Whitsett v. Junell

OPINION ON REHEARING

ANDERSON, Justice.

Appellees, William E. Junell and the firm of Andrews & Kurth L.L.P., raise five points in their motion for rehearing challenging our disposition of Whitsett’s appeal from the summary judgment granted in favor of ap-pellees by the trial court. We overrule the motion for rehearing, but nevertheless issue an opinion on rehearing to address our application of Mackie v. McKenzie to appellees’ motion for summary judgment.

In Mackie v. McKenzie, 900 S.W.2d 445 (Tex.App.—Texarkana 1995, writ denied), Ms. Mackie engaged Mr. McKenzie, an attorney, to represent her in a suit contesting the probate of her uncle’s will based on undue influence of third parties. The suit was filed, but later Mackie dismissed McKenzie as her attorney and hired substitute counsel. The underlying probate action was settled, and Mackie and her children filed suit against McKenzie and his firm, McKenzie & Baer, and an associate, Jay Wallace, alleging negligence and false, misleading, and deceptive acts. Id. at 448. The trial court granted the defendants’ motion for summary judgment. Id.

McKenzie and Wallace had sought summary judgment on the ground that any legal malpractice was not a proximate cause of Mackie’s damages as a matter of law. On appeal, the Texarkana court, citing Cosgrove v. Grimes, 774 S.W.2d 662, 664-665 (Tex.1989), noted that an attorney malpractice action in Texas is based on negligence and requires proof of four well-known elements: a duty, breach of that duty, that the breach proximately caused the plaintiff injury, and that damages occurred. It is also well known that a defendant moving for summary judgment must establish as a matter of law that there is no genuine issue of material fact as to one or more of the essential elements of the plaintiffs cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). Thus, if the movant for summary judgment in a legal malpractice action establishes that, as a matter of law, the causation element is missing, the judgment will be upheld. Mackie, 900 S.W.2d at 449.

The thrust of the McKenzie motion for summary judgment was that no act or omission by the firm caused any damages to the plaintiffs. Id. at 452. Moreover, the firm asserted in its motion for summary judgment and in its reply to the plaintiffs’ response to the motion for summary judgment that the malpractice claims must fail because there was no proximate cause and supported this assertion with summary judgment proof. Id. (emphasis added). Thus, the Mackie Court affirmed the summary judgment for the defendants because their summary judgment motion established as a matter of law that, regardless of the attorneys’ conduct, the causation element linking the attorneys’ actions to the plaintiffs’ damages was missing. Id. We agree with the reasoning in the Mackie opinion.

In the case at bar, appellees submitted a summary judgment motion that stated the following on the first page under the heading “Summary of Argument”: “Because the attorney-client relationship was terminated at that time, neither Junell nor A & K can be held liable for legal malpractice.” The affidavit of Junell attached to that motion does not go as far and states that he was not Whitsett’s attorney at the time of the trial against Mr. Dardas in federal court in December 1991. Appellees failed to submit as grounds for summary judgment that their conduct did not cause Whitsett’s damages, and failed to provide summary judgment proof to that effect. Appellees simply did not address the proximate cause element of Whitsett’s malpractice claim. Clearly, the thrust of appellees’ motion and attached summary judgment proof is that the fact of withdrawal by appellees, standing alone, totally insulates counsel from liability when the case proceeds to trial under the representation of another attorney and is ultimately lost allegedly due to deficiencies occurring prior to withdrawal.

We held in our original opinion that appel-lees’ summary judgment motion failed to establish as a matter of law that the causation element linking appellees’ actions to Whit-sett’s damages was missing. See Mackie, 900 S.W.2d at 452. We adhere to that opinion now. Applying the well known standards of review applicable to appeals from adverse summary judgments, we can reach no other conclusion.

The holding in Mackie is a vital element in our analysis of this appeal. On rehearing, appellees have neither addressed that ease nor demonstrated any error in our reliance on the analysis in that case. Accordingly, we adhere to our original decision sustaining Whitsett’s first point of error, reversing the summary judgment of the trial court in favor of appellees, and remanding Whitsett’s claims against appellees for trial.