Millhouse v. Wiesenthal
775 S.W.2d 626
Tex.
1989
Check Treatment

*1 II, Pеtitioner, G. Stefane MILLHOUSE WIESENTHAL, Respondent.

Ronald G. Texas. April 1989. Williamson, Jimmy Doherty & William- Rehearing Denied June 1989. son, Houston, petitioner. for Flurr, Waldrop

Allister and Lillian M. M. Houston, Botts, respondent. for Baker & COOK, Justice. presents

This case of wheth- causation in er the determination of ques- case is a This tion of law of fact. is an or a ‍‌​‌‌‌​​​‌​​‌‌‌​‌‌​‌​‌​‌​‌‌‌​​‌​​‌​​​​​​‌​​‌​‌‌​​‍in Texas. impression issue of first G. Ste- fane Millhouse II1 fоrmer Ronald G. caused Wiesenthal’s failure to

timely file of facts with a statement case in in an earlier represented Wiesenthal had Millhouse. Wiesenthal’s mo- judgment, cоncluding for summary a matter law that Wiesenthal’s failure to of facts in the earlier statement of Millhouse’s loss was not the cause The court of that case on peаls judgment of the affirm. court. S.W.2d 103. We In sold a 1979 Millhouse tract of $80,- property Christopherson James Christopherson Shortly thereafter failed discovered Millhouse had to dis- outstanding close an first lien on the $214,000. Christopherson erty for payments stopped making mortgage foreclosed on and Millhouse property. sued Millhouse Christopher-

in the sale Millhouse sued remaining deficiency after son actions foreclosure sale. These two to the court. Wies- consolidated and tried represented in the consol- enthal court rendered idated action. petitioner’s Stephane G. Millhouse II. appeals erroneously name as listed the The court *2 plaintiff The successful. and hаve been in of would judgment favor attorney’s neg- finding must that but damages, Millhouse show that awarded prevailed on client have ligence the would committed fraud. had Urban, Coolidge, v. See Jackson gave timely appeal of notice Wiesenthal 948, Scott, 949 Pennington 516 S.W.2d & transcript of and ordered a and statement 1974, (Tex.Civ.App. Dist.] [1st — Houston facts, reporter pre- failed to but the court Smith, J. 2 R. Mallen & ref'd writ re- pare statement of facts within the Legal Malpractice § filed un- quired Wiesenthal then time. ed.1989). requiring rationale fоr this time file for extension of motion appeal if the would is that determination facts, the court of the statement and the trial court not have succeeded Basing its rеview on appeals overruled. affirmed, the case, the in the court attorney’s negligence could judgment of the trial appeals affirmed the damage. plаintiff any On the caused the No. Christopherson, v. court. Millhouse hand, if the have suc other (Tex.App. 01-82-0004-CV [1st — Houston judg in reversing the trial court’s ceeded (un 10, 1983, n.r.e.) ref 'd writ Feb. Dist.] obtaining more favorable re ment opinion). ‍‌​‌‌‌​​​‌​​‌‌‌​‌‌​‌​‌​‌​‌‌‌​​‌​​‌​​​​​​‌​​‌​‌‌​​‍published sult, damage then the sustained is himself an who attorney’s negligence. because his in the case decided instant case, alleging original in thе in of causation this determination negligently failed to file that Wiesenthal was a underlying in the statement of facts appeals, the court of action. filed a for sum- Wiesеnthal noting previously had not issue claiming mary judgment, courts, agreed. by Texas been addressed failed to establish causation. Wiesenthal that have The courts argued determination consistently con considered this issue appellate legal malpractice in an action of causation cluded that of law. The trial court aрpellate legal malpractice case is a agreed. reviewing After the entire record Cabot, Cabot & Forbes underlying including in the Simon, Brian, Peragine, Smith & Co. v. facts, granted statement of court 371, (E.D.La. F.Supp. 568 374 Redfearn, summary judg- Wiesenthal’s motion 1983) law), aff'd, 835 (applying Louisiana appealed ment. Millhouse Cir.1987); (5th Phillips Clancy, 286 F.2d v. judgment of 421, (Ariz. 415, 300, P.2d 306 152 733 court. 757 S.W.2d 103. Mill- We Sanсhez, 256 Ct.App.1986); Cal. Croce v. application house’s for writ of error on the 683, 448, 680, Cal.Rptr. App.2d 64 449-50 sole issue of whether 927, denied, (1967), 391 88 cert. U.S. S.Ct. appellate legal malpractice be deter- 1827, (1968); Hyduke 20 v. L.Ed.2d 666 mined as a of law a Grant, 675, (Minn.Ct.App. 677 fact. 115, Scelsi, 1984); v. Misc.2d 115 Katsaris proximate 994, (1982); 118, determination of 453 N.Y.S.2d 996-97 Jab 8, 10-11, usually question El cause of fact.2 v. 6 Ohio Misc.2d Higgins, Seе lonski C.P.1983); Poole, 1296, (Ohio 732 313- Chico 453 1298-99 N.E.2d 567, 575, This is mal 280 Or. true Chocktoot v. (1977); Olson, practice appel v. actions as well. In cases P.2d Jackson (1985); however, Or.App. P.2d deter 468, 472, Clostermann, requires determining Or.App. mination of causation v. Sola whether the in the action 679 P.2d Gar Stafford Likewise, dispositive negligence of causation is determinations & Lam Fund Am. Ins. Co. Pattersоn of fact Fireman’s case, however, Inc., (Tex.Civ.App —Ty berty, In this 528 S.W.2d . n.r.e.). ref'd need not be addressed as the issue ler that deter rett, 781, 786, Millhouse further claims Or.App. 613 P.2d mining causation Koskо, Floyd v. 285 S.C. trial under would violate (S.C.Ct.App.1985); 329 S.E.2d Const, Texas Tex. Constitution. See Pappas, 258- Daugert v. 104 Wash.2d 15; V, I, 10. We art. see also art. id. Helm 603-04 regu disagree. Courts this state Paul Ins. brecht v. St. *3 concеrn larly determine of law 362 N.W.2d n. 127 n. is no dif ing pending matters. This case Casualty Lewandowski ‍‌​‌‌‌​​​‌​​‌‌‌​‌‌​‌​‌​‌​‌‌‌​​‌​​‌​​​​​​‌​​‌​‌‌​​‍Continental jury Millhouse is a ferent. entitled to only on the elements of General Accident Fire & Life (Tex. Works, Wyche v. 257 Wis. Cosgrove, Assurance ref’d Civ.App. (1950).3 — Dallas 27, 42 N.W.2d We like 2. A supra note court’s determination see appellate legal in a hold that case of wise of the question of a of law is not a violation the of causa malpractice4 Texas Constitution. is a tion law. Accordingly, we affirm the an whether appeals. the cоurt depends on an have been successful procedural of the analysis law and the MAUZY, JJ., RAY and note their position rules. Millhouse’s the dissent. ques a should make this determination as as require of fact would the to sit OPINION ON REHEARING judges, record appellate review the trial Justice, MAUZY, dissenting. briefs, and decide whether the respectfully from this court’s dissent judge A committed error. reversible that the of causa- decision position in a better to make is appellate legal tion in cases of Resolving legal issues on determinatiоn. judge and not a for a exclusively an area the appeal is within jury. a presented of fact to be to judges; qualified province a court is merits way is not to determine the appellate is no more The field of law Thus, probable outcome of an fields of complicated or obscure than the appellate medicine, chemistry, biology, in cases of engineering, construction, hinges any profes- issue of on the myriad where the or of a involving is possible appeal, outcome of the issue In all sions. by professions, the causation is resolved the court as a these issue of to be should be submitted to the The rule recognized recognized 4. Other The commentators have also 2 R. Mallen & J. legal malpractice generally this is a law. See fol- includes the 24.39, (3d Legal Malpractice ap- lowing: negligently advising a client not to that, 1989) ("Initially, prove ed. the client peal; negligently failing preliminary to take the attorney’s negligence, but for filing posttrial steps necessary appeal, to such prevailed upon or the motion should required; negli- a motion for new trial when proper peal. resolu- ... The decision about the failing appeal, gеntly to notice of petition can be or must and tion of bond, record, brief; negligently or cost by judge based made as an issue of presenting client’s on contentions upon review of the and record Smith, Legal Malpractice & J. See 2 R. Mallen counsel, 1989). at 531 ed. The determina- subject to the same of review as rules legal malpractice is alleged tion of whether applied [by appellate court] usually in is- appellate is not omitted); (footnotes appeal.”) Bres- sue; only found onе case where we have Legal McMonigle, Testimony lin & Phillips parties disputed question. Actions, Malpractice Litigation Clancy, Leibson, Legal Malpractice Special Prob- Cases: (Ct.App.1986). Identifying Fact and in Issues Law and lems Ky.LJ. Expert Testimony, Use the (1986-87). attorneys. no less—for no different —and HAMPTON, Judge,

Further, is say that the court entitled District In re Jack аs a upon question of causation rule District Court of 283rd ‍‌​‌‌‌​​​‌​​‌‌‌​‌‌​‌​‌​‌​‌‌‌​​‌​​‌​​​​​​‌​​‌​‌‌​​‍State legal malprac- appellate County. of law in an matter Dallas gives appearance tiсe case position protecting bench

bar. of Texas. alleged subject Attorneys no more system any than abuse

litigant. If jury,

malpractice case submitted still have the

the courts of evidentiary proper of review under *4 The trial would also have

standards. appropri- option submitting regarding

ate instructions type of case can and should believe same manner as other

be resolved

types professional malpractice. In such expert every party right has call present supportive

witnesses and evidence. testimony on mixed

fact and law is admissible and er. v. Texarkana Memorial Birchfteld

Hospital, S.W.2d 361 Each right

party then has to cross-examine ‍‌​‌‌‌​​​‌​​‌‌‌​‌‌​‌​‌​‌​‌‌‌​​‌​​‌​​​​​​‌​​‌​‌‌​​‍brought by opposing party

witnesses

and to have the entire case submitted being privilege carry immunity with it from the

system. that attorney-

judges equipped are better decide malpractice cases elitist. We impanel physicians

do not to de-

cide a case. Because medical

the court has circumvented the constitu-

tional assist law-

yers, I dissent. J.,

RAY, joins dissenting in this rehearing.

opinion on