*1 TRINITY INSURANCE UNIVERSAL
COMPANY, al., Appellants, et BLEEKER, Appellee.
Ronnie Dale
No. 13-95-075-CV. Texas, Appeals
Court of
Corpus Christi.
Feb. 1997. May
Rehearing Overruled *2 Chasnoff, Hankins, Barry proper into evidence of an exhibit A. Winston H. admission Ester, Akin, Strauss, Polly Gump, consisting of a criminal Jessica letter Bleeker’s Feld, Antonio, MaGuire, Vittitoe, lawyer, Craig Hauer & San amicus curiae. Michael liability lawyer underlying from the Bleeker’s Wrotenbery, Magenheim, J. Preston Bate- recovery argue that all case. man, Robinson, Helfand, Wrotenbery & *3 in this case must be denied because Houston, Camp, H. Harman & Selman always has maintained his satisfaction with McAllen, Jr., Camp, Lopez, R.E. Christiana Trinity, can so a case his insurer not Brownsville, Townsend, Dijkman, Roger Jen- brought in his name his wishes. be Holman, Hogan, Hogan, nifer Bruch Dubose possible DTPA violation for On the issue of a Townsend, Dubose, & William J. Kevin failure to inform the insured of settlement Jaworski, Houston, Boyce, Fulbright & for offers, appellee appellants have contends that appellants. right complain about the waived their Christi, Constant, Anthony Corpus Phil F. by failing to a submission of this issue make Harris, Davila, Weslaco, Corpus Frank G. objection timely Appellants at trial. claim Christi, appellee. for error, they preserve deny they did duty DTPA to their owe a under the inform SEERDEN, C.J., YÁÑEZ Before and and offers, argue of the settlement insured CHAVEZ, JJ. attorney’s that the court erred its award they did not Appellants fees. OPINION duty, the since the settlement breach CHAVEZ, Justice. rejected by offers would have been a reason- This case evolves out of an insurance com- ably prudent person, jury’s and that the find- pany’s conduct when confronted with settle- damages supported by legally on was not arising colli- ment offers from automobile factually sufficient evidence. jury Trinity sion. The found that Universal duty deny parties can a that third assert (hereafter al., Company, “Trini- Insurance et process good faith either claims under ty” “appellants”) had breached their Stow- Further, DTPA law. the or the common insured, duty on ers to settle behalf of their duty appellants argue that even if such a Bleeker, DTPA, Ronnie Dale the violated exists, legally factually evidence was duty good and breached a common law under the insufficient to such a claim dealing. damages were faith and fair Actual brings facts of this case. one cross- $12,836,- against appellants assessed point, alleging that it error for the trial 976.75, DTPA pursuant and trebled to the jury charge judge to exclude from the fees, $38,510,930.25. figure Attorney’s finding unconscionability on request for a on represent judgment, intended to 50% of the Trinity. part part We reverse $38,510,930.25, were added in the amount of pro- further part affirm in and remand for $77,021,860.50. for a total ceedings. appeal note the on
We will issues First, ap- order in which we address them. Background Factual they pellants contend that did not breach early morning July receipt a valid settle- In the hours created driving they Dale Bleeker was his ment because never received a Ronnie offer Next, appellants com- Blazer northbound Interstate valid settlement offer. Chevrolet Texas, Highway Georgetown, while plain regarding allegedly im- 35 near of error manage- prudent person in the would exercise 1. G.A. Stowers Furniture Co. v. American Indem- Co., business; nity (Tex.Com.App.1929) ordinarily and if an ment of his own care, held that "where an insurance makes ordinary prudent person, in the exercise of it, contract, very terms such assured, standpoint of the as viewed from the contract, responsibility to act as the assumed the case, and failed or refused would have settled agent absolute of the assured in all exclusive and so, agent, which in this case is to do then pertaining questions litigation, matters respond indemnity company, in dam- should and, ought agent, held to that as such it to be ages." diligence ordinarily degree which an of care and your families, Kelly, so that insured as Allstate v. influence of alcohol. Two under the Ochoas, put at risk. were travel- the Villarreals and pickup truck and ling together to Illinois into the Trinity deposit funds did highway to pulled the side of the had court, thirty within the registry of the either strayed change vehicle drivers. Bleeker’s Villegas did tell day period or later. road and struck the rear from the for full they like to settle the case would killed, parked truck. Filiberto Villarreal parties all could policy limits if a release from other members of the two and the thirteen arrange- part of the settlement secured as injured, many seri- all of them families were Trinity did not contact Bleeker ment. ously. Villegas’s or the oral settle- discuss letter expiration offers. After ment liability insur- possessed an auto offer, repre- Villegas took on the County Insurance ance from Southern *4 remaining and the of the Ochoas sentation law, by Company required minimum for the family. pro- He members Villarreal $40,000 $20,100 per accident. per person and Bleeker, against ceeded with the case Trinity reinsured Southern Coun- Universal entered January 1994 a was ty’s claims. Bleek- policies and handled their exceeding damages against Bleeker for $11 insurance had no assets other than the er subsequent proceeding, million. In a policy pay damages assessed with which plaintiffs acquired turn over of Bleeker’s against him. The Villarreals and the Ochoas compa- action his insurance cause of bills, quickly incurred medical substantial 1994, ny. July this suit was filed In treating the hospitals and the that had been against Trinity, resulting in name Bleeker’s $40,- families attached liens in excess of the $77,021,860.50. for thirty days policy limits within 000 collision. Adequacy of the Oral Offers The and the Settlement Demand represent Villegas was hired to Ida-
Albert children, lia and her minor as well Villarreal parties dispute whether Villegas as estate Filiberto Villarreal. by testified to Ville- oral offers of settlement repeated testified that he made oral offers duty. gas to activate a Stowers are sufficient represented settle the claims of the clients he contro Appellants presented no evidence to $20,000, reject- for as little as which were all offers, testimony Villegas’s as to the oral vert Eventually containing an ed. he sent a letter they argued ap at trial and here rather exchange interpleading offer to settle in offers should be writ peal that settlement $40,000. This offer stated that it would ex- duty. trigger Appellants ing to Stowers thirty days. Although Villegas pire in of Civil rule 11 of the Texas Rules refer to represent and the later hired to Ochoas position. for their Procedure as Villarreals, Amalia, remaining Victor and he requires 11 misplaced. Rule This reliance lawyer at the time the letter was not their writing, agreements that settlement letter, At the time of the he had was sent. writing. inbe Gener that settlement offers hospitals regard- not been contact with the by governed ally are speaking, settlements liens. The letter stated: their v. Ken principles of contract law. Shaw 240, (Tex.App. nedy, 247 —Amar hereby policy full ... I make demand for Mathes, 1994, writ); 528 illo no Stewart my As there limits on behalf of clients. 116, (Tex.Civ.App. 118 S.W.2d —Beaumont claimants, can be are other such demand writ). law, 1975, contract oral Under policy limits into by depositing met the full same extent as written are valid to the offers Hidalgo, Registry of the Court offers. County, the District Clerk. Texas with no evi Appellants argue that there is deposited If funds are not within such (30), Trinity afforded a reasonable dence that thirty days proceed we will offers, required as damages. to evaluate the oral your trial full time client to and seek American Physicians. See American aware of the Stowers doctrine You are Garcia, Exchange v. Physicians Insurance your as well responsibility insured 676 694, (1942); 50 Villegas 139 Tex. (1986). Trinity § oral before Liens Until testified that he made the offers Tex. Jxm.3d There was limits to the
submitting actually paid his written demand. some of the accepting deadline for full lim- hospitals, Trinity no evidence retained the imposed pri- offers was Villegas’s settlement in excess hospital its. The existence of liens Appellants ac- or to the written demand. not excuse them limits does knowledge that written offer afforded duty imposed by to re- from the Stowers Trinity a time to evaluate the reasonably reasonable spond to offer as would a Clearly, the oral offers that were offer. person. prudent the written offer and without made before the oral offers to We conclude that both gave their own imposing deadline of $20,- Villegas’s clients for settle the claims time to evaluate them. a reasonable to settle inter- 000 and the written offer Appellants that Ville- $40,000 considered in this pleading must be gas’s does not initiate Stowers letter case. of claims it did not mention a release because authority, they quote against Bleeker. For Admissibility Letter of the MaGuire Physicians, wherein the Texas Su
American
allege
in the ad
error
preme
“[A]
Court said
copy of a
plaintiffs
exhibit
mission
the insured
promise
demand must
to release
Ma
1992 from Michael
letter sent June
*5
exceeding
fully
exchange
a sum not
for”
counsel,
Guire,
to
Bleeker’s criminal defense
policy
Id. The intention of Ville-
limits.
Honey
Trinity.
of
This letter was
Kattie
Trinity
to
gas’s
to offer a settlement
letter
during
by
appellee
offered into evidence
testimony
Villegas
expert
offered
was clear.
Vittitoe,
Craig
Bleeker’s
of
the examination
for full
phrase
in his letter “demand
that
complains that its
civil counsel.
now
in the field of
policy limits” indicates to those
hearsay objection
improperly
at
trial was
policy
“I
all of the
insurance law that
want
argues
proper
that a
overruled.
my
of
clients because of
limits on behalf
made,
objection
hearsay
never
was
give you
damages
got
going
I’m
I’ve
is admissible.
thus the exhibit
language of
that the
release.” He testified
objection
hearsay
proper
that a
language he had We believe
the letter was similar to
objection
arguing
years practic
made.
In
its
throughout
fourteen
used
his
“I
judge, Trinity’s counsel said
don’t
injury
Ap
trial
personal
in the area of
law.
prove
up.
it
I
probably
can
expert testimony of their
think that he
pellants presented
the docu-
language
don’t think he can authenticate
asserting that
this
does not
own
“proving it
counsel refers to
being offered. How ment.” When
mean that a release is
“authenticating
he is
ever,
up” and
the document”
Villegas
specifically mentioned the
arguing
exceptions to the hear-
clearly
doctrine in his letter.
reference
Stowers
say
apply.
rale do not
sequitur
placed
unless
exclusion
is a non
Stowers
part
of a release as
the context of an offer
un
court admitted the document
The trial
that a letter sent to
a settlement. We hold
exception to the
der the “business records”
making
a “demand
an insurance
R. Civ.
hearsay exclusion rule. See Tex.
mentioning the
policy
full
limits” and
803(6).
of a trial
Appellate review
Evid.
propose a
be understood to
doctrine should
gov
judge’s
to admit evidence
decision
settlement.
by
standard.
an “abuse of discretion”
erned
Attic,
527, 531
Tracy
the hos
v. Annie’s
Appellants also
denied);
1992,
(Tex.App. Tyler
writ
Jones
already at
pital
existence
liens which were
—
Jones,
(Tex.App.—
already
Villegas’s offers and
ex
the time of
denied).
The trial
Corpus
offer
Christi
writ
policy
prevented
limits
ceeded the
the exhibit
judge based his decision to admit
Villegas
being
within
limits.
from
from
testimony
letter had
impact of liens.
on Vittitoe’s
argument mistakes the
This
regular
in the
received
ownership. been recorded as
A
not confer actual
hen does
firm, and that it
by
his law
Wyatt,
Ass’n v.
course
business
Bldg.
Bankers Home
& Loan
against his insur-
brought in
name
according
Bleeker’s
in the case file
had been retained
essentially arguing
Trinity is
company.
ance
practices.
knowl-
regular business
With
not have been
facts,
order should
it
that the turnover
edge
we hold that was
of those
However,
turnover order is
judge
granted.
for the trial
abuse of discretion
Appellant’s
this case.
If the
part of the
admit the letter into evidence.
challenged on
alleging
Maguire
let-
to be
point of error
turnover order was
opposed
improperly
grounds
admitted is overruled.
claim was
ter was
that the Stowers
Bleeker,
been
by
that claim should have
Testimony
Trinity’s
turn-
appeal
as to
as an
Bleeker’s
made
Handling
order,
of His Case
not done.
over
which was
recovery
argues that all
Appellant
indicate
testimony also fails to
Bleeker’s
because Bleeker
must be denied
this case
his attor-
agreement
with
the same level
Trinity’s
agreed
pursuit
with
testified that he
expressed
neys
insurers that was
part
as
complete
parties
of a
release of all
completion
deposition
In
after the
Tamez.
agreement.
In
liability
assessing his
for the
of the trial
v. Ta
argument, appellants
this
cite Charles
accident,
repeated-
Bleeker was asked
traffic
mez,
(Tex.App.—
208-09
preferred to obtain
ly whether he would have
denied).
Corpus
writ
be
Christi
surprisingly, he
parties.
of all
Not
release
the facts of Charles v. Tamez distin
lieve
“yes,” and “that would be best.”
answered
began
guish it
this ease. That case
in a
asked,
while the
was never
either
Tamez, whose
similar fashion to this one.
during
later
open or
his
settlement offer was
only
assets were an insurance
with
approve of the
deposition, whether he would
$20,000,
responsible for a traffic
limits of
offered, asking
his insurer was
settlements
parties agreed that his
accident. All the
$20,000
poli-
interpleader of the
either for
$20,000.
liability well exceeded
Tamez’s law
some,
exchange
cy
for a release
limits
yers
a settlement offer for the
refused
contrast,
all,
plaintiffs.
In
but not
*6
offering
plaintiff
because the
was not
a
limits
in
challenged the turnover order
Tamez
potential
release from all
claimants and the
not have
and stated that he would
court
hospitals
plaintiff’s
that held liens. The
set
offer that
accept
to
the settlement
wanted
expired
plaintiffs
tlement offer
and the
sued
attorneys. As there is
presented
to his
negligence in the traffic acci
Tamez for his
challenged or
Bleeker ever
no evidence that
$180,000.
dent, obtaining judgment
As
a
for
of action
opposed the turnover of his cause
judgment
pay
Tamez was unable to
the
from
insurers,
hold that Charles v.
against his
we
resources,
plaintiffs sought to
his
the
own
case,
not control this
and decline
Tamez does
compel Tamez to turn over his cause of ac
judgment
grounds.
the
on these
to reverse
lawyers
tion
his
under the Stowers
failing
accept
settlement
doctrine for
to
the
Object
Properly
for Failure to
Waiver
turnover, stating
the
opposed
offer. Tamez
accept
to
the
that he would not have wanted
appel
Appellee also contends that
offer,
was denied
turnover
right
complain about
their
to
lants waived
public policy
the tidal court. Because
question
two. See Allen
the DTPA claim
relationship
the
between law
concerns about
Co.,
There is no evidence that Bleeker would in contravention of American (Tex.1994). accept have wanted to the settlement offer if 849 That case it, rejected position that “insurers rather he had been informed of and therefore no the duty appellants’ than claimants have a to make settle- causal connection between failure ment offers.” Id. at 851 n. We do not to inform him of the settlement offer and the agree requiring “negotiate” insurers to excess entered Bleeker. necessarily they requirement includes a appellants’ point pertain- We sustain of error initiate settlement offers. legal insufficiency to the of the evidence support appellee’s to claim the DTPA under authority from There is other the Texas for failure to inform the insured of settle- indicating jury Supreme Court that a instruc- ment offers. including phrase duty to tion the “the settle implies duty negotiate” appropriate. the to is
Attorney’s Fees Guin, Ranger County See Mut. Ins. Co. v. In that case S.W.2d attorney’s premised The award fees was jury jury the instruction that considered DTPA claim. the Since we have reversed very similar to the one used this case of the trial court on that issue duty and contained the sentence “The to appellants and hold that to were entitled implies duty negotiate.” settle The claim, attorney’s recover on the DTPA given by court said instructions “[t]he proper. point fees are sustain the We properly explained upon trial court the basis alleging error error in the award of attor- jury negligence which the could find a case ney’s fees. type.” of this Id. find no error in the duty implies instruction to settle “[t]he The Stowers Claim duly negotiate.” jury returned a also verdict argue that the evi support appellee’s Ques Stowers claim. factually jury charge legally tion 1 of dence was insufficient to language lifted directly finding from an affirmative on this issue. Stowers:
Villegas
offered settlement
his clients
exchange
depositing
policy
Question
limits of
NO.l
$40,000
registry
into the
of the court for an
company’s
Was the insurance
failure to
interpleader proceeding.
this action
While
negligence
proximately
settle
which
caused
prevented any
claimant from
would
have
Judgment?
the Final
suing
directly,
pre
it would have
means the failure to ex-
“NEGLIGENCE”
taking
portion
vented
claimant
degree
diligence
ercise that
of care and
submitting
limits without
ordinarily prudent person
which an
would
43;
interpleader proceeding. Tex R.
P.
Civ.
management
exercise
of his own
see,
Am. Reserve Ins. Co. v. Sand
e.g. Great
responding
business in
de-
(Tex.1975) (insur
ers,
mands,
any,
if
within the insurance
company facing multiple
ance
claims for
limits.
policy proceeds may use
same life insurance
ordinarily prudent person
If an
ex-
interpleader
liability to
to limit
its
face
ordinary
ercise of
care would have settled
policy).
limits
amount
Once
settle,
by accepting
the ease
an offer to
but
for,
was,
spoken
by all ac
were
the insurance
failed or refused to
counts, so limited in his own financial re
so,
company negli-
do
then the insurance
judgment proof.
sources as to be
Under
gent.
implies
duty
settle
circumstances,
likely
highly
these
it is
negotiate.
*9
content
all the claimants would have been
First,
appellants argue that the trial court with a share of the disbursement
interpleader pro
instructing
jury
duty
through
limits
the
“[t]he
erred in
the
that
liability
duty
negotiate.” Ap-
ceeding
pursue
rather than
a futile
implies
to settle
the
argues
imposes
against
a
Bleeker after the
limits
pellant
that this sentence
ease
However,
offers,
gone.
by refusing to tender
duty on insurers to make settlement
were
Unconsdonability
on
registry of the court
Cross-Point
policy limits into the
the
manner, Trinity left the claimants
timely
in a
single cross-point,
brings a
directly.
no alternative but to sue Bleeker
judge
error for the trial
arguing that it was
Appellants argue that there is no evidence
jury
an issue to the
to refuse to submit
support including the claims of those
unconsdonability
under
the
regarding
the
represented by Villegas at the time of
unconscio
of a DTPA
DTPA.2 The elements
offers in the calculation of dam-
1)
plaintiff is a consum
nability claim are
ages resulting
Trinity’s
breach
2)
er,
of
act or course
an unconscionable
However,
duty.
Villegas testified
3)
Stowers
unconsciona
by any person, and
action
advantage
if
had chosen to take
producing
action is a
act or course of
ble
interpleader process the excess dam-
damages.
v.
plaintiffs
Miller
cause of
award,
ages
including
claims of all the
Soliz,
(Tex.App.
648 S.W.2d
—Cor
claimants, would have been avoided because
writ).
An
pus
no
“unconsciona
Christi
inability
pay
claims be-
of the Bleeker’s
is “an act or
action or course of action”
ble
yond
policy.
(A)
the limits of his insurance
which,
person’s
to a
detriment:
practice
knowledge,
advantage of the lack of
takes
hold that there is some evidence
person to
capacity
or
of a
ability, experience,
ordinarily
person in
prudent
an
the exercise
degree.” Tex. Bus. & Com.
grossly
unfair
deposited the
ordinary
of
care would have
1987).
(Vernon
§
17.45
Ann.
Code
registry
limits into the
of the court as
urged by Villegas’s settlement offer. There
rejected jury question asked:
The
taking
action
is also some evidence that
this
engage
Did the insurance
prevented
judg-
would have
the entire excess
action or course of action
unconscionable
ment that was entered
Bleeker. We
entry
producing cause of the
of
that was a
say
jury’s finding
can not
of a
Judgment?
Final
duty
finding
of
and the
breach
the Stowers
or course of ac-
An unconscionable action
damages resulting
on the
from that breach
that,
person’s
practice
is an act or
tion
contrary
overwhelming weight
are so
to the
-
detriment, either
clearly wrong
of the evidence as to be
advantage of the lack of knowl-
a.
takes
manifestly unjust.
appellants’
We overrule
edge, ability, experience,
capacity
of
sufficiency
points
challenging
error
degree
person
grossly
to a
unfair
supporting
jury’s finding
the evidence
issue.
gross disparity
in a
between
b.
results
paid in a
and consideration
value received
The Good Faith Claims
involving transfer of consider-
transaction
ation.
of whether an insurer owes its
issue
duty
good
dealing
insured a
faith and fair
of the Texas Rules
Rule 278
party
third
claims
when faced with
non-discretionary
provides a
Procedure
Civil
squarely
in a
the insured was
addressed
re-
request
requirement that trial courts submit
Supreme
cent case from the Texas
Court.
jury
pleadings
if the
questions
ed
Coatings
Maryland Ins. Co. v. Head Indus.
P.
support them. Tex.R. Civ.
evidence
(Tex.1996)
Servs,
(per
Corp. v. 842 S.W.2d 631 counsel was not in his best interest or 1992). Trinity acting unconscionably. Appellant argues that there was no evi- duty to settle lawsuits under Stowers ques- dence to the submission of this essentially personal is an owed case, disagree. tion. In this an unso- We company insurance to its insured. See phisticated placed insured his trust in his Tamez, (Tex. 201, Charles v. 878 208 S.W.2d company insurance to handle settlement of- denied). App. Corpus Christi writ — By rejecting Villegas’s on his fers behalf. recognize right that an We insured’s to sue exchange in interplead- offer of a release for subject equita for failure to settle is to both limits, Trinity open left Bleeker to subrogation assignment. ble See Ameri multimillion dollar excess Co., can Centennial Ins. Co. v. Canal Ins. against was entered him. hold that Tamez, (Tex.1992); 843 S.W.2d 482-84 present these facts at least some evidence at 208.1 S.W.2d Trinity advantage took of Bleeker to a However, underlying claim to be trans- grossly degree. Similarly, unfair these facts assignment ferred must be viable. The present gross at least some evidence of a lacking a claim that in turnover of disparity paid between the consideration nothing. element transfers Stowers essential premiums the form insurance proposition is based on the that the insurer and the value he received the form of negligent responding to a settlement representation by Trinity. A demand within limits. G. Stowers Appellee’s point cross is sustained. Co., Indemnity Furniture Co. American (Tex.Comm’n App.1929, Disposition holding approved). The insurer could of the trial court is AF- insured, negligent regard to its held with regards FIRMED claim with however, the insured was himself dis- unless regards to DTPA REVERSED with aspect satisfied with some of the manner good faith claims. We REMAND the being claims which the insurer handled the unconscionability pro- for issue of further against him. made ceedings opinion. not inconsistent with this case, present In the Bleeker made no com- SEERDEN, C.J., plaint Trinity dissents. about the manner which claims, present and Bleeker handled SEERDEN, Justice, dissenting. Chief agreed with the decision not to settle less respectfully I I would hold that dissent. against than all of the claims him for Bleeker’s uncontroverted satisfaction with Trinity pay limits. never refused to representation he received from policy, merely but amount of the refused left no over viable Stowers claim to be turned claimants, settle with less than all plaintiffs. hospital including holding those liens. Trinity’s by deposition approval that he Bleeker indicated his testified and, any complaint, could not wanted the insurance to obtain a conduct absent claimants, against cause of action release from all that he relied on have raised Stowers time, Trinity. who told Because Bleeker had no Stowers the advice of his counsel at the over, parties the real trying get him that he was all of the claim to be turned settlement, a claim together claimants for and that interest cannot be allowed create personal that his on his behalf for their interest. he did have reason believe Tamez, estate, public policy subject in an unassert- we held that bars the to inclusion in his In unasserted, ed, claim). legal malpractice turnover of an denied Stowers cause We rea- denied insurer, of action ney an the attor- allowing party to force a Stowers soned legal malpractice, for failure to settle opponent lawsuit on behalf of a satisfied does not Tamez, 208; lawsuit. 878 S.W.2d at see also promote specific purpose of the turnover Robinson, Dauter-Clouse v. legal purpose of the Texas statute or the overall n.w.h.) (bank- (Tex.App. [14th Dist.] Tamez, —Houston system. at 208. rupt debtor in Texas does not have interest *11 EDELMAN, LEE, AMIDEI and Before I and render Accordingly, would reverse JJ. Trinity. OPINION AMIDEI, Justice. summary judg- appeal from two This is an IZEN, Jr., Appellant, A. Joe 28,1994, April and signed ments October single In a final severance. made Cole, NICHOLS,
John F. Warren error, the trial point appellant contends Associates, F. Nichols & John granting the motion for sum- court erred in P.C., Appellee. mary judgment. affirm. No. 14-95-0961-CV. by appel- from a suit filed This case arises Izen, Jr., lant, against Martha Alfred Joe Texas, Appeals Court (Mackin) for Mackin Izen conversion (14th Dist.). Houston, filed a cross-claim funds. Mackin 13, 1997. March Nichols, Cole, F. Warren appellees, John Associates, F. Nichols and P.C. and John (Nichols), things, legal alleging, among other contract, fi- breach of malpractice, breach duciary duty, and violations of the Texas De- ceptive Practices Act. settlement, part Mackin
As of their divorce assigned fifty percent undivided interest Izen against appellees. cause of action On her 26, 1991, July trial court entered interlocutory judgment take that Mackin appellees. Ap- nothing on claims her summary judgment pellees filed a motion for assignability of Mackin’s on the issue of the as legal malpractice claim to Izen. Attached affida- appellees’ motion was an an exhibit to states, part, vit of Mackin that Nichols, Firm and Warren Cole John representation nothing wrong in their did I at all times satisfied with of me. they acted representation their and believe my competent interest and as law- best in the mal- yers. allegations made allegations practice are the of Michael ease They Minns, Butch Bradt and Joe Izen. my allegations. I have never felt are not merit, malpractice case had brought solely gain additional visita- it my tion with children. Zomcik, Houston, for John F. Michael J. inquiry appeal is whether proper F. Nichols and Associates. Nichols John summary judgment, ful- seeking appellees, Jr., Houston, for Knapp, Fred Warren 1) as a initial to establish filled the burden Cole. genuine of law that there remained matter one or more Izen, Jr., of material fact as to pro issue A. se. Joe