Mike Armstrong v. James M. Suggs, Jr. and Suggs Law Firm, P.C.

• Court: Court of Appeals of Texas
• Decided: July 15, 2016
• Docket: 05-15-00070-CV
• Status: Published

Opinion

Affirmed and Opinion Filed July 15, 2016

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-00070-CV

MIKE ARMSTRONG, Appellant V. JAMES M. SUGGS, JR. AND SUGGS LAW FIRM, P.C., Appellees

On Appeal from the 101st Judicial District Court Dallas County, Texas Trial Court Cause No. DC-13-08688

MEMORANDUM OPINION Before Justices Bridges, Lang-Miers, and Schenck Opinion by Justice Bridges Mike Armstrong appeals the trial court’s traditional and no-evidence summary judgment

in favor of James M. Suggs, Jr., and Suggs Law Firm, P.C. In two issues, Armstrong argues the

trial court erred in granting Suggs’ traditional and no-evidence motions for summary judgment.

We affirm the trial court’s judgment.

On February 2, 2011, Armstrong and Suggs entered into an employment agreement

providing that Suggs’ law firm would represent Armstrong in his divorce. The final divorce

decree was signed on March 23, 2012. In August 2013, Armstrong sued Suggs alleging

Armstrong paid an initial retainer of $1500 and, “despite the small nature of the marital estate,”

Suggs charged more than $35,000 in attorney’s fees. The fees were paid out of the sale of

Armstrong’s ex-wife’s residence. Armstrong asserted a cause of action under the DTPA, alleging Suggs engaged in an unconscionable action or course of action that cannot be

characterized as advice, judgment or opinion when they charged excessive attorney’s fees and

took those fees without authorization from the proceeds of the sale of Armstrong’s ex-wife’s

residence.

Suggs filed a traditional and no-evidence motion for summary judgment alleging (1)

Armstrong’s claim for excessive fees was actually a breach of contract claim “dressed-up as a

DTPA claim” and (2) if Armstrong successfully pled a breach of contract claim, he could not

prove his excessive fees claim because he failed to designate an expert to testify on the

excessiveness of the fees, and the deadline to designate experts had passed. The motion was

supported by Suggs’ affidavit in which he stated he represented Armstrong pursuant to an

attached employment agreement and forwarded Armstrong periodic billing statements to

Armstrong during the representation. Forty-three pages of billing statements were also attached

to the motion. Based on the billing statements, Armstrong owed $35,000 in legal fees as of

March 27, 2012. However, after meeting with Armstrong, Suggs agreed to reduce the fees to

$22,500 and then to $22,000. “[A]fter discussions and agreement with” Armstrong, Suggs was

paid $22,000 out of the proceeds of the sale of Armstrong’s ex-wife’s house. The employment

agreement between Suggs and Armstrong specified, among other things, that attorneys would be

paid $295 per hour and associate attorneys would be paid $250 per hour, and attorney’s fees

would be billed when they were incurred and would be due and payable upon receipt. The trial

court granted Suggs’ traditional and no-evidence motion for summary judgment, and this appeal

followed.

In two issues, Armstrong argues the trial court erred in granting summary judgment.

Specifically, Armstrong argues Suggs failed to prove the cause of action presented was “in

breach of contract rather than DTPA.” Further, Armstrong argues Suggs provided no citation of

–2– authority to support his argument that expert testimony was necessary to support Armstrong’s

claim of excessive legal fees.

A party seeking a no-evidence summary judgment must assert that no evidence exists as

to one or more of the essential elements of the nonmovant’s claim on which the nonmovant

would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i); Henning v. OneWest Bank

FSB, 405 S.W.3d 950, 957 (Tex. App.—Dallas 2013, no pet.). “The motion must state the

elements as to which there is no evidence.” TEX. R. CIV. P. 166a(i); Henning, 405 S.W.3d at

957. Once the movant specifies the elements on which there is no evidence, the burden shifts to

the nonmovant to raise a fact issue on the challenged elements. See TEX. R. CIV. P. 166a(i);

Henning, 405 S.W.3d at 957; S.W. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).

We review a no-evidence motion for summary judgment under the same legal sufficiency

standard used to review a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-

51 (Tex. 2003); Flood v. Katz, 294 S.W.3d 756, 762 (Tex. App.—Dallas 2009, pet. denied). Our

inquiry focuses on whether the nonmovant produced more than a scintilla of probative evidence

to raise a fact issue on the challenged elements. See King Ranch, 118 S.W.3d at 751; Flood, 294

S.W.3d at 762. Evidence is no more than a scintilla if it is “so weak as to do no more than create

a mere surmise or suspicion” of a fact. King Ranch, 118 S.W.3d at 751. If a no-evidence motion

for summary judgment and a traditional motion for summary judgment are filed which

respectively asserts the plaintiff has no evidence of an element of its claim and alternatively

asserts that the movant has conclusively negated that same element of the claim, we address the

no-evidence motion for summary judgment first. Ford Motor Co. v. Ridgway, 135 S.W.3d 598,

600 (Tex. 2004).

The issue of reasonableness and necessity of attorney’s fees requires expert testimony.

Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762, 771 (Tex. App.—Dallas 2007, no pet.).

–3– The only “unconscionable action or course of action” Armstrong alleged in his DTPA claim was

Suggs’ charging of excessive attorney’s fees. To the extent this claim was more appropriately

characterized as a breach of contract claim, the issue remained whether Suggs charged excessive

attorney’s fees. Suggs’ motion for summary judgment argued the deadline for designating

experts had passed and discovery had closed, but Armstrong had not designated an expert

witness who could testify regarding the excessiveness of Suggs’ attorney’s fees In his response

to the motion for summary judgment, Armstrong stated he relied on his affidavit without

“marshaling all his evidence.” Armstrong did not counter Suggs’ arguments that he could not

prove excessive fees without an expert other than to state Suggs “earlier [admitted] that expert

testimony is not required in DTPA cases.” Thus, it is undisputed that Armstrong did not

designate an expert to testify concerning the excessiveness of Suggs’ attorney’s fees, and the

deadline for designating an expert had passed. Nevertheless, expert testimony was necessary to

establish what attorney’s fees would have been reasonable and necessary. See id. Because no

evidence of excessive attorney’s fees was in the record or forthcoming, we conclude the trial

court did not err in granting Suggs’ no-evidence motion for summary judgment on Armstrong’s

claim. See King Ranch, 118 S.W.3d at 751. Because of our resolution of this issue, we need not

further address Armstrong’s arguments that the cause of action presented was “in breach of

contract rather than DTPA.” TEX. R. APP. P. 47.1. We overrule Armstrong’s first and second

issues.

/David L. Bridges/ DAVID L. BRIDGES JUSTICE

150070F.P05 –4– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

MIKE ARMSTRONG, Appellant On Appeal from the 101st Judicial District Court, Dallas County, Texas No. 05-15-00070-CV V. Trial Court Cause No. DC-13-08688. Opinion delivered by Justice Bridges. JAMES M. SUGGS, JR. AND SUGGS Justices Lang-Miers and Schenck LAW FIRM, P.C., Appellees participating.

In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

It is ORDERED that appellees JAMES M. SUGGS, JR. AND SUGGS LAW FIRM, P.C. recover their costs of this appeal from appellant MIKE ARMSTRONG.

Judgment entered July 15, 2016.

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