      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                     NO. 03-07-00376-CV



                             Elizabeth Louise Handley, Appellant

                                                v.

                                   Marian C. Bloss, Appellee


               FROM COUNTY COURT AT LAW NO. 1 OF BURNET COUNTY
                NO. C3206, HONORABLE W. R. SAVAGE, JUDGE PRESIDING



                             CONCURRING OPINION


               I join in Justice Puryear’s opinion to the extent it holds that Handley waived two

of her appellate challenges to the summary judgment—that the fee agreement did not authorize

Bloss to “revoke” the $3,200 in billing discounts, and if it did, it imposes an unenforceable

penalty—because Handley did not raise these grounds for denying summary judgment in a timely

written response to Bloss’s motion. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d

671, 678 (Tex. 1979). In the view that these were the only grounds that Handley raises on appeal,

Justice Puryear would award damages to Bloss to sanction Handley for filing a frivolous appeal. If

these were in fact the only grounds Handley presented on appeal, I might be inclined to join that

portion of Justice Puryear’s opinion. However, Handley also complains that Bloss’s summary-

judgment evidence was “inconsistent” with respect to whether she owes Bloss $6,138.23 or the
full $9,338.23. I agree with Justice Patterson that this complaint is in the nature of a challenge to

the legal sufficiency of Bloss’s summary-judgment proof that can be raised for the first time on

appeal. See id.

               Justice Puryear acknowledges that Handley contends Bloss’s summary-judgment

proof is “inconsistent,” but concludes that Handley nonetheless failed to challenge the

legal sufficiency of Bloss’s summary-judgment proof because Handley did not explicitly refer

to “legal insufficiency” or cite specific authorities for the concept that “inconsistent evidence is

legally insufficient to support summary judgment.” While Handley’s briefing is admittedly sparse,

the substance of her contention is straightforward—Bloss is not entitled to summary judgment for

the full $9,338.23 because she failed to conclusively establish that Handley owed her that

entire amount as opposed to the $6,138.23 that Bloss had originally billed. This is a challenge to the

legal sufficiency of Bloss’s summary-judgment proof that Handley can raise for the first time

on appeal. See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 22-23 (Tex. 2000)

(per curiam); Cotton v. Ratholes, Inc., 699 S.W.2d 203, 204-05 (Tex. 1985) (per curiam). Further,

Handley’s challenge has some colorable legal and factual basis—there is evidence that Bloss

originally charged Handley $6,138.23 and not the full $9,338.23—and, therefore, does not rise to

the level of frivolousness.

               I agree with Justice Puryear that Handley ultimately does not prevail on this

contention because Bloss’s undisputed summary-judgment proof establishes that she provided

Handley $9,338.23 in unpaid reasonable and necessary legal services and that the $3,200 discrepancy

represented discounts on hours, and because the mere fact Bloss originally discounted some of



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her hours does not in itself raise a fact issue as to the reasonableness and necessity of the $9,338.23

amount. Justice Patterson reaches a similar conclusion. Consequently, I concur in the judgment

affirming the summary judgment. However, because I differ with Justice Puryear’s core contention

that Handley advances only unpreserved arguments on appeal, and because Handley’s challenge

to the “inconsistency” of Bloss’s summary-judgment evidence, while ultimately unsuccessful, is

not frivolous, I concur with Justice Patterson in the judgment denying Bloss’s motion for damages.




                                               __________________________________________

                                               Bob Pemberton, Justice

Before Justices Patterson, Puryear and Pemberton

Filed: February 5, 2010




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