      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-08-00786-CV



                                James Francis Bagan, Appellant

                                                 v.

                    Karl Hays and the Estate of Edwin J. Terry, Appellees



     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
        NO. D-1-GN-07-001155, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING



                            MEMORANDUM OPINION


               This is a legal-malpractice case stemming from a divorce suit between James Bagan

(“Bagan”) and Pamela Bagan (“Pamela”). Approximately two years after the divorce became final,

Pamela sued Bagan for violation of the divorce decree, and the two parties later agreed to a

settlement. Bagan then filed suit against two attorneys who had represented him in the divorce suit,

alleging legal malpractice, breach of fiduciary duty, and breach of contract. The attorneys moved

for summary judgment, and the trial court granted summary judgment on all grounds. Bagan then

filed a motion for new trial, which was denied by the trial court. Bagan appeals, asserting that the

trial court erred in granting summary judgment and in denying his motion for new trial. Because we

find no error in the trial court’s determinations, we affirm the trial court’s order granting summary

judgment in favor of the attorneys, and we affirm the trial court’s order denying Bagan’s motion for

new trial.
                                           BACKGROUND

                In March 2002, Pamela filed for divorce from Bagan. Bagan hired Ted Terry to

represent him in the divorce proceedings. Karl Hays, who worked in Terry’s law office, served as

the primary attorney representing Bagan in the proceedings.

                Bagan and Pamela eventually reached an agreement on the terms of their divorce, and

in September 2002, the trial court entered an Agreed Final Decree of Divorce (“the divorce decree”).

The divorce decree required Bagan to pay Pamela $650,000 in cash and to execute a promissory note

(“the note”) for $750,000. The note was due thirty months after the divorce. The divorce decree also

provided that Bagan’s business partner, Roger Beasley, would personally guarantee the note.1 In

addition, the divorce decree provided that Pamela would keep her interest in three car dealerships

owned by the couple until Bagan paid the note:


        Upon receipt of payment in full of the proceeds of the Bagan Note, including all
        principal and interest, [Pamela] is ordered to sign all documents necessary to convey
        to [Bagan] all of her interest in and to the following business entities, which shall
        thereafter be the sole and separate property of [Bagan]:

                Roger Beasley Imports, Inc.
                Autogroup, Inc.
                Victoria Lincoln Mercury, Inc.

        It is ordered that [Pamela] shall have all rights of ownership in and rights of
        distribution for said entities until the Bagan note is paid in full, but [Bagan] shall pay
        all obligations associated with said ownership and/or in any way referable to the
        above entities and shall hold [Pamela] harmless therefor.




   1
       Beasley signed a document guaranteeing the note in August 2002.

                                                    2
                In August 2004, Pamela sued Bagan and Beasley, alleging breach of contract and

seeking enforcement of the divorce decree. In her petition, she asserted that Bagan had sold the three

car dealerships listed in the divorce decree, thus damaging her security on the note, and that he had

not yet paid the note. Hays, who was no longer working with Terry, filed an answer on behalf of

Bagan. Beasley did not file an answer, and in January 2005, a default judgment was granted against

him in the amount of $105,776. When Bagan learned of the default judgment against Beasley, a

dispute arose between Bagan and Hays as to whether Hays had agreed to represent and file an answer

for Beasley in the lawsuit. Bagan advised Hays that he wanted a new attorney, and Hays withdrew

as Bagan’s counsel.

                In January 2007, Bagan and Pamela entered into a settlement agreement in which

Pamela released all of her claims in her lawsuit in exchange for a payment from Bagan.2 Pamela also

non-suited her claims against Beasley in exchange for a payment from Beasley.

                In April 2007, Bagan sued Terry’s estate3 and Hays (“the defendants”) for legal

malpractice, breach of fiduciary duty, and breach of contract. Specifically, Bagan alleged that Hays

and Terry negligently drafted the divorce decree and failed to file an answer on behalf of Beasley in

Pamela’s post-divorce lawsuit. The defendants moved for summary judgment on all of Bagan’s

claims, and the trial court granted summary judgment on all grounds. Bagan filed a motion for new

trial, which was denied by the trial court. Bagan appeals from the trial court’s order granting




   2
       Bagan had previously paid Pamela the $750,000 due on the note.
   3
       Terry passed away before Bagan filed suit.

                                                    3
summary judgment in favor of the defendants and the trial court’s order denying his motion

for new trial.4


                                    STANDARD OF REVIEW

                  We review summary judgments de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). We take as true all evidence favorable to the nonmovant, and we

indulge every reasonable inference and resolve any doubts in the non-movant’s favor. Id.

                  A “traditional” motion for summary judgment is properly granted when the movant

establishes that there are no genuine issues of material fact and that he or she is entitled to judgment

as a matter of law. Tex. R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471

(Tex. 1991); Holmstrom v. Lee, 26 S.W.3d 526, 530 (Tex. App.—Austin 2000, no pet.). A

defendant seeking summary judgment must negate as a matter of law at least one element of each




   4
      The defendants argue that this Court does not have jurisdiction over an appeal from the trial
court’s summary-judgment order because Bagan identified only the trial court’s order denying his
motion for new trial in his notice of appeal. The defendants are correct that Bagan’s notice of appeal
stated that he was appealing only from the trial court’s denial of his motion for new trial. However,
in the order denying Bagan’s motion for new trial, the trial court specifically described the motion
for new trial as one “with respect to the Court’s Order granting Defendants’ Motion for Summary
Judgment,” and Bagan’s motion for new trial states generally that the trial court “erred . . . in
granting the summary judgment.” Although the appellate rules provide that a notice of appeal must
“state the date of the . . . order appealed from,” see Tex. R. App. P. 25.1(d)(2), we must construe the
rules reasonably but liberally, so that the right of appeal is not lost by creating a requirement not
absolutely necessary from the literal words of the rule. Maxfield v. Terry, 888 S.W.2d 809, 811
(Tex. 1994). We have jurisdiction over any appeal in which the appellant files an instrument in a
bona fide attempt to invoke appellate jurisdiction. Grand Prairie Indep. Sch. Dist. v. Southern Parts
Imps., Inc., 813 S.W.2d 499, 500 (Tex. 1991). Considering these principles in combination with the
circumstances of this case, we conclude that the notice of appeal is sufficient to perfect an appeal
from the order granting summary judgment. Accordingly, we use the standard of review governing
summary judgments.

                                                   4
of the plaintiff’s theories of recovery or prove as a matter of law each element of an affirmative

defense. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

               A party seeking a “no-evidence” summary judgment must assert that there is no

evidence of one or more essential elements of the claims on which the non-movant will have the

burden of proof at trial. Tex. R. Civ. P. 166a(i); Holmstrom, 26 S.W.3d at 530. If the nonmovant

fails to produce more than a scintilla of probative evidence raising a genuine issue of material fact

as to each challenged element on which he has the burden of proof, summary judgment is proper.

Holmstrom, 26 S.W.3d at 530. More than a scintilla of evidence exists if the evidence would allow

reasonable and fair-minded people to differ in their conclusions. Forbes, Inc. v. Granada

Biosciences, Inc., 124 S.W.3d 167, 172 (Tex. 2003).


                                          DISCUSSION

               Bagan raised four claims in his petition, asserting that the defendants: (1) committed

legal malpractice by negligently drafting the divorce decree; (2) committed legal malpractice by

failing to file an answer on behalf of Beasley in the post-divorce suit; (3) breached their fiduciary

duty to Bagan by failing to file an answer on behalf of Beasley; and (4) breached their contract with

Bagan by failing to file an answer on behalf of Beasley. The defendants moved for summary

judgment on all of Bagan’s claims, and the trial court granted summary judgment on all grounds.

We address each of Bagan’s claims below.


Claim for Negligent Drafting of Divorce Decree

               In his petition, Bagan alleged that the defendants committed legal malpractice by

negligently drafting a portion of the divorce decree, which led to a lawsuit filed by Pamela against

Bagan and Beasley. The portion of the divorce decree of which Bagan complained states:

                                                 5
       It is ordered that [Pamela] shall have all rights of ownership in and rights of
       distribution for [the three car dealerships] until the Bagan note is paid in full, but
       [Bagan] shall pay all obligations associated with said ownership and/or in any way
       referable to the [three car dealerships] and shall hold [Pamela] harmless therefor.


               To prevail on a legal-malpractice claim, a plaintiff must prove that: (1) the defendant

owed the plaintiff a duty; (2) the defendant breached that duty; (3) the breach proximately caused

the plaintiff’s injury; and (4) the plaintiff suffered damages. See Akin, Gump, Strauss, Hauer

& Feld, L.L.P. v. National Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009). The

defendants moved for a traditional summary judgment on this claim on the ground that the two-year

statute of limitations applicable to legal-malpractice claims bars the claim. They also moved for a

no-evidence summary judgment on the ground that Bagan provided no evidence to establish the

standard of care ordinarily exercised by an attorney under similar circumstances or a breach of the

standard of care.

               Because we conclude that the trial court properly granted summary judgment on the

ground that Bagan failed to present any evidence of the applicable standard of care or breach of the

standard of care, we affirm the summary-judgment order as to this claim without addressing the

alternate ground. See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004) (“We

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

appellate review are meritorious.”); Centeq Realty, 899 S.W.2d at 197 (summary judgment is proper

when defendant negates at least one element of each of plaintiff’s theories of recovery).

               In the defendants’ motion for summary judgment, they argued that a plaintiff in a

legal-malpractice suit is required to present expert testimony to establish the applicable standard of



                                                  6
care and breach of the standard of care and that because Bagan did not do so, the defendants were

entitled to summary judgment on this claim. See Zenith Star Ins. Co. v. Wilkerson, 150 S.W.3d 525,

530 (Tex. App.—Austin 2004, no pet.) (“Because a lawyer is held to the standard of care that would

be exercised by a reasonably prudent attorney, expert testimony of an attorney is usually necessary

to establish the standard of skill and care ordinarily exercised by an attorney.”). In his brief on

appeal, Bagan concedes that the general rule requires a plaintiff to present expert testimony to

establish the standard of care in legal-malpractice cases, but he alleges that his case falls within an

exception to the rule that occurs when an attorney’s lack of care and skill is so obvious that the trier

of fact can find negligence as a matter of common knowledge. Mazuca v. Schumann, 82 S.W.3d 90,

97 (Tex. App.—San Antonio 2002, pet. denied). Mazuca involved an attorney’s failure to file a

lawsuit before the statute of limitations ran, and the court held that “[m]issing the statute of

limitations is a classic example of negligence that any layperson can understand,” and that “[n]o

expert testimony is necessary in such cases.” Id.

               Even if this Court were to embrace the Mazuca exception—an issue we need not

decide—the exception would not apply here. Mazuca went only so far as to apply the exception to

a statute-of-limitations case, in which it was readily apparent from the face of the record that a

mistake was made in not timely filing a lawsuit. In this case, Bagan complains about an issue much

more difficult to assess: whether an attorney’s drafting of a provision in the divorce decree

constituted a breach of the applicable standard of care. Unlike the statute-of-limitations error in

Mazuca, the issue of whether a provision in a divorce decree demonstrates a breach of the applicable

standard of care is not an issue “that any layperson can understand.” Bagan also does not cite, and



                                                   7
we have not found, any legal authority that would support an extension of the exception to the

situation in this case.

                Further, in support of his argument that this Court should extend the Mazuca

exception to this case, Bagan states only that “[i]t is obvious, based on the facts, that Hays was

negligent. The language in the [divorce decree] clearly did not adequately protect the interests of

[Bagan] since it resulted in the filing of the Post-Divorce Lawsuit.” However, Bagan does not cite

to any evidence or legal authority to support his conclusions, and we have not found any authority

for the proposition that the filing of a post-judgment lawsuit automatically means that the attorney

involved in negotiating and drafting the terms of the judgment committed legal malpractice.

Accordingly, we reject this argument.

                Bagan further argues that even if he were required to present expert testimony to

establish the standard of care, he was justified in not doing so at the time the summary-judgment

motion was filed because the parties’ attorneys had agreed to postpone any trial dates and expert

designations until after the summary-judgment motion was resolved. In support of his argument,

Bagan points to the affidavit of his attorney, in which his attorney stated:


        An agreement existed between me and opposing counsel to continue the trial setting
        from the December 1, 2008 trial which would also extend the deadlines to designate
        expert witnesses, motions related to trial dates and other trial related deadlines that
        would be postponed until Defendant’s Motion for Summary Judgment was resolved.
        It was my understanding at the time that plaintiff would be allowed to designate an
        expert should one be necessary that would prove up the elements of this claim. The
        first time I heard otherwise was when defendant filed its Motion for Summary
        Judgment.


Bagan does not point to any other evidence to establish that there was an existing agreement.

                                                  8
               In order for agreements between attorneys or parties to be enforceable, the agreements

must be in writing, signed, and filed in the record of the case. See Tex. R. Civ. P. 11. Once the

existence of an agreement becomes disputed, it is unenforceable unless it comports with the rule 11

requirements. See London Market Cos. v. Schattman, 811 S.W.2d 550, 552 (Tex. 1991). Here, the

defendants disputed the existence of an agreement in the trial court, and they continue to do so on

appeal. Specifically, in their reply to Bagan’s response to their motion for summary judgment, the

defendants stated that they disputed that an agreement existed, and they filed an affidavit from their

attorney in which the attorney stated that “[t]he ‘agreement’ described by [Bagan’s counsel] does not,

and never did, exist.” The defendants’ attorney further explained in his affidavit that he discussed

the possibility of a continuance of the trial date with Bagan’s attorney but that the trial date was not

tied to the deadline to designate expert witnesses, which had already expired, and he did not at any

point agree to an extension of the deadline to designate expert witnesses.

               Because the defendants dispute the existence of an agreement extending the deadline

for designating expert witnesses, and because Bagan has not provided any evidence that the alleged

agreement satisfied the requirements of rule 11 of the rules of civil procedure, we reject Bagan’s

argument that an agreement between the attorneys relieved him of the requirement of providing

expert testimony by the time the summary-judgment motion was filed. See Tex. R. Civ. P. 11;

Schattman, 811 S.W.2d at 552.

               Having rejected Bagan’s arguments that the trial court erred in concluding that he

failed to provide any evidence of an applicable standard of care, we affirm the trial court’s order

granting summary judgment on Bagan’s legal-malpractice claim for negligent drafting of a divorce

decree. See Joe, 145 S.W.3d at 157.

                                                   9
Claims for Failure to File Answer on Behalf of Beasley

       A.      Legal Malpractice

               Bagan contends that the trial court erred in granting summary judgment on his claim

that Hays committed legal malpractice by failing to file an answer on behalf of Beasley in Pamela’s

post-divorce lawsuit. In their motion for summary judgment, the defendants asserted that Bagan’s

legal-malpractice claim should fail because: (1) the defendants did not have a duty to file an answer

for Beasley because they had no attorney-client relationship with him; (2) Bagan did not have

standing to bring a claim on behalf of Beasley; and (3) Bagan did not establish that he suffered

damages. The defendants also moved for summary judgment on a no-evidence ground, asserting that

Bagan raised no evidence that the defendants breached a standard of care. As previously stated, the

trial court granted the defendants’ motion for summary judgment “on all grounds.”

               On appeal, Bagan does not address two of the grounds on which the trial court granted

summary judgment. Specifically, he does not address the defendants’ assertions that: (1) they did

not have a duty to file an answer on behalf of Beasley; and (2) Bagan did not have standing to bring

the claim on behalf of Beasley. When the trial court’s judgment rests upon more than one

independent ground or defense, the aggrieved party must assign error to each ground, or the

judgment will be affirmed on the ground to which no complaint is made. Scott v. Galusha,

890 S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied); Bailey v. Rogers, 631 S.W.2d

784, 786 (Tex. App.—Austin 1982, no writ). Because the trial court granted summary judgment on

all grounds, and because Bagan does not complain of two of the grounds on which the trial court

based its summary judgment for this claim, we affirm the trial court’s summary judgment with



                                                 10
regard to Bagan’s legal-malpractice claim for failure to file an answer on behalf of Beasley.5 Scott,

890 S.W.2d at 948; Bailey, 631 S.W.2d at 786.


               B.      Breach of Fiduciary Duty and Breach of Contract

               In addition to legal malpractice, Bagan also alleged in his petition that Hays’s failure

to file an answer for Beasley constituted a breach of fiduciary duty and a breach of contract. In the

defendants’ motion for summary judgment, they contended that the claims for breach of fiduciary

duty and breach of contract were the result of Bagan improperly fracturing his legal-malpractice

claim and should therefore be dismissed.

               On appeal, Bagan does not address his claims for breach of fiduciary duty or breach

of contract. Accordingly, we affirm the trial court’s summary judgment with respect to those claims.

See Scott, 890 S.W.2d at 948; Bailey, 631 S.W.2d at 786.


                                         CONCLUSION

               Having found no error in the trial court’s determinations, we affirm the trial court’s

order granting summary judgment in favor of the defendants. Because the summary judgment was



  5
     The defendants also moved for summary judgment with respect to the claim against Terry for
failure to file an answer on behalf of Beasley, arguing that Terry was not in any way involved in
Hays’s representation of Bagan in Pamela’s post-divorce suit. In an affidavit attached to the
defendants’ motion for summary judgment, Hays stated that he had left Terry’s law office and was
practicing with another attorney by the time that Pamela filed her lawsuit against Bagan and Beasley.
Thus, he stated, when he filed an answer on behalf of Bagan, he was not working with Terry, and
Terry had no involvement in the suit. Bagan does not raise this issue on appeal. Because the trial
court granted summary judgment on all grounds—including the ground that Terry had no
involvement in the post-divorce lawsuit—and because Bagan does not complain about this ground
on appeal, we affirm the trial court’s order with respect to this issue. See Scott v. Galusha,
890 S.W.2d 945, 948 (Tex. App.—Fort Worth 1994, writ denied); Bailey v. Rogers, 631 S.W.2d
784, 786 (Tex. App.—Austin 1982, no writ).

                                                 11
proper, and because Bagan’s motion for new trial raised no additional issues, we also affirm the

trial court’s order denying Bagan’s motion for new trial.




                                             __________________________________________

                                             David Puryear, Justice

Before Justices Patterson, Puryear and Pemberton

Affirmed

Filed: August 12, 2010




                                                12
