Jeffrey Michael Burns v. Sachie A. Canales and Klitsas & Vercher, P.C ( 2006 )

Affirmed and Memorandum Opinion filed February 28, 2006

Affirmed and Memorandum Opinion filed February 28, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00786-CV

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JEFFREY MICHAEL BURNS, Appellant

V.

SACHIE A. CANALES AND KLITSAS & VERCHER, P.C., Appellees

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On Appeal from the 280th District Court

Harris County, Texas

Trial Court Cause No. 03-48697

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M E M O R A N D U M   O P I N I O N

Appellant Jeffrey Michael Burns sued appellee Sachie A. Canales for negligence, deceptive trade practices, common law fraud, negligent hiring, and breach of fiduciary duty. Under the theory of respondeat superior, Burns made the same allegations against Canales= employer, Klitsas & Vercher, P.C. (AKlitsas@), and also sought damages for negligent hiring, supervision, and/or management.  Canales and Klitsas filed a joint no-evidence motion for summary judgment, which the trial court granted.  We affirm.

I. Factual and Procedural Background

Burns, a paralegal and the owner of Southwest Texas Paralegal Services, entered into a contract with Four Seasons Business Park (AFour Seasons@).  The parties agreed that Burns would provide paralegal services to Four Seasons, and Four Seasons would compensate Burns by providing rental space, utilities, and an hourly wage.  At some point, a dispute arose:  Burns claimed Four Seasons refused to pay his invoice, whereas Four Seasons alleged Burns had retained $500 without performing any services. Four Seasons changed the locks on Burns=s property without giving him notice. Acting pro se, Burns sought and was granted a writ of re-entry from a Justice of the Peace Court in Harris County.

Burns then filed a pro se suit against Four Seasons in a Harris County Civil Court at Law for breach of contract and constructive eviction.  Four Seasons allegedly responded with allegations that Burns engaged in fraud, conversion, and unauthorized practice of law.^[1]  While the suit was pending, Four Seasons tendered a settlement offer to Burns.  On December 2, 2002, Burns retained Canales, an attorney with Klitsas, to represent him in his action against Four Seasons.

Burns and Four Seasons agreed to mediate their dispute on April 14, 2003.  At the conclusion of the session, Canales, acting on behalf of Burns, agreed to accept $1,000 from Four Seasons in exchange for a settlement of the dispute. 

The following week, however, Burns sought to avoid the scheduled entry of judgment on the settlement agreement by filing a motion to abate.  At the hearing on the motion, Canales argued that the Four Seasons’ attorney who had supervised Burns while he was performing paralegal services, should have been joined as a party to the counterclaim.  The judge denied the motion.^[2]  Two days after the hearing, Canales filed a motion to withdraw as Burns=s counsel.  The motion was granted.  Canales then sent Burns a letter stating that, in her professional opinion, the settlement was binding and Burns would need to find other counsel if he wanted to rescind the agreement.

On August 2, 2003, again acting pro se, Burns filed suit against Canales and Klitsas, alleging violations of the Deceptive Trade Practices Act and common law fraud. As part of his initial discovery requests, Burns requested Canales= medical records and photographs of her that were taken after she was assaulted in 2001, more than a year before she represented Burns. Canales and Klitsas filed a motion for a protective order, and also requested that the trial court dismiss the case with prejudice.  At a hearing on October 31, 2003, the trial court granted the order, but refused to dismiss the case.  Five days later, Burns amended his petition to include legal malpractice on the part of Canales, negligent hiring, supervision and/or management on the part of Klitsas, and breach of fiduciary duty against both.

The case was set for trial on July 12, 2004, with the discovery period scheduled to end on June 16, 2004.  The day after the discovery period closed, Canales and Klitsas filed a joint no-evidence motion for summary judgment.  Burns responded on July 9, 2004.  The trial court granted the motion for summary judgment and ordered Burns to pay all costs.  Burns filed a motion for new trial but before receiving a ruling, Burns filed a notice of appeal.  Burns later filed an amended motion for new trial, which the trial court denied.  In its order denying the motion for new trial, however, the trial court struck the language awarding costs to Canales and Klitsas. Burns appears before this court pro se. Canales and Klitsas did not file a brief.

II. Issues Presented

Burns presents nine issues for our review.  In his first issue, he contends the trial court erred in granting the summary judgment motion, and in seven of his remaining eight issues, he argues the trial court erred by finding that no evidence existed on specific elements of his causes of action.  Lastly, he claims the trial court erred in granting a motion for protective order regarding certain discovery requests.  We address the issues in the order in which they arose in the court below.

III. Analysis

A.        Did the Trial Court Err by Granting the Motion for Protective Order?

In his sixth issue, Burns argues the trial court erred in granting Canales= motion for protective order because (a) Canales did not respond to discovery requests with a specific objection; and (b) Canales presented no evidence at the hearing on the motion for protective order.

An objection to written discovery need not be stated in a response to discovery, but instead may be urged in a separate document, such as a motion for protective order.  Tex. R. Civ. P. 193.2(a); 192.6. Canales filed a written motion for protective order,^[3] and Burns does not contend that the motion was untimely or otherwise deficient.  Therefore, we conclude Burns=s arguments regarding Canales= alleged failure to object to the improper discovery requests is without merit.

Burns also contends that the protective order was improper because Canales failed to present evidence at the hearing on the motion.  Although Burns  is correct that Texas Rule of Civil Procedure 193.4(a) requires the party objecting to discovery to Apresent any evidence necessary to support the objection or privilege,@ Canales complied with this rule.  She presented Burns=s requests for production to the trial court, and the trial court considered the requests and Burns=s claims.  Although neither the discovery requests nor the motion for protective order have been provided for our review, a transcript of the hearing on the motion demonstrates that Canales and Klitsas objected to the discovery because the material requested was irrelevant and was requested for the purpose of harassment.

Burns claims, because he was Canales=s client, she had an obligation to inform him that she had been the victim of a crime that caused her physical and financial damages and mental anguish.  Burns further posits that, because he has filed a legal malpractice claim against Canales, he is entitled to discover documents related to her injuries.  We disagree.

A legal malpractice action is based upon negligence and requires the plaintiff to show: (1) the attorney owed the plaintiff a legal duty; (2) the attorney breached that duty; (3) the breach proximately caused the plaintiff's injuries; and (4) damages occurred.  See, e.g., Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004); Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.CHouston [1st Dist.] 1998, pet. denied).  If a legal malpractice case arises from prior litigation, a plaintiff must prove that Abut for@ the attorney's breach of his duty, the plaintiff would have prevailed in the underlying case.  Greathouse, 982 S.W.2d at 172.^[4]  None of the material requested was relevant to any element of Burns=s claims.  Because it was irrelevant, the material was outside the scope of discovery. Tex. R. Civ. P. 192.3(a); 192.4(b). The evidence and argument considered by the trial court were sufficient to establish the impropriety of the requests, and the trial court did not abuse its discretion in disallowing the discovery.

Burns=s sixth issue is overruled.

B.        Did the Trial Court Err by Granting Appellees= No-Evidence Motion for Summary Judgment?

In Burns=s first issue, he complains of the trial court=s grant of appellees=s no-evidence motion for summary judgment.  In his remaining issues, he argues the trial court erred by not considering evidence on specific elements of his alleged causes of action.

Four days before the hearing on the motion, Burns filed a response.  The response consisted solely of the recital of the standard of review, followed by this statement:

Attached hereto and incorporated herein by reference, is an appendix containing discovery, transcripts and pleadings setting forth summary judgment proof of the existence of a material fact concerning Negligence, Deceptive Trade, Common Law Fraud, Negligent Hiring, Supervision, and/or Management, Breach of Fiduciary Duty, Respondeat Superior.

The response contained no citation to any authority, no citation to specific evidence, no reference to any fact, and no argument.  Burns=s summary judgment evidence consisted of his own unsworn responses to requests for disclosure, the defendants= answers to requests for admission, a transcript of a hearing on a motion to abate, a transcript of a hearing in another case in which Burns represented himself, a transcript of the hearing on defendants= motion for protective order, and Burns=s responses to other motions and discovery requests.

In granting the motion for summary judgment, the trial court provided the following explanation for its decision:

Plaintiff=s response is over one-half inch thick, but consists mostly of copies of prior filings.  The response itself consists only of one and a half pages and makes no argument and points to no evidence to support any cause of action.  The Court is not required to search Plaintiff=s exhibits to try to find some scintilla of evidence when Plaintiff points to none.

(Emphasis added). We agree with the trial court that Burns=s response was inadequate to satisfy his burden of proof to defeat a Ano evidence@ motion for summary judgment.^[5]

Although Burns claims that the appendix sets forth summary judgment proof of the existence of Aa material fact concerning [each of the causes of action],@ a nonmovant responding to a motion for Ano evidence@ summary judgment is required to do more.  AThe written answer or response to the motion must fairly apprise the movant and the court of the issues the non‑movant contends should defeat the motion.@  City of Houston  vs. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979).  Burns is not required to marshal his proof, but he is required to Apoint out evidence that raises a fact issue on the challenged elements,@ and not merely on the causes of actions generally. See Tex. R. Civ. P. 166a (cmt. to 1997 change) (emphasis added). Because each element of each cause of action had been properly challenged, Burns bore the burden to Apoint out@ more than a scintilla of probative evidence concerning each element.  The evidence presented cannot support an argument that has not been made, and the trial court is not required, sua sponte, to assume the role of Burns=s advocate and supply his arguments for him.

Even had Burns produced sufficient reasons why summary judgment would be improper, he would still be required to support those reasons with evidence.  San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 329 (Tex. App.CHouston [14th Dist.] 2005, no pet. h.) (AIf a non-movant=s response fails to set forth valid reasons why summary judgment should not be granted and if the motion and summary judgment evidence show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on the grounds asserted in the motion, then the trial court should simply grant summary judgment@).  A general reference to a voluminous record that does not direct the trial court and the parties to the evidence on which the movant relies is insufficient.  Guthrie v. Suiter, 934 S.W.2d 820, 826 (Tex. App.CHouston [1st Dist.] 1996, no writ).  A trial court does not abuse its discretion when it does not consider summary judgment proof to which a movant does not specifically direct the trial court=s attention.  See id.  Here, Burns has not cited to any particular evidence as probative of any element of any cause of action. 

Burns argues that his summary judgment response was sufficient under Simplified Telesys, Inc. v. Live Oak Telecom, L.L.C., 68 S.W.3d 688 (Tex. App.CAustin 2000, pet. denied).  In Simplified Telesys, the non-movant=s response to the no-evidence motion for summary judgment stated, A[e]vidence sufficient to raise a genuine issue of material fact is all contained in the Reporter=s Record.@  Id. at 690.  A copy of the reporter=s record, which consisted of 205 pages of testimony of various witnesses, was attached to the response as Exhibit A.  Id. at 691.  The trial court granted the no-evidence motion, but did not state the basis for its decision.  Id. at 690.  On appeal, the appellee argued that the judgment should be affirmed because the non-movant=s response failed to sufficiently point out the testimony that would have created a fact issue.  Id. at 691. The appellate court disagreed, finding that the response satisfied the requirements of Athe accompanying notes and comments@ to Rule 166a(i).  Id.

Simplied Telesys, however,  was decided before Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002).  In Johnson, a law firm sued its former associate and another lawyer, asserting causes of action for breach of fiduciary duty, actual and constructive fraud, conversion, negligence, and conspiracy.  Id. at 198.  The individual attorneys moved for Ano evidence@ summary judgment against the law firm, claiming inter alia that there was no evidence of the Aunlawful purpose@ of the conspiracy claim.  Id.  The trial court granted the summary judgment, and the court of appeals affirmed the judgment on the grounds that the law firm=s response to the motion for summary judgment did not tie facts in the record to the specifically challenged elements of the conspiracy claim.  Brewer & Pritchard, P.C. v. Johnson, 7 S.W.3d 862, 869 (Tex. App.CHouston [1st Dist.] 1999, pet. granted), aff=d on other grounds, 73 S.W.3d 193 (Tex. 2002) (Aalthough it is true that appellant globally stated facts to support its conclusions as it sees them and cited to the record in support of those facts, it made no effort to connect any of the facts to the challenged elements of the causes of action.  We believe Rule 166a(i) requires the non-movant to make that connection@).  On review before the Texas Supreme Court, the Court stated that A[w]hether Brewer & Pritchard adequately pointed out evidence relating to challenged elements of the conspiracy cause of action is a close question.@  Johnson, 73 S.W.3d at 207.  Brewer & Pritchard=s response to the motion for summary judgment was divided into headings and subheadings, and though none of the headings identified the conspiracy claim, the response Adetailed evidence@ and stated that A[t]hese facts clearly evidence a sloppy but, thus far effective scheme to funnel [funds to the individual attorneys].@ Id. (emphasis added).  In addition, Brewer & Pritchard contended that its conspiracy claim was alleging a conspiracy to breach a fiduciary duty, and supported its claim of breach of fiduciary duty with both argument and evidence.  The Court concluded that Brewer & Pritchard=s summary judgment response Amet the minimum requirements of Rule 166a(i).@  Id. at 207B08.  The response included argument and evidence, and while the response was not a model of clarity, it did address the particular issue raised in the motion for summary judgment.  Id. at 207.

Here, Burns=s response falls far short of the Aminimum requirements@ satisfied in Johnson.  Unlike the non-movant in Johnson, Burns=s written response to the motion for summary judgment contains no argument, and cites to neither evidence nor authority.  Mere reference to attached evidence is insufficient to avoid summary judgment.  See McConnell v. Southside Indep. School Dist., 858 S.W.2d 337, 341 (Tex. 1993) (Aissues a non-movant contends avoid the movant=s entitlement to summary judgment must be expressly presented by written answer to the motion or by other written response to the motion and are not expressly presented by mere reference to summary judgment evidence.@)

Burns contends it would not have been unduly burdensome for the trial court to review his evidence, because his response contained only 122 pages of evidence. The number of pages, however, is not dispositive.  The issue is whether the trial court must search through all of the non-movant=s evidence to determine if a fact issue exists without any guidance concerning what evidence creates an issue on a particular element.  See San Saba, 130 S.W.3d at 331.  Under the Rules of Civil Procedure, the party seeking to avoid the effects of a well-pleaded no-evidence motion for summary judgment bears the burden to file a written response that raises issues preventing summary judgment, and that points to evidence supporting those issues.  Where the nonmovant fails to meet that burden, the trial court is not required to supply the deficiency, but instead must grant the motion.  See Tex. R. Civ. P. 166a(i). 

Throughout his brief, Burns reminds us that pro se pleadings Amust be held to less stringent standards@ than formal pleadings and that we should review his prosecution of his claims both in the trial court and on appeal Awith patience and liberality.@  See Haines v. Kerner, 404 U.S. 519, 520 (1972); Johnson v. McAdams, 781 S.W.2d 451, 452 (Tex. App.CHouston [1st Dist.] 1989, no writ).  There is no basis, however, for differentiating between litigants represented by counsel and pro se litigants in determining whether rules of procedure must be followed.  Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184 (Tex. 1978); Brown v. Tex. Employment Comm=n, 801 S.W.2d 5, 8 (Tex. App.CHouston [14th Dist.] 1990, writ denied).

In terms of procedure, a pro se litigant is held to the same standards as a licensed attorney.  Brown, 801 S.W.2d at 8.  If a pro se litigant were not required to comply with the applicable rules of procedure, he would be given an unfair advantage over a litigant that is represented by counsel.  Holt v. F.F. Enterprises, 990 S.W.2d 756, 759 (Tex. App.CAmarillo 1998, pet. denied). 

Because Burns failed to comply with Rule 166a(c) and (i) in his response to a no-evidence motion for summary judgment, we affirm the trial court=s order. 

IV.  Conclusion

In sum, we hold the trial court did not abuse its discretion in granting appellee=s motion for protective order.  We further hold Burns failed to satisfy the requirements of Rule 166a(c) and (i) in response to a proper motion for no-evidence summary judgment and accordingly, we affirm the trial court=s judgment.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed February 28, 2006.

Panel consists of Justices Fowler, Edelman, and Guzman.

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^[1]  No copy of Four Seasons= answer has been provided; however, at a hearing on Burns=s motion to abate, Canales testified, Athere was a counterclaim filed against [Burns] for unauthorized practice of law, conversion, and fraud.@

^[2]  The judge did note that the settlement agreement was scheduled to be entered as a judgment on April 30, 2003, but did not guarantee that he would sign it.  The record does not indicate whether the judgment was ever entered.

^[3]  Though a copy of the motion was not provided for our review, the existence of a written motion is acknowledged in Burns=s brief and in the transcript of the hearing on the motion.

^[4]  Though Burns also attempts to characterize his claims as arising under the Deceptive Trade Practices Act, the DTPA does not apply to a claim for damages based upon professional services, if the essential nature of the service is the providing of advice, judgment, opinion, or similar professional skill.  See Tex. Bus. & Com. Code Ann. ' 17.49(c)(1) (Vernon 2002).  Regardless of how the claim may be characterized, it is clear from the record and the brief before us that all of Burns=s causes of action simply restate his claim for malpractice.

^[5]  In addition, even if considered by the trial court, the evidence submitted was insufficient as a matter of law.