Susan L. Miller v. J. Mark Brewer and Brewer & Pritchard, P.C. ( 2003 )

NO. 07-01-0298-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 14, 2003

______________________________



SUSAN L. MILLER, APPELLANT

V.

J. MARK BREWER AND BREWER & PRITCHARD, P.C., APPELLEES



_________________________________

FROM THE 55^TH DISTRICT COURT OF HARRIS COUNTY;

NO. 1999-42971; HONORABLE SHERRY RADACK, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and BOYD, S.J. ⁽¹⁾  

OPINION

This appeal arises from the trial court's dismissal, with prejudice, of a legal malpractice suit filed by appellant Susan L. Miller (Miller) against appellees J. Mark Brewer and Brewer & Pritchard, P.C. (Brewer). The suit was dismissed because of Miller's failure to comply with the trial court's order requiring arbitration of the dispute. In pursuing her appeal, Miller presents one issue with three sub-parts. In her issue, Miller asks the overall question whether the trial court erred as a matter of law in its dismissal of her suit because of her failure to comply with the required arbitration. As sub-parts of that question, she asks if appellees were able to compel arbitration pursuant to an attorney-client contract under (a) the Texas Arbitration Act; (b) the Federal Arbitration Act; and (c) under common law. For reasons hereinafter stated, we affirm the judgment of the trial court.

A brief recitation of the procedural history of this appeal is necessary. Miller's suit against Brewer was filed on August 24, 1999. Her suit grew out of Brewer's representation of her in a federal employment discrimination suit against Meridian Bank, Meridian Bancorp, Inc., Meridian Securities, Inc., and Meridian Capital Markets, Inc., which had been filed in the Federal District Court for the Southern District of Texas, Houston Division. In the suit against Brewer, Miller alleged that Brewer settled the federal case without her knowledge, consent, or approval, failed to advise her of the settlement, and obtained a portion of the settlement funds and applied it to Brewer's attorney's fees without her knowledge.

On October 4, 1999, Brewer responded to the suit by filing a plea in abatement, a motion to compel arbitration, and an answer. The motion to compel arbitration was based upon a mandatory arbitration clause contained in a written attorney-client representation contract between Miller and Brewer. On October 15, 1999, Miller responded by asserting that the pages containing the arbitration clause were not in the contract when she signed it and, in the alternative, if she had agreed to the employment contract and the arbitration clause, her agreement was the result of fraud and fraudulent inducement. She also filed supporting affidavits. On December 15, 1999, Brewer filed a brief and supporting affidavits in connection with the plea in abatement and motion to compel arbitration. On December 22, 1999, after a hearing but without receiving evidence other than that contained in the record, the trial court entered its order compelling arbitration within 60 days and abated the case during the arbitration.

On February 16, 2000, Miller filed a demand for arbitration with the American Arbitration Association. On October 20, 2000, Miller filed a motion to set aside the order compelling arbitration and for reinstatement of the case on the court's docket. On November 3, 2000, the trial court denied Miller's motion to reconsider. Miller then revoked the consent to arbitrate and sought to have the case reinstated on the trial court's docket. On May 3, 2001, Brewer filed a motion to dismiss the case because of the failure to arbitrate and, on May 25, 2001, the trial court entered the dismissal order giving rise to this appeal.

In relevant part, the arbitration clause in question here reads:

This agreement is subject to binding arbitration. We do not anticipate a dispute over our representation or related fees and expenses. However, if a dispute should arise, all claims, disputes, controversies, differences or other matters in question arising out of our relationship to each other (including, but not limited to compensation for services rendered by the firm) shall be settled finally, completely and conclusively by arbitration in Houston, Harris County, Texas, in accordance with the Commercial Arbitration Rules of the American Arbitration Association (the "Rules"), by one or more arbitrators chosen in accordance with the Rules . . . .

Discussion

As we have noted, the question Miller presents for our decision is whether, as a matter of law, the trial court erred in entering its order compelling arbitration. Parenthetically, Miller did not request findings of fact from the trial court and does not in this appeal challenge the trial court's resolution of any fact questions underlying its order. A party seeking to compel arbitration must establish the existence of an arbitration agreement and show that the claims asserted fall within the scope of that agreement. In re Oakwood Mobile Homes, Inc., 987 S.W.2d 571, 573 (Tex. 1999). Once a party establishes a claim within the arbitration agreement, the trial court must compel arbitration and stay its own proceedings. Id. In Texas, every reasonable presumption must be decided in favor of arbitration. Nationwide of Bryan, Inc. v. Dyer, 969 S.W.2d 518, 520 (Tex. App.-Austin 1998, no pet.). If a party denies the existence of an agreement to arbitrate, the trial court shall proceed summarily to determine the issue. See Tex. Civ. Prac. & Rem. Code Ann. §171.021 (Vernon. Supp. 2003).

The Texas Arbitration Act (the Act) is found in sections 171.001-171.098 of the Texas Civil Practice & Remedies Code. Miller initially argues that a claim for legal malpractice is a claim for personal injury within the purview of section 171.002(a)(3). In relevant part, that section provides that the Act does not apply to a claim for personal injury unless each party to a claim, on the advice of counsel, agrees to arbitrate and the agreement is signed by each party and each party's attorney. Tex. Civ. Prac. & Rem. Code Ann. §171.002(a) & (c) (Vernon Supp. 2003). There being no such written agreement in this case, Miller reasons that the court's order compelling arbitration was not valid.

In advancing her argument, Miller relies upon the court's decision in In re Godt, 28 S.W.3d 732 (Tex. App.-Corpus Christi 2000, no pet.). In that case, the court held that an arbitration provision in an attorney-client fee agreement was not enforceable under section 171.003(a)(3) because the client did not act on the advice of independent counsel, nor did independent counsel sign the agreement. Id. at 739. The Godt court's conclusion is bottomed on the holding in Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988), in which the court opined that a cause of action for legal malpractice is in the nature of a tort for the purpose of the two-year statute of limitations. En route to its conclusion, the Godt court also noted Sample v. Freemen, 873 S.W.2d 470, 476 (Tex. App.-Beaumont 1994, writ denied), and Estate of Degley v. Vega, 797 S.W.2d 299, 302-03 (Tex. App.-Corpus Christi 1990, no writ), which had arrived at similar holdings. In both of those cases, the courts cited and relied upon Willis as standing for the proposition that a legal malpractice claim is a claim for personal injury. However, we do not read Willis as standing for that generic proposition. Bryan Garner, in his excellent Dictionary of Modern Legal Usage, defines a tort as "a civil wrong; the breach of a duty that the law imposes on everyone" and goes on to comment that that definition is "barely adequate" because "there is no common set of traits that every tort possesses." BRYAN GARNER, A DICTIONARY OF MODERN LEGAL USAGE 885 (2^ND ed. 1995). We do not agree that simply because a legal malpractice suit is classified as a tort, that classification requires the conclusion that such a suit is one for personal injury.

We also note that in its opinion, the Godt court commented on and, in reaching its conclusion, apparently relied upon the fact that "the nature of Godt's complained-of injury in her malpractice claim is an action for personal injury, rather than an action for economic or contractual losses." Godt, 28 S.W.3d at 739. Miller's underlying claim was for economic losses stemming from employment discrimination rather than for personal injury. For these reasons, we do not think the rationale of the Godt decision is applicable here.

Rather, we find the rationale used by the court in In re Hartigan, 107 S.W.3d 684 (Tex. App.-San Antonio 2003, n. pet. h.) helpful. In Hartigan, the court refused to hold that a legal malpractice suit was per se one for personal injuries. The legal malpractice suit involved in that matter arose out of representation in a divorce case and, the court opined the suit was not a claim for personal injury and was not excluded from the scope of the Texas Arbitration Act by section 171.002(a)(3). Id. at 690-91. The suit with which we are concerned arises out of a suit for economic losses as a result of employment discrimination. We hold that it is not a suit for personal injuries within the purview of section 171.002(a)(3) of the Act. Thus, the trial court did not err in entering its order requiring arbitration.

Our holding that, under the Texas Arbitration Act, the trial court did not err in entering its order compelling arbitration, obviates the necessity for discussion of whether the order was permissible under the Federal Arbitration Act or under common law. In summary, we hold the trial court did not, as a matter of law, err in ordering the parties to submit the underlying suit to arbitration. Accordingly, Miller's issue is overruled.

Because of Miller's undisputed refusal to comply with that order, the trial court did not abuse its discretion in entering its dismissal order, and the judgment of the trial court is affirmed.

Per Curiam

NO. 07-01-0298-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL E

OCTOBER 14, 2003

______________________________



SUSAN L. MILLER, APPELLANT

V.

J. MARK BREWER AND BREWER & PRITCHARD, P.C., APPELLEES



_________________________________

FROM THE 55^TH DISTRICT COURT OF HARRIS COUNTY;

NO. 1999-42971; HONORABLE SHERRY RADACK, JUDGE

_______________________________

Before JOHNSON, C.J., and REAVIS and BOYD, S.J. ⁽²⁾

CONCURRING OPINION

Considering the procedural posture of this case, I concur in the result, only.

Don H. Reavis

Justice

1. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

2. John T. Boyd, Chief Justice (Ret.), Seventh Court of Appeals, sitting by assignment. Tex. Gov't Code Ann. §75.002(a)(1) (Vernon Supp. 2003).

expenses but denied a recovery for pain. 736 S.W.2d at 204. The appellate court reversed and remanded for a new trial. Id. at 205. The brief descriptions of the cuts in the opinion offer little basis on which to compare those injuries to the single half-inch cut suffered by John. Medical testimony in Porter indicated, though, that one of the wounds required treatment by cleaning. Id. The jury here was not required to accept John's testimony, which was not supported by the medical records, that his cut required stitches.

As we read the record, John's complaints of pain in his elbow must be regarded as more subjective than objective. It is not clear from the medical records, for instance, what objective evidence showed that the elbow was "contused." During his testimony, John most often used the term "sore" when describing his elbow's condition following the accident. He testified also that the emergency room physician did not prescribe pain medication for him, but advised over-the-counter medications. The jury could have concluded that John's injuries were so minor as not to merit an award for pain and suffering. See Biggs v. GSC Enterprises, Inc., 8 S.W.3d 765, 769 (Tex.App.-Fort Worth 1999, no pet.) (mere fact of injury does not prove compensable pain and suffering).

Viewing all the evidence before the jury in light of the case authority discussed, we find the jury's denial of an award of pain and suffering to either plaintiff was not so against the great weight of the evidence as to be clearly wrong and manifestly unjust.

Appellants also challenge the denial of any recovery for physical impairment and Aide's lost wages. As evidence of her physical impairment, they cite testimony that Aide is no longer able to play basketball, has pain when taking walks and is no longer able to "fully enjoy dancing." The supreme court discussed the requirements for an award of damages for physical impairment in Golden Eagle, 116 S.W.3d at 763, et seq. That discussion confirms previous case law holding that the effect of a plaintiff's physical impairment must be substantial and extend beyond any pain, suffering, mental anguish, lost wages or diminished earning capacity. Id. at 772. ⁽⁷⁾ Appellants' cited evidence of Aide's physical impairment comes entirely from their testimony and that of their friend Alice Guerrero. Although the jury was not instructed concerning the meaning of physical impairment, we find the jury's apparent evaluation of the substance and extent of Aide's physical impairment was not clearly wrong or manifestly unjust.

As evidence of Aide's lost wages, appellants rely primarily on Dr. McCarty's "health status certificate" that Aide not work for one week and her testimony that she made $8.75 per hour. They argue this established she lost wages of $490 and was entitled to recover this amount. The jury was not bound by the evidence of Dr. McCarty's opinion that Aide should not work for one week. Ponce, 68 S.W.3d at 806. Aide also testified her absence from work was due to the pain she experienced. To the extent her claim to these damages depended on that necessarily subjective basis, the jury's evaluation of her credibility and demeanor must be afforded significant deference. Id. Based on the record before us, we cannot say the jury's resolution of those matters and denial of any recovery for lost wages was so against the great weight of the evidence as to be clearly wrong and manifestly unjust. We overrule appellants' second issue.

Our overruling of appellants' issues challenging the jury's findings that appellants suffered no compensable damages requires that we affirm the take-nothing judgment. Discussion of their third issue is thus not necessary to our disposition of the appeal. We affirm the trial court's judgment.

James T. Campbell

Justice

1. See Grove v. Overby, No. 03-03-0700-CV, 2004 WL 1686326 (Tex.App.-Austin July 29, 2004, no pet.) (mem. op.) (section 18.001 affidavits not conclusive on reasonableness or necessity of charges despite absence of controverting affidavit), issued after appellants filed their brief in this appeal. See also Sloan v. Molandes, 32 S.W.3d 745, 752 (Tex.App.-Beaumont 2000, no pet.); Beauchamp v. Hambrick, 901 S.W.2d 747, 748 (Tex.App.-Eastland 1995, no writ).

2. Neither Dr. McCarty nor any other medical expert testified. Dr. McCarty's records contain this diagnosis from his initial examination of Aide: (1) acute cervical strain, (2) acute thoracic strain, (3) acute upper lumbar strain, and (4) first degree sprain of the right ankle. The jury was not provided any evidence of the meaning of the terms "acute" and "first degree."

3. See also Golden Eagle, 116 S.W.3d at 775, in which the supreme court, discussing evidence that overlaps categories of damages for physical injury, cautioned that the jury's discretion to resolve conflicting evidence about the existence and severity of physical injury and associated pain "does not mean, however, that a verdict awarding no damages for pain and suffering should be upheld on appeal if there is objective, undisputed evidence of a significant injury and the jury could not have compensated the injured party in some other category of damages."

4. As noted, the emergency room report indicates her right ankle was swollen and "abnormal" in appearance. Dr. McCarty's report from his initial examination twelve days after the accident contains the statement, "Some soft tissue swelling is noted around the right ankle." McCarty's report a week later refers to the swelling as "minimal," and swelling is not noted thereafter in his periodic reports. The contusion to Aide's chest also is noted in the emergency room report. Dr. McCarty's report of his initial examination describes it as a "resolving hematoma." It is not mentioned again in the records.

5. Appellants also compare the evidence of their injuries with those described in Hammett, 804 S.W.2d at 668 (comparing objective evidence of injury to one plaintiff through medical testimony of analysis of x-ray with absence of such evidence of injury to second plaintiff), Davis v. Davison, 905 S.W.2d 789 (Tex.App.- Beaumont 1995, no writ) (pain from objective burn injury), Russell v. Hankerson, 771 S.W.2d 650 (Tex.App.-Corpus Christi 1989, writ denied) (with conflicting evidence of fracture to foot, court found "objective symptoms of injury" in severe swelling of foot and black discoloration indicating bleeding of tissues), Porter v. General Tel. Co., 736 S.W.2d 204 (Tex.App.-Corpus Christi 1987, no writ) (lacerations), and Monroe v. Grider, 884 S.W.2d 811 (Tex.App.-Dallas 1984, writ denied) (fractured wrist). The subjective nature of Aide's primary complaints distinguishes her claim for pain and suffering from those asserted in these cases.

6. Too, the appeals court in Sansom gave significance to the jury's finding that the plaintiff had suffered a compensable injury, as shown by its award of medical expenses. Id. at 293. The jury here did not award damages for medical expenses, or for any other category of damages.

7. The court also instructed that review of the factual sufficiency of evidence supporting jury findings on claimed physical impairment damages must take into account the extent to which the jury may have compensated the plaintiff for such damages through its award in another category of damages. Id. at 773. In this case, of course, the jury awarded no damages in any category.