REVERSE and REMAND; Opinion Filed September 22, 2014.




                                             S
                                  Court of Appeals
                                                  In The


                           Fifth District of Texas at Dallas
                                          No. 05-13-00068-CV

                                ROBERT D. COLEMAN, Appellant
                                            V.
                                 REED W. PROSPERE, Appellee

                         On Appeal from the 68th Judicial District Court
                                     Dallas County, Texas
                               Trial Court Cause No. 11-02288

                                              OPINION
                           Before Justices FitzGerald, Fillmore, and Evans
                                      Opinion by Justice Evans

        Robert D. Coleman appeals a take-nothing summary judgment in his lawsuit against his

former criminal defense counsel, Reed W. Prospere. For the reasons stated below, we reverse

the judgment of the trial court and remand the entire case for further proceedings.

                                            I. BACKGROUND

        The following allegations are taken from appellant’s live pleading. 1 On November 7,

2007, appellant entered into a written agreement for appellee to represent him in the retrial of a




    1
      See SmithKline Beecham Corp. v. Doe, 903 S.W.2d 347, 354–55 (Tex. 1995) (parties’ pleadings control
evidence and arguments which are properly considered in summary judgment decision); Ely v. Gen. Motors Corp.,
927 S.W.2d 774, 782 (Tex. App.—Texarkana 1996, writ denied) (explaining that pleadings “frame the issues
involved in ruling upon the summary judgment motion”).
pending criminal matter. 2 According to appellant, in exchange for a flat fee of $25,000, appellee

agreed to pursue the same strategy employed in the first trial. Appellant alleged that after

receiving the $25,000 fee, however, appellee urged him to accept a plea agreement. Appellant

further alleged that when he refused to accept a plea, appellee did not treat him properly and

refused to pursue the defense strategy used in the first trial. After appellant rejected the plea

agreement and “demanded that [appellee] pursue the defense they originally agreed upon,”

appellee withdrew from the case before retrial over appellant’s objection. Appellee then refused

appellant’s written demand for reimbursement of the $25,000 fee. Appellant’s live pleading

asserted claims for breach of contract for which he sought “costs he could have avoided had

[appellee] performed as agreed,” deceptive trade practices for which he sought “economic and

emotional damage,” and intentional infliction of emotional distress. Appellant generally prayed

for “economic, non-economic, and exemplary damages.” 3

         In appellee’s live answer, he generally denied appellant’s claims and pleaded,

“[Appellee] asserts that [appellant’s] claims are false, and all fees collected from [appellant]

were earned pursuant to the doctrine of quantum meruit.”                         Appellee moved for summary

judgment in which he generally asserted there was no evidence of each of appellant’s three

causes of action. In addition, appellee’s motion contended, “[Appellee] did not engage in Breach

of Contract and any failing of the contract was the result of conduct on the part of [appellant].”

Finally, appellee argued that under quantum meruit, he had earned in excess of the fees paid by

appellant. Appellant filed a written response to the motion that attached only a slightly different

version of their contract without a supporting affidavit or any other evidence. In his response,


    2
      The parties agree appellee did not represent appellant in the first trial. That trial ended in a mistrial after the
jury was unable to agree on a verdict.
    3
     Appellant does not make any conviction a basis of his claims against appellee. See Peeler v. Hughes & Luce,
909 S.W.2d 494, 495–500 (Tex. 1995) (plurality op.).


                                                          –2–
appellant asserted he was entitled to reimbursement of the fees he paid appellee because the fee

agreement did not comply with applicable law and was therefore unenforceable. He further

argued that appellee’s affidavit testimony regarding the legal work he performed on the case was

conclusory and insufficient to support summary judgment. After a hearing, the trial court

granted appellee’s motion without stating its grounds for the ruling. This appeal followed.

                                          II. ANALYSIS

A. Standard of Review

       We review a trial court’s decision to grant or deny a motion for summary judgment de

novo. City of Lorena v. BMTP Holdings, L.P., 409 S.W.3d 634, 645 (Tex. 2013). When the trial

court’s order granting summary judgment does not specify the basis for the ruling, we will affirm

the summary judgment if any of the theories presented to the trial court and preserved for

appellate review are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,

216 (Tex. 2003). We review the summary judgment record in the light most favorable to the

non-movant, indulging every reasonable inference and resolving any doubts against the movant.

City of Lorena, 409 S.W.3d at 645.

       No-evidence and traditional grounds for summary judgment may be combined in a single

motion. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). The substance of the motion

and not its form or the attachment of evidence determines whether the motion is a no-evidence,

traditional, or combined motion. Id. When a party files both a no-evidence and a traditional

motion for summary judgment, we first consider the no-evidence motion. Ford Motor Co. v.

Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).




                                               –3–
B. No-Evidence Summary Judgment

         Appellant’s corrected brief is far from a model of clarity. 4 Rambling in argument and

jumbling citations, case summaries, and discussion in a chaotic way, it is quite difficult to

ascertain the complaints presented. Nevertheless, we have been instructed by the supreme court

“to construe the Rules of Appellate Procedure reasonably, yet liberally, so that the right to appeal

is not lost by imposing requirements not absolutely necessary to affect the purpose of a rule.”

Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150 S.W.3d 423, 427 (Tex. 2004) (citing

Verburgt v. Dorner, 959 S.W.2d 615, 616–17 (Tex. 1997)). Even if appellant’s assignments of

error are multifarious, “we may consider a multifarious issue if we can determine, with

reasonable certainty, the error about which complaint is made.” Rich v. Olah, 274 S.W.3d 878,

885 (Tex. App.—Dallas 2008, no pet.) (citing Green v. Kaposta, 152 S.W.3d 839, 842 n.2 (Tex.

App.—Dallas 2005, no pet.)). Appellant argues that “[appellee’s] MSJ was a conclusory motion

and a general no-evidence challenge to [appellant’s] case. Timpte at 310: ‘The motion must state

the elements as to which there is no evidence.’”

         A no-evidence motion for summary judgment must challenge specifically identified

elements of a cause of action or defense on which the non-movant bears the burden of proof at

trial. See TEX. R. CIV. P. 166a(i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).

“A no-evidence motion that only generally challenges the sufficiency of the non-movant’s case



    4
       Appellant’s corrected brief has numerous codes throughout that appear to refer to indices citing to appendices
containing arguments and authorities. We count almost sixty pages of additional argument in the appendices not
including copies of various materials filed in the trial court, statutes, and cases. The brief alone is near the
maximum word count, see TEX. R. APP. P. 9.4(i)(2)(B), although it lacks a compliant certification. See id. at
9.4(i)(3). We do not look outside appellant’s brief for his arguments and ignore devices such as appellant has used
to circumvent the briefing rules. See TEX. R. APP. P. 9.4; Ritchie v. Rupe, 339 S.W.3d 275, 284 n.11 (Tex. App.—
Dallas 2011) (court ignored additional objections and arguments in twenty-six-page document in clerk’s record
incorporated by reference into brief which would circumvent briefing limitations), rev’d on other grounds, No. 11-
0447, 2014 WL 2788335 (Tex. June 20, 2014); Coca-Cola Co. v. Harmar Bottling Co., 111 S.W.3d 287, 297 n.3
(Tex. App.—Texarkana 2003) (court ignored arguments in extensive footnotes used to avoid briefing limits), rev’d
on other grounds, 218 S.W.3d 671 (Tex. 2006).


                                                        –4–
and fails to state the specific elements that the movant contends lack supporting evidence is

fundamentally defective and cannot support summary judgment as a matter of law.” Jose

Fuentes Co. v. Alfaro, 418 S.W.3d 280, 284, 286–87 (Tex. App.—Dallas 2013, pet. filed) (en

banc). To the extent appellee’s argument can be construed to complain that appellant waived

this argument by failing to raise it in the trial court, the complete failure of a no-evidence motion

for summary judgment to challenge any element of a claim or defense renders the motion legally

insufficient, which complaint may be raised for the first time on appeal. Id. (citing authorities).

       Appellee’s summary judgment motion generally asserts that appellant’s claims for breach

of contract, deceptive trade practices, and intentional infliction of emotional distress are not

supported by any “credible evidence.” Appellee’s motion restates the name of each cause of

action but fails to challenge or even mention a single element of any of these claims as to which

there is no evidence. Accordingly, appellee’s no-evidence grounds for summary judgment are

legally insufficient to support the trial court’s summary judgment. See Timpte Indus., Inc., 286

S.W.3d at 310.

C. Traditional Summary Judgment

       In his sixth, seventh, and ninth issues, appellant challenges the legal sufficiency of the

traditional grounds for summary judgment. The evidence attached to appellee’s motion for

summary judgment consisted of a copy of the parties’ fee agreement, appellee’s three-page

affidavit, and a one and one-half-page affidavit of an expert on attorney’s fees.

       1. Breach of Contract

       Appellee’s motion for summary judgment contained the argument that “[appellee] did not

engage in Breach of Contract and any failing of the contract was the result of conduct on the part

of [appellant].” Appellee merely named the cause of action asserted in appellant’s pleading. In

addition, appellee acknowledged in his motion that he withdrew from representing appellant on

                                                –5–
September 8, 2008, before trial; that is, he did not comply with the contractual term of

representing appellant through the retrial. None of appellee’s summary judgment evidence

disputes appellant’s allegations that appellee withdrew as appellant’s counsel before the matter

went to retrial or that he refused to return the $25,000 fee. We, therefore, construe appellee’s

traditional summary judgment argument as asserting that the evidence attached conclusively

demonstrated that the reason appellee is not liable for appellant’s “Breach of Contract” claim is

because any breach (“contract failure”) was caused by some act of appellant; that is, appellee’s

withdrawal from representing appellant through trial was excused by appellant’s conduct.

       In support of his summary judgment argument, appellee’s affidavit stated that based on

changes in appellant’s position that came to light after a polygraph examination, “certain avenues

were no longer available to be pursued in his defense.” The affidavit then added, “To have

pursued certain avenues following [appellant’s] revelations would have required me to engage in

suborning perjury.” Appellee’s affidavit further stated that appellant “would not accept sound

legal advice and would not listen to reason in his case.”

       Appellant argues there was a “lack of any evidence of alleged perjury” because

“(1) [appellant] did not testify at his first trial and was not going to testify at any retrial;

(2) There is no evidence that [appellant] committed perjury; (3) [appellant] did not tell his lawyer

that he intended to commit perjury if and when he testified at retrial.” On the next page of his

brief, appellant argues, “In the traditional version of [appellee’s] motion for summary judgment,

he has not proved his affirmative defense as a matter of law.”             Appellant also asserts,

“[appellee’s] summary judgment motion materials provide no evidence of any specific element

of any cause of action in [appellant’s] pleadings and motions[,]” citing authority. See Skiles v.

Jack in the Box, Inc., 170 S.W.3d 173, 184 (Tex. App.—Dallas 2005) (movant in the traditional

summary judgment context has burden to either (1) conclusively negate at least one of the

                                                –6–
essential elements of a plaintiff’s cause of action, or (2) conclusively establish each element of a

defendant’s affirmative defense), rev’d on other grounds, 221 S.W.3d 566 (Tex. 2007). We

understand appellant to argue there was no proof in appellee’s affidavit that perjury at the retrial

would occur so there was no proof of appellant’s conduct that would support appellee’s

affirmative defense of excuse of performance.                 Appellant’s argument goes to the legal

sufficiency of appellee’s proof. To the extent certain statements in appellee’s brief assert that

appellant waived this argument by failing to raise it in the trial court, challenges to the legal

sufficiency of the summary judgment movant’s evidence may be raised for the first time on

appeal. See Cimarron Hydrocarbons Corp. v. Carpenter, 143 S.W.3d 560, 563 (Tex. App.—

Dallas 2004, pet. denied) (citing McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341

(Tex. 1993)).

        Appellee’s affidavit does not provide evidence that perjury would occur or be suborned,

and does not show how performance of the contract would have been affected by appellee’s

stated concern about suborning perjury. 5 See City of Lorena, 409 S.W.3d at 645 (court must

indulge every reasonable inference and resolve any doubts against the movant). Appellant is

correct, therefore, that appellee’s evidence was insufficient to establish appellee’s defense of

excuse. See Skiles, 170 S.W.3d at 184. Accordingly, the trial court’s summary judgment on the

breach of contract claim was improper on the traditional ground raised in the motion.




    5
      We do not conclude that appellee was required to disclose the content of appellant’s statements in order to
obtain summary judgment, but appellee had the burden on summary judgment to provide facts in his affidavit
connecting his concerns about suborning perjury, his performance of the contract, and his withdrawal from
representation.


                                                      –7–
        2. Quantum Meruit

        In appellant’s ninth issue, he challenges the quantum meruit ground for summary

judgment. 6 Appellant argues with citations to authorities that quantum meruit is an equitable

theory of recovery and that the trial court should have denied the quantum meruit theory because

there was a contract. Appellee responds that appellant waived this argument because appellant

“did not object [in the trial court] to the theory of quantum meruit in response to the Summary

Judgment motion.” (Emphasis added). As with appellant’s other arguments, this challenge goes

to the legal sufficiency of appellee’s motion for summary judgment.                              See Cimarron

Hydrocarbons Corp., 143 S.W.3d at 563. That is, appellant argues the summary judgment

evidence is legally insufficient to support judgment on the quantum meruit ground because

appellee’s evidence included an express contract but quantum meruit is dependent on the non-

existence of a contract. See N.E. Indep. Sch. Dist. v. Kelley, 277 S.W.3d 442, 445 (Tex. App.—

San Antonio 2008, no pet.) (existence of quantum meruit claim “hinges on the non-existence of

his breach of contract claim”); Scharer v. John’s Cars, Inc., 776 S.W.2d 228, 231 (Tex. App.—

El Paso 1989, writ denied) (“Breach of contract and quantum meruit theories are mutually

exclusive; one rules out the other.”); see also Celmer v. McGarry, 412 S.W.3d 691, 709 (Tex.

App.—Dallas 2013, pet. denied). Because the summary judgment record contains evidence of

an express contract between the parties, summary judgment based on quantum meruit was

improper. We sustain appellant’s ninth issue without reaching the remainder of appellant’s

arguments under this issue.




    6
      The parties dispute whether appellee’s quantum meruit theory functions in this case as a counterclaim or
affirmative defense. It is not necessary to our disposition of this issue to decide whether quantum meruit can be a
defense and whether it was a counterclaim or defense in this case, so we do not decide those issues.


                                                       –8–
                                       III. CONCLUSION

        We reverse the summary judgment of the trial court as to each of appellant’s claims. We

remand the case for further proceedings.




                                                   /David Evans/
                                                   DAVID EVANS
                                                   JUSTICE
FitzGerald, J., dissenting



130068F.P05




                                             –9–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

ROBERT D. COLEMAN, Appellant                        On Appeal from the 68th Judicial District
                                                    Court, Dallas County, Texas
No. 05-13-00068-CV         V.                       Trial Court Cause No. 11-02288.
                                                    Opinion delivered by Justice Evans,
REED W. PROSPERE, Appellee                          Justices FitzGerald and Fillmore
                                                    participating.

        In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with this opinion.
        It is ORDERED that appellant Robert D. Coleman recover his costs of this appeal from
appellee Reed W. Prospere.


Judgment entered this 22nd day of September, 2014.




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