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Ashton v. KoonsFuller, P.C.

Court of Appeals of Texas, Fifth District, Dallas

May 10, 2017


         On Appeal from the 95th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-12-05346.

          Before Justices Francis, Fillmore, and Stoddart



         Susan 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.

         Factual Background

         KoonsFuller 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.

         KoonsFuller 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.

         Law & Analysis

         We 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).

         Ashton 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.

         A. Evidentiary Considerations

         Before 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.

         The 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)).

         1. Frank Hill Affidavit

         In his 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.[1] After reviewing Hill's affidavit, the bulk of which is quoted in footnote 1, we conclude it is conclusory and is not adequate summary-judgment evidence.

         Hill 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.

         Hill's 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, ...

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