§ ABIE WOLF, No. 08-19-00147-CV § Appellant, Appeal from the § v. 448th District Court § SALVADOR C. RAMIREZ, of El Paso County, Texas § Appellee. (TC# 2018DCV1155) §
OPINION
This appeal is one part of a multi-case saga stemming from the disputed ownership of a
motor home. Appellant Abie Wolf lost in a jury trial in his quest to assert ownership over a certain
recreational vehicle owned by Garry and Bonnie Starr. With a six-figure judgment rendered
against him, Appellant filed for Chapter 13 bankruptcy. After his Chapter 13 case was dismissed,
he sought the advice of another bankruptcy attorney, Appellee Salvador Ramirez. Appellee
subsequently filed Chapter 7 bankruptcy on Appellant’s behalf, but the bankruptcy proceedings
did not go how either gentleman anticipated. Appellant then filed a legal malpractice suit against
Appellee, alleging Appellee never had authority to file the bankruptcy on his behalf, and that he
conspired against Appellant with other attorneys in the bankruptcy to deprive him and his family
of money and property. Appellee moved to dismiss Appellant’s claims by summary judgment,
arguing Appellant had no evidence to support his various causes of action, and producing a number
of documents disproving one or more elements of each of Appellant’s claims against him. The trial court granted Appellee’s motion for summary judgment, and Appellant filed this appeal.
BACKGROUND
Factual Background
Garry and Bonnie Starr obtained a judgment of approximately $400,000 against Appellant
after filing suit against him for fraud and other causes of action related to his refusal to turn over
possession of their motor home after he towed it from Van Horn to El Paso.
According to Appellee, Appellant originally contacted him in May or June of 2013 to file
a Chapter 7 bankruptcy on his behalf. Appellant previously filed for Chapter 13 bankruptcy twice
through another attorney, both of which were dismissed. Appellant’s most recent Chapter 13
bankruptcy was dismissed on September 20, 2013. The bankruptcy court in his most recent
Chapter 13 bankruptcy prescribed a two-year moratorium on refiling for any type of bankruptcy.
Accordingly, Appellee claims he informed Appellant he would not be able to provide him with
any type of bankruptcy assistance until the period ended in September of 2015. In the months
leading up to the end of the proscribed period, Appellee claims he was in close contact with
Appellant preparing the paperwork to be filed once he was able.
The moratorium ended on September 20, 2015. On or about September 22, 2015, Appellee
filed a Chapter 7 bankruptcy petition on Appellant’s behalf for, among other things, the Starrs’
judgment against Appellant. Appellant claims he never authorized Appellee to file the petition on
Appellant’s behalf, and alleges he incurred significant damages as a result.
Procedural History
Appellant filed suit against Appellee in Galveston County on September 18, 2017.
Appellant’s claims against Appellee are for legal malpractice, breach of fiduciary duties, and civil
2 conspiracy. 1 Specifically, Appellant alleges Appellee: (a) failed to follow 11 U.S.C. § § 528(a)
and 101(4)(A); (b) filed Appellant’s bankruptcy petition four months after Appellant signed it and
did not follow Appellant’s alleged instructions not to file it; (c) filed for bankruptcy on behalf of
Appellant for a non-dischargeable debt; (d) did not object to the proof of claim filed in the
bankruptcy; (e) interfered with Appellant’s daughter’s case in federal court; (f) represented
Appellant without Appellant’s knowledge or permission in the adversary proceeding associated
with Appellant’s bankruptcy case; (g) filed incorrect Schedule F forms in the bankruptcy; and (h)
conspired with other lawyers involved in the bankruptcy to deprive Appellant and his family
members of their money and properties. According to Appellant’s complaint, all of the foregoing
alleged acts and omissions form the bases for his causes of action for legal malpractice, breach of
fiduciary duty, and conspiracy.
The case was transferred from Galveston County to El Paso County. After several transfers
among the district courts of El Paso, it landed in the 448th District Court on June 13, 2018.
Presiding Judge of the Sixth Administrative Region, Stephen Ables, assigned himself to preside
over the case after Judge Sergio Enriquez voluntarily recused himself.
Appellee’s Motion for Summary Judgment
On March 22, 2019, Appellee filed his motion for summary judgment. In the motion,
Appellee states no evidence supports Appellant’s claims he was instructed by Appellant not to file
the Chapter 7 bankruptcy petition, and the undisputed evidence proves Appellant knew about the
Chapter 7 petition and it was filed at his request. In support, Appellee attached a certified copy of
the order dismissing Appellant’s Chapter 13 bankruptcy petition on September 20, 2013, and
prescribing a two-year injunction against refiling; a certified copy of the Chapter 7 bankruptcy
1 Appellant also states claims of professional liability and professional negligence, which fall under the purview of legal malpractice.
3 petition he filed for Appellant two days after expiration of the two-year injunction; certified copies
of amendments to the bankruptcy petition signed by Appellant; and other documents filed in the
bankruptcy proceeding bearing Appellant’s signature. He also attached affidavits from two of his
legal assistants describing their interactions with Appellant. He provided the transcript of the
proceedings in the creditors meeting in Appellant’s bankruptcy wherein Appellant admits under
oath that the petition in bankruptcy was his, he had read it in full, and it was accurate.
Appellee alleges there is no evidence supporting Appellant’s contention that he conspired
with other lawyers to deprive Appellant or his family of money and property.
Appellee likewise argues there is no evidence he did not comply with the stated sections
of the Bankruptcy Code, which require those offering bankruptcy assistance to provide their clients
with contracts, inform the clients what services will be provided and what fees are charged for
those services. In support of this no-evidence point, Appellee attached the information provided to
Appellant regarding Appellee’s provision of bankruptcy services as evidence of his compliance
with these provisions of the Bankruptcy Code.
Appellee’s motion claims no evidence supports the contention that Appellee knew or
should have known the state court judgment against Appellant was non-dischargeable. Appellee
claims there is no evidence supporting Appellant’s claim that he failed to object to a proof of claim
filed by the Starrs that purportedly had Appellant’s forged signature on it, citing to a Fifth Circuit
Court of Appeals opinion indicating lack of merit supporting this claim by Appellant, which was
originally offered in the bankruptcy proceeding and later appealed to the Fifth Circuit by
Appellant.
Finally, Appellee argues there is no evidence supporting the claim that he interfered in
Appellant’s daughter’s lawsuit.
4 Appellant’s Response to Motion for Summary Judgment
Appellant filed a “Cross Motion for Summary Judgment” on April 24, 2019, which he
represented to the trial court was his response to Appellee’s motion.
In responding to the grounds for summary judgment put forward by Appellee, Appellant
argued as follows:
• Because Appellant signed the Chapter 7 bankruptcy petition on June 22, 2015, but
not filed until September 22, 2015, Appellee filed the petition without Appellant’s consent and
against his express wishes.
• Appellant claims he was “dragged” to the meeting with the bankruptcy trustee
against his wishes and was told he had no choice but to sign the amendments to the Schedule F
forms. He also claims Appellee incorrectly prepared the Schedule F forms, which is why the
bankruptcy court denied them and Appellee had to re-file them a second time.
• Appellee made Appellant sign an affidavit regarding his income tax returns in lieu
of providing the actual returns to the bankruptcy court, without explaining to him what the
document was.
• Including the Starrs’ judgment against Appellant to the list of creditors filed with
the bankruptcy court is proof Appellee was conspiring with the Starrs’ attorney, Juan Carlos Garay.
• Gisela Sarellano’s affidavit was made in bad faith and is not based on her personal
knowledge.
• Appellant’s bankruptcy dismissal is the result of Appellee conspiring with Juan
Carlos Garay and the trial court judge in the Starrs’ case against him so they could collect money
against him.
• The affidavit of Armida Ramirez was made in bad faith.
5 • Appellee conspired with the Chapter 7 Bankruptcy Trustee and the United States
Trustee to get the bankruptcy discharged.
• Appellant told Appellee not to sign an agreed order regarding disposition of
property owned by his ex-wife and Appellee did it anyway.
• The affidavit made by Gabe Perez, the attorney representing the Starrs as creditors
in Appellant’s bankruptcy case, shows Appellee conspired with Perez because Perez was aware of
the contents of Appellant’s bankruptcy schedules. Appellant also claims Perez’s affidavit is proof
of Perez’s collusion with the bankruptcy trustees.
Appellant included an affidavit verifying the contents of his motion for summary judgment,
but no additional affidavits. As exhibits to his response, he attached pleadings and other filed
documents from the instant case, a copy of the text of 11 U.S.C. § 528, the petition for bankruptcy
filed on his behalf by Appellee, the transcript from the meeting of creditors discussed in Appellee’s
motion and Appellant’s response, the Texas title Appellant obtained for the motor home at issue
with the Starrs, a copy of the first page of the online grievance form he completed against Appellee,
a copy of the notice of withdrawal filed by Appellee in the bankruptcy adversarial proceeding, a
letter regarding Appellee not being able to represent Appellant in an appeal of the judgment of the
bankruptcy court, and other documents filed in cases in which Appellant has been a party or
otherwise involved.
Following a hearing on May 2, 2019, the trial court granted Appellee’s motion on May 4,
2019. Appellant timely filed this appeal.
DISCUSSION
Appellant raises fifteen issues on appeal, which we have consolidated into the following
five subsets:
6 Part One: In his first and ninth issues, Appellant states the trial court erred in considering
Appellee’s affidavit in support of his motion for summary judgment, at least in part because it did
not comply with Rule 166a(h).
Part Two: In his second, fourth, and seventh issues, Appellant claims the trial court
committed error in granting Appellee’s motion for summary judgment on no-evidence grounds
because (1) the motion was not a no-evidence motion, (2) Appellee failed to move for summary
judgment on each of Appellant’s causes of action, and (3) Appellee failed to state with specificity
which elements he alleged Appellant had no evidence of.
Part Three: In his fifth, sixth, eighth, and fourteenth issues, Appellant argues a material
issue of fact exists to preclude granting summary judgment on traditional grounds.
Part Four: In his tenth, eleventh, twelfth, thirteenth, and fifteenth issues, Appellant states
the trial court erred in not considering his response to Appellee’s motion for summary judgment
or the evidence attached thereto.
Part Five: In his third issue, Appellant posits the trial court’s judgment should be reversed
and remanded because it does not dispose of all of the claims in his lawsuit.
We must decide the nature of Appellee’s motion to apply the proper summary judgment
standard and the order in which to address Appellant’s issues. See Rodgers v. Weatherspoon, 141
S.W.3d 342, 344 (Tex.App.--Dallas 2004, no pet.). The “nature of a motion is determined by its
substance,” not its title. In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008). The same
is true in determining whether a motion for summary judgment is no-evidence or traditional. See
Rodgers, 141 S.W.3d at 344 (citing State Bar v. Heard, 603 S.W.2d 829, 833 (Tex. 1980)). When
both parties offer evidence at the summary judgment phase, the ultimate question is whether a fact
issue exists. Neely v. Wilson, 418 S.W.3d 52, 59 (Tex. 2013), superceded by statute on unrelated
7 issue as stated in Scripps NP Operating, LLC v. Carter, 573 S.W.3d 781, 791 (Tex. 2019)(citing
Buck v. Palmer, 381 S.W.3d 525, 527 & n.2 (Tex. 2012)).
Although not titled as such, Appellee’s motion is a hybrid motion, stating repeatedly that
the undisputed evidence shows no disputed issues of fact and Appellee is entitled to judgment as
a matter of law, while also arguing that no evidence exists to prove one or more elements of
Appellant’s claims. Where an appellate court is presented with summary judgment on both no-
evidence and traditional grounds, it looks first to whether the no-evidence motion supports the
judgment. See First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex.
2017)(citing Fort Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). Accordingly, we will
look first at whether Appellee’s no-evidence motion supports the trial court’s judgment, and
proceed with the remaining issues as necessary. However, before we decide the merits of
Appellee’s summary judgment arguments, we first analyze Appellant’s arguments that the trial
court improperly considered Appellee’s affidavits in support of his motion.
Part One: Whether the trial court erred in considering affidavits in support of Appellee’s motion for summary judgment
In his first and ninth issues, Appellant states the trial court erred in considering the
affidavits in support of Appellee’s motion for summary judgment, because they violate Rule
166a(h) regarding summary judgment affidavits made in bad faith. Appellee does not explicitly
address this point in his brief.
Whether evidence is admissible in a summary judgment proceeding is the same
determination we are called on to make concerning evidence at trial. See Houle v. Capital One
Bank (USA) N.A., 570 S.W.3d 364, 369 (Tex.App.--El Paso 2018, pet. denied)(citing Seim v.
Allstate Texas Lloyds, 551 S.W.3d 161, 163-64 (Tex. 2018)). “The admission or exclusion of
evidence rests in the sound discretion of the trial court.” Id. (citing Interstate Northborough
8 Partnership v. State, 66 S.W.3d 213, 220 (Tex. 2001)). For summary judgment evidence to be
admissible, it must be in a form that is also admissible at trial. Id. (citing TEX.R.CIV.P. 166a(f)).
Whether a trial court properly admitted or excluded summary judgment evidence is
reviewed under an abuse of discretion standard. Id.
The test for abuse of discretion is not whether, in our opinion, the facts present an appropriate case for the trial court’s actions. Rather, it is a question of whether the trial court acted without reference to any guiding rules and principles. In other words, we must determine whether the court’s rulings were arbitrary or unreasonable. The mere fact that a trial court may decide a matter within its discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. [Internal citations omitted].
Houle, 570 S.W.3d at 369.
In Appellant’s response to Appellee’s motion for summary judgment, he objects to
the affidavits filed by Appellee in support of Appellee’s motion for summary judgment,
claiming they were filed in bad faith and thus violate Rule 166a(h). Rule 166a(h) states,
Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused him to incur, including reasonable attorney’s fees, and any offending party or attorney may be adjudged guilty of contempt.
TEX.R.CIV.P. 166a(h). Other than pointing out one of the affidavits is made by Appellee’s wife,
who is also Appellee’s legal assistant according to the affidavit, Appellant is not specific about
why he believes the affidavits were made in bad faith, nor does he offer any controverting
affidavits or other controverting proof that their contents are incorrect, much less made in bad
faith.
Nothing in the clerk’s record indicates Appellant’s objection was ruled upon by the trial
court in writing. Furthermore, the record of the arguments at the hearing on the motion for
9 summary judgment do not include even a verbal ruling on Appellant’s objections to the affidavits
in question. “The rules of error preservation applicable during trial also apply in summary-
judgment proceedings.” Houle, 570 S.W.3d at 369. (citing TEX.R.APP.P. 33.1(a)). “[T]o preserve
a complaint for appellate review: (1) a party must complain to the trial court by way of a timely
request, objection, or motion; and (2) the trial court must rule or refuse to rule on the request,
objection, or motion.” Id. (citing TEX.R.APP.P. 33.1(a)). Where a party does not obtain a written
ruling on the objections “at, before, or very near the time the trial court rules on the motion for
summary judgment,” the objections are waived. See id. (citing TEX.R.APP.P. 33.1(a)). Although
purely substantive defects in an affidavit may be raised for the first time on appeal, defects based
purely on form must be preserved at the trial court level. Id. at 369-70. Substantive defects are
those where the affidavit is “obviously based on hearsay.” See Youngstown Sheet & Tube Co. v.
Penn, 363 S.W.2d 230, 234 (Tex. 1962).
In examining the three affidavits offered by Appellee in support of his motion for summary
judgment, we find the following:
The first affidavit is from Gisela Sarellano, one of Appellee’s legal assistants during the
time period that Appellant sought to file bankruptcy through Appellee. Although some of the
statements could be based on hearsay, such as Ms. Sarellano’s testimony regarding what Appellant
told Appellee, it is equally likely that Ms. Sarellano witnessed the conversations at Appellee’s
office and is recalling what she witnessed. She also testifies about comments Appellant made to
her specifically. Statements made by a party and offered by the opposing party against him are not
hearsay. See TEX.R.EVID. 801(e)(2)(A). Accordingly, we do not find this affidavit is clearly based
on hearsay statements nor is there any evidence to support Appellant’s claim it was made in bad
10 The second affidavit is from Armida L. Ramirez, another legal assistant to Appellee during
the time period Appellant sought his services. Her affidavit is similar to Sarellano’s in its
description of Appellant’s behavior in the office toward Appellee, as well as offering testimony
about her personal interactions with Appellant. Some of these personal interactions include her
duties in preparing the requisite bankruptcy paperwork for Appellant’s signature and her
witnessing him signing certain documents and paying requested fees. Contrary to Appellant’s
contentions, it appears Ms. Ramirez’s affidavit is based upon personal knowledge and not hearsay.
See TEX.R.EVID. 801(e)(2)(A). Moreover, contrary to Appellant’s suggestion, whether Ms.
Ramirez is Appellee’s wife does not have any bearing on whether she is also his legal assistant,
nor does it affect her ability to opine on interactions with Appellant she personally witnessed.
Accordingly, we do not find this affidavit is clearly based on hearsay nor is there any indication it
was made in bad faith.
The third and final affidavit is from Gabe Perez, an attorney who represented the Starrs as
creditors in Appellant’s bankruptcy proceeding. Mr. Perez’s affidavit consists solely of his
recollection of the meeting of the creditors in Appellant’s Chapter 7 bankruptcy case, and a brief
discussion of his representation of the Starrs. He also offers an opinion refuting Appellant’s
allegations of conspiracy and collusion purportedly between Appellee, the Chapter 7 bankruptcy
trustee’s attorney, himself, and his partner. None of the affidavit’s contents appear based on
hearsay, nor has Appellant offered any evidence it was made in bad faith.
Because each of the three affidavits are not apparently based on hearsay, nor is any
evidence offered by Appellant to controvert the contents of the three affidavits or to support his
claim they were made in bad faith, it appears the objections made by Appellant are, at most, purely
formal. See Houle, 570 S.W.3d at 370. We therefore hold Appellant waived his right to object to
11 these defects when he failed to secure a written ruling from the trial court regarding their
admissibility in the summary judgment proceedings. Appellant’s first and ninth issues are
overruled.
Part Two: Whether the trial court erred in granting Appellee’s motion for summary judgment on no-evidence grounds
In his second, fourth, and seventh issues, Appellant claims the trial court committed error
in granting Appellee’s motion for summary judgment on no-evidence grounds when (1) the motion
was not a no-evidence motion, (2) he failed to move for summary judgment on any of the claims
asserted by Appellant, and (3) Appellee failed to state with specificity which elements he alleged
Appellant had no evidence of.
Summary judgments are reviewed de novo. Houle, 570 S.W.3d at 368. To prevail on a no-
evidence motion for summary judgment, the same legal sufficiency standard is applied as that of
a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003)(citing
Barraza v. Eureka Co., 25 S.W.3d 225, 231 (Tex.App.--El Paso 2000, pet. denied). Evidence is
reviewed in the light most favorable to the non-movant, disregarding all evidence and inferences
to the contrary. Id. at 751. A no-evidence motion is granted “when (a) there is a complete absence
of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight
to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is
no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of a vital
fact.” Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). Where
a respondent offers “more than a scintilla of probative evidence to raise a genuine issue of material
fact[,]” a no-evidence summary judgment may not be granted. Id. (citing TEX.R.CIV.P. 166a(i);
Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506 (Tex. 2002)). “[W]hen the evidence is ‘so
weak as to do no more than create a mere surmise or suspicion’ of a fact[,]’” the respondent has
12 failed to show more than a scintilla of evidence. King Ranch, Inc., 118 S.W.3d at 751. In contrast,
“[m]ore than a scintilla of evidence exists when the evidence ‘rises to a level that would enable
reasonable and fair-minded people to differ in their conclusions.’” Id. (citing Merrell Dow
Pharms., Inc., 953 S.W.2d at 711).
Having already determined Appellee’s motion is a hybrid motion, containing both no-
evidence and traditional grounds, we overrule Appellant’s second issue. See Rodgers, 141 S.W.3d
at 344.
Next, we examine Appellant’s fourth and seventh issues and whether Appellee moved for
summary judgment on any of Appellant’s claims; and, if so, which elements of which claims were
addressed by Appellee’s motion. In his brief, Appellant argues Appellee’s motion “fails to move
for summary judgment on any cause of action or claims asserted by [Appellant] in his original
petition. A good example of this omission . . . is his decision to overlook the malpractice claim
asserted by Appellant[.] . . . Ramirez also fails to address the material facts underlying this
malpractice claim[.]” Appellant goes on to reiterate the alleged facts underlying the malpractice,
claiming they illustrate “a clear case of malpractice” which Appellee’s motion purportedly fails to
address. Appellee, in his brief, counters that his motion and the evidence attached thereto disprove
all of the elements of each of Appellant’s claims against him.
Movants for no-evidence summary judgment must state specifically which elements of a
claim or defense they allege the party bearing the burden of proof has failed to satisfy. See
TEX.R.CIV.P. 166a(i); KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015). No-evidence
motions cannot be conclusory or state simply that the claimant has failed to produce evidence in
support of the claim or defense. Tempte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
The purpose of the specificity required by the rule is to provide fair notice to the claimant for
13 purposes of opposing the motion. Id. at 311. When specific elements of a claim are not challenged,
the motion should be treated as a traditional motion for summary judgment, which places the
burden on the movant rather than the nonmovant. See Michael v. Dyke, 41 S.W.3d 746, 751-52
(Tex.App.--Corpus Christi 2001, no pet.).
Appellant asserted causes of action against Appellee for legal malpractice, breach of
fiduciary duties, and civil conspiracy. Appellee’s motion moves for summary judgment on “all
matters raised in [Appellant’s] original petition,” but only specifically identifies civil conspiracy
and its elements properly for purposes of satisfying Rule 166a(i). See TEX.R.CIV.P. 166a(i).
Accordingly, we will examine whether the Appellant’s civil conspiracy claim was properly
dismissed by summary judgment on no-evidence grounds. Then, we will proceed with analyzing
whether, as to Appellant’s legal malpractice and breach of fiduciary duty claims, Appellee’s
motion was properly granted on traditional grounds.
Civil Conspiracy
Civil conspiracy is “a combination by two or more persons to accomplish an unlawful
purpose or to accomplish a lawful purpose by unlawful means.” Massey v. Armco Steel Co., 652
S.W.2d 932, 934 (Tex. 1983). For a conspiracy to have occurred, it requires the injury to be
intended by the alleged perpetrators. See Triplex Communications, Inc. v. Riley, 900 S.W.2d 716,
720 (Tex. 1995). “[P]arties cannot engage in a civil conspiracy to be negligent.” Id. at n.2 (citing
Reed Tool Co. v. Copelin, 689 S.W.2d 404, 406 (Tex. 1985).
Appellee’s motion states Appellant has no evidence that Appellee conspired with other
attorneys to “deprive the [Appellant] and his relatives of money and properties[,]” as is alleged in
Appellant’s complaint. Further, in support, Appellee offers an affidavit from Gabe Perez, an
attorney for the Starrs in the Appellant’s bankruptcy case, who disclaimed any action by Appellee
14 that could be construed as a conspiracy among the attorneys for the parties involved in the
bankruptcy.
Because Appellee properly identified the two elements of Appellant’s civil conspiracy
claim for which Appellant lacked evidence—namely, a combination of two or more persons, or an
unlawful purpose or lawful purpose by unlawful means—the burden shifted to Appellant to
provide evidence that raises a genuine issue of material fact. See TEX.R.CIV.P. 166a(i). Appellant
made a number of allegations in his response to Appellee’s motion which he claims are evidence
of a conspiracy between Appellee and other attorneys involved in the bankruptcy. Those
allegations are: (1) listing the Starrs’ judgment against Appellant to the list of creditors filed with
the bankruptcy court is proof that Appellee was conspiring with the Starrs’ attorney, Juan Carlos
Garay; (2) dismissal of Appellant’s bankruptcies are the result of Appellee conspiring with Juan
Carlos Garay and the trial court judge in the Starrs’ case against him so they—the attorneys and
the trial court judge, Luis Aguilar—could collect money from him; (3) Appellee conspired with
the Chapter 7 Bankruptcy Trustee and the United States Trustee to get the bankruptcy discharged;
and (4) the affidavit made by Gabe Perez, the Starrs’ attorney representing them as creditors in
Appellee’s bankruptcy case, is proof Perez conspired with Appellant because he was aware of
what was included in Appellant’s bankruptcy schedules. Although Appellant attached exhibits to
his motion, none of the exhibits, nor any of his allegations regarding the supposed conspiracy,
constitute a scintilla of evidence in support of his claims. Rather, his exhibits consist solely of
documents filed in the underlying bankruptcy or other litigation in which he or his family members
have been involved. None of the documents tend to prove any purported conspiracy to commit
wrongdoing against him by Appellee or any other attorney with whom he has dealt over time.
We find there is no evidence to prove a vital fact in Appellant’s conspiracy claim;
15 specifically, Appellant provided no evidence of a combination of two or more persons coming
together to accomplish an unlawful purpose or lawful purpose by unlawful means. See Massey,
652 S.W.2d at 934.
Accordingly, we find the trial court’s summary judgment dismissing Appellant’s civil
conspiracy claim was properly granted on no-evidence grounds. Appellant’s fourth and seventh
issues as to his claim for civil conspiracy are overruled.
Part Three: Whether a material issue of fact exists to preclude granting summary judgment on traditional grounds
In his fifth, sixth, eighth, and fourteenth issues, Appellant claims a material issue of fact
exists to preclude granting summary judgment on traditional grounds. 2 Having already determined
the judgment on the civil conspiracy claim is supported by Appellee’s no-evidence motion, it is
unnecessary for us to address whether summary judgment is also proper under the traditional basis
as to that particular cause of action. See First United Pentecostal Church of Beaumont, 514 S.W.3d
at 219 (citing Merriman v. XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013)). We limit our
analysis of these issues to Appellant’s two remaining causes of action for legal malpractice and
breach of fiduciary duty.
The burden of proof in a traditional motion for summary judgment is on the movant. See
TEX.R.CIV.P. 166a(c). The movant is required to show there is no genuine issue of material fact
and he is entitled to judgment as a matter of law. Id.; Helix Energy Solutions Grp, Inc.. v. Gold,
522 S.W.3d 427, 431 (Tex. 2017). To succeed in a traditional motion for summary judgment on
the claims asserted against him, a movant must provide evidence that disproves the facts of at least
2 Appellant’s fourteenth issue states, “The trial court erred when they did not follow 11 USC [§] 528(a).” Section 528(a) discusses requirements that debt relief agencies must follow. See 11 U.S.C. § 528(a). We interpret this issue to mean Appellant claims a fact issue exists as to whether Appellee followed the requirements of Section 528(a) in his representation of Appellant as it pertains to the legal malpractice claim asserted by Appellant. Thus, we find it falls under the umbrella of whether the trial court properly granted traditional summary judgment in favor of Appellee.
16 one element of the nonmovant’s claim. See Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508,
511 (Tex. 1995). Once the movant satisfies his burden, the burden shifts to the nonmovant to
produce summary judgment evidence sufficient to raise a fact issue. Amedisys, Inc. v. Kingwood
Home Health Care, LLC, 437 S.W.3d 507, 511 (Tex. 2014). In evaluating the provided evidence,
the trial court must assume all the evidence provided by the nonmovant is true, indulge every
reasonable inference in favor of the nonmovant, and resolve any doubts regarding the existence of
a genuine issue of material fact against the nonmovant. Little v. TDCJ, 148 S.W.3d 374, 381 (Tex.
2004).
Appellant alleges in his complaint that Appellee: (a) failed to follow 11 U.S.C. §§ 528(a)
and 101(4)(A); (b) filed Appellant’s bankruptcy petition four months after Appellant signed it and
did not follow Appellant’s alleged instructions not to file it; (c) filed for bankruptcy on behalf of
Appellant for a non-dischargeable debt; (d) did not object to the proof of claim filed in the
bankruptcy; (e) interfered with Appellant’s daughter’s case in federal court; (f) represented
Appellant without Appellant’s knowledge or permission in the adversary proceeding associated
with Appellant’s bankruptcy case; (g) filed incorrect Schedule F forms in the bankruptcy; and (h)
conspired with other lawyers involved in the bankruptcy to deprive Appellant and his family
members of their money and properties. According to Appellant’s complaint, the foregoing alleged
facts form the bases for his causes of action for legal malpractice and breach of fiduciary duty.
Legal Malpractice
To prevail on a legal malpractice case, a plaintiff must prove the attorney owed the plaintiff
a duty, a negligent act or omission by the attorney breached the duty, the breach proximately
caused plaintiff’s injury, and the plaintiff suffered damages as a result. Stanfield v. Neubaum, 494
S.W.3d 90, 96 (Tex. 2016). It is undisputed the Appellee represented the Appellant as his attorney
17 in the Chapter 7 bankruptcy and thus owed him a duty of care. Accordingly, we must determine
whether Appellee provided evidence disproving one or more of the remaining three elements to
justify dismissal of his claim.
In an action for malpractice, a plaintiff must show the attorney’s negligence breached the
standard of care for attorneys. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex.
1995)(plurality op.). The standard of care for attorneys is whether they exercised the level of care
that would be exercised by a reasonably prudent attorney. Cosgrove v. Grimes, 774 S.W.2d 662,
664 (Tex. 1989). The plaintiff must show that the attorney did not act with the level of diligence
required by the standard of care or lacked the requisite degree of skill, prudence, and knowledge
to do the required work. See James V. Mazuca & Assocs. v. Schumann, 82 S.W.3d 90, 95
(Tex.App.--San Antonio 2002, pet. denied).
Of the specific factual allegations made in Appellant’s complaint, only the following could
serve as a basis for a legal malpractice claim if true, based on breach of duty: (a) failure to execute
a contract for services with Appellant in accordance with 11 U.S.C. § § 528(a)(1) and 101(4)(A);
(b) filing a petition in bankruptcy on behalf of Appellant when instructed explicitly not to do so
and four months after Appellant initially authorized it; (c) filing for bankruptcy on behalf of
Appellant solely for a non-dischargeable debt; (d) failing to object to the proof of claim which
purportedly bore his forged signature; (e) representing Appellant without Appellant’s knowledge
or permission in the adversary proceeding associated with Appellant’s bankruptcy case; or (f)
filing incorrect Schedule F forms in the bankruptcy .
Appellee’s motion attacks the specific factual allegations made in Appellant’s complaint.
Appellee argues there is no evidence that he did not comply with the sections of the Bankruptcy
Code cited by Appellant in his complaint which require those offering bankruptcy assistance to
18 provide their clients with contracts, inform the clients what services will be provided and what
fees are charged for those services. In support, Appellee attached the document he provided to
Appellant regarding provision of bankruptcy services as evidence of his compliance with the
Bankruptcy Code. Appellant argues the document is not a contract, and thus does not comply with
11 U.S.C. § 528(a). However, when we compare the document Appellee provided to the
bankruptcy code requirements, we find the document supplied by Appellee and signed as received
by Appellant includes a detailed description of the services Appellee would provide to Appellant
if he filed Chapter 7 bankruptcy, and the fees associated with such filing. Further, Appellant’s
signature on the document states that he received a copy of the document.
Appellee claims the undisputed evidence supports Appellee’s position that Appellant knew
about the Chapter 7 petition and it was filed at his request at the earliest possible time following
the injunction on refiling. In support, Appellee attached a certified copy of the order dismissing
Appellant’s Chapter 13 bankruptcy petition and prescribing a two-year injunction against refiling,
a certified copy of the Chapter 7 bankruptcy petition he filed for Appellant after expiration of the
two-year injunction, certified copies of amendments to the bankruptcy petition signed by
Appellant, and other documents filed in the bankruptcy proceeding bearing Appellant’s signature.
All of these documents support Appellee’s position that Appellant was aware the bankruptcy was
being filed, and when, considering the two-year prohibition on re-filing after dismissal of the
Chapter 13 bankruptcy.
Appellee also attached affidavits from two of his legal assistants which describe their
interactions with Appellant. The first, from Gisela Sarellano, includes testimony that her
conversations with Appellant led her to believe he unequivocally wanted Appellee to file the
Chapter 7 bankruptcy on his behalf after the two-year prohibitive period expired. She further
19 testified that he never expressed to her a desire not to pursue Chapter 7 bankruptcy at any point
prior to or after Appellee filed it on Appellant’s behalf. The second affidavit from Armida Ramirez
states that Appellant contacted their office numerous times to ensure Appellant would eventually
file the bankruptcy petition on his behalf after the expiration of the two-year moratorium. Ramirez
personally prepared the petition using information provided by Appellant. Ramirez also testified
that Appellee went item by item with Appellant prior to filing the petition, and that Appellant
signed it willingly. Ramirez testified that after the meeting of creditors, it was apparent not all of
the information provided by Appellant was correct, and several amended schedules had to be filed.
Ramirez prepared all of the necessary amendments and Appellant signed them. Ramirez testified
that she never heard Appellant express any desire not to pursue the bankruptcy; rather, he was
consistently adamant that Appellee continue with it. Ramirez further testified that in the adversary
proceeding associated with Appellant’s Chapter 7 bankruptcy, he explicitly asked Appellee to
represent him, which Appellee agreed to until the final judgment was entered.
He likewise attached the transcript of the proceedings in the creditors meeting in
Appellant’s bankruptcy. During that hearing, Appellant testified under oath that he signed the
petition, schedules, and related documents, that he read them prior to signing them, and that they
were true and correct to the best of his knowledge.
Appellant alleges Appellee filed for bankruptcy for a non-dischargeable debt, which he
knew could not be discharged in bankruptcy. In his motion for summary judgment, Appellee
denied that just because the judgment was for a claim of fraud meant it was non-dischargeable.
Rather, Appellee references the myriad of bankruptcy filings regarding the fraudulent transfers
made by Appellant to third parties which resulted in his bankruptcy being dismissed and the
bankruptcy trustees refusing to discharge his debts.
20 With respect to Appellant’s claim that Appellee failed to object to a proof of claim filed by
the Starrs which purportedly had Appellant’s forged signature on it, Appellee cites to and attaches
a certified copy of a Fifth Circuit Court of Appeals opinion indicating lack of merit supporting
Appellant’s claim. We take judicial notice of the Fifth Circuit’s opinion on this issue. See Freedom
Communications, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012)(“[A] court will take judicial
notice of another court’s records if a party provides proof of the records.”). Appellant first
complained of the alleged forgery in the Chapter 7 bankruptcy proceeding and later appealed it to
the Fifth Circuit after the bankruptcy court dismissed the claim.
Appellant also claims Appellee represented him in the adversarial proceeding without his
permission or knowledge. Appellee counters that Appellant explicitly asked him to represent
Appellant in the adversarial proceedings. Among the forms filed by Appellee in Appellant’s
Chapter 7 bankruptcy petition is a disclosure that Appellee was compensated for providing
bankruptcy services to Appellant, including representing him in any adversarial proceedings
associated with the petition. Armida Ramirez’s affidavit confirms Appellant asked Appellee to
represent him in the adversarial proceeding.
Appellant’s response raises a number of counterpoints to Appellee’s motion, most of which
are not supported by the summary judgment evidence. For instance, Appellant claims that the
bankruptcy trustee’s comment to the U.S. trustee during the meeting of creditors that he was going
to extend the deadline to object to the discharge was proof of some kind of collusion between the
trustees and Appellee. However, despite Appellant’s assertions to the contrary, the transcript of
the creditor’s meeting does not support Appellant’s contentions.
Another issue on which Appellant provided summary judgment evidence was whether
Appellee improperly signed an agreed order on Appellant’s behalf after withdrawing from
21 representing him in the case. Appellant claims Appellee signed an agreed order on a case in the
56th District Court in Galveston without his consent, and in support attaches several documents
filed with the bankruptcy court predating the agreed order which state Appellee is no longer
representing him in the bankruptcy. However, although the documents filed by Appellant show
Appellee withdrew from representing him in the bankruptcy proceedings on October 24, 2016, we
have no summary judgment evidence indicating Appellee did not represent Appellant in the case
pending in the Galveston court at the time the agreed order was signed. Indeed, the summary
judgment evidence indicates Appellee did not withdraw from representing Appellant in the
Galveston case until March 6, 2017, approximately two months after the agreed order was signed.
Moreover, although we must make every reasonable inference in favor of the nonmovant
and assume all of the nonmovant’s proof is true, see Little, 148 S.W.3d at 381, we cannot consider
Appellant’s motion itself as summary judgment evidence. See Laidlaw Waste Sys. (Dallas), Inc.
v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995)(pleadings are not summary-judgment
evidence). This is true of responses to summary judgments as well as other pleadings, even when
those pleadings are verified. See Quanaim v. Frasco Rest. & Catering, 17 S.W.3d 30, 42
(Tex.App.--Houston [14th Dist.] 2000, pet. denied).
Based upon the summary judgment evidence provided by Appellee, it appears there is no
genuine issue of material fact regarding whether Appellant complied with 11 U.S.C. §§ 528(a)(1)
and 101(4)(A). Further, there is no genuine issue of material fact regarding Appellant’s awareness
Appellee would file Chapter 7 bankruptcy on his behalf, and that it had to wait to be filed until
after September 20, 2015, when the injunction expired. The summary judgment evidence does not
create a genuine issue of material fact regarding impropriety by Appellee in listing the Starr
judgment in the bankruptcy schedules, nor was it Appellee’s fault the debt was not discharged.
22 The summary judgment evidence supports Appellee’s contention that Appellant was aware
Appellee represented him in the adversarial proceeding. Further, there is no genuine issue of
material fact regarding whether Appellee was negligent in his preparation and filing of the
Schedule F forms for Appellant, since each schedule and amendment required Appellant’s review
and signature.
It appears to this Court that the evidence supports Appellee’s position regarding keeping
Appellant informed about the status of the case, the contents of the documents he filed on
Appellant’s behalf (many of which required Appellant’s signature), and other matters related to
his representation of Appellant in the Chapter 7 bankruptcy. Further, we find Appellant failed to
produce any competent summary judgment evidence that either the trial court, or we, can consider
which would create a genuine issue of material fact regarding Appellant’s allegations of legal
malpractice against Appellee. We therefore find the trial court properly rendered summary
judgment in favor of Appellee on Appellant’s legal malpractice claims.
Breach of Fiduciary Duty
To prevail in a breach of fiduciary duty case, a plaintiff must prove the plaintiff and
defendant had a fiduciary relationship, the defendant breached its fiduciary duty to the plaintiff,
and the breach resulted in injury to the plaintiff or benefit to the defendant. First United
Pentecostal Ch. Of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). Generally, fiduciaries
owe the following duties to their principals: the duty of loyalty and utmost good faith; 3 duty of
candor; 4 duty to refrain from self-dealing; 5 duty to act with integrity; 6 duty of fair, honest dealing;7
3 Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 512 (Tex. 1942). 4 Welder v. Green, 985 S.W.2d 170, 175 (Tex.App.--Corpus Christi 1998, pet. denied). 5 Dearing, Inc. v. Spiller, 824 S.W.2d 728, 733 (Tex.App.--Fort Worth 1992, writ denied). 6 Hartford Cas. Ins. Co. v. Walker Cty. Agency, Inc., 808 S.W.2d 681, 687-88 (Tex.App.--Corpus Christi 1991, no writ). 7 Kinzbach Tool Co., 160 S.W.2d at 512.
23 and the duty of full disclosure. 8
As attorney and client, it is undisputed the parties were involved in a fiduciary-principal
relationship. See Willis v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988). Accordingly, we must
determine whether Appellee provided evidence disproving one or more of the remaining two
elements to justify dismissal of his claim.
Attorneys in particular owe their clients the duty to act with integrity and fidelity, which
includes a number of additional duties beyond those owed by other types of fiduciaries. See
Kimleco Pet., Inc. v. Morrison & Shelton, 91 S.W.3d 921, 923 (Tex.App.--Fort Worth 2002, pet.
denied). Among those additional duties, and implicated in the instant case by the facts alleged in
Appellant’s complaint, are the duty to act with absolute candor and honesty, and without any
concealment or deception; 9 the duty to inform the client of all matters material to the
representation; 10 and the duty to follow the client’s instructions. 11
Appellant claims Appellee allegedly: (a) filed Appellant’s bankruptcy petition after
Appellant allegedly instructed him not to file it, (b) represented Appellant without Appellant’s
knowledge or permission in the adversary proceeding associated with Appellant’s bankruptcy
case, and (c) conspired with other lawyers involved in the bankruptcy to deprive Appellant of
“money and properties from Abie Wolf’s [f]amily and [r]elatives.” Of the factual allegations made
by Appellant in his complaint, only the foregoing, if true, could potentially support a claim for
breach of fiduciary duty. However, we determined in the previous section the summary judgment
evidence proves the opposite of Appellant’s contentions regarding whether Appellee was
instructed not to file bankruptcy on Appellant’s behalf or whether Appellee represented Appellant
8 Valdez v. Hollenbeck, 465 S.W.3d 217, 230 (Tex. 2015). 9 See Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 429 (Tex.App.--Austin 2009, no pet.). 10 Joe v. Two Thirty Nine Jt.V., 145 S.W.3d 150, 160 (Tex. 2004). 11 Zidell v. Bird, 692 S.W.2d 550, 553 (Tex.App.--Austin 1985, no writ).
24 in the adversary proceeding. We also previously determined no evidence supports Appellant’s
allegations of a conspiracy between Appellee and other attorneys involved in Appellant’s
bankruptcy. Accordingly, Appellee satisfied his burden under the summary judgment rules. We
therefore find the summary judgment evidence supports the trial court granting summary judgment
in favor of Appellee on Appellant’s claims against him for breach of fiduciary duty.
We are instructed to address only those issues that are “necessary to final disposition of the
appeal.” TEX.R.APP.P. 47.1; State v. Ninety Thousand Two Hundred Thirty-Five Dollars and No
Cents in U.S. Currency ($90,235), 390 S.W.3d 289, 294 (Tex. 2013)(“It was not necessary for the
court of appeals to address Bueno's third ground after it affirmed the summary judgment based on
his second ground.”). Accordingly, we do not reach Appellant’s fifth, sixth, eighth, and fourteenth
issues regarding his civil conspiracy claim and his fourth and seventh issues as to the legal
malpractice and breach of fiduciary claim are moot.
Part Four: Whether the trial court erred in not considering Appellant’s response to Appellee’s motion for summary judgment or the evidence attached thereto
In his tenth, eleventh, twelfth, thirteenth, and fifteenth issues, Appellant states the trial
court erred in not considering his response to Appellee’s motion for summary judgment or the
evidence attached to it. Appellee’s brief does not directly address these issues.
At the hearing on Appellee’s motion, there was initially confusion about whether Appellant
filed a response to the motion for summary judgment. Confusion arose because Appellant’s
response was titled as a cross-motion for summary judgment which the trial court did not review
in preparation for the hearing on Appellee’s motion. However, the trial court then reviewed
Appellant’s response and the evidence during the hearing on the motion for summary judgment.
A trial court’s failure to consider a timely-filed response to a motion for summary judgment
where the response raises a genuine issue of material fact is reversible error. See, e.g., Glasscock
25 v. Frost Nat. Bank, 928 S.W.2d 599, 599-600 (Tex.App.--San Antonio 1996, writ denied).
However, such is not the case here. In our de novo review of the motion, response, and evidence
supplied by the parties, we have determined Appellee satisfied his burden under the summary
judgment rules and Appellant’s response failed to raise a genuine issue of material fact necessary
to defeat Appellee’s motion. Accordingly, the trial court’s failure, if any, to review Appellant’s
response or his summary judgment evidence is, at most, harmless error and thus does not warrant
reversal by this Court. See Lorusso v. Members Mut. Ins. Co., 603 S.W.2d 818, 820 (Tex.
1980)(judgment will not be reversed “unless the error or errors can be said to have contributed in
a substantial way to bring about the adverse judgment.”).
Furthermore, the trial court explicitly stated it reviewed Appellant’s response to the motion
for summary judgment, as well as his filed summary judgment evidence, before issuing its ruling.
The trial court’s order also states that the summary judgment was rendered after considering the
motion for summary judgment, the response, and the evidence presented. We therefore find no
reason to overturn the trial court’s judgment on this basis and overrule Appellant’s tenth, eleventh,
twelfth, thirteenth, and fifteenth issues.
Part Five: Whether the trial court’s judgment should be reversed and remanded because it does not dispose of all of the claims in his lawsuit
In his third issue, Appellant posits the trial court’s judgment should be reversed and
remanded because it does not dispose of all of the claims in his lawsuit. Appellant argues the trial
court’s judgment is interlocutory and appeal is therefore improper as it is not explicitly authorized
by statute. Appellant relies on the judgment’s failure to list each specific cause of action he asserted
as the basis for his argument that the judgment is not final. 12 Appellee does not explicitly address
Among the causes of action listed in his brief as still pending in the trial court is a cause of action for fraud. 12
However, no cause of action for fraud is named in his complaint.
26 this issue in his brief.
Where a movant for summary judgment intends the judgment to be final, it must ask the
trial court to dispose of all issues and parties. Continental Airlines, Inc. v. Kiefer, 920 S.W.2d 274,
276-77 (Tex. 1996). A statement indicating the plaintiff take nothing makes the judgment final as
long as no other claims between other parties are pending. Lehmann v. Har-Con Corp., 39 S.W.3d
191, 205 (Tex. 2001).
Here, Appellee’s motion asks the trial court to render “judgment as a matter of law on all
matters raised in [Appellant’s] original petition.” Further, the language of the order on Appellee’s
motion for summary judgment is that the motion is granted and “a take nothing judgment is entered
against [Appellant].” These factors, in combination with our de novo analysis of Appellee’s motion
on the merits which we found addressed each and every cause of action alleged by Appellant, lead
us to conclude the judgment is final and dismisses all of Appellant’s claims.
Appellant’s third issue is overruled.
CONCLUSION
We hold as follows:
(1) The affidavits filed in support of Appellee’s motion for summary judgment are not
apparently based on hearsay, nor has Appellant offered evidence to controvert the contents of these
affidavits or support his claim they were made in bad faith. Accordingly, the objections made by
Appellant to the affidavits are, at most, purely formal, and were waived when he failed to secure
rulings on his objections from the trial court regarding their admissibility. Appellant’s first and
ninth issues are overruled.
(2) We find the language of Appellant’s motion implicates both traditional and no
evidence summary judgment grounds, and therefore, overrule his second issue. Further, we find
27 Appellee adequately pleaded no-evidence grounds for summary judgment on the civil conspiracy
claims, and Appellant failed to satisfy his burden under Rule 166a. We conclude the trial court
properly granted a no-evidence summary judgment on the civil conspiracy claim. As a result, we
do not reach Appellant’s fifth, sixth, eighth, and fourteenth issues regarding the civil conspiracy
claim. Appellant’s fourth and seventh issues are overruled only as to the civil conspiracy claim.
(3) As to Appellant’s two remaining causes of action, we find Appellee satisfied his
burden of proving no genuine issue of material fact exists to preclude summary judgment on
Appellant’s claims for legal malpractice and breach of fiduciary duty. Appellant failed to meet his
burden overcoming a traditional motion for summary judgment because he failed to provide
evidence to the trial court that created a genuine issue of material fact. Appellant’s remaining
claims for legal malpractice and breach of fiduciary duty, his fifth, sixth, eighth, and fourteenth
issues are overruled. His fourth and seventh issues as to the legal malpractice and breach of
fiduciary claims are moot because we resolved those issues under a traditional summary judgement
analysis.
(4) Appellant’s response and attached evidence failed to create a genuine issue of
material fact, we find any error committed by the trial court in not considering Appellant’s
response or evidence prior to ruling in favor of Appellee harmless error. Appellant’s tenth,
eleventh, twelfth, thirteenth and fifteenth issues are overruled.
(5) The relief requested by Appellee and the language of the trial court’s judgment, in
combination with our other findings on the merits of Appellee’s motion to dismiss, indicate the
trial court’s judgment was final and appealable. Appellant’s third issue is overruled.
For the foregoing reasons, the judgment of the trial court is affirmed.
28 August 31, 2020 YVONNE T. RODRIGUEZ, Justice
Before Rodriguez, J., Palafox, J., and Yanez, Ret. Senior Justice Yanez, Ret. Senior Justice (Sitting by Assignment)