john-r-passero-and-wife-nelda-c-passero-v-ronald-d-krist-attorney ( 2004 )

Affirmed and Memorandum Opinion filed February 5, 2004

Affirmed and Memorandum Opinion filed February 5, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00289-CV

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JOHN R. PASSERO AND WIFE, NELDA C. PASSERO, Appellants

V.

RONALD D. KRIST, ATTORNEY;

KRIST, GUNN, WELLER, NEUMAN; ET AL.,

JERRY W. GUNN, ATTORNEY, KENNETH W. BURCH, ATTORNEY,

AND GRAY, BURCH & HADDAD, Appellees

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 02-00377

M E M O R A N D U M   O P I N I O N

In this legal malpractice case, appellants, John R. Passero and Nelda C. Passero, appeal from a judgment granting appellees= motion for summary judgment.  Appellants contend that summary judgment was improperly granted because (1) they presented evidence in support of their claims; (2) appellees= summary judgment evidence was insufficient; and (3) the statute of limitations on their malpractice claim is tolled because the underlying case is still ongoing.  Because all dispositive issues are clearly settled in law, we issue this memorandum opinion, and affirm.  See Tex. R. App. P. 47.4.

Background

Appellees represented appellants in a breach of contract suit.  The case was tried to a jury, which found against appellants on all counts. Four years later, appellants filed this suit claiming appellees had breached the contract, their fiduciary duty and duty of care.  Appellees filed a motion for summary judgment based on both traditional and no-evidence grounds.  The trial court granted the motion, but did not specify the grounds on which it was doing so.  Appellants filed a motion for new trial, which was overruled by operation of law.

Discussion

In their first issue, appellants list their causes of action, and the evidence that supports the elements of those claims.  Although appellants do not specifically state an issue for review, we will treat their first issue as a challenge to the granting of summary judgment on no-evidence grounds.  See Anderson v. Gilbert, 897 S.W.2d 783, 784 (Tex. 1995) (holding briefing rules should be construed liberally, and appellate courts should consider the parties= arguments supporting their issues, and not just the wording of the points). 

A no‑evidence motion for summary judgment shifts the burden to the nonmovant to come forward with some evidence of the essential element or elements challenged in the motion.  Tex. R. Civ. P. 166a(i); Lampasas v. Spring Ctr. Inc., 988 S.W.2d 428, 436 (Tex. App.CHouston [14th Dist.] 1999, no pet.).  If the nonmovant does not satisfy its burden of producing some evidence on the challenged element or elements, the trial court must grant the motion covering all claims or defenses composed of the challenged element or elements.  Tex. R. Civ. P. 166a(i); Lampasas, 988 S.W.2d at 436.  We review the evidence in the light most favorable to the non-movant, disregarding all contrary evidence and inferences.  Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).

Except on leave of court, a response to a motion for summary judgment must be filed by the seventh day before the date of the hearing on the motion.  Tex. R. Civ. P. 166a(c). Appellants filed their response to appellees= motion for summary judgment only five days before the hearing.  The record does not contain an order from the trial court granting appellees= permission to file their response late.  Without any indication this permission was given, we must presume the trial court did not consider the untimely response.  Brown v. Shores, 77 S.W.3d 884, 886 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (citing Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996)).  Nevertheless, even if the trial court did consider the response, it did not contain evidence supporting one or more of the challenged elements. Disregarding the untimely filed response and viewing all evidence in favor of appellants, they presented no evidence in support of their challenged claims.  See Baker v. Gregg County, 33 S.W.3d 72, 79 (Tex. App.CTexarkana 2000, pet. dism=d).  Accordingly, appellees= no-evidence motion for summary judgment was properly granted.  See Tex. R. Civ. P. 166a(i); Baker, 33 S.W.3d at 79. 

In their second issue, appellants claim the traditional motion for summary judgment was improperly granted because the expert affidavit submitted by appellees did not Astate a sufficient basis@ for the affiant=s opinions.  In their third issue, they contend summary judgment was improper because the statute of limitations on a legal malpractice claim is tolled until the underlying claim is finally concluded.  If an order granting summary judgment does not specify the grounds on which it was granted, the judgment will be affirmed if any one of the grounds is meritorious.  Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989).  Because we have already found that summary judgment was properly granted on no-evidence grounds, we need not consider appellants= additional issues.  See id. at 570.

Accordingly, the judgment of the trial court is affirmed.

/s/        Charles W. Seymore

Justice

Judgment rendered and Memorandum Opinion filed February 5, 2004.

Panel consists of Chief Justice Hedges and Justices Anderson and Seymore.