Collins, Robert J. v. Green, Chris

• Court: Court of Appeals of Texas
• Decided: November 28, 2012
• Docket: 05-11-00893-CV
• Status: Published

Opinion

Affirm and Opinion filed November 28, 2012.

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No. 05-i i-00893-CV

ROBERT J. COLLiNS, Appellant

V.

CHRIS GREEN, Appdllee

On Appeal from the 134th Judicial District Court Dallas County, Texas Trial Court Cause No. 09-17367

MEMORANDUM OPINION Before Justices Richter, Lang-Miers, and Myers Opinion By Justice Lang-Miers

Pro se appellant/attorney Robert J. Collins appeals from a post-answer default judgment

rendered against him in a legal malpractice lawsuit. In his sole issue on appeal, he contends that the

trial court abused its discretion by denying his motion for new trial. We affirm the trial court’s

judgment.

Appellee Chris Green filed a lawsuit against appellant, his attorney, alleging claims for

professional negligence and breach of fiduciary duty. Although appellant filed an answer, he did not

appear for trial.t Green tried his case to the court. He testified that he paid appellant $1,500 to file

The final judgment states that appellant appeared pro se and announced ready for trial. The record shows, however, that he did not appear. The t conflict between the final judgment and the record does not affect our analysis. a lawsuit on his hehal I against NIi Ian lioyanich. a California resident with whom Green had a

dispute, seeking the return of$30,000 Green paid Boyanich in a deal that fell through. Green testified

that he also agreed to pay appellant a percentage of his recovery. Green testified that appellant filed

the lawsuit against Boyanich in Dallas County and attempted to serve Boyanich by mail. but the

citation was returned undelivered. Appellant never served Boyanich, and the trial court eventually

dismissed the case for want of prosecution. Appellant told Green on numerous occasions, even after

the lawsuit had been dismissed, that he was still trying to serve Boyanich. Appellant never tried to

have the court reinstate the case after it was dismissed and. by the time Green learned about the

dismissal, his claim was time barred. After hearing the evidence, the trial court ruled in favor of

Green and rendered judgment against appellant in the amount of $31,500 plus pre- and post-

judgment interest. Appellant filed a motion for new trial, which was overruled by operation of law.

On appeal, appellant raises a single issue:

Whether or not the Trial Court abused it’s [sic] discretion in not granting Appellant’s Motion for New Trial because Appellee failed to prove an element of his cause of action for professional negligence.

Appellant contends that the judgment must be reversed because Green did not prove that the

damages in the underlying case would have been collectible. See Akin, Gump, Strauss, Hatier &

Feld, L.L.P. v. Nat’! Dcv, & Research Coip., 299 S.W.3d 106, 112 (Tex. 2009) (stating when

plaintiff sues his lawyer alleging lawyer improperly represented him in another case, he “must prove

and obtain findings as to the amount of damages that would have been recoverable and collectible

if the other case had been properly prosecuted”). We do not need to decide that issue, however,

because appellant did not challenge all independent grounds upon which the judgment could have

been rendered. See Britton v. Tex. Dep ‘t ofCrim. Justice, 95 S.W.3d 676, 681 (Tex. App—Houston

[1st Dist.] 2002, no pet.) (“Generally speaking, an appellant must attack all independent bases or

grounds that fully support a complained-of ruling or judgment.”); see also Fed. Deposit Ins. Corp. v. LenA, 361 S.W.3d 602,604 (Tex. 2012) rWhen a party. . . waives an argument on appeal, an

appellate court may not consider the. . . waived issue.”).

Green alleged claims against appellant for professional negligence and breach of fiduciary

duty. The judgment did not state the specific claim upon which it was granted. Consequently,

appellant must challenge each independent ground supporting the judgment. Sec Lenk. 361 S.W.3d

at 604; Briuon, 95 S.W.3d at 681. In his brief; however, appellant does not cite the standard of

review for a claim for breach of fiduciary duty, does not perform an analysis ofthe evidence on that

issue, and does not otherwise indicate that he is complaining about the evidence on that claim.

Because appellant did not attack all independent grounds supporting thejudgment. we affirm the trial

court’sjudgment See LenA, 361 S.W.3d at 604; Walling v. Metca(fe, 863 S.W.2d 56.58 (Tex. 1993)

(appellate court generally cannot reverse for reason not assigned as error on appeal); Dallas CnIy.

v. Crestview Corners Car Wash, 370 S.W.3d 25,56-57 (rex. App.—DalIas 2012, pet denied) (op.

on reh’g) (“an appellate court has no discretion to fhbricate an issue not raised in the appellant’s

brief’) (quoting Bankhead i’. Maddox, 135 S.W.3d 162, 163—64 (Tex. App.—Tyler 2004, no pet)).

The trial court’s judgment is affirmed.

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JUDGMENT ROBERT J. COLLINS, Appellant Appeal from the 1 34th Judicial District Court of Dallas County, Texas. (Tr.Ct.No. No. 05-1 1 -00893-CV 09-17367). Opinion delivered by Justice Lang—Miers, CHRIS GREEN. Appellee Justices Richter and Myers participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is A1’FIRMEI). It is ORDERED that appellee Chris Green recover his costs of this appeal from appellant Robert J. Collins.

Judgment entered November 28, 2012.

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ELIZABETH LANG-MR JUSTICE