                    NUMBER 13-13-00658-CV

                   COURT OF APPEALS

            THIRTEENTH DISTRICT OF TEXAS

              CORPUS CHRISTI – EDINBURG

JAIME SALINAS AND ROSA
SALINAS,                                                 Appellants,


                                v.


TONY MARTINEZ, INDIVIDUALLY
AND AS GENERAL PARTNER OF
MARTINEZ, BARRERA, &
MARTINEZ, LLP.,                                          Appellees.


            On appeal from the 197th District Court of
                   Cameron County, Texas.


                 MEMORANDUM OPINION
 Before Chief Justice Valdez and Justices Rodriguez and Longoria
            Memorandum Opinion by Justice Longoria
       Jaime and Rosa Salinas, acting as the legal guardians of their son Abraham

Salinas, challenge a summary judgment granted in favor of appellee Tony Martinez,

individually and as a general partner of Martinez, Barrera, & Martinez, LLP (collectively,

“Martinez”). We affirm.

                                        I. BACKGROUND

       A. Alvear Toxic-Tort Case

       Jaime and Rosa were co-plaintiffs, individually and as next friends of their

deceased son, Jaime Salinas, Jr., in a mass toxic tort case in Cameron County, Texas,

for which Martinez served as lead counsel. See Juan & Alma Alvear, et al v. Leonard

Electronic Products Co., et al, No. 1993-1354-A (107th Dist. Ct., Cameron County, Tex.)

(1993) (“Alvear Case”). The theory of the Alvear Case was that atmospheric pollution

caused by the corporate defendants contributed to a high rate of encephalitic children

born in the Rio Grande Valley. Jaime Jr. was born with encephalitis and died within

twenty-four hours of birth. Rosa became pregnant again during the pendency of the

Alvear Case and gave birth to Abraham Salinas, their second child. Abraham is currently

an incompetent adult.

       Several of the Alvear defendants settled during pre-trial proceedings.           The

releases signed by the plaintiffs were reviewed by Martinez and included language which,

according to appellants, released the settling defendants from liability for similar health

problems suffered by any future children born to the plaintiffs.

       In May of 2008, Martinez sent letters to the plaintiffs in the Alvear Case, informing

them that an audit of the firm’s accounts disclosed that it had not disbursed the entirety

of the funds kept in the firm trust account established to hold funds for the litigation. The



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letter stated that the firm had retained the funds to cover post-settlement expenses related

to the case. The total amount of the funds in the account was $91,259.39. Jaime and

Rosa’s proportional shares totaled $5,265.67.

       B. Proceedings in the Trial Court

       Appellants filed suit against Martinez, alleging that Martinez breached a fiduciary

duty owed to them by not properly accounting for and reporting the gross settlement

amounts and costs.     Appellants also alleged that Martinez overstated his fees and

expenses, and that the fees and expenses were unconscionable. Appellants further

contended that Martinez had a fiduciary duty to either represent Abraham or to take

“active steps” to find legal counsel for him. Appellants also asserted a claim for legal

malpractice, alleging that Martinez approved too-broad language in the releases which

included Jaime and Rosa individually when they were not aware that they were also suing

for their own exposure to toxic chemicals. Finally, appellants alleged that Martinez failed

to narrow the language of the releases to exclude-later born children of the plaintiffs even

though he was aware that Rosa was pregnant at the time of the settlements.

       Martinez filed a motion for traditional summary judgment asserting the affirmative

defense of limitations. On July 12, 2013, Martinez filed a supplement to the motion

asserting both traditional and no-evidence points. The trial court issued a docket-control

order providing that it would “consider MSJ and response on submission” on August 16,

2013. An extensive discovery dispute followed, and appellants did not file a response to

Martinez’s motion for summary judgment until August 15, 2013. On August 20, 2013, the

trial court signed a take-nothing summary judgment in favor of Martinez. The order

granting summary judgment recited that appellants filed no response to either the original



                                             3
motion or the supplemental motion.

       Appellants filed a verified motion for new trial on September 18, 2013, and an

amended verified motion for new trial on October 30, 2013. The trial court judge held a

hearing on November 7, 2013, and determined that the motion for new trial had already

been overruled by operation of law after seventy-five days. See TEX. R. CIV. P. 329b.

The trial court further ruled that the amended motion was untimely and would not be

considered. Appellants timely filed a notice of appeal.1

       By eight issues, which we address as nine, appellants argue that: (1) the trial court

abused its discretion by not considering appellants’ response to Martinez’s motions for

summary judgment; (2) the trial court abused its discretion by not setting the motions for

an oral hearing; (3) the trial court erred in granting summary judgment because appellants

brought forth sufficient facts to defeat summary judgment on appellants’ claim for breach

of fiduciary duty; (4) the trial court erred by overruling the motion for new trial on the basis

of newly-discovered evidence; (5) the trial court erred by denying the motion for new trial

because it presented “good cause” to hold a new trial; (6) the trial court violated

appellants’ federal due process rights by refusing to consider their response to the

motions for summary judgment; (7) the trial court abused its discretion by not considering

the amended motion for new trial as a motion for reconsideration of the first motion; (8)

the trial court erred by refusing appellants’ offer of proof on an issue of extrinsic fraud;

and (9) extrinsic fraud requires reversal of the judgment.




       1  The order granting summary judgment also assessed $1,000 in discovery sanctions against
appellants and their trial counsel. That sanction is not at issue in this appeal.

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                        II. SUMMARY JUDGMENT STANDARDS OF REVIEW

       We review the granting of a motion for summary judgment de novo. Merriman v.

XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). When, as here, the trial court does

not specify the ground for its ruling, we will affirm if any of the grounds presented in the

motion were meritorious. Id. In a no-evidence motion, the respondent bears the burden

of producing evidence raising an issue of material fact on all of the essential elements of

the respondent’s claim challenged in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d

572, 582 (Tex. 2006); see TEX. R. CIV. P. 166a(i). In a traditional motion, the movant has

the burden to show both that no genuine issue of material fact exists and the movant is

entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Provident Life & Acc. Ins.

Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). If appellants were not able to produce a

scintilla of evidence to raise a fact issue under Rule 166a(i), there is no need to address

whether Martinez’s proof satisfied the burden under Rule 166a(c). Ford Motor Co. v.

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

       In either case, the ultimate question is whether a fact issue exists. Neely v. Wilson,

418 S.W.3d 52, 59 (Tex. 2013) (op. on reh’g). A fact issue exists if there is more than a

scintilla of probative evidence to support the challenged element of the claim.           Id.

Evidence is more than a scintilla if it “would enable reasonable and fair-minded jurors to

differ in their conclusions.” Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per

curiam); accord King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).

Evidence is less than a scintilla if it “so weak as to do no more than create a mere surmise

or suspicion of a fact.” Nalle Plastics Family Ltd. P'ship v. Porter, Rogers, Dahlman &

Gordon, P.C., 406 S.W.3d 186, 199 (Tex. App.—Corpus Christi 2013, pet. denied)



                                             5
(internal quotations omitted). We review the summary judgment record in the light most

favorable to the non-movant and indulge every reasonable inference and resolve every

doubt in the non-movant’s favor. Neely, 418 S.W.3d at 59–60.

                                       III. DISCUSSION

       A. Summary-Judgment Response

       By their first issue, appellants argue that the trial court erred by not considering

their combined response to appellants’ summary-judgment motions. A response to a

motion for summary judgment must be filed no later than seven days before the date of

the hearing on the motion except on leave of the trial court. TEX. R. CIV. P. 166a(c). A

motion for leave should be granted when a litigant establishes good cause for failure to

timely respond by showing that (1) the failure to respond was not intentional or the result

of conscious indifference, but the result of accident or mistake, and (2) that allowing the

late response will not cause any undue delay or otherwise injure the party seeking

summary judgment. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 688

(Tex. 2002). The record must indicate that the trial court affirmatively allowed or denied

permission to file a late response or else the response is a nullity. Goswami v. Metro.

Sav. & Loan Ass'n, 751 S.W.2d 487, 490 n.1 (Tex. 1988); Pipkin v. Kroger Tex., L.P., 383

S.W.3d 655, 663 (Tex. App.—Houston [14th Dist.] 2012, pet. denied). Appellants do not

argue that they requested leave of the trial court to file a late response and do not point

us to any indication that the trial court either granted or denied permission to file. See

Goswami, 751 S.W.2d at 490 n.1; Pipkin, 383 S.W.3d at 663. We overrule appellant’s

first issue.




                                            6
       B. Hearing

       Rule 166a(c) provides, in relevant part, that “[e]xcept on leave of court, the adverse

party, not later than seven days prior to the day of hearing may file and serve opposing

affidavits or other written response.” TEX. R. CIV. P. 166a(c). Appellants assert by their

second issue that the court erred by setting only a date for submission of the motions for

summary judgment and not a date for an oral hearing. Appellants reason that the

language of Rule 166a(c) requires an oral hearing because a “‘[h]earing’ is not the same

as [a] ‘submission.’” The Texas Supreme Court settled this issue in Martin v. Martin,

Martin & Richards, Inc., where it affirmatively ruled that the language of Rule 166a(c) does

not require an oral hearing. 989 S.W.2d 357, 359 (Tex. 1998) (per curiam). If the trial

court decides not to hold a hearing, the parties must be informed of the date of

submission, so that the respondent knows when the response is due under Rule 166a(c).

See id.; Rorie v. Goodwin, 171 S.W.3d 579, 583 (Tex. App.—Tyler 2005, no pet.) (“The

date of submission has the same meaning as the day of hearing under Texas Rule of

Civil Procedure 166a(c).”). Appellants do not dispute that they received notice of the date

of submission. We overrule appellants’ second issue. See Martin, 989 S.W.2d at 359;

Rorie, 171 S.W.3d at 583.

       C. Summary Judgment

       Appellants assert in their third issue that summary judgment was improper

because there were issues of fact remaining on all elements of their claim for breach of

fiduciary duty. The elements of a claim for breach of fiduciary duty are: (1) the existence

of a fiduciary relationship between the plaintiff and the defendant; (2) breach of that duty

by the defendant; (3) an injury to the plaintiff or benefit to the defendant caused by the



                                             7
defendant’s breach. Guevara v. Lackner, 447 S.W.3d 566, 579 (Tex. App.—Corpus

Christi 2014, no pet.); SJW Prop. Commerce, Inc. v. Sw. Pinnacle Prop., Inc., 328 S.W.3d

121, 154 (Tex. App.—Corpus Christi 2010, pet. denied) (op. on reh’g). After Abraham’s

birth, Martinez expressly declined to represent him in the Alvear litigation. Appellants’

argument is that Martinez had a fiduciary duty to represent Abraham that arose out of his

relationship with Jaime and Rosa.      Martinez’s supplemental motion challenged the

existence of evidence supporting all elements of the claim.

      An attorney owes a fiduciary duty to the attorney’s clients as a matter of law,

Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 199 (Tex. 2002), but an attorney-

client relationship generally does not gives rise to a fiduciary duty to non-clients. See

Swank v. Cunningham, 258 S.W.3d 647, 666 (Tex. App.—Eastland 2008, pet. denied);

Safeway Managing Gen. Agency, Inc. v. Clark & Gamble, 985 S.W.2d 166, 168 (Tex.

App.—San Antonio 1998, no pet.). Courts also recognize “an informal fiduciary duty that

arises from a moral, social, domestic or purely personal relationship of trust and

confidence,” but the Texas Supreme Court has cautioned that we should not impose such

a duty lightly. Meyer v. Cathey, 167 S.W.3d 327, 331 (Tex. 2005) (internal quotations

omitted). The special relationship of trust and confidence between the parties must have

existed “prior to, and apart from, the agreement made the basis of the suit.” Id. (citing

Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276, 288 (Tex. 1998)). In

this case, by not responding to the motions for summary judgment, appellants presented

no evidence that a special relationship of trust existed between appellants and Martinez.

See id.; see also Bradshaw v. Bonilla, No. 13-08-00595-CV, 2010 WL 335676, at *3 (Tex.

App.—Corpus Christi Jan. 28, 2010, pet. denied) (mem. op.) (holding that plaintiff did not



                                            8
have a fiduciary relationship with an attorney she hired to represent her granddaughter in

various matters and to whom she sent large sums of money because she had no reason

to place special trust in the attorney). Because appellants have not carried their burden

to produce more than a scintilla of evidence raising an issue of fact on the element of the

existence of a duty, we conclude that the court did not err in granting no-evidence

summary judgment to Martinez. See Tamez, 206 S.W.3d at 582. We overrule appellant’s

third issue.

       D. Motion for New Trial

       Appellants assert in their fourth issue that the trial court erred in denying their

motion for new trial based on new evidence. Appellants attached to the motion for new

trial an affidavit by Jaime verifying all of the allegations in appellants’ live petition. We

review the denial of a motion for new trial based on newly-discovered evidence for abuse

of discretion. Garcia v. Allen, 28 S.W.3d 587, 602 (Tex. App.—Corpus Christi 2000, pet.

denied). A party generally may not rely on new evidence in a motion for new trial following

summary judgment unless: (1) the evidence was newly discovered, and (2) could not

have been discovered through due diligence prior to the trial court’s ruling on the

summary-judgment motion. Indus. Clearinghouse, Inc. v. Jackson Walker, L.L.P., 162

S.W.3d 384, 389 (Tex. App.—Dallas 2005, pet. denied); Risner v. McDonald's Corp., 18

S.W.3d 903, 909 (Tex. App.—Beaumont 2000, pet. denied). Appellants do not argue that

this evidence was newly discovered or explain why it could not have been obtained with

due diligence prior to the trial court’s ruling. See Indus. Clearinghouse, 162 S.W.3d at

389 (holding that the trial court did not abuse its discretion in overruling a motion for new

trial with an attached affidavit from an expert when the movant did not attempt to meet



                                             9
either prong of the test regarding the affidavit). We conclude that the trial court did not

err in denying the motion for a new trial on this ground. We overrule appellants’ fourth

issue.

         E. Good Cause

         Appellants assert by their fifth issue that “[i]t was an abuse of discretion for the

trial court to deny plaintiffs’ (first) motion for new trial as to plaintiffs’s sole cause

remaining, namely, breach of fiduciary duty for refusing to represent Mr. Abraham.” In

the text of the issue, appellants cite to the general rule governing new trials, see TEX. R.

CIV. P. 320, and argue that “it is respectfully suggested that [appellants] provided the trial

court with good cause for granting a new trial.” Appellants do not present any additional

arguments under this issue.        To the extent that appellants are making a separate

argument, we overrule it as inadequately briefed. See TEX. R. APP. P. 38.1(i) (providing

that the “brief must contain a clear and concise argument for the contentions made, with

appropriate citations to authorities and to the record”).

         F. Due Process

         Appellants argue by their sixth issue that the trial court violated their right to due

process when it did not consider their response to Martinez’s motions for summary

judgment. “General principles of due process dictate that a litigant has a right to be heard

and that the court must protect that right.” Striedel v. Striedel, 15 S.W.3d 163, 166 (Tex.

App.—Corpus Christi 2000, no pet.).          However, appellants have not provided any

authority, and we have found none, supporting the theory that due process required the

trial court to consider a late-filed response to Martinez’s motions for summary judgment,




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and they do not explain why we should come to that holding.2 See TEX. R. APP. P. 38.1(i);

Abdelnour v. Mid Nat. Holdings, Inc., 190 S.W.3d 237, 241–42 (Tex. App.—Houston [1st

Dist.] 2006, no pet.) (holding that even a novel argument must be grounded in the relevant

jurisprudential framework for evaluating the claim) (citing Tong v. State, 25 S.W.3d 707,

710 (Tex. Crim. App. 2000)). We overrule appellants’ sixth issue as inadequately briefed.

See TEX. R. APP. P. 38.1(i).

        G. Motion for Reconsideration

        By their seventh issue, appellants argue that the court erred by not treating

appellant’s amended motion for new trial as a motion for reconsideration of the first motion

for new trial.

        The Texas Supreme Court has held that an amended motion for new trial filed

more than thirty days after the judgment is signed is untimely and that the trial court is not

obligated to consider it. In re Brookshire Grocery Co., 250 S.W.3d 66, 69 (Tex. 2008)

(orig. proceeding); Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003); see TEX. R. CIV. P.

329b(b) (“One or more amended motions for new trial may be filed without leave of court

before any preceding motion for new trial by the movant is overruled and within thirty days

after the judgment or other order complained of is signed”). If the trial court ignores the

untimely motion, “it is ineffectual for any purpose.” Moritz, 121 S.W.3d at 720.

        In this case, the trial court signed a final judgment on August 20, 2013. Appellants

filed a motion for new trial on September 18, 2013, and an amended motion on October

30, 2013. Because appellants’ amended motion for new trial was filed more than thirty


       2 Appellants cite only a United States Supreme Court case from 1856, Den ex dem. Murray v.

Hoboken Land & Imp. Co., 59 U.S. 272, 15 L.Ed. 372 (1855), and a concurrence by Justice Scalia
mentioning Murray as part of a general discussion of the history of the interpretation of the phrase “due
process.” See Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 30 (1991) (Scalia, J., concurring).

                                                   11
days after the trial court signed the judgment, the trial court was under no obligation to

consider it. See id. We overrule appellants’ seventh issue.

       H. Offer of Proof and Extrinsic Fraud

       During the hearing on appellant’s amended motion for new trial and after the trial

judge determined that the motion was untimely, appellants’ trial counsel requested that

the judge permit him “to take some testimony to fill in the gaps, if any, on whatever factual

points there are with respect—.” The trial judge interjected that he would not permit

appellants to present evidence by way of testimony because he had already determined

that the amended motion was untimely filed, and the first motion had been overruled by

operation of law. Appellants argue by their eighth issue that appellants’ counsel was

attempting by that question to make an offer of proof of extrinsic fraud and that it was

error for the trial court to deny it. By their ninth issue, appellants ask us to reverse the

judgment on the basis of extrinsic fraud. The extrinsic fraud appellants allege is that

Martinez allegedly engaged in “cyber attacks” against appellants’ counsel’s computer

during vital stages of the litigation.

       Extrinsic fraud “is fraud that denies a litigant the opportunity to fully litigate at trial

all the rights or defenses that could have been asserted.” PNS Stores, Inc. v. Rivera, 379

S.W.3d 267, 275 (Tex. 2012). Appellants raised the issue of extrinsic fraud in their

amended motion for a new trial but not in the timely motion for a new trial. If the trial court

does not consider or act on a subsequent, untimely motion for new trial, then the motion

“is a nullity for purposes of preserving issues for appellate review.” Moritz, 121 S.W.3d

at 720. The trial court in this case ruled that the second motion for new trial was untimely

and that it would not be considered. Because appellants raised this issue only in their



                                               12
first amended motion for a new trial, they did not preserve the issue of extrinsic fraud for

our review.3 See id. Accordingly, the trial court did not err in refusing to permit appellants’

counsel to make an offer of proof by way of presenting evidence on matters that were

never properly before the court. See id. We overrule appellants’ eighth and ninth issues.

                                                IV. CONCLUSION

        We affirm the judgment of the trial court.




                                                            NORA L. LONGORIA
                                                            Justice

Delivered and filed the
19th day of March, 2015.




          3 We note that appellants do not explain what “rights or defenses” could have been asserted at trial

but were not due to the alleged “cyber attacks.” See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 275 (Tex.
2012). Appellants argue only that these alleged attacks occurred repeatedly during crucial times in the
litigation and that “[c]rucial files were lost. Counsel’s time was hijacked.” Appellants give no other specifics.

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