Sergio Olivares v. Andrew E. Toscano and Mark E. Macias--Appeal from 406th Judicial District Court of Webb County

MEMORANDUM OPINION
No. 04-03-00165-CV
Sergio OLIVARES,
Appellant
v.
Mark E. MACIAS and Andrew E. Toscano,
Appellees
From the 406th Judicial District Court, Webb County, Texas
Trial Court No. 2001-CVQ-001849-D4
Honorable Andres Reyes, Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Sitting: Alma L. L pez, Chief Justice

Sarah B. Duncan, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: November 5, 2003

AFFIRMED

Sergio Olivares appeals the trial court's summary judgment against him in his legal malpractice suit against Mark E. Macias and Andrew E. Toscano. We affirm.

Factual and Procedural Background

Sergio Olivares filed this legal malpractice suit against two of his former attorneys, Mark E. Macias and Andrew E. Toscano. Olivares alleged his former attorneys had negligently failed to investigate the proper defendants in his negligence suit arising out of an accident involving a forklift; and, as a result of their failure to investigate, his attorneys had filed suit and obtained a default judgment against a non-existent corporation, Caresa, Inc. Macias and Toscano moved for summary judgment on two grounds. First, Macias and Toscano alleged a no-evidence motion for summary judgment under Texas Rule of Civil Procedure 166a(i):

[Olivares] has no evidence of any of the required elements of his legal malpractice cause of action. [Olivares] must plead and prove that but for the actions of [Macias and Toscano], [Olivares] would have recovered and collected judgment against the defendant who caused him injury on April 29, 1988. He has identified no experts, nor identified any witnesses that have any fact evidence of the suit within the suit as required by Texas law.

In his response to the first ground for summary judgment, Olivares argued (1) the motion for summary judgment "did not identify any elements of Olivares' claim that have no support in the evidence"; (2) if the motion for summary judgment could be liberally construed to challenge his ability to produce evidence of proximately caused damages, "the determination of proximate cause in legal malpractice cases is usually a question of fact for the jury"; and (3) there is no requirement that he prove collectibility.

Macias and Toscano also alleged in a traditional motion for summary judgment:

Exhibit A conclusively establishes that the only potential defendant identified by [Olivares] was sued and that judgment was taken against said defendant thereby discharging the duty of an attorney as established by Texas law. ....

In response to the second ground, Olivares argued there was evidence of duty, breach, proximately caused injury, and damages and therefore sufficient evidence to defeat a motion for summary judgment on his legal malpractice claim. Specifically, Olivares alleged "[t]he proper party defendants were identified in 'Defendant's Amended Answer,' filed of record in the underlying suit"; but, by the time the amended answer was filed, "the statute of limitations had passed, and no new defendants could be added to Olivares' claim." The trial court granted the motion for summary judgment on the second ground. Olivares appealed.

Standard of Review

We review a summary judgment de novo, considering not only those grounds the trial court rules on but also those grounds the trial court did not rule on but that are preserved for appellate review. See Cincinnati Life Ins. Co. v. Cates, 927 S.W.2d 623, 625-26 (Tex. 1996). Macias and Toscano have preserved for appellate review both grounds for summary judgment set forth in their motion.

Grounds

Olivares first argues the motion for summary judgment is insufficient as a matter of law because it does not state any grounds for granting summary judgment. We disagree. As reflected by the above-quoted excerpt from the motion, it states two grounds: (1) there is no evidence of collectibility; and (2) the evidence "conclusively establishes that the only potential defendant identified by [Olivares] was sued and that judgment was taken against said defendant." Therefore, contrary to Olivares's arguments, the motion is not insufficient as a matter of law; and the trial court did not err in overruling his special exceptions.

Proper Defendants

Olivares next argues the Macias's and Toscano's traditional motion for summary judgment does not conclusively negate his assertion of negligence because "it was not up to Olivares by himself to do the identifying [of the proper defendant.] That's why he hired a lawyer." We agree. As Olivares asserts, his attorneys "had an independent duty to perform a reasonable investigation of likely party defendants in the underlying suit."

Collectibility

Olivares next argues that, "[i]n order to prevail in this appeal, [Macias's and Toscano's] burden is to have conclusively negated that Olivares' default judgment ' would have been collectible had the judgment been recovered.'" Olivares misunderstands his burden in the trial court and, as a result, the thrust of Macias's and Toscano's no-evidence motion for summary judgment.

"In order to prevail on a legal malpractice claim which arises from prior litigation, the plaintiff has the burden to show that "but for" the attorney's negligence, he or she would be entitled to judgment, and show what amount would have been collectible had he or she recovered the judgment." Ballesteros v. Jones, 985 S.W.2d 485, 489 (Tex. App.-San Antonio 1998, pet. denied); see also Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex. 1989) (holding that charge "should have inquired as to the amount of damages recoverable and collectible ... if the suit had been properly prosecuted").

In the circumstances of this case, therefore, it would have been Olivares' burden at trial to establish that if his attorneys had properly prosecuted his suit by investigating and suing the correct defendant, he would have recovered a judgment against the correct defendant; and this judgment would have been collectible. Because this would have been Olivares' burden at trial, it was a proper ground to include in a no evidence motion for summary judgment. See Tex. R. Civ. P. 166a(i). By doing so, Macias and Toscano shifted to Olivares the burden to bring forward some evidence that if his suit had been properly prosecuted, he would have recovered judgment against a proper defendant; and this judgment would have been collectible. See id. Because he failed to do so, the trial

court properly granted summary judgment in favor of Macias and Toscano. We therefore affirm the trial court's judgment.

Sarah B. Duncan, Justice