Elizondo v. Krist
338 S.W.3d 17
Tex. App.2011Background
- Jose Elizondo was employed at a BP Amoco plant in Texas City when a March 2005 explosion injured him and co-workers; he received medical treatment and later learned of others’ settlements in BP cases.
- Jose met with attorney William Wells and executed a power of attorney appointing Wells to represent him in BP-related claims; Guillermina Elizondo did not sign the power of attorney.
- Wells added Ronald Krist, Kevin Krist, and The Krist Law Firm as co-counsel and referred multiple BP explosion cases to them; BP’s initial settlement offer to Jose remained at $50,000.
- Jose signed a release and settlement with BP for $50,000 in February 2006; Guillermina did not sign the release, though her signature space existed.
- In August 2007, Jose learned a Krist-law-firm attorney was now representing BP; he and Guillermina filed suit against the Lawyers alleging malpractice, breach of fiduciary duty, DTPA violations, fraud, and related claims.
- The trial court granted some no-evidence and other summary-judgment motions, resulting in a final take-nothing judgment against the Elizondos; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Damages proof in no-evidence summary judgment | Elizondo argues Gonzalez’s affidavit shows case value of $2–$3 million. | Lawyers contend no competent damages evidence exists. | No evidence supports damages; summary judgment affirmed. |
| Effect of striking Gonzalez affidavit portions | Excluding key parts of Gonzalez’s affidavit undermines damages evidence. | Trial court acted within discretion in striking conclusory portions. | Court did not abuse discretion; striking upheld. |
| Fee forfeiture against third-party fees | Fees paid by BP should be forfeited to Elizondos due to conflict. | Burrow limits forfeiture; third-party fees are not recoverable. | Elizondos not entitled to third-party fee forfeiture; judgment for Lawyers affirmed. |
| Attorney-client relationship with Guillermina; termination of Jose’s representation | Questions existed about ongoing representation and relation with Guillermina. | No clear existence of malpractice-related relationship with Guillermina; representation terminated. | Not reached by the majority; no ruling stated here. |
Key Cases Cited
- Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) (requires a reasoned basis for expert opinions in malpractice cases)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (establishes standards for evaluating evidence in summary judgments)
- McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. 2003) (concerning sufficiency of expert testimony in evidence)
- Iracheta v. Gen. Motors Corp., 161 S.W.3d 462 (Tex. 2005) (holds that conclusory expert statements lack evidentiary weight)
- Wal-Mart Stores, Inc. v. Alexander, 868 S.W.2d 322 (Tex. 1993) (loss of spousal consortium damages may be proven by testimony of the primary claimant)