duerr was = not=20 entitled to any greater payout than that already received because = (1)=20 Duerr=3Ds hip dislocation = occurred four=20 days before his covered revision surgery, making him ineligible = for Matrix=20 IV recovery;[6] = (2)=20 Duerr=3Ds own physician = provided the=20 report upon which his claim was denied in regards to Matrix V, and = he=20 failed to establish that Duerr was more severely injured; (3) = Duerr=20 himself filed for recovery under Matrix II and successfully = recovered=20 $36,000, negating any harm done by defendants as to the Matrix II = claims;=20 and (4) all appeals had been exhausted when the final order of the = special=20 master declined Duerr=3Ds claims.

To establish a viable = legal=20 malpractice claim, Duerr had to establish that he would have = prevailed on=20 the allegedly mishandled claims.  Lyon=3Ds affidavit did not = establish=20 this requirement.  Aiken, 115 S.W.3d at 29; = Greathouse,=20 982 S.W.2d at 172.  Therefore, Duerr=3Ds legal malpractice = against=20 Fleming would not have survived Rule 166(a)(i) even if = Lyon=3Ds affidavit had been=20 considered.

Accordingly, = Duerr=3Ds second issue is=20 overruled.

Continuance =

Duerr=3Ds third issue = contends that the=20 trial court abused its discretion in denying a continuance to the = summary=20 judgment hearings.  Duerr twice moved for continuances.  = The=20 first motion was filed in response to Fleming=3Ds February 16, 2007 = partial=20 summary judgment motion and Brown=3Ds February 23, 2007 = full=20 summary judgment motion.  This first motion for a continuance = included a request for a new trial date and an extension for=20 discovery.  This motion was filed on the same day of the = hearing on=20 the Brown and Fleming motions for summary judgment.  Although = Duerr=20 contends there is some doubt about whether the trial court ruled = on this=20 motion for continuance, the trial court specifically denied=20 Duerr=3Ds request in an order = signed=20 March 26, 2007, which also granted the summary judgments that had = been=20 requested by Brown and Fleming.

Duerr=3Ds second motion for = continuance=20 was filed on April 13, 2007 B on the eve of trial = scheduled=20 for April 23, 2007 B in response to=20 Fleming=3Ds motion for final = summary=20 judgment on Duerr=3Ds malpractice = claim. =20 Duerr requested a continuation of the hearing, re-opening of = discovery,=20 and a new scheduling order.  On April 20, 2007, the trial = court=20 denied these requests and granted summary judgment to Fleming on=20 Duerr=3Ds legal malpractice=20 claim.

Courts have = considered the=20 following nonexclusive factors when deciding whether a trial court = abused=20 its discretion in denying a motion for continuance seeking = additional time=20 to conduct discovery: the length of time the case has been on = file; the=20 materiality and purpose of the discovery sought; and whether the = party=20 seeking the continuance has exercised due diligence to obtain the=20 discovery sought.  Two Thirty Nine Joint Venture, 145 = S.W.3d=20 at 161.

The first factor is = the length=20 of time the case has been on file.  McMahan v. Greenwood = is=20 instructive in this regard.  See McMahan, 108 S.W.3d = at=20 498.  The lawsuit in McMahan was filed nearly 28 = months before=20 the granting of summary judgment, with 16 months in between = subject to a=20 bankruptcy stay, allowing the parties a full year to conduct=20 discovery.  Id. at 498-99, the trial court found this = to be=20 sufficient time for discovery and denied the continuance; on = appeal we=20 concluded that the trial court acted within its discretion is so=20 determining.  Id. at 499.

In the case before = us, the=20 parties had from February 16, 2006  B when the original = petition was=20 filed B until February 22, = 2007=20 B  when the = docket control=20 order ended discovery B to conduct discovery = and to=20 prepare for an April, 23 2007 trial.  The trial court acted = within=20 its discretion in concluding that this was sufficient time for=20 dicovery.  This factor weighs in favor of Fleming and = Brown. =20 See Perrotta v. Farmers Ins. Exch., 47 S.W.3d 569, 576 = (Tex.=20 App.CHouston [1st Dist.] = 2001, no=20 pet.) (plaintiff has obligation to research a case before bringing = suit;=20 trial court within discretion to deny continuance, noting seven=20 months  was sufficient to effect discovery and motion for = summary=20 judgment was reasonable).[7]

The second factor = considers the=20 materiality and purpose of the discovery sought. =20 When the basis for the requested continuance = is=20 Awant of=20 testimony,@ = the=20 movant must show that (1) the testimony is material; (2) due = diligence has=20 been used to obtain the testimony; (3) there is an explanation = given for=20 the failure to obtain the testimony; and (4) the testimony cannot = be=20 procured from another source. Tex. R. Civ. P. 252; see Blake v. = Lewis, 886 S.W.2d 404, 409 (Tex. App.CHouston=20 [1st Dist.] 1994, no writ) (proponent of a motion for continuance = should=20 state what specific discovery is material and show why it is=20 material). =20 While Duerr asserted his need to depose the attorneys for Fleming = and=20 Brown, he never states what their depositions would demonstrate or = how=20 this information would assist Duerr or the court.  See=20 Perrotta, 47 S.W.3d at 576 (appellant failed to show how = additional=20 discovery was pertinent).  A motion for a continuance must=20 Areflect any need for = additional=20 discovery or what might be expected to be developed as evidence = with=20 additional depositions.@  Gabaldon v. = Gen.=20 Motors Corp., 876 S.W.2d 367, 370 (Tex. App.CEl Paso 1993, no = writ)=20 (without=20 this showing, the record reflects no basis for determining that = the trial=20 court abused its discretion).@  Because Duerr = did not=20 satisfy this standard, this factor weighs in the favor of Fleming = and=20 Brown.

Finally, we consider = the=20 diligence of the party seeking continuance.  It=20 is Awell=20 established that the failure of a litigant to diligently utilize = the rules=20 of civil procedure for discovery purposes will not authorize the = granting=20 of a continuance.@ =20 State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. = 1988);=20 see = also=20 Schmidt v. Bell, No. 01-06-00161-CV, = 2008 WL=20 921702, at *1 (Tex. App.CHouston [1st Dist.] = April 3,=20 2008, no pet. h.) (in=20 addition to describing the evidence sought, a verified motion must = state=20 with particularity the diligence used to obtain the evidence, and = explain=20 why the continuance = is=20 necessary).   In this case, Duerr = had nearly=20 a year to engage in discovery and failed to utilize available = discovery=20 methods until after the discovery period ended.  When a=20 party is prevented from deposing opponents because it failed to = act=20 timely, that is a Apredicament=20 of its own making@ = and the=20 Arisk@ = a party=20 takes by not Adiligently=20 pursuing discovery.@  =20 Wood Oil Distrib., Inc., 751 S.W.2d at 865.   =

In this=20 case, Anothing=20 prevented [Duerr] from=20 conducting discovery earlier in the case, and his failure to make = diligent=20 efforts to secure discovery did not authorize the granting of a=20 continuance.@  See = Perrotta, 47=20 S.W.3d at 576-77; see also Carbonara v. Tex. Stadium Corp., = 244=20 S.W.3d 651, 659 (Tex. App.CDallas Jan. 24, 2008, = no pet.=20 h.) (while appellant explained unsuccessful discovery attempts = since=20 filing of summary judgment, appellant never explained why = discovery was=20 not conducted before).  This factor also weighs in favor of = Fleming=20 and Brown.

Because all of the = pertinent=20 factors weigh in favor of Fleming and Brown, we conclude that the = trial=20 court acted within its discretion in denying both requests for a=20 continuance.  Accordingly, Duerr=3Ds third issue is=20 overruled.

 

 

 

Conclusion

The trial = court=3Ds judgment is=20 affirmed.

 

 

/s/       =20 William J. Boyce

Justice

 

Judgment rendered and = Opinion=20 filed July 3, 2008.

Panel consists of = Chief Justice=20 Hedges, and Justice Boyce and Senior Justice Hudson.*


[1]          =20 Duerr=3Ds wife does not challenge the dismissal = of her=20 claims on appeal.

[2]          =20 In Duerr=3Ds response to an individual = defendant=3Ds special appearance, Duerr stated: = APlaintiffs bring this cause of action = basically as=20 one of legal malpractice . . . .@  Brown contends this statement is = a judicial=20 admission that confines Duerr to bringing only a malpractice = claim. =20 See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, = 905 (Tex.=20 2000) (a judicial admission may be made in live pleadings); =  Holy=20 Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 = (Tex. 2001)=20 (a judicial admission may also be made in a response to a motion = or=20 counter-motion).  The judicial admission, however, must be = clear and=20 unequivocal.  See Holy Cross Church of God in Christ, = 44=20 S.W.3d at 568.  We do not believe this statement is so = unequivocal as=20 to constitute a judicial admission.

[3]          =20 Plaintiff=3Ds First Amended Petition makes no = reference to an=20 asserted conflict of interest, a failure to disclose the asserted = conflict=20 of interest, or to the settlement of claims by other hip implant=20 recipients.  Duerr=3Ds summary judgment response and = appellate briefs=20 contain passing references to the asserted conflict, the failure = to=20 disclose, and the other claimants.

[4]          =20 The dispute over striking Duerr=3Ds legal malpractice expert does not = affect the=20 summary judgment granted in favor of Brown on Duerr=3Ds legal malpractice claim.  By the = time=20 Duerr=3Ds expert was stricken, summary judgment = already=20 had been granted in favor of Brown on all claims against Brown, = including=20 legal malpractice.

[5]          =20 Duerr also contends that Fleming failed to file for $36,000 under = Matrix=20 II.  Duerr had shown no damage because he filed for the = recovery and=20 was paid the full $36,000 available under Matrix II. Even if = Fleming was=20 negligent with regard to a Matrix II filing, Duerr suffered no=20 harm.

[6]          =20 Duerr=3Ds hip dislocation occurred on September = 29, 2000,=20 and his covered revision surgery (CRS) occurred on October 3, = 2000. =20 To be eligible for benefits under Matrix IV, an = individual=3Ds hip dislocation had to have taken = place within=20 90 days following the CRS.

[7]          =20 Brown points out that the second motion for a continuance was = filed after=20 all claims against it already had been resolved in the first order = granting motion for summary judgment.

*          =20 Senior Justice J. Harvey Hudson sitting by=20 = assignment.

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FONT-SIZE: 12pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, = sans-serif; TEXT-ALIGN: left } .DocketHeaderTitle { FONT-WEIGHT: bold; FONT-SIZE: 14pt; COLOR: black; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, ' Helvetica', sans-serif; TEXT-ALIGN: center } .TextLargeBlack { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: left } .TextLargeBlackcenter { FONT-WEIGHT: bold; FONT-SIZE: 11pt; COLOR: black; LINE-HEIGHT: normal; = FONT-STYLE: normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-ALIGN: center } .TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } A.TextBlue { FONT-WEIGHT: normal; FONT-SIZE: 10pt; COLOR: #000099; LINE-HEIGHT: = normal; FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif; = TEXT-DECORATION: none } .TextRed { FONT-WEIGHT: normal; FONT-SIZE: 12pt; COLOR: red; LINE-HEIGHT: normal; = FONT-FAMILY: Tahoma, Arial, Helvetica, sans-serif } .TextHidenGray { FONT-SIZE: 0pt; COLOR: #ebebe1; LINE-HEIGHT: normal; FONT-FAMILY: = Tahoma, Arial, Helvetica, sans-serif; TEXT-ALIGN: left } .Time { FONT-WEIGHT: bold; FONT-SIZE: 10px; COLOR: red; LINE-HEIGHT: 4em; = FONT-FAMILY: Arial, Helvetica, sans-serif; TEXT-ALIGN: center } ------=_NextPart_000_0024_01C8DDFE.3B2FD000--