Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 95th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-12-05346.
Justices Francis, Fillmore, and Stoddart
Ashton appeals the trial court's partial no-evidence
summary judgment granted in favor of KoonsFuller, P.C. In two
issues, Ashton argues the trial court erred by granting
summary judgment on her claims for breach of fiduciary duty
and fraud. We affirm the trial court's judgment.
represented Ashton during her divorce from Ivan Ashton, but
withdrew from the representation before the divorce was
finalized. After a Final Decree of Divorce was entered,
Ashton sued KoonsFuller for negligence, breach of fiduciary
duty, and fraud, asserting the firm entered into a Rule 11
agreement without her permission, the firm did not properly
account for the community estate and the community estate was
not equitably divided as a result of KoonsFuller's
alleged misconduct, the firm failed to protect her from
liquidation of a retirement account to pay attorney's
fees, the firm overbilled her for the services it provided,
and she was improperly advised that she must sell her home to
pay attorney's fees.
filed a no-evidence motion for summary judgment on all of
Ashton's claims. Ashton responded and filed her own
affidavit, the affidavit of her expert witness, billing
statements, and deposition excerpts. KoonsFuller objected and
moved to strike much of Ashton's summary judgment
evidence. The trial court denied the evidentiary objections
and granted the no-evidence motion for summary judgment as to
the breach of fiduciary duty and fraud claims, but denied the
motion on Ashton's negligence claim. Ashton subsequently
nonsuited her negligence claim. This appeal followed.
review the trial court's summary judgment de novo.
First United Pentecostal Church v. Parker, No.
15-0708, 2017 WL 1032754, at *3 (Tex. Mar. 17, 2017). When we
review a no-evidence summary judgment, we inquire whether the
nonmovant produced evidence raising a genuine issue of
material fact as to the challenged elements. Id. We
review the evidence in the light most favorable to the
nonmovant, crediting evidence favorable to the nonmovant if
reasonable jurors could and disregarding contrary evidence
unless reasonable jurors could not. Timpte Indus., Inc.
v. Gish, 286 S.W.3d 306, 310 (Tex. 2009).
raises two issues on appeal: the trial court erred by
granting KoonsFuller's motion for summary judgment on her
breach of fiduciary duty claim and on her fraud claim.
KoonsFuller's primary argument in response is the trial
court's judgment should be affirmed based on the
anti-fracturing rule which prevents a plaintiff from
recasting professional negligence claims as fraud and breach
of fiduciary duty claims. See J.A. Green Dev. Corp. v.
Grant Thornton, LLP, No. 05-15-00029-CV, 2016 WL
3547964, at *6 (Tex. App.-Dallas June 28, 2016, pet. denied)
(mem. op.) (citing Won Pak v. Harris, 313 S.W.3d
454, 457 (Tex. App.- Dallas 2010, pet. denied)). However,
KoonsFuller failed to raise this argument in its motion for
summary judgment and a trial court cannot grant a summary
judgment motion on a ground not presented in the motion.
See Gish, 286 S.W.3d at 310. KoonsFuller first
asserted this argument in its reply to Ashton's response
to its motion for summary judgment. However, without
obtaining Ashton's consent, KoonsFuller was not entitled
to raise a new ground for summary judgment in its reply to
her response. See Shuma v. Power, No.
05-14-00623-CV, 2015 WL 4141693, at *3 (Tex. App.-Dallas July
9, 2015, no pet.) (mem. op.). Therefore, we do not consider
this argument on appeal.
addressing whether Ashton met her burden to provide more than
a scintilla of probative evidence on each element of her
claims, we consider the evidence Ashton submitted to the
trial court. Ashton heavily relies on the affidavit and
deposition testimony of her expert witness, Frank Hill, to
meet her summary judgment burden. KoonsFuller objected to
most of the testimony as conclusory.
Texas Rules of Civil Procedure require that affidavits
submitted as summary judgment evidence set forth facts that
would be admissible in evidence. Rabe v. Dillard's
Inc., 214 S.W.3d 767, 769 (Tex. App.-Dallas 2007, no
pet.) (citing Tex.R.Civ.P. 166a(f)). Deposition transcripts
may also be submitted as summary judgment evidence. See
generally Tex. R. Civ. P. 166a(d). However, conclusory
testimony from an expert witness is insufficient to raise a
question of fact to defeat summary judgment. Elizondo v.
Krist, 415 S.W.3d 259, 264 (Tex. 2013) (quoting
McIntyre v. Ramirez, 109 S.W.3d 741, 749-50 (Tex.
2003)); see also IHS Cedars Treatment Ctr. v. Mason,
143 S.W.3d 794, 803 (Tex. 2004) (expert's conclusory
statements are insufficient to raise a fact question to
defeat summary judgment). "Expert opinions must be
supported by facts in evidence, not conjecture."
Marathon Corp. v. Pitzner, 106 S.W.3d 724, 729 (Tex.
2003) (per curiam). Expert testimony will support or defeat
summary judgment only if it is "[c]lear, positive and
direct, otherwise credible and free from contradictions and
inconsistencies, and could have been readily
controverted." See Wadewitz v. Montgomery, 951
S.W.2d 464, 466 (Tex. 1997) (citing Tex.R.Civ.P. 166a(c)).
Frank Hill Affidavit
affidavit, Hill states KoonsFuller overbilled Ashton for its
services, failed to adequately account for the marital
estate, gave Ashton incorrect legal advice, breached its
fiduciary duty to Ashton, and engaged in fraud. After reviewing
Hill's affidavit, the bulk of which is quoted in footnote
1, we conclude it is conclusory and is not adequate
makes statements and draws conclusions about
KoonsFuller's actions, but fails to provide the facts
underlying his conclusions. See Earl v. Ratliff, 998
S.W.2d 882, 890 (Tex. 1999) (affiant must "explain the
basis of his statements to link his conclusions to the
facts."); Brown v. Brown, 145 S.W.3d 745, 751
(Tex. App.-Dallas 2004, pet. denied). For example, Hill avers
that KoonsFuller's billing practices were unfair and
excessive, but the affidavit does not explain why. The
affidavit does not state that KoonsFuller's billing rates
were either unreasonable or not what the client and law firm
agreed to. Likewise, while Hill disagrees with the amount of
time KoonsFuller spent on discovery matters and preparing for
mediation, the affidavit does not state how much time would
have been reasonable. Similarly, Hill complains about the
number of lawyers and legal assistants billing for these
services, but does not suggest what an appropriate number
would be. Further, while Hill's testimony is that
KoonsFuller should have been able to value the marital estate
after representing Ashton for three years, Hill does not does
not explain why.
affidavit also states Ashton's lawyers sought her
approval for the Rule 11 agreement and, when it was not
obtained, agreed to the order without her permission, which
was a breach of their duty. However, there is no evidence in
the record that Ashton's lawyers sought her approval,
that she did not give it to them, or that they agreed to the
order without her permission. Again, ...