Court of Appeals. Fifth District of Texas

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1 CV ACCEPTED 225EFJ FIFTH COURT OF APPEALS DALLAS, TEXAS 11 December 28 P7:33 Lisa Matz Mrs. Hooper Requests Oral CLERK Argument In the Court of Appeals for the Fifth District of Texas at Dallas Kelley & Witherspoon, LLP, Kelley/Witherspoon, LLP, Kevin Kelley, and Nuru Witherspoon, Appellants v. Jeannette Hooper, Appellee. BRIEF OF APPELLEE JEANNETTE HOOPER Appeal from the County Court at Law No. 5 Dallas County, Texas; Cause No E WYNNE & WYNNE 127 West James Street B. Prater Monning III Wills Point, Texas State Bar No of the Firm (facsimile) Attorneys for Appellee

2 TABLE OF CONTENTS INDEX OF AUTHORITIES...ii STATEMENT OF THE CASE...2 STATEMENT REGARDING ORAL ARGUMENT...2 STATEMENT OF FACTS...2 A. The Accident... 5 B. The Underlying Lawsuit... 8 C. The Trial D. This Appeal...14 SUMMARY OF THE ARGUMENT...17 ARGUMENT...18 A. Causation B. Legal and Factual Sufficiency C. The Charge...30 CONCLUSION AND PRAYER...34 i

3 INDEX OF AUTHORITIES CASES Alexander v. Turtur & Associates, Inc., 146 S.W.3d 113 (Tex. 2004)... 21, 22 Ballesteros v. Jones, 985 S.W.2d 485 (Tex.App. San Antonio 1998, pet. denied)... 20, 28 Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497 (Tex. 1995) Cook v. Irion, 409 S.W.2d 475 (Tex.Civ.App. San Antonio 1966, no writ) Coastal Tankships, U.S.A., Inc. v. Anderson, 87 S.W.3d 591 (Tex. App. Houston [1st Dist.] 2002, no pet.)... 23, 25 Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989)... 19, 22 Cosgrove v. Grimes, 757 S.W.2d 662 (Tex.App Houston [1st Dist] 1988)... 19, 28 First Valley Bank of Los Fresnos v. Martin, 144 S.W.3d 466 (Tex. 2004)...33 Great American Indem. Co. v. Dabney, 128 S.W.2d 496 (Tex.Civ.App. Amarillo 1939, writ dism d jdgmt cor.) Guevara v. Ferrer, 247 S.W.3d 662 (Tex. 2007) Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998) , 27 Morgan v. Compugraphic Corp., 675 S.W.2d 729 (Tex. 1984) Parker v. Employers Mutual Liability Ins. Co. of Wis., 440 S.W.2d 43 (Tex. 1969) State Office of Risk Management v. Larkins, 258 S.W.3d 686 (Tex. App. Waco 2008, no pet.) ii

4 Webb v. Stockford, 331 S.W.3d 169 (Tex.App. Dallas 2011, rev. denied) ,22 STATUTES AND RULES TEX. DISC. R. PROF. COND. 1.02(b) TEX. R. CIV. P TEX. R. CIV. P. 21, 21a... 5 TEX. R. CIV. P TEX. R. CIV. P TEX. R. CIV. P TEX. R. CIV. P OTHER RESTATEMENT [THIRD] OF THE LAW GOVERNING LAWYERS 48, Annot., Measure and Elements of Damages Recoverable for Attorney s Negligence in Preparing or Conducting Litigation Twentieth Century Cases, 90 A.L.R.4th 1033 (1991)...18 iii

5 CV In the Court of Appeals for the Fifth District of Texas at Dallas Kelley & Witherspoon, LLP, Kelley/Witherspoon, LLP, Kevin Kelley, and Nuru Witherspoon, Appellants v. Jeannette Hooper, Appellee. BRIEF OF APPELLEE JEANNETTE HOOPER TO THE COURT OF APPEALS: Jeannette Hooper ( Jeannette or Mrs. Hooper ) file this Appellee s Brief, showing that there is no error in the Judgment signed by the County Court at Law No. 5 of Dallas County, Texas. 1

6 I. STATEMENT OF THE CASE This is a legal malpractice action brought by Charles Hooper his wife Jeannette against Kevin Kelley and Nuru Witherspoon (as well as their law firms), complaining of acts and omissions in the course of the defendant lawyers representation of Mr. and Mrs. Hooper as plaintiffs in an underlying personal injury case. Charles Hooper died before trial, and upon suggestion of death the case proceeded to trial before a jury in the name of Jeannette Hooper only. Clerk s Record at 229; TEX. R. CIV. P The jury returned a verdict adverse to Kelley & Witherspoon, and Judge Mark Greenberg, judge of the County Court at Law No. 5, signed a Final Judgment on the jury s verdict on June 17, Clerk s Record at 280. II. STATEMENT REGARDING ORAL ARGUMENT case. Mrs. Hooper agrees with Appellants that oral argument is appropriate in this III. STATEMENT OF FACTS The Statement of Facts in Appellants Brief beginning with the opening sentence s characterization of the underlying automobile accident as minor, continuing with Appellants suggestion that they properly and timely responded to 2

7 motions for summary judgment in the underlying personal injury case and that they timely told Mr. and Mrs. Hooper that their case had been lost and explained that they had an opportunity to appeal, and continuing through Appellants sparse and selective summary of the evidence regarding the injuries suffered by Charles Hooper is both demonstrably wrong and incomplete. While Appellants claim that the evidence regarding the claims of Charles Hooper was both legally and factually insufficient, they fail to mention at all that Nuru Witherspoon admitted that Charles Hooper s injuries and resulting medical expenses were a direct result of the negligence of the defendant in the underlying case, and that case was one of clear liability. 3 RR at 101, Plaintiff s Exhibit 5. They also fail to note, in their Statement of Facts that documents received into evidence at trial without any objection by Appellants included not only their own admission as to the nature and causes of Charles Hooper s injuries but also the charges that he incurred in connection with the treatment for those injuries. The same documents included consistent statements, by multiple treating physicians, that Charles Hooper s symptoms, pain, and ensuing disability flowed from a rear end collision on September 24, Appellants defense in the trial court at least the defense that they tried to 3

8 assert was that Mr. and Mrs. Hooper made a mistake, by telling Appellants that the driver of the other car was M.C. Morse, and that Appellants failed to discover the mistake until it was too late. They claimed that by the time they learned that the driver was not M.C. Morse, but Mrs. M.C. Morse, the statute of limitations had run. Appellants (actually only Nuru Witherspoon) testified that there were frequent and continuous communications with Mr. and Mrs. Hooper, both by written correspondence and by telephone, regarding the progress of their case, that they promptly advised Mr. and Mrs. Hooper when their case was lost, and that the Hoopers simply dropped the ball when they elected not to appeal. The jury in this case chose to disbelieve Appellants version of the facts, and with good reason. First, Kevin Kelley, although he was named as a defendant, although he is the only member of the defendant law firm who actually wrote a letter to either Mr. or Mrs. Hooper (yes, there was only one letter from the law firm to its clients) regarding the underlying personal injury case (Plaintiff s Exhibit 4, 8 RR at 5), and although he was the attorney-in-charge in both the underlying case (Plaintiff s Exhibit 6, 8 RR at 12) and the malpractice case (CR at 26 and 282), failed even to show up for trial. Nuru Witherspoon, on the other hand, did appear and did testify. He testified that he frequently corresponded with Mr. and Mrs. 4

9 Hooper regarding their case, but could produce not a single piece of correspondence from him to his clients. He told the jury that affidavits that he presented to the judge in the underlying case were reviewed and signed by Mr. and Mrs. Hooper, but it turned out that the affidavits were both false and forged. He even testified that he did not have time to deal with day-to-day developments in cases entrusted to his care, that he didn t really get involved until he received a call on his private cellphone, and that he frequently does not sign his own letters, or even his pleadings, but simply lets assistants sign for him. 3 RR at 60, 82, 94, Obviously, Mrs. Hooper disagrees with the Statement of Facts included in Appellants Brief, and therefore offers the following accurate Statement of Facts: A. The Accident On September 24, 2004, Charles Hooper and his wife Jeannette were stopped at a traffic signal on Walnut Hill Lane, preparing to turn left onto Preston Road in North Dallas. 2 RR at Charles was in the driver s position, and his wife was seated beside him. Id. While they were stopped in traffic, they were 1 The practice of permitting someone else to sign correspondence and pleadings on behalf of a lawyer may be commonplace, and there may well be lawyers out there who believe themselves too busy to attend to the process of actually reading and signing their own documents. It is, nevertheless, plainly wrong. Pleadings are supposed to be signed by lawyers. TEX. R. CIV. P. 57. A lawyer s signature upon a pleading is supposed to be a meaningful act a certification by the lawyer that he or she has actually read the document and has at the very least made a reasonable inquiry to determine the that pleading is not groundless. TEX. R. CIV. P. 13. In addition, a lawyer s actual signature is required to effect compliance with rules pertaining to filing of documents and service of pleadings. TEX. R. CIV. P. 21, 21a. 5

10 struck from the rear by a Cadillac automobile; the force of the collision was sufficient to cause the Hoopers car to jerk upward and move forward several feet. 2 RR at 56; 3 RR at 32. After the impact Charles exited his vehicle to talk with the apologetic driver of the Cadillac. The driver identified herself as Mrs. M.C. Morse, and wrote her name and address on a notepad. Plaintiff s Exhibit 1; 8 RR at 2. Charles wrote the license plate number of the Cadillac on the notepad and returned to his car with his wife Jeannette. Charles continued through his workday, traveling to make scheduled appointments with elderly clients that he monitored as part of his job with Adult Protective Services. 2 RR at As the day progressed, Charles and Jeannette began to experience pain, particularly in their necks and backs, and at the end of the work day they visited the local K-Clinic, where they received treatment and medication by Dr. Robert Silva. They continued with treatment by Dr. Silva for a period of several weeks., and were eventually released by Dr. Silva, with instructions to return if pain returned. Dr. Silva s complete chart regarding his treatment of both Charles and Jeannette was admitted into evidence without objection. Plaintiff s Exhibit 24, 8 RR at The Appellants Brief at page 5 sets forth an excerpt from Dr. Silva s Release Report pertaining to Charles, but omits from that summary the following: 6

11 It is my medical opinion that, in all reasonable medical probability, the diagnoses, symptoms, and physical findings for which this patient has been treated are directly related to the motor vehicle accident on 9/24/04 to the best of my knowledge and belief. [Portion of report quoted in Appellants Brief] The patient was advised that should he have a recurrence of the symptomatology with increased activities and/or changes in the weather, and these not be relieved by simple at home measures, such as application of heat and/or taking of over-the-counter analgesics, he should then feel free to return to our office for further evaluation and treatment. I have reviewed the charges and feel that they are reasonable for the necessary medical care of this patient. Plaintiff s Exhibit 24, 8 RR at Jeannette Hooper experienced no further problems after being released by Dr. Silva; she got well. 2 Charles, however, continued to have pain. 2 RR at 61; 3 RR at 14. Over the course of the ensuing months, Charles saw several physicians. He was seen initially by his primary doctor, who referred him to the Carrell Clinic. 3 RR at 33. The Carrell Clinic referred him to Dr. Don West, and on March 24, 2005, Dr. West concluded from his examination that Charles suffered from cervicothoracic strain syndrome and ordered an MRI in order to rule out cervical spinal stenosis secondary to MVA 9/24/04. Plaintiff s Exhibit 24, 8 RR at 2 Dr. Silva s Release Report regarding Jeannette also was admitted into evidence, without objection. That report also confirmed that her injuries were directly related to the accident and that the charges for her treatment were reasonable and necessary. Plaintiff s Exhibit 24, 8 RR at

12 159. The ensuing MRI by Dr. Jack Connally confirmed the spinal stenosis. Plaintiff s Exhibit 24, 8 RR at 234. Dr. West, upon receiving the results of the MRI, referred Charles for surgery. Plaintiff s Exhibit 24, 8 RR 161. Over the course of the ensuing ninety days, Charles was evaluated by Drs. Don Barnett, Huntley Chapman, and Guru Motgi, each of whom concluded that surgical intervention was necessary. Plaintiff s Exhibit 24, 8 RR at 167 (Dr. Barnett), , (Dr. Chapman), (Dr. Motgi). Charles was again referred to Dr. Jack Connally for a cervical myelogram and another cervical CT scan, from which Dr. Connally concluded that Charles had stenosis that was most severe at C3-4 and C4-5. Plaintiff s Exhibit 24, 8 RR at 241. In October of 2005, a year after the accident, Charles was referred for surgery to Dr. Andrew E. Park. Plaintiff s Exhibit 24, 8 RR at 202. On December 6, 2005, Dr. Park performed a multilevel anterior cervical diskectomy and fusion and a posterior fusion with instrumentation (screws). Plaintiff s Exhibit 24, 8 RR at The surgery was unsuccessful. 2 RR at 128. B. The Underlying Lawsuit After it became apparent that he would not get well without extensive medical treatment, Charles consulted with his son, Byron Hooper. Byron was 8

13 working as an insurance adjuster at the time, and told his father that he needed to get a lawyer. 2 RR at Charles and Jeannette ultimately made their way into the offices of Kelley & Witherspoon on St. Paul Street in Downtown Dallas in September of 2005, approximately one year post-accident, and met with Nuru Witherspoon. This was the only meeting and the only conversation that either Charles or Jeannette had with any lawyer at Kelley & Witherspoon for almost three years. 2 RR at After listening to Mr. and Mrs. Hooper, and after making a copy of the handwritten note from Mrs. M.C. Morse, Mr. Witherspoon explained to Mr. and Mrs. Hooper that they had a good case, and that he didn t see any problem and would take care of it, you know, right away. 2 RR at 64. On the same day, Mr. and Mrs. Hooper each signed contingent fee agreements, engaging Kelley & Witherspoon as their lawyers. 2 RR at 64-5; Plaintiff s Exhibit 2, 8 RR at 3-4. Shortly after their meeting with Mr. Witherspoon, Mr. and Mrs. Hooper received a letter on Kelley & Witherspoon letterhead (addressed to Mr. and Mrs. Cooper). The letter was dated September 15, 2005 and was signed by Kevin Kelley. Plaintiff s Exhibit 3; 8 RR at 5. The letter thanked Mr. and Mrs. Cooper for 3 Mr. Witherspoon testified at trial that he had multiple meetings and conversations with Mr. and Mrs. Hooper while their case was pending. To the contrary, Mrs. Hooper testified that there were no further meetings, and that while she and her husband tried on many occasions to talk with Mr. Witherspoon, he never answered answered, and never returned a single call. 2 RR at 66, 69. 9

14 hiring Kelley & Witherspoon. This letter is the only letter that Mr. and Mrs. Hooper ever received from anyone at Kelley & Witherspoon. 2 RR at 66. Over the course of the ensuing year, Mr. and Mrs. Hooper attempted to learn about the progress of their matter; they called multiple times, but their calls were never returned. 2 RR at Finally, in September of 2006, Charles became somewhat more animated, and demanded that some paperwork or some evidence or something that the case was taking place and the status of it. 2 RR at 71. On September 11, 2006, Mr. and Mrs. Hooper received by facsimile a photocopy of an Original Petition filed on their behalf on August 28. Plaintiff s Exhibit 6, 8 RR at 9. Upon reviewing the Petition, Mr. and Mrs. Hooper noticed at Mrs. Hooper s first name had been misspelled in the caption and in the body of the Petition a mistake that Mrs. Hooper admitted was somewhat common. 2 RR at 73. However, when Charles noticed that the Petition named M.C. Morse as defendant, he hit the roof and screamed that they had sued the wrong party. 2 RR at 73. Charles logged on to the Dallas Central Appraisal District s website, and confirmed that Mrs. M.C. Morse s name was Alice Z. Morse. 2 RR at He immediately called his lawyers, but he couldn t get Mr. Witherspoon (with whom he d met) nor did he get Mr. Kelley (who was the lawyer listed in the Petition); instead he got an 10

15 assistant. Charles explained to the assistant that the Defendant had been misnamed, and that Alice Z. Morse was the correct Defendant. 2 RR at 76. Charles was told by the assistant that they would take care of it right away. 2 RR at 79. His lawyers in fact did nothing. Later, on November 2, 2006, counsel for M.C. Morse served Kelley & Witherspoon with disclosures under TEX. R. CIV. P In the disclosures, Kelley & Witherspoon were told that Alice Z. Morse was a potential party, that Ms. Morse was the driver involved in the accident. Plaintiff s Exhibit 9, 8 RR at His lawyers again did nothing. 3 RR at On December 6, 2006, counsel for M.C. Morse wrote to Mr. Kelley, and enclosed a copy of a motion for summary judgment that he intended to file. The motion for summary judgment was based upon the fact that M.C. Morse was not the driver and was not involved in the accident. 3 RR at 117. Mr. Kelley did not respond. 3 RR at 118. On December 20, 2006, counsel for M.C. Morse filed the motion for summary judgment; the motion was set for hearing on February 15, RR at 118. Kelley & Witherspoon finally filed a response to the motion for summary judgment on February 12, 2007, three days before the hearing date. Plaintiff s 11

16 Exhibit 12; 8 RR at In the response, they continued to assert the claim that the driver of the vehicle that struck the Hoopers car was M.C. Morse. Attached to the response were affidavits of Charles Hooper and Jeannette Hooper, in which the Hoopers (purportedly) swore that the driver identified herself as M.C. Morse, and that they did not learn that Alice Morse was actually driving the car until after the statute of limitations expired. 8 RR at 63, 65. The affidavits were false, and the signatures of Charles Hooper and Jeannette Hooper on the affidavits were forged; in fact, the person who signed Jeannette Hooper s name even managed to mis-spell Jeannette s first name. 2 RR at The court granted M.C. Morse s motion for summary judgment, by order signed February 16, Plaintiff s Exhibit 16, 8 RR at 71; 3 RR at 131. The summary judgment was not, however, final. On February 15, 2007 on the day the motion for summary judgment was heard Kelley and Witherspoon filed an Amended Petition, in which they finally named Alice Z. Morse as an additional defendant. The case was nevertheless on its last legs. After brief discovery, Alice Z. Morse filed her own limitations-based motion for summary 4 The response to the motion for summary judgment bears a purported signing and service date of February 8, 2007 (seven days before the summary judgment hearing). However, the response was not actually signed by Mr. Witherspoon, but was signed by someone else with the notation wp. See footnote 1, supra. 12

17 judgment, and that motion was set for hearing on June 25, RR at 133. Kelley and Witherspoon filed a response to Alice Z. Morse s motion on June 19 a day late. 3 RR at 134. Kelley and Witherspoon incorporated into their late response the same false and forged affidavits that had accompanied the response to M.C. Morse s motion for summary judgment. Plaintiff s Exhibit 18, RR at 79. The court granted Mrs. Morse s motion for summary judgment, by order signed on the day of the hearing June 25. Plaintiff s Exhibit 19, 8 RR at 90. The case was over; no appeal was perfected. Unfortunately, Charles and Jeannette Hooper did not know that their case had been lost. They didn t know that motions for summary judgment had been filed and granted, they didn t know that affidavits purporting the bear their signatures had been filed with the court. Their lawyers neither wrote them nor called them, and their phone calls to their lawyers were not returned. 2 RR at In the Summer of 2008 a full year after their case had been lost, Mr. and Mrs. Hooper became frustrated. They had heard nothing about their case for a long, long time, and decided to get into their car and travel to Kelley & Witherspoon s office. When they arrived, the office was empty. 2 RR at 93. They returned home and tracked down the law firm s new address on the Internet. 2 RR at 94. They 13

18 drove to the new office on Deep Ellum and asked to see Mr. Witherspoon. Id. After waiting for minutes, they were told by the receptionist that Mr. Witherspoon could not see them and that they would need to make an appointment. Id. They scheduled an appointment for July 21, 2008, and on that day they met with Mr. Witherspoon; this was the first time they had met with or talked to Mr. Witherspoon for almost three years. 2 RR at Mr. Witherspoon told Mr. and Mrs. Hooper that the case had been lost, because they had sued the wrong person, but that he would appeal and that he was going to take care of it himself. 2 RR at 96. One month later, on August 21, 2008, Mr. Witherspoon ed Mr. Hooper, and explained that his contingency fee agreement is limited to the trial process and does not extend to appeals. 5 Plaintiff s Exhibit 20, 8 RR at C. The Trial In May of 2009, Mr. and Mrs. Hooper sued Messrs. Kelley and Witherspoon, as well as their law firm. Trial commenced in May The jury heard from five witnesses. Charles Hooper s son, Byron, and his daughter, Nicole, testified regarding their father s condition before and after the September 24, 2004 accident. 5 Kelley & Witherspoon s Contingency Fee Agreement clearly did not limit the scope of the lawyers responsibility to their clients to representation in the trial court. In fact, the agreement did not contain any limitation at all as to the scope of representation. In any event a lawyer is permitted to limit the scope of the representation of a client only if the client consents after consultation. TEX. DISC. R. PROF. COND. 1.02(b). 14

19 2 RR at 42-44; 3 RR at Both confirmed that their father s favorite sport was basketball, and that he frequently played basketball with both of them before the accident and never again after the accident. Both confirmed that, after the accident, Charles even had difficulty playing his other favorite sports, chess and dominoes. Nuru Witherspoon, as outlined above, testified. He confirmed that he and his law firm agreed to represent Mr. and Mrs. Hooper, that his law firm had sued the wrong person, that his law firm had lost two summary judgments, that his law firm had failed to perfect an appeal, and that the Hoopers case was lost. Jeannette Hooper testified regarding the accident and the ensuing treatment that she and Charles received, as already outlined above. Carl Weinkauf, a Dallas personal injury lawyer, testified regarding his evaluation of the underlying case, and his review of Kelley & Witherspoon s file regarding that case. Mr. Weinkauf outlined the instances in which Kelley & Witherspoon s performance as counsel for Mr. and Mrs. Hooper fell below the applicable standard of care, explained the personal injury lawsuit process to the jury, and testified regarding his assessment of the probable recovery that would have been awarded to Mr. and Mrs. Hooper had the underlying case been properly prosecuted. Mr. Weinkauf s direct testimony began on the afternoon of the second 15

20 day of trial (3 RR at 178) and concluded on the following morning (4 RR at 24). During the cross examination of Mr. Weinkauf, Appellants trial counsel asked Mr. Weinkauf a number of questions regarding the medical care provided to Charles Hooper, as well as the cost of that care. E.g., 4 RR at Mr. Weinkauf explained to the jury (in response to questions from Appellants trial counsel) the significance of the medical doctors findings regarding the injuries that flowed from the September 2004 accident and the meaning of medical terms in the medical records. Finally, Mr. Weinkauf explained to the jury the basis for his confidence that a judgment would have been collectible, had Messrs. Kelley and Witherspoon properly prosecuted the Hoopers lawsuit, because Alice Morse maintained $500,000 in liability insurance coverage, the Hoopers held underinsured motorist coverage, and Alice Morse and her husband had substantial assets. The case was submitted to the jury upon four questions. The jury found that the negligence of both Kevin Kelley and Nuru Witherspoon caused injury to Mr. and Mrs. Hooper, that Charles Hooper would have recovered and collected $225,000 and Jeannette Hooper would have recovered and collected $10,000 had the case been properly prosecuted, and that Kevin Kelley and Nuru Witherspoon were equally responsible. Clerk s Record at

21 On June 17, 2011, the trial judge signed a judgment upon the jury s verdict. D. This Appeal Kelley & Witherspoon timely perfected an appeal and challenges the Final Judgment on the following grounds: (1) Kelley & Witherspoon contends that the evidence is legally and factually insufficient to support the finding of causation in the underlying personal injury case. (2) Kelley & Witherspoon argues that the evidence is legally and factually insufficient to support an award of medical expenses and lost wages. (3) Kelley & Witherspoon insists that the trial court abused its discretion in submitting broad form damages questions to the jury. IV. SUMMARY OF THE ARGUMENT Mrs. Hooper explains that the trial judge and her counsel tried and submitted this case to the jury in a manner consistent with the Supreme Court s direction as to the issues in a legal malpractice case, in accordance with the rules calling for simple and straight-forward jury charges, and in accordance with this Court s most recent opinion regarding the elements of a legal malpractice claim and the jury charge that is appropriate in such cases. Most of the argument in Appellants Brief is devoted to the causation 17

22 element of Mrs. Hooper s claim for legal malpractice, and Mrs. Hooper explains below that there was abundant proof, in the form of testimony by fact witnesses, medical records admitted without objection, Appellants own admissions regarding causation and medical treatment that flowed from the underlying accident, and the uncontroverted and clear testimony of Mrs. Hooper s expert witness, all establishing that Mrs. Hooper and her now-deceased husband sustained serious injuries in an automobile accident, and that they would have prevailed in an action against the person who struck them if only Messrs. Kelley and Witherspoon done what they were hired to do. V. ARGUMENT A claim for legal malpractice sounds in negligence, involving the same standard of care/breach/causation/damages analysis as in any negligence case. RESTATEMENT [THIRD] OF THE LAW GOVERNING LAWYERS, 48, 53. Annot., Measure and Elements of Damages Recoverable for Attorney s Negligence in Preparing or Conducting Litigation Twentieth Century Cases, 90 A.L.R.4th 1033 (1991). There was a time, in Texas, during which lawyers were permitted to urge subjective and inferential defenses to malpractice claims. See e.g., Cook v. Irion, 409 S.W.2d 475, 477 (Tex.Civ.App. San Antonio 1966, no writ); Great American Indem. Co. v. Dabney, 128 S.W.2d 496, 501 (Tex.Civ.App. Amarillo 1939, writ dism d jdgmt cor.) However, any doubt as to whether Texas courts would 18

23 complicate legal malpractice cases or grant lawyers any special treatment when their conduct strays from an applicable standard of care was resolved by the Texas Supreme Court in Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989). Frank Cosgrove (like Charles and Jeannette Hooper) suffered injuries when an automobile he was driving was struck from the rear by Will Stephens. Cosgrove hired an attorney named Ed Bass to prosecute a claim for personal injuries suffered as a result of the accident. Bass dilly-dallied, and eventually passed the case along to another lawyer Walter Grimes. Grimes accepted the case, and Grimes managed to get a law suit filed before the second anniversary of the accident. Unfortunately, Grimes (like Messrs. Kelley and Witherspoon) wasn t careful. He filed the lawsuit against the passenger in Stephens automobile rather than against Stephens, and didn t discover his error until after limitations had run. When Cosgrove sued Grimes, Grimes asserted the so-called good faith defense. The jury ultimately determined that Grimes had in fact been negligent, that his negligence caused harm to Cosgrove, and that Cosgrove would have recovered $2,500 had Grimes properly prosecuted the underlying personal injury case against Stephens. The jury also, on the other hand, returned a finding that Grimes had acted in good faith. The trial judge signed a take nothing judgment. In a wellreasoned opinion based upon substantial Texas precedent, the court of appeals affirmed. Cosgrove v. Grimes, 757 S.W.2d 508 (Tex.App. Houston 1988). The Supreme Court granted review, reversed, and rendered a judgment for Cosgrove 19

24 upon the jury s verdict, holding that there is no good faith defense to legal malpractice, because a claim for legal malpractice is based upon negligence, with four objective elements: The plaintiff must prove that there is a duty owed to him by the defendant, a breach of that duty, that the breach proximately caused the plaintiff injury and that damages occurred. 774 S.W.2d at Cases following Cosgrove v. Grimes have summarized its relatively simple ruling by referring to the causation element of a legal malpractice claim as a suit within a suit. For example, the San Antonio Court of Appeals explained: In order to prevail on a legal malpractice claim which [sic] arises from prior litigation, the plaintiff has the burden to show that but for the attorney s negligence, he or she would be entitled to judgment, and show what amount would have been collectible had he or she recovered the judgment.... This is commonly referred to the suit within a suit requirement. Ballesteros v. Jones, 985 S.W.2d 485, 489 (Tex.App. San Antonio 1998, pet. denied). This Court most recently addressed the suit within a suit concept in Webb v. Stockford, 331 S.W.3d 169 (Tex.App. Dallas 2011, rev. denied). The Court explained that: To recover, the plaintiff must show: (1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach 6 As we explain below, the Supreme Court also explained precisely how the issues of causation and damages should be submitted in a legal malpractice case. The jury charge that had been submitted segregated the elements of damages into two separate questions, and in the form in which they would have been submitted had the underlying rear-end case been tried. The Supreme Court disapproved of the charge, and stated that The two issues should have inquired as to the amount of damages recoverable and collectible from Stephens if the suit had been properly prosecuted. 774 S.W.2d at 666 (emphasis by Court, citing Texas Pattern Jury Charges, PJC (1982). 20

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