Grace Jennings v. Zimmerman, Axelrad, Meyer, Stern & Wise, P.C.--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00544-CV

Grace JENNINGS,

Appellant

v.

ZIMMERMAN, AXELRAD, MEYER, STERN & WISE, P.C.,

Appellee

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2002-CI-15502

Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: August 17, 2005

AFFIRMED

Grace Jennings appeals the summary judgment rendered in favor of Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. She raises two issues on appeal: (1) Did the trial court err in granting the Law Firm s no evidence motion for summary judgment; and (2) did the trial court err in granting the Law Firm s traditional motion for summary judgment. We affirm the summary judgment of the trial court.

BACKGROUND

Grace Jennings brought an action for legal malpractice against the Law Firm, alleging that they mishandled her wrongful death suit against her deceased husband s employer, Praxair, Inc. Grace s husband, David Jennings, died on or about October 6, 1997, in an apparent on-the-job accident while he was working for Praxair. Other than that he was found hanging from a job-site structure he had climbed, strangled by a rope he was using to secure a flashlight to his belt, there were no witnesses regarding the manner, events, and timing of David s death.

Following David s accident, Grace was contacted by Bobby Axelrad, a partner in the law firm Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. (the Law Firm ). According to Grace, Axelrad came to her home, talked to her about the case, and made assurances to her concerning his firm s competence to handle the case. Thereafter, Grace executed a contingency fee agreement with the Law Firm for its services.

In the underlying wrongful death suit, Grace alleged that her husband s employer, Praxair, was guilty of gross negligence and that such gross negligence was a proximate cause of her husband s death. // Grace s suit eventually was concluded by the entry of a summary judgment in favor of Praxair.

In her suit against the Law Firm, Grace alleges that the Law Firm was negligent, breached its fiduciary duties, and committed legal malpractice in their taking and handling a wrongful death case on her behalf as the surviving spouse of her deceased husband. She further alleges that the Law Firm engaged in unconscionable conduct and violated 17.46(b)(24) of the Texas Deceptive Trade Practices/Consumer Protection Act. On May 26, 2004, the trial court rendered summary judgment in favor of the Law Firm. This appeal followed.

DISCUSSION

A. Standard of Review

The Law Firm s motion for summary judgment was argued under both the traditional and no-evidence standards. We review the trial court s granting of a traditional summary judgment de novo. Reynoso v. Huff, 21 S.W.3d 510, 512 (Tex. App. San Antonio 2000, no pet.). Accordingly, we will uphold a summary judgment only if the summary judgment record establishes that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See TEX. R. CIV. P. 166a(c); American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In deciding whether the summary judgment record establishes the absence of a genuine issue of material fact, we view as true all evidence favorable to the nonmovant and indulge every reasonable inference, and resolve all doubts in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

In reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard as in reviewing a directed verdict. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App. San Antonio 1998, pet. denied). A no-evidence summary judgment asserts there is no evidence of one or more essential elements of claims upon which the nonmoving party would have the burden of proof at trial. See TEX. R. CIV. P. 166a(i). Accordingly, a no-evidence motion for summary judgment only requires the nonmovant to present enough evidence to be entitled to a trial. See Lampasas v. Spring Ctr., Inc., 988 S.W.2d 428, 432 (Tex. App. Houston [14th Dist.] 1999, no pet.). A no-evidence summary judgment is improperly granted if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Id. Less than a scintilla of evidence exists when the evidence is so weak as to do no more than create a mere surmise or suspicion of a fact. Id. The trial court must grant the motion for summary judgment if the nonmovant is unable to satisfy its burden. Id.

B. Fracturing a Legal Malpractice Claim

Though Grace sued the Law Firm under several legal theories, including breach of fiduciary duty and violation of the Texas Deceptive Trade Practices Act, Grace s claims are properly categorized as a single legal malpractice claim. Texas law does not permit a plaintiff to fracture a claim that sounds only in negligence into other claims. See Aiken v. Hancock, 115 S.W.3d 26, 28-29 (Tex. App. San Antonio 2003, pet. denied); Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App. Houston [1st Dist.] 1998, pet. denied). Here, because the gist of Grace s complaint is that the Law Firm failed to exercise the degree of care, skill, or diligence that attorneys of ordinary skill and knowledge commonly possess, then that complaint should be pursued as a legal malpractice claim. //

B. Summary Judgment on a Legal Malpractice Claim

In Texas, legal malpractice actions are based on negligence. Streber v. Hunter, 221 F.3d 701, 722 (5th Cir. 2000); Cosgrove v. Grimes, 774 S.W.2d 662, 664-65 (Tex.1989). Therefore, to successfully prosecute her claim, Grace must prove: (1) the Law Firm owed her a duty, (2) the Law Firm breached that duty, (3) the breach proximately caused injury to Grace, and (4) damages resulted. Id. Regarding the second element, an attorney is held to the standard of care that would be exercised by a reasonably prudent attorney, and expert testimony is required to establish that standard of skill. See Longaker v. Evans, 32 S.W.3d 725, 735 (Tex. App. San Antonio 2000, pet. withdrawn); Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex. App. San Antonio 1995, writ denied). Here, Grace presented no evidence from a qualified expert that any acts or omissions of the Law Firm fell below the applicable standard of care or caused Grace any damages in its handling of her wrongful death suit against Praxair. Because there is no competent evidence that the Law Firm s conduct violated the applicable standard of care, the trial court did not err in granting the Law Firm s no-evidence motion for summary judgment.

Further, even assuming the Law Firm breached its duty to Grace as attorneys, in order to avoid summary judgment Grace must still provide evidence that she suffered injury as a consequence of these alleged breaches. In this regard, Grace must prove a suit within a suit she must demonstrate that but for the attorney s negligence, she would have recovered a collectible judgment. Ballesteros v. Jones, 985 S.W.2d 485, 489 (Tex. App. San Antonio 1998, pet. denied); Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex. App. Houston [1st Dist.] 1974, writ ref d n.r.e.). Here, in both her petition and response, Grace failed to present any evidence to the trial court that she would have prevailed but for the Law Firm s negligence in its handling of the suit. Moreover, Grace s summary judgment evidence fails to substantiate the amount of damages alleged to have been incurred due to the Law Firm s acts or omissions. // Because there is no evidence of one or more essential elements Grace must prove in order to recover upon the alleged causes of action, the trial court did not err in granting the Law Firm s no-evidence motion for summary judgment. Accordingly, we overrule Grace s first issue on appeal. CONCLUSION

We affirm the summary judgment of the trial court.

Karen Angelini, Justice