Sutton v. Estate of A.F. Mccormick

• Decision Date: 10 May 2001
• Docket Number: No. 13-99-623-CV,13-99-623-CV
• Citation: 47 S.W.3d 179
• Parties: (Tex.App.-Corpus Christi 2001) JOSEPH H. SUTTON, Appellant, v. ESTATE OF A.F. MCCORMICK, DECEASED AND FRANCES ANN MCCORMICK, INDEPENDENT EXECUTRIX OF THE ESTATE OF A.F. MCCORMICK, Appellees.
• Court: Texas Court of Appeals

Page 179

47 S.W.3d 179 (Tex.App.-Corpus Christi 2001)

JOSEPH H. SUTTON, Appellant, v. ESTATE OF A.F. MCCORMICK, DECEASED AND FRANCES ANN MCCORMICK, INDEPENDENT EXECUTRIX OF THE ESTATE OF A.F. MCCORMICK, Appellees.

No. 13-99-623-CV

Court of Appeals of Texas, Corpus Christi.

May 10, 2001.

On appeal from the 357th District Court of Willacy County, Texas.

Before Justices Dorsey, Rodriguez, and Seerden¹

OPINION

Dorsey, Justice.

This is an appeal of a take-nothing judgment entered after a jury verdict in a legal malpractice case. Joseph Sutton sued attorney A.F. McCormick for legal malpractice, claiming that McCormick was negligent in preparing certain legal documents related to a transaction between Sutton and Texas Ostrich Company. Sutton claims that the loan documents prepared by McCormick contained a usurious rate of interest, and as a result, Sutton was sued on the note and ultimately lost money. Attorney McCormick died while the suit was pending, and his estate was substituted for him as a party.²

We hold that the issues in this case were properly submitted to the jury and that sufficient evidence supports its verdict. Accordingly, we AFFIRM the judgment of the trial court.

The first question submitted to the jury stated:

At the time in question, was Joseph Sutton a client of A.F. McCormick with respect to the matter in dispute?

By his first eight points of error, Sutton argues that there was no evidence, or factually insufficient evidence, to justify submission of this question. During oral argument, Sutton conceded that if that issue was properly submitted to the jury, all his other points of error must necessarily fail. We hold that the evidence was sufficient to submit the question to the jury and that the jury's answer that such a relationship did not exist was not against the great weight and preponderance of the evidence.³

Sutton, as plaintiff, had the burden to prove the existence of an attorney-client relationship between himself and Attorney McCormick. Yaklin v. Glusing, Sharpe & Krueger, 875 S.W.2d 380, 383 (Tex. App.--Corpus Christi 1994, no writ). "An attorney-client relationship must exist before an attorney is obligated to provide proper legal services." Moore v. Yarbrough, Jameson & Gray, 993 S.W.2d 760, 763 (Tex. App.--Amarillo 1999, no pet.). This Court has explained:

In order to establish liability [for legal malpractice], a claimant must establish a duty, a breach of that duty, and damages that result from the breach. The duty implicated is that which an attorney owes a client, and before any duty arises there must first be an attorney-client relationship

. . . .

Once the attorney-client relationship is established, numerous duties are owed the client by the lawyer, which, among others, are to use utmost good faith in dealings with the client, to maintain the confidences of the client, and to use reasonable care in rendering professional services to the client. The duties flow from the relationship.

. . .

Yaklin, 875 S.W.2d at 383; accord Stephenson v. LeBoeuf, 16 S.W.3d 829, 836 (Tex. App.--Houston [14th Dist.] 2000, no pet.); Moore, 993 S.W.2d at 763; Honeycutt v. Billingsley, 992 S.W.2d 570, 581 (Tex. App.--Houston [1st Dist.] 1999, pet. denied).

The attorney-client relationship is a contractual relationship whereby an attorney agrees to render professional services for a client. Mellon Service Co. v. Touche Ross & Co., 17 S.W.3d 432, 437 (Tex. App.--Houston [1st Dist.] 2000, no pet.). The relationship may be expressly created by contract, or it may be implied from the actions of the parties. Id.; see also Burnap v. Linnartz, 914 S.W.2d 142, 148 49 (Tex. App.--San Antonio 1995, writ denied) (explaining the requirement that a client be in privity of contract with an attorney in order to have a cause of action for malpractice). For the relationship to be established, "the parties must explicitly or by their conduct manifest an intention to create it. To determine whether there was a meeting of the minds, we use an objective standard examining what the parties said and did and do not look at their subjective states of mind." Roberts v. Healey, 991 S.W.2d 873, 880 (Tex. App.--Houston [14th Dist.] 1999, pet. denied).

Because the evidence did not conclusively establish that an attorney-client relationship existed between Sutton and McCormick that would impose the duty to inquire into the substance of the contract rather than to serve as a mere scrivener between two parties, we hold that the question was properly submitted to the jury. Likewise, we hold the jury's answer to the question was not against the great weight and preponderance of the evidence.

Mr. Sutton testified at trial that he was living in Maine and attempting to relocate to the South Texas area when he first came in contact with attorney McCormick. Sutton's attorney in Maine gave him McCormick's name out of a legal directory as someone to use in purchasing a ranch down in South Texas. Mr. Sutton hired McCormick to represent him in purchasing a ranch.

Before closing on the ranch, Mr. Sutton came in contact with an ostrich rancher, Mr. Mantzel. Sutton learned that Mantzel was having some financial trouble, and might be interested in talking to him about how they could work out an arrangement that would solve Mantzel's financial problems and would enable Sutton to break into the ostrich-farming business. Mantzel flew to Maine, and within a twenty-four hour period, Sutton and Mantzel had negotiated a deal.

While Mantzel was in Maine visiting and negotiating the deal with Sutton, they called attorney McCormick in Raymondville to draw up the paperwork. Sutton testified:

Well, I told [Mantzel], first of all, we would have to have an attorney. I said, "I have mine. I have somebody in mind in Raymondville." And I said -- One of the stipulations was that he or his company [was] to pay for . . . all of my attorney's fees to McCormick. . . .

He then called Attorney McCormick at his office in Texas:

. . . because I wanted Mr. McCormick to start drawing up the contracts as we had agreed to them in my living room, and I wanted him to have all of the information available, so that when he got down there the following day . . . everything would be ready to sign.

The testimony regarding what was said during that phone call was vague. Sutton testified that he put Mantzel on the phone to dictate the terms of their agreement to McCormick's secretary. He then testified as follows:

Q. Mr. Sutton what you had been testifying to about right at the time of the break, what was it that you discussed with Mr. McCormick in the telephone call that you made from your house in Maine to him in Raymondville? Could you continue with that?

A. Well, I just wanted to make sure that he would be available to create a document to protect both Mr. Mantzel and myself; primarily me, though, because he did represent me. And I wanted to be sure that he understood the contents of our agreement that we had just finished making over the telephone. This seemed to be very urgent to Mr. Mantzel. Time was running out on who he had to pay this money to, and I wanted to help in that situation, not to mention the fact that I was benefitting financially as well. And I also wanted to make sure that he understood that Mr. Mantzel was going to be responsible for this. Obviously --

Q. "For this." Do you mean the attorney's fees?

A. Yes. Obviously, when I used to go to a bank to make a loan, I used to pay . . . the attorney's fees that the bank incurred, and in this case [Mantzel] was going to pay my attorney's fees that I incurred. And it made sense and he did.

Q. What else was in the telephone conversation, if anything, with Mr. McCormick?

A. Mr. McCormick told me he better put his secretary on because she would be typing up in draft the agreement, and so it would be easier for her to understand it, and then she could give it to him to review.

Q. And did y'all then proceed to tell her the details of the transaction?

A. Yes, we did.

Q. What then happened?

A. We flew back and signed the deal.

Q. Did Mr. Mantzel pay for your flight?

A. Yes, he did.

Q. Did you go to Mr. McCormick's office when you got to Raymondville?

A. Yes, we did.

Q. Is that where the documents were signed?

A. Yes.

Sutton later testified:

I wanted [McCormick] to be aware that he is drawing this contract up for both parties. Even though he is representing me, he is also wanting to protect, you know, the other party as far as the agreements that I made to the other party in terms of what I was going to perform. . . . He told me he understood what I meant, and he would most definitely protect me.

As McCormick was deceased at the time of the trial, he was obviously unable to give testimony regarding his understanding of the agreement between himself and Mr. Sutton. His estate offered testimony that McCormick's fee was paid by Texas Ostrich Company, not by Mr. Sutton. We find that the jury was within its province in deciding the question of whether an attorney-client relationship existed between Sutton and McCormick with regard to the agreement between Sutton and Texas Ostrich.

The trial court must submit the questions, instructions and definitions that are raised by the written pleadings and the evidence. Tex. R. Civ. P. 278; Gunn Infiniti, Inc. v. O'Byrne, 996 S.W.2d 854, 862 (Tex. 1999). In fact,

A trial court may refuse to submit a question only if no evidence exists to warrant its submission. If there is some evidence to support a jury question and the trial court does not submit the question, the trial court has committed reversible error. In determining whether a trial court should have submitted a question to the jury, the reviewing court must examine the record for evidence...