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Huckin v. Connor6/27/1996
David Huckin appeals from a summary judgement granted in a legal malpractice suit in favor of appellees, Joseph P. Connor and Stern, Flanz, Carnley and Wilson, P.C. In one point of error, appellant contends the trial court erred in granting appellees' motion for summary judgment. We affirm.
In February, 1981, David Huckin entered into a contract with Kemper Investors Life Insurance Company ("Kemper") to sell life insurance and annuities. The contract was terminable at will and Kemper terminated the contract without cause in February, 1983. Huckin contacted appellee Connor, an attorney at law, in 1987 to file suit against Kemper. Connor filed a suit against Kemper in Huckin's behalf in November, 1987. After he filed the suit, Connor became associated with the firm of appellee Stern, Flanz, Carnley and Wilson, P.C. ("Stern firm"). About six weeks after Connor filed the suit, Huckin terminated his attorney contract with Connor and retained Michael Kerensky of the firm of O'Quinn, Kerensky and McAninch, to take over the Kemper suit. In 1988, Huckin filed this suit against Connor and the Stern firm for malpractice alleging that Conner had failed to timely file the Kemper suit. The Kemper suit was dismissed for want of prosecution in May, 1989, and Kerensky failed to notify Huckin of the dismissal. Huckin learned of the dismissal in 1991 at which time all of his claims against Kemper were barred by limitations. Huckin then sued Kerensky and the O'Quinn firm for legal malpractice ("Kerensky suit") alleging that his lawsuit against Kemper was viable and not barred by limitations and Kerensky's negligence caused the suit to be dismissed and become barred by limitations.
Kerensky and the O'Quinn firm filed a motion for summary judgment in the malpractice suit alleging that Huckin's breach of contract claim against Kemper was not viable because the underlying contract with Kemper was terminable at will and the termination by Kemper was lawful and not actionable. The motion for summary judgment in the Kerensky suit also alleged that Huckin's claim against Kemper for tortious interference and defamation were barred by limitations, and thus Kerensky and the O'Quinn firm were not liable as a matter of law. Huckin filed a response to Kerensky's motion for summary judgment, together with his sworn counter-affidavit in support of the response, claiming that he did not discover his cause of action against Kemper for tortious interference until December, 1985, and did not learn of the defamation until December, 1987, and that his claims for tortious interference and defamation were not time barred. The trial court granted Kerensky's motion for summary judgement "to the extent plaintiff's legal malpractice claim against defendants is based on loss of contract claims" against Kemper. The partial summary judgement denied all of the remaining grounds for summary judgement in Kerensky's motion for summary judgement which included the claims of bar by limitations against Huckin on his tort claims against Kemper.
Kerensky and the O'Quinn firm amended their motion for summary judgment again alleging that all of Huckin's tort claims against Kemper were barred by limitations and Kerensky and the O'Quinn firm were not liable.
Huckin settled his malparactice case against Kerensky and the O'Quinn firm before trial on the merits. As part of the settlement, Huckin agreed to the unopposed entry of a summary judgement in favor of Kerensky and the O'Quinn firm on their pending motion for summary judgment. The summary judgement was entered, as agreed, on January 12, 1994.
After concluding the Kerensky suit, Huckin actively pursued this case against appellees starting in February, 199
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