Mackie v. McKenzie

• Decision Date: 01 June 1995
• Docket Number: No. 06-94-00005-CV,06-94-00005-CV
• Citation: 900 S.W.2d 445
• Court: Texas Court of Appeals
• Parties: 101 Ed. Law Rep. 491 Stephanie S. MACKIE, Charles S. Settle, Jr., and Katherine S. Nelson, Appellants, v. William A. McKENZIE, Jay M. Wallace, and McKenzie & Baer, Appellees.

Page 445

900 S.W.2d 445

101 Ed. Law Rep. 491

Stephanie S. MACKIE, Charles S. Settle, Jr., and Katherine

S. Nelson, Appellants, v. William A. McKENZIE, Jay M. Wallace, and McKenzie & Baer, Appellees.

No. 06-94-00005-CV.

Court of Appeals of Texas,

Texarkana.

June 1, 1995.

Rehearing Overruled July 6, 1995.

Bennett J. Roberts, III, Houston, for appellants.

Charles T. Frazier, Jr., Andrea M. Kuntzman, Cowles & Thompson, Dallas, for appellees.

Before CORNELIUS, C.J., and BLEIL and GRANT, JJ.

OPINION

BLEIL, Justice.

Stephanie Mackie, Charles Settle, Jr., and Katherine Nelson appeal from a summary judgment rendered against them in this legal malpractice action. The question on appeal is whether the trial court erred in granting the defendants' motion because genuine issues of material fact exist to preclude summary judgment. We affirm the judgment.

FACTS

This action arises out of probate proceedings involving the estate of Frank H. Kidd, Jr., M.D., who died in February 1988. Stephanie Mackie was Kidd's niece. Charles Settle, Jr. and Katherine Nelson are Mackie's children. Kidd's last will, executed in March 1984, was admitted to probate in March 1988. Ward Halla was the executor of the Kidd estate.

Before executing the 1984 will, Kidd had executed a will in 1980 that left $50,000 and some personal effects to Mackie and approximately $600,000 to her children. The 1984 will leaves an estimated $265,000 to Mackie, but only $10,000 plus some personal effects to each of her children.

Mackie claimed that Kidd executed the 1984 will under suspicious circumstances. Specifically, the Baylor University Medical Center Foundation paid an attorney to draft the 1984 will for Kidd. The 1984 will gives approximately 75% of Kidd's residual estate to the Foundation and 25% to Presbyterian Hospital of Dallas. Before execution of the will, Gordon Caswell, the fund-raising director for the Foundation, had talked to Kidd about Kidd's desire to leave part of his estate to various charities.

When Mackie learned of the Foundation's involvement in the execution of the 1984 will, she unsuccessfully attempted to reach a settlement with the Foundation and the hospital. In October 1988, Halla filed a declaratory judgment action to have certain inter vivos payments Kidd made to Mackie characterized as loans. The loan amounts would then be deducted from any bequest Mackie received under her uncle's 1984 will.

Mackie sought the counsel of William McKenzie, an attorney. The two discussed the declaratory judgment action and a possible will contest. McKenzie told Mackie he would need a retainer to study the matter, and said that, if he decided to represent her, he would handle the case on a contingent fee basis. Mackie gave McKenzie a $10,000 retainer. On March 17, 1989, McKenzie filed a pleading opposing probate of the 1984 will on the basis of the Foundation's undue influence on Kidd. ¹ McKenzie filed on behalf of Mackie only, not on behalf of Settle or Nelson. When this omission was called to McKenzie's attention, he indicated he would file an amended pleading including the children, but never did. McKenzie turned over much of the responsibility for the will contest to an associate, Jay Wallace. McKenzie and Wallace never suggested that Settle and Nelson should seek other counsel.

In May 1990, Mackie asked McKenzie to write an opinion letter outlining her potential recovery in the will contest. He refused, so Mackie fired him. McKenzie filed a motion to withdraw on May 23, 1990, and sent a copy of the motion to Mackie with a letter informing her of her right to contest the withdrawal. She did not, and the trial court granted the motion to withdraw from the will contest on June 5, 1990. On June 6, 1990, Wallace sent a letter to Mackie's son, Charles Settle, informing him of a June 26 hearing on a motion for partial summary judgment filed by the executor and the Foundation. Wallace told Settle that any written response needed to be filed by June 19, 1990. Mackie did not obtain substitute counsel in time for the hearing, and the trial court granted the motion for summary judgment.

Mackie subsequently obtained another attorney and in August 1990 entered into a settlement agreement with Kidd's estate, the Foundation, and the hospital. Mackie agreed to drop her opposition to the 1984 will. In exchange, she would be discharged from any obligations and liabilities she might have to the executor, estate, Foundation, or hospital and would receive $140,000 in full settlement of all monetary proceeds she was entitled to under the 1984 will.

Mackie, Settle, and Nelson filed suit against McKenzie, Wallace, and McKenzie & Baer in June 1992, alleging negligence and false, misleading, and deceptive acts. The trial court granted the defendants' motion for summary judgment.

DISCUSSION

The function of a summary judgment is the elimination of patently unmeritorious claims or untenable defenses. Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929 (1952). A party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. TEX.R.CIV.P. 166a(c); Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). A defendant moving for summary judgment must establish as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of each theory pleaded by the plaintiff. Gibbs, 450 S.W.2d at 828.

We view the evidence in the light most favorable to the nonmovant, and all doubts as to the existence of a genuine issue of material fact are resolved in the nonmovant's favor. Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex.1985). The trial court did not specify the ground on which it relied in granting summary judgment; therefore, the summary judgment will be affirmed on appeal if any of the theories advanced are meritorious. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).

McKenzie and Wallace asked for summary judgment on the ground that any legal malpractice was not a proximate cause of damages as a matter of law. Regardless of any damages Mackie or her children may have suffered due to the failure of the will contest, the attorneys' actions must have been the proximate or producing cause of those damages. See TEX.BUS. & COM.CODE ANN. § 17.50(a) (Vernon 1987); Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181 (Tex.1995); Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex.1989).

An attorney malpractice action in Texas is based on negligence and requires proof of four well-known elements: the existence of a duty, the breach of that duty, that the breach was a proximate cause of damages, and that the plaintiff was damaged. Cosgrove, 774 S.W.2d at 664. When a client sues his attorney on the ground that the latter caused him to lose his cause of action, the burden of proof is on the client to prove that his suit would have been successful but for the negligence of his attorney and to show what amount would have been collectible had he recovered the judgment. 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.).

An action grounded in the DTPA requires a showing that the defendants committed false, misleading, or deceptive acts that were a producing cause of actual damages to the plaintiffs. See TEX.BUS. & COM.CODE ANN. § 17.50(a); Haynes & Boone, 896 S.W.2d at 182. A producing cause is an efficient, exciting, or contributing cause. Haynes & Boone, 896 S.W.2d at 182. Establishing producing cause requires the same factual causation as proximate cause, but lacks the foreseeability element embraced by the proximate cause standard. Dubow v. Dragon, 746 S.W.2d 857, 860 (Tex.App.--Dallas 1988, no writ).

Mackie asserts that causation is a question of fact and is an improper subject for summary judgment. Proximate cause is usually a question of fact, and this is true in most legal malpractice cases as well. See Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex.1989) (recognizing general rule that causation is fact question, but finding that causation in appellate legal malpractice case is question of law). Nonetheless, causation may be determined as a matter of law if the circumstances are such that reasonable minds could not arrive at a different conclusion. Missouri Pac. R.R. Co. v. American Statesman, 552 S.W.2d 99, 105 (Tex.1977). Summary judgment in legal malpractice and DTPA actions has been upheld as proper when the movants established that, as a matter of law, the causation element was missing. See, e.g., Thompson v. Vinson & Elkins, 859 S.W.2d 617, 626 (Tex.App.--Houston [1st Dist.] 1993, writ denied); Mathew v. McCoy, 847 S.W.2d 397, 401 (Tex.App.--Houston [14th Dist.] 1993, no writ); Sipes v. Petry and Stewart, 812 S.W.2d 428, 431 (Tex.App.--San Antonio 1991, no writ); MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31 (Tex.App.--Houston [14th Dist.] 1987, no writ).

To succeed in a legal malpractice action, the plaintiff must prove "a suit within a suit" by showing that he would have prevailed in the underlying action but for his attorney's negligence. See Jackson, 516 S.W.2d at 949. Mackie asserts that McKenzie failed to establish that she and her children could not have prevailed in the will contest as a matter of law. She urges that whether the 1984 will was the result of undue influence exerted by the Baylor University Medical Center Foundation is a question of fact and not a proper subject for summary judgment.

Before a will may be set aside because of undue influence, a contestant must prove the existence and exertion of an influence that subverted or overpowered the mind of the testator at the time of execution of the instrument so that the testator executed an instrument he would not otherwise have executed but for such influence. Rothermel v. Duncan, 369 S.W.2d 917, 922 (Tex.1963). Not every...