Marta Martinez v. Corine Dominguez--Appeal from County Court at Law No 7 of El Paso County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

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MARTA MARTINEZ, ) No. 08-03-00265-CV

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Appellant, ) Appeal from

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v. ) County Court at Law No. 7

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CORINE DOMINGUEZ, ) of El Paso County, Texas

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Appellee. ) (TC# 2002-3531)

MEMORANDUM OPINION

Marta Martinez, pro se, appeals from a summary judgment granted in favor of Corine Dominguez. We affirm.

FACTUAL SUMMARY

We begin by detailing the underlying facts which have spawned a series of lawsuits. On July 26, 2001, the Texas Department of Protective and Regulatory Services sought an order for the protection of a child in an emergency and removed Martinez s child from her home. The trial court initially appointed Stuart Leeds to represent Martinez. The County Attorney s Office, on behalf of the Department, filed a suit affecting the parent-child relationship, seeking conservatorship of the child and termination of Martinez s parental rights. On August 2, 2001, the trial court conducted a hearing on temporary orders. After hearing evidence regarding the condition of Martinez s home and Martinez s unstable mental state, the court placed the child in foster care. At Martinez s request, Leeds withdrew on November 13, 2001, and the trial court appointed Dominguez.

Dominguez met with Martinez in November and discussed the case at length. On January 30, 2002, Dominguez met with Martinez in order to prepare for a permanency hearing scheduled for the following day. During their discussion, Martinez broached the subject of voluntary relinquishment of her parental rights and Dominguez told her that it was not necessary to consider a relinquishment at that time. When Dominguez met Martinez at the courthouse prior to the scheduled hearing, Martinez informed her that she wished to voluntarily terminate her parental rights. Martinez s caseworker, Ricardo Roberts, and Dominguez spoke privately with Martinez and attempted to dissuade her from signing an affidavit. Martinez s therapist also met with Martinez for approximately forty-five minutes in an effort to persuade her not to relinquish her parental rights. Nevertheless, Martinez insisted on signing the affidavit. Dominguez then explained the consequences and finality of the document. Martinez signed the affidavit in the presence of Dominguez, the caseworker, the therapist, and others. Dominguez never saw Martinez again. Martinez never contacted her requesting that she pursue any other actions on her behalf.

On April 16, 2002, Martinez signed an affidavit revoking her irrevocable affidavit of relinquishment which was filed with the court on May 31, 2002. The trial court entered a judgment terminating her parental rights on August 23, 2002. In a bill of review proceeding, the 65th District Court determined that Martinez freely and voluntarily signed the affidavit, finding no evidence of coercion, fraud, or duress. We affirmed that ruling. See Martinez v. Texas Dept. of Protective & Regulatory Services, 116 S.W.3d 266 (Tex.App.--El Paso 2003, no pet.).

Martinez has since sued the County of El Paso, // Roberts, Leeds, and Dominguez. The basis of the suit against Dominguez is legal malpractice. She alleges that Dominguez (1) failed to call certain witnesses to testify, (2) failed to seek a continuance of an unspecified hearing, and (3) failed to ask the trial court to dismiss hot check charges which resulted in Martinez s wrongful imprisonment for nine days. Dominguez filed a motion for summary judgment alleging that Martinez s voluntary relinquishment of her parental rights renders her complaints moot and that no professional negligence occurred. The trial court granted the motion without specifying the basis for its ruling.

SUMMARY JUDGMENT

Martinez raises five points of error on appeal: (1) Leeds did not ask to continue the August 2, 2001 hearing; (2) Martinez did not voluntarily sign the affidavit of relinquishment and Dominguez did not advise her of the consequences; (3) Martinez was wrongfully imprisoned at the time of the August 2, 2001 hearing; (4) Martinez filed an affidavit revoking her affidavit of relinquishment; and (5) Dominguez violated Martinez s constitutional right to due process and equal protection of the law by failing to perform her duties as attorney with care and diligence. These issues must be addressed in the context of the appropriate standard of review.

Standard of Review

In a traditional summary judgment proceeding, the standard of review on appeal is whether the successful movant at the trial level carried the burden of showing that there is no genuine issue of material fact and that judgment should be granted as a matter of law. Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991); Duran v. Furr s Supermarkets, Inc., 921 S.W.2d 778, 784 (Tex.App.--El Paso 1996, writ denied). Thus, the question on appeal is not whether the summary judgment proof raises fact issues as to required elements of the movant s cause or claim, but whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of material fact as to one or more elements of the movant s cause or claim. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex. 1970); Duran, 921 S.W.2d at 784. In resolving these issues, all evidence favorable to the non-movant must be taken as true and all reasonable inferences, including any doubts, must be resolved in the non-movant s favor. Nixon v. Mr. Property Mgmt. Co., Inc., 690 S.W.2d 546, 548-49 (Tex. 1985); Duran, 921 S.W.2d at 784. A defendant who conclusively negates at least one essential element of each theory pled by the plaintiff is entitled to summary judgment. Wornick Co. v. Casas, 856 S.W.2d 732, 733 (Tex. 1993). It is well established that where the trial court s judgment does not specify the ground or grounds relied upon for its ruling, the summary judgment must be affirmed if any of the theories advanced is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989). When challenging such a judgment on appeal, an appellant must show that each of the independent grounds alleged in the motion is insufficient to support the summary judgment or suffer waiver of the unchallenged grounds. State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

Elements of Legal Malpractice

A legal malpractice action in Texas is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989). The elements of a legal malpractice claim are: (1) duty, (2) breach of duty, (3) the breach proximately caused the injury, and (4) resulting damages. Id. at 665. When a legal malpractice claim arises from prior litigation, the plaintiff has the burden to prove that but for the attorney s negligence, she would be entitled to judgment. MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31 (Tex.App.--Houston [14th Dist.] 1987, no writ). A lawyer is held to the standard of care that would be exercised by a reasonably prudent attorney. Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex.App.--San Antonio 1995, writ denied). The conduct of the attorney must be evaluated based on the information the attorney has at the time of the purported negligence. Cosgrove, 774 S.W.2d at 664. If an attorney makes a decision which a reasonably prudent attorney could make in the same or similar circumstance, it is not an act of negligence, even if the result is undesirable. Id. at 665. The standard is an objective exercise of professional judgment. Id.

Allegations Relating to Another Attorney

Martinez s first and third points of error relate to conduct by another attorney who represented Martinez prior to Dominguez s appointment. Conduct by another attorney is irrelevant to whether the trial court properly granted summary judgment in favor of Dominguez. Because these arguments are without merit, we overrule Points of Error One and Three.

No Breach of Duty

Dominguez moved for summary judgment on the ground that she did not breach her duty to Martinez. She supported the motion with her own affidavit in which she detailed her efforts--as well as the efforts of the caseworker and the therapist--to dissuade Martinez from signing the affidavit of relinquishment:

On January 31, 2002, I met Ms. Martinez at the courthouse. I was met at the door of the Children s Welfare Court by Ms. Martinez and she requested that she be allowed to relinquish her rights to her daughter. At no time did I nor Ms. Martinez enter the courtroom for her hearing. Ms. Martinez adamantly requested that she be given the Affidavit of Relinquishment of Parental Rights. Ms. Martinez stated this in my presence and in the presence of her caseworker, Ricardo Roberts.

The caseworker and I accompanied Ms. Martinez into a conference room and a secretary from the County Attorney s Office was called to prepare the affidavit. Ms. Martinez was joined in the conference room by her therapist, Herbert Green. Mr. Green remained in the room and spoke to Ms. Martinez for approximately forty-five minutes. During this time Mr. Green attempted to talk Ms. Martinez out of signing the Relinquishment. The affidavit was brought into the room by the secretary from the County Attorney s office and Ms. Martinez reviewed and revised the document. Ms. Martinez corrected the spelling of her daughter s name and other typographical errors.

It was during this time that I and Ricardo Roberts attempted to dissuade Ms. Martinez from signing the affidavit of Relinquishment. Ms. Martinez continued to be adamant in her desire to sign the affidavit. The Affidavit of Relinquishment was given to Ms. Martinez and I explained the document as she read it. I again advised her that the signing of the document was not necessary. I further advised Ms. Martinez that the document was final. Mr. Green and Ricardo Roberts remained in the room as Ms. Martinez signed the affidavit. Ms. Martinez signed the affidavit before two witnesses and the notary affixed her seal to the document.

Dominguez additionally directed the trial court to the finding in the bill of review action that there was no evidence of fraud, coercion, or duress sufficient to set the relinquishment aside. Her motion was also accompanied by an affidavit from Lyda Ness, who during the time in question worked as an assistant county attorney representing the Department. Ness was present at the temporary orders hearing held on August 2, 2001:

At that time, Ms. Martinez was incarcerated due to outstanding hot checks. The Children s Court had no jurisdiction over the hot checks case and that was explained to her by the Judge. The evidence was presented that the condition of the home created a present and continuing danger to the physical health of the child. My recollection from my conversation with the housing inspector was that the home was condemned or would be shortly. // It also became apparent that the mother posed an emotional risk to the child due to her unstable mental state.

Ness also rendered her opinion that Dominguez did not commit malpractice.

In her unsworn response to the motion, Martinez contended that her suit was premised on violations of the Texas Disciplinary Rules of Professional Conduct. She made the following allegations with regard to the element of breach, which we quote verbatim:

The Plaintiff s Original Petition filed September10, 2002 has extremely expressed to the Court and Defendant Attorney Corine Dominguez with her Attorney Bernardo Gonzalez the Facts and Concerns of this suit. Plaintiff is questioning Defendants Professional Responsibilities and Ethics 9 under The State Bar of Texas and Malpractice Considerations with TX Rules of Professional Conduct Rule 1.5 by acting reckless and conscious ignorance of the Law, as a result of, failure to 1.25:2 Advise Client of Legal Consequences of Act TRCP Rule 2.01 with in the Code of Professional in responsibility to serve society. The Law within the scope of the United States Constitution of The Fourteenth Amendment - Right of Due Process and Equal Protection of the Law; The First Amendment - Protecting Plaintiff s Individuals reputation yet Encouraging Free and Open Communication from Freedom of Speech and Free Press.

Defects in Substance when Defendants practicing attorney skills with in a False Report Penalty TFC 261.107 (Lacking Factual Foundation) Hear Say Rule 801(c) 803 FRE not admissible in court from Texas Department of Protective & Regulatory Services CPS Specialist Herlinda Rivas who based her determination and went beyond her individual capacity under HEARSAY: TFL 104.006 (Hear Say Statement of Child Abuse Victim) that in findings, inferences, conclusion, and decisions of CPS Specialist Herlinda Rivas had COAX AND INFLUENCE child, M. Christina Martinez-Mefale into saying mother, the plaintiff Mother Slapped me and has Mental Problems.

In addition, discovery facts are to conclude from November 5, 2003 in the 65th Judicial District Court of El Paso County, State of Texas on the Bill of Review Cause No. 2002-2676 prior Cause No. 20012CM5250 Defendant Attorney Cornie Dominguez was on the stand and committed Perjury by lying, that plaintiff on the day of January 31, 2002 was clam [sic] and composed while plaintiff was an emotional wreck getting ready to sign the Relinquishment of Parental Rights feeling duress, (TFC 15.211, Rule 3.29 Not with standing distress) pressured, and undue influence by all the parties involved with Silent Power of a Strong Mind Over a Weak One and fear through-out the ordeal since the removal on July 24, 2001 -- January 31, 2002 ; Texas Department of Protective & Regulatory Services -- Social Workers; Attorneys; Counselors/Therapist.

Damages under Rule 4.08, which Social Worker Ricardo Roberts and Defendant approved with out including the biological mother, the plaintiff, Under the Benefit of the Bargain. The defendant had been given admissible evidence Rule of Evidence 103, 104(q) 401, 601 relevant evidence from doctors, school administration, (law of Damages, Witness) witnesses, which she did not present to the court, social workers, and/or lawyers in this case. On Family Service Plain Case #24344136 Rule 3.03 again, False Report Penalty TFC 261.107 (Lacking Factual Foundation Rule 3.03 Post false evidence (7) accusation plaintiff the parent lost control of anger & this resulted in Injury and Parent actions have resulted in the risk of Serious Harm to the Child.

Other than a general assertion that Dominguez was acting reckless and conscious ignorance of the Law, as a result of, failure to 1.25:2 Advise Client of Legal Consequences of Act TRCP Rule 2.01 with in the Code of Professional in responsibility to serve society, Martinez did not dispute that Dominguez cautioned her that the affidavit of relinquishment was final. // She has not offered the affidavit of anyone else, although there were several others present. Her complaints of malfeasance apparently involve challenges to the admissibility of the evidence the Department was likely to offer had there been a trial. She does not dispute that there was no trial, nor does she state that she demanded one. She next accuses Dominguez of perjury by lying in that Dominguez described Martinez as calm and composed when she was in reality an emotional wreck and feeling fear and pressure. She does not dispute, much less mention, the findings to the contrary by the judge in the bill of review proceeding, which we have affirmed.

Consequently, Dominguez has conclusively negated this element of Martinez s claim and established her entitlement to summary judgment. Martinez s summary judgment response does not establish any genuine issue of material fact as to whether Dominguez failed to properly advise her of the consequences of signing the affidavit of relinquishment or that Dominguez otherwise breached a duty owed. Points of Error Two, Four, and Five are overruled. The judgment of the trial court is affirmed.

August 12, 2004

ANN CRAWFORD McCLURE, Justice

Before Panel No. 5

Barajas, C.J., McClure, and Andell, JJ.

Andell, C.J. (sitting by assignment)