Jerry Alfred Futch, Jr. v. Baker Botts, LLP
2014 Tex. App. LEXIS 6219
| Tex. App. | 2014Background
- Futch sued Baker Botts LLP for breach of contract and fee forfeiture based on alleged breaches of fiduciary duty; trial court granted summary judgment.
- Futch contends the law firm disclosed confidential information to DOJ, allegedly breaching the contract and fiduciary duties.
- Futch had pleaded guilty to a felony false reporting offense; he has not been exonerated.
- Futch sought only fee forfeiture for alleged fiduciary breaches; he also asserted a breach of contract for disclosure of confidential information.
- The trial court sua sponte and on subsequent MSJ held the contract claim sounded in tort and that the Peeler doctrine bars fee forfeiture.
- This court affirms, applying the Peeler doctrine to bar fee forfeiture and concluding the contract claim sounds in tort.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the alleged disclosure of confidential information sounds in contract | Futch argues the contract claim arises from a contractual promise not to disclose confidential information. | Baker Botts contends the claim sounds in tort, not contract, because it concerns duties of care and disclosure. | Sounded in tort; contract claim failed as a matter of law. |
| Whether the Peeler doctrine bars the fee-forfeiture claim | Futch contends Peeler does not bar fee forfeiture for fiduciary breaches tied to the conviction. | Baker Botts argues Peeler applies to bar recovery without exoneration. | Peeler doctrine bars fee forfeiture since Futch has not been exonerated. |
| Whether Peeler applies to breaches of fiduciary duty connected to the conviction for fee forfeiture | Futch argues fiduciary breaches may be pursued for fee forfeiture notwithstanding the conviction. | Law Firm relies on Peeler and subsequent expansive Texas precedent applying it to fiduciary-duty fee forfeiture. | Peeler applies; fiduciary-breach fee forfeiture barred. |
Key Cases Cited
- Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995) (public policy limits recovery when client convicted absent exoneration)
- Johnson v. Odom, 949 S.W.2d 392 (Tex. App.—Hou. [14th Dist.] 1997) (Peeler applied to breach of contract and fee forfeiture claims)
- Golden v. McNeal, 78 S.W.3d 488 (Tex. App.—Hou. [14th Dist.] 2002) (Peeler doctrine extended to non-attorney conduct in fiduciary context)
- Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179 (Tex. App.—Hou. [14th Dist.] 2002) (distinguishes negligence vs. other claims and supports Peeler applicability)
- Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto, & Friend, 404 S.W.3d 75 (Tex. App.—Hou. [14th Dist.] 2013) (how to classify client claims and select proper theory)
- Trousdale v. Henry, 261 S.W.3d 221 (Tex. App.—Hou. [14th Dist.] 2008) (public policy considerations in tort and related claims)
- Cooper v. Harris, 329 S.W.3d 898 (Tex. App.—Hou. [14th Dist.] 2010) (illustrates handling of fiduciary/privilege issues in related suits)