Sipes v. Petry and Stewart

• Decision Date: 28 June 1991
• Docket Number: No. 04-91-00031-CV,04-91-00031-CV
• Citation: 812 S.W.2d 428
• Parties: Larry SIPES d/b/a Sipes General Store, Appellant, v. PETRY AND STEWART, and John W. Petry, Appellees.
• Court: Texas Court of Appeals

Page 428

812 S.W.2d 428

Larry SIPES d/b/a Sipes General Store, Appellant, v. PETRY AND STEWART, and John W. Petry, Appellees.

No. 04-91-00031-CV.

Court of Appeals of Texas,

San Antonio.

June 28, 1991.

William W. Sommers, Gardner & Ferguson, Inc., San Antonio, for appellant.

George H. Spencer, Clemens & Spencer, San Antonio, for appellees.

Before BUTTS, CHAPA and BIERY, JJ.

OPINION

CHAPA, Justice.

Appellant, "Larry Sipes d/b/a Sipes General Store" alone, appeals a summary judgment granted in favor of appellees, Petry and Stewart, et al. in a legal malpractice suit.

In a suit filed against appellees, Larry Sipes, individually, and Sipes General Store, alleged a malpractice cause of action arising from legal services rendered by the appellees on an Economic Development Loan with the City of Carrizo Springs, which also involved a loan agreement with the Union State Bank of Carrizo Springs. The trial court granted summary judgment without stating the basis for the summary judgment, which requires affirmance on any meritorious theory. Tijerina v. Wennermark, 700 S.W.2d 342, 347 (Tex.App.--San Antonio 1985, no writ).

Appellant contends that the trial court erred in granting the summary judgment because a fact issue was raised "with respect to [appellee's] failure to disclose a conflict of interest between Union State Bank of Carrizo Springs and Larry Sipes", and "as to whether the failure to disclose was a proximate cause of damages to Plaintiff." Moreover, appellant limits this appeal to "that portion of the judgment as it relates to his alleged causes of action with respect to negligence and violation of Sec. 17.46 (23) of the Texas Business and Commerce Code...."

The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985); Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex.1972); TEX.R.CIV.P. 166a(c). In deciding whether a disputed material fact issue precludes summary judgment, the reviewing court will take as true all evidence favoring the nonmovant. Nixon, 690 S.W.2d at 549; Montgomery v. Kennedy, 669 S.W.2d 309, 311 (Tex.1984). Every reasonable inference from the evidence will be indulged in favor of the nonmovant, and any doubts will be resolved in his favor. Nixon, 690 S.W.2d at 549.

In reviewing summary judgment evidence, it is well established that sworn pleadings and denials to requests for admissions are not summary judgment evidence in Texas. Americana Motel, Inc. v. Johnson, 610 S.W.2d 143 (Tex.1980). As such, a motion for summary judgment is a pleading and may not be considered as summary judgment evidence, Kendall v. Whataburger, Inc., 759 S.W.2d 751, 754 (Tex.App.--Houston [1st Dist.] 1988, no writ), nor is a response to summary judgment competent summary judgment evidence. Rhodes v. Interfirst Bank Fort Worth, N.A., 719 S.W.2d 263, 264 (Tex.App.--Fort Worth 1986, no writ). However, affidavits, depositions, interrogatories, and admissions are proper summary judgment evidence when referred to or incorporated in the motion for summary judgment, Stewart v. U.S. Leasing Corp., 702 S.W.2d 288, 290 (Tex.App.--Houston [1st Dist.] 1985, no writ), citing, First Fed. Sav. & Loan Ass'n of San Antonio v. Bustamante, 609 S.W.2d 845, 849 (Tex.Civ.App.--San Antonio 1980, no writ), but the trial court may not receive extrinsic evidence, either oral or documentary, at the hearing on the motion for summary judgment. State v. Easley, 404 S.W.2d 296, 297 (Tex.1966); Citizens State Bank of Dickinson v. Shapiro, 575 S.W.2d 375, 383 (Tex.Civ.App.--Tyler 1978, writ ref'd n.r.e.). Statements contained in a brief also do not constitute summary judgment proof. Nationwide Fin. Corp. v. English, 604 S.W.2d 458, 463 (Tex.Civ.App.--Tyler 1980, dism'd as moot).

The parties opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials but must set forth specific facts showing there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202, 217 (1986). All responses to a motion for summary judgment must be presented to the trial court in writing. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79 (Tex.1979); TEX.R.CIV.P. 166a(c).

If the judgment granting the motion for summary judgment does not specify upon which ground it is based, to obtain reversal, the appellant must show that all of the independent grounds alleged are insufficient to support the judgment. Rogers v. Ricane Enter., Inc., 772 S.W.2d 76, 79 (Tex.1989); Tilotta v. Goodall, 752 S.W.2d 160, 161 (Tex.App.--Houston [1st Dist.] 1988, writ denied).

An attorney malpractice claim, such as the one involved in the present case, is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex.1989). "The plaintiff must prove that there is a duty owed to him by the defendant, a breach of that duty, that the breach proximately caused the plaintiff injury and that damages occurred." Id. at 665. The attorney is held to the standard of care which would be exercised by a reasonably prudent attorney. Id. at 664. "The standard is an objective exercise of professional judgment, not a subjective belief that his acts are in good faith." Id. at 665. An attorney is competent as a witness to state the standard for practicing law in his own legal malpractice case. Tijerina, 700 S.W.2d at 347. Additionally, in a legal malpractice case, the burden is on the client seeking damages from the attorney. Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex.Civ.App.-- Houston [1st Dist.] 1974, writ ref'd n.r.e.). In a malpractice cause of action, a non-movant is required to raise a fact issue as to the producing cause in order to defeat a summary judgment, after the movant has complied with its burden. Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex.1984).

Further, allegations under the Deceptive Trade Practice Act, which includes § 17.46(b)(23) of the Texas Business and Commerce Code (Vernon 1987), require pleadings which "designate or state with particularity which acts or events were relied upon as a basis for liability under the Texas Deceptive Trade Practices Act", and also "pleadings to show that any act or acts of the defendant were a producing cause of any injury to the [plaintiff]." Village Square, Ltd. v. Barton, 660 S.W.2d 556, 559 (Tex.App.--San Antonio 1983, writ ref'd n.r.e.) Therefore, in a deceptive trade practice cause of action, a non-movant is likewise required to raise a fact issue as to the producing cause in order to defeat a summary judgment, after the movant has complied with its burden. Brownlee, 665 S.W.2d at 112.

Because appellees presented a properly supported motion for summary judgment as to the producing cause issue, the dispositive issue here is whether the appellant properly raised a fact issue as to the producing cause in order to defeat the summary judgement. Anderson, 477 U.S. at 256, 106 S.Ct. at 2514; TEX.R.APP.P. 90.

The summary judgment evidence discloses that Larry Sipes, individually, and Sipes General Store, obtained the legal services of the appellees in connection with an Economic Development Loan with the City of Carrizo Springs, as well as a companion loan agreement with the Union State Bank of Carrizo Springs, for the purpose of obtaining funds to expand the operation of the Sipes General Store. The specific allegations of malpractice against appellees stem from the insistence that the appellees failed to notify Sipes, individually, and Sipes General Store, of the conflict of interest which existed as a result of Mr. Petry being a stockholder of the Union State Bank and representing the bank as its attorney. However, Sipes admitted in his deposition that he was generally...