Daugherty, Joyce E. v. Jennifer S. Ray

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-00-00311-CV

____________

JOYCE E. DAUGHERTY, Appellant

V.

JENNIFER S. RAY, Appellee

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Cause No. 99-15774

O P I N I O N

This appeal arises from a legal malpractice dispute. The trial court rendered

a judgment in favor of appellee, Jennifer S. Ray. We affirm.

Background

Appellant, Joyce E. Daugherty, filed suit against her former attorney, Jennifer

S. Ray, on March 29, 1999. The case was called for a bench trial on January 18,

2000. After the parties announced ready, Daugherty asserted her first motion for

continuance. In her motion, she stated that she needed additional time to complete

discovery because: (1) she had received Ray's file on December 13, 1999; (2) access

to Texas law was restricted because of the holidays; (3) the Tulsa Law Library was

closed the week of January 10, 2000; (4) all libraries were closed on January 17,

2000, and on January 15 and 16, there were abbreviated hours; (5) her expert witness

on damages was out of town until February 2000; (6) she needed an additional

opinion from another expert; (7) she was still searching for an expert to determine the

value of her case; and (8) she was initiating an investigation with the Texas State Bar

for disciplinary procedures.

Ray objected to the motion for continuance because it was not supported by

affidavit and because of other procedural deficiencies. Ray also objected that

Daugherty had had since March of 1999 to complete discovery.

The trial court sustained Ray's objections, denied Daugherty's motion for

continuance, and proceeded to trial. On the second day of trial, Daugherty filed a

supplemental request for continuance and argued it to the trial court. The trial court

denied this motion as well. After a trial on the merits, the trial court rendered a take

nothing judgment in favor of Ray.

In her first issue, Daugherty argues that the trial court abused its discretion in

denying her first motion for continuance.

No continuance shall be granted "except for sufficient cause supported by

affidavit, or by consent of the parties, or by operation of law." Tex. R. Civ. P. 251.

We will not disturb the trial court's denial of a motion for continuance except for a

clear abuse of discretion. Villegas v. Carter , 711 S.W.2d 624, 626 (Tex. 1986);

Verkin v. Southwest Ctr. One, Ltd ., 784 S.W.2d 92, 94 (Tex. App.--Houston [1st

Dist.] 1989, writ denied). If a motion for continuance is not verified or supported by

affidavit, the appellate court will presume the trial court did not abuse its discretion

in denying the motion. City of Houston v. Blackbird , 658 S.W.2d 269, 272 (Tex.

App.--Houston [1st Dist.] 1983, writ dism'd) (court of appeals must presume trial

court did not abuse its discretion in denying motion for continuance not verified, as

required by Tex. R. Civ. P. 251, 252). This presumption is rebuttable, not absolute.

Thrower v. Johnston , 775 S.W.2d 718, 720-21 (Tex. App.--Dallas 1989, no writ).

In this case, Daugherty filed an unverified motion for continuance. Therefore,

we presume that the trial court did not abuse its discretion in denying the motion. See

Blackbird , 658 S.W.2d at 272 . Daugherty maintains, however, that she was not

required to file an affidavit because she represented herself pro-se. See Villegas , 711

S.W.2d at 626 ("It would be unrealistic . . . to apply the presumption to lay movants

who without fault have their attorney withdraw."). In Villegas , the Texas Supreme

Court held that the failure to grant a lay movant's continuance was an abuse of

discretion where the trial court allowed a party's attorney to withdraw only two days

before trial, and the attorney refused to turn over the client's file and evidence, all

without fault of the client. See id . at 626-27.

Here, unlike the lay movant in Villegas , Daugherty elected to represent herself

at trial. A pro se litigant must comply with the applicable laws and rules of

procedure. Mansfield State Bank v. Cohn , 573 S.W.2d 181, 185 (Tex. 1978). In addition to failing to file a verified motion for continuance or an

accompanying affidavit, Daugherty also did not meet the requirements of Rule 252.

Specifically, she did not state that the testimony was material and how it was material,

and she did not state that she used due diligence in attempting to obtain the testimony.

Tex. R. Civ. P. 252. The suit was filed on March 29, 1999. The case was set for trial

on January 18, 2000, as memorialized in a scheduling order mailed on June 14, 1999.

Accordingly, Daugherty had at least nine months to prepare for trial. Under these

facts, we conclude that Daugherty has not rebutted the presumption that the trial court

acted within its discretion in overruling her motion for continuance.

We overrule Daugherty's first issue.

In her second issue, Daugherty argues that Ray breached her fiduciary duties

by settling the underlying federal court case without her authority. Specifically,

Daugherty contends that Ray did not prove that the settlement of the underlying case

was fair and equitable. We construe Daugherty's argument as a challenge to the legal

and factual sufficiency of the evidence.

A review of her petition reveals that Daugherty did not assert a cause of action

for breach of fiduciary duties. She alleged causes of action for legal malpractice and

negligent legal representation. Therefore, she has waived this point of error. Tex.

R. App. P. 33.1.

Assuming this issue had been preserved, we would address it using the usual

legal and factual sufficiency standards of review. In reviewing the legal sufficiency

of the evidence, or a "no evidence" point, we consider only the evidence and

inferences that tend to support the finding, and disregard all evidence and inferences

to the contrary. Browning Ferris, Inc. v. Reyna , 865 S.W.2d 925, 928 (Tex. 1993).

If there is more than a "scintilla" of evidence to support the finding, it must be upheld

and the judgment affirmed. Id .

When reviewing a claim that the evidence is factually insufficient, the court of

appeals must first examine all of the evidence. Lofton v. Texas Brine Corp ., 720

S.W.2d 804, 805 (Tex. 1986); State Indus., Inc. v. Corbitt , 925 S.W.2d 304, 306 (Tex.

App.--Houston [1st Dist.] 1996, no writ). After considering and weighing all of the

evidence, the court of appeals should set aside the verdict only if the evidence is so

weak or the finding is so against the great weight and preponderance of the evidence

that it is clearly wrong and unjust. Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986);

Hollander v. Capon , 853 S.W.2d 723, 726 (Tex. App.--Houston [1st Dist.] 1993,

writ denied). The appellate court cannot substitute its opinion for that of the trier of

fact and determine that it would reach a different conclusion. Hollander , 853 S.W.2d

at 726 .

Because findings of fact were neither filed nor requested, the judgment of the

trial court implies all necessary findings of fact to support it. Holt Atherton Indus.,

Inc. v. Heine , 835 S.W.2d 80, 83 (Tex. 1992). Legal and factual sufficiency of the

implied findings may still be challenged on appeal. Id . An appellate court will apply

the same standard of review to sufficiency challenges of implied findings as is

applied in the review of jury findings. Id .; Herter v. Wolfe , 961 S.W.2d 1, 3 (Tex.

App.--Houston [1st Dist.] 1995, writ denied).

In reviewing the legal sufficiency of the evidence, we consider only the

evidence and reasonable inferences tending to support the implied finding, viewing

it in the light most favorable to the verdict. Id . at 3. A legal sufficiency challenge

will be overruled if there is more than a scintilla of evidence to support the implied

finding. Id .

When factual sufficiency of the evidence is challenged, we consider all the

evidence, both in support of and contrary to the challenged implied finding, and

uphold the implied finding unless it is against the great weight and preponderance of

the evidence so as to be manifestly unjust. Id .

The attorney-client relationship is highly fiduciary in nature. Judwin

Properties v. Griggs & Harrison , 911 S.W.2d 498, 506 (Tex. App.--Houston [1st

Dist.] 1995, no writ). This relationship carries the utmost good faith. Id . A cause of

action for breach of fiduciary duty in Texas refers to unfairness in the contract, and

the burden of showing fairness is on the attorney. Id . Unless the client raises the

issue of unfairness or inequitable conduct, however, the presumption of unfairness

will not arise. Id .

According to Daugherty, Ray agreed to a settlement without Daugherty's

authorization, and Ray coerced Daugherty to sign the settlement papers. Ray testified

that, before signing the settlement agreement, federal court Judge Atlas gave a

thorough explanation of Daugherty's options at that point. The agreement was signed

by Judge Atlas and Daugherty. Ray also testified that the settlement was fair and

reasonable, given the causes of action. She stated that the settlement was entered into

with Daugherty's authority, and that she did not prematurely initiate settlement

discussions. Based on this evidence, we conclude there is legally and factually

sufficient evidence to support the trial court's implied findings.

We overrule Daugherty's second issue. Conclusion

We affirm the judgment of the trial court.

Adele Hedges

Justice

Panel consists of Justices Mirabal, Hedges, and Jennings.

Do not publish. Tex. R. App. P. 47.