Robert Primo v. Scott Rothenberg

Opinion

ACCEPTED 14-13-00794-CV FOURTEENTH COURT OF APPEALS HOUSTON, TEXAS 7/3/2015 11:52:56 PM CHRISTOPHER PRINE CLERK

NO. 14-13-00794-CV IN THE COURT OF APPEALS FOR THE 14th DISTRICT OF TEXAS FILED IN 14th COURT OF APPEALS AT HOUSTON HOUSTON, TEXAS 7/3/2015 11:52:56 PM ROBERT PRIMO, CHRISTOPHER A. PRINE Clerk Appellant, v.

SCOTT ROTHENBERG, Appellee.

On Appeal from the 133rd Judicial District Court, Harris County, Texas The Honorable Jaclanel McFarland, Presiding Trial Court Cause No. 2012-68391-A

APPELLANT’S MOTION FOR REHEARING

Robert M. Primo, D.D.S. 5023 Grape Street Houston, Texas 77096 Telephone: (713) 669-8444 PRO SE APPELLANT

- 1 - INDEX OF AUTHORITIES

Cases Page Abraham v. Ryland Mortg. Co., 995 S.W.2d 890 (Tex.App.—El Paso 1999) ............................................. 6 Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1 (Tex.App.—San Antonio 2000) ........................................... 5 Freedom Communications, Inc. v. Brand, 907 S.W.2d 614 (Tex.Ap-Corpus Christi 1995)....................................... 6 McConnell v. Southside Ind. Sch. Dist. , 858 S.W.2d 337, 342 (Tex.1993) ............................................................ 9 McConnell v. Southside Ind. Sch. Dist., 858 S.W.2d 337 (Tex.1993) ...................................................................... 5 Mercantile Ventures, Inc. v. Dunkin' Donuts, Inc., 902 S.W.2d 49 (Tex.App.—El Paso 1995) ............................................... 6 Weaver v. Highlands Ins. Co., 4 S.W.3d 826 (Tex.App.—Houston [1st Dist.] 1999) .............................. 6 Page Rules Tex.R.App.P. 33.1.(a)(1) ............................................................................. 3 Tex.R.App.P. 9.5 ....................................................................................... 10 Tex.R.Civ.P. 166a(i) .................................................................................... 6 Tex.R.Civ.P. 166a(i) cmt. ........................................................................ 6, 8

- 2 - TO THE HONORABLE FOURTEENTH COURT OF APPEALS:

This Court’s June 18, 2015, affirming the trial court’s granting

of no-evidence summary judgment is a gross miscarriage of justice. In

its prior opinions this Court affirmed based on erroneous facts – that

Appellant failed to object timely to Rothenberg’s boilerplate evidentiary

objections. That is simply not true and the Clerk’s Record and

Appellant’s Brief clearly show that.

It is undisputed that Appellant filed a timely response on May 6,

2013, seven days before the May 13, 2013, summary judgment hearing.

(C.R. 320-338). The Response contained attached 10 (ten) numbered

exhibits.1 (C.R. 339-743; S.C.R. 4-116). Rothenberg filed a reply with

evidentiary objections late on Friday night, May 10, 2013, at 4:32 pm.

(C.R. 774). Appellant filed a sur-response at the first possible

opportunity to file – at 9:07 am the very next business day – Monday,

May 13, 2013. (C.R. 789). Thus, the sur-response containing the

objections/responses to Rothenberg’s evidentiary objections was

TIMELY and error was preserved for appeal exactly in compliance with

Tex.R.App.P. 33.1.(a)(1) as the record precisely shows that Appellant

1 Exhibits 1-8 are consecutively numbered. (C.R. 339-743; S.C.R. 4-95). Exhibit X, Affidavit of Dr. Robert Primo, is numbered with a Roman numeral X. (S.C.R. 96-109) followed by Exhibit 11 (S.C.R. 110-116).

- 3 - timely complained at length and addressed in his sur-response before

the trial court in detail each and every boiler-plate objection raised by

Rothenberg no matter how preposterous and baseless such objection

may be. (C.R. 798-802). The evidentiary response/objections spanned 14

paragraphs ¶¶27-41. (C.R. 798-802). The same evidentiary objections

and arguments were briefed in tantamount detail and specificity in

Appellant’s Brief, pp. 44-45; 50-55.

By holding that Appellant was required to continue objecting to

the trial court summary judgment again and again in post-judgment

motion(s) would create an entirely new rule for summary judgment

practice which does not currently exist in Texas jurisprudence and is

not supported by the authorities cited supra. This is especially true in

no-evidence summary judgments. There is good reason Texas refused to

incorporate them in the Texas Rules of Civil Procedure for nearly a

century and finally did so only to conform to the Federal Rules of Civil

Procedure. Abuse of such practice, as in the present case denies a

litigant her day in court by trial to a jury, especially in a legal

malpractice case. Deprival of the constitutional right to a trial by jury

has been the theme of all of the related malpractice cases.

- 4 - To start with Rothenberg’s no-evidence MSJ does not reach the

evidentiary level. It was legally insufficient and not worthy of a

response.

Appellant objected at length to the legal insufficiency relying on

an entire excerpt from Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1

(Tex.App.—San Antonio 2000). (C.R. 795 ¶25): A no-evidence motion for

summary judgment “must state the elements as to which there is no

evidence." See Tex.R.Civ.P. 166a(i). The comments to rule 166a(i),

which are "intended to inform the construction and application of the

rule," state: "The motion must be specific in challenging the evidentiary

support for an element of a claim or defense; paragraph (i) does not

authorize conclusory motions or general no-evidence challenges to an

opponent's case.” See Tex.R.Civ.P. 166a(i) cmt. If a no-evidence motion

for summary judgment is not specific in challenging a particular

element or is conclusory, the motion is legally insufficient as a matter of

law and may be challenged for the first time on appeal. See McConnell

v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993) (motion

that fails to present grounds is legally insufficient as a matter of law);

Freedom Communications, Inc. v. Brand, 907 S.W.2d 614, 618

- 5 - (Tex.App.—Corpus Christi 1995); Mercantile Ventures, Inc. v. Dunkin'

Donuts, Inc., 902 S.W.2d 49 (Tex.App.— -El Paso 1995) (defect in

motion not waived by failure to except); see generally TIMOTHY

PATTON, SUMMARY JUDGMENTS IN TEXAS: PRACTICE,

PROCEDURE AND REVIEW §5.06[5][a][ii] (2d ed. Supp.2000)

(conclusory no-evidence motion or one that generally challenges

sufficiency of non-movant's case is fundamentally defective and

insufficient to support summary judgment regardless of lack of

response) [emphasis added]. See also Weaver v. Highlands Ins. Co., 4

S.W.3d 826, 829 n.2 (Tex.App. -Houston [1st Dist.] 1999); Abraham v.

Ryland Mortg. Co., 995 S.W.2d 890, 892 (Tex.App.—El Paso 1999). This

Court’s holding is contrary to the established law and creates a new line

of stare decisis that if just a few of the 72 numbered “items” happen to

remotely match up to some element of the non-movant’s causes of

action, then the entire motion is legally sufficient. That is simply not

the law. 72 numbered “items” definitively categorize Rothenberg’s MSJ

as a “general no-evidence challenge” which is expressly prohibited by

the Supreme Court of Texas. See Tex.R.Civ.P. 166a(i) cmt; McConnell v.

South. Dist., 858 S.W.2d 337, 342 (Tex.1993).

- 6 - This Court issued several exceptionally lengthy opinions, each

more than 15,000 words and 49 pages. This Court mischaracterized the

underlying case as simply one of a fee dispute. This Court misquoted

Appellant’s pleading in the trial court as “legal malpractice and related

torts”. Actually, Appellant voluntarily dismissed claims of legal

malpractice, (C.R. 20-37), not because of lack of merit of a negligence on

the part of Rothenberg but because Rothenberg is judgment-proof and

continuing with the prohibitive cost of a suit-within-the-suit against a

party like Rothenberg who repeatedly complains that he is indigent and

cannot pay his monthly bills related to his virtually non-existent

practice of law. Rothenberg has no insurance policy for legal

malpractice to protect his clients in the event of his own negligence or

breach of fiduciary duty.

Appellant’s first amended answer and counterclaim however

adequately pleads the cause of action of fraud and breach of fiduciary

duty. (C.R. 25). Yet nowhere in any of the multiple opinions by this

Court did this Court even mention the gravamen of Appellant’s

allegations against Rothenberg: that he took on a case with almost no

trial experience which inevitably resulted in major error: Rothenberg’s

- 7 - failure to disclose key witnesses the lawyers who performed the work

for a case of over half a million dollars in legal fees and Rothenberg

showed up for trial without a single fact witness on the issue of

reasonableness and necessity of legal fees of a case well over half a

million dollars. Then Rothenberg refused to disclose his error to his own

client but Rothenberg, immediately upon discovering his error, in the

midst of a psychedelic hysterical fit, covered up his error by trying to

effect an immediate settlement, still not disclosing to his client that

trial would be gravely compromised by his error because the key

witnesses would be precluded from testifying. That is an allegation well

beyond just mere negligence – it is breach of fiduciary duty.

This Court must not forget that Rothenberg blatantly falsified

under oath (a felony criminal offense) the most material document in

the controversy trying to misrepresent the facts that he was somehow

instructed to omit the witnesses.

This Court, in its latest opinion, affirmed Rothenberg’s no-

evidence motion for summary judgment, solely on the basis that

Appellant inadequately briefed how Appellant’s summary judgment

evidence raised genuine issue of material fact. This Court stated:

- 8 - Primo’s brief does not explain how his summary judgment evidence raises a genuine issue of material fact with respect to the 19 elements Rothenberg challenged in his no-evidence summary judgment motion. Thus, Primo’s issue presents nothing for our review. Opinion at 30.

However, as this Court cited, the standard of review for this Court

is to review summary judgment de novo. Duerr v. Brown, 262 S.W.3d

63, 68 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). De novo

means reviewing the evidence that was presented in the trial court.

Appellant properly included that evidence in the record. Transcript of

the Indemnity Suit trial (C.R. 339-743;). Affidavit of the expert Leonard

Meyer. (S1.C.R 4-21); Leonard Meyer’s Expert Report (S1.C.R 22-35);

Correspondence between Appellant and Rothenberg. (S1.C.R 36-42; 43-

61); Appellant’s affidavit (S1.C.R 96-109); Appellant’s discovery

responses. (S1.C.R 62-70; 71-95). Thus, there was a wealth of evidence

for this Court to review de novo.

The affidavit of Appellant is one of facts self-explanatory of the

allegation of breach of fiduciary duty of Rothenberg. (S1.C.R 96-109).

The expert report by Leonard Meyer and his affidavit however are

- 9 - evidence of expert opinion and of the standard of care and how

Rothenberg failed to meet the standard of care. (S1.C.R 4-21; S1.C.R 22-

35);

Unlike a traditional motion for summary judgment, a no-evidence

motion for summary judgment, does not require that respondent

conclusively argue and prove his case for which the respondent bears

the burden to prove at trial, but that respondent.

When reviewing a no-evidence summary judgment, we examine

the entire record in the light most favorable to the nonmovant,

indulging every reasonable inference and resolving any doubts against

the motion. Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex.2006). We

review a no-evidence summary judgment for evidence that would enable

reasonable and fair-minded jurors to differ in their conclusions.

Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008) (citing City of

Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005)). We credit evidence

favorable to the nonmovant if reasonable jurors could, and we disregard

evidence contrary to the nonmovant unless reasonable jurors could not.

Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009) (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006)). The trial

- 10 - court may not grant a no-evidence summary judgment if the respondent

brings forth more than a scintilla of probative evidence to raise a

genuine issue of material fact. See TEX.R. CIV. P. 166a(i); See Jim

Rutherford Investments, Inc. v. Terramar Beach Community Ass'n, 25

S.W.3d 845 (Tex.App.-Houston [14 Dist.] 2000) (citing Merrell Dow

Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). To defeat a

motion made under paragraph (i), the respondent is not required to

marshal its proof; its response need only point out evidence that raises

a fact issue on the challenged elements. Tex.R.Civ.P. 166a(i) cmt. The

amount of evidence required to defeat a no-evidence motion for

summary judgment parallels the standard for directed verdict and for a

no-evidence challenge on appeal from jury trials. Thus, if the

respondent brings forth more than a scintilla of evidence, that will be

sufficient to defeat a no evidence motion for summary judgment.

Morgan v. Anthony, 27 S.W.3d 928 (Tex. 2000); Nicholson v. Smith, 986

S.W.2d 54 (Tex.App.-San Antonio 1999); Isbell v. Ryan, 983 S.W.2d 335

(Tex.App.-Houston [14th Dist.] 1998). A no-evidence summary judgment

is improperly granted when the respondent brings forth more than a

scintilla of probative evidence that raises a genuine issue of material

- 11 - fact. See Tex.R.Civ.P. 166a(i) cmt.; Coastal Conduit & Ditching, Inc. v.

Noram Energy Corp., 29 S.W.3d 282 (Tex.App.- Houston [14th Dist.]

2000); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506

(Tex.2002). Less than a scintilla of evidence exists when the evidence is

“so weak as to do no more than create a mere surmise or suspicion” of a

fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex.1983). More than a

scintilla of evidence exists when the evidence “rises to a level that would

enable reasonable and fair-minded people to differ in their conclusions.”

Havner, 711 (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497,

499 (Tex.1995)).

Neither in the trial court nor in the court of appeals is the quality

of respondent’s argument the standard of review but the respondetn’s

evidence and whether that evidence supports the respondents

pleadings.

There was no complete absence of evidence to support Appellant’s

allegations against Rothenberg. The only evidence presented to the

trial court was Appellant’s evidence and the trial court was not barred

by the rules of law or evidence of giving weight to it. The evidence pof

Rothenberg’s fraud and breach of fiduciary duty was well more than a

- 12 - mere scintilla. Rothenberg presented no evidence to establish the

opposite of the vital fact. In fact Rothenberg may not and did not

present evidence in a no-evidence motion for summary judgment.

By affirming the no-evidence summary judgment, clearly in the

presence of overwhelming evidence, absent any defect in such evidence,

of Rothenberg’s fraud and breach of fiduciary duty, this Court again

sets a brand new standard that no-evidence motion for summary

judgment must be argued rather than the evidence presented in

response to a no-evidence motion for summary judgment. As in the trial

court, this Court also failed to indulge Appellant, as the non-movant,

any, a fortiori, every reasonable inference and resolving any doubts

against the motion.

- 13 - PRAYER

Appellant respectfully requests that this Court reconsider its

latest opinion and reverse the trial court’s no-evidence summary

judgment as to Rothenberg’s blatant fraud and breach of fiduciary duty,

both as affirmative claims and affirmative defenses and remand the

case to the trial court for further proceeding, and award all costs of this

appeal to Appellant.

Respectfully submitted,

/s/ Robert M. Primo APPELLANT

- 14 - CERTIFICATE OF SERVICE

I certify that on the 3rd day of July, 2015, a true and correct copy of the foregoing Appellant’s Motion for Rehearing has been served to Scott Rothenberg in compliance with Tex.R.App.P. 9.5.

/s/ Robert M. Primo Robert M. Primo

Scott Rothenberg Texas Bar No. 17316750 2777 Allen Parkway, Suite 1000 Houston, Texas 77019-2165 Telephone: (713) 667-5300 Telecopy: (713) 667-0052 PRO SE APPELLEE

- 15 -