the Pain Care Center, Inc. and Marsha Hughes v. O'Connor & Hannan, L.L.P ( 2007 )

Affirmed and Memorandum Opinion filed September 25, 2007

Affirmed and Memorandum Opinion filed September 25, 2007.

In The

Fourteenth Court of Appeals

____________

NO. 14-06-00166-CV

____________

THE PAIN CARE CENTER, INC. AND MARSHA HUGHES, Appellants

V.

O=CONNOR & HANNAN, L.L.P., Appellee

On Appeal from the 127th District Court

Harris County, Texas

Trial Court Cause No. 2003-36758

M E M O R A N D U M   O P I N I O N

Appellants, The Pain Care Center, Inc. and Marsha Hughes, appeal from a final judgment in their lawsuit alleging legal malpractice and other claims against O=Connor & Hannan, L.L.P.  The judgment awarded appellants $2,099.50 in sanctions against O=Connor & Hannan but denied all further relief after a settlement credit from a settling defendant was applied to the jury=s verdict.  On appeal, appellants contend that the trial court erred in (1) permitting O=Connor & Hannan to call witnesses that were not timely identified in response to discovery requests; (2) failing to order a mistrial when the court reporter=s machine malfunctioned during a pre-trial hearing; (3) granting summary judgment against their breach of contract cause of action; (4) permitting a juror to serve who had been previously excused from the panel; and (5) refusing to grant challenges for cause and an additional peremptory challenge.  Appellants further contend that the jury=s finding that O=Connor & Hannan did not commit fraud was against the great weight and preponderance of the evidence.  We affirm.

I.  Background

In May 2001, Kirk Coverstone sued appellants, alleging various claims relating to a contract of employment between Coverstone and The Pain Care Center.  The contract was signed by Hughes as Chief Executive Officer of The Pain Care Center.  Among the claims, Coverstone alleged breach of contract, conversion, and breach of fiduciary duty.  He further alleged that The Pain Care Center was simply an alter ego of Hughes.  Initially, appellants were represented in this underlying lawsuit by attorney Jay Dushkin.  During this time, Hughes was taking a college class taught by Michael Wing.  After discussing the case several times with Wing, Hughes decided to dismiss Dushkin as counsel for her and The Pain Care Center and hire Wing and the law firm in which he was a partner, O=Connor & Hannan.  On March 17, 2002, Hughes signed an Engagement Letter naming Wing and O=Connor & Hannan as attorneys for her and The Pain Care Center.

Although Wing subsequently left O=Connor & Hannan in August 2002, no order was entered dismissing the firm as counsel in the lawsuit.  Ultimately, after judgments were entered in the underlying lawsuit against both Hughes and The Pain Care Center, they settled with Coverstone by agreeing to pay him $70,000.  Including the legal fees paid to Wing and certain garnishment fees resulting from an apparent failure to timely pay the settlement amount, appellants paid a total of $93,056.11 in settlement of the underlying case.

Appellants subsequently brought the present action against Wing and O=Connor & Hannan, alleging professional negligence, fraud, breach of contract, and breach of a fiduciary duty.  Wing settled with appellants before trial, agreeing to pay them $300,000.  Also prior to trial, the trial court granted summary judgment against appellants= breach of contract claim.  The trial court further held that as a matter of law, the representation of appellants in the underlying lawsuit was negligently performed and that O=Connor & Hannan remained liable for appellants= representation because it had not obtained a court order approving its withdrawal as their counsel.  Consequently, the court instructed the jury that O=Connor & Hannan was liable for the negligent representation of appellants in the underlying action.  The jury awarded appellants a combined sum of $98,056.17 in damages.  The jury further found that O=Connor & Hannan had not committed fraud against appellants.

Additionally, prior to trial, the court held a hearing on appellants= motion for sanctions based on O=Connor & Hannan=s alleged failure to timely and adequately answer discovery.  The court granted certain relief requested by appellants, including monetary sanctions, and denied certain relief, including the requested exclusion of all of O=Connor & Hannan=s trial witnesses.^[1]

II.  Analysis

A.  Discovery Disputes

In their first issue, appellants contend that the trial court erred in allowing O=Connor & Hannan to call any witnesses in its case-in-chief because O=Connor & Hannan failed to timely and adequately answer discovery.  See generally Tex. R. Civ. P. 193.6(a) (providing that a party that fails to timely identify a witness may not offer that witness=s testimony at trial), 215 (governing sanctions for discovery abuses).  Appellants= primary position appears to be that because O=Connor & Hannan did not identify the witnesses it expected to call until thirty days before trial in answer to interrogatories, the trial court should have excluded all of O=Connor & Hannan=s trial witnesses.^[2] However, beyond stating that supplementation of the interrogatory responses thirty days before trial was untimely, appellants offer no explanation and make no arguments as to why they deem the answers untimely.  Appellants also cite no authority in support of this contention.  Consequently, this issue has not been properly briefed.  Tex. R. App. P. 38.1(h) (requiring that an appellant=s brief Amust contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record@).

Additionally, in their statement of issue one, appellants assert that O=Connor & Hannan did not supplement its responses to the requests for production until thirty days before the trial setting. However, appellants neither assert that the trial court erred in permitting the introduction of any documents as trial exhibits, nor do they explain how supplementation of document production relates to the testimony of O=Connor & Hannan=s witnesses of which appellants complain.

Appellants further point out that had the case proceeded to trial on two previously scheduled trial dates, O=Connor & Hannan would not have been able to call any witnesses because it had not provided a witness list by those dates.  But appellants do not explain how this observation is relevant to whether O=Connor & Hannan timely supplemented its witness list thirty days prior to the actual trial date.

Appellants additionally argue that in responding to requests for disclosure, O=Connor & Hannan failed to state what connection each person identified as having knowledge of relevant facts had to the case.  Again, appellants make no connection between this alleged failure and the exclusion of witnesses due to failure to provide a witness list in response to an interrogatory until thirty days prior to trial.  Furthermore, a review of O=Connor & Hannan=s responses to the requests for disclosures reveals that it did in fact state a connection for each person listed.

Lastly, appellants point out that O=Connor & Hannan failed to demonstrate (1) good cause for the late supplementation of the witness list, or (2) that such late supplementation did not cause unfair surprise or prejudice to appellants.  See generally Tex. R. Civ. P. 193.6(a).  However, because appellants have provided no argument as to why supplementation thirty days before trial was untimely, we need not consider whether untimely supplementation was excused by good cause or caused unfair surprise or prejudice.  For the foregoing reasons, we overrule appellants= first issue.

B.  Reporter=s Record

In their second issue, appellant=s contend that they are entitled to a new trial because the court reporter=s recording machine apparently malfunctioned at one point during the hearing on appellants= motion for sanctions.  Under Texas Rule of Appellate Procedure 34.6(f), an appellant is entitled to a new trial if, among other possibilities: (1) a significant portion of an electronic recording of proceedings has been lost or destroyed or is inaudible, (2) the portion is necessary to the resolution of the appeal, and (3) the portion cannot be replaced by agreement of the parties.  Tex. R. App. P. 34.6(f).  However, except for pointing out that the machine apparently malfunctioned at some point and baldly asserting that the alleged missing portion of the record Ais necessary to this Court=s resolution of the appeal,@ appellants offer no argument in support of this issue.  Appellants do not even suggest what may have gone unrecorded or why the missing portion would be necessary to our disposition of the appeal.

Furthermore, the portion of the record appellant cites shows that the malfunction occurred when O=Connor & Hannan=s counsel was responding to a question from the judge and argument by opposing counsel. After the interruption, O=Connor & Hannan=s attorney appears to continue where he left off.  Thus, there is no indication that anything of substance occurred during the time there was no recording.  Indeed, a logical inference is that the proceedings simply stopped until the problem could be corrected.  Accordingly, we find that appellants have failed to demonstrate the necessity of any missing portion of the record for resolution of this appeal. We overrule appellants= second issue.

C.  Breach of Contract

In their third and fourth issues, appellants contend that the trial court erred in granting summary judgment against their breach of contract cause of action.  In their First Amended petition, appellants asserted that O=Connor & Hannan breached the contract when it failed Ato provide any legal services to [appellants] after it entered into a contract with [appellants] to provide such services.@  (emphasis in original).  In the traditional summary judgment portion of its motion, O=Connor & Hannan contended that appellants= breach of contract claim constituted an improper fracturing of their legal malpractice claim.  In the no-evidence portion of the motion, O=Connor & Hannan asserted that appellants could present no evidence of breach or causation.  The trial court granted summary judgment against the breach of contract claim without specifying the grounds therefore.  Consequently, we must affirm the summary judgment if any of the summary judgment grounds are meritorious. Mandell v. Mandell, 214 S.W.3d 682, 687 (Tex. App.CHouston [14th Dist.] 2007, no pet.).

In their brief, appellants argue that their cause of action was not an improper fracturing of a malpractice action and that they provided summary judgment proof of damages resulting from the alleged breach of contract.  However, appellants do not address the no-evidence grounds relating to breach and causation.^[3] For that reason alone, we may affirm summary judgment.  Broesche v. Jacobson, 218 S.W.3d 267, 274 (Tex. App.CHouston [14th Dist.] 2007, pet. denied). Accordingly, we overrule issues three and four.

D.  Juror Issues

In issues five through seven, appellants argue that the trial court made several errors relating to challenges and seating of jurors.

1.  Excused Panelist

In issue number five, appellants contend that the trial court erred by excusing a venire panel member but then seating that panel member on the jury.  Specifically, appellants assert that jury panel member number eleven, whom appellants identify as AMrs. Zamora,@ had been Aerased@ from the list but was subsequently seated on the jury and signed the verdict.  The Strike List contained in the record, however, shows AMichael Mullen@ as panel member eleven, and it shows that Andra Zamora (the only Zamora on the list) was panel member twenty-three.  Mullen=s name and number are indeed marked through on the list; Zamora=s name and number are not.  Mullen did not sign the verdict and, as apparent from the record, did not serve as a juror.

At one point during pretrial proceedings, the trial judge stated that the panel members excused for job-related reasons included ANo. 11 Mrs. Zamora.@  This appears to be a simple misstatement by the judge.  Although Mullen (the actual panel member number eleven) told the judge that he could not afford to be off work for jury service, Zamora apparently made no such statement (telling the judge only that her brother had been involved in a medical malpractice case). Furthermore, prior to saying ANo. 11 Mrs. Zamora,@ the trial judge had correctly identified Mullen as panel member eleven on the record.  The judge also correctly identified Zamora as panel member twenty-three on the record, and she included Mullen, but not Zamora, on a subsequent list of excused jurors.  Accordingly, appellants have not demonstrated that the trial court erred in permitting Zamora to serve on the jury.  We overrule issue number five.

2.  Challenges

In issue number six, appellants contend that the trial court erred in refusing to grant certain of appellants= challenges for cause.  In issue number seven, appellants assert that the trial court erred in permitting an objectionable juror to be on the jury after the court denied appellants= challenge for cause and request for an additional peremptory challenge.  Appellants= discussion of these issues in their brief details the procedural history of when the challenges were made, how many were granted, how many were denied, which jurors were excused, and which jurors were objected to but not excused.  However, except for juror Zamora discussed above, appellants offer no legal basis for why any of the jurors who actually served on the jury should not have so served.  Consequently, appellants= presentation of these issues violates Rule 38.1(h) of the Rules of Appellate Procedure, which requires an appellant=s brief to Acontain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.@  Tex. R. App. P. 38.1(h).  We overrule issues six and seven.

E.  Factual Sufficiency

In their eighth issue, appellants contend that the jury=s failure to find fraud was against the overwhelming weight of the evidence.  In reviewing this challenge to the factual sufficiency of the evidence, we consider and weigh all the evidence and will set aside the 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 or unjust.  Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001).  The trier of fact is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.  GTE Mobilnet of S. Tex. v. Pascouet, 61 S.W.3d 599, 615‑16 (Tex. App.CHouston [14th Dist.] 2001, pet. denied).

In its charge, the trial court instructed the jury that:

Fraud occurs whenC

1.       A party makes a material misrepresentation,

2.       The misrepresentation is made with knowledge of its falsity or made recklessly without any knowledge of the truth and as a positive assertion,

3.       The misrepresentation is made with the intention that it should be acted on by the other party, and

4.       The other party relies on the misrepresentation and thereby suffers injury.^[4]

The question on fraud in the charge then reads as follows:

In answering this question, consider only representations, if any, that you find were made to The Pain Care Center, Inc. and/or Marsha Hughes in the law firm brochure or the web site [sic] concerning the quality of legal services and support in the legal representation of Plaintiffs by Mr. Wing.

In support of their factual sufficiency argument, appellants point to statements in the firm brochure that appellants contend were misrepresentations that (1) their legal defense would be handled by a team, (2) the firm would choose the attorney whose skills were best suited to the job, and (3) the lawyer so chosen would be an experienced litigation attorney.^[5] However, even assuming appellants are correct that these statements were material misrepresentations, knowingly made, with the intention that they be acted uponCthus fulfilling the first three elements of the fraud chargeCappellants fail to establish that a finding that appellants did not rely on these statements in hiring Wing was against the great weight and preponderance of the evidence.

Appellants assert as uncontroverted fact that they relied on statements in the brochure and on the website in hiring Wing (and the firm) to represent them.  Hughes did indeed testify that she relied on these statements in signing the agreement.  However, as stated above, the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony.  GTE Mobilnet, 61 S.W.3d at 615‑16.  On the most basic level, the jury may simply have disbelieved Hughes= self-serving testimony.  See, e.g., Purcell Const., Inc. v. Welch, 17 S.W.3d 398, 401-02 (Tex. App.CHouston [1st Dist.] 2000, no pet.) (holding evidence was factually sufficient where jury could have disbelieved testimony of principle of defendant company).

Furthermore, there was evidence that Hughes and Wing had a relationship prior to and outside of the attorney-client context.  Wing was Hughes= college professor.  She testified that she had previously spoken to him numerous times about the underlying case and about the performance of her prior attorney. Emails between Hughes and Wing on these subjects were also introduced into evidence.  When she turned to him for advice on replacement counsel, he reportedly referred her to the firm=s website, where she reviewed his curriculum vitae.  According to Hughes, Wing told her that Ahe was a very experienced attorney; [sic] that he tried a lot of cases, and that he had never lost a case.@  This evidence suggests that in hiring legal representation for The Pain Care Center and herself, Hughes relied on her own personal opinions of Wing and on his representations rather than on the statements in the brochure and on the website.  Thus, we cannot say that the jury=s failure to find fraud under the charge given was against the great weight and preponderance of the evidence.  We overrule issue number eight.

We affirm the trial court=s judgment.     

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed September 25, 2007.

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

---

^[1]  Additional background and procedural facts will be discussed below as necessary.

^[2]  Appellants= first issue is to some degree multifarious; however, to the extent we can discern the complaints being made, we will address them.  See, e.g., In re Guardianship of Moon, 216 S.W.3d 506, 508 (Tex. App.CTexarkana 2007, no pet.); Bell v. Tex. Dep=t of Crim. Justice‑Inst=l Div., 962 S.W.2d 156, 157 n.1 (Tex. App.CHouston [14th Dist.] 1998, pet. denied).

^[3]  Appellants state that damages was the only element on which O=Connor & Hannan alleged no evidence could be presented.  Appellants misread the motion.  Although in one section of the motion, O=Connor & Hannan alleged that appellants could present no evidence of damages caused by Wing=s conduct during the time he worked for the firm, in another section of the motion, O=Connor & Hannan specifically alleged that appellants could present no evidence that it breached the agreement or that any such breach caused damages.

^[4]  The charge also included an instruction regarding fraudulent failure to disclose a material fact; however, in their brief, appellants make no arguments regarding this instruction.

^[5]  Appellants additionally mention Arepresentations of Wing, as a partner,@ but as stated, the charge limited the realm of possibly fraudulent statements to those made in the brochure or on the website.