Opinion

Opinion issued December 30, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-08-00954-CV

———————————

Raul Resendez, Individually, and Resendez & Associates , Appellants

V.

Pat Maloney,

Jr., Individually, Law Offices of

Pat Maloney, P.C., James E. Willingham, Jr. ,

Individually, AND LAW OFFICES OF JIM WILLINGHAM, P.C., Appellees

On Appeal from the 133rd District Court

Harris County, Texas

Trial Court Case No. 2006-44980

MEMORANDUM OPINION

This

is an appeal in a legal malpractice case. The malpractice claim arose from a suit filed

by appellants Raul Resendez and Resendez & Associates (collectively,

Resendez) against Pace Concerts, Inc., SFX Entertainment, and Pace Concerts,

Ltd. for fraudulent inducement to contract.

In that case, Resendez did not carry his burden at trial or on appeal to

show that the doctrine of partial performance excepted his alleged contract

from the statute of frauds. See Resendez v. Pace Concerts , No.

07-02-0168-CV, 2003 WL 22207641 , at *2 (Tex. App.—Amarillo Sept. 24, 2003, pet.

denied). After his motion for rehearing

and petition for discretionary review to the Texas Supreme Court were denied,

Resendez sued his attorneys, alleging that they committed legal malpractice by not

properly presenting his appellate arguments.

In

the legal malpractice case, the trial court rendered summary judgment in favor

of the appellees, Resendez’s former attorneys.

The trial court held that the summary-judgment evidence established as a

matter of law that (1) Resendez’s claims in the underlying litigation were

barred by the statute of frauds, (2) there was insufficient evidence to raise a

fact question as to partial performance or as to whether the various writings

between the parties constituted a valid and enforceable contract, and (3)

Resendez would not have been entitled to benefit-of-the-bargain damages even if

his partial performance argument were meritorious.

On appeal, Resendez contends that trial

court erred in granting summary judgment because none of the stated bases could

be sustained. We affirm.

I.

Background

A.

Former

business relationship

Resendez and Pace Concerts were

both in the business of producing and promoting live music entertainment

events. Resendez specialized in concerts

and events involving Latin and Hispanic entertainers. In the 1990s, Resendez worked with Pace

Concerts (and later its successor in interest, SFX Entertainment) to promote

Latin music events jointly. Resendez

exchanged letters and memoranda with Pace Concerts and SFX Entertainment. In these writings, the parties negotiated

terms of a potential partnership and repeatedly stated or alluded to the fact

that no partnership agreement had yet been finalized. None of these writings was signed by a representative

of Pace Concerts or SFX Entertainment.

Only one letter was signed by Resendez. In it, Resendez recounted the parties’ prior

negotiations and attempted to persuade Pace Concerts of his unique and valuable

attributes as a potential partner in promoting Latin and Hispanic

entertainment.

From

April 1997 through August 1999, Resendez and Pace Concerts jointly promoted 23

events. In January 1998, SFX

Entertainment purchased Pace Concerts and continued to operate both under its

own name and in the name of Pace Concerts. Both Pace Concerts and SFX Entertainment sent numerous

letters and press releases generally describing Resendez as a business partner,

mentioning Resendez’s participation in promotion of particular events, or

referring to “PACE/Resendez.”

In

early 1999, Resendez told SFX Entertainment that a Mexican company was

interested in acquiring smaller companies that promoted Latin and Hispanic

entertainers. SFX Entertainment was

informed that Resendez & Associates and Cardenas/Fernandez &

Associates, Inc. were both possible targets for acquisition. SFX Entertainment began negotiating with Cardenas/Fernandez

& Associates, Inc. Meanwhile, Resendez

proposed a significant expansion of SFX Entertainment’s Latin/Hispanic

business. SFX Entertainment ultimately declined

the Resendez proposal, noting its interest in a continued relationship “on an

event-by-event basis.” Shortly

thereafter, Pace Concerts sent Resendez a proposal to jointly promote an event. Around the same time, Pace Concerts sent

letters to third parties representing that it “partnered all” and “always co-promotes”

its Latin shows with Resendez.

SFX

Entertainment sent Resendez two letters stating its legal conclusion that no

contractual relationship or partnership existed between the parties and

emphasizing that future joint projects would continue to be on an

event-by-event basis. Two days after SFX

Entertainment informed Resendez of its decision not to enter into a partnership,

SFX Entertainment announced that it had entered into a strategic alliance with

Cardenas/Fernandez & Associates to promote sports and entertainment events

of particular interest to the Hispanic market.

B.

Litigation

over alleged partnership

Resendez sued Pace Concerts and SFX

Entertainment in Bexar County for breach of fiduciary duty and other causes of

action arising from their business relationship. In response, Pace Concerts and SFX

Entertainment pleaded the statute of frauds.

Approximately one week later, Pace Concerts and SFX Entertainment filed suit

in Harris County, seeking a declaratory judgment that they had no partnership

agreement or relationship with Resendez.

Rodney Eckerman testified in a

deposition that he had been the president of Pace Concerts and that he became

the executive vice-president and chief operating officer of SFX Entertainment. He testified that Pace Concerts never

intended to enter into a long-term relationship with Resendez. Pace Concerts and SFX Entertainment filed a

motion for summary judgment, and the trial court held a hearing. Before the trial court ruled on the motion

for summary judgment, Resendez nonsuited his Bexar County lawsuit and filed a

counterclaim for fraudulent inducement to contract in the Harris County case.

The

Harris County trial court granted summary judgment in favor of Pace Concerts

and SFX Entertainment, concluding that the enforcement of any alleged

partnership agreement was barred by the statute of frauds, that the statute of

frauds also precluded recovery for fraudulent inducement to contract, and that

benefit-of-the-bargain damages could not be awarded on a theory of fraud or

fraudulent inducement in the absence of an enforceable contract. Resendez appealed, and his appeal was

transferred to the Amarillo Court of Appeals.

He argued on appeal that the trial court erred in concluding as a matter

of law that benefit-of-the-bargain damages were unrecoverable on the causes of

action he alleged. He also argued that

the statute of frauds “cannot be used as an engine of fraud.” The court of appeals held that “Resendez

cannot assert fraud in the inducement to recover damages measured by the

benefit of the bargain when the contract manifesting the bargain is

unenforceable due to the Statute of Frauds.”

Resendez , 2003 WL 22207641 , at

*1. The court discerned two possible

interpretations of Resendez’s argument that the statute of frauds cannot be

used an “engine of fraud”: (1) that the statute of frauds did not apply when a

party asserted a cause of action sounding in fraud and (2) that the doctrine of

partial performance applied as an exception to the statute of frauds. Id.

at *2. The court observed that the Texas

Supreme Court has previously held that the statute of frauds applies in

situations in which a party seeks damages for a purported fraud. Id. The court of appeals concluded that

Resendez’s partial performance argument was inadequately briefed, id. , and affirmed the trial court’s judgment. Id.

at *4. Resendez’s motion for rehearing

was overruled, and the Texas Supreme Court denied his petition for

discretionary review and motion for rehearing.

C.

Malpractice litigation

Resendez sued Pat Maloney, Jr.,

James E. Willingham, Jr., and their respective law firms based on their

representation in the litigation against Pace Concerts and SFX Entertainment. In the malpractice suit, Resendez alleged

that his attorneys “cast [his claim] in the form of a fraudulent inducement to

enter into a contract claim while continuing to seek benefit-of-the-bargain

damages.” Resendez alleged that Maloney

and Willingham were negligent in representing him both at trial and on

appeal.

Maloney and Willingham filed

motions for summary judgment as to causation.

Maloney argued that the claims against Pace Concerts and SFX

Entertainment were barred by the statute of frauds and, as a matter of law,

Resendez was not entitled to benefit-of-the-bargain damages on a partial

performance theory. Maloney also argued

that there was no evidence of a contract that complied with the statute of

frauds or of acts of partial performance sufficient to prove an exception to

the statute of frauds. Willingham also argued

that benefit-of-the-bargain damages are not available in a contract case under

a partial performance theory and that there was no evidence of multiple

writings and documents that satisfied the statute of frauds.

Resendez

responded to the motions for summary judgment by filing affidavits from two

attorneys who opined that Maloney and Willingham committed malpractice at both

the trial and appellate levels, specifically by failing to raise and argue the

partial performance exception to the statute of frauds. Maloney objected to the affidavits because

they stated legal conclusions and were “impermissible arrogations of the

judicial function.”

The

trial court overruled the objections to the affidavits, granted Maloney’s and

Willingham’s motions for summary judgment, and entered a final judgment that

Resendez take nothing by his malpractice lawsuit. Resendez appealed.

II.

Standards of review

A.

Summary judgment

We review de novo the trial court’s

ruling on a motion for summary judgment. Mann

Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848

(Tex. 2009). We review the evidence

presented in the motion and response in the light most favorable to the party

against whom the summary judgment was rendered, crediting evidence favorable to

that party if reasonable jurors could, and disregarding contrary evidence unless

reasonable jurors could not. Id. ;

see City of Keller v. Wilson , 168

S.W.3d 802, 827 (Tex. 2005); Johnson v.

Brewer & Pritchard, P.C. , 73 S.W.3d 193, 208 (Tex. 2002). We must review all of the summary-judgment

grounds on which the trial court ruled that are dispositive of the appeal, and

we may consider any other grounds on which the trial court did not rule. See

Baker Hughes, Inc. v. Keco R. & D., Inc. , 12 S.W.3d 1, 5 (Tex. 1999)

(citing Cincinnati Life Ins. Co. v. Cates ,

927 S.W.2d 623, 624 (Tex. 1996)). However,

issues not expressly presented to the trial court by written motion, answer, or

other response shall not be considered as grounds for reversal. Tex. R.

Civ. P. 166a(c); see Via Net v.

TIG Ins. Co. , 211 S.W.3d 310, 313 (Tex. 2006).

The party moving for traditional

summary judgment bears the burden of showing that no genuine issue of material

fact exists and that it is entitled to judgment as a matter of law. Tex. R.

Civ. P. 166a(c); see also

Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211 , 215–16

(Tex. 2003). A defendant must disprove

at least one of the essential elements of the plaintiff’s causes of action to

prevail on summary judgment. Elliott-Williams Co., Inc. v. Diaz , 9 S.W.3d

801, 803 (Tex. 1999); see Sci. Spectrum,

Inc. v. Martinez , 941 S.W.2d 910, 911 (Tex. 1997). Alternatively, a defendant may obtain summary

judgment based on an affirmative defense by proving all the essential elements

of the affirmative defense as a matter of law.

See KPMG Peat Marwick v. Harrison Cnty. Hous. Fin. Corp. , 988 S.W.2d

746, 748 (Tex. 1999); Leach v. Conoco,

Inc. , 892 S.W.2d 954, 959 (Tex. App.—Houston [1st Dist.] 1995, writ dism’d

w.o.j.). “The nonmovant has no burden to

respond to a summary judgment motion unless the movant conclusively establishes

its cause of action or defense.” M.D. Anderson Hosp. & Tumor Inst. v.

Willrich , 28 S.W.3d 22, 23 (Tex. 2000). However, once the defendant produces sufficient

evidence conclusively establishing his right to summary judgment, the burden of

proof shifts to the plaintiff to present evidence sufficient to raise a fact

issue. Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995)

(citing “Moore” Burger, Inc. v. Phillips

Petroleum Co. , 492 S.W.2d 934 , 936–37 (Tex. 1972)).

A no-evidence motion for summary

judgment is in essence a directed verdict granted before trial, to which we

apply a legal-sufficiency standard of review. King

Ranch, Inc. v. Chapman , 118 S.W.3d 742 , 750–51 (Tex. 2003). A no-evidence summary judgment motion must be

granted if, after an adequate time for discovery, (1) the moving party asserts

that there is no evidence of one or more essential elements of a claim or

defense on which an adverse party would have the burden of proof at trial and

(2) the non-movant fails to produce more than a scintilla of summary judgment

evidence raising a genuine issue of material fact on those elements. Tex. R.

Civ. P. 166a(i). A party moving

for no-evidence summary judgment must specifically state the element or

elements of a claim for which there is no evidence. Id. ;

Green v. Indus. Specialty Contractors,

Inc. , 1 S.W.3d 126, 130 (Tex. App.–Houston [1st Dist.] 1999, no pet.). A no-evidence summary judgment will be

sustained when (1) there is a complete absence of evidence of a vital fact, (2)

the court is barred by rules of law or of evidence from giving weight to the

only evidence offered to prove a vital fact, (3) the evidence offered to prove

a vital fact is no more than a scintilla, or (4) the evidence conclusively

establishes the opposite of a vital fact. King

Ranch , 118 S.W.3d at 751 . We view

the evidence in the light most favorable to the non-movant, disregarding all

contrary evidence and inferences. See Merrell

Dow Pharms., Inc. v. Havner , 953 S.W.2d 706, 711 (Tex. 1997).

B.

Legal malpractice

To prevail on a legal malpractice

claim, a plaintiff must prove that (1) the attorney owed a duty to the plaintiff;

(2) the attorney breached that duty; (3) the breach proximately caused the

plaintiff’s injury; and (4) the plaintiff suffered damages . See Cosgrove v. Grimes ,

774 S.W.2d 662, 665 (Tex. 1989). An

attorney owes to his client a duty to act with ordinary care, that is, in a

manner consistent with the standard of care that would be expected to be

exercised by a reasonably prudent attorney. See id.

at 664 . The “standard is an objective

exercise of professional judgment, not the subjective belief that [the

attorney’s] acts are in good faith.” Id. at 665 . “[A] lawyer can commit professional negligence

by giving an erroneous legal opinion or erroneous advice, by delaying or

failing to handle a matter entrusted to the lawyer’s care, or by not using a lawyer’s

ordinary care in preparing, managing, and prosecuting a case.” Murphy

v. Gruber , 241 S.W.3d 689, 693 (Tex. App.—Dallas 2007, pet. denied); see Alexander v. Turtur & Assocs., Inc. ,

146 S.W.3d 113, 119 (Tex. 2004).

The plaintiff must demonstrate that

any alleged damages, including attorney’s fees, were proximately caused by the

breach of a duty by the defendant. See Cosgrove , 774 S.W.2d at 665 ; Judwin Props., Inc. v. Griggs & Harrison ,

911 S.W.2d 498, 507 (Tex. App.—Houston [1st Dist.] 1995, no writ). “When a legal malpractice claim arises from

prior litigation, the plaintiff has the burden to prove that ‘but for’ the

attorney’s breach of duty, he or she would have prevailed on the underlying

cause of action and would have been entitled to judgment.” Greathouse

v. McConnell , 982 S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet.

denied) (articulating “suit within a suit” requirement); see also Alexander , 146 S.W.3d at 117 ; Duerr v. Brown , 262 S.W.3d 63, 76 (Tex. App.—Houston [14th Dist.] 2008,

no pet.).

Ordinarily, causation is a question

of fact. See Grider v. Mike O’Brien,

P.C. , 260 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.] 2008, pet.

denied). In a legal malpractice suit

arising from a prior litigation, causation generally must be proved by expert

testimony. Alexander , 146 S.W.3d at 119 . This is so because “the wisdom and

consequences of . . . tactical choices made during litigation are generally

matters beyond the ken of most jurors. And

when the causal link is beyond the jury’s common understanding, expert

testimony is necessary.” Id. at 119–20. However, when causation is a question of law,

expert testimony is not required. See Zenith Star Ins. Co. v. Wilkerson ,

150 S.W.3d 525 , 531–32 (Tex. App.—Austin 2004, no pet.). Causation is a question of law when the

plaintiff alleges that his attorney committed malpractice by failing to raise a

certain defense and the question before the court is whether the defense was

legally valid. Id. at 531 . Causation is

also a question of law when a plaintiff alleges appellate legal malpractice because

“the question of whether an appeal would have been successful depends on an

analysis of the law and the procedural rules.”

Grider , 260 S.W.3d at 55 .

III.

Statute of

frauds

As pertinent to Resendez’s original

claims against Pace Concerts and SFX Entertainment, the statute of frauds

provides that an agreement that is not to be fully performed within one year is

not enforceable unless it is in writing and signed by the party to be charged

with it. See Tex. Bus. & Com.

Code Ann. § 26.01(a), (b)(6) (Vernon 2009). “If a contract explicitly calls for

performance over a period longer than one year, the mere theoretical

possibility of termination of the contract within one year because of death or

another fortuitous event does not take the contract out of the statute of

frauds.” Welch v. Coca-Cola Enter.,Inc. , 36 S.W.3d 532, 538 (Tex. App.—Tyler

2000, pet. withdrawn) (citing Chevalier

v. Lane’s Inc. , 147 Tex. 106 , 213 S.W.2d 530, 532 (1948)). Whether a contract falls within the statute

of frauds is a question of law to be decided by the court, Exxon Corp. v. Breezevale Ltd ., 82 S.W.3d 429, 436 (Tex.

App.—Dallas 2002, pet. denied), but whether an exception to the statute of

frauds applies is generally question of fact.

Adams v. Petrade, Int’l, Inc. ,

754 S.W.2d 696, 705 (Tex. App.—Houston [1st Dist.] 1988, writ denied).

“The writings relied on to satisfy

the statute of frauds must be complete within themselves in every material

detail, and must contain all the essentials of a contract so that the agreement

may be ascertained from the writings without resort to parol testimony.” Welch ,

36 S.W.3d at 538 (citing Cohen v.

McCutchin , 565 S.W.2d 230, 232 (Tex. 1978)). To satisfy the statute of frauds, a

memorandum of an agreement must be signed by the party to be charged with the

agreement. Crowder v. Tri-C Res., Inc. , 821 S.W.2d 393, 396 (Tex. App.—Houston

[1st Dist.] 1991, no writ) (citing Cohen ,

565 S.W.2d at 232 ). In addition, “[i]f

the memorandum consists of two documents, the second document must refer to the

first one.” Id. Finally, “[u]nder Texas

law, a writing that contemplates a contract or promise to be made in the future

does not satisfy the requirements of the statute of frauds.” Hartford

Fire Ins. Co. v. C. Springs 300, Ltd. , 287 S.W.3d 771, 778 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied).

“Writings that contain ‘futuristic’ language are insufficient to confirm

that a contract or promise is already in existence.” Id.

Resendez alleged the existence of a

ten-year agreement to promote entertainment events with Pace Concerts. Because this alleged agreement contemplated

performance over a period longer than one year, the alleged agreement falls

within the ambit of the statute of frauds.

See Tex. Bus. & Commerce Code Ann. § 26.01(a), (b)(6).

Resendez does not argue that a

single signed document evidences this agreement. Rather, he relies on Central Power & Light Co. v. Del Mar Conservation Dist. , 594

S.W.2d 782, 789 (Tex. Civ. App.—San Antonio, writ ref’d n.r.e.), for the

proposition that the requirement of a signed writing may be satisfied by a

series of writings, and he argues that the multiple letters and memoranda

exchanged between the parties are some evidence that he could satisfy the

statute of frauds.

The letters and memoranda exchanged

by the parties demonstrate their attempt to negotiate a partnership

agreement. For example, Pace Concerts

sent Resendez an unsigned memorandum that stated, “The information contained in

this outline should not be construed as a firm offer, but rather as a starting

point to determine if all of the related parties are in agreement to move this

potential partnership forward.” Resendez

later wrote to Pace Concerts and explained his disappointment about the

relationship as it had evolved between the parties. He implicitly acknowledged that the parties

did not have a written contract when he expressed his reservations about “going

further without a written and specific plan of participation,” and he

reiterated what terms of partnership would be acceptable to him. These documents that suggest the parties might

enter into a partnership at some time in the future are insufficient to satisfy

the writing requirement of the statute of frauds. See Hartford

Fire , 287 S.W.3d at 778 . In

addition, none of the documents exchanged between the parties and submitted as

summary judgment proof were signed by a representative of Pace Concerts or SFX

Entertainment. The lack of a signature

by a person authorized to bind Pace Concerts or SFX Entertainment renders the

remaining documents insufficient to satisfy the statute of frauds. See Crowder ,

821 S.W.2d at 396 .

In Central Power & Light , the San Antonio Court of Appeals held

that a series of letters was sufficient to satisfy the statute of frauds

because they were signed by the party to be charged and because, taken

together, the signed letters contained all the relevant terms of the parties’

agreement. Cent. Power & Light , 594 S.W.2d at 788–90. Here, the summary-judgment proof includes some

letters to third parties signed by representatives of Pace Concerts or SFX

Entertainment that refer to Resendez as a partner or imply a partnership. But none of these signed letters or documents

specifically suggests a partnership in the legal sense of that term or describes

the terms of the agreement that Resendez alleges he had with Pace Concerts and

SFX Entertainment. Therefore, these

documents are insufficient to satisfy the statute of frauds.

IV.

Partial performance

Partial performance of a contract

is an equitable exception to the statute of frauds. See Exxon

Corp. , 82 S.W.3d at 439 . “Under the

partial performance exception to the statute of frauds, contracts that have

been partly performed, but do not meet the requirements of the statute of

frauds, may be enforced in equity if denial of enforcement would amount to a

virtual fraud.” Id. Virtual fraud means that

because of his reliance on the contract, a party has suffered a substantial

detriment for which he has no adequate remedy, and the other party would reap

an unearned benefit if permitted to invoke the statute of frauds. See id. However, the acts constituting partial

performance must be unequivocally referable to the agreement and corroborative

of the fact that a contract actually was made.

Id. They must be such as could have been done for

no other reason than to fulfill the particular agreement sought to be enforced;

otherwise, they do not tend to prove the existence of the otherwise unenforceable

agreement relied upon by the plaintiff. Id. at 439–40.

We have conducted a de novo review

of the summary-judgment proof attached to the two expert affidavits that

Resendez filed in response to the motions for summary judgment. The summary-judgment evidence shows that

while Resendez was negotiating a potential partnership with Pace Concerts and

SFX Entertainment, he jointly promoted 23 events with them. Three officers of Pace Concerts and SFX

Entertainment testified by deposition that they had no partnership agreement

with Resendez and that they worked with him on an event-by-event basis. Resendez testified by deposition that he and

Pace Concerts agreed to partnership terms on March 18, 1997, and that they

jointly produced 20 to 25 events under those terms. However, nothing about the fact of their

joint promotion or production of these events is solely referable to the

alleged ten-year contract; rather, these actions are equally referable to

either an event-by-event joint promotion arrangement or some other contractual

arrangement. See id. Therefore, Resendez

has no evidence of at least one element of partial performance.

Resendez argues that his two expert

affidavits are some evidence of partial performance because each opined that

Resendez would have prevailed in his underlying suit if his attorneys had

properly raised partial performance at trial and on appeal. But in this case, causation was a question of

law because it turned on the availability of a defense and alleged appellate

malpractice. See Zenith Star Ins. Co. , 150 S.W.3d at 531–32; see also Grider , 260 S.W.3d at 55 . Because we review legal questions de novo,

the proffered legal opinions are irrelevant to the issue of partial

performance.

* * *

We hold that the trial court did

not err in granting final, summary judgment because, as a matter of law,

Resendez’s case was barred by the statute of frauds and there was no evidence

as to at least one element of partial performance. We overrule Resendez’s sole issue. Because of this disposition, we need not

address Resendez’s argument regarding the availability of

benefit-of-the-bargain damages. Likewise,

we do not reach Maloney’s cross-point regarding his objections to the expert

affidavits.

CONCLUSION

We

affirm the judgment of the trial court.

Michael

Massengale

Justice

Panel

consists of Chief Justice Radack and Justices Higley and Massengale.