                                  MEMORANDUM OPINION
                                           No. 04-11-00122-CV

                                           Nancy K. ALANIS,
                                               Appellant

                                                      v.

           Edward F. VALDESPINO, Strasburger & Price, LLP, & Artemio A. Alanis, Jr.,
                                       Appellees

                    From the 288th Judicial District Court, Bexar County, Texas
                                 Trial Court No. 2008-CI-07570
                      Honorable David A. Berchelmann, Jr., Judge Presiding 1

Opinion by:      Steven C. Hilbig, Justice

Sitting:         Catherine Stone, Chief Justice
                 Sandee Bryan Marion, Justice
                 Steven C. Hilbig, Justice

Delivered and Filed: May 23, 2012

AFFIRMED IN PART; REVERSED IN PART

           Nancy K. Alanis sued Edward F. Valdespino and Strasburger & Price, LLP, asserting

seven claims based on allegations that she was wrongfully deprived of payment of a portion of

the proceeds awarded in a separate condemnation proceeding. Nancy also sued Artemio A.

Alanis, Jr. for fraud and conversion based on the same allegations. Two claims were dismissed

1
 The Honorable Renée F. McElhaney signed the order granting the partial summary judgment as to the professional
malpractice, negligence, and gross negligence claims. The Honorable Johnny D. Gabriel, Jr. signed the order
granting the special exceptions as to the breach of contract and breach of fiduciary duty claims. The Honorable
David A. Berchelmann, Jr. signed the order denying the motion to amend pleadings and the final summary judgment
as to the remaining claims.
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when Nancy failed to timely amend her pleadings after the trial court granted special exceptions,

and summary judgment was granted as to the remaining claims. We reverse the summary

judgment as to Nancy’s claim against Artemio for conversion, and we affirm the remainder of

the trial court’s judgment.

                                         BACKGROUND

       Nancy and Artemio were divorced in 1993.          Although the divorce decree awarded

Artemio ownership of a certain tract of land located on Eckhert Road, the property description in

the divorce decree was defective, and the divorce decree was not recorded in the real property

records. As a result, when a school district sought to acquire the property by eminent domain,

the condemnation proceeding was filed against Nancy and Artemio as joint owners.

       Nancy contends that Artemio was not satisfied with the school district’s offer of

$160,000 and requested her assistance to sell the property for a greater amount.        Artemio

allegedly agreed to pay Nancy any amount she was able to obtain in excess of $160,000.

Ultimately, a panel of special commissioners awarded Nancy and Artemio $230,000 in damages

and $5,500 in costs. The commissioners’ award was signed on February 19, 2003, and the

money was deposited into the registry of the court.

       On March 12, 2004, Valdespino filed a notice of appearance on behalf of Nancy and

Artemio. Valdespino then filed a motion to withdraw the funds. The trial court signed an order

on April 12, 2004, disbursing $230,500 of the proceeds, but retained $5,000 until a judgment lien

against the property was released. The check for the disbursement was made payable to Nancy

and Artemio and was deposited into Strasburger & Price’s trust account. In June of 2004,

Strasburger & Price issued a check payable to Nancy and Artemio in the amount of $55,000, and

in February of 2005, Strasburger & Price issued a check payable to Nancy and Artemio in the



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amount of $90,000. 2        Both checks contain two endorsements; however, Nancy alleges her

signature was forged. The checks were deposited into Artemio’s bank account.

        Nancy sued Valdespino and Strasburger & Price for breach of fiduciary duty, breach of

contract, fraud, negligence, gross negligence, groundless legal action, and professional

malpractice. Nancy also sued Artemio for fraud and conversion. Pursuant to a discovery control

plan order, the deadline for Nancy to amend her pleadings was February 23, 2010, the deadline

for Nancy to designate expert witnesses was April 12, 2010, and the discovery deadline was July

16, 2010. The discovery deadline was subsequently extended to January 17, 2011.

        On September 13, 2010, Valdespino and Strasburger & Price filed a motion for

traditional and no evidence summary judgment. With regard to Nancy’s negligence, gross

negligence and professional malpractice claims, the motion asserted that no evidence existed to

show: (1) the alleged conduct fell below the applicable standard of professional care; (2) the

alleged conduct violated any duty or obligation owed to Nancy; and (3) any alleged act or

omission was a cause in fact of injury or damage to Nancy. The trial court granted a partial

summary judgment as to those claims on October 26, 2010.

        On November 8, 2010, Valdespino and Strasburger & Price filed special exceptions with

regard to Nancy’s breach of fiduciary duty and breach of contract claims. The trial court granted

the special exceptions and ordered Nancy to amend her pleadings by November 29, 2010, or

those claims would be dismissed. On December 14, 2010, Nancy filed a motion for leave to

amend her pleadings; however, the trial court denied the motion.

        On January 6, 2011, Valdespino and Strasburger & Price filed a second motion for

traditional and no evidence summary judgment, which Artemio joined. With regard to Nancy’s

2
 Because Nancy only alleged entitlement to either: (1) $75,500 (the amount of the condemnation award in excess of
$160,000); or (2) $115,250 (one-half the condemnation award), we do not address the disbursement of the remaining
balance in the trust account since the two checks made jointly payable to Nancy and Artemio total $145,000.

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fraud claim, the motion asserted: (1) that Nancy endorsed the checks that were jointly payable to

her and Artemio or, in the event her signature was forged, a criminal act was a superseding cause

of her injuries; and (2) the fraud claim was barred by res judicata. With regard to Nancy’s

“groundless pleading” claim, the motion asserted that the pleading was not groundless since the

trial court entered a judgment nunc pro tunc based on the pleading or, alternatively, the trial court

in the underlying cause had no jurisdiction to consider the claim because it should have been

filed in the divorce proceeding in which the alleged “groundless” pleading was filed. In addition

to joining Valdespino and Strasburger & Price’s motion, Artemio filed a no-evidence motion for

summary judgment as to the fraud and conversion claims asserted against him. Both motions

were heard on February 1, 2011, and the trial court signed a final judgment, granting the

summary judgment as to the remaining claims. Nancy timely filed this appeal.

                          MOTION FOR LEAVE TO AMEND PLEADINGS

       In her first issue, Nancy contends the trial court erred in denying her motion for leave to

amend her pleadings. Nancy filed the motion on December 14, 2010, seeking to amend her

pleadings in response to the trial court’s order granting special exceptions.           The special

exceptions were filed on November 8, 2010, asserting that Nancy’s breach of fiduciary duty and

breach of contract claims were an impermissible attempt to fracture a professional negligence

case into multiple causes of action.      The trial court signed its order granting the special

exceptions on November 16, 2010, and ordered Nancy to amend her pleadings by November 29,

2010, or the claims would be dismissed.

       In her motion for leave to amend her pleadings, Nancy asserted that both the special

exceptions and the trial court’s order were placed in the wrong post office box, and she did not

receive the documents until December 1, 2010. Nancy’s motion, however, only addresses her



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breach of fiduciary duty claim, arguing that it is independent from a professional negligence

claim. Valdespino and Strasburger & Price filed a response to the motion, attaching excerpts

from Nancy’s April 2009 deposition, in which she testified that she routinely had problems not

getting her mail at her post office box. The trial court denied Nancy’s motion.

         In her brief, Nancy argues the trial court should have granted her motion for leave to

amend her pleadings because she did not timely receive the documents. 3 However, Nancy fails

to explain the reason she waited fourteen days to file her motion after she admits receiving the

trial court’s order which contained a November 29, 2010, deadline. Moreover, the trial court’s

order denying her motion does not state that the motion was denied based on Nancy’s failure to

timely file the amended pleading. The trial court could have determined that Nancy’s motion

failed to demonstrate that her amended breach of fiduciary duty claim allegations were

independent from her professional negligence claim. See Greathouse v. McConnell, 982 S.W.2d

165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (plaintiff not allowed to fracture

legal malpractice claim). Because Nancy fails to brief how such a ruling would have been an

abuse of the trial court’s discretion, we cannot conclude the trial court’s denial of her motion was

erroneous.

                                              SUMMARY JUDGMENT

         In her second issue, Nancy argues that Valdespino’s affidavit and admissions in response

to discovery contain false statements; however, Nancy fails to address how these statements, if

false, made summary judgment on any of her claims erroneous. Nancy’s argument alludes to the

res judicata and collateral estoppel grounds raised in one of the summary judgment motions and

conflicting orders on the issue of “remaining funds,” but fails to explain how the allegedly false

3
  Nancy also argues that the trial court erred in striking the affidavit of the post office manager regarding the delay in
the mail delivery. Because we overrule Nancy’s issue for other reasons, we need not address whether the trial court
erred in striking the affidavit.

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statements resulted in error. In her third issue, Nancy contends the trial court erred in failing to

give weight to her affidavit. In arguing this issue, Nancy asserts her affidavit established fact

issues precluding summary judgment and alludes to her fraud, conversion, and breach of contract

claims. In her fourth issue, Nancy asserts summary judgment would not have been proper on the

grounds of res judicata or collateral estoppel because the condemnation proceeding was non-

suited. In her fifth issue, Nancy contends summary judgment was improper on her “groundless

pleading” claim without giving her the opportunity to amend her pleading. Finally, Nancy

contends a no evidence summary judgment was improper because the summary judgment was

granted before the amended discovery deadline. We construe these issues as a general challenge

to the trial court’s granting of summary judgment as to each of Nancy’s claims with the

exception of her breach of contract and breach of fiduciary duty claims which were dismissed

because Nancy failed to timely amend her pleadings after special exceptions were granted.

       We review a summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d

656, 661 (Tex. 2005). We will affirm a traditional summary judgment only if the movant

established there are no genuine issues of material fact and it is entitled to judgment as a matter

of law on the grounds expressly set forth in the motion. Browning v. Prostok, 165 S.W.3d 336,

344 (Tex. 2005). We will affirm a judgment based on a no-evidence motion if the non-movant

failed to present more than a scintilla of probative evidence to raise a genuine issue of material

fact on the challenged element. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

In our review, we take as true all evidence favorable to the nonmovant, and we indulge every

reasonable inference and resolve any doubts in the evidence in favor of the nonmovant. Science

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).




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       A.      Professional Malpractice/Negligence/Gross Negligence

       One of the grounds asserted in the motion for summary judgment pertaining to Nancy’s

claims for professional malpractice, negligence and gross negligence was that no evidence

existed that the alleged conduct fell below the applicable standard for professional care. “In

Texas, a lawyer is held to the standard of care that would be exercised by a reasonably prudent

attorney.” Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex. App.—San Antonio 1995, writ

denied). Accordingly, expert testimony of an attorney is necessary to establish the applicable

standard of care and whether the standard of care was breached. See Zenith Star Ins. Co. v.

Wilkerson, 150 S.W.3d 525, 530 (Tex. App.—Austin 2004, no pet); Jatoi v. Decker, Jones,

McMackin, Hall & Bates, 955 S.W.2d 430, 434 (Tex. App.—Fort Worth 1997, pet. denied);

Hall, 911 S.W.2d at 424.

       In response to the no evidence motion, Nancy failed to produce any expert testimony.

Although Nancy contends in her brief that the discovery deadline, as extended by the amended

docket control order, had not passed, the deadline for Nancy to designate expert witnesses had

expired by approximately five months before the motion was filed. Accordingly, the trial court

did not err in granting summary judgment as to these claims.

       B.      Groundless Legal Action

       In her “groundless legal action” claim, Nancy contends she was damaged by the untimely

filing of a motion to enter a nunc pro tunc judgment in the divorce proceeding. In the motion for

summary judgment, the following grounds were asserted with regard to this claim: (1) a motion

for a nunc pro tunc is never barred by the passage of time; (2) the motion could not be

groundless since the trial court granted it in the divorce proceeding; and (3) the trial court in the




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instant proceeding did not have jurisdiction to consider whether a motion in the divorce

proceeding was frivolous.

        It is “well-settled law that the non-movant is required to negate on appeal any grounds

upon which the trial court could have rendered judgment.” Flack v. Hanke, 334 S.W.3d 251, 259

(Tex. App.—San Antonio 2010, pet. denied). “Absent such action by the non-movant, an

appellate court will affirm the summary judgment if any one of the theories advanced is

meritorious.” Id.

       In her brief, Nancy contends summary judgment was improper as to her groundless legal

action claim because: (1) the pleading was evidence of Valdespino’s fraudulent acts; (2) the

judgment nunc pro tunc clouded her title to other property; and (3) summary judgment was

improper based on a pleading deficiency. Accordingly, Nancy’s brief does not address any of

the grounds which were asserted as the basis for summary judgment as to Nancy’s claim;

therefore, we determine if any of the grounds advanced was a proper basis for granting the

summary judgment.

       In Mantri v. Bergman, the issue presented was whether a claim under chapter 10 of the

Texas Civil Practice and Remedies Code for sanctions for frivolous litigation could be brought in

an independent lawsuit. 153 S.W.3d 715, 716-17 (Tex. App.—Dallas 2005, pet. denied). The

trial court dismissed the claim for lack of jurisdiction. Id. The Dallas court of appeals affirmed,

holding, “a motion for sanctions for frivolous litigation under chapter 10 must be tied to the

allegedly frivolous litigation and cannot be brought as an independent cause of action.” Id.

       In Greene v. Young, one of the issues presented was whether the trial court had

jurisdiction to order sanctions in a family law case based on a motion filed in federal bankruptcy

court. 174 S.W.3d 291, 294 (Tex. App.—Houston [1st Dist.] 2005, pet. denied). The trial court



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imposed sanctions, and the appellate court reversed, holding the trial court in the family law case

was without jurisdiction to impose Rule 13 sanctions based on the bankruptcy court filing. Id. at

302-03. The court reasoned, “[A]ny motion for sanctions seeking to have a filing in a federal

bankruptcy court declared groundless, harassing, frivolous, or similarly so, should be brought in

the bankruptcy court.” Id. at 302.

       Although Nancy sought to recover damages as opposed to sanctions based on her

groundless legal action claim, we believe the analysis in Mantri and Greene is applicable. A

claim that a pleading filed in a court is groundless must be asserted in the cause in which the

pleading is filed not as a separate cause of action in a different lawsuit. Accordingly, the trial

court could have properly granted summary judgment as to this claim on the basis that the trial

court lacked jurisdiction to consider it.

       C.      Fraud

       A party must prove proximate cause and damages to recover on a fraud claim. See T.O.

Stanley Boot Co. v. Bank of El Paso, 847 S.W.2d 218, 222 (Tex. 1992); S & I Mgmt., Inc. v.

Choi, 331 S.W.3d 849, 856 (Tex. App.—Dallas 2011, no pet.). With regard to Nancy’s fraud

claim, the summary judgment motion initially asserted the absence of damages as a matter of

law. In support of this ground, evidence was presented that two checks were made jointly

payable to Nancy and Artemio which were endorsed with two signatures. Nancy testified in her

deposition that she would not have suffered any damages if she had received the checks.

However, Nancy also testified that her signatures on the checks were forged.

               1.      Superseding Cause

       Anticipating Nancy’s allegation of forgery, the summary judgment motion alternatively

asserted that any forgery would be a superseding cause of Nancy’s damages. As previously



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noted, proximate cause is one element of a fraud claim. S & I Mgmt., Inc., 331 S.W.3d at 856.

The components of proximate cause are cause in fact and foreseeability. Doe v. Boys Clubs of

Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995). Generally, third-party criminal conduct

is a superseding cause of damage unless the criminal conduct is a foreseeable consequence of the

party’s actions.   See Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 550 (Tex. 1985).

Foreseeability means the actor should anticipate the dangers a person of ordinary intelligence

would anticipate. Nixon, 690 S.W.3d at 549-50.

       In her deposition, Nancy testified that the only person who could have forged her

signature was Artemio. Valdespino states in his affidavit that he had no basis for believing that

Artemio would forge Nancy’s name on the joint check. Nancy offered no summary judgment

evidence to controvert this statement, and the summary judgment evidence does not raise any

fact issue in this regard. Accordingly, the trial court properly granted summary judgment in

favor of Valdespino and Strasburger & Price with regard to Nancy’s fraud claim. However,

because the summary judgment evidence raises a fact issue as to whether Artemio is liable for

fraudulently endorsing Nancy’s signature on the joint checks, summary judgment was not proper

as to Artemio on this ground.

              2.      Res Judicata

       Prior to conclusion of the condemnation proceeding through a non-suit, Nancy filed in

that proceeding a “Response to Hearing to Dismiss and Motion to Request Court to Award and

Distribute Remaining Eminent Domain Funds before Dismissing Case and Motion for

Sanctions” on April 15, 2008. In this motion, Nancy asserted claims relating to her alleged

agreement with Artemio regarding her right to the portion of the condemnation proceeds in

excess of $160,000. Nancy’s motion also alleged the following:



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       3.9 On or about 2004 and without notice to Nancy K. Alanis of the same,
       Artemio A. Alanis, Jr. withdrew the approximate $240,000 eminent domain funds
       from the Bexar County Court Registry and a balance of approximately $5,300
       remained in the Court Registry and still remains through April 2008;

       3.10 Following the withdrawal of the approximate $240,000 in eminent domain
       funds, Artemio A. Alanis, Jr. never provided any distribution of said funds to
       Nancy K. Alanis as agreed nor did he disclose to Nancy K. Alanis the existence of
       the $5,300 balance of said Eminent Domain funds remaining in the Bexar County
       Court Registry;

Nancy’s motion then alleged a claim for fraud and a claim for conspiracy based on various

actions taken by Artemio in relation to the condemnation proceeds. At the time Nancy filed her

motion in April 2008 in the condemnation proceeding, the court order directing the distribution

of the $240,000 in proceeds payable to both Nancy and Artemio had been on file for four years.

       Res judicata bars assertion of a claim in a subsequent case when (1) there is a prior final

determination on the merits by a court of competent jurisdiction; (2) the parties in the second

action are the same or in privity with those in the first action; and (3) the second action is based

on the same claims as were raised or could have been raised in the first action. Travelers Ins.

Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). Res judicata precludes the relitigation of

claims that were finally adjudicated “as well as related matters that, with the use of diligence,

should have been litigated in the prior suit.” Barr v. Resolution Trust Corp., 837 S.W.2d 627,

628 (Tex. 1991). Texas follows the transactional approach to res judicata barring claims arising

out of the transaction or occurrence that is the subject matter of the first suit. State & Cnty. Mut.

Fire Ins. Co. v. Miller, 52 S.W.3d 693, 696 (Tex. 2001). As the Texas Supreme Court has

explained, “[m]odern rules of procedure obviate the need to give parties two bites at the apple …

to ensure that a claim receives full adjudication.” Barr, 837 S.W.2d at 631.

       At the time Nancy filed her motion in the condemnation proceeding, she knew that

$240,000 of the proceeds had been withdrawn, and she had not been paid. In her motion, Nancy

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asserted a claim for fraud against Artemio in relation to this transaction or occurrence. In her

affidavit, Nancy states that at the time she filed the motion, she was unaware of the trial court’s

order directing the disbursement of the proceeds to Nancy and Artemio jointly; therefore, she did

not make specific fraud allegations in her motion pertaining to the trial court’s order. However,

the court’s order was a public record which was on file for four years and which Nancy could

have discovered with the use of diligence. See Barr, 837 S.W.2d at 628 (stating res judicata bars

related matters that, with the use of diligence, should have been litigated in prior suit). Finally,

the trial court in the condemnation proceeding heard the merits of Nancy’s motion and denied it.

Because a final determination on the merits of Nancy’s fraud claim relating to the disbursement

of the condemnation proceeds was made in the condemnation proceeding, Nancy is not entitled

to relitigate her fraud claim against Artemio in the underlying cause. Accordingly, the trial court

properly granted summary judgment on that claim based on res judicata.

       D.      Conversion

       The only summary judgment motion pertaining to Nancy’s conversion claim is Artemio’s

no-evidence motion for summary judgment. In his motion, Artemio asserts that Nancy could not

produce any evidence to support any of the following elements necessary to maintain an action

for conversion: “(1) [Nancy] owned, possessed or had the right of immediate possession to the

property; (2) the property was personal property; (3) [Artemio] wrongfully exercised dominion

or control over the property; and (4) [Nancy] suffered injury.” See Akin v. Santa Clara Land

Co., Ltd., 34 S.W.3d 334, 344 (Tex. App.—San Antonio 2000, pet. denied) (listing elements of

conversion claim). The summary judgment evidence before the trial court at the hearing on

Artemio’s motion included the two checks from Strasburger & Price jointly payable to Nancy

and Artemio which were delivered to Artemio. In her affidavit and in her deposition, Nancy



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testified that no Strasburger & Price checks were delivered to her or endorsed by her. Nancy

also testified in her deposition that she notified Artemio after she discovered her signature had

been forged on the two checks. This evidence is more than a scintilla of probative evidence on

the elements of Nancy’s conversion claim challenged in Artemio’s motion. See Ford Motor Co.,

135 S.W.3d at 600. Checks jointly payable to Nancy and Artemio were delivered to Artemio

and deposited or cashed, and Nancy states in her affidavit and deposition that she did not endorse

the checks.   Accordingly, summary judgment was not proper as to Nancy’s claim against

Artemio for conversion.

                                             CONCLUSION

       The trial court’s judgment is reversed as to Nancy’s claim against Artemio for

conversion, and that claim is remanded to the trial court for further proceedings. The remainder

of the trial court’s judgment is affirmed.

                                                         Steven C. Hilbig, Justice




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