McInnis v. Mallia (Tex.App. Houston 2008)

McInnis, D.V.M. v. Michael Mallia, J.D., (Tex.App.- Houston [14th Dist.] June 10, 2008)
(Maj op. by Frost)
(malpractice)
REVERSED AND REMANDED: Opinion by
Justice Kem T. Frost  
Before Justices Fowler, Frost and Seymore
14-06-00354-CV Janine Charboneau McInnis, D.V.M. v. Michael Mallia, J.D., The Mallia
Law Firm, P.C., Tommy Hastings, J.D.
Appeal from 281st District Court of Harris County

DISSENTING:
Dissenting Opinion by Justice Seymore  

M A J O R I T Y   O P I N I O N

In this legal-malpractice case, appellant, a law firm=s former client, challenges a no-
evidence summary judgment in favor of the law firm and the lawyers that represented her
in prior medical-malpractice litigation, alleging, among other things, inadequate time for
discovery.  We conclude that the trial court abused its discretion in determining that an
adequate time for discovery had passed and therefore the trial court erred in granting
the no-evidence summary judgment.  We reverse and remand.

I.  Factual and Procedural Background

In pursuing her medical-malpractice claim, appellant Janine Charboneau McInnis sought
legal representation from appellees Michael Mallia, J.D., The Mallia Law Firm, P.C., and
Tommy Hastings, J.D. (Appellees are referred to collectively as the "Law Firm" and
individually as "Mallia," "the Mallia Law Firm," and  "Hastings").  In the ensuing medical-
malpractice suit, McInnis alleged claims against a surgeon and the professional
corporation to which the surgeon belonged, seeking to recover damages she allegedly
suffered as a result of complications following a surgical procedure.  In its representation
of McInnis, the Law Firm agreed to non-suit the surgeon=s professional corporation,
leaving only the surgeon as a party defendant in the suit.  After a trial on the merits, a
jury returned a verdict in favor of the surgeon.

Following her unsuccessful medical-malpractice suit, on May 23, 2005, McInnis, as a pro
se plaintiff, filed a legal-malpractice suit against the Law Firm alleging that her loss in the
underlying medical-malpractice suit was attributable to the Law Firm's negligence and
breaches of fiduciary duty in handling her claims.  According to McInnis's petition in the
legal-malpractice suit, the Law Firm's decision to non-suit the surgeon's professional
corporation, a party that allegedly was jointly and severally liable for McInnis's damages,
gave rise to her legal-malpractice claims.

Under Texas Rule of Civil Procedure 190.4 (level 3) the trial court issued a docket
control order for the legal-malpractice suit, setting the following deadlines:  

October 3, 2005     Deadline to join additional parties

March 23, 2006      Deadline for parties seeking affirmative relief to designate experts

April 24, 2006        Deadline to designate all other experts

June 23, 2006        End of discovery period

June 23, 2006        Deadline for challenges to expert testimony



June 23, 2006        Deadline to amend pleadings

July 23, 2006         Trial setting

As part of the discovery process and during the period designated for discovery, McInnis
served requests for production and interrogatories on Mallia and the Mallia Law Firm, as
well as requests for disclosure.  

Eight months before the end of the discovery period, on October 25, 2005, the Law Firm
filed a no-evidence motion for summary judgment to be heard by submission without oral
hearing on November 21, 2006.  In the five-page motion, the Law Firm asserted that
there already had been an adequate time for discovery.   The Law Firm served McInnis
with responses to her discovery requests on November 14, 2005, which is the same day
McInnis=s response to the no-evidence summary-judgment motion was due.  McInnis
claims to have filed a response to the Law Firm=s no-evidence motion and a motion for
continuance on that date.[1]  In the motion for continuance, McInnis claimed she needed
further discovery.  To support her plea for additional time, McInnis explained that she
needed to review over eighty boxes of records, and she also stated that she suffers from
severe and chronic pain and problems in her legs.  The trial court denied McInnis=s
motion for continuance and, on January 5, 2006, granted the Law Firm=s motion for
summary judgment.  On appeal to this court McInnis challenges the trial court=s
summary judgment.[2]    

II.  Issues and Analysis

In her first issue, McInnis claims, inter alia, that there was not an adequate amount of
time for discovery. A party may move for a no-evidence summary judgment A[a]fter
adequate time for discovery.@  Tex. R. Civ. P. 166a(i).  Notably, the rule does not
require that discovery must have been completed, but rather that there was Aadequate
time.@  In re Mohawk Rubber Co., 982 S.W.2d 494, 498 (Tex. App.CTexarkana 1998,
orig. proceeding).  The comment to rule 166a(i) provides, AA discovery period set by pre
[-]trial order should be adequate opportunity for discovery unless there is a showing to
the contrary, and ordinarily a motion under paragraph (i) [a no-evidence motion] would
be permitted after the period but not before.@  Tex. R. Civ. P. 166a(i) cmt. (emphasis
added); see Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.CHouston
[14th Dist.] 2000, pet. denied).  Unlike other notes and comments in the rules of civil
procedure, this comment was specifically intended to inform the construction and
application of this rule.  See Tex. R. Civ. P. 166a(i) cmt.; Specialty Retailers, Inc., 29 S.W.
3d at 145. Applying the plain language of the comment, a no-evidence summary
judgment motion ordinarily is not permitted before the expiration of the discovery period
set by the pre-trial order.  Thus, our principal task is to determine if this record provides
support for the trial court=s consideration of a no-evidence summary-judgment motion
more than seven months before the end of the discovery period.  The pertinent date for
this inquiry is the final date on which the no-evidence motion is presented to the trial
court for ruling, which in this case was November 21, 2006.  On this date, the lawsuit had
been on file for six months, and less than half of the discovery period had expired.[3]  In
resolving this issue, we must determine if the trial court=s decision to treat this case as
an exception to the ordinary rule constitutes an abuse of discretion.

In considering whether the trial court permitted an adequate time for discovery, we
consider the following factors:  (1) the nature of the case, (2) the nature of the evidence
necessary to controvert the no-evidence motion, (3) the length of time the case was
active, (4) the amount of time the no-evidence motion was on file, (5) whether the
movant had requested stricter deadlines for discovery, (6) the amount of discovery that
already had taken place, and (7) whether the discovery deadlines in place were specific
or vague.  Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 467 (Tex. App.
CHouston [14th Dist.] 2005, pet. denied); Specialty Retailers, Inc., 29 S.W.3d at 145.  
We review a trial court=s determination that there has been an adequate time for
discovery on a case-by-case basis, under an abuse-of-discretion standard.  Brewer &
Pritchard, P.C., 167 S.W.3d at 467.  

The Nature of the Case and the Evidence Necessary to Defeat the Motion

McInnis has alleged negligence and breach of fiduciary duty against the Law Firm in its
representation of her in the underlying medical-malpractice suit.  Generally, to recover
on a claim for legal malpractice, a plaintiff must prove (1) the attorney owed the plaintiff a
duty; (2) the attorney breached the duty; (3) the breach proximately caused the
plaintiff=s injuries; and (4) damages occurred.  Peeler v. Hughes & Luce, 909 S.W.2d
494, 496 (Tex. 1995); Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989).  Thus, to
maintain a legal-malpractice action that arises from prior litigation, McInnis must prove a
Asuit within a suit@ by demonstrating that Abut for@ the Law Firm=s negligence, she
would have prevailed on the underlying medical-malpractice suit and would have been
entitled to judgment.  See Schlager v. Clements, 939 S.W.2d 183, 186 (Tex. App.
CHouston [14th Dist.] 1996, writ denied).  A plaintiff in a legal-malpractice suit is required
to present expert testimony regarding the standard of skill and care ordinarily exercised
by an attorney.  See Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex. App.
CAustin 2002, pet. denied).  Because of these requirements, a legal-malpractice suit is
considered complex litigation.



In this case, the trial court entered a docket control order that set forth various pre-trial
deadlines.  The parties were not required to designate expert witnesses until March 23,
2006, a deadline that would not have run until five months after the Law Firm filed its
motion for summary judgment.  Generally, the more complex the case, the more time a
trial court will allocate for discovery.  Both parties have acknowledged the complexity of
the case under review, with the Law Firm referring to the legal-malpractice action as a
Asuit-within-a-suit.@  See Schlager, 939 S.W.2d at 186.  In her motion for a
continuance, McInnis pointed to various factors contributing to the complexity of the
case, including her medical condition and her need to review over sixty boxes of material
from the underlying medical-malpractice case, as well as more than twenty other boxes
of records pertinent to the current action.  McInnis also indicated a need to serve the
Law Firm with additional requests for disclosure as to Mallia and the Mallia Law Firm as
well as requests for admissions and interrogatories as to Mallia.

To have defeated a no-evidence motion for summary judgment, McInnis would have to
have pointed out to the trial court summary‑judgment evidence of probative force to
raise a genuine issue of fact as to the essential elements attacked in the no‑evidence
motion.  See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 206B08 (Tex. 2002).  
Generally, a trial court may presume that plaintiffs have investigated their cases prior to
filing suit.  See Carter v. MacFadyen, 93 S.W.3d 307, 311 (Tex. App.CHouston [14th
Dist.] 2002, pet. denied).  Though this may be true especially in regard to health-care-
liability claims, which carry a requirement that within six months the claimant file an expert
report establishing standard of care, negligence, and causation, this case is a Asuit-
within-a-suit.@  See id.; see also Schlager, 939 S.W.2d at 186B87 (referring to Asuit
within a suit@ proof).  For this Asuit within a suit,@ even though McInnis may be
presumed to have investigated her underlying medical-malpractice case, for her legal-
malpractice suit against the Law Firm, the evidence necessary to controvert the Law
Firm=s no-evidence motion requires a scintilla of probative evidence to raise a question
of material fact on the elements challenged by the Law Firm.  See Restaurant Teams
Int=l, Inc., 95 S.W.3d at 339.  In its motion for summary judgment, the Law Firm
specifically alleged that McInnis had no evidence that she would have prevailed on the
underlying medical-malpractice claim, nor that she would have been entitled to judgment
but for the Law Firm=s negligence, and finally, that no evidence suggests the Law
Firm=s actions constituted a breach of fiduciary duty.  The Law Firm, however, did not
serve McInnis with answers to the requests for admissions until after the Law Firm filed
the no-evidence motion.  After receiving the Law Firm=s responses,  McInnis alleged that
the Law Firm had withheld an answer regarding duty for one of her requests, which is
what she claims prompted her motion for continuance to further discovery.

Given the complex nature of the legal claims asserted, the factual complexity of the case,
and the type of evidence necessary to defeat the Law Firm=s no-evidence motion,
McInnis adequately demonstrated a legitimate need  for additional discovery.

Length of Time the Case Was Active and the No-Evidence Motion Was on File

The legal-malpractice suit had been on file for five months when the Law Firm moved for
summary judgment, and the motion had been on file for approximately two months before
the trial court granted it in favor of the Law Firm.  Under the trial court=s docket control
order, approximately eight months remained in the period designated for discovery when
the Law Firm filed its motion; less than half of the time the trial court allotted for discovery
at the commencement of the case had expired.  Likewise, at the time the Law Firm filed
its no-evidence motion, the date by which to designate expert witnesses would not run
until March 23, 2006, a date that was then five months in the future.

Under Rule 166a(i), there is no specific minimum amount of time that a case must be
pending before a trial court may entertain a no-evidence summary-judgment motion;
rather, the rule requires an Aadequate time for discovery.@ See Tex. R. Civ. P. 166a(i);
Specialty Retailers, Inc. 29 S.W.3d at 145.  The amount of time necessary to constitute
an Aadequate time@ depends on the facts and circumstances of each case.  See, e.g.,
Restaurant Teams Int=l, Inc., 95 S.W.3d at 340; McClure v. Attebury, 20 S.W.3d 722,
729 (Tex. App.CAmarillo 1999, no pet.) (finding that adequate time had passed when a
case was pending for seven months).   The time allocated for discovery in the docket
control order is a strong indicator of adequate time, though the deadline for discovery is
not a conclusive measure of Aadequate time.@ See Carter, 93 S.W.3d at 311.  
Depending on the facts of the case, the time allocated for discovery may be more than is
necessary and, thus, an adequate time may be less than the amount the trial court
allocated.  Likewise, circumstances might arise after the entry of the docket control order
that would render the time initially allocated for discovery inadequate.  Ordinarily,
however, the deadline specified in the docket control order is the best indicator.        The
rule tells us that, ordinarily, Aadequate time@ may be gauged by the period designated
in the pretrial order.  This approach makes sense because the deadlines are typically
set at the onset of the case based on information provided by the parties about the
nature and complexity of the litigation.  Litigants and lawyers need to be able to rely on
the schedule in planning and pursuing discovery.  Adherence to the deadlines in the
docket control order holds the most promise for meeting the parties= legitimate
expectations for discovery and for promoting a fair and orderly development of the
evidence.  In this case, the Law Firm did not identify, and the record does not suggest,
any factors that would weigh against application of the ordinary rule.  

Given the complexity of this Asuit within a suit@ and the fact-intensive response
required, the minimal length of time the case and motion had been on file did not provide
adequate time for discovery.  See Brewer & Pritchard, P.C., 167 S.W.3d at 468; accord
McClure, 20 S.W.3d at 729; see also Cmty. Initiatives, Inc. v. Chase Bank of Texas, 153
S.W.3d 270, 278, 279 (Tex. App.CEl Paso 2004, no pet.) (indicating that a fact-intensive
response and a motion on file for roughly one to two months suggested adequate time
for discovery had not passed).

Factors Involving Discovery

The final factors for consideration are (1) whether the deadlines were specific or vague,
(2) whether the movant had requested stricter deadlines for discovery, and (3) how
much discovery already had taken place .

The trial court=s docket control order specified that discovery was to take place through
June 23, 2006.  The language of the docket control order is specific and unambiguous
regarding the length of the discovery period.  Thus, the discovery period in this case is
not vague or uncertain, and this factor is neutral.  See Restaurant Teams Int=l, Inc., 95 S.
W.3d at 341.

The record does not reflect that the Law Firm formally requested stricter deadlines for
discovery.  However, by seeking a no-evidence summary judgment eight months before
the discovery deadline and less than halfway through the designated discovery period,
the Law Firm implicitly requested the trial court to cut the discovery period short, and
accordingly, impose stricter deadlines for discovery.  See id.; accord Tex. R. Civ. P. 166a
(i).  This factor weighs in favor of McInnis.  See Restaurant Teams Int=l, Inc., 95 S.W.3d
at 341.

As to how much discovery already had taken place, the record reflects McInnis had
served the Law Firm with multiple written requests for discovery.  See id.  The Law
Firm=s responses were not returned to McInnis until after the Law Firm filed its motion for
summary judgment.  Furthermore, after the Law Firm served its responses, McInnis
alleged that the Law Firm did not wholly answer all requested admissions.[4]  According
to McInnis, the Law Firm had abused the discovery process by withholding information
that she intended to use as summary-judgment evidence in her response to the Law
Firm=s motion.  A party should not be able to abuse the discovery process by
withholding key evidence from a party opponent and then use that lack of evidence to
win a judgment.  See Specialty Retailers, Inc., 29 S.W.3d at 145 (providing that if a
nonmovant established abuse of the discovery process, the nonmovant may likely
establish that there was not an adequate time for discovery); Tempay, Inc. v. TNT
Concrete & Constr., Inc., 37 S.W.3d 517, 522B23 (Tex. App.CAustin 2001, pet. denied)
(holding that the trial court abused its discretion in determining that adequate time for
discovery had passed because movant successfully resisted nonmovant=s attempts to
obtain discovery); see also Robert W. Clore, Texas Rule of Civil Procedure 166a(i):  A
New Weapon for Texas Defendants, 29 St. Mary=s L.J. 813, 843 (1998) (providing that a
nonmovant Awho could show the defendant delayed discovery by failing to answer the
plaintiff=s interrogatories would likely be entitled to further discovery@).  McInnis levied
more than an accusation that the Law Firm abused the discovery process; the record
reflects McInnis filed a motion for sanctions against the Law Firm based on her
allegations of the Law Firm=s discovery abuse.[5]  See Specialty Retailers, Inc., 29 S.W.
3d at 145B46 (indicating that upon a showing of discovery abuse, beyond mere
accusation, Ait would likely be enough to establish that there was not an adequate time
for discovery@).  Cf. Green v. Quality Dialysis One, L.P., No. 14-05-01247, 2007 WL
2239295, at *3 (Tex. App.CHouston [14th Dist.] Aug. 7, 2007, no pet.) (noting how the
record contained no information that nonmovant made additional efforts to obtain
discovery when movant allegedly provided inadequate discovery responses).  In light of
how much discovery McInnis already had conducted, how much more discovery she
needed, and the fact that the Law Firm allegedly withheld information in discovery, this
factor weighs in favor of McInnis in permitting further time for discovery.  See Tempay,
Inc., 37 S.W.3d at 522B23; Specialty Retailers, Inc., 29 S.W.3d at 145; see also
Community Initiatives, Inc., 153 S.W.3d at 278, 279 (considering diligence in obtaining
discovery depositions in determining whether there had been adequate time for
discovery).

III.   Conclusion

We conclude the trial court abused its discretion in implicitly finding that this case fell
outside the ordinary rule, as set forth in the comment to rule 166a(i), and in allowing a
no-evidence motion more than five months before the expiration of the discovery period
set forth in the docket control order.  See Brewer & Pritchard, P.C., 167 S.W.3d at 468.  
Ordinarily, a no-evidence motion is permitted after but not before the discovery period
set by the pre-trial order.  See Specialty Retailers, Inc., 29 S.W.3d at 145.  The trial court
permitted a no-evidence motion less than halfway through this period with no showing in
the record to justify deviation from the general rule.  Under the particular circumstances
of this complex case,  McInnis was not provided an adequate opportunity to conduct
discovery.  See id.  For this reason, the trial court should not have granted the Law
Firm=s no-evidence motion for summary judgment.  See id.; Tempay, Inc., 37 S.W.3d at
523. To this extent, we sustain McInnis=s first issue.[6]  

The judgment of the trial court is reversed and this case is remanded for proceedings
consistent with this opinion.

/s/      Kem Thompson Frost

Justice


Judgment rendered and Majority and Dissenting Opinions filed June 10, 2008.

Panel consists of Justices Fowler, Frost, and Seymore. (Seymore, J., dissenting).



--------------------------------------------------------------------------------

[1]  The parties dispute whether McInnis timely filed a response to the Law Firm=s no-
evidence summary-judgment motion.

[2]  McInnis also raises two other issues: denial of McInnis=s motion for new trial (issue
2), and failure to rule on McInnis=s motion for sanctions (issue 3).  For reasons
explained below, we do not reach either.

[3]  Our dissenting colleague focuses on the date on which the trial court granted
summary-judgment; however, the time between final submission of the motion to the
court and the court=s ruling on the motion cannot be counted as part of the adequate
time for discovery.  See Brewer & Pritchard, P.C. v. Johnson, 167 S.W.3d 460, 467 (Tex.
App.CHouston [14th Dist.] 2005, pet. denied) (stating that a party may move for a
no‑evidence summary judgment only after adequate time for discovery). Therefore, the
key date is November 21, 2006.     

[4]  McInnis claims that the Law Firm neither admitted nor denied one question in her
request for admissions regarding a breach of duty.  Additionally, McInnis states that the
Law Firm responded to one request for admission with a comment that it Awill
supplement.@  McInnis alleges that because the Law Firm resisted discovery, she was
unable to use the Law Firm=s responses in her original summary judgment response
purportedly filed on November 14, 2005, which is why she requested a continuance in
the case for further discovery.

[5] The record reflects that McInnis filed this motion for sanctions shortly after the trial
court granted summary judgment.  Although the record contains no notice of hearing or
other direct evidence that the motion for sanctions was set for hearing, McInnis stated in
her motion for new trial and at the hearing on that motion that her sanctions motion was
set for hearing on February 6, 2006.  In her third issue, McInnis asserts that the trial
court erred by failing to rule on this motion.  However, our record contains no information
regarding any hearing on February 6, 2006.  At the hearing on her motion for new trial,
McInnis did not state that the trial court had refused to hear her motion on February 6,
2006.  Even presuming that this motion was set for hearing on February 6, 2006, our
record is silent as to what occurred at that time.  On this record, we cannot say the trial
court reversibly erred by failing to rule on McInnis=s motion for sanction.  Accordingly, we
overrule her third issue.

[6]  Having sustained this part of McInnis=s first issue, we need not reach the remainder
of her first issue or her second issue.


DISSENTING  OPINION  BY JUSTICE SEYMORE

A party may file a no-evidence summary judgment "[a]fter adequate time
for discovery."  Tex. R. Civ. P. 166a(i).  However, there is no requirement
that discovery be completed; the requirement is an adequate amount of
time.  Specialty Retailers, Inc. v. Fuqua, 29 S.W.3d 140, 145 (Tex. App.C
Houston [14th Dist.] 2000, pet. denied).  Whether a nonmovant had
adequate time for discovery under rule 166(a)(i) is case specific, and
there is no bright line test to determine whether an adequate time for
discovery has passed.  See Rest. Teams Int=l, Inc. v. MG Sec. Corp., 95
S.W.3d 336, 339 (Tex. App.- Dallas 2002, no pet.).  Rather, we consider a
number of factors to determine whether a trial court allowed adequate time
for discovery.  See Specialty Retailers, 29 S.W.3d at 145.

Although some factors in this case indicate there may have been
inadequate time for discovery, I conclude the trial court acted within its
discretion by finding McInnis had an adequate time for discovery.  

Trial courts may presume a plaintiff investigated his own case prior to filing
suit.  See Carter v. MacFadyen, 93 S.W.3d 307, 311 (Tex. App.- Houston
[14th Dist.], pet. denied).  Here, McInnis filed suit on May 23, 2005, and
the lawsuit had been on file for seven months before the court ruled on the
motion for summary judgment.

A trial court commits an abuse of discretion only when it acts in an
arbitrary or unreasonable manner or acts without reference to any guiding
rules or principles.  Garcia v. Martinez, 998 S.W.2d 219, 222 (Tex. 1999).  
After reviewing the record, I cannot conclude the trial court acted in either
an arbitrary or unreasonable manner or acted without reference to guiding
rules or principles.  Accordingly, I respectfully dissent.

/s/        Charles W. Seymore

Justice











Judgment rendered and Majority and Dissenting Opinions filed June 10,
2008.

Panel consists of Justices Fowler, Frost, and Seymore. (Frost, J., majority)