Cecile Childs v. Scott Cohron Crutchfield and Crutchfield, DeCordova & Chauveaux, P.C. ( 2008 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

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NO. 09-07-065 CV ____________________

CECILE CHILDS, Appellant

V.

SCOTT COHRON CRUTCHFIELD AND CRUTCHFIELD, DECORDOVA & CHAUVEAUX, P.C., Appellees

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On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-173,423

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MEMORANDUM OPINION  

Cecile Childs sued the attorney and law firm that defended her in litigation. The trial court granted summary judgment to Scott Cohron Crutchfield and Crutchfield, DeCordova & Chauveax, P.C. ⁽¹⁾ In five appellate issues, Childs contends the trial court erred in (1) granting summary judgment; (2) striking the affidavit of her expert; (3) granting a traditional summary judgment; (4) granting a no-evidence summary judgment; and (5) granting summary judgment on her causes of action for negligence, gross negligence, knowing violation of the Deceptive Trade Practices Act, and breach of warranty. We affirm the trial court's judgment.

Childs sold a home to John and Katina Duke. Although Childs had twice treated the house for termite infestations, she failed to disclose termite damage on the Seller's Disclosure Notice that Childs executed as part of the transaction. See generally Tex. Prop. Code Ann. § 5.008 (Vernon Supp. 2007). The inspector retained by the Dukes noted signs of previous treatment and visible evidence of the previous presence of termites but did not discover the active termite infestation in another part of the house. After closing, the Dukes sued Childs and the inspection company for negligence and breach of contract, and sued Childs for violating Section 5.008 of the Texas Property Code. The jury found Childs and the inspection company breached their respective contracts with the Dukes but attributed all of the damages to Childs. The jury found Childs knowingly and intentionally engaged in a false, misleading, or deceptive trade practice and in unconscionable conduct, found Childs committed common law fraud, and found Childs committed statutory fraud with actual awareness but failed to find malice. On the single question submitted on actual or economic damages, the jury found $7,736.40 for reasonable and necessary cost of repairs, $214.34 for termite treatment, and $1,500 for loss of use of the property. The jury failed to find any additional or exemplary damages on deceptive trade practices and statutory fraud but awarded $8,500 in exemplary damages for common law fraud. Attorney's fees were tried to the court, which awarded $56,360.50 for preparation and trial and conditionally awarded additional sums for post-trial proceedings. The Dukes and Childs appealed timely but the entire case settled prior to briefing and the appeal was dismissed on motion of the parties. See Duke v. Homeguard Pest Control, Inc.,No. 12-03-00364-CV, 2004 WL 583840 (Tex. App.--Tyler Mar. 24, 2004, no pet.) (mem. op.).

Crutchfield and his law firm represented Childs through trial in the Duke litigation, but did not represent her in the post-trial proceedings or the appeal. After the Duke litigation settled, Childs filed this suit against Crutchfield and the law firm. Childs's original petition alleged negligence and deceptive trade practices. Childs amended her petition to add a claim for breach of implied warranty of good and workmanlike performance and an allegation of mental anguish caused by the filing of an abstract of judgment in the Duke litigation.

Crutchfield and the law firm filed a combined traditional and no-evidence motion for summary judgment. They asserted Childs had no evidence Crutchfield breached the standard of care and that she had no expert evidence regarding the duty or standard of care Crutchfield owed to Childs or whether the duty was breached. In response to the specific allegations in Childs's petition, Crutchfield and the law firm asserted there was no evidence Crutchfield breached any duty (1) by failing to raise ratification or waiver as a defense and failing to move for summary judgment on said defenses; (2) by agreeing to submit DTPA issues to the jury; (3) by agreeing to a bench trial on attorney's fees and by not submitting rebuttal evidence; (4) by failing to introduce evidence the Dukes subsequently sold the house for more than their purchase price; (5) by failing to address a wallpaper patching issue with construction experts; (6) by failing to introduce evidence that Childs offered to repair the termite damage; (7) by failing to file a third-party claim against Childs's realtor; and (8) by failing to advise Childs when the judgment was signed and by refusing to file a motion for new trial.

Crutchfield and the law firm also asserted there was no evidence of causation; that is, no evidence that but for Crutchfield's acts or omissions Childs would not have been found liable to the Dukes for actual and exemplary damages and attorney's fees. In response to the specific allegations in Childs's petition, Crutchfield and the law firm asserted there was no evidence (1) Crutchfield's failure to raise ratification or waiver as a defense, or his failure to move for summary judgment on said defenses, caused Childs to be found liable to the Dukes; (2) that his agreement to submit DTPA issues to the jury caused any harm to Childs; (3) that his agreement to a bench trial on attorney's fees and his failure to present rebuttal evidence regarding attorney's fees caused any harm to Childs; (4) that his failure to introduce evidence the Dukes subsequently sold the house for more than their purchase price had any impact on the jury's determination of damages; (5) that his failure to address the wallpaper patching issue with construction experts caused Childs to be found liable for actual or exemplary damages; (6) that his failure to introduce evidence that Childs offered to pay for the repairs caused the jury to find Childs liable for exemplary damages; (7) that his failure to file a third-party claim against Childs's realtor caused any harm to Childs; and (8) that his failure to advise when the judgment was signed and his refusal to file a motion for new trial caused Childs any harm.

The response filed by Childs included an affidavit by attorney Robert R. Debes, Jr., who offered his expert opinion that Crutchfield violated the standard of care he owed to Childs in his defense of her in the Duke litigation. Crutchfield and the law firm filed written objections to the affidavit. They argued that Debes's opinions regarding causation were based upon pure speculation and thus unreliable, and that Debes's opinions were unreliable because he misstated the record. They also claimed Debes was not qualified to render an opinion regarding the standard of care of a reasonably prudent attorney in Jefferson County, that Debes was not qualified to render an opinion regarding causation, that the affidavit did not state the proper standard for establishing causation, that because the affidavit failed to address the proper causation standard Debes's statement of opinion regarding causation constituted no evidence, and that Debes failed to state that but for Crutchfield's negligent performance Childs would have prevailed in the underlying suit or the judgment would have been less. They also contended that Debes's affidavit failed to establish a breach of the standard of care, failed to establish any harm resulting from not filing a motion for new trial, and that the affidavit addressed matters unrelated to the allegations in the petition. The trial court sustained the objections and ruled the affidavit was unreliable, inadmissible, and constituted no evidence. The trial court granted both the traditional and the no evidence motions for summary judgment and rendered a take nothing judgment.

"Generally, to recover on a claim of legal malpractice, a plaintiff must prove that (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff's injuries, and (4) damages occurred." Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995). "Breach of the standard of care and causation are separate inquiries, however, and an abundance of evidence as to one cannot substitute for a deficiency of evidence as to the other. Thus, even when negligence is admitted, causation is not presumed." Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 (Tex. 2004). An objective standard applies. Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989). "If an attorney makes a decision which a reasonably prudent attorney could make in the same or similar circumstance, it is not an act of negligence even if the result is undesirable." Id. Because "the trier of fact must have some basis for understanding the causal link between the attorney's negligence and the client's harm" expert testimony may be required. Alexander, 146 S.W.3d at 119.

A failure of proof can result if expert testimony is limited to whether the defendant violated the standard of care. Proof of causation of injury often requires expert testimony concerning what the attorney should have done under the circumstances. The expert testimony must be tied to the specific conduct that is in issue.

Id. (quoting 5 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 33.17 at 138-39 (5th ed. 2000)).

On appeal, Childs argues the trial court erred in excluding her expert's affidavit. All expert testimony is subject to the relevance and reliability requirements of Rule 702. Tex. R. Evid. 702; Guadalupe-Blanco River Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002). An expert must be qualified to render an opinion and the testimony must be relevant and based on a reliable foundation. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006). We review the trial court's determination regarding these requirements for abuse of discretion. Id. Evidence that fails to meet the reliability standards is "not only inadmissible but incompetent as well." City of Keller v. Wilson, 168 S.W.3d 802, 813 (Tex. 2005). Because an expert's bare opinion will not suffice, the substance of the expert's opinion testimony must be considered and the underlying data independently evaluated to determine whether the opinion itself is reliable. Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254 (Tex. 2004). "In reviewing the reliability of expert testimony, the court is not to determine whether the expert's conclusions are correct; rather, the court should determine only whether the analysis used to reach those conclusions is reliable." Id. The trial court may conclude an expert's opinion is unreliable if there is too great an analytical gap between the expert's observations and his conclusions. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 727 (Tex. 1998). The trial court need not admit opinion evidence which is "'connected to existing data only by the ipse dixit of the expert.'" Id. (quoting Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146, 118 S. Ct. 512, 139 L. Ed. 2d 508 (1997)). "Close calls must go to the trial court." Larson v. Downing, 197 S.W.3d 303, 304 (Tex. 2006).

Debes offered his expert opinion that Crutchfield's failure to raise ratification or waiver as a defense, or his failure to move for summary judgment on said defenses, caused Childs to be found liable to the Dukes. In his affidavit, Debes does not describe any of the evidence that supports the affirmative defenses of ratification and waiver. Debes does not explain how the defenses of ratification and waiver applied to the various claims asserted by the Dukes. The summary judgment record shows that Crutchfield argued to the jury that the false statement on the disclosure statement could not have caused damage to the Dukes because two days later the Dukes obtained an inspection report that told them the house had previous treatment and damage. Debes does not explain how Crutchfield violated the standard of care by couching the discovery of prior termite treatment as a failure of proof on an element of the causes of action on which the Dukes bore the burden of proof as opposed to an element of affirmative defenses on which Childs would have borne the burden of proof. Debes's total failure to address the obvious strategy employed by Crutchfield presents a serious analytical gap in Debes's assessment of breach of the standard of care. In addition, Debes stated that Crutchfield failed to assert the plaintiffs' awareness of the termite damage at any point in his defense of Childs, but that statement is contradicted on the face of the summary judgment record. Moreover, Debes expresses the opinion that a summary judgment would have been granted had it been filed, but the basis for that opinion is not apparent from his affidavit. Debes provided his bare opinion without providing his analysis of the underlying facts or explaining how that opinion was reached. Because Debes failed to link his conclusions to the facts, the trial court could reasonably conclude that his opinion was not reliable.

Debes expresses his professional opinion that Crutchfield's agreement to submit DTPA issues fell below the standard of care. Debes states that during the charge conference the trial court made it clear that he was not going to submit fraud and DTPA jury questions, and that Crutchfield agreed to the submission when plaintiffs' counsel objected. Debes states that Crutchfield's performance fell below the standard of care because submission of DTPA questions precluded submission of the common-law affirmative defense of waiver. Debes does not explain how the submission of a DTPA question precluded submission of common-law affirmative defenses for fraud. During the charge conference, Crutchfield expressed his concern that not submitting a DTPA issue might be reversible error, but Debes fails to explain why that assessment was objectively unreasonable. Debes fails to explain how either the purported tactical error or the attorney's failure to obtain the client's informed consent to the decision affected the judgment. Furthermore, the Dukes recovered judgment for common law fraud, not deceptive trade practices. The trial court could have determined these analytical gaps were too great for Debes's expert opinion to be reliable.

Debes stated that Crutchfield breached the standard of care by agreeing to a bench trial on attorney's fees and by failing to present rebuttal evidence on the issue. According to Debes, the preferred method would have been to have another attorney testify as to what a reasonable and necessary fee would have been. Debes does not, however, identify what evidence was in the record regarding attorney's fees, describe what other evidence was available regarding attorney's fees, explain why the amount awarded was excessive, or express an opinion about what amount of attorney's fees would have been reasonable. Debes expressed his opinion that the failure to present any evidence in all likelihood resulted in an excessive award, but he failed to explain the basis of his opinion. Thus, the trial court could have concluded that the opinion was not reliable.

Debes states that Crutchfield did "little if anything to personalize his client" and failed to introduce evidence that Childs offered to pay for the repairs. In Debes's opinion, this caused the jury to find Childs liable for exemplary damages. The summary judgment record showed that Crutchfield made a tactical decision not to raise the offer to pay for the repairs because of the prejudicial effect it would have on the jury's assessment of Childs's liability. Debes's affidavit does not explain why that tactical decision was objectively unreasonable. Also, Debes neither explains why the jury's observation of Childs would not have made them aware of her age, nor does he explain how Childs's "deep ties to Beaumont" related to the factors the jury charge instructed the jury to consider in assessing exemplary damages. The trial court could reasonably have found that Debes failed to connect the basis of his opinion to the facts of the case.

Childs's response to the motion for summary judgment argues that Crutchfield failed to introduce evidence that the Dukes subsequently sold the house for more than their purchase price, but Debes's affidavit does not address this issue. Likewise, Childs's answers to interrogatories complain that Crutchfield failed to address a wallpaper patching issue with construction experts but Debes's affidavit does not address the matter or explain what evidence was available and how it would have affected the case. Although Childs testified in her deposition that she felt the realtor should have been a party to the suit, Debes does not suggest that Crutchfield was negligent in not adding the realtor as a third-party defendant. Because Debes did not address these matters in his affidavit, the trial court could not have erred in excluding Debes's expert opinion regarding Crutchfield's decisions regarding these issues.

Finally, Debes states that Crutchfield's failure to advise Childs when the judgment was signed and his refusal to file a motion for new trial for her "weakened her position" and that Crutchfield should have "taken a more active position on settlement" after the Dukes rejected Childs's counter-offer of settlement. Debes does not identify any reversible error that could have been preserved in a motion for new trial but was not preserved for appellate review in the motion for new trial that was filed in the case, nor does he explain how or why Childs's position was weakened because Crutchfield did not file the motion. Childs filed a motion for new trial, perfected an appeal, and voluntarily settled her dispute with the Dukes. Debes expresses his opinion that Childs could have settled for less had she settled earlier in the process. According to Debes, Crutchfield should have explained that Childs would spend "way more than $4,763.60 in defense costs" of the suit. The summary judgment record shows Childs paid $4,000 in attorney's fees through the trial; the other expenses Childs incurred arose post-trial and on appeal. The trial court could have reasonably determined that Debes failed to explain the factual basis for his opinion.

Debes provided his opinion that Crutchfield's defense of Childs "caused and/or contributed to the imposition of a judgment against her" and that the acts described in his affidavit "in reasonable legal probability represent negligent legal representation by Mr. Crutchfield which were substantial factors in bringing about the jury verdict and judgment against Ms. Childs." He does not state an opinion that but for the specific acts or omissions by Crutchfield the result of the trial would have been different. Thus, this general statement of opinion by Debes does not establish causation and the trial court could have found it was not reliable expert opinion evidence of causation.

Childs contends Debes's affidavit "is no different in substance than the affidavit approved for use" in Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C., 180 S.W.3d 889, 892-93 (Tex. App.--Dallas 2005, pet. denied). The similarity between Debes's affidavit and the affidavit in Allbritton is one of form, not of substance. In Allbritton, the only evidence offered at trial on one of two plaintiffs' damages was the testimony of the plaintiff himself; the jury found no damages for that plaintiff but found damages for the other plaintiff who possessed financial experience. Id. at 891. In response to the motion for summary judgment filed in the subsequent legal malpractice suit, an attorney's expert affidavit expressed an opinion based upon certain pages of the record of testimony of the two plaintiffs in the underlying trial, and stated that the failure to prepare the case for presentation of Allbritton's damages and to retain an expert to evaluate and testify to those damages was the proximate cause of damages to Allbritton. Id. at 892-93. The attorney explained that Allbritton did not have the background or education to present testimony as to the methodology of calculating damages and the methodology the plaintiff did use was incorrect because it was not consistent with the methodology used by qualified damages experts. Id. at 893. The attorney's affidavit was accompanied by an accountant's affidavit that supplied the correct methodology for calculating the plaintiff's damages. Id. at 892, 893-94. Thus, the analyses used to reach the experts' conclusions were apparent from the record and the trial court erred in striking the affidavits. Id. at 894. Here, the trial court could reasonably conclude that the analytical gaps in the expert's affidavit rendered his opinion too conclusory to be reliable. We hold the trial court did not abuse its discretion in striking the affidavit.

Childs "does not believe that technically an expert's testimony is necessary in this lawsuit[.]" When the legal malpractice case arises from prior litigation, the plaintiff must prove that, but for the attorney's breach of his duty, the plaintiff would have prevailed in the underlying case. Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.--Houston [1st Dist.] 1998, pet. denied). The "wisdom and consequences" of the "tactical choices made during litigation are generally matters beyond the ken of most jurors" for which expert testimony must supply the causal link. Alexander, 146 S.W.3d at 119.

Childs supplied her own affidavit in response to the motion for summary judgment. In this affidavit, Childs describes the termite treatment, her experience listing the house for sale and preparing the disclosure statement, the lack of direct communication between Childs and the Dukes before closing, her contact with the Dukes concerning termite damage after closing, her settlement offer to the Dukes, and her willingness to settle the case. Childs also submitted excerpts from Crutchfield's deposition. Crutchfield admitted that he would normally identify the areas where an expert may be needed and discuss the need for an expert with his client, that he would normally outline what would be needed in the jury charge, and that he would document significant efforts expended on behalf of his client in the client's file. Crutchfield had been confident that Childs would be able to establish through her own testimony that she had not been the one to patch the wallpaper. Crutchfield did not suggest Childs was uncooperative and admitted Childs did not tell him he could not do something he felt he needed to do in order to defend her. Crutchfield had an independent recollection of performing legal research on the case for which no entries had been made in the file; however, he could not recall researching theories of the admissibility of Childs's offer to repair the termite damage or the profit made by the Dukes. He did not make a bill of exception. The attorney representing the inspection company prepared a jury charge using Pattern Jury Charge language that Crutchfield reviewed and adopted. Crutchfield did not prepare a motion in limine because the motions prepared by the other parties adequately covered the necessary issues; although he did admit he possibly could have limined mention of the wallpaper patch until the Dukes produced proof that Childs put the patch there. Crutchfield allowed plaintiffs' counsel to re-direct Mr. Duke after Homeguard's counsel cross-examined him because Crutchfield wanted to keep the claims against Homeguard separate from the claims against Childs. His focus was on the lack of contact between Childs and the Dukes in the contract phase rather than Childs's efforts after the Dukes discovered the live infestation. Crutchfield could not recall whether he objected to one of the jury questions. Crutchfield agreed to try attorney's fees to the court because if they were successful, fees would not be an issue and, if the defendants were unsuccessful the jury would be inclined to give the plaintiffs' attorney whatever he asked for. Although he could have presented evidence on attorney's fees, he did not do so. He discussed the jury verdict with Childs when the jury returned its verdict and discussed the effect of the attorney's fees hearing with her immediately, but he was not aware the judgment had been signed until he received a copy of the abstract of judgment and he telephoned Childs that day or a day later. Neither Childs's affidavit nor Crutchfield's deposition testimony establish the standard of care or raise a fact issue on either Crutchfield's failure to meet the standard or suit-within-a-suit causation. We hold the trial court properly granted summary judgment on Childs's claim for legal malpractice.

Childs contends the trial court erred in granting summary judgment on her other claims. She does not support her contention with any argument or authorities. Because the issue is inadequately briefed, we decline to address it. See Tex. R. App. P. 38.1(h).

In conclusion, we hold that the trial court did not abuse its discretion in striking the appellant's expert's affidavit and further, that the trial court did not err in granting summary judgment for the appellees. The appellant's issues are overruled and the judgment is affirmed.

AFFIRMED.

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CHARLES KREGER

Justice

Submitted on September 13, 2007

Opinion Delivered April 10, 2008

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. In this Opinion, we refer to the individuals by their surnames and refer to the professional corporation as "the law firm."