                            NUMBER 13-08-00560-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG


KHALIL PAKIDEH, INDIVIDUALLY
AND ALMA INVESTMENTS, INC.,
D/B/A TEXAS ALMA INVESTMENTS, INC.,                                        Appellants,

                                           v.

WILLIAM L. POPE, INDIVIDUALLY
AND ADAMS & GRAHAM, L.L.P.,                                                 Appellees.


                   On appeal from the 404th District Court
                         of Hidalgo County, Texas.



                        MEMORANDUM OPINION
                Before Justices Yañez, Benavides, and Vela
                Memorandum Opinion by Justice Benavides

      Appellants, Khalil Pakideh and Alma Investments, Inc. d/b/a Texas Alma

Investments, Inc. (“Alma”), appeal the trial court’s order granting final summary judgment

in favor of appellees, William L. Pope and Adams & Graham, L.L.P. (“A&G”). By three

issues, which we renumber, Pakideh and Alma argue that (1) the trial court erred by
granting Pope and A&G’s no-evidence motion for summary judgment, which failed to

comply with Texas Rule of Civil Procedure 166a(i)’s specificity requirement; (2) the trial

court erred by granting Pope and A&G’s traditional motion for summary judgment because

the evidence in support of the motion failed to conclusively negate an element of Pakideh

and Alma’s claims; and (3) the trial court erred by granting the traditional motion for

summary judgment because there is more than a scintilla of evidence to support Pakideh

and Alma’s claims. We affirm, in part, and reverse and remand, in part.

                                         I. BACKGROUND

       Pakideh is the sole shareholder of Alma, which consists almost entirely of the Bahia

Mar (the “property”), a hotel and condominium complex located on South Padre Island.

When Alma purchased the property, Pakideh hired Abolhassan Ahadi, his brother-in-law,

to manage it. After managing the property for several years, Ahadi filed suit against

Pakideh and Alma in the 404th District Court of Cameron County (the “underlying case”).1

Ahadi alleged that in addition to his salary, Pakideh promised him that he could purchase

15% of Alma for $45,000, which Ahadi could discharge by making periodic payments.

Pakideh denied making such an offer.

       Pakideh and Alma were represented in the underlying case by Pope and his law

firm, A&G. The dispute was submitted to a mediator on the eve of trial, and during the

mediation, Pakideh and Alma settled the litigation against Ahadi for $1,750,000.

       Pakideh and Alma then filed this suit against Pope and A&G, alleging that Pope and

A&G “wholly failed to carry out the duties they owed to [Pakideh and Alma] by failing to

properly designate expert witnesses” and by failing to “properly prepare for trial.” Pakideh


       1
        Trial court cause num ber 1999-09-3867-G, Abolhassan Ahadi v. Khalil Pakideh, Soudabeh Ahadi,
and Alma Investments Inc. d/b/a Texas Alma Investments, Inc.

                                                 2
and Alma alleged that, because Pope and A&G were not prepared for trial and had not

designated expert witnesses, Pakideh and Alma were forced to settle the litigation “for a

sum of money far more than they should have.” Furthermore, Pakideh and Alma alleged

that Pope and A&G failed to advise them properly regarding their affirmative defenses,

failed to competently and diligently represent them, failed to preserve their claims and

rights, failed to keep them informed, and failed to protect their interests. Pakideh and

Alma’s petition alleged causes of action for negligence, negligence per se, and breach of

fiduciary duty and sought actual damages and fee forfeiture.

       Pope and A&G filed a motion for summary judgment that combined both no-

evidence and traditional grounds for summary judgment. The motion attached an affidavit

from Pope and portions of Pakideh’s deposition, although the motion relied almost entirely

on Pope’s affidavit. After providing the background for the underlying suit, the affidavit

stated the following, in relevant part:

               5. A. Ahadi began managing the Bahia Mar in 1992. He made his
       first payment toward the 15% interest in the amount of $15,000, which was
       accepted by Pakideh. However, Pakideh never assigned him the 15%
       interest, and between 1992 and 1999, A. Ahadi wrote several letters
       demanding the 15% interest. Pakideh never directly responded to this
       demand until a letter was written in 1999 flatly denying A. Ahadi’s claim.

               6. In my opinion, a jury was likely to resolve most if not all of the
       factual issues in favor of A. Ahadi. Among the reasons for this conclusion
       are the fact that Pakideh does not make a good witness, Pakideh’s denial of
       the promise of 15% interest of Alma is contradicted by a written document,
       Pakideh has been caught in a number of misstatements, Pakideh waited
       years to explicitly deny the contention in A. Ahadi’s letters that he was
       entitled to 15%, Pakideh accepted A. Ahadi’s payment toward the 15%
       interest, and a manager of a Florida hotel that was owned by another
       Pakideh company testified that Pakideh promised him 15% of that company
       and reneged and that Pakideh confessed to him that A. Ahadi had been
       promised 15% of Alma. Additionally, Pakideh had failed to pursue an offer
       from a third party for purchase of the Bahia Mar at a price substantially in
       excess of what Pakideh claimed it was worth. Further, there was significant
       potential that a jury might be prejudiced against Pakideh and [his wife]

                                            3
      because of their tremendous wealth and the fact that the investment in the
      Bahia Mar had enjoyed tremendous appreciation.

             7. We did file a motion for summary judgment for Pakideh, [his wife]
      and Alma on the basis of the statute of limitations and the statute of frauds,
      but that motion was denied. In my opinion, the chance of sustaining those
      or any legal points in the appellate process was not good.

             8. In my opinion, Pakideh and Alma were facing serious exposure for
      $1,770,000 actual damages (15% of Alma’s value of $11.8 million
      established by A. Ahadi’s experts); a very large amount of prejudgment
      interest since this matter had been pending for many years, and possible
      exposure for A. Ahadi’s attorneys’ fees, punitive damages and mental
      anguish damages. Thus, the settlement of $ 1.75 million was an excellent
      settlement and almost certainly substantially less than Pakideh and Alma
      would have been forced to pay had the case not been settled. Pakideh, [his
      wife] and Alma knowingly and willingly accepted the settlement.

              9. A&G and I properly designated expert witnesses, properly
      prepared for trial, and did not force Pakideh and Alma to settle at all, much
      less for a sum of money more than they should have. A&G and I properly
      and fully advised Pakideh and Alma regarding their affirmative defenses,
      diligently represented them, did not fail to preserve their claims and rights,
      kept them fully informed, and fully and properly protected their interest. A&G
      and I were fully competent to handle this case and have handled a number
      of similar cases in the past. A&G and I did not neglect the Underlying Case
      and properly and completely carried out all obligations owed to Pakideh and
      Alma. A&G and I kept Pakideh and Alma fully informed about the status of
      the matter, promptly complied with reasonable requests for information, and
      explained all matters to Pakideh and Alma that were reasonably necessary
      to permit them to make informed decisions regarding their representation.
      A&G and I never made any false or misleading representations or
      communications to Pakideh and Alma, and did nothing that was dishonest,
      fraudulent, or deceitful. A&G and I did not misrepresent our expertise or the
      quality of our services in any respect.

      Pakideh and Alma filed a response and objections to the summary judgment motion

and to Pope’s affidavit. In particular, Pakideh and Alma objected that the no-evidence

motion was defective because it did not specify the elements of the claims for which there

was no evidence. See TEX . R. CIV. P. 166i(i). Furthermore, among other objections

discussed more fully below, Pakideh and Alma pointed out that Pope’s affidavit did not

state that it was based on his personal knowledge and that the facts stated were true and

                                            4
correct.

       The trial court held a hearing on the motion. Pope and A&G were granted leave to

amend the affidavit to state that the facts were within Pope’s personal knowledge and were

true and correct, which they did, but Pope and A&G declined the opportunity to amend the

no-evidence motion to refer to specific elements of Pakideh and Alma’s claims. After the

hearing, the trial court granted the motion for summary judgment without stating the

grounds for its ruling and without expressly ruling on any of Pakideh and Alma’s objections

to the motion or to the affidavit. This appeal ensued.

                                 II. STANDARDS OF REVIEW

       As noted above, the trial court’s order granting Pope and A&G’s motion for summary

judgment did not state the grounds for its rulings. Under these circumstances, we must

affirm the judgment if any of the grounds alleged in the motions were meritorious. W. Invs.,

Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). Different standards of review apply to

summary judgments granted on no-evidence and traditional grounds. See TEX . R. CIV. P.

166a(c), (i); see also Ortega v. City Nat’l Bank, 97 S.W.3d 765, 771 (Tex. App.–Corpus

Christi 2003, no pet.) (op. on reh’g).

       A no-evidence summary judgment is equivalent to a pretrial directed verdict, and we

apply the same legal sufficiency standard on review. Mack Trucks, Inc. v. Tamez, 206

S.W.3d 572, 582 (Tex. 2006); Ortega, 97 S.W.3d at 772. Once an appropriate motion for

no-evidence summary judgment is filed, the burden of producing evidence is entirely on

the non-movant; the movant has no burden to attach any evidence to the motion. TEX . R.

CIV. P. 166a(i). We may not consider any evidence presented by the movant unless it

creates a fact question. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Newkumet

v. Allen, 230 S.W.3d 518, 521 (Tex. App.–Eastland 2007, no pet.).

                                             5
         To defeat a no-evidence motion for summary judgment, the non-movant must

merely produce a scintilla of probative evidence to raise a genuine issue of material fact.

Ortega, 97 S.W.3d at 772. “Less than a scintilla of evidence exists when the evidence is

‘so weak as to do no more than create a mere surmise or suspicion of a fact.’” Id. (quoting

Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). More than a scintilla exists

when the evidence “rises to a level that would enable reasonable and fair-minded people

to differ in their conclusions.” Id. (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex.

1994)). In determining whether the non-movant has met its burden, we review the

evidence in the light most favorable to the non-movant, crediting such evidence if

reasonable jurors could and disregarding contrary evidence unless reasonable jurors could

not. Tamez, 206 S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.

2005).

         In contrast, we review the trial court’s grant of a traditional motion for summary

judgment de novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215

(Tex. 2003); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.–Corpus Christi 2003, no

pet.). When reviewing a traditional summary judgment, we must determine whether the

movant met its burden to establish that no genuine issue of material fact exists and that

the movant is entitled to judgment as a matter of law. TEX . R. CIV. P. 166a(c); Sw. Elec.

Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678 (Tex. 1979). The movant bears the burden of proof in a

traditional motion for summary judgment, and all doubts about the existence of a genuine

issue of material fact are resolved against the movant. See Sw. Elec. Power Co., 73

S.W.3d at 215. We take as true all evidence favorable to the nonmovant, and we indulge

every reasonable inference and resolve any doubts in the nonmovant’s favor. Valence

                                               6
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

       We will affirm a traditional summary judgment only if the record establishes that the

movant has conclusively proved its defense as a matter of law or if the movant has

negated at least one essential element of the plaintiff’s cause of action. IHS Cedars

Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); Am.

Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Clear Creek Basin, 589 S.W.2d

at 678. A matter is conclusively established if reasonable people could not differ as to the

conclusion to be drawn from the evidence. City of Keller, 168 S.W.3d at 816. Only when

the movant has produced sufficient evidence to establish its right to summary judgment

does the burden shift to the plaintiff to come forward with competent controverting

evidence raising a genuine issue of material fact with regard to the element challenged by

the defendant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

       When a party moves for summary judgment under both Rules 166a(c) and 166a(i)

of the Texas Rules of Civil Procedure, we will first review the trial court’s judgment under

the standards of Rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex.

2004). If the non-movant fails to produce more than a scintilla of evidence under that

burden, then there is no need to analyze whether the non-movant’s summary judgment

proof satisfies the less stringent Rule 166a(c) burden. Id.

                   III. NO -EVIDENCE MOTION FOR SUMMARY JUDGMENT

       By their first issue, Pakideh and Alma argue that the trial court erred in granting

Pope and A&G’s no-evidence motion for summary judgment because the motion failed to

comply with Texas Rule of Civil Procedure 166a(i)’s specificity requirement. See TEX . R.

CIV. P. 166a(i). Pope and A&G filed a hybrid motion for summary judgment, combining

                                             7
both no-evidence and traditional summary judgment grounds. After a background section

describing the lawsuit, the motion listed the allegations made by Pakideh and Alma as

follows:

       a.     Failure to properly designate expert witnesses.

       b.     Failure to properly prepare for trial.

       c.     Forcing the plaintiffs to settle for more than they should have.

       d.     Failure to advise the plaintiffs regarding their affirmative defenses.

       e.     Failure to diligently represent the plaintiffs.

       f.     Failure to preserve the plaintiffs’ claims and rights.

       g.     Failure to keep the plaintiffs informed.

       h.     Failure to protect the plaintiffs’ interest.

       i.     Neglecting a legal matter entrusted to them.

       j.     Failure to carry out competently the obligations they owed to the
              plaintiffs.

       k.     Failure to keep the plaintiffs reasonably informed.

       l.     Failure to explain the case to the plaintiffs to the extent necessary to
              permit them to make informed decisions regarding the representation.

       m.     Making false and misleading communications about their
              qualifications or services, including misrepresenting their qualifications
              and expertise to handle this matter.

       n.     Engaging in dishonesty, fraud, deceit or misrepresentation.

       Then, under a heading titled “POPE AND A&G ARE ENTITLED TO A NO[-

]EVIDENCE SUMMARY JUDGMENT,” the motion included the following argument, which

we quote in its entirety: “There is no evidence to support any of the claims of the plaintiffs

listed in part III above. The plaintiffs plead no other claims. Accordingly, the court must

grant this motion.”

                                               8
       Pakideh and Alma argue that they alleged claims for negligence, negligence per se,

and breach of fiduciary duty. They argue that the no-evidence motion did not state the

elements of these claims for which there was no evidence but, rather, challenged the

factual theories alleged in the lawsuit. In Garcia v. State Farm Lloyds, we held that “a

motion for no-evidence summary judgment that only generally attacks a factual theory,

without specifying the elements of the claims being attacked, is insufficient to support a no-

evidence summary judgment.” See 287 S.W.3d 809, 819 (Tex. App.–Corpus Christi 2009,

pet. denied) (citing Callaghan Ranch Ltd. v. Killam, 53 S.W.3d 1, 3-4 (Tex. App.–San

Antonio 2000, pet. denied)). We noted that Rule 166a(i)’s requirement is “clear“ and

phrased in mandatory language, requiring the movant to “‘be specific in challenging the

evidentiary support for an element of a claim or defense; paragraph (i) does not authorize

conclusory motions or general no-evidence challenges to an opponent's case.’” Id. (quoting

TEX . R. CIV. P. 166a cmt.). We held that State Farm’s motion in that case was defective

because it did not state the elements of the claims being challenged but instead, merely

“attacked one of the Garcias’ factual theories without specifying which elements the theory

allegedly supported.“ Id.

       Despite the plain language of Rule 166a(i) and our holding in State Farm Lloyds,

Pope and A&G argue that a “fair notice” standard similar to that found in Texas Rule of

Civil Procedure 45(b) and 47(a) should apply. Pope and A&G claim that as long as the

motion defines the issues and provides the opposing party with adequate information for

opposing the motion, the motion is adequate, even if it does not specify the elements of

the cause of action challenged. In a footnote in State Farm Lloyds, we rejected this very

argument, stating:


                                              9
              Generally, “Texas follows a ‘fair notice’ standard for pleading, which
       looks to whether the opposing party can ascertain from the pleading the
       nature and basic issues of the controversy and what testimony will be
       relevant.” Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex.
       2000). In other words, even though the pleading is not precise, if the
       responding party understood the allegations or the court, on review, can
       decipher the allegations, the pleading provided “fair notice.” See id.; see,
       e.g., 1994 Land Fund II v. Ramur, Inc., No. 05-98-00074-CV, 2001 WL
       92696, at *6 (Tex. App.–Dallas Feb. 05, 2001, no pet.) (not designated for
       publication) (reviewing factual assertions in no-evidence motion for summary
       judgment and assigning assertions to elements of non-movant’s claims by
       applying “fair notice” standard).

              However, Rule 166a(i) and the comments thereto make clear that,
       with respect to the elements of the non-movant’s claims being challenged,
       the movant must do more than provide “fair notice”—the movant “must” state
       the specific elements for which there is no evidence. TEX . R. CIV. P. 166a(i)
       & cmt. Even though by applying a “fair notice” standard, this Court could
       make an educated guess as to the elements being challenged, we decline
       to do so because: (1) the rule is clear as to its requirements and uses the
       mandatory term “must,” (2) it is relatively easy to state the elements of a
       claim for which there is no evidence, and (3) a proper motion shifts the
       burden to the non-movant to come forward with evidence. Applying a “fair
       notice” standard would place too great a burden on the non-movant and
       would be clearly contrary to the express language of Rule 166a(i). See
       Holloway v. Tex. Elec. Utility Constr., Ltd., No. 12-07-00427-CV, 2009 WL
       765304, at *5 (Tex. App.–Tyler Mar. 25, 2009, no pet. h.); Fieldtech Avionics
       & Instruments, Inc. v. Component Control.Com, Inc., 262 S.W.3d 813, 824
       n.4 (Tex. App.–Fort Worth 2008, no pet.); Mott v. Red’s Safe & Lock Servs.,
       Inc., 249 S.W.3d 90, 98 (Tex. App.–Houston [1st Dist.] 2007, no pet.);
       Michael, 41 S.W.3d at 751 n.3; Callaghan Ranch Ltd. v. Killam, 53 S.W.3d
       1, 3 (Tex. App.–San Antonio 2000, pet. denied).

Id. at 819 n. 5.

       Pope and A&G rely on Timpte Industries, Inc. v. Gish, decided by the Texas

Supreme Court after our decision in State Farm Lloyds. See 286 S.W.3d 306, 310-11 (Tex.

2009). In Timpte, the Texas Supreme Court reviewed the sufficiency of a no-evidence

motion and concluded that it satisfied the requirements of Rule 166a(i). Id. In doing so,

the court noted that the purpose of the specificity requirement in Rule 166a(i) is to allow



                                            10
the nonmovant to respond to the motion and to define the issues for summary judgment.

Id. The court noted that it had “analogized this purpose to that of the ‘fair notice’ pleading

requirements of Rules 45(b) and 47(a).” Id. at 311.

       The supreme court, however, did not state that a “fair notice” test replaces the

specific requirement in Rule 166a(i) that the challenged elements be set out in the motion.

Id. In fact, in Timpte, the motion set forth the elements of the claim being challenged—a

design defect products liability claim—and then argued that the “‘[p]laintiff has presented

no evidence of a design defect which was a producing cause of his personal injury’” and

that “‘[t]here is no evidence of the product being defective or unreasonably dangerous, and

there is no evidence the trailer was the proximate or producing cause of the Plaintiff's

injuries.’” Id. The issue in the case was whether these statements were clear enough to

require the plaintiff to produce evidence of a design defect that rendered the product

unreasonably dangerous, or if it merely required the plaintiff to produce evidence of

causation. Id. Thus, the “fair notice” language in the court’s opinion related to construction

of the movant’s description of the elements of the claim challenged; it does not authorize

us to ignore the plain language of rule 166a(i) when the motion does not set forth the

elements of the claim challenged at all. See id. Accordingly, we hold that Timpte did not

overrule our decision in State Farm Lloyds, which we now follow, and we treat A&G’s

arguments as traditional summary judgment grounds. State Farm Lloyds, 287 S.W.3d at

819 (citing Michael v. Dyke, 41 S.W.3d 746, 751-52 (Tex. App.–Corpus Christi 2001, pet.

denied)). We sustain Pakideh and Alma’s first issue.

                    IV. TRADITIONAL MOTION FOR SUMMARY JUDGMENT

       Next, Pakideh and Alma challenge the trial court’s ruling on Pope and A&G’s


                                             11
traditional motion for summary judgment. As the summary judgment movants, Pope and

A&G had the burden to either conclusively establish a defense to Pakideh and Alma’s

claims or conclusively negate at least one element of the claims. Mason, 143 S.W.3d at

798; Grinnell, 951 S.W.2d at 425; Clear Creek Basin, 589 S.W.2d at 678.

A.     Waiver

       Initially, we must address a waiver issue raised by Pope and A&G. Pope and A&G

argue that Pakideh and Alma’s appellate brief relies on only one factual theory addressed

by the summary judgment: that Pope and A&G failed to properly designate expert

witnesses, causing Pakideh and Alma to settle the first lawsuit for more than they would

have otherwise. Pope and A&G argue, therefore, that by failing to address the other

factual theories challenged by the traditional motion for summary judgment, Pakideh and

Alma have waived any error with respect to those theories, and we must affirm the trial

court’s summary judgment with respect to the unchallenged theories. We agree, in part.

       It is well established that when a trial court grants summary judgment, but its order

does not provide the trial court's reasoning, the appellant must negate all possible grounds

for the ruling on appeal:

       When, as here, the trial court does not specify the basis of its ruling, it is the
       appellant's burden on appeal to show that each of the independent grounds
       asserted in support of summary judgment is insufficient to support the
       judgment. If the appellant does not challenge one of the grounds for
       summary judgment, the judgment may be affirmed on that ground alone.

Humane Soc’y v. The Dallas Morning News L.P., 180 S.W.3d 921, 923 (Tex. App.–Dallas

2005, no pet.) (citing Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex. 1995)); see

Tex. Workers' Comp. Comm'n v. Patient Advocates, 136 S.W.3d 643, 648 (Tex. 2004); see

also Pisharodi v. Six, No. 13-07-019-CV, 2008 WL 3521330, at *3 (Tex. App.–Corpus


                                              12
Christi Aug. 7, 2008, no pet.) (mem. op.). In this case, Pakideh and Alma had the burden

to negate all possible grounds for the trial court’s ruling.

        As noted above, the motion for summary judgment listed all the factual theories

Pakideh and Alma alleged against Pope and A&G. The traditional motion for summary

judgment then argued that “none of the plaintiffs’ allegations are true or have merit.”2 In

their appellate brief, Pakideh and Alma argue that Pope and A&G failed to meet their initial

burden on the traditional motion for summary judgment because Pope’s affidavit was

defective in various respects. Pakideh and Alma specifically challenge statements in

Pope’s affidavit that dispute all of their factual theories, listed in the motion as the basis for

Pakideh and Alma’s claims, with the exception of the last two in the list: “Making false and

misleading communications about their qualifications or services, including misrepresenting

their qualifications and expertise to handle this matter” and “Engaging in dishonesty, fraud,

deceit or misrepresentation.” Pakideh and Alma do not address these factual theories

anywhere in their brief. Thus, because Pakideh and Alma have failed to challenge the trial

court’s ruling on these factual theories, we must affirm the summary judgment in this

regard. Humane Soc’y, 180 S.W.3d at 923.

B.      Pope’s Affidavit

        Pakideh and Alma argue that Pope’s affidavit, submitted in support of the traditional

motion for summary judgment, was defective in various respects and did not sustain Pope

and A&G’s burden as the summary judgment movant. First, Pakideh and Alma point to

conclusory statements by Pope, which they assert have no probative value. Second,



        2
        W hile the traditional m otion is vague and does not set forth the elem ents of the claim being attacked,
Pakideh and Alm a have not argued on appeal that the traditional m otion was defective in this regard.

                                                       13
Pakideh and Alma argue that the remainder of the affidavit is either immaterial or suffers

from other deficiencies.

        1.       Conclusory Statements

        Pakideh and Alma argue that the following statements in the ninth paragraph of

Pope’s affidavit were conclusory and are not entitled to any probative value:

•       “A&G and I properly designated expert witnesses, properly prepared for trial, and
        did not force Pakideh and Alma to settle at all, much less for a sum of money more
        than they should have.”3

•       “A&G and I properly and fully advised Pakideh and Alma regarding their affirmative
        defenses, diligently represented them, did not fail to preserve their claims or rights,
        kept them fully informed, and fully and properly protected their interest.”

•       “A&G and I did not neglect the Underlying Case and properly and completely carried
        out all obligations owed to Pakideh and Alma.”

•       “A&G and I kept Pakideh and Alma fully informed about the status of the matter,
        promptly complied with reasonable requests for information, and explained all
        matters to Pakideh and Alma that were reasonably necessary to permit them to
        make informed decisions regarding their representation.”

See Mariner Health Care of Nashville, Inc. v. Robins, No. 01-08-00830-CV, 2010 WL

2650558, at *8 (Tex. App.–Houston [1st Dist.] July 1, 2010, no pet.) (“Expert opinion

testimony that is conclusory or speculative does not tend to make the existence of a

material fact ‘more probable or less probable,’ and it is neither relevant nor competent.”)

(quoting Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex.

2004)). Pope and A&G counter that any objections to these statement were waived

because Pakideh and Alma failed to obtain a ruling on their objections in the trial court.


        3
           Pakideh and Alm a further argue that this statem ent violated Texas Rule of Civil Procedure 166a(f),
which requires that “[s]worn or certified copies of all papers or parts thereof referred to in an affidavit shall be
attached thereto or served therewith.” See T EX . R. C IV . P. 166a(f). Because of our holding, we need not
address this argum ent. T EX . R. A PP . P. 47.4 (“The court of appeals m ust hand down a written opinion that is
as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”).

                                                        14
We disagree.

        “Defects in the form of affidavits or attachments will not be grounds for reversal

unless specifically pointed out by objection by an opposing party with opportunity, but

refusal, to amend.” Id. An objection to the substance, as opposed to the form, of an

affidavit may be raised for the first time on appeal. Ceballos v. El Paso Health Care Sys.,

881 S.W.2d 439, 445 (Tex. App.–El Paso 1994, writ denied). “When the defect is one of

substance, the opposing party need not point out the defect because the trial court is not

required to give the party offering the affidavit an opportunity to amend.” Id.

        It is well established that an objection that an expert’s affidavit is conclusory is a

substantive defect that can be raised for the first time on appeal.4 “‘A conclusory statement

is one that does not provide the underlying facts to support the conclusion.’” Brown v.

Brown, 145 S.W.3d 745, 751 (Tex. App.–Dallas 2004, pet. denied) (quoting Choctaw

Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 242 (Tex. App.–Waco 2003, no pet.)). An

expert’s conclusory statements are insufficient to support a summary judgment because

they are not credible or susceptible to being readily controverted. Franks v. Roades, 310

S.W.3d 615, 623 (Tex. App.–Corpus Christi 2010, no pet.). “‘An expert's opinion can

defeat a claim as a matter of law, . . . [b]ut it is the basis of the witness's opinion, and not

the witness's qualifications or his bare opinions alone, that can settle an issue as a matter

of law. . . .’” Id. (quoting Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999)). In sum, an

expert in a professional malpractice case cannot merely state his opinion and then


        4
         Franks v. Roades, 310 S.W .3d 615, 623 n.4 (Tex. App.–Corpus Christi 2010, no pet.); Brown v.
Brown, 145 S.W .3d 745, 751 (Tex. App.–Dallas 2004, pet. denied); McMahan v. Greenwood, 108 S.W .3d 467,
498 (Tex. App.–Houston [14th Dist.] 2003, pet. denied); Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W .3d
235, 241 (Tex. App.–W aco 2003, no pet.); Cain v. Rust Indus. Cleaning Servs., Inc., 969 S.W .2d 464, 467
(Tex. App.–Texarkana 1998, pet. denied).

                                                    15
conclude that the standard of care has not been met. Id. Rather, the expert must state the

basis for his opinions, and why he reached the conclusions, for those conclusions to have

any probative force. Id.

       Pope’s statements are nothing more than categorical denials of the allegations in

Pakideh and Alma’s petition. Essentially, Pope’s affidavit recited the allegations in Pakideh

and Alma’s petition, and then stated the allegations in the negative. For example, Pope

states that he and A&G “properly” designated witnesses and “properly” prepared for trial.

Pope does not provide the factual basis for these conclusions—he does not identify the

deadline to designate witnesses in the case and the dates that he designated his

witnesses, which would have substantiated his conclusion, nor does he state what actions

he took to prepare for trial. Id. Pope’s statement that he and A&G “did not neglect the

Underlying Case and properly and completely carried out all obligations owed to Pakideh

and Alma” suffers the same infirmity—it does not set forth the standard for judging an

attorney’s negligence or the facts that allowed Pope to conclude that his and A&G’s

conduct did not violate that standard. Id. at 624. We hold that the challenged statements

were conclusory and without any probative value; therefore, Pope and A&G’s traditional

summary judgment was improper to the extent it was based on this evidence. Id.

       2.     Remaining Immaterial Statements

       Pakideh and Alma argue that the remainder of the affidavit does not touch upon or

contradict Pakideh and Alma’s claims and, therefore, does not support the traditional

summary judgment. We agree.

       In cases of litigation malpractice, the disappointed plaintiff must prove that but for

his lawyer’s negligence in the prior suit, the suit would have been won, and the amount that



                                             16
would have been collectable on the judgment that should have been obtained. Ballesteros

v. Jones, 985 S.W.2d 485, 489 (Tex. App.–San Antonio 1998, pet. denied). “This is

commonly referred to as the ‘suit within a suit’ requirement.” Id. In this case, however,

Pakideh and Alma were the defendants in the underlying case, and they do not allege that

they would have won the suit but for Pope and A&G’s defective representation; rather, they

argue that Pope and A&G’s actions increased the settlement value of the case. In cases

such as this, “the real question is whether the value of the underlying lawsuit changed as

a result of the alleged negligence.” See Stonewall Surplus Lines Ins. Co. v. Drabek, 835

S.W.2d 708, 712 (Tex. App.–Corpus Christi 1992, writ denied) (en banc).

       The first four numbered paragraphs of Pope’s affidavit merely recite the factual

background of the initial lawsuit against Pakideh and Alma. These paragraphs do nothing

to undermine Pakideh and Alma’s claims against Pope and A&G. The fifth, sixth, seventh,

and eighth paragraphs state Pope’s opinions about why Pakideh and Alma were likely to

lose in a jury trial on liability. Finally, Pope claims that Pakideh and Alma would have been

exposed to approximately $1,700,000 in actual damages, which Pope states is “15% of

Alma’s value of $11.8 million established by A. Ahadi’s experts.” He further states that

Pakideh was facing a very large amount of prejudgment interest “since this matter had

been pending for many years,” and possible exposure for attorney’s fees, punitive

damages, and mental anguish damages. Thus, Pope concludes, “the settlement of $1.75

million was an excellent settlement and almost certainly substantially less than Pakideh

and Alma would have been forced to pay had the case not been settled.”

       While Pope’s averments tend to show that a jury would have found Pakideh and

Alma were liable to Ahadi in the underlying case, the affidavit does nothing to show that



                                             17
Pope’s representation did not affect the extent of that liability or the settlement value of the

case. See id. Accordingly, we hold that Pope and A&G did not sustain their summary

judgment burden to negate an element of Pakideh and Alma’s claims. Because Pope and

A&G did not conclusively negate an element of the claims, the burden never shifted to

Pakideh and Alma to raise a fact issue,5 and the trial court erred in granting the traditional

summary judgment. We sustain Pakideh and Alma’s second issue and reverse the trial

court’s order granting summary judgment.

                                              V. CONCLUSION

       For the foregoing reasons, we affirm, in part, and reverse and remand, in part.

Because Pakideh and Alma did not challenge the summary judgment on their factual

theories of false and misleading communications, dishonesty, fraud, deceit or

misrepresentation, the summary judgment is affirmed as to those factual theories.

However, in all other respects, the summary judgment is reversed, and the case is

remanded for proceedings consistent with this opinion.



                                                               _______________________________
                                                               GINA M. BENAVIDES,
                                                               Justice

Delivered and filed the
30th day of September, 2010.




       5
           For this reason, we need not address Pakideh and Alm a’s third issue. T EX . R. A PP . P. 47.4.

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