Appellant strikes out three times in local courts

David Yates Apr. 15, 2008, 4:35pm

When the outcome of her civil trial ended with an unfavorable verdict, Cecile Childs sued her defense lawyer for legal malpractice. When the presiding judge threw out her suit, Childs took her case to the Texas Ninth District Court of Appeals.

On April 10 Beaumont justices affirmed 172nd District Judge Donald Floyd's ruling, ending nearly six years of litigation.

Childs sued attorney Scott C. Crutchfield and his law firm, Crutchfield, DeCordova & Chauveaux, in October 2004 after losing a civil trial in which she was a defendant.

Childs and Homeguard Pest Control had been sued by John and Katina Duke in August 2002.

The Dukes claimed Childs sold them a termite infested home and also sued the pest control company that did the pre-sale home inspection.

"The infested termites caused damage to the (home) � and the Dukes had to pay a contractor to repair the damages," states a suit filed by the Dukes in Jefferson County District Court on Aug. 2, 2002.

While Homeguard sought arbitration, Childs was forced to defend herself in court. In August 2003, jurors ruled in favor of the Dukes and levied a $78,775.88 verdict against Childs, court documents stated.

The jury found Childs breached her contract with the Dukes, ruling that she knowingly and intentionally engaged in a false, misleading or deceptive trade practices and unconscionable conduct.

On the single question submitted on actual or economic damages, the jury found $7,736.40 for reasonable and necessary cost of repairs, $214.34 for termite treatment, and $1,500 for loss of use of the property.

The jury failed to find any additional or exemplary damages on deceptive trade practices and statutory fraud but awarded $8,500 in exemplary damages for common law fraud.

Attorney's fees were tried to the court, which awarded $56,360.50 for preparation and trial and conditionally awarded additional sums for post-trial proceedings, the opinion stated.

Unhappy with the verdict, Childs proceeded to file suit against her defense attorney.

In her legal-malpractice suit against Crutchfield, Childs says "the case against her was utterly defensible and completely mishandled by the law firm throughout the pretrial, trial and post trial process."

Judge Floyd didn't buy Childs' argument and on Nov. 3, 2006, granted the firm's motion for summary judgment.

"It is � decreed that Defendants � have final judgment rendered in their favor, that Plaintiff take nothing from Defendants, and that all costs of court be taxed against Plaintiff," stated Floyd's judgment.

Before the summary judgment, Judge Floyd had also excluded the affidavit of Childs' expert witness, attorney Robert R. Debes Jr., who offered his expert opinion that Crutchfield violated the standard of care he owed to Childs while defending her in the Duke litigation.

It was Debes' opinion that it was Crutchfield's failure to raise ratification or waiver as a defense, or his failure to move for summary judgment on those defenses that caused Childs to be found liable to the Dukes, court documents stated.

But Floyd ruled that Debes' affidavit was "unreliable, inadmissible and constituted no evidence," the opinion stated. "We hold the trial court properly granted summary judgment on Childs's claim for legal malpractice."

After striking out twice, Childs turned to the appeals court on Feb. 2, 2007.

On appeal, Childs contended the trial court erred by granting summary judgment; striking the affidavit of her expert; granting a traditional summary judgment; granting a no-evidence summary judgment; and granting summary judgment on her causes of action for negligence, gross negligence, knowing violation of the Deceptive Trade Practices Act, and breach of warranty.

But the appellate judges affirmed the trial court's judgment.

"Childs sold a home to John and Katina Duke. Although Childs had twice treated the house for termite infestations, she failed to disclose termite damage on the Seller's Disclosure Notice that Childs executed as part of the transaction."

"Generally, to recover on a claim of legal malpractice, a plaintiff must prove that the attorney owed the plaintiff a duty, the attorney breached that duty, the breach proximately caused the plaintiff's injuries, and damages occurred," Justice Charles Kreger wrote.

Although Childs argued the trial court erred in granting summary judgment on her other claims, she failed to support her contention with any argument or authorities, and because the issue was inadequately briefed, the appeal's court did not address it.

"In conclusion, we hold that the trial court did not abuse its discretion in striking the appellant's expert's affidavit and further, that the trial court did not err in granting summary judgment for the appellees. The appellant's issues are overruled and the judgment is affirmed.," the opinion stated.

Appeals case No. 09-07-00065-CV
Trial court case No. E-173,423

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