explaining that in the absence of actionable misrepresentations, the defendant’s “silence amounts to nothing more than potentially negligent omissions, but falls short of the affirmative deception required by the DTPA”
How later courts described this case
- explaining that in the absence of actionable misrepresentations, the defendant’s “silence amounts to nothing more than potentially negligent omissions, but falls short of the affirmative deception required by the DTPA”
- finding collectibility was adequately shown by a letter recognizing the defendant in the underlying suit was insured and the policy would have satisfied a judgment against the defendant
- stating that a verdict is factually insufficient when it is manifestly unjust or wrong given the great weight of the evidence
- calling an attorney’s failure to file a case within the statute of limitations period a “classic example of negligence” that would not require expert testimony
Written by the judges who cited it.
The opinion
Dissenting opinion by:
KAREN ANGELINI, Justice,
joined by Justice PAUL W. GREEN and Justice SARAH B. DUNCAN.
I respectfully dissent, in part, to the majority’s opinion.
Mazuca contends that the evidence is legally and factually insufficient to support the jury’s finding that Schumann would have recovered and collected $80,000 from Nuzum had the original suit gone forward. 1 In an attorney malpractice action, based on negligence, the plaintiff must show that “but for” the attorney’s negligence, he or she would be entitled to judgment. Rodriguez v. Sciano, 18 S.W.3d 725, 727 (Tex.App.-San Antonio 2000, no pet.). Furthermore, the proper damages inquiry focuses on the amount of damages recoverable and collectible from the defendant in the underlying action, had the suit been properly prosecuted. See Cosgrove v. Grimes, 774 S.W.2d 662, 666 (Tex.1989); Ballesteros v. Jones, 985 S.W.2d 485, 489 (Tex.App.-San Antonio 1998, pet. denied). These requirements in proving a legal malpractice case are commonly known as the “suit within a suit.” See Latham, 972 S.W.2d at 69; Ballesteros, 985 S.W.2d at 489 .
Reviewing the evidence in this ease, Schumann did not sustain his burden of proving a judgment against Nuzum was collectible. Schumann offered no evidence of Nuzum’s solvency. And, although Ma-zuca testified that he believed Nuzum was insured for $100,000, he was never able to determine the accuracy of this belief. This amounts to no evidence.
Although Schumann may have been able to collect on a claim against his own uninsured/underinsured carrier, State Farm, a question as to State Farm was not submitted to the jury. The jury question only inquired what amount “Schumann would have recovered and collected from James Nuzum as a result of the April 19, 1994 collision had the suit been properly prosecuted.” Further, the evidence is undisputed that, although Mazuca nonsuited State Farm, he did so before the statute of limitations ran. And, after Schumann had engaged a new lawyer, Mazuca reminded him that he needed to re-file against State *99 Farm before the statute of limitations ran if he wanted to preserve his claim against State Farm. Schumann, however, did not re-file against State Farm. Thus, there is no evidence in the record upon which the jury could have based a negligence finding against Mazuca as to State Farm and such an issue, if submitted to the jury, would have been improper. In any event, the jury was only asked the collectability question as to Nuzum and not State Farm. I would sustain Mazuca’s third issue.
Mazuca contends that the evidence is legally and factually insufficient to support the jury’s finding that Mazuea’s negligence was the proximate cause of Schumann’s damages. Mazuca’s primary argument is that Schumann failed to establish the proper standard of care for an attorney.
An attorney is required to exercise reasonable and ordinary care and diligence in applying his skill and knowledge to his client’s cause. Kahlig v. Boyd, 980 S.W.2d 685, 689 (Tex.App.-San Antonio 1998, pet. denied). An attorney is held to the standard of care that would be exercised by a reasonably prudent attorney. Longaker v. Evans, 32 S.W.3d 725, 735 (Tex.App.-San Antonio 2000, pet. filed). Expert testimony from an attorney is required to establish the standard of care. Hall v. Rutherford, 911 S.W.2d 422, 425 (Tex.App.-San Antonio 1995, writ denied). Larry Bruner was Schumann’s expert. After testifying to his qualifications as an attorney who practices personal injury law, Bruner testified as follows:
Q. Now, based on your review of the file in this case, do you have an opinion, based on your experience, your training and a reasonable degree of legal probability, that Mr. Mazuea’s actions or nonactions proximately caused damage to Mr. Schumann?
A. Yes, I do.
And what is that opinion? <©
Well, my opinion is that — that his actions or inactions proximately caused the damages to Mr. Schumann. >
Do you have an opinion as to whether Mr. Mazuca failed to meet the standard of care for an attorney in the 1994-1996 time frame in representing a client in a personal injury action in Bexar or Webb County, Texas? <©
You asked me if I had an opinion? <1
Right. <y
And the answer is yes. <¡
And what is your opinion? &
And my opinion is that he breached the standard of care. <5
In his testimony, Bruner failed to properly articulate the standard of care. He merely concluded that Mazuca breached the standard of care without stating what the standard of care is. This amounts to no evidence that Mazuca breached the standard of care. Mazuca preserved this “no evidence” issue in his motion for directed verdict and motion for judgment n.o.v.
Schumann claims that he proved Mazu-ca’s negligence by introducing a letter Ma-zuca wrote to Schumann in which Mazuca admitted to negligence. In his letter to Schumann, Mazuca states: “It was my responsibility to present your case in a timely manner and I will accept responsibility for any delay or damage to your case because of this error.” Although Mazuca expressed his feelings of responsibility, he did not admit to legal liability. A conciliatory letter from a defendant attorney in a legal malpractice case does not relieve the plaintiff of his burden to properly prove a breach of the applicable standard of care. I would find Schumann failed to carry his burden or proving Mazuca’s actions fell *100 below the standard of care and would, accordingly, sustain Mazuea’s fourth issue.
. The jury charge on this issue read as follows:
What sum of money if paid now in cash, would fairly and reasonably compensate Walter Schumann for his injuries, if any, that resulted from the April 19, 1994 collision in question? ... You axe instructed to award the sum, if any, that Walter Schumann would have recovered and collected from James Nuzum as a result of the April 19, 1994 collision had the suit been properly prosecuted.