Schlosser v. Tropoli

• Decision Date: 15 October 1980
• Docket Number: No. B2275,B2275
• Citation: 609 S.W.2d 255
• Parties: Alfred S. SCHLOSSER, Professional Corporation et al., Appellants, v. A. P. TROPOLI, Individually and d/b/a S & A Supply Company, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 255

609 S.W.2d 255

Alfred S. SCHLOSSER, Professional Corporation et al., Appellants, v. A. P. TROPOLI, Individually and d/b/a S & A Supply Company, Appellee.

No. B2275.

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

Oct. 15, 1980.

H. Lee Lewis, Jr., Charles W. Kelly, Ross, Griggs & Harrison, Houston, for appellants.

Carl Ray, Bryan D. Coleman, Law Offices of Ray & Coleman, Houston, for appellee.

Before COULSON, MILLER and SALAZAR, JJ.

MILLER, Justice.

This is a legal malpractice case. A. P. Tropoli Individually and doing business as S & A Supply Company ("Tropoli") brought suit against Alfred C. Schlosser Professional Corporation, Alfred C. Schlosser and Company, Jerry Sadler, and Natalie E. Schlosser, Individually and as Independent Executrix of the Estate of Alfred C. Schlosser, deceased, for damages resulting from the alleged negligence of Alfred C. Schlosser ("Schlosser") in failing to prosecute a suit in which he had been retained to represent Tropoli, and in allowing said suit to be dismissed for want of prosecution. Judgment was entered for Tropoli against the corporation and Natalie Schlosser (as executrix only), in amount of $100,000.00. Defendants appeal, alleging 7 points of error. We affirm.

In late October or early November, 1967, Tropoli began construction of a 70-unit apartment project on Montrose Street in Houston, Texas. While engaged in building the project Tropoli leased scaffolding from Safway Scaffolds Company of Houston ("Safway"), and used same in a plan or design furnished by Safway. The scaffolding supported joists upon which was placed a flat plywood deck with sides, used as a form for pouring concrete to make the first floor of the building. On February 5, 1968, after approximately 45% of the first concrete pour was in place, (about 125 yards of concrete) the scaffolding collapsed and a large section of the wet concrete fell into the basement.

Tropoli employed Schlosser 3 days after the cave-in to represent him and on September 27, 1968 Schlosser, by counterclaim filed suit on Tropoli's claim against Safway. The Safway suit was dismissed for want of prosecution (pursuant to a blanket order of dismissal) on April 3, 1972. Schlosser died on June 29, 1972 and thereafter Tropoli advised Schlosser's office that he wanted his legal files sent to another attorney and on March 9, 1973 the files were transferred to another attorney selected by Tropoli.

Thereafter, Tropoli filed the instant suit against the appellants. Upon submission of the case on special issues to the jury, it was found that Schlosser was negligent in allowing the Safway suit to be dismissed and damages were assessed at $100,000.00. Judgment was entered against Schlosser's corporation and Natalie Schlosser as executrix for this amount and appellants then perfected this appeal.

Appellant, in several points of error, asserts that there is no evidence to support a finding by the jury and that a finding by the jury is against the great weight and preponderance of the evidence. In addressing the "no evidence" points we must look only to the evidence which supports the findings of the jury and disregard all evidence to the contrary. In reviewing appellant's "insufficient evidence" or "great weight" points of error we must consider and weigh all the evidence in the record and set aside the verdict if it is so against the great weight and preponderance of the evidence as to be manifestly unjust. In re King's Estate, 150 Tex. 662, 244 S.W.2d 660 (1951) (per curiam); Rourke v. Garza, 530 S.W.2d 794 (Tex.1975); Wilk v. Riggers & Constructors, 592 S.W.2d 16 (Tex.Civ.App.-Beaumont 1979, writ ref'd n.r.e.). We will therefore examine the record with these standards in mind.

Appellant's point of error 1 asserts that there was no competent evidence in the record to show that any judgment Tropoli might have recovered against Safway Scaffolds Company would have been collectible. We disagree.

The Texas Supreme Court, in Moore v. Grantham, 599 S.W.2d 287 (Tex.1980), was faced with the question of what is admissible as competent evidence when an expert testifies. The Court in Moore held that an expert's opinion may not be properly admitted into evidence if based solely on hearsay, even if the hearsay is of a type upon which the expert and others within his profession customarily rely. On the other hand, the Moore court declared that where an expert's opinion testimony is predicated both upon personal knowledge and upon hearsay, his testimony is admissible.

Appellant here alleges that there was no competent evidence as to the collectibility of a judgment against Safway Scaffolding Company and in this regard argues that appellee's expert in this area relied on hearsay evidence in his testimony as to Safway's ability to pay a judgment of a certain dollar amount. In fact, a close examination of the record will indicate that Worthington did not rely solely on the reports, balance statements, and tax returns which appellant asserts as hearsay. He also based his testimony on his own personal knowledge. On page 1245 of Volume 6 of the Statement of Facts the following exchange took place:

Question: (By Mr. Ray) In essence, the question was whether or not the net assets of Safway Scaffolds Company of Houston, from your own knowledge, would today would be sufficient to satisfy a judgment assuming that a judgment had been rendered against Safway Scaffolds Company of Houston-to satisfy that judgment in the amount of at least $500,000.00?

Answer: (By Mr. Worthington) Yes, it would.

Because Worthington based part of his opinion testimony on personal knowledge, all of his opinion testimony is competent, even if appellant's assertions were true and a portion of his testimony was based on hearsay evidence. In addition to Worthington's evidence as to collectibility of a judgment against Safway, there was testimony from Mr. James Wyckoff, an attorney retained by Fireman's Fund Insurance Company to defend Safway Scaffolds Company of Houston, which indicated that there was insurance in existence insuring Safway Scaffolds and that he (Wycoff) was indirectly advised of the policy limits of the policy. Taken together, the testimony in the record amounts to some competent evidence that a judgment against Safway Scaffolds Company would have been collectible. Point of error 1 is therefore overruled.

Points of error 2 and 3 allege, respectively, that there is no evidence to support the jury's findings of negligence of Schlosser in answer to Special Issues 10, 12, 14 and 16, and that it was error for the lower court to submit Special Issues 10, 12, 14 and 16 because each of these issues assumes the truth of a fact as to which there is no evidence.

Appellant relies heavily on Rotello v. State, 492 S.W.2d 347 (Tex.Civ.App.-Houston (1st Dist.), writ ref'd n. r. e.), where it was held that a suit for injunction was improperly dismissed in that the case had not been set for trial in accordance with the Rules of Civil Procedure or placed on a dismissal docket by the trial judge. The judge in Rotello simply filed a letter "To all Attorneys Practicing in the 85th Judicial District" stating that on January 4, 1972 all civil cases filed prior to January 1, 1970 would be dismissed for want of prosecution. The facts in Rotello are clearly...