Rice v. Forestier, 14576

• Decision Date: 12 April 1967
• Docket Number: No. 14576,14576
• Citation: 415 S.W.2d 711
• Parties: Robert H. RICE, Appellant, v. Danny FORESTIER, Appellee. . San Antonio
• Court: Texas Court of Appeals

Page 711

415 S.W.2d 711

Robert H. RICE, Appellant, v. Danny FORESTIER, Appellee.

No. 14576.

Court of Civil Appeals of Texas San Antonio.

April 12, 1967.

Rehearing Denied May 10, 1967.

Sam J. Dotson, John W. Bell, San Antonio, for appellant.

Chapin, Narciso & Cameron, San Antonio, for appellee.

BARROW, Chief Justice.

This is an action for legal malpractice. This suit was filed by appellee, Danny Forestier, to recover damages sustained by him as a result of a default judgment taken against him in a suit for debt filed in Jefferson County, Texas, by the Standard Brass & Manufacturing Co. Judgment was herein rendered in the sum of $1,250 .00, based upon jury findings that appellant, Robert H. Rice, Esq., negligently failed to advise appellee, within a reasonable time after receipt of the suit papers, that Rice would not act as Forestier's personal attorney in the Standard Co. suit, and that this negligence was a proximate cause of appellant's monetary loss of $1,250.00.

Appellant urges fifteen assignments of error, which may be grouped under two basic propositions. First. Since the jury found that Forestier did not employ Rice to act as his personal attorney in the Standard Co. suit there is no basis for liability against Rice. This proposition is based on an alleged lack of pleadings to support a judgment against Rice under the negligence theory, as well as a lack of duty on the part of Rice necessary to support the finding of negligence. Second. There is no evidence of probative force to support the jury finding that Forestier had a meritorious defense to the Standard Co. suit.

In his petition Forestier alleged Rice negligently breached his contract of employment with Forestier in that Rice (1) failed to file a legal answer in the Standard Co. suit, and (2) failed to advise Forestier that Rice was not going to act as the latter's attorney in this suit, so that Forestier could secure other counsel to protect his interest. Although both allegations have reference to a 'contract of employment,' the second allegation presents an alternative cause of action which of necessity would be based upon Rice's decision not to accept a contract of employment. It is our opinion that in the absence of a special exception, this allegation is sufficient to give appellant fair notice of this alternative claim. Rules 47, 48, Texas Rules of Civil Procedure. In any event, Rice waived any defect in this pleading by his failure to object to the submission of this theory to the jury. Rule 274, T.R.C.P.; Turner v. Turner, Tex.Civ.App., 384 S.W.2d 195, no writ; Minugh v. Royal Crown Bottling Co., Tex.Civ.App., 267 S.W.2d 861, writ ref'd.

The question under the first proposition is therefore narrowed to whether or not Rice owed such a duty to Forestier so as to support the jury's finding of negligence. The Standard Co. suit was in the form of a sworn account brought against Forestier Sheet Metal, Inc., and Danny Forestier. There was no such corporation in existence, although prior to 1961, when Forestier had incorporated the family business under the name of Forestier, Inc., he and his mother did business as Forestier Sheet Metal. Both citations were served upon Forestier on December 17, 1964, and were returnable on or before January 11, 1965. No answer was filed, and default judgment was entered on January 13, 1965, against Forestier Sheet Metal, Inc. and Danny Forestier, jointly and severally, for the debt of $1,499.37, plus attorney's fees of $500.00.

On December 17, 1964, Rice was representing Forestier in a voluntary bankruptcy proceeding filed on behalf of Forestier, Inc., which was not concluded until January 19, 1965. Rice had also handled at least two other legal matters for Forestier and his wife, personally. One of these other matters was not concluded until the summer of 1965. On these occasions statements for services and expenses were sent to Forestier by Rice, from time to time, and paid by Forestier.

There is a conflict in the testimony as to whether or not Forestier delivered the citations in the Standard Co. suit to Rice personally. Forestier testified that he did so and that Rice said he would take care of the matter. Rice denied receiving the papers from Forestier or even discussing the same with him, and testified that Forestier's wife left the citations in Rice's office with the latter's secretary. In any event, there is no testimony that Rice ever declines to represent Forestier in this or any other matter until after the judgment was taken. ¹ The record is undisputed that Rice knew the citations were in his...