Opinion
No. 04-04-00108-CV
Delivered and Filed: December 15, 2004.
Appeal from the 288th Judicial District Court, Bexar County, Texas, Trial Court No. 2002-CI-00925, Honorable Andy Mireles, Judge Presiding.
The Honorable Lori Cliffe Massey is the presiding judge of the 288th Judicial District Court, Bexar County, Texas. The Honorable Andy Mireles, presiding judge of the 73rd Judicial District Court, presided over the hearing and signed the orders granting summary judgment.
Affirmed.
Sitting: Alma L. LóPEZ, Chief Justice, Sarah B. DUNCAN, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Thomas O'Donnell, as executor of the estate of Corwin Denney, appeals from a summary judgment granted in favor of the law firm and attorneys who provided legal advice to Mr. Denney during his life. Because we find the summary judgment evidence establishes that the estate lacks privity with the lawyers and law firm it is suing, we affirm the judgment of the trial court.
Background
Corwin Denney retained Paul H. Smith, Jack Guenther, and Cox Smith, Inc. (collectively, "Cox Smith") to provide legal advice in connection with the handling of his wife's estate after her death in 1968. During this representation, Cox Smith filed a Federal Estate Tax Return on behalf of Mr. Denney as executor of his wife's estate, which included an inventory of his wife's property at the time of her death. The information in this tax return and the characterization of his wife's separate and community property interests then formed the basis on which Mr. Denney funded his wife's testamentary trust. Mr. Denney died approximately 29 years later in April 1999.
The complete list of named defendants includes Paul H. Smith; Jack Guenther; Cox, Smith Smith; Cox, Smith, Smith, Hale Guenther; Cox, Smith, Smith, Hale Guenther, Inc.; and Cox Smith, Inc. In the interest of brevity, we refer to the defendants collectively as Cox Smith.
Sometime after Mr. Denney's death, the beneficiaries of his wife's trust sued Denney's estate claiming that they had suffered damages as a result of the trust being underfunded due to a mischaracterization of separate and community property assets. Ultimately, Denney's estate settled the claims of the beneficiaries for approximately $12,900,000. The estate then brought suit against Cox Smith. The suit alleged that certain conduct by Cox Smith during its representation of Mr. Denney from approximately 1968 to 1970 constituted legal malpractice that resulted in the estate having to settle the claims of the beneficiaries. Cox Smith sought summary judgment asserting multiple traditional and no-evidence grounds. The trial court granted summary judgment without stating a reason and O'Donnell, as executor of Denney's estate, appeals.
Standard of Review
This court reviews a trial court's summary judgment ruling under a de novo standard of review. Estate of Arlitt v. Paterson, 995 S.W.2d 713, 717 (Tex.App.-San Antonio 1999, pet. denied). We will uphold a traditional summary judgment only if the movant has established that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law on a ground expressly set out in the motion. Tex. R. Civ. P. 166a (c); Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 548 (Tex. 1985). 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 in favor of the non-movant. Nixon, 690 S.W.2d at 548-49. When summary judgment was sought on multiple grounds and the trial court's order does not indicate the basis for its ruling, we will affirm the summary judgment if any theory advanced by the movant is correct. Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989); see also Villanueva v. Gonzalez, 123 S.W.3d 461, 464 (Tex.App.-San Antonio 2003, no pet.).
Analysis
To recover on a claim for legal malpractice, "a plaintiff must prove that (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff's injuries, and (4) damages occurred." Peeler v. Hughes Luce, 909 S.W.2d 494, 496 (Tex. 1995). An attorney owes a duty of care, however, only to his client, and not to other parties or entities that may have been harmed by the attorney's negligent representation. Barcelo v. Elliott, 923 S.W.2d 575, 577-79 (Tex. 1996) (holding attorney owed no professional duty of care to beneficiaries of will or trust whom the attorney did not represent). This has been maintained as a "bright-line" privity rule in legal malpractice cases. Id. at 578. Therefore, to establish the duty element in a legal malpractice action, a plaintiff must show that he was in privity of contract with the attorney he is seeking to sue. Arlitt, 995 S.W.2d at 720. Without privity, the necessary element of duty cannot be established as a matter of law. Id.
Cox Smith argues summary judgment in this legal malpractice action was properly granted because they established as a matter of law that the estate lacks privity of contract with the lawyers it is suing. We agree. The summary judgment evidence conclusively established that Cox Smith represented Mr. Denney during the 1968 to 1970 time period, approximately 29 years prior to his death. Cox Smith's only client was Mr. Denney. At no time did Cox Smith represent O'Donnell as the personal representative of Denney's estate, nor did Cox Smith represent his estate after Mr. Denney's death.
The estate maintains that privity does exist because the estate is merely prosecuting an actionable wrong which Mr. Denney suffered before his death. This argument necessarily includes two premises: (1) a cause of action for legal malpractice accrued to Mr. Denney during his lifetime; and (2) such a cause of action would survive Mr. Denney's death and could be properly prosecuted by the representatives of his estate.
As to whether a cause of action for legal malpractice accrued, the summary judgment evidence shows that during his lifetime, Mr. Denney did not know of any claimed wrongful act by Cox Smith, did not have notice of or anticipate the subsequent claims by the beneficiaries of his wife's estate, and did not suffer an economic loss as a result of Cox Smith's representation. A cause of action does not accrue until facts have come into existence that authorize a claimant to seek a judicial remedy. Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001). While the amount and full extent of damages may not be realized until some later date, a plaintiff must be able to establish some legal injury in order to bring a claim for legal malpractice in Texas. Zidell v. Bird, 692 S.W.2d 550, 555 (Tex.App.-Austin 1985, no writ). Even if Cox Smith's actions during Mr. Denney's lifetime fell below the applicable standard of care, a cause of action for legal malpractice could not accrue in favor of Mr. Denney until he knew or reasonably should have known of a wrongful act by Cox Smith and a resulting injury. Murphy v. Campbell, 964 S.W.2d 265, 270-71 (Tex. 1997). The claimed wrongful act and alleged damages in this case did not become apparent until after Mr. Denney's death when the beneficiaries of his wife's trust sued and Denney's estate settled the claims for $12,900,000. Where a legal malpractice cause of action does not accrue until after the client's death, there is no claim that can be properly prosecuted by the representatives of the client's estate. Belt v. Oppenheimer, Blend, Harrison Tate, Inc., 141 S.W.3d 706, 708 (Tex.App.-San Antonio 2004, pet. filed); see also Arlitt, 995 S.W.2d at 720.
The summary judgment evidence establishes that Mr. Denney suffered no legal injury during his lifetime. See Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992) (in survival action, actionable wrong is what decedent suffered before death and recoverable damages are those decedent sustained while alive); see also Felan v. Ramos, 857 S.W.2d 113, 118 (Tex.App.-Corpus Christi 1993, writ denied). The summary judgment evidence establishes that a cause of action for legal malpractice did not accrue to Mr. Denney during his lifetime, therefore, we do not reach the issue of the survivability of such a claim.
O'Donnell, as representative of Mr. Denney's estate, lacks privity with Cox Smith. Accordingly, we find the granting of summary judgment in favor of Cox Smith was proper as there is no genuine issue of material fact as to an essential element of O'Donnell's claim. Arlitt, 995 S.W.2d at 720. Because the trial court's judgment is affirmed on this basis, we do not address the remaining alternative grounds for summary judgment. Carr, 776 S.W.2d at 569; Villanueva, 123 S.W.3d at 467.