                                 NO. 07-08-0340-CV

                            IN THE COURT OF APPEALS

                     FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL C

                                 FEBRUARY 10, 2009

                         ______________________________


                         EMILIO CHAVEZ, JR., APPELLANT

                                          V.

                          CYNTHIA GALE HILL, APPELLEE

                       _________________________________

            FROM THE 72ND DISTRICT COURT OF LUBBOCK COUNTY;

              NO. 2007-540,380; HONORABLE RUBEN REYES, JUDGE

                        _______________________________

Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                              MEMORANDUM OPINION


      Appellant, Emilio Chavez, Jr., proceeding pro se and in forma pauperis, appeals

from the trial court’s order granting Cynthia Gale Hill’s no-evidence motion for summary
judgment in his action against her for legal malpractice and violations of the Deceptive

Trade Practices–Consumer Protection Act (DTPA).1 We affirm.


                                      Procedural Background


       On April 27, 2006, pursuant to a guilty plea, Chavez was convicted of theft and

sentenced to five years confinement. His court-appointed counsel was Hill. Later that

year, while Chavez was incarcerated, he filed a complaint in the United States District

Court for the Northern District of Texas against several defendants, including Hill, alleging,

among other claims, ineffective assistance of counsel and deprivation of liberty and

property without due process of law. On December 22, 2006, the trial court signed an

order which dismissed, as frivolous, all of Chavez’s claims against Hill.


       The following year, Chavez filed the underlying suit against Hill alleging legal

malpractice and violations of the DTPA. Specifically, Chavez alleged that Hill breached her

fiduciary duties and standard of care by fraud, misrepresentation, forgery, deception, and

coercion. Chavez further alleged that Hill’s wrongful acts caused him to suffer “damages

in excess of $100 million U.S. dollars.”


       By a special denial contained within her amended answer, Hill contended that,

under § 17.49(c) of the DTPA, she was exempt from a claim for damages based upon the

rendering of a professional service. She also raised the affirmative defense of res judicata


       1
           Tex. Bus. & Com . Code Ann. § 17.41 (Vernon 2002).

                                                    2
based upon the final order rendered in Chavez’s case filed in the United States District

Court.


         After a deluge of paperwork from Chavez and adequate time for discovery, Hill filed

a no-evidence motion for summary judgment. By her motion, she alleged there was no

evidence of one or more of the elements of Chavez’s claims of legal malpractice, breach

of fiduciary duty, fraud, misrepresentation, forgery, deceit, and coercion. She also alleged

that Chavez did not present any evidence entitling him to relief under the DTPA. Finally,

Hill raised the affirmative defense of res judicata.2


         Chavez filed an objection to Hill’s no-evidence motion and, because of his

incarceration, requested the trial court to take judicial notice of exhibits previously filed with

his brief in support of his suit.3             Those exhibits include motions, correspondence,

documents relating to his guilty plea in the theft case, unanswered interrogatories to Hill,

and Chavez’s “Affidavit of Forgery and Pleas non est factum an Alteration.” After reviewing

the evidence, the trial court signed an order granting Hill’s no-evidence motion and

dismissing all of Chavez’s claims. This appeal followed.4


         2
          Although an affirm ative defense is better raised under a separate “traditional” m otion for sum m ary
judgm ent filed pursuant to Rule 166a(b) of the Texas Rules of Civil Procedure, the rules of procedure do not
prohibit a party from com bining in a single m otion a request for sum m ary judgm ent that contains both
traditional and no-evidence grounds. See Binur v. Jacobo, 135 S.W .3d 646, 651 (Tex. 2004).

         3
          There is nothing in the record to indicate the trial court actually took judicial notice of exhibits filed
prior to Chavez’s objection to Hill’s no-evidence sum m ary judgm ent m otion.

         4
           Two supplem ental clerk’s records containing docum ents that were not before the trial court at the
tim e it m ade its ruling have been filed in this Court. However, an appellate court is required to review a trial
court’s ruling in light of what was before the trial court at the tim e the ruling was m ade. Hoyos v. State, 982

                                                         3
        After the appellate record was filed, on October 16, 2008, Chavez filed his brief and

this Court acknowledged the filing by letter to both parties the following day. On October

21, 2008, this Court received a letter from Hill in which she indicated she received the

Court’s notification letter but had not been served with a copy of Chavez’s brief. This Court

immediately notified Chavez of the defect and requested proof of service. In response, on

October 31, 2008, Chavez filed “Appellant’s Amended Brief,” which was provided to Hill.

Again Chavez was notified by letter that the amended brief superceded his original brief.

Hill timely filed her brief on December 8, 2008, and on January 7, 2009, Chavez filed a

request to rebrief, which was denied. Chavez then filed a “Memorandum of Closing

Statements” on January 16, 2009, and this Court notified him that briefing deadlines had

passed and no further filings would be considered.


                         Summary Judgment Standards of Review


        I.      Affirmative Defense - Res Judicata


        A defendant who moves for summary judgment on the basis of an affirmative

defense has the burden to prove conclusively all the elements of the affirmative defense

as a matter of law. KPMG Peat Marwick v. Harrison County Hous. Fin. Corp, 988 S.W.2d

746, 748 (Tex. 1999). The doctrine of res judicata is an affirmative defense. Tex. R. Civ.

P. 94. In reviewing the evidence, we take as true the non-movants’ summary judgment


S.W .2d 419, 422 (Tex.Crim .App. 1998). This Court’s opinion is not based on any docum ents that were not
before the trial court when it signed the sum m ary judgm ent order.

                                                   4
evidence and indulge every reasonable inference in favor of the non-movant. See

American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997), citing Nixon v.

Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985).


       II.    No-Evidence Motion for Summary Judgment


       A no-evidence motion for summary judgment is essentially a motion for a pretrial

directed verdict. See Merrell Dow Pharms, Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997). In a no-evidence summary judgment motion, the movant contends there is no

evidence of one or more essential elements of the claims for which the non-movant would

bear the burden of proof at trial. Tex. R. Civ. P. 166a(i). Once the motion is filed, the

burden shifts to the non-movant to present evidence raising an issue of material fact as to

the elements specified in the motion. The trial court must grant the motion unless the non-

movant produces more than a scintilla of evidence raising a genuine issue of material fact

on the challenged elements. See Morgan v. Anthony, 27 S.W.3d 928, 929 (Tex. 2000).

The non-moving party is “not required to marshal its proof; its response need only point out

evidence that raises a fact issue on the challenged elements.” Tex. R. Civ. P. 166a(i),

Notes and Comments (1997). We review the summary judgment evidence in the light

most favorable to the party against whom summary judgment was rendered, crediting

evidence favorable to that party if reasonable jurors could, and disregarding contrary

evidence unless reasonable jurors could not. See Hamilton v. Wilson, 249 S.W.3d 425,

426, (Tex. 2008), citing City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). See


                                             5
also Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). When the judgment

does not specify the ground relied on, we will affirm the summary judgment if any of the

theories advanced in the motion are meritorious. Western Investments, Inc. v. Urena, 162

S.W.3d 547, 550 (Tex. 2005)


                                        Discussion


       I.     Affirmative Defense - Res Judicata


       Res judicata, or claim preclusion, “gives a plaintiff one bite at the cause of action

apple.”     Weiman v. Addicks-Fairbanks Road Sand Co., 846 S.W.2d 414, 418

(Tex.App.–Houston [14th Dist.] 1992, writ denied). If the defendant wins the original suit,

then the plaintiff is barred from bringing another action on the claims actually litigated in

the action, as well as claims that could have been litigated in the original action. Barr v.

Resolution Trust Corp., 837 S.W.2d 627, 628 (Tex. 1992).


       To successfully assert the affirmative defense of res judicata, a defendant must

prove the following elements: (1) a prior final judgment on the merits by a court of

competent jurisdiction; (2) identity of parties or those in privity with them; and (3) a second

action based on the same claims as were raised or could have been raised in the first

action. Igal v. Brightstar Info. Tech. Group, Inc., 250 S.W.3d 78, 86 (Tex. 2008). Hill

alleged the required elements of res judicata in her motion for summary judgment. She

attached as evidence a certified copy of an order of dismissal from the United States


                                              6
District Court for the Northern District of Texas dismissing Chavez’s ineffective assistance

and due process claims against her. The order and Chavez’s amended complaint, which

is also included as evidence, provides the identity of the parties. Hill also asserted that the

underlying legal malpractice suit with “an array of causes typically known as elements of

legal malpractice,” was the same as the “administrative malpractice” referenced by Chavez

in his “Motion for Judgment” filed in the federal lawsuit and which is included in Hill’s

summary judgment evidence.


       The only potential competent summary judgment evidence presented by Chavez

is his affidavit in which he avers that Hill forged his name to the plea agreement while

representing him in his theft case. Mindful that we review summary judgment evidence in

the light most favorable to the party against whom summary judgment was rendered, a

conclusory statement unsupported by facts is not competent summary judgment evidence.

Wadewitz v. Montgomery, 951 S.W.2d 464, 466 (Tex. 1997). A conclusory statement is

one that does not provide the underlying facts to support the conclusion. 1001 McKinney

Ltd. v. Credit Suisse First Boston Mortgage Capital, 192 S.W.3d 20, 27 (Tex.App.–Houston

[14th Dist.] 2005, pet. denied). The mere recitation that an affidavit is based on personal

knowledge is inadequate if the affidavit does not affirmatively show a basis for such

knowledge.     Southtex 66 Pipeline Co., Ltd. v. Spoor, 238 S.W.3d 538, 542-43

(Tex.App.–Houston [14th Dist.] 2007, pet. denied). Chavez’s statement that Hill forged his

name without any underlying factual details is self-serving and conclusory and insufficient

to raise a genuine issue of material fact to defeat Hill’s motion for summary judgment.

                                              7
       In the absence of any genuine issue of material fact that would preclude Hill’s

entitlement to the affirmative defense of res judicata, Chavez’s legal malpractice claims

actually litigated in the federal lawsuit, as well as claims that could have been litigated in

that suit, were barred.


       II.    Hill’s No-Evidence Motion for Summary Judgment


       By her no-evidence motion, Hill alleged there was no evidence of one or more of the

elements of Chavez’s claims of legal malpractice, breach of fiduciary duty, fraud,

misrepresentation, forgery, deceit, coercion, and violations of the DTPA. Hill set forth each

element of every claim in her motion and she then challenged at least one element of each

claim. In response to the motion, Chavez filed his objection raising legal and factual

insufficiency and requesting the trial court to take judicial notice of certain documents filed

by him. As previously discussed, the only potential summary judgment evidence presented

by Chavez was his affidavit, which we have found was not competent summary judgment

evidence because of its conclusory nature. Thus, Chavez has failed to present any

evidence raising a genuine issue of material fact on any of the elements challenged by Hill.


       III.   Proximate Cause as to Damages


       In the context of a criminal matter, the client’s criminal conduct is, as a matter of law,

the sole proximate or producing cause of the client’s eventual conviction and damages,

such that a legal malpractice claim may not be brought absent a showing that the plaintiff


                                               8
has been exonerated from the criminal conviction, either by direct appeal, post-conviction

relief, or otherwise. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995).

Chavez has not been exonerated of the offense that was the basis of Hill’s representation

giving rise to his malpractice claim. Thus, Chavez would not have been able to negate the

sole proximate cause bar to his legal malpractice claim against Hill. Id.


                                       Conclusion


       Because Hill established the affirmative defense of res judicata to Chavez’s legal

malpractice claims, and because Chavez did not raise a genuine issue of material fact as

to the contested element of each cause of action asserted against Hill, including proximate

cause as to damages, we conclude the trial court did not err in granting Hill’s motion for

summary judgment. Having disposed of Chavez’s contentions on the theories of res

judicata and no evidence, we need not consider any other complaints presented by him.

See Urena, 162 S.W.3d at 550. All contentions raised by Chavez are overruled.


       Accordingly, the trial court’s summary judgment is affirmed.




                                                 Patrick A. Pirtle
                                                     Justice




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