Opinion
CIVIL ACTION NO. SA-97-CA-0320 NN
August 16, 2001
ORDER ON PENDING SUMMARY JUDGMENT MOTIONS
A. Factual Procedural History
This is a diversity action for legal malpractice. A detailed discussion of the facts relevant to this dispute is not necessary as I assume that the parties are thoroughly familiar with the record in this case. In fact, the parties as part of their agreed pre-trial order have already stipulated to a significant number of facts. I have thus relied on the parties' statement of undisputed facts for purposes of analyzing the summary judgment motions pending in this case.
See Agreed Pre-Trial Order, received March 15, 1999, at 4-10, Stipulation of Undisputed Facts, ¶ 5(A-UU).
Byway of summary, plaintiff, B.J. Hall("Hall") alleges in this suit that the defendant, the law firm of White, Getgey Meyer, Co., L.P.A. ("White, Getgey"), was negligent in the course of providing legal representation to him in a prior state court lawsuit styled: B.J. Hall v. Hartford Life and Accident Insurance Company et al., Cause no. 93-CI-09586 in the 131 st District Court, in Bexar County, Texas. White, Getgey is an Ohio firm, and two of its attorneys, David Kamp and Barbara Florez, were admitted pro hac vice for purposes of representing Hall in the state court lawsuit.
In the underlying state court lawsuit, Hall sought benefit payments from a long term disability policy issued by The Hartford Life Accident Insurance Company ("Hartford"), claiming that an automobile accident occurring on May 7, 1990 rendered him "totally disabled" as the term is defined under the policy. The crux of Hall's malpractice claim is that White, Getgey failed to timely supplement his answers to the discovery requests propounded by Hartford relating to the designation and disclosure of his medical expert witnesses as required by the Texas Rules of Civil Procedure in effect at the time. On the date of trial, June 6, 1995, Hartford filed a motion to strike Hall's expert medical witnesses. The state court judge granted Hartford's motion and Hall's medical expert witnesses were stricken from the record. Due to this development, and after having selected the jury, White, Getgey lawyers David Kamp and Barbara Florez advised Hall to settle the lawsuit because the lack of expert medical testimony was fatal to his claim. Hall, who had originally sought over one million dollars in disability benefit payments under the policy, settled for the nominal amount of $20,000.
Agreed Pie-Trial Order, Stipulation of Undisputed Facts, at ¶ 5(U).
Id. at ¶ 5(V).
Id. at ¶ 5(W).
Id. at ¶ 5(T) (W).
On September 13, 1999, I entered an Order granting summary judgment for White, Getgey and dismissing this case with prejudice on the grounds that Hall failed to produce material facts demonstrating a genuine issue for trial on his claim that he was "totally disabled" as the term was defined under the Hartford's insurance policy. On February 20, 2001, the Fifth Circuit reversed my summary judgment ruling and remanded the case for further proceedings consistent with its decision.
Docket Entry No. 95.
B.J. Hall v. White, Getgey, Meyer Co., LPA. No. 99-5 1002, unpublished opinion filed February 20, 2001.
Subsequent to receiving the mandate from the Fifth Circuit, I set this matter for a pre-trial conference on April 11, 2001. Immediately thereafter, I entered an Order setting the case for trial on August 20, 2001 and giving the parties until June 29, 2001 to reassert any legal issue previously raised but not ruled upon by the court and/or argue new summary judgment issues. In that regard, White, Getgey, on May 11, 2001, re-urged its motion for summary judgment previously filed on January 11, 1999 on three grounds: (1) that it is entitled to submit to the jury whether Harvill E. Weller Jr., Hall's former attorney in the underlying state court lawsuit, was a "settling person" pursuant to the TEX. Civ. PRAC. REM. CODE §§ 33.012(b) and 33.014; (2) that any judgment awarded to Hall should be offset by Weller's released legal fee, and (3) that any judgment awarded by the jury in this lawsuit, should be offset by the contractual offsets available under the terms of the Hartford policy. In addition, White, Getgey, is seeking summary judgment on plaintiffs malpractice claim on the ground that it owed no duty to Hall prior to its formal substitution in the case as attorney of record. Because there was no duty to breach, White, Getgey argues that Hall's malpractice claim must fail, along with his claim for breach of a fiduciary duty.
Docket Entry No. 101.
Docket Entry No. 102.
Docket Entry No. 107, at 2; and Docket Entry No. 77, at 9-13.
Id . atl3-16.
Further, in anticipation of the evidence that Hall may present at trial, White, Getgey seeks to exclude the deposition testimony of one of its attorneys, David Kamp, concerning his opinion on the monetary value of Hall's state court lawsuit against Hartford, as such statements would not have been admissible in the underlying case.
Id . at 16-18.
Hall, in turn, has filed a motion for partial summary judgment on May 11, 2001, arguing that White, Getgey is now precluded from asserting the affirmative defense for contractual set-offs and credits as pleaded in paragraph XI of its first amended answer because this defense was not raised in the underlying state court lawsuit.
Docket Entry No. 105.
After having considered the pleadings, the legal arguments made by the parties in their respective summary judgment motions and responses, the entire summary judgment record before me, and the applicable law, I hereby enter the following rulings:
Hall's partial summary judgment motion is granted because White, Getgey has failed to meet its burden of demonstrating how it is entitled to raise an affirmative defense not previously raised in the underlying state court proceedings. White, Getgey' s motion for summary judgment on that issue is denied.
White, Getgey's summary judgment motion on plaintiff's malpractice and breach of fiduciary duty claims is hereby denied. Hall has presented sufficient genuine issues of material fact establishing that an attorney-client relationship between Hall and White, Getgey existed well before the state court formally granted pro hac vice status to White, Getgey's attorneys in the underlying lawsuit.
White, Getgey's summary judgment motion is denied with respect to its claim for proportionate contribution against Weller. Pursuant to District Court Judge Biery's Order entered July 24, 1997, Weller is a "settling person" under Texas law and as such White, Getgey has no right of contribution against him; and
White, Getgey's motion for summary judgment seeking to exclude from trial the deposition testimony of David Kamp concerning his opinion on the value of the underlying lawsuit is denied. White, Getgey has not shown how this is an issue ripe for a summary judgment ruling under FED.R.CIV.P. 56. Since this issue has been brought by White, Getgey in paragraph 20 of its motion in limine, I will address it when entering my rulings on that motion.
Docket Entry No. 112, at 5.
B. Jurisdiction
This court has original jurisdiction pursuant to 28 U.S.C. § 1332 (diversity).C. Summary Judgment Standard
The applicable standard in deciding a motion for summary judgment is set forth in FED. R. Civ. P. 56, which provides in pertinent part as follows:
The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
FED.R.CIV.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Mere allegations of a factual dispute between the parties will not defeat an otherwise proper motion for summary judgment. Rule 56 requires that there be no genuine issue of material fact. In an employment discrimination case such as this one, the court focuses on whether a genuine issue of material fact exists as to whether the defendant intentionally discriminated against the plaintiff. A fact is material if it might affect the outcome of the lawsuit under the governing law. A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Therefore, summary judgment is proper if, under governing laws, there is only one reasonable conclusion as to the verdict; if reasonable finders of fact could resolve a factual issue in favor of either party, summary judgment should not be granted.
Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 247 (1986).
See La Pierre v. Benson Nissan, Inc . 86 F.3d 444, 447 (5th Cir. 1996) (citing Armstrong v. City of Dallas, 997 F.2d 62, 65-66 (5th Cir. 1993)).
Anderson, 477 U.S. at 248; Thomas v. LTV Corp., 39 F.3d 611, 616 (5th Cir. 1994).
Id.; Wise v. E.I. DuPont De Nemours Co., 58 F.3d 193, 195 (5th Cir. 1995).
Anderson, 477 U.S. at 249.
The movant on a summary judgment motion bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record which it alleges demonstrate the absence of a genuine issue of material fact. To satisfy this burden, the movant must either submit evidentiary documents that negate the existence of some material element of the nonmoving party's claim or defense, or if the crucial issue is one for which the nonmoving party will bear the burden of proof at trial, merely point out that the evidentiary documents in the record contain insufficient proof concerning an essential element of the nonmoving party's claim or defense. Regardless of whether the movant accompanies its summary judgment motion with affidavits or other evidentiary materials, the motion must be granted if the evidence before the court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied. Once the movant has carried that burden, the burden then shifts to the party opposing the motion to present affirmative evidence in order to defeat a properly supported motion for summary judgment.
Celotex Corp., 477 U.S. at 323.
Edwards v. AGuillard, 482 U.S. 578, 595 n. 16 (1987); and Celotex Corp., 477 U.S. at 325.
Id .
Anderson, 477 U.S. at 257.
The nonmoving party cannot discharge this burden by referring to the mere allegations or denials of the nonmoving party's pleadings. Rather, the nonmovant must, either by submitting opposing evidentiary documents or by referring to evidentiary documents already in the record, set out specific facts showing the existence of a genuine issue for trial. The court will look at the record in the light most favorable to the nonmovant drawing all inferences most favorable to that party. Nevertheless, "conclusory allegations, speculation, and unsubstantiated assertions are inadequate to satisfy the nonmovant's burden." Summary judgment is mandated if the nonmovant fails to make a showing sufficient to establish the existence of an element essential to her case on which she bears the burden of proof at trial.
FED R.Civ.P, 56(e); Anderson, 477 U.S. at 250; State of Texas v. Thompson, 70 F.3d 390, 393 (5th Cir. 1995).
Celotex Corp., 477 U.S. at 324; Fields v. City of South Houston, Texas . 922 F.2d 1183, 1187 (5th Cir. 1991); Neff v. American Dairy Oueen Corp., 58 F.3d 1063, 1065 (5th Cir. 1995), cert. denied 516 U.S. 1045 (1996).
Hibernia Nat'l Bank v. Carner 997 F.2d 94, 97 (5th Cir. 1993). See also Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994) (holding that a noninovant cannot discharge her burden with doubt as to the material facts, by conclusory allegations, unsubstantiated assertions, or by only a scintilla of evidence).
See Douglass v. United Services Auto. Ass'n 79 F.3d 1415, 1429 (5th Cir. 1996) (citing Forsyth v. Barr, 19 F.3d 1527, 1533 (5th Cir.), cert. denied, 513 U.S. 871 (1994)).
Celotex Corp . 477 U.S. at 322 ("In such situation, there can be "no genuine issue as to any material fact,' since a complete failure of the proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial."), Id . at 323.
Accordingly, summary judgment motions permit the court to resolve lawsuits without the necessity of trials if there is no genuine dispute as to any material facts and the moving party is entitled to judgment as a matter of law.
See Fields 922 F.2d at 1187.
D. Analysis
Before addressing the parties' respective summary judgment motions, a brief discussion on the essential elements of Hall's attorney malpractice claim against White, Getgey is warranted. In Texas, a legal malpractice claim "sounds in tort and is governed by negligence principles." In order to win a legal malpractice action, a plaintiff must show that "there is a duty owed to him by the defendant, a breach of that duty, that the breach proximately caused the plaintiff injury and that damages occurred." Further, to prove a claim for legal malpractice arising from prior litigation, a plaintiff has the burden to show that "but for" the attorney's negligence, he would have been entitled to judgment and further show what amount would have been collectible had the judgment been recovered. This "suit within a suit" requirement is necessarily a component of the plaintiffs burden on cause in fact. In this case, Hall must show that "but for" the negligence of White, Getgey lawyers, he would have been able to obtain a collectible judgment against Hartford.1. Has the affirmative defense to a right of set-offs been waived in this case?
Hall has moved for partial summary judgment with respect to White, Getgey's affirmative defense to various set-offs under the Hartford's insurance policy. It is undisputed that as an affirmative defense, the insurance company, in this case Hartford, had the burden of proving that defense in the underlying state court case. Indeed, White, Getgey has recognized that a right to setoffs is an affirmative defense by pleading it as such in its first amended answer filed in this lawsuit. Because Hartford failed to affirmatively plead this defense in the underlying lawsuit, as shown by its verified second amended answer, Hall contends that White, Getgey is precluded from doing so in this case. I agree.
The defense, as pleaded in paragraph XI of White, Getgey's first amended answer, states:
By way of further answer, if such should be necessary, Defendant alleges that the damages Plaintiff would be entitled to recover by this action, assuming a favorable finding by the fher of fact, which Defendant still wholly denies, would be limited to such benefits as a Plaintiff would be entitled to receive under a policy for long term disability issued by Hartford Accident and Life Insurance Company under group insurance policy GLT-32353, effective January 1, 1990 and issued by Hartford to Incarnate Word Health Services, Inc. and that such benefits would be reduced by other income benefits as defined by the policy including payments made to the Plaintiff by Incarnate Word Health Services, beginning June 1, 1990 and ending May 1991, Social Security disability benefits as determined by the Social Security Administration, beginning on January 15, 1991 and continuing until Plaintiffs age 65 in the amount of at least 1, 243.00 per month; disability benefits under AICPA in the amount of $1,500.00 per month, beginning on June 1, 1991 and continuing until Plaintiffs age 65; benefits received by Plaintiff from New England Mutual Life Insurance Company in the amount of $533,650.00; and payments actually made by Hartford to Plaintiff in settlement of the underlying action in the amount of at least $20,000.00.
Docket Entry No. 57.
Docket Entry Nos. 107 110.
Docket Entry No. 57, ¶ XI.
Under Texas law, the insurer bears the burden of establishing that a policy limitation and/or exclusion constitutes avoidance or an affirmative defense to coverage. According to article 21.58 of the Texas Insurance Code, Hartford was required to affirmatively plead the defense of set-offs in accordance with Texas Rules of Civil Procedure, or otherwise it would be waived. Article 21.58(b). entitled "Burden of Proof and Pleading" specifically provides that:
See Sentry Insurance v. R.J. Weber Co., 2 F.3d 554, 556 (5th Cir. 1993) (citing to art. 21.58 of the TEX. INS. CODE).
[i]n any suit to recover under a contract of insurance, the insurer has the burden of proof as to any avoidance or affirmative defense that must be affirmatively pleaded under the Texas Rules of Civil Procedure. Any language of exclusion in the policy and any exception to coverage claimed by the insurer constitutes an avoidance or an affirmative defense.
TEX. INS. CODE ANN. art 21.58 (Vernon 2001).
Further, Texas Rule of Civil Procedure 94 requires that any matter constituting an avoidance or affirmative defense, such as a right to set-offs, be specifically pleaded. The rationale behind TEX. R. Civ. P. 94 and TEX. INS. CODE art. 21.58, as interpreted by Texas courts, is that the insured is entitled to know the specific grounds upon which an insurer will attempt to avoid payment of the policy prior to trial.
See Brown v. American Transfer and Storage Co., 601 S.W.2d 931, 936 (Tex. 1980) (holding that issue whether defendant was entitled to offset by reason of insurance payment was waived as it was it was not affirmatively pleaded as required by Tex. R. Civ. P. 94).
Kabla v. Travelers Insurance Co., 482 S.W.2d 928 (Civ.App. — Houston [14th Dist.] 1972, writ ref'd n.r.e.) (failure to plead lack of coverage on behalf of an omnibus insured resulted in a waiver of that defense); and Dairyland County Mutual Insurance Co., of Texas v. Roman, 498 S.W.2d 154, 158 (Tex. 1973) (failure by the insurance company to specifically plead breach of the written notice of condition under the policy precluded the trial court from submitting the defense to the jury).
A review of Hartford's latest answer in the state court proceeding, filed on or about April 26, 1995, reveals that although it affirmatively pleaded other defenses, it failed to affirmatively plead the defense to a right of set-offs. For instance, according to Hartford's verified second amended answer, attached as Exhibit A-1 to Hall's motion for partial summary judgment, Hartford cited to TEX. R. CIV. P. 94 and specifically pleaded policy limitation and exclusions pertaining to: (a) the termination date of insurance; (b) pre-existing condition; (c) notice of claim; and (d) written proof of loss. Hartford also affirmatively pleaded the defenses of ERISA preemption, comparative bad faith by Hall, denial of Hall's bad faith allegations against Hartford, its right to make reasonable investigations of all claims, limitations on exemplary damages, and that Hall's claims for exemplary damages violate the U.S. Constitution and Texas State Constitution. There is no evidence that Hartford attempted to amend its answer to include the affirmative defense to a right of set-offs prior to the trial date of June 6, 1995.
Docket Entry 105, Exhibit A-1, at 2-4.
White, Getgey argues that because the case settled after the jury was selected, no one knows whether Hartford would have attempted to amend its answer had the lawsuit proceeded to trial. This, however, is not a persuasive argument as the case settled on the date of trial and at that time Hartford still had not amended its answer to affirmatively plead the defense. Although as White, Getgey correctly points out, TEX. R. CIV. P. 63 66 allow a party to request leave of court to amend its pleadings within seven days of the date of trial or during trial, such leave is only granted if the amendment would not operate as an undue surprise to the opposing party. A policy limitation such as the right to contractual set-offs would more than likely operate as an undue surprise to Hall if asserted at or during trial. I cannot agree with White, Getgey that such an amendment would have been allowed by the state court pursuant to these Texas Rules of Civil Procedure. Also, White, Getgey has failed to provide any case or statutory authority allowing a party (much less an insurance company asserting a policy limitation or exclusion under art. 21.58 of the Insurance Code) to amend its answer to add an affirmative defense under TEX. R. CIV. P. 63 66. Hartford's failure to affirmatively plead a right to set-offs resulting from payment to Hall from other sources resulted in a waiver of that right. Accordingly, because White, Getgey stands in the shoes of Hartford for purposes of assessing the measure of damages that Hall would have been entitled in the underlying lawsuit, if successful, White, Getgey is precluded from asserting the defense of a right to set-offs in this case.
The cases from other jurisdictions cited by White, Getgey, in footnote lof its motion for summary judgment, are not applicable to this case. Docket Entry No. 107, at 4 fn. 1.
See arguments made by Hall in his motion for partial summary judgment motion, docket entry no. 105, at 6-7and his response to White, Getgey's motion for summary judgment, docket entry no. 109, at 3-5 (citime Cosgrove v. Grimes).
White, Getgey relies on a recent unpublished decision issued by the Fourteenth Court of Appeals in Houston, in the case of Swinehart v. Stubbeman, et al., No. 14-99-00717-CV, 2001 WI. 619562 (Tex.App.— Houston [14th Dist.] June 7, 2001), petition for review filed June 27, 2001. Specifically, White, Getgey relies on the court's statement that "an attorney's defense to a legal malpractice claim should not rest on the underlying defendant's handling of its own defense." The court, however, did not cite to any legal authority in support of this statement. Further, a review of the Swinehart opinion reveals some stark factual differences to the case at hand.
The opinion cited by the parties, Swinehart v. Stubbeman, McRae, Sealy, Laughlin Browder, No, 14-99-00717-CV, 2001 WL 224945 (Tex.App. Houston [14th Dist.] Mar. 8, 2001), was withdrawn and replaced with the one cited in this Order.
2001 WL 619562, at 5.
The plaintiff in Swinehart brought a malpractice action against his former attorneys in connection with the legal representation plaintiff received as a former client in a state court lawsuit against an oil company and during the oil company's bankruptcy proceedings. The court of appeals affirmed the trial court's decision to allow the defendants to assert an affirmative defense not pleaded in the underlying action. The court stated that the affirmative defense at issue, namely the statute of frauds as a bar to the enforcement of a contract entered with the oil company, was not an issue in the underlying suit, which merely sought recovery of an ownership interest in the disputed oil leases through the imposition of a constructive trust. Significantly, the court further stated that the plaintiff never asserted a claim against the oil company which would have required the company to plead the statute of frauds as an affirmative defense.
Id .
In contrast to the instant case, Hall asserted a claim for disability insurance benefits against Hartford which would have required Hartford to plead any right to set-offs as an affirmative defense. Hartford, however, chose not to plead such defense. Further, as Hall argues, the defendant lawyers in Swinehart were not limited by a specific Texas statute such as art. 21.58(b) of the Insurance Code. This statute mandates that affirmative defenses be specifically pleaded on penalty of waiver for all claims involving insurance litigation. The Fifth Circuit has recognized that Texas law requires an insurer to affirmatively plead defenses on penalty of waiver. Because Swinehart was not an insurance coverage case, it is of little relevance to the case at hand.
Sentry, 2 F.3d at 556.
For these reasons, I find that Hartford waived its affirmative defense to a right of contractual set-offs in the underlying state court lawsuit. A jury award would not have been reduced by any setoffs because art. 21.58 of the Texas Insurance Code would have precluded the state court from allowing such set-offs in the underlying case. In this case, Hall's measure of damages is the amount he would have received from the jury if his White, Getgey lawyers had properly prosecuted his claim, considering all the applicable affirmative defenses Hartford pleaded in the underlying lawsuit and nothing more. The issue of whether Hartford was entitled to any contractual set-offs is now moot by Hartford's failure to comply with art. 21.58(b) of the Texas Insurance Code. Hall's cross motion for partial summary judgment on this issue is thus GRANTED and paragraph XI of White, Getgey's first amended answer is hereby STRICKEN from the record.
See Docket Entry No. 105, Exhibit B, Texas Pattern Jury Charge 84.2 applicable to attorney malpractice cases. According to this charge, if the attorney malpractice claim involves failure to prosecute a suit in which a damages question would have been proper, the following instruction should accompany the damages question: "You shall award the sum, if any, that [plaintiff, in this case Hall] would have recovered and collected if his original suit against [defendant, in this case Hartford] had been properly prosecuted." Id .(case citations omitted).
I further note that because of this ruling, White, Getgey's objection to the expert testimony of John Ashmore concerning the nature of the policy issued by New England Mutual Life Insurance Company ("New England"), as an individual or group/employer sponsored policy, and whether Hartford had a right to a set-off from the settlement reached by Hall and New England in another lawsuit, appears moot.
Docket Entry No. 107, at 10.
2. Did White, Getgey Owe a Duty to Hall?
White, Getgey in essence alleges that it did not have an attorney-client relationship with Hall until two weeks before the trial date of June 6, 1995 when the state court granted White, Getgey's application to appear pro hac vice in the case. For that reason, White, Getgey contends it could not have owed a duty to Hall to supplement discovery responses concerning expert witness (due 30 days before trial) until its lawyers were allowed to practice before the Texas state court and named as attorney of record in the case. White, Getgey further argues that although it entered into a fee agreement with Hall in March of 1995, the agreement was contingent upon complete execution of a mutual release between Hall and his former counsel, Hervill Weller. This mutual release, which White, Getgey participated on behalf of Hall, was not signed and executed until April 27, 1995.
Id . at 16,
Id . at 15-16.
Hall, in opposition to White, Getgey's motion, argues that an attorney-client relationship existed since early February when he made it clear to White, Getgey lawyers that he wished to be represented by them and not by Weller. Hall points to summary judgment evidence which provides a chronology from early February through May of 1995 showing White, Getgey's active role in representing him on various pre-trial matters. Hall, therefore, argues that he has presented sufficient summary judgment evidence showing that genuine issues of material fact exist as to whether White, Getgey breached its duty when it for example, failed to supplement discovery responses designating expert witnesses who would testify at the state court trial, causing them to be stricken from the record, and forcing Hall into settling his case for a nominal amount. For the reasons discussed below White, Getgey is not entitled to summary judgment on this point.
Docket Entry No. 109, at 7-8 Exhibit D, incorporating as Exhibit D his previous response to White, Getgey's first summary judgment on the issue. The District Court Judge to which this case was originally assigned denied White, Getgey's motion on January 28, 1998.
Under Texas law, an attorney "is held to the standard of care which would be exercised by a reasonably prudent attorney." This is not a result-oriented analysis; an attorney will not be liable for undesirable effects of a decision that was reasonable at the time it was made. Before any duty can arise, there must be an attorney-client relationship. The attorney-client relationship is a contractual relationship in which an attorney agrees to render professional services for a client. Once the parties enter into an attorney-client relationship, the attorney owes fiduciary duties to his client. To establish the relationship, the parties must explicitly or by their conduct manifest an intention to create it. In other words, an attorney-client relationship may be established either expressly or impliedly from the conduct of the parties. To determine if there was an agreement or meeting of the minds one must use objective standards of what the parties said and did and not look to their subjective states of mind. The type of evidence necessary to support a determination as to whether an attorney-client relationship exists may vary with the circumstances presented in the particular case.
Cosgrove, 774 S.W.2d at 664.
See Simpson v. James 903 F.2d 372, 377 (5th Cir. 1990) (where the court affirmed the trial court's judgment finding that an attorney-client relationship existed between the attorneys and the seller and the attorneys' negligence proximately caused damages).
See Vinson Elkins v. Moran . 946 S.W.2d 381, 405 (Tex.App.-Houston [14th Dist.] 1997) (legal malpractice case where the issue of whether an attorney-client relationship existed was presented to the jury).
See Willis v. Maver . 760 S.W.2d 642, 645 (Tex. 1988).
Id . at 405 (citing Yaklin v. Glusing, Sharpe Kruege . 875 S.W.2d 380, 383 (Tex. App — Corpus Christi 1994) (genuine issue of material fact as to whether an attorney-client relationship existed between client and counsel precluded summary judgment for counsel); and SMWNPF Holdings, Inc. v. Devor, 165 F.3d 360, 364-65 (5th Cir, 1999) (finding that no attorney-client relationship existed).
Id . (citing Terrell v. State . 891 S.W.2d 307, 313 (Tex.App. — El Paso 1994, pet. ref'd)).
Based on my review of the summary judgment record, Hall has presented sufficient evidence to rebut White, Getgey's contention that no attorney-client relationship existed prior to the state court (officially) granting its lawyers on May 23, 1995 pro hac vice status in the underlying suit. The summary judgment record does not support White, Getgey's contention.
Agreed Pre-Trial Order, Stipulation of Undisputed Facts, ¶ 5(N) (UU).
For instance, as stated by Hall, there is evidence of record supporting his position that an attorney-client relationship existed as early as February of 1995. Based on the successful settlement reached by David Kamp on behalf of Hall in his federal court case filed in Ohio against New England for the payment of disability benefits over several disability policies, Hall and Kamp agreed that White, Getgey would represent Hall in the Hartford suit, by replacing attorney Weller. In that regard, the parties executed a fee agreement in March of 1995, contingent upon Weller and Hall executing a mutual release. White, Getgey represented Hall in negotiations with Weller concerning the release. It appears that as of February of 1995, White, Getgey took over all representation of Hall in the underlying suit against Hartford. In that respect, Weller testified in his deposition that although he was attorney of record in the state court lawsuit at that time, that he took no further action in the case after January of 1995 because it was his understanding that Hall wished White, Getgey to act as lead counsel in the case.
Docket Entry No. 80, at 4.
Agreed Pre-Trial Order, Stipulation of Undisputed Facts, ¶ 5(F) (0).
Id . at ¶ 5(H).
Docket Entry No. 80, at 5. Indeed one of Hall's complaints against White, Getgey in this lawsuit involves the conflict of interest White, Getgey may have had in negotiating the mutual release with Weller.
Id . Exhibit H, at 155 118-19
Moreover, while the mutual release was being negotiated, David Kamp was admitted pro hac vice for the limited purpose of representing Hall and his wife in depositions in Oregon which took place in March of 1995. Between February and June of 1995, White, Getgey advanced costs to cover for the expert witnesses' expenses in the Hartford suit. These expenses exceeded $40,000.00. At that time, White, Getgey had already narrowed the initial disclosure of expert witnesses filed by Weller and intended to call three medical expert witnesses at trial. In April of 1995, White, Getgey moved for a continuance of the trial date due to the unavailability of certain critical medical expert witnesses. Further, there is also evidence that White, Getgey was involved in the retention of local counsel, Ralph Lopez of Lopez Pauerstein, P.C., and that it attempted to mediate the case prior to the state court officially granting its lawyers pro hac vice status as attorneys of record. Because this evidence raises a fact issue with respect to the point in time in which an attorney-client relationship existed. White, Getgey's summary judgment motion is DENIED .
Id . at 5 Exhibit H, at 133; and Agreed Pre-Trial Order, Stipulation of Undisputed Facts, ¶ 5(G).
Agreed Ne-Trial Order, Stipulation of Undisputed Facts, ¶ 5(P).
Id . at 5 Exhibit G, at 54:1-11.
Agreed Ne-Trial Order, Stipulation of Undisputed Facts, at ¶ 5(Q).
Id . at ¶ 5(K).
Id . at ¶ 5(M) Docket Entry No, 50, Exhibit G, at 63.
Even though the mutual release referred to in the contingency agreement between White, Getgey and Hall was executed on April 28, 1995, the parties' conduct, and in particular White, Getgey's participation on behalf of Hall in the underlying suit, supports Hall's contention that an attorney-client relationship existed well before the time alleged by White, Getgey in this motion. Further, even if I were to assume, as White, Getgey advances, that because its contingency agreement did not come into effect until April 28, 1995, White, Getgey had enough time to supplement the discovery responses concerning Hall's expert witnesses 30 days prior to the beginning of the June 6, 1995 trial.
Further, I must also note that contrary to White, Getgey's assertions, the "official" act by the state court in granting pro hac vice status in no way determines the time in which an attorney-client relationship commences. The time in which a state court grants a pro hac vice status could be dependent on the state of the court docket of a particular judge, among other things. A more convincing argument would have been to look at the time in which White, Getgey's lawyers filed their application for pro hac vice admission. This argument, however, is not made by White, Getgey. Nevertheless, even if made, the parties' conduct during the pre-trial stage of the underlying suit is what determines the time in which an attorney-client relationship existed between the parties. In this case, the conduct of the parties speak louder than the effectuation of any contractual agreement reached by the parties. Because White, Getgey has presented no case authority for the proposition that a state court's action in granting pro hac vice status to its lawyers in the underlying suit determines the existence of an attorney-client relationship, White, Getgey' s position is without merit.
3. Is White Getgey Entitled to any Proportionate Contribution from Hall's Former Counsel, Harvill Weller?
White, Getgey has moved for summary judgment by arguing it is entitled to a set-off from Weller, Hall's former counsel in the underlying suit. White, Getgey argues that because District Court Judge Biery has previously ruled that Weller and his firm are "settling defendants" under Section 33.001 et seq., of the Texas Civil Practice and Remedies Code, White, Getgey is entitled to a set-off in an amount equal to 40% of Hall's gross recovery in this action, if any. White, Getgey's argument misinterprets Judge Biery's ruling regarding Weller's liability in this case.
Docket Entry No, 107, at 12.
On April 27, 1995, Hall executed a general release with Harvill Weller and his law firm in connection with the substitution of counsel by which White, Getgey became attorneys of record in the underlying suit. White, Getgey previously sought to name Weller and his law firm as third party defendants. Weller and his firm moved for dismissal and/or for summary judgment contending they were released from all liability for potential malpractice claims in their April 27th agreement with Hall. District Court Judge Biery entered an Order on July 24, 1997 granting Weller and his firm summary judgment and dismissing them from the suit. Because Judge Biery's Order is dispositive of the issue White, Getgey brings in its summary judgment motion, I hereby incorporate his decision in its entirety.
Docket Entry No. 5.
Docket Entry No. 10.
Docket Entry No. 17, at 1-8.
Judge Biery in his Order ruled that because Weller and his firm gave up their attorneys' fees, valuable consideration, for Hall's release of all known and unknown potential legal malpractice liability relating to the underlying suit, they were "settling persons" under Chapter 33 of the Texas Civil Practice and Remedies Code. Chapter 33 provides a defendant is entitled to contribution from "each person who is not a settling person and who is liable to the claimant for a percentage of responsibility but from the client seeks no relief at the time of submission." Chapter 33 defines "settling person" as:
TEX. Civ. PRAC. REM. CODE ANN. §§ 33.001-33.017 (Vernon 2001).
§ 33.016(b) (Emphasis added).
[A] person who at the time of submission has paid or promised to pay money or anything of monetary value to a claimant at any time in consideration of potential liability . . . with respect to the personal injury, property damage, death, or other harm for which recovery of damages is sought.
§ 33.011(5).
Significantly, § 33.015(d) specifically provides that "[n]o defendant has a right of contribution against any settling person." In the instant case, Judge Biery ruled that Weller and his firm are "settling persons" under the statute because they gave up their attorneys' fees, a valuable consideration, in exchange for Hall's agreement to release them from all known and unknown potential legal malpractice liability arising from the underlying suit. Accordingly, I hereby DENY White, Getgey's motion for summary judgment with respect to any right of proportionate contribution it seeks against Weller. The issue of Weller's liability in this case was fully addressed by Judge Biery in his July 24, 1997 and need not be revisited at this juncture in the case.
§ 33.015(d).
4. Is White, Getgey Entitled to a Summary Judgment Ruling With Respect to David Kamp's Expected Testimony at Trial?
White, Getgey also requests that the court enter a summary judgment ruling excluding from trial David Kamp's statements regarding the value of Hall's claims as inadmissible evidence. As previously mentioned, Kamp was the main attorney from White, Getgey who represented Hall in the federal court case against New England, and in the Texas state court action against Hartford. In his deposition, taken on August 22, 1997 as part of the discovery sought in the instant federal court lawsuit, Kamp opined that the settlement value of Hall's underlying case just before trial was approximately $300,000 to $500,000.00, and that its value at trial could exceed $1 million dollars. White, Getgey seeks to have this testimony excluded from trial on the grounds that it is not relevant, the testimony would not have been admissible in the underlying suit, and Kamp is not qualified as an expert to render such an opinion.
I agree with Hall that a summary judgment ruling on the exclusion of Kamp's expected trial testimony is not authorized by the FED. R. CIV. P. 56. Rule 56(b) provides that a defendant may move for summary judgment with respect to all or any part of a plaintiff's claims. Rule 56(d) refers to "material facts that exist without substantial controversy." Id . The summary judgment procedure is not designed to secure pre-trial rulings on the relevance or admissibility of evidence to be adduced at trial if that evidence is also not being used in support of, or to challenge, a legal theory on summary judgment. Accordingly, White, Getgey's summary judgment motion is denied with respect to the admissibility at trial of Kamp's deposition testimony concerning the value of the underlying suit subject to addressing the issue on White, Getgey's pending motion in limine.
E. Conclusion
For the foregoing reasons, Hall's motion for summary judgment filed May 22, 2001 (Docket Entry No. 105) is hereby GRANTED, and White, Getgey's motion for summary judgment also filed on May 22, 2001 (Docket Entry No. 107), is DENIED in its entirety. This case will proceed to trial on August 20, 2001 on plaintiffs three legal causes of action for legal malpractice, breach of a fiduciary duty and negligence per se. White, Getgey will be precluded from asserting any affirmative defense concerning any contractual set-offs as such defense was waived by Hartford in the underlying suit. Nor will White, Getgey be allowed to present to the jury any entitlement to a settlement set-off or credit against Weller because Weller has been deemed a "settling person" under Chapter 33 of the Texas Civil Practice and Remedies Code for whom no contribution could be sought.