Parker, Joe, Welch, Maurice and Williamson, Jerry v. Miller, Paul and Schechter, Richard--Appeal from 113th District Court of Harris County

Affirmed and Opinion filed October 10, 2002

Affirmed and Opinion filed October 10, 2002.

In The

Fourteenth Court of Appeals

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NO. 14-01-00923-CV

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JOE PARKER, MAURICE WELCH, AND JERRY WILLIAMSON, Appellants

V.

PAUL MILLER AND RICHARD SCHECHTER, P.C., Appellees

On Appeal from the 113th District Court

Harris  County, Texas

Trial Court Cause No. 00-45437

O P I N I O N

This is a legal malpractice case. Appellants Joe Parker, Maurice Welch and Jerry Williamson appeal from a judgment granting appellees= no-evidence motion for summary judgment. We affirm.

I. Background

In 1996, appellants were employed by HLS Offshore, L.L.C. through an overseas subsidiary named AAl Sari Trading Company.@ While they were working in the Middle East, an employee of HLS Offshore publicly, loudly, and falsely accused appellants of embezzling substantial sums of money. Appellants contend they were discharged and suffered severe damage to their reputation because of these false accusations. Appellant Maurice Welch contacted Paul Miller, who had represented him on previous matters, to investigate possible remedies. Miller agreed to represent Welch and his two co plaintiffs.

According to Appellants, Miller failed to file a slander suit on their behalf before expiration of the statute of limitations. Appellants allege that Miller failed to advise them of the impending expiration of the statute of limitations, denying them the opportunity to secure other counsel. Furthermore, appellants allege these actions violated the duty of ordinary care and diligence owed to them which proximately caused loss of an opportunity to pursue their slander claim. Around March of 1998, Miller withdrew his representation with the consent of the three clients so that Greg Frazer could assume their representation. Frazer secured a settlement with HLS for $20,500. Appellants filed a legal malpractice suit against Miller. Appellants also sued Richard Schechter, P.C., contending Schechter was liable through the doctrine of respondeat superior. Both defendants filed no evidence summary judgment motions under Rule 166a(I) of the Texas Rules of Civil Procedure.

In his motion for summary judgment, Miller contends the plaintiffs presented no credible summary judgment evidence to show that (1) he breached the standard of care; (2) any such breach was a proximate cause of damages to the plaintiffs; (3) but for the alleged breach appellants would have recovered on their slander allegations in the underlying action; (4) appellants=recovery would have exceeded the amount they received to settle the underlying case; or (5) he was guilty of any conduct that justifies punitive damages. In his motion for summary judgment, Schechter argued that (1) appellants presented no evidence that Miller was negligent and that such negligence, if any, caused damages; and (2) appellants= claim of apparent agency is insufficient as a matter of law. The trial court granted both motions for summary judgment. This appeal followed.

 

II. Standard of Review

A no-evidence motion for summary judgment requires the nonmovant to present enough evidence to be entitled to a trial. Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432 (Tex. App.CHouston [14th Dist.] 1999, no pet.). The trial court must grant the motion for summary judgment if the nonmovant is unable to satisfy its burden. Id. The court must review the evidence in the most favorable light to the nonmovant. Id. (citing Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). A no-evidence summary judgment is improperly granted if the nonmovant supports each element of his cause of action with more than a scintilla of evidence. Id. ALess than a scintilla exists when the evidence is >so weak as to do no more than create a mere surmise o[r] suspicion=of fact.@ Id. (quoting Kindred v. Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex. 1983)). Support for an element amounts to more than a scintilla and meets the burden when the evidence Arises to a level that would enable reasonable and fairminded people to differ in their conclusions.@ Id. at 432B33. (quoting Havner, 953 S.W.2d at 711). The party moving for summary judgment must state the elements for which there is no evidence. Tex. R. Civ. P. 166a(I).

  III. Miller=s Motion for Summary Judgment

The elements of a legal malpractice claim are (1) duty; (2) breach of duty; (3) proximate cause; and (4) resulting damages. Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995); Two Thirty Nine Joint Venture v. Joe, 60 S.W.3d 896, 904 (Tex. App.CDallas2001, pet. filed). A lawyer is held to the standard of care that would be exercised by a reasonably prudent attorney. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989). Further, the proper measure of damages in a legal malpractice case is the amount that would have been collectible but for the wrongful act or omission of the attorney. Two Thirty Nine Joint Venture, 60 S.W.3d at 910. Miller contends appellants failed to introduce evidence that (1) he breached the standard of care; (2) the complained of breach proximately caused appellants=damages; (3) appellants would have recovered on their underlying slander claim or that appellants would have received damages in excess of what they received to settle the remaining claims; and (4) he was guilty of any conduct that would justify punitive damages. Accordingly, we find that Miller met his burden to specifically state the elements unsupported by evidence. Tex. R. Civ. P. 166a(I).

The trial court granted both Miller and Schechter=s motions for summary judgment without stating the specific grounds on which it relied. When there are multiple grounds for summary judgment and the order granting the summary judgment does not specify on which ground the summary judgment was granted, appellants must negate all grounds on appeal. Lewis v. Adams, 979 S.W.2d 831, 833 (Tex. App.CHouston [14th Dist.] 1998, no pet.). If an appellant fails to negate all grounds on appeal, the appellate court must uphold the summary judgment. Id.

Appellants address the first ground of the summary judgment in their appeal by challenging the necessity of offering expert testimony in support of their contention that appellee Miller was negligent in performing his professional duty. Appellants challenge the second ground of the summary judgment by arguing that an expert witness is not necessary to establish proximate cause in a legal malpractice case. We will not address these two grounds because our ruling on the third ground is dispositive. Appellants fail to appeal the third ground of the summary judgment, in which Miller argued there was no evidence that, had the slander claim been timely pursued by Miller, appellants would have received more money than they received in the previous settlement. These requirements in a legal malpractice case are commonly known as the Asuit within a suit.@ Ballesteros v. Jones, 985 S.W.2d 485, 489 (1998). During oral argument, appellee alleged that the trial court struck the affidavit showing an amount collectible, however, the appellate record has not been supplemented. Furthermore, the proper damages inquiry focuses on the amount of damages recoverable and collectible from the defendant. See Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex. 1989). Because appellants failed to challenge this ground on appeal, we must uphold the trial court=s decision to grant Miller=s motion for summary judgment.

We overrule appellants= first point of error.

  IV. Schechter=s Motion for Summary Judgment

Under the doctrine of respondeat superior, an employer is vicariously liable for the negligence of an agent or employee acting within the scope of his or her agency or employment, although the principal or employer has not personally committed a wrong. Baptist Mem=l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998). Respondeat superior imposes liability on the employer for the acts of an employee while in the scope of employment, where the negligence of the employee is shown to have been the proximate cause of injury. DeWitt v. Harris County, 904 S.W.2d 650, 654 (Tex. 1995).

As discussed previously, because legal malpractice cases are governed by negligence principles, there must be proof of a duty, a breach of that duty, proximate cause, and damages. Two Thirty Nine Joint Venture v. Joe, 60 S.W.3d at 904; Longaker v. Evans, 32 S.W.3d 725, 735 (Tex. App.CSan Antonio 2000, pet. dism=d). In his motion, Schechter contends no evidence was presented for each required element of proof. Further, Schechter urged that appellants had the burden to show the amount of damages they would have recovered but for the alleged attorney negligence. As set forth previously, the measure of damages in a legal malpractice suit includes the Aamount [that] would have been recovered in the [underlying] judgment.@ Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex. App.CSan Antonio 1995, writ denied); Two Thirty Nine Joint Venture, 60 S.W.3d at 910. Therefore, to defeat Schechter=s no evidence motion, appellants were required to produce more than a scintilla of evidence on each element of the legal malpractice claim, including the amount of damages.

None of appellants= summary judgment evidence substantiates the amount of damages incurred. Instead, appellants argue that the amount of damages is a jury issue, citing Cosgrove, 774 S.W.2dat 662. However, Cosgrove does not support their contention. Next, appellants contend that they were only required to show that a judgment in the slander suit would have been collectible.[1] We disagree. Appellants had the burden to prove the amount of damages and that the amount was collectible. See Schlosser v. Tropoli, 609 S.W.2d 255, 258B59 (Tex. Civ. App.CHouston [14th Dist.] 1980, writ ref=d n.r.e.); Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex. App.CHouston [1st Dist.] 1974, writ ref=d n.r.e.); Texas Pattern Jury ChargesCMalpractice, Premises & Products PJC 84.2 (2000). Because appellant presented no summary judgment evidence regarding the amount of damages incurred, the trial court correctly granted Schechter=s motion for summary judgment.

Accordingly, we overrule appellants= second point of error and affirm the trial court=s judgment.

/s/ Charles W. Seymore

Justice

Judgment rendered and Opinion filed October 10, 2002.

Panel consists of Justices Edelman, Seymore, and Guzman.

Do Not Publish CTex. R. App. P. 47.3(b).

[1] They attached an affidavit from their former employer=s chief financial officer, who averred that the company had assets and insurance sufficient to cover up to $3,000,000 in a debt or judgment.