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Ghidoni v. Skeins

Court of Appeals of Texas, Fifth District, Dallas

May 10, 2019


          On Appeal from the 225th District Court Bexar County, Texas Trial Court Cause No. 2015CI10318

          Before Justices Brown, Schenck, and Pedersen, III.



         Appellant Donald E. Ghidoni sued his counsel, appellees Harry Skeins Jr., Paula K. Williamson, and Skeins & Williamson, P.C., for alleged legal malpractice arising from their representation of Ghidoni in a prior lawsuit. The district court rendered a take-nothing judgment against Ghidoni, and he appeals the judgment. We affirm.


         In 1983, Stone Oak, Inc., a residential real estate developer, leased a tract of property in San Antonio from the property's owners for the purpose of drilling water wells to provide water service to nearby residents. As it turned out, the same parcel had previously been leased to Ghidoni, and his lease gave him a right of first refusal to purchase the property. Ghidoni filed suit against the lessors and Stone Oak, and the suit settled in September 1984. Under the terms of the settlement, Stone Oak assigned its own option to purchase the property under its lease to Ghidoni. In the event that Ghidoni exercised the option, the parties agreed that he would become the lessor under Stone Oak's lease. The settlement also provided, among other terms, that Stone Oak's wells could not generate noise in excess of 50 decibels at the well site perimeter.

         In 1986, Ghidoni exercised his option to purchase the property. In 1992, Ghidoni terminated Stone Oak's lease based on its purported violation of the noise limits set forth in the prior settlement. That same year, Stone Oak filed a declaratory judgment and breach of contract suit against Ghidoni in Bexar County District Court. Stone Oak sought an injunction enjoining Ghidoni from restricting or preventing Stone Oak's access to the subject property to perform inspections and maintenance of its wells and equipment located on the property. Stone Oak alleged that a failure of its equipment would result in a loss of water service to "thousands of households in Stone Oak's service area." In response, Ghidoni filed counterclaims, including a claim for breach of contract arising from the noise level default and for damages based on the value of the water removed after the lease was purportedly terminated.

         Hill Country Waterworks Company, an entity owned by Stone Oak, joined the suit as a plaintiff, though the record does not indicate when this joinder occurred. In addition, in July 1993, Hill Country, S.A. Ltd. intervened as a plaintiff on the basis that it had purchased the assets of Stone Oak and Hill Country Waterworks, including Sone Oak's rights under its lease.[1]

         The case was tried before a jury in August 1994. During the trial, appellees, as Ghidoni's counsel, offered into evidence Defendant's Exhibit 32, which was a map of the San Antonio Water System. In Ghidoni's view, this exhibit undermined Stone Oak's case because the exhibit showed that an alternative source of water was available to residents in Stone Oak's service area. Ghidoni claims that the court admitted Exhibit 32, subject to the limitation that the exhibit's "meaning . . . could not be discussed in the presence of the jury or any mention made of alternative sources of water." The reporter's record from the trial states that Exhibit 32 was "offered and received into evidence." However, the reporter's record contains no mention of any limitation on the use of Exhibit 32.

         On September 1, 1994, the court rendered judgment that Ghidoni take nothing with respect his counterclaims. The judgment also declared that Stone Oak and Hill Country Waterworks were not in default of the lease, and it permanently enjoined Ghidoni from restricting Hill Country, S.A.'s access to, or use of, the subject property. In addition, the judgment ordered that Hill Country, S.A. recover from Ghidoni $126, 958.75 in attorney's and paralegal's fees, and that Stone Oak and Hill Country Waterworks recover from Ghidoni $111, 921 in such fees.

         Ghidoni appealed the judgment. The San Antonio Court of Appeals affirmed and modified the judgment in part, and reversed and remanded it in part. See Ghidoni v. Stone Oak, Inc., 966 S.W.2d 573, 588 (Tex. App.-San Antonio 1998, pet. denied) (opinion on motion for rehearing en banc). Following the conclusion of a related bankruptcy proceeding, the remanded portion of the 1994 judgment proceeded in Bexar County District Court. The court rendered judgment on July 22, 2013.

         Nearly two years later, in June 2015, Ghidoni sued appellees in Bexar County District Court for legal malpractice related to the 1994 trial. His petition alleges, among other grounds, that appellees committed malpractice by neither requesting a record regarding the court's ruling on Exhibit 32 nor making a bill regarding the content and meaning of this exhibit. He also faults appellees for not providing evidence other than Exhibit 32 to show an alternative source of water for the affected Bexar County residences. Appellees moved to dismiss Ghidon's suit on the basis that it was barred by estoppel, limitations, and laches. The district court granted appellees' motion, but our sister court reversed the district court's ruling and remanded the case for further proceedings. See Ghidoni v. Skeins, 510 S.W.3d 707, 709-10, 713 (Tex. App.-San Antonio 2016, no pet.).

         On September 7, 2017, Ghidoni's malpractice case was tried before the court. During the trial, Ghidoni offered two affidavits signed by Skeins that summarized the pertinent events from the 1994 trial. In these affidavits, [2] Skeins averred that opposing counsel objected to the admission of Exhibit 32 on the basis that the document had not previously been produced. According to Skeins, Ghidoni was on the witness stand at the time and remarked that the exhibit had in fact been produced. Apparently prompted by this remark, the trial court directed the jury to leave the courtroom. The court then "berated" Ghidoni for his comment and threatened to hold him in contempt should he make any similar remarks going forward. Also while the jury was out, the court heard arguments from counsel regarding the relevance of Exhibit 32. By Skeins's recollection, the court admitted the exhibit into evidence but stated that "it could not be discussed in front of the jury." Nor could the parties or their attorneys "mention any facts to the jury related to alternative sources of water." Skeins also averred that a record of the entire trial was requested before the trial began, and the court reporter was in her seat when the foregoing events transpired.

         In the 2017 trial, Ghidoni also proffered Kenneth Anderson, Jr., a San Antonio attorney, to testify as an expert regarding appellee's purported malpractice. Ghidoni retained Anderson while the underlying case was on appeal to investigate why a complete record was not made regarding Exhibit 32. Anderson has a degree in accounting from the University of Houston and a law degree from South Texas College of Law. He began his law practice in 1986, and he has handled between twenty-five and thirty jury trials over his career. His practice focuses on family law and on real estate matters. He has also practiced in other areas, including his handling of between fifteen and twenty legal malpractice cases. In addition, Anderson has dealt with cases involving water rights, [3]declaratory judgments, and requests for injunctive relief, though he provided no further detail regarding these cases. ...

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