Viki Chen v. David Mestemaker

• Court: Court of Appeals of Texas
• Decided: May 13, 2004
• Docket: 01-02-01194-CV
• Status: Published

Opinion

Opinion issued May 13, 2004

In The

Court of Appeals

For The

First District of Texas

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NO. 01-02-01194-CV

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VIKI CHEN, Appellant

V.

DAVID MESTERMAKER, GILBERT & MESTERMAKER, AND MESTERMAKER & STRAUB, Appellees

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On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2001-54063

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MEMORANDUM OPINION

          Appellant, Viki Chen, proceeding pro se, challenges the trial court’s rendition of summary judgment on all of the causes of action that Chen asserted against appellees, David Mestermaker and his law firm, Mestermaker & Straub (formerly Gilbert & Mestermaker) (collectively, Mestermaker), who had previously represented Chen in her divorce from her former husband, Ann-Tai Lee.

          In 11 issues, Chen contends that the trial court erred in granting Mestermaker’s no-evidence motion for summary judgment because (1) “[t]he trial court did make numerous errors regarding the introduction of evidence,” (2) “[t]he trial court’s erroneous rulings resulted in harm,” (3) “David [Mestermaker] did malpractice in Viki’s case at 1997-1999,” (4) “David’s negligence resulted in harm,” (5) “David’s breach of fiduciary duty resulted in harm,” (6) “David’s fraud resulted in harm,” (7) “David’s negligent misrepresentation resulted in harm,” (8) “David is a lier [sic] and a deceiver,” (9) “David’s deceptive trade practices resulted in harm,” (10) “Viki is entitled to the [sic] award of exemplary damages . . . in an amount to be determined by the jury,” and (11) “Viki suffer [sic] mental anguish and economic damages.”

          We affirm.

Factual and Procedural Background

          Chen and her former husband, Lee, who were both from Taiwan, met in Houston in January 1992 and began living together shortly thereafter. In May 1992, Chen transferred the titles to a townhouse and seven parcels of real property to Lee. Chen and Lee were subsequently ceremonially married in December 1993. In April 1994, Chen, represented by Mestermaker, filed a petition to divorce Lee.

          In the divorce proceedings, Lee argued that the townhouse and the real property were his separate property, and therefore not subject to division by the trial court, because Lee had acquired them before their ceremonial marriage. Following a bench trial, the trial court found that Chen and Lee had been common-law married before Lee had acquired title to the disputed properties, and, in its 1995 divorce decree, the trial court characterized those properties as community property subject to division.

          Lee then filed an appeal to this Court challenging the sufficiency of the evidence to support the trial court’s finding that Chen and Lee had been common-law married before their ceremonial marriage. On appeal, we held that the evidence presented to the trial court was not legally sufficient to establish the existence of a common-law marriage, and we reversed the trial court’s judgment and remanded the cause for further proceedings. See Lee v. Lee, 981 S.W.2d 903, 907 (Tex. App.—Houston [1st Dist. 1998, no pet.). On remand, the trial court found that there had been no common-law marriage, and Chen and Lee stipulated that the seven parcels of real property were Lee’s separate property. The trial court gave effect to this stipulation and awarded the seven parcels of real property to Lee.

          Chen subsequently fired Mestermaker and filed a motion for new trial, in which she alleged that (1) the property stipulation had been made against her wishes, (2) Mestermaker had refused to allow her to present the testimony of her witnesses before the trial court, and (3) Lee had defrauded the trial court by claiming Chen’s separate property as his own. The trial court denied Chen’s motion for new trial, and she appealed to this Court.

          In the second appeal, Chen argued that the trial court erred in (1) awarding the disputed seven parcels of real property to Lee, (2) denying Chen’s motion for new trial, and (3) denying Chen the opportunity to present evidence that Lee had committed fraud. We overruled Chen’s points of error and affirmed the judgment of the trial court. See Lee v. Lee, 44 S.W.3d 151, 154 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).

          In October 2001, Chen filed a lawsuit against Mestermaker, alleging that, in his representation of her in the original appeal to this Court and in the subsequent trial on remand, Mestermaker had intentionally or negligently mishandled her case. In her petition, Chen asserted causes of action against Mestermaker for negligence, breach of fiduciary duty, fraud, negligent misrepresentation, violations of the Deceptive Trade Practices–Consumer Protection Act (DTPA), negligence per se, and conspiracy. Chen also sought actual and exemplary damages totaling $715,000.

          Mestermaker answered the suit and generally denied the allegations in Chen’s petition. He subsequently filed a no-evidence motion for summary judgment, in which he argued that Chen could not produce any evidence to establish that Mestermaker had breached any duty that he had owed to her or that she had sustained any damages as a result of his alleged acts or omissions. The trial court granted the motion and rendered summary judgment against Chen on all of her claims. Chen subsequently filed a motion to reinstate her case and a motion for new trial, both of which were denied by the trial court.

No-Evidence Summary Judgment

          In 11 issues, Chen contends that the trial court erred in granting Mestermaker’s no-evidence motion for summary judgment and in rendering judgment against her on all of her claims because such ruling was “contrary to the great weight of evidences [sic].”

          When a party moves for summary judgment under Texas Rule of Civil Procedure 166a(i) on the ground that there is no evidence of one or more essential elements of the non-movant’s claims, upon which the non-movant would have the burden of proof at trial, the movant does not bear the burden of establishing each element of its own claim or defense. Tex. R. Civ. P. 166a(i). Rather, the movant must specifically state the elements of the non-movant’s claims as to which there is no evidence. Id.; Spradlin v. State, 100 S.W.3d 372, 377 (Tex. App.—Houston [1st Dist.] 2002, no pet.). The burden then shifts to the non-movant to produce evidence that raises a fact issue on the challenged elements. Spradlin, 100 S.W.3d at 372. “The court must grant the motion unless the respondent produces summary judgment evidence raising a genuine issue of material fact.” Tex. R. Civ. P. 166a(i). A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003); Valero Mktg. & Supply Co. v. Kalama Int’l, 51 S.W.3d 345, 350 (Tex. App.—Houston [1st Dist.] 2001, no pet.).

          Here, in his no-evidence motion for summary judgment, Mestermaker asserted that Chen could not produce any evidence to show that he had either breached any duty that he had owed to Chen or that Chen had sustained any damages as a result of Mestermaker’s alleged actions or omissions. In her response to the motion, Chen argued that she had sustained damages as a result of Mestermaker’s alleged acts and omissions during the appeal of the trial court’s original divorce decree and the subsequent trial on remand from this Court’s 1998 opinion. In her brief, Chen argues that her designation of expert witnesses—which she filed with the trial court prior to the filing of Mestermaker’s motion, and to which she attached numerous documents, pleadings from earlier proceedings, and other discovery materials—was sufficient proof to show that “Viki has a lot of evidences [sic]” establishing that Mestermaker had intentionally or negligently mishandled her case. However, the record indicates that Chen attached no summary judgment evidence to her response to the motion for summary judgment; nor did she incorporate, by general or specific reference in her response, any of the discovery materials previously filed or obtained by the parties in the trial court. Rather, Chen’s response to Mestermaker’s 166a(i) motion for summary judgment rested solely on the unsworn allegations contained in the response itself.

          As a general rule, a party’s pleadings will not constitute competent summary judgment evidence, even if sworn or verified. Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). We hold that, in the absence of any competent summary judgment evidence to support the essential, challenged elements of her claims, Chen did not raise a fact issue as to those elements sufficient to defeat Mestermaker’s no-evidence motion for summary judgment. See Tex. R. Civ. P. 166a(i). Accordingly, we hold that the trial court did not err in rendering summary judgment for Mestermaker on all of Chen’s causes of action.

          We overrule Chen’s 11 issues.

Conclusion

          We affirm the judgment of the trial court.

                                                                        Terry Jennings

                                                                        Justice

Panel consists of Justices Nuchia, Jennings, and Keyes.