Robert McLendon v. Richard Gregory "Rick" Detoto

• Court: Court of Appeals of Texas
• Decided: July 3, 2007
• Docket: 14-06-00658-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed July 3, 2007

Affirmed and Memorandum Opinion filed July 3, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00658-CV

ROBERT McLENDON, Appellant

V.

RICHARD GREGORY ARICK@ DETOTO, Appellee

On Appeal from the 334th District Court

Harris County, Texas

Trial Court Cause No. 05-61887

M E M O R A N D U M   O P I N I O N

Appellant, Robert McLendon, appeals the judgment entered in favor of appellee, Richard Gregory Detoto, on appellant=s claims for legal malpractice, professional negligence, breach of legal duty, breach of contract, and Deceptive Trade Practices Act violations, which arose out of appellee=s representation of appellant in the underlying criminal prosecution.  We affirm.

Factual and Procedural Background

On October 7, 2003, McLendon was convicted of arson and his conviction was affirmed by this court on June 2, 2005.  See McLendon v. State, 167 S.W.3d 503 (Tex. App.CHouston [14th Dist.] 2005, pet. ref=d).  The Court of Criminal Appeals refused McLendon=s petition for discretionary review on January 31, 2007.  On September 28, 2005, McLendon filed an original petition alleging legal malpractice against Detoto, his trial attorney.  Specifically, McLendon alleged Detoto failed to (1) obtain a pretrial bond reduction, (2) obtain release for McLendon from Administrative Segregation, and (3) visit McLendon in the Harris County Jail prior to trial.  On December 2, 2005, McLendon attempted to add causes of action for professional negligence, breach of legal duty, breach of contract, and Deceptive Trade Practices Act (ADTPA@) violations.^[1]

On March 21, 2006, Detoto filed a no-evidence motion for summary judgment alleging McLendon=s legal malpractice claim failed because the record contained no evidence that his conviction had been overturned.  Further, Detoto asserted that in alleging other causes of actions, McLendon improperly fractured his legal malpractice claim into claims for breach of contract and DTPA violations.  The trial court granted summary judgment.  In five issues, McLendon challenges the trial court=s judgment contending he raised more than a scintilla of evidence to support his claims, Detoto=s motion did not address all causes of action, and he was afforded an inadequate amount of time in which to conduct discovery.

Standard of Review

A no‑evidence summary judgment is improperly granted when the respondent brings forth more than a scintilla of probative evidence raising a genuine issue of material fact. Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. AppCHouston [14th Dist.] 2000, no pet.).  Our review is de novo, taking the evidence in a light most favorable to the nonmovant and disregarding all contrary evidence and inferences. Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  When, as here, the trial court=s order does not specify the grounds upon which it relied, we must affirm if any ground is meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000).

Legal Malpractice

In his first and second issues, appellant contends the trial court erred in granting Detoto=s motion for summary judgment because (1) Detoto failed to show he was entitled to summary judgment, and (2) appellant responded to the motion with more than a scintilla of evidence thereby raising a genuine issue of fact.  Generally, to recover on a claim of legal malpractice, a plaintiff must prove that (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff=s injuries, and (4) damages occurred.  Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004).  The Texas Supreme Court has held that plaintiffs who have been convicted of a criminal offense may negate the sole proximate cause bar to their claim for legal malpractice in connection with that conviction only if they have been exonerated on direct appeal, through post-conviction relief, or otherwise.  Peeler v. Hughes & Luce, 909 S.W.2d 494, 497B98 (Tex. 1995).  McLendon presented no evidence that he has been exonerated.  To the contrary, his conviction has been affirmed by this court, and the Court of Criminal Appeals refused discretionary review of this court=s decision.  McLendon presented no evidence of any other post-conviction relief. 

McLendon contends that because he is complaining of pretrial matters, he need not show exoneration to maintain a legal malpractice action.  McLendon cites no authority, however, to overcome the causation standard enunciated in Peeler.  McLendon=s conviction is the sole proximate cause of his injuries, whether those injuries occurred pretrial or during trial.  See Golden v. McNeal, 78 S.W.3d 488, 492 (Tex. App.CHouston [14th Dist.] 2002, pet. denied).  Because McLendon did not present evidence of an essential element of his claim, the trial court properly granted summary judgment for Detoto on the issue of legal malpractice.  We overrule McLendon=s first two issues.

Remaining Causes of Action

In his third and fourth issues, McLendon contends that Detoto=s motion addressed only his legal malpractice claim; therefore, summary judgment is not proper on his causes of action for professional negligence, breach of a legal duty, breach of contract, and violation of the DTPA.  Rule 166a requires the motion for summary judgment to state the specific grounds therefor, and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response. Tex. R. Civ. P. 166a(c).  A motion for summary judgment must itself expressly present the grounds upon which it is made.  McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).

In his motion for summary judgment, Detoto alleged that McLendon impermissibly fractured his legal malpractice action into other causes of action.  The rule against dividing or fracturing a negligence claim prevents legal malpractice plaintiffs from opportunistically transforming a claim that sounds only in negligence into other claims.  Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  If the gist of a client=s complaint is that the attorney did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess, then that complaint should be pursued as a negligence claim, rather than some other claim.  Id.

In asserting additional causes of action, McLendon did not assert any facts different than those alleged in his legal malpractice action.  By asserting that McLendon improperly fractured his legal malpractice claim, Detoto sufficiently addressed all causes of action in his motion for summary judgment.  The gist of McLendon=s complaint is that Detoto did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess.  Such a cause of action should be pursued as a negligence claim.  Furthermore, under any of the theories alleged, a plaintiff must present evidence of causation, which McLendon failed to do.  See Peeler, 909 S.W.2d at 497B98.  We overrule McLendon=s third and fourth issues.

Adequate Time for Discovery

In his fifth issue, McLendon contends the trial court erred in granting Detoto=s no-evidence motion for summary judgment because he was not permitted an adequate time for discovery.  A party may move for a no‑evidence summary judgment only after adequate time for discovery. Tex. R. Civ. P. 166a(i).  In considering whether the trial court has permitted an adequate time for discovery, we consider factors such as (1) the nature of the case, (2) the nature of evidence necessary to controvert the no‑evidence motion, (3) the length of time the case was active, (4) the amount of time the no‑evidence motion was on file, (5) whether the movant requested stricter deadlines for discovery, (6) the amount of discovery that had already taken place, and (7) whether the discovery deadlines in place were specific or vague.  Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 467 (Tex. App.CHouston [14th Dist.] 2005, pet. denied). We review a trial court=s determination that there has been an adequate time for discovery on a case‑by‑case basis, under an abuse of discretion standard.  Id.

This is a case in which McLendon alleges Detoto was negligent in his representation of McLendon at his arson trial.  McLendon cannot maintain a legal malpractice action unless he can show he has been exonerated.  See Peeler, 909 S.W.2d at 497B98.  The suit was filed September 28, 2005.  The trial court ordered that discovery was to end on September 21, 2006.  Detoto filed his no-evidence motion before the discovery deadline on March 21, 2006.  McLendon claims he was only in the initial stages of discovery when the trial court granted summary judgment, five months before the deadline for the completion of discovery.

The rule does not require that discovery must have been completed, only that there was adequate time.  In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.CTexarkana 1998, orig. proceeding).  The comment to rule 166a(i) explains that a discovery period set by pretrial order should be adequate opportunity for discovery unless there is a showing to the contrary, and ordinarily a motion would be permitted after the period but not before.  Tex. R. Civ. P. 166a (i) comment.  This comment, unlike other notes and comments in the rules of civil procedure, was specifically intended to inform the construction and application of the rule.  Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  In the seven months this case was pending, both parties filed requests for disclosure.  No other discovery was sought.  The nature of this case was such that further discovery could not have aided McLendon.  Without producing evidence of exoneration, McLendon could not defeat summary judgment.  The trial court did not abuse its discretion in granting the no-evidence motion for summary judgment prior to the deadline for the completion of discovery.  We overrule appellant=s fifth issue.

Conclusion

Because the sole proximate cause of McLendon=s injury is his criminal conviction, and McLendon has presented no evidence of exoneration, we affirm the judgment of the trial court.

/s/      J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed July 3, 2007.

Panel consists of Chief Justice Hedges and Justices Hudson and Guzman.

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^[1]  McLendon filed documents titled AMotion to Amend Lawsuit@ and ASupplement to Plaintiff=s Motion to Amend Lawsuit.@  While it is unclear from the record whether the trial court granted McLendon=s motion, it is apparent the parties proceeded as if the petition had been properly amended.