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Jennings v. Zimmerman8/17/2005
Sitting: Karen Angelini, Justice, Sandee Bryan Marion, Justice, Phylis J. Speedlin, Justice.
AFFIRMED
Grace Jennings appeals the summary judgment rendered in favor of Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. She raises two issues on appeal: (1) Did the trial court err in granting the Law Firm's "no evidence" motion for summary judgment; and (2) did the trial court err in granting the Law Firm's traditional motion for summary judgment. We affirm the summary judgment of the trial court.
BACKGROUND
Grace Jennings brought an action for legal malpractice against the Law Firm, alleging that they mishandled her wrongful death suit against her deceased husband's employer, Praxair, Inc. Grace's husband, David Jennings, died on or about October 6, 1997, in an apparent on-the-job accident while he was working for Praxair. Other than that he was found hanging from a job -site structure he had climbed, strangled by a rope he was using to secure a flashlight to his belt, there were no witnesses regarding the manner, events, and timing of David's death.
Following David's accident, Grace was contacted by Bobby Axelrad, a partner in the law firm Zimmerman, Axelrad, Meyer, Stern & Wise, P.C. (the "Law Firm"). According to Grace, Axelrad came to her home, talked to her about the case, and made assurances to her concerning his firm's competence to handle the case. Thereafter, Grace executed a contingency fee agreement with the Law Firm for its services.
In the underlying wrongful death suit, Grace alleged that her husband's employer, Praxair, was guilty of gross negligence and that such gross negligence was a proximate cause of her husband's death. Grace's suit eventually was concluded by the entry of a summary judgment in favor of Praxair.
In her suit against the Law Firm, Grace alleges that the Law Firm was negligent, breached its fiduciary duties, and committed legal malpractice in their taking and handling a wrongful death case on her behalf as the surviving spouse of her deceased husband. She further alleges that the Law Firm engaged in unconscionable conduct and violated 17.46(b)(24) of the Texas Deceptive Trade Practices/Consumer Protection Act. On May 26, 2004, the trial court rendered summary judgment in favor of the Law Firm. This appeal followed.
DISCUSSION
A. Standard of Review
The Law Firm's motion for summary judgment was argued under both the traditional and no-evidence standards. We review the trial court's granting of a traditional summary judgment de novo. Reynoso v. Huff, 21 S.W.3d 510, 512 (Tex. App.---San Antonio 2000, no pet.). Accordingly, we will uphold a summary judgment only if the summary judgment record establishes that there is no genuine issue of material fact, and the movant is entitled to judgment as a matter of law on a ground set forth in the motion. See TEX. R. CIV. P. 166a(c); American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In deciding whether the summary judgment record establishes the absence of a genuine issue of material fact, we view as true all evidence favorable to the non-movant and indulge every reasonable inference, and resolve all doubts in its favor. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).
In reviewing a no-evidence summary judgment, we apply the same legal sufficiency standard as in reviewing a directed verdict. Moore v. K Mart Corp., 981 S.W.2d 266, 269 (Tex. App.--San Antonio 1998, pet. denied). A no-evidence summary judgment asserts there is no evidence of one or more essential elements of claims upon which the nonmoving party would have the burden of proof at trial. Se
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