Maxey v. Morrison, 13-92-106-CV

• Decision Date: 17 December 1992
• Docket Number: No. 13-92-106-CV,13-92-106-CV
• Citation: 843 S.W.2d 768
• Parties: Bryan MAXEY, Appellant, v. Richard MORRISON, et al., Appellees.
• Court: Texas Court of Appeals

Page 768

843 S.W.2d 768

Bryan MAXEY, Appellant, v. Richard MORRISON, et al., Appellees.

No. 13-92-106-CV.

Court of Appeals of Texas,

Corpus Christi.

Dec. 17, 1992.

Rehearing Overruled Jan. 14, 1993.

Bryan Maxey, Houston, for appellant.

Warren R. Taylor, Floyd, Taylor & Riley, Kenneth W. Burch, Gray, Burch & Haddad, Ralph E. Burnham, Floyd, Taylor & Riley, Houston, for appellees.

Before NYE, C.J., and GILBERTO HINOJOSA, and FEDERICO G. HINOJOSA, Jr., JJ.

OPINION

NYE, Chief Justice.

Brian Maxey appeals from a take-nothing judgment, rendered against him following a trial on his bill of review. Maxey brought a legal malpractice claim against appellees alleging negligence in handling an appeal. Maxey, appearing pro se in this Court, complains of the judgment by six points of error.

Maxey hired Richard Morrison to prosecute an appeal for him. The appeal was eventually dismissed for want of prosecution. Maxey then filed a legal malpractice suit against Morrison and Morrison's employers (appellees). The malpractice suit was also dismissed for want of prosecution. Maxey then filed a bill of review. The trial court rendered summary judgment in favor of appellees on the bill of review. Maxey appealed. In an unpublished opinion, the First Court of Appeals ruled that the proceeding on Maxey's bill of review raised fact questions on whether the malpractice case was dismissed due to official mistake or due to Maxey's own negligence. Maxey v. Morrison, No. 01-88-00166-CV, 1989 WL 66231 (Tex.App.--Houston [1st Dist.] June 8, 1989, n.w.h.) (not designated for publication). The Houston First Court of Appeals remanded the case for a hearing on the bill of review. After the hearing, the trial court rendered judgment against Maxey, finding that he failed to meet his burden of proof. We affirm the trial court's judgment.

By points one and six, Maxey complains that the trial court erred by holding a hearing after the Court of Appeals ruled for him. Maxey apparently misunderstands the nature of the summary judgment procedure from which he appealed, as well as the relief granted him by the First Court of Appeals. In a summary judgment proceeding, the movant (appellees here) seeks to establish that a trial on the merits is unnecessary because there are no genuine issues of material facts as to one or more of the essential elements of the plaintiff's cause of action and that the movant is entitled to judgment as a matter of law. Harbour Heights Dev., Inc. v. Seaback, 596 S.W.2d 296, 297 (Tex.Civ.App.--Houston [14th Dist.] 1980, no writ). The First Court of Appeals' opinion merely granted Maxey the right to a hearing in order to prove the elements of his bill of review. It did not entitle Maxey to a jury trial on his malpractice claim. The Court of Appeals could not have rendered judgment in Maxey's favor on the bill of review because Maxey did not move for summary judgment before the trial court. City of West Tawakoni v. Williams, 742 S.W.2d 489, 495 (Tex.App.--Dallas 1987, writ denied). The trial court did not err in holding a hearing on the bill of review.

Maxey further complains that the trial court erred in closing his case rather than granting a jury trial after the bill of review hearing. A bill of review is an equitable proceeding by a party to a former action who seeks to set aside a judgment that is no longer appealable or subject to a motion for new trial. Ortega v. First Republicbank Fort Worth, 792 S.W.2d 452, 453 (Tex.1990); State v. Buentello, 800 S.W.2d 320, 325 (Tex.App.--Corpus Christi 1990, no writ.). A bill of review petitioner must plead and prove: (1) a meritorious claim or defense; (2) that he was prevented from making by fraud, accident or wrongful act of his opponent; (3) unmixed with any fault or negligence of his own. Ortega, 792 S.W.2d at 453.

To prevail on his bill of review, Maxey was first required to prove that he had a meritorious underlying claim (i.e. that the malpractice suit was meritorious). Beck v. Beck, 771 S.W.2d 141, 142 (Tex.1989); Buentello, 800 S.W.2d at 325. Maxey had to establish a prima facie meritorious claim by showing that judgment would be rendered in his favor on the merits of the underlying lawsuit if no evidence to the contrary were offered. Baker v. Goldsmith, 582 S.W.2d 404, 409 (Tex.1979). Once he established that he had a meritorious claim, Maxey would also have had to show that the dismissal of the malpractice suit was not due to official mistake, nor due to any fault or negligence of his own. ¹ State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex.1989).

In an appellate legal malpractice suit, the claimant is required to prove that, but for the attorney's negligence, he would have prevailed on the appeal. Milhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex.1989). Such a showing is required because if the appeal would not have been successful, any alleged negligence on the part of the attorney could not have caused the claimant any damage. Maxey asserted that, but for Morrison's negligence, he would have won his appeal. In order to prove this, Maxey was required to bring to the trial court the same evidence he would have presented to the court of appeals, such as the transcript, the statement of facts, proposed points of error, and the law in support thereof. See generally Buentello, 800 S.W.2d at 327; TEX.R.APP.P. 50, 74. We briefly review the facts of the lawsuit underlying the appeal which Maxey claims was negligently handled.

Maxey purchased two apartment complexes from American General Insurance Company (American General) for approximately $900,000. He defaulted on the note and American General foreclosed. Thereafter, Maxey sued American General for misrepresenting the amount of rental income from the apartments. American General counter-claimed for the deficiency on the note. After a jury trial, judgment was entered against Maxey on both his claims and American General's counter-claim. Maxey appealed, and hired Morrison to prosecute the case on appeal. The case was transferred to the Tyler Court of Appeals. Maxey alleges that Morrison secured some 14 continuances, after which the Tyler court dismissed the case for want of prosecution. At that point, Maxey proceeded pro se and filed suit against Morrison and his employers for legal malpractice. The dismissal of the malpractice suit leads us to the present action on Maxey's bill of review.

Maxey had to establish a prima facie case of appellate legal malpractice in order to prevail on his bill of review and obtain a reinstatement of his own cause of action.

The only evidence Maxey brought from the appeal of his case against American General was three jury questions in which the jury found the value of the property Maxey purchased. Although the jury apparently found a difference in the value of the property before the sale to Maxey and its value immediately thereafter, the jury refused to find that the seller falsely represented the monthly income figures from the property. Maxey argues that the two favorable jury responses entitled him to judgment. Neither the trial court nor the appellate court had enough evidence before it to determine if the jury's answers fatally conflicted, as Maxey seems to assert. Without the statement of facts, the appellate court must presume that the evidence adduced at trial supports the jury's findings and the trial court's judgment. Murray v. Devco Ltd., 731 S.W.2d 555, 557 (Tex.1987). Without more of the record from the first suit, the jury's answers and Maxey's argument, standing alone, are wholly inadequate to prove that Maxey would have succeeded in his original appeal. Maxey admitted at the hearing that he did not have the documents from the Tyler appeal. Such evidence was necessary in order for him to establish his prima facie case of appellate legal malpractice.

Having found that Maxey did not prove an...