Rangel v. Lapin

• Decision Date: 28 April 2005
• Docket Number: No. 01-03-00351-CV.,01-03-00351-CV.
• Citation: 177 S.W.3d 17
• Court: Texas Supreme Court
• Parties: Marcos RANGEL, Appellant, v. Robert LAPIN; Carrigan, Lapin, Landa & Wilde, L.L.P., and Carrigan, Lapin & Landa, L.L.P., Appellees.

177 S.W.3d 17

Marcos RANGEL, Appellant, v. Robert LAPIN; Carrigan, Lapin, Landa & Wilde, L.L.P., and Carrigan, Lapin & Landa, L.L.P., Appellees.

No. 01-03-00351-CV.

Court of Appeals of Texas, Houston (1st Dist.).

January 13, 2005.

Rehearing Overruled April 28, 2005.

COPYRIGHT MATERIAL OMITTED

Neal H. Paster and Langdon Smith III, Hjalmarson, Smith & Hancock, Houston, TX, for Appellant.

Robert C. McCabe, Holm, Bambace & McCabe, L.L.P., Houston, TX, for Appellees.

Panel consists of Justices TAFT, JENNINGS, and BLAND.

OPINION

JANE BLAND, Justice.

Appellant Marcos Rangel sued appellees Robert Lapin, the law firm of Carrigan, Lapin, Landa & Wilde, L.L.P., and its related entity Carrigan, Lapin & Landa, L.L.P. (collectively the "Lapin firm"). The lawsuit alleges: (1) legal malpractice (negligence), (2) breach of contract, (3) breach of warranty, (4) gross negligence, (5) violations of the Texas Deceptive Trade Practices-Consumer Protection Act (the "DTPA"), and (6) spoliation of evidence. Rangel's claims arise out of the Lapin firm's representation of him in connection with potential litigation for injuries Rangel sustained in a car crash. The trial court granted summary judgment. Rangel contends that the trial court erred in doing so, because: (1) the Lapin firm failed to properly present its motion for summary judgment to the trial court; (2) a fact issue exists with respect to his liability claims; and (3) the trial court erred in striking his spoliation claim. We conclude that the Lapin firm properly presented its motion, Rangel failed to raise a fact issue as to the causation element of his claims, and Texas does not recognize an independent cause of action for spoliation.¹ We therefore affirm the trial court's summary judgment.

Facts

In June 1998, Rangel suffered serious injuries in an automobile collision, while he was driving a 1990 Honda Accord owned by his father. He subsequently retained the Lapin firm to represent him in his claim against the other vehicle's driver and owner for damages. After discovering that neither the owner nor the driver of the other vehicle had maintained insurance coverage, the Lapin firm withdrew as Rangel's counsel. In this lawsuit, Rangel alleges that his father reported to the Lapin firm that he believed that his Honda's automobile restraint system was defective, and might have contributed to the severity of Rangel's injuries. He further alleges that a legal assistant of the law firm advised Rangel's father to sell the wrecked Honda for its salvage value. Rangel's father sold the Honda, and the salvage company reduced it to scrap metal. Rangel alleges in this lawsuit that his father's disposal of the vehicle prevented him from pursuing a products liability case against the Honda Motor Company with respect to the Honda Accord's passive restraint system.

Rangel filed his original petition in June 2000. The Lapin firm filed both a traditional and a no-evidence motion for summary judgment in August 2002. See TEX.R. CIV. P. 166a(c), 166a(i). The Lapin firm moved for summary judgment on the grounds that (1) no evidence exists as to at least one element of Rangel's legal malpractice, breach of warranty, breach of contract, and DTPA claims; and (2) the DTPA claims are barred as a matter of law. The trial court granted the Lapin firm's motion for summary judgment in January 2003. Rangel then filed a motion for new trial. The trial court denied Rangel's motion for new trial, and this appeal followed.

Standard of Review

The movant for a traditional summary judgment has the burden of showing that there is no genuine issue of material fact and that he is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Park Place Hosp. v. Estate of Milo, 909 S.W.2d 508, 510 (Tex.1995); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985). A defendant moving for summary judgment must either disprove at least one element of each of the plaintiff's causes of action, or plead and conclusively establish each essential element of its affirmative defense, thereby rebutting the plaintiff's causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex.1995). In a no-evidence summary judgment under Rule 166a(i), the movant represents that no evidence exists as to one or more essential elements of the non-movant's claims, upon which the non-movant would have the burden of proof at trial. TEX.R. CIV. P. 166a(i). The non-movant then must present evidence raising a genuine issue of material fact on the challenged elements. Id.

A no-evidence summary judgment is essentially a pretrial directed verdict, and we apply the same legal sufficiency standard when reviewing a no-evidence summary judgment as we do in reviewing a directed verdict. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-51 (Tex.2003) (citing Valero Mktg. & Supply Co. v. Kalama Int'l, L.L.C., 51 S.W.3d 345, 350 (Tex.App.-Houston [1st Dist.] 2001, no pet.)); see also Jackson v. Fiesta Mart, Inc., 979 S.W.2d 68, 70 (Tex.App.-Austin 1998, no pet.). We ascertain whether the non-movant produced any evidence of probative force to raise a fact issue on the material questions presented. See Jackson, 979 S.W.2d at 70. We consider all the evidence in the light most favorable to the party against whom the no-evidence summary judgment was rendered, disregarding all contrary evidence and inferences. King Ranch, 118 S.W.3d at 751 (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.1997)); see also Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex.App.-Houston [1st Dist.] 1999, no pet.).

More than a scintilla of evidence exists if the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." King Ranch, 118 S.W.3d at 751; Merrell Dow Pharms., 953 S.W.2d at 711. As the summary judgment order in this case does not specify the grounds relied upon by the trial court, we affirm it if any one of the grounds presented in the motion has merit. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex.1996).

Improper Form

In his first issue, Rangel contends that the trial court erred in overruling his objections to the Lapin firm's motion for summary judgment because the motion did not properly incorporate the summary judgment evidence upon which it relies. Rangel claims that the Lapin firm should have included its evidentiary support—depositions, in particular—in full, as opposed to the excerpts that support its motion. Rangel further claims that the Lapin firm failed to direct the court to any specific portion of the evidence in support of its no-evidence motion for summary judgment.

Rule 166a provides that the motion or response reference or set forth the evidence in support of it, unless such evidence is "on file" at the time of the hearing. See TEX.R. CIV. P. 166a(c). The Lapin firm's motion for summary judgment relies upon and specifically references: (1) Rangel's disclosure responses; (2) Rangel's original petition; (3) excerpts from Rangel's deposition testimony; (4) excerpts from his father's deposition testimony; (5) excerpts from his mother's deposition testimony; and (6) Rangel's expert's deposition testimony. The Lapin firm attached these materials to its motion.

Depositions and pleadings are proper summary judgment evidence when referred to or incorporated in a motion for summary judgment. See Stewart v. United States Leasing Corp., 702 S.W.2d 288, 290 (Tex.App.-Houston [1st Dist.] 1985, no writ). Within its motion for summary judgment, the Lapin firm specifically referenced its summary judgment evidence. The fact that the Lapin firm did not rely upon all of the discovery materials in the case, nor attach every complete deposition, does not constitute a valid basis for objection to the evidence that the motion did incorporate. We hold that the Lapin firm properly presented evidence in favor of its motion for summary judgment.

Moreover, the Lapin firm does not have the burden of producing evidence to support the no-evidence part of its motion. See Howell v. Hilton Hotels Corp., 84 S.W.3d 708, 711-12 (Tex.App.-Houston [1st Dist.] 2002, pet. denied.). In its motion, the Lapin firm stated the elements in each cause of action that lacked evidence-namely, causation and damages. This satisfies the specificity requirement of a no-evidence motion for summary judgment. See TEX.R. CIV. P. 166a(i).²

Legal Malpractice

Rangel contends that the trial court erred in rendering summary judgment on his legal malpractice claim. A legal malpractice action is based upon negligence and requires proof of four elements: (1) a legal duty; (2) a breach of that duty; (3) that the breach proximately caused the plaintiff's damages; and (4) that the plaintiff sustained damages. See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex.2004); see also Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex.1995); Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex.1989); Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex.App.-Houston [1st Dist.] 1998, pet. denied). If a legal malpractice case arises from prior litigation, a plaintiff must prove that, "but for" the attorney's breach of his duty, the plaintiff would have prevailed in the underlying case. Greathouse, 982 S.W.2d at 172. Our jurisprudence often refers to this "but for" causation aspect of the plaintiff's burden as the "suit-within-a-suit" requirement. See id. at 173.

Rangel alleges that the Lapin firm breached the standard of care for an attorney by advising his father to destroy the vehicle that could have provided a basis for a products liability action against Honda. In its motion for summary judgment, the Lapin firm asserted that Rangel had failed to produce any evidence of proximate cause, i.e., that Rangel would have prevailed in a lawsuit against Honda "but for" the firm's malpractice. See Greathouse, 982 S.W.2d at 173. In response, Rangel offered his pleadings and the...