Liles v. Phillips

• Citation: 677 S.W.2d 802
• Decision Date: 04 October 1984
• Docket Number: No. 2-83-198-CV,2-83-198-CV
• Parties: Mike LILES, Appellant, v. Montie E. PHILLIPS, Appellee.
• Court: Texas Court of Appeals

Page 802

677 S.W.2d 802

Mike LILES, Appellant, v. Montie E. PHILLIPS, Appellee.

No. 2-83-198-CV.

Court of Appeals of Texas Fort Worth.

Oct. 4, 1984.

Jearl Walker and Harold D. Hammett, Fort Worth, for appellant.

Bunton, Nolan, Ode & Cooper, and Lucius D. Bunton, Jr., Austin, for appellee.

Before FENDER, C.J., and HUGHES and JOE SPURLOCK, II, JJ.

OPINION

FENDER, Chief Justice.

This is a legal malpractice action brought by appellee, Montie E. Phillips, against his former attorney, Mike Liles, appellant herein. From a judgment in favor of appellee for $18,000 actual damages and $6,000 attorney's fees, appellant appeals.

We reverse and render.

Appellee originally retained appellant's law firm to pursue an action in his behalf against the vendor, manufacturers, and the credit company which financed appellee's purchase of a truck. The underlying transaction commenced in September, 1972 when appellee purchased a truck from Graham International, Inc., of Sherman, Texas. The truck was manufactured by International Harvester Corporation, and the engine was manufactured by General Motors Corporation, both of the state of Michigan. Appellee experienced problems with the truck but was unable to obtain repairs under the warranties through Graham International, Inc. In April, 1974, appellee drove the truck to an International Harvester dealership in Oklahoma City, Oklahoma where the vehicle was disassembled, but never repaired. Appellee did not return to pick up the truck, and when appellee failed to make installment payments the finance company, International Harvester Credit Corporation, eventually repossessed the vehicle.

In 1975, appellee hired appellant's law partner, a member of the same law firm as appellant and co-defendant herein, to file a lawsuit to recover damages incurred by appellee as a result of the problems with his truck. Suit was filed on March 12, 1975 in state district court in Sherman, Texas against Graham International, Inc., General Motors Corporation, International Harvester Corporation, and International Harvester Credit Corporation. Responsibility for the handling of this suit was transferred by appellant's partner to appellant who later determined that appellee's only valid claim appeared to be against Graham International, Inc. Thus, appellant allowed pleas of privilege by the other three defendants to be sustained without opposing such pleas, and these suits were transferred to Dallas County where nonsuits were subsequently entered against International Harvester Corporation, and International Harvester Credit Corporation. The suit against General Motors Corporation was dismissed for want of prosecution on March 9, 1979.

There were a number of delays in getting appellee's case against Graham International, Inc. set for trial, and also a number of pretrial delays. Some of these delays were apparently due to a clerical error by the district clerk in Sherman in mistakenly transferring appellee's case against Graham International, Inc. to the docket of the district court in Dallas, Texas when she transferred the cases pending against the other three defendants. In addition, there were a number of disputes between the parties and their lawyers regarding the taking of depositions, and delays resulting from the fact that appellant was engaged in an extremely lengthy trial in Lubbock, Texas.

Appellant, his co-defendant, and another attorney in appellant's law firm estimated the value of appellee's claim against Graham International, Inc. to be approximately $18,000, whereas appellee indicated that he wanted $90,600 (or, $90,800--the record is unclear as to which amount) if the parties were to settle the case without a trial. Apparently as a result of appellant's and appellee's divergent opinions regarding the settlement value of appellant's case against Graham International, Inc., and because of the delays incurred in getting the case to trial, appellee requested that appellant return his file so that he could take it to another law firm. Appellant returned appellee's file on August 15, 1978, and appellee thereupon discharged appellant and appellant's law firm from responsibility for handling his case. Appellee attempted to find another law firm to handle the case, but testified that he was unable to do so.

On May 7, 1979, appellee filed the instant lawsuit against three defendants: appellant, the other attorney in appellant's law firm with whom appellee had originally dealt, and the law firm itself. Appellee then chose to litigate his case against Graham International, Inc. pro se, and this resulted in a jury verdict in appellee's favor; however, the trial court granted a judgment non obstante veredicto and rendered judgment in favor of Graham International, Inc.

Appellee's pleadings in the instant case alleged that in their handling of appellee's lawsuit the three defendants conducted themselves in an unprofessional manner and did not protect appellee's best interest. The following is a summary of appellee's contentions:

1. Defendants failed to keep appellee informed as to the status of his case despite appellee's attempts to be kept informed;

2. Defendants allowed pleas of privilege to be sustained in favor of International Harvester Corporation and International Harvester Credit Corporation, without opposing said pleas;

3. Defendants allowed a plea of privilege to be sustained in favor of General Motors Corporation by not complying with the laws and rules governing civil procedure in the State of Texas;

4. Defendants failed to make timely appearances in court and effectively permitted the three aforementioned defendant corporations to be released;

5. Defendants did not inform appellee of the above actions and misled appellee as to the reasons that these corporations were released;

6. Defendants agreed to a nonsuit on behalf of International Harvester Corporation and International Harvester Credit Corporation, without the knowledge and permission of appellee;

7. Defendants failed to prosecute appellee's cause of action and permitted unreasonable and unconscionable delays which damaged appellee's case;

8. Defendants' delays in prosecuting appellee's cause of action permitted necessary and expert witnesses who were necessary to prove up appellee's cause of action to lose all contact with appellee and with the defendants. Said witnesses eventually, through the defendants' negligence and gross negligence, were not available to appellee for the prosecution of his lawsuit;

9. On or about March 4, 1977, defendants failed to timely notify appellee of an agreement for appellee to be present for his deposition, and said act resulted in a $600.00 fine levied against appellee.

Appellee claimed that the defendants' aforementioned actions constituted common law causes of action for negligence and gross negligence in the handling of appellee's cause of action. Additionally, appellee alleged that these acts were in violation of the Texas Deceptive Trade Practices Act, TEX.BUS.COM.CODE ANN. sec. 17.50 (Vernon Supp.1984). As further violations of Secs. 17.50 and 17.45, appellee alleged that: 1) defendants breached their fiduciary duty to represent appellee with diligence, care and skill in protecting his legal rights; 2) defendants breached their covenant to act in good faith and to deal fairly in their representation of appellee; and 3) defendants' acts or omissions in their representation of appellee were unconscionable. Lastly, appellee alleged that he was entitled to reasonable attorney's fees pursuant to the D.T.P.A.

The jury returned a verdict in favor of appellant's law partner and no issues were submitted regarding appellant's law firm. With respect to the appellant, the jury found that although appellant failed to exercise the care, diligence, and judgment of a good and competent attorney in North Texas in causing the lawsuit against International Harvester Corporation and International Harvester Credit Corporation to be dismissed, and in permitting the lawsuit pending against General Motors Corporation to be dismissed, appellant's acts were not a proximate cause of appellee's failure to obtain a recovery of money against any of these corporations. However, the jury did find that appellant failed to exercise the degree of care, diligence, and judgment of a good and competent attorney in North Texas in actually litigating appellee's lawsuit pending against Graham International, Inc., prior to delivering appellee's file to appellee. The jury further found that such failure was a proximate cause of the failure of appellee to obtain a recovery of money from Graham International, Inc., and that $18,000 was the sum of money which appellee would have in reasonable probability recovered from Graham International, Inc., but for appellant's actions. Although the jury returned a verdict awarding $18,000 actual damages, $6,000 punitive damages, and $6,000 in attorney's fees, the trial court entered judgment awarding only the actual damages and attorney's fees.

Appellant predicates his appeal upon eight points of error and appellee has raised eight cross-points of error. Inasmuch as several of the parties' contentions deal with appellee's deceptive trade practices' cause of action, we will initially discuss this matter. The pertinent special issues which were submitted to the jury and answered adversely to appellant, read as follows:

SPECIAL ISSUE NO. 7:

Do you find from a preponderance of the evidence that the Defendant attorneys failed to exercise the care, diligence, and judgment of good and competent attorneys in North Texas in failing to cause the lawsuit pending against Graham International in Sherman, Texas, to be tried before the file was delivered to Montie Phillips?

Answer "He failed" or "He did not fail" as to each of the following:

Mike Liles ANSWER: He failed

[Reference to co-defendant is omitted.]

If you have answered "He failed" as to either of the attorneys in answer...