Opinion
NO. 03-14-00553-CV
02-24-2016
Steven Paul Wilson, Appellant v. Charles C. Dorbandt, Appellee
FROM THE DISTRICT COURT OF LEE COUNTY, 335TH JUDICIAL DISTRICT
NO. 15,381, HONORABLE REVA TOWSLEE CORBETT, JUDGE PRESIDINGMEMORANDUM OPINION
Appellant Steven Paul Wilson appeals a final summary judgment that he take nothing on claims he had asserted against appellee Charles C. Dorbandt. We will affirm the judgment.
BACKGROUND
Wilson is currently incarcerated under the custody of the Texas Department of Criminal Justice pursuant to convictions for aggravated assault with a deadly weapon against a public servant, a first-degree felony for which he is serving a 45-year sentence, and for driving while intoxicated (three or more offenses), a third-degree felony for which he is concurrently serving a five-year sentence. Dorbandt, a Texas-licensed attorney, represented Wilson in the trial-level proceedings that preceded these convictions. A brief overview of these criminal proceedings aids understanding of the civil claims and issues that now underlie this appeal.
See Tex. Penal Code § 22.02(a)(2), (b)(2)(B).
See id. §§ 49.04, .09(b)(2).
The criminal proceedings
The criminal proceedings arose from a May 2009 incident in which it was alleged that Wilson, while driving drunk and fleeing apprehension, had hit a Lexington Police Department officer with his pickup—not fatally, fortunately, but with an impact that the officer claimed had caused him bruising and soreness. With Dorbandt's assistance, the matter was initially resolved in August of that year by a plea bargain under which Wilson, in return for judicially confessing and pleading guilty to both the aggravated-assault and DWI offenses, received only community supervision and fines as punishment—thus avoiding incarceration—and was convicted only of the DWI offense. That resolution of the charges would unravel a few months later, however, after it was alleged that Wilson had been caught trafficking illegal drugs in December 2009, a violation of the terms and conditions of his community supervision. Based on those allegations, the State moved to adjudicate the aggravated-assault charge and to revoke Wilson's community supervision. Dorbandt again represented Wilson in the ensuing trial-level proceedings.
More specifically, the trial court convicted Wilson of the DWI offense, assessed punishment at five years' imprisonment, but suspended imposition of that sentence and placed Wilson on community supervision for that term instead. On the aggravated-assault charge—the more serious of the two in terms of potential punishment—the court deferred adjudication and placed Wilson on ten years' community supervision. Counsel for the State, the Lee County Attorney at the time, would later explain that he had agreed to this deal in the hope that Wilson would obtain professional help to address underlying drug and alcohol issues, and Wilson's participation in such counseling, along with standard terms like avoidance of criminal conduct, was made a term of his community supervision.
Wilson judicially confessed and pled true to the allegation that he had violated the terms of his community supervision by committing the offense of possessing marihuana in an amount greater than 4 ounces but less than 5 pounds. Subsequently, during an April 2010 hearing, the trial court revoked Wilson's community supervision, rendered judgment imposing a five-year sentence it had previously assessed for the DWI offense, convicted him of the aggravated-assault offense, and turned to the appropriate punishment to impose for the latter violation. A key focus in that regard was what Wilson acknowledged to be an "extensive" history of criminal offenses related to drug possession or trafficking, as well as DWIs. In light of that history, the State recommended sixty years' incarceration, arguing that Wilson would otherwise "continue doing what he has a history of doing," to the detriment of the citizens of Lee County. Dorbandt, on Wilson's behalf, urged greater leniency considering that Wilson's offenses had generally involved "either trafficking in marihuana, cocaine and methamphetamine or DWI" rather than assaultive conduct. Observing that Wilson had been "given a sweetheart deal to avoid prison and . . . blew it" and that it was "tired of excuses," the trial court rendered judgment imposing the 45-year sentence previously noted.
See Tex. Health & Safety Code § 481.121(3).
The pre-sentence investigation report reflected that since September 1999, Wilson had served time in connection with a 2005 DWI offense in Austin and a 2008 evading-arrest offense in Williamson County, and had also received five years' probation in connection with a 2006 DWI in Lee County (although Dorbandt represented to the trial court that the latter charge had actually not been adjudicated). The report likewise reflected arrests, but not ensuing confinement or probation, for additional DWIs in 2002 and 2003 and for drug possession or trafficking in 1999 and 2003. Further, by stipulation of the parties, the State was permitted to present the following summary of Wilson's criminal history prior to September 2009, at least some of which had involved incidents occurring out of state:
Your Honor, from May of 1985 Mr. Wilson was charged with possession of dangerous drugs; in July of 1982 Mr. Wilson was charged with a DUI; in April of 1983 Mr. Wilson was arrested and I don't have the specific drugs; in April of 1983, again with dangerous drugs; in December of 1984, driving while under the influence; in January of 1985, driving while under the influence; in August of 1987 possession of dangerous drugs, cocaine, other illegal drugs, marihuana, methamphetamine; in January of 1989 driving under the influence of alcohol; in March of 1989 possession of a firearm by convicted felon; in March of 1989 possession of a firearm or knife during commission of/or attempted commission of . . . a felony.When asked by the district court whether the State's summary of his criminal history was accurate, Wilson responded, "Yes, ma'am," although he quickly added that "[s]ome of it I don't remember" and that "a lot of those arrests were not convictions."
But maintaining that the blame lay instead with Dorbandt's lawyering, Wilson, pro se, began a series of efforts aimed at obtaining judicial relief based on claims of ineffective assistance of counsel. These efforts by Wilson included perfecting appeals from both of his convictions and obtaining court appointment of new appellate counsel. While the appeals ultimately yielded only Anders affirmances given the procedural posture, a subsequent set of new counsel took up Wilson's cause and filed applications for state post-conviction habeas-corpus relief predicated on ineffective-assistance claims. As refined by those counsel, Wilson's specific complaints included that Dorbandt had elicited Wilson's 2009 confessions and pleas while knowing that Wilson was under the influence of "pain pills and alcohol," had failed to investigate or present evidence in mitigation of punishment during the April 2010 hearing, and had instead validated the State's portrayal of Wilson (an inaccurate one, Wilson now insisted) "as a drug dealer who dealt in methamphetamine."
See Wilson v. State, Nos. 03-10-00394-CR & 03-10-000395-CR, 2011 Tex. App. LEXIS 869 (Tex. App.—Austin Feb. 3, 2011, pet. ref'd) (mem. op.) (not designated for publication) (citing Anders v. California, 386 U.S. 738, 744 (1967)). In the appeals, Wilson exercised his right to file a pro se brief, in which he chiefly advanced his ineffective-assistance complaints.
The same counsel had also filed Wilson's petitions for review in his appeals.
Such evidence, according to Wilson's applications, would have included "positive character evidence" and proof of mental conditions—"antisocial personality disorder" and a "movement disorder"—that had since been diagnosed by a neuropsychologist hired by his habeas lawyers and to which he would have attributed his criminal violations.
In light of factual allegations Wilson had made, an evidentiary hearing was held in August 2013 before the Hon. Carson Campbell. Dorbandt was among the witnesses who testified and, it appears, Wilson was also. Following the hearing, in December 2013, Judge Campbell issued findings of fact and conclusions of law rejecting each of Wilson's factual allegations, holding that Dorbandt's representation had not been deficient nor would have been prejudicial, and recommending that the Court of Criminal Appeals deny Wilson's habeas application. On the trial court's findings, the Court of Criminal Appeals denied habeas relief without written order in late April 2014.
See Ex parte Wilson, Nos. WR-78,973-01 & WR-78,973-02, 2013 Tex. Crim. App. Unpub. LEXIS 536 (Tex. Crim. App. May 8, 2013) (per curiam order).
See generally Strickland v. Washington, 466 U.S. 668, 687 (1984).
See Ex parte Wilson, WR-78,973-01, -02 (Tex. Crim. App. Apr. 30, 2014). Wilson has since continued to press his ineffective-assistance claims as a basis for federal habeas relief, thus far without success. See Wilson v. Stephens, 2015 U.S. Dist. LEXIS 92386 (W.D. Tex. July 16, 2015); Wilson v. Stephens, 2015 U.S. Dist. LEXIS 92387 (W.D. Tex. July 16, 2015).
The civil proceedings
On April 9, 2014—after Judge Campbell had issued his findings and recommendations but before the Court of Criminal Appeals had denied relief—Wilson, acting pro se, filed the civil suit against Dorbandt that gives rise to this appeal. In his live pleadings, liberally construed, Wilson attempted to plead two causes of action. First, based on essentially the same factual allegations that had been the basis for his ineffective-assistance claims against Dorbandt, Wilson sought recovery for "malpractice" (i.e., professional negligence) in connection with Wilson's August 2009 plea bargain and April 2010 sentencing. Second, Wilson sought recovery for defamation based on what he termed "lies" and "perjury" by Dorbandt during the August 2013 evidentiary hearing in Wilson's habeas proceeding.
Dorbandt points out that Wilson had also filed a short-lived State Bar of Texas disciplinary complaint against him during the interim between Judge Campbell's order and the Court of Criminal Appeals's ruling. The timing of Wilson's disciplinary complaint had corresponded to the immediate aftermath of Judge Campbell's order, and the timing of Wilson's lawsuit had, similarly, corresponded to the immediate aftermath of the Board of Disciplinary Appeals's final ruling affirming dismissal of the disciplinary complaint.
While not employing the pleading nomenclature prescribed by the Texas Rules of Civil Procedure, Wilson filed what is substantively an original petition (titled "Causes of Action") and two "traverses" of Dorbandt's answer that arguably are in the nature of supplemental petitions. See Tex. R. Civ. P. 71 ("When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated.").
These same "lies," Wilson further complained, also served to "conceal" Dorbandt's "malpractice," which Wilson viewed as a ground for tolling limitations for that cause of action under the fraudulent-concealment doctrine. Wilson likewise invoked the discovery rule.
The attorney Dorbandt, also acting pro se, timely answered and subsequently filed a motion for final summary judgment that Wilson take nothing in his suit. Dorbandt's grounds included, of principal note, no-evidence challenges to the breach-of-duty and causation elements of Wilson's professional-negligence cause of action and all elements of Wilson's defamation cause of action. Dorbandt also served notice of a hearing on his motion scheduled for July 3, 2014—approximately forty days thereafter. Thereafter, on or around June 4—roughly one month in advance of the scheduled hearing—Wilson filed and served a response to Dorbandt's motion. Attached to the response was an unsworn declaration from Wilson that he seemed to view as demonstrating the existence of genuine issues of material fact as to the challenged elements of his causes of action. Wilson also cited to the reporter's record from his habeas hearing and requested the district court to take judicial notice of it.
In addition to a general denial, Dorbandt asserted the affirmative defenses of res judicata, collateral estoppel, and limitations.
See Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. National Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009) ("To prevail on a legal malpractice claim, the plaintiff must prove the defendant owed the plaintiff a duty, the defendant breached that duty, the breach proximately caused the plaintiff's injury, and the plaintiff suffered damages.").
See In re Lipsky, 460 S.W.3d 579, 593 (Tex. 2015) ("Defamation's elements include (1) the publication of a false statement of fact to a third party, (2) that was defamatory concerning the plaintiff, (3) with the requisite degree of fault, and (4) damages . . . unless the defamatory statements are defamatory per se."); Brown v. Swett & Crawford of Tex., Inc., 178 S.W.3d 373, 382 (Tex. App.—Houston [1st Dist.] 2005, no pet.) ("To prove a cause of action for defamation, a plaintiff must prove that (1) the defendant published a statement of fact, (2) the statement was defamatory; (3) the statement was false, (4) the defendant acted negligently in publishing the false and defamatory statement; and (5) the plaintiff suffered damages as a result.").
Dorbandt also asserted a "traditional" ground seeking to establish that his limitations defense barred Wilson's defamation cause of action. While the district court's subsequent summary-judgment ruling would also encompass this ground, our disposition of this appeal does not require that we further address it. See Tex. R. App. P. 47.1.
Dorbandt also attached to his motion, by way of general background, various records from Wilson's criminal proceedings and the State Bar proceeding.
Termed a "traverse" to Dorbandt's summary-judgment motion, similar to Wilson's previous filings.
See Tex. Civ. Prac. & Rem. Code § 132.001 (permitting use of unsworn declarations in lieu of affidavits).
Upon arrival of the originally scheduled July 3 date, the summary-judgment hearing was passed and reset for July 17, 2014. But the hearing went forward on that rescheduled date, at the conclusion of which the district court signed an order granting Dorbandt's motion without stating the specific grounds on which it relied.
The rescheduling was apparently prompted by the discovery that Wilson had earlier filed a motion to recuse the Lee County district judge to whom Wilson's suit had originally been assigned—Judge Campbell, the same judge who had heard evidence in Wilson's habeas proceeding. Wilson's recusal motion had been founded upon Campbell's alleged "bias" in his earlier rulings. While the motion was denied, Campbell nonetheless had the case reassigned. The effect was to land Wilson's suit before the other district judge who serves Lee County, Judge Towslee Corbett—the same judge who had sentenced him in 2010.
In the aftermath of these rulings, accompanied by a certificate of service dated July 13 (four days before the date of the rescheduled summary-judgment hearing), three additional documents from Wilson arrived by mail and were filed on July 21: (1) a verified motion for continuance of the July 17 summary-judgment hearing; (2) a motion for leave to supplement Wilson's earlier summary-judgment response and evidence; and (3) the supplemental response and evidence he was seeking to file. There is no indication in the record that either Wilson or the district court took further action in connection with these new filings. Instead, Wilson perfected this appeal.
ANALYSIS
Through what he styles as four issues on appeal, Wilson seeks reversal of the district court's judgment based chiefly on asserted procedural deficiencies. Wilson's arguments are rooted in fundamental misunderstandings of the rules and concepts he attempts to invoke and can quickly be dispensed with. And while Wilson is a pro se non-lawyer (though displaying an awareness of procedural minutiae that are beyond the ken of most laypersons), we are required to apply the same procedural and substantive standards to him as we would lawyers or represented parties.
Wilson also presents a fifth issue in which he challenges only Dorbandt's limitations ground, but we need focus only on issues pertinent to the no-evidence grounds, which are singularly dispositive. See State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Tex. R. App. P. 47.1.
See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978).
Within his first issue, Wilson asserts that Dorbandt's no-evidence grounds were insufficiently specific and "conclusory" to support summary judgment. While this is indeed a requirement for no-evidence summary judgments, Wilson is mistaken that Dorbandt's motion fell short. Dorbandt's motion squarely and explicitly identified the elements of Wilson's professional-negligence cause of action being challenged—breach of duty and causation. He did the same regarding Wilson's defamation cause of action, specifying not only that he was challenging all elements of that action, but enumerating each one. Dorbandt was required to do no more in order to comply with the no-evidence summary-judgment rule and provide Wilson fair notice of the matters on which he had to present evidence.
See Tex. R. Civ. P. 166a(i) ("motion must state the elements as to which there is no evidence"); id. cmt. 1997 ("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 Akin, Gump, Strauss, Hauer & Feld, L.L.P., 299 S.W.3d at 112.
Dorbandt asserted, "Non-Movant [Wilson] has no evidence of any of the five essential elements of his claim for which he has the burden of proof at trial. Namely, that Non-Movant made a statement of fact (orally or in writing); that said statement was defamatory in nature; that said statement was not false; that Movant was negligent in making said statement; and that said statement caused Non Movant damages." See In re Lipsky, 460 S.W.3d at 593; Brown, 178 S.W.3d at 382.
See Akhter v. Schlitterbahn Beach Resort Mgmt., LLC, No. 03-13-00117-CV, 2013 WL 4516130, at *2 (Tex. App.—Austin Aug. 22, 2013, no pet.) (mem. op.).
Similarly, Wilson insists in his second issue that Dorbandt failed to comply with the requirement that he file and serve his summary-judgment motion at least 24 days in advance of the hearing (the 21 days' notice required by Texas Rule of Civil Procedure 166a(c), plus an additional three days because service was by mail). To the contrary, as previously noted, the clerk's record reflects that Dorbandt filed and served his summary-judgment motion almost sixty days before the eventual July 17 hearing date—indeed, Dorbandt accomplished this approximately forty days prior to the original hearing date of July 3, so far in advance, in fact, that Wilson was able to file and serve his response almost one month before that date.
Tex. R. Civ. P. 166a(c) ("Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing.").
See id. R. 21a(c) (adding three days if service by mail); Lewis v. Blake, 876 S.W.2d 314, 315 (Tex. 1994) (per curiam) ("Respondent's right under Rule 166a(c) is to have minimum notice of the hearing. Rule 21a extends that minimum notice by three days when the motion is served by mail.").
In contending that Dorbandt failed to comply nonetheless, Wilson's reasoning is not entirely clear, but his focus is on a July 3 letter he admits receiving from Dorbandt, in which Dorbandt notified him that the original hearing setting had been passed and the hearing rescheduled to July 17. Wilson attacks this letter as procedurally deficient in two ways: (1) the letter, Wilson insists, can "in no way be construed as legal notice" because notice of the summary-judgment hearing was required to be in the form of an order or other official communication from the court itself; and (2) the letter was dated July 3, fourteen days before the July 17 rescheduled summary-judgment hearing, and he was entitled to at least 24 days' notice of the rescheduled hearing. Both of Wilson's premises are mistaken. The Texas Rules of Civil Procedure authorize parties or their attorneys to serve notices, and Wilson acknowledges that the letter in question provided him at least actual notice of the July 17 hearing. And where, as here, the nonmovant has received the required 21- or 24-day notice in advance of the original summary-judgment hearing date, the notice period does not restart anew if the hearing is rescheduled—instead, the movant need only provide "reasonable notice" of the rescheduled hearing. In similar circumstances, this Court has held that reasonable notice may be as few as three days. Wilson acknowledges that he had far more notice of the rescheduled summary-judgment hearing. More critically, Wilson had more than abundant pre-hearing notice and opportunity to respond to Dorbandt's summary-judgment motion (and, in fact, did respond—over a month in advance).
See Tex. R. Civ. P. 21a.
See, e.g., Holt v. D'Hanis State Bank, 993 S.W.2d 237, 240 (Tex. App.—San Antonio 1999, no pet.) ("[T]he supplemental clerk's record shows that D'Hanis mailed a copy of a letter to Holt confirming the August 7 hearing date. The letter . . . stated that the motion for summary judgment had been rescheduled for August 7. Thus, Holt had notice of the August 7 hearing . . . and the court did not err in setting and hearing the motion for summary judgment on August 7.").
See Hart v. State, No. 03-02-00542-CV, 2003 WL 549273, at *3 (Tex. App.—Austin Feb. 27, 2003, no pet.) (mem. op.) (citing LeNotre v. Cohen, 979 S.W.2d 723, 726 (Tex. App.—Houston [14th Dist.] 1998, pet. denied); Birdwell v. Texins Credit Union, 843 S.W.2d 246, 250 (Tex. App.—Texarkana 1992, no writ)).
Id. (citing International Ins. Co. v. Herman G. West, Inc., 649 S.W.2d 824, 825 (Tex. App.—Fort Worth 1983, no writ)).
See id. at *4 (holding three days' notice of rescheduled hearing was sufficient when nonmovant was on notice of motion for summary judgment more than forty-five days before ultimate hearing date); see also Brown v. Capital Bank, N.A., 703 S.W.2d 231, 233 (Tex. App.—Houston [14th Dist.] 1985, writ ref'd n.r.e.) (holding three days' notice of rescheduled hearing sufficient where nonmovant had notice of motion for summary judgment more than seventy-five days prior to final hearing).
Next, Wilson complains in his third issue that the district court reversibly erred in proceeding to rule without affording him the "adequate time for discovery" that Rule 166a(i) requires. To preserve such a complaint, Wilson was required to identify the evidence sought, demonstrate its materiality, and show his diligence in obtaining it by filing either an affidavit explaining the need for further discovery or a verified motion for continuance. The closest Wilson came to preserving error was through the verified motion for continuance he mailed four days prior to the July 17 summary-judgment hearing but which was not filed until after the hearing and ultimate ruling. Leaving aside the question of timeliness, Wilson waived his continuance motion by failing to obtain a ruling on it, but in any event the district court would not have abused its discretion in denying the motion. The motion consists of generalized assertions that "discovery is not complete" and that Wilson "will produce evidence that negates Defendant's No Evidence Motion for Summary Judgment." As his sole support for these claims, Wilson referenced the fact that he had previously served a variety of discovery requests not only on Dorbandt, but also on the Lee County Attorney, Lee County Sheriff, the court reporter who had transcribed the hearing on his habeas petitions, and the State Bar of Texas. To the extent the contents of these requests are considered in the analysis, the information they seek tends only to further confirm that the district court would have acted within its sound discretion in concluding that such pursuits by Wilson did not justify delaying the summary-judgment hearing.
Tex. R. Civ. P. 166a(i) ("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.").
See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); Tenneco Inc. v. Enterprise Prods. Co., 925 S.W.2d 640, 647 (Tex. 1996) (citing Tex. R. Civ. P. 166a(g), 251, 252; Gabaldon v. General Motors Corp., 876 S.W.2d 367, 369 (Tex. App.—El Paso 1993, no writ); Watson v. Godwin, 425 S.W.2d 424, 430 (Tex. Civ. App.—Amarillo 1968, writ ref'd n.r.e.); Hittner & Liberato, Summary Judgments in Texas, 35 S. Tex. L. Rev. 9, 18 (1994)); TemPay, Inc. v. TNT Concrete & Constr., Inc., 37 S.W.3d 517, 521 (Tex. App.—Austin 2001, pet. denied). See also Tex. R. Civ. P. 166a(g) ("Should it appear from the affidavits of a party opposing the motion [for summary judgment] that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court . . . may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had . . . ."), R. 251 ("No application for a continuance shall . . . be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit . . . ."), R. 252 ("If the ground of such application [for continuance] be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known . . . ."). This is true even when a no-evidence motion is filed before the end of the discovery period. See Rad v. Calbeck, No. 03-10-00429-CV, 2011 WL 6938520, at *4 (Tex. App.—Austin Dec. 30, 2011, no pet.) (mem. op.).
See El Dorado Motors, Inc. v. Koch, 168 S.W.3d 360, 369 (Tex. App.—Dallas 2005, no pet.) (citing Tex. R. App. P. 33.1(a)) ("We cannot conclude that El Dorado's motion for continuance, filed at the end of the [summary judgment] hearing, was timely."); see also Harden v. Merriman, No. 02-12-00385-CV, 2013 WL 5874708, at *3 (Tex. App.—Fort Worth Oct. 31, 2013, no pet.) (mem. op.) (trial court did not abuse discretion by denying motion for continuance filed after summary-judgment response deadline); Landers v. State Farm Lloyds, 257 S.W.3d 740, 747 (Tex. App.—Houston [1st Dist.] 2008, no pet.) (same).
See Tex. R. App. P. 33.1(a) (to preserve complaint for appellate review, record must show that "(1) the complaint was made to the trial court by a timely request, objection, or motion . . . and (2) the trial court: (A) ruled on the request, objection, or motion, either expressly or implicitly; or (B) refused to rule on the request, objection, or motion, and the complaining party objected to the refusal"); Eggert v. State, No. 03-12-00190-CV, 2013 WL 1831614, at *3 (Tex. App.—Austin Apr. 24, 2013, no pet.) (mem. op.) (nonmovant who served discovery in response to summary-judgment motion but did not set hearing or obtain ruling on motion for continuance prior to or at summary-judgment hearing waived complaint that trial court erroneously ruled on summary-judgment motion while discovery was pending); Gonerway v. Corrections Corp. of Am., 442 S.W.3d 443, 446 (Tex. App.—Dallas 2013, no pet.) (complaint that trial court erred by failing to grant motion for continuance was not preserved for appellate review where record did not reflect that trial court ruled on motion, that movant had alerted the court to the motion, or that movant had objected to any refusal by the court to rule).
Against Dorbandt, Wilson served both interrogatories and requests for admission, and also filed (but never set for hearing or obtained a ruling on) a motion to compel after Wilson objected to some of the interrogatories. Against the County Attorney, Sheriff, and court reporter, Wilson served Rule 205 document requests and subpoenas. Wilson also sent the State Bar a Rule 205 document request, but there is no indication that he ever served a subpoena. The subpoena recipients each filed motions to quash and for protection, which the district court granted on July 17, immediately prior to ruling on the summary-judgment motion.
See White Lion Holdings, L.L.C. v. State, No. 01-14-00104-CV, 2015 WL 5626564, at *5 (Tex. App.—Houston [1st Dist.] Sept. 24, 2015, no pet.) (mem. op. on reh'g.) (holding trial court did not abuse discretion in denying motion for continuance of summary-judgment hearing where evidence, if obtained, would not have pertained to claims on which summary judgment was sought); Draker v. Schreiber, 271 S.W.3d 318, 325 (Tex. App.—San Antonio 2008, no pet.) (holding trial court did not abuse discretion in denying motion for continuance of summary-judgment hearing where movant failed to show materiality of discovery sought). Much of the discovery Wilson sought had, at best, merely a tangential connection to any material issue in the case (e.g., demanding information about other cases from the County Attorney and Sheriff) or merely rehashed facts and factual assertions previously addressed in his habeas proceeding.
In the course of his arguments advocating additional time for discovery, Wilson also complains about the district's court order granting the motions to quash, an issue on which Wilson previously petitioned this Court unsuccessfully for mandamus relief. See In re Wilson, No. 03-15-00021-CV, 2015 WL 5096760 (Tex. App.—Austin Aug. 26, 2015, no pet.) (mem. op.). To the extent Wilson is attempting to challenge that order in this appeal, we would hold, for reasons already stated, that the court did not abuse its discretion. Wilson similarly complains on appeal that the district court did not rule on his motion to compel or a motion he filed seeking a court-ordered "Level 3" discovery-control plan. As with his continuance motion, Wilson did not preserve error and the district court would not have abused its discretion in denying that relief in any event.
This conclusion is also fatal to Wilson's complaint, raised in his fourth issue, that the district court abused its discretion in declining to grant him leave to supplement his prior summary-judgment response. As previously explained, Wilson mailed his motion for leave and accompanying supplement on July 13, alongside his motion for continuance, and these documents were not filed until July 21, after the summary-judgment hearing and ruling. Nor did Wilson ever obtain an express ruling on his motion for leave. But leaving aside timeliness and preservation considerations, we could not conclude that the district court would have abused its discretion in declining to grant Wilson leave to supplement, as the sole ground raised in his motion for leave was the same one he advanced in regard to a continuance—Wilson's desire to obtain additional discovery.
More critically, even if Wilson's supplement is considered, neither of his causes of action can survive summary judgment. Within his first issue, Wilson insists that the district court erred in granting Dorbandt's no-evidence grounds because, Wilson insists, the evidence raises a genuine issue of material fact as to each of the elements Dorbandt challenged. We disagree. Whether we consider only the evidence Wilson presented in his original summary-judgment response or also his supplement, he cannot overcome a fundamental shortcoming in regard to his professional-negligence claim—to prove that Dorbandt's actions amounted to a breach of any professional duty of care or adversely impacted the outcome of the trial-level proceedings, Wilson was required to present expert testimony. He never attempted to do so. As for his defamation claim, while Wilson vigorously emphasizes his version of the facts underlying his criminal convictions and habeas claims, he fails to demonstrate that he presented competent summary-judgment evidence of what Dorbandt's statements actually were, let alone the existence of material fact disputes regarding their falsity or defamatory nature. The district court did not err in granting summary judgment based on Dorbandt's no-evidence grounds.
See, e.g., Alexander v. Turtur & Assoc., Inc., 146 S.W.3d 113, 119-20 (Tex. 2004) (holding expert testimony necessary to establish causation in claim that attorney's negligence caused loss in underlying trial); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex. App.—Austin 2002, pet. denied) ("In Texas, a plaintiff in a legal malpractice suit is required to present expert testimony regarding the standard of skill and care ordinarily exercised by an attorney."); see also Renteria v. Myers, No. 2-07-074-CV, 2008 WL 2078617, at *3 (Tex. App.—Fort Worth May 15, 2008, no pet.) (mem. op.) (in absence of expert testimony that federal criminal trial would have come out differently, upholding summary judgment on appellant's legal malpractice claim against trial counsel).
The closest Wilson comes is to recite a purported excerpt from Dorbandt's testimony at the habeas hearing (although Wilson obviously had access to this record, it is not before us) to the effect that three law enforcement officers had pursued Wilson following the May 2009 incident giving rise to his convictions—the true state of facts, Wilson insists, was that only one officer gave chase. This minor discrepancy regarding a tangential fact would not raise a fact issue as to whether any such statement was actionable defamation. See, e.g., Neely v. Wilson, 418 S.W.3d 52, 63-64 (Tex. 2013) (explaining that proper focus is whether the "gist" of the statement "was more damaging to the plaintiff's reputation, in the mind of the average listener, than a truthful statement would have been." (quoting McIlvain v. Jacobs, 794 S.W.2d 14, 16 (Tex. 1990)). --------
We overrule Wilson's issues on appeal.
CONCLUSION
We affirm the district court's judgment.
/s/_________
Bob Pemberton, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: February 24, 2016