Frank Renteria v. Randall Scott Myers, D/B/A the Myers Law Firm and Randall Scott Myers, Individually ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-07-074-CV
FRANK RENTERIA APPELLANT
V.
RANDALL SCOTT MYERS, APPELLEES
D/B/A THE MYERS LAW FIRM
AND RANDALL SCOTT MYERS,
INDIVIDUALLY
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FROM THE 153RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
In one issue, Appellant Frank Renteria, pro se, asserts that the trial court
abused its discretion by granting summary judgment to his former attorney,
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… See T EX. R. A PP. P. 47.4.
Appellees Randall Scott Myers, d/b/a The Myers Law Firm and Randall Scott
Myers, Individually. We affirm.
II. Factual and Procedural Background
On June 24, 1998, Renteria retained Myers to represent him in a federal
criminal case,2 for which Myers charged a $25,000.00 fee, paid the following
day.
According to Renteria, sixty-nine days elapsed between their first meeting
and Myers’s next contact with him. Also, according to Renteria, “[n]ot at any
time did [Myers] hint, indicate, present, discuss, suggest, recommend or give
[Renteria] any plea agreement, nor inform [Renteria] of the consequences of
more time if the case was taken to trial,” and there was no detailed discussion
about constructing an affirmative defense. Myers requested that Renteria meet
him at a motel, and they spent about forty-five minutes together on the night
of September 7, 1998. Renteria’s trial began the next morning.
On September 8, 1998, a jury convicted Renteria of the felony charges
brought against him. He was released on a $10,000.00 cash bond pending a
pre-sentencing report. While on release, Renteria fled and was re-arrested some
four years later, on March 14, 2002; he was incarcerated, and sent to Waco
2
… Renteria’s case involved charges that Renteria conspired to possess,
with intent to distribute, methamphetamine and marijuana.
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for sentencing. Renteria contacted Myers through Renteria’s cousin and
demanded that Myers continue to represent him. On March 16, 2002, Myers
refused to do so unless Renteria paid an additional fee of $10,000.00.
On March 28, 2002, Renteria informed the court of Myers’s position, and
the court informed Renteria he would have to get another attorney to represent
him at the sentencing hearing. The next day, Renteria retained attorney Jay S.
Norton and paid him $12,500.00 to represent him. On May 8, 2002, Renteria
was sentenced to 188 months in a federal correctional institution, a sentence
that he is still serving.
On January 4, 2004, Renteria filed a demand letter, requesting that Myers
return $12,500.00 to offset the funds that he had to pay Norton. Renteria
thereafter filed suit on May 4, 2004, pro se, against Myers in the 153rd District
Court of Tarrant County, alleging legal “Malpractice, Breach of Contract, Ethics
and Professional Conduct.” He specifically alleged, inter alia, that Myers
breached their contract and requested an addition $10,000 “for service that
had already been paid for.” The case lay dormant for approximately two and
one-half years, after which Myers filed a “traditional” and “no-evidence” motion
for summary judgment. Renteria responded to the motion with an unsworn
“Plaintiffs [sic] Answer to Defendants [sic] Motion for Summary Judgment,”
which re-stated the allegations of his unsworn trial pleading and appended two
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“affidavits,” a letter from the deputy clerk of the Western District of the United
States District court, and a portion of a trial transcript. The court granted
Myers’s motion on February 6, 2007. This appeal followed.
III. Summary Judgment
A. Traditional
A defendant who conclusively negates at least one essential element of
a cause of action is entitled to summary judgment on that claim. IHS Cedars
Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.
2004); see T EX. R. C IV. P. 166a(b), (c). A defendant is entitled to summary
judgment on an affirmative defense if the defendant conclusively proves all the
elements of the affirmative defense. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d
217, 223 (Tex. 1999); see T EX. R. C IV. P. 166a(b), (c). To accomplish this, the
defendant-movant must present summary judgment evidence that establishes
each element of the affirmative defense as a matter of law. Ryland Group, Inc.
v. Hood, 924 S.W.2d 120, 121 (Tex. 1996). When reviewing a summary
judgment, we take as true all evidence favorable to the nonmovant, and we
indulge every reasonable inference and resolve any doubts in the nonmovant’s
favor. IHS Cedars, 143 S.W.3d at 798.
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B. No evidence
After an adequate time for discovery, the party without the burden of
proof may, without presenting evidence, move for summary judgment on the
ground that there is no evidence to support an essential element of the
nonmovant’s claim or defense. T EX. R. C IV. P. 166a(i). The motion must
specifically state the elements for which there is no evidence. Id.; Johnson v.
Brewer & Pritchard, P.C., 73 S.W.3d 193, 207 (Tex. 2002). The trial court
must grant the motion unless the nonmovant produces summary judgment
evidence that raises a genuine issue of material fact. See T EX. R. C IV. P. 166a(i)
& cmt.; Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002).
When reviewing a no evidence summary judgment, we examine the entire
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Sudan v. Sudan, 199
S.W.3d 291, 292 (Tex. 2006). If the nonmovant brings forward more than a
scintilla of probative evidence that raises a genuine issue of material fact, then
a no evidence summary judgment is not proper. Moore v. K Mart Corp., 981
S.W.2d 266, 269 (Tex. App.—San Antonio 1998, pet. denied).
When, as here, a trial court’s order granting summary judgment does not
specify the ground or grounds relied on for its ruling, summary judgment will be
affirmed on appeal if any of the theories presented to the trial court and
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preserved for appellate review are meritorious. Provident Life & Accident Ins.
Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003); Star-Telegram, Inc. v. Doe,
915 S.W.2d 471, 473 (Tex. 1995). When the trial court’s judgment rests upon
more than one independent ground or defense, the aggrieved party must assign
error to each ground, or the judgment will be affirmed on the ground to which
no complaint is made. Scott v. Galusha, 890 S.W.2d 945, 948 (Tex.
App.—Fort Worth 1994, writ denied).
IV. Review
A. Pro Se Litigants
A pro se litigant is held to the same standards as licensed attorneys and
must comply with applicable laws and rules of procedure. Mansfield State Bank
v. Colon, 573 S.W.2d 181, 184–85 (Tex. 1978); Williams v. Capitol County
Mut. Fire Ins. Co., 594 S.W.2d 558, 559 (Tex. Civ. App.—Fort Worth 1980,
no writ). The rules of appellate procedure require that an appellant’s brief
contain “a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.” T EX. R. A PP. P. 38.1(h);
Amir-Sharif v. Hawkins, 246 S.W.3d 267, 270 (Tex. App.—Dallas 2007, pet.
dism’d w.o.j.). An issue on appeal unsupported by argument or citation to any
legal authority presents nothing for this court to review. Birnbaum v. Law
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Offices of G. David Westfall, 120 S.W.3d 470, 477 (Tex. App.—Dallas 2003,
pet. denied), cert. denied, 543 U.S. 1051 (2005).
Similarly, we cannot speculate as to the substance of the specific issues
Renteria claims that we must address. Strange v. Cont’l Cas. Co., 126 S.W.3d
676, 678 (Tex. App.—Dallas 2004, pet. denied), cert. denied, 543 U.S. 1076
(2005). This court has no duty to perform an independent review of the record
and applicable law to determine whether the complained-of error occurred. Id.;
Amir-Sharif, 246 S.W.3d at 270. We can give no preference to those not
represented by counsel because, were we to do so, we would be abandoning
our role as impartial interpreters of the law and assuming the role as advocates
for pro se litigants. See Valadez v. Avitia, 238 S.W.3d 843, 845 (Tex.
App.—El Paso 2007, no pet.).
B. Analysis
That said, an examination of Renteria’s brief reveals that it is devoid of
record references, and the “issues” are phrased as:
WHETHER THE DISTRICT COURT ABUSED ITS DISCRETION BY
GRANTING A SUMMARY JUDGMENT IN THIS CASE? THERE ARE
THREE CATEGORIES OF THIS ISSUE LISTED BELOW:
A. Failure to provide a list of expert witnesses
B. Failure to prove cause of action arising out of the
disciplinary action
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C. Determination of appellant was time barred
The “argument” section of the brief, slightly over one page in length, does
not mention disciplinary actions nor limitations, two of the grounds presented
in Myers’s summary judgment motion. Regarding expert witnesses, the brief
reads only as follows: “During the discovery process the appellee shall in a
request for disclosure the [d]esignation of testifying experts. [T EX. R. C IV. P.]
195.1, 197.1. Such request was not made, therefore appellee failed to follow
procedures.” Under the standards for appellate briefing as previously
articulated and viewed through a neutral prism as required, this can hardly be
said to meet muster. See T EX. R. A PP. P. 38.1(h).
Even so, were we to examine the trial court’s granting of summary
judgment, it would be upheld on any or all of the grounds presented in Myers’s
motion. First, no legal malpractice claim may be based solely on violations of
the State Bar Rules of Professional Conduct. See Adams v. Reagan, 791
S.W.2d 284, 291 (Tex. App.—Fort Worth 1990, no writ). Second, a legal
malpractice claim is a tort governed by the two-year statute of limitations,
which began to run, at the latest, on March 16, 2002. 3 See T EX. C IV. P RAC. &
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… Renteria alleged in his petition that March 16, 2002 was when Myers
“broke Attorney-Client-Relationship and Breach of Contract by requesting an
additional ($10,000.00) Ten Thousand Dollars for service that had already been
paid for.” However, Renteria claims in his appellate brief that the alleged
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R EM. C ODE A NN. § 16.003 (Vernon 2008); Tate v. Goins, Underkofler, Crawford
& Langdon, 24 S.W.3d 627, 635 (Tex. App.—Dallas 2000, pet. denied); see
also Pham v. Nguyen, 763 S.W.2d 467, 469 (Tex. App.—Houston [14th Dist.]
1988, writ denied) (stating discovery rule for legal malpractice claims).
Therefore, limitations expired some six weeks prior to Renteria’s filing suit on
May 4, 2004, if not earlier.
Third, generally, legal malpractice claims require presentation of expert
testimony, and Renteria has presented none. See Alexander v. Turtur &
Assoc., Inc., 146 S.W.3d 113, 119–20 (Tex. 2004). Fourth, Renteria has not
shown that any act or omission of Myers’s, rather than Renteria’s own guilt,
was the proximate cause of any complained-of injury. See Peeler v. Hughes &
Luce, 909 S.W.2d 494, 497–98 (Tex. 1995) (“[P]laintiffs who have been
convicted of a criminal offense may negate the sole proximate cause bar to
their claim for legal malpractice in connection with that conviction only if they
have been exonerated on direct appeal, through post-conviction relief, or
otherwise.”). And fifth, were we to construe a failure of representation or a
malpractice occurred when Myers “was negligent during the appellant[‘s] trial
on a federal case” because he failed to consider the use of expert witnesses to
develop an affirmative defense for the charged offenses. He asserts that this
constituted “ineffective assistance of counsel.” That trial occurred, as
discussed above, on September 8, 1998.
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failure to return a fee as a breach of contract, an examination of the “evidence”
presented by Renteria fails to establish a contract, let alone the “meeting of the
minds” as to its terms.4 We overrule Renteria’s sole issue.
V. Conclusion
Having overruled Renteria’s sole issue, we affirm the trial court’s
judgment.
PER CURIAM
PANEL F: MCCOY, LIVINGSTON, and DAUPHINOT, JJ.
DELIVERED: May 15, 2008
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… “The essential elements of a breach of contract action are (1) the
existence of a valid contract; (2) performance or tendered performance by the
plaintiff; (3) breach of the contract by the defendant; and (4) damages
sustained by the plaintiff as a result of the breach.” Lake v. Premier Transp.,
246 S.W.3d 167, 173 (Tex. App.—Tyler 2007, no pet.). Renteria’s sole
evidence presented in his “affidavit” was as follows: “No written contract was
gived to me, however conversation lead me to expect to be represented up to
and including my sentencing.”
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