Hector Leal, Lydia Leal and Hector Leal, Jr. v. Gerardo Linan

NUMBER 13-05-781-CV COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

HECTOR LEAL, LYDIA LEAL, AND

HECTOR LEAL, JR., Appellants,

v.

GERARDO LINAN, Appellee.

On appeal from the County Court at Law No. 1

of Cameron County, Texas

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Garza Memorandum Opinion by Justice Garza

  Appellants, Hector Leal, Lydia Leal, and Hector Leal, Jr., sued appellee, Gerardo Linan, asserting causes of action for negligence, fraud, and violation of the Texas Deceptive Trade Practices Act ("DTPA"). Appellee filed a no-evidence motion for summary judgment raising challenges to the elements of each cause of action asserted by appellants. See Tex. R. Civ. P. 166a(i). Without specifying the grounds for its ruling, the trial court granted appellee's motion and subsequently entered a take-nothing judgment against appellants on all claims. By three issues, appellants contend the trial court erred in granting summary judgment on the issues of negligence, fraud, and DTPA. We affirm. Appellee is a Texas attorney whose services were retained to represent Hector Leal, Jr., in a divorce proceeding in Minnesota. Hector Leal, Jr.'s parents, Hector and Lydia, made two payments to appellee for his services, one for $6,700.00 and the other for $2,500.00. Appellee contends the $6,700.00 was a payment for the $5,000.00 flat fee charged to represent Hector Jr., and for travel expenses to and from Grand Rapids, Minnesota, including lodging and meal expenses.

Appellants contend appellee was hired to have Hector Jr.'s divorce proceeding transferred to Texas. Appellants claim to have also entrusted appellee with the duty of getting Hector Jr. out of jail. ⁽¹⁾ Appellants contend they were required to hire Minnesota attorney, Jim Perunovich, because appellee "was not competent to represent Hector Leal, Jr."

Appellee asserts that he was hired to represent Hector Jr. in the divorce proceeding; however, in the interim of having filed a Motion Pro Hac Vice in Minnesota, Hector Jr. was charged criminally for violating an existing protective order regarding his wife. Appellee claims he referred Hector Jr. to Mr. Perunovich to aid him with the criminal contempt proceeding. Appellee states that Hector Jr. retained Perunovich's services and paid him a $1,000.00 fee. Appellee alleges that, in addition to assisting Hector Jr. with the criminal proceeding, Mr. Perunovich agreed to accompany him, gratuitously, to a family law hearing relating to Hector Jr.'s divorce proceeding. Appellee contends he was successful in the hearing and was able to negotiate an ongoing visitation schedule for Hector Jr.

After returning to Texas, appellants Hector and Lydia, contacted appellee and demanded that he return their money because he "had not accomplished what he had promised, i.e. to have the case transferred to Texas." Appellants contend they were not pleased with appellee's level of competency during his representation of Hector Jr. After their attempts to obtain a reimbursement from appellee proved unsuccessful, appellants contacted attorney Jim Solis. Solis attempted to aid appellants in obtaining reimbursement; however, he too was unsuccessful. Subsequently, appellants filed suit against appellee alleging causes of action for negligence, fraud, and violation of the DTPA. On appeal, appellants contend the trial court erred in granting summary judgment as to all causes of action asserted. Appellants' response to appellee's motion for summary judgment included appellant Lydia Leal's affidavit, accompanied by copies of two checks payable to appellee for the total amount of $9,200, and two letters, written by Jim Solis and addressed to appellee, regarding appellants' attempt to collect the $9,200 retainer. Appellee objected to appellants' summary judgment evidence. Specifically, appellee objected to Lydia Leal's affidavit, stating that the affidavit was not based on personal knowledge, consisted of unsubstantiated factual conclusions, included conclusory testimony, and that Lydia Leal lacked competence to testify and her testimony was unreliable. ⁽²⁾

On appeal, in support of their argument that summary judgment was improper as to all three grounds, appellants rely entirely on Lydia Leal's affidavit. However, appellants have failed to include a clear and concise argument for the contentions made; specifically, they have failed to discuss the elements required to prove causes of action for negligence, fraud, and violations of the DTPA and have failed to discuss how alleged facts and evidence presented, disturbing as they may seem, establish each required element for each cause of action asserted. See Tex. R. App. P. 38.1(h); see also City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005) (approving no-evidence ground based on "complete absence of evidence of a vital fact"). Moreover, appellants have failed to include citations to authority in support of their argument. Tex. R. App. P. 38.1(h).

In addition, we note that Lydia Leal's affidavit consists of nothing more than self-serving conclusory statements. ⁽³⁾ Affidavits consisting only of conclusions are insufficient to raise an issue of fact. Purcell v. Bellinger, 940 S.W.2d 599, 602 (Tex. 1997) (finding that conclusory statements that are unsupported by facts are not proper summary judgment proof); Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984). Further, an affidavit must set forth facts, not legal conclusions. See Krishnan v. Law Offices of Preston Henrichson, P.C., 83 S.W.3d 295, 299 (Tex. App.-Corpus Christi 2002, pet. denied). Moreover, to serve as competent summary judgment proof, an affidavit must be clear, positive, direct, credible, free from contradiction, and susceptible of being readily controverted. See Tex. R. Civ. P. 166a(c); Haynes v. City of Beaumont, 35 S.W.3d 166, 178 (Tex. App.-Texarkana 2000, no pet.). An affidavit that makes "self-serving, conclusory statements without any underlying factual detail" fails that requirement. Haynes, 35 S.W.3d at 178. In the present case, appellants failed to meet their burden of bringing forth evidence sufficient to raise an issue of material fact on the alleged causes of action because Lydia Leal's affidavit is impermissibly conclusory and is thus improper summary judgment proof.

We have no basis for overturning the trial court's determination that summary judgment was proper based on the foregoing no-evidence grounds. Accordingly, appellants' three issues are overruled.

The judgment of the trial court is affirmed.

_________________________

DORI CONTRERAS GARZA,

Justice

Memorandum Opinion delivered and

filed this the 5th day of October, 2006.

1. Hector Jr. was jailed after being charged with contempt.

2. The record is silent as to whether the trial court granted appellee's objections to the summary judgment evidence.

3. Our review of the affidavit reveals the following relevant conclusory statements: (1) "His [appellee] affidavit is wrong . . . ."; (2) "There was no loan."; (3) "We thought he was our lawyer and would go do the work to get our son out of trouble."; (4) "After the divorce we asked Mr. LINAN to return some of the fee as we did not believe that he had done anything to earn it."' (5) "Mr. LINAN did not do anything in the courtroom that was of any significance."; (6) "Mr. LINAN took advantage of me and my husband because of our fears for our son."; (7) "Mr. Linan has injured me, my husband and my son by pretending that he knew what to do in Minnesota but he did not."; and (8) "This cost us over $9,000."