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Latham v. Castillo6/23/1998
On Application for Writ of Error to the Court of Appeals for the Thirteenth District of Texas
Argued on April 23, 1997
In this case, we consider whether an attorney's affirmative misrepresentations to his clients that cause the clients to lose their day in court can constitute unconscionable action under the Deceptive Trade Practices-Consumer Protection Act. The court of appeals answered in the affirmative. ___ S.W.2d ___. We affirm the court of appeals' remand of the DTPA claim, and we reverse and render judgment that the Castillos take nothing on their remaining claims.
I.
On January 3, 1986, Audona Castillo prematurely gave birth to twin daughters, Kay and Sara, at Taft Hospital. Born with birth defects, the girls were immediately transferred to Driscoll Foundation Children's Hospital where both underwent surgery. Sara died approximately one week later. The Castillos then filed a medical malpractice suit against Driscoll Hospital on Sara's behalf and received a $6,000,000 default judgment. Later, their attorney, Rene Rodriguez, settled the case for $70,000.
Kay Castillo, the surviving twin, died on February 14, 1988. In December 1989, the Castillos hired B. Mills Latham to file a legal malpractice claim against Rodriguez for settling the default judgment and to pursue a medical malpractice claim against Driscoll Hospital for Kay's death. While Latham settled the legal malpractice claim against Rodriguez for $400,000, the statute of limitations ran on the Castillos' medical malpractice claim on February 14, 1990 without suit being filed. The Castillos then sued Latham for legal malpractice because Latham failed to file the medical malpractice action for Kay's death within the two-year statute of limitations. The Castillos also sued Latham for unconscionable action under the DTPA because Latham affirmatively represented to them that he had filed and was actively prosecuting the medical malpractice claim. Finally, the Castillos alleged that Latham wrongfully misrepresented himself, breached the contract of employment, and was negligent.
After the Castillos presented their case to a jury, the trial court granted a directed verdict for Latham that the Castillos take nothing. The court of appeals reversed and remanded, holding that the Castillos had presented some evidence to prevent a directed verdict on their DTPA claim. The court of appeals also remanded the "remaining theories of recovery" -- fraudulent misrepresentation and breach of contract -- without Discussion. ___ S.W.2d at ___. The court of appeals affirmed the directed verdict on the negligence claim, however, because the Castillos did not present evidence that but for Latham's negligence, the medical malpractice suit would have been successful. Id. at ___. The central question before us is whether the Castillos have presented some evidence to support each element of their DTPA cause of action. We hold that they have done so.
II.
The trial court granted a directed verdict against the Castillos on all claims. Accordingly, we must view the evidence in the light most favorable to them and indulge every reasonable inference in their favor. Harbin v. Seale, 461 S.W.2d 591, 592 (Tex. 1970). If reasonable minds could differ on controlling facts, the trial court errs in refusing to submit the issues to the jury. Collora v. Navarro, 574 S.W.2d 65, 68 (Tex. 1978). We consider the DTPA claim first.
A.
The Castillos alleged Latham's conduct constituted an "unconscionable action or course of action" that violated the DTPA. Tex. Bus. & Com. Code ยง 17.50(a)(3). Under section 17.45, "unconscionable action or course of action" mean
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