This week we have a raft of Texas Cases Here attorney was appointed to represent convict father in a parental rights termination case. Reading the facts, we believe that the court would have terminated the convict’s rights anyway, but it was really unhappy about the representation.
"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"
But, nevertheless, the legal malpractice case foundered. "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. "