### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-07-00376- CV

Elizabeth Lou ise Hand ley, Appellant

v. Marian C. Bloss, App ellee

F ROM CO UNTY COURT AT LAW NO . 1 O F B URNET COUNTY NO. C3206 , H ONO RAB LE W. R. SAVAGE, JUDGE P RESIDING

C O N C U R R

I N G O P I N I O N

I join in J ustice Pury ear ’s opinion to the extent it holds that Handley waived two of her appellate challeng es to the summary judgme nt—that the fee ag ree ment did not authorize Bloss to “re voke” the $3,200 in bil ling discounts, and if it did, it imposes an unenfor cea ble penalty —beca use Ha ndley did not raise these grounds for deny ing summary judgme nt in a timely written response t o Bloss’s mot ion. See City of Houston v. Cl ear C reek Basin Auth ., 589 S.W .2d 671, 678 (Tex. 1979). I n the view that these wer e the only g rounds that Handle y

raises on a

ppeal,
J ustice Pury ear would awa rd damag es to Bloss to sanction Handley for filing a frivolous appea l. I f these wer e in fac t the only g rounds Handley prese nted o n ap p ea l , I might be inclined to join that portion of J ustice Pury ear ’s o p i nion. Howeve r, Handley also complains that Bloss’s summary judgme nt evidenc e was “inconsistent” with respe ct to whether she owes Bloss $6, 1 3 8

. 2 3 or thefull $9,338.23. I ag ree with J ustice P atterson that this complaint is in the nature of a challeng e to

the leg al sufficie ncy of Bloss’s summary -judg ment p ro o f t h at can be raised for the first time on
appea l. See id.
J ustice Pury ear acknow ledg es that Handley contends Blo s s ’s summary -judg ment proof is “inconsistent,” but conclude s t h at Handley nonetheless failed to challeng e the leg al sufficie ncy of Bloss’s summary -judg ment proo f b ec ause Handley did not expli citly ref er
to “leg al insufficienc y ” or cite specific authorities for the co n ce pt that “inconsistent evidenc e is leg ally insufficient to support summary judgme nt.” Whil e Handley ’s briefing is admittedly sparse , the substance of her

contention is stra ightf

orwa rd—B loss is not e ntitled to sum mary judgme nt for the full $9,338.23 beca

use she failed to conclusively establ i s h that Handley owed her that entire amount as opposed to the $6,138.23 that Bloss had orig inally billed. This is a challeng e to the leg al sufficie ncy of Bloss’s summary -judg ment proof that Handley can raise for the first time

on appea l. See M.D. Anderson Hosp. & Tumor Inst. v

. W illri ch , 28 S.W .3d 22, 22-23 (Tex. 2000) (per curia m); Cotton v. Ratholes, Inc. , 699 S.W .2d 203, 204-05 (Tex. 1985) (per curia m). Fur ther, Handley ’s challenge h as some colora ble leg al and fac tual basis—there is evidenc e that Bloss

o ri g inally char g ed Handley $6,138.23 and not the full $9,338.23—and, therefor e, does not ri s e t o the level of

frivolousness.
I ag ree with J ustice Pury ear that Handley ultimately does not preva il on this contention beca

use Bloss ’s undisputed summary -judg ment proof establishes that she provided
H a ndley $9,338.23 in unpaid rea sonable and nece ssary leg al service s and that the $3,200 d is c r e p a n c y
repr esente d discounts on ho u rs , an d b eca use the mere fac t Bloss orig inally discounted some of

2her hours does not in itself raise a fac t issue as to the rea sonablene ss and nece ssity of the $9,338.23

amount. J ustice Patterson rea ches a simil ar concl u s i o n . Consequently , I concur in the judgme nt aff irming the summary judgme nt. Howeve r, beca use I differ with J ustice Pury ear ’s core contention that Handley advanc es only unprese rved arg uments on appea l, and beca use Handley ’s challeng e
to the “inconsistency ” of Bloss’s summa ry -j u d gm ent evidenc e, while ultimately unsucce ssful, is
not frivolous, I concur with J ustice Patterson in the judgme nt deny ing Bloss’s motion for damag es.

__________________________________________ Bob Pembe rton, J ustice
Be fore J ustices Patterson, Pury ear and Pember

ton Filed: F ebrua

ry 5, 2010

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