Darrell W. Woods v. Michael L. McLeaish--Appeal from 109th District Court of Andrews County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

DARRELL W. WOODS, )

) No. 08-02-00534-CV

Appellant, )

) Appeal from the

v. )

) 109th District Court

MICHAEL L. McLEAISH, )

) of Andrews County, Texas

Appellee. )

) (TC# 14-463)

)

MEMORANDUM OPINION

This is a legal malpractice suit brought by Darrell W. Woods against his former attorney, Michael L. McLeaish. Mr. Woods appeals from a take-nothing judgment granted in favor of Appellee McLeaish. Mr. Woods raises one issue: whether the trial court erred in disregarding the jury=s verdict and entering a take-nothing judgment. We affirm.

On December 7, 1988, Mr. Woods suffered work related injuries when he fell off of a tank truck. At the time, he was employed by Enron as a truck driver. He was in charge of hauling crude oil from the tank battery or the well site to a distribution area. Mr. Woods= job required him to climb up a ladder to get on top of the tank truck to check the oil level in the tank. Apparently, the linkage to a pressure relief valve failed and when Mr. Woods= opened the tank cover, he was knocked off the tank by a pressurized blast of oil. He fell about fifteen feet to the ground and suffered significant injuries.

On October 3, 1990, Mr. Woods hired Attorney McLeaish to sue two companies whom he believed were responsible for his injuries, Hale Oilfield Products Co. and Trail Masters, Inc.[1] Mr. McLeaish sued the two companies. It turned out, however, that Mr. McLeaish incorrectly named Trail Masters, Inc. as a defendant instead of Trailmaster Tanks of Fort Worth, Inc. The identity of the proper defendant was not learned until after the statute of limitations had run.

Mr. Woods filed this legal malpractice suit against Mr. McLeaish alleging that if Mr. McLeaish had properly investigated the claim, he could have discovered the correct identity of the codefendant, and he could have amended the pleading so as to include the correct party.

There was a jury trial, and the jury was given the following questions:

Question No. 1

Did the negligence, if any, of those named below proximately cause the injury in question?

Answer >Yes= or >No= for each of the following:

a. Trailmaster Tanks, Inc. NO [Emphasis added].

b. Darrell Woods NO

If you answered >Yes= to Question 1 for more than one of those named below, then answer the following question. Otherwise, do not answer the following question.

[Question No. 2: not answered] . . .

Questions No. 3

Did the negligence, if any, of those named below in connection with the filing of Cause #12,331 in the 109th District Court proximately cause the damages to Darrell Woods?

Answer >Yes= or >No= for each of the following:

a. Darrell Woods YES

b. Michael McLeaish YES

If you answered >Yes= to the above question, then answer the following question. Otherwise, do not answer the following question.

Question No. 4

What percentage of the negligence that caused the damages do you find to be attributed to each of those found by you, in answer to the above questions, to have been negligent?

a. Darrell Wood 50

b. Michael McLeaish 50

Total 100%

Question No. 5

What sum of money, if paid now in cash, would fairly and reasonably compensate Darrell Woods for his loss, if any, resulting from the occurrence in question.

You shall award the same, if any, that Darrell Woods would have recovered and collected if his original suit against Trailmaster Tanks, Inc. had been properly prosecuted.

In considering those damages, consider the following elements of damage, and no other.

A. Physical pain in the past and, that in reasonable probability will be suffered in the future.

B. Mental anguish in the past and that in reasonable probability will be suffered in the future.

C. Medical expenses in the past.

Do not reduce the amount, if any, in your answer because of the negligence, if any, of Darrell Woods. Do not include interest in any amount of damages you find.

Answer in Dollars and cents, for damages, if any.

ANSWER: $15,000.00

Mr. McLeaish filed a motion for the court to enter a take-nothing judgment asserting that Mr. Woods failed to secure a finding that Trailmaster Tanks, Inc. was negligent or caused his injuries. The trial court granted the motion and ordered that Mr. Woods take nothing.

Mr. Woods= argument on appeal is that McLeaish=s request for an entry of a take-nothing judgment is the same as asserting that the jury answers are inconsistent since the jury, in Question Number Five, answered that Mr. Woods was entitled to damages of $15,000. Mr. McLeaish asserts that the take-nothing judgment was proper because the jury found that Mr. Woods had failed to prove the underlying cause of action, as shown by their answer to Jury Question Number One. Mr. McLeaish also asserts that even if the charge was defective, that issue is waived because Mr. Woods failed to object.

In order to win a legal malpractice claim that is based on the mishandling of an underlying claim or litigation, the plaintiff has the burden to show that Abut for@ the attorney=s negligence, he or she would be entitled to judgment, and it must be shown what amount would have been collectible had the judgment been recovered. Rodriguez v. Sciano, 18 S.W.3d 725, 727 (Tex.App.--San Antonio 2000, no pet.); Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex. 1989).

The jury in Question Number One found that Trailmaster Tanks, Inc. was not negligent and that it did not proximately cause the injury in question. This jury=s findings was not challenged or objected to by the Mr. Woods at the trial level. Accordingly, Mr. Woods failed to prove that he would be entitled to judgment in the underlying suit. See Rodriguez, 18 S.W.3d at 727.

Furthermore, the argument that the jury findings were inconsistent has not been preserved for our review. Mr. Woods failed to make an objection to receipt of the verdict or make any objections as to the jury=s findings being in conflict before the jury was discharged, thereby waiving any alleged error as to any conflict in the jury findings. See Isern v. Watson, 942 S.W.2d 186, 191 (Tex.App.--Beaumont 1997, writ denied). We must, therefore, overrule Issue One.

We affirm the trial court=s judgment.

December 18, 2003

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

Barajas, C.J., Larsen, and Chew, JJ.

[1] Mr. Woods had initially contacted another lawyer in February or March of 1989. He then employed a second attorney, Abner Burnett, from about Spring of 1989 to February of 1990. After terminating that relationship, Mr. Woods sought the legal help of David Lashford. Mr. Lashford worked on the case for a total of 120 days. Mr. Lashford was terminated in August of 1990. Mr. Woods then sought the help of Mr. McLeaish in September of 1990.