The Pain Care Center, Inc., and Marsha Hughes v. O'Connor & Hannan, L.L.P., No. 14-06-00166-CV (Tex. App.—Houston [14th Dist.] September 25, 2007) (Opinion Delivered by Chief Justice Adele Hedges).

Background

In May 2001, employee Kirk Coverstone sued The Pain Care Center and Marsha Hughes, the firm's CEO, in a dispute centered upon the terms of Coverstone's employment contract. After dismissing original legal counsel assigned to the case, Ms. Hughes engaged attorney Michael Wing, and his firm, O'Connor & Hannan, to represent her and The Pain Care Center in the case.

Wing left O'Connor & Hannan several months later, but the firm never asked to be dismissed as counsel in the Coverstone suit. Following the issuance of a judgment in favor of Coverstone, Hughes filed suit against both Wing and O'Connor & Hannan, alleging professional negligence, fraud, breach of contract, and breach of fiduciary duty. Before trial, Wing independently settled with The Pain Care Center and Hughes. The trial court granted a no-evidence summary judgment in favor of O'Connor & Hannan and against Hughes and The Pain Care Center on the breach of contract issue.

However, the trial court found that the representation of Hughes and the Pain Care Center in the underlying action had been negligently performed, and that O'Connor & Hannan was vicariously liable for the acts of negligence because it had failed to secure a court order removing the firm from the responsibility of defending Hughes and the Pain Care Center after Wing's separation from the firm. The jury awarded $98,056.17 in damages, but the court applied a settlement credit for Wing's prior settlement ($300,000) to the award. The jury also found that the firm had not committed fraud against The Pain Care Center or Hughes.

The Pain Care Center and Hughes subsequently appealed the trial court's findings, citing multiple issues, including untimely discovery on the part of the defendants and the trial court's failure to find the defendants guilty of fraud.

Discovery Disputes

The appellants maintained that the trial court erred in allowing the defendants to present trial witnesses since O'Connor & Hannan had failed to "timely and adequately answer discovery." See Tex.R. Civ. P. 193.6(a) (providing that a party that fails to timely identify a witness may not offer that witness's testimony at trial), 215 (governing sanctions for discovery abuses).

The appeals court, however, noted that the sole reason given in support of this argument was the defendants' failure to identify the witnesses they intended to call until thirty days prior to trial. The appellants failed to explain why the thirty day notice was untimely, instead merely alleging that it was. They also failed to cite any relevant precedents to support this assertion. The appeals court noted, therefore, that the issue had not been properly briefed. See Tex. R. App. P. 38.1(h) (requiring that an appellant's brief "must contain a clear and concise argument for the contentions made, with appropriate citations to authorities and the record").

Hughes and The Pain Center also argued that the defendants had failed to state the relevant connection between the witnesses called and the case at hand. The appeals court, however, found that the connection was clearly stated in documentation provided by the defendants. Therefore, the appeals court held that the trial court had not erred in the matter of discovery, and subsequently upheld the court's decision.

Fraud

Hughes and The Pain Care Center alleged that the jury's failure to find fraud was against the overwhelming weight of the evidence presented at trial. To support this argument, they presented the law firm's brochure as evidence of fraudulent statements made, including the assurance that all clients' legal defense would be handled by a team, the firm would choose the attorney whose skills were best suited to the job, and the lawyer so chosen would be an experienced litigation attorney.

The appeals court pointed out that the jury was asked to find the firm guilty of fraud only if the firm knowingly made material misrepresentations of fact in the brochure that the firm planned to act upon. The jury would also have to believe Hughes' testimony that she relied largely on the brochure and firm website containing the alleged fraudulent claims in order to select O'Connor and Hannan as legal counsel.

The appeals court noted, "the jury is the sole judge of the credibility of the witnesses and the weight to be given to their testimony." See GTE Mobilnet, 61 S.W.3d at 615-16. "On the most basic level, the jury may simply have disbelieved Hughes' self-serving testimony." See, e.g., Purcell Const., Inc. v. Welch, 17 S.W.3d 398, 401-02 (Tex.App.—Houston [1st Dist.] 2000, no pet.) (holding evidence was factually sufficient where jury could have disbelieved testimony of principle of defendant company).

The court also observed the evidence that Hughes and Wing had a relationship prior to and independent of the attorney-client relationship. Wing was Hughes' college professor, and Hughes' own testimony, along with email correspondence between the two, was presented at trial to establish their prior relationship and discussion of the Coverstone case. Since a finding of fraud would require the jury to believe that Hughes chose Wing and O'Connor and Hannan as legal counsel based upon allegedly fraudulent claims in the brochure and website, the appeals court did not find that the jury's failure to do so was against the weight of the evidence presented at trial. For that reason, the appellant's final issue regarding fraud was also overruled and the trial court's prior ruling upheld.