Mathew v. McCoy

• Decision Date: 04 February 1993
• Docket Number: No. A14-92-00304-CV,A14-92-00304-CV
• Parties: Annamma and Jacob MATHEW, Individually, and as next friend of Sobhana Mathew, a minor, Appellants, v. Barney L. McCOY, Law Offices Of Barney L. McCoy, P.C., Sinderson, Daffin, Flores & Stool, a Texas general partnership, Mary Sinderson, Mary A. Daffin, Maria A. Flores-Beck and Anna E. Stool, Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 397

847 S.W.2d 397

Annamma and Jacob MATHEW, Individually, and as next friend of Sobhana Mathew, a minor, Appellants, v. Barney L. McCOY, Law Offices Of Barney L. McCoy, P.C Sinderson, Daffin, Flores & Stool, a Texas general partnership, Mary Sinderson, Mary A. Daffin, Maria A Flores-Beck and Anna E. Stool, Appellees.

No. A14-92-00304-CV.

Court of Appeals of Texas Houston (14th Dist.).

Feb. 4, 1993.

George R. Neely, Houston, for appellants.

Kenneth R. Breitbeil, R. Edward Perkins, Richard A. Sheehy,Lauren L. Beck, Houston, for appellees.

Before J. CURTISS BROWN, C.J., and SEARS and ELLISS, JJ.

OPINION

SEARS, Justice.

In this appeal from a summary judgment, the parents of a young daughter, whose meningitis was allegedly misdiagnosed, contend the attorneys prosecuting their medical malpractice claim committed legal malpractice. In six points of error, appellants claim (1) the motion for summary judgment should have been held in abeyance due to a protective order entered in another trial court, and (2) summary judgment was improper. We affirm.

On June 29, 1984, Jacob and Annamma Mathew, as next friends of their daughter, Sobhana, entered into a contingency fee agreement with the law firm of Sinderson, Daffin, Flores & Stool ("the Sinderson law firm") to represent them in a medical malpractice action to be filed against Dr. Gary Nimetz and Dr. Alvin Jaffee. The underlying claim arises from the Mathews' contention that Drs. Nimetz and Jaffee examined Sobhana in May, 1982, but failed to diagnose her as having meningitis. In December, 1984, the Sinderson law firm referred the Mathews' case to attorney Barney L. McCoy, who filed suit against the doctors two years later, on December 19, 1986. On October 12, 1988, the Mathews filed a motion for nonsuit without prejudice, which the trial court signed October 31, 1988. The Mathews filed this legal malpractice claim against McCoy and the Sinderson law firm on June 4, 1990, adding the individual attorneys as defendants on May 24, 1991.

Appellees filed a motion for summary judgment on November 4, 1991, claiming there could be no cause of action for legal malpractice in regard to a medical malpractice claim, because the medical malpractice claim was barred by the two-year statute of limitations before appellants contacted the Sinderson law firm. Appellants failed to file a response to controvert the summary judgment proof offered by appellees. Further, appellants' attorney failed to appear at the summary judgment hearing. Instead, he filed a continuance, alleging he was too busy to timely respond. The motion was not verified as required, was not served on opposing counsel, and failed to state a sufficient cause. See TEX.R.CIV.P. 251.

On November 27, 1991, the trial court granted the law firms' motion for summary judgment. The Mathews filed a "Motion to Set Aside Order" on December 19, 1991. Appellants contend that such a motion to reconsider a final, appealable judgment constitutes a motion for new trial. See Hill v. Bellville Gen. Hosp., 735 S.W.2d 675, 677 (Tex.App.--Houston [1st Dist.] 1987, no writ). That motion was denied by written order December 23, 1991. Four days later, the Mathews filed another motion, styled "Motion for New Trial," on which the trial court took no action. This appeal followed.

First, appellants contend their "Motion for Protection," although not verified, required the trial court to continue the hearing on appellees' motion for summary judgment. However, a motion for continuance is required to be verified. See Villegas v. Carter, 711 S.W.2d 624, 626 (Tex.1986) (denial of motion for continuance presumed not a clear abuse of discretion where motion is not verified); City of Houston v. Blackbird, 658 S.W.2d 269, 272 (Tex.App.--Houston [1st Dist.] 1983, writ dism'd) (court of appeals must presume trial court did not abuse its discretion in denying motion for continuance not verified, as required by TEX.R.CIV.P. 251, 252). In addition, appellants failed to obtain a ruling on their "motion for protection," and there is nothing in the record to show that appellants ever set the motion for an oral hearing or for submission. Motions made in a pending lawsuit are waived unless presented to and acted upon by the trial court prior to rendition of judgment. Martin v. Uvalde Sav. & Loan Ass'n, 773 S.W.2d 808, 814 (Tex.App.--San Antonio 1989, no writ); see Cabrera v. Cedarapids, Inc., 834 S.W.2d 615, 618 (Tex.App.--Houston [14th Dist.] 1992, writ granted) (citations omitted); Calaway v. Gardner, 525 S.W.2d 262, 264 (Tex.Civ.App.--Houston [14th Dist.] 1975, no writ). Error, if any, was waived. Regarding appellants' arguments that their constitutional and due process rights were violated, these contentions were waived by failing to raise them in a timely motion for new trial. TEX.R.APP.P. 52(a); see St. Gelais v. Jackson, 769 S.W.2d 249, 251 (Tex.App.--Houston [14th Dist.] 1988, no writ). Issues not expressly presented to the trial court by written motion, answer, or other response may not be considered as grounds for reversal on appeal. TEX.R.CIV.P. 166a(c). Cases cited by the Mathews pertaining to discovery sanctions are irrelevant to the issue before this Court. We overrule points of error one and two.

Next, appellants contend the grounds presented to the trial court are insufficient as a matter of law to support the summary judgment. Specifically, their points of error three through six assert (1) limitations as improper grounds for the ruling, and (2) genuine issues of material fact that preclude summary judgment. Because the Mathews failed to respond to the motion for summary judgment, the only issue to be resolved is whether summary judgment proof presented to the trial court is sufficient as a matter of law to support the summary judgment. City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). In addition, the summary judgment does not specify the ground or grounds relied on by the trial court; therefore, we must affirm the judgment if any of the theories advanced are meritorious. Carr v. Brasher, 776 S.W.2d 567 (Tex.1989). Appellees contend the undisputed factual evidence and defenses presented to the trial court as summary judgment proof bar recovery as a matter of law. Citizens First Nat'l Bank v. Cinco Exploration Co., 540 S.W.2d 292, 294 (Tex.1976) (citations omitted).

Legal malpractice is governed by a two-year statute of limitations, regardless of whether the action is couched in terms of contract or some other theory of recovery. Willis v. Maverick, 760 S.W.2d 642, 644 (Tex.1988); Gumm v. Owen, 815 S.W.2d 259, 261 (Tex.App.--El Paso 1991, no writ). Certainly, limitations on appellants' claim for legal malpractice began to run no later than October 31, 1988, when the medical malpractice claim was dismissed. Because the individual attorneys were not added as parties nor served until more than two years had passed, limitations had run, and no judgment can be taken against them. Cothrum Drilling Co. v. Partee, 790 S.W.2d 796, 800 (Tex.App.--Eastland 1990, writ denied) (citations omitted). Point of error...