Opinion
01-21-00144-CV
08-30-2022
BALDOMERO ORTIZ, Appellant v. ADENRELE OLANDAPO-JIMOH & THE LAW FIRM OF JIMOH, P.C., Appellees
On Appeal from the 234th District Court Harris County, Texas Trial Court Case No. 2020-00394
Panel consists of Justices Kelly, Goodman, and Guerra
MEMORANDUM OPINION
Peter Kelly Justice
Appellees, Adenrele Olandapo-Jimoh and the Law Firm of Jimoh, P.C., represented appellant Baldomero Ortiz in his divorce. Ortiz later sued the appellees for legal malpractice alleging that they charged an exorbitant fee, entered into a mediated settlement agreement on his behalf but without his permission, undervalued his house in the settlement agreement, failed to hold settlement proceeds in a trust account, and failed to deliver Ortiz's share of a woodchipper that was sold. The trial court granted a take nothing summary judgment against Ortiz, and he appealed, challenging the summary judgment in one issue.
We affirm.
Background
Ortiz hired Adenrele Olandapo-Jimoh and the Law Offices of Jimoh, P.C. (appellees) to represent him in his divorce from Leticia Rogel. Ortiz and Rogel had no minor children, and their assets consisted of a house in Hockley, Texas and personal property. Ortiz averred that he was charged more than $20,000 by the appellees.
According to Ortiz's affidavit, in November 2018, the appellees signed a mediated settlement agreement ("MSA") with Rogel, which provided that Rogel would pay $38,538.00 in exchange for Ortiz's interest in the Hockley house. Ortiz maintains that he was not present and did not approve or agree to the terms of the MSA. In particular, Ortiz stated that the MSA undervalued the house, which he believes is "worth well more than 100% of the value of what I received." Ortiz averred that the MSA, which is not in the record, provided that the house would be transferred to Rogel by February 14, 2019, despite the fact that the final divorce decree was not signed by the court until March 22, 2019. According to Ortiz, on February 8, 2019, Oladanpo-Jimoh signed a special warranty deed transferring the house from Ortiz to Rogel and deposited a check from Rogel for $38,538.00 into the appellees' account. Ortiz contends that the appellees failed to hold the money in a trust account and, in August 2019, remitted to him only $25,516.80, which represented the amount of Rogel's check less a deduction for attorney's fees. Ortiz also averred that the divorce decree specified that a woodchipper would be sold for $3,500.00 and that half of that amount would be paid to him. Ortiz said he never received any money from the sale of the woodchipper.
In January 2020, Ortiz filed suit against the appellees for "legal malpractice." Ortiz sought monetary relief between $200,000 and $1,000,000 in actual damages, pre- and post-judgment interest, attorney's fees, court costs, exemplary damages, expert costs, past and future mental anguish, and all other relief to which he might be entitled.
The appellees responded with a general denial and affirmative defenses, and they later filed a traditional motion for summary judgment, which expressly relied on Rule 166a(c) of the Texas Rules of Civil Procedure and recited the standard of review for a traditional motion for summary judgment. The motion stated:
They pleaded the following affirmative defenses: (1) estoppel based in law; (2) estoppel by record or judicial estoppel; (3) estoppel by contract; (4) equitable estoppel; (5) collateral estoppel; (6) payment to Plaintiff as all funds from Plaintiff's ex-wife in the underlying divorce case, specifically 45% of the proceeds from the sale of the marital home ($38,538) and woodchipper ($1,750), less attorney's fees due and owing under the contract for representation; (7) proportionate responsibility pursuant to Section 33.001 et seq. of the Texas Civil Practice & Remedies Code; and (8) failure to mitigate damages.
Ortiz has not designated any expert to testify on the appropriate standard of care, breach, causation, or damages, and as such cannot prevail as a matter of law.
On or about February 7, 2020, this Court entered a Docket Control Order requiring Plaintiff to designate his experts by no later than November 9, 2020. Plaintiff's deadline has come and gone without the designation of a malpractice expert or any expert that can refute the validity of the HCAD valuation [of the Hockley house]."
Ortiz's legal malpractice claim must fail because Ortiz did not designate an expert to testify on the appropriate standard of care, breach, and causation. Pursuant to the Court's Docket Control Order dated February 7, 2020, Ortiz's deadline to designate its expert witnesses was November 9, 2020. To date, Ortiz has never designated any expert to testify on the appropriate standard of care, breach, and causation. Without a standard of care expert to testify that Jimoh failed to meet the applicable standard of care, and that failure caused Ortiz's damages, Plaintiff cannot succeed on his negligence based-claim and it must be dismissed as a matter of law.
As summary judgment evidence, the appellees produced the trial court's docket control order, which required Ortiz to serve expert witness designations no later than November 9, 2020, and an excerpt from Ortiz's responses to the appellees' requests for disclosure, in which Ortiz had disclosed his attorney, Nicholas T. Martinez, as a retained expert:
Mr. Martinez will testify with respect to reasonable and necessary attorney's fees as they relate to the suit. The amount of attorney's fees is based on the time, expertise, knowledge, and activity which has
occurred due to this case being litigated. This includes, but is not limited to[,] the nature and complexity of the suit, the amount of time and expense associated with discovery, trial preparation, and other related costs. Furthermore, Mr. Martinez will present his opinion with respect to the attorney's fees which are reasonable based on his experience in these types of cases and the general standards and costs as understood in the community. Mr. Martinez will testify as to the reasonableness and necessity of attorney's fees incurred by both the plaintiff and [the appellees]. Mr. Martinez is also a rebuttal witness with respect to any testimony presented by Defendants regarding attorney's fees.
The appellees argued that expert testimony was required to establish the standard of care, breach of the standard of care, and causation because the standard of care for a lawyer is not within the experience of a layperson.
Ortiz responded and produced his affidavit as summary-judgment evidence. He argued that the failure to designate expert witnesses was not fatal to his case. He maintained that he did not need expert testimony because the underlying case settled before trial, and the errors he alleged were based on the appellees' failure to communicate and to obtain his consent to settlement. He also argued that he did not need expert testimony about the value of the Hockley house because, as a homeowner, he could testify about its value. As summary-judgment evidence, he produced his affidavit, which included the factual allegations already presented in this opinion.
The trial court granted summary judgment in December 2020, and Ortiz appealed.
Analysis
In a single issue on appeal, Ortiz argues that the trial court erred by granting the appellees' summary judgment motion. In particular, he argues that the appellees failed to carry their burden to negate an element of his cause of action by failing to produce expert testimony. He also argues that he designated an expert to testify about the allegedly exorbitant attorney's fees charged in the divorce case. Finally, he argued that no expert testimony was required as to some of his factual allegations against the appellees.
I. Standard of review
We review de novo the trial court's ruling on a motion for summary judgment. Eagle Oil & Gas Co. v. TRO-X, L.P., 619 S.W.3d 699, 705 (Tex. 2021). In doing so, "[w]e review the summary judgment record in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." Id.
The party moving for traditional summary judgment must show that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Eagle Oil & Gas, 619 S.W.3d at 705. To meet this burden, when the defendant moves for summary judgment, it must conclusively negate at least one essential element of each of the plaintiff's claims or conclusively prove all elements of an affirmative defense. Stanfield v. Neubaum, 494 S.W.3d 90, 96-97 (Tex. 2016); see Tex. R. Civ. P. 166a(b), (c).
An affirmative defense is a "defendant's assertion of facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true." DEFENSE, Black's Law Dictionary (11th ed. 2019); see Tex. R. Civ. P. 94 (setting forth nonexclusive list of affirmative defenses). An affirmative defense "defeats the plaintiff's claim without regard to the truth of the plaintiff's assertions." Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 156 (Tex. 2015); accord Phila. Indem. Ins. Co. v. White, 490 S.W.3d 468, 485 (Tex. 2016). The movant for a traditional summary judgment bears the burden to conclusively establish all facts necessary to establish the affirmative defense. Cf. Zorrilla, 469 S.W.3d at 156 (explaining that burden of proof is on defendant asserting affirmative defense "to establish the defense and obtain the requisite jury findings"). "An issue is conclusively established 'if reasonable minds could not differ about the conclusion to be drawn from the facts in the record.'" Cmty. Health Sys. Pro. Servs. Corp. v. Hansen, 525 S.W.3d 671, 681 (Tex. 2017) (quoting Childs v. Haussecker, 974 S.W.2d 31, 44 (Tex. 1998)).
II. Legal malpractice
"A lawyer in Texas is held to the standard of care which would be exercised by a reasonably prudent attorney." Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989). "To prove a legal-malpractice claim, the client must establish that: (1) the lawyer owed a duty of care to the client; (2) the lawyer breached that duty; and (3) the lawyer's breach proximately caused damage to the client." Rogers v. Zanetti, 518 S.W.3d 394, 400 (Tex. 2017). "A lawyer can be negligent and yet cause no harm." Id. "And, if the breach of a duty of care does not cause harm, no valid claim for legal-malpractice exists." Id.; see, e.g., Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 (Tex. 2004) ("[E]ven when negligence is admitted, causation is not presumed.").
"As in other negligence cases, a legal-malpractice plaintiff must prove that his or her lawyer's negligence was the proximate cause of cognizable damage." Rogers, 518 S.W.3d at 402. "In every case, the plaintiff must supply a causal link between the attorney's alleged negligence and the client's damages." Id. at 404. "Whether a negligent lawyer's conduct is the cause in fact of the client's claimed injury requires an examination of the hypothetical alternative: What should have happened if the lawyer had not been negligent?" Id.
"When a legal-malpractice case arises from prior litigation, the plaintiff must prove that the client would have obtained a more favorable result in the underlying litigation had the attorney conformed to the proper standard of care." Rogers, 518 S.W.3d at 401 (citing Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013)). Traditionally, this is shown by recreating the underlying case, or proving a "case- within-a-case." See Rogers, 518 S.W.3d at 401. "Where the injury claimed does not depend on the merits of the underlying action, however, the case-within-a-case methodology does not apply." Id. For example, when the alleged malpractice happens in the context of a settlement, evidence of settlements made under comparable circumstances may take the place of the "case-within-a-case." Elizondo, 415 S.W.3d at 270.
While proof of causation may sometimes be provided by "the client's testimony," in other cases, the causal link between the attorney's negligence and the client's harm "may be beyond the jury's common understanding and require expert testimony." Alexander, 146 S.W.3d at 119. Strategic decisions made during litigation are generally beyond the understanding of lay jurors. Id. at 119. Expert witness testimony is, therefore, ordinarily required to prove causation in a legal malpractice case. See Starwood Mgmt., LLC ex rel. Gonzalez v. Swaim, 530 S.W.3d 673, 679 (Tex. 2017); Rogers, 518 S.W.3d at 405; Elizondo, 415 S.W.3d 270 (concluding that expert testimony needed when malpractice suit alleges inadequacy of settlement); Meigs v. Zucker, No. 01-19-00321-CV, 2020 WL 4289974, at *8 (Tex. App.-Houston [1st Dist] July 28, 2020, pet. denied) (mem. op.) (same).
III. The trial court did not err by granting summary judgment.
A. Expert testimony was required to prove causation.
Ortiz argues that his case is an exception to the general rule that expert testimony is needed to prove causation in a legal malpractice case. He argues that his testimony alone would be sufficient to prove that he never gave the appellees permission to sign the MSA, never agreed to the terms of the MSA, did not agree to the valuation of the Hockley house, did not agree to transfer the Hockley property to Rogel, and did not receive his money from the appellees. He asserts that his is a case of simple authority. In his brief, he argues: "This fact is obvious without expert testimony: if Appellees had not settled Appellant's Divorce Proceeding without him, Appellant's Divorce Proceeding would have continued forward and would not have been terminated."
Proof that the course of litigation would have been different is not a substitute for causation. See Roger, 518 S.W.3d at 400 (stating that proof of negligence does not prove harm). For Ortiz to prevail, he needed proof that if he had received malpractice-free representation, his case would have had a more favorable outcome. See id. at 401-02. This, in turn, would require some proof of what his attorney should have done and the causal connection between the alleged attorney negligence and Ortiz's injuries. See id. at 404. Because an attorney's duties during settlement negotiations are not within the general knowledge of a lay juror, Ortiz needed expert testimony to prove standard of care, breach of the standard of care, and causation. See Alexander, 146 S.W.3d at 119.
In addition, in his summary-judgment affidavit, Ortiz averred that he hired the appellees to represent him in his divorce. Whether and to what extent that representation conferred agency on the appellees to act on behalf of Ortiz depends on the parties' agreement and the nature of the representation. This, too, would require expert testimony because the legal effect of a representation agreement is not within the common understanding of lay jurors. See id.
Accordingly, we conclude that Ortiz's claims required expert testimony in order to prove causation.
B. The appellees conclusively proved an affirmative defense.
Ortiz argues that the trial court erred by granting summary judgment because the appellees failed to produce expert testimony to negate an element of his legal malpractice cause of action. Because standard of care, breach of the standard of care, and causation require expert testimony in this case, to negate those elements, the appellees as traditional summary judgment movants needed expert testimony to conclusively prove that they did not breach the standard of care or cause Ortiz's injuries. See, e.g., Marteny v. Coon, No. 09-19-00019-CV, 2020 WL 5666567, at *6 (Tex. App.-Beaumont Sept. 24, 2020, no pet.) (mem. op.) (applying rule that in legal malpractice case, traditional summary judgment movant needs expert testimony to carry burden and negate elements of malpractice claim); cf Young v. Dwayne R. Day, P.C., No. 01-16-00325-CV, 2018 WL 1473931, at *9 (Tex. App.-Houston [1st Dist] Mar. 27, 2018, pet. denied) (mem. op.) (same). It is undisputed that the appellees did not produce expert testimony as summary-judgment evidence.
We do not agree, however, that this concludes our analysis, because a movant for traditional summary judgment can meet his burden by either conclusively negating an element of the plaintiffs claim or by conclusively establishing an affirmative defense. See Stanfield, 494 S.W.3d at 96-97; see also Tex. R. Civ. P. 166a(b), (c). Here, the appellees' grounds for summary judgment raised an affirmative defense. See DEFENSE, Black's Law Dictionary (11th ed. 2019) (defining affirmative defense).
In this case, the appellees did not conclusively establish that no duty was owed, that their representation was free from negligence, or that any alleged negligence did not cause Ortiz injury. Contra Okorafor v. Jeffreys, No. 01-07-00618-CV, 2009 WL 793750, at *8 (Tex. App.-Houston [1st Dist.] Mar. 26, 2009, no pet.) (mem. op.) (rejecting summary-judgment movant's argument that there was no attorney-client relationship with the malpractice plaintiff).
Instead, the appellees argued that the undisputed facts showed that Ortiz could not prevail on his claim as a matter of law because he failed to timely designate an expert witness on standard of care, breach, and causation. This argument does not rebut the truth of Ortiz's assertions: it seeks to establish an independent reason why Ortiz should not recover. See Gorman v. Life Ins. Co. of N. Am., 811 S.W.2d 542, 546 (Tex. 1991) ("Pleading an affirmative defense permits introduction of evidence which does not tend to rebut the factual propositions asserted in the plaintiff's case, but which seeks to establish an independent reason why the plaintiff should not recover."). The appellees argued that Ortiz's claim should be defeated without regard to the facts of their alleged negligence, and we conclude that they asserted an affirmative defense. See Zorrilla, 469 S.W.3d at 156-57. An unpleaded affirmative defense may serve as the basis for a summary judgment when it is raised in the summary judgment motion, and the opposing party does not object to the lack of a rule 94 pleading in either its written response or before the rendition of judgment. Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 494 (Tex. 1991); see Tex. R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal."). The appellees' summary judgment evidence-the docket control order and Ortiz's disclosures-show that Ortiz did not timely designate an expert on standard of care, breach, and causation. Ortiz did not produce controverting evidence.
The docket control order states: "Failure to timely respond will be governed by Rule 193.6." Texas Rule of Civil Procedure 193.6 provides that, in general, the failure to timely make, amend, or supplement a disclosure bars that party from admitting evidence or testimony regarding the material or information that was not disclosed. Tex.R.Civ.P. 193.6. The rule includes an exception for good cause or lack of unfair surprise or unfair prejudice. Ortiz did not argue, in the trial court or on appeal, that either exception applied in his case.
Therefore, we conclude that the appellees conclusively established that Ortiz failed to timely designate an expert on standard of care, breach, and causation, without which he is unable to prove the elements of his legal malpractice case. See Cmty. Health Sys. Pro. Servs. Corp., 525 S.W.3d at 681 (restating rule that issue conclusively established if reasonable minds cannot differ on conclusion to be drawn from facts in record).
Ortiz counters by saying that he designated his attorney, Martinez, as an expert. But Ortiz did not make this argument in response to the motion for summary judgment; he first raised this argument in a motion for new trial. Cf. Tex. R. Civ. P. 166a (c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal."). In addition, the appellees assert that problematic ethical concerns arise from Ortiz's intent for his lawyer to be an expert witness in the case. See Tex. Discip. R. Prof'l Conduct 3.08 ("Lawyer as Witness"). We do not need to squarely address these concerns however, because even if we credited Ortiz's expert designation, it nevertheless falls short. Ortiz's disclosures indicate that Martinez would testify about attorney's fees but not about the standard of care and breach, generally, or about causation at all.
Because the appellees conclusively proved an affirmative defense to Ortiz's sole claim, we hold that the trial court did not err by granting summary judgment in favor of the appellees. See Stanfield, 494 S.W.3d at 96-97; see also Tex. R. Civ. P. 166a(b), (c); cf. Vara v. Williams, No. 03-10-00861-CV, 2013 WL 1315035, at *5 (Tex. App.-Austin Mar. 28, 2013, no pet.) (mem. op.) (affirming summary judgment in legal malpractice case when plaintiff failed to designate expert to testify on attorney standard of care). We overrule Ortiz's sole issue.
Conclusion
We affirm the judgment of the trial court.