
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-07-00376-CV


Elizabeth Louise Handley, Appellant

v.

Marian C. Bloss, Appellee




FROM COUNTY COURT AT LAW NO. 1 OF BURNET COUNTY
NO. C3206, HONORABLE W. R. SAVAGE, JUDGE PRESIDING


C O N C U R R I N G   O P I N I O N

		I join in Justice Puryear's opinion to the extent it holds that Handley waived two
of her appellate challenges to the summary judgment--that the fee agreement did not authorize
Bloss to "revoke" the $3,200 in billing discounts, and if it did, it imposes an unenforceable
penalty--because Handley did not raise these grounds for denying summary judgment in a timely
written response to Bloss's motion.  See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d
671, 678 (Tex. 1979).  In the view that these were the only grounds that Handley raises on appeal,
Justice Puryear would award damages to Bloss to sanction Handley for filing a frivolous appeal.  If
these were in fact the only grounds Handley presented on appeal, I might be inclined to join that
portion of Justice Puryear's opinion.  However, Handley also complains that Bloss's summary-judgment evidence was "inconsistent" with respect to whether she owes Bloss $6,138.23 or the
full $9,338.23.  I agree with Justice Patterson that this complaint is in the nature of a challenge to
the legal sufficiency of Bloss's summary-judgment proof that can be raised for the first time on
appeal.  See id.
		Justice Puryear acknowledges that Handley contends Bloss's summary-judgment
proof is "inconsistent," but concludes that Handley nonetheless failed to challenge the
legal sufficiency of Bloss's summary-judgment proof because Handley did not explicitly refer
to "legal insufficiency" or cite specific authorities for the concept that "inconsistent evidence is
legally insufficient to support summary judgment."  While Handley's briefing is admittedly sparse,
the substance of her contention is straightforward--Bloss is not entitled to summary judgment for
the full $9,338.23 because she failed to conclusively establish that Handley owed her that
entire amount as opposed to the $6,138.23 that Bloss had originally billed.  This is a challenge to the
legal sufficiency of Bloss's summary-judgment proof that Handley can raise for the first time
on appeal.  See M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 22-23 (Tex. 2000)
(per curiam); Cotton v. Ratholes, Inc., 699 S.W.2d 203, 204-05 (Tex. 1985) (per curiam).  Further,
Handley's challenge has some colorable legal and factual basis--there is evidence that Bloss
originally charged Handley $6,138.23 and not the full $9,338.23--and, therefore, does not rise to
the level of frivolousness.
		I agree with Justice Puryear that Handley ultimately does not prevail on this
contention because Bloss's undisputed summary-judgment proof establishes that she provided
Handley $9,338.23 in unpaid reasonable and necessary legal services and that the $3,200 discrepancy
represented discounts on hours, and because the mere fact Bloss originally discounted some of
her hours does not in itself raise a fact issue as to the reasonableness and necessity of the $9,338.23
amount.  Justice Patterson reaches a similar conclusion.  Consequently, I concur in the judgment
affirming the summary judgment.  However, because I differ with Justice Puryear's core contention
that Handley advances only unpreserved arguments on appeal, and because Handley's challenge
to the "inconsistency" of Bloss's summary-judgment evidence, while ultimately unsuccessful, is
not frivolous, I concur with Justice Patterson in the judgment denying Bloss's motion for damages. 


						__________________________________________
						Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Filed:   February 5, 2010
