Border Demolition & Environmental, Inc. v. Ernesto Pineda
535 S.W.3d 140
| Tex. App. | 2017Background
- Border Demolition is a company owned by Raul and Bonnie Solis; longtime transactional attorney Ernesto Pineda provided services to the Solises from 2003.
- In 2007 Border hired Luis Reza (recommended by Pineda) and later fired him; Reza sued for wrongful discharge and obtained a default judgment in July 2009 after Border Demolition did not answer.
- Bonnie emailed Pineda the Reza petition asking him to review it; Pineda acknowledged receiving and reading the email and attached petition but did not respond or take action.
- Raul later testified he spoke with Pineda and understood Pineda would “keep an eye on it” and assist; Pineda disputes agreeing to represent Border Demolition.
- Border Demolition sued Pineda for negligence/legal malpractice, breach of fiduciary duty, and alternatively breach of contract; trial court granted summary judgment for Pineda without specifying grounds.
- On appeal the court affirmed summary judgment on the fiduciary-duty and contract claims but reversed and remanded as to the legal-malpractice claim (finding genuine fact issues about an implied attorney-client relationship and that the no-evidence motion did not challenge causation with required specificity).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of attorney-client relationship / duty to act or to inform | Border Demolition: implied agreement/continuing relationship created a duty; Pineda’s review of the petition and statements to Raul created fact issues | Pineda: no express retention, transactional practice, no fee/payment, past practice required express retainers—so no duty | Court: Reversed summary judgment on malpractice — evidence raises fact issue whether an implied relationship/duty to act or to notify existed |
| Need for expert testimony on standard of care and causation | Border Demolition: expert affidavit (attorney Robles) establishes standard breach and no expert on causation required under these facts | Pineda: no expert proving malpractice or that Border would have prevailed (case-within-a-case) so no-evidence summary judgment warranted | Court: Pineda’s motion sufficiently attacked standard of care but did not specifically challenge causation per Rule 166a(i); expert on standard sufficed to defeat that portion of motion; causation challenge not preserved by motion |
| Impermissible fracturing of malpractice claim into fiduciary-duty claim | Border Demolition: separate fiduciary and contract claims alongside malpractice | Pineda: claims are merely repackaged malpractice and must be dismissed | Court: Affirmed summary judgment as to breach of fiduciary duty and breach of contract — allegations sound solely in professional negligence (no self‑dealing or improper benefit alleged) |
| Sufficiency of summary-judgment grounds and scope of appellate review | Border Demolition: trial court erred; broad Malooly challenge preserved issues | Pineda: summary judgment proper on listed grounds | Court: Where trial court did not state grounds, appellate court may affirm if any motion theory is meritorious; here some grounds meritorious (fiduciary/contract) but not the malpractice ground challenged |
Key Cases Cited
- Malooly Bros., Inc. v. Napier, 461 S.W.2d 119 (Tex. 1970) (broad challenge to summary judgment may preserve multiple grounds)
- Sotelo v. Stewart, 281 S.W.3d 76 (Tex.App.--El Paso 2008) (attorney-client relationship and duty principles)
- McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999) (attorney owes duty only to clients)
- Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989) (standard of care for attorneys)
- Rice v. Forestier, 415 S.W.2d 711 (Tex.Civ.App.--San Antonio 1967) (attorney who reviews an unrelated suit for a client may have duty to inform client he will not represent them)
- Alexander v. Turtur & Assoc., Inc., 146 S.W.3d 113 (Tex. 2004) (case-within-a-case / causation in legal-malpractice actions)
- Hall v. Rutherford, 911 S.W.2d 422 (Tex.App.--San Antonio 1995) (expert testimony required to establish attorney standard of skill and care)
- Saldana-Fountain v. State Farm Lloyds, 450 S.W.3d 912 (Tex.App.--El Paso 2014) (impermissible fracturing of malpractice into other claims)
- Willis v. Maverick, 760 S.W.2d 642 (Tex. 1988) (attorney duty to disclose material facts to client)