Grider v. Mike O'Brien, P.C., 01-07-00006-CV.

CourtCourt of Appeals of Texas
Citation260 S.W.3d 49
Docket NumberNo. 01-07-00006-CV.,01-07-00006-CV.
PartiesRebecca Dunn GRIDER, Appellant, v. MIKE O'BRIEN, P.C., O'Quinn & Laminack, and its Successors in Interest, The O'Quinn Firm, John M. O'Quinn, and Kaiser & May, L.L.P., Appellees.
Decision Date08 May 2008
260 S.W.3d 49
Rebecca Dunn GRIDER, Appellant,
MIKE O'BRIEN, P.C., O'Quinn & Laminack, and its Successors in Interest, The O'Quinn Firm, John M. O'Quinn, and Kaiser & May, L.L.P., Appellees.
No. 01-07-00006-CV.
Court of Appeals of Texas, Houston (1st Dist.).
May 8, 2008.

[260 S.W.3d 53]

Gary F. DeShazo, Gary F. DeShazo & Associates, Austin, TX, for Appellant.

Jeffery B. Kaiser, Kaiser & Conrad, L.L.P., Bruce B. Kemp, Donald B. McFall, McFall, Sherwood & Breitbeil, P.C., George F. May, The Law Office of George F. May, Mark Douglas Goranson, Goranson King, P.L.L.C., Houston, TX, for Appellees.

Panel consists of Justices TAFT, NUCHIA, and HANKS.


GEORGE C. HANKS, JR., Justice.

Rebecca Dunn Grider sued Mike O'Brien, P.C., O'Quinn & Laminack, and its successor in interest, the O'Quinn Firm, John M. O'Quinn and Kaiser & May, L.L.P. (collectively "the law firms") for legal malpractice. After all parties filed motions for summary judgment, the trial court denied Grider's motion and granted the motions filed by the law firms. In one issue, Grider appeals the trial court's granting of summary judgment.

We affirm.


Grider sued her physician, Adam Naaman, M.D., for medical malpractice, and the jury rendered a unanimous verdict for the defendant doctor. The trial court signed a final judgment on May 3, 2000,1 and Grider filed her notice of appeal on August 25. The case was transferred from Houston to Corpus Christi, and the Corpus Christi Court of Appeals reversed and rendered for Grider on Naaman's liability and remanded for a "separate new trial solely on unliquidated damages as liability is not contested." Grider v. Naaman, 83 S.W.3d 241, 246 (Tex.App.-Corpus Christi 2002). Naaman filed a petition for review, and the Texas Supreme Court reversed the court of appeals' judgment and, because her notice of appeal was untimely filed, dismissed Grider's appeal for want of jurisdiction. Naaman v. Grider, 126 S.W.3d 73 (Tex. 2003).

Grider sued the law firms for negligence in connection with their appellate representation in her medical malpractice suit. Specifically, Grider asserted that the law firms negligently represented her

A. By advising Grider that her notice of appeal was due on August 29, 2000 instead of its actual due date in early August.

260 S.W.3d 54

B. By advising Grider not to appeal the adverse verdict and judgment.

C. By failing to properly calculate the due date for Grider's notice of appeal.

D. By delaying notification until July 18, 2000 it [sic] notification to Grider that she had lost her motion for new trial and that they would not represent her on appeal.

E. By delaying the filing of the notice of appeal or by conduct which delayed the filing of Grider's notice of appeal.

F. By failing to timely file Grider's notice of appeal, resulting in the dismissal of her appeal.

G. In general, by failing to promptly and competently prosecute Grider's claims and appeals.

Grider moved for summary judgment or alternatively, partial summary judgment because the law firms were negligent in their handling of the Naaman appeal by failing to timely file the notice of appeal, and their negligence proximately caused $3 million in actual damages and entitled her to $6 million in punitive damages.

In the O'Quinn defendants' cross-motion for summary judgment, which was joined by the remaining defendants, they argued that, because both legally and factually sufficient evidence supported the jury's unanimous verdict in favor of Naaman, Grider, as a matter of law, could not prove that the law firms' alleged failure to timely perfect an appeal proximately caused her any damages. The trial court ruled as follows:

Considering all the summary judgment evidence and the authorities presented by counsel, the Court rules that there are no contested issues of material fact and rules that, in an appeal to the Supreme Court in the underlying case, the opinion of the Thirteenth Court of Appeals should be reversed and the judgment of the 80th District Court of Harris County in the underlying case should be affirmed.

The trial court further ordered that Grider's summary judgment "as to the outcome on appeal of her adverse jury verdict is denied," and the law firms' summary judgment is granted "that, on appeal, the trial court's judgment should be affirmed." Grider appeals the granting of summary judgment in favor of the law firms.

Summary Judgment

We review the trial court's ruling on a motion for summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). We view the evidence in a light most favorable to the non-movant, making all reasonable inferences and resolving all doubts in the non-movant's favor. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); Hoover v. Larkin, 196 S.W.3d 227, 230 (Tex.App.-Houston [1st Dist.] 2006, no pet.). When, as here, both sides move for summary judgment and the trial court grants one motion and denies the other, the appellate court should review both parties' summary judgment evidence and determine all questions presented. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000). The appellate court should render the judgment that the trial court should have rendered. Id. In order to prove appellate legal malpractice, Grider was required to bring to the trial court the same evidence she would have presented to the court of appeals, such as the clerk's record, the reporter's record, proposed points of error, and the law in support thereof. See Maxey v. Morrison, 843 S.W.2d 768, 770-71 (Tex.App.-Corpus Christi 1992, writ denied).

260 S.W.3d 55
Legal Malpractice

To prevail on a legal malpractice claim, a plaintiff must show that "(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." Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex.2004); Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.-Houston [1st Dist.] 1998, pet. denied). If a legal malpractice case arises from prior litigation, a plaintiff must prove that, but for the attorney's breach of his duty, the plaintiff would have prevailed in the underlying case. Greathouse, 982 S.W.2d at 172. Cases often refer to this causation aspect of the plaintiff's burden as the "suit-within-a-suit" requirement. See id. at 173. In general, one proves causation in a legal malpractice suit by expert testimony. See Alexander, 146 S.W.3d at 119-20.

The determination of proximate cause is usually a question of fact. See El Chico Corp. v. Poole, 732 S.W.2d 306, 313-14 (Tex.1987). This is true in legal malpractice actions as well. In cases of appellate legal malpractice, however, the determination of causation requires determining whether the appeal in the underlying action would have been successful. Id. The plaintiff must show that but for the attorney's negligence the client would have prevailed on appeal. See Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ ref'd n.r.e.). The rationale for requiring this determination is that, if the appeal would not have succeeded and the trial court judgment would have been affirmed, the attorney's negligence could not have caused the plaintiff any damage. Id. On the other hand, if the appeal would have succeeded in reversing the trial court's judgment and obtaining a more favorable result, then the plaintiff sustained damage because of the attorney's negligence. Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex.1989). In cases involving appellate legal malpractice, the question of whether an appeal would have been successful depends on an analysis of the law and the procedural rules. As the Millhouse court noted, because this requires a review of the trial record and the briefs in order to determine whether the trial court committed reversible error, "a judge is clearly in a better position" to do this than is a jury. Id. at 628. Therefore, where the issue of causation hinges on the possible outcome of an appeal, the question of causation is to be resolved by the court as a question of law. Id.; Klein v. Reynolds, Cunningham, Peterson & Cordell, 923 S.W.2d 45, 47 (Tex.App.-Houston [1st Dist.] 1995, no writ).

Grider contends that the Corpus Christi Court of Appeals' opinion shows what the outcome of the appeal at the intermediate level would have been-reverse and render in part and remand in part. The law firms argue, however, that, because the Corpus Christi Court of Appeals lacked jurisdiction to hear the appeal, its opinion is void and "should be regarded as if it never existed." We agree with the law firms. See Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1071 (1926) (judgment that is later reversed by higher court is null and void); Hudson v. Winn, 859 S.W.2d 504, 506 (Tex.App.-Houston [1st Dist.] 1993, writ denied) (when court lacks jurisdiction, any action taken by court is void and should be regarded as if it never existed). The law firms further contend that the trial court in the appellate legal malpractice case was required to review the entire record in the underlying case "in order broadly to determine whether the trial court [in...

To continue reading

Request your trial
32 cases
  • Robinson v. Castle, CIVIL ACTION NO. H-11-649
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Southern District of Texas
    • August 29, 2011
    ...of care; (3) an injury to the plaintiff; and (4) a causal connection between the breach of care and the injury. Grider v. O'Brien, 260 S.W.3d 49, 57 (Tex. App.—Houston [1st Dist.] 2008, pet. denied); see also Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008). Even accepting all of Plainti......
  • Rio Grande Reg'l Hosp. Inc. v. Villarreal, 13-08-00542-CV.
    • United States
    • Court of Appeals of Texas
    • September 30, 2010
    ...proximate causation, a claimant who establishes only that an injury was foreseeable cannot prevail. See Grider v. Mike O'Brien, P.C., 260 S.W.3d 49, 57 (Tex.App.-Houston [1st Dist.] 2008, pet. denied); see also Robins, 321 S.W.3d at 205.329 S.W.3d 608 Whether a particular act of negligence ......
  • Declaire v. G & B Mcintosh Family Ltd., 01-06-00423-CV.
    • United States
    • Court of Appeals of Texas
    • May 8, 2008
    ...he would not have signed the DeClaire Note if it did not have the sole recourse language, while McIntosh testified that he would not have 260 S.W.3d 49 accepted the Note if he had known that it had the sole recourse language. Although it is possible that one of the parties was mistaken abou......
  • Mariner Health Care Of Nashville Inc. D v. Robins, 01-08-00830-CV.
    • United States
    • Court of Appeals of Texas
    • July 1, 2010
    ...both elements are required, a party who establishes only that an injury was foreseeable cannot prevail. Grider v. Mike O'Brien, P.C., 260 S.W.3d 49, 57 (Tex.App.-Houston [1st Dist.] 2008, pet. denied). “In a medical malpractice case, breach of the standard of care and proximate cause must b......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT