George Neil Lewis v. Jack D. Nolan

Opinion

Opinion issued March 29, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00865-CV

____________

GEORGE NEIL LEWIS, Appellant

V.

JACK D. NOLAN, Appellee

On Appeal from 270th District Court

Harris County, Texas

Trial Court Cause No. 2001-29811

SUPPLEMENTAL MEMORANDUM OPINION ON APPELLANT'S SECOND MOTION FOR REHEARING

Appellant, George Neil Lewis, has filed a second motion for rehearing and for en banc reconsideration of our memorandum opinion, issued October 5, 2006, and of our supplemental memorandum opinion issued December 14, 2006, both of which opinions affirmed a take-nothing summary judgment rendered against him in his malpractice suit against appellee, Jack D. Nolan, his former attorney. Nolan has filed a response to Lewis's second rehearing motion and has moved for sanctions. We grant the second motion for rehearing addressed to the panel. However, our disposition of the appeal remains the same, and our October 5, 2006 memorandum opinion and judgment, as well as our December 14, 2006 supplemental memorandum opinion, remain intact. We issue this supplemental memorandum opinion to address matters raised by Lewis in his second motion for rehearing that relate to a supplemental record filed after our December 2006 opinion issued. ⁽¹⁾

Supplemental Record

After our December 2006 supplemental memorandum opinion issued, Lewis supplemented the record with Nolan's no-evidence summary-judgment motion asserted against Lewis's legal-malpractice claim.

That motion had not appeared in the original appellate record filed in this Court. By the time of submission in January of 2006, no supplemental clerk's record containing Nolan's no-evidence summary-judgment motion had been filed, nor had the Court been advised that Lewis had requested or made arrangements to pay for such a record. We thus could not know what more the motion may have asserted, other than both parties' representations in their briefs that the omitted motion attacked the element of causation.

Our October 2006 opinion stated that Nolan's no-evidence summary-judgment motion was not in the appellate record. Nonetheless, in his motion for rehearing of our initial opinion, Lewis did not advise the Court that, nearly two years prior, he had requested and paid for a supplemental clerk's record containing this item.

Our December 2006 supplemental opinion on rehearing again noted the absence of Nolan's no-evidence summary-judgment motion. That opinion also recognized the rule that, once a party has designated an item for inclusion in the record, or if the rules require that that item be included in the record, and has arranged for payment, it is our responsibility to order the record supplemented with that item. See Tex. R. App. P. 34.5(a), (b), 35.3(a), (c). However, we advised the parties that the appellate record did not contain a request that the omitted motion be included in the record, and we noted that a summary-judgment motion is not an item that the rules require be included in the record. See Tex. R. App. P. 34.5(a), (b).

For the first time in his second motion for rehearing, Lewis advised this Court that he had requested and paid for a supplemental clerk's record containing Nolan's no-evidence summary-judgment motion in November 2004; that the district clerk's office had mistakenly sent that supplemental record (and Lewis's request for preparation for that record) to the Fourteenth Court of Appeals; and that the Harris County Justice Information Management System had mistakenly indicated that the supplemental clerk's record had been received in the First Court of Appeals when it had not.

Given that Lewis's request for a supplemental record and the record itself were not sent to it, this Court could not have known that a supplemental record had been requested soon after Lewis's opening brief had been filed, had been made by the district clerk's office, or had been filed in any court. Judicial economy is not served by a party's not correcting or advising the Court of such an omission at the earliest possibility--which, here, would have been after the Court's original opinion noted the omission. Nonetheless, in the interest of justice, and because the requested supplemental record was inadvertently sent to the wrong court through no fault of Lewis's, we consider the supplemental record--and Nolan's no-evidence summary-judgment motion against Lewis's legal-malpractice claim--at this time. It is for this reason that the Court issues this second supplemental memorandum opinion.

Legal-Malpractice Claim

In his second motion for rehearing, Lewis raises many of the arguments concerning his legal-malpractice claim that he did in his prior rehearing motion. However, he adds that, now that the record contains Nolan's no-evidence motion against Lewis's legal-malpractice claim, our stated bases for affirming the summary judgment on that claim cannot stand. Specifically, Lewis argues that our prior opinions "incorrectly assumed" that the grounds in that summary-judgment motion "were broad" and "all-inclusive," whereas, in reality, they were narrow. Lewis argues:

The sole ground argued by . . . Nolan in his traditional and no-evidence motion was that Lewis could not establish causation because Lewis had confessed to owing the money on the note he was sued for. . . . That was the absolute extent of Nolan's argument regarding causation. Nothing more.

Lewis concludes that the prior opinions "dramatically widen[ed] the 'causation' ground asserted by Nolan beyond the confession [of liability on the April 1987 note] argument asserted by Nolan."

Nolan's no-evidence summary-judgment motion read, in pertinent part, as follows:

Nolan contends that Nolan performed no negligent act or omission that breached a duty that arose from the scope of any alleged attorney-client relationship. Nolan further contends that even if a negligent act or omission occurred, Lewis suffered no harm.

. . .

In support of its summary judgment, Federated Financial Services, Inc. ["FFS"] delineated . . . excerpts from the oral deposition of Lewis, which proves that Lewis owed [FFS] the full amount alleged by said party and that Lewis had NO defenses to the claim of [FFS]. ⁽²⁾

The . . . excerpts from the oral deposition on [sic] Lewis not only proves up every element in the cause of action asserted against Lewis by [FFS], [but] Lewis has also testified under oath that he has no real defenses to the underlying oath . . . . Since Lewis had no real defenses to the Note, Lewis was liable to [FFS] as a matter of law.

Nolan contends that in light of the above-referenced testimony of Lewis, there exists no evidence that Lewis received any injury or harm as a direct result of any negligent act or omission of Nolan. . . . .

(Bold and underlining in original; italics added.) Nolan's summary-judgment motion attached evidence in support.

After reviewing Nolan's no-evidence summary-judgment motion concerning Lewis's legal-malpractice claim, we conclude that our prior opinions did not impermissibly widen the grounds on which Nolan moved for judgment. Nolan's no-evidence summary-judgment motion is not the model of clarity, but it appears to have contained both traditional and no-evidence aspects, despite its title as a "no-evidence" motion. For example, to the extent that the motion attached evidence and argued that Nolan had proved that Lewis could not prevail "as a matter of law," it was, in essence, a traditional motion for summary judgment, redundant of Nolan's separately filed traditional summary-judgment motion. However, to the extent that Nolan's motion argued, for example, that "in light of the above-referenced testimony of Lewis, there exists no evidence that Lewis received any injury or harm as a direct result of any negligent act or omission of Nolan," the motion was a no-evidence summary-judgment motion. (Emphasis added.) Lewis did not specially except to any ambiguity that may have arisen because Nolan's no-evidence motion contained, despite its title, some aspects of a traditional motion. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (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 or ambiguous."); accord Franco v. Slavonic Mut. Fire Ins. Ass'n, 154 S.W.3d 777, 784-85 (Tex. App.--Houston [14th Dist.] 2004, no pet.) (indicating that, to raise such challenge on appeal, party must specially except to summary-judgment motion that it believes is too vague for party 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 opinion, a no-evidence summary-judgment motion may specify the element or elements of the claim or defense that lacks evidentiary support as long as the adverse party would have the burden of proof on that claim or defense at trial. See Tex. R. Civ. P. 166a(i); Malcomson Rd. Util. Dist. v. Newsom, 171 S.W.3d 257, 262 (Tex. App.--Houston [1st Dist.] 2005, pet. denied). Once a movant carries its burden of specifying the element or elements of the claim or defense on which he seeks judgment, the burden shifts to the non-movant to produce more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements. Clarendon Nat'l Ins. Co. v. Thompson, 199 S.W.3d 482, 487 (Tex. App.--Houston [1st Dist.] 2006, no pet.). The no-evidence aspect of Nolan's summary-judgment motion attacked the element of causation, shifting the burden to Lewis to respond by producing some evidence of causation.

But Lewis had to produce legally competent evidence to carry that burden. See Garcia v. Nat'l Eligibility Express, Inc., 4 S.W.3d 887, 891 (Tex. App.--Houston [1st Dist.] 1999, no pet.) (citing Yates v. Fisher, 988 S.W.2d 730, 731 (Tex. 1998)). Our prior opinions explain why legally competent evidence of causation in this case meant expert evidence, which Lewis did not produce. That reasoning, and the conclusion flowing from it, do not change even if the focus is narrowed to the legal effect of Lewis's deposition testimony in the collection suit: for the reasons set out in our October 2006 opinion, the legal effect of Nolan's having failed to respond to the summary-judgment motion that FFS filed based on that deposition testimony, as well as the effect of Lewis's having paid off the April 1987 note, is still outside the jury's common understanding.

Conclusion

Although we have granted Lewis's second rehearing motion, we deny the relief requested by Lewis therein. ⁽³⁾

We deny Nolan's motion for sanctions, styled "Motion for Damages."

Tim Taft

Justice

Panel consists of Justices Taft, Higley, and Bland.

1. Because we grant Lewis's second rehearing motion and issue this supplemental opinion on rehearing, the motion for en banc reconsideration is rendered moot. See Brookshire Bros., Inc. v. Smith, 176 S.W.3d 30, 41 n.4 (Tex. App.--Houston [1st Dist.] 2004, pet. denied) (op. on reh'g), cert. denied, 127 S. Ct. 256 (2006).

2. This deposition testimony consisted of Lewis's testimony that he had signed the note as a borrower, that he was suffering from no legal incapacity or under duress at the time that he signed the note, that no one misrepresented the note to him so that he did not know what he signed, that the transaction was not illegal, and that he had not discharged the note in bankruptcy.

3. We take this opportunity take make one correction to our December 14, 2006 supplemental memorandum opinion. On page two of that opinion, we stated, "Nolan argues that we erred in affirming the no-evidence summary judgment rendered on his legal-malpractice claim because the basis on which we affirmed the judgment--that Lewis did not raise a genuine issue of material fact because he did not present expert opinion testimony on causation--was not raised in the summary-judgment motion in the trial court.

" (Emphasis added.) That sentence should, of course, have employed "Lewis," rather than "Nolan," as its subject.