Jose M. Lopez and Blanca Alvarez, Individually and as Next Friends of Vianca Lopez and Kassandra Lopez, Minors, and Eva Alvarez v. Juan Pablo Sandoval ( 2006 )

                              NUMBER 13-03-322-CV

                         COURT OF APPEALS

                     THIRTEENTH DISTRICT OF TEXAS

                         CORPUS CHRISTI - EDINBURG

JOSE M. LOPEZ AND BLANCA

ALVAREZ, INDIVIDUALLY AND

AS NEXT FRIENDS OF VIANCA

LOPEZ AND KASSANDRA LOPEZ,

MINORS, AND EVA ALVAREZ, Appellants,

                                                             v.

JUAN PABLO SANDOVAL,                                                              Appellee.

    On appeal from the 103rd District Court of Cameron County, Texas.

                               MEMORANDUM OPINION

          Before Chief Justice Valdez and Justices Yañez and Castillo

                            Memorandum Opinion by Justice Yañez

Appellants, Jose M. Lopez (ALopez@) and Blanca Alvarez, individually and as next friends of their minor children, Vianca and Kassandra Lopez, and Eva Alvarez (Blanca=s sister), sued appellee, Juan Pablo Sandoval, for injuries appellants allegedly sustained on March 22, 1998, when appellee=s vehicle Arear-ended@ the truck in which they were riding.  After the close of evidence presented to a jury, the trial court granted appellants a directed verdict on liability.  The only issue remaining for the jury was the amount of damages, if any, sustained by appellants.  The jury returned a verdict of zero damages and the trial court issued a take-nothing judgment against appellants.  By three issues, appellants contend (1) the trial court erred in denying their motion to disqualify Roerig, Oliveira & Fisher (Athe Roerig firm@), the law firm representing appellee, based on the firm=s prior representation of Lopez; (2) the trial court erred in allowing appellee=s counsel to impeach Lopez=s credibility by questioning him about the prior matter; and (3) the evidence is legally and factually insufficient to support the jury=s award of zero damages.  We affirm.

                                                   I.  DISQUALIFICATION ISSUE

In their first issue, appellants contend the trial court erred in denying their motion to disqualify appellee=s law firm, the Roerig firm, based on the firm=s prior representation of Lopez in a 1996 matter. 

During the cross-examination of Lopez, appellee=s counsel (an attorney with the Roerig firm) attempted to impeach Lopez by establishing his involvement in a 1996 accident, which he had failed to disclose in response to discovery requests.^[1]  Following the cross-examination, it was revealed that the Roerig firm had represented Lopez as a defendant in a lawsuit arising out of the 1996 accident. Appellants moved for a mistrial and to disqualify the Roerig firm from representing appellee in the present matter. The trial court denied the motions.

                                                         A.  Standard of Review

We review a trial court=s ruling on a motion to disqualify under an abuse of discretion standard.^[2]  We will reverse the trial court's decision only where the trial court acted without reference to any guiding rules or principles, or acted in an arbitrary or unreasonable manner.^[3]

                                                                Applicable Law

ADisqualification is a severe remedy.@^[4]  AIt can result in immediate and palpable harm, disrupt trial court proceedings, and deprive a party of the right to have counsel of choice.@^[5]  AIn considering a motion to disqualify, the trial court must strictly adhere to an exacting standard to discourage a party from using the motion as a dilatory trial tactic.@^[6]

When contemplating whether disqualification of counsel is proper, the court must determine whether the matters embraced within the pending suit are substantially related to the factual matters involved in the previous suit.^[7]  The severity of the remedy of disqualification requires the movant to establish a preponderance of the facts indicating a substantial relation between the two representations.^[8]  The moving party must prove the existence of a prior attorney-client relationship in which the factual matters involved were so related to the facts in the pending litigation that it creates a genuine threat that confidences revealed to his former counsel will be divulged to his present adversary.^[9]  Sustaining this burden requires evidence of specific similarities capable of being recited in the disqualification order.^[10]  If this burden can be met, the moving party is entitled to a conclusive presumption that confidences and secrets were imparted to the former attorney.^[11]

                                                                   B.  Analysis

The threshold issue is whether the matters involving the prior and current representations are Asubstantially related.@^[12]  Appellants argue that pursuant to the Roerig firm=s representation of Lopez in 1996, the firm would have had access to medical records reflecting injuries sustained by Lopez as a result of the 1996 accident.  According to appellants, by pleading the affirmative defense of pre-existing condition in the present case, appellee Acreated a direct factual relationship@ between injuries sustained by Lopez in the 1996 accident and injuries he sustained in the 1998 accident at issue in the present case. 

Appellee responds that the information regarding Lopez=s 1996 automobile accident was not obtained from the Roerig firm=s prior representation of Lopez, but from the Mission Police Department.  Appellee contends that appellants failed to present any evidence that Lopez discussed his physical condition, either prior to or after the 1996 accident, with the Roerig firm prior to termination of the case. Appellee contends that appellants failed to establish that the matters involved in the 1996 representation are Asubstantially related@ to the matters involved in the present case. We agree.                 

The record contains a letter issued by the trial court explaining its ruling.  The letter states, in relevant part:

To satisfy the substantial relationship test as a basis for disqualification, a movant must prove that the facts of the previous representation are so related to the facts in a pending litigation that a genuine threat exists that confidences revealed to former counsel will be divulged to a present adversary.  Mere allegations of unethical conduct or evidence showing a remote possibility of a violation of the Disciplinary Rules will not suffice under this standard.  Furthermore, the movant may not rely upon conclusory statements but must provide the trial court with sufficient information so that it can engage in a painstaking analysis of the facts.  While a movant need not divulge any confidences, he must delineate with specificity the subject matter, issues, and causes of actions presented in the former representation.  Sustaining this burden requires evidence of specific similarities capable of being recited in the disqualification order.

The Court must then look at the two cases in question to see if they were so related that it creates a genuine threat that confidences revealed to the former counsel will be divulged to the present adversary.  The known facts of the 1996 case are that the defendant was involved in an automobile accident and, as a result thereof, he was sued by a party unrelated to this case.  The Roerig firm represented plaintiff Lopez as a defendant in the 1996 accident case after being employed to do so by plaintiff Lopez= [sic] insurance carrier at the time.  Although there is no specific evidence to that effect, the Court presumes that the nature of the lawsuit was for personal injuries and/or property damage to the party filing the lawsuit.  No specifics were provided to the Court regarding the nature of the issues in the case. The Court can reasonably conclude from the evidence that the opposing party filed a negligence case alleging that the plaintiff Lopez= [sic] negligence proximately caused damages to him in the 1996 case.  The Court is sufficiently familiar with the trial of automobile accident cases to know that the defense lawyer would need to inquire of the client about the nature of the 1996 accident to determine its defenses to a negligence claim and to determine if the opposing party=s driving behavior gave rise to a comparative negligence claim.  Additionally, depending on the nature of damages claim by the opposing party, the defense counsel would be obliged to inquire of its client about relevant factors such as the severity of the accident, the damages to the vehicle, any conversation or admissions made by the opposing party in the aftermath of the accident and factors relevant to the presumed police investigation at the scene.  There is no suggestion in the evidence of this case that the Roerig firm brought any form of cross action for any damages which the plaintiff Lopez may have suffered in the 1996 accident.  It would be unusual that the firm hired by the insurance company to represent a defendant would file a cross action for damages in such a case or that the law firm might have been involved in confidential representations made to a different attorney employed for the purpose of pursuing a cross action. Without such evidence, the Court must necessarily find that there is no evidence of such and presume that the attorneys only inquired into things relevant to the defense.  The Court finds that the plaintiff Lopez= [sic] physical condition, specifically, any neck injuries either pre-existing in the 1996 accident or caused by the 1996 accident would not be typically relevant information that the attorney would discuss with a defendant in such a case.  While the defendant is not required to divulge the confidences discussed with the lawyer, he is required to make a general showing that some confidences which would relate to the 1998 case [the present case] were discussed.  Had such discussions occurred, the plaintiff Lopez could have informed this Court generally that in preparing for trial, he discussed with his attorneys his physical condition as to either the 1991 accident or the 1996 accident or both. There is no testimony to the effect that such matters were discussed. 

. . .  Since the 1996 accident case was terminated in 1997, the year before the accident involved in the case herein, the only potential relevant confidential information which could have been provided to his then defense attorneys would have been any information regarding his medical history either prior to the 1996 accident or subsequent to the 1996 accident up until the case was settled in 1997.  Since there has been no evidence to show that his own physical condition either prior to or after the 1996 accident was ever discussed with his lawyers prior to termination of the case in 1997 and since it is not logical to assume that his then defense attorneys would have had any reason to discuss his physical condition with him, it does not appear to the Court that there is a substantial relationship between the 1996 case and the 1998 case.

We have reviewed the entire record.  Regarding the 1996 accident, Lopez testified as follows: 

Q [Lopez=s counsel]: The >96 accident, the one I am talking about, the one that you said you could not remember.  Did they [attorneys at the Roerig firm] talk to you about the injuries that you sustained in that accident?

A [Lopez]: I mean, I can=t honestly remember what all went on, I know I just went in there to talk to them, and yes, they might have.  I just don=t remember exactly one way or the other.

                                                               . . . .

Q:  And did you tell them when they represented you about the accident that happened in >96, what happened in the accident?

A:  At that time to them?

Q: Right, did you explain to the attorneys, Roerig Oliveira & Fisher?

A: Yes.

Q: Did you tell them what happened in the accident?

A: Yes, I had to go in several times to talk to them.

Q: How many times?

A: I am going to say about two or three times. I mean, I don=t remember.

Q: Did you sign any papers when you went over there those two or three times?

A: I know I signed paperwork in regards to that >96 accident.

Q: Okay.  Like do you remember what kind of documents they were?

A: I don=t recall.

Q: Okay.  And you said you don=t recall telling them about the injuries that you suffered as  result of the 1996 accident?

A: Maybe I did, I don=t know.  I mean it=sB

Q: Okay.  And did you pay for the representation that Roerig, Oliveira & FisherB did you pay them to represent you or did the insurance company pay them to represent you?

A: No, I think the insurance company was the one that did all that.

As noted, appellants had the burden of establishing that the matters are  Asubstantially related.@^[13]  We conclude that appellants failed to bring forth Aevidence of specific similarities capable of being recited in the disqualification order.@^[14]  We hold that on the evidence presented, based on the Coker standard, the trial court did not abuse its discretion in concluding that no substantial relationship existed between the former and current representations.^[15]  Accordingly, we hold the trial court did not err in denying appellants= motion to disqualify.  We overrule appellants= first issue.

                                                Dissenting Opinion

The dissent concludes that the trial court abused its discretion in denying appellants= motion because appellants established that the matters involving the prior and current representations are Asubstantially related.@  The dissent finds the matters are Asubstantially related@ because any injuries sustained by Lopez in prior accidents, including the 1996 accident, are relevant to appellee=s defense of pre-existing condition.  In support, the dissent points to Lopez=s testimony that he struck his head in the 1996 accident and that he recalls speaking to his prior attorneys several times to explain what happened during the 1996 accident. The dissent notes Lopez=s testimony that he may have mentioned his injuries to the attorneys.  The dissent finds that the Aassumptions@ made by the trial court that Lopez did not provide any information pertaining to his injuries are not supported by the evidence.  The dissent concludes that the appellants satisfied the test set out in Coker by establishing that the two matters are substantially related.^[16]  

We are unpersuaded that the evidence cited by the dissent is sufficient to meet the burden outlined in Coker of establishing that the matters are Asubstantially related.@^[17]  We   conclude that appellants failed to prove the existence of a prior attorney-client relationship in which the factual matters involved were so related to the facts in the pending litigation that it creates a genuine threat that confidences revealed to Lopez=s former counsel will be divulged to his present adversary.^[18]  We conclude appellants failed to meet their burden and that the trial court did not err in denying appellants= motion to disqualify.       

                                                  II.  IMPEACHMENT EVIDENCE

By their second issue, appellants contend the trial court abused its discretion by allowing appellee=s counsel to impeach Lopez=s credibility by questioning him about the 1996 accident.  Specifically, on cross-examination, appellee=s counsel questioned Lopez about the 1996 accident after noting that he testified on direct examination and in his deposition that the only other accident he was involved in occurred in 1991.

Evidentiary rulings are reviewed for an abuse of discretion.^[19]  This Court must review the entire record to determine whether the whole case turned on the evidence about which appellants complain.^[20]  To obtain reversal on the basis of trial error, a party must establish that the error was Aharmful.@^[21]  A trial error requires reversal (i.e., is Aharmful@) if it (1) probably caused the rendition of an improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals.^[22]

Here, appellants complain generally that allowing the jury to hear the impeachment evidence resulted in Atrial by ambush.@  We disagree. Appellants have failed to establish that the whole case turned on the impeachment evidence about which they complain. In light of the whole case, even if we were to conclude that the trial court erred in allowing the impeachment testimony, we could not say that the decision to allow the impeachment evidence caused the rendition of an improper judgment in this case.^[23]  We overrule appellants= second issue.

                                           III.  SUFFICIENCY OF THE EVIDENCE

In their third issue, appellants challenge the legal and factual sufficiency^[24] of the evidence supporting the jury=s award of zero damages.

When a party attacks the legal sufficiency of an adverse finding on which it had the burden of proof (damages), it must demonstrate on appeal that the evidence establishes, as a matter of law, all vital facts in support of the issue.^[25]  AIn reviewing a >matter of law= challenge, the reviewing court must first examine the record for evidence that supports the finding, while ignoring all evidence to the contrary.@^[26]  AIf there is no evidence to support the finding, the reviewing court will then examine the entire record to determine if the contrary position is established as a matter of law.@^[27]  The issue will be sustained Aonly if the contrary position is conclusively established.@^[28]  In addition, when a party attacks the factual sufficiency of a finding on which it had the burden of proof, it must demonstrate that the jury's answer is against the great weight and preponderance of the evidence.^[29]  In reviewing such a challenge, a court of appeals Amust consider and weigh all of the evidence, and can set aside a verdict only if the evidence is so weak or if the finding is so against the great weight and preponderance of the evidence that it is clearly wrong and unjust.@^[30]

Appellants contend that they proved their respective medical expenses as a matter of law because (1) the trial court granted their motion for directed verdict on liability; and (2) they filed medical records and medical bills, along with affidavits proving their reasonableness and necessity pursuant to chapter 18 of the civil practice and remedies code,^[31] and appellee failed to file counter-affidavits.

Section 18.001(b) touches upon three elements of proving damages for past medical expenses: (1) the amount of the charges for medical services, (2) the reasonableness of the charges, and (3) the necessity of the charges.^[32]  However, evidence presented in accordance with the statute does not conclusively establish the amount of damages nor does it establish a causal nexus between the accident and the medical expenses.^[33]  A plaintiff may recover only for reasonable and necessary medical expenses specifically shown to result from treatment made necessary by the negligent acts or omissions of the defendant, where such a differentiation is possible.^[34]

Appellants contend Ait was proven as a matter of law that [they] were entitled to recover their respective medical expenses@ because the trial court granted a directed verdict Aholding that Appellee was liable for causing the incident in question and Appellants= injuries and damages arising therefrom.@  Appellants cite Sloan v. Molandes, 32 S.W.3d 745, 752 (Tex. App.BBeaumont 2000, no pet.) (A[c]ompliance with the statute [chapter 18] does not establish that the amount of the damages shown to be reasonable and necessary was caused by the defendant's negligence and therefore does not establish the plaintiff's entitlement to those damages as a matter of law@), and attempt to distinguish it by asserting that unlike Sloan, the trial court in the present case made a finding that the Aamount of the damages shown to be reasonable and necessary was caused by the defendant=s negligence.@ (emphasis added). The record, however, does not support appellants= assertion. The record reflects that the trial court granted a directed verdict only on the issue of liability; the issue of damages was decided by the jury.

Examining the record for evidence supporting the jury=s finding of zero damages,^[35] the jury heard evidence that (1) following the 1998 accident at issue here, Lopez sought treatment from Dr. Pechero, complaining of neck and shoulder pain; (2)  Lopez was involved in two previous accidents, one of which (in 1991) caused him to seek treatment from Dr. Pechero for neck and shoulder injuries; (3) Lopez testified that he had not seen any doctor during the past four years; (4) Dr. Pechero testified that following the 1991 accident, Lopez sought treatment for severe pain in his neck and shoulders; and (5) at his deposition, Lopez testified that between his 1991 accident and his 1998 accident, his neck never stopped bothering him.  We conclude that the evidence is legally sufficient to support the jury=s finding of zero damages.^[36] 

Appellants also contend the jury=s finding of zero damages is against the great weight and preponderance of the evidence and is manifestly unjust.^[37]  The jury heard the following evidence: (1) Dr. Pechero testified that Lopez sustained a herniated disc as result of the 1998 accident; (2) Pechero also testified that Lopez was experiencing neck pain; (3) Lopez testified that he suffered neck and shoulder pain as a result of the 1998 accident; (4) Lopez testified that although he was involved in four accidents over the last several years (including one following the 1998 accident), his injuries were caused only by the 1998 accident; (5) Lopez testified as to lost wages and medical expenses in the amount of $3,900 incurred as a result of the accident; (6) Blanca Alvarez (Lopez=s wife) testified she sought treatment from Dr. Pechero for injuries sustained as a result of the accident and incurred medical expenses of approximately $2,400; (7) Blanca Alvarez also testified as to approximately $800 in medical expenses to Dr. Pechero for examination of her daughters; and (8) Eva Alvarez (Lopez=s sister-in-law) testified that she sought treatment from Dr. Pechero for neck and back pain sustained as a result of the accident.

The jurors were charged to observe the witnesses, evaluate their demeanor and the credibility of their testimony and resolve inconsistencies in the evidence.^[38]  In determining the sufficiency of the evidence to support the jury's findings, the appellate court accepts, and will not interfere with, the jury's resolution of any conflicts or inconsistencies in the evidence.^[39]  Considering all the evidence, we conclude that the jury=s finding of zero damages is not against the great weight and preponderance of the evidence and is not manifestly unjust.^[40]

Accordingly, we  overrule appellants= third issue and affirm the trial court=s judgment. 

LINDA REYNA YAÑEZ,

Justice

Dissenting memorandum opinion by

Chief Justice Valdez.

Concurring memorandum opinion by

Justice Castillo.

Memorandum opinion delivered and filed

this the 23rd day of February, 2006.

---

^[1] Lopez had stated that he only recalled being involved in one prior auto accident, in 1991. 

^[2] See Metro. Life Ins. Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 321 (Tex. 1994); Spears v. Fourth Court of Appeals, 797 S.W.2d 654, 657 n.3 (Tex. 1990, orig. proceeding); City of Dallas v. Redbird Dev. Corp., 143 S.W.3d 375, 387 (Tex. App.BDallas 2004, no pet.)    

^[3] See Metro. Life, 881 S.W.2d at 321.

^[4] In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002) (orig. proceeding) (quoting Spears, 797 S.W.2d at 656). 

^[5] Id.  

^[6] Id.

^[7] NCNB Tex. Nat=l Bank v. Coker, 765 S.W.2d 398, 399-400 (Tex. 1989) (emphasis in original); Howard v. Tex. Dep=t of Human Serv., 791 S.W.2d 313, 315 (Tex. App.BCorpus Christi 1990, no writ).

^[8] Coker, 765 S.W.2d at 400.

^[9] Id.

^[10] Id.

^[11] Id. (emphasis added); Howard, 791 S.W.2d at 315.  

^[12] Coker, 765 S.W.2d at 399-400.

^[13] See id. at 400. 

^[14] See id.  In Coker, the trial court=s disqualification order stated: AThe court further finds the subject matter involved in both representations are similar enough for there to be an appearance that the attorney-client confidences which could have been disclosed by the defendant might be relevant to the law firm=s representation of the plaintiff in this suit.@ Id.  In holding that the trial court failed to apply the proper standard to the disqualification motion, the supreme court noted:

The vagueness of the court's order indicates that the substantial relation test was not used; had it been, the court should have been able to state without difficulty the precise factors establishing a substantial relationship between the two representations. To hold that the two representations were "similar enough" to give an "appearance" that confidences which could be disclosed "might be relevant" to the representations falls short of the requisites of the established substantial relation standard.

Id.

^[15] See id. at 399-400; Metro. Life, 881 S.W.2d at 321.

^[16] See Coker, 765 S.W.2d at 400.

^[17] See id.  

^[18] See id. 

^[19] E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558‑59 (Tex. 1997); Brownsville Pediatric Ass=n v. Reyes, 68 S.W.3d 184, 192 (Tex. App.BCorpus Christi 2002, no pet.). 

^[20] See Tex. R. App. P. 44.1(a); Brownsville Pediatric Ass=n, 68 S.W.3d at 192-93.  

^[21] See Tex. R. App. P. 44.1(a); Brownsville Pediatric Ass=n, 68 S.W.3d at 193 (citing  Owens‑Corning Fiberglas Corp. v. Malone, 916 S.W.2d 551, 557 (Tex. App.BHouston [1st Dist.] 1996), aff'd, 972 S.W.2d 35, 41 (Tex. 1998)).

^[22] Tex. R. App. P. 44.1(a). 

^[23] See id. 

^[24] AUnlike legal sufficiency challenges, factual sufficiency issues concede that the record presents conflicting evidence on an issue.@  Ed Rachal Found. v. D=Unger, 117 S.W.3d 348, 354 (Tex. App.BCorpus Christi 2003, pet. filed) (en banc).

^[25] Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).

^[26] Id. 

^[27] Id. 

^[28] Id. at 241‑42.

^[29] See id. at 241.

^[30] Id.

^[31] See Tex. Civ. Prac. & Rem. Code Ann. ' 18.001 (Vernon 1997).

^[32] See id. ' 18.001(b); Walker v. Ricks, 101 S.W.3d 740, 747‑48 (Tex. App.BCorpus Christi 2003, no pet.); Barrajas v. VIA Metro. Transit Auth., 945 S.W.2d 207, 209 (Tex. App.BSan Antonio 1997, no writ).

^[33] Walker, 101 S.W.3d at 748.

^[34] See Texarkana Mem=l Hosp., Inc. v. Murdock, 946 S.W.2d 836, 840 (Tex. 1997).

^[35] See Dow Chem., 46 S.W.3d at 241.

^[36] See id. 

^[37] See id.

^[38] Walker, 101 S.W.3d at 750.

^[39] Id. 

^[40] See Dow Chem., 46 S.W.3d at 241; Walker, 101 S.W.3d at 750.