Roberts v. Healey, 14-96-01306-CV

• Decision Date: 11 February 1999
• Docket Number: No. 14-96-01306-CV,14-96-01306-CV
• Citation: 991 S.W.2d 873
• Parties: Karin M. ROBERTS, et al., Appellants, v. James Sean HEALEY and James Sean Healey, P.C., Appellees. (14th Dist.)
• Court: Texas Court of Appeals

Page 873

991 S.W.2d 873

Karin M. ROBERTS, et al., Appellants, v. James Sean HEALEY and James Sean Healey, P.C., Appellees.

No. 14-96-01306-CV.

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

Feb. 11, 1999.

Rehearing Overruled April 8, 1999.

Andrew C. Schirrmeister of Houston, TX, for appellants.

Greg K. Winslett of Dallas, TX, James K. Peden, III of Dallas, TX, for appellees.

Panel consists of Justices LEE, ANDERSON and O'NEILL.

OPINION

ANDERSON, J.

This is an appeal from a summary judgment in a suit for damages arising from an attorney's failure to obtain a protective order against his client's estranged husband, resulting in the death of his client's two small children and injury to her mother. Appellants, Karin M. and Majorie Roberts, sued James Sean Healey and James Sean Healey, P.C. (Healey) for negligence, gross negligence, breach of contract, breach of warranty, and Deceptive Trade Practices Act (DTPA) violations. From the trial court's granting of summary judgment for appellees on all causes of action, appellants bring a single point of error asserting the trial court erred in granting summary judgment. We affirm in part and reverse and remand in part.

Facts

Karin Roberts married Daniel Charles Kennedy on July 6, 1991, and they had two children, Ashli Patriciamae, born on December 10, 1991, and Alexis Marie, born on March 20, 1994. During the marriage, Kennedy developed a drug habit and became increasingly unstable. By September 1994, Kennedy's behavior had become so erratic that Karin asked him to move out of their mobile home. On October 11, 1994, Karin contacted Healey's office to discuss representation in a divorce and scheduled an appointment for October 13.

Kennedy made harassing telephone calls and pages to Karin, including several threats which she relayed to Healey. Karin also told Healey about Kennedy's drug use. At Healey's request, Karin prepared a narrative outlining Kennedy's violent history to be used in obtaining a temporary restraining order. Healey converted the outline into an affidavit, which Karin later signed. Healey then filed an application for a restraining order with the original divorce petition, but never made any effort to obtain a signed protective order despite repeated calls from Karin and her mother, Marjorie Roberts. ¹

Because of Kennedy's behavior, Karin moved to a new apartment with her daughters. On one occasion, she called the police and asked that they keep Kennedy from following her because she was afraid Kennedy would locate her new apartment.

On November 1, 1994, Kennedy attempted to commit suicide, which Karin reported to Healey. Kennedy was admitted to a psychiatric ward, but checked out two days later. A few days later, Kennedy left a note on the door of Karin's apartment. Fearful that Kennedy had learned where she lived, Karin immediately took the note to Healey's office and gave it to his secretary.

On November 16, 1994, Kennedy, while high on cocaine, confronted Karin in the parking lot outside her apartment as she was leaving for work. Kennedy forced Karin to accompany him to the apartment, where he broke in and shot and killed his two children. He also shot and wounded his mother-in-law, Marjorie, and then committed suicide.

Appellants then filed this suit, contending Healey's failure to obtain a protective order constituted negligence, breach of contract or warranty, and breach of statutory duties under the DTPA, all of which caused the deaths of the two children, the wounding of Marjorie, and the resulting damages. ² The trial court granted Healey's motion for summary judgment on all causes of action, and this appeal resulted.

Standard of Review

In reviewing a summary judgment, we indulge every reasonable inference in the non-movant's favor and take the evidence favorable to the non-movant as true. See Nixon v. Mr. Property Management Co. ., 690 S.W.2d 546, 548-49 (Tex.1985). Summary judgment for the defendant is proper if the proof shows there is no genuine issue of material fact as to one or more of the essential elements of the plaintiff's cause of action. See Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex.1990); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). When the trial court does not specify the grounds for granting summary judgment, as here, we will affirm the judgment if any one of the theories advanced in the motion are meritorious. See State Farm Fire & Casualty Co. v. S.S., 858 S.W.2d 374, 380 (Tex.1993).

Causation

Healey moved for summary judgment on the basis that he disproved one element of all of appellants' claims, causation, as a matter of law. Healey argued that his failure to obtain a protective order against Kennedy was not, as a matter of law, the proximate or producing cause of appellants' injuries. ³

The elements of a negligence cause of action are duty, breach of that duty, and damages proximately caused by the breach of duty. See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). Proximate cause consists of cause in fact and foreseeability. See id. at 477; Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex.1992). The elements of a DTPA action are: (1) the plaintiff is a consumer, (2) the defendant engaged in false, misleading, or deceptive acts, and (3) these acts constituted a producing cause of the consumer's damages. See Doe, 907 S.W.2d at 478. A producing cause is "an efficient, exciting, or contributing cause, which in a natural sequence, produced injuries or damages complained of, if any." Union Pump Co. v. Allbritton, 898 S.W.2d 773, 775 (Tex.1995). Producing cause lacks the "foreseeability" element that is contemplated in the proximate cause standard. See Wheaton Van Lines, Inc. v. Mason, 925 S.W.2d 722, 728 (Tex.App.--Fort Worth 1996, writ denied).

Cause in fact is a common element to both negligence and DTPA actions. The test for cause in fact is whether the defendant's act or omission was a substantial factor in bringing about the injury which would not otherwise have occurred. See Prudential Ins. Co. of Am. v. Jefferson Assocs., Ltd., 896 S.W.2d 156, 161 (Tex.1995). Generally, the issue of proximate cause tends to be a fact question, although some causes in fact do not constitute legal causation as a matter of law. See Union Pump, 898 S.W.2d at 775-76.

A plaintiff must plead and prove that the defendant's negligence is the proximate cause of his injury. Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex.1996). Proximate cause consists of cause in fact and foreseeability. ⁴ See Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex.1995). "These elements cannot be established by mere conjecture, guess, or speculation." Id. Cause in fact does not exist if the defendant's negligence does no more than furnish a condition which made the injury possible. Union Pump, 898 S.W.2d at 776. The test for cause in fact is whether the negligent "act or omission was a substantial factor in bringing about injury," without which the harm would not have occurred. Doe, 907 S.W.2d at 477. However, any act of negligence that does no more than put a person in a particular place at a particular time is too remote to constitute legal cause. See Lear Siegler Inc., 819 S.W.2d at 472 (holding the "happenstance" of place and time were too attenuated from the defendant's conduct to constitute legal cause when a highway worker was killed when he was hit by a car after he stopped his street sweeper to check on a malfunctioning flashing arrow sign); cf. Doe, 907 S.W.2d at 477-78 (holding that any breach of the Boys Club's duty to investigate its volunteers was not the cause in fact of the plaintiffs' injuries because even if the club had investigated the volunteer's criminal record, revelation of the two misdemeanor DWI convictions would not have precluded his presence at the club so that he could not sexually molest boys he met at the club).

In his motion for summary judgment, Healey argued that even if he had obtained a protective order Kennedy would nevertheless have killed his daughters and shot Marjorie. Therefore, Healey contends his failure to actually obtain a protective order did not cause the injuries, and that even if a protective order had been entered, it would not have deterred Kennedy. As proof, he attached to his summary judgment motion a portion of Karin's deposition stating she lied to Kennedy on the day of the attack telling him she already had a protective order in an attempt to prevent his violent acts.

At some point in the causal chain, the defendant's conduct may be too remotely connected with the plaintiff's injury to constitute legal causation. See Union Pump, 898 S.W.2d at 775. The court in Union Pump noted the difficulty we face here, of drawing the line where legal causation may exist and where, as a matter of law, it cannot. Id. The court held that legal cause is not established if the defendant's conduct does no more than furnish the condition that makes the plaintiff's injury possible. Id. at 776. Viewing the evidence in the light most favorable to Karin, Healey's failure to obtain a protective order did no more than create the condition (absence of a protective order) that enabled Kennedy to kill Karin's children and wound her mother. Cf. Holder v. Mellon Mortgage Co., 954 S.W.2d 786, 801 (Tex.App.--Houston [14th Dist.] 1997, pet granted) (declining to apply Union Pump to premises liability action and finding causation was not 'too attenuated' in negligence case against owner of isolated and unattended parking garage where police officer brought motorist to sexually assault). We hold that Healy's failure to obtain a protective order is too attenuated from Kennedy's criminal conduct to constitute a legal cause of injury to Karin, her mother, and her children.

While there may be a fact question as to foreseeability because Healey was aware of numerous threats made by Kennedy immediately prior to his attack, ⁵ it is immaterial in...