Robert Primo v. Scott Rothenberg ( 2015 )

ACCEPTED
14-13-00794-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
7/3/2015 11:52:56 PM
CHRISTOPHER PRINE
CLERK
NO. 14-13-00794-CV
IN THE COURT OF APPEALS
FOR THE 14th DISTRICT OF TEXAS FILED IN
14th COURT OF APPEALS
AT HOUSTON HOUSTON, TEXAS
7/3/2015 11:52:56 PM
ROBERT PRIMO, CHRISTOPHER A. PRINE
Clerk
Appellant,
v.
SCOTT ROTHENBERG,
Appellee.
On Appeal from the 133rd Judicial District Court, Harris County, Texas
The Honorable Jaclanel McFarland, Presiding
Trial Court Cause No. 2012-68391-A
APPELLANT’S MOTION FOR REHEARING
Robert M. Primo, D.D.S.
5023 Grape Street
Houston, Texas 77096
Telephone: (713) 669-8444
PRO SE APPELLANT
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INDEX OF AUTHORITIES
Cases  Page
Abraham v. Ryland Mortg. Co.,
995 S.W.2d 890 (Tex.App.—El Paso 1999) ............................................. 6
Callaghan Ranch, Ltd. v. Killam,
53 S.W.3d 1 (Tex.App.—San Antonio 2000) ........................................... 5
Freedom Communications, Inc. v. Brand,
907 S.W.2d 614 (Tex.Ap-Corpus Christi 1995)....................................... 6
McConnell v. Southside Ind. Sch. Dist.
, 858 S.W.2d 337, 342 (Tex.1993) ............................................................ 9
McConnell v. Southside Ind. Sch. Dist.,
858 S.W.2d 337 (Tex.1993) ...................................................................... 5
Mercantile Ventures, Inc. v. Dunkin' Donuts, Inc.,
902 S.W.2d 49 (Tex.App.—El Paso 1995) ............................................... 6
Weaver v. Highlands Ins. Co.,
4 S.W.3d 826 (Tex.App.—Houston [1st Dist.] 1999) .............................. 6
Page
Rules
Tex.R.App.P. 33.1.(a)(1) ............................................................................. 3
Tex.R.App.P. 9.5 ....................................................................................... 10
Tex.R.Civ.P. 166a(i) .................................................................................... 6
Tex.R.Civ.P. 166a(i) cmt. ........................................................................ 6, 8
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TO THE HONORABLE FOURTEENTH COURT OF APPEALS:
This Court’s June 18, 2015, affirming the trial court’s granting
of no-evidence summary judgment is a gross miscarriage of justice. In
its prior opinions this Court affirmed based on erroneous facts – that
Appellant failed to object timely to Rothenberg’s boilerplate evidentiary
objections. That is simply not true and the Clerk’s Record and
Appellant’s Brief clearly show that.
It is undisputed that Appellant filed a timely response on May 6,
2013, seven days before the May 13, 2013, summary judgment hearing.
(C.R. 320-338). The Response contained attached 10 (ten) numbered
exhibits.1 (C.R. 339-743; S.C.R. 4-116). Rothenberg filed a reply with
evidentiary objections late on Friday night, May 10, 2013, at 4:32 pm.
(C.R. 774). Appellant filed a sur-response at the first possible
opportunity to file – at 9:07 am the very next business day – Monday,
May 13, 2013. (C.R. 789). Thus, the sur-response containing the
objections/responses to Rothenberg’s evidentiary objections was
TIMELY and error was preserved for appeal exactly in compliance with
Tex.R.App.P. 33.1.(a)(1) as the record precisely shows that Appellant
1
Exhibits 1-8 are consecutively numbered. (C.R. 339-743; S.C.R. 4-95). Exhibit X, Affidavit of
Dr. Robert Primo, is numbered with a Roman numeral X. (S.C.R. 96-109) followed by
Exhibit 11 (S.C.R. 110-116).
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timely complained at length and addressed in his sur-response before
the trial court in detail each and every boiler-plate objection raised by
Rothenberg no matter how preposterous and baseless such objection
may be. (C.R. 798-802). The evidentiary response/objections spanned 14
paragraphs ¶¶27-41. (C.R. 798-802). The same evidentiary objections
and arguments were briefed in tantamount detail and specificity in
Appellant’s Brief, pp. 44-45; 50-55.
By holding that Appellant was required to continue objecting to
the trial court summary judgment again and again in post-judgment
motion(s) would create an entirely new rule for summary judgment
practice which does not currently exist in Texas jurisprudence and is
not supported by the authorities cited supra. This is especially true in
no-evidence summary judgments. There is good reason Texas refused to
incorporate them in the Texas Rules of Civil Procedure for nearly a
century and finally did so only to conform to the Federal Rules of Civil
Procedure. Abuse of such practice, as in the present case denies a
litigant her day in court by trial to a jury, especially in a legal
malpractice case. Deprival of the constitutional right to a trial by jury
has been the theme of all of the related malpractice cases.
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To start with Rothenberg’s no-evidence MSJ does not reach the
evidentiary level. It was legally insufficient and not worthy of a
response.
Appellant objected at length to the legal insufficiency relying on
an entire excerpt from Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1
(Tex.App.—San Antonio 2000). (C.R. 795 ¶25): A no-evidence motion for
summary judgment “must state the elements as to which there is no
evidence." See Tex.R.Civ.P. 166a(i). The comments to rule 166a(i),
which are "intended to inform the construction and application of the
rule," state: "The motion must be specific in challenging the evidentiary
support for an element of a claim or defense; paragraph (i) does not
authorize conclusory motions or general no-evidence challenges to an
opponent's case.” See Tex.R.Civ.P. 166a(i) cmt. If a no-evidence motion
for summary judgment is not specific in challenging a particular
element or is conclusory, the motion is legally insufficient as a matter of
law and may be challenged for the first time on appeal. See McConnell
v. Southside Ind. Sch. Dist., 858 S.W.2d 337, 342 (Tex.1993) (motion
that fails to present grounds is legally insufficient as a matter of law);
Freedom Communications, Inc. v. Brand, 907 S.W.2d 614, 618
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(Tex.App.—Corpus Christi 1995); Mercantile Ventures, Inc. v. Dunkin'
Donuts, Inc., 902 S.W.2d 49 (Tex.App.— -El Paso 1995) (defect in
motion not waived by failure to except); see generally TIMOTHY
PATTON, SUMMARY JUDGMENTS IN TEXAS: PRACTICE,
PROCEDURE AND REVIEW §5.06[5][a][ii] (2d ed. Supp.2000)
(conclusory no-evidence motion or one that generally challenges
sufficiency of non-movant's case is fundamentally defective and
insufficient to support summary judgment regardless of lack of
response) [emphasis added]. See also Weaver v. Highlands Ins. Co., 4
S.W.3d 826, 829 n.2 (Tex.App. -Houston [1st Dist.] 1999); Abraham v.
Ryland Mortg. Co., 995 S.W.2d 890, 892 (Tex.App.—El Paso 1999). This
Court’s holding is contrary to the established law and creates a new line
of stare decisis that if just a few of the 72 numbered “items” happen to
remotely match up to some element of the non-movant’s causes of
action, then the entire motion is legally sufficient. That is simply not
the law. 72 numbered “items” definitively categorize Rothenberg’s MSJ
as a “general no-evidence challenge” which is expressly prohibited by
the Supreme Court of Texas. See Tex.R.Civ.P. 166a(i) cmt; McConnell v.
South. Dist., 858 S.W.2d 337, 342 (Tex.1993).
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This Court issued several exceptionally lengthy opinions, each
more than 15,000 words and 49 pages. This Court mischaracterized the
underlying case as simply one of a fee dispute. This Court misquoted
Appellant’s pleading in the trial court as “legal malpractice and related
torts”. Actually, Appellant voluntarily dismissed claims of legal
malpractice, (C.R. 20-37), not because of lack of merit of a negligence on
the part of Rothenberg but because Rothenberg is judgment-proof and
continuing with the prohibitive cost of a suit-within-the-suit against a
party like Rothenberg who repeatedly complains that he is indigent and
cannot pay his monthly bills related to his virtually non-existent
practice of law. Rothenberg has no insurance policy for legal
malpractice to protect his clients in the event of his own negligence or
breach of fiduciary duty.
Appellant’s first amended answer and counterclaim however
adequately pleads the cause of action of fraud and breach of fiduciary
duty. (C.R. 25). Yet nowhere in any of the multiple opinions by this
Court did this Court even mention the gravamen of Appellant’s
allegations against Rothenberg: that he took on a case with almost no
trial experience which inevitably resulted in major error: Rothenberg’s
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failure to disclose key witnesses the lawyers who performed the work
for a case of over half a million dollars in legal fees and Rothenberg
showed up for trial without a single fact witness on the issue of
reasonableness and necessity of legal fees of a case well over half a
million dollars. Then Rothenberg refused to disclose his error to his own
client but Rothenberg, immediately upon discovering his error, in the
midst of a psychedelic hysterical fit, covered up his error by trying to
effect an immediate settlement, still not disclosing to his client that
trial would be gravely compromised by his error because the key
witnesses would be precluded from testifying. That is an allegation well
beyond just mere negligence – it is breach of fiduciary duty.
This Court must not forget that Rothenberg blatantly falsified
under oath (a felony criminal offense) the most material document in
the controversy trying to misrepresent the facts that he was somehow
instructed to omit the witnesses.
This Court, in its latest opinion, affirmed Rothenberg’s no-
evidence motion for summary judgment, solely on the basis that
Appellant inadequately briefed how Appellant’s summary judgment
evidence raised genuine issue of material fact. This Court stated:
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Primo’s brief does not explain how his summary
judgment evidence raises a genuine issue of material
fact with respect to the 19 elements Rothenberg
challenged in his no-evidence summary judgment
motion. Thus, Primo’s issue presents nothing for our
review. Opinion at 30.
However, as this Court cited, the standard of review for this Court
is to review summary judgment de novo. Duerr v. Brown, 262 S.W.3d
63, 68 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)). De novo
means reviewing the evidence that was presented in the trial court.
Appellant properly included that evidence in the record. Transcript of
the Indemnity Suit trial (C.R. 339-743;). Affidavit of the expert Leonard
Meyer. (S1.C.R 4-21); Leonard Meyer’s Expert Report (S1.C.R 22-35);
Correspondence between Appellant and Rothenberg. (S1.C.R 36-42; 43-
61); Appellant’s affidavit (S1.C.R 96-109); Appellant’s discovery
responses. (S1.C.R 62-70; 71-95). Thus, there was a wealth of evidence
for this Court to review de novo.
The affidavit of Appellant is one of facts self-explanatory of the
allegation of breach of fiduciary duty of Rothenberg. (S1.C.R 96-109).
The expert report by Leonard Meyer and his affidavit however are
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evidence of expert opinion and of the standard of care and how
Rothenberg failed to meet the standard of care. (S1.C.R 4-21; S1.C.R 22-
35);
Unlike a traditional motion for summary judgment, a no-evidence
motion for summary judgment, does not require that respondent
conclusively argue and prove his case for which the respondent bears
the burden to prove at trial, but that respondent.
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). We
review a no-evidence summary judgment for evidence that would enable
reasonable and fair-minded jurors to differ in their conclusions.
Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex.2008) (citing City of
Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005)). We credit evidence
favorable to the nonmovant if reasonable jurors could, and we disregard
evidence contrary to the nonmovant unless reasonable jurors could not.
Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex.2009) (quoting
Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006)). The trial
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court may not grant a no-evidence summary judgment if the respondent
brings forth more than a scintilla of probative evidence to raise a
genuine issue of material fact. See TEX.R. CIV. P. 166a(i); See Jim
Rutherford Investments, Inc. v. Terramar Beach Community Ass'n, 25
S.W.3d 845 (Tex.App.-Houston [14 Dist.] 2000) (citing Merrell Dow
Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)). To defeat a
motion made under paragraph (i), the respondent is not required to
marshal its proof; its response need only point out evidence that raises
a fact issue on the challenged elements. Tex.R.Civ.P. 166a(i) cmt. The
amount of evidence required to defeat a no-evidence motion for
summary judgment parallels the standard for directed verdict and for a
no-evidence challenge on appeal from jury trials. Thus, if the
respondent brings forth more than a scintilla of evidence, that will be
sufficient to defeat a no evidence motion for summary judgment.
Morgan v. Anthony, 27 S.W.3d 928 (Tex. 2000); Nicholson v. Smith, 986
S.W.2d 54 (Tex.App.-San Antonio 1999); Isbell v. Ryan, 983 S.W.2d 335
(Tex.App.-Houston [14th Dist.] 1998). A no-evidence summary judgment
is improperly granted when the respondent brings forth more than a
scintilla of probative evidence that raises a genuine issue of material
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fact. See Tex.R.Civ.P. 166a(i) cmt.; Coastal Conduit & Ditching, Inc. v.
Noram Energy Corp., 29 S.W.3d 282 (Tex.App.- Houston [14th Dist.]
2000); Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502, 506
(Tex.2002). Less than a scintilla of evidence exists when the evidence is
“so weak as to do no more than create a mere surmise or suspicion” of a
fact. Kindred v. Con/Chem, Inc., 650 S.W.2d 61 (Tex.1983). More than a
scintilla of evidence exists when the evidence “rises to a level that would
enable reasonable and fair-minded people to differ in their conclusions.”
Havner, 711 (quoting Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497,
499 (Tex.1995)).
Neither in the trial court nor in the court of appeals is the quality
of respondent’s argument the standard of review but the respondetn’s
evidence and whether that evidence supports the respondents
pleadings.
There was no complete absence of evidence to support Appellant’s
allegations against Rothenberg. The only evidence presented to the
trial court was Appellant’s evidence and the trial court was not barred
by the rules of law or evidence of giving weight to it. The evidence pof
Rothenberg’s fraud and breach of fiduciary duty was well more than a
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mere scintilla. Rothenberg presented no evidence to establish the
opposite of the vital fact. In fact Rothenberg may not and did not
present evidence in a no-evidence motion for summary judgment.
By affirming the no-evidence summary judgment, clearly in the
presence of overwhelming evidence, absent any defect in such evidence,
of Rothenberg’s fraud and breach of fiduciary duty, this Court again
sets a brand new standard that no-evidence motion for summary
judgment must be argued rather than the evidence presented in
response to a no-evidence motion for summary judgment. As in the trial
court, this Court also failed to indulge Appellant, as the non-movant,
any, a fortiori, every reasonable inference and resolving any doubts
against the motion.
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PRAYER
Appellant respectfully requests that this Court reconsider its
latest opinion and reverse the trial court’s no-evidence summary
judgment as to Rothenberg’s blatant fraud and breach of fiduciary duty,
both as affirmative claims and affirmative defenses and remand the
case to the trial court for further proceeding, and award all costs of this
appeal to Appellant.
Respectfully submitted,
/s/ Robert M. Primo
APPELLANT
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CERTIFICATE OF SERVICE
I certify that on the 3rd day of July, 2015, a true and correct
copy of the foregoing Appellant’s Motion for Rehearing has been
served to Scott Rothenberg in compliance with Tex.R.App.P. 9.5.
/s/ Robert M. Primo
Robert M. Primo
Scott Rothenberg
Texas Bar No. 17316750
2777 Allen Parkway, Suite 1000
Houston, Texas 77019-2165
Telephone: (713) 667-5300
Telecopy: (713) 667-0052
PRO SE APPELLEE
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