Zapata, Maria Helena v. Law Offices of Allison & Huerta, Etal. ( 2000 )

NUMBER 13-99-296-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

____________________________________________________________________

MARIA HELENA ZAPATA,

Appellant,

v.

ALLISON & HUERTA, ET. AL., Appellees.

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On appeal from the 94th District Court of Nueces County, Texas.

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O P I N I O N

Before Justices Hinojosa, Chavez, and Rodriguez

Opinion by Justice Chavez

This is an appeal of a summary judgment in favor of the defendant in a legal malpractice claim. Appellant Maria Zapata brought suit against the Allison & Huerta Partnership, Douglas A. Allison, Steven T. Hastings and Jeanette Cantu-Bazar alleging that appellees were negligent, grossly negligent, and had breached their fiduciary duty to her by 1) failing to file suit on her behalf before the expiration of the statute of limitations of her underlying claim, and 2) misleading her into believing that she was a part of a class action, that she had a separate claim that was separately viable, and that she would be compensated for her damages in the underlying cause of action.

The underlying suit arose out of a release of butadiene from a plant owned by Occidental Chemical Corporation (OxyChem) in October 1992. On or about January 1, 1993, appellant became pregnant. In May 1993 appellant learned that she was carrying an anencephalic fetus and chose to terminate her pregnancy. Appellant believes that the damage to her fetus was directly related to exposure to the butadiene released in October 1992 and entered into a contract with the Law Offices of Allison & Huerta to bring suit against OxyChem on her behalf.

The Allison & Huerta firm did not pursue her suit individually. Instead, they included appellant in a class action lawsuit they pursued against OxyChem which was ultimately settled. Appellant was awarded $5500 as a member of a certified mandatory class which she has refused to accept.⁽¹⁾ The Allison & Huerta firm did not maintain contact with appellant. They did not inform appellant of any plans to include her in the class action suit. Appellant learned of the $5500 settlement on her own, without notification from Allison & Huerta.

The proper inquiry on appeal of summary judgment is whether the appellant fulfilled her initial burden 1) to establish as a matter of law that there remains no genuine issue of material fact as to one or more essential elements of the plaintiff's cause of action or 2) to establish his affirmative defense to the plaintiff's cause of action as a matter of law. Rhone-Poulenc, Inc. v. Kenda Steel, 997 S.W.2d, 217, 222 (Tex. 1999). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant must be taken as true, with every reasonable inference indulged in favor of the non-movant, and any doubts resolved in his favor. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 549 (Tex. 1985). The elements of legal malpractice based on negligent handling of a case are as follows:

1) A duty on the part of the lawyer to use the degree of care required of an ordinarily prudent member of the legal profession;

2) A breach of that duty;

3) A proximate cause between the negligent act and resulting injury;

4) Actual loss or damage resulting from the attorney's negligent conduct.

Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989).

Appellant complains that appellees have mischaracterized their motion for summary judgment as a no evidence summary judgment. In their motion for summary judgment, appellees argued that appellant did not prove that the release of the butadiene was the proximate cause of her injury. Without this evidence, appellant cannot prove any actual loss or damage from any negligence by Allison & Huerta.

A no evidence motion for summary judgment is improper if there is more than a scintilla of probative evidence to raise a genuine issue of material fact. Merrell Dow Pharmaceuticals v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Evidence in a no evidence motion for summary judgment is reviewed in light most favorable to the non-movant. Robinson v. Drug, 998 S.W.2d 407, 411 (Tex. App.--Waco 1999, no pet. h.).

Appellant submitted only her own affidavit, stating her belief that the OxyChem discharge proximately caused the anencephaly. Appellees objected to her statement under Texas Rule of Evidence 702,⁽²⁾ and the trial court struck her affidavit. The trial court gave appellant fifteen days in which to file an expert affidavit establishing a -causal connection, which she did not do. This in itself entitles appellees to summary judgment.

We AFFIRM the judgment of the trial court.

MELCHOR CHAVEZ

Justice

Do not publish. Opinion delivered and filed this

Tex. R. App. P. 47.3. the 19th day of October, 2000.

1. We note that appellant's attempt to analogize her case to the "Baby Josephine" case where high damages were awarded to an anencephalic child is without merit. No cause of action exists in Texas for death or injury to a fetus which is not born alive. Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 79 (Tex. 1997).

2. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise. Tex. R. Evid. 702.