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Griggs v. Wood8/30/2001
In this legal malpractice action, Gerry M. Griggs appeals a summary judgment granted in favor of Robert M. Wood on the grounds that: (1) the summary judgment did not dispose of Griggs's breach of fiduciary duty, deceptive trade practices act ("DTPA"), and breach of contract claims; (2) the trial court erred in striking his fourth amended petition; and (3) he submitted sufficient evidence to preclude summary judgment on his malpractice claim. We affirm.
Background
Wood, an attorney, represented Griggs in an ERISA lawsuit (the "ERISA action") in federal court against several defendants. In that case, Griggs sought recovery of benefits that had not been paid by his employee retirement plan (the "plan"). In 1995, the federal court ruled in that case, among other things, that Griggs take nothing on his claim for breach of fiduciary duty against Richard Rosen, President of Advanced Energy Technology Company Inc. ("AET," Griggs's former employer), and trustee of the plan.
In 1996, Griggs sued Wood in the instant lawsuit in connection with Wood's representation of Griggs in the ERISA action. Griggs's third amended petition alleged that Wood was negligent in the ERISA action by failing to: (1) sue on behalf of the plan; (2) plead claims for equitable relief; (3) offer evidence that the plan was under-funded or damaged by Rosen's alleged breach of fiduciary duty; (4) conduct discovery and develop evidence necessary to defeat Halliburton's motion for summary judgment against Griggs's alter ego claim; (5) conduct discovery and develop evidence necessary to maintain causes of action against Halliburton and its directors for breach of fiduciary duty and self-dealing; (6) appeal the final judgment; (7) identify the defendants as fiduciaries, state why they were fiduciaries, and identify which fiduciary duties they breached; (8) plead and prove certain ERISA violations; and (9) plead for benefits on behalf of Griggs.
Wood filed a motion for summary judgment against Griggs's claims in March of 1998 (the "March motion"), which asserted that Griggs had no expert testimony to show that Wood had breached the applicable standard of care or proximately caused injury to Griggs. After a sequence of summary judgment responses and replies by the parties, the trial court granted Wood a partial "no evidence" summary judgment in July of 1998 (the "July order"), stating that "[Grigg's] claims of negligence that derive from non-ERISA causes of action are dismissed."
On August 17, 1998, Griggs filed a fourth amended petition (the "1998 fourth amended petition") which added breach of fiduciary duty, DTPA, and breach of contract claims based on the same facts as had been alleged in the third amended petition in support of the legal malpractice claim. On August 18, 1998, the day after the 1998 fourth amended petition was filed, Wood filed a second motion for summary judgment (the "August motion"), which again asserted, among other things, that Griggs had no evidence that Wood proximately caused any harm to Griggs.
After another exchange of summary judgment responses and replies, the trial court granted the August motion in September of 1998 (the "September order") without specifying the ground(s) relied upon, dismissed all of Griggs's claims with prejudice, and held that all pending motions were denied as moot. Thereafter, on August 9, 1999, Griggs filed a second fourth amended petition (the "1999 fourth amended petition"). In response, Wood filed a motion to strike the 1999 fourth amended petition, complaining that it was filed on the eve of trial, included several new allegations, and re-asserted the non-ERISA claims that had been dismissed in the July order. On A
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