McInnis v. Mallia

affirm the remainder agreement. We McINNIS, Charboneau Janine judgment.

the trial court’s D.V.M., Appellant GUZMAN, J., concurring and v. dissenting. MALLIA, J.D., Mallia The Michael GUZMAN, Justice, concurring M. EVA Hastings, P.C., Tommy Firm, dissenting. J.D., Appellees. analysis and majority’s agree I with No. 14-06-00354-CV. unenforcea that the Mahr is

its conclusion I further premarital agreement. as a ble Texas, Appeals Court enforcing trial court’s award agree that the Dist.). (14th Houston and the must be reversed agreement of the remanded for reconsideration case 17, 2008. June I re parties’ assets. distribution however, the ma disagree,

spectfully facts, that, on these

jority’s conclusion justice by allowing served

interests of are to recharacterize opportunity

Afreen the enforceability relitigate

the Mahr and its theory. parties do not

under another on the

contend that the case was tried try

wrong theory, and the decision solely premarital agreement as a

Mahr the intent of the con

presumably reflects I therefore con

tracting parties. would appropriate case

clude this is not power of a is best

for the exercise compelling for more circumstances.

reserved Fanning Fanning, v.

Cf . (Tex.1993) curiam) (per (remand jus

(op. reh’g) in interests of changed appeal

tice after law while Liebman,

pending); Scott (Tex.1966) (counsel represented in Texas relied on statement that was subse

Supreme opinion Court Bader, Inc. v.

quently disapproved); Scott Prods., Inc., 248 S.W.3d

Sandstone 2008, no (Tex.App.-Houston [1st Dist.] (trial de prevented sanctions

pet.) court’s evidence).

velopment of against a claims suit, alleged

tice corporation professional surgeon and seeking to belonged, surgeon to which the allegedly suffered damages she recover surgi- following a complications a result representation In its procedure. cal to non-suit Mclnnis, agreed Firm the Law Houston, Morrow, Elizabeth Heather corporation, professional surgeon’s TX, appellants. defen- party as a surgeon leaving only Houston, TX, Rubenstein, E. Andrew trial on the After a in the suit. dant appellees. in favor merits, a verdict jury a returned surgeon. of the FOWLER, Panel consists of Justices (FROST, J„ FROST, and SEYMORE unsuccessful medical-mal- Following her majority). corrected Mclnnis, 2005, suit, 28, as May practice legal-malpractice filed a pro plaintiff, se MAJORITY OPINION CORRECTED alleging that against suit underlying medical-mal- in the her loss FROST, Justice. KEM THOMPSON to the Law attributable practice suit was majority opin- This court withdraws its of fiducia- negligence and breaches 10, because of ion issued June 2008 According handling in her claims. ry duty this cor- error and issues typographical legal-malprac- petition to Mclnnis’s majority place. in its opinion rected non- suit, Firm’s decision to the Law tice case, appellant, legal-malpractice In this corporation, surgeon’s professional suit the client, challenges a no- a law firm’s former jointly and sev- allegedly was in summary judgment favor gave damages, erally liable for Mclnnis’s repre- lawyers firm and the the law claims. legal-malpractice her rise to lit- prior medical-malpractice her in sented Procedure Rule of Civil Texas Under among things, other inad- igation, alleging, 3) (level court issued 190.4 conclude equate time We legal-malprac- order for the docket control in its discretion that the trial abused suit, following deadlines: setting tice for dis- determining adequate that an 3, join additional therefore the 2005 Deadline covery passed and October parties the no-evidence granting court erred seeking 23, parties 2006 Deadline March and re- summary judgment. We reverse designate affirmative relief experts mand. designate 24, all oth- April Deadline to 2006 er-experts Background 23, discovery period End of I. Factual Procedural June challenges to Deadline for June medical-malpractice pursuing In her testimony expert Mcln- claim, appellant Janine Charboneau pleadings to amend Deadline June setting July Trial appel- from representation sought legal nis and dur- discovery process Mallia, J.D., part As The Mallia Law Michael lees designated ing period Firm, P.C., Tommy Hastings, J.D. requests production Mclnnis served collectively as are referred to

(Appellees and the Mal- on Mallia interrogatories individually as “Mal- Firm” and the “Law Firm, for dis- well as Firm,” “Has- lia lia,” “the Mallia medical-malprac- closure. ensuing In the tings”).

Eight months before the end of the dis- there was “adequate time.” In re covery period, on October Co., Mohawk Rubber Law Firm filed a no-evidence motion for (Tex.App.-Texarkana orig. proceed summary judgment by to be heard submis- 166a(i) ing). The comment to pro rule sion without hearing oral on November vides, “A discovery period pre[-]trial In the five-page the Law order should opportunity for Firm asserted that there already had been discovery unless there is a showing to the The Law contrary, ordinarily a motion under Firm served Mclnnis responses (i) paragraph [a no-evidence motion] discovery requests on November permitted would be but 2005, which is the day same Mclnnis’s 166a(i) cmt. Tex.R. Civ. P. before.” response to the summary- no-evidence (emphasis added);1 see Specialty judgment motion was due. Mclnnis claims (Tex. Fuqua, Inc. v. 29 S.W.3d to have response filed a to the Law Firm’s App.-Houston 2000, pet. [14th de Dist.] no-evidence motion and a motion for con- nied). Unlike other notes and comments tinuance on that date.1 In the motion for procedure, rules of civil this com continuance, Mclnnis claimed she needed ment specifically intended to inform further discovery. support To plea her application construction and of this time, additional Mclnnis explained that she 166a(i) cmt.; rule. See Tex.R. Civ. P. Spe needed to review eighty over boxes of Retailers, Inc., cialty records, and she also stated she suf- Applying plain language of the com fers from severe pain and chronic ment, a no-evidence summary judgment problems in legs. The trial court de- motion ordinarily is not permitted before and, nied Mclnnis’s motion for continuance expiration of the period set January on granted the Law by pre-trial Thus, order. principal our Firm’s motion summary judgment. On task is to if determine this provides record appeal to this court Mclnnis challenges the support for the trial court’s consideration summary court’s judgment.2

of a no-evidence summary-judgment mo Analysis II. tion more than seven months before the Issues end of discovery period. perti issue, In her first nent date for inquiry this is the final date claims, alia, inter that there was not an on which the no-evidence pre motion is adequate amount of time for discovery. A sented to the trial court for party may ruling, which move for a no-evidence sum mary this case was November 2005. On “[a]fter time for 166a(i). date, discovery.” Tex.R. this the lawsuit Civ. P. had been on file for Nota bly, months, not'require rule does six that discov less than half of the dis ery completed, must have been covery but rather expired.3 In resolving parties dispute timely 1. The dissenting colleague .whether Mclnnis 3.Our focuses on the date response granted on summary- filed a to which trial court the Law Firm’s no-evi- however, judgment; the time between final summary-judgment dence motion. submission of the motion to the court ruling court’s on the motion cannot be count 2. Mclnnis also raises two other issues: denial part ed 2), (issue of Mclnnis’s motion for new trial Johnson, See Brewer & P.C. v. and failure to rule on Mclnnis’s motion for (Tex.App.-Houston [14th 3). (issue explained sanctions For reasons denied) (stating Dist.] that a below, we do not reach either. may move summary judg for a no-evidence a “suit issue, prior litigation, prove Mclnnis must if the trial we must determine demonstrating that “but within a decision treat this case as an suit” court’s negligence, she would ordinary to the rule constitutes for” the Law exception underlying medical- prevailed on an abuse discretion. enti and would have been malpractice suit In considering whether v. Clem Schlager judgment. tled adequate time for dis permitted ents, (Tex.App.-Hous 939 S.W.2d following factors: covery, we consider the denied). A writ [14th Dist.] ton (2) (1) the nature of the the nature of suit is re plaintiff legal-malpractice in a necessary to controvert expert testimony regard quired present (3) length of time no-evidence of skill care ordinari ing standard (4) active, the case was the amount of time attorney. ly by an See Ersek exercised (5) file, the no-evidence motion was Davis, P.C., 268, 271 Davis & requested whether the movant had stricter denied). 2002, pet. Be (Tex.App.-Austin the amount of deadlines legal-mal requirements, cause of these already place, had taken litiga complex is considered practice suit (7) deadlines in the tion. specific vague. place were Brewer & Johnson, P.C. v. 167 S.W.3d case, a In this the trial court entered 460, (Tex.App.-Houston [14th 467 Dist.] forth various docket control order denied); pet. Specialty parties The were pre-trial deadlines. Inc., 29 S.W.3d at 145. We review a trial un- required designate expert to witnesses that there court’s determination has been til a deadline that would March case- time for a five after the not have run until months basis, by-case under an abuse-of-discretion summary Law Firm filed its motion for Pritchard, P.C., standard. Brewer 167 & judgment. Generally, complex the more S.W.3d case, a will the the more time trial court parties Both allocate for The Nature of the Case the the case complexity the of acknowledged Necessary to Evidence referring review, under the Motion Defeat “suit- the action as a legal-malpractice to Schlager, S.W.2d alleged within-a-suit.” See 939 negligence Mclnnis has continuance, 186. motion for a fiduciary duty against and breach of the In her contrib- of in Mclnnis to various factors representation pointed Firm its her Law case, uting complexity to of includ- underlying medical-malpractice suit. to ing her condition and her need Generally, legal to on a claim for medical recover (1) of from sixty boxes material plaintiff prove a must review over malpractice, case, (2) underlying medical-malpractice attorney duty; plaintiff owed the (3) twenty of well than other boxes duty; as as more attorney breached the breach action. to the current injuries; pertinent records plaintiffs proximately caused to serve the indicated need occurred. Peeler v. Mclnnis also damages (Tex. Luce, for dis- requests Law Firm with additional 496 Hughes & 909 S.W.2d Grimes, Law to Mallia the Mallia 1995); Cosgrove closure as v. (Tex.1989). Thus, Firm as as for admissions to maintain a well to Mallia. interrogatories from legal-malpractice action arises Therefore, key is discovery). date November only ment To have defeated a mo regarding duty requests, no-evidence for one of her summary tion for judgment, Mclnnis prompted which is what she claims pointed would have to have out to motion for continuance to further discov summary-judgment pro of ery. genuine bative force to raise a of fact issue of complex legal Given nature as to the essential elements attacked asserted, complexity claims the factual no-evidence motion. See Johnson Brew and the type evidence neces- Pritchard, P.C., er & 206- sary to defeat the no-evidence (Tex.2002). a trial court Generally, adequately demonstrated may presume plaintiffs have investi a legitimate need for additional gated prior filing their cases suit. See MacFadyen, Carter v. Length of Time the Was Active Case (Tex.App.-Houston [14th Dist.] and the Motion No-Evidence denied). Though espe true File Was on cially in regard health-care-liability claims, carry which requirement legal-malpractice suit had been on within six months the claimant file an ex five file for months when Law Firm care, pert report establishing standard for summary judgment, moved and the causation, negligence, and this case is a approximately motion had been on file id.; “suit-within-a-suit.” see also months granted two before the trial court Schlager, (referring 939 S.W.2d at 186-87 it in favor of the Firm. Under the proof). “suit within suit” For this order, approxi- trial court’s docket control suit,” “suit within a even Mclnnis though eight mately peri- remained in the months may presumed be investigated have discovery designated od for when the Law case, underlying medical-malpractice motion; Firm than filed its less half of the her legal-malpractice against suit the Law trial discovery time the court allotted for Firm, necessary the evidence to controvert at the commencement of the case had ex- the Law Firm’s re no-evidence motion Likewise, pired. at the time the Law quires a of probative scintilla evidence to Firm filed its no-evidence the date question raise a of on material fact the by designate expert which to witnesses challenged by elements the Law Firm. See would not run until March date Int’l, Inc., Restaurant Teams 95 S.W.3d at that then five months the future. 339. In for summary judgment, its motion 166a(i), Under Rule there is no the Firm specifically that alleged specific minimum amount of time that a Mclnnis had no evidence that she would must be a trial pending case before prevailed have medical- underlying on summary- may entertain no-evidence claim, malpractice nor that she would rather, motion; judgment the rule re been entitled to but for the Law an quires “adequate discovery.” time negligence, finally, Firm’s no evi that 166a(i); Specialty Re See Tex.R. Civ. P. suggests dence Law Firm’s actions tailers, at Inc. 29 145. The S.W.3d fiduciary duty. constituted a breach necessary of time to constitute an Firm, amount however, The Law did not serve on “adequate depends time” the facts and Mclnnis with answers to the See, circumstances e.g., of each case. after Firm filed Res admissions until the Law Int'l, Inc., Teams 95 S.W.3d at receiving motion. taurant no-evidence After 340; Attebury, 20 responses, alleged McClure v. S.W.3d (find (Tex.App.-Amarillo pet.) had answer no withheld an (indicat- pet.) (Tex.App.-El Paso no ing passed had when time months). response and a The that a fact-intensive pending ing case was for seven one to two discovery roughly in the docket on file for time allocated motion time for dis- strong suggested adequate control order is a indicator of ade months time, though covery passed). discov had quate the deadline for not “ade ery is measure of not conclusive Discovery Carter, Involving at 311.

quate time.” See Factors on the facts of Depending are for consideration The final factors may more time allocated for (1) specific were or whether the deadlines and, thus, necessary is than (2) movant had re- vague, may be less than the amount the quested stricter deadlines Likewise, court allocated. circumstances discovery already how much might entry arise the docket place. taken control render the time order would control order The trial court’s docket initially for discovery inadequate. allocated place was to take specified however, Ordinarily, specified the deadline language of through June 2006. The in the is docket control order the best specific is the docket control order indicator. length unambiguous regarding the that, us ordinarily, rule tells “ade- Thus, discovery period. discovery pe- quate be gauged time” uncertain, not vague riod in this case is designated pretrial ap- order. This and this factor is neutral. See Restaurant proach makes sense because deadlines Int’l, Inc., 95 Teams typically are the onset of the case that the Law The record does reflect based on provided by par- information formally requested Firm stricter deadlines ties complexity about the nature and However, by seeking a no- litigation. Litigants lawyers need eight summary judgment months rely be able planning the schedule in discovery the and before deadline less than pursuing discovery. Adherence to halfway through discovery the designated in deadlines the docket control holds order implicitly requested the Law Firm period, promise meeting parties’ most for discovery cut the trial court to legitimate expectations discovery for short, accordingly, impose stricter a fair promoting orderly develop- id.; discovery. deadlines for See accord ment of In this the evidence. 166a(i). factor weighs Tex.R. Civ. P. This not identify, Law Firm did and the record in favor of McInnis. See Restaurant suggest, any does not factors that would Inc., Int’l, 95 Teams S.W.3d weigh application ordinary of against rule. discovery already As to much how place, Mclnnis complexity

Given the of this “suit within taken the record reflects multiple Law Firm with response a suit” and the fact-intensive re- had served the minimal id. quired, length of time the case See written responses re- pro- had been on file The Law Firm’s were not motion did after vide See Mclnnis until adequate time turned P.C., summary judg- Brewer 167 at Firm filed its motion for & S.W.3d 729; Furthermore, 468; McClure, 20 at ment. accord S.W.3d Initiatives, alleged that Cmty. responses, also Inc. its Mclnnis see v. Chase served Texas, 278, wholly all 270, 153 279 the Law Firm did not answer Bank of 204

requested According discovery process; admissions.4 to abused the the record Mclnnis, the Law Firm had abused the reflects Mclnnis filed a motion for sanc discovery process by withholding informa against tions Firm based on tion that summary- she intended to use as allegations discovery of the Law Firm’s response evidence in her to the Retailers, Inc., abuse.5 Specialty See Law Firm’s motion. A party should not (indicating S.W.3d at 145-46 that upon a be discovery able to process by abuse abuse, showing discovery beyond mere key withholding evidence op from accusation, “it would likely enough to ponent and then use that lack establish that there not an adequate to win a judgment. Specialty See Retail discovery”). time for v. Quality Green Cf. ers, Inc., (providing 29 S.W.3d at 145 One, L.P., 14-05-01247, Dialysis No. if a nonmovant abuse established WL at (Tex.App.-Houston *3 discovery process, nonmovant Aug. pet.) (noting [14th no Dist.] likely establish that not an there was ade how the record no contained information quate discovery); Tempay, Inc. v. that nonmovant made additional efforts to Inc., Constr., TNT & Concrete discovery obtain when allegedly movant (Tex.App.-Austin 522-23 de provided inadequate discovery responses). nied) (holding the trial court abused In light discovery of how much Mclnnis its discretion in determining conducted, already had much how more time discovery had passed because needed, fact she and the that the successfully movant resisted nonmovant’s allegedly Law Firm withheld information attempts discovery); to obtain see also in discovery, weighs in factor favor of Clore, Robert W. Civil Texas Rule Pro in permitting further time for dis 166a(i): cedure A Weapon New Texas Inc., covery. Tempay, at Mary’s Defendants, 29 St. L.J. 522-23; Inc., Specialty (providing that a nonmovant “who 145; Community S.W.3d at see also Ini delayed could show the defendant discov tiatives, (con Inc., 153 S.W.3d at ery by failing plaintiffs to answer the in sidering obtaining in terrogatories diligence would likely be entitled to discovery”). depositions further Mclnnis levied determining more there than an accusation that Law Firm had been for discovery). hearing, Mclnnis claims the Law Firm neither sanctions was Mclnnis stated question admitted denied nor one in her re- in her for new hearing motion trial and quest regarding for admissions a breach of on that motion that her sanctions motion was duty. Additionally, Mclnnis states that the hearing set February for on 2006. In her responded request Law Firm to one for ad- issue, third Mclnnis asserts trial supple- mission a it "will with comment that by failing court on erred to rule this motion. alleges ment.” Mclnnis that because the Law However, no our record contains information discovery, Firm resisted she was unable to any regarding hearing February on 2006. responses original use the Law Firm’s in her trial, hearing At the on her for new motion summary judgment response purportedly filed Mclnnis did not state that trial court 14, 2005, on why November is which she February on refused to hear motion requested a continuance in case for fur- presuming this motion Even was ther hearing February set for on our rec- ord is silent as to what occurred at that time. 5. The record reflects that Mclnnis filed this record, say we On this cannot trial court shortly after motion for sanctions reversibly by failing erred rule on Mcln- to granted summary judgment. Although court Accordingly, for we hearing nis’s motion sanction. record contains no notice of or third other direct evidence that the motion overrule her issue. rule discovery under quate III. Conclusion 166(a)(i) is no and there specific, is case its trial court abused We conclude the an line test determine whether bright this finding in implicitly discretion passed. time has rule, set ordinary case fell outside the Int'l, Sec. Inc. v. MG Rest. Teams See 166a(i), in rule forth comment (Tex.App.-Dallas 95 S.W.3d Corp., than a more allowing no-evidence motion Rather, a we consider pet.). no expiration of the months five before of factors to determine number docket discovery period set forth in the adequate time for dis court allowed trial Brewer control order. See & covery. Specialty See P.C., no- Ordinarily, at 468. not permitted is after but evidence motion discovery period pre in indi Although before factors this case some Retailers, Inc., Specialty inadequate trial order. See time there have been cate permit 29 S.W.3d 145. The the trial court I conclude halfway less than by finding ted no-evidence motion acted within its discretion no in through showing this had an for discov Mclnnis gener justify record to deviation from the may presume plaintiff Trial ery. courts circum particular prior filing al rule. Under investigated his own case complex MacFadyen, stances of this 93 S.W.3d suit. See Carter v. Dist.], provided adequate opportunity not an to 307, (Tex.App.-Houston [14th denied). rea Here, conduct See id. For this on Mclnnis filed suit son, grant the trial court should May and the lawsuit had been the Law ed Firm’s no-evidence motion seven months before the court file for id.; summary Tempay, judgment. judg summary on the ruled motion Inc., extent, To we 37 S.W.3d at 523. ment.

sustain Mclnnis’s first issue.6 A trial court an abuse of discre- commits judgment of the trial court is re- arbitrary it acts in an only tion when pro- is versed this case remanded or acts ref- unreasonable manner without ceedings with this opinion. consistent any principles. rules or guiding erence to Martinez, 219, 222 Garcia

SEYMORE, J., dissenting. record, (Tex.1999). I reviewing After the trial court acted cannot conclude SEYMORE, Justice, CHARLES W. man- arbitrary or unreasonable either dissenting. guiding acted reference to ner or without summary party may A file a no-evidence I re- Accordingly, principles. rules or “[ajfter for dis- adequate time dissent. spectfully 166a(i). However, covery.” P. Tex.R. Civ. no requirement there is an ade-

completed; requirement is Specialty Retail-

quate amount of time.

ers, Fuqua, Inc. 2000, pet.

(Tex.App.-Houston [14th Dist.]

denied). had ade- Whether nonmovant issue. Having part first first issue her second of Mclnnis's sustained issue, of her we need not reach remainder

Case Details

Case Name: McInnis v. Mallia

Court Name: Court of Appeals of Texas

Date Published: Jun 17, 2008

Citation: 261 S.W.3d 197

Docket Number: 14-06-00354-CV

Court Abbreviation: Tex. App.