Susan Robbins v. Ladonna Capozzi, Adleta & Poston, Inc. and Susan Bratton--Appeal from County Court at Law No 4 of Dallas County

SUPREME COURT CASES

Laws-info.com » Cases » Texas » 12th District Court of Appeals » 2002 » Susan Robbins v. Ladonna Capozzi, Adleta & Poston, Inc. and Susan Bratton--Appeal from County Court at Law No 4 of Dallas County

State: Texas

Court: Texas Northern District Court

Docket No: 12-02-00040-CV

Case Date: 11/08/2002

Plaintiff: Susan Robbins

Defendant: Ladonna Capozzi, Adleta & Poston, Inc. and Susan Bratton--Appeal from County Court at Law No 4 of D

Preview:Randall C. Boyd v. Koons, Fuller, Vanden Eykel &
Robertson, P.C.--Appeal from 116th District Court of
Dallas County
MAJORITY | MAJORITY
IN THE
TENTH COURT OF APPEALS
No. 10-03-00337-CV
Randall C. Boyd,
Appellant
v.
Koons, Fuller,
Vanden Eykel & Robertson, P.C.,
Appellee
From the 116th District Court
Dallas County, Texas
Trial Court # 02-09480-F
MEMORANDUM Opinion
This is a legal malpractice action in a divorce and child custody case. The trial judge granted a traditional motion for
summary judgment in favor of Koons, Fuller, Vanden, Eykel & Robertson, P.C. ( Fuller ). Randall C. Boyd, Fuller s
client, appeals in one issue: Is there an issue of fact as to whether Fuller s negligence was a substantial cause of Boyd s
divorce not having been finalized before Boyd received certain stock and options? We will overrule Boyd s issue and
affirm the summary judgment.
BACKGROUND
A Mediated Settlement Agreement ( MSA ) was entered in May 1997. Boyd s wife Ginger and their daughter Ashley
(through her attorney) contested the MSA in August 1997 because: (1) it did not comply with the Family Code
(requirement to name the county of residence or the conservator with exclusive right to establish primary residence);
(2) Boyd did not disclose a bonus that was already due in the amount of $230,000; and (3) the MSA was not in Ashley
s best interest. Boyd filed a motion to enforce the MSA. A hearing was held on the motion to enforce in September
1998. In April 1999, the motion to enforce was denied because the MSA did not consider the bonus money which
file:///C|/Users/Peter/Desktop/opinions/PDFs1/6140.html[8/20/2013 7:20:07 PM]

might have affected the allocation decisions made by the Petitioner and is unenforceable with respect to the visitation
and access issues. However, in July 1998, Boyd had received a stock and options bonus worth $8,000,000. A divorce
decree was entered in the fall of 1999, which considered the $8,000,000 bonus received in July 1998 as part of the
community estate and divided the bonus with Ginger.
Boyd sued Fuller for legal malpractice claiming Fuller: (1) failed to investigate the extent of the community estate; (2)
advised Boyd that he did not have to disclose the $230,000 bonus already due; and (3) drafted an MSA that was not
compliant with the Family Code. He argues that these negligent actions delayed the final decree and allowed the July
1998 bonus worth $8,000,000 to become community property.
Fuller filed a traditional motion for summary judgment challenging the causation element of legal malpractice. The
motion was granted.
ARGUMENTS
Boyd argues that Fuller s negligence caused the delay in the finalization of the divorce. He argues that without these
negligent acts, there would have been no grounds to challenge the MSA. He asserts that his expert raised a fact issue as
to causation with testimony that there would have been no basis on which to move to set aside the MSA, and [w]ithout
a basis for moving to set aside the [MSA], an attorney would be highly unlikely to file such a motion and even less
likely to continue to pursue it as late as July of 1998.
Fuller argues that the delay was attributable to: (1) the court s delay in having a hearing on the motion to enforce; (2)
Boyd and Ginger could never have agreed on enforceable visitation and access provisions; and (3) Boyd s expert
testimony was purely speculative and does not raise a fact issue on causation. The lawyers for Ginger and Ashley
testified that they would have challenged the MSA regardless of Fuller s negligence because Ashley violently opposed
the visitation and access provisions. Ashley s attorney further stated that he would have challenged the agreement on
whatever reasonable and ethical grounds he could have come up with, including a family law court s ability to set
aside agreements that are not in the child s best interest. He testified that, if this approach failed, he would have sought
a modification. Ginger s attorney testified that: I would have pursued this claim on behalf of Mrs. Boyd so long as I
had a client and some judge told me not to had not told me to go home, that I didn t have anything to do; in other
words, get out of my courtroom. Whether she would ve come in with a decree based on this MSA, or just the MSA, I
would ve attacked it. Fuller s expert testified that the primary factor in the harm that Mr. Boyd suffered was the judge s
failure to hold a hearing on the motion for enforcement.
SUMMARY JUDGMENT
Standard of Review
We review the decision to grant or deny a summary-judgment motion de novo. See Rucker v. Bank One Texas, N.A.,
36 S.W.3d 649, 653 (Tex. App. Waco 2000, pet. denied). The standards for reviewing a traditional motion for summary
judgment are well established. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). The movant has
the burden of showing that no genuine issue of material fact exists and that he is entitled to the summary judgment as a
matter of law. American Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Ash v. Hack Branch Distributing
Co., 54 S.W.3d 401, 413 (Tex. App. Waco 2001, pet. denied). The reviewing court must accept all evidence favorable
to the non-movant as true. Nixon, 690 S.W.2d at 549; Ash, 54 S.W.3d at 413. Every reasonable inference must be
indulged in favor of the non-movant and all doubts resolved in its favor. American Tobacco, 951 S.W.2d at 425; Ash,
54 S.W.3d at 413. If the movant for summary judgment is a defendant, then the movant must negate at least one of the
elements of the non-movant's cause of action, or, alternatively, the movant must conclusively establish each element of
an affirmative defense. Clifton v. Hopkins, 107 S.W.3d 755, 757 (Tex. App. Waco 2003, pet. denied). The non-movant
need not respond to the motion for summary judgment unless the movant meets its burden of proof. Rhone-Poulenc,
Inc. v. Steel, 997 S.W.2d 217, 222-23 (Tex. 1999). But if the movant meets its burden of proof, the non-movant must
present summary-judgment evidence to raise a fact issue. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.
1995).
file:///C|/Users/Peter/Desktop/opinions/PDFs1/6140.html[8/20/2013 7:20:07 PM]

Legal Malpractice
To recover on a claim for legal malpractice, the plaintiff must establish: (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). The proximate cause element of a legal malpractice claim
requires proof that the plaintiff would have prevailed in the underlying action but for the attorney s negligence.
Schlager v. Clements, 939 S.W.2d 183, 186-87 (Tex. App. Houston [14th Dist.] 1996, no writ).
Causation
A matter is conclusively established if ordinary minds could not differ as to the conclusion to be drawn from the
evidence. Ridenour v. Herrington, 47 S.W.3d 117, 120 (Tex. App. Waco 2001, pet. denied) (citing Triton Oil & Gas
Corp. v. Marine Contractors & Supply, Inc., 644 S.W.2d 443, 446 (Tex. 1982)); accord Appleton v. Appleton, 76
S.W.3d 78, 83 (Tex. App. Houston [14th Dist.] 2002, no pet.). We conclude that the record conclusively establishes
that the negligent acts of Fuller did not cause the $8,000,000 bonus to become community property. See Ridenour, 47
S.W.3d at 120.
We overrule Boyd s single issue.
CONCLUSION
Having overruled Boyd s single issue, we affirm the summary judgment.
BILL VANCE
Justice
Before Chief Justice Gray,
Justice Vance, and
Justice Reyna
(Chief Justice Gray dissenting)
Affirmed
Opinion delivered and filed January 5, 2005
[CV06]
file:///C|/Users/Peter/Desktop/opinions/PDFs1/6140.html[8/20/2013 7:20:07 PM]

Download 6140.pdf