Nicholas Marteny v. Brent W. Coon and Brent W. Coon, PC D/B/A Brent Coon & Associates

In The

Court of Appeals

Ninth District of Texas at Beaumont

________________

NO. 09-23-00078-CV
________________

NICHOLAS MARTENY, Appellant

V.

BRENT W. COON AND BRENT W. COON, PC
D/B/A BRENT COON & ASSOCIATES, Appellees
________________________________________________________________________

On Appeal from the 60th District Court
Jefferson County, Texas
Trial Cause No. B-199,855
________________________________________________________________________

MEMORANDUM OPINION

For the second time in this legal malpractice case, Nicholas Marteny

(“Marteny”) appeals the trial court’s grant of a traditional motion for summary

judgment for Brent W. Coon and Brent W. Coon, PC d/b/a Brent Coon & Associates

(collectively “BCA”). In four issues, Marteny argues: (1) the law-of-the-case

doctrine precluded summary judgment because the facts and record are substantially

the same as in the first summary judgment proceeding; (2) even if the law-of-the-

1
case doctrine does not apply, the trial court erred by granting traditional summary

judgment based on lack of duty and damages; (3) the trial court abused its discretion

by denying his Motion to Compel; and (4) the trial court abused its discretion by

denying his Motion for Continuance of the summary judgment hearing to obtain

discovery. We affirm for the reasons discussed below.

I. BACKGROUND AND PROCEDURAL POSTURE

A. Prior Appeal and Mandamus

In 2020, we reversed the trial court’s grant of BCA’s traditional motion for

summary judgment, holding in part that BCA failed to conclusively negate the duty

and damages elements of Marteny’s legal malpractice claim. See Marteny v. Coon,

No. 09-19-00019-CV, 2020 WL 5666567, at *5–6 (Tex. App.—Beaumont Sept. 24,

2020, no pet.) (mem. op.) (“Marteny I”). We recited the facts in Marteny I and have

included pertinent facts here from that opinion. See id. at *1–3.

Following the Deepwater Horizon oil spill on April 20, 2010, the United

States Department of the Interior placed a moratorium on offshore drilling. See id.

at *1. After the oil spill and the imposition of the moratorium, Marteny, a merchant

mariner, lost his job and struggled to find another due to reduced demand. See id.

2
Before hiring BCA, Marteny submitted his economic loss claim through the Gulf

Coast Claims Facility (“GCCF”). 1 See id.

Then, on June 10, 2011, Marteny entered into an agreement to have BCA

represent him in pursuing his claims. On September 7, 2011, the GCCF denied

Marteny’s initial claim and advised this was because it “determined that you did not

demonstrate that you lost profits or income as a direct result of the Oil Spill.” The

GCCF also advised that he could appeal and retained the right to file a multidistrict

litigation (“MDL”) claim in court. In a letter dated December 5, 2011, a BCA

attorney apprised Marteny of the GCCF’s initial denial and informed Marteny that

BCA “inten[ded] to dispute” it. On January 20, 2012, BCA sent another demand to

the GCCF on Marteny’s behalf under the Oil Pollution Act of 1990 (“OPA”), which

was also rejected on June 13, 2012. Marteny asserts BCA never disclosed this

rejection to him.

On June 25, 2012, Marteny terminated BCA due to alleged difficulties

communicating with BCA. Marteny changed his mind, and on September 11, 2012,

he sent an email asking BCA to “disregard the termination letter and continue to

represent [him].” Subsequently, on November 20, 2012, BCA staff asked Marteny

via email to confirm his desire to cancel the termination and have BCA continue to

1The GCCF was the official claims handling program for individuals filing

claims for damages related to the Deepwater Horizon Oil spill.
3
represent him under the original contract, which Marteny did the same day. On

January 15, 2013, BCA filed a “Deepwater Horizon Oil Pollution Act Presentment

Claim Form” on Marteny’s behalf indicating that Marteny suffered $100,000 in loss

of income, profits and/or earning capacity and that BCA represented him.

On April 19, 2013, BCA filed two petitions in state court on behalf of over

4,000 BP clients but did not name Marteny as a plaintiff. These petitions included

plaintiffs who were “[o]il service, exploration and/or drilling service companies,

workers, providers, or suppliers ... affected by the Moratorium issued by the United

States Department of the Interior[.]”

In November 2015, Marteny claimed he retained another lawyer to determine

the status of his BP claim. He asserted the GCCF claim had been “abandoned” and

that no timely lawsuit was filed on his behalf against BP. In April 2017, Marteny

sued BCA for negligence, among other things. The only cause of action at issue in

this appeal is Marteny’s legal malpractice claim for negligence. See id. at *8

(explaining that this Court affirmed the trial court’s dismissal of Marteny’s breach

of fiduciary duty and Texas Deceptive Trade Practices Act (“TDTPA”) claims,

because Marteny did not challenge them in the first appeal).

BCA filed its first traditional motion for summary judgment, which we

addressed in Marteny I. See id. at *2. BCA’s first motion challenged the duty and

damages elements of Marteny’s cause of action. See id. In that motion, BCA argued:

4
(1) it did not represent Marteny after June 25, 2012, so it owed him no duty; and (2)

since a federal court ruled that BP was not responsible under the OPA for economic

losses resulting from the moratoria, Marteny had no damages. 2 See id. In Marteny I,

we reversed and remanded concluding, in part, that “BCA failed to conclusively

negate the existence of an attorney-client relationship and consequently, the duty

element.” Id. at *5. We likewise determined that BCA failed to negate the damages

element, and “a genuine issue of material fact remain[ed] as to Marteny’s damages

and settlement value of the case.” See id. at *6 (citations omitted).

Critical to our analysis in Marteny I was that “BCA did not submit any

affidavits or expert testimony in support of its motion.” Id. at *2. We explained that

“BCA failed to provide any expert testimony on the damages element, by affidavit

or otherwise.” Id. In Marteny I BCA’s only summary judgment evidence was: “(a)

Marteny’s termination letter; (b) Marteny’s written discovery responses; (c)

Marteny’s original petition and request for disclosure; (d) MDL notice of filing of

the economic and property damages settlement agreement; and (e) order and reasons

“‘[As to the OPA Test Cases/Moratorium Claims].’” Id.

Marteny I also addressed a written discovery dispute and Marteny’s motion

to compel certain settlement information for “similar clients.” See id. We ruled on

2There were multiple drilling moratoria imposed, but BCA references a single

moratorium. See Marteny v. Coon, No. 09-19-00019-CV, 2020 WL 5666567, at *2
n.4 (Tex. App.—Beaumont Sept. 24, 2020, no pet.) (mem. op.).
5
the discovery dispute that “Considering the deficient privilege log and BCA’s failure

to make a prima facie case for the applicability of the asserted privileges, we

determine the trial court abused its discretion by failing to rule on Marteny’s motion

to compel.” See id. at *8. On remand, we instructed the “trial court to order the

production of an adequate privilege log and development of affidavit or other

testimony, so that the applicability of the asserted privileges can be properly assessed

by the trial court.” See id.

After remand, Marteny petitioned for mandamus in this Court, which we

denied. See In re Marteny, No. 09-21-00385-CV, 2022 WL 318448, at *1–2 (Tex.

App.—Beaumont Feb. 3, 2022, orig. proceeding) (mem. op.) (“Marteny II”). The

events leading to that mandamus proceeding involved BCA’s amended privilege log

that identified clients by an identification number and noted the general occupation

type and whether the client was a merchant marine, but redacted claim submissions,

settlement demand amounts, final settlement amounts, and personal identifying

information for each client. See id. The trial court reviewed an unredacted privilege

log in camera and an affidavit quoting the language from the MDL court’s

confidentiality order relating to the settlements about which Marteny sought to

compel discovery. See id. The trial court then denied Marteny’s motion to compel

without elaboration. See id. In the mandamus proceeding, Marteny argued the trial

court abused its discretion by denying his motion to compel written discovery of

6
settlements obtained in the BP Deepwater Horizon litigation by BCA’s other clients

in response to his second set of requests for production. See id.

BCA repeatedly complained to the trial court that Marteny’s definition of

“similarly situated clients” was too vague to discern which of its clients were

“similar[ly] situated.” See id. at *3. In his second set of requests for production,

Marteny defined the term as

those clients or plaintiffs [BCA] represented in claims with the GCCF,
the Settlement Program, any other settlement or claim program relating
to the spill, or in litigation against BP arising out of the Deepwater
Horizon Oil Spill that occurred on or about April 20, 2010 and who
were oil service, exploration or marine workers, providers, or suppliers
that, like Marteny, claimed to suffer economic losses as a result of the
oil spill or the moratorium issued by the United States Department of
the Interior following the spill.

See id. We concluded the trial court did not abuse its discretion by denying

Marteny’s motion to compel given a facially overbroad discovery request. See id.

We reasoned that the requests “required BCA to produce information about oil rig

workers and persons whose occupations were not at all similar to Marteny’s

occupation as a small boat operator.” Id. We also explained that Marteny’s claims

were “solely for moratorium damages; however, the discovery requests required

BCA to produce information not only for moratorium damage claims, but also for

oil spill damage claims.” Id.

7
B. Continued Discovery Issues After Mandamus

On May 24, 2022, following our denial of his petition for writ of mandamus

and opinion in Marteny II, Marteny propounded a “Third Set of Written Discovery

to Defendants,” which included “Plaintiff’s Second Request for Admission,”

“Plaintiff’s Third Set of Interrogatories to Coon & Associates,” and “Plaintiff’s

Third Request for Production to Defendants.” Marteny claims to have narrowed the

requests to address this Court’s concerns about the requests’ overbreadth but the

requests were identical to Marteny’s previous set of discovery. Specifically, Marteny

changes the definition of “similar clients” to

clients or plaintiffs [BCA] represented in claims with the GCCF, the
Settlement Program, or in litigation against BP arising out of the
Deepwater Horizon Oil Spill that occurred on or about April 20, 2010
and whose occupations were similar to Marteny and claimed to suffer
economic losses as a result of the moratorium issued by the United
States Department of the Interior following the oil spill.

BCA failed to respond to this discovery, object, or assert any claims of privilege

within thirty days.

In November 2022, Marteny emailed BCA to inquire about the status of these

discovery responses. Marteny then filed his “Motion to Compel Third Set of Written

Discovery and Motion to Deem Admissions” arguing that BCA waived any

objections by failing to timely respond to the discovery and that the admissions were

deemed admitted. Accordingly, Marteny argues that BCA admitted that it filed

claims on behalf of similar clients and obtained settlements, and the trial court should
8
compel BCA to respond to the discovery and produce the settlement information.

Marteny set his Motion to Compel for an oral hearing less than two weeks later.

BCA responded to the Third Set of Written Discovery the day before the

hearing with answers and objections. In its Response, BCA argues the requests were

“identical” to prior requests, and Plaintiffs only “made a small change to the

definitions, but it does not change any answer to previous discovery requests.” BCA

also argues that Elizondo v. Krist, 415 S.W.3d 259 (Tex. 2013), does not apply, but

even if it applies, it does not allow for production of privileged settlement

information or information protected by a Court-ordered confidentiality provision,

positions it consistently took in the trial court. Among other things, BCA contends

the admissions should not be deemed because there was good cause and no undue

prejudice, specifically the delay was unintentional, and there is no trial setting. BCA

claims they are “gotcha admissions” sent with the hope they would not be seen, and

they are “identical” to past admissions, and the responses have not changed. BCA

claims the late responses are the result of mistake or accident rather than intentional

or the result of conscious indifference but did not support its Response with

affidavits. The day of the hearing, BCA filed “Defendant’s Motion to St[r]ike

Plaintiff’s Motion to Compel Third Set of Written Discovery and Motion to Deem

Admissions[,]” arguing the requests were “redundant to previous discovery[.]”

9
At the hearing, BCA offered to have Eric Newell, a BCA attorney, testify

about BCA’s lack of conscious indifference, since their Response did not include an

affidavit to support it. Rather than have Newell testify, the trial court instructed

Newell to submit an affidavit after the hearing, and the trial court allowed Marteny

an extra day to respond to any affidavit submitted. The same day, but after the

hearing, Newell, submitted an affidavit regarding the late discovery responses. The

next day, Marteny filed “Plaintiff’s Reply in Support of Motion to Compel Third Set

of Written Discovery, Objection to the November 16, 2022 Affidavit of Eric Newell,

and Response to Motion to Strike.” In his Reply, Marteny objects to Newell’s

affidavit and complains that it is conclusory and was insufficient to establish

confidentiality. He also argues BCA waived the objections and claims of privilege

under Rule 193.2(e), among other things, and inadvertence of counsel is not “good

cause.” Marteny asserts that even if BCA did not waive its objections, the trial court

should grant the Motion to Compel since the information sought is necessary to

establish settlement value. Marteny claims BCA could cure any confidentiality

concerns with a protective order.

On November 22, 2022, BCA submitted the “Amended Affidavit of Eric W.

Newell” in support of its claims that the failure to timely respond to discovery was

not based on conscious indifference. The affidavit outlines in greater detail the

circumstances and misunderstandings that led to BCA not timely answering the

10
discovery. Newell explains that all settling BCA oil spill clients had contractual

provisions that required confidentiality, and everything “disclosed to BP or the

settlement claims administrators in the settlement process of that MDL is privileged

and confidential, and the settlements themselves were sealed by Court Order.”

Finally, Newell states that Marteny “was the only [BCA] Oil Spill client who [pled]

that his damages from the BP Deepwater Horizon Oil Spill [were] solely moratorium

damages[,]” and he “answered discovery in this matter indicating [that he pled] that

his damages from the BP Deepwater Horizon Oil Spill were primarily moratorium

damages.” Marteny objects to Newell’s amended affidavit for several reasons.

The trial court did not immediately rule, but on February 8, 2023, it signed an

Order denying Marteny’s Motion to Compel Third Set of Written Discovery.

C. BCA’s Second Motion for Summary Judgment

On January 3, 2023, BCA filed its second traditional Motion for Summary

Judgment challenging the damages and duty elements of Marteny’s legal

malpractice claim. In its Motion for Summary Judgment, BCA explains that in April

2012, the Plaintiff Steering Committee formed the Deepwater Horizon Economic

and Property Damages Settlement (“Class Settlement”). BCA explains that the

Deepwater Horizon Economic and Property Damages Claim Center (“DHECC”)

was created to administer claims and began accepting claims in June 2012. BCA

explains in its Motion that DHECC’s creation dissolved the GCCF.

11
BCA notes that in March 2016, once the DHECC began winding down, “the

MDL court issued a mandate to file cases individually[,]” which would be decided

by “a committee of neutrals.” These neutrals settled “thousands of BCA claims and

tens of thousands of other claims.” BCA also describes MDL 2179’s history and

formation, explaining what MDL court category Marteny’s claims were in.

BCA outlines the steps it took after satisfying the presentment requirements

on behalf of its clients, which included “mass joinder filings” in Texas, and the Texas

state court actions were ultimately transferred to MDL 2179.

BCA contends the Class Settlement excluded moratoria losses, explaining that

the Class Settlement was supposed to allow people with moratorium
claims to pursue non-moratorium losses with the DHECC and reserve
moratorium losses for potential recovery outside the settlement.
Instead, claimants who had any portion of their claim that was
moratorium became caught in the Moratoria hold w[h]ere BP would not
agree to pay any of their damages, even those with portions of their
claim [] not associated with the Moratorium.

In the MDL, a small group of moratoria test cases were worked up, which BP moved

to dismiss and argued that the governmental moratorium on drilling was an

intervening or superseding cause.

BCA argues that if damages were not recoverable by law, Marteny could not

prove an amount of damages recoverable and collectible. More specifically, BCA

contends in its Motion for Summary Judgment that (1) claims solely for moratorium

losses were excluded from the Class Settlement, (2) Marteny was not entitled to

12
recover for his moratorium losses in the tort system because the MDL court ruled

that BP was not responsible under the OPA for economic loss that resulted from the

moratorium, and (3) claims related to deepwater drilling were ineligible for

compensation under the GCCF.

In its Motion for Summary Judgment, BCA argues that “the only recourse left

for moratorium claims would lie in the tort system.” The MDL court ruled that as a

responsible party under the OPA, BP was not liable for a claimant’s economic losses

resulting from the moratorium, and “the Court determined that the imposition of the

moratoria by the US Government was an intervening act that ended any causation

chain otherwise extended by OPA.” BCA asserts that

pure moratorium claims su[]ch as Marteny[’]s were not compensable
by any program set up by BP, including both the GCCF and the
DHECC. Moreover, it is clear that after significant work up and briefing
purely moratorium cases were not compensable in the tort system.
Therefore Mr. Marteny was not entitled to any monitory [sic] award for
his losses in the . . . case. Therefore, he has no way to prove damages
in this matter.

BCA attempts to distinguish Elizondo, noting (1) that case involved the presumption

of some recovery in the underlying case, which was not present here, and (2) there,

defendant sought to avoid a trial by making settlement offers in every case. In sum,

BCA contends in its Motion for Summary Judgment that Marteny did not have a

viable claim for moratorium related damages under the OPA, thus he could not have

13
suffered damages because of BCA’s alleged negligence, and summary judgment was

proper on the damages element.

BCA also challenges the duty element of Marteny’s legal malpractice claim

in its Motion for Summary Judgment. BCA argues that any legal injury occurred

after it no longer represented Plaintiff, thus there was no “legal injury” to form the

basis of a claim. BCA states that the attorney-client relationship between the parties

ended on June 25, 2012, at Marteny’s request. BCA asserts it cannot be responsible

for the legal injury, if any, because it no longer owed Marteny a legal duty. After

terminating the relationship, Marteny reached out again to BCA for representation,

and BCA asserts it “rebuffed” this attempt.

In addition to Brent Coon’s affidavit, BCA supported its motion with the

following evidence: A) “Final Report by the Claims Administrator of the Deepwater

Horizon Economic and Property Damages Settlement Agreement on the Status of

Claims Review” dated July 31, 2018; B) MDL 2179 “Pretrial Order No. 11 [Case

Management Order No. 1];” C) “Findings of Fact and Conclusions of Law Phase

One Trial;” D) “Order & Reasons [As to the Motions to Dismiss the Pure Stigma,

BP Dealer, and Recreation Claims];” E) “Order & Reasons [As to the Cross Motions

for Summary Judgment regarding the claims by the Mexican States];” F) “Brief in

Support of Transocean’s Rule 12(b)(6) Motion to Dismiss the First Amended B1

Master Claim in Limitation and the First Amended B1 Master Complaint” (OPA

14
displaces general maritime law, and general maritime law preempts state common

law; argues all moratorium claims must be dismissed given the lack of causation of

the damages by the spill and that the moratorium was a superseding unforeseeable

cause, and Plaintiffs may not recover as a matter of law under OPA, or any other

laws, state or federal); G) “Omnibus Memorandum of Law in Opposition to

Defendants’ Motions to Dismiss Bundle B1 First Amended Master Complaint,

Cross-Claim, and Third-Party Complaint;” H) “Reply Brief in Support of

Transocean’s Rule 12(b)(6) Motion to Dismiss the First Amended B1 Master Claim

in Limitation and the First Amended B1 Master Complaint” (arguing that

moratorium damages were not caused by the discharge of oil as required by the OPA

but caused by the moratorium); I) “BP Defendants’ Reply Memorandum in Support

of BP Defendants’ Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(1) and Fed.

R. Civ. P. 12(b)(6) the First Amended Master Complaint, Cross-Claim, and Third-

Party Complaint for Private Economic Losses in Accordance with PTO No. 11

[CMO No.1] Section III.B1 [“B1 Bundle”] and in Response to State of Louisiana’s

Memorandum of Law in Interest in and Opposition to Defendants’ Pending Motions

to Dismiss;” J) “Order and Reasons [As to Motions to Dismiss the B1 Master

Complaint]” granting and denying in part; K) “Deepwater Horizon Economic and

Property Damages Settlement Agreement as Amended on May 2, 2012;” K1)

Exhibit 16 to Settlement Agreement (showing that no class member shall recover

15
for moratoria losses; broadly defining moratorium losses and excluding them from

the class settlement); L) “Order [Regarding OPA Test Cases];” M) “Memorandum

in Support of Motion to Strike Affirmative Defenses and Motion in Limine

Regarding Potential Third-Party Fault, Including Application of any Alleged

‘Superseding’ Cause Defense Premised on Governmental Action or Inaction

Following the Spill;” N) “BPXP’s Memorandum in Opposition to the OPA Test

Case Plaintiffs’ Motion to Strike Affirmative Defenses and Motion in Limine

Regarding Potential Third-Party Fault;” O) “Class Counsel’s Reply Brief in Further

Support of Motion to Strike Affirmative Defenses and Motion in Limine regarding

Potential Third-Party Fault and Superseding Cause Defense;” P) “Order [Regarding

the OPA Test Case Plaintiffs’ Motion to Strike Affirmative Defenses and Motion in

Limine Regarding Potential Third-Party Fault, Including Application of Any

Alleged ‘Superseding’ Cause Defense Premised on Governmental Action or

Inaction Following the Spill (Rec. Doc. 13108)];” Q) “Order [OPA Test Cases –

Conference on Friday, November 13, 2015];” R) “Memorandum in Support of

BPXP’s Motion to Dismiss Moratoria/Permitoria Claims;” S) “BPXP’s Motion to

Dismiss Moratoria/Permitoria Claims;” T) “Opposition to BP’s Renewed Motion to

Dismiss the So-Called ‘Moratoria’ and ‘Permitoria’ Claims;” U) “Memorandum in

Opposition to Plaintiffs’ Renewed Motion to Strike Affirmative Defenses and

Motion in Limine Third-Party Fault;” V) “Reply Brief in Support of Renewed

16
Motion to Strike;” W) “Reply Memorandum in Support of BPXP’s Motion to

Dismiss Moratoria/Permitoria Claims (Combined with Response to Statement of the

U.S. on the OPA Test Case Pleadings-Stage Cross Motions);” X) “OPA Test Cases

– Statement of the United States Relating to: (1) Plaintiffs’ Motion to Strike

Affirmative Defenses; and (2) BP’s Motion to Dismiss Moratoria Claims;” Y)

“Order & Reasons [As to the OPA Test Cases/Moratorium Claims]” (determining a

responsible party under the OPA is not responsible for claimant’s economic loss

resulting from the drilling moratorium and granted BP’s Motion to Dismiss); Z)

“Notice of Appeal;” AA) “Notice of Voluntary Dismissal with Prejudice” filed by

Plaintiff Construction Solutions, Inc.; BB) “Order [Regarding Claims in the

Economic Settlement that are Subject to Moratoria Hold];” CC) “Order [As to the

Remaining Cases in the B1 Pleading Bundle Following PTO 60, PTO 64, and the

Moratorium Hold Opt-Out Order];” DD) “Order [Regarding Claims in the Economic

Settlement that Are Subject to Moratoria Hold];” EE) “Order & Reasons” filed

8/5/21; FF) “Order & Reasons” filed 8/13/21; GG) “Order & Reasons” filed 8/19/21;

HH) “Judgment;” II) “Order” filed 8/26/21; JJ) “Order” filed 9/1/21; KK) “Revised

Order & Reasons” filed 9/7/21; LL) “Plaintiff’s Objections and Answers to

Defendant [BCA’s] First Set of Interrogatories;” MM) “Plaintiff’s Original Petition

and Request for Disclosure;” and NN) Marteny’s Letter Terminating BCA dated

June 25, 2012.

17
BCA set its Motion for Summary Judgment for oral hearing to be heard on

February 1, 2023.

D. Marteny’s Response to BCA’s Second Motion for Summary Judgment

On January 25, 2023, Marteny filed “Plaintiff’s Objections and Response to

Defendants’ Motion for Summary Judgment and Alternative Motion to Continue

Summary Judgment Hearing.” Marteny responds that BCA’s new Motion for

Summary Judgment should be denied for four reasons: (1) BCA failed to negate

duty, because after he terminated the firm on June 25, 2012, the parties reinstated

the attorney-client relationship on November 20, 2012; (2) BCA’s “bare assertions”

that he would not have been compensated for his economic losses suffered even if

they had acted competently do not constitute summary judgment proof; (3) although

BCA attempts to negate damages through Coon’s affidavit, it should be stricken for

several reasons, and without it, no evidence negates damages; and (4) even if Coon’s

affidavit is not stricken, BCA’s own evidence demonstrates that other claimants in

the BP litigation who alleged economic losses due to the moratorium recovered

settlements from BP, thus “there are genuine issues of material fact as to whether

Plaintiff would have also recovered a settlement but for [BCA’s] negligence.”

Marteny disputes BCA’s attempt to distinguish Elizondo and asserts that the

Elizondo analysis applies to this case where 1) Marteny alleges that but for BCA’s

negligence, he would have recovered a settlement, and 2) BP decided “to settle

18
thousands of moratoria claims even if they were not entitled to compensation.”

Marteny objects to Coon’s affidavit for three reasons: (1) that it is incompetent and

inadmissible as a matter of law under the witness-advocate rule; (2) Coon attempts

to provide expert opinions without adequate disclosures; and (3) Coon’s testimony

is conclusory. Alternatively, Marteny moved for a continuance to “allow the

necessary discovery to be obtained[,]” and attached counsel’s unsigned declaration.

Marteny supported his Response with evidence, including: “Declaration of

Nicholas Marteny”; “Contract & Power of Attorney” between BCA and Marteny

dated June 10, 2011; “Denial Letter on Interim Payment/Final Payment Claim” from

GCCF to BCA dated September 7, 2011 denying Marteny’s claim; Letter from BCA

to Marteny dated December 5, 2011 advising that GCCF denied his initial claim

because his loss was unrelated to the Oil Spill and that BCA intended to dispute this

and asking for authority to negotiate a settlement on his behalf; Letter from BCA to

GCCF administrator Feinberg dated January 20, 2012 regarding “OPA Claim

Presentment Demand” and making a formal demand under the OPA for damages

related to the oil spill; September 11, 2012 email exchange withdrawing Marteny’s

termination letter and requesting that BCA continue to represent him; November 20,

2012 email from BCA to Marteny asking him to confirm that he wished to cancel

the termination request and have BCA continue to represent him under their original

contract; “Deepwater Horizon Oil Pollution Act Presentment Claim Form” dated

19
January 15, 2013 listing BCA as attorneys; “Plaintiffs’ Original Petition” filed on

April 19, 2013, in Jefferson County District Court naming other BCA clients but

excluding Marteny; “Plaintiffs’ Original Petition” filed on April 19, 2013, in Harris

County District Court naming other BCA clients but excluding Marteny; Transcript

from May 1, 2018 “Hearing on Defendants’ [First] Motion for Summary Judgment;”

Transcript from September 18, 2018 “Hearing on Plaintiff’s Motion to Compel

Written Discovery;” “Plaintiff’s Third Set of Written Discovery to Defendants”

propounded May 24, 2022 after Marteny II opinion; MDL “Pretrial Order No. 60

[As to All Remaining Claims in Pleading Bundle B1; Requiring B1 Plaintiffs to File

a Complaint and/or Sworn Statement];” “Defendants’ Objections & Response to

Plaintiff[’]s First Request for Disclosure;” “Defendants’ First Amended Objections

& Response to Plaintiff[’]s First Request for Disclosure;” and unsigned “Declaration

of David Eric Kassab.”

At the summary judgment hearing, in addition to the parties arguing the

summary judgment motion, Marteny re-urged his objections to Coon’s affidavit.

Marteny also addressed his requested continuance and discovery he needed on

similarly situated clients to show damages.

On February 2, 2023, Plaintiff’s counsel sent a letter to the trial court

explaining that he inadvertently filed an unsigned declaration, requesting leave to

correct the defect, and filing a signed copy of the declaration. On February 6, 2023,

20
BCA filed its “Objections to Plaintiff’s Response to Defendants’ Motion for

Summary Judgment and Alternative Motion to Continue” objecting that counsel’s

declaration was unsigned and arguing it was filed late.

E. Trial Court’s Rulings

On February 8, 2023, the trial court denied Marteny’s Motion to Compel. The

next day, the trial court signed an order granting BCA’s Motion for Summary

Judgment without specifying the reason. Marteny then filed “Plaintiff’s Motion to

Rule and for Clarification” complaining that the trial court’s order did not contain a

ruling on Plaintiff’s objections to Defendants’ summary judgment evidence.

Marteny also contends the trial court’s order did not state whether it considered

Kassab’s declaration. Marteny requests that the trial court enter an order ruling on

his objections. The trial court later signed an Order denying Marteny’s Motion to

Rule and for Clarification. Marteny timely appealed.

II. ISSUE ONE: LAW-OF-THE-CASE DOCTRINE

In his first issue, Marteny argues the law-of-the-case doctrine precludes

summary judgment, because the facts and record are substantially the same as in the

first summary judgment proceeding. BCA responds that the law-of-the-case doctrine

does not apply since the record includes additional evidence.

21
A. Standard of Review and Applicable Law

“The ‘law of the case’ doctrine provides that a decision of a court of last resort

on a question of law will govern a case throughout its subsequent stages.” City of

Houston v. Jackson, 192 S.W.3d 764, 769 (Tex. 2006) (citing Hudson v. Wakefield,

711 S.W.2d 628, 630 (Tex. 1986)). An intermediate appellate court’s conclusion

does not bar that court’s reconsideration of the initial conclusion in a subsequent

appeal. See id. “[T]he decision to revisit the conclusion is left to the discretion of the

court under the particular circumstances of each case.” Id. (citations omitted); see

Briscoe v. Goodmark Corp., 102 S.W.3d 714, 716 (Tex. 2003). Said another way,

the “application of the law of the case doctrine is discretionary[.]” Briscoe, 102

S.W.3d at 717; Woods v. VanDevender, 296 S.W.3d 275, 279 (Tex. App.—

Beaumont 2009, pet. denied). The doctrine “will not apply if ‘the later stage of

litigation presents different parties, different issues, or more fully developed facts.’”

City of Mansfield v. Savering, No. 02-19-00174-CV, 2020 WL 4006674, at *8 (Tex.

App.—Fort Worth July 16, 2020, pet. denied) (mem. op.) (citing Jackson, 192

S.W.3d at 769); Rodgers v. Comm’n on Law. Discipline, 151 S.W.3d 602, 609 (Tex.

App.—Fort Worth 2004, pet. denied)); see also Hartman v. Walker, No. 09-21-

00084-CV, 2023 WL 5282443, at *5 (Tex. App.—Beaumont Aug. 17, 2023, no pet.)

(mem. op.) (noting that because prior appeal and current appeal “[were] based on

22
different evidentiary records, we disagree . . . that the law-of-the-case doctrine

applies to this appeal[]”).

B. Analysis

Although the case is once again before us on appeal of a traditional summary

judgment that challenged the elements of duty and damages of Marteny’s legal

malpractice claim, the evidentiary record before us has expanded. The summary

judgment record before us in Marteny I included no expert testimony or affidavits

from BCA. See Marteny I, 2020 WL 5666567, at *2. Additionally, the summary

judgment record in this proceeding contains extensive briefing filed in the MDL

court regarding the moratorium and multiple MDL Orders, while the record in

Marteny I contained only: (a) Marteny’s letter terminating BCA; (b) Marteny’s

written discovery responses; (c) Marteny’s original petition and request for

disclosure; (d) MDL notice of filing of the economic and property damages

settlement agreement; and (e) order and reasons “[As to the OPA Test

Cases/Moratorium Claims].” See id.

Based on the expanded summary judgment evidentiary record before us, we

conclude the law-of-the-case doctrine does not apply to preclude us from

considering the propriety of the trial court’s summary judgment for BCA. See

Jackson, 192 S.W.3d at 769; Hartman, 2023 WL 5282443, at *5; Savering, 2020

WL 4006674, at *9; Rodgers, 151 S.W.3d at 609. We overrule issue one.

23
III. ISSUE TWO: SUMMARY JUDGMENT AND EVIDENCE

In issue two, Marteny complains that the trial court erred by granting

traditional summary judgment based on lack of duty and damages. In subsidiary

points, Marteny argues that to the extent it impacted the summary judgment motion,

the trial court abused its discretion by: 1) declining to rule on his objections to BCA’s

summary judgment evidence; and 2) failing to grant leave to correct a form defect

in a summary declaration.

A. Law and Standard of Review

We review a trial court’s grant of a traditional summary judgment de

novo. Zive v. Sandberg, 644 S.W.3d 169, 173 (Tex. 2022) (citation omitted). The

moving party has the burden to show with competent summary judgment evidence

that no genuine issue of material fact exists, and it is entitled to summary judgment

as a matter of law. See Tex. R. Civ. P. 166a(c) (setting forth standard for traditional

summary judgment); Zive, 644 S.W.3d at 173. On appeal, we review the summary

judgment record “in the light most favorable to the nonmovant, indulging every

reasonable inference and resolving any doubts against the motion.” City of Keller v.

Wilson, 168 S.W.3d 802, 824 (Tex. 2005); see also Zive, 644 S.W.3d at 173 (citation

omitted).

Summary judgment for a defendant is proper only if defendant negates at least

one element of each of plaintiff’s theories of recovery. Sci. Spectrum, Inc. v.

24
Martinez, 941 S.W.2d 910, 911 (Tex. 1997); see also Henkel v. Norman, 441 S.W.3d

249, 251 (Tex. 2014) (citation omitted) (“A traditional summary judgment motion

is properly granted where a defendant conclusively negates at least one essential

element of a cause of action.”). With a traditional motion for summary judgment,

only if the movant meets their burden of conclusively negating an essential element

of a cause of action does the burden shift to the nonmovant to present evidence

raising a genuine issue of material fact. See Energen Res. Corp. v. Wallace, 642

S.W.3d 502, 514 (Tex. 2022) (citing Lujan v. Navistar, Inc., 555 S.W.3d 79, 84 (Tex.

2018)) (other citations omitted); see also Tex. R. Civ. P. 166a(c). When a trial court

grants summary judgment without specifying the basis, we affirm if any of the

movant’s theories has merit. See Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473

(Tex. 1995).

This case involves Marteny’s legal malpractice claim against BCA. A client

asserting a legal malpractice claim must prove: (1) the lawyer owed him a duty; (2)

the lawyer breached the duty; and (3) that breach proximately caused the client’s

damages. See USA Lending Grp., Inc. v. Winstead PC, 669 S.W.3d 195, 200 (Tex.

2023); Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017). As we

explained in Marteny I, when a legal malpractice suit arises from prior litigation, a

client must show he would have obtained a more favorable result in the underlying

litigation if the attorney exercised the appropriate standard of care. See Elizondo,

25
415 S.W.3d at 263; see also Rogers v. Zanetti, 518 S.W.3d 394, 401 (Tex. 2017).

This is the suit-within-a-suit analysis and is the traditional way plaintiffs prove legal

malpractice claims. See Rogers, 518 S.W.3d at 401 (citation omitted); see also

Starwood Mgmt., 530 S.W.3d at 678. “Where the injury claimed does not depend on

the merits of the underlying action, however, the case-within-a-case methodology

does not apply.” Rogers, 518 S.W.3d at 401 (citation omitted). When a plaintiff

alleges negligent settlement in a legal malpractice case, the “suit within a suit”

analysis is not required. See Elizondo, 415 S.W.3d at 270. Rather, in such cases, an

alternative method that may be available to prove attorney-malpractice damages

would be analyzing settlements made under comparable circumstances. Id.

The Texas Supreme Court has explained,

While this alternative method is sometimes available, we conclude that
such an analysis requires expert testimony. We have in the past noted
that proof of attorney malpractice requires expert testimony, because
establishing such negligence requires knowledge beyond that of most
laypersons. The same is true of proof of damages under a theory that a
settlement was inadequate.

Id. at 270.

To the extent it impacted the trial court granting BCA’s summary judgment,

in part, Marteny contends the trial court erred by declining to rule on his objection

to BCA’s summary judgment evidence, particularly Coon’s affidavit. Marteny also

argues the trial court erred by declining to grant leave to correct what he

characterizes as “a form defect” in an affidavit.
26
A trial court’s decision on whether to admit or exclude summary judgment

evidence is reviewed for an abuse of discretion. See Fort Brown Villas III Condo.

Ass’n, Inc. v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009) (citation omitted)

(discussing striking expert’s affidavit who was not timely designated in context of

no-evidence motion for summary judgment); Antoine v. Am. Serv. Ins., No. 09-14-

00235-CV, 2016 WL 422524, at *2 (Tex. App.—Beaumont Feb. 4, 2016, no pet.)

(mem. op.) (citation omitted) (stating that “[w]e review a trial court’s evidentiary

rulings using an abuse-of-discretion standard[]” in the context of a summary

judgment). A trial court abuses its discretion if it acts arbitrarily or unreasonably or

if it acts without reference to any guiding rules and principles. See Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Antoine, 2016

WL 422524, at *2.

“The same evidentiary standards that apply in trials also control the

admissibility of evidence in summary-judgment proceedings,” as do the rules of

error preservation. FieldTurf USA, Inc. v. Pleasant Grove Ind. Sch. Dist., 642

S.W.3d 829, 837 (Tex. 2022) (citation omitted); Seim v. Allstate Tex. Lloyds, 551

S.W.3d 161, 163–64 (Tex. 2018) (citations omitted). A party complaining on appeal

about form defects of summary judgment evidence must have timely objected and

secured a ruling on the objection from the trial court or objected to the trial court’s

refusal to rule. See FieldTurf USA, 642 S.W.3d at 837 (citations omitted); Seim, 551

27
S.W.3d at 166; see also Tex. R. Civ. P. 33.1(a) (error preservation requirements),

166a(f) (providing that a form defect in summary judgment evidence is not “grounds

for reversal unless specifically pointed out by objection by an opposing party with

opportunity, but refusal, to amend”). For defects in form, absent both an objection

and a ruling, the complained-of evidence remains part of the summary judgment

record and should be considered by the appellate court when reviewing the trial

court’s judgment. See FieldTurf USA, 642 S.W.3d at 837; Seim, 551 S.W.3d at 166;

see also Tex. R. App. P. 33.1(a). In contrast, when an affidavit contains substantive

defects, such as being conclusory, those substantive defects can be complained of

for the first time on appeal. See Seim, 551 S.W.3d at 166.

B. Analysis

With these principles in mind, we first turn to Marteny’s objections to BCA’s

summary-judgment evidence. In the trial court and on appeal, Marteny complains

that Coon’s affidavit should be struck because: (1) BCA failed to properly disclose

Coon’s opinions as an expert; and (2) Coon’s affidavit is conclusory.

The trial court did not expressly rule on Marteny’s written objections to

Coon’s affidavit nor is it clear from the record that it implicitly ruled. Marteny

objected to the trial court’s refusal to rule on his objections, thus preserving for

review his complaint about expert disclosure. See Tex. R. App. P. 33.1(a)(2)(B).

Marteny’s complaint that Coon’s affidavit is conclusory involves a substantive

28
defect that can be raised for the first time on appeal. See Seim, 551 S.W.3d at 166;

see also Yazdchi v. Unauthorized Prac. of Law Comm., No. 01-09-00065-CV, 2010

WL 2650563, at *3 (Tex. App.—Houston [1st Dist.] July 1, 2010, no pet.) (mem.

op.) (explaining that no ruling is required on a substantive defect that an affidavit is

conclusory to raise the objection on appeal).

Marteny relies on Texas Rule of Civil Procedure Rule 193.6 to support his

argument that Coon was not timely designated, and his affidavit should be stricken.

See Tex. R. Civ. P. 193.6(a). That rule provides,

A party who fails to make, amend, or supplement a discovery response,
including a required disclosure, in a timely manner may not introduce
in evidence the material or information that was not timely disclosed,
or offer the testimony of a witness (other than a named party) who was
not timely identified[.]

Id. The record before us reveals that in May 2018, BCA designated Coon, a named

party, as both a fact and expert witness stating that he “[r]epresented thousands of

clients affected by the BP Oil Spill.” Marteny contends this designation was

untimely and insufficient since it did not include the substance of Coon’s opinions.

Even so, Marteny sued Coon for legal malpractice, making Coon a “named party,”

which Rule 193.6(a) expressly excludes from its application. See id. On this record,

the trial court did not act arbitrarily or unreasonably to the extent it refused to exclude

Coon’s affidavit because he was not timely disclosed as an expert witness, thus it

29
did not abuse its discretion. See Gillenwater, 285 S.W.3d at 881; Downer, 701

S.W.2d at 241–42; Antoine, 2016 WL 422524, at *2.

We now turn to Marteny’s complaint that Coon’s affidavit was conclusory.

Coon’s affidavit outlines his experience in toxic tort litigation and specifically in the

“BP oil spill litigation.” He claims that he represented thousands of clients in MDL-

2179, which handled that litigation. Coon explains that Marteny’s claims “were a

direct result of the government imposed moratorium against offshore drilling after

the spill.” Coon explains that the OPA required BP to establish a claims process for

oil spill victims, which was done by creating the GCCF. He also states that under

the GCCF’s “Final Rules Governing Payment Options, Eligibility and

Substantiation Criteria, and Final Payment methodology, dated February 18, 2011,

‘Claims related to the moratorium on deepwater drilling . . . are not eligible for

compensation from the GCCF.’” Coon claims that given the nature of Marteny’s

claim, he was “ineligible for any payment.”

Coon further asserts that the GCCF’s determination “left the issue of

compensability of Moratorium Claims to the courts,” with BP and other defendants

raising this issue in the MDL court through 12(B) motions to dismiss, with

substantial briefing. This briefing is included in the summary judgment evidence and

record. Coon explains that the MDL court did not initially rule on these motions to

dismiss, rather moratoria claim compensability arose again in the context of the

30
Class Settlement. He also specifies the Class Settlement provision which expressly

excluded “Moratoria Losses.” He asserts, “Mr. Marteny’s claim being a purely

moratoria claim was excluded from the [C]lass [S]ettlement as were all other purely

moratoria claims and neither he nor any other purely moratoria claimants were

entitled to compensation.”

Coon adds that since both the GCCF and the Class Settlement specifically

excluded moratoria claims,

the only remaining recourse was pursuit of them before the MDL Court
for trial on the merits. The [MDL] Court proceeded with several
“Bellwether” Moratoria cases, and upon conclusion of the cases on
discovery, BP again moved for dis[miss]al on the grounds that the
government action in imposing a temporary ban or moratoria on drilling
activities in the Gulf of Mexico was an intervening act and not
encompassed in the liabilities imposed on the BP pursuant to the Oil
Pollution Act. The Court agreed, ruling that Moratorium were not
eligible for payment under OPA on March 10, 2016[,]

and it entered an Order granting BP’s Motion to Dismiss Moratoria/Pre-Moratoria

Claims. Coon continues, opining,

Hundreds of thousands of claims were filed against BP through the Oil
Pollution Act presentment process, the Gulf Coast Claims Facility, the
Economic and Property Class Action Settlement, and the MDL Trial
Court. Moratoria based claims were expressly denied across the board
in all of those proceedings, leaving exclusively moratoria based claims
with no legal recourse and no cause of action.

Marteny argues that Coon’s affidavit testimony is conclusory, and Coon asks the

Court to “take his word for it.” Marteny contends that Coon “fails to address the fact

31
that thousands of moratoria claims settled through the court-appointed neutral

program.”

Marteny asserts that Coon must compare Marteny’s claims to other settling

clients and explain how he was different. Although that is one acceptable method,

we disagree it is the only acceptable method to negate damages in this case. See

Starwood Mgmt., 530 S.W.3d at 680 (rejecting interpretation of Elizondo and

Burrow that would require expert affidavits to provide a factual analysis of the

comparators on which the expert relies). Elizondo v. Krist recognized that an

alternative method of establishing damages is “sometimes available” where

negligent settlement is alleged, explaining that

in a mass tort litigation involving thousands of similar claimants and
arising out of the same event, the expert measures the ‘true’ settlement
value of a particular case by persuasively comparing all the
circumstances of the case to the settlements obtained in other cases with
similar circumstances arising from the event.

See 415 S.W.3d at 263, 270. Elizondo involved an explosion at a BP plant. See id.

at 260. In discussing the availability of the above-described comparable settlement

analysis to prove damages, the Court noted that BP “made the decision to settle every

case arising from the plant explosion[,] . . . and indeed made the business decision

to settle all cases and not try any to verdict[.]” Id. at 263. Here, in the underlying

litigation, BP settled many cases, but it successfully challenged whether it had to pay

moratorium claims and the MDL court ruled it was not responsible for those claims.

32
This is significant, since unlike Elizondo where BP settled all claims, BP contested

paying any moratorium claims like Marteny’s.

Marteny also relies on Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999). In that

case, the Texas Supreme Court reversed a traditional summary judgment for

defendant attorneys, which it determined was based on conclusory affidavits. See id.

at 232. We agree that Burrow v. Arce stands for the general proposition that an

expert’s bare opinions will not settle an issue as a matter of law, and “a claim will

not stand or fall on the mere ipse dixit of a credentialed witness.” Id. at 235. Even

so, the Court clarified,

[T]he issue is whether [the expert’s] affidavit states a sufficient basis
for his opinions. [The expert] might have analyzed the Clients’ injuries
by type, or related settlement amounts to medical reports and expenses,
or compared these settlements to those of similar claims, or provided
other information showing a relationship between the plaintiffs’
circumstances and the amounts received. He did not do so. The absence
of such information did not merely make the affidavit unclear or
indirect; it deprived [the expert’s] opinions of any demonstrable basis.

Id. at 236.

Thus, another permissible way to provide “a sufficient basis” for an expert’s

opinion negating damages was to analyze the “injuries by type[.]” See id. That is

what Coon does in his affidavit in this case. He explains that Marteny had purely

moratoria claims for loss of earning capacity. He then addresses the three avenues

through which claimants received compensation: the GCCF; the Class Settlement;

and the MDL court. Coon describes how all three excluded moratorium related
33
claims, culminating in the MDL court’s determination that (1) the government

moratorium constituted an intervening cause, (2) those claims were not

compensable, and (3) granting BP’s motions to dismiss the moratorium claims in the

“Bellwether” cases. In doing so, Coon’s expert testimony explains the “how and

why” by analyzing Marteny’s injuries by type. See Starwood Mgmt., 530 S.W.3d at

679 (explaining that to avoid being conclusory, the affidavit must explain “how and

why”); Burrow, 997 S.W.2d at 236. Accordingly, Coon’s affidavit provides a

sufficient basis for his opinion and is not conclusory. See Starwood Mgmt., 530

S.W.3d at 679; Burrow, 997 S.W.2d at 236. We conclude that BCA met its

traditional summary judgment burden of negating damages with expert testimony

by showing that moratoria related claims like Marteny’s were non-compensable as

a matter of law. See Tex. R. Civ. P. 166a(c).

The burden then shifted to Marteny to present some evidence creating a

genuine issue of material fact on damages, which required expert testimony. See id.;

Wallace, 642 S.W.3d at 514; Lujan, 555 S.W.3d at 84; Elizondo, 415 S.W.3d at 270–

71. Marteny asserts that he cannot present contrary evidence without settlement

information from BCA’s other clients and Marteny points to the fact that court-

appointed neutrals settled thousands of moratoria related claims. He cites our

opinion in Marteny I for this proposition. See Marteny I, 2020 WL 5666567, at *5.

As we have already explained, in Marteny I, we did not have the benefit of any expert

34
testimony analyzing the type of Marteny’s claim, explaining the exclusion of purely

moratorium claims from the GCCF and Class Settlement, or the ultimate judicial

determination that such claims were non-compensable. See id., at *6. (“BCA failed

to provide any expert testimony on the damages element, by affidavit or

otherwise.”). Since BCA’s expert testimony now before us explains this in detail,

the burden shifted to Marteny to establish by expert testimony that BCA’s conduct

resulted in malpractice damages. See Tex. R. Civ. P. 166a(c); Elizondo, 415 S.W.3d

at 270–71 (explaining what evidence plaintiff could have presented to create a fact

issue and that expert testimony was required).

As discussed more fully above, we disagree that the law-of-the-case doctrine

applies to this appeal because the prior appeal and this current appeal are based upon

substantially different records. Hartman, 2023 WL 5282443, at *5. For example,

here, the prior appeal involved five evidentiary records; whereas the current appeal

contains forty evidentiary records. Likewise, to the extent that Marteny asserts

Marteny I held that BCA could only negate damages with settlement information,

we disagree with that interpretation. To the contrary, Marteny’s attempt to establish

damages with settlement information from BCA’s other clients is now misplaced,

given the expert testimony presented and additional evidence submitted to establish

that purely moratorium claims have now been excluded from the GCCF, the Class

Settlement, and the MDL Court has made a determination that such claims were non-

35
compensable. In other words, Coon describes how all three avenues excluded

moratorium related claims, culminating in the MDL court’s (1) determination that

the government moratorium constituted an intervening cause and that moratorium

claims were not compensable, and (2) granting BP’s motions to dismiss the

moratorium claims in the “Bellwether” cases. Therefore, Coon’s expert testimony

explains the “how and why” Marteny is not entitled to any damages as a matter of

law by analyzing the type of Marteny’s injuries.

We have also reviewed the evidence Marteny provided with his response to

the summary judgment motion. Like the Elizondo plaintiffs, Marteny failed to raise

a material issue of fact on malpractice damages. See Elizondo, 415 S.W.3d at 270.

Reading Marteny’s response and attachments we conclude Marteny offered proof,

including his affidavit and other evidence, that (1) BCA represented him in his

claims against BP for loss of earning capacity, (2) he withdrew his termination letter

and BCA agreed to continue representing him under their original agreement, (3) he

received no compensation, (4) BCA failed to sue on his behalf, and (5) court

appointed neutrals settled other claims with moratorium components. However, he

failed to establish through expert testimony that BP would have paid to settle his

moratorium claims despite a judicial determination it was not liable for such claims.

See id. at 271 (explaining what plaintiff would have to prove to establish damages

based on her theory). To conclude otherwise would foster the pursuit of otherwise

36
frivolous claims. While having an expert compare settlement information of other

BCA clients may be one way to do this, it is not the only way. See Burrow, 997

S.W.2d at 236. Marteny could have provided a controverting expert affidavit

explaining why his claims were not purely moratoria related or explaining why his

type of claim was entitled to a settlement despite a judicial determination that such

claims were non-compensable. He asserts that neutrals settled thousands of other

moratoria related claims, but he does not attempt to explain with expert testimony

“how and why” he would have qualified for such a settlement. See Starwood Mgmt.,

530 S.W.3d at 679; Elizondo, 415 S.W.3d at 271.

In its Second Motion for Summary Judgment, BCA met its initial burden to

conclusively negate damages in this legal malpractice claim. See Tex. R. Civ. P.

166a(c); Wallace, 642 S.W.3d at 514; Lujan, 555 S.W.3d at 84. Once the burden

shifted to Marteny, he failed to provide expert testimony controverting BCA’s

evidence and creating a fact issue on damages. See Tex. R. Civ. P. 166a(c); Wallace,

642 S.W.3d at 514 (addressing shifting burden); Lujan, 555 S.W.3d at 84 (same);

see also Elizondo, 415 S.W.3d at 270–71 (requiring expert testimony in legal

malpractice case). Since BCA negated the damages element of Marteny’s legal

malpractice claim, we need not address the argument that BCA failed to negate the

duty element. See Tex. R. App. P. 47.1; Henkel, 441 S.W.3d at 251; Sci. Spectrum,

941 S.W.2d at 911. We overrule issue two.

37
IV. ISSUE THREE: MOTION TO COMPEL

In issue three, Marteny contends the trial court abused its discretion by

denying his Motion to Compel discovery. BCA responds that Plaintiffs’ Third Set

of Written Discovery is identical to questions asked in earlier discovery and argues

this Court found the definition of “similar clients” in the previous requests to be

overbroad. BCA further argues that Marteny’s definition of “similar clients” in the

Third Set of Written Discovery does not “narrow that definition substantially.”

A. Standard of Review and Applicable Law

We review a trial court’s ruling on a motion to compel discovery for an abuse

of discretion. See Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex.

1995); Stewart v. Lexicon Genetics, Inc., 279 S.W.3d 364, 373 (Tex. App.—

Beaumont 2009, pet. denied). When reviewing for an abuse of discretion, we

determine whether the trial court’s action “was so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law[ ]” or if it was made without reference

to guiding rules or principles, and we will not substitute our judgment for the trial

court’s. See BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 800 (Tex.

2002); Suniverse, LLC v. Universal Am. Mortg. Co., 09-19-00090-CV, 2021 WL

632603, at *8 (Tex. App.—Feb. 18, 2021, pet. denied) (mem. op.) (citations

omitted).

38
An objection to written discovery not made within the required time is waived

“unless the court excuses the waiver for good cause shown.” Tex. R. Civ. P. 193.2(e).

A trial court has broad discretion to permit or deny the withdrawal of deemed

admissions but cannot do so arbitrarily, unreasonably, or without reference to

guiding rules or principles. Marino v. King, 355 S.W.3d 629, 633 (Tex. 2011) (per

curiam); Wheeler v. Green, 157 S.W.3d 439, 443 (Tex. 2005) (per curiam); Plaza

City, LLC v. AES Septic, LLC, No. 09-21-00030-CV, 2022 WL 17350935, at *4

(Tex. App.—Beaumont Dec. 1, 2022, no pet.) (mem. op.).

When a party is served with requests for admissions and fails to respond, each

request is deemed admitted by operation of law. See Tex. R. Civ. P. 198.2(c). “A

matter admitted under this rule is conclusively established as to the party making the

admission unless the court permits the party to withdraw or amend the

admission.” Id. at 198.3. A trial court may allow the withdrawal or amendment of

an admission if (1) a party shows good cause, and (2) the trial court finds that the

parties relying on the deemed admissions will not be unduly prejudiced and

presentation of the action’s merits will be subserved by allowing the amendment or

withdrawal of the admission. See id. A party may establish good cause by showing

its failure to respond was accidental or a mistake, rather than intentional or the result

of conscious indifference. Wheeler, 157 S.W.3d at 442; Plaza City, 2022 WL

17350935, at *4. “To establish a lack of undue prejudice, a party must show ‘that

39
withdrawing the admission will not delay the trial or significantly hamper the

opposing party’s ability to prepare for it.’” Plaza City, 2022 WL 17350935, at *4

(citing Wheeler, 157 S.W.3d at 442) (other citation omitted).

“The burden to propound discovery complying with the rules of discovery

should be on the party propounding the discovery, and not on the courts to redraft

overly broad discovery[.]” In re TIG, Ins., 172 S.W.3d 160, 168 (Tex. App.—

Beaumont 2005, orig. proceeding). As we explained in Marteny II,

Marteny’s claims were solely for moratorium damages; however, the
discovery requests required BCA to produce information not only for
moratorium damage claims, but also for oil spill damage claims. Faced
with a facially overbroad request for discovery, the trial court had the
discretion to narrowly tailor the request or to deny the motion to
compel.

See 2022 WL 318448, at *3; see also In re Mallinckrodt, Inc., 262 S.W.3d 469, 474

(Tex. App.—Beaumont 2008, orig. proceeding).

B. Analysis

Although Marteny disputes the characterization of his claims being

moratorium only, a review of his live pleading confirms this to be so. Specifically,

he pleaded that he

made a living by working on offshore vessels charted by oil companies
since 2005. Following the oil spill, an extensive moratorium was placed
on all offshore drilling vessels, drastically decreasing the amount of
work available on vessels in the Gulf of Mexico. The moratorium
resulted in Marteny being discharged from his current assignment and,
due to damage caused by the oil spill, finding another assignment was
virtually impossible as the demand for merchant mariners drastically
40
decreased. Due to the low demand for merchant mariners and an excess
supply of merchant mariners, the wages and benefits offered to those in
his field went down. More specifically, the moratorium caused
Maritime companies who support the oil field industry to lose business
and those companies in turn laid off hundreds of merchant mariners
saturating the market.

Marteny pleads he lost his job because of the moratorium and given the saturation

of the market with merchant mariners and decreased demand due to the drilling

moratorium, he could not find another job.

The record establishes that following this Court’s denial of his petition for

writ of mandamus, Marteny sent additional discovery and changed the definition of

“similar clients.” This was something BCA complained about in the trial court and

argues on appeal. The record reveals that Marteny’s revised definition of “similar

clients” limited the requests to those clients with “occupations similar to Marteny’s.”

Nevertheless, an important consideration to our conclusion in Marteny II in

determining the requests were facially overbroad was that Marteny’s claims were

for moratorium damages only, and the discovery requests were not limited to those

claims. See Marteny II, 2022 WL 318448, at *3. As worded, Marteny’s revised

definition of “similar clients” requests information about BCA clients who “claimed

to suffer economic losses as a result of the oil spill or the moratorium” but he again

fails to limit it to clients who only had moratorium claims. As worded, this could

include individuals with moratorium claims who also had other claims resulting

from the spill. Since the trial court could reasonably conclude Marteny again failed
41
to narrowly tailor his requests, it did not abuse its discretion when it denied

Marteny’s Motion to Compel. Mallinckrodt, Inc., 262 S.W.3d at 474; TIG, Ins., 172

S.W.3d at 168; see also Marteny II, 2022 WL 318448, at *3.

As to the tardiness of BCA’s response and Marteny’s assertion that this

resulted in a waiver of objections and deemed admissions, we note that BCA offered

to have Newell testify at the hearing, but the trial court instead asked BCA to submit

an affidavit from Newell regarding the delay in responding to the discovery. The

trial court also allowed Marteny to respond after Newell provided an affidavit.

Newell ultimately submitted two affidavits, and Marteny complains about both. In

his first affidavit, Newell asserts,

The responsibility for handling the cases is divided between BCA’s
Beaumont and Houston office. Generally, this case would have been
handled by the Beaumont office. However, the case was calendared and
converted to Word by the Houston office in mid-June. This apparently
created some confusion about who was going to finalize and answer the
discovery. I was not aware the discovery did not get answered within
30 days.

Newell further claims that failing to respond “was accidental and the result of a

mistake, and not intentional or the result of conscious indifference.” See Wheeler,

157 S.W.3d at 442; Plaza City, 2022 WL 17350935, at *4. He explains how the

calendaring confusion occurred. Thus, based on this affidavit, the trial court could

have reasonably determined BCA established good cause. See Wheeler, 157 S.W.3d

at 442; Plaza City, 2022 WL 17350935, at *4.

42
As explained above, the trial court could have reasonably concluded that

Marteny failed to narrowly tailor his requests sufficiently after we denied his petition

for writ of mandamus in Marteny II. See 2022 WL 318448, at *3. Since BCA showed

that Marteny failed to limit the information sought after his petition for writ of

mandamus was denied to “moratorium only” claims like his, the trial court could

have also reasonably determined that withdrawing the deemed admissions would not

delay or significantly hamper Marteny’s ability to prepare for trial, particularly

without a trial setting, thus there was no undue prejudice. See Wheeler, 157 S.W.3d

at 442; Plaza City, 2022 WL 17350935, at *4.

On this record, we conclude the trial court did not abuse its discretion in

denying Marteny’s Motion to Compel. See Hall, 909 S.W.2d at 492; Suniverse, LLC,

2021 WL 632603, at *8; Stewart, 279 S.W.3d at 373. We overrule issue three.

V. ISSUE FOUR: MOTION TO CONTINUE

In issue four, Marteny argues the trial court abused its discretion by implicitly

denying his motion to continue the summary judgment hearing to obtain the

discovery. In connection with this, Marteny argues that the trial court abused its

discretion by refusing to grant leave for him to late file a signed affidavit in support

of his motion for continuance.

43
A. Standard of Review and Applicable Law

We review a trial court’s decision to deny a motion to continue a summary

judgment hearing for an abuse of discretion. See Joe v. Two Thirty Nine Joint

Venture, 145 S.W.3d 150, 161 (Tex. 2004); Suniverse, 2021 WL 632603, at *8. A

court should consider the following nonexclusive factors deciding whether the trial

court abused its discretion in denying a motion for continuance seeking more time

to conduct discovery: (1) the time the case has been on file; (2) the materiality and

purpose of the discovery sought; and (3) whether the party seeking the continuance

exercised due diligence to obtain the requested discovery. See Two Thirty Nine Joint

Venture, 145 S.W.3d at 161; Suniverse, 2021 WL 632603, at *8.

B. Analysis

Even assuming without deciding that the trial court considered Kassab’s late-

filed affidavit in support of the Motion for Continuance, it did not abuse its discretion

by denying the Motion for Continuance. We look first to how long this case has been

on file, which is over seven years. See Two Thirty Nine Joint Venture, 145 S.W.3d

at 161; Suniverse, 2021 WL 632603, at *8. This factor weighs against continuing the

hearing. Next, we look at the materiality and purpose of the discovery sought.

See Two Thirty Nine Joint Venture, 145 S.W.3d at 161; Suniverse, 2021 WL 632603,

at *8. The purpose of the settlement information sought by Marteny of other

similarly situated BCA clients is his attempt to prove damages in this legal

44
malpractice case alleging negligent settlement, so its materiality may be significant

to him, which factor could favor a continuance. However, as we explained in Issue

Two above, this was not the only avenue to prove damages. We conclude that

Marteny’s attempt to establish damages with settlement information is misplaced

because the moratorium claims have now been excluded from the GCCF and the

Class Settlement, and the MDL Court has made a judicial determination that such

claims are non-compensable. So, this also weighs against granting a continuance.

We next look to the diligence used in procuring discovery. We agree that

Marteny exercised diligence in propounding discovery. See Two Thirty Nine Joint

Venture, 145 S.W.3d at 161; Suniverse, 2021 WL 632603, at *8. That said, Marteny

failed to narrowly tailor the discovery to request settlement information on moratoria

only claims following the denial of his petition for writ of mandamus. On this record,

the trial court could have determined that although the discovery may have been

timely filed, the fact that Marteny failed to narrowly tailor his requests after being

afforded an opportunity and given how long this case has been on file, a continuance

was unwarranted.

We conclude that the trial court’s denial of the continuance was not arbitrary

or unreasonable, thus it did not constitute an abuse of discretion. See Two Thirty

Nine Joint Venture, 145 S.W.3d at 161; Suniverse, 2021 WL 632603, at *8. We

overrule issue four.

45
VI. CONCLUSION

Having overruled Marteny’s issues, we affirm the trial court’s judgment.

AFFRIMED.

W. SCOTT GOLEMON
Chief Justice

Submitted on October 17, 2024
Opinion Delivered November 21, 2024

Before Golemon, C.J., Johnson and Wright, JJ.

46