Brenda Dove v. R. Norvell Graham, Jr., Law Offices of Ralph Brown, P.C. and David Ross , 358 S.W.3d 681 ( 2011 )

OPINION
No. 04-10-00635-CV
Brenda DOVE,
Appellant
v.
R. Norvell GRAHAM, Jr., Law Offices of Ralph Brown, P.C., and David Ross,
Attorneys
From the 288th Judicial District Court, Bexar County, Texas
Trial Court No. 2010-CI-12783
Honorable Solomon Casseb, III, Judge Presiding
Opinion by: Rebecca Simmons, Justice
Sitting: Catherine Stone, Chief Justice
Sandee Bryan Marion, Justice
Rebecca Simmons, Justice
Delivered and Filed: August 10, 2011
REVERSED & REMANDED
This appeal arises from Appellant Brenda Dove’s legal malpractice claim against her
attorneys, R. Norvell Graham, Jr., Law Offices of Ralph Brown, P.C., and David Ross (the
Attorneys). Dove appeals the trial court’s grant of the Attorneys’ traditional motion for
summary judgment. We reverse and remand the cause to the trial court for further proceedings
consistent with this opinion.
04-10-00635-CV
BACKGROUND
After suffering an injury in a car accident allegedly caused by Daniel Kraft in 2001, Dove
hired the Attorneys to represent her in a personal injury suit against Kraft. In May 2003, the
Attorneys filed suit against Kraft. The case was plagued by delay, as the trial court granted the
parties’ multiple requests for continuances and the case was continued for several years before
proceeding to trial on January 14, 2008. On the day of trial, the Attorneys requested another
continuance, which the trial court denied. According to Dove, the Attorneys then nonsuited her
case against Kraft without her approval.
Dove retained new counsel and filed a legal malpractice suit against the Attorneys in
March 2009. She named Kraft as a defendant in the suit, but she could not locate Kraft to serve
him because he had moved to California. In her petition, Dove alleged that Kraft caused her
personal injury and the Attorneys were negligent by failing to prepare and try her case against
Kraft in a reasonably diligent manner and by entering the nonsuit in 2008. She alleged that, as a
result of this negligence, the relevant statute of limitations barred her from reasserting her
negligence claim against Kraft and obtaining a recovery in excess of $200,000.
In response, the Attorneys sought leave to designate Kraft as a responsible third party
pursuant to chapter 33 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. &
REM. CODE ANN. § 33.004 (West 2008). After the trial court granted the Attorneys’ motion for
leave, the Attorneys amended their answer to designate Kraft as a responsible third party on
January 10, 2010. Subsequently, the Attorneys located Kraft in California and filed a cross-
claim against him, serving him with their cross-claim and providing a copy of Dove’s petition.
Kraft filed an answer to both, asserting: (1) the affirmative defenses of laches and statute of
limitations; and (2) that he was improperly joined as a responsible third party.
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Both Kraft and the Attorneys filed traditional motions for summary judgment. 1 The
Attorneys argue that the trial court denied Kraft’s motion in which he raised his statute of
limitations defense because Kraft was barred from raising this defense under chapter 33 of the
Texas Civil Practice and Remedies Code. The trial court granted the Attorneys’ traditional
motion for summary judgment dismissing Dove’s claims against them. Thereafter, it granted the
Attorneys’ motion to sever, making the trial court’s summary judgment a final, appealable order.
Dove’s appeal followed.
MOTION FOR SUMMARY JUDGMENT
The Attorneys filed a traditional motion for summary judgment arguing that their
“revival” of the underlying suit conclusively disproves the causation element of Dove’s legal
malpractice claim. 2 They contend that the designation of Kraft as a responsible third party and
his subsequent joinder as a defendant pursuant to chapter 33 of the Texas Civil Practice and
Remedies Code cured any harm to Dove because Kraft may no longer raise his statute of
limitations defense. The Attorneys’ argument appears to be that Dove’s ability to pursue her
claims against Kraft in the second suit defeats causation stemming from the Attorneys’
negligence in the first suit. We are not persuaded by this argument.
A. Standard of Review
We review an order granting a traditional motion for summary judgment de novo.
Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A traditional motion for
summary judgment should be granted only when the movant establishes that there are no genuine
issues of material fact and the movant is entitled to judgment as a matter of law on the grounds
1
The Attorneys also filed a no-evidence motion for summary judgment based on Dove’s failure to designate an
expert witness. However, it appears that the trial court granted Dove an extension of time to designate an expert,
and the Attorneys abandoned their no-evidence motion based on the lack of an expert before the hearing.
2
For purposes of our standard of review it is important to note the Attorneys did not file a no-evidence motion on
the issue of causation.
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expressly set forth in the motion. TEX. R. CIV. P. 166a(c); Browning v. Prostok, 165 S.W.3d 336,
344 (Tex. 2005). For defendants to prevail on a traditional motion for summary judgment, they
must either conclusively prove all elements of an affirmative defense or conclusively disprove an
essential element of the plaintiff’s cause of action. 3 Elliott-Williams Co. v. Diaz, 9 S.W.3d 801,
803 (Tex. 1999); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746,
748 (Tex. 1999). We take evidence favorable to the nonmovant as true and indulge every
reasonable inference in favor of the nonmovant. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,
425 (Tex. 1997).
B. Causation
The Attorneys’ argument that they conclusively established a lack of causation rests
entirely on the renewed suit against Kraft filed two years after the nonsuit. Specifically, the
Attorneys claim that “Ms. Dove may now pursue her claims against Kraft as if the nonsuit had
never occurred.” Causation is an essential element of a plaintiff’s legal malpractice claim. Belt
v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 783 (Tex. 2006). This element
ordinarily requires the plaintiff to prove that she would have prevailed in the underlying suit but
for her attorney’s alleged breach of duty. Greathouse v. McConnell, 982 S.W.2d 165, 172–73
(Tex. App.—Houston [1st Dist.] 1998, pet. denied). “This aspect of the plaintiff’s burden is
commonly referred to as the ‘suit within a suit’ requirement.” Id. at 173. At trial, Dove would
be required to prove the amount of damages that would have been recoverable if the first case
had been properly prosecuted. See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. &
Research Corp., 299 S.W.3d 106, 112 (Tex. 2009).
3
The Attorneys complain that Dove failed to provide evidence of harm from the delay in her response to the motion
for summary judgment. We note that Dove had no burden to respond with evidence until the Attorneys satisfied
their right to judgment as a matter of law. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23
(Tex. 2000).
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In her malpractice action, Dove pleaded that but for the negligence of the Attorneys
consisting of both delay and improper nonsuit, she would have recovered over $200,000 in her
case against Kraft that was non-suited in 2008. The relevant inquiry for this appeal, therefore, is
whether the Attorneys have conclusively proved that their negligence in the first suit (delay and
nonsuit) as a matter of law did not cause Dove harm. See Belt, 192 S.W.3d at 783; Elliott-
Williams, 9 S.W.3d at 803. Rather than address causation stemming from their actions in the
first suit, the Attorneys focus on a “cure” that appears to be related to mitigation rather than
causation. The fact that Dove’s claims against Kraft were resurrected in 2010 and may go to trial
in the future does not defeat the claims that Dove has against the Attorneys for their alleged
substandard performance in the prior suit. The cure cannot turn back the clock over two years
and place Dove in the position she was in before the nonsuit and delay, as Dove is left with
claims over ten years old and a defendant with defenses of limitations and laches that Dove will
have to address. 4 Dove’s renewed opportunity to recover against Kraft, if brought to fruition,
may reduce or eliminate the damages attributable to the Attorneys’ negligence, but it does not
eliminate Dove’s current malpractice claims against the Attorneys.
The Attorneys’ designation of Kraft as a responsible third party and the subsequent
joinder of Kraft as a defendant—the sole basis of the traditional motion for summary judgment—
does not conclusively establish that Dove would not have prevailed against Kraft in the first suit
regardless of the nonsuit. Because the Attorneys have not conclusively disproved the causation
element of Dove’s malpractice claim, the trial court erred in granting the summary judgment. 5
4
Although the Attorneys point out that Kraft was denied a summary judgment on limitations, this does not preclude
Kraft from raising limitations, laches, and other related defenses at trial.
5
Because we reverse the motion for summary judgment, we need not address appellant’s alternative argument
regarding Kraft’s designation as a responsible third party. See TEX. R. APP. P. 47.1 (requiring our opinions to be as
“brief as practicable” while addressing all issues “raised and necessary to final disposition of the appeal”).
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MOTION TO SEVER
In her Prayer and Conclusion, Dove requests that we reverse the trial court’s order
granting the Attorneys’ motion to sever. However, she failed to provide any argument or
authority to support this request. An appellant’s brief “must state concisely all issues or points
presented for review” and “contain a clear and concise argument for the contentions made, with
appropriate citations to authorities and to the record.” TEX. R. APP. P. 38.1. Otherwise, the
complaint is inadequately briefed. See Grohman-Kahlig v. Kahlig, 319 S.W.3d 28, 36 (Tex.
App.—San Antonio 2008), aff’d in part, rev’d in part on other grounds sub nom. Grohman v.
Kahlig, 318 S.W.3d 882 (Tex. 2010). In her Statement of the Case, Dove “challenges the
propriety of the order[] granting the attorney defendants’ . . . motion to sever.” She makes no
further mention of the severance until the Prayer and Conclusion, when she requests that we
reverse the same. She assigns no issue to the complaint and offers no clear and concise argument
or citations to authorities or the record in support of her complaint. Thus, we deny her request.
See id.
CONCLUSION
For the foregoing reasons, we reverse the trial court’s grant of the Attorneys’ traditional
motion for summary judgment and remand the severed cause to the trial court for further
proceedings consistent with this opinion.
Rebecca Simmons, Justice
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