HOUSTON – In a ruling made on April 19, the 1st Court of Appeals of Texas said that a client did not have enough evidence to prevent an attorney from obtaining a summary judgment in a legal malpractice suit.
Attorney Joseph Bernard Schultz was representing Stinal Atkins in a personal injury lawsuit against Dun Huang Plaza Association. In 2011, Schultz filed an amended petition on behalf of Atkins, which added MGBAH Inc. as a defendant, the appeals court said.
The trial court granted summary judgment in favor of Dun Huang in 2012, but the claims against MGBAH remained pending and the Harris County District Clerk listed the case as “disposed,” according to the appeals court.
While the case was still pending, "Atkins filed the current legal malpractice suit against Schultz based on his handling of the lawsuit," the opinion stated.
Atkins appealed the lawsuit against Schultz after the trial court granted Schultz’s motion for summary judgment because a genuine issue of fact existed.
“Specifically, Atkins claims that his response to the motion for summary judgment raised fact issues on his legal malpractice claims, damages, and breach-of-fiduciary duty claim,” the appeals court said.
A legal malpractice action requires proof that the attorney owed the plaintiff a duty, the attorney breached that duty, the breach proximately caused the plaintiff’s injuries and damages occurred.
The court agreed with Schultz, who argued that Atkins had no evidence of the breach, causation or damages -- elements of a legal malpractice claim.
Regarding damages, Atkins said his own affidavit “is evidence that Stinal Atkins suffered damages as a result of Joseph Schultz’s breach of fiduciary duty.”
The appeals court said Atkins’ "affidavit is not included within the summary judgment evidence," so it could not raise a fact issue on damages.
The appeals court also agreed with Schultz in regards to the breach of fiduciary duty, saying “(Atkins) attempts to recast a professional negligence claim as a breach of fiduciary duty claim.”
“The rule against fracturing claims prevents plaintiffs from converting what are actually professional negligence claims against an attorney into other claims such as fraud, breach of contract, breach of fiduciary duty, or Deceptive Trade Practices Consumer Protection Act violations,” the opinion stated.
Atkins said Schultz’s representation was deficient for several reasons, including Schultz failing to compel discovery from Dun Huang to discover information on MGBAH, failing to conduct discovery and failing to obtain Atkins’ medical records.
"The gist of all these complaints is that Schultz 'did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess'," according to the appeals court.
“Just as there was no evidence raising a fact issue on breach, causation, or damages in the legal malpractice claim, Atkins presented no evidence raising a fact issue on breach, causation, or damages in the breach-of-fiduciary-duty claim,” the opinion stated.
As a result, the appeals court affirmed the trial court’s judgment.