Cunningham v. TARSKI
365 S.W.3d 179
Tex. App.
2012

Background

  • Cunningham owned 45% of Specialty Blends (SB) and entered a 2002 agreement with Tindol that required unanimous consent for major corporate actions.
  • In 2006, Cunningham and Tindol had a falling out; Cunningham alleges Tindol terminated his SB involvement.
  • Cunningham alleges Tindol retained Tarski to advise SB and prepared/ backdated documents to elevate Tindol’s control.
  • Plaintiff alleges Memorandum of Shareholders’ Agreement (1998) and Consent (2005) improperly reflected majority control and sole directorship.
  • Cunningham asserts Tarski advised Tindol to sign these documents; emails/ facsimiles in 2006 allegedly reflect this conduct.
  • Cunningham later sued in 2009 for negligent misrepresentation, assisting/participating in fiduciary breaches, conspiracy, and oppression, with discovery rule issues raised.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether conduct is foreign to the duties of an attorney Cunningham argues Tarski’s actions were fraudulent and outside attorney immunity. Tarski contends no fraud/foreign conduct; mere transmission of documents is not a misrepresentation. Cunningham loses; no genuine issue on foreign-to-duties theory.
Whether Cunningham’s negligent misrepresentation claim is viable Cunningham relied on Tarski’s transmission as representation of validity. Tarski argues no valid representation; transmission of documents is not a misrepresentation by a lawyer. Cunningham loses; no genuine issue on misrepresentation.

Key Cases Cited

  • Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571 (Tex. App.-Dallas 2007) (mere transmission of documents not a legal opinion by attorney to non-client)
  • McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999) (negligent misrepresentation elements; non-client recovery limits)
  • Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573 (Tex. 2001) (fraud elements and reliance standard outlined)
  • Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. 2003) (expert opinions must be supported by facts; no conjecture)
  • Toles v. Toles, 113 S.W.3d 899 (Tex. App.- Dallas 2003) (attorney immunity limits; fraud/foreign-conduct framework)
  • Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468 (Tex. App.-Houston [1st Dist.] 1985) (attorney immunity and fraud/conspiracy considerations)
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