Jose L. Elizondo and Guillermina Elizondo v. Ronald Krist, The Krist Law Firm, P.C., Kevin D. Krist and William T. Wells--Appeal from 129th District Court of Harris County

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Laws-info.com » Cases » Texas » 14th District Court of Appeals » 2010 » Jose L. Elizondo and Guillermina Elizondo v. Ronald Krist, The Krist Law Firm, P.C., Kevin D. Krist and William T. Wells--Appeal from 129th District Court of Harris County

State: Texas

Court: Texas Northern District Court

Docket No: 14-09-00267-CV

Case Date: 12/14/2010

Plaintiff: Jose L. Elizondo and Guillermina Elizondo

Defendant: Ronald Krist, The Krist Law Firm, P.C., Kevin D. Krist and William T. Wells--Appeal from 129th Dist

Preview:Affirmed and Majority Opinion and Concurring and Dissenting Opinion filed December 14, 2010.

In The

Fourteenth Court of Appeals
NO. 14-09-00267-CV JOSE L. ELIZONDO AND GUILLERMINA ELIZONDO, Appellants/CrossAppellees V. RONALD KRIST, THE KRIST LAW FIRM, P.C., KEVIN D. KRIST AND WILLIAM T. WELLS, Appellees/Cross-Appellants On Appeal from the 129th District Court Harris County, Texas Trial Court Cause No. 2007-50121

MAJORITY OPINION
Appellants and cross-appellees Jose L. Elizondo and his wife, Guillermina Elizondo, appeal the trial court`s orders granting summary judgment in favor of appellees and cross-appellants Ronald D. Krist, The Krist Law Firm, P.C., Kevin D. Krist, and William T. Wells (collectively, the Lawyers). In six issues, the Elizondos contend the trial court erred in granting the Lawyers` motions for summary judgment and abused its discretion in striking portions of the affidavit of the Elizondos` lawyer expert. In a crossissue, the Lawyers argue the trial court erred in denying their motions for summary

judgment on the nonexistence of an attorney-client relationship with Mrs. Elizondo. We affirm. I Jose Elizondo was working at the BP Amoco Chemical Company plant in Texas City when an explosion occurred in March 2005. The blast threw him about twenty feet. Jose received medical attention for neck and back injuries, and returned to work several days later. He continued to be affected by emotional problems, however, as several of his close co-workers were killed. Shortly after the explosion, Jose met with attorney William Wells. Wells had been recommended by Jose`s supervisor at BP. During the meeting with Wells, Jose signed a power of attorney, retaining Wells to represent him in all claims against BP arising out of the explosion. Guillermina Elizondo was not at the meeting and did not sign the power of attorney. Wells subsequently sent a demand letter to BP asking for a settlement of $2 million for the Elizondos` claims. BP responded by offering $50,000. Wells then decided to enlist Ronald Krist, Kevin Krist, and the Krist Law Firm as additional counsel in the hope that they could negotiate a larger settlement. Wells referred several cases arising out of the explosion, including Jose`s, to the Krist Law Firm. Ronald and Kevin Krist arranged to meet with counsel for BP to discuss the cases and try to settle them. After the meeting, however, BP`s settlement offer to Jose was still $50,000. Wells and Kevin Krist met with Jose to discuss BP`s settlement offer and his options. Ultimately, Jose decided to accept BP`s offer, and signed a release and

settlement agreement. Although the release was drafted to include Guillermina and included a separate, printed space for her signature, she never signed the release because one of the attorneys at the settlement meeting told Jose that it was not necessary. After he signed the agreement, Jose never contacted any of the Lawyers again. 2

In August 2007, Jose learned that an attorney named Krist who had handled claims for some of the explosion victims was now working for BP. He consulted an attorney and, that same month, filed an action against the Lawyers. In an amended petition, Jose and Guillermina asserted claims for professional negligence, breach of fiduciary duty, violations of the Texas Deceptive Trade Practices Act (DTPA), common-law fraud, fraudulent misrepresentations, negligent representations, and fraudulent inducement. They also sought recovery of actual and exemplary damages. Jose and Guillermina alleged, among other things, that the Lawyers failed to obtain a larger settlement for Jose and never discussed pursuing or settling a loss-of-consortium claim--which was now time-barred--on Guillermina`s behalf. They also alleged that Jose was sold down the river so that Ronald Krist could represent BP in connection with the underlying claims of the Elizondos and others. The Lawyers filed various motions for summary judgment asserting, among other things, no evidence of damages, impermissible fracturing or claim splitting of a legal malpractice claim into claims for breach of fiduciary duty, fraud, negligent misrepresentation and DTPA violations, no attorney-client relationship with Guillermina, and termination of the attorney-client relationship with Jose upon his execution of a release. The Lawyers also argued that fee-forfeiture damages could not be recovered as a matter of law. The trial court granted some of the Lawyers` summary judgment motions and denied others. Based on all of the summary-judgment rulings, the trial court

rendered a final, take-nothing judgment against the Elizondos on all of their claims. This appeal followed. II In their first and second issues, the Elizondos contend the trial court erred by dismissing Jose`s and Guillermina`s claims on the ground that they presented no evidence of damages. In their sixth issue, they contend the trial court abused its discretion in striking portions of the affidavit of their expert, attorney Arturo Gonzalez. Because the 3

Elizondos offered attorney Gonzalez`s affidavit as some evidence of their alleged damages, we will begin with the trial court`s ruling on the Lawyers` objections to Gonzalez`s affidavit. A In their no-evidence motions for summary judgment, the Lawyers argued that all of the Elizondos` claims should be dismissed because they have no evidence of damages. Specifically, the Lawyers argued that the Elizondos had no evidence that BP was willing to pay anything more than what Jose Elizondo agreed to accept and the Elizondos could not identify anyone who obtained a larger settlement. In response, the Elizondos offered their own deposition testimony and Gonzalez`s affidavit. In his affidavit, Gonzalez averred that, based on his experience working on the BP docket at two plaintiffs` law firms, he had personal knowledge of the values of cases these firms settled on behalf of their clients, and he had personally participated in the settlement and mediation process for many cases. Gonzalez`s nine-page affidavit

described in detail his background as a licensed attorney, his experience in BP litigation, the confidentiality of the settlements with BP, the criteria considered in the settlement process, and the specifics of the Elizondo case, including his opinions on the Lawyers` liability and damages. The trial court struck the following portions of Gonzalez`s affidavit: General Value of Elizondo Case Based on the factual information provided and reviewed by me, my experience in the BP litigation, my knowledge of general settlement values and in the criteria and protocol relied upon to establish general settlement values in the BP litigation, it is my opinion that for a plaintiffs` attorney acting within the standard of care applicable to the same or similar circumstances, using reasonable due diligence, the Elizondo case would have had a general value, by way of settlement or verdict, in the range of between Two Million ($2,000,000.00) and Three Million ($3,000,000.00) 4

dollars. Guillermina Elizondo`s individual claim would represent some part of that value, but Jose`s claim would represent the majority of that value. The settlement value of the Elizondo claim is not distinguished as compensatory, non-economic or exemplary in nature, but instead is a single value offered by BP so that BP could avoid a trial or jury verdict. In my opinion, . . . the Lawyers would have garnered far in excess of the $50,000 offer which was supposedly the most that BP would ever pay. [T]hese cases were heavily evaluated and settlements obtained were significantly higher as compared to the average personal injury lawsuit in the state of Texas. The Elizondos contend that the trial court abused its discretion in striking these portions of Gonzalez`s affidavit, and that the exclusion of this testimony probably caused the rendition of an improper judgment. They argue that if Gonzalez`s testimony had been allowed, it would have established that their claims would have had a value of between $2 and $3 million. But the Elizondos do not challenge any specific evidentiary grounds for the trial court`s ruling. Instead, they merely assert that Gonzalez`s qualifications were unchallenged and he has personal knowledge and extensive experience in settling a portion of the 4000 claims arising out of the BP explosion, all of which BP settled before a jury could return a verdict.1 The decision whether to admit or exclude evidence is committed to the sound discretion of the trial court. City of Brownville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241

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