Just because a lawyer provides ineffective assistance doesn’t mean that there are damages. In Brice v. Wilson, No. 09-05-527-CV, 2006 Tex. App. Lexis 9717 (Tex. App.–Beaumont Nov. 9, 2006), pro se appellant Gene Olin Brice, an inmate in the Texas Department of Criminal Justice, sued appellees Terri G. Wilson, John R. MacLean, Dan M. Boulware, and the law partnership of MacLean & Boulware for legal malpractice.

Background

Brice's former wife, Lisa Denton, brought an action to terminate Brice's parental rights, and the trial court appointed Wilson to represent Brice at the final termination hearing. During this hearing, Denton testified that Brice was currently serving a thirty-year concurrent sentence for several cases, one of which involved Brice's molestation of his two children. Denton also explained that Brice had not supported the children since his arrest and she believed termination of Brice's parental rights was in the best interest of the children. The trial court terminated Brice's parental rights after finding by clear and convincing evidence that Brice engaged in criminal conduct that resulted in his conviction for violating § 22.021 of the Texas Penal Code, and that termination of Brice's parental rights was in the best interest of the children. Brice v. Denton, 135 S.W.3d 139, 140 (Tex. App.–Waco 2004, pet. denied); see Tex. Pen. Code Ann. § 22.021; Tex. Fam. Code Ann. § 161.001(1)(L)(viii), (2).

Brice appealed the denial of his parental rights. The Court of Appeals (with the Chief Justice dissenting) held that Brice received ineffective assistance of counsel at the termination hearing, reversed the termination order, and remanded the case to the trial court. Brice, 135 S.W.3d at 140, 142. In its opinion, the Court of Appeals noted that Wilson did not put on evidence at the hearing; did not consult with Brice; performed only a "perfunctory cross-examination of Denton," which led to the admission of evidence that Brice had been arrested for harassment, stalking, DWI, indecent exposure, and several cases of indecency with a child; did not request a writ of habeas corpus ad testificandum; did not interview potential witnesses; did not request a jury; and did not investigate the conviction that was the basis for termination. Id. at 140-42. The Court of Appeals also stated, "[N]othing in the record suggests that [Wilson] requested a continuance from the trial court." Id. at 142.

The legal malpractice claim

Brice subsequently filed suit against Wilson for legal malpractice. Brice alleged that Wilson was negligent or grossly negligent in failing to request a continuance; failing to consult with him to determine the facts and prepare a defense; failing to investigate the conviction that was the basis for termination; failing to challenge the pleadings and to present evidence favorable to him; failing to request a writ of habeas corpus ad testificandum; failing to investigate the facts of the case, including the failure to contact Brice's mother and sister, who Brice asserts would have testified on his behalf; and failing to determine that Brice wanted a jury trial. Brice contended that he "suffered the severe damages of not having the effective assistance of counsel at the final hearing on the suit to terminate his parental rights to his two minor children[,]" as well as "physical injuries and the emotional pain and suffering from losing his parental rights to his two minor children." In supplemental petitions, Brice added MacLean, Boulware, and the law partnership of MacLean & Boulware as defendants under theories of agency; negligent hiring, supervision, or retention; and respondeat superior.

The trial court disposition

Wilson, MacLean, and Boulware filed no-evidence motions for summary judgment, in which they asserted that Brice lacked evidence of a breach of duty owed pursuant to the attorney-client relationship, and that Brice had failed to produce any evidence that the alleged breach of duty proximately caused the alleged harm. Brice filed responses, to which he attached copies of the opinion in which the Court of Appeals held that he received ineffective assistance of counsel, a notice from the Supreme Court stating that it had denied review of the case, and a portion of Tex. R. Civ. P. 166a. Brice also filed motions for issuance of a writ of habeas corpus ad testificandum to enable him to appear at the hearings on the motions for summary judgment filed by Wilson, MacLean, and Boulware. The trial court denied Brice's motions for issuance of a writ of habeas corpus ad testificandum. The trial court granted the motions for summary judgment and ordered that Brice take nothing from Wilson, MacLean, and Boulware.

No evidence of damages fatal to claim

The Court of Appeals affirmed the summary judgment, finding that Brice had failed to present evidence of damages, which was an essential element of his legal malpractice claim and of each other claim he presented.

"Generally, to recover on a claim of 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) (citing Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989)). In this case, it is undisputed that the Waco Court of Appeals reversed the trial court's termination order. See Brice, 135 S.W.3d at 140, 142. Therefore, Brice did not lose his parental rights from any act or omission of Wilson. In his response to Wilson's no-evidence motion for summary judgment, Brice failed to attach affidavits, discovery, or other documents regarding any of his alleged damages. Because Brice produced no evidence that he suffered any damages as a result of the alleged malpractice, the trial court properly granted summary judgment in favor of Wilson. See Tex. R. Civ. P. 166a(i).

Brice asserted causes of action against MacLean and Boulware under theories of agency; negligent hiring, supervision, or retention; and respondeat superior. Agency and respondeat superior involve vicarious liability. See St. Joseph Hosp. v. Wolff, 94 S.W.3d 513, 541-42 (Tex. 2002) (Under doctrine of respondeat superior, an employer is vicariously liable for the negligence of an employee acting within the scope of his employment.); Bradt v. West, 892 S.W.2d 56, 78 (Tex. App.–Houston [1st Dist.] 1994, writ denied) ("It is fundamental that the agent's acts must be in some way wrongful before the principal can be 'liable' for the acts of the agent."). Because Brice produced no evidence as to at least one of the elements of his cause of action against Wilson, a no-evidence summary judgment in favor of Wilson was appropriate. Likewise, because summary judgment in favor of Wilson was appropriate, Brice can hold neither MacLean nor Boulware liable. See Bradt, 892 S.W.2d at 78.

Brice's causes of action against MacLean and Boulware for negligent hiring and retention likewise fail. To recover under a theory of negligent hiring, "a plaintiff must prove that (1) the employer owed a legal duty to protect the employee's actions and (2) the third party's sustained damages were proximately caused by the employer's breach of that duty." Bedford v. Moore, 166 S.W.3d 454, 463 (Tex. App.–Fort Worth 2005, no pet.) (citing Rosell v. Cent. W. Motor Stages, Inc., 89 S.W.3d 643, 655 (Tex. App.–Dallas 2002, pet. denied)). As previously discussed, Brice failed to produce any evidence of damages. Therefore, the trial court did not err by entering no-evidence summary judgments in favor of Wilson, MacLean, and Boulware.