Court of Appeals of Texas,

Corpus Christi–Edinburg.

Francisco MEDINA

v.

Michael E. FLANAGAN, Russell R. Barron, Abel Orendain, et. al.

No. 13–97–382–CV.

|

Aug. 12, 1999.

Attorneys & Firms

J. Norman Thomas, for Francisco Medina.

B. Buck Pettitt, for Michael E. Flanagan, Russell R. Barron, Abel Orendain, et. al.

Before Justices HINOJOSA, YANEZ, and RODRIGUEZ.

OPINION

OPINION BY JUSTICE YANEZ.

*1 Francisco Medina appeals a summary judgment against him in his suit against Michael E. Flanagan¹ for legal malpractice. Medina claims that Flanagan negligently failed to file a third-party action in connection with his workers’ compensation claim. We affirm.

Medina was employed by Valley Lease Service as an oilfield worker. On June 19, 1988, he was working on a Pennzoil job site in Zapata County when he manually lifted a pipe and injured his groin and back. The injury required medical treatment which included hernia repair and spinal fusion. Flanagan represented Medina in a workers’ compensation claim which was ultimately settled.

Medina sued Flanagan on October 1, 1991. Medina’s first amended petition alleged he retained Flanagan to represent him in the prosecution of any legal claims resulting from his injuries and Flanagan failed to investigate the accident and advise him of a possible third-party claim against Pennzoil. Medina further alleged that any third-party claim against Pennzoil was barred by limitations.

Flanagan moved for summary judgment, asserting he did not violate the standard of care and his acts or omissions did not cause Medina’s injuries. In support of his motion, Flanagan submitted the affidavit of attorney Joe Richard Flores. Flores’s affidavit stated that the only viable claim available to Medina was a claim for workers’ compensation benefits and that Flanagan’s conduct met the standard of care. Medina filed a response and attempted to controvert Flanagan’s summary judgment proof with affidavits from Valley Lease Service foreman Rodrigo Rios and attorney Harvey F. Cohen.

On appeal, Medina contends the trial court erred in granting summary judgment because Flanagan did not sustain his burden. Specifically, Medina complains the summary judgment evidence established a classic dispute between experts on the issue of negligence; Flanagan’s expert based his opinion on the wrong legal standard; and Flanagan’s expert based his opinion on disputed facts.

The party moving for summary judgment has the burden of showing no genuine issue of material fact exists and he is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548–49 (Tex.1985). In reviewing a summary judgment, we determine whether the proof establishes as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff’s cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). In deciding whether a material fact dispute precludes summary judgment, we take all evidence favorable to the non-movant as true, resolve any doubts in favor of the non-movant, and indulge every reasonable inference in favor of the non-movant. Nixon, 690 S.W.2d at 548–49.

A legal malpractice action in Texas is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex.1989). Thus, the plaintiff in a legal malpractice case must prove a duty owed to him by the defendant, a breach of that duty, injury proximately caused by the breach, and damages. Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex.1995). The Texas Supreme Court has articulated the standard of care required by lawyers as follows:

*2 If an attorney makes a decision which a reasonably prudent attorney could make in the same or similar circumstance, it is not an act of negligence even if the result is undesirable. Attorneys cannot be held liable for all of their clients’ unfulfilled expectations. An attorney who makes a reasonable decision in the handling of a case may not be held liable if the decision later proves to be imperfect. The standard is an objective exercise of professional judgment, not the subjective belief that his acts are in good faith.

Cosgrove, 774 S.W.2d at 664 (emphasis in original). In Cosgrove, the Court also stated that “[a] lawyer in Texas is held to the standard of care which would be exercised by a reasonably prudent attorney.” Id.; Hall v. Stephenson, 919 S.W.2d 454, 465 (Tex.App.-Fort Worth 1996, writ denied); Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex.App.-San Antonio 1995, writ denied).

Expert testimony is necessary to establish the skill and the standard of care ordinarily exercised by an attorney in a legal malpractice case. Rutherford, 911 S.W.2d at 424. In cases requiring expert guidance, summary judgment may be based on the uncontroverted testimonial evidence of an expert witness, if the evidence is clear, positive, direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted. See Tex.R. Civ. P. 166a (c). Once the summary judgment movant in a legal malpractice case has established the standard of care by his expert’s affidavit, the non-movant is then required to controvert the expert testimony with other expert testimony. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991).

The general rule is that a premises owner does not have a duty to see that an independent contractor performs work in a safe manner. Abalos v. Oil Development Co., 544 S.W.2d 627, 631 (Tex.1976). In order to impose liability on a third party, such as a premises owner or a general contractor, for an injury to an independent contractor’s employee, the third party must exercise a right of control over the work. Redinger v. Living, Inc., 689 S.W.2d 415, 418 (Tex.1985). The right to control may be demonstrated either by evidence of a contractual agreement which explicitly assigns the third party a right of control, or by evidence that he actually exercised control over the job. Coastal Marine Service of Texas, Inc. v. Lawrence, 98–0287, 988 S.W.2d 223, 1999 WL 249718 at *2 (Tex.1999); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 528 (Tex.1997). The reserved power must be more than a general right to order the work to stop or start, to inspect progress, or receive reports. Redinger, 689 S.W.2d at 418. In Redinger, there was evidence that the general contractor retained the power to direct the order in which the work was to be done and to forbid the performance of work in a dangerous manner. Id. The general contractor in Redinger ordered the activity which resulted in the injury and also coordinated the work done by the subcontractor. Id. Based on these facts, the supreme court held that the general contractor owed a duty to exercise this control in a reasonable manner. Id.

FLANAGAN’S SUMMARY JUDGMENT EVIDENCE

*3 We first examine Flanagan’s summary judgment proof to determine whether he established as a matter of law that he met the standard of care in his handling of Medina’s claim. Flores’s affidavit states he is an attorney licensed to practice law in Texas with a private law practice concentrating on workers’ compensation and personal injury cases. Prior to entering the practice of law, Flores resolved disputes between injured workers, their attorneys, and workers’ compensation insurance carriers for the Texas Industrial Accident Board (now the Texas Workers’ Compensation Commission). Flores’s opinion is based on a review of the following documents in this case: Flanagan’s deposition, the deposition of Medina’s expert, the workers’ compensation case file, and the pleadings. In addition to the facts previously recited in this opinion, Flores relies on the following additional facts:

1. No other entity or person directed Medina in lifting the pipe, aside from Rodrigo Rios, a foreman employed by Valley Lease Service.

2. The Pennzoil “company man” never directed Medina in any aspect of the work and was not present when the injury took place.

3. Medina used the tools provided by Valley Lease Service.

4. Medina was paid for his work by his employer, Valley Lease Service, for the date of injury.

Based on these facts, Flores concludes a tort action for negligence against Pennzoil was not viable because no other person or entity aside from Valley Lease Service directed Medina’s work. According to Flores, Flanagan made the correct assessment in determining there was no viable third-party action and in pursuing only the workers’ compensation claim. Flores also states in his affidavit that

Flanagan’s conduct in handling the case met the standard of care which would be exercised by a reasonably prudent attorney handling a case under the same or similar circumstances in that he not only could have, but in my opinion, should have decided against filing a third party claim.

We conclude Flores’s affidavit is based on the facts of the case, and is clear, positive, direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.

To prevail in a third-party action against Pennzoil, Medina would have had to prove either that Pennzoil actually directed the work or that it retained a right of control. In forming his opinion that a claim against Pennzoil was not viable, Flores relies on facts showing Pennzoil did not actually direct the activity or retain a right of control. In determining Flanagan did not breach the standard of care by declining to sue Pennzoil, Flores applies the proper legal standard-whether a reasonably prudent attorney would have decided not to sue a third party under these circumstances. We conclude Flanagan met his summary judgment burden by negating an essential element of Medina’s cause of action.

Where the defendant’s summary judgment evidence negates one element of the plaintiff’s cause of action, the plaintiff opposing summary judgment must raise a fact issue on that element. Trapnell v. John Hoggan Interests Inc., 809 S.W.2d 606, 610 (Tex.App.-Corpus Christi 1991, writ denied); Wavell v. Roberts, 818 S.W.2d 462, 465 (Tex.App.-Corpus Christi 1991, writ denied). This may be done by adducing competent summary judgment evidence controverting the non-movant’s summary judgment evidence. Trapnell, 809 S.W.2d at 610. The standard by which the non-movant’s controverting affidavits are measured is whether they present some probative evidence of the fact at issue. Id. Thus, once Flanagan met his summary judgment burden through an expert opinion supported by facts, Medina was required to raise facts which would show a basis for Pennzoil’s liability and provide expert testimony that Flanagan breached the standard of care.

MEDINA’S SUMMARY JUDGMENT EVIDENCE

*4 As a preliminary matter, we resolve the question of whether Medina’s response was timely filed. According to Medina, Flanagan’s lawyer told the district judge at the summary judgment hearing that Medina’s response was filed on March 20, 1997, even though the trial court ordered any response filed by March 19, 1997. The order setting a deadline to respond does not appear in the appellate record; however, a March 18, 1997, district clerk date stamp appears on the response. We hold Medina’s response and accompanying affidavits were timely filed and are part of the summary judgment record. We now review Medina’s summary judgment evidence to determine whether it controverts Flanagan’s summary judgment proof.

Rios’s Affidavit

Medina submitted the affidavit of Rios, a foreman employed by Valley Lease Service who was supervising Medina at the time of his injury. Rios’s affidavit states that when the owner of Valley Lease Service was not at the job site, Rios “got [his] orders from the Pennzoil company man.” Moreover, Rios further claims he had been directed by the owner of Valley Lease Service to “follow all orders from the Pennzoil company man.” Finally, Rios states a machine was at the site which was capable of lifting the pipe and which he had used previously to lift pipe. Through Rios’s statements, Medina attempts to show Pennzoil had a right of control sufficient to impose third-party liability.

Although we must accept evidence favorable to Medina as true and indulge every reasonable inference in his favor, we are not bound by Medina’s characterization of the evidence. We cannot reasonably infer from Rios’s statements that Pennzoil actually directed the activity that caused the injury or retained a contractual right to control. The fact that Rios was instructed to follow Pennzoil’s orders shows no more than a general right of control, analogous to a premises owner’s right to order the work to stop or start, to inspect progress, or receive reports. An independent contractor’s mere willingness to follow a premises owner’s instructions, where no instructions are given, is not legally sufficient evidence of a right of control. See Lawrence, 988 S.W.2d 223, 1999 WL 249718 at *1 (employees’ testimony that they would have complied with any instructions from third-party about machinery which caused the injury insufficient to raise a fact issue as to third-party’s right of control). We have previously held that evidence of a third-party supervising the work or providing step-by-step instructions is sufficient to raise a fact issue as to a third-party’s right of control. See Pena v. TXO Production Corp. ., 828 S.W.2d 188, 191 (Tex.App.-Corpus Christi 1992, no writ). Rios’s affidavit contains no such evidence with regard to Pennzoil. We conclude Rios’s broad statements are insufficient to create a fact issue as to Pennzoil’s right of control.

Cohen’s Affidavit

Medina also submitted the affidavit of Harvey F. Cohen, a lawyer who had previously represented workers’ compensation insurers and non-subscribing employers, workers’ compensation insurance carriers, and oil and gas companies in defending lawsuits brought by employees of subcontractors. In his affidavit, Cohen states he reviewed Flanagan’s deposition, Flanagan’s case file for Medina’s claim, and Rios’s affidavit. The contract between Pennzoil and Valley Lease Service is not part of the summary judgment record, and Cohen does not specifically state that he relies on the contract in forming his opinion.²

*5 A reasonably prudent attorney, according to Cohen’s affidavit, would have known the law, investigated the third-party action, and filed suit against Pennzoil on Medina’s behalf. Cohen contends in his affidavit that if Flanagan had properly investigated, he would have found that Pennzoil’s contractual right to control formed the basis of its liability. According to Cohen, the contractual relationship between Pennzoil and Valley Lease Service evidences that Pennzoil had the right to control the work site, even if it did not exercise actual control. Cohen also states that it is not usual oilfield practice for workers to lift heavy pipe without mechanical assistance and that any lawsuit against Pennzoil could have focused on this unsafe work practice. Cohen states that an action against Pennzoil would not have been dismissed on summary judgment because Pennzoil contractually retained control over part of the work. He concludes his affidavit by stating that Medina’s claim had substantial value and would exceed his workers’ compensation settlement. Cohen opines that Flanagan was negligent in failing to file a third-party action against Pennzoil.

Cohen’s opinion is based on the assertion that Pennzoil retained a contractual right of control. According to Cohen, two provisions in the contract between Valley Lease and Pennzoil demonstrate this right of control. First, Cohen relies on a provision that he characterizes as requiring Valley Lease to obtain insurance covering Pennzoil as an additional insured. Second, Cohen points to an exhibit to the contract which states Valley Lease may have had joint control of the workplace, as well as responsibility for observing Occupational Safety and Health Act of 1970 (OSHA) requirements with reliance on the direction of Pennzoil. We may not interpret contractual provisions that are not part of the summary judgment record. But even if we could consider them, we would conclude these isolated contractual provisions fail to explicitly assign Pennzoil a right of control.

Cohen’s opinion that a suit against Pennzoil could have focused on the unsafe oilfield practice does not reference any specific facts in this case, but is merely supported by his general contention that it is “not usual oilfield practice for workers to lift heavy pipes without mechanical assistance.” Regardless of usual oilfield practice, the threshold issue is whether Pennzoil retained a right to control. The facts supporting Cohen’s affidavit do not show Pennzoil either actually directed the manner in which Medina lifted the pipe on the day in question or explicitly retained a contractual right to control the work. Nor does it show Pennzoil either participated in or retained the contractual right to participate in the decision to lift the pipe manually without mechanical assistance.

An expert’s opinion must be based on the specific facts of the case. We conclude that Cohen’s opinion is not. In the absence of facts, legal conclusions are inadequate to raise an issue of fact in response to a motion for summary judgment despite the affiant’s qualifications. Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 263 (Tex.App.-Corpus Christi 1997, no pet.) (citations omitted) (holding expert’s affidavit not competent summary judgment evidence where it did not discuss the evidence or apply it to the facts of the case). Because Cohen’s opinion that a reasonably prudent lawyer would have filed suit against Pennzoil is not supported by facts which show a basis for Pennzoil’s liability, we hold his affidavit is not competent summary judgment evidence and, therefore, not probative of the standard of care.

*6 Medina failed to controvert Flanagan’s proof of the standard of care or establish a material fact dispute. We hold the summary judgment in this case was proper. The point of error is overruled and the judgment of the trial court is AFFIRMED.

	Footnotes
1		Flanagan’s law partners, Russell R. Barron, Abel A. Orendain, and Douglas S. Malany, were also named defendants and are appellees in this case.
2		Apparently the Valley Lease Service/Pennzoil contract was not in Flanagan’s case file because Cohen criticizes Flanagan both for his failure to investigate a potential Pennzoil claim and his failure to find the contract.