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Hill v. Perel8/17/1995
This is an appeal from the granting of a summary judgement in favor of the appellees, Stephen Perel and Stephen Perel and Associates (Perel). The appellant, Wanda Hill, sued Perel for malpractice for not filing a personal injury lawsuit within the State of California's one-year statute of limitations period. We affirm.
Fact summary
On December 24, 1991, Hill, 69, slipped and fell in a restaurant located in San Francisco's International Airport. The next day, Hill flew home to Houston, where she was admitted into a hospital for a complete hip replacement. In February 1992, Hill hired Perel to represent her in a negligence lawsuit against Marriott Corporation and Host International, which owned the restaurant where Hill fell. On March 29, 1993, Perel returned Hill's files and withdrew from representation. In July 1993, Hill sued Perel for negligence, legal malpractice, breach of contract, and breach of fiduciary duties for not filing a negligence action against Marriott and Host in California within that state's one-year statute of limitations. Perel contends he notified Hill when he withdrew from representing her that she could still sue Marriott and Host in Texas under Texas' two-year statute of limitations. Hill never sued Marriott or Host in Texas.
Perel's motion for summary judgment
In his motion for summary judgment, Perel contends that in order to prove legal malpractice, Hill had to show: (1) he breached the standard of care exercised by a reasonably prudent attorney, and (2) his acts or omissions were a proximate cause of injury or damage -- that but for his breach of duty, Hill would have prevailed in the underlying suit. Perel asserts that because Hill could have filed suit in Texas after he withdrew from representing her, she was not precluded from obtaining a remedy for her injuries. Perel states that Host and Marriott are subject to Texas jurisdiction and Texas applies its own statutes of limitation even when the substantive law of another state governs. Perel contends that as a matter of law his services did not proximately cause injury or damage to Hill. Attached to Perel's summary judgment are: (1) Hill's original petition, (2) the lease agreement between the San Francisco International Airport and Host International, (3) the Texas franchise tax public information report for Host International, (4) the certificate of authority for Host International to do business in Texas, (5) the certificate of authority for Marriott Corporation to do business in Texas, and (6) the affidavit of Stephen Perel. In a supplement to his motion for summary judgment, Perel attached excerpts from the depositions of Hill's expert -- lawyer and former judge Richard Countiss -- and Hill. Also attached is the affidavit of Martin S. Schexnayder, Perel's attorney.
In his affidavit, Perel contends the scope of his representation was to obtain compensation for her from the appropriate parties without filing suit. Perel stated that both Marriott and Host were subject to Texas jurisdiction and that Hill had until December 24, 1993, to file suit in Texas. Perel stated he told Hill when he withdrew on March 29, 1993, that she had until December to file suit in Texas. In his deposition, Countiss states that general jurisdiction exists in Texas over the Marriott Corporation and Host International. But, Countiss added that in his opinion, if the suit had been filed in Texas, it would have been dismissed for lack of jurisdiction because of the element of fair play and substantial justice. He contends that the five part-test to determine fair play and substantial justice is not met -- (1) it is a burden on the defendant to litigate the dispute in Texas, (2) California h
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