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Coe v. Weller, Green, Toups & Terrell, LLP

Court of Appeals Ninth District of Texas at Beaumont
Nov 25, 2020
NO. 09-18-00365-CV (Tex. App. Nov. 25, 2020)


NO. 09-18-00365-CV



On Appeal from the 136th District Court Jefferson County, Texas
Trial Cause No. D-198,254



In this legal malpractice case, Rachael Coe n/k/a Rachael Stevens, appeals from the trial court's ruling granting the traditional and no evidence motion for summary judgment filed by B. Adam Terrell and Weller, Green, Toups & Terrell, LLP (collectively, "WGT&T"). In five issues, Coe challenges the trial court's rulings (1) refusing to distinguish Coe's allegations against WGT&T for allegedly breaching the fiduciary duty it owed her from her legal malpractice claims, (2) considering WGT&T's hybrid motion for summary judgment beyond the deadline by which the parties had agreed to file such motions, (3) granting WGT&T's unverified motion for continuance, (4) granting WGT&T's hybrid motion for summary judgment when the summary-judgment evidence shows genuine issues of material fact exist on her claims, and by (5) striking some of the summary-judgment evidence she used to support the response she filed to WGT&T's hybrid motion. We affirm.


Coe alleges that WGT&T committed legal malpractice by allowing the statute of limitations to expire on her medical malpractice claim without letting her know the firm did not intend to sue her treating physician, Dr. Teresa Hill, on the claim she discussed with the firm. Coe's complaint about Dr. Hill arose after Dr. Hill inserted an intrauterine birth control device ("IUD") into Coe's uterus. Coe underwent the procedure involving the IUD in June 2006. In December 2007, Coe returned to Dr. Hill, complaining of occasional pelvic pain, irregular uterine bleeding, and mild cramps. Dr. Hill ordered a pelvic ultrasound. The ultrasound showed normal uterine anatomy. Dr. Hill did not order any further tests, which Coe claims would have led Dr. Hill to discover that the IUD was still in Coe's body. In her suit, Coe alleged that Dr. Hill negligently failed to discover and remove the IUD.

Over the next two and a half years, Coe experienced symptoms that she alleges resulted from Dr. Hill's failure to discover and then remove the IUD. In October 2008, Coe was seen by another doctor (not Dr. Hill) who ordered a pelvic ultrasound. That doctor also failed to identify the fact the IUD was still in Coe's body. On August 15, 2010, Coe went to the emergency room complaining of abdominal pain. A CT scan, ordered that day, revealed "a large, fairly well[-]defined cystic collection demonstrated along the superior aspect of the left side of the uterus . . . . Partially within this collection is the patient's IUD." Coe's treating physician (not Dr. Hill) recommended to Coe that she undergo an exploratory laparotomy, which the doctor performed the next day. During the exploratory laparotomy, the doctor discovered the IUD "sitting on top of the mass." During the laparotomy, the doctor removed the mass as well as other tissue that the doctor determined had been damaged by the IUD.

On August 24, 2010, Coe met with B. Adam Terrell, a partner with WGT&T, to discuss suing Dr. Hill on a claim of medical malpractice. WGT&T agreed to investigate the claim and obtained the medical records relevant to the treatment Dr. Hill provided to Coe. WGT&T also notified Dr. Hill that it was investigating filing a malpractice suit against her related to the treatment she provided to Coe. And WGT&T sought the advice of a consulting physician, Dr. Alan Moore, concerning the treatment Dr. Hill provided to Coe. WGT&T sent Dr. Moore Coe's medical records and asked him to review them in January 2011. In the letter Terrell sent Dr. Moore, he asked that Dr. Moore call him after completing his review so they could discuss the opinions he had reached based on his review of the medical treatment Dr. Hill provided to Coe. According to Terrell, he spoke to Dr. Moore in late January 2011. Terrell testified in a deposition filed with the summary-judgment evidence that Dr. Moore told him that Coe did not have a claim. The summary-judgment evidence includes the deposition Coe gave during the discovery phase of the case. She testified that, when she discussed Dr. Moore's findings with Terrell in mid-February 2011, Terrell "never told [her] he wasn't going to take my case. He just said we couldn't find a doctor, and without a doctor, it's hard to prove the case."

In January 2013, Coe learned that another law firm was suing the manufacturers of IUDs on products liability claims. In February 2013, Coe contacted Terrell to discuss whether she should pursue a products liability claim against the entity that manufactured her IUD. Coe made notes during the conversation she had with Terrell in February 2013. Coe's notes about the conversation are among the exhibits that are included in the summary-judgment evidence. In her notes, Coe states that Terrell mentioned during the February 2013 conversation that "he could not find a doctor to testify [in the medical malpractice] case[.]"

WGT&T agreed to represent Coe on the claim she wanted to file against the company that manufactured her IUD. WGT&T filed the products liability lawsuit in July 2013. Ultimately, Coe recovered nothing on the products case she filed when the judge handling the products case granted the manufacturer's motion for summary judgment.

In re Mirena IUD Prods. Liab. Litig., 202 F. Supp. 3d 304 (S.D.N.Y. 2016), aff'd by 713 Fed. Appx. 11 (2d Cir. 2017), writ of cert. denied, 138 S.Ct. 1299 (2018). Coe's legal malpractice suit initially included claims alleging that WGT&T mishandled her products liability suit, but she chose to nonsuit those claims, so they are not before us in the appeal.

On March 8, 2016, Coe sued WGT&T, alleging WGT&T was guilty of malpractice and breached its fiduciary duty to her to sue Dr. Hill. Nearly two years later, WGT&T filed a motion for partial summary judgment. In part, WGT&T's motion argued that Coe could not split her breach of fiduciary claims from her claim against the firm for legal malpractice, suggesting that her allegations were all legal malpractice claims subject to the two-year statute of limitations that applies to such claims. The trial court agreed, and treated Coe's breach of fiduciary claims as claims for malpractice because all of Coe's claims were based on her claims alleging WGT&T failed to adequately investigate her claim against Dr. Hill or to let her know that it would not represent her in a suit against Dr. Hill.

Later, WGT&T filed a traditional and no-evidence motion for summary judgment. In the traditional section of its motion, WGT&T argued the declaration Coe filed to support her response should be excluded as a sham affidavit because statements she made in the declaration were in direct conflict with testimony she provided in her deposition. WGT&T also argued Coe could not establish that the firm breached any duty it owed Coe given that, after conducting an investigation and finding that Dr. Moore did not believe Dr. Hill committed malpractice, Coe told Terrell not to sue Dr. Hill. And anticipating that Coe would point to the fact WGT&T represented Coe in a products liability lawsuit involving the same IUD, WGT&T argued the firm's work on Coe's products case could not have tolled the two-year period she had to sue the firm for legal malpractice over the manner the firm handled the potential of suing Dr. Hill.

Turning to the no-evidence section of WGT&T's motion, WGT&T argued that Coe could produce no evidence to show that WGT&T breached its duty to her to sue Dr. Hill, that WGT&T negligently discharged the duties it owed Coe to investigate the claim she wanted to file against Dr. Hill, or that Coe was damaged by the firm's failure to file a suit against Dr. Hill. WGT&T advanced similar arguments to support the traditional part of its hybrid motion, suggesting that the evidence it attached to its motion established as a matter of law that the firm did nothing wrong and Coe was not damaged by its failure to sue Dr. Hill. The evidence the firm relied on to support its argument includes the following:

• Facts the trial court stated it relied on to grant the motion, as stated by the court in a letter ruling explaining the reasons the court granted WGT&T's amended motion for summary judgment;
• Coe's declaration, dated February 21, 2018, which WGT&T argues shows she took positions in her declaration inconsistent with the testimony she provided in her deposition;

• Notes Coe wrote while talking to Terrell on February 11, 2013;

• Terrell's deposition testimony;

• The affidavit of Tammy Faulk, Terrell's legal secretary;

• Coe's February 11, 2013 email to the firm she initially contacted to discuss handling a products case against the entity that manufactured her IUD; and

• Coe's letter to Terrell, dated July 23, 2013, acknowledging that she appreciated the work Terrell did investigating her claims against Dr. Hill even though she was "sorry we could not get anything accomplished on that end[.]"

In response to the no-evidence portion of WGT&T's motion, Coe argued that, based on her summary judgment evidence, a fact issue exists about whether WGT&T ever informed her the firm would not file a lawsuit for her against Dr. Hill. She also claims that her summary judgment evidence shows the failure to sue Dr. Hill caused her to lose the opportunity to pursue a suit on which, had one been pursued, she would have prevailed. Coe's responses to WGT&T's traditional motion for summary judgment argues (1) the declaration she filed was not a sham affidavit without any probative value, (2) issues of material fact exist on whether WGT&T breached the duties it owed her to let her know the firm would not further investigate her claims or sue Dr. Hill so that she could hire another attorney to pursue that suit, and (3) the two-year limitations period did not expire on her malpractice claims because a tolling rule applied while WGT&T represented her in her products liability lawsuit against the manufacturer of her IUD. Coe included several exhibits with her summary judgment response, including the following:

• The trial court's March 2018 letter ruling on WGT&T's partial summary judgment, in which the trial court explained why it agreed with her that the two-year statute of limitations was tolled while WGT&T represented Coe in the products suit she filed involving her IUD;

• Coe's declaration, dated February 21, 2018, in which she states that Terrell never told her the firm would not handle the malpractice suit she wanted to file against Dr. Hill;

• Coe's deposition, which she argues tracks the testimony she provided in her declaration;

• Terrell's deposition, which Coe argues raises issues of material fact on what Terrell told her about suing Dr. Hill;

• WGT&T's answers to Coe's written interrogatories;

• The affidavit of Dr. James Wheeler, the expert hired in Coe's legal malpractice case to review whether he thought Coe had a valid malpractice
claim on which she would have prevailed in a trial had a lawsuit alleging malpractice been filed against Dr. Hill;

• The affidavit of Michael Mosher, an attorney, who expressed the opinion that WGT&T breached the duties it owed Coe by failing to inform her that it would not file a suit for her against Dr. Hill; and

• Copies of letters WGT&T received from Dr. Hill's malpractice carrier in response to Terrell's letter notifying Dr. Hill that his firm was investigating Coe's allegations of malpractice. Coe suggests the letter shows that had she prevailed on a suit against Dr. Hill, she could have collected on the judgment given that Dr. Hill had insurance in force that covered medical malpractice claims.

WGT&T objected to some of Coe's summary-judgment evidence—Coe's declaration, Dr. Wheeler's affidavit, and Mosher's affidavit—on several grounds. First, the firm objected that the affidavits of Coe's legal and medical experts were conclusory and speculative. Second, WGT&T argued that the affidavits did not meet the requirements of Rule 166a(f) because Coe's attorney failed to attach the records that Coe's experts referred to in the affidavits Coe filed with her response. But Coe fixed WGT&T's complaint concerning the fact the affidavits did not include copies of these records and the trial court allowed Coe to amend her summary-judgment evidence to include these documents in her supplemental response.

Tex. R. Civ. P. 166a(f) states in part, "Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith."

Following a hearing on WGT&T's hybrid motion, the trial court granted the motion on both traditional and no-evidence grounds. The court also found that the affidavits of Coe's experts, Dr. Wheeler and Mosher, were overly conclusory, and it sustained the objections WGT&T lodged to its considering them in deciding its motion.

Summary Judgment

Standard of Review

To prove a claim for legal malpractice, the plaintiff must establish that: (1) the attorney owed a duty of care to the client; (2) the lawyer breached that duty; and (3) the lawyer's breach proximately caused the client's damages. Thus, the plaintiff's burden includes proving causation, which requires proof of cause in fact. "The evidence of cause in fact is tested, in part, by means of the but-for test: would the harm alleged have occurred absent the attorney's alleged breach."

Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017).

Id.; Rogers v. Zanetti, 518 S.W.3d 394, 402 (Tex. 2017).

To prove harm, the plaintiff must establish that a fact issue exists that would allow a jury to conclude that the plaintiff's attorney, had the attorney not been negligent, would have prevailed and obtained a more favorable result than the one the attorney achieved when the attorney represented the plaintiff on her claims. When the merits of the claim for malpractice rely on the likely outcome of another case, the plaintiff must re-create the underlying case to show the outcome would have changed in a way beneficial, from a damages standpoint, to the plaintiff. This concept is often called the suit-within-a-suit inquiry and requires the plaintiff in the legal malpractice suit to prove the result would have been more favorable to her but-for the attorney's negligence in handling her underlying claim.



The trial court resolved this case in a summary-judgment proceeding. We review rulings on motions for summary judgment using a de novo standard. When, as here, the trial court's judgment does not specify the grounds on which the trial court granted the motion, we will affirm the ruling if the record shows that any ground, supported by the record, has merit.

Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009).

See Lightning Oil Co. v. Anadarko E&P Onshore, LLC, 520 S.W.3d 39, 45 (Tex. 2017).

The trial court also granted both parts of WGT&T's hybrid motion. Before discussing the ruling the trial court made on WGT&T's traditional motion, we first consider whether its ruling can be sustained based on a no-evidence ground. And should we conclude one of the no-evidence grounds has merit, we need not address whether the trial court's ruling is also sustainable under one of the theories in the traditional parts of WGT&T's hybrid motion.

See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).


The procedure governing no-evidence motions is in Rule 166a(i) of the Texas Rules of Civil Procedure. Under that rule, a trial court may rule on a no-evidence motion for summary judgment after the party opposing the motion has had adequate time to engage in discovery on the claims the defendant raises in it motion. Rule 166a(i) provides the trial court "must grant the motion unless the [plaintiff] produces summary judgment evidence raising a genuine issue of material fact" on the elements the defendant challenged in its no-evidence motion.


In its no-evidence motion, WGT&T asserted Coe could produce no evidence to show that (1) WGT&T owed her a duty to sue Dr. Hill, that (2) WGT&T breached its duties to Coe to properly investigate the malpractice claims she wanted the firm to pursue against Dr. Hill, or that (3) the firm's acts or omissions damaged Coe. The causation part of WGT&T's motion shifted the burden of production to Coe to produce evidence sufficient to demonstrate that a fact issue existed on allegations claiming that WGT&T damaged her by failing to sue Dr. Hill. In our review of the trial court's no-evidence ruling, we must affirm the ruling if the plaintiff's response shows "(a) there is a complete absence of evidence of a vital fact, (b) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital fact is no more than a mere scintilla, or (d) the evidence conclusively establishes the opposite of the vital fact."

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

In conducting our review, we view the summary-judgment evidence in the light favoring Coe, which means we disregard any evidence and inferences from the evidence that contradicts Coe's claims. In our review, our task is to determine whether the summary-judgment evidence "'rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.'" The defendant is entitled to a ruling in its favor on the no-evidence part of its motion if the plaintiff fails to produce sufficient evidence to demonstrate that an issue of material fact exists on one (or more) of the elements of the plaintiff's claim that the defendant has challenged in its motion.

See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

Chapman, 118 S.W.3d at 751 (quoting Merrell Dow Pharm., Inc., v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)).

In part, Coe argues the trial court erred by excluding the affidavits of Dr. Wheeler and Mosher from consideration when deciding she failed to file evidence sufficient to demonstrate that a fact issue exist on the various elements of her legal malpractice claim against WGT&T. Here, the trial court sustained WGT&T's objections to some of Coe's summary-judgment evidence. We review rulings sustaining objections to summary judgment for abuse of discretion. Then, if the trail court abused its discretion when it sustained objections to summary-judgment evidence, we then decide whether "the exclusion [of the evidence] probably resulted in an improper judgment." So before deciding whether the trial court ruled correctly, we must first decide what summary-judgment evidence to include within the scope of our review. For that reason, we address Coe's fifth issue, which addresses the trial court's rulings on WGT&T's objections to her summary-judgment evidence, before addressing her other issues.

Lujan v. Navistar, Inc., 555 S.W.3d 79, 85 (Tex. 2018).

Chandler v. CSC Applied Techs., LLC, 376 S.W.3d 802, 824 (Tex. App.—Houston [1st Dist.] 2012, pet. denied).

Rulings on WGT&T's Objections

In issue five, Coe argues the trial court abused its discretion in sustaining WGT&T's objections to the affidavit of her legal expert (Mosher), the affidavit of her medical expert (Dr. Wheeler), and Coe's sworn declaration. In her declaration, Coe acknowledged Terrell advised her in January 2011 that a case against Dr. Hill would be hard to prove without having a doctor who would express the opinion that Dr. Hill committed malpractice. She also declared that, because Terrell never expressly told her that he would not investigate her claim further, she thought he "was going to continue to look for a doctor and file my medical malpractice case." Nonetheless, in responding to WGT&T's causation arguments, Coe had to prove that she would likely have prevailed in a malpractice suit against Dr. Hill. For that reason, we focus on whether the trial court abused its discretion by sustaining WGT&T's objections to the affidavits from Coe's experts before turning to the court's ruling addressing the declaration Coe signed to support her response.

To defeat WGT&T's no-evidence argument on causation, Coe needed to produce evidence to show she likely would have prevailed in a medical malpractice suit had one been filed against Dr. Hill but-for WGT&T's alleged negligence in the manner WGT&T advised her on her claim. Thus, Coe needed an affidavit from a medical and legal expert that provided the trial court with a reasoned basis to conclude that Coe had sufficient evidence to demonstrate a fact issue existed on her claim she would have prevailed on a medical malpractice case had one been filed against Dr. Hill. Coe provided the trial court with Mosher's and Dr. Wheeler's affidavits for this purpose, but the trial court sustained WGT&T's objections to these two affidavits after agreeing with WGT&T's arguments that they were conclusory, speculative, and lack a sufficient factual foundation.

See Swaim, 530 S.W.3d at 679 (recognizing that "in a legal malpractice case, expert witness testimony is required to rebut a defendant's motion for summary judgment challenging the causation element" of the plaintiff's claims).


Turning to Mosher's affidavit and his explanation on causation, Coe's argument relies on the following paragraph, which states:

The affidavit of Dr. Wheeler demonstrates that the underlying medical malpractice claim was in fact viable as Dr. Wheeler testifies that Dr. Hill committed medical negligence. Therefore, it is my opinion, based on a reasonable degree of legal probability, that the conduct of Mr. Terrell and his law firm in failing to timely and adequately reject the medical malpractice case, if that is what the jury believes based on the testimony of [Coe], proximately caused [Coe's] damages in the amount she would have been awarded by a jury for her injuries in the underlying medical malpractice case. In other words, [Coe's] damages proximately caused by Mr. Terrell's conduct in this case consist of the damages that were recoverable to her in the underlying medical malpractice case. Her ability to recover any damages in the medical malpractice case was obviously lost because Mr. Terrell never filed the medical malpractice lawsuit and, based on [Coe's] testimony, Mr. Terrell did not timely and adequately reject these claims within the statute of limitations.

Mosher's affidavit, however, reflects that he assumed without a sufficient explanation that WGT&T (or some other firm) could have filed a timely medical malpractice lawsuit against Dr. Hill by August 2010, which was when Coe first sought advice from the firm about the possibility of suing Dr. Hill. Recall the parties do not dispute that Dr. Hill performed the procedure to insert Coe's IUD on June 15, 2006. There is also no dispute about the fact that Dr. Hill saw Coe for the last time in December 2007. The last time Coe saw Dr. Hill, Coe complained of pelvic pain, bleeding, and mild cramps. Dr. Hill ordered a pelvic ultrasound. The report from the radiologist on the ultrasound states: "There is no evidence of an IUD." Finally, Coe never returned to Dr. Hill after December 2017. Instead, notes in Dr. Hill's records reflect that shortly after receiving the report of the ultrasound, someone from Dr. Hill's office called Coe and told her the results of the ultrasound performed in December 2017 were negative.

Over the next several years, Coe saw other doctors and complained about pelvic problems and bleeding between her menstrual cycles. Coe does not contend that she ever returned to Dr. Hill after December 2007. In mid-August 2010, Coe went to a local hospital complaining of "acute right lower quadrant pain." After she was admitted to the hospital, Coe's treating physician (not Dr. Hill) ordered a CT scan. The CT Scan "showed that the IUD was outside the uterus surrounded by a cystic collection." At the physician's recommendation, the physician performed an exploratory laparotomy and removed an IUD from inside Coe's body, as well as a large ovarian cyst. The surgeon's report on the laparotomy states: "The IUD was noted to be floating freely and sitting on top of the mass."

In Dr. Wheeler's report, Dr. Wheeler expressed the opinion that Dr. Hill breached the standard of treatment applicable to physicians by failing to investigate and discover whether Coe's IUD had perforated her uterus following the IUD procedure in a subsequent visit. Dr. Wheeler assumed (without further discussion) that by the time Coe sought WGT&T's advice in August 2010, she still had time to file a timely suit alleging a claim of medical malpractice against Dr. Hill since she never discovered the missing IUD and it caused further complications until she had the laparotomy when her physician found the missing IUD.

Like Dr. Wheeler, Mosher also assumed (without discussion) that WGT&T could have filed a timely medical malpractice lawsuit against Dr. Hill in August 2010 when she sought the firm's advice. But by the time she first spoke to WGT&T about her desire to sue Dr. Hill, more than two years had lapsed since Dr. Hill last saw her. And by then, WGT&T could not have filed a suit on which Coe could have prevailed given that Mosher and Dr. Wheeler are simply mistaken that she could have still by August 2010 filed a claim on which she could have prevailed against Dr. Hill.

Under Texas law, a suit alleging that a health care provider committed malpractice must be brought against the health care provider within two years. While courts have applied a discovery rule to some negligence cases, it does not apply to medical malpractice claims. Instead, in a medical malpractice case, the two-year statute begins running from one of three dates: (1) the occurrence of the breach or tort, (2) the last date of the relevant course of treatment, or (3) the last date of the relevant hospitalization. In the medical malpractice lawsuit, the plaintiff may not select from the above three choices and select which one of these three dates applies to the suit. Instead, when the date of the alleged tort is ascertainable, the statute of limitations begins running on that date. In any event, regardless of which of the above three choices applies, Coe's claim against Dr. Hill is time barred by the time she first sought WGT&T's advice in August 2010.

Walters v. Cleveland Reg'l Med. Ctr., 307 S.W.3d 292, 296 n.28 (Tex. 2010) (noting that section 74.251 of the Texas Civil Practice and Remedies Code "contains no discovery rule"); Gale v. Lucio, 445 S.W.3d 849, 854 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (explaining the discovery rule does not apply to health care liability claims).



In their affidavits, Mosher and Dr. Wheeler did not explain how, by August 2010, Coe could have instituted a timely medical malpractice lawsuit against Dr. Hill. Because the undisputed facts in the record establish that Coe could not have prevailed on a malpractice case against Dr. Hill by August 2010 when Coe went to WGT&T, we agree with the trial court's finding that the affidavits are overly conclusory and speculative.

We hold the trial court did not abuse its discretion by sustaining WGT&T's objections to the affidavits of Coe's experts. Because Coe waited more than two years before seeking legal counsel from the date she last saw Dr. Hill, WGT&T's alleged acts or omission in failing to inform Coe that it did not plan to do anything more on her case could not have been a proximate cause of any damages to Coe. We overrule Coe's fifth issue.

See Bustamante v. Ponte, 529 S.W.3d 447, 456 (Tex. 2017) (quoting Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 511 (Tex. 1995)); Earle v. Ratliff, 998 S.W.2d 882, 890 (Tex. 1999) (citing Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (per curiam)).

Variance from Deadlines

In issues two and three, Coe complains the trial court abused its discretion when it granted WGT&T's motion to continue the case from a May 2018 trial setting to a later setting and by allowing WGT&T to file a hybrid motion for summary judgment outside the deadlines that the parties had agreed to in their written agreement, which they filed with the court. Under the written agreement, Coe and WGT&T agreed the parties would file any motions for summary judgment on or before March 26, 2018. We address issues two and three together.

Trial courts have discretion to manage their dockets and to schedule cases so the court may conveniently and efficiently dispose of the cases that are on its docket. The Texas Rules of Civil Procedure expressly grant trial courts the right to create docket control deadlines to change those deadlines "to prevent manifest injustice." Trial courts retain the right to control the cases on their dockets, even when the parties have signed Rule 11 Agreements and provided other deadlines.

Clanton v. Clark, 639 S.W.2d 929, 931 (Tex. 1982).

Tex. R. Civ. P. 166; see also In re Estate of Henry, 250 S.W.3d 518, 526 (Tex. App.—Dallas 2008, no pet.).

See Pitts v. Cty. of Dallas, No. 05-98-01916-CV, 2001 WL 432625, at *1 (Tex. App.—Dallas, Apr. 30, 2001) (no pet.) (explaining the court retains its authority to modify any scheduling orders "despite entry of a scheduling agreement that would qualify as a rule 11 agreement").

The record shows that in July 2018, the trial court granted WGT&T leave to file its hybrid motion for summary judgment. That same day, the trial court signed an order scheduling the hybrid motion for a hearing in August 2018. The trial court had the authority to alter the deadlines to which the parties had previously agreed given the court's inherent authority to control its own docket. The record shows that Coe responded to WGT&T's hybrid motion, and she does not claim she was surprised by the motion or that she needed more time to respond.

See Trevino v. Trevino, 64 S.W.3d 166, 170 (Tex. App.—San Antonio 2001, no pet.); Ocean Transp., Inc. v. Greycas, Inc., 878 S.W.2d 256, 262 (Tex. App.—Corpus Christi 1994, writ denied).

The trial court also had the right to exercise its discretion by continuing the case from the prior trial setting in May 2018. The docket sheet reflects the parties agreed to the court's decision to change the trial setting. While the record shows Coe did object to WGT&T's motion to continue, she later agreed to the continuance. She also never obtained a ruling on her objections to WGT&T's motion to continue. By failing to secure a ruling and by agreeing to continue the case, Coe failed to preserve her complaints about the continuance for our review in the appeal.

Tex. R. App. P. 33.1(a)(1) (preserving error for appellate review requires the appellant to show that she presented her complaint to the trial court in a timely request, objection, or motion and that the trial court ruled on the request).

Because Coe's second and third issues lack merit, they are overruled.

Breach of Fiduciary Duty Claims

In issue one, Coe argues that the trial court erred by granting WGT&T's motion for partial summary judgment. In granting the partial motion, the trial court agreed with WGT&T's argument that it should treat all of Coe's claims as claims for legal malpractice and none of them as breach of fiduciary duty claims.

Coe's First Amended Petition, her live pleading, alleges claims of negligence and breach of fiduciary duty against WGT&T. Coe's malpractice allegations against WGT&T allege that WGT&T was negligent in

1. Failing to diligently represent Plaintiff;
2. Failing to preserve Plaintiff's claims, rights and defenses;
3. Failing to protect Plaintiff's interests;
4. Failing to file Plaintiff's claims within the applicable statute of limitations;
5. Failing to diligently prosecute Plaintiff's medical malpractice case;
6. Failing to outline the scope of the representation;
7. Failing to timely notify Plaintiff that they were not going to pursue her medical malpractice claim if in fact they were not;
8. Failing to notify Plaintiff to seek out other counsel concerning her medical malpractice claim; and
9. Failing to notify Plaintiff that her medical malpractice case may be viable and to seek out another lawyer.
Coe's petition alleges two fiduciary duty claims. First, she claimed WGT&T concealed failing to tell her that the firm had not sued Dr. Hill. Second, Coe alleged the firm concealed that it knew she had a viable claim against Dr. Hill when the firm advised her not to pursue the claim.

Texas law prevents a plaintiff from fracturing what is, in essence, a claim for legal malpractice into multiple claims for negligence, breach of contract, and other types of torts, such as fraud. When the complaint the plaintiff makes against the attorney focuses on the quality of the attorney's representation, Texas law prevents the plaintiff from fracturing the claim into something other than a legal malpractice claim. In construing the plaintiff's pleadings, we must decide whether the factual basis of the claims in Coe's pleadings are but-for claims for negligence based on the manner WGT&T handled the investigation of her claim against Dr. Hill. We review the ruling the trial court made that Coe alleged claims sounding only in legal malpractice de novo.

Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex. App.—Houston [14th Dist.] 2002, no pet.); Murphy v. Gruber, 241 S.W.3d 689, 693 (Tex. App.—Dallas 2007, pet. denied).

Won Pak v. Harris, 313 S.W.3d 454, 457 (Tex. App.—Dallas 2010, pet. denied).

Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 924 (Tex. App.—Fort Worth 2002, pet. denied).


Courts are not bound by the labels a plaintiff used to label the plaintiff's claims. Thus, even though Coe alleged that WGT&T failed to properly keep her informed that it was not going to continue to investigate or file a suit against Dr. Hill, we must decide if these alleged omissions amount to anything other than claims for legal malpractice. To resolve that question, we look to the substance of the plaintiff's claims and to the remedy that the plaintiff sought. Coe's allegations claim that WGT&T's representation fell below the standard of care that applies to an attorney who has agreed to investigate a claim of medical malpractice. She also complains the firm should have given different advice than it did about how she should proceed. We conclude these are nothing more than legal negligence claims.

Murphy v. Gruber, 241 S.W.3d 689, 697 (Tex. App.—Dallas 2007, pet. denied).

Won Pak, 313 S.W.3d at 457.

Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 428 (Tex. App.—Austin 2009, no pet.).

Kimleco Petroleum, 91 S.W.3d at 924.

For that reason, we agree that the trial court did not err by treating Coe's claims as negligence claims. We overrule Coe's first issue.

Vara v. Williams, No. 03-10-00861-CV, 2013 WL 1315035, at *4 (Tex. App.—Austin Mar. 28, 2013, no pet.) (mem. op.).

Ruling on WGT&T's Motion for Summary Judgment

In issue four, Coe argues the trial court erred in granting Coe's hybrid motion for summary judgment. Previously, in discussing issue five, we explained the no- evidence portion of WGT&T's hybrid motion required Coe to produce expert witness testimony to establish that WGT&T damaged her by causing her to lose a claim on which she would have otherwise prevailed. We determined the trial court did not abuse its discretion by sustaining WGT&T's objection to the affidavits of Coe's medical and legal malpractice experts. Coe needed affidavits from medical and legal experts to demonstrate that she would have prevailed on a suit had WGT&T or a firm she retained after WGT&T told her it would not represent her in filing a medical malpractice lawsuit against Dr. Hill to show that the firm damaged her by failing to advise her properly on a case on which she would have prevailed. But the affidavits of both of Coe's expert witnesses are overly conclusory. Without the benefit of the two affidavits, we conclude Coe failed to meet her no-evidence burden of proof to raise an issue of fact on causation. For that reason, Coe's fourth issue is overruled.

See Swaim, 530 S.W.3d at 679.


Having concluded that Coe's issues lack merit or were not preserved for our review, the trial court's judgment granting WGT&T's hybrid motion for summary judgment is




Justice Submitted on August 10, 2020
Opinion Delivered November 25, 2020 Before McKeithen, C.J., Horton and Johnson, JJ.

Summaries of

Coe v. Weller, Green, Toups & Terrell, LLP

Court of Appeals Ninth District of Texas at Beaumont
Nov 25, 2020
NO. 09-18-00365-CV (Tex. App. Nov. 25, 2020)
Case details for

Coe v. Weller, Green, Toups & Terrell, LLP

Case Details


Court:Court of Appeals Ninth District of Texas at Beaumont

Date published: Nov 25, 2020


NO. 09-18-00365-CV (Tex. App. Nov. 25, 2020)

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