Opinion
No. 05-02-01679-CV.
Opinion issued February 6, 2004.
On Appeal from the County Court at Law No. 2, Dallas County, Texas, Trial Court Cause No. cc-00-9257-b.
Affirmed.
Before Justices WHITTINGTON, JAMES, and O'NEILL.
MEMORANDUM OPINION
In this appeal from a legal malpractice case, Jacqueline McKinley appeals the trial court's granting of summary judgment in favor Donald Wayne Hill and his law firm, White, Hill, Sims Wiggins. McKinley asserts four issues, arguing summary judgment was improper because sufficient evidence was presented showing appellees' negligence in failing to: (1) keep McKinley informed of their assessment of her case; (2) investigate her underlying cause of action; (3) properly respond to a summary judgment motion in the underlying case; and (4) file documents on appeal, including an appellate brief. The facts of this case are known to the parties, and we do not recite them here in detail. We affirm the trial court's summary judgment. McKinley hired appellees to represent her in a suit against her former employer, Northern Telecom ("Nortel)-the underlying case. The court in the underlying case granted Nortel's motion for summary judgment. McKinley then brought an action against appellees, alleging legal malpractice and breach of contract. Appellees moved for summary judgment, and it was granted as to all claims other than the motion for summary judgment on the breach of contract claim. McKinley non-suited the breach of contract claim, causing the summary judgment to become final for purposes of appeal. McKinley now appeals that summary judgment.
When reviewing a no-evidence summary judgment, we apply the legal sufficiency standard used to review a directed verdict. See Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832-33 (Tex. App.-Dallas 2000, no pet.). We will not disturb a no-evidence summary judgment unless the non-movant produced more than a scintilla of evidence sufficient to raise a fact issue on each challenged element for which the non-movant has the burden of proof. Id.; see Tex. R. Civ. P. 166a(i). When a legal malpractice claim arises from prior litigation, the plaintiff has the burden to prove that, but for the attorney's negligence, (1) she would have prevailed on the underlying case and (2) she would have recovered damages. See Millhouse v. Wisenthal, 775 S.W.2d 626, 627 (Tex. 1989). When her legal malpractice case alleges negligence in an appeal, the plaintiff must prove she would have prevailed not only in the appeal, but in the underlying suit as well. Id.; Day v. Harkins Munoz, 961 S.W.2d 278, 280 (Tex. App.-Houston [1st Dist.] 1997, no pet.).
Appellees filed both a traditional and a no-evidence motion for summary judgment.
In their motion for summary judgment, appellees asserted McKinley had produced no evidence to show that but for their alleged negligence, McKinley would have prevailed in the underlying case and appeal and recovered damages against Nortel. See Millhouse, 775 S.W.2d at 627. In her response to the summary judgment motion, McKinley does not offer evidence showing she would have prevailed in the underlying case but for appellees' alleged negligence. Furthermore, McKinley does not address this issue on appeal. She does not point this Court to any evidence she presented in response to the summary judgment motion that would show she would have prevailed on her underlying claim. Instead, McKinley argues that she need only show the summary judgment in the underlying case was granted in error, and she asserts she has met this burden by showing fact questions could have been raised that would have negated the summary judgment in the underlying case. McKinley, however, offers no authority to support her contention that in a claim of legal malpractice from a summary judgment action, she has less of a burden than that identified in Millhouse. See id. She has, therefore, inadequately briefed this argument. See Tex.R.App.P. 38.1(h). Accordingly, McKinley has waived this argument on appeal. See Trenholm v. Ratcliff, 646 S.W.2d 927, 934 (Tex. 1983).
Because McKinley has not shown that she produced any evidence showing that but for appellees' alleged negligence she would have prevailed on her underlying case, we resolve her first, second, third, and fourth issues against her. We affirm the trial court's summary judgment.