Jose L. Elizondo and Guillermina Elizondo v. Ronald Krist, the Krist Law Firm, P.C., Kevin D. Krist and William T. Wells

• Court: Court of Appeals of Texas
• Decided: December 14, 2010
• Docket: 14-09-00267-CV
• Status: Published

Opinion

Affirmed and Majority Opinion and Concurring and Dissenting Opinion filed December 14, 2010.

In The

Fourteenth Court of Appeals

NO. 14-09-00267-CV

Jose L. Elizondo and Guillermina Elizondo, Appellants/Cross-Appellees

v.

Ronald Krist, The Krist Law Firm, P.C., Kevin D. Krist and William T. Wells, Appellees/Cross-Appellants

On Appeal from the 129th District Court

Harris County, Texas

Trial Court Cause No. 2007-50121

CONCURRING AND DISSENTING OPINION

            I agree with the majority on the fifth issue concerning fee forfeiture.  But because I believe the Elizondos presented some evidence of damages in response to the no-evidence motion for summary judgment on damages, I respectfully dissent.  The Elizondos have made the following factual allegations:

March 28, 2005:             Jose signed a power of attorney with Wells.

August, 31, 2005:           Wells sent a $2,000,000 demand letter to BP on behalf of both Jose and Guillermina.

December 9, 2005:         BP offered $50,000 to settle the Elizondos’ case.

December 21, 2005:      Wells associated Kevin Krist, Ronald Krist and the Krist Law Firm as additional counsel for Wells’s four BP cases.

January 31, 2006            Ronald and Kevin Krist met with BP to settle Wells’s cases.

February 22, 2006          Jose signed a release and settlement with BP for $50,000. The release included a signature page for Guillermina but she never signed the release. The settlement included a provision that BP would settle Jose’s worker’s compensation lien.

November 2006              Ronald Krist and the Krist Law Firm began representing BP in connection with the incident.

March 23, 2007              The statute of limitations ran on Guillermina’s claim.

June 13, 2008                 BP sent the Krist Law Firm notice that Jose’s worker’s compensation lien was paid.

The Lawyers contest that they ever represented Guillermina^[1] and contend that their representation of Jose ended when he signed the release February 22, 2006.^[2]

A.        The trial court abused his discretion in striking Gonzalez’s affidavit.

            The Elizondos sued the Lawyers, asserting numerous causes of action including legal malpractice and breach of fiduciary duty.  Citing Burrow v. Arce, 997 S.W. 2d 229 (Tex. 1999), the majority concludes that the affidavit of Gonzalez was too conclusory to be evidence of damages at all.  In Burrow, the Supreme Court concluded that the affidavit of attorney Malinak was insufficient to support the lawyers’ burden of proof in an affirmative motion for summary judgment.  After concluding that the affidavit was conclusory, the court noted ways in which the affidavit could have presented a sufficient basis for the opinion, stating, “Malinak might have analyzed the Clients’ injuries by type, or related settlement amounts to medical reports and expenses, or compared these settlements to those of similar claims, or provided other information showing a relationship between the plaintiffs’ circumstances and the amounts received.  He did not do so.”  Id. at 236.  In my opinion, Gonzalez’s affidavit is not similarly deficient and presented the information needed to support his opinion on the value of the Elizondos’ claims.  A conclusory statement is one that does not provide the underlying facts to support the conclusion.  Rizkallah v. Conner, 952 S.W. 2d 580, 587 (Tex. App.—Houston [1st Dist.] 1997, no writ).  Gonzalez’s affidavit provided the underlying facts to support his opinion and therefore was not conclusory.  See Hou-Tex, Inc. v Landmark Graphics, 26 S.W. 3d 103 (Tex. App.—Houston [14th Dist.] 2000, no pet.).  Thus, I would hold that the trial court abused its discretion in striking portions of the affidavit.  See Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C., 180 S.W.3d 889, 894 (Tex. App.—Dallas 2005, pet. denied).

            Gonzalez provided the following information in his affidavit:

·        Gonzalez worked for both the Ammons Law Firm and Brent Coon & Associates on their BP dockets.

·        Ammons had approximately 125 BP cases and Brent Coon had over 400 claimants.

·        Gonzalez was appointed by the 212th District Court as Plaintiffs’ liaison counsel for the BP ligation.

·        At both law firms, a confidential spreadsheet was used to track each case, including settlement demands and offers.

·        Gonzalez was “intimately involved on a day to day basis with the settlement process.”

·        He participated in settlement conferences with Bill Noble with BP and their lawyer, David Salyer.

·        During the September 2007 BP trial, Gonzalez was ordered to meet with Nobel and Salyer in the judge’s chambers to attempt to settle as many cases as possible.

·        Gonzalez participated in mediation of the BP cases, mediating ten cases a day.

            Gonzalez also testified that BP and the lawyers focused on certain criteria for the purpose of determining the value of a case.  The factors were:

·        The victim’s proximity to ground zero;

·        The length of time between the injury and the report of the injury to a supervisor;

·        Corroboration of the victim’s alleged proximity to ground zero and the time the injury was reported to a supervisor or to management;

·        The victim’s age;

·        The victim’s past and future wage-earning capacity and wage loss;

·        The injuries alleged, including the nature, extent, duration, and biomechanics of the injuries;

·        The medical treatment received, including the need for surgical intervention;

·        Whether the victim was single or married, i.e., whether there were associated claims for loss of consortium; and

·        Onsite vs. offsite claims.

Gonzalez then testified that he reviewed the following specific information concerning Jose’s claim:

·        On or about March 23, 2005, Jose was in the employ of Altair Strickland, a subcontractor providing services at the BP Texas City facility.  At that time, he was 37 years old.

·        Jose had just left the Altair Strickland trailer and was in the street between the 180M and the Ultracracker units and was heading toward the Ultracracker unit when the explosion took place.  This location is approximately 200 to 300 feet from the blowdown stack.  The force of the explosion blew him a number of feet into a port-a-potty.

·        Jose was near Mr. Eamello at the time of the blast.

·        Jose sustained injuries to his neck and lower back and suffered such mental anguish and emotional distress that he was considered to have post-traumatic stress disorder.

·        He was first treated for his neck and back injuries by Dr. Ron Kirkwood and Dr. English of Kirkwood Medical Associates on March 26, 2005.

·        Jose saw Dr. David Winberly at Fondren Orthopedic on April 1, 2005, for complaints of neck and lower back pain, and had a follow-up visit on June 7, 2005 for persistent neck and back pain.

·        He received physical therapy at TIRR twelve times over the six-week period between April 7 and May 19, 2005. 

·        Jose was first treated for mental anguish or emotional distress by Dr. Susana Rosin on May 6, 2005. He attended additional therapy sessions on May 20, July 6, and August 3, 2005.  His treatment lasted approximately three months.

·        Jose is married to Guillermina Elizondo, and they had four children at the time of the explosion.  They currently have five children.

·        On March 23, 2005, Jose earned about $23 per hour and worked approximately 50 to 60 hours each week.

·        Jose missed work as a result of the March 23, 2005 events.

·        He has not been physically or medically restricted from working, but he was injured in the explosion.

            Gonzalez noted that when a husband is injured in a workplace accident, his wife has an independent claim for loss of consortium.  Gonzalez had handled spousal claims involving similar injuries.  He believed that the general value of Jose and Guillermina’s claims by way of settlement or verdict was in the range of two to three million dollars, and some part of this total value would be attributable to Guillermina’s individual claim.

            Unlike the affidavit in Burrow, Gonzalez’s affidavit provided the criteria used to evaluate the claims and the specific facts of the Elizondos’ claims to support his opinion.  The only information missing from his affidavit was the names of the other plaintiffs whose settlements formed the basis of Gonzalez’s comparison, but because all of the BP settlements were confidential, Gonzalez could not reveal the amount paid to settle the claims of a specific plaintiff. 

B.        The Lawyers refused to produce information about other settlements.

            During the course of discovery, the Elizondos tried to obtain settlement information about other plaintiffs.  Through written discovery, they first sought the settlement information for the other three cases that the Lawyers handled.  The Lawyers objected that the information was irrelevant and privileged.[3]  The Elizondos next requested any settlement matrix or grid that was prepared by BP and given to the Lawyers while they were representing the Elizondos, and the Lawyers raised the same objections.  The Elizondos tried to obtain the information through depositions of third parties, including other BP attorneys, but the Lawyers objected to these depositions as well.  The Elizondos asked for a court order to allow Gonzalez^[4] to reveal specifics from the BP settlements, and the Lawyers opposed the order. 

            During Wells’s deposition, his attorney refused to allow him to answer any question about the settlements of the other cases that Wells handled.  During Ronald Krist’s deposition, his lawyer objected on the basis of privilege to any information about the amount paid to settle any of the BP cases or BP’s ranking system for settlement that was disclosed to other plaintiffs or their counsel.

            It would be fundamentally unfair for the Lawyers to thwart discovery as to other settlements and at the same time use the lack of that information to strike Gonzalez’s affidavit.  Cf. Ginsberg v. Fifth Court of Appeals, 686 S.W. 2d 105, 107–08 (Tex. 1985); Westheimer v. Tennant, 831 S.W. 2d 880, 884 (Tex. App.—Houston [14th Dist.] 1992, no writ) (a party seeking affirmative relief cannot assert privilege to prevent the adverse party from obtaining evidence in its defense; the claimant must choose between asserting its claim or asserting privilege, but cannot do both).  The BP release included a confidentiality provision but allowed for disclosure pursuant to court order.  The Lawyers could have joined the Elizondos in their request for such a court order but they did not.

Moreover, the rationale for excluding Gonzalez’s opinion—i.e., that an attorney who does not reveal the confidential amounts paid to specifically-identified plaintiffs cannot express an opinion as to whether another plaintiff received a fair settlement of his claims arising from the same event—applies equally to the defendant Lawyers.  Under this reasoning, all of the defendant Lawyers in this case are similarly barred from expressing an opinion as to whether Jose received a fair settlement.

C.        The non-stricken portions of the affidavit provide some evidence of damages.

            Even if the trial court did not abuse its discretion in excluding some portions of Gonzalez’s affidavit, the remaining statements in the affidavit provide some evidence of damages.  Gonzalez opined that the case “had value substantially in excess of BP’s best offer.”  He described the settlement as “inadequate,” “very inadequate,” not “fair and reasonable” and “basically for nuisance value.”  The foundation as outlined above supports his opinions and provides some evidence of damages.

D.        Guillermina’s testimony provides some evidence of damages.

            The no-evidence motion for summary judgment on damages did not address causation; it only addressed the existence of damages.  Thus, Guillermina was not required to prove through expert testimony that the Lawyers breached the standard of care, that the breach was a proximate cause of damages and that the damages are collectible.  She was not required to prove what BP would have settled her case for because that implicates causation.  In a claim for loss of consortium, there is no need for expert testimony on the issue of damages; testimony that the primary victim’s injuries interfere with family activities is sufficient.  See Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322, 328 (Tex. 1993) (testimony that, as a result of wife’s injuries, couple no longer engages in their former outdoor activities and that travel has become difficult is “at least some evidence” of loss-of-consortium damages).  A jury can evaluate the plaintiff’s own testimony and determine whether or not the claim had a monetary value.  Guillermina’s testimony provides some evidence of damages for loss of consortium that a jury could evaluate.

On this record, I would conclude that the Elizondos presented some evidence of damages, and thus, the judgment cannot be affirmed on this basis.  I therefore would address the remaining points of error and cross-points not reached by the majority.

                                                                        /s/        Tracy Christopher

                                                                                    Justice

Panel consists of Justices Frost, Brown, and Christopher. (Brown, J., majority.)

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[1] The trial judge denied a motion for summary judgment on this point.  The appellees have asserted this as a cross-point on appeal.

[2] The trial judge granted a motion for summary judgment in favor of the Lawyers on this point.  The appellants have also appealed this ruling.

[3] The amount that BP paid to another client is not privileged information because a third party—BP—knows the amount.  Similarly, a settlement grid prepared by a third party is not privileged.

[4] Gonzalez was willing to provide the settlement information if he had the protection of a court order.  The BP settlements were confidential but subject to disclosure under court order.