Date: 11-10-2010

Case Style: Stacey Stryker v. W. Fulton Broemer and Broemer & Associates, L.L.C

Case Number: 01-09-00317-CV

Judge: Evelyn V. Keyes

Court: Texas Court of Appeals, First District on appeal from the 190th District Court of Harris County

Plaintiff's Attorney: Otha T. Carpenter, Houston, Texas

Defendant's Attorney: W. Fulton Broemer, Broemer & Associates, L.L.C., Houston, Texas

Description: Appellant, Stacey Stryker, sued W. Fulton Broemer and Broemer & Associates, L.L.C. (collectively, “Broemer”), for legal malpractice arising out of Broemer’s representation of Stryker in a debt dispute with another law firm. Broemer moved for traditional and no-evidence summary judgment, contending that Stryker could not recover mental-anguish damages and could not present evidence that Broemer had either breached any duties owed to her or caused her damages. The trial court granted Broemer’s summary-judgment motion. In two issues on appeal, Stryker contends that the trial court erred in rendering summary judgment because (1) her affidavit raised a fact issue regarding causation and (2) she did not have adequate time for discovery due to the automatic stay imposed when Broemer filed for voluntary bankruptcy.

We affirm.

Background

Stryker hired Broemer to represent her in a dispute involving approximately $4,000 in legal fees owed to the Travis Law Firm (“Travis”). On September 11, 2006, Stryker sued Broemer for legal malpractice and gross negligence, alleging that Broemer breached the duty of care he owed to her by placing the firm’s interest before her own and by “needlessly pursuing litigation” that resulted in an adverse summary judgment against her. Stryker alleged that Broemer failed to resolve the fee dispute “in a manner conducive to the best interest of [Stryker],” but instead used her dispute as an opportunity to “fight” with Travis, whose attorneys were previously affiliated with Broemer. According to Stryker, Broemer billed her over $50,000 for his services and caused her to pay over $30,000 to Travis to avoid a writ of execution on the $4,000 debt. Broemer answered on October 20, 2006.

On November 1, 2006, the trial court entered a docket-control order, which set the end of the discovery period at July 20, 2007. The docket-control order also provided that “[s]ummary judgment motions not subject to an interlocutory appeal must be set by [June 20, 2007]. Rule 166a(i) motions may not be set before this date.”

On January 31, 2007, Broemer filed for voluntary bankruptcy, which imposed an automatic stay of the pending litigation. See 11 U.S.C. § 362 (2006). The bankruptcy court dismissed Broemer’s bankruptcy proceeding six months later on July 30, 2007, just after the end of the discovery period. The trial court did not issue a new docket-control order. Although the bankruptcy court dismissed Broemer’s bankruptcy proceeding on July 30, 2007, Stryker states that Broemer did not inform either the trial court or her of the dismissal and that, when her counsel discovered the dismissal, she moved on August 30, 2007 to retain the case.

On November 21, 2007, Broemer moved for both a traditional and a no-evidence summary judgment. In his traditional motion, Broemer contended that Stryker could not recover mental-anguish damages because Broemer’s alleged malpractice resulted solely in financial loss. In his no-evidence motion, Broemer argued that Stryker lacked evidence (1) that Broemer breached any duty owed to her and (2) that Broemer’s alleged breach of duty proximately caused damages to her. Broemer also contended that Stryker could produce no evidence (1) that she had suffered compensable mental-anguish damages, (2) that Broemer’s conduct, when viewed objectively from his standpoint, involved an extreme degree of risk, or (3) that Broemer had subjective awareness of the risk involved, but acted in conscious indifference to Stryker’s rights, safety, or welfare.

On December 10, 2007, Stryker responded and contended that fact issues existed regarding her claims for malpractice and gross negligence. Stryker submitted an affidavit as summary-judgment evidence. Stryker’s affidavit, in its entirety, reads as follows:

I have suffered mental anguish as a result of Broemer & Associates litigating a $4,201.42 debt dispute to over $25,020.78 in attorney fees despite my insistence on the firm settling the debt. As a result of this I have had to pay for a Release of Judgment Lien to prevent the Sheriff’s [sic] from seizing my assets. I paid two payments of $20,000.00 and $10,865.43 to obtain the release. I was so upset and angry and have suffered mental anguish as a result of such gross behavior by Broemer & Associates. The Release of Judgment Lien, Cashiers Check receipt for $10,865.43 and the Receipt for payment from the Travis Law Firm for $20,000.00 is incorporated by reference in this affidavit.



Aside from the release of lien, cashier’s check, and Travis’s payment receipt, Stryker submitted no further summary-judgment evidence.

Stryker simultaneously moved for a continuance on Broemer’s no-evidence summary-judgment motion on December 10, 2007. In the motion, Stryker stated that Broemer had not informed the court or her about the dismissal from the bankruptcy proceedings and that she had moved to retain the case on August 30. Stryker requested a new discovery scheduling order due to the bankruptcy stay. Stryker attached an affidavit to the motion, in which counsel averred solely that “[t]he information in this Motion for Continuance is true and correct to the best of my knowledge.” The trial court did not rule on this motion.

On February 11, 2008, Broemer re-filed his summary-judgment motion and set the motion for submission on March 10. Stryker did not re-file or amend her summary-judgment response, but instead only amended her motion for continuance on February 15. The amended motion clarified that the trial court’s docket-control order originally had set the end of the discovery period at July 20, 2007 and that the bankruptcy court had dismissed Broemer’s bankruptcy proceeding on July 30, 2007, and, thus, “[t]his matter was stayed during the discovery period in this Court’s Docket Control Order.” In her motion, Stryker did not identify either the discovery that she had already completed or the necessary discovery that she was unable to obtain before submission of the summary-judgment motion. Stryker did not argue that the time that she had to conduct discovery was inadequate.

Broemer responded that Stryker had had sufficient time to conduct discovery and, therefore, consideration of his summary-judgment motion should not be continued. Broemer acknowledged the effect of the automatic stay, which stayed the litigation for six months, but he also noted that Stryker had a total of eight months between Broemer’s original answer on October 20, 2006 and his response to her February 15, 2008 motion for continuance in which to conduct discovery. During these eight months, the case was pending in the trial court and no stay existed. Specifically, Broemer answered Stryker’s petition on October 20, 2006, and he did not file for bankruptcy until January 31, 2007. The bankruptcy court lifted the stay on July 30, 2007, and Stryker discovered that it had been lifted and moved to retain the case on August 30, 2007. Broemer then first moved for summary judgment on November 21, 2007. Stryker responded and moved for a continuance. On February 11, 2008, Broemer re-filed his summary judgment motion. Stryker again moved for a continuance on February 15, and Broemer responded to that motion on February 18. According to Broemer, Stryker failed to conduct discovery during any of these time periods, nor did she respond to Broemer’s outstanding discovery requests.

The trial court denied Stryker’s motion for continuance and granted Broemer’s summary judgment motion, without specifying the grounds on which it based its ruling.[1]

Standard of Review

We review de novo the trial court’s ruling on a summary-judgment motion. Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). After an adequate time for discovery, a party may move for no-evidence summary judgment on the ground that no evidence exists of one or more essential elements of a claim on which the adverse party bears the burden of proof at trial. Tex. R. Civ. P. 166a(i); see Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The burden then shifts to the nonmovant to produce evidence raising a genuine issue of material fact on the elements specified in the motion. Tex. R. Civ. P. 166a(i); Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). The trial court must grant the motion unless the nonmovant presents more than a scintilla of evidence raising a fact issue on the challenged elements. Flameout Design & Fabrication, 994 S.W.2d at 834; Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (“More than a scintilla of evidence exists when the evidence supporting the finding, as a whole, ‘rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.’” (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499 (Tex. 1995))). To determine if the nonmovant raises a fact issue, we review the evidence in the light most favorable to the nonmovant, crediting favorable evidence if reasonable jurors could do so, and disregarding contrary evidence unless reasonable jurors could not. See Fielding, 289 S.W.3d at 848 (citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)).

Evidence of Causation

In her first issue, Stryker contends that the trial court erred in granting Broemer’s summary-judgment motion because her affidavit raised a fact issue on causation by stating that Broemer litigated her fee dispute with Travis “despite [appellant’s] insistence on the firm settling the debt.” Broemer moved for no-evidence summary judgment on appellant’s legal-malpractice claim on two bases: (1) appellant could produce no evidence that Broemer breached a duty owed to her, and (2) appellant could produce no evidence that any alleged breach proximately caused her damages.

When a summary judgment does not state the specific grounds on which the trial court rendered it, the appellant must show that each of the independent arguments alleged in the motion is insufficient to support the judgment. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2005) (citing Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996)); Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 290 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A general issue or point of error, such as a statement that “the trial court erred by granting the motion for summary judgment,” sufficiently preserves error for all possible grounds on which the trial court should have denied summary judgment. Smith, 7 S.W.3d at 290 (citing Plexichem Int’l, Inc. v. Harris County Appraisal Dist., 922 S.W.2d 903, 930–31 (Tex. 1996)). In the absence of a general issue or point of error, the appellant must raise separate issues or points of error attacking each independent ground alleged in the motion. See id.; Zapata v. ACF Indus., Inc., 43 S.W.3d 584, 586 (Tex. App.—Houston [1st Dist.] 2001, no pet.). If the trial court may have rendered summary judgment, either properly or improperly, on a ground not challenged on appeal, we must affirm the judgment. McCoy v. Rogers, 240 S.W.3d 267, 271 (Tex. App.—Houston [1st Dist.] 2007, pet. denied); see also Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d 894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (stating, “Ellis challenges only the limitations issue on appeal. The summary judgment, however, may have been rendered, properly or improperly, on the unchallenged ground regarding whether this is actually a breach of contract action. Accordingly, we need not address the limitations argument.”).

Here, the trial court did not specify the grounds on which it based its summary judgment. In his summary-judgment motion, Broemer raised two independent bases for granting summary judgment on appellant’s legal-malpractice claim: (1) no evidence of breach of duty and (2) no evidence of causation. On appeal, Stryker challenges the trial court’s summary judgment solely on the ground that her affidavit sufficiently raised a fact issue on causation. Stryker has not asserted a general point of error that the trial court erred in rendering summary judgment against her.[2] See Plexichem, 922 S.W.2d at 931; Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970).

Because the trial court may have rendered summary judgment on the unchallenged ground regarding no evidence of breach of duty, we may affirm the summary judgment on the unchallenged ground—no evidence of breach of duty—and we need not address Stryker’s contention that her affidavit sufficiently raised a fact issue on causation. See Ellis, 68 S.W.3d at 898; Zapata, 43 S.W.3d at 586. However, even if we were to reach the merits of Stryker’s first issue, we would conclude that her summary-judgment affidavit did not raise a fact issue on causation.

To prevail on a claim for legal malpractice, a plaintiff must demonstrate that (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff’s injuries, and (4) damages occurred. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004) (quoting Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995)). When the plaintiff alleges that a failure on the attorney’s part caused an adverse result in prior litigation, the plaintiff must produce evidence from which a jury may reasonably infer that the attorney’s conduct caused the damages alleged. Id. (citing Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181 (Tex. 1995)). The trier of fact must have “some basis for understanding the causal link between the attorney’s negligence and the client’s harm.” Id. at 119. Breach of the standard of care and causation are separate inquiries, “and an abundance of evidence as to one cannot substitute for a deficiency of evidence as to the other.” Id.

Broemer contends that Stryker failed to raise a fact issue regarding causation because she required expert testimony to establish causation and she submitted only her own affidavit as summary-judgment evidence. Although we note that a plaintiff in a legal-malpractice suit does not always have to present expert testimony to establish causation, we decline to address whether, under these facts, Stryker needed expert testimony, because her lay testimony in her affidavit fails to raise a fact issue on causation. See id. at 119 (acknowledging that, in some legal-malpractice cases, client’s testimony can establish causal link between attorney’s negligence and client’s harm).

Affidavits containing conclusory statements unsupported by facts are not competent summary-judgment evidence. Prime Prods, Inc. v. S.S.I. Plastics, Inc., 97 S.W.3d 631, 637 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (quoting Aldridge v. De Los Santos, 878 S.W.2d 288, 296 (Tex. App.—Corpus Christi 1994, writ dism’d w.o.j.)); Rizkallah v. Conner, 952 S.W.2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (“A conclusory statement is one that does not provide the underlying facts to support the conclusion.”). An affidavit opposing a summary judgment motion must be factual—conclusions of the affiant lack probative value. Prime Prods., 97 S.W.3d at 637; see also Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (“[Conclusory affidavits are neither] credible nor susceptible to being readily controverted.”).

In her affidavit, Stryker averred the following:

I have suffered mental anguish as a result of Broemer & Associates litigating a $4,201.42 debt dispute to over $25,020.78 in attorney fees despite my insistence on the firm settling the debt. As a result of this I have had to pay for a Release of Judgment Lien to prevent the Sheriff’s [sic] from seizing my assets. I paid two payments of $20,000.00 and $10,865.43 to obtain the release. I was so upset and angry and have suffered mental anguish as a result of such gross behavior by Broemer & Associates. The Release of Judgment Lien, Cashiers Check receipt for $10,865.43 and the Receipt for payment from the Travis Law Firm for $20,000.00 is incorporated by reference in this affidavit.



Stryker averred that she insisted that Broemer settle the debt she owed to Travis, but she provided no evidence of her specific communications with Broemer in which she requested that he settle with Travis, nor did she present evidence that Travis was willing and would have settled the dispute without incurring over $25,000 in attorney’s fees but for Broemer’s continued pursuit of litigation instead of settlement. Thus, Stryker’s conclusion that Broemer caused her mental anguish by disregarding her wishes for settlement lacks factual support in the record. We therefore hold that Stryker’s affidavit is conclusory and is not competent summary-judgment evidence to establish causation. Because Stryker presented no other evidence to support her contention that Broemer’s conduct caused her to suffer damages, we conclude that she failed to raise a fact issue on causation and the trial court properly granted Broemer’s no-evidence summary judgment motion on this basis.[3]

We overrule Stryker’s first issue.

Denial of Motion for Continuance

In her second issue, Stryker contends that the trial court erred in denying her motion for continuance because, due to the automatic stay imposed when Broemer filed for bankruptcy, Broemer moved for no-evidence summary judgment before an adequate time for discovery had passed.

A party may move for no-evidence summary judgment only “[a]fter adequate time for discovery.” Tex. R. Civ. P. 166a(i); Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.—Houston [14th Dist.] 2000, pet. denied). Rule 166a(i) does not require that discovery be completed before a party may move for no-evidence summary judgment; the trial court may grant such a motion after “adequate time” for discovery. See Madison v. Williamson, 241 S.W.3d 145, 155 (Tex. App.—Houston [1st Dist.] 2007, pet. denied); In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.—Texarkana 1998, orig. proceeding). According to the comment to Rule 166a(i), “[a] discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion under paragraph (i) would be permitted after the period but not before.” Tex. R. Civ. P. 166a(i) cmt. (emphasis added); McInnis v. Mallia, 261 S.W.3d 197, 200 (Tex. App.—Houston [14th Dist.] 2008, no pet.).

When determining whether adequate time for discovery has elapsed, we consider: (1) the nature of the cause of action; (2) the nature of the evidence necessary to controvert the no-evidence motion; (3) the length of time the case has been active in the trial court; (4) the amount of time the no-evidence motion has been on file; (5) whether the movant has requested stricter time deadlines for discovery; (6) the amount of discovery that has already taken place; and (7) whether the discovery deadlines that are in place are specific or vague. Madison, 241 S.W.3d at 155; Fuqua, 29 S.W.3d at 145 (citing Dickson Constr., Inc. v. Fid. & Deposit Co., 5 S.W.3d 353, 356 (Tex. App.—Texarkana 1999, pet. denied)). When a party moves for no-evidence summary judgment before the end of the specified discovery period, “our principal task is to determine if [the] record provides support for the trial court’s consideration of a no-evidence summary judgment motion” before the end of the designated discovery time frame. McInnis, 261 S.W.3d at 200. The “pertinent date for this inquiry is the final date on which the no-evidence motion is presented to the trial court for ruling.” Id. We review a trial court’s determination that there has been an adequate time for discovery for an abuse of discretion. Fuqua, 29 S.W.3d at 145. A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner “without reference to any guiding rules or principles.” Madison, 241 S.W.3d at 155 (quoting Garcia v. Martinez, 988 S.W.2d 219, 222 (Tex. 1999)).

Although Stryker contends that the automatic stay “prevented discovery” and the pendency of the bankruptcy proceeding “exceeded the discovery date in the trial court’s Docket Control Order,” she does not address any of the factors that we consider when determining adequate time.[4] Stryker does not contend that the time during which the case was actively pending in the trial court was insufficient to conduct discovery. She does not argue that her case is complex, nor does she state the discovery she needed to obtain to controvert Broemer’s no-evidence motion. Stryker does not state what discovery she had already conducted, nor does she state the additional discovery yet to be completed and why she could not obtain this discovery before submission of the summary judgment motion. See Brown v. Brown, 145 S.W.3d 745, 750 (Tex. App.—Dallas 2004, pet. denied) (considering appellant’s failure to move for enlargement of discovery period until several weeks after no-evidence motion filed and failure to explain what further discovery he needed in affirming denial of motion for continuance). Beyond stating that the stay “prevented discovery,” she does not argue why the time she did have to conduct discovery was inadequate.

Stryker could have controverted Broemer’s no-evidence motion with a more detailed affidavit of her own setting out the factual basis of this case, as well as with an affidavit from an expert stating the proper standard of care and opining how Broemer’s conduct breached that standard and caused Stryker to suffer damages. Stryker could have easily obtained both of these affidavits during the time her suit was actively pending in the trial court, either before Broemer filed for bankruptcy or after the bankruptcy court lifted the stay. See McInnis, 261 S.W.3d at 202 (“Generally, a trial court may presume that plaintiffs have investigated their cases prior to filing suit.” (citing Carter v. MacFadyen, 93 S.W.3d 307, 311 (Tex. App.—Houston [14th Dist.] 2002, pet. denied))).

In his response to Stryker’s motion for continuance, Broemer argued that the trial court should not grant the motion, in part because Stryker had not conducted any discovery, and she had not responded to Broemer’s outstanding discovery requests. Failure of a litigant to diligently use the discovery rules does not authorize the granting of a continuance. State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1988); Brown, 145 S.W.3d at 750 (noting that “[t]he record does not show appellant conducted any discovery during the nine months preceding the filing of the motion”); see also Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (stating that, among other factors, appellate courts consider whether party seeking continuance exercised due diligence to obtain sought-after discovery when determining if trial court abused its discretion in denying motion). Based on this record, we hold that the trial court did not abuse its discretion in impliedly determining that an adequate time for discovery had elapsed and thus the trial court properly denied Stryker’s motion for continuance. See Madison, 241 S.W.3d at 155–56; Fuqua, 29 S.W.3d at 145.

We therefore hold that Stryker has failed to demonstrate that the trial court abused its discretion in denying her motion for continuance. See Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d 899, 903 (Tex. App.—Dallas 2006, no pet.) (“[A]ppellant has made no effort to discuss any of the relevant factors. She does not state how much time she had for discovery, what discovery was completed, what further discovery was needed or otherwise argue why the time was not adequate. We will not make appellant’s arguments for her.”); see also Madison, 241 S.W.3d at 155 (considering fact that appellant “made no effort to specify the additional evidence she needed to respond to the motion, or the reason she could not obtain it during the discovery period” when determining appellant had adequate time for discovery).

We overrule Stryker’s second issue.

* * *

See: http://www.1stcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=88431

Outcome: We hold that the trial court correctly granted Broemer’s summary-judgment motion and denied Stryker’s motion for continuance. We affirm the judgment of the trial court.

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