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 2009-02

Trish R. Calloway v. James N. Hull & Associates, P.C. A/K/A Hull & Associates, P.C. and LVNV Funding LLC ( 2009 )


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  • Affirmed and Memorandum Opinion filed February 24, 2009

    Affirmed and Memorandum Opinion filed February 24, 2009.

     

    In The

     

    Fourteenth Court of Appeals

    ____________

     

    NO. 14-07-00834-CV

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    TRISH R. CALLOWAY, Appellant

     

    V.

     

    JAMES N. HULL & ASSOCIATES, P.C. A/K/A HULL & ASSOCIATES, P.C. AND LVNV FUNDING LLC, Appellees

     

      

     

    On Appeal from the 113th District Court

    Harris County, Texas

    Trial Court Cause No. 2006-79792

     

      

     

    M E M O R A N D U M   O P I N I O N

    Appellant Trish R. Calloway appeals from the trial court=s grant of summary judgment for appellees James N. Hull & Associates, P.C. a/k/a Hull & Associates, P.C. and LVNV Funding, LLC.  Calloway contends the trial court (1) abused its discretion by granting Hull=s motion for protective order, (2) erred in denying her objections and special exceptions, and (3) erred in granting Hull=s and LVNV=s motions for summary judgment.  We affirm.

    Background

    In 2006, LVNV filed a lawsuit against Calloway to collect on a revolving credit account debt.  Hull was LVNV=s counsel in the lawsuit.  Shortly before the trial date, LVNV non-suited the case.  Calloway then filed this lawsuit against LVNV and Hull, alleging that LVNV and Hull intentionally and maliciously filed the lawsuit against her on a false or fictitious account and, rather than produce a legible, enforceable account agreement, LVNV instead non-suited its case three days before the scheduled trial date.  Calloway originally alleged malicious civil prosecution and intentional infliction of emotional distress against LVNV and Hull, and later amended her petition to add a claim for fraud by nondisclosure.

    Calloway served interrogatories on Hull, which primarily requested the factual bases for the allegations LVNV had made in the earlier lawsuit.  Unsatisfied with Hull=s responses, Calloway filed a motion to compel.  Hull responded to Calloway=s motion to compel and also moved for a protective order.  Hull contended that, among other things, if any cause of action existed, the proper defendant would be its client, LVNV, because Hull, as LVNV=s counsel, could not be sued solely for representing its client in court.  Further, Hull contended that Calloway=s discovery would likely involve significant issues surrounding the attorney-client and work-product privileges.  Hull alternatively requested that the trial court stay all discovery against it until a motion for summary judgment could be heard and ruled on, Aso issues can be narrowed.@  Similarly, in its motion for protective order, which was incorporated into its response to Calloway=s motion to compel, Hull asserted that Calloway had propounded discovery to it that was not necessary in the case and asked the trial court to stay discovery until the issues could be narrowed with a motion for summary judgment.  The trial court granted Hull=s motion for protective order, ordering that Ano further discovery [was] required@ of Hull.[1]

    Hull then filed a motion for traditional and no-evidence summary judgment.  In its traditional motion, it alleged that (1) filing a lawsuit cannot constitute Aextreme and outrageous conduct@; (2) Hull is protected by the doctrines of litigation immunity and quasi-judicial immunity, and if Calloway believed the earlier lawsuit to be wrongfully instituted against her, she should have sought sanctions in that lawsuit; and (3) Hull relied on information from LVNV and conducted an independent investigation to determine if Calloway was the proper defendant to sue in the earlier lawsuit, and so it could not be liable for fraud, intentional infliction of emotional distress, or malicious prosecution.  Hull attached two affidavits in support of its traditional motion for summary judgment.  In its no-evidence motion, Hull asserted that Calloway had no evidence to support most or all of the elements of the three causes of action alleged against it. 

    In response to Hull=s motion for traditional and no-evidence summary judgment, Calloway asserted that there had not been adequate time for discovery due to Hull=s and LVNV=s resistance to her requests for discovery and the trial court=s grant of Hull=s motion for a protective order.  Calloway also responded to the substance of Hull=s motion, objected to Hull=s supporting affidavits, and asserted that genuine issues of material fact could be inferred from LVNV=s original petition filed in the earlier suit, a copy of which she purported to attach as Exhibit AA@ to her response.[2] Calloway did not attach any other evidence to support her response.  Calloway separately filed objections and special exceptions to the affidavits attached in support of Hull=s motion for traditional summary judgment.[3]


    LVNV separately filed a motion for no-evidence summary judgment, alleging that Calloway had no evidence of most or all of the elements of her claims for civil malicious prosecution, intentional infliction of emotional distress, and fraud by nondisclosure.

    Calloway responded to LVNV=s no-evidence motion for summary judgment by first asserting that adequate time for discovery had not passed because of LVNV=s and Hull=s resistance to her discovery requests and the protective order granted Hull.  She also contended that genuine issues of material fact could be inferred from the petition LVNV filed in the earlier lawsuit.  A copy of LVNV=s original petition in the earlier lawsuit was the only evidence Calloway attached in support of her response.

    On September 13, 2007, the trial court granted Hull=s and LVNV=s motions for summary judgment without specifying the grounds.  Calloway then filed a motion requesting that the trial court enter an order on its special exceptions, and LVNV moved to strike the motion as moot following the trial court=s grant of summary judgments for LVNV and Hull.  After a hearing, the trial court overruled Calloway=s objections and special exceptions to Hull=s motion for traditional and no-evidence summary judgment.

    Calloway=s Issues

    I.        The Trial Court Did Not Abuse Its Discretion By Granting Hull=s Motion for Protective Order

    In her first issue, Calloway contends that the trial court abused its discretion by granting Hull=s motion for protective order, because the trial court prevented her from conducting further discovery.  Calloway also suggests that Hull=s interrogatory answers were improperly excluded from the record, and describes the alleged omission as Ahighly controversial.@  She asserts that this omission, along with the trial court=s denial of discovery, effectively prevented her from proving the material allegations of her lawsuit on appeal.[4] Calloway includes in an appendix to her brief a purported copy of Hull=s answers to Calloway=s interrogatories, but does not explain the significance of the answers or their omission.

    Hull responds that it did not file its interrogatory answers with the court, but as the record reflects, it instead filed a certificate of response to written discovery pursuant to Texas Rule of Civil Procedure 191.4.  Hull also contends that because its answers are not included in the appellate record, they are not properly before the court and we may not consider them.  We agree.  See, e.g., Nguyen v. Intertex, Inc., 93 S.W.3d 288, 292B93 (Tex. App.CHouston [14th] Dist. 2002, no pet.); Mitchison v. Houston Indep. Sch. Dist., 803 S.W.2d 769, 771 (Tex. App.CHouston [14th Dist.] 1991, writ denied). Therefore, we do not consider Hull=s answers or Calloway=s unsupported assertions in our determination of this issue. 

    We review a trial court=s decision regarding a discovery-related protective order under an abuse-of-discretion standard.  Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 168 (Tex. App.CHouston [14th Dist.] 2000, pet. denied).  Here, Calloway cites cases standing for the general proposition that the purpose of discovery is to allow parties to obtain full knowledge of the issues and facts before trial and to prevent trial by ambush. See Gutierrez v. Dallas Indep. Sch. Dist., 729 S.W.2d 691, 693 (Tex. 1987); West v. Solito, 563 S.W.2d 240, 243 (Tex. 1978).  Beyond that, she asserts only that the trial court abused its discretion by Asummarily@ granting Hull=s motion for a protective order and does not explain how the trial court abused its discretion or why the order prevented her from proving the material allegations of her lawsuit on appeal.

    Hull responds that, as LVNV=s counsel, it did not make any claims against Calloway in the earlier lawsuit and was simply representing LVNV.  For Hull to completely respond to Calloway=s interrogatories concerning the basis for LVNV=s claims in the earlier lawsuit, it asserts that it would have had to disclose the substance of attorney-client communications.  See Maryland Am. Gen. Ins. Co. v. Blackmon, 639 S.W.2d 455, 458 (Tex. 1982) (AThe purpose of the attorney-client privilege is to Apromote the unrestrained communications between an attorney and client in matters where the attorney=s advice and counsel were sought by ensuring that these communications will not be subject to subsequent disclosure.@).  Hull also argues that much of its knowledge of LVNV=s claims would have come from work product such as its litigation file, notes, and correspondence.  See Tex. R. Civ. P. 192.5(b)(1), (2); Occidental Chem. Corp. v. Banales, 907 S.W.2d 488, 490 (Tex. 1995); Nat=l Union Fire Ins. Co. v. Valdez, 863 S.W.2d 458, 460 (Tex. 1993). 

    Calloway does not contend that any exception to these privileges applies or that she had a specific need for such information or documents.  Further, Calloway=s interrogatories largely sought information on the grounds for LVNV=s claims in its earlier suit against her.  Thus, the trial court could have concluded that the proper party to ask about the basis for LVNV=s claims was LVNV.  Alternatively, the trial court could have agreed with Hull that narrowing the issues by summary judgment before permitting wholesale inquiry into Hull=s knowledge was appropriate.  Calloway does not assert, and nothing in the record reflects, that she was prevented from obtaining discovery concerning the basis for LVNV=s claims in its earlier lawsuit against her directly from LVNV. 


    On this record, therefore, we cannot say that the trial court abused its discretion in granting Hull=s motion for protective order.  See Boales v. Brighton Builders, Inc., 29 S.W.3d 159, 168 (Tex. App.CHouston [14th Dist.] 2000, pet. denied) (holding trial court did not abuse its discretion in granting appellees= motion for protective order preventing deposition of appellees= general counsel because the evidence sought likely was significantly protected by lawyer-client privilege).  We overrule Calloway=s first issue.

    II.       The Trial Court Did Not Err in Granting Hull=s and LVNV=s Motions for Summary Judgment

    In her third issue, Calloway repeats her contention that the trial court=s protective order denied her ability to obtain discovery to prove the material allegations of her lawsuit, and further contends generally that Hull=s and LVNV=s motions for summary judgment were legally insufficient.  Therefore, she concludes, the trial court erred in granting their motions for summary judgment.  Calloway does not distinguish between Hull=s and LVNV=s no-evidence motions for summary judgment and Hull=s traditional motion for summary judgment, nor does she make any arguments specific to either.  However, we need only address Hull=s and LVNV=s no-evidence motions for summary judgment to resolve this issue.  See Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex. 1989) (when the trial court=s order granting summary judgment does not specify the basis for the ruling, we affirm the judgment if any of the theories advanced are meritorious).  Therefore, we do not reach the merits of Hull=s traditional motion for summary judgment.

    Both Hull and LVNV filed no-evidence motions for summary judgment asserting that after adequate time for discovery, Calloway had no evidence to support some or all of the elements of her claims for malicious prosecution, intentional infliction of emotional distress, and fraud by nondisclosure.  See Tex. R. Civ. P. 166a(i); Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005) (after adequate time for discovery, a party may move for summary judgment on the ground that there is no evidence of one or more essential elements of a claim or defense on which an adverse party would have the burden of proof at trial). 


    We construe Calloway=s appellate argument to include an argument that she had inadequate time for discovery due to Hull=s and LVNV=s resistance to her discovery efforts and the trial court=s grant of the protective order.  However, we have already held that the trial court did not abuse its discretion in granting Hull=s protective order, and although Calloway complains that LVNV also improperly resisted discovery, she did not present the court with any evidence to support her assertions, and she failed to identify the evidence she needed or the time she needed to obtain it.  Thus, the trial court did not abuse its discretion in hearing and ruling on the motions for no-evidence summary judgment.  See Durham v. Wal-Mart Stores, Inc., No. 14-02-00469-CV, 2003 WL 750434, at *1 (Tex. App.CHouston [14th Dist.] Mar. 6, 2003, no pet.) (mem. op.) (holding trial court did not abuse its discretion in hearing and ruling on no-evidence motion for summary judgment when appellant did not file motion for continuance or affidavit supporting her claim of inadequate time for discovery). 

    We next turn to the substance of the no-evidence motions. Both Hull and LVNV asserted that Calloway had no evidence to support some or all of the elements of her claims for malicious prosecution, intentional infliction of emotional distress, and fraud by nondisclosure.  When a movant properly files a no-evidence motion, the burden shifts to the non-movant to defeat the motion by presenting competent summary judgment evidence that raises an issue of material fact on the challenged element(s).  See Tex. R. Civ. P. 166a(i).  If the non-movant fails to produce summary judgment evidence raising a genuine issue of material fact, the court must grant the motion.  See id.  We view all of the summary-judgment evidence in the light most favorable to the non-movant, indulging every reasonable inference and resolving any doubts against the movant.  City of Keller v. Wilson, 168 S.W.3d 802, 823B25 (Tex. 2005).

    To prevail in a suit alleging malicious prosecution of a civil claim, the plaintiff must establish:  (1) the institution or continuation of civil proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceeding in plaintiff=s favor; and (6) special damages.  Texas Beef Cattle Co. v. Green, 921 S.W.2d 203, 207 (Tex. 1996).  Hull contended that, with the exception of the first element, Calloway had no evidence of the elements of this cause of action.  LVNV contended that Calloway had no evidence of the elements of malice, lack of probable cause, termination of the underlying suit in the plaintiff=s favor, and special injury.

    To prevail on a claim for intentional inflection of emotional distress, a plaintiff must establish that:  (1) the defendant acted intentionally or recklessly; (2) its conduct was extreme and outrageous; (3) its actions caused her emotional distress; and (4) the emotional distress was severe.  Kroger Tex. Ltd. P=ship v. Suberu, 216 S.W.3d 788, 796 (Tex. 2006); Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003) (per curiam).  Hull and LVNV both asserted that Calloway had no evidence of any of these elements.  LVNV also alleged that Calloway lacked evidence that no alternative cause of action would provide a remedy for the alleged severe emotional distress caused by LVNV=s conduct.  See Hoffmann-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438, 447 (Tex. 2004).

    Lastly, both Hull and LVNV contended that Calloway had no evidence of fraud by nondisclosure, for which they both listed the following elements: (1) the defendant concealed from or failed to disclose certain facts to the plaintiff; (2) the defendant had a duty to disclose the facts to the plaintiff; (3) the facts were material; (4) the defendant knew (a) the plaintiff was ignorant of the facts and (b) the plaintiff did not have an equal opportunity to discover the facts; (5) the defendant was deliberately silent when it had a duty to speak; (6) by failing to disclose the facts, defendant intended to induce the plaintiff to take some action or refrain from acting; (7) the plaintiff relied on the defendant=s nondisclosure; and (8) the plaintiff was injured as a result of acting without the knowledge of the undisclosed facts.  See Bradford v. Vento, 48 S.W.3d 749, 754B55 (Tex. 2001); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 436 (Tex. 1997).


    In response to these no-evidence motions, Calloway attached only LVNV=s original petition and supporting documents filed in the earlier lawsuit.[5] Even indulging every reasonable inference and resolving any doubts against Hull and LVNV, this evidence is woefully inadequate to raise a genuine issue of material fact on most, if not all, of the challenged elements of the causes of action alleged.  In particular, the petition does not raise a fact issue on intent or malice, emotional distress, duty, injury, or damages, elements Calloway must prove to prevail on the claims she has alleged.  Further, in her appellate brief, Calloway makes no argument specifically addressing the trial court=s grant of Hull=s and LVNV=s no-evidence motions for summary judgment. 

    Therefore, we hold that the trial court properly granted both Hull=s and LVNV=s no-evidence motions for summary judgment.  See Tex. R. Civ. P. 166a(i).  Because we dispose of Calloway=s third issue on this basis, we need not determine whether the trial court correctly granted summary judgment on Hull=s traditional motion for summary judgment, and accordingly, we do not reach Calloway=s second issue concerning the trial court=s order denying Calloway=s objections and special exceptions to the affidavits Hull presented in support of its motion for traditional summary judgment.

    The trial court=s judgment is affirmed.

     

     

    /s/      Jeffrey V. Brown

    Justice

     

     

    Panel consists of Justices Frost, Brown, and Boyce.


    [1]  Calloway then filed a petition for mandamus against the trial judge, seeking an order directing her to vacate her order granting Hull=s motion for protective order.  See In re Calloway, No. 14-07-00612-CV, 2007 WL 2330932 (Tex. App.CHouston [14th Dist.] 2007, orig. proceeding) (mem. op.).  This court denied the petition.  Id. at *1.

    [2]  The record copy of Calloway=s response to Hull=s motion does not include the exhibit.  However, Calloway=s response to LVNV=s motion does include as Exhibit AA@ a copy of LVNV=s original petition.

    [3]  In her filing, Calloway asserts that her objections and special exceptions are directed to LVNV=s motion for summary judgment; however, LVNV s motion did not attach any affidavits as exhibits to its motion.  Therefore, we presume that Calloway=s complaints are directed to Hull=s motion for summary judgment, not LVNV=s.

    [4]  We note that Calloway=s motion to compel did not reflect that she attached Hull=s responses as an exhibit.  She did, however, purport to summarize Hull=s objections and responses in support of her argument that the objections and responses were groundless.

    [5]  Hull asserts that the clerk=s record does not include any attachment to Calloway=s response to its motion for traditional and no-evidence summary judgment.  However, Calloway=s response does reflect that she attached as an exhibit LVNV=s original petition in its earlier lawsuit, and this document was attached to the record copy of Calloway=s response to LVNV=s motion for no-evidence summary judgment.  Even absent this defect, the petition did not raise a fact issue, as explained above.