This appellate legal malpractice action is based on a prior appeal to this Court.
Smith v. Levine,
Facts
The Smiths first hired Heard to pursue a motion for new trial and an appeal in January 1994, after losing a jury trial in the underlying litigation. The Smiths believed they could win either a motion for new trial or an appeal because they believed the judgment was erroneously calculated and because they believed the Levines’ expert had committed perjury and a fraud upon the trial court. They contend various attorneys, including Heard, told them the judgment was erroneously calculated because an offset credit was misplaced. They also contend Heard promised to let them review any pleadings filed in the case. Heard timely filed her Motion for New Trial without permitting them to review it; the Smiths contend the motion was fatally flawed because it did not contain a Motion to Vacate, Modify, Correct or Reform the Judgment. They also fault Heard for not subpoenaing the Levines’ trial expert, Tom F. McNeil, and for not pursuing his misstatements with sufficient vigor. After a hearing, the motion for new trial was denied.
More friction arose over paying for the statement of facts and over preventing execution of the judgment against the Smiths. Heard obtained two extensions from this Court for submitting the appellants’ brief, which the Smiths assign as a chance for Heard to run up her hourly bill. When the brief was complete, the Smiths contend they were given an hour to review the finished product. They contend the brief was “fatally defective” because it “diluted” some causes of action and failed to verify with trial counsel that some points of error argued in the brief were not preserved in the trial court. Heard later filed a supplemental brief in the ease incorporating some of these changes. After the briefs were filed, but before argument, Heard withdrew as appellate counsel. Nelson Skinner represented the Smiths in the Levine argument.
Eight months after their motion for rehearing was overruled in Levine, the Smiths filed this suit. After discovery, Heard moved for summary judgment on four grounds: because the opinion in Levine showed the appeal would not have succeeded, negating causation; because the affidavit of Heard’s expert, as well as the opinion, showed no breach of fiduciary duty; because of this lack of malpractice, Heard did not breach her contract to the Smiths; and because Heard’s conduct was not a producing cause of damages under the DTPA. One week before the hearing, the Smiths amended their pleadings to add failure of consideration and violations of the Texas Debt Collection Practices Act, Tex.Rev.Civ. Stat. Ann. art. 5069-11.01-11.12 (Vernon 1987), now codified at Tex. Fin.Code Ann. § 392 (Vernon 1998). A general summary judgment was granted.
Standard of Review
The party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that it is entitled to judgment as a matter of law. Tex.R. Civ. p. 166a(c);
Nixon v. Mr. Property Management Co.,
In an appellate legal malpractice suit, plaintiffs have the burden of proving that but for the attorney’s negligence, the client would have prevailed on appeal.
Millhouse v. Wiesenthal,
Appellate Legal Malpractice
Heard first contends that the Smith v. Levine opinion shows that the appeal could not have succeeded on the points singled out as malpractice. The Smiths’ complaint in this area is twofold: that Heard did not challenge the calculation of interest and the award in either the motion for new trial or the appeal, and that Heard did not vigorously attack the qualifications of Tom F. McNeil, the Levines’ expert in the underlying trial. We take each of these contentions in turn.
1. Calculation of Damages and Interest
The Smiths contend they were harmed by Heard’s failure to challenge the trial court’s calculation of damages. In
Levine,
we noted that these objections were brought in a brief which was filed late, without leave and without explanation, and declined to consider them.
Smith,
Heard contends this conclusion shows that any appeal on this point would not have succeeded. Absent a likelihood of success on appeal, she argues, causation is negated and summary judgment was proper.
We agree. Upon examining the question of law presented, we agree that no reversible error was presented in the Smiths’ complaint on calculation of damages.
See Millhouse,
2. Qualifications of Tom F. McNeil
On the subject of the qualifications of the Levines’ expert witnesses, Heard similarly notes that in the prior opinion, this Court called the question of McNeil’s certification “patently immaterial.”
Smith,
Deceptive Trade Practices Act claims
The Smiths next contend Heard did not sufficiently address them claims under the Deceptive Trade Practices and Consumer Protection Act, Tex. Bus. & Com.Code Ann. §§ 17.41-854 (Vernon 1987 & Supp.1998) to win summary judgment. Heard contends the prior opinion negated any producing cause analysis.
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The producing cause nexus required by the DTPA lacks the forseeability element of proximate cause, leaving only cause-in-fact analysis.
Doe v. Boys Clubs of Greater Dallas,
Breach of Fiduciary Duty
The Smiths also complain that the trial court erred in granting summary judgment on their claims that Heard breached a fiduciary duty toward them and that Heard breached an express warranty to use accepted professional practices to obtain a sound result. Heard argues that the Smiths’ claims all arise from a single instance of alleged legal malpractice, and that claims such as breach of fiduciary duty and express warranty represent an impermissible fracturing of these claims. We agree.
“If a lawyer’s error or mistake is actionable, it should give rise to a cause of action for legal malpractice with one set of issues which inquire if the conduct or omission occurred, if that conduct or omission was malpractice and if so, subsequent issues on causation and damages.”
Sledge v. Alsup,
The Smiths’ first issue is overruled.
The Amended Pleadings
In their second point of error the Smiths contend that they are entitled to a remand because Heard’s summary judgment does not address two causes of action added to their pleadings seven days before the hearing on the summary judgment. Heard contends in a cross-point that the trial court abused its discretion in not overruling her motion to strike the Smiths’ amendment. We consider first whether the trial court erred in granting summary judgment on these claims.
Seven days before the summary judgment hearing, the Smiths amended their petition to include, among other things, claims of failure of consideration and violations of the Texas Debt Collection Practices Act, Tex. Rev.Civ. Stat. ANN. art. 5069-11.01-11.12 (Vernon 1987), now codified at Tex. Fin.Code ANN. § 392 (Vernon 1998).
Heard correctly points out that failure of consideration is an affirmative defense usually asserted in actions to enforce a contract. See Tex.R. Civ. P. 94. Technically speaking, failure of consideration discharges a party’s obligations under a contract. Joseph M. Perillo and Helen HadjiyannaKis Bender, Corbin on Contracts § 5.20 (1995). As plaintiffs, failure of consideration is not a cause of action which the Smiths may assert against Heard.
On the other hand, the Texas Debt Collection Practices Act may indeed be a viable cause of action. The act defines “debt collection” as “any action, conduct, or practice ... in collecting debts owed or due, or alleged to be owed or due a creditor by a consumer.” Tex.Rev.Civ. Stat. Ann. art. 5069-11.01. An actor is not excused from following the provisions of the Act because the debt is owed directly to the actor.
Monroe v. Frank,
Courts have granted summary judgments on causes of action not specifically addressed in a movant’s motion if the movant has conclusively disproven an ultimate fact which is central to all causes of action alleged, or the unaddressed causes of action are derivative of the addressed cause of action. Timothy Patton, Summary Judgments
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in Texas — PRACTICE, PRooedure and Review § 3.06[3] (2d ed.1996);
Judwin Prop., Inc. v. Griggs & Harrison,
Because her motion for summary judgment did not address Texas Debt Collection Practices Act claims, then, it was error for the trial court to grant summary judgment on those claims.
See Chessher v. Southwestern Bell Tel. Co.,
Cross-Points
In her cross-points Heard argues that the trial court abused its discretion in not sustaining her objections to the Smiths’ petition as a surprise, and in failing to sustain her objections to the Smiths’ summary judgment proof.
Heard first argues the trial court abused its discretion in permitting the Smiths to amend their pleadings to add a new cause of action just seven days before trial. Tex.R. Crv. P.63 states that “Parties may amend their pleadings ... by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party;” the rule goes on to specify that amendment within seven days of the date of trial or thereafter may be filed with leave of the trial judge, “which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.” Thus the party’s right to amend within seven days of trial is subject only to the opposing party’s right to show surprise, as determined in the exercise of the trial court’s discretion.
Hardin v. Hardin,
If the amendment complained of asserts a new cause of action or defense, it is prejudicial on its face, and if the opposing party objects to the amendment, the trial court has discretion to refuse the amendment.
Greenhalgh v. Service Lloyds Ins. Co.,
However, the Smiths did not need leave of court to file their first amended petition; it was filed exactly seven days before the hearing. An amendment is timely, and leave of court is not required, when the amended pleading is filed exactly one week before the summary judgment hearing.
Sosa v. Central Power & Light,
Heard’s first cross-point is overruled.
Because of our disposition of the other points of error, we need not decide Heard’s second cross-point challenging the Smiths’ summary judgment evidence.
Conclusion
Summary judgment for Heard on legal malpractice and DTPA claims was proper because she successfully negated causation. Summary judgment on breach of fiduciary duty and breach of warranty claims was proper because they were simply different facets of the original legal malpractice claim. However, because she failed to address the Texas Debt Collection Practices Act claim in her motion, summary judgment on this claim was improper. We therefore affirm in part *699 and remand for further proceedings on the TDCPA claim.