# Millhouse v. Wiesenthal

> Texas Supreme Court · April 19, 1989 · 32 Tex. Sup. Ct. J. 332

URL: https://www.frixlaw.com/law-library/cases/9776527

## Case

- **Full name:** G. Stefane MILLHOUSE II, Petitioner, v. Ronald G. WIESENTHAL, Respondent
- **Court:** Texas Supreme Court
- **Decided:** April 19, 1989
- **Citations:** 32 Tex. Sup. Ct. J. 332; 775 S.W.2d 626; 1989 Tex. LEXIS 32; 1989 WL 36550
- **Precedential status:** Published
- **Opinion:** On rehearing by Mauzy
- **Judges:** Cook, Ray, Mauzy
- **Cited by:** 58 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9776527

## How later opinions describe it (automated extraction)

- observing that “to say that the court is entitled to rule upon the question of causation as a matter of law in an appellate legal malpractice case gives the appearance that the bench is in the position of protecting the bar”; arguing that “[t]he privilege of being an attorney …
- recognizing general rule that causation is fact question, but finding that causation in appellate legal- malpractice case is question of law
- recognizing general rule that causation is fact question, but finding that causation in appellate legal malpractice case is question of law
- recognizing general rule that causation is fact question, but holding causation in appellate legal-malpractice case is question of law

## Opinion text

OPINION ON REHEARING
MAUZY, Justice,
dissenting.
I respectfully dissent from this court’s decision that the determination of causation in cases of appellate legal malpractice is a question of law for a judge and not a question of fact to be presented to a jury.
The field of appellate law is no more complicated or obscure than the fields of medicine, chemistry, engineering, biology, construction, or any of a myriad of professions. In all negligence cases involving these professions, the issue of causation is submitted to the jury. The rule should be *629 no different — and no less — for attorneys. Further, to say that the court is entitled to rule upon the question of causation as a matter of law in an appellate legal malpractice case gives the appearance that the bench is in the position of protecting the bar.
Attorneys are no more subject to alleged abuse by the jury system than any other litigant. If causation in an appellate legal malpractice case were submitted to a jury, the courts of appeals would still have the right of review under proper evidentiary standards. The trial court would also have the option of submitting to a jury appropriate instructions regarding the case.
I believe this type of case can and should be resolved in the same manner as other types of professional malpractice. In such cases every party has a right to call expert witnesses and present supportive evidence. Expert testimony on mixed questions of fact and law is clearly admissible and proper. Birchfteld v. Texarkana Memorial Hospital, 747 S.W.2d 361 (Tex.1987). Each party then has a right to cross-examine the witnesses brought by the opposing party and to have the entire case submitted to a jury.
The privilege of being an attorney should not carry with it immunity from the jury system. The argument that attorney-judges are better equipped to decide appellate legal malpractice cases is elitist. We do not impanel a jury of physicians to decide a medical malpractice case. Because the court has circumvented the constitutional right to trial by jury to assist lawyers, I dissent.
RAY, J., joins in this dissenting opinion on rehearing.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9776527. Public record. Not legal advice.