In The
For The
Appellant, =
George Neil=20
Lewis, has filed a second motion for rehearing and for en banc=20
reconsideration of our memorandum opinion, issued October 5, 2006, =
and of=20
our supplemental memorandum opinion issued December 14, 2006, both =
of=20
which opinions affirmed a take-nothing summary judgment rendered =
against=20
him in his malpractice suit against appellee, Jack D. Nolan, his =
former=20
attorney. Nolan has filed a response to Lewis's second rehearing =
motion=20
and has moved for sanctions. We grant the second motion for =
rehearing=20
addressed to the panel. However, our disposition of the appeal =
remains the=20
same, and our October 5, 2006 memorandum opinion and judgment, as =
well as=20
our December 14, 2006 supplemental memorandum opinion, remain =
intact. We=20
issue this supplemental memorandum opinion to address matters =
raised by=20
Lewis in his second motion for rehearing that relate to a =
supplemental=20
record filed after our December 2006 opinion issued.
After our December 2006 =
supplemental=20
memorandum opinion issued, Lewis supplemented the record with =
Our October=20
2006 opinion stated that Nolan's no-evidence summary-judgment =
motion was=20
not in the appellate record. Nonetheless, in his motion for =
rehearing of=20
our initial opinion, Lewis did not advise the Court that, nearly =
two years=20
prior, he had requested and paid for a supplemental clerk's record =
containing this item. Our=20
December 2006 supplemental opinion on rehearing again noted the =
absence of=20
Nolan's no-evidence summary-judgment motion. That opinion also =
recognized=20
the rule that, once a party has designated an item for inclusion =
in the=20
record, or if the rules require that that item be included in the =
record,=20
and has arranged for payment, it is our responsibility to order =
the record=20
supplemented with that item. See Tex. R. App. P. 34.5(a), =
(b),=20
35.3(a), (c). However, we advised the parties that the appellate =
record=20
did not contain a request that the omitted motion be included in =
the=20
record, and we noted that a summary-judgment motion is not an item =
that=20
the rules require be included in the record. See Tex. R. =
App. P.=20
34.5(a), (b). For the first time in his =
second motion=20
for rehearing, Lewis advised this Court that he had requested and =
paid for=20
a supplemental clerk's record containing Nolan's no-evidence=20
summary-judgment motion in November 2004; that the district =
clerk's office=20
had mistakenly sent that supplemental record (and Lewis's request =
for=20
preparation for that record) to the Fourteenth Court of Appeals; =
and that=20
the Harris County Justice Information Management System had =
mistakenly=20
indicated that the supplemental clerk's record had been received =
in the=20
First Court of Appeals when it had not. Given that Lewis's request for =
a=20
supplemental record and the record itself were not sent to it, =
this Court=20
could not have known that a supplemental record had been requested =
soon=20
after Lewis's opening brief had been filed, had been made by the =
district=20
clerk's office, or had been filed in any court. Judicial economy =
is not=20
served by a party's not correcting or advising the Court of such =
an=20
omission at the earliest possibility--which, here, would have been =
after=20
the Court's original opinion noted the omission. Nonetheless, in =
the=20
interest of justice, and because the requested supplemental record =
was=20
inadvertently sent to the wrong court through no fault of Lewis's, =
we=20
consider the supplemental record--and Nolan's no-evidence =
summary-judgment=20
motion against Lewis's legal-malpractice claim--at this time. It =
is for=20
this reason that the Court issues this second supplemental =
memorandum=20
opinion.
In his second motion for =
rehearing, Lewis=20
raises many of the arguments concerning his legal-malpractice =
claim that=20
he did in his prior rehearing motion. However, he adds that, now =
that the=20
record contains Nolan's no-evidence motion against Lewis's=20
legal-malpractice claim, our stated bases for affirming the =
summary=20
judgment on that claim cannot stand. Specifically, Lewis argues =
that our=20
prior opinions "incorrectly assumed" that the grounds in that=20
summary-judgment motion "were broad" and "all-inclusive," whereas, =
in=20
reality, they were narrow. Lewis argues: The sole ground argued by =
. . .=20
Nolan in his traditional and no-evidence motion was that Lewis =
could not=20
establish causation because Lewis had confessed to owing the money =
on the=20
note he was sued for. . . . That was the absolute extent =
of=20
Nolan's argument regarding causation. Nothing more. Lewis concludes that the prior =
opinions=20
"dramatically widen[ed] the 'causation' ground asserted by Nolan =
beyond=20
the confession [of liability on the April 1987 note] argument =
asserted by=20
Nolan." Nolan's no-evidence =
summary-judgment=20
motion read, in pertinent part, as follows: Nolan contends that Nolan =
performed no=20
negligent act or omission that breached a duty that arose from the =
scope=20
of any alleged attorney-client relationship. Nolan further =
contends=20
that even if a negligent act or omission occurred, Lewis suffered =
no=20
harm. . . . In support of its summary =
judgment,=20
Federated Financial Services, Inc. ["FFS"] delineated =
. . .=20
excerpts from the oral deposition of Lewis, which proves that =
Lewis owed=20
[FFS] the full amount alleged by said party and that Lewis =
had=20
NO defenses to =
the claim=20
of [FFS]. . . . The . . . excerpts =
from the=20
oral deposition on [sic] Lewis not only proves up every element in =
the=20
cause of action asserted against Lewis by [FFS], [but] Lewis has =
also=20
testified under oath that he has no real defenses to the =
underlying oath=20
. . . . Since Lewis had no real defenses to the =
Note,=20
Lewis was liable to [FFS] as a matter of law. Nolan contends that in =
light of the=20
above-referenced testimony of Lewis, there exists no evidence that =
Lewis=20
received any injury or harm as a direct result of any negligent =
act or=20
omission of Nolan. . . . . (Bold and underlining in =
original;=20
italics added.) Nolan's summary-judgment motion attached evidence =
in=20
support. After reviewing Nolan's =
no-evidence=20
summary-judgment motion concerning Lewis's legal-malpractice =
claim, we=20
conclude that our prior opinions did not impermissibly widen the =
grounds=20
on which Nolan moved for judgment. Nolan's no-evidence =
summary-judgment=20
motion is not the model of clarity, but it appears to have =
contained both=20
traditional and no-evidence aspects, despite its title as a =
"no-evidence"=20
motion. For example, to the extent that the motion attached =
evidence and=20
argued that Nolan had proved that Lewis could not prevail "as a =
matter of=20
law," it was, in essence, a traditional motion for summary =
judgment,=20
redundant of Nolan's separately filed traditional summary-judgment =
motion.=20
However, to the extent that Nolan's motion argued, for example, =
that "in=20
light of the above-referenced testimony of Lewis, there exists =
no=20
evidence that Lewis received any injury or harm as a direct result =
of any=20
negligent act or omission of Nolan," the motion was a =
no-evidence=20
summary-judgment motion. (Emphasis added.) Lewis did not specially =
except=20
to any ambiguity that may have arisen because Nolan's no-evidence =
motion=20
contained, despite its title, some aspects of a traditional =
motion.=20
See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d =
337, 342=20
(Tex. 1993) ("An exception is required should a non-movant wish to =
complain on appeal that the grounds relied on by the movant were =
unclear=20
or ambiguous."); accord Franco v. Slavonic Mut. Fire Ins. =
Ass'n,=20
154 S.W.3d 777, 784-85 (Tex. App.--Houston [14th Dist.] 2004, no =
pet.)=20
(indicating that, to raise such challenge on appeal, party must =
specially=20
except to summary-judgment motion that it believes is too vague =
for party=20
to ascertain whether motion is traditional, no-evidence, or hybrid =
summary-judgment motion and must also obtain ruling on exception). =
As we stated in our first =
supplemental=20
opinion, a no-evidence summary-judgment motion may specify the =
element or=20
elements of the claim or defense that lacks evidentiary support as =
long as=20
the adverse party would have the burden of proof on that claim or =
defense=20
at trial. See Tex. R. Civ. P. 166a(i); Malcomson Rd. =
Util.=20
Dist. v. Newsom, 171 S.W.3d 257, 262 (Tex. App.--Houston [1st =
Dist.]=20
2005, pet. denied). Once a movant carries its burden of specifying =
the=20
element or elements of the claim or defense on which he seeks =
judgment,=20
the burden shifts to the non-movant to produce more than a =
scintilla of=20
evidence raising a genuine issue of material fact on the =
challenged=20
elements. Clarendon Nat'l Ins. Co. v. Thompson, 199 =
S.W.3d 482,=20
487 (Tex. App.--Houston [1st Dist.] 2006, no pet.). The =
no-evidence aspect=20
of Nolan's summary-judgment motion attacked the element of =
causation,=20
shifting the burden to Lewis to respond by producing some evidence =
of=20
causation. But Lewis had to produce =
legally=20
competent evidence to carry that burden. See Garcia v. Nat'l=20
Eligibility Express, Inc., 4 S.W.3d 887, 891 (Tex. =
App.--Houston [1st=20
Dist.] 1999, no pet.) (citing Yates v. Fisher, 988 S.W.2d =
730,=20
731 (Tex. 1998)). Our prior opinions explain why legally competent =
evidence of causation in this case meant expert evidence, which =
Lewis did=20
not produce. That reasoning, and the conclusion flowing from it, =
do not=20
change even if the focus is narrowed to the legal effect of =
Lewis's=20
deposition testimony in the collection suit: for the reasons set =
out in=20
our October 2006 opinion, the legal effect of Nolan's having =
failed to=20
respond to the summary-judgment motion that FFS filed based on =
that=20
deposition testimony, as well as the effect of Lewis's having paid =
off the=20
April 1987 note, is still outside the jury's common understanding. =
Although we have granted =
Lewis's second=20
rehearing motion, we deny the relief requested by Lewis therein.=20
(3) We deny=20
Nolan's motion for sanctions, styled "Motion for =
Damages." Tim=20
Taft Panel=20
consists of Justices Taft, Higley, and Bland.=20
1. Because we grant Lewis's second rehearing =
motion=20
and issue this supplemental opinion on rehearing, the motion for =
en banc=20
reconsideration is rendered moot. See Brookshire Bros., Inc. =
v.=20
Smith, 176 S.W.3d 30, 41 n.4 (Tex. App.--Houston [1st Dist.] =
2004,=20
pet. denied) (op. on reh'g), cert. denied, 127 S. Ct. 256 =
(2006).=20
2. This deposition testimony consisted of =
Lewis's=20
testimony that he had signed the note as a borrower, that he was =
suffering=20
from no legal incapacity or under duress at the time that he =
signed the=20
note, that no one misrepresented the note to him so that he did =
not know=20
what he signed, that the transaction was not illegal, and that he =
had not=20
discharged the note in bankruptcy.=20
3. We take this opportunity take make one =
correction=20
to our December 14, 2006 supplemental memorandum opinion. On page =
two of=20
that opinion, we stated, "Nolan argues that we erred in =
affirming=20
the no-evidence summary judgment rendered on his legal-malpractice =
claim=20
because the basis on which we affirmed the judgment--that Lewis =
did not=20
raise a genuine issue of material fact because he did not present =
expert=20
opinion testimony on causation--was not raised in the =
summary-judgment=20
motion in the trial court.