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Sullivan v. Bickel & Brewer12/28/1995
Affirmed and Opinion filed.
December 28, 1995.
O P I N I O N
John R. Sullivan (appellant) appeals a summary judgement entered in favor of Bickel & Brewer and William Brewer (appellees). In fourteen points of error, appellant contends the trial court erred in: (1) granting summary judgement in favor of appellees; (2) granting appellees' motion to compel; (3) entering sanctions against appellant; (4) prohibiting appellant from testifying at the hearing on his motion for reconsideration; (5) denying appellant's motion for continuance; (6) excluding appellant's summary judgement evidence; (7) refusing to record the summary judgement hearing; and (8) denying appellant's motion for new trial. We affirm the trial court's judgment.
FACTS
Appellant was involved in many business ventures involving real estate . When the real estate market took a downward turn, he began to experience difficulty meeting his creditors' demands. In 1986, on behalf of himself and entities he controlled, appellant hired appellees to provide legal representation in several cases involving outstanding indebtedness to several lending institutions. Appellant fired appellees in June 1990, after paying them over $5 million in legal fees.
On October 8, 1993, appellant filed suit against appellees alleging breach of contract, negligence, breach of fiduciary duty, fraud, and violations of the Texas Deceptive Trade Practices Act. On January 7, 1994, the parties signed a written agreement scheduling discovery dates. Because appellant did not follow the agreement, appellees filed a motion to compel which the trial court granted. Because appellant did not comply with that order, appellees filed two motions for sanctions. The court also granted those motions. The court found that appellant did not make a good faith effort to produce documents, his interrogatory responses were intentionally incomplete, and, to avoid discovery, he filed motions to disqualify appellees' counsel and to extend discovery deadlines. As a sanction for discovery abuse, the trial court refused to allow appellant to introduce into evidence any documents that he previously failed to produce.
Appellees moved for summary judgement on the basis of limitations, arguing that all of appellant's claims were actually legal malpractice claims and therefore governed and barred by the two-year statute of limitations. Alternatively, appellees argued that any claims which may be governed by the four-year statute are also barred because they were based on events occurring and known to appellant more than four years before he sued. In his response, appellant addressed only his fraud claim, arguing that appellees did not meet their summary judgment burden to show it is barred by limitations. On the day of the hearing, appellant attempted to offer his affidavit as summary judgment evidence. However, the trial court sustained appellees' objection to the affidavit and denied appellant's motion for leave to file. The trial court granted appellees' motion for summary judgment.
SUMMARY JUDGMENT
A. The Parties' Contentions
In his first point of error, appellant contends the trial court erred in granting appellees' motion for summary judgement on his fraud claim. He asserts that his petition alleged fraudulent billing practices by appellees, as well as legal malpractice. He argues that the four-year statute of limitations applies to his fraud claim, he raised the discovery rule in his summary judgement response, and appellees did not establish as a matter of law that prior to October 8, 1989, four years before he filed suit, he knew or should have known facts giving rise to
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