*1 title, Long Beach failed a cloud on claim as trial court. before the
to raise this issue avoid the a non-movant contends
Issues summary judg- entitlement
movant’s by writ- expressly presented be
ment must motion or other
ten answer the motion. McCon- response
written Dist, Indep. School
nell v. Southside (Tex.1993); see also Tex.
R.App. (To complaint a preserve P. 33.1 review, party pre- a must have
appellate “by to the trial court complaint
sented its motion that
timely request, objection, or ruling for the grounds
... stated the ... party sought with suf- complaining make the trial court specificity
ficient re- complaint.”) of the We cannot
aware judgment a trial based on an
verse court’s presented to the trial court.
issue not
Westland,
Thus, we
overrule Beach’s third trial affirm the
We
court.
Gary BECK; Agency Law Insurance Company Beck The G. d/b/a
f/k/a Company;
Beck The Beck Benefits
Company; John Mueller’s Barbe
cue, Inc., Appellants
The LAW OF EDWIN J. OFFICES (TED) TERRY, JR., P.C.; Ott, John Patterson, J., concurring Jan P. filed Representative of the Estate of Edwin opinion. (Ted) Terry, Jr., deceased; James A.
J. Hays, Appellees. Vaught; Karl E.
No. 03-07-00635-CV. Texas, Appeals
Court of
Austin.
1,May *4 Thompson, Ryan Stenglein,
Mike Brad Downton, LeBoeuf, L.L.P., Dewey & Aus- tin, Kessler, Jeffrey Dewey & Le- *5 Boeuf, L.L.P., York, NY, Appel- New for lants. Herman,
Timothy Gregory Lowry, J. M. Segal, McCambridge, Singer Mahoney, & LTD, DeShazo, Herman, Howry and Scott Breen, L.L.P., Austin, Appellees. & for PATTERSON, Before Justices PEMBERTON and WALDROP. OPINION PEMBERTON, BOB Justice. Beck; Appellants, Gary G. Law Insur- Agency Company ance The G. Beck Rk/a The Beck Company; The Beck Bene- d/b/a Company; fits and John Barbe- Mueller’s cue, Inc., appeal a district court take nothing against on claims appellees, The Law of Edwin Offices J.(Ted) Ott, P.C.; Terry, Rep- Jr. John (Ted) resentative of the Estate of Edwin J. Jr., Deceased; A. Terry, Vaught; James Hays. and Karl E. will affirm We judgment.
BACKGROUND appeal brought This arises from a suit against attorneys rep- a client who had in After resented him a divorce. seven- marriage, parcels Ruth Ann Beck title to years teen several real in property Gary against appellant, for divorce G. Austin. Beck had filed also formed John Muel- Barbecue, Beck, Inc., sole November 2000. The con- ler’s operated which a res- in the divorce concerned the taurant held property tested issue real and other division; there were no children assets. The value property of the assets Beck held marriage. initially retaining After a through the three corporations greatly ex- firm, family Dallas-area law Beck eventu- Beck, ceeded the value of assets that Mr. (Ted) Beck, ally Terry, hired the late Edwin J. Ms. both held in their own names. family attorney, law Austin-based Beck claimed that when he consult- first time, September October 2001. At ed with the representation, about a sole Terry practiced proprietorship Beck expressed his desire obtain sum- as The Law Offices of Edwin J. known mary judgment that his stock in his whol- (Ted) Terry. A. Appellees Vaught James ly-owned corporations separate was his E. Hays family attorneys and Karl are law property. Because most his assets were then (employees) who were associates of held through per- the corporations, Beck (collec- Terry, Terry. Vaught, Hays a ruling ceived such would lead Ms. Beck’s Defendants”) tively, “Terry were counsel to “fold her ... tent because she family board-certified in law the Texas would see big pile money that there’s no Legal Beck Specialization.1 Board of Defendants, at the rainbow.” The “Legal executed a Services Con- behalf, subsequently Beck’s filed mo- that, they agreed among tract” wherein tion summary judgment that his stock terms, Terry attorney- other would be the in Beck Company Benefits Beck G. *6 Hays case but in-charge Beck’s that and Company should be as his characterized Vaught might also on the perform work separate property. Although Beck had matter. during formed both of the corporations the litigation A central issue in the marriage, divorce Beck on a theory, origi- relied nally expert by concerned characterization assets devised an hired his corporations counsel, and stock of three Texas prior that ownership divorce his owned, wholly were directly indirectly, separate interests be back could traced Beck property Beck. was sole shareholder had interests he held in Beck Company, in Beck Company’s corporate Benefits which he had Benefits predeces- in 1987. Company, formed Beck Benefits sors. response attacking Ms. Beck filed a turn, in was in tracing theory, the sole shareholder G. Beck’s as well as a cross- Company, Beck which he also had summary formed motion for judgment that Beck’s in president 1987. Beck of both stock properly was cor- was instead characterized porations, through community and them he as a conducted asset. Ms. Beck further management consulting argued risk or insurance in response her the evidence emphasized presented As business. Ms. Beck tri- a fact as to whether the issue al, work testifying corporate Beck’s included as an be un- disregarded forms should expert witness in over one alter-ego hundred court der an or corporate veil-piercing Branscum, theory. cases. Beck also in real v. Castleberry traded invested See 721 270, (Tex.1986); through corporations. estate the two At S.W.2d Zisblatt divorce, Zisblatt, (Tex.App.- time the entities held Additionally, Vaught Hays Hays 1. and were each in was board-certified civil trial law. law, appellate in board-certified civil and dism’d). his sup- agreed corpora- that Beck would cause writ
Fort Worth tions to consent to a lien on all of the real presented evidence port, Ms. Beck $650,000 the entire approximately property held secure run Mr. Beck had parties amount of the The through corpora- indebtedness. personal expenses in agreed commingled personal also that Beck secure confir- had would tions since assets, superior and had diverted mations from the lienholders corporate that the ad- corporate-held properties community opportunities assets prohibited ditional lien was not and would The district court denied corporations. protect To trigger event of default. both motions. Ms. Beck’s interest in event Beck did February was scheduled A mediation consents, it not obtain the confirmations or beforehand, Beck days A Ms. few agreed that she would hold stock petition adding Beck an amended filed certificates until the additional lien was Company Beck Company Benefits G. perfected. for al- asserting defendants community, agree- and reim- The memorialized their ego, parties ter fraud on proceeded as ment Agree- The mediation “Mediated Settlement bursement. family the mediation ment” under section 6.602 of the Terry attended scheduled. Beck, § attorney ad- code. Tex. Fam.Code Ann. 6.602 with and was the sole See 2006). (West The parties negotiated him there. The Mediated Settlement vising evening Agreement provided, division into “THIS AGREE- property following morning, MENT NOT hours and IS SUBJECT TO REVOCA- resumed TION,” that, parties Hays assisting with “The and their joining with recognize provision eventually attorneys negotiations. parties this party day. means that either is entitled to reached a settlement judgment on this Mediated Settlement agreed percent Beck to a 57-43 division (Em- Agreement aas matter of law.” significance to property. of the marital Of 6.602(b)(1) § original). phases id. ac- Beck and his counsel appeal, (“A agreement mediated settlement *7 including in his quiesced corporations’ binding the parties agreement: on property stock and their assets in the provides, ... prominently displayed divide, in parties negotiated to effect con- type that is in or capi- statement boldfaced purposes for of settlement ceding underlined, tal that the agree- letters as- corporations’ both the and their stock revocation”). subject ment not Beck community property. sets It was were signed agreement in both his individual cer- agreed that Beck would receive Ms. capacity president and as of G. Beck Com- fi- tain balances and other bank account pany Company. and Beck Benefits See id. held the cor- previously nancial assets (also 6.602(b)(2) signature § requiring porations. ownership Beck retained party agreement). each to the settlement corpo- and corporate both the stock “Attorney signed agreement as assets, as he had de- rate-held real estate 6.602(b)(3) § for Gene Gary Beck.” id. assets sired. Because value these (also requiring attorneys signatures being property share of the caused Beck’s party). each forty- the agreed-upon divided exceed day, parties proved up Later that percent, agreed three it was he would owelty note in Ms. Beck’s favor the divorce and Mediated Settlement execute Agreement the district court. Beck approximate- the amount of the before excess— It further that he the entire deal ly interest. testified understood $516,000 plus— in the Finalizing memorialized Mediated Settlement the divorce decree and ancil- Agreement, compromising that he was lary proved documents lengthy be a and previously he had made his process. contentious In the aftermath of sep- businesses and other entities were his settlement, Beck testified that he con- property,2 obligating arate that he was his and, sulted with an accountant at her sug- corporations perform acts to effectuate gestion, corporate lawyer, tax Agreement’s the Mediated Settlement determined that the settlement’s structure terms, receiving that Ms. Beck was certain was “unworkable” due to impact its on the financial corporate-held day, assets that corporations. During the months that fol- gone and that he could have to trial and lowed, Beck, primarily with the assistance obtained either a better or worse outcome of Hays, attempted to raise a number of than that to which agreed. he had Follow- issues as to both the form and substance of examination, ing his the district court fur- the divorce decree ancillary and the docu- inquired ther of Beck: ments.3 Beck testified that —notwith- pronounce today,
IIf it is effective standing language of the Mediated today. present- The decree will then be Settlement Agreement, testimony his this, you ed accordance with but can- the prove-up hearing, sophistica- and his go change any terms and conditions. experience tion and expert as an witness submitted, anything you’ve And and insurance consultant —he “did not un- then this will overrule. You can’t derstand the agreement at the time. Cer- it, it change just you because don’t like tainly didn’t know it was irrevocable.” In you get you mad at each other. So April, Hays Beck and were sanctioned for this, go still want me to and enter Mr. failing to meet deadlines under the Medi- Beck? Agreement ated Settlement for comment- ing opposing counsel’s drafts responded, Beck “I do.” Based on the final divorce decree ancillary docu- evidence, judg- the district court rendered disputes ments.4 The initially were arbi- divorce, granting ment approving the trated, as the Mediated Settlement Agree- Agreement, Mediated Settlement di- provided, ultimately ment had but viding property parties as the had were court, agreed. signed resolved the district which it, put agreement "changefd] 2. As Beck “I think that mind" revoked that con- sent, effectively moots all of presenting those claims." the risk that the attachment of the additional lien would constitute an *8 Among concerns Beck's was that least Hays posi- event of default. advocated this corporations one of the would be rendered hearings tion on Beck's at several over behalf by insolvent the additional lien because the and, ensuing the months based on that under- amount of the indebtedness secured the standing, appeal filed an from the divorce corpora- lien would exceed the value of the Hays decree. thereafter determined that assets, tion’s and the encumbrance would superior Beck’s assertions about the lienhold- prevent selling properties him from the or had ers' revocations consent been false. obtaining financing. Another issue related to Hays permission obtained Beck’s to advise implications "awarding" the tax him the the district court of the inaccurate informa- corporate ultimately assets. That issue was tion, and did so on June 12. Tex. Disc. R. parties. settled Resp. Prof. 3.03. Beck thereafter dismissed Beck also claimed that while he had initial- appeal. his ly obtaining succeeded in consent to sec- lienholders, superior 4.Hays ond liens from the testified that the firm credited Beck's superior subsequently lienholders had bill for sanctions amount. Beck in May representing Gary 2002.5 while he was decree on the final divorce action.”7 Thereafter, he “resisted above-described divorce Beck admitted Specifically, appellants alleged that “Ter- ancillary docu- signing refused” (In fact, ry’s alcohol and abuse addictions after the final divorce substance ments. Terry to the Defen- Beck caused one of the caused contributed signed, decree sold.) a reasonable] lien to be dants’ failure to exercise subject to the properties reluctantly providing Beck standard of care when ser- Ultimately, on June They that “all of the ancillary pled under vices.” further signed the document knew of Ted opposing Terry after counsel Defendants threat of arrest problems,” for alcohol and substance abuse emergency a motion for relief and filed Beck, problems failed to disclose these sanctions. Terry and that this failure violated the firm July In Beck sued the law he care, ordinary duties of fidu- Defendants’ represent him in his initially had hired duties, ciary and the DTPA. divorce, lawyers, as well as two of their professional appeal, appel- Also of relevance to this pleading causes of action for duty, pled Terry Defendants failed fiduciary breach of lants negligence, violations,6 of contract. to advise Beck about or “disclose” a “con- DTPA and breach personal claims were later settled and are flict of interest” between Beck’s These corporations. appeal. August, at issue in this interests and those of his not pled allegations as an petition Appellants Beck amended his to add causes of these negligence, breach basis for professional negligence, action for additional violations, duty, breach-of-fiduciary-duty, DTPA DTPA fiduciary Terry Finally, pled De- claims. Beck a breach-of- against breach of contract predicated upon allegations J. contract claim fendants and Law Offices of Edwin (Ted) Jr., P.C., entity Terry Legal had that the Services contained Terry, Contract (col- during intervening years binding, promise by formed enforceable the Ter- wholly- ry advise Beck to enter lectively, “appellees”). Beck’s Defendants joined the into a divorce settlement without first corporations owned also suit agreeing of the final plaintiffs language and asserted the same causes of di- pled against appellees. Appellants’ action cen- vorce decree. Beck complaint promise tral was that the Defen- Defendants “breached this permitted Beck to include had enter into a mediated settle- [Beck] dants advised 5, 2002, corporations’ agreement February his stock and their assets ment producing division under the which was a cause of Plaintiffs property Mediated Agreement, causing injury damages.” Settlement corporations. Appellees moved for traditional sum- (1) appeal, mary judgment grounds: Both in the district court and on on three pled breach of attempted rely primari- appellants have claims that violations, ly upon allegations fiduciary duty, factual “suf- DTPA components from abuse breach of contract were mere fered alcoholism and substance *9 fact, Hays accept- during deposition, 5. court 7.In his Beck ac- testified district Terry proposed ed knowledged Terry some of Defendants's that his decision to sue changes rejected and others. family "solidified” when he heard at a law practitioners' Terry im- event that "had an 17.46, §§ 6. & Ann. See Tex. Bus. Com.Code pairment issue.” (West Supp.2008). .50 of professional negligence a “fractured” to the mediated settlement agreement that (2) claim; Legal Services paid Contract it would not have but negli- for the provision made the basis for Beck’s gence you found in answer to negli- [the claim was en- breach-of-contract not an gence question].” The jury found “no” as (3) promise; forceable appellants’ negligence of each party respon- professional DTPA sible person, and did not reach the dam- by were barred limitations. Appellees ages verdict, issue. Based on the the dis- filed a with response evidence. This evi- court trict rendered final judgment summary-judgment dence included proof appellants take nothing on their claims. fact, going to whether “alco- Terry, in had Appellants timely filed a motion for new hol during and substance abuse addictions” Appellants trial. urged the district court period Terry in which the Defendants to revisit the summary-judgment ruling on represented had Beck. The district court fracturing in light issue of the evidence granted summary judgment as to the going Terry’s “alcohol or substance DTPA, breach-of-fiduciary-duty, abuse appellants addictions” that had ob- breach-of-contract stating claims without tained in since discovery ruling. Fol- It grounds. expressly denied sum- lowing a hearing, district court over- mary judgment professional neg- as to the appellants’ ruled motion for new trial. ligence claim. This appeal followed. proceeded jury ap- The case trial on pellants’ professional negligence claim.8 ANALYSIS Appellants again attempted to interject issues, appellants In three contend that alleged issue by alcohol or drug use the district court erred in granting sum- the proceeding. They sought into mary judgment on their claims for breach introduce evidence had obtained fiduciary violations, duty, DTPA discovery since the summary-judgment contract; breach excluding evidence ruling, including medical records from an “alcoholism and substance center, Arizona rehabilitation Sierra Tuc- trial; abuse” at overruling their son, where had been treated for motion for new trial. problem alcohol in September and October Summary judgment 2002. The evi- district court excluded this entirety dence in rule its under of evidence issue, their first contend 403. granting the district court erred summary judgment as to their claims for granted district court a directed duty, violations, of fiduciary breach DTPA verdict appellants’ negligence as to claim and breach of against contract. We review the Vaught, but issue jury submitted district court’s summary-judgment ruling as to whether the negligence Terry, J.V., Hays, de novo. Joe v. Two originally Thirty the firm he Nine hired in (Tex.2004). divorce, To proximately prevail or Beck had caused corporations. Only summary economic loss to the on their traditional motion for one of damages judgment, appellees element was submitted: had the burden of amount, any, “the proving genuine that the Beck Benefits “there is no issue as to Company paid to Ruth Beck pursuant moving Ann material party fact and the trial, estate, party. Prior died. His stituted as a P. 152. Tex.R. Civ. Ott, through representative, its John was sub-
426 summary judgment as ground support can a of law on as matter judgment
entitled to to the DTPA claim. out in the motion.” expressly set the issues 166a(c); Mr. Prop. Nixon v. P. Tex.R. Civ. the Attorneys owe their clients (Tex.1985). Co., 546, Mgmt. 690 S.W.2d 548 i.e., in a ordinary to act with duty care — burden, appellants this If met appellees with the standard of manner consistent present to the have the burden would expected to be exer care that would be pre- that would any grounds district court attorney. reasonably prudent aby cised City Hous- summary judgment. clude 662, Grimes, v. 774 S.W.2d Cosgrove See Auth., 589 Basin ton v. Clear Creek (Tex.1989). ob This “standard is an 664 (Tex.1979). 671, Summary 678 jective professional judgment, exercise of only when there judgment is appropriate subjective belief that attor [the not the of material fact and disputed are issues no at ney’s] good acts are in faith.” id. is entitled to moving party attorney’s an Complaints about 664-65.9 Nixon, a of law. 690 S.W.2d as matter care, skill, a diligence representing or disputed fact whether a deciding 548. In duty care implicate ordinary this client summary judg- to preclude exists issue negligence. See id. For and sound ment, treat evidence favorable to we example, lawyer profession “a can commit true, as and we must resolve non-movant legal negligence by giving al an erroneous indulge all reasonable in- every doubt and advice, by delaying or opinion or erroneous favor. Id. at in the non-movant’s ferences a matter entrusted to the failing to handle When, here, care, the district court’s 548-49. using lawyer’s not a lawyer’s summary judgment does granting order ordinary managing, care in preparing, Gniber, grounds not relied specify ground a v. prosecuting Murphy case.” summary judgment will ruling, (Tex.App.-Dallas on for the 241 S.W.3d 693 denied). pet. on the theories on a prevail professional- be affirmed To appeal against lawyer, a negligence claim are meritorious. State Farm advanced (1) S.S., attorney 374, plaintiff prove must owed Fire v. 858 S.W.2d & Cas. Co. (2) duty attorney plaintiff; (Tex.1993). this (3) duty; proxi breach breached all challenge three Although appellants injuries; and mately plaintiffs caused the summary-judgment grounds appel- (4) Hefner, damages Floyd occurred. motion, they lees devote presented in their (S.D.Tex.2008) F.Supp.2d most of their attention non-fractur- (Texas law). ing join appeal on ground. Appellees issue only ground against “fracturing” and the chal- ground with rule enforceability against at professional negligence of the contractu- lenging an arising al which Beck’s breach-of- holds that “a case out of provision torneys on based; attorney’s bad advice or im alleged claim do not con- contract representation” may split not “be proper appeal limitations tend handling in the of a supreme a reasonable decision court described stan- As the may held if the decision dard: case not be liable proves imperfect. The later to be standard attorney makes decision which If an reasonably prudent attorney objective judg- could make in professional exercise is an circumstance, ment, it or similar is not subjective the same acts belief his act of even if result is good are in faith. Attorneys be held undesirable. cannot Grimes, (Tex. Cosgrovev. strictly all of their clients' unful- liable for 1989). attorney expectations. An who makes filled
427 “prevent[] for The rule also serves to separate negligence, legal- into claims out (or contract, any malpractice plaintiffs opportunistical other from or fraud [ breach ly transforming a claim that only the real sounds theory) because non-negligence ] negligence into other claims” to avail profes- of whether the issue remains one care, longer periods, themselves of limitations skill, degree exercised sional proof requirements, less onerous or other professionals of ordi- diligence Hoover, advantages. tactical Deutsch v. commonly pos- nary knowledge skill and Slovacek, L.L.P., 179, Bax & 97 Petroleum, and exercise.” Kimleco sess 2002, (Tex.App.-Houston [14th 189 921, Dist.] Shelton, & 91 S.W.3d Inc. v. Morrison pet.). no 2002, (Tex.App.-Fort pet. Worth de- nied) omitted).10 (citations This Court has hand, the other “when On cases jurisprudential poli- described some of say that clients cannot divide or fracture underlying non-fracturing rule: cies negligence against claims their attor gained by fracturing be Nothing claims, is to neys into other this does not mean arising cause of action out of bad attorneys only that clients can sue their into improper representation advice Nor negligence.” for Id. does the non- breach of con- negligence, fracturing necessarily claims for rule bar a client tract, If a simultaneously asserting professional fraud or some other name. from .actionable, negligence non-negligence error or mistake is lawyer’s an that are against attorney predicated on give rise to a cause of action it should Id,, facts. overlapping some common or with one set of legal malpractice 190; However, see Tex.R. P. 48. Civ. if the conduct or inquire issues which “merely claimant must do more than reas occurred, conduct or omission legal malpractice sert the same claim for so, and if malpractice omission was sub- under an alternative label.” Duerr v. sequent issues on causation and dam- Brown, 63, 70 (Tex.App.-Hous 262 S.W.3d in frac- ages. Nothing gained is to be 2008, pet.). plain no “The [14th ton Dist.] turing that cause of action into three or goes beyond tiff a claim that present must special four different claims and sets of traditionally what has been characterized whether issues.... The ultimate issue is Id.; legal malpractice.” see also id. at duty there has been a breach of which plaintiff on whether had as (focusing damage. causes non-negligence claim “separate” serted P.C., Davis, & 69 S.W.3d Ersek v. Davis legal malpractice”). from his “distinct 2002, 268, pet. 274-75 de (Tex.App.-Austin nied) (quoting Sledge Alsup, determining 759 S.W.2d whether a com writ)). 1988, 1, negligence a claim for or some- plaint Paso no (Tex.App.-El prob- frequently "legal malpractice” pet.) (noting potential "a nomenclature 10. Courts use "professional negligence” interchange- using "legal malpractice” lem” to de- with arising ably to refer to claims from attor- negligence professional claims because scribe ney's allegedly inadequate legal representa- encompass term could also be understood to tion, although "professional negligence” against brought by claim a client Compare might precise be a more term. "negli- attorney, opting use client’s Brown, (Tex. Duerr v. 262 S.W.3d confusion”). gence We will claim” to "avoid (us- App.-Houston pet.) no [14th Dist.] generally "professional negligence” de- use ing "legal malpractice claims” to refer to claims, although we will also scribe such professional claims when address- "legal quote opinions that use mal- several Hoover, issues), ing fracturing with Deutsch v. against negligence claims practice” to refer to L.L.P., Slovacek, Bax 184 n. & lawyers. (Tex.App.-Houston [14th no Dist.] *12 428 else, nied)); “we are not bound the labels 241
thing
Murphy,
see also
S.W.3d at
(looking
697
to “the real
place
on their claims.” Mur-
substance of
parties
claims”).
inquiry may
This
also be in-
“Regardless
241
at 697.
phy,
S.W.3d
remedy
plaintiff
formed
seeks.
theory plaintiff pleads,
long
as
as the
analysis
analogous
See id. at 698. The
is
complaint
plaintiffs
crux of the
is that the
to determining whether claims are based
attorney
provide adequate legal
did
on contract
the DTPA or
versus
whether
claim
representation,
is one for
or
Id. at
sound
contract
tort.
189
Petroleum, Inc.,
malpractice.” Kimleco
91
Inc.,
(citing
Sign,
v. Ace
917
analysis
S.W.3d at 924. This
pri-
focuses
Crawford
12,
(Tex.1996);
S.W.2d
13-15
Southwest-
marily
ascertaining
whether the facts
v. DeLanney,
ern Bell Tel. Co.
809 S.W.2d
that are the
for an
basis
asserted cause of
(Tex.1991)).
493, 493-95
The determina-
only
lawyer’s
action
implicate
duty of
complaint against
tion of whether a
a law-
ordinary
independently
care or
actionable
yer is
in negligence
actionable
versus some
fiduciary, statutory, contractual, or other
legal theory
question
other
ais
of law.
tort
As the
duties.
Fourteenth Court of
Dueir,
70; Murphy,
sure of facts material
the client’s
330
no pet.)).
Willis,
sentation.”
760 S.W.2d at
To
of fiduciary duty by
645.
“Breach
an attorney
claim,
prevail
breach-of-fiduciary-duty
a
most often
attorney’s
involves the
failure
(1)
plaintiff
prove
interest,
a
must
the existence of
to disclose conflicts of
failure to
(2)
fiduciary relationship;
client,
the
a
of
breach
deliver funds
the
belonging
plac-
to
(3)
defendant;
duty by
attorney
the
ing personal
the
interests over
client’s in-
(4)
causes;
damages
plain-
terests,
to
improper
confidences,
and
the
use
client
of
tiff. Floyd,
F.Supp.2d
trust,
How-
taking advantage
556
661.
of
client’s
the
en-
ever,
equita-
if a client
the remedy
gaging
seeks
of
in self-dealing,
making
and
misrep-
proves
Gibson,
fee
a
of
ble
forfeiture
breach
resentations.”
Not can (Ted) Terry, Edwin of] J. Jr. In the implicate lawyer’s fiduciary be said to Plaintiff, Gary fall Beck separately neg duties is actionable from Jr., Terry, Vaught, Hays, ligence claim. a lawyer’s Because “stan Jr., Terry, Firm entered into in negligence dard care often agreement said for Defendants defined in characteristics of that attorneys to provide services herent ... re fiduciary relationship courts Beck. fiduciary relationship fer to the lawyer Defendant, client fiduciary Terry, has to the and use 39. Jr. Firm care attorneys engaged standards define standard of and its were required lawyers.” provide legal Beck to Murphy, services Consequently, S.W.3d at 696. “courts divorce connection with a matter have applied most often those No. standards identified as Cause FM0- 07412; really negli conclude that the claims are In the Matter Mar- breach-of-fiduciary-duty gence, riage Gary of Ruth Ann Beck and action. Defendant Ted Ter- Beck, 345th Judicial vorce In the Gene Court, County, ry’s Tex- alcohol and substance abuse Travis District or contributed to as. addictions caused failure to ex- Defendants’ represen- of that During the course (Ted) Jr., standard of tation, Terry, reasonable] ercise a J. Edwin E. Vaught, providing legal A. Karl when services James care amounting acts Gary Upon committed Beck. information Hays failing prepared belief, to be all of the Defen- court, failing to hearings in knew Ted alcohol dants *14 re- timely with court orders comply problems, but and substance abuse attorneys’ in of sulting payment Gary facts to failed to disclose such attorney for Beck’s wife fees Had such been Beck. facts dis- failing to proceeding, in the divorce Beck, Gary to he would not closed respond timely appropriately and Terry hired the Defendants to have decree, changes to in the divorce him. represent separate and pledging corporate Terry acts 43.The Defendants’ and security given for notes property as proximate omissions were a and/or Beck, Plaintiff, Gary failing to by producing damages cause of the corporate property sepa- keep by suffered Plaintiffs herein. property, corporate permitting rate prop- appel- with property Appellees attempt negate to be combined did not to estate, to erty failing of marital allegations summary- lants’ factual in their of conflict interest be- disclose Consequently, motion. we must Beck, Gary individually and tween take as true for of our purposes them corporate Plaintiffs named Pemj, 303; review. at herein, their failing keep to Co., Nat’l Ins. American client, Plaintiff, properly 686. timely informed of matters associ- Appellants incorporated these factual al- thereby resulting- with his case ated legations pled following “breach of damages Plaintiffs. in to duty” fiduciary cause of action: Terry Defendants also as- 41. relationship A of trust confidence of representation the named
sumed existed between and the Ter- Plaintiff[s] corporate giving Plaintiffs Ruth ry Defendants breached Defendants. security Beck in and Ann interest duty to act utmost with fairness corpora- stock in the Plaintiff representation faith in good Terry Defendants failed tions. The divorce action. Plaintiff[s] [the] to Plaintiffs conflict to disclose duty Gary Beck and Defendants breached [their] of interest between represent named with companies Plaintiff[s] the Plaintiff Plaintiff[s] herein, advise Plaintiff loyalty failed to and to inform Plain- undivided Gary independent Beck le- to seek of all material facts as soon as tiffs] addition, gal they counsel. arose. Defendants make a full and fair disclosure belief, failed to Upon information and De- case aspects material all Terry fendant Ted suffered from Specifically, Defendants abuse Plaintiffs]. alcoholism and substance important notify Gary Plaintiffs] failed to representing while he was which resulted in discovery di- deadlines Beck the above-described discovery sanctions the court as well Alcohol or substance abuse unreceptive as an attitude toward Plain- Appellants contend their allega by the court. Defendants also tiff[s] tions that Defendants failed to adequately prepare failed Plaintiff[s] disclose “alcohol and substance proceedings for court in that he was not abuse implicates addictions” a fiduciary fully aspects informed of material duty that is actionable independently from fiduciary case. Said breaches of the duty of ordinary care. Appellants rep duty Defendants owed awere Plaintiff[s] resent there is no case from any proximate cause of dam- Plaintiff[s]’[ ] jurisdiction that has addressed whether ages.12 allegations these sorts of can implicate an Appellants have contended have as- independently fiduciary actionable duty, serted two factual theories that are prop- However, and we are aware of none. ap erly independent classified as pellants’ theory is inconsistent with the (1) fiduciary duty: breach reasoning of the Texas applying cases Defendants failed to disclose that non-fracturing rule. “suffered from alcohol and substance *15 (2) during representation; abuse” the courts, Court, Texas including this have Terry Defendants “failed to disclose to recognized complaint that a lawyer that a the conflict of Plaintiffs interest” between “misrepresented” competence his pro- corporations Beck and his and “failed to legal vide services or “failed to disclose” Gary Plaintiff advise Beck to seek inde- his incompetence implicates only the law- pendent legal counsel.” ap- We note that yer’s duty ordinary of care and is not pellants did not refer to either of these independently fiduciary actionable as a factual theories when pleading them DTPA, duty, See, or other tort e.g., claim. action, breach-of-fiduciary-duty cause of Ersek, 270, (DTPA 69 S.W.3d at “Specifically” instead referring to the claim based on law firm’s “misrepresenta- Terry alleged Defendants’ failures to noti- regarding tions its competency to ade- fy “important discovery them of deadlines” quately represent in underlying Ersek adequately prepare” or “to Beck for trial. medical malpractice action” constituted an Nonetheless, because also incor- claim); improperly negligence fractured porated their “facts of against claims Ter- McConnell, Greathouse v. 982 S.W.2d ry Defendants” pleading when this cause 172 (TexApp.-Houston [1st Dist.] action, of allegations those factual are a denied) pet. (complaint that lawyer misrep- appellants’ basis for allegations that legal resented services compe- would be of duty Defendants “breached their tent quality they when were not constitut- act with good utmost fairness and in faith negligence ed a claim and not a claim for in representation,” duty breached the fiduciary duty, violations, breach of DTPA of loyalty “undivided and to inform Plain- fraud, duty or breach of of good of all faith and tiffs] material facts as soon as arose,” Hancock, fair dealing); and “failed to make a full see also Aiken v. and fair of aspects disclosure all material 115 S.W.3d 28-29 (Tex.App.-San Anto- denied) case to pet. Plaintiffs].” nio (“breaeh-of-fiduciary- Following against ings the "facts of damages. Ter- of their causes of actions and Defendants,” ry petition the second amended pleadings parallel These sets of were organized separate into sections contain- identical, largely differing chiefly using ing pleadings of Beck’s causes action and singular plural versus forms of verbs. damages, corporations' plead- followed analogous lawyer to an that a “misrepresenta- assertion predicated claim duty” any more lawyer myriad, was afflicted of the that “failure disclose” tion” and might that physiological innocuous factors expert unprepared witness were a adversely impact lawyer’s practice per- be- This is negligence). trial sounded illness, given day e.g., on a formance complaint ultimately goes to the cause — emotions, a deprivation, simply or sleep lawyer’s representa- legal adequacy ability or, innate intelligence lack of or Deutseh, at 189-90 tion. See — matter, by non-physiological for that such (“If a gist complaint client’s malfunctioning impediments as a practice degree attorney did exercise secretary. or A com- printer office absent care, skill, attorneys or diligence lawyer a plaint “failed to disclose” commonly ordinary knowledge skill situation, or like the com- such a condition be complaint then should possess, Greathouse, go would plaints Ersek claim, than negligence as a rather pursued and, lawyer’s ability competence claim.”). some other ultimately, to the quality of services De- Appellants’ complaint lawyer provided. independent An Terry’s failed to “alcohol fendants disclose “fail- “breaeh-of-fiduciary-duty” claim for abuse concerns and substance addictions” and sub- ure to disclose” “alcohol type a of antecedent act or condition an- stance abuse addictions” or other potentially impacts lawyer’s competence bearing tecedent condition on the Ap- capacity provide legal services. merely competence Defendants’ would acknowledged relationship in pellants claim, professional fracture *16 “Defendant pleadings, alleging their (and separate lia- permitting submissions Terry’s alcohol abuse Ted and substance Terry Defen- bility) regarding whether the to the addictions caused or contributed dants breached of care and standard exercise a Terry Defendants’ failure to why they the reasons breached it. See provid- standard care when reasonable] of Ersek, (quoting legal Similar- ing Gary services Beck.” 2) Sledge, (explaining ratio- S.W.2d at briefs, ly, appellate in their de- rule). non-fracturing nales of allegations relating their to alcohol scribe Kahlig Boyd, Also instructive is short, and substance abuse: “In Plaintiffs (Tex.App.-San Antonio alleged that if had not breach- Defendants denied). In client pet. Kahlig, a former their various and duties to obligations ed lawyer him represented sued the who had Terry’s Beck and Mr. Mr. advised him of child-custody dispute in a with his first problems, abuse Beck would substance Mr. yielded that had result for wife an adverse counsel, been unimpaired have retained The causes the client. client asserted of advised, properly not dam- suffered action for fraud DTPA violations ages.” gist complaint, of appellants’ part that the law- allegations based words, Terry’s is in other that because of yer surreptitiously had an affair with abuse, appel- alleged alcohol substance during representa- client’s second wife not receive of satis- lants did services Id. at 687. the client’s factu- tion. One of care, skill, factory diligence. This is a theories was the affair created a al claim as See a matter of law. “conflict of interest” that diminished id. false lawyer’s performance and rendered lawyer the sen- Although appellants emphasize representations by the previous allegations nature of about to the “best sational their that he would handle the case use, ability” is drug complaint [he] alcohol or their “be the best [his] 688-89, be.” Id. at The court contributed could to a breach of the standard of that, reprehensi- however care a appeals lawyer, held but not. did been, conduct lawyer’s might ble have In attempt their to recast their negli- his failure disclose the affair was not gence claim as breach-of-fiduciary-duty independently actionable as breach-of- claim, appellants ultimately rely on the fiduciary-duty or DTPA claim under this Terry Defendants, fact that the like most theory it ultimately because was a com- lawyers, charged fees for their services. plaint quality lawyer’s rep- with Specifically, appellants maintain that be- “fall[s] resentation and within the ambit of cause the Terry Defendants presumably malpractice.” Terry’s a claim for See id. stood to attorney’s receive long fees as undisclosed “alcohol and substance abuse continued, representation their of Beck analogous addictions” undisclosed and because appellants alleged that Beck Kahlig affair in is an act or antecedent —it Terry would have hired the Defen- alleged condition that is to have impacted dants had he known Terry’s “alcohol care, skill, diligence with which a addictions,” and substance abuse have his lawyer represents client. the same a complaint asserted Defen- complaint way, appellants’ dants, failing when Terry’s to disclose con- failed to Defendants disclose con- dition, were committing the sort of subor- within dition the ambit of a claim “fall[s] dination of their client’s interests their malpractice.” id. own distinguishes a breach-of-fiducia- ry-duty claim. We disagree that the mere During argument, appellants oral elabo- fact Defendants might have had independently rated on their notion of the an expectation of fees from continuing to fiduciary duty they actionable believe to be represent present Beck—a factor in virtu- implicated allegations Ter- about ally every attorney-client relationship ry’s undisclosed “alcohol and substance —can appellants’ negligence convert claim into They abuse addictions.” insisted that even breach-of-fiduciary-duty claim. lawyer’s alcohol substance abuse or impact quality addition has no on the First, an expectation fees from con- *17 lawyer legal provides, services the a client more, tinuing the representation, without can nonetheless sue for breach of fiduciary would not support the that the inference duty based on of non-disclosure the condi- Terry Defendants’ to failure disclose Ter- tion, remedy and at least obtain the of ry’s “alcohol and substance abuse addic- forfeiture, if equitable fee the client would tions” an was motivated intent to ob- repre- not have initiated or continued the tain those fees. The non-disclosure is sentation if he or she had known of the equally general a consistent with more Even ultimately condition. if the condition to revealing aversion these sorts of dis- not affect legal lawyer did services the comforting private to others. facts See provided, complaint would nonetheless (mere Kahlig, 980 at S.W.2d fact go lawyer’s competence and, there- lawyer continued to receive fees from fore, Ersek, in negligence. sound See 69 representing support client did not infer- Greathouse, 270, 274-75; S.W.3d at 982 lawyer’s ence that failure to disclose affair Appellants’ theory S.W.2d at 172. with client’s wife was calculated to obtain an amounts to end-run around the breach an improper benefit because facts professional- of and causation elements a equally lawyer’s were consistent with de- claim, negligence permitting affair). recovery sire surreptitiously to continue of importantly, based the mere existence an anteced- More Terry whether the De- ent potentially attorney’s condition that could have received fendants fees an
434 (despite allegations 74 that firm received appel- the focus of is not benefit improper to persuading from client al- additional fees undisclosed complaint regarding lants’ settle, complaint that client crux of was Appellants did abuse. cohol or substance amount did not receive desired settlement Terry fail- allege Defendants’ not claim). Even mishandling of if the due to Terry’s “alcohol and sub- to disclose ure Terry to receive attor- Defendants stood to anything addictions” had stance abuse continuing representa- ney’s fees from attorney’s fees or pursuit of do with the tion, gist appellants’ complaint of 241 Mwrphy, benefit. See improper to Defendants were unable lawyer “en- (complaint at S.W.3d 699 provide adequate provide did not and/or when continued self-dealing gaged Terry’s because of condi- services represent to both Renick negligence, tion. a claim sounds in Such not sounded Brock[s]” id.; fiduciary duty. See not breach of duty “the Brocks not fiduciary when do 699; Erselc, at Murphy, S.W.3d them, Lawyers pur- deceived allege Greathouse, 270, 274-75; at S.W.3d pecuniary over their own interests sued S.W.2d at 172. interests, any im- the Brocks’ or obtained represent to continuing benefit proper appellees We hold that met sum- clients”). Instead, focus appellants’ establishing both mary-judgment burden Terry’s Ted alcohol judgment is that “Defendant as a matter their entitlement complaint regarding abuse addictions caused appellants’ and substance of law that Defendants’ fail- contributed to undisclosed “alcohol and substance solely negli- a abuse addictions” sound ure to exercise standard reasonable] appellants providing legal gence.13 when services We also conclude that care Du&rr, raise fact appel- at 73- did not a issue defeat Gary Beck.” See Beck, conclusion, corporations, although reaching our also 13. In as well as sought regarding corporate "i. Loss of assets as result appellants’ similar conclusion below, by corporate payments stock.” All theory, secured "conflict-of-interest” discussed appellants sought damages, exemplary further the remedies we have considered DTPA, attorney's damages treble under Ap- sought. Murphy, fees the DTPAand section 38.001 of the under pellants pled following dam- for the "actual code, practice and interest. civil and remedies ages” "[a]s incurred result primari- Although these remedies consisted negligence, and other Defendants’ bases ly damages arising of actual from terms liability”: Agreement di- the Mediated Settlement payment An a. adverse decree, appellants re- vorce characterize their attorney’s fees for services not rendered "[a]ttorney’s paid quest fees Defen- *18 inadequately; or rendered equitable a for fee forfeiture. dants” as claim encumbering due b. incurred to Losses appellees dispute While this characterization security corporate properties stock and as successfully po- appeal, they on advanced the Beck; for indebtedness to Ruth Ann plead- district court that this sition before the pay- c. incurred Plaintiff due to Losses ing sought equitable After ob- fee forfeiture. by the ments made to Ruth Ann Beck summary taining judgment at issue on companies; Plaintiff summary- appeal, appellees filed a second a Owel- d. incurred as result Losses seeking negli- judgment motion limit Plaintiffs; ty signed by note gence damages appellants Ap- could recover. note; paid Owelty e. Interest on pellees ground appellants asserted that Defendants; Attorney's paid f. neg- fees attorney's fees could not recover their as g. income due to encumbrance of ligence damages Loss of "Plaintiffs’ for because claim estate; fiduciary duty on real on additional liens dismissed breach forfeiture, summary judgment” a "[flee h. of the inabil- as Losses incurred result law, damages a is not an element of ity develop properties. matter of to further
435
summary judgment
problem. Appellees
quarrel
on the
do not
lees’ entitlement
that
this evidence raises a fact
mo
issue as
response
appellees’
this issue.
the existence of an undisclosed alcohol and
tion,
presented summary-judg
appellants
substance-abuse
that would have
problem
chiefly, deposition testi
ment evidence —
representation—
led Beck to terminate the
ex-wife,
Terry’s
Terry—
Kim
mony from
required
facts that we are
to presume for
fact,
Terry,
whether
had a
going to
summary-judgment purposes anyway
drug
during
problem with alcohol or
use
—but
urge
nothing
that
it adds
represented
period
which he had
analysis
appellants’ complaint
of whether
Appellants
presented
Beck.14
also
an affi
problem
negligence
about the
sounds
or
from Beck in which he averred that
davit
fiduciary duty.15
agree
breach of
We
with
never disclosed to
Terry
Defendants
appellees.
Terry
him that
had
alcohol
sub
problem,
explained, appellants’
stance-abuse
and that Beck
As we have
com-
plaint
Terry
have fired the firm had he known of
Defendants failed to
would
negligence
completing
program.
under Beck’s
claims.”
dis-
the treatment
Ms. Ter-
summary judgment
ry
Terry's problems
granted
claimed that
were “a
trict court
progression”
really
ground.
acknowledged
prior summary-
slow
that reached "the
It
during "[pjrobably
"finding
severe state”
the ten
order
there was no breach
rehab,”
held,
months before he went off to
and that
fiduciary duty,”
a
“Because
"really
spiraling
he was
kind of
out of con-
fiduciary duty
necessaiy
ele-
breach of
is
trol” between
November
car wreck
his
disgorgement,
ment of Plaintiffs’ claims for
September
and the
noted,
2002 intervention. As
summary judgment
proper.”
Beck hired the
Defendants in the
plaintiff sought equitable
That a
fee forfei-
fall of
and the divorce was mediated
remedy
of a breach-of-
ture —a
characteristic
February
and settled in
2002.
fiduciaiy-duty claim—is a factor courts can
classifying
complaint
when
as ei-
consider
Appellees
urge
also
us to affirm the sum-
breach-of-fiduciaiy-duty
ther a
However,
mary judgment
could not
because “Plaintiffs
remedy
claim. See id.
while the
necessary
establish the
causal connection be-
analysis,
necessarily
may inform our
it is not
alleged
any
74;
abuse and
Duerr,
tween the
substance
dispositive.
262 S.W.3d at
Mur-
wrongdoing by
They
Defendants.”
further as-
assuming
phy,
disclose a claim as negligence (quoting is claim. Id. at 693 fiduciary-duty abuse addictions” it goes 330). law because Gibson, a matter of 126 S.W.3d at repre- Defendants’ of the adequacy com- Examples of the latter include conclusion does not legal This sentation. lawyers failed to disclose a plaints that quantum proof depend on litigation in the pecuniary direct interest Terry actually had “alcohol presented that pursued the client and that was adverse to addictions,” the ex- abuse and substance an interest to the client’s detriment. such colleagues or that his problem, tent of that Co., Protective 197 See Archer v. Medical about it while Beck did might have known 422, (Tex.App.-Amarillo S.W.3d appellants’ sum- not. With or without denied) evidence, (allegation that insur- pet. it remains that mary-judgment only complaint implicates lawyer represent their ance-defense failed duty ordinary care and not Defendants’ counsel’s client’s interests order to serve fiduciary independently duty. an actionable keeping interests in the business and “own Consequently, appellants did not defeat a matter of favor” of the carrier “concerns summary judg- appellees’ entitlement loyalties, e.g., pursuit of his divided breach-of-fíduciary-duty ment as the interests pecuniary own interests over theory. ... of his client can be viewed as [and] ” interest involving fiduciary breached “Conflict of duties”); Deutsch, 97 at 190 S.W.3d additionally contend
Appellants (allegations that law firm failed to advise that Defen allegations “[t]he presented client about conflicts when law to disclose to Plaintiffs the dants failed party pro- firm named as in related Gary conflict of interest between Beck -withdraw, ceeding, failed to and failed to companies named herein and the Plaintiff appro- separate recommend counsel “are Gary to advise Plaintiff Beck failed [and] breach-of-fiduciary- a priately classified as impli independent to seek counsel” claim, duty independent negli- of Deutsch’s fiduciary duty a is actionable cates duty claim”); independently ordinary from the gence Spera. Fleming, Hoven- noted, “attorney’s P.C., an failure to care. As & kamp Grayson, is of the disclose conflicts of interest” one (Tex.App.-Houston no [14th Dist.] in may give rise to an circumstances (lawyers’ failure to disclose to clients pet.) dependent breaeh-of-fiduciary-duty claim. competing had claims to attor- Gibson, However, S.W.3d at 330. award). ney’s fee a ... “characterizing conduct as ‘conflict requisite on benefit improper focus alone what of interest’ does not transform a Floyd, appel- was also found case really negligence a claim professional is emphasize appeal. F.Supp.2d lants breach-of-fiduciary-duty ... a claim.” into at 662. That case arose from the bank- Murphy, Regardless Seas, ruptcy gas an oil and com- Seven may attempt plaintiff of how the label pany, following risky a and unsuccessful claims, gist plaintiffs his if the of the project that had been financed exploration lawyer failed to ad complaint is a in which through series of transactions inform, client, vise, or communicate with participants mortgages had received If, it claim. Id. on the is company’s on the assets and warrants on hand, complaint other gist company’s to the detriment of stock lawyer improper obtained the Seven Seas disclosing benefit the asserted other creditors. Three of *20 directly indirectly courts have participated similarly directors held that “conflict-of- financing in One of these the transactions. complaints interest” sound in negligence directors, Fuller, partner in law was a the them quality when real focus is the of the (M Taft, T), firm & P.C. & of McAfee lawyer’s legal services and not whether the which served as Seven Seas’s outside also lawyer pursued improper self-interest or During period the counsel. same which Duerr, benefit at the expense. client’s extensively M T had been & involved 73-74; at Murphy, S.W.3d advising regarding Seven Seas the financ- Brocks, Murphy, at 698-99. the heirs represented it at least other ing, also two partner entity to limited in an that owned the largest participant directors and in the franchises, several Blockbuster Video matters. at financing on unrelated See id. joined in brought aby lawsuit fellow 623-28, 630-31. The debtor and its trus- Renick, partner, against limited the fran- M & T subsequently tee sued and Fuller chisor, Blockbuster Corp. Entertainment lawyers complaining that the had breached As the case progressed, the defendants (1) fiduciary fully their by failing duties against filed a counterclaim Renick. Ulti- inform Seven Seas of numerous conflicts the mately, counsel for Brocks and Renick (2) interest, by legal providing representa- negotiated a million settlement of the $7.5 tion and advice while these conflicts exist- suit, final was rendered (3) ed, failing repre- by to withdraw from on the agreement. based settlement The senting Seven Seas when certain conflicts Brocks subsequently lawyers, sued the likely impair judg- would have or did pleading causes of action for breach of (4) ment, the of M putting interests fiduciary duty lawyers and fraud. The & T Fuller ahead those of the successfully for summary judgment moved company when “chose not to ... hire grounds that the Brocks had asserted a an independent provide counsel the le- single “fractured” claim for professional gal opinion closing,” for the among other negligence that barred by limitations. omissions. See id. at ac- Although Murphy, 241 691-92. Dal- knowledging that fact that a ‘conflict “[t]he of Appeals las Court affirmed. re- With alleged necessarily of interest’ is does gard fiduciary duty, to breach of it consid- give separate rise to a cause of action for a allegations: following ered the fiduciary duty,” breach of the held court (1) Lawyers repre- “continu[ed] that the first three complaints sounded Reniek sent and the after Ren- Brock[s] fiduciary duty breach of because their “ way ick was sued counterclaim ‘gist’ Lawyers ... is that the an obtained without written waiver of getting a roles, improper benefit from their dual Brocks; conflict of interest” from the speaks duty which to a of fiduciary breach (2) Lawyers “represented] to the claim.” Id. their claims were not Brock[s] hand, Floyd On the other court also pursuing worth at trial Renick should allegations lawyers held the Mput out the fact despite settle Law- [the & T and Fuller’s interests ahead of Seven yers] knew viable had [Brocks] by failing Seas’s an independent to hire valuable independent claims (instead firm) provide counsel of the Renick”; or cooperation opinion closing “complain about (3) Lawyers “urg[ed] adequacy representation [Brocks] rather than improper accruing accept aggregate benefit 7.5 million $ (which did, Lawyers ... solely relate to Seven settlement offer [and] [the Brocks] relying upon [Lawyers’] expertise Seas’ claim.” Id. Other Texas *21 them, them bene- and to own Brocks] and the loyalty [the to duties of
and [Lawyers’] of the fit.” truthfulness purported
representations)”; that Id. The court concluded at 698. (4) in self-deal- “engag[ed] Lawyers the qual- about the allegations complain “these represent continued to they ing when Lawyers’ specifi- ity representation, of the the after Ren- and Brockfs] both Renick ad- Lawyers’ properly to cally, the failure way of a counterclaim by was ick sued vise, inform, with the and communicate the pursue wanted to longer no and Brocks, professional claims of which are trial”; matter to acknowledged it Id. negligence.” While (5) “agree[d] to set aside Lawyers the (4) Lawyers the “paragraph that states in the Howell the court findings the when contin- self-dealing in ‘engaged case, advising [the Brocks] after the Renick and represent ued to both ” had decided most of the Howell case Brock[s],’ “the emphasized the court to ‘very prove little to do leaving issues Lawyers not deceived allege Brocks do ex- charging damages’ [the Brocks] them, pecuniary inter- pursued their own hourly reestablishing fees for orbitant interests, ests the Brocks’ or obtained over aside”; the issues set proving any continuing from improper benefit (6) Lawyers aggre- “divid[ed] Id. represent both clients.” at 699. settlement, half Renick and half gate similarly paragraph court concluded Brocks], despite the fact [the (7), Lawyers “the stating ‘chos[e] while way of been coun- Renick had sued obtaining multimil- their own interest in knowledge that Renick’s terclaim and case,’ lion fee the Howell dollar barred probably cause of action Brocks,” para- of the related to detriment [the Brocks’] while limitations (5) not, more, graph “does without not”; were type dishonesty or intentional allege the (7) their in- Lawyers own support “chos[e] that will a breach-of- deception obtaining a multimillion dollar terest in Id. fiduciary-duty claim.” through taking fee the Howell case struggled Although Texas courts have was detrimen- action in that case which cases, in closer see with the distinction interest”; tal to the [Brocks’] 695, 696, at we con- Murphy, (8) represent Lawyers “fail[ed] here difficulty appel- clude without undivided interest with [the Brocks’] complaint lants’ “conflict-of-interest” loyalty”; negligence only and not breach sounds (9) to inform Lawyers “fail[ed] fiduciary duty. appel- in Murphy, As as clients all material facts soon [Terry allege Defendants] lants “do arose”; conflicts them, pursued pecuni- deceived own (10) Lawyers to make full interests, “failfed] ary [appellants’] interests over facet every fair of the disclosures of from improper or benefit” obtained proposed ‘Howell’ settlement advising “conflict” failing to disclose the or lawsuit”; [Blockbuster] of the settlement Id. separate counsel. obtain (11) This is not a case like Deutseh Lawyers “ha[d] [Brocks] com- Floyd where focus client’s sign releasing a settlement document (Renick) firm its plaint lawyer pursued another in the suit is client same ex- own interests at the client’s pecuniary of the effect of advising without them Instead, pense. appellants’ the focus of attempted to use such release and then simply complaint “conflict-of-interest” in this to the detriment such release suit
439
Terry
appellants
that the
Defendants failed to advise
do not dispute that these alle-
Beck,
shareholder,
corporations’
sole
gations
“fractured”
professional
their
entities diverged
that the interests
these
negligence
except
claim
to assert their al-
personal
from
own
interests
that
his
legations
appellees
to dis-
“fail[ed]
separate
he should obtain
counsel for the
close
alcohol and substance abuse
allegations complain
entities.
“[T]hese
problems to Plaintiff’
support
can
an in-
about
of the
quality
[Terry Defen- dependent DTPA claim. See Latham v.
representation, specifically,
dants’]
[their] Castillo,
(Tex.1998)
69
advise,
inform,
failure to properly
(permitting
independent DTPA claim
[clients],
communicate with the
which are
attorney’s
based on
affirmative misrepre-
professional negligence.”
claims of
Id. Al-
when,
sentations that he had filed lawsuit
though appellants urge
Terry
that the
De-
fact,
not).
in
he had
We have previously
fendants,
omissions,
by their
stood to ob-
explained that appellants’ complaint about
attorney’s
separate
tain
fees that a
counsel Terry’s undisclosed “alcohol and sub-
received, appellants
otherwise would have
stance abuse addictions”
negli-
sounds in
effect,
allegations
make no
to that
and gence rather
than breach
fiduciary
both the Murphy
Floyd
courts charac- duty
goes
because it
to the Terry Defen-
alone,
complaint, standing
terized such a
and,
competence
dants’
ultimately,
negligence
as a
claim.
Murphy,
adequacy of their legal services. See Er-
698;
at
Floyd,
F.Supp.2d
S.W.3d
selc,
(DTPA
Appellants’ allegations of DTPA
largely
violations
On
allegations
appeal, appellants
tracked their
contend that
professional negligence.
appeal,
following allegation
appears
On
—which
reply
appeal, appellants,
In their
theory
brief on
view this
as distinct from their “con-
time, argue
they
alleged
and,
so,
the first
have
theory
flict-of-interest”
whether
independent
fiduciary duty
an
breach of
preserved
argument.
have
this
"failing
based on the
Defendants’
event,
theory
only
negligence,
sounds
every
make a full and fair disclosure
facet
goes
adequacy
as it
Defen-
proposed
of a
divorce settlement” and that
regarding
possible
dants'
advice
im-
improperly impair
the settlement "would
pact
Agreement.
of the Mediated Settlement
assets,
Corporate
Beck
Plaintiffs’
as well as
Murphy,
(holding
Requirement of Divorce Final Decree of Divorce are terms of the circumstances, as exigent determined in cases where a trial expansive more attorneys by agreement between the to required held and the court was Client, in involving and the cases disputed resolved the issues. suit, a final De- settlement of a divorce cree of Divorce must be prepared added). characterizes the (Emphasis Beck by agreed upon parties before binding promise a italicized statement as Rule by Divorce is rendered the Court. Terry Defen that was breached when the divorce, 11 of the Texas Rules of Civil Procedure him to settle the dants advised matter in contro- divorce, and Texas law allows a participated settling versy by agree- “settled” a written be prepared. Ap- final decree was before the the trial parties by ment of the and for respond provision, its pellees solely terms, grant merely “policy” court to a divorce based a describes upon Agreement,” the “Rule 11 and the not an enforceable policy that a mere is drafted, Highland v. Town promise. Final Decree of Divorce be See Loftis Park, (Tex.App.-East signed by parties judge and the writ) (policy employee also no procedure at a later date. This land promise). controversy handbook not an enforceable allowed in instances where a (Tex.2000). distinguish Loftis, attempts noting Beck When an agreement leaves “strong at policy” issue here was material matters open for future adjust- signed in a ment and by par- agreement, set out contract both it is binding upon ties, parties merely rather than akin to an the something constitutes handbook, agreement agree. employment as in Id. Loftis. issue, provision apply
We
well-established
plain
its
terms,
a “policy” against
states
principles of construction in
a
a
interpreting
finalizing
agreeing
divorce before
on the
primary
written contract. The
concern of
terms of
final decree of divorce:
Firm
the court is
ascertain the
“this
has
true intentions
*24
strong
of
policy
finalizing a divorce
at
parties
expressed
only
as
in the instru
Enters,
such
Agreed
times as the
LaGuarta,
Final
of
R
v.
Decree
ment. & P
Gavrel
Divorce has been
(Tex.
prepared
signed by
and
Kirk, Inc.,
517,
&
596
518
S.W.2d
parties.”
both
Preceding that statement is
1980); City
v. Spooner
Pinehurst
Addi
of
explanation
an
for the policy, as well
Co.,
as
515,
(Tex.
tion Water
432 S.W.2d
518
provision contemplating deviation from the
1968).
objective,
To achieve this
courts
policy. Although
permitted
deviation is
should examine and consider the entire
exigent circumstances,”
“in
such circum-
writing in an effort to
give
harmonize and
stances
“as
are
by agreement
determined
provisions
effect to all the
of the contract
between the attorneys and the Client.”
will
so that none
be rendered meaningless.
whole,
Construed
aas
the provision at
Daniel,
Corp.
Universal C.I.T. Credit
v.
general
issue merely states a
firm prefer-
(1951).
513,
154,
150 Tex.
243
158
S.W.2d
or practice
ence
not to settle divorce cases
single
No
taken
provision
alone will be
until a final divorce
agreed
decree can be
effect;
rather,
given controlling
all the
upon. Furthermore,
the provision leaves
provisions must be considered with refer
parties
free to
policy
deviate from this
ence
the whole
Myers
instrument.
v.
(as
here).
by agreement
they did
This
Mgt. Corp.,
Coast Minerals
361
Gulf
provision is too indefinite to be enforceable
(Tex.1962);
S.W.2d
196
Nat’l
Citizens
id.;
a binding
promise.
contractual
See
Co.,
Bank in
Ry.
Abilene v. Texas & P.
Co.,
Valence Operating
Whether
contract is
is a
ment
tion of law for
the court
to decide
appellants’
We overrule
issue and
first
looking at the contract as a whole in light
affirm the
summary judg-
district court’s
of
present
the circumstances
when the
appellants’
ment as to
of
claims for breach
contract was entered.
Id. at
In gen
duty,
violations,
fiduciary
DTPA
eral, a
legally
contract is
binding only
breach of contract.
sufficiently
the terms are
definite to allow
Exclusion of evidence
a court
to understand the parties’ obli
gations.
issue,
Fort
Indep.
Worth
v.
Sch. Dist.
In their
appellants argue
second
Worth,
City
Fort
22 S.W.3d
846 that the district court abused its discretion
(2)
error;
error was reason-
excluding
evidence
at trial
probably
did
ably calculated
cause
abuse”
or substance
“alcohol
purported
judgment.
improper
rendition of an
cause
his firm
in which he and
during
period
Maris,
McCraw
Appellees object-
Beck.
representing
were
(Tex.1992).
evidence
such
ed to
admission
for unfair
potential
that its
grounds
on the
appellants’
the exclusion of
urging
of the issues sub-
confusion
prejudice or
of “alcohol or substance abuse”
evidence
probative value.
stantially outweighed its
two
appellees
rule
advocated
under
403."
district court
Tex.R. Evid.
First,
questioned
grounds.
appellees
all such evidence.
excluded
agreed and
relevant to
evidence was even
whether the
abuse
dis-
urge Appellants
professional negligence
appellants’
“highly
this evidence was
cretion because
issue was whether
the ultimate
because
“essential,”
“a critical com-
probative,”
met the
Terry Defendants’ advice had
professional-negligence
ponent” of
objective
of care—an
standard—
standard
pervasive nature
claims because “the
to meet it.
why their advice had failed
*25
[Terry’s]
affected
(“The
abuse
the substance
Cosgrove,
its discretion 2001, Terry hunt- driving go “was duck right if it reaches the result for evidence Barr, drinking in car and drove wrong ing Donalson v. was reason. a ditch.” She termed this car into (Tex.App.-Houston his [1st turning point” after which pet.); Luxenberg no Mar event “kind of Dist.] more, shall, drinking drinking in was a lot (Tex.App. “[h]e writ). Furthermore, went work drink- morning before he no Dallas Eventually, coming home drunk.” ing, re the exclusion of evidence constitute organized she error, Terry testified that complaining party must Ms. versible (1) Terry’s Sep- law “intervention” office show: the trial court committed that 13, 2002, in which six of “intervention.” He termed Mallios’s ac- tember phone count of their Vaught conversation “abso- colleagues, including professional lutely disputed false” percep- Mallios’s Follow- Hays, urged get help. him to commonly Terry tion that it was known intervention, Terry Sierra went to ing drug problems. had alcohol or Vaught Terry for treatment. Ms. claimed Tucson Terry gone added that was for about four Terry time went to Sierra intervention, after the weeks but he Tucson, very clear” that becoming “it was knowledge Terry had no whether had com- Terry suffering was from an alcohol and program. the rehabilitation Similar pleted impacting cocaine addiction that was his Hays to Vaught, testified that he first ability to function. She learned problems Terry about with wise, just added that he seemed “[w]ork when participate he was asked to continuously drinking like he was chaos intervention, adding was ex- “[i]t more and more everything getting plained to me that it was for—Ted was disruptive at home.” drinking.” Hays, Vaught, like recounted Terry repre- had Mallios testified that he not known had whether him in a that was filed in sented divorce completed program. the rehabilitation He claimed that sometime between The Sierra Tucson records reflect that 18, 2002, February April Vaught 21 and the facility was treated at between him and “was not called advised 4, 2002, September 13 and October when up my to be able to finish divorce” going he against They left medical advice. fur- going go he “was to have to because *26 Terry Terry ther and Ms. indicated rehab because of cocaine addiction and experiencing problems, had been marital possible alcoholism.” Mallios—who admit- couple intermittently had been from prior probated suspension ted to a separated prior for about two months to my the State Bar “because of own use of intervention, Terry per- and that had that, opined alcohol”—-also cocaine and Terry’s ceived Ms. orchestration of the experience, based on his own cocaine or an posturing anticipat- intervention as “[ajdversely alcohol addiction affects However, proceeding. the rec- ed divorce client,” ability lawyer represent to findings clinical of alco- ords also reflected particular, judgment. in “in the area of depression, and that dependency hol and might things You decide to do some facility come to the Terry planned had to ... inappropriate expensive.” were or too year later that to treat on his own volition examples Terry’s cited two “im- Mallios According to the rec- problem. his alcohol from paired judgment” his divorce—Ter- ords, daily consumption of Terry reported a cash ry’s request for retainer and going ever to three to six beers but denied attempt unsuccessful to circumvent a dis- court while intoxicated. We cannot dis- ruling by going probate trict court to drug any findings cern related clinical perceived Terry’s court. He added that he records. The records also use from these problems widely legal to be known in the “some Terry complained reflect community. concentrating poor with decision- difficulty he Vaught history testified that first learned of making” and “a of short-term Terry drugs portray issue with and alcohol or these memory Appellants loss.” 13, 2002, Terry’s September Terry when Ms. indications that statements lawyer meeting performance he or as a had interrupted conducting judgment was However, the Hays paralegals impaired by at the office with and been alcohol. the staff associated him in an records indicate that Hays participate asked necessarily Ted before and had not depression with rather symptoms these doing observed him that. than alcohol use. urge that the excluded Appellants trial, lay a appellants attempted to At highly probative Terry’s evidence with predicate for the excluded evidence “pervasive” dependency on alcohol use testimony from Beck about following that, together Beck’s drugs with during February Terry’s behavior testimony, Terry’s impaired judgment 2002 mediation: performance during representa Q. of Mr. Did the actions and conduct tion. cannot conclude that the district We you during concern Ted excluding court abused its discretion mediation? previously rule evidence under 403. As Oh, very definitely during the medi- A. explained, pivotal events Beck’s di ation, yes, sir. February proceeding vorce were the and, day, following 2002 mediation on the Q. physical ac- Describe observable the execution of the irrevocable Mediated you tions of Mr. caused Agreement rendering of Settlement your about concern and concern agree the divorce based on that case. trial, sought only ment. At sitting A. We were at the—in the me- amount, damages any, for “the kept room and Mr. diation —I Ann Company paid Beck Benefits to Ruth thinking he was nervous and he was Beck pursuant mediated settlement physically hands were like this —his that it agreement paid would not have but (indicating).[17] for the negligence you found answer Q. you all Is this noticed? negligence question].” The Sierra [the A. No. And that is what I alluded Tucson records reflected condition my legal
earlier about what ad- some months after the seven settlement. vice—Mr. Herman asked me what Appellants prepared present were my complaint advice did I base *27 that, Terry in- general, evidence had only on. And that was that. The creased his use of alcohol between No- thing mattered was size of September vember 2001 and the 2002 in- note, owelty mat- it didn’t tervention, Ms. did and Mallios pie ter what stuff went into the using accuse the late of cocaine owelty going because the note was Mallios, in during period. particular, this thing to be the of that all size was gave disputed testimony that he was in- that mattered. And that’s what he formed sometime after the mediation and telling was me. And he did it be- February 21 settlement —between just kept sitting cause he in his 18, April 2002—that had a cocaine eyes chair with his closed. And he However, come appellants addiction. no lean back would and forth like this establishing any relationship closer to be- . say only (indicating) and the size Terry’s alleged drinking drug tween or is the matters size of owel- when performance represent- use and his ty just note. He did that liter- ing testimony Beck than Beck’s about —he an I ally thought Terry’s “strange” for like hour. And what he termed behav- more, at really during the time that that’s ior the mediation. Without of strange. supporting And I had been around the evidence falls short demonstrating. 17. The record does not reflect the nature of the behavior Beck was
445 Terry’s performance inference that when trarily declined to colleague’s disturb his negotiating Mediated Settlement prior summary-judgment Appel- ruling.18 Agreement actually impaired by was alco- emphasize lants the following comments crediting hol even drugs. Similarly, or by the trial judge when excluding Kim opinions drug Mallios’s that alcohol and Terry’s testimony: “I say want to that I adversely impact addiction a lawyer’s can see going could it to the fiduciary duty judgment, nothing there is linking longer claim. And that has—is no general Terry’s perform- observation to obviously, case. And if that’s reversed on during negotiations. ance the settlement appeal, somebody then would have to take minimum, At pro- we conclude that any question up the admissibility of of the evi- bative value excluded evidence dence that claim.” so greatly outweighed danger We a trial review court’s denial of unfair prejudice and confusion of the is- a motion for new trial for abuse of discre sues that the district ex- properly court R.R., tion. the Interest 209 S.W.3d Dudley cluded it under rule 403. See 112, (Tex.2006); Director, 114 State Em 124, Hosp. Corp., Humana 817 S.W.2d ployees Evans, Comp. Workers’ Div. v. 889 (Tex.App.-Houston 126-27 [14th Dist.] 266, (Tex.1994). The trial writ); 1991, Payne, no 07- Hutton v. No. court abuses its discretion it acts without 971943, 00-0468-CV, *2, WL any guiding reference to principles or acts TexApp. LEXIS (TexApp.- at *5-6 arbitrarily unreasonably. Doiuner v. pet.). ap- Amarillo no We overrule Inc., Aquamarine Operators, 701 S.W.2d pellants’ second issue. (Tex.1985). 238, 241-42 Although we are Motion new trial generally deferential to the trial court’s issue, appellants In their third argue facts, see, determination of e.g., Flores v. the district court abused its discre- Appeals, Fourth Court tion in denying motion for new trial. (Tex.1989), we do not to a defer trial Appellants urge that the district court application law, court’s McDaniel v. should summary-judg- have vacated the (Tex. Yarbrough, 898 S.W.2d ment ruling light of evidence 1995). A analyze failure a trial court to particularly alcohol the Sier- use— apply correctly law is an abuse of ra Tucson records —that ob- discretion. Id. in subsequent discovery. tained Appel- We conclude district court did complain unfairly lants that appellees in overruling abuse its discretion ap- benefitted from discovery “obstructionist *28 pellants’ motion new for trial. When ana- conduct” deprived appellants that the of appellants’ lyzing first issue challenging Sierra shortly Tucson records until before trial, the summary-judgment ruling, we took as when it was too to use evi- late this appellants’ true pleading allegations dence in that opposition summary judg- to the Relatedly, Terry ment. had “alcohol and appellants suggest that substance abuse addictions,” the district court’s that the summary-judgment Defendants evidentiary were aware rulings, which were of that condition and made never Beck, by judges, different were it to Beck inconsistent disclosed that would judge, the trial also who decided not have hired the Defendants he motion, new trial recognized yet this arbi- had known of the condition. We concluded Covington grant- 18. The appeal, Stephen Honorable Suzanne of this while Honorable summary judgment subject Yelenosky ed the presided is the post-trial. at trial and 446 CONCLUSION complaint with appellants’ that condi- to disclose failure
Defendants’ each is- Having appellants’ overruled of it negligence because only in tion sounded sues, of the dis- we affirm compe- Terry Defendants’ implicated the trict court. represen- of their adequacy
tence and 270, Ersek, 274- S.W.3d at 69 tation. See Concurring by Opinion Justice 689-91; 75; Great- 980 Kahlig, S.W.2d PATTERSON. house, As with the at 172. Justice, PATTERSON, P. JAN with their appellants presented evidence concurring. the Sierra response, summary-judgment other additional evi- Tucson records majority’s I Although agree with analysis of legal nothing dence add judg- conclusion affirm trial court’s complaint regarding appellants’ whether ment, judgment only. I concur in the “alcohol and substance Terry’s undisclosed 47.1, P. 47.5. Tex.R.App. as negli- are classified abuse addictions” issue, contend appellants In their first breach-of-fiduciary-duty gence claims granting the trial court erred trial judge also note that the claims. We pai'tial summary judgment as their analysis this its similar of issue explained fiduciary duty, DTPA claims of breach of Appellants’ hearing. new trial during the violations, Texas and breach of contract. blindly as portray judge attempt plaintiff law is well settled that a is summary-judgment ruling adhering to permitted or fracture mal- divide accurately depict the record as a does not into practice claims based on
whole. See, e.g., of additional causes action. Brown, 63, 262 69-75 Duelt v. S.W.3d this, Beyond urged during 2008, no (TexApp.-Houston [14th Disk] oral district court’s argument (discussion precluding pet.) of Texas law evidentiary judgment and rul- summary into fracturing legal malpractice claims combination, ings, in stand for trou- action); v. multiple Murphy causes of clients have bling proposition that Texas 689, Gruber, (TexApp.- 692-97 S.W.3d remedy injury no caused denied) (same); pet. Dallas Aiken This, lawyers. drugged drunken or Hancock, (TexApp.- S.W.3d course, import holdings. not the of our is denied) (affirming pet. San Antonio acknowledged during oral ar- appellees As summary judgment plaintiffs claims may be circumstances in gument, there fiduciary DTPA violations breach lawyer’s impairment which of a evidence concluding that the should duty and proof integral is drugs and alcohol not have been divided and that were representation fell lawyer’s whether “thinly legal malpractice); veiled” claims However, of care. below the standard Petroleum, Kimleco Inc. v. Morrison & a case. explained, we not such have Shelton, (TexApp.- regime the regulatory also note that We *29 denied) 2002, (“Generally, pet. Fort Worth lawyers of Texas governs conduct arising not allow a out of courts do case in the applied is not limited tort duties attorney’s alleged legal an bad advice or courts, Disciplinary also includes but to be out improper representation split Responsibility Rules of Professional negligence, for breach separate into by are enforced the State Bar. contract, fraud, of because the real is- of the profes- remains one whether We third issue. sue appellants’ overrule care, skill, degree sional exercised that of issue, In their second appellants contend diligence professionals of ordi- the trial court abused its discretion nary knowledge commonly pos- skill and during jury trial on appellants’ legal Regardless sess and exercise.... of the malpractice claims when the trial court theory plaintiff pleads, as long as the excluded purported evidence of alcohol or crux of the complaint plaintiffs is that the substance abuse Terry. Mr. See Na- attorney provide adequate legal did not tional Allen, Liab. & Fire Ins. Co. v. representation, the claim is legal one for 525, (Tex.2000) S.W.3d 527-28 (evidentiary (internal omitted); malpractice.”) citation discretion). decisions reviewed for abuse of Davis, P.C., Ersek v. Davis & 69 S.W.3d Whether to admit or exclude evidence lies 268, (Tex.App.-Austin 2002, 274-75 pet. within the sound discretion of the trial denied) (policy reasons behind rule pre- court. Owens-Coming Fiberglas Corp. v. cluding fracturing legal of malpractice Malone, 35, (Tex.1998). 972 S.W.2d As claims); Rabson, Gaffney v. 56 S.W.3d court, a reviewing we uphold will the trial 186, (Tex.App.-Houston 190-94 [14th Dist.] court’s evidentiary ruling if there any denied) (discussion 2001, pet. applica- legitimate basis for the ruling. See State tion of precluding Texas law “dividing le- Evans, Bar Texas v. 656, 774 S.W.2d gal malpractice claims” into claims of (Tex.1989). 658 n. 5 contract, violations, breach of DTPA case, In this the trial court could have breach fiduciary duty). concluded that evidence of alcohol or sub- A upon claim based the failure of an stance specific abuse without a connection attorney care, to exercise the degree of to a purported negligent act Mr. diligence skill and attorneys of ordinary in his handling of Mr. Beck’s divorce was skill knowledge commonly possess and relevant appellants’ malpractice exercise, despite labeling, its is a claims, that, even if such evidence was malpractice claim negligence. based on relevant, probative its value was substan- See, 190; e.g., Goffney, 56 Sledge S.W.3d at tially outweighed by danger of unfair Alsup, 1, v. 759 S.W.2d 2 (Tex.App.-El prejudice, issues, confusion of the or mis- 1988, writ). Paso no Whether allegations leading jury. 401, See Tex.R. Evid. against attorney are actually claims for 402, 403; Dudley v. Humana Hosp. Corp., legal malpractice or something else is a 817 S.W.2d 125-27 (Tex.App.-Houston question of law for the court to determine. writ) (in [14th no neg- Dist.] medical See Murphy, 241 at Applying ligence alleging suit that physician was law, these principles well-settled appel- “impaired” during surgeries, evidence that allegations lants’ as to each of their claims physician was under federal criminal inves- ultimately lawyers’ concern the alleged tigation and “under stress” at time the failure to adequately competently han- ' surgeries performed properly were exclud- dle Mr. Beck’s divorce. See id. (“Texas ed when no direct evidence physician courts do not plaintiffs allow “actually convert what exhibited really symptoms are of stress negligence claims fraud, contract, into claims at the time of surgeries”); breach compare fiduciary duty, Transp. Metcalf, breach of PPC or violation of the DTPA.”). I, (evi- therefore, (Tex.App.-Tyler agree pet.) with no the ma- jority that the trial court dence did not err in that driver had consumed “approxi- granting summary judgment appel- mately eight as to to ten night beers on the lants’ claims fiduciary duty, for breach of conjunction the accident” in with evidence *30 violations, DTPA and breach of contract. that driver failed steer vehicle to avoid Huff, certainly former your of in and to issue causation accident relevant counsel, and regarding the nature against driver because negligence action your was “matter extent of estate? consumption alcohol re- concerning vigilance, judgment, his and A. Yes. driver”), AlliedSignal, as a with actions (Tex. Moran, Inc. v. 231 S.W.3d 44-M6 2007, pet.
App.-Corpus granted, Christi w.r.m.) (trial Q. you you ex- feel that judgment vacated court’s Do understand “drug of Ex- represented by clusion evidence that driver was entire deal as upheld no evi- “[t]here when 1? addict” hibit that was under the in- [the driver] dence A. Yes. of day of on the the acci- drugs fluence Q. Okay. you asking And are the Court dent”). agree majority I with the this approve settlement? court its in trial did not abuse discretion A. I excluding this evidence. am. Q. during of time period
I would also conclude that exclusion Now assisting alcohol Mr. Huff has purported of evidence of and sub- when been been do probably helping you, stance abuse did not cause the us and we’ve you you of improper judgment sup- given rendition believe we’ve 44.1(a). advice, Tex.R.App. good competent reversal. and and are port P. you challenge jury’s do find- satisfied with our Appellants services? ing negligence, of no evidence at Yes, am, A. I and I do.1 understanding trial included Mr. Beck’s issue, their third contend agreement sophisticated litigant that the trial court abused in its discretion to the mediated settlement his satis- denying trial appellants’ motion for a new attorneys’ faction with At the his services. light alleged discovery in obstructive on hearing February prove up throughout underlying pro- conducted settlement, Beck the mediated testified ceeding appellees to that allowed succeed during Terry: direct-examination Mr. of Mr. concealing probative evidence Q. ... you you Now believe un- problems. abuse See In substance your derstand the nature estate? (Tex.2006) R.R., re Yes, A. sir. (denial of motion for new trial reviewed for Q. you You made understand have discretion). agree abuse of Because I regarding some claims separate granted summary properly the trial court property of the —of businesses appellants’ on breach entities, and other and that all of violations, DTPA fiduciary duty, being compromised those are in this breach contract and abuse its did not agreement. you Do understand excluding pur- discretion evidence that? by Mr. ported alcohol and substance abuse A. I do understand that. Terry, agree majority I with Q. Okay. had the trial not abuse you’ve opportu- And court did its discretion
nity denying both me Ken motion for new trial. appellants’ talk with 5, 2002, February appellants’ legal malpractice 1. The claims. transcript from hearing was as an exhibit the trial admitted *31 reasons, respectfully I concur For these only.
in the Court’s DICKINSON, OF FRIENDS
CITIES
WOOD, MARQUE, LA LEAGUE
CITY, AND LEWISVILLE TEXAS
CITY, Appellants UTILITY
PUBLIC COMMISSION OF
TEXAS and Texas-New Mexico Company, Appellees.
Power
No. 03-08-00492-CV. Texas, Appeals
Court of
Austin.
1,May Brocato, Gosselink, Lloyd,
Thomas L. TX, Townsend, PC, Austin, Rochelle & for Appellant. Palmer, Gen., Atty.
Jeffee L. Aus- Asst. tin, Seamster, Counsel, Corporate Scott TX, Irving, Appellee. PURYEAR,
Before Justices WALDROP and HENSON.
OPINION HENSON, DIANE M. Justice. Dickinson, Friendswood, Cities of La Lewisville, League City, Tex- Marque, City (collectively, Cities”), appeal “the