Opinion
No. 10-03-00337-CV
Opinion delivered and filed January 5, 2005.
Appeal from the 116th District Court, Dallas County, Texas, Trial Court # 02-09480-F.
Affirmed.
Michael D. Napoli and Frederick Linton Medlin, Kirkpatrick Lockhart, L.L.P., Dallas, TX, for Appellant/Relator.
Alison H. Moore and Wade C. Crosnoe, Thompson, Coe, Cousins Irons, L.L.P., Dallas, TX, for Appellee/Respondent.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA, (Chief Justice GRAY dissenting).
MEMORANDUM OPINION
This is a legal malpractice action in a divorce and child custody case. The trial judge granted a traditional motion for summary judgment in favor of Koons, Fuller, Vanden, Eykel Robertson, P.C. ("Fuller"). Randall C. Boyd, Fuller's client, appeals in one issue: Is there an issue of fact as to whether Fuller's negligence was a substantial cause of Boyd's divorce not having been finalized before Boyd received certain stock and options? We will overrule Boyd's issue and affirm the summary judgment.
BACKGROUND
A Mediated Settlement Agreement ("MSA") was entered in May 1997. Boyd's wife Ginger and their daughter Ashley (through her attorney) contested the MSA in August 1997 because: (1) it did not comply with the Family Code (requirement to name the county of residence or the conservator with exclusive right to establish primary residence); (2) Boyd did not disclose a bonus that was already due in the amount of $230,000; and (3) the MSA was not in Ashley's best interest. Boyd filed a motion to enforce the MSA. A hearing was held on the motion to enforce in September 1998. In April 1999, the motion to enforce was denied because the MSA did not consider "the bonus money which might have affected the allocation decisions made by the Petitioner and is unenforceable with respect to the visitation and access issues." However, in July 1998, Boyd had received a stock and options bonus worth $8,000,000. A divorce decree was entered in the fall of 1999, which considered the $8,000,000 bonus received in July 1998 as part of the community estate and divided the bonus with Ginger.
Boyd sued Fuller for legal malpractice claiming Fuller: (1) failed to investigate the extent of the community estate; (2) advised Boyd that he did not have to disclose the $230,000 bonus already due; and (3) drafted an MSA that was not compliant with the Family Code. He argues that these negligent actions delayed the final decree and allowed the July 1998 bonus worth $8,000,000 to become community property.
Fuller filed a traditional motion for summary judgment challenging the causation element of legal malpractice. The motion was granted.
ARGUMENTS
Boyd argues that Fuller's negligence caused the delay in the finalization of the divorce. He argues that without these negligent acts, there would have been no grounds to challenge the MSA. He asserts that his expert raised a fact issue as to causation with testimony that there would have been "no basis on which to move to set aside the MSA," and "[w]ithout a basis for moving to set aside the [MSA], an attorney would be highly unlikely to file such a motion and even less likely to continue to pursue it as late as July of 1998."
Fuller argues that the delay was attributable to: (1) the court's delay in having a hearing on the motion to enforce; (2) Boyd and Ginger could never have agreed on enforceable visitation and access provisions; and (3) Boyd's expert testimony was purely speculative and does not raise a fact issue on causation. The lawyers for Ginger and Ashley testified that they would have challenged the MSA regardless of Fuller's negligence because Ashley "violently" opposed the visitation and access provisions. Ashley's attorney further stated that he would have challenged the agreement on whatever reasonable and ethical grounds he could have come up with, including a family law court's ability to set aside agreements that are not in the child's best interest. He testified that, if this approach failed, he would have sought a modification. Ginger's attorney testified that: "I would have pursued this claim on behalf of Mrs. Boyd so long as I had a client and some judge told me not to — had not told me to go home, that I didn't have anything to do; in other words, get out of my courtroom. Whether she would've come in with a decree based on this MSA, or just the MSA, I would've attacked it." Fuller's expert testified that the "primary factor in the harm that Mr. Boyd suffered was the judge's failure to hold a hearing on the motion for enforcement."
SUMMARY JUDGMENT
Standard of Review
We review the decision to grant or deny a summary-judgment motion de novo. See Rucker v. Bank One Texas, N.A., 36 S.W.3d 649, 653 (Tex.App.-Waco 2000, pet. denied). The standards for reviewing a traditional motion for summary judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing Co., 54 S.W.3d 401, 413 (Tex.App.-Waco 2001, pet. denied). The reviewing court must accept all evidence favorable to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be indulged in favor of the non-movant and all doubts resolved in its favor. American Tobacco, 951 S.W.2d at 425; Ash, 54 S.W.3d at 413. If the movant for summary judgment is a defendant, then the movant must negate at least one of the elements of the non-movant's cause of action, or, alternatively, the movant must conclusively establish each element of an affirmative defense. Clifton v. Hopkins, 107 S.W.3d 755, 757 (Tex.App.-Waco 2003, pet. denied). The non-movant need not respond to the motion for summary judgment unless the movant meets its burden of proof. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999). But if the movant meets its burden of proof, the non-movant must present summary-judgment evidence to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).
Legal Malpractice
To recover on a claim for legal malpractice, the plaintiff must establish: (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff's injuries, and (4) damages occurred. Peeler v. Hughes Luce, 909 S.W.2d 494, 496 (Tex. 1995). The proximate cause element of a legal malpractice claim requires proof that the plaintiff would have prevailed in the underlying action but for the attorney's negligence. Schlager v. Clements, 939 S.W.2d 183, 186-87 (Tex.App.-Houston [14th Dist.] 1996, no writ).
Causation
A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the evidence. Ridenour v. Herrington, 47 S.W.3d 117, 120 (Tex.App.-Waco 2001, pet. denied) (citing Triton Oil Gas Corp. v. Marine Contractors Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982)); accord Appleton v. Appleton, 76 S.W.3d 78, 83 (Tex.App.-Houston [14th Dist.] 2002, no pet.). We conclude that the record conclusively establishes that the negligent acts of Fuller did not cause the $8,000,000 bonus to become community property. See Ridenour, 47 S.W.3d at 120.
We overrule Boyd's single issue.
CONCLUSION
Having overruled Boyd's single issue, we affirm the summary judgment.
DISSENTING OPINION
It only takes some evidence in support of the non-movant's elements to defeat a motion for summary judgment. The cause for the delay in the rendition of the divorce decree is the central issue in this appeal. Boyd's evidence is that if he had been properly advised by Koons, Fuller the divorce decree would have been rendered and entered more quickly, thus avoiding the community property character from attaching to an $8,000,000 bonus he received. Boyd's expert explained that the delay was because Koons, Fuller was negligent in the advice it gave Boyd, thus leaving the mediated settlement agreement open to attack.
It appears there is a fact issue regarding whether the mediated settlement agreement was open to a viable attack by Boyd's wife, whether that viable attack was left open by Koons, Fuller's negligent advice, and whether that viable attack, when capitalized upon by Boyd's wife to set aside the mediated settlement agreement, resulted in the delay in obtaining a judgment.
This kind of factual dispute is exactly what juries are for — and why this case should not be resolved by a summary proceeding. The trial court erred when it granted the motion for summary judgment. Boyd has been denied the opportunity to prove his case before a jury. I dissent.