Law Office of Hunsberger v. Physician Life Care Planning, LLC

THE LAW OFFICE OF DENNIS HUNSBERGER, Appellant v. PHYSICIAN LIFE CARE PLANNING, LLC, Appellee

No. 04-20-00243-CV

Court of Appeals of Texas, Fourth District, San Antonio

July 21, 2021

From the County Court at Law No. 3, Bexar County, Texas Trial Court No. 2018CV04283 Honorable David J. Rodriguez, Judge Presiding

Sitting: Rebeca C. Martinez, Chief Justice Irene Rios Justice Liza A. Rodriguez, Justice

MEMORANDUM OPINION

REBECA C. MARTINEZ, CHIEF JUSTICE

Appellee Physician Life Care Planning, LLC ("PLCP") sued appellant the Law Office of Dennis Hunsberger ("Hunsberger")^[1] for breach of contract on a sworn account. Hunsberger filed a counterclaim against PLCP for breach of contract. After the trial court granted summary judgment in PLCP's favor, Hunsberger appealed. We affirm.

Background^[2]

PLCP provides damage evaluation reports and expert testimony for use in litigation. In 2016, Hunsberger contacted PLCP in connection with one of his personal injury cases. The case involved a five-year-old boy, Hunsberger's client, who was partially disabled with cerebral palsy. Hunsberger's theory of the case was that the boy was injured in utero when his mother slipped and fell at a grocery store. The boy's lawsuit included a claim for lost wages, which Hunsberger wished to support with expert testimony. In an initial conversation, a PLCP employee explained to Hunsberger that PLCP could supply Hunsberger with a medical expert, who would examine the boy and determine how much his cerebral palsy limited his abilities. An economic expert would use the medical evaluation to determine how much less the boy would earn in his lifetime with the injury.

The PLCP employee informed Hunsberger that he would have to fill out an intake form. The one-page "Client Intake Form" that Hunsberger filled out on April 18, 2016 provides a brief description of the boy's injury. At the bottom of the form, Hunsberger made selections by circling "Y" or "N." Hunsberger selected "Y" for "Vocational Assessment" and "Will you need an Economic Damages Report."

Four days later, Hunsberger and PLCP signed a "Retention Agreement." The agreement lists over two dozen "products" and their associated costs, and it lists over three dozen "services" and their associated costs. The products listed on the agreement include "Non-Catastrophic Life Care Plans," vocational assessments, and the following: "Economic Damages Reports (For cases in which no residual earnings capacity exists)" and "Economic Damages Reports (For cases with residual earnings capacity (as defined in a vocational assessment))." The agreement lists the costs for the economic damages reports as $2, 500 and $1, 950 respectively. Among the listed services on the Retention Agreement are a physician's interview and examination as well as court testimony by retained experts. The listed cost for court testimony is $6, 500/day for testimony by a physician and $4, 000/day for testimony by an economist. The Retention Agreement provides as to products: "An initial non-refundable retainer of 50% of the professional fee is due upon the commencement of the engagement.... The remaining 50% and any outstanding, reimbursable expenses are payable upon completion, and prior to release of any Products." As to services, the agreement provides that payment is due in advance of the provision of services. The Retention Agreement provides that a prevailing party in a suit to enforce the agreement is entitled to reasonable attorney's fees, costs, and expenses.

On the same day the parties signed the Retention Agreement, PLCP provided Hunsberger with two invoices. One invoice is for a "Non-Catastrophic Life Care Plan" and a physician's interview and examination. The other invoice bills for "Economic Damages w no risidual [sic] earnings capacity." Hunsberger paid these invoices. In September 2016, Hunsberger received the two expert reports referenced in the invoices. The Economic Damages Report provided an analysis of the boy's earning capacity as if he were completely disabled. The report by the medical expert, however, indicates that the boy suffered from mild cerebral palsy and that his condition was not catastrophic. After receiving the reports, Hunsberger held telephonic conferences with the experts.

In September 2017, Hunsberger initiated orders for trial testimony by PLCP's experts, and, in October 2017, PLCP sent Hunsberger two invoices for the testimony the experts were to give. In accordance with the prices stated on the Retention Agreement, the first invoice was for $6, 500 for the physician's testimony, and the second invoice was for $4, 000 for the economist's testimony. At the personal injury trial, in November 2017, the two experts gave testimony. The jury returned a verdict against the boy, finding that the grocery store's liability had not been proven.

After trial, Hunsberger complained to PLCP that he should have received from the economist a vocational assessment and an economic damages report that included consideration of residual earnings capacity to complement the physician's report, which assessed the boy's injury as non-catastrophic. After trial, PLCP demanded payment for the unpaid invoices for the experts' trial testimony. In July 2018, PLCP filed the instant suit to recover the amount of the unpaid invoices along with interest, costs, and attorney's fees. PLCP asserted in its petition a breach of contract claim, alleging that Hunsberger executed a written agreement whereby PLCP would provide Hunsberger with goods and services on an open account. Hunsberger denied PLCP's claim and filed a counterclaim for breach of contract, alleging that PLCP provided him with "an incomplete life-care plan and/or economic assessment."

PLCP, thereafter, filed a traditional and no-evidence motion for summary judgment on the claims. Hunsberger filed a response, and PLCP filed a reply, in which it moved to strike portions of Hunsberger's affidavit that he had filed with his response. The trial court granted PLCP's motion to strike and its motion for summary judgment. In a final judgment, the trial court awarded PLCP $10, 500 in damages, representing the amount of the unpaid invoices, as well as interest, costs, and attorney's fees. Hunsberger filed a motion for new trial, with attachments that were not included in his summary-judgment response. The trial court denied Hunsberger's motion, and Hunsberger appealed. On appeal, Hunsberger challenges whether PLCP is entitled to summary judgment on the claims and whether the award of attorney's fees is excessive.

Standard of Review

PLCP moved for summary judgment on traditional grounds as to its breach of contract claim and on traditional and no-evidence grounds as to Hunsberger's claim. "A party moving for traditional summary judgment meets its burden by proving that there is no genuine issue of material fact and it is entitled to judgment as a matter of law." First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017) (citing TEX. R. CIV. P. 166a(c)). A traditional motion for summary judgment must stand on its own merits, and a "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) (per curiam); see Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999). If the movant satisfies its burden, the burden shifts to the nonmovant to raise a genuine issue of material fact precluding summary judgment. Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex. 2018). "In a no-evidence summary-judgment motion, the movant contends that no evidence supports one or more essential elements of a claim for which the nonmovant would bear the burden of proof at trial." KCM Fin. LLC v. Bradshaw, 457 S.W.3d 70, 79 (Tex. 2015) (citing TEX. R. CIV. P. 166a(i)). The trial court must grant the no-evidence summary-judgment motion unless the nonmovant raises a genuine issue of material fact on each challenged element. Id. We review grants of summary judgment de novo. Parker, 514 S.W.3d at 219. In our review, "we take as true all evidence favorable to the non-movant, indulge every reasonable inference in favor of the nonmovant, and resolve any doubts in the non-movant's favor." Id. (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005)).

Discussion

I. The Summary-Judgment Record

Neither party disputes that the evidence attached to PLCP's motion for summary judgment is competent evidence that the trial court considered before issuing judgment. However, Hunsberger relies on material in the record that PLCP challenges as stricken or otherwise not before the trial court. We agree with PLCP that the evidence is not part of the summary-judgment record, and, consequently, we do not consider it on appeal.

The evidence falls into four categories, which we consider in turn. First, Hunsberger cites statements from his affidavit that the trial court struck when it granted PLCP's motion to strike. Hunsberger does not challenge the trial court's decision to strike these statements. "Under a summary-judgment review, we may not consider struck portions of the record because such evidence is not a part of the summary-judgment record." Sauls v. Munir Bata LLC, No. 02-14-00208-CV, 2015 WL 3905671, at *5 (Tex. App.-Fort Worth June 11, 2015, no pet.) (mem. op.); see also Trudy's Tex. Star, Inc. v. City of Austin, 307 S.W.3d 894, 898 n.2 (Tex. App.-Austin 2010, no pet.); Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 294 (Tex. App.-Dallas 2009, no pet.). Because Hunsberger's affidavit testimony was struck and the decision to strike was not challenged on appeal, we do not consider the struck statements. See ...