American Communications, Inc. v. Henkel, C.M., III ( 2000 )

NUMBER 13-98-539-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

___________________________________________________________________

AMERICAN COMMUNICATIONS, INC.,

Appellant,

v.

C.M. HENKEL, III, Appellee.

___________________________________________________________________

On appeal from the 347th District Court of Nueces County, Texas.

___________________________________________________________________

O P I N I O N

Before Chief Justice Seerden and Justices Hinojosa and Yañez

Opinion by Justice Yañez

American Communications, Incorporated ("ACI"), R.W. Pratt, Byron W. Pratt, and Mary C. Pratt, sued attorney C.M. Henkel, III, ("Henkel"), alleging that Henkel had served as ACI's corporate attorney, and had harmed ACI by assisting a former ACI employee to incorporate a company which competed with ACI. The suit was dismissed by summary judgment. Of the plaintiffs, only ACI appeals the decision. We affirm.

ACI was a company providing communications equipment and services in and around Corpus Christi, Texas. Although the record is not well developed as to the exact status of the Pratts, they were, apparently, shareholders or officers in ACI. Henkel provided legal services to ACI as a corporation, as well as to the Pratts, individually, over a course of approximately seventeen years. The record indicates that, in 1992, Henkel ceased to be involved with ACI as a corporate attorney, although he did represent ACI in a lawsuit from June 1994 until January 1995.

In February 1995, ACI's operational manager for Nueces County, Michael Collins, resigned from ACI, and formed a corporation competing with ACI. All of ACI's employees in Nueces County joined Collins, leaving ACI unable to operate. Henkel prepared the documents for Collins to incorporate his new company. The Pratts apparently sold ACI's assets to a competing business because ACI could not function without its staff.

ACI and the Pratts brought suit against Henkel in August 1996, alleging violations of the Deceptive Trade Practices-Consumer Protection Act,⁽¹⁾ negligence, and conspiracy. Henkel moved for summary judgment on a variety of grounds. ACI responded to Henkel's motion for summary judgment, supporting the response with copies of interrogatories and two affidavits. Henkel objected to the affidavits, arguing that they were conclusory, contained hearsay, and were speculative. The trial court held a hearing on the summary judgment motion, in which it first heard arguments concerning Henkel's objections to the affidavits. Following the hearing, the trial court granted summary judgment in favor of Henkel.

ACI contends, in a single issue, that the trial court erred in striking the affidavits, and that these affidavits raise a fact issue. The standards for determining the admissibility of evidence in a summary judgment proceeding are the same as those applied in a regular trial. United Blood Servs v. Longoria, 938 S.W.2d 29, 30 (Tex. 1997). Decisions about the admissibility of evidence are left to the sound discretion of the trial court. Owens-Corning Fiberglass Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Pegasus Energy Corp. v. Cheyenne Petroleum Co., 3 S.W.3d 112, 133 (Tex. App.--Corpus Christi 1999, pet. denied); see also Sanders v. Shelton, 970 S.W.2d 721, 727 (Tex. App.--Austin 1998, writ. denied) (holding in a summary judgment case that the admission or exclusion of evidence rests with the discretion of the trial court).

In the case now before this Court, ACI introduced two affidavits to oppose Henkel's motion for summary judgment. One of these affidavits was that of Robert Myers, an attorney, the other was the affidavit of Byron Pratt. We will address each affidavit in turn.

Robert Myers's Affidavit

In his affidavit, Myers states that he is an attorney licensed in Texas, and has litigated "matters involving relationships between attorneys and their clients [and] the ethical constraints imposed upon attorneys in [Texas]." Myers goes on to state that he has reviewed the pleadings and evidence involved in this case, and it is his opinion that Henkel fell below the "standard of care attributable to attorneys in Corpus Christi, Nueces County, Texas, on the dates applicable to Plaintiffs' claims and causes of action." Myers lists actions by Henkel that Myers believes were contrary to Henkel's duty to ACI. Myers declares that "it is my understanding" that Byron Pratt would have postponed medical treatment, which incapacitated him, had he been informed of Collins's plans to quit and form his own company. It is also Myers's "understanding" that because of the "hands on" nature of ACI's business, ACI would be effectively shut down by the departure of Collins and the rest of the ACI staff. Myers concludes that "Henkel's failure to follow the dictates of the professional conduct of the attorney's [sic] in this state [sic] proximately caused the damage to A.C.I."

Myers's affidavit was obviously intended to be that of an expert witness, and was recognized as such at the summary judgment hearing. Henkel objected to Myers's affidavit on the grounds that it was conclusory and based on hearsay evidence.

"Conclusory statements by an expert witness are insufficient to support or defeat summary judgment." Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). It is not enough for an attorney to state his credentials and then offer a conclusion as to whether the standard of care has been met. See Burrows v. Arce, 997 S.W.2d 229, 236 (Tex. 1999). The expert must state the basis for his opinion; in other words, the expert must explain why he reached his conclusions. Id. An affidavit that fails to explain the legal basis or reasoning supporting the expert's opinion is conclusory. Id.; Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991).

Myers's affidavit states that he knows the standard of care, but never states that standard. He lists actions that apparently violate the standard of care, and concludes that Henkel violated the standard of care and several of the Texas State Bar Rules of Professional Conduct. Myers's affidavit is conclusory. Myers does not tell us what standard is being applied to the actions; basically he is saying that he, as an expert, knows the standard, and these actions don't meet the standard. Such statements cannot support a summary judgment. Burrows, 997 S.W.2d at 236. The trial judge properly excluded this affidavit as being conclusory.

Byron W. Pratt's Affidavit

Pratt's affidavit contains statements which could have reasonably been excluded. He states that he was told by former ACI employees that Collins lied to them about ACI's financial status. This is hearsay. Tex. R. Evid. 802. Pratt describes Henkel as ACI's corporate attorney, a conclusion at issue in the case. Pratt also concludes that Henkel knew that Collins was essential to the daily operation of ACI. Pratt states that, in his opinion, Henkel was a material witness to Collins's intent to interfere with ACI's operations. Pratt also states that Henkel defended Collins and Collins's new company in a lawsuit brought by ACI, and refused to withdraw as Collins's counsel. There is evidence in the record that the trial court in that case heard ACI's motion to disqualify Henkel, and refused to order his disqualification.

Much of Pratt's affidavit would be inadmissible. In many places the affidavit contains hearsay, as well as numerous conclusory statements. The trial court would have been well within its discretion in striking large portions of the affidavit, if not the entire affidavit.

Even assuming, arguendo, that the exclusion of the entire affidavit was error, we do not find that error would require reversal. To reverse a judgment based on the erroneous exclusion of evidence, it must be shown that the evidence was "both controlling on a material issue and not cumulative." Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994). The judgment of the trial court will not be reversed if the excluded evidence is found to be cumulative of other evidence. Id.

In the instant case, the trial court had before it not only Pratt's affidavit, but also Pratt's answers to Henkel's interrogatories, as well as evidence offered by Henkel. The portions of Pratt's affidavit that are not conclusory or hearsay are repetitive of the answers he gave to Henkel's interrogatories. The excluded affidavit was cumulative of the interrogatory evidence, which was admitted without opposition. The exclusion of Pratt's affidavit as a whole was not reversible error. Issue number one is overruled.

The only action by the trial court challenged by appellant is the exclusion of the affidavits at the summary judgment hearing. Because the only issue raised on appeal is the striking of the affidavits, we may not consider any other potential error in the trial court's granting of the summary judgment. Pat Baker Co. v. Wilson, 971 S.W.2d 447, 450 (Tex. 1998).

The judgment of the trial court is AFFIRMED.

________________________

LINDA REYNA YAÑEZ

Justice

Do not publish.

Tex. R. App. P. 47.3.

Opinion delivered and filed this

the 31st day of August, 2000.

1. Tex. Bus. & Com. Code Ann. § 17.46 (Vernon Supp. 2000).