court of appeals fifth district of texas - 5th court of appeals
TRANSCRIPT
Mrs. Hooper Requests Oral Argument
05-11-01256-CV
In the
Court of Appealsfor the
Fifth District of Texasat Dallas
Kelley & Witherspoon, LLP, Kelley/Witherspoon, LLP,Kevin Kelley, and Nuru Witherspoon,
Appellantsv.
Jeannette Hooper,Appellee.
BRIEF OF APPELLEE JEANNETTE HOOPER
Appeal from the County Court at Law No. 5Dallas County, Texas; Cause No. 09-03060-E
WYNNE & WYNNE127 West James Street
B. Prater Monning III Wills Point, Texas 75169State Bar No. 14269700 903-873-2531of the Firm 903-873-3450 (facsimile) Attorneys for Appellee
ACCEPTED225EFJ016654602 FIFTH COURT OF APPEALSDALLAS, TEXAS11 December 28 P7:33Lisa MatzCLERK
TABLE OF CONTENTS
INDEX OF AUTHORITIES ............................................................................................. ii
STATEMENT OF THE CASE........................................................................................... 2
STATEMENT REGARDING ORAL ARGUMENT .............................................................. 2
STATEMENT OF FACTS ................................................................................................ 2
.............................................................................................. A. The Accident 5
............................................................................ B. The Underlying Lawsuit 8
................................................................................................... C. The Trial 14
D. This Appeal............................................................................................... 14
SUMMARY OF THE ARGUMENT................................................................................. 17
ARGUMENT .............................................................................................................. 18
.................................................................................................A. Causation 23
................................................................. B. Legal and Factual Sufficiency 28
C. The Charge .............................................................................................. 30
CONCLUSION AND PRAYER....................................................................................... 34
i
INDEX OF AUTHORITIES
CASESAlexander v. Turtur & Associates, Inc ................, 146 S.W.3d 113 (Tex. 2004) 21, 22
Ballesteros v. Jones, 985 S.W.2d 485 (Tex.App.—..........................................................................San Antonio 1998, pet. denied) 20, 28
Burroughs Wellcome Co. v. Crye .............................., 907 S.W.2d 497 (Tex. 1995) 25
Cook v. Irion ........., 409 S.W.2d 475 (Tex.Civ.App.—San Antonio 1966, no writ) 18
Coastal Tankships, U.S.A. , Inc. v. Anderson, 87 S.W.3d 591 .................................................(Tex. App.—Houston [1st Dist.] 2002, no pet.) 23, 25
Cosgrove v. Grimes ............................................, 774 S.W.2d 662 (Tex. 1989) 19, 22
Cosgrove v. Grimes, 757 S.W.2d 662 (Tex.App—Houston..................................................................................................[1st Dist] 1988) 19, 28
First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466 (Tex. 2004).............. 33
Great American Indem. Co. v. Dabney, 128 S.W.2d 496 ........................................(Tex.Civ.App.—Amarillo 1939, writ dism’d jdgmt cor.) 18
Guevara v. Ferrer, ......................................................247 S.W.3d 662 (Tex. 2007) 25
Maritime Overseas Corp. v. Ellis, ....................971 S.W.2d 402 (Tex. 1998) 23-4, 27
Morgan v. Compugraphic Corp., ...............................675 S.W.2d 729 (Tex. 1984) 26
Parker v. Employers Mutual Liability Ins. Co. of Wis.,......................................................................................440 S.W.2d 43 (Tex. 1969) 26
State Office of Risk Management v. Larkins, 258 S.W.3d 686............................................................................(Tex. App.—Waco 2008, no pet.) 25
ii
Webb v. Stockford .., 331 S.W.3d 169 (Tex.App.—Dallas 2011, rev. denied) 20-21,22
STATUTES AND RULESTEX. DISC. R. PROF. COND. .........................................................................1.02(b) 14
TEX. R. CIV. P. ......................................................................................................13 5
TEX. R. CIV. P. ...............................................................................................21, 21a 5
TEX. R. CIV. P. ......................................................................................................57 5
TEX. R. CIV. P. ....................................................................................................151 2
TEX. R. CIV. P. ..................................................................................................274 31
TEX. R. CIV. P. ..................................................................................................277 30
OTHER
RESTATEMENT [THIRD] OF THE LAW GOVERNING LAWYERS §§48, 53 .................... 18
Annot., Measure and Elements of Damages Recoverable for Attorney’s Negligence in Preparing or Conducting Litigation—Twentieth Century Cases, 90 A.L.R.4th 1033 (1991) ............................................................................ 18
iii
05-11-01256-CV
In the
Court of Appealsfor the
Fifth District of Texasat Dallas
Kelley & Witherspoon, LLP,Kelley/Witherspoon, LLP, Kevin Kelley, and
Nuru Witherspoon,Appellants
v.
Jeannette Hooper,Appellee.
BRIEF OF APPELLEEJEANNETTE HOOPER
TO THE COURT OF APPEALS:
Jeannette Hooper (“Jeannette” or “Mrs. Hooper”) file this Appellee’s Brief,
showing that there is no error in the Judgment signed by the County Court at Law
No. 5 of Dallas County, Texas.
1
I. STATEMENT OF THE CASE
This is a legal malpractice action brought by Charles Hooper his wife
Jeannette against Kevin Kelley and Nuru Witherspoon (as well as their law firms),
complaining of acts and omissions in the course of the defendant lawyers’
representation of Mr. and Mrs. Hooper as plaintiffs in an underlying personal
injury case. Charles Hooper died before trial, and upon suggestion of death the
case proceeded to trial before a jury in the name of Jeannette Hooper only. Clerk’s
Record at 229; TEX. R. CIV. P. 151. The jury returned a verdict adverse to Kelley &
Witherspoon, and Judge Mark Greenberg, judge of the County Court at Law No. 5,
signed a Final Judgment on the jury’s verdict on June 17, 2011. Clerk’s Record at
280.
II. STATEMENT REGARDING ORAL ARGUMENT
Mrs. Hooper agrees with Appellants that oral argument is appropriate in this
case.
III. STATEMENT OF FACTS
The “Statement of Facts” in Appellants’ Brief—beginning with the opening
sentence’s characterization of the underlying automobile accident as “minor,”
continuing with Appellants’ suggestion that they properly and timely responded to
2
motions for summary judgment in the underlying personal injury case and that they
timely told Mr. and Mrs. Hooper that their case had been lost and explained that
they had an opportunity to appeal, and continuing through Appellants’ sparse and
selective summary of the evidence regarding the injuries suffered by Charles
Hooper—is both demonstrably wrong and incomplete. While Appellants claim that
the evidence regarding the claims of Charles Hooper was both legally and factually
insufficient, they fail to mention at all that Nuru Witherspoon admitted that Charles
Hooper’s injuries and resulting medical expenses were a direct result of the
negligence of the defendant in the underlying case, and that case was one of “clear
liability.” 3 RR at 101, Plaintiff’s Exhibit 5. They also fail to note, in their
“Statement of Facts” that documents received into evidence at trial—without any
objection by Appellants—included not only their own admission as to the nature
and causes of Charles Hooper’s injuries but also the charges that he incurred in
connection with the treatment for those injuries. The same documents included
consistent statements, by multiple treating physicians, that Charles Hooper’s
symptoms, pain, and ensuing disability flowed from a rear end collision on
September 24, 2011.
Appellants’ defense in the trial court—at least the defense that they tried to
3
assert—was that Mr. and Mrs. Hooper made a mistake, by telling Appellants that
the driver of the “other car” was “M.C. Morse,” and that Appellants failed to
discover the mistake until it was too late. They claimed that by the time they
learned that the driver was not “M.C. Morse,” but “Mrs. M.C. Morse,” the statute
of limitations had run. Appellants (actually only Nuru Witherspoon) testified that
there were frequent and continuous communications with Mr. and Mrs. Hooper,
both by written correspondence and by telephone, regarding the progress of their
case, that they promptly advised Mr. and Mrs. Hooper when their case was lost,
and that the Hoopers simply dropped the ball when they elected not to appeal.
The jury in this case chose to disbelieve Appellants’ version of the facts, and
with good reason. First, Kevin Kelley, although he was named as a defendant,
although he is the only member of the defendant law firm who actually wrote a
letter to either Mr. or Mrs. Hooper (yes, there was only one letter from the law firm
to its clients) regarding the underlying personal injury case (Plaintiff’s Exhibit 4, 8
RR at 5), and although he was the attorney-in-charge in both the underlying case
(Plaintiff’s Exhibit 6, 8 RR at 12) and the malpractice case (CR at 26 and 282),
failed even to show up for trial. Nuru Witherspoon, on the other hand, did appear
and did testify. He testified that he frequently corresponded with Mr. and Mrs.
4
Hooper regarding their case, but could produce not a single piece of
correspondence from him to his clients. He told the jury that affidavits that he
presented to the judge in the underlying case were reviewed and signed by Mr. and
Mrs. Hooper, but it turned out that the affidavits were both false and forged. He
even testified that he did not have time to deal with day-to-day developments in
cases entrusted to his care, that he didn’t really get involved until he received a call
on his private cellphone, and that he frequently does not sign his own letters, or
even his pleadings, but simply lets assistants sign for him. 3 RR at 60, 82, 94, 157.1
Obviously, Mrs. Hooper disagrees with the “Statement of Facts” included in
Appellants’ Brief, and therefore offers the following accurate Statement of Facts:
A. The Accident
On September 24, 2004, Charles Hooper and his wife Jeannette were
stopped at a traffic signal on Walnut Hill Lane, preparing to turn left onto Preston
Road in North Dallas. 2 RR at 54-55. Charles was in the driver’s position, and his
wife was seated beside him. Id. While they were stopped in traffic, they were
5
1 The practice of permitting someone else to sign correspondence and pleadings on behalf of a lawyer may be commonplace, and there may well be lawyers out there who believe themselves too busy to attend to the process of actually reading and signing their own documents. It is, nevertheless, plainly wrong. Pleadings are supposed to be signed by lawyers. TEX. R. CIV. P. 57. A lawyer’s signature upon a pleading is supposed to be a meaningful act—a certification by the lawyer that he or she has actually read the document and has at the very least made a reasonable inquiry to determine the that pleading is not groundless. TEX. R. CIV. P. 13. In addition, a lawyer’s actual signature is required to effect compliance with rules pertaining to filing of documents and service of pleadings. TEX. R. CIV. P. 21, 21a.
struck from the rear by a Cadillac automobile; the force of the collision was
sufficient to cause the Hoopers’ car to jerk upward and move forward several feet.
2 RR at 56; 3 RR at 32. After the impact Charles exited his vehicle to talk with the
apologetic driver of the Cadillac. The driver identified herself as “Mrs. M.C.
Morse,” and wrote her name and address on a notepad. Plaintiff’s Exhibit 1; 8 RR
at 2. Charles wrote the license plate number of the Cadillac on the notepad and
returned to his car with his wife Jeannette. Charles continued through his workday,
traveling to make scheduled appointments with elderly clients that he monitored as
part of his job with Adult Protective Services. 2 RR at 57-58.
As the day progressed, Charles and Jeannette began to experience pain,
particularly in their necks and backs, and at the end of the work day they visited
the local K-Clinic, where they received treatment and medication by Dr. Robert
Silva. They continued with treatment by Dr. Silva for a period of several weeks.,
and were eventually released by Dr. Silva, with instructions to return if pain
returned. Dr. Silva’s complete chart regarding his treatment of both Charles and
Jeannette was admitted into evidence without objection. Plaintiff’s Exhibit 24, 8
RR at 114-57.The Appellants’ Brief at page 5 sets forth an excerpt from Dr. Silva’s
Release Report pertaining to Charles, but omits from that summary the following:
6
It is my medical opinion that, in all reasonable medical probability, the diagnoses, symptoms, and physical findings for which this patient has been treated are directly related to the motor vehicle accident on 9/24/04 to the best of my knowledge and belief.
[Portion of report quoted in Appellants’ Brief]
The patient was advised that should he have a recurrence of the symptomatology with increased activities and/or changes in the weather, and these not be relieved by simple at home measures, such as application of heat and/or taking of over-the-counter analgesics, he should then feel free to return to our office for further evaluation and treatment.
I have reviewed the charges and feel that they are reasonable for the necessary medical care of this patient.
Plaintiff’s Exhibit 24, 8 RR at 121-22.
Jeannette Hooper experienced no further problems after being released by
Dr. Silva; she got well.2 Charles, however, continued to have pain. 2 RR at 61; 3
RR at 14. Over the course of the ensuing months, Charles saw several physicians.
He was seen initially by his primary doctor, who referred him to the Carrell Clinic.
3 RR at 33. The Carrell Clinic referred him to Dr. Don West, and on March 24,
2005, Dr. West concluded from his examination that Charles suffered from
“cervicothoracic strain syndrome” and ordered an MRI in order to “rule out
cervical spinal stenosis secondary to MVA 9/24/04.” Plaintiff’s Exhibit 24, 8 RR at
7
2 Dr. Silva’s Release Report regarding Jeannette also was admitted into evidence, without objection. That report also confirmed that her injuries were directly related to the accident and that the charges for her treatment were reasonable and necessary. Plaintiff’s Exhibit 24, 8 RR at 244-45.
159. The ensuing MRI by Dr. Jack Connally confirmed the spinal stenosis.
Plaintiff’s Exhibit 24, 8 RR at 234. Dr. West, upon receiving the results of the MRI,
referred Charles for surgery. Plaintiff’s Exhibit 24, 8 RR 161. Over the course of
the ensuing ninety days, Charles was evaluated by Drs. Don Barnett, Huntley
Chapman, and Guru Motgi, each of whom concluded that surgical intervention was
necessary. Plaintiff’s Exhibit 24, 8 RR at 167 (Dr. Barnett), 213-14, 225-27 (Dr.
Chapman), 250-55 (Dr. Motgi). Charles was again referred to Dr. Jack Connally
for a cervical myelogram and another cervical CT scan, from which Dr. Connally
concluded that Charles had stenosis that was “most severe at C3-4 and C4-5.”
Plaintiff’s Exhibit 24, 8 RR at 241.
In October of 2005, a year after the accident, Charles was referred for
surgery to Dr. Andrew E. Park. Plaintiff’s Exhibit 24, 8 RR at 202. On December
6, 2005, Dr. Park performed a multilevel anterior cervical diskectomy and fusion
and a posterior fusion with instrumentation (screws). Plaintiff’s Exhibit 24, 8 RR at
179-81. The surgery was unsuccessful. 2 RR at 128.
B. The Underlying Lawsuit
After it became apparent that he would not get well without extensive
medical treatment, Charles consulted with his son, Byron Hooper. Byron was
8
working as an insurance adjuster at the time, and told his father that he needed to
get a lawyer. 2 RR at 43-46. Charles and Jeannette ultimately made their way into
the offices of Kelley & Witherspoon on St. Paul Street in Downtown Dallas in
September of 2005, approximately one year post-accident, and met with Nuru
Witherspoon. This was the only meeting and the only conversation that either
Charles or Jeannette had with any lawyer at Kelley & Witherspoon for almost three
years. 2 RR at 63.3 After listening to Mr. and Mrs. Hooper, and after making a copy
of the handwritten note from “Mrs. M.C. Morse,” Mr. Witherspoon explained to
Mr. and Mrs. Hooper that they had a “good case,” and that “he didn’t see any
problem” and would “take care of it, you know, right away.” 2 RR at 64. On the
same day, Mr. and Mrs. Hooper each signed contingent fee agreements, engaging
Kelley & Witherspoon as their lawyers. 2 RR at 64-5; Plaintiff’s Exhibit 2, 8 RR at
3-4. Shortly after their meeting with Mr. Witherspoon, Mr. and Mrs. Hooper
received a letter on Kelley & Witherspoon letterhead (addressed to Mr. and Mrs.
Cooper). The letter was dated September 15, 2005 and was signed by Kevin
Kelley. Plaintiff’s Exhibit 3; 8 RR at 5. The letter thanked Mr. and Mrs. Cooper for
9
3 Mr. Witherspoon testified at trial that he had multiple meetings and conversations with Mr. and Mrs. Hooper while their case was pending. To the contrary, Mrs. Hooper testified that there were no further meetings, and that while she and her husband tried on many occasions to talk with Mr. Witherspoon, he never answered answered, and never returned a single call. 2 RR at 66, 69.
hiring Kelley & Witherspoon. This letter is the only letter that Mr. and Mrs.
Hooper ever received from anyone at Kelley & Witherspoon. 2 RR at 66.
Over the course of the ensuing year, Mr. and Mrs. Hooper attempted to learn
about the progress of their matter; they called multiple times, but their calls were
never returned. 2 RR at 69-71. Finally, in September of 2006, “Charles became
somewhat more animated,” and “demanded that some paperwork or some evidence
or something that the case was taking place and the status of it.” 2 RR at 71. On
September 11, 2006, Mr. and Mrs. Hooper received by facsimile a photocopy of an
Original Petition filed on their behalf on August 28. Plaintiff’s Exhibit 6, 8 RR at 9.
Upon reviewing the Petition, Mr. and Mrs. Hooper noticed at Mrs. Hooper’s first
name had been misspelled in the caption and in the body of the Petition—a mistake
that Mrs. Hooper admitted was somewhat common. 2 RR at 73. However, when
Charles noticed that the Petition named “M.C. Morse” as defendant, he “hit the
roof” and screamed that “they had sued the wrong party.” 2 RR at 73. Charles
logged on to the Dallas Central Appraisal District’s website, and confirmed that
Mrs. M.C. Morse’s name was “Alice Z. Morse.” 2 RR at 75-76. He immediately
called his lawyers, but he couldn’t get Mr. Witherspoon (with whom he’d met) nor
did he get Mr. Kelley (who was the lawyer listed in the Petition); instead he got an
10
assistant. Charles explained to the assistant that the Defendant had been mis-
named, and that Alice Z. Morse was the correct Defendant. 2 RR at 76. Charles
was told by the assistant that “they would take care of it right away.” 2 RR at 79.
His lawyers in fact did nothing.
Later, on November 2, 2006, counsel for “M.C. Morse” served Kelley &
Witherspoon with disclosures under TEX. R. CIV. P. 194. In the disclosures, Kelley
& Witherspoon were told that “Alice Z. Morse” was a potential party, that “Ms.
Morse was the driver involved in the accident.” Plaintiff’s Exhibit 9, 8 RR at 21-2.
His lawyers again did nothing. 3 RR at 112-13.
On December 6, 2006, counsel for “M.C. Morse” wrote to Mr. Kelley, and
enclosed a copy of a motion for summary judgment that he intended to file. The
motion for summary judgment was based upon the fact that “M.C. Morse” was not
the driver and was not involved in the accident. 3 RR at 117. Mr. Kelley did not
respond. 3 RR at 118.
On December 20, 2006, counsel for “M.C. Morse” filed the motion for
summary judgment; the motion was set for hearing on February 15, 2007. 3 RR at
118. Kelley & Witherspoon finally filed a response to the motion for summary
judgment on February 12, 2007, three days before the hearing date. Plaintiff’s
11
Exhibit 12; 8 RR at 47.4 In the response, they continued to assert the claim that the
driver of the vehicle that struck the Hoopers’ car was “M.C. Morse.” Attached to
the response were affidavits of Charles Hooper and Jeannette Hooper, in which the
Hoopers (purportedly) swore that the driver identified herself as “M.C. Morse,”
and that they “did not learn that Alice Morse was actually driving the car until after
the statute of limitations expired.” 8 RR at 63, 65.
The affidavits were false, and the signatures of Charles Hooper and
Jeannette Hooper on the affidavits were forged; in fact, the person who signed
Jeannette Hooper’s name even managed to mis-spell Jeannette’s first name. 2 RR at
85-88. The court granted M.C. Morse’s motion for summary judgment, by order
signed February 16, 2007. Plaintiff’s Exhibit 16, 8 RR at 71; 3 RR at 131.
The summary judgment was not, however, final. On February 15, 2007—on
the day the motion for summary judgment was heard—Kelley and Witherspoon
filed an Amended Petition, in which they finally named Alice Z. Morse as an
additional defendant. The case was nevertheless on its last legs. After brief
discovery, Alice Z. Morse filed her own limitations-based motion for summary
12
4 The response to the motion for summary judgment bears a purported signing and service date of February 8, 2007 (seven days before the summary judgment hearing). However, the response was not actually signed by Mr. Witherspoon, but was signed by someone else with the notation “wp.” See footnote 1, supra.
judgment, and that motion was set for hearing on June 25, 2007. 3 RR at 133.
Kelley and Witherspoon filed a response to Alice Z. Morse’s motion on June 19—a
day late. 3 RR at 134. Kelley and Witherspoon incorporated into their late response
the same false and forged affidavits that had accompanied the response to M.C.
Morse’s motion for summary judgment. Plaintiff’s Exhibit 18, RR at 79.
The court granted Mrs. Morse’s motion for summary judgment, by order
signed on the day of the hearing—June 25. Plaintiff’s Exhibit 19, 8 RR at 90.
The case was over; no appeal was perfected. Unfortunately, Charles and
Jeannette Hooper did not know that their case had been lost. They didn’t know that
motions for summary judgment had been filed and granted, they didn’t know that
affidavits purporting the bear their signatures had been filed with the court. Their
lawyers neither wrote them nor called them, and their ‘phone calls to their lawyers
were not returned. 2 RR at 89-92.
In the Summer of 2008—a full year after their case had been lost, Mr. and
Mrs. Hooper became frustrated. They had heard nothing about their case for a long,
long time, and decided to get into their car and travel to Kelley & Witherspoon’s
office. When they arrived, the office was empty. 2 RR at 93. They returned home
and tracked down the law firm’s new address “on the Internet.” 2 RR at 94. They
13
drove to the “new” office “on Deep Ellum” and asked to see Mr. Witherspoon. Id.
After waiting for 45-60 minutes, they were told by the receptionist that Mr.
Witherspoon could not see them and that they would need to make an
appointment. Id. They scheduled an appointment for July 21, 2008, and on that day
they met with Mr. Witherspoon; this was the first time they had met with or talked
to Mr. Witherspoon for almost three years. 2 RR at 95-6. Mr. Witherspoon told Mr.
and Mrs. Hooper that the case had been lost, because they had sued the wrong
person, but that he would appeal and that “he was going to take care of it himself.”
2 RR at 96. One month later, on August 21, 2008, Mr. Witherspoon emailed Mr.
Hooper, and explained that his “contingency fee agreement is limited to the trial
process and does not extend to appeals.”5 Plaintiff’s Exhibit 20, 8 RR at 91-2.
C. The Trial
In May of 2009, Mr. and Mrs. Hooper sued Messrs. Kelley and Witherspoon,
as well as their law firm. Trial commenced in May 2011. The jury heard from five
witnesses. Charles Hooper’s son, Byron, and his daughter, Nicole, testified
regarding their father’s condition before and after the September 24, 2004 accident.
14
5 Kelley & Witherspoon’s “Contingency Fee Agreement” clearly did not limit the scope of the lawyers’ responsibility to their clients to representation in the trial court. In fact, the agreement did not contain any limitation at all as to the scope of representation. In any event a lawyer is permitted to limit the scope of the representation of a client only if the client “consents after consultation.” TEX. DISC. R. PROF. COND. 1.02(b).
2 RR at 42-44; 3 RR at 48-50. Both confirmed that their father’s favorite sport was
basketball, and that he frequently played basketball with both of them before the
accident and never again after the accident. Both confirmed that, after the accident,
Charles even had difficulty playing his other favorite “sports,” chess and dominoes.
Nuru Witherspoon, as outlined above, testified. He confirmed that he and his
law firm agreed to represent Mr. and Mrs. Hooper, that his law firm had sued the
wrong person, that his law firm had lost two summary judgments, that his law firm
had failed to perfect an appeal, and that the Hoopers’ case was lost.
Jeannette Hooper testified regarding the accident and the ensuing treatment
that she and Charles received, as already outlined above.
Carl Weinkauf, a Dallas personal injury lawyer, testified regarding his
evaluation of the underlying case, and his review of Kelley & Witherspoon’s file
regarding that case. Mr. Weinkauf outlined the instances in which Kelley &
Witherspoon’s performance as counsel for Mr. and Mrs. Hooper fell below the
applicable standard of care, explained the personal injury lawsuit process to the
jury, and testified regarding his assessment of the probable recovery that would
have been awarded to Mr. and Mrs. Hooper had the underlying case been properly
prosecuted. Mr. Weinkauf’s direct testimony began on the afternoon of the second
15
day of trial (3 RR at 178) and concluded on the following morning (4 RR at 24).
During the cross examination of Mr. Weinkauf, Appellants’ trial counsel asked Mr.
Weinkauf a number of questions regarding the medical care provided to Charles
Hooper, as well as the cost of that care. E.g., 4 RR at 42-51. Mr. Weinkauf
explained to the jury (in response to questions from Appellants’ trial counsel) the
significance of the medical doctors’ findings regarding the injuries that flowed from
the September 2004 accident and the meaning of medical terms in the medical
records. Finally, Mr. Weinkauf explained to the jury the basis for his confidence
that a judgment would have been collectible, had Messrs. Kelley and Witherspoon
properly prosecuted the Hoopers’ lawsuit, because Alice Morse maintained
$500,000 in liability insurance coverage, the Hoopers held underinsured motorist
coverage, and Alice Morse and her husband had substantial assets.
The case was submitted to the jury upon four questions. The jury found that
the negligence of both Kevin Kelley and Nuru Witherspoon caused injury to Mr.
and Mrs. Hooper, that Charles Hooper would have recovered and collected
$225,000 and Jeannette Hooper would have recovered and collected $10,000 had
the case been properly prosecuted, and that Kevin Kelley and Nuru Witherspoon
were equally responsible. Clerk’s Record at 238-42.
16
On June 17, 2011, the trial judge signed a judgment upon the jury’s verdict.
D. This Appeal
Kelley & Witherspoon timely perfected an appeal and challenges the Final
Judgment on the following grounds:
(1) Kelley & Witherspoon contends that the evidence is legally and factually
insufficient to support the finding of causation in the underlying personal injury
case.
(2) Kelley & Witherspoon argues that the evidence is legally and factually
insufficient to support an award of medical expenses and lost wages.
(3) Kelley & Witherspoon insists that the trial court abused its discretion in
submitting broad form damages questions to the jury.
IV. SUMMARY OF THE ARGUMENT
Mrs. Hooper explains that the trial judge and her counsel tried and submitted
this case to the jury in a manner consistent with the Supreme Court’s direction as to
the issues in a legal malpractice case, in accordance with the rules calling for
simple and straight-forward jury charges, and in accordance with this Court’s most
recent opinion regarding the elements of a legal malpractice claim and the jury
charge that is appropriate in such cases.
Most of the argument in Appellants’ Brief is devoted to the “causation”
17
element of Mrs. Hooper’s claim for legal malpractice, and Mrs. Hooper explains
below that there was abundant proof, in the form of testimony by fact witnesses,
medical records admitted without objection, Appellants’ own admissions regarding
causation and medical treatment that flowed from the underlying accident, and the
uncontroverted and clear testimony of Mrs. Hooper’s expert witness, all
establishing that Mrs. Hooper and her now-deceased husband sustained serious
injuries in an automobile accident, and that they would have prevailed in an action
against the person who struck them if only Messrs. Kelley and Witherspoon done
what they were hired to do.
V. ARGUMENT
A claim for legal malpractice sounds in negligence, involving the same
standard of care/breach/causation/damages analysis as in any negligence case.
RESTATEMENT [THIRD] OF THE LAW GOVERNING LAWYERS, §§ 48, 53. Annot.,
Measure and Elements of Damages Recoverable for Attorney’s Negligence in
Preparing or Conducting Litigation—Twentieth Century Cases, 90 A.L.R.4th 1033
(1991). There was a time, in Texas, during which lawyers were permitted to urge
subjective and inferential defenses to malpractice claims. See e.g., Cook v. Irion,
409 S.W.2d 475, 477 (Tex.Civ.App.—San Antonio 1966, no writ); Great American
Indem. Co. v. Dabney, 128 S.W.2d 496, 501 (Tex.Civ.App.—Amarillo 1939, writ
dism’d jdgmt cor.) However, any doubt as to whether Texas courts would
18
complicate legal malpractice cases or grant lawyers any “special” treatment when
their conduct strays from an applicable standard of care was resolved by the Texas
Supreme Court in Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989). Frank
Cosgrove (like Charles and Jeannette Hooper) suffered injuries when an
automobile he was driving was struck from the rear by Will Stephens. Cosgrove
hired an attorney named Ed Bass to prosecute a claim for personal injuries suffered
as a result of the accident. Bass dilly-dallied, and eventually passed the case along
to another lawyer—Walter Grimes. Grimes accepted the case, and Grimes
managed to get a law suit filed before the second anniversary of the accident.
Unfortunately, Grimes (like Messrs. Kelley and Witherspoon) wasn’t careful. He
filed the lawsuit against the passenger in Stephens’ automobile rather than against
Stephens, and didn’t discover his error until after limitations had run. When
Cosgrove sued Grimes, Grimes asserted the so-called “good faith” defense. The
jury ultimately determined that Grimes had in fact been negligent, that his
negligence caused harm to Cosgrove, and that Cosgrove would have recovered
$2,500 had Grimes properly prosecuted the underlying personal injury case against
Stephens. The jury also, on the other hand, returned a finding that Grimes had
acted in “good faith.” The trial judge signed a take nothing judgment. In a well-
reasoned opinion based upon substantial Texas precedent, the court of appeals
affirmed. Cosgrove v. Grimes, 757 S.W.2d 508 (Tex.App.—Houston 1988). The
Supreme Court granted review, reversed, and rendered a judgment for Cosgrove
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upon the jury’s verdict, holding that there is no “good faith” defense to legal
malpractice, because a claim for legal malpractice is based upon negligence, with
four objective elements: “The plaintiff must prove that there is a duty owed to him
by the defendant, a breach of that duty, that the breach proximately caused the
plaintiff injury and that damages occurred.” 774 S.W.2d at 665.6
Cases following Cosgrove v. Grimes have summarized its relatively simple
ruling by referring to the causation element of a legal malpractice claim as a “suit
within a suit.” For example, the San Antonio Court of Appeals explained:
In order to prevail on a legal malpractice claim which [sic] arises from prior litigation, the plaintiff has the burden to show that “but for” the attorney’s negligence, he or she would be entitled to judgment, and show what amount would have been collectible had he or she recovered the judgment. . . . This is commonly referred to the “suit within a suit” requirement.
Ballesteros v. Jones, 985 S.W.2d 485, 489 (Tex.App.—San Antonio 1998, pet.
denied). This Court most recently addressed the “suit within a suit” concept in
Webb v. Stockford, 331 S.W.3d 169 (Tex.App.—Dallas 2011, rev. denied). The
Court explained that:
To recover, the plaintiff must show: (1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach
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6 As we explain below, the Supreme Court also explained precisely how the issues of causation and damages should be submitted in a legal malpractice case. The jury charge that had been submitted segregated the elements of damages into two separate questions, and in the form in which they would have been submitted had the underlying rear-end case been tried. The Supreme Court disapproved of the charge, and stated that “The two issues should have inquired as to the amount of damages recoverable and collectible from Stephens if the suit had been properly prosecuted. 774 S.W.2d at 666 (emphasis by Court, citing Texas Pattern Jury Charges, PJC 85.01 (1982).
proximately caused the plaintiff's injuries; and (4) damages. Belt v. Oppenheimer, Blend, Harrison & Tate, Inc. 192 S.W.3d 780, 783 (Tex. 2006). When the claim is that lawyers improperly represented the plaintiff in another case, the plaintiff must prove and obtain findings as to the amount of damages that would have been recoverable and collectible if the other case had been properly prosecuted. Akin, Gump, Strauss, Hauer & Feld, LLP v. Nat’l Dev. & Res. Corp., 299 S.W.3d 106, 112 (Tex. 2009). This aspect of the malpractice plaintiff's burden is commonly referred to as the “suit within a suit” requirement.
331 S.W.3d at 173.
Fifteen years after deciding Cosgrove v. Grimes, the Supreme Court
elaborated upon the causation element of a legal malpractice claim, in Alexander v.
Turtur & Associates, Inc., 146 S.W.3d 113 (Tex. 2004). Attorney Tom Alexander
was entrusted with representation of Turtur, Inc. in connection with a complex
adversary proceeding in bankruptcy court. When the case was called to trial in the
bankruptcy court, Alexander turned the matter over to an associate who had no
prior civil trial or bankruptcy experience. After the case was lost, Turtur sued
Alexander. A Harris County jury awarded Turtur over $3 million in damages, but
the trial court granted Alexander’s motion for judgment n.o.v., concluding that
there was no evidence of causation or damages. In its review of the judgment, the
Supreme Court noted that there was abundant evidence of the first two elements of
Turtur’s claims: Alexander owed a duty of care and clearly breached that duty. The
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Court explained that “Breach of the standard of care and causation are separate
inquiries, however, and an abundance of evidence as to one cannot substitute for a
deficiency of evidence as to the other.” 146 S.W.3d at 119. The Court also
explained that, at least in the context of the facts in Alexander v. Turtur, the
causation element of the Turtur’s claim required expert testimony, because “on this
record . . . the errors allegedly made by [the associate attorney] in the preparation
and trial of the admittedly complex, yet truncated, underlying proceeding were not
so obviously tied to the adverse result as to obviate the need for expert testimony.”
146 S.W.3d at 120.
The trial judge in this case was familiar with both Cosgrove v. Grimes and
Alexander v. Turtur. The case was tried with the assistance of expert testimony
upon both the standard of care and causation issues, and the case was submitted to
the jury upon questions approved by the Supreme Court and set forth in the Pattern
Jury Charges, as well as in the precise format set forth in this Court’s most recent
legal malpractice opinion. Webb v. Stockford, 331 S.W.3d 169 (Tex.App.—Dallas
2011, rev. denied). In their Appellants’ Brief, Messrs. Kelley and Witherspoon
argue that the “suit within a suit” component of a legal malpractice case requires
that the plaintiff secure favorable answers to each of the questions that would have
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been submitted in an actual trial of the underlying personal injury case. They are
wrong. The Supreme Court in Cosgrove v. Grimes clearly articulated the basic
question that is to be submitted in a legal malpractice case, and clearly explained
what the malpractice plaintiff is required to prove: “the amount of damages
recoverable and collectible from Stephens if the suit had been properly
prosecuted.” Cosgrove v. Grimes, 774 S.W.2d at 666.
A. Causation
Messrs. Kelley and Witherspoon argue that the evidence is legally and
factually insufficient that the automobile collision in the underlying case caused the
Hoopers’ injuries. They contend that the Hoopers could prove such causation only
by expert testimony and none was proffered. Hogwash. The record in this case is
replete with testimony, both lay and expert, regarding causation in the underlying
case. In addition, the Hoopers’ medical records relating to their treatment for the
injuries suffered in the collision were admitted into evidence—without any
objection. Medical records are competent and admissible upon the issue of
causation. See Coastal Tankships, U.S.A. , Inc. v. Anderson, 87 S.W.3d 591, 610,
617 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
Messrs. Kelley and Withersoon nevertheless insist that such medical records
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cannot serve as expert medical causation testimony because they are not reliable.
To preserve a complaint that expert testimony is unreliable and, thus, no evidence,
a party must object to the evidence either before trial or when the evidence is
offered. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex. 1998).
Without a timely objection to the reliability of expert or scientific evidence, the
offering party is not given an opportunity to cure any defect that may exist and will
be subject to trial and appeal by ambush. Id. Reviewing courts may not exclude
expert evidence admitted without objection after trial to render a judgment against
the offering party because that party relied on the fact that the evidence was
admitted. Id. Permitting a party to challenge on appeal the reliability of expert
evidence in the guise of an insufficiency of the evidence argument would give an
unfair advantage. Id. An appellant would be free to gamble on a favorable
judgment at trial, knowing that it could seek reversal on appeal despite its failure to
object at trial. Id. Kelley & Witherspoon thus had to object to the reliability of the
medical records before trial or when they were offered to complain on appeal that
the medical records were unreliable and thus no expert evidence of causation in the
underlying case. See id. at 409-10.
The medical records admitted in this case without objection provide more
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than a scintilla of expert evidence that the automobile collision in the underlying
case caused the Hoopers’ injuries. Such evidence of causation was, therefore, not
legally insufficient.
Kelley & Witherspoon also suggest that should this court hold that there is
legally sufficient evidence of causation, then the evidence of causation is factually
insufficient. Kelley & Witherspoon does not put forth any argument as to why the
evidence is factually insufficient. The Hoopers assume that Kelley & Witherspoon
rely on the same arguments for factual insufficiency as for the legal insufficiency
claim. The record in this case contains expert testimony, lay testimony, and
admissions by Kelley & Witherspoon on causation to support the verdict and
judgment such that the verdict in this case was not clearly wrong or unjust.
The general rule is that expert testimony is necessary to establish causation
regarding medical conditions outside the common knowledge and experience of
jurors. Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex. 2007); State Office of Risk
Management v. Larkins, 258 S.W.3d 686, 689 (Tex. App.—Waco 2008, no pet.).
This expert testimony can be provided by reliable medical records. Coastal
Tankships, 87 S.W.3d at 610, 617; Larkins, 258 S.W.3d at 692. The context and
substance of the medical records can determine reliability. Burroughs Wellcome
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Co. v. Crye, 907 S.W.2d 497, 500 (Tex. 1995); Larkins, 258 S.W.2d at 692. There
are exceptions, however, to the general rule where causation findings linking
events and physical conditions could be sufficiently supported by non-expert
evidence, such as lay testimony. Parker v. Employers Mutual Liability Ins. Co. of
Wis., 440 S.W.2d 43, 36 (Tex. 1969); Larkins, 258 S.W.3d at 689-90 (lay testimony
sufficient to prove causation for back injury suffered when plaintiff was pushed
into a wall but not for psychological injury of post traumatic stress syndrome).
Generally, lay testimony that establishes a sequence of events that provides a
strong, logically traceable connection between the event and the condition is
sufficient proof of causation. Morgan v. Compugraphic Corp., 675 S.W.2d 729,
731 (Tex. 1984); Larkins, 258 S.W.3d at 690.
Perhaps the best examples of cases supporting the notion that causation can be
established by logic and lay witnesses, and without the necessity of medical
experts are the two cases cited in Appellants’ Brief. At page 23 of Appellants’
Brief, they rely upon Smith v. Southwestern Bell Tel. Co., 101 S.W.3d 698
(Tex.App.—Fort Worth 2003, no pet) and Blankenship v. Mirick, 984 S.W.2d 771
(Tex.App.—Waco 1999, pet. denied) in support of their argument that a “medical
expert” is necessary in every personal injury case. In fact, both cases hold exactly
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the opposite. In Smith v. Southwestern Bell, the court expressly stated that lay
testimony of causation is appropriate and sufficient if it establishes “a sequence of
events that produces a strong, logically traceable connection between the event and
the condition. 101 S.W.3d at 702. And in Blankenship v. Mirick, the court upheld a
jury’s verdict in a personal injury case, explaining:
The causal nexus between the event sued upon and the plaintiff’s injuries must be shown by competent evidence. [citing Morgan v. Compugraphic Corp., 675 S.W.2d 729, 731 (Tex. 1984)] Lay testimony can adequately prove this nexus.”
984 S.W.2d at 775. In the case at hand, as outlined above, Charles Hooper was a
healthy, vibrant man, who enjoyed both his work and his play. Before the accident
he pursued his three passions, basketball, chess, and his wife with energy and
enthusiasm. After the accident, he never played basketball again, was unable even
to play chess without pain, and could not even hug his wife. He never got well, and
there was no event, other than the accident, that contributed to his pain and
disability. This was precisely the kind of proof that the Supreme Court has
approved as sufficient:
Generally, lay testimony establishing a sequence of events which provides a strong, logically traceable connection between the event and the condition is sufficient proof of causation.
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Morgan v. Compugraphic Corp., 675 S.W.2d 729, 733 (Tex. 1984).
B. Legal and Factual Sufficiency of Medical Expenses and Lost Wages
Kelley & Witherspoon contend that there is no evidence of Mr. Hooper’s
medical expenses and no evidence of his lost wages. First, of course, the jury was
not asked to make any specific award of either medical expenses or lost wages. The
jury was asked, as required by Cosgove v. Grimes and its progeny, to determine
“what sum of money, if paid now in cash, would Charles Hooper have recovered
and collected in his suit against Mrs. M.C. Morse (Alice Morse) if his suit had
been properly prosecuted.” Clerk’s Record at 239. The jury was instructed that it
could consider a number of components of potential damages, including past and
present loss of earning capacity and past medical care espenses. Id. There was
evidence of all three, admitted without objection at trial. First, even Appellants
concede in their Brief that there was proof, from a medical doctor, that Mr.
Hooper’s injuries “are directly related to the motor vehicle accident on 9/24/04”
and that the medical expenses were “reasonable for the necessary medical care of
this patient.” Plaintiff’s Exhibit 24, 8 RR at 121-22. In addition, Mr. Witherspoon
admitted that Mr. Hooper’s injuries, as well as over $130,000 in medical expenses,
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were incurred “as a direct result of this accident.” Plaintiff’s Exhibit 5, 8 RR at 7.
Mr. Weinkauf, the Hoopers’ legal expert, testified that based on Mr. Hooper’s tax
returns showed an average annual income exceeding $30,000 and that Mr. Hooper
would work 6 more years after the accident (from age 59 to 65), from which he
concluded that Mr. Hooper’s lost wages were at least $180,000. Kelley &
Witherspoon contend that Mr. Weinkauf’s testimony is no evidence of lost wages
because he did not take into account that Mr. Hooper died at age 64 from cancer
and the downturn in the real estate market from which Mr. Hooper made his living.
Needless to say, there was no evidence of any “downturn” in any real estate market
in which Mr. Hooper operated, and Mr. Hooper did not even contract the cancer
that resulted in his untimely death until five years after he hired Kelley &
Witherspoon.
Furthermore, Kelley & Witherspoon did not object to Mr. Weinkauf’s
testimony on lost income. Yet again Kelley & Witherspoon comes to this Court
complaining of the reliability of such expert testimony. As previously discussed, to
preserve a complaint that expert testimony is unreliable and, thus, no evidence, a
party must object to the evidence before trial or when the evidence is offered.
Maritime Overseas Corp., 971 S.W.2d at 409. Kelley & Witherspoon has not
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preserved error with respect to the complaint on lost wages.
C. The Charge
Kelley & Witherspoon complain that the trial court erred in submitting Jury
Question Nos. 2 and 3, broad form damages questions for Mr. and Mrs. Hooper,
respectively, because those questions commingled valid and invalid elements of
personal injury damages. Specifically, Kelley & Witherspoon complain that
medical expenses and lost wages were invalid elements of personal injury damages
included in the global damages questions because there was insufficient evidence
of causation and reasonableness and necessity of such damages. We have already
explained above that there was in fact sufficient evidence of each of these damages
elements. Kelley & Witherspoon also complains that future damages relating to
Mr. Hooper were improper because Mr. Hooper was deceased at the time of trial.
As we have explained already, this is a legal malpractice case that arises from
prior litigation; it is not a personal injury case. In order to prevail on a legal
malpractice claim that arises from prior litigation, the plaintiff has the burden to
show that but for the attorney’s negligence, he would be entitled to a judgment and
what amount would have been collectible had he recovered the judgment.
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The Hoopers’ burden, as part of the causation element in their legal
malpractice case, was to prove that but for Kelley & Witherspoon’s negligence in
handling the underlying litigation, they were entitled to recover and collect a
money judgment. The measure of damages in a legal malpractice claim based on
negligence is not the same as that in a personal injury case. The proper measure of
damages in a legal malpractice case is the recovery and collectibility of a judgment
in the underlying case and may even include items such as attorney’s fees spent in
the underlying case that would not normally be included in a personal injury case.
See Cosgrove, 774 S.W.2d at 666; Ballasteros, 985 S.W.2d at 499. If follows then
that jury questions on damages in legal malpractice cases would be different from
damages questions in a personal injury case.
Consistently with Cosgrove, Ballasteros, the Pattern Jury Charges, and this
Court’s opinion in Webb v. Stockford, 331 S.W.3d 169, 172-73, n.4 (Tex. App.—
Dallas 2011, pet. denied) the trial judge submitted this case to the jury on two
broad form questions. In response to the first question, the jury found that Kelley
and Witherspoon’s negligence caused the occurrence in question. In response to the
second question, the jury found that the plaintiffs would have “recovered and
collected” $225,000 if the underlying suit had been properly prosecuted on behalf
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of Charles Hooper and $10,000 if the suit had been properly prosecuted on behalf
of Jeannette Hooper. The second and third question asked:
What sum of money, if paid now in cash, would [Charles or Jeannette] have recovered and collected . . . if his suit had been properly prosecuted.
Question Nos. 2 and 3 in this case followed the form cited in this Court’s opinion
in Webb. Rule 277 of the Texas Rules of Civil Procedure provides that “[i]n all jury
cases the court shall, whenever feasible, submit the cause upon broad-form
questions.” TEX. R. CIV. P. 277. Accordingly, the trial court did not abuse its
discretion in submitting Question Nos. 2 and 3 as broad form questions in this legal
malpractice case.
Furthermore, even if Kelley & Witherspoon’s argument that the damages
questions should not have been submitted in broad form had merit, there is still no
error. At the charge conference, the only objections Kelley & Witherspoon made
to Jury Question Nos. 2 and 3 were:
Ms. Lee: As to Question Number 2, in regards to damages of Charles Hooper, defendants would object to the submission of a single damages question and would argue that that is actually prejudicial to defendants, instead of individual damages answers for each and every alleged element of damages. The Court: Okay. that objection is overruled. Ms. Lee: Secondly, Your Honor, as to Question Number 2, defendants would--would object to the submission of element number--or letter I,
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medical expenses incurred in the past. There’s no evidence in the record, Your Honor, that the medical care, save and except possibly the initial treatment through November 8th--or November 8th or 2004--was either medically reasonable in all reasonable possibility or probability related to the accident made the basis of the suit and the underlying suit. And there’s been no evidence that any of the subsequent treatment after 11/8 of 2004 was reasonable and necessary, reasonable cost and necessary in accordance with Dallas County standards. The Court: Okay. And that objection is overruled. Ms. Lee: . . . We make the same objection for Jeannette Hooper, the submission of the letter B, medical care expenses incurred in the past. Same objection, Your Honor. The Court: That objection is overruled.
Reporter’s Record, Vol 4 at 106-07.
Kelley & Witherspoon made no objection prior to the submission of lost
wages or a “host of future damages” in the jury charge. Such complaint about the
inclusion of those damages in the jury charge is made for the first time in this
appeal and, therefore, has not been properly preserved. TEX. R. CIV. P. 274; First
Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466, 475 (Tex. 2004).
Kelley & Witherspoon’s complaint about inclusion of medical expenses in the
global damages question is equally without merit. As discussed above, the
evidence of medical expenses was both legally and factually sufficient to support
the jury’s verdict and subsequent judgment in this case.
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VI. Conclusion and Prayer
Appellee Jeannette Hooper prays that this Court affirm the trial court’s
judgment.
Respectfully Submitted,
WYNNE & WYNNE
By___________/s/______________B. Prater Monning IIIState Bar No. 14269700127 West James St.Wills Point, Texas 75169(903) 873-2531(903) 873-3450 (facsimile)
ATTORNEYS FOR APPELLEEJEANNETTE HOOPER
CERTIFICATE OF SERVICE
I certify that a copy of this Appellant’s Brief has been served in accordance with Tex. R. App. P. 9.5 upon the following counsel:
Sean R. Cox, Kelly, Durham & Pittard, LLP, P.O. Box 224626, Dallas, Texas 75222
Service was completed electronically on December 28, 2011.
____________/s/______________________B. Prater Monning III
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