                           NUMBER 13-11-00525-CV

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI – EDINBURG

NALLE PLASTICS FAMILY                                                    Appellant,
LIMITED PARTNERSHIP,


                                          v.

PORTER, ROGERS, DAHLMAN
& GORDON, P.C. AND
PATRICK P. ROGERS,                                                       Appellees.


              On appeal from the County Court at Law No. 2
                       of Nueces County, Texas.


                        MEMORANDUM OPINION
               Before Justices Rodriguez, Garza and Perkes
                 Memorandum Opinion by Justice Garza
      Appellant, Nalle Plastics Family Limited Partnership (“Nalle”), appeals the trial

court’s venue ruling and its judgment in favor of appellees, Porter, Rogers, Dahlman &
Gordon, P.C. (“Porter”), a law firm, and one of Porter’s partners, Patrick P. Rogers. By

five issues, which we construe as three, Nalle contends that the Nueces County trial

court erred by (1) failing to transfer the case to Travis County, (2) rendering summary

judgment dismissing all counterclaims brought by Nalle against Porter, and (3) awarding

damages and attorney’s fees to Porter. By cross-appeal, Porter challenges the trial

court’s award of attorney’s fees. We affirm in part, reverse in part, and remand for

further proceedings.

                                           I. BACKGROUND

        Nalle is a Texas limited partnership that owns certain real property in downtown

Austin, Texas.      In 1991, Nalle’s predecessors entered into a long-term commercial

lease agreement regarding the subject property.                        In subsequent years, the

predecessor’s interest as lessor was transferred to Nalle and the lessee’s interest was

transferred to Cypress Industrial L.P. (“Cypress”).

        Around 2005, a dispute arose between Nalle and Cypress regarding the extent to

which Cypress’s sub-lessees1 were free to remodel buildings on the property.                           In

particular, Nalle believed that the 1991 lease agreement prohibited any lessees or sub-

lessees from demolishing, damaging, or destroying any existing improvement on the

premises.     Cypress, on the other hand, interpreted the lease agreement to permit

modifications to the property without Nalle’s approval.2

        Nalle hired Rogers for legal representation in its dispute with Cypress. Nalle and

        1
          The sub-lessees of the property at issue include the Austin Children’s Museum, Compass
Learning, and a parking lot operator. The sub-lessees pay rent to Cypress, and Cypress pays rent to
Nalle under the terms of the 1991 lease.
        2
          Porter contends that the rent amount specified in the 1991 lease was far less than the market
allowed and Cypress therefore enjoyed a large rent differential as a result of this arrangement. According
to Porter, Nalle’s primary intent in asserting a restrictive interpretation of the 1991 lease was to gain
leverage in its efforts to increase the rent amounts payable to it by Cypress.

                                                    2
Rogers did not execute a written contract defining the scope of representation or the fee

amount. At the outset of the representation, Rogers performed research and wrote a

letter to Cypress’s counsel reiterating Nalle’s position regarding the lease restrictions.

Cypress again expressed its rejection of that position.

       Rogers then prepared a “Memorandum Concerning Lessor’s Interpretation of

Lease” (the “Memorandum”), which set forth Nalle’s position regarding the lease. The

parties dispute who initially suggested that the Memorandum be prepared and filed as a

public record; however, it is undisputed that Rogers prepared the Memorandum and

advised that it be filed, and it is undisputed that Nalle reviewed and signed the

Memorandum and approved its filing pursuant to Rogers’s advice. The Memorandum,

which refers to the 1991 lease, states in relevant part:

       The purpose of this Memorandum is to set forth of record the Lessors’
       interpretation of the term “structural component”, as well as,
       “improvement(s)” as applied and used in Paragraphs 4.3 and 8.4 of the
       Lease.

       Paragraph 4.3 of the Lease provides “Lessee further and [sic] represents
       that Lessee will not demolish, damage, or destroy any portion of existing
       improvements on the Premises and that no excavation, boring, or
       disturbance of the subsurface will be made on the Premises.”

       Paragraph 8.4 of the Lease states, in part, as follows: “Lessee, at
       Lessee’s cost and expense, may make modifications to improvements on
       the Premises which do not require excavation or disturbance of the
       subsurface, due to possible contamination of the subsurface, and which
       do not alter any structural component of any improvement on the
       Premises.”

              ....

       It is the Lessor’s interpretation that Paragraph 4.3, when read in context of
       the Lease, means that the Lessee or any party dealing with the leasehold
       premises under the Lease cannot demolish, damage, or destroy any
       portion of existing improvements on the Premises.



                                             3
                ....

        It is the Lessor’s interpretation that Paragraph 8.4, when read in context of
        the Lease, means any leasehold alterations or modifications that involve
        an alteration of “any structural component of any improvement on the
        premises” cannot be done under the Lease without approval of the Lessor.
        It is the Lessors’ interpretation that the term “structural component”
        includes all parts of the existing improvements, each of which has its own
        structural components. Thus, per the interpretation of the Lessor, any
        alteration of any leasehold improvements on the Premises would require
        Lessors’ prior approval as each such improvement has its own structural
        components.

Rogers filed the Memorandum in the public records of Travis County on February 6,

2006.

        With Nalle’s restrictive interpretation of the lease a matter of public record,

Cypress found it increasingly difficult to attract new sub-lessees. Cypress responded by

filing suit against Nalle in Travis County. In the suit, Cypress sought a declaratory

judgment that it and its sub-lessees are “entitled to modify the interior of the leased

premises” and that the Memorandum is “of no force or effect.” Nalle counterclaimed for

a contrary declaration. Later, Nalle added an allegation that, due to certain infractions,

Cypress was in default of the lease and the lease was therefore terminated. 3                        In

particular, Nalle contended that Cypress violated Austin ordinances by placing parking

operations in the city’s right-of-way and that it violated state law by performing an

excavation in the city’s right-of-way without a permit.4 In an effort to document the

infractions, Rogers and Nalle’s president Alan W. Nalle5 repeatedly entered the property


        3
         The 1991 lease provided that termination of the lease was one of the remedies available to
Nalle should Cypress default.
        4
          Nalle noted that the 1991 lease agreement obliged Cypress to comply with all local, state, and
federal laws and that failure to do so is deemed an event of default.
        5
          More precisely, Alan W. Nalle is the president of Nalle Plastics, L.L.C., which is the general
partner of Nalle.

                                                   4
to take photographs.     Cypress replied by adding allegations that Nalle tortiously

interfered with Cypress’s contracts and prospective business relations, breached the

lease agreement, and breached the covenant of quiet enjoyment. Cypress alleged that,

as the result of Nalle’s actions, the value of its leasehold interest was diminished by

nearly $3 million.

       Nalle and Cypress participated in mediation.        Although negotiations through

counsel proved fruitless, a private conference between the principal officers of the

companies—unrepresented by counsel—and the mediator resulted in an oral

framework of an agreement. Rogers and The Lee Firm, P.C. (“Lee”) were hired by

Nalle to reduce the agreement to writing.          They did so, and a written settlement

agreement was filed in the underlying lawsuit. Under the agreement, Cypress agreed to

pay as much as $900,000 in additional rent over the life of the lease. In exchange,

Nalle agreed to withdraw the Memorandum, accept Cypress’s interpretation of the

lease, and drop its lease termination claim.

       When Porter and Lee billed Nalle for the work done on the case, Nalle refused to

pay, claiming that the law firms had offered inadequate representation and bad advice.

In order to collect the fees, the law firms filed suit against Nalle in Nueces County for

breach of contract and quantum meruit. Nalle moved to transfer the case to Travis

County, but the trial court denied the motion on May 20, 2009. Nalle then asserted

counterclaims against Porter and Lee for professional negligence. The claims were

based primarily on three acts and omissions by Rogers which it alleged constituted legal

malpractice: (1) filing the Memorandum in Travis County public records; (2) failing to file

a forcible detainer action in justice court to evict Cypress after Cypress allegedly



                                               5
defaulted on the lease; and (3) physically entering the subject property to document the

alleged lease infractions, which Nalle asserted led to Cypress’s quiet enjoyment claim.

Nalle also brought counterclaims for breach of fiduciary duty and fraudulent inducement.

        Porter moved for traditional and no-evidence summary judgment on Nalle’s

counterclaims. It later filed a second motion for summary judgment, also asserting

traditional and no-evidence grounds. In a series of orders, the trial court excluded

portions of Nalle’s summary judgment evidence and granted summary judgment

dismissing all of Nalle’s counterclaims.

        The case proceeded to trial on the law firms’ claims for unpaid attorney’s fees.

The jury found in favor of the law firms and the trial court rendered judgment awarding

Porter $132,661 in damages plus $150,000 in attorney’s fees and pre- and post-

judgment interest.6 This appeal followed.

                                             II. DISCUSSION

A.      Venue

        By its first issue, Nalle argues the trial court erred in denying its motion to transfer

its claims against Porter to Travis County.

        1.      Applicable Law and Standard of Review

        In general, plaintiffs are allowed to choose venue first, and the plaintiff’s choice

cannot be disturbed as long as suit is initially filed in a county of proper venue. Henry v.

McMichael, 274 S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.] 2008, pet. denied);

Crown Cent. LLC v. Anderson, 239 S.W.3d 385, 388 (Tex. App.—Beaumont 2007, pet.

denied).     In a suit in which there is more than one plaintiff, each plaintiff must,

        6
           The final judgment also awarded $45,625.65 in damages to Lee, plus $50,000 in attorney’s fees
and pre- and post-judgment interest. After filing its appeal, Nalle settled its claims with Lee. Lee is not a
party to this appeal.

                                                     6
independently of every other plaintiff, establish proper venue. TEX. CIV. PRAC. & REM.

CODE ANN. § 15.003(a) (West Supp. 2011). “Proper venue” means: (1) the mandatory

venue as provided by statute; or (2) if there is no mandatory venue, the venue provided

under the general venue statute or the permissive venue provisions of subchapter C of

chapter 15 of the civil practice and remedies code.

      The general venue statute states that all lawsuits shall be brought:

      (1)    in the county in which all or a substantial part of the events or
             omissions giving rise to the claim occurred;

      (2)    in the county of defendant’s residence at the time the cause of
             action accrued if defendant is a natural person;

      (3)    in the county of the defendant’s principal office in this state, if the
             defendant is not a natural person; or

      (4)    if Subdivisions (1), (2), and (3) do not apply, in the county in which
             the plaintiff resided at the time of the accrual of the cause of action.

Id. § 15.002(a) (West 2002). Venue may be proper in more than one county under the

general, mandatory or permissive venue rules.           See GeoChem Tech Corp. v.

Verseckes, 962 S.W.2d 541, 544 (Tex. 1998).

      A plaintiff’s choice of venue stands unless challenged by a proper motion to

transfer venue. In re Mo. Pac. R.R. Co., 998 S.W.2d 212, 216 (Tex. 1999); Chiriboga v.

State Farm Mut. Auto. Ins. Co., 96 S.W.3d 673, 678 (Tex. App.—Austin 2003, no pet.).

If venue is properly challenged, the plaintiff has the burden to present prima facie proof

that venue is maintainable in the county of suit. Chiriboga, 96 S.W.3d at 678 (citing In

re Masonite Corp., 997 S.W.2d 194, 197 (Tex. 1999); TEX. R. CIV. P. 87 (2)(a), (3)(a)).

The plaintiff’s prima facie proof is not subject to rebuttal, cross-examination,

impeachment, or disproof. Ruiz v. Conoco, Inc., 868 S.W.2d 752, 757 (Tex. 1993). The



                                            7
action must remain in the county of suit if the plaintiff selected a county of proper venue

and supported the selection with prima facie proof supporting venue there. Chiriboga,

96 S.W.3d at 678.       If one plaintiff in a multiple-plaintiff suit cannot independently

establish proper venue, that plaintiff’s part of the suit must be transferred or dismissed

“unless that plaintiff, independently of every other plaintiff,” establishes that:

           (1) joinder of that plaintiff or intervention in the suit by that plaintiff is
               proper under the Texas Rules of Civil Procedure;

           (2) maintaining venue as to that plaintiff in the county of suit does not
               unfairly prejudice another party to the suit;

           (3) there is an essential need to have that plaintiff’s claim tried in the
               county in which the suit is pending; and

           (4) the county in which the suit is pending is a fair and convenient
               venue for that plaintiff and all persons against whom the suit is
               brought.

TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(a).

       A trial court’s venue ruling is evaluated by an appellate court “based on an

independent determination from the record and not under either an abuse of discretion

or substantial evidence standard.” Id. § 15.003(c)(1). The trial court’s determination

that venue is proper in a particular county will be upheld on appeal if there is any

probative evidence supporting venue in the county of suit, even if the evidence

preponderates to the contrary. Henry, 274 S.W.3d at 190 (citing Chiriboga, 96 S.W.3d

at 678); see Surgitek v. Abel, 997 S.W.2d 598, 602 (Tex. 1999) (“[I]f the plaintiff offers

prima facie proof through pleadings and affidavits that venue is proper, the inquiry is

over.”).   However, conclusive evidence to the contrary can “destroy the probative

evidence.” Chiriboga, 96 S.W.3d at 678 (citing Ruiz, 868 S.W.2d at 757).




                                               8
        2.      Analysis

        We first address Porter’s contention, raised in its appellee’s brief, that Nalle

cannot now complain about the trial court’s venue ruling because that ruling was subject

to immediate interlocutory appeal, which Nalle did not pursue. Porter notes that an

interlocutory appeal is available for venue rulings in cases involving multiple plaintiffs,

see TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(b),7 and it contends that, where an

interlocutory appeal is authorized, that generally serves as the exclusive appellate

remedy and review after a trial on the merits is barred. Porter cites several instances

where courts have held, in other contexts, that the availability of an immediate

interlocutory appeal precludes post-trial review. See, e.g., Matis v. Golden, 228 S.W.3d

301, 305 (Tex. App.—Waco 2007, no pet.) (holding that an order denying special

appearance is reviewable by interlocutory appeal only); Long v. Spencer, 137 S.W.3d

923, 926 (Tex. App.—Dallas 2004, no pet.) (same for order appointing receivers);

Bayoud v. Bayoud, 797 S.W.2d 304, 313 (Tex. App.—Dallas 1990, writ denied) (same

for preliminary injunction order).

        In Hernandez v. Ebrom, the Texas Supreme Court considered a similar issue in

the medical negligence context. 289 S.W.3d 316, 318–20 (Tex. 2009). In that case, the

        7
            Subsection 15.003(b) allows an interlocutory appeal of a trial court’s determination that (1) a
plaintiff did or did not independently establish proper venue, or (2) a plaintiff that did not independently
establish proper venue did not establish the four requirements specified in subsection (a). TEX. CIV.
PRAC. & REM. CODE ANN. § 15.003(b) (West Supp. 2011). This is an exception to the general rule, stated
in section 15.064, that “[n]o interlocutory appeal shall lie from the determination [of venue questions].” Id.
§ 15.064 (West 2002). Other appellate courts have concluded, and we have agreed, that interlocutory
appeals are available under subsection 15.003(b) for any venue determination in a case involving multiple
plaintiffs. See Crown Cent. LLC v. Anderson, 239 S.W.3d 385, 388 (Tex. App.—Beaumont 2007, pet.
denied); see also Shamoun & Norman, LLP v. Yarto Int’l Group, LP, Nos. 13-11-00087-CV, 13-11-00256-
CV & 13-11-00281-CV, 2012 Tex. App. LEXIS 4384, at *26–33 (Tex. App.—Corpus Christi May 31, 2012,
pet. filed) (mem. op. on reh’g); Thomas v. Hoelke, No. 04-09-00771-CV, 2010 Tex. App. LEXIS 4501, at
*4–5 (Tex. App.—San Antonio June 16, 2010, no pet.) (mem. op.); Siemens Corp. v. Bartek, No. 03-04-
00613-CV, 2006 Tex. App. LEXIS 3533, at *11 (Tex. App.—Austin Apr. 28, 2006, no pet.) (mem. op.);
Sw. Bell Tel. Co. v. Superior Payphones, Ltd., No. 13-05-00661-CV, 2006 Tex. App. LEXIS 1502, at *7
(Tex. App.—Corpus Christi Feb. 23, 2006, pet. dism’d by agr.) (mem. op.).

                                                      9
Court considered a statutory provision providing that a person “may” appeal an

interlocutory order denying a motion to dismiss on the basis that the plaintiff failed to file

a medical expert report.            Id. at 318 (citing TEX. CIV. PRAC. & REM. CODE ANN. §

51.014(a)(9) (West Supp. 2011)). The Court rejected the appellee’s contention that the

availability of an interlocutory appeal precluded review after trial on the merits. Id. at

318–20.       The Court stated that “[u]nambiguous statutory language is interpreted

according to its plain language unless such an interpretation would lead to absurd

results,” id. at 318 (citing Fleming Foods of Tex., Inc. v. Rylander, 6 S.W.3d 278, 284

(Tex. 1999)), and it noted that, according to the Code Construction Act, the word “may”

“creates discretionary authority or grants permission or a power.” Id. (citing TEX. GOV’T

CODE ANN. § 311.016(1) (West 2005)).                        The Court therefore concluded that an

interlocutory appeal was not mandatory. Id. at 319–20.8

        Here, the statute authorizing the interlocutory appeal of a venue ruling—section

15.003(b) of the civil practice and remedies code—also uses the word “may.” See TEX.

CIV. PRAC. & REM. CODE ANN. § 15.003(b) (“An interlocutory appeal may be taken of a


        8
            The Hernandez Court suggested, however, that if a defendant failed to pursue the available
interlocutory appeal under section 74.351 for denial of a motion to dismiss, and the plaintiff then prevailed
at trial, the statute would not allow the defendant to challenge the denial of the motion after trial.
Hernandez v. Ebrom, 289 S.W.3d 316, 320–21 (Tex. 2009). The Court noted that “a statute will not be
construed to yield an absurd result,” and it found that post-trial dismissal of a claim for failure to timely file
a medical expert report would be “unjust and nonsensical” where the merits of the claim had since been
proven at trial. Id. at 321 (citing City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex. 2008)). The
Court reasoned that “by requiring timely expert reports, the Legislature intended to reduce frivolous
claims” and that “[i]f a full trial occurs and the plaintiff prevails . . . , then the claim could not sensibly be
classified as frivolous.” Id. We note that this rationale does not apply in the context of pre-trial venue
rulings. Even if a plaintiff eventually prevails on the merits at trial, as here, there is nothing inherent in
that fact that would render the pre-trial venue ruling moot or unreviewable. In other words, a plaintiff’s
eventual success at trial sheds no light on the relative merits of the defendant’s pre-trial motion to transfer
venue. Moreover, the intent of the Legislature in enacting the venue statute was not to reduce frivolous
claims; rather, it was to ensure that lawsuits are brought and tried in an appropriate forum. Therefore, it
would not offend the purpose of the statute—nor would it be “unjust” or “nonsensical,” see id.—to allow a
losing defendant to challenge the pre-trial venue ruling on final appeal.


                                                       10
trial court’s determination under Subsection (a) . . .”). The plain language of the statute,

therefore, suggests that review of a pre-trial venue ruling is available on final appeal.

On the other hand, transferring a case to a different forum for a new trial—after full trial

proceedings have been completed in the initial forum—may well be considered an

“absurd result” that the Legislature could not have intended.                    See Hernandez, 289

S.W.3d at 318 (citing Rylander, 6 S.W.3d at 284).

         Assuming, but not deciding, that a venue ruling for which an interlocutory appeal

was available but untaken may be challenged on final appeal, we nevertheless

conclude that the trial court did not abuse its discretion by denying Nalle’s motion to

transfer venue. In its response to Nalle’s motion to transfer venue, Porter claimed that

Nueces County was a proper venue for its suit because “all or a substantial part of the

events or omissions giving rise to the claim occurred” there. See TEX. CIV. PRAC. &

REM. CODE ANN. § 15.002(a)(1). In support of that claim, Porter submitted affidavits by

Rogers and Michael S. Lee of The Lee Firm.9 Rogers stated in his affidavit that the

parties “discussed and understood” the fact that, although Porter has a “branch office” in

Austin, its “principal administrative office” is in Corpus Christi. He further stated that

Nalle:

         understood and agreed that some of the necessary work reasonably may
         be performed out of the [Porter] office in Corpus Christi, Texas; all [Porter]
         invoices would be issued out of the Corpus Christi, Nueces County, Texas
         office and that all fees and expense reimbursements due to [Porter] by
         Nalle were payable to [Porter] at its Corpus Christi principal office.



         9
            Much of Lee’s and Rogers’ affidavits was devoted to establishing that proper venue for Lee’s
claims lies in Nueces County. We do not consider those portions of the affidavits in this analysis because
our initial task is to determine only whether Porter, “independently of every other plaintiff, establish[ed]
proper venue.” See TEX. CIV. PRAC. & REM. CODE ANN. § 15.003(a). Whether Lee’s suit was properly
brought in Nueces County is irrelevant to this determination.

                                                    11
Rogers noted that the amount due from Nalle included over $30,000 in “expenses

advanced by [Porter] for Nalle’s benefit” in connection with the Cypress litigation, and he

averred that “[b]ased upon the firm’s business operation, substantially all of the third-

party file expenses are and were paid out of [Porter’s] Corpus Christi, Texas office.”

Rogers further stated that “some [Porter] work [on the Cypress litigation] was in fact

performed by [Porter] out of [Porter’s] Corpus Christi, Texas office” and that Nalle was

required to pay all invoices in Nueces County. Rogers concluded that “[t]he cause of

action therefore, for the invoices, arises and/or substantially arises in whole or in part in

Nueces County, Texas as that is the county in which the invoices were prepared and

per agreement, where the invoices would be paid by Nalle.”10

        Porter’s evidence was sufficient to establish a prima facie case that venue was

proper in Nueces County. As noted, Rogers averred that “some” work on the Cypress

case was done by Porter attorneys in its Nueces County office. He also noted that

much of the third-party expenses involved with litigating the Cypress case were paid out

of that office. This testimony was probative evidence supporting venue in the county of

suit and was not subject to rebuttal, cross-examination, impeachment, or disproof. See

Henry, 274 S.W.3d at 190; Ruiz, 868 S.W.2d at 757. In light of this testimony, we

cannot say that the trial court erred in determining that all or a substantial part of the


        10
           Rogers additionally stated in his affidavit that, regardless of whether Nueces County is a proper
venue under the general venue statute, Nalle’s motion to transfer should be denied because the criteria
listed in subsection 15.003(a) were satisfied. See id. § 15.003(a)(1)–(4). In particular, Rogers averred
that: (1) Porter’s claims were properly joined with Lee’s claims, see TEX. R. CIV. P. 40; (2) maintaining
venue of Porter’s claims in Nueces County would not unfairly prejudice Nalle because “the Nueces
County courts provide reasonable, fair, impartial and just jurisprudence of cases”; (3) it is “essential and
indispensable that the [Porter] claim be tried concurrently and jointly with [Lee’s] claim”; and (4) Nueces
County is a fair and convenient venue for Nalle “as the distance from Austin to Corpus Christi is only 200
miles” and “Mr. Nalle has traveled to Corpus Christi many times for several social visits.” We need not
address these contentions because of our conclusion herein that Porter’s evidence established that
Nueces County is a proper venue under the general venue statute. See TEX. R. APP. P. 47.1.

                                                    12
events or omissions giving rise to the claim occurred in Nueces County. The trial court

therefore did not err in denying Nalle’s motion to transfer.        Nalle’s first issue is

overruled.

B.      Summary Judgments on Nalle’s Counterclaims

        By its second issue, Nalle contends that the trial court erred in granting motions

for summary judgment filed by Porter with regard to Nalle’s counterclaims.

        Nalle’s live pleading contained claims against Porter for professional negligence,

breach of fiduciary duty, and fraud. Porter’s initial motion for summary judgment, filed

on October 22, 2009, asserted traditional and no-evidence grounds. After ruling that

portions of Porter’s summary judgment evidence were inadmissible, the trial court

granted Porter’s initial summary judgment motion in part and denied it in part on July 1,

2010.     In particular, the trial court granted the motion with respect to Nalle’s

counterclaims asserting that Porter was professionally negligent by: (1) “[f]ailing to file

an appropriate forcible detainer action to terminate the lease” (the “forcible detainer

claim”); and (2) “[f]ailing to advise Nalle that the filing of the Memorandum would result

in the filing of a declaratory action and likely claim for interference, breach of quiet

enjoyment, [and] clouding Cypress’s leasehold . . .” (the “failure-to-advise claim”).

However, the trial court denied Porter’s initial motion for summary judgment with respect

to Nalle’s counterclaims asserting that Porter was professionally negligent by:         (1)

advising Nalle to file the Memorandum in the public records of Travis County (the

“Memorandum claim”); and (2) “[a]dvising Nalle to enter onto the lease property to take




                                            13
over 3,000 photographs, and thereby giving Cypress grounds for its breach of

contract . . . claims” (the “photography claim”).11

        Porter filed a second motion for summary judgment on October 8, 2010. This

second motion asserted that new evidence established Porter’s right to summary

judgment on the following counterclaims brought by Nalle: (1) the Memorandum claim;

(2) the photography claim; (3) the claim for breach of fiduciary duty; and (4) the fraud

claim. The trial court granted this motion in its entirety on December 2, 2010.

        We will address summary judgment as to each of Nalle’s counterclaims in turn.12

        1.      Standard of Review

        A motion for summary judgment may be brought on no-evidence or traditional

grounds. See TEX. R. CIV. P. 166a(c), (i). A motion for no-evidence summary judgment

is equivalent to a motion for 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 v. City Nat’l Bank, 97 S.W.3d 765, 772 (Tex. App.—Corpus Christi 2003,

no pet.) (op. on reh’g). Such a motion should be granted if there is no evidence of at

least one essential element of the claimant’s cause of action. Hamilton v. Wilson, 249

S.W.3d 425, 426 (Tex. 2008) (per curiam).                 The burden of producing evidence is

entirely on the non-movant; the movant has no burden to attach any evidence to the
        11
            The trial court’s July 1, 2010 order granted summary judgment in favor of Porter on Nalle’s
photography claim insofar as Nalle alleged that Porter’s actions gave Cypress grounds for quiet
enjoyment and interference claims. In other words, the trial court determined as a matter of law that
Porter’s alleged negligence did not give rise to Cypress’s quiet enjoyment and interference claims; but it
determined that there was at least a fact issue regarding whether such alleged negligence gave rise to
Cypress’s breach of contract claims. The trial court subsequently granted Porter’s second summary
judgment motion in its entirety as to that latter issue.

        The July 1, 2010 order denied Porter’s motion for summary judgment on grounds that Nalle’s
counterclaims were barred by limitations.
        12
          Nalle does not challenge, on appeal, the summary judgment rendered on its breach of fiduciary
duty claim.

                                                   14
motion, and if the non-movant produces evidence raising a genuine issue of material

fact, summary judgment is improper. TEX. R. CIV. P. 166a(i). All that is required of the

non-movant is to produce a scintilla of probative evidence to raise a genuine issue of

material fact on the challenged element. Forbes, Inc. v. Granada Biosciences, Inc., 124

S.W.3d 167, 172 (Tex. 2003); 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.’”     Ortega, 97 S.W.3d at 772 (quoting Kindred v.

Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)); see Forbes, 124 S.W.3d at 172.

Conversely, more than a scintilla of evidence exists when reasonable and fair-minded

individuals could differ in their conclusions. Forbes, 124 S.W.3d at 172; Ortega, 97

S.W.3d at 772 (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). In

determining whether the non-movant has produced more than a scintilla of evidence,

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, 825, 827 (Tex. 2005).

      We review the trial court’s granting of a traditional motion for summary judgment

de novo. 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). The movant bears the burden of



                                           15
proof, 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 non-movant, and we indulge every reasonable

inference and resolve any doubts in the non-movant’s favor. Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

       2.     Applicable Law

       To establish a legal malpractice claim, a plaintiff must demonstrate that (1) the

attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach

proximately caused the plaintiff’s injuries, and (4) damages occurred.               Belt v.

Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780, 783 (Tex. 2006); Peeler v.

Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995); Cosgrove v. Grimes, 774 S.W.2d

662, 664 (Tex. 1989). If a legal malpractice case arises from prior litigation, the plaintiff

must prove that, but for the attorney’s breach of his duty, the plaintiff would have

prevailed in the underlying case. Rangel v. Lapin, 177 S.W.3d 17, 22 (Tex. App.—

Houston [1st Dist.] 2005, pet. denied). This “but-for” causation aspect of the plaintiff’s

burden is known as the “suit-within-a-suit” requirement. Id. In addition, “[t]he plaintiff

must prove and obtain findings as to the amount of damages that would have been

recoverable and collectible if the other case had been properly prosecuted.”           Akin,

Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106,

112 (Tex. 2009).

       The attorney's conduct must be evaluated by the fact-finder based on the

information the attorney had at the time of the alleged act of negligence. Zenith Star

Ins. Co. v. Wilkerson, 150 S.W.3d 525, 530 (Tex. App.—Austin 2004, no pet.). If an



                                             16
attorney makes a decision which a reasonably prudent attorney could make in the same

or similar circumstance, it is not an act of negligence even if the result is undesirable.

Cosgrove, 774 S.W.2d at 665. Attorneys cannot be held strictly liable for all of their

clients’ unfulfilled expectations. Id. An attorney who makes a reasonable decision in

the handling of a case may not be held liable if the decision later proves to be imperfect.

Id. The standard is an objective exercise of professional judgment, not the subjective

belief that his acts are in good faith. Id.

       3.     Memorandum and Failure-to-Advise Claims

       In its live petition at the time of Porter’s summary judgment motions, Nalle

contended that Porter and Rogers committed professional negligence by, among other

things, advising Nalle to record the Memorandum in the public records of Travis County

and failing to advise Nalle that filing the Memorandum would result in Cypress filing a

declaratory judgment action and a “likely claim for interference, breach of quiet

enjoyment, clouding Cypress’s leasehold, scaring off potential sub-tenants and

devaluing the leasehold.” Nalle further asserted that, “[t]o the extent that Rogers claims

that he filed the Memorandum because Nalle wished it, Rogers was negligent because

he did not advise Nalle against filing the Memorandum.”

       Porter argued in its first summary judgment motion that it was entitled to

summary judgment on the Memorandum and failure-to-advise claims because: (1) the

Memorandum was justified and privileged; (2) the filing of the Memorandum was not a

proximate cause of injury to Nalle; (3) there was no evidence that Cypress sustained

any damages as a result of the filing of the Memorandum; (4) Nalle’s admissions under

oath negated its claims based on Porter’s advice to settle; (5) Nalle is estopped by



                                              17
various provisions of its settlement agreement with Cypress; (6) Nalle’s agreement to

settle its claims against Cypress was the sole proximate cause of any injury suffered by

Nalle; (7) Nalle cannot show that it would have been successful in its lease termination

claim against Cypress; and (8) Nalle’s claims are barred by limitations. In its second

summary judgment motion, Porter argued that: (1) the Memorandum did not provide

the basis for any claims by Cypress against Nalle; (2) a lis pendens cannot be filed in a

lease interpretation case; (3) Paragraph 11 of the lease authorized the filing of the

Memorandum; (4) Nalle’s claimed damages were speculative and based upon

uncompensable “lost bargaining leverage”; (5) there was no evidence to support the

failure-to-advise claim; (6) there was no evidence that the Memorandum caused

damages to Cypress; (7) there was no evidence that Cypress had a legitimate claim

against Nalle; (8) there was no evidence of proximate cause; and (9) Nalle’s claims are

barred by estoppel.

      In response to Porter’s first summary judgment motion, Nalle presented affidavits

from attorneys James Cary Barton and John G. Lione Jr. Barton’s affidavit stated that

he has practiced law in Texas since 1969 and has practiced primarily in the area of

commercial real estate law since 1975. He became board certified in commercial real

estate law in 1995. Barton reviewed documents related to the Cypress controversy and

concluded:

      When [Rogers] filed the [Memorandum] on behalf of [Nalle], he exposed
      [Nalle] to a claim of placing a cloud on the title of [Cypress]’s leasehold
      interest in the Leased Premises because that filing was not privileged. If
      [Rogers] had initiated an action for declaratory judgment on behalf of
      [Nalle] initially and then recorded the [Memorandum] as a lis pendens, that
      recording would have been privileged and would not have exposed [Nalle]
      to a claim of having interfered with [Cypress]’s title.



                                           18
       Lione, who has been practicing law in Texas since 1974 and was board certified

in commercial real estate law in 1984, also reviewed documents related to the case.

Lione’s affidavit stated:

       11.    I am familiar with the standard of care of a reasonable and prudent
              attorney in handling the type of case, a commercial real estate
              dispute which has gone into litigation such as this case currently
              before the Court.

       12.    In my experience, landlords/ow[n]ers of property get into disputes
              with their tenants over interpretation of the lease and the
              landlords/owners want their interpretation of record for protection.

       13.    One way of handling the above situation is to file a declaratory
              judgment action on the contested interpretation in the lease and
              then file a lis pendens in the real property records of the county.

       14.    This would prevent any counter-claim for clouding the title or
              interfering with prospective business relations.

       15.    Filing [the Memorandum] in this case fell below the standard of care
              for a reasonably prudent attorney because it was foreseeable that
              Cypress would plead that the action clouded the title and interfered
              with their leasehold. . . . The standard of care would have been not
              to file such a document and to advise [Nalle] not to file such a
              document in the real property records of Travis County without first
              being in litigation so that [Nalle] could take advantage of the
              litigation privilege. [Rogers] fell below the standard of care in this
              regard.

Also included in Nalle’s summary judgment evidence was an affidavit by Nalle’s

president stating in part:

       Rogers never told me that by filing the Memorandum in the real property
       records that [Cypress] would probably, immediately, file a declaratory
       judgment action [or] claim for clouding [Cypress]’s leasehold interest and
       for interference. Had Rogers done so, I would not have agreed to sign
       and have the Memorandum filed in the real property records of Travis
       County.

Finally, Nalle included an affidavit by John Coleman, a certified real estate appraiser,

stating that the value of the fee simple interest in the subject property was $13,500,000

                                            19
and the value of the leased fee interest in the property was $4,350,000 as of March 12,

2007.        According to Coleman, the difference between those two numbers—

$9,150,000—represents the amount that Nalle lost as a result of having to settle its

claims with Cypress.

        Porter contended that the foregoing affidavit testimony was insufficient to create

a fact issue on Rogers’s negligence because attorneys are not negligent where their

decisions are based on unsettled law. See Cosgrove v. Grimes, 774 S.W.2d at 664.

They further argued that the issues surrounding the filing of the Memorandum were

unsettled because (1) the original lease document appeared to explicitly authorize the

filing of the Memorandum, and (2) the alternative suggested by Nalle’s experts—filing a

declaratory judgment action and lis pendens containing Nalle’s interpretation of the

lease—was unavailable as a matter of law.

        We agree with Porter that summary judgment was proper as to Nalle’s failure-to-

advise claim (i.e., its claim that Rogers breached the standard of care by failing to

advise Nalle not to file the Memorandum).13                Nalle’s summary judgment evidence

established that filing the Memorandum may have foreseeably led to Cypress initiating

litigation against Nalle and that Rogers failed to advise Nalle against that course of


        13
            The trial court granted Porter’s first summary judgment motion, a “hybrid” traditional/no-
evidence motion, with respect to Nalle’s failure-to-advise claim. Ordinarily, when a trial court does not
specify its grounds for granting a “hybrid” motion, we first employ the no-evidence summary judgment
standard of review. See Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If summary
judgment was not proper on no-evidence grounds, we then employ the traditional summary judgment
standard of review. See id. Here, however, the only no-evidence ground presented in Porter’s first
summary judgment motion alleged that there was no evidence that Cypress suffered damages. In light of
our conclusion that summary judgment on Nalle’s Memorandum and failure-to-advise claims was
appropriate on other, traditional grounds, we need not review the no-evidence ground. See TEX. R. APP.
P. 47.1; Joe v. Two Thirty Nine J.V., 145 S.W.3d 150, 157 (Tex. 2004) (noting that appellate courts will
affirm a summary judgment “if any of the theories presented to the trial court and preserved for appellate
review are meritorious”); State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 381 (Tex. 1993) (“[W]hen
there are multiple grounds for summary judgment and the order does not specify the ground on which the
summary judgment was granted, the appealing party must negate all grounds on appeal.”).

                                                   20
action.        However, it did not establish that Roger’s failure to so advise Nalle was

negligent. Porter’s summary judgment evidence included a copy of the underlying lease

agreement between Nalle and Cypress, paragraph 11 of which stated:                        “RECORDING.

This Lease or any notice of lease may be recorded by either Lessor or Lessee.”

Attorney Christopher Bell, who is board-certified in commercial real estate law, stated

the following in an affidavit attached to Porter’s second summary judgment motion:

          This is a highly unusual lease provision. While it is customary for the
          parties to agree to jointly execute and record a memorandum of a lease
          (typically reciting the existence of the lease and its key non-economic
          terms), it is uncommon in the extreme to allow either party to unilaterally
          record any lease notice at any time. And yet, this right was explicitly given
          to [Nalle] under the express terms of the subject lease. . . . A reasonable
          prudent lawyer would have recognized this unusual right contained in the
          lease, at Paragraph 11, and had a duty to use it to the benefit of his client.
          Rogers complied fully with that duty to [Nalle].

Nalle’s experts did not address Paragraph 11 of the underlying lease agreement. Bell’s

testimony therefore established that, at the very least, the law was unsettled regarding

the propriety of filing the Memorandum in the Travis County public records. 14

Accordingly, Rogers’s failure to advise Nalle not to file the Memorandum was a decision

that a reasonably prudent attorney could have made. See Cosgrove, 774 S.W.2d at

665. It may not form the basis of a legal negligence claim.


          14
            Bell also averred that the filing of the Memorandum was legally justified because the only
alternative suggested by Nalle’s experts—i.e., filing a declaratory judgment action and lis pendens
containing Nalle’s lease interpretation—was unavailable to Nalle. See TEX. PROP. CODE ANN. § 12.007
(West Supp. 2011) (“[D]uring the pendency of an action involving title to real property, the establishment
of an interest in real property, or the enforcement of an encumbrance against real property, a party to the
action who is seeking affirmative relief may file for record with the county clerk of each county where a
part of the property is located a notice that the action is pending.”). Bell contended that the lease
interpretation dispute was not an “action involving . . . the establishment of an interest in real property.”
See id.; Helmsley-Spear of Tex., Inc. v. Blanton, 699 S.W.2d 643, 644–45 (Tex. App.—Houston [14th
Dist.] 1985, orig. proceeding) (declaring void lis pendens filed in landlord/tenant dispute because section
12.007 was not applicable). We need not address this contention because of our conclusion herein that
Rogers’s actions and omissions were justified by paragraph 11 of the underlying lease. See TEX. R. APP.
P. 47.1


                                                    21
      The same reasoning applies to Nalle’s Memorandum claim (i.e., its claim that

Rogers breached the applicable standard of care by filing the Memorandum). Because

paragraph 11 of the underlying lease agreement explicitly and conspicuously permitted

the filing of “any notice of lease” by any party to the lease, the decision made by Rogers

to file the Memorandum was one that a reasonably prudent attorney could have made.

See id.

      Because the summary judgment evidence established that Rogers’s actions and

inactions were at least based on unsettled law, the trial court did not err in concluding

that Porter was entitled to judgment as a matter of law on the failure-to-advise and

Memorandum claims.

      4.      Photography Claim

      We next address the trial court’s summary judgment dismissing Nalle’s

photography claim (i.e., that Rogers was negligent in entering the subject property to

photograph alleged lease infractions by Cypress and in advising Nalle’s president to do

so, and that this action gave rise to Cypress’s claims against Nalle).       Porter’s first

summary judgment motion alleged that it was entitled to judgment as a matter of law on

this claim because Rogers’s actions (1) did not give rise to any claim by Cypress for

breach of the covenant of quiet enjoyment, and (2) did not breach any duty owed by

Rogers.     In its second summary judgment motion, Porter contended that Rogers’s

actions did not cause any contractual provision between Nalle and Cypress to be

breached.

      We agree that summary judgment was warranted on this claim. Nalle’s summary

judgment evidence included Lione’s affidavit, which stated in part:



                                           22
       [Rogers], in my opinion, fell below the standard of care of a reasonable
       and prudent attorney by advising [Nalle] to go on the premises and to take
       so many (3,000) photographs. . . . [Rogers’s] advice for [Nalle] to take so
       many photographs created, in my opinion, Cypress’s interference and
       breach of quiet enjoyment claims. Giving the advice to [Nalle] to go on the
       property unannounced, foreseeably, in my opinion, created the claims
       pled by Cypress against [Nalle]. The standard of care for a reasonably
       prudent attorney would also require that attorney not to give negligent
       advice, which this was.

       A breach of the covenant of quiet enjoyment requires an eviction, actual or

constructive, brought about by the acts of the landlord, those acting for the landlord, or

those acting with the landlord’s permission. 2616 S. Loop L.L.C. v. Health Source

Home Care, Inc., 201 S.W.3d 349, 359 n.7 (Tex. App.—Houston [14th Dist.] 2006, no

pet.) (citing Lazell v. Stone, 123 S.W.3d 6, 12 n.1 (Tex. App.—Houston [1st Dist.] 2003,

pet. denied) (“The elements of a breach of the warranty of quiet enjoyment are the

same as the elements in a constructive eviction claim.”)). The essential elements of

constructive eviction are: (1) an intention on the part of the landlord that the tenant shall

no longer enjoy the premises; (2) a material act by the landlord that substantially

interferes with the tenant’s intended use and enjoyment of the premises; (3) the act

permanently deprives the tenant of the use and enjoyment of the premises; and (4) the

tenant abandons the premises within a reasonable time after the commission of the act.

Id. (citing Holmes v. P.K. Pipe & Tubing, Inc., 856 S.W.2d 530, 539 (Tex. App.—

Houston [1st Dist.] 1993, no writ)).

       Nalle’s summary judgment evidence established that Rogers advised Nalle’s

president to enter upon the premises to photograph alleged lease infractions, and that

Rogers repeatedly did so himself. However, Nalle’s evidence did not show that Cypress

had been actually evicted from the property, nor did it establish any of the



                                             23
aforementioned elements of a constructive eviction. Accordingly, no claim for breach of

quiet enjoyment could have arisen from Rogers’s actions. Summary judgment was

proper on this claim.

      As to Nalle’s claim that Rogers’s actions led to a claim by Cypress for breach of

contract, that too was unavailable as a matter of law.       Porter’s second summary

judgment motion included a copy of the lease agreement between Nalle and Cypress,

paragraph 19 of which stated:

      LESSOR’S RIGHT OF ENTRY. Lessor [Nalle] shall have the right, at all
      reasonable hours, to enter the Premises for the following: inspection;
      cleaning or making repairs; alterations or additions as Lessor may deem
      necessary or desirable; determining Lessee’s use of the Premises;
      determining if an act of default under this Lease has occurred; or showing
      the Premises to others at any time within 180 days of the termination of
      the then current term of this Lease.

This clause explicitly authorizes the action that Nalle says led to Cypress’s breach of

contract claim—i.e., entering upon the premises to inspect and to “determin[e] if an act

of default under this Lease has occurred.” Because of this provision, Rogers’s decision

to enter upon the property in order to photograph alleged lease infractions by Cypress,

and to advise Nalle’s president to do the same, were decisions that a reasonably

prudent attorney could have made. See Cosgrove, 774 S.W.2d at 665. The trial court

did not err in granting summary judgment dismissing this claim.

      5.     Fraud Claim

      The trial court granted Porter’s second summary judgment motion with respect to

Nalle’s allegation that Porter and Rogers committed fraud. Nalle’s live petition alleged

in part that Rogers

      fraudulently misrepresented his legal experience and credentials to Nalle
      for the purpose of securing Nalle’s business as a client. . . . Rogers made

                                          24
        material misrepresentations in overstating his experience and expertise in
        commercial real estate lending disputes. Those representations were
        material because they formed the basis of Nalle’s decision to hire
        Rogers. . . . Rogers’s representations were false. Rogers is not board
        certified in commercial real estate law, which may suggest a certain level
        of experience, and even after the opportunity to prove his credentials in
        pre-trial discovery, he has failed or refused to produce any evidence giving
        credit to his proclaimed experience.

In its second summary judgment motion, Porter argued that it was entitled to judgment

as a matter of law because: (1) the fraud claim constituted an improper effort by Nalle

to “fracture” its legal malpractice claims15; (2) there was “no evidence of any false

misrepresentations by Rogers as to his legal credentials or experience”; and (3) there

was no evidence of damages independent of legal negligence damages. 16

        In an affidavit filed with Nalle’s response to Porter’s second summary judgment

motion, Nalle’s president stated in relevant part as follows:

        4.     In the underlying case, when I received correspondence from
               [Cypress] concerning [Nalle]’s interpretation of the lease provision
               regarding buildout and remodeling, I sought legal advice. Because of
               our respective interpretations of the lease, I was concerned our
               dispute might go to litigation. I was referred to Pat Rogers by

        15
             The rule against “fracturing” a legal negligence claim “prevents legal-malpractice plaintiffs from
opportunistically transforming a claim that sounds only in negligence into other claims.” Deutsch v.
Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex. App.—Houston [14th Dist.] 2002, no pet.); see
Beck v. Law Offices of Edwin J. Terry, Jr., P.C., 284 S.W.3d 416, 427 (Tex. App.—Austin 2009, no pet.).
The rule provides that, “[i]f the gist of a client’s complaint is that the attorney did not exercise that degree
of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess, then that
complaint should be pursued as a negligence claim, rather than some other claim.” Deutsch, 97 S.W.3d
at 189. “If, however, the client’s complaint is more appropriately classified as another claim, for example,
fraud, . . . breach of fiduciary duty, or breach of contract, then the client can assert a claim other than
negligence.” Id. Nalle has not cited any Texas Supreme Court case law, nor any case law from this
Court, applying this rule, and we find none. Nevertheless, we need not decide whether this rule applies
generally, or whether it barred Nalle’s fraud claim in particular, because of our conclusion herein that
summary judgment on the fraud claim was warranted on no-evidence grounds. See Joe, 145 S.W.3d at
157.
        16
          In the discussion of this issue in its appellate brief, Nalle states: “[Porter] did not assert, based
on either traditional or no-evidence grounds, that Nalle could present no evidence that Rogers had
misrepresented his legal experience and credentials as pleaded by Nalle.” That is incorrect. Porter’s
second summary judgment motion explicitly asserted that Nalle had “no evidence of any false
misrepresentations by Rogers as to his legal credentials or experience . . . .”


                                                      25
              Elizabeth Rogers, my former fiancé[e], Pat Rogers’s ex-wife, and
              partner in the law firm Vinson & Elkins.

        5.    I met with Pat Rogers and interviewed him regarding his experience
              in handling commercial lease matters. Rogers told me he was very
              experienced in handling such matters and had represented both
              sides of all issues regarding commercial leasing matters. Rogers
              agreed to charge Nalle $190 per hour, which was, according to him,
              the “family rate.” We did not have a written fee contract.

Nalle has directed us to no other summary judgment evidence supporting its fraud

claim.17

        This evidence was insufficient to raise a genuine issue of material fact as to the

fraud claim.     See TEX. R. CIV. P. 166a(i).           Although Nalle’s president testified that

Rogers made certain representations to him regarding his qualifications, there was no

evidence adduced that those representations were false. See, e.g., Italian Cowboy

Partners, Ltd. v. Prudential Ins. Co. of Am., 341 S.W.3d 323, 337 (Tex. 2011) (noting

that one necessary element of a fraud claim is that “the representation was false”).

Summary judgment was therefore proper on this claim.

        6.      Forcible Detainer Claim

        Finally, we address Nalle’s claim that Rogers committed legal malpractice by

failing to file a forcible detainer action seeking to evict Cypress from the subject

property. In its live pleading, Nalle claimed that this failure proximately caused Nalle to

settle its litigation with Cypress and waive its claim that the lease had been terminated

by Cypress’s infractions.




        17
          On appeal, Nalle confines its arguments regarding its fraud claim to the issue of whether or not
the claim constituted impermissible “fracturing” of its legal malpractice claim. But we must affirm a
summary judgment “if any of the theories presented to the trial court and preserved for appellate review
are meritorious.” Id.

                                                   26
       Porter’s first summary judgment motion, which the trial court granted as to the

forcible detainer claim, stated in relevant part as follows:

       9. [Nalle] Cannot Show that it Would Have Been Successful on its
       Lease Termination Claims. [Nalle] cannot show causality, as it cannot
       show that it would have been successful on its underlying Lease
       Termination case. There is no evidence that any claimed breaches and
       defaults under the Master Lease were in fact defaults, and even if there
       was such evidence, there is no evidence that any reasonable jury would
       have found those to have been material, that a court would have found
       that such a finding was supported by some evidence or factually sufficient
       evidence, and, even if it had, that it would have construed the Master
       Lease so as to warrant termination or forfeiture in [Nalle’s] benefit.

We construe this argument as asserting summary judgment grounds challenging the

forcible detainer claim on the basis that there was no evidence of causation.

       The parties appear to agree that, in order to show causation, Nalle would be

required to show that it would have likely been successful in its underlying lease

termination claim against Cypress; and that, in turn, would require a showing that

Cypress’s breaches of the underlying lease were material. See Rangel, 177 S.W.3d at

22 (setting forth “suit-within-a-suit” requirement for legal negligence claims arising from

prior litigation); see also Mustang Pipeline Co. v. Driver Pipeline Co., 134 S.W.3d 195,

198 (Tex. 2004) (noting that a non-breaching party’s obligation to continue performance

of a contract is discharged or excused only when the other party’s breach is material).

In Mustang Pipeline, the Texas Supreme Court identified the following five

circumstances as significant in determining whether a failure to perform is material:

       (a)    the extent to which the injured party will be deprived of the benefit
              which he reasonably expected;

       (b)    the extent to which the injured party can be adequately
              compensated for the part of that benefit of which he will be
              deprived;



                                             27
       (c)    the extent to which the party failing to perform or to offer to perform
              will suffer forfeiture;

       (d)    the likelihood that the party failing to perform or to offer to perform
              will cure his failure, taking account of the circumstances including
              any reasonable assurances;

       (e)    the extent to which the behavior of the party failing to perform or to
              offer to perform comports with standards of good faith and fair
              dealing.

Mustang Pipeline Co., 134 S.W.3d at 199 (citing RESTATEMENT (SECOND) OF CONTRACTS

§ 241 (1981)).

       In response to Porter’s summary judgment motion, Nalle produced the affidavits

of Barton and Lione. Barton set forth the criteria for materiality as stated in Mustang

Pipeline and opined that:      “The parking violations in question exposed [Nalle] to

potential claims for personal injury and property damage sustained by third parties, as

well as fines for violations of City ordinances. The parking violations would, therefore,

be material under the criteria specified by the Texas Supreme Court in Mustang

Pipeline.” Barton further concluded that “[i]f the case had proceeded to trial, probably

[Nalle] would have prevailed on all of these issues, leaving [Cypress] without a viable

defense against [Nalle’s] claim that the Lease had been terminated by reason of

[Cypress]’s default.”    Lione testified that “the illegal parking operation which was

ongoing . . . would have probably been found by the JP Court to be a terminable event.”

Lione further stated that “if this case had been appealed to County Court at Law, then

the Court would have affirmed the JP Court’s ruling of termination based upon a strong

case of termination as fully described in the expert report/affidavit of [Barton].”

       Nalle relies on Barton’s and Lione’s affidavits in arguing that it raised a fact issue

on the issue of the materiality of Cypress’s breaches. However, as noted, the trial court

                                             28
granted Porter’s motion to exclude much of the affidavit testimony on the basis that the

opinions expressed therein were conclusory and unreliable. See, e.g., Earle v. Ratliff,

998 S.W.2d 882, 890 (Tex. 1999) (“An expert’s simple ipse dixit is insufficient to

establish a matter; rather, the expert must explain the basis of his statements to link his

conclusions to the facts.”); Gammill v. Jack Williams Chevrolet, 972 S.W.2d 713, 727

(Tex. 1998) (noting that an expert opinion is unreliable if “there is simply too great an

analytical gap between the data and the opinion proffered”). The excluded portions

include all of the testimony quoted above.       The remaining portions of Barton’s and

Lione’s affidavits which were accepted as summary judgment evidence “do no more

than create a mere surmise or suspicion” that Nalle would have prevailed on its lease

termination claim. See Ortega, 97 S.W.3d at 772.

       Nalle contends by a sub-issue and a footnote in its appellate brief that the trial

court abused its discretion by excluding the specified portions of the affidavits. A trial

court’s decision to admit or exclude evidence is reviewed for an abuse of discretion.

See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). Having reviewed the record, we

disagree that the trial court abused its discretion.     In the excluded portions of his

affidavit, Barton testified as to the likely outcome of a forcible detainer action filed by

Nalle seeking to evict Cypress.     However, although Barton correctly sets forth the

criteria for determining whether a failure to perform under a contract is material, he does

not apply that law to the facts of the case. Barton merely states: “It is difficult to

determine a circumstance under which a court would not view a violation of a lease

provision requiring the tenant to comply with all applicable laws as material, even if the

specific conduct giving rise to the violation is not mentioned expressly in the lease.” He



                                            29
does not, however, analyze the particular facts of Nalle’s lease termination claim in light

of the Mustang Pipeline criteria. Without such an analysis, Barton’s opinion that a

forcible detainer action would have been successful bridged “too great an analytical

gap.” See Gammill, 972 S.W.2d at 727. It was properly excluded.

        The excluded portions of Lione’s affidavit, which referred to Barton’s testimony

regarding the applicable law, similarly failed to explain how application of the relevant

law would result in Nalle being successful in a forcible detainer action. Lione failed to

“explain the basis of his statements to link his conclusions to the facts.” Earle, 998

S.W.2d at 890. The testimony was therefore conclusory and properly excluded. See

id.; Gammill, 972 S.W.2d at 727.

        Considering only competent, admissible evidence, we find that Nalle failed to

raise a genuine issue of material fact as to causation with respect to the forcible

detainer claim. See TEX. R. CIV. P. 166a(i); Rangel, 177 S.W.3d at 22. Summary

judgment on that claim was proper.18

        Because summary judgment in favor of Porter was proper on all of Nalle’s

counterclaims, we overrule Nalle’s second issue.




        18
            On appeal, Porter additionally argues that summary judgment on the forcible detainer claim
was proper because Cypress was not in “physical or actual possession” of the premises. See TEX. R.
CIV. P. 746 (“In case of forcible entry or of forcible detainer under Sections 24.001–24.008, Texas
Property Code, the only issue shall be as to the right to actual possession; and the merits of the title shall
not be adjudicated.”). Porter further argued before the trial court that summary judgment was proper
because of certain deposition testimony by Nalle’s president; specifically, when asked whether he had
any “grievance” regarding Rogers’s failure to file a forcible detainer action, Nalle’s president replied: “I
don’t—at this time I don’t, but that may come up later.” Porter contended in its summary judgment motion
that this testimony constituted a waiver of Nalle’s forcible detainer claim. We need not address either of
these grounds for summary judgment because we have already concluded that summary judgment was
proper based on no-evidence grounds. See TEX. R. APP. P. 47.1.; Joe, 145 S.W.3d at 157 (Tex. 2004).

                                                     30
C.     Judgment on Porter’s Claims

       By its third issue, Nalle contends that the trial court’s judgment awarding

damages and attorney’s fees to Porter must be vacated in the event that we reverse the

summary judgments dismissing Nalle’s counterclaims. It claims that, in the event that

the summary judgment is reversed, it would be entitled to defend against Porter’s claim

for unpaid fees by asserting that Porter should not be entitled to recover those fees due

to its legal malpractice. See Weisman v. Lackshin & Nathan, No. 01-88-00003-CV,

1988 Tex. App. LEXIS 3205, at *8 (Tex. App—Houston [1st Dist.] Dec. 29, 1988, no

writ) (mem. op., not designated for publication) (reversing a summary judgment

awarding unpaid fees to a law firm because it had already reversed the trial court’s

summary judgment dismissing a legal malpractice counterclaim filed by the client, and

noting that the client’s legal malpractice claim “was the basis for the affirmative defense

of offset” raised in response to the law firm’s summary judgment motion)

       We have overruled Nalle’s issue challenging the trial court’s summary judgment

dismissing its counterclaims. Accordingly, Nalle’s third issue is overruled as moot.

D.     Cross-Appeal

       By one issue on cross-appeal, Porter argues that the trial court erred in denying

its motion for judgment notwithstanding the jury’s verdict with respect to attorney’s fees.

       The jury was asked, in charge question number six, to assess the “reasonable

fee for the necessary services of [Porter]’s attorneys in this case to collect the amount

you found owed by Nalle . . . .” The jury was asked to assess both the fees incurred by

Porter’s attorneys and the fees attributable to services provided by Porter’s outside

counsel, the law firm of Harris & Greenwell. The jury answered as follows:



                                            31
       a.     For preparation and trial in the collection of the amounts you found
              to be owed in response to Question No. 4 [regarding contract
              damages]:

              1. Harris & Greenwell:              $150,000.00

              2. [Porter]:                        $0

       b.     For defense of the “Claims” against [Porter] and Pat Rogers:

              1. Harris & Greenwell:              $0

              2. [Porter]:                        $0

       c.     For representation through appeal to the court of appeals.

              1. Harris & Greenwell:              $0

       d.     For representation at the petition for review stage in the Supreme
              Court of Texas.

              1. Harris & Greenwell:              $0

       e.     For representation at the merits briefing sta[g]e in the Supreme
              Court of Texas.

              1. Harris & Greenwell:              $0

       f.     For representation through oral argument and the completion of
              proceedings in the Supreme Court of Texas.

              1. Harris & Greenwell:              $0

The final judgment, reflecting the jury’s verdict, awarded Porter $150,000 “for collection

of attorney’s fees” and awarded zero appellate fees. Porter contends that each of the

jury’s “$0” answers were unsupported by the evidence.

       1.     Applicable Law and Standard of Review

       Section 38.001 of the civil practice and remedies code provides that a “person

may recover reasonable attorney’s fees from an individual or corporation, in addition to

the amount of a valid claim and costs, if the claim is for . . . an oral or written contract.”

                                             32
TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8) (West 2008). The determination of what

is a reasonable fee is a question for the trier of fact. Mercier v. Sw. Bell Yellow Pages,

Inc., 214 S.W.3d 770, 775 (Tex. App.—Corpus Christi 2007, no pet.). Here, the jury

was instructed on the following factors to be considered in determining reasonableness:

        (1) the time and labor required, the novelty and difficulty of the questions
            involved, and the skill requisite to perform the legal service properly;

        (2) the likelihood, if apparent to the client, that the acceptance of the
            particular employment will preclude other employment by the lawyer;

        (3) the fee customarily charged in the locality for similar legal services;

        (4) the amount involved and the results obtained;

        (5) the time limitations imposed by the client or by the circumstances;

        (6) the nature and length of the professional relationship with the client;

        (7) the experience, reputation, and ability of the lawyer or lawyers
            performing the services; and

        (8) whether the fee is fixed or contingent on results obtained or
            uncertainty of collection before the legal services have been
            rendered.

TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04(b), reprinted in TEX. GOV’T CODE ANN., tit. 2,

subtit. G, app. A (West 2004); see Arthur Andersen & Co. v. Perry Equip. Corp., 945

S.W.2d 812, 818 (Tex. 1997); Mercier, 214 S.W.3d at 775–76. The court is not required

to receive evidence on each of these factors.         Mercier, 214 S.W.3d at 776 (citing

Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 897–98

(Tex. App.—Dallas 2003, no pet)). The court can also look at the entire record, the

evidence presented on reasonableness, the amount in controversy, the common

knowledge of the participants as lawyers and judges, and the relative success of the

parties. Id.

                                             33
       We review a jury’s finding as to the amount of reasonable and necessary

attorney’s fees for legal sufficiency of the evidence. Carlile v. RLS Legal Solutions, Inc.,

138 S.W.3d 403, 409 (Tex. App.—Houston [14th Dist.] 2004, no pet.). We will affirm the

finding unless the record shows: (1) the complete absence of evidence of a vital fact;

(2) that the court is barred by the rules of law or evidence from giving weight to the only

evidence offered to prove a vital fact; (3) that the evidence offered to prove a vital fact is

no more than a scintilla; or (4) that the evidence establishes conclusively the opposite of

a vital fact. City of Keller, 168 S.W.3d at 810. We view the evidence in the light most

favorable to the finding, crediting favorable evidence if a reasonable fact-finder could

and disregarding contrary evidence unless a reasonable fact-finder could not. Id. at

807.   The ultimate test is whether the evidence would enable reasonable and fair-

minded people to make the finding under review. Id. at 827. “We must be mindful,

however, that we are reviewing a jury’s verdict and may not substitute our judgment for

that of the factfinder.” C.M. Asfahl Agency v. Tensor, Inc., 135 S.W.3d 768, 802 (Tex.

App.—Houston [1st Dist.] 2004, no pet.).

       2.     Analysis

       Rogers testified that a reasonable and necessary fee for his services undertaken

with respect to the fee collection case against Nalle was $42,400; he further testified

that a reasonable and necessary fee for Porter’s services undertaken in defending

against Nalle’s counterclaims was $148,400. Andrew Greenwell of Harris & Greenwell

testified that a reasonable and necessary fee for his firm’s trial services was $301,600.

As noted, the jury awarded only $150,000 in fees.




                                             34
         On appeal, Nalle argues that the jury’s refusal to award fees attributable to

Porter’s in-house work was supported by the record because Porter presented no

evidence explaining why it was reasonable and necessary for Porter to be represented

by both outside and in-house counsel. We agree. The jury could have reasonably

determined that the work done by Rogers and other Porter attorneys was duplicative of

the work done by outside counsel, especially considering the fact that no itemized billing

statements were offered into evidence.19 It is also noteworthy that the total amount

involved in the litigation was only $132,661 in allegedly unpaid fees arising from the

Cypress litigation; the jury could have considered this fact in rejecting Porter’s request

for fees of more than three times that amount incurred in its collection case against

Nalle.        See Arthur Andersen, 945 S.W.2d at 818; Ragsdale v. Progressive Voters

League, 801 S.W.2d 880, 882 (Tex. 1990)20; Mercier, 214 S.W.3d at 776.




         19
           In closing arguments, Nalle’s counsel emphasized the fact that, while detailed records
regarding Porter’s billing in the Cypress litigation were offered into evidence at trial, neither Porter nor
Greenwell offered detailed billing records regarding their work in the fee collection or legal malpractice
cases. Porter correctly notes that billing records are not required under Texas law in order to establish
entitlement to attorney’s fees, see, e.g., RM Crowe Prop. Servs. Co. v. Strategic Energy, LLC, 348
S.W.3d 444, 452 (Tex. App.—Dallas 2011, no pet.); however, the jury was entitled to consider the
absence of such records here in reaching their conclusion as to the amount of reasonable and necessary
fees.
         20
            In Ragsdale, the Texas Supreme Court stated that “where the testimony of an interested
witness is not contradicted by any other witness, or attendant circumstances, and the same is clear, direct
and positive, and free from contradiction, inaccuracies, and circumstances tending to cast suspicion
thereon, it is taken as true, as a matter of law.” Ragsdale v. Progressive Voters League, 801 S.W.2d 880,
882 (Tex. 1990) (citing Cochran v. Wool Growers Central Storage Co., 140 Tex. 184, 166 S.W.2d 904,
908 (1942)). However, the Court noted that:

         we do not mean to imply that in every case when uncontradicted testimony is offered it
         mandates an award of the amount claimed. For example, even though the evidence
         might be uncontradicted, if it is unreasonable, incredible, or its belief is questionable, then
         such evidence would only raise a fact issue to be determined by the trier of fact.

Id.


                                                      35
       The jury’s refusal to award fees attributable to defending against Nalle’s

counterclaims is also supported by the record. As Porter notes, the trial court granted

Nalle’s motion in limine preventing Porter from discussing the trial court’s summary

judgment rulings on the legal malpractice counterclaims. Accordingly, the trial court

allowed only limited testimony regarding fees incurred with respect to Porter’s defense

of those claims. Porter does not contend on appeal that the trial court’s order in limine

was erroneous. Our review is therefore limited to the evidence appearing in the record,

and viewing that evidence in the light most favorable to the jury’s verdict, see City of

Keller, 168 S.W.3d at 807, we find that the jury’s award of zero fees attributable to the

defense of the legal malpractice claims was supported by legally sufficient evidence.

       However, the evidence did not support an award of zero conditional appellate

attorney’s fees. Greenwell testified that the following amounts would be reasonable and

necessary fees for appellate proceedings: $40,000 for an appeal to this Court; $10,000

for a petition for review to the Texas Supreme Court; $20,000 for supreme court

briefing; and $5,000 for oral argument in the supreme court. In its cross-appellee’s

brief, Nalle does not direct us to any evidence casting doubt on the reasonableness or

necessity of the appellate fees testified to by Greenwell; instead, it argues only that the

jury’s refusal to award appellate fees was justified because there was no evidence as to

how the fees would be apportioned as between Porter and Harris & Greenwell. It does

not cite any authority, however, and we find none, establishing that such apportionment

was necessary. In the absence of any evidence challenging the reasonableness or

necessity of the appellate fees testified to by Greenwell, no reasonable juror could have




                                            36
concluded that zero conditional appellate attorney’s fees should have been awarded.

See id. at 827.

       We therefore reverse the trial court’s judgment insofar as it fails to award

conditional appellate attorney’s fees, and we remand the cause with instructions to

award such fees consistent with the evidence adduced in this case. The remainder of

the trial court’s judgment as to attorney’s fees is affirmed.

                                      III. CONCLUSION

       The judgment of the trial court is affirmed in part and reversed in part as stated

herein, and the cause is remanded for further proceedings consistent with this opinion.




                                                  DORI CONTRERAS GARZA,
                                                  Justice

Delivered and filed the
18th day of April, 2013.




                                             37
