Court of Appeals of Texas, Eighth District, El Paso
from the County Court at Law Number Six of El Paso County,
Texas (TC# 2016DCV0240)
McClure, C.J., Rodriguez, and Palafox, JJ.
T. RODRIGUEZ, JUSTICE
an appeal from a summary judgment ordering that Appellant
Mercedes Ochoa-Bunsow ("Ochoa") take nothing on her
claims against Appellees Alfonso Soto and Soto Law Firm, P.C.
(collectively, "Soto"). Ochoa sued Soto for
negligence, gross negligence, breach of fiduciary duty, and
violations of the Texas Deceptive Trade Practices Act. Her
claims arise from Soto's representation of her in a tax
dispute with the Internal Revenue Service ("IRS")
in the United States Tax Court ("Tax Court"). The
trial court sustained Soto's objections to the summary
judgment affidavit of Ochoa's expert and granted
Soto's motion for summary judgment on the ground that
there is no evidence of causation. We affirm.
engaged in a business assisting a Mexican company to purchase
pipe in the United States to complete a construction contract
in Mexico. The underlying tax dispute concerns whether money
she received in the course of that business is correctly
classified as income taxable to her, or whether she merely
acted as a conduit for that money so that it is not taxable
to her. Ochoa received a notice of deficiency
from the IRS for the years 2006, 2007, and 2008. The alleged
deficiency totaled $168, 719 (plus interest and penalties),
$121, 065 of which was allocated to the year 2006. Ochoa
hired Soto to represent her in the IRS audit and, if
necessary, before the Tax Court.
2013, Soto filed suit against the IRS, contesting the tax
deficiency. On the day of trial, Soto and the IRS entered a
"Stipulation of Settled Issues" containing
thirty-nine stipulations. The first of those stipulations
concerns the deficiency for 2006. It states, "The total
amount of the gross receipts of [Ochoa's] Schedule C
activity known as International L&P is $477, 121.00. This
amount is $337, 315.00 greater than the amount [Ochoa]
reported on the Schedule C that was attached to her income
tax return." We will refer to this stipulation, which is
at the heart of Ochoa's lawsuit, as "Stipulation
stipulations, as a whole, settled Ochoa's tax liability
for all three disputed years and reduced her overall tax
deficiency from the original $168, 719 to $49,
651. Concerning 2006, the stipulations
reduced Ochoa's tax deficiency from the original $121,
065 to $74, 551.
alleges that Soto entered the stipulations without her
knowledge or consent. When she learned of the stipulations,
and particularly Stipulation One, she hired attorney David
Leeper to attempt to "undo" it. These efforts
reached all the way to the Fifth Circuit Court of Appeals,
but were denied at every stage. Ochoa then brought this
lawsuit against Soto seeking to recoup the additional taxes,
interest, and penalties for which she was liable for the year
2006, as well as punitive damages, fee forfeiture, damages
for mental anguish, and attorney's fees.
filed a motion for traditional and no-evidence summary
judgment asserting, among other grounds, that there is no
evidence of causation. Ochoa responded with an affidavit from
Leeper, as well as excerpts from Leeper's deposition. She
also filed as summary judgment evidence declarations by
herself and a certified public accountant, as well as
deposition excerpts from two additional certified public
accountants. Soto moved to strike Leeper's affidavit on
the grounds that it is a "sham affidavit" and that
the opinions expressed in the affidavit are not admissible
under Rule 702 of the Texas Rules of Evidence, which governs
expert testimony. Soto specifically asserted that
Leeper's opinions concerning causation were speculative
and, thus, unreliable.
trial court signed an order sustaining Soto's objections
to Leeper's affidavit "in their entirety" and
granting the motion to strike. The court subsequently signed
a summary judgment ordering that Ochoa take nothing on her
claims against Soto. It later signed an amended summary
judgment adding a provision awarding costs to Soto.
issues, Ochoa contends that the trial court: (1) abused its
discretion by striking the Leeper affidavit based on the sham
affidavit doctrine; (2) erred by granting summary judgment
because there is other evidence of causation; (3) erred by
granting summary judgment on her claims for fee forfeiture
and mental anguish damages because those claims do not depend
on Leeper's opinions; and (4) abused its discretion by
awarding unsupported costs to Soto.
court's decision to exclude summary judgment evidence is
reviewed for abuse of discretion. Lujan v. Navistar,
Inc., 555 S.W.3d 79, 85 (Tex. 2018). "A trial court
abuses its discretion if it acts in an arbitrary or
unreasonable manner without reference to any guiding rules or
principles." Crawford v. XTO Energy, Inc., 509
S.W.3d 906, 911 (Tex. 2017)(quoting Bowie Mem'l Hosp.
v. Wright, 79 S.W.3d 48, 52 (Tex. 2002)).
granting of a motion for summary judgment is reviewed de
novo. Lujan, 555 S.W.3d at 84; Provident
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211,
215 (Tex. 2003). "Summary judgment is appropriate when
there is no genuine issue as to any material fact and
judgment should be granted in favor of the movant as a matter
of law." Diversicare Gen. Partner, Inc. v.
Rubio, 185 S.W.3d 842, 846 (Tex. 2005). In the context
of a traditional summary judgment, the burden is on the
movant to establish his entitlement to judgment as a matter
of law. Tex.R.Civ.P. 166a(c). In the context of a no-evidence
summary judgment, however, the burden is on the nonmovant to
produce evidence raising a genuine issue of material fact as
to the challenged elements. First United Pentecostal
Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex.
genuine issue of material fact exists if the evidence
"rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions."
Id., (quoting Merrell Dow Pharm., Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997)). The reviewing
court views the evidence in the light most favorable to the
nonmovant and indulges every reasonable inference in the
nonmovant's favor. Shell Oil Co. v. Writt, 464
S.W.3d 650, 654 (Tex. 2015). Even so, "[E]vidence does
not create an issue of material fact if it is 'so weak as
to do no more than create a mere surmise or suspicion'
that the fact exists." Parker, 514 S.W.3d at
220, (quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d
865, 875 (Tex. 2014).
the Leeper affidavit
first issue on appeal, Ochoa contends that the trial court
abused its discretion by striking the Leeper affidavit based
on the sham affidavit doctrine. Under that doctrine, "a
trial court may conclude that a party does not raise a
genuine fact issue by submitting sworn testimony that
materially conflicts with the same witness's prior sworn
testimony, unless there is a sufficient explanation for the
conflict." Lujan, 555 S.W.3d at 87. Soto
invoked that doctrine in this case by objecting that
Leeper's affidavit materially conflicts with his prior
deposition testimony and that there is no explanation for the
argues that the sham affidavit doctrine conflicts with Texas
law and should be abolished. But after Ochoa filed her
opening brief, the Texas Supreme Court considered and
rejected this very argument. See Lujan, 555 S.W.3d
at 86 ("recognizing the sham affidavit rule as a valid
application of a trial court's authority to distinguish
genuine fact issues from non-genuine fact issues under Rule
166a"). The sham affidavit doctrine is therefore a
viable part of Texas law and the trial court did not abuse
its discretion by considering it.
next asserts that the trial court abused its discretion by
striking Leeper's affidavit based on the sham affidavit
doctrine because the affidavit does not materially conflict
with Leeper's prior deposition testimony. We need not
decide this issue, however, because the trial court's
order striking Leeper's affidavit is based on multiple
grounds, not all of which are challenged on appeal.
an appellee urges several objections to challenged evidence
and on appeal, the appellant complains of its exclusion on
only one of those bases, the appellant waives any error by
not challenging all possible grounds for the trial
court's ruling that sustained the objection."
Trahan v. Lone Star Title Co. of El Paso, 247 S.W.3d
269, 284 (Tex.App.-El Paso 2007, pet. denied). Soto objected
to the Leeper affidavit on two grounds: (1) it is a sham
affidavit; and (2) the opinions it contains are not
admissible under Rule 702 of the Texas Rules of Evidence
because they are irrelevant and unreliable. Ochoa argues that
she did not waive error by challenging only the sham
affidavit ground because the trial court's comments at
the summary judgment hearing indicate that it granted
Soto's objection only on that ground. But we are guided
by the court's written order, which unequivocally states
that Soto's objections are granted in their entirety.
next argues that the language of the summary judgment order
shows that the trial court excluded the Leeper affidavit
based only on the sham affidavit objection. The order
Having SUSTAINED Defendants' Objections To and Motion to
Strike Affidavit of David Leeper, the Court concluded that
Plaintiff presented no evidence of causation and therefore
the Court found that Defendants' Motion for Traditional
and No-Evidence Summary Judgment should be GRANTED.
notes that Soto moved to strike Leeper's affidavit under
Rule 702 based on his use of the wrong standard of care and
his lack of methodology concerning damages. She then argues
that, if the trial court had truly granted all of Soto's
objections, the order would have contained recitations
concerning breach and damages in addition to the recitation
concerning causation. Ochoa overlooks the fact that
Soto's Rule 702 objections included an objection that
Leeper's opinions on causation were based on speculation
and were, therefore, unreliable. Thus, the court's
reference in the summary judgment order to a lack of evidence
of causation does not necessarily mean that it struck the
Leeper affidavit based only on the sham affidavit doctrine.
the trial court granted Soto's objections to the Leeper
affidavit based both on the sham affidavit doctrine and Rule
702, it was Ochoa's obligation to challenge both grounds
on appeal. See Trahan, 247 S.W.3d at 284. She did
not, however, challenge the exclusion of the Leeper affidavit
based on Rule 702. As a result, she ...