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Ochoa-Bunsow v. Soto

Court of Appeals of Texas, Eighth District, El Paso

August 16, 2019

MERCEDES OCHOA-BUNSOW, Appellant,
v.
ALFONSO SOTO and SOTO LAW FIRM, P.C., Appellees.

          Appeal from the County Court at Law Number Six of El Paso County, Texas (TC# 2016DCV0240)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          YVONNE T. RODRIGUEZ, JUSTICE

         This is 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.

         BACKGROUND

         Ochoa 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.[1] 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.

         In 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 One."

         The 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.[2] Concerning 2006, the stipulations reduced Ochoa's tax deficiency from the original $121, 065 to $74, 551.

         Ochoa 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.

         Soto 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.

         The 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

         In four 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.

         STANDARDS OF REVIEW

         A trial 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)).

         The 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. 2017).

         A 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).

         DISCUSSION

         Striking the Leeper affidavit

         In her 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 conflict.

         Ochoa 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.

         Ochoa 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.

         "When 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.

         Ochoa 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 recites,

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.

         Ochoa 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.

         Because 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.[3] As a result, she ...


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