Haussecker v. Childs

• Court: Court of Appeals of Texas
• Writing for the Court: LARSEN
• Citation: 935 S.W.2d 930
• Decision Date: 21 November 1996
• Parties: Joseph HAUSSECKER, and Gail Haussecker, Appellants, v. Jerry P. CHILDS and Childs & Bishop, Inc., Appellees.

Page 930

935 S.W.2d 930 Joseph HAUSSECKER, and Gail Haussecker, Appellants,
v.
Jerry P. CHILDS and Childs & Bishop, Inc., Appellees. Court of Appeals of Texas,
El Paso. Nov. 21, 1996.
Rehearing Overruled Jan. 22, 1997.

Page 931

Robert Gordon Taylor, George E. Cire, Cletus P. Ernster, III, Taylor & Cire, Houston, for appellants.

Charles T. Frazier, Gregory J. Lensing, Cowles & Thompson, P.C., Dallas, for appellees.

Before LARSEN, McCLURE and CHEW, JJ.

OPINION

LARSEN, Justice.

In this appeal from summary judgment in a legal malpractice case, Joseph and Gail Haussecker allege a fact question as to whether the Hausseckers' underlying silicosis claims were barred by statute of limitations before the Hausseckers sought advice from attorney Jerry Childs. Finding a fact question exists as to whether the discovery exception to limitations applied, we reverse and remand.

FACTS

Joseph Haussecker was hired by AMF Tuboscope, Inc. in 1961. He worked there as a sandblaster until 1963 when he was transferred to Tuboscope's pipe pickling ¹ operation after he complained of spitting up blood. He worked in the pickling operations until 1968 when he was advised by his physician not to return to that job.

Haussecker first noticed respiratory problems in September 1967. He sought medical treatment for his condition in November 1967, May 1968, and June 1968. In May 1968, Haussecker was coughing up blood and pus. At his employer's request, he saw one doctor who took x-rays, told him there was nothing wrong, and sent him back to work. He next consulted a lung specialist who performed a bronchoscopy on Haussecker's lung in June 1968 and diagnosed Haussecker as having a granuloma of the right lung. The doctor did not suggest any cause for his condition, but prescribed bed rest. His personal doctor, on the other hand, told him he had "Hodgson or lymphoma." In a deposition taken as part of the worker's compensation

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suit in 1969 (where, we note, this testimony was an admission against interest), Mr. Haussecker testified:

Q: Now none of the doctors that you have been to, either Dr. Morales or Dr. McCullough, have told you what has caused this, have they?

A: No, they never did.

Q: Have they said that it was a work related disease or occupational hazard, have they said anything like that?

A: No, he didn't say anything like that.

Q: Did you ask them about that?

A: Yeah.

Q: Did they say that they didn't think it was caused by that?

A: Well, he didn't--Dr. Morales said that it didn't come from the job.

Q: What about Dr. McCullough, did he say the same thing?

A: He didn't really say, all he told me was that I had something in my chest here, he said it didn't come from sand blasting. So that's all I know from him.

Haussecker was bed-ridden from June 1968 to January 1969. In August 1968, he sent notice to his employer that his illness was a work-related disease and filed a worker's compensation claim. The claim described his health problems as:

Diseased Right Lung. Worked as Sandblaster continuously for 2 years. Occasionally worked as sandblaster for past 4 1/2 years. Also worked around oven 800? burning pipe out, also open 1,000 gal. acid vat, regularly exposed to dust and smoke and various fumes.

He believed he had silicosis because during the six and a half years he worked for Tuboscope, eight co-workers had lung trouble, and one died of lung disease.

Haussecker's compensation claim was denied by the Industrial Accident Board, which found that "the evidence submitted fails to establish that the claimant suffered a compensable injury and/or occupational disease in the course of employment...." On November 6, 1968, Haussecker filed suit against the worker's compensation carrier, Liberty Mutual Insurance Company. In his suit, Haussecker alleged that the sandblasting and pipe pickling work he performed for AMF Tuboscope had "caused severe and permanent damage to [his] lungs and chest and the glands and soft tissues of the chest, neck, and face, and ha[d] caused [him] to have the disease of silicosis...." Haussecker was never able to obtain a diagnosis of silicosis to sustain his compensation claim. Two physicians consulted by Haussecker's attorney, then Jerry Childs, stated that they would not be able to assist in the case if it came to litigation, meaning they could not establish causation between his lung problems and exposure at his workplace. After three successive attorneys withdrew from his case, including Childs, Haussecker's worker's compensation case was dismissed for want of prosecution in 1972.

In response to questions about why he withdrew from Haussecker's compensation case, Childs testified:

Q: In fact, were you aware of any medical evidence at the time you were having the worker's compensation case that said that Mr. Haussecker had any kind of disease that was any way related to sandblasting or his employment at AFM [sic] Tuboscope?

A: No, sir.

Q: And for that reason, you could not in good faith continue to pursue a worker's compensation claim on his behalf, could you?

A: That's right.

Q: Part of our obligations as a lawyer is, if we get to a situation where there's simply--we don't have sufficient evidence--there's not evidence to support our client's claim, our obligation is to step forward and tell our client. Look, at this point in time there is no evidence, there is no medical evidence that you have this disease, and therefore I cannot continue to pursue your claim for you.

A: That's what we did.

After 1968, Haussecker did not return to his job at AMF Tuboscope, but instead accepted a light duty job with the City of

Page 933

Midland Parks Department as zookeeper, which he held from 1969 until 1978. Haussecker's physical condition continued to deteriorate over the next twenty years. By July 1978, Haussecker's health had become so bad, he was forced to stop working. At this time, he applied for and received social security disability.

In May 1988, while in the hospital for a hand infection, Haussecker was examined by Dr. McKenna, a lung specialist. Dr. McKenna told Haussecker that, based on his symptoms and Dr. McKenna's experience with other AMF Tuboscope employees, he believed Haussecker had silicosis. Dr. McKenna performed a lung biopsy in February 1990 and sent it to a lab for testing. In April 1990, Dr. McKenna diagnosed Haussecker with silicosis.

Having finally secured a diagnosis of silicosis, the Hausseckers contacted Childs, recalling that he had represented them in the unsuccessful compensation case in 1969. On April 26, 1990, the Hausseckers met with Childs to see what action they could pursue. After reviewing their file and researching the law, Childs advised the Hausseckers that "too much time had run for him to be able to do anything about a claim that he had made 20 years ago." Discouraged, the Hausseckers took no further action for two years.

In August 1992, the Hausseckers contacted Mike Martin, a Houston attorney who had represented a number of clients in silicosis cases. ² Martin met with the Hausseckers on August 12, 1992. Although he agreed to represent them in a products liability suit, Martin informed the Hausseckers they had a limitations problem, as more than two years had elapsed since Mr. Haussecker's silicosis diagnosis in April 1990. Indeed, the Haussecker's product liability suit was dismissed on summary judgment in March 1994 based on the two-year statute of limitations defense.

The Hausseckers then filed this legal malpractice action against Childs and his firm asserting claims for breach of fiduciary duty, negligence, gross negligence, and DTPA violations. Childs moved for summary judgment contending that Haussecker's underlying silicosis claims were barred by the statute of limitations before the Hausseckers contacted Childs in 1990. The trial court granted the motion and rendered a take-nothing judgment. In a single point of error, the Hausseckers seek reversal.

STANDARD OF REVIEW

In reviewing the trial court's grant of summary judgment, we are governed by the following well-established principles: (1) The movant for summary judgment bears the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law; (2) evidence favorable to the non-movant will be taken as true; and (3) reasonable inferences must be indulged in favor of the non-movant. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548-49 (Tex.1985); Vida v. El Paso Employees' Federal Credit Union, 885 S.W.2d 177, 180 n. 1 (Tex.App.--El Paso 1994, no writ).

Where, as here, defendants are movants, our review is limited to whether the summary judgment proof establishes as a matter of law that there is no genuine issue of fact as to one or more of the essential elements of plaintiff's cause of action. Vida, 885 S.W.2d at 180 n. 1. For defendant-movants to prevail on summary...