Kemp v. Jensen
329 S.W.3d 866
Tex. App.2010Background
- Kemp plaintiffs own mineral-leased Coleman County real property; Elliot assigned his damage claims to Stephen who retained Jensen for a surface-damage dispute.
- Jensen filed suit on behalf of Stephen against oil companies; Subsurface Exploration Co. (Cal) did not answer; Jensen withdrew and Saringer/Wagstaff took over.
- Saringer obtained an interlocutory default against Subsurface Exploration Cal; Cal claimed the wrong entity was sued and moved for new trial; default was set aside.
- Amended petition added Jimmy Gassiot (d/b/a Subsurface Exploration); trial court instructed the jury that damages from Gassiot prior to July 16, 2001 should not be assessed.
- Kemps filed legal-malpractice suit alleging negligence and breach of fiduciary duty; trial court granted traditional summary judgments for the attorneys, resulting in a take-nothing judgment.
- Underlying verdict found no negligence; Kemps challenge whether that verdict forecloses the malpractice claims and contend material-fact questions remain.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the underlying verdict forecloses malpractice claims | Kemps say verdict doesn’t negate malpractice claims | Attorneys rely on no-negligence finding to defeat claims | Yes, no negligence finding bars malpractice claims under summary judgment. |
| Whether unresolved material facts exist to defeat summary judgment | There are factual questions about causation and evidence exclusion | No genuine fact issues; exclusion of evidence and limited damages do not create triable issues | No material fact issues bar summary judgment; judgment affirmed. |
Key Cases Cited
- St. Paul Ins. Co. v. Tex. Dep't of Transp., 999 S.W.2d 881 (Tex.App.-Austin 1999) (de novo review of questions of law; standard for summary judgment)
- Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754 (Tex.2007) (basis for reviewing evidence in traditional summary judgments)
- Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546 (Tex.1985) (standard for evaluating movant’s burden and nonmovant’s response)
- Alford v. Krum, 671 S.W.2d 870 (Tex.1984) (interpretation of jury charges and ordinary meaning)
- Gibson v. Ellis, 126 S.W.3d 324 (Tex.App.-Dallas 2004) (fiduciary-duty scope; professional negligence distinction)