*1
Moreover,
regulate
legal profession.” Id. at 246.
this Court will not issue
the
Gomez,
in
plaintiffs
the
Relators do
original
of
absent
“com Unlike
writ mandamus
a
Tex.R.App.P.
regulations on
imposition of new
121(a);
not seek
La-
pelling reason.”
Texas,
lawyers
challenge
in
but rather
the
Hannah,
v.
633-34
Rouche
constitutionality
of a statute
affects law-
(Tex.1992);
Bayoud,
Sears
Gomez,
Yet,
yers.
as
noted in
constitu-
we
as
Relators assert
challenges
by
tional
to rules enacted
this
the
this
compelling reasons for
invocation of
brought in the district court
must be
Court
jurisdiction
original
pro
the
to
Court’s
need
of
this Court in the exercise
its
and heard
supervi
the ultimate
tect this Court’s role as
appellate jurisdiction. “Had this
actu-
Court
Texas,
sory authority
the
Bar of
over
State
establishing
pro
ally promulgated rules
necessary
presence of
as
the
state officers
challenged
program and had Gomez
bono
suit,
impor
parties in the
and the statewide
rules,
constitutionality of such
the district
proffered
tance of the issue. None of these
decide,
jurisdiction
in
to
court would have
jurisdictional
presents
compelling
bases
instance,
rules
consti-
first
whether such
met
original
Court to
its
reason
this
exercise
standards....
case would
tutional
Such
jurisdiction.
justiciable
the district court
because
Gomez,
Bar
Relators cite State
Texas v.
rendering
capable of
would be
(Tex.1994),
authority for
court sought the extent the remedies
“[T]o Court, they Supreme would clear- authority impinge ly on the Court’s exclusive law_ practice sub- regulate the No BURNAP, Appellant, Willard power to in Texas has the ordinate court authority in this usurp responsibility our Ingram LINNARTZ; Lin Lawrence R. 246. area.” Id. at Reynolds, P.C.; R. nartz William & interpret language this Relators this Martin, P.C., Rork; and McCamish original jur- assumption of exclusive Court’s Appellees. attorneys affecting over isdiction No. 04-94-00303-CV. doing, our in Texas. In so misconstrue First, Texas, observed that Appeals decision Gomez. we Court of powers, such as the Court’s inherent Antonio. San bar, regulate power are administra- Aug. 1995. powers, jurisdictional powers. Id. tive not Rehearing Oct. 1995. Overruled court then held that a district We requirement on Tex- impose a new could has no attorneys “a district court because authority to
authority this Court’s to assume
145 *3 find, jury.
issues must be submitted to a We however, Burnap’s against appel- claims Martin, lees William Rork and McCamish & P.C. are barred the statute limitations. part We therefore affirm and reverse part. remand OF STANDARD REVIEW judg We review trial court’s summary judg ment under well-established *4 ment summary judg rules. The movant in a proceeding showing ment has the burden exists, genuine that no issue material fact and it judgment is entitled to a deciding matter In disput of law. whether a precludes summary ed material fact issue judgment, we must take as true all evidence favoring the non-movant. Nixon v. Mr. Co., 546, Property Management (Tex.1985). Eveiy 548-49 infer reasonable ence from the indulged evidence will be non-movant, any favor of the will and doubts Id.; Montgomery resolved its favor. 309, (Tex.1984). Kennedy, 669 S.W.2d 310-11 In the instant case trial court did not grounds upon summary enumerate the which judgment based, is Knisely, thus the will be E. Spivey, Paul Broadus A. Thom- any if Prehoditch, affirmed of the theories advanced Spivey, Kelly as P. Grigg, & appellees’ Rog motions are Knisely, Austin, meritorious. See for appellant. Inc., Enter., ers v. Ricane Parker, Ingram, Jr., E. James James M. Binion, L.L.P., Ball, & Ryan Butler Damon Anderson, Weed, P.C., G. Ball & J. Patrick Stahl,
Deely, L. Bennett FACTUAL McCamish Mar- BACKGROUND tin, P.C., Antonio, Matthews, San Joe W. A light review of the record in the most Moore, Dallas, Smith & Jonathan David appellant following favorable discloses the Pauerstein, Pauerstein, P.C., Lopez & San Burnap, Kelly, facts: In 1984 Walter Lester Antonio, appellees. Burleson, Max and Daniel Linnartz formed general partnership, Kittie Partners 1984-1 CHAPA, C.J., Before STONE (“KP 1984-1”). Burnap, Walter who held GREEN, JJ. 80% partnership, interest executed a payable million note to First South $3.2 Sav- OPINION (“First ings Association Savings”). South partners signed Each personal guar- STONE, Justice. note, antee and the itself appeal This is an judg- obligor ultimately became an In note. ment entered in favor of the defendant law- Burnap, father Willard of Walter Bur- yers legal malpractice ap- action. The nap, August became a retroactive to pellant, Burnap, Willard contends numerous signed personal guar- Willard never preclude summary unresolved fact issues antee on the First South note. agree judgment. We that material issues of regarding fact remain of an existence 1986 Daniel Linnartz Max Burleson attorney-client relationship, and that these decided to from KP withdraw 1984-1. Wal- January
ter
sold
Bumap contacted Daniel Linnartz’ broth-
On
Willard
er,
his entire interest in KP 1984-1 to
son.
engaged
Lawrence
his law
partner-
Burnap in turn dissolved the
necessary
firm
Walter
paperwork
to draft
ship and sold its assets Kittie
the withdrawal. Because the
in-
transaction
Again,
prepared
Inc.
Rork
documenta-
brother,
volved
Linnartz asked an associ-
tion,
prepared
but this time he
a conflicts
ate,
Rork,
perform
work.
William
possible
outlining
letter
to each
Rork
a Mutual Release and Indem-
conflicts of interest that could arise from the
(“the
nity Agreement
indemnity agreement”)
There
transaction.
evidence
this
partners
sign.
for all
presented
conflicts letter was ever
agreement provided
through
KP
Bumaps.
(Walter
partners
remaining
Burnap,
its
Wil-
Kelly)
Burnap and Lester
indem-
lard
would
January
Also in
nify
any
Daniel Linnartz and Burleson for
negotiated by
executed a release
William
liability
withdrawing partners may
Rork,
stating that it released from
pay
guarantors
have undertaken
partners,
on the KP
all former
1984-1 note
indemnity agree-
KP
behalf of
1984-1. The
exception
of Walter
with the
purported
comply
partner-
ment
with
person
signed personal guarantee
had
who
ship agreement,
provided
*5
which
for several
Burnap
the
the note. Willard
was
partner
of
alternatives
event
with-
signed
person-
who had not
former
drawal.
guarantee
al
on the note. Rork
testified
deposition
his
of the
the intent
release
presented
Rork and Lawrence Linnartz
protect
Burnap
to
was
Willard
part-
evidence that
the
Savings
on the First South
note.
agreed
of
ners had
to all terms
the with-
In 1989 Kittie
Inc. filed for
drawal,
merely
Rork
and that
was
the
bankruptcy and defaulted on the First South
agreed
the
to
“scrivener” who reduced
terms
collateral,
foreclosing on
note. After
writing.
sum-
Appellant Burnap presented
deficiency
million
First
of
remained.
$1.3
mary judgment
that he
his son
evidence
South
itself then became insolvent
legal expertise
on the
of
Walter relied
Law-
successor,
later the
and its
the FDIC and
preparing
rence Linnartz and Rork
RTC,
KP
against
suit in
court
filed
federal
appropriate documents
effectuate the
1984-1, and each of the individuals who had
of
Linnartz and Burleson.
withdrawal Daniel
signed personal guarantees:
Bumap,
Walter
Bumaps expected
Both
Lin-
Lawrence
Burleson,
Daniel
Max
and Lester
protect
nartz and Rork would
their individu-
Kelly.
explain
al interests or
conflicts as
by partnership
represented
to and
affected
Linnartz
Daniel
related
were
Lawrence
negotiating
Appellant signed
indemnity
Linnartz and Max Burleson
matters.
only,
Information re-
agreement
as a
not individual-
settlement with
RTC.
indemnity
ly.
undisputed
garding
Bumap, the 1986
It is
that neither Rork nor
Willard
history
partner-
presented any
agreement, and the
Lawrence Linnartz ever
RTC,
ship
provided
although
ner
a conflicts
of KP 1984-1 with
letter or
was
outlining
possible
presented
conflict-
some of this information was
memorandum
least
Daniel,
By the
ing
by
arise
not Lawrence Linnartz.
positions that could
execution
indemnity
agreement,
agreement.
Rork
terms of the settlement
Daniel
Neither
agreed
explain
assign
why
nor
Linnartz could
Linnartz and Burleson
Lawrence
indemnity
rights
their
a conflicts
not
the RTC
under
such
letter was
presented
partners.
agreement against KP 1984-1 and Walter
to the
Rork did recall
informally
Burnap,
granted
agreed judgment to
discussing possible conflicts with
Burnap.
for the full amount of the loan
Walter
But he never had a similar
the RTC
promised
deficiency. The
in turn
not
conversation with Willard
since
RTC
saw,
with,
judgment against Daniel Lin-
spoke
personally
enforce the
Rork never
per-
the RTC was
Bumap during
nartz and Burleson unless
met Willard
the time
wholly
in its efforts to collect
relating to KP 1984-1.
unsuccessful
formed
services
assignment.
agreement
against
under the
Bumap
him October 1990.
sent a
success,
In the event
such
lack
Daniel
demand letter to Lawrence Linnartz in No-
Bumap agreed
pay
Linnartz and
the RTC
against Lin-
vember
and initiated suit
$25,000.
sum
a total
year
nartz and the Linnartz firm a
later.
Rork
and McCamish firm were not added
Following
agreement,
this settlement
September
until
defendants
RTC added
Willard
defendant
Bumap
the federal suit. Walter
and Lester
Rork and the McCamish firm contend that
Kelly
bankruptcy
filed for
and were dis-
year
Burnap’s
by
suit
barred
two
Summary judgment
missed from the suit.
statute
As
mal
of limitations.
deficiency
full
amount of the
was
claim,
practice
Bumap contends the statute
against KP
entered
1984-1 Willard Bur-
not
until
begin
limitations does
to ran
nap in favor
Savings,
of First South
and that
completion
underlying
federal
lawsuit
by
ruling was affirmed
Fifth
U.S. Circuit
by
brought
Savings,
him
of Appeals.
Court
The ease was remanded
alleging
damages
that the amount of his
can
to the
court
review the fairness
be ascertained until the federal
underlying
settlement. The district
purposes.
final for
In support
becomes
all
court ruled
settlement
into
entered
argument
upon Hughes
relies
RTC,
Daniel Linnartz and Burleson
(Tex.
Mahaney
Higgins,
Appellees summary judg- filed for motions practice alleged in prosecu connection with grounds. ment on numerous The trial court Rather, tion Bumap of a claim. defense separate general summary entered three malpractice claims committed Rork, judgments in favor of the McCamish with preparation connection and execution of firm, and both Linnartz and Linnartz corporate and documents. The respectively. firm doctrine, Hughes tolling for rationale prevent being the client forced into
STATUTE OF LIMITATIONS adopting inherently litigation inconsistent Appellees postures Rork and the firm underlying McCamish in the case and sought summary judgment case, part malpractice simply based in inapplicable is present their claim Bumap’s by that suit was barred context. See Ponder v. Brice & al, P.C., by 637, limitations. in Mankoff, was sued the RTC et 889 S.W.2d 643-44 1990, February 1994, and (Tex.App. [14th was entered no Dist.] — Houston 148
n writ) for tolling properly (Hughes provision inapplicable entered regards error eleven alleged malpractice advice these defendants. Point of when two investments). consequences of tax shelter tax is overruled. Bumap four further contends RELATIONSHIP ATTORNEY-CLIENT applies to year statute of limitations firm the Linnartz law moved Linnartz and fraud, contract, claims for breach grounds judgment on the for fiduciary duty. Burnap’s argu breach attorney-client es- relationship was ever no by Malprac case supported ment is not law. Burnap. tablished between them Willard lawyers by a governed claims tice argued that he owed Consequently, Linnartz limitations, regardless of year statute of two duty Bumap, conduct no Estate to the claims. See the label attached legal duty of a could not be the breach 299, Vega, Degley v. causing damages Bumap. writ); proximately 1990, no isti (Tex.App.—Corpus Chr Further, alleged (Tex. firm it Maverick, 259, Linnartz 723 261 S.W.2d Willis the time the 1986), was not even in existence at aff'd, App. 760 Antonio —San agreement by Rork Sandoval, was drafted (Tex.1988); Gabel v. 648 642 398, Bumap. (Tex.App. and executed Willard Antonio 399 —San dism’d). Separating a for writ claim Bumap despite appeal counters On negligence, into claims himself the lack of direct contact between contract, fraud, or names other breach attorney-client relationship change underlying fact that the does not Burnap contends that at was established. professional negligence are based on claims least, Linnartz have advised very should year two limitations governed and are arising from potential him of conflicts Alsup, Sledge v. statute. See of the need changes partnership, writ). previ As (TexApp. Paso — El independent counsel. “[wjhatever Court, ously label stated this collusion, attorney fraud Absent it, legal malpractice is placed a suit for privity duty only parties to those owes a a tort action and thus nature of Dodson, attorney. Berry v. contract with year governs.” statute of limitations two P.C., Nunley Taylor, Maverick, Willis *7 1986), va judgm’t (Tex.App Antonio . —San discovery applies rule to (Tex.1987). by agr., 690 cated 729 S.W.2d this rule the claims. Pursuant to generally has cause of Thus a non-client plaintiff period is until the limitations tolled negligent per attorney for against na discovered the discovers or should have v. Parker Carna formance of work. Sterling Drug, injury. Moreno v. ture 151, han, (Tex.App 156 772 S.W.2d . —Texar Inc., 348, Bur 787 S.W.2d 351 denied). 1989, attorney-client An -kana writ suspected February 1990 nap should have relationship may implied in some cases be him that he First South sued when Hut parties. E.F. from the conduct on the note not insulated was (SJD.Tex. Broum, 371, F.Supp. v. 388 ton 305 1990 by KP 1984-1. October executed 1969); v. Alamo County Duval Ranch Co. Bumap entered when was 627, Co., (Tex.App.— 633 Lumber 663 deficiency, Burnap’s sus million for $1.3 n.r.e.). 1983, Amarillo writ ref 'd confirmed. certainly have been picions would attorney- of an Lin- Even in absence to Lawrence He sent a demand letter may attorney be held relationship, an judgment, stating his client nartz month after the failing party advise a that he Bumap negligent for Although malpractice. for claim party. v. representing the Kotzur firm is not timely Linnartz and the Linnartz sued 254, (Tex.App Kelly, 258 1991, join he not Rork and did . —Cor Carnahan, 1990); v. 772 pus Parker Septem Christi firm until McCamish as defendants Generally negligence timely at 157. such institute Bumap failed ber 1993. evi in the absence of established cannot be against William Rork and his suit party had attorney firm, that the knew trial court dence therefore the McCamish
149
representing
might
assumed that he was
them a
informed his interests
be adverse to
v. Broyles,
matter.
Dillard
633 S.W.2d the
of others involved in the
See
interests
various
636,
1982,
transactions,
(Tex.App. Corpus
643
Christi
he was shocked when
—
denied,
n.r.e.),
repre-
writ ref 'd
cert.
463
he learned that Lawrence
U.S.
Linnartz
(1983).
negotiating
103 S.Ct.
that the was Walter testified affidavit that Carnahan, son. Parker v. joined he told his when he father nership that Linnartz and the McCamish undisputed It is representing partnership that there was no contract firm were “and any between partnership.” and Willard our interests Walter Burnap. Both Rork and Lawrence Linnartz provide legal retained Lawrence Linnartz to acknowledge represented the KP 1984- services other business entities with partnership, they deny but representing which he and his father were involved. Lin- Burnap individually. might delegate Linnartz did draft nartz indicated he some tasks associates, agreement, super- nor did he draft but he would be the any of attorney. the documents vising related the transfer Walter tes- further partnership assets to Kittie give tified that Linnartz continued to Inc. prepared by partnership These documents were and the individuals involved Rork, employed by who was partnership legal the McCamish counsel even after he firm at a time when Linnartz still a repre- left the McCamish firm. Because of partner in the cop- firm. Linnartz Burnap, received sentations Linnartz made to Walter Rork, although ies the documents from he trusted to inform Linnartz him reviewing any did not remember them. potential relationships conflicts or adverse He was listed in the firm records as the that would occur with various billing originating attorney for the work transactions. *8 relating done to both the partnership and the presented Burnap Willard the affidavit of
corporation. Kenyon attorney Terry part of as his contro- Burnap verting summary judgment proof. Kenyon testified that Linnartz and the firm represented opined McCamish his in appellees represented interests that Willard partnership individually both the Burnap partner withdrawal transaction and a in as KP involving 1984-1, Burleson and negligent Daniel and that in such were of representation. Kenyon ap- later transfer KP 1984-1 assets also stated that Burnap pellees apparently Kittie Inc. in created a situation which Willard believe, based his conclusion on the fact Rork Burnap that was entitled to and could believe, signa- reasonably numerous documents for attorneys his that the would in protect ture connection with transac- these two consider and the individual interests tions Burnaps, which affected his individual interests. of of least advise them the Burnap independent Kenyon further he testified that received no need to seek counsel. appellees notice that the not represent appellees negligent failing did stated that were in interests, personal potential his he partners that was never advise the of the con- n withdrawal partners Additionally, of in there is an alternative flicts two attorneys fact issue on whether were Bur- failing to effectuate a release Willard Burnap negligent failing in Willard advise nap’s liability Savings. Final- First South represent that did not him. See Kotzur ly, Kenyon concluded that Lawrence Lin- Burnap Kelly, 791 258. Since negligent representing in Daniel nartz was timely against claim Rork failed to assert his Max in the First Linnartz and Burleson firm he is not entitled to and the MeCamish in Savings utilizing South lawsuit express opin proceed them. We protect appellees’ Daniel’s benefit failure to viability of his claim ion on continued liability Burnap in the First Willard against Linnartz and Linnartz firm now Savings release. South firm are re that Rork and the MeCamish litigation. from the of error moved Points The evidence four, through nine ten sustained. one fact outlined above reveals the existence a STANDING question attorney-client about the relation ship Burnap. plea and Willard between Linnartz filed in abatement contend- ing Burnap partner that as a or ex- theory of filed suit entity has adhered to the Texas partner, not entitled to and that partnership since the Texas Uniform Part Burnap in sold capacity recover that because nership Act thus an was enacted partnership interest in 1988. Linnartz attorney’s representation the cause of action for claimed representation of necessarily does not include only malpractice could held partners. the individual Tex.Rev.Civ.Stat. plea in nership itself. The abatement was (Vernon 6132b, Supp. § Ann. art. 1 cmt. upon Bumap’s denied based statements Bate, 1995); Fenley, Haney v. Deaton and recovery open seeking court that he was not Porter, partner ex-partner as a of KP 1984-1. representation Bur- the evidence of While Lin- In his motion for conclusive, nap individually very is not at the Burnap urged standing nartz lacked be- least a fact issue is raised Rork’s candid liability Bumap’s First cause on the South specific that the intent of admission solely by Savings was created reason of note protect South release was to Willard indemnity Burnap’s agree- execution liability. we Burnap from individual Since ment, partner KP 1984- which he did light must most view evidence open had declared in court Since every indulge in favorable to recovery solely sought that he individu- favor, in his con reasonable inference we Burnap’s capacity, argued al Linnartz clude that a material issue of fact remains conduct could form the basis attorney-client issue existence recovery. action or relationship. County See Duval Ranch Co. affirming opinions federal court Co., 663 at 633. v. Alamo Lumber Burnap clearly judgment against indicate regarding Similarly, fact issues exist wheth the First Burnap’s er, ap- presented, under the circumstances by virtue of his note arises execution failing to pellees committed indemnity agreement, did which he issue conflicts letter connection with the fact, KP 1984-1. That failing to agreement and in obtain however, preclude Burnap’s mal does not repre from Willard before waiver *9 Burnap alleged ap- that practice action. has negotiating senting partners in two former malpractice by preparing pellees committed Savings on their settlement the South indemnity agreement signature for his the Ordinarily nothing improper note. there is advising that without him conflicts attorney representing than more about agree the arise from his execution of could attorney long “so dis one interest as A exists as to whether the ment. fact issue joint repre consequences closes the Burnap such that could circumstances were clients, parties all to all of his and attomey-elient sentation re reasonably that an believe attorney appel- E.F. Hut lationship as as the consent.” himself and well existed between Forestier, Brown, 415 See Rice v. F.Supp. 305 lees. ton v. 388.
151 Likewise, Bumap’s expert granting summary judgment stated his erred in be appellees conclusively circumstances, cause the did not affidavit that under the es con- Burnap tablish that was not a consumer of flicts letter should have been issued appellees’ legal Deceptive services under the partners indemnity agreement when the Appellees Trade Practices Act. never re presented explain Rork them. could not quested summary judgment specific on this why prepared, had not one been and he ground. Appellees contended that attor acknowledged that one had been ney-client relationship never existed between presented but under circum- similar them Bumap, perhaps and and so inferential stances when transferred his ly it be that can said the issue of consumer nership interest to Kittie Inc. However, summary status judg was raised. standing argument Linnartz’ for the fails granted grounds specifi ment can on Bumap’s additional reason that claim is cally requested writing presented in part allegation based appellees his the trial court. See Ave. Ltd. v. 410/West malpractice by failing committed to secure Bank, F.S.B., Texas Trust 810 immunity his liability the First 424 (Tex.App. Antonio —San Savings note, writ). South which specified was the Since consumer status under purpose agreement prepared of the release the DTPA was not even mentioned summary above, judgment, by Rork. As motions discussed we conclude conduct of grant trial summary court did not release, preparing Rork in which he ad- judgment on this basis. protect mits Bumap, was drafted to raises a fact issue appellees about whether undertook foregoing, Based we affirm the provide Burnap represen- with individual judgment of court as to tation. Martin, William Rork and McCamish & P.C. summary judgment granted We reverse the Further, although opin the federal Ingram, favor Lawrence Linnartz and upholding judgment against ions Bumap P.C., Reynolds, Linnartz & and remand the clearly liability indicate his on the First cause to the trial court for trial. note arises virtue CHAPA, Justice, 1984-1, Chief concurring conduct as former in KP dissenting. judgment as a debtor is not somehow limited to his status as a former I majority concur with the opinion in af- partner. general A in a firming summary judgment to appel- as personally is for partnership liable debts Martin, lees William Rork and McCamish & jointly severally with partners. all other However, respectfully P.C. I dissent with F.D.I.C., (Tex. Gray holding majority reverses and 1992), App. judgm’t summary [1st Dist.] va appel- remands as to — Houston by agr., cated lees Ingram, Lawrence Linnartz and Lin- P.C., individually Reynolds, nartz following is liable for the full purposes For opinion, reasons. of this I judgment. amount will Bumap is entitled appel- hereafter address William pursue his cause of action in his individual lant, Ingram, and Lawrence Linnartz and capacity, and he is if entitled to recover Reynolds, P.C., appellees. Linnartz & prove judgment against can that the him was proximately ap- caused SUMMARY JUDGMENTS pellees. The properly trial court could not standard in a review summary judgment enter for Linnartz on the judgment case whether the movant met its standing. basis of Points of error five burden for by establish six are sustained. ing genuine there exists no issue of material fact that it a judgment is entitled to
CONSUMER STATUS UNDER law. Property matter of Nixon v. Mr. Man *10 THE DTPA Co., 546, (Tex.1985). agement 690 548 S.W.2d In eighth points his seventh and When granting summary a trial court’s order of error judgment contends the trial court specify ground does relied 152 (Tex.1963)
on,
McCardell,
331,
may
judgment
if
appeal
we
affirm the
on
369 S.W.2d
337
RAY,
any
(quoting 2
meritorious.
MCCORMICK &
TEXAS
the theories advanced are
1121).
Enters., Inc.,
§
type
LAW OF
This
Rogers v. Ricane
772 S.W.2d
EVIDENCE
(Tex.1989).
76,
“two-pronged
of admission serves as a
as-
79
(1)
a
sault on the admitter’s case”:
true
“[a]s
LEGAL MALPRACTICE
exception
hearsay
prove
to the
rule
(2)
admitted,”
by
the facts
truth of
“since
legal malpractice
A
is
action
Texas
Grimes,
definition
are inconsistent with the ad-
negligence. Cosgrove
v.
based
trial, they
(Tex.1989).
testimony
mitter’s
tend to im-
662,
774 S.W.2d
664
The ele
(1)
credibility.”
peach
Id.
legal
malpractice
ments
a
claim are:
a
(2)
(3)
duty,
duty,
a
breach of
breach
JUDICIAL ADMISSIONS
(4)
proximately
injury,
result
caused the
hand,
judicial
On the other
admission
“[a]
ing damages.
Id. at 666. When a
(1)
during
is:
a statement made
the course of
prior
litigation,
claim arises from
(2)
judicial proceeding,
contrary
is
a
plaintiff
to prove
has
burden
that but
by
an essential fact or defense asserted
attorney’s
negligence,
he or she would
(3)
testimony,
person giving the
that is delib
judgment,
be
and to show what
entitled
erate, clear,
(4) that,
unequivocal,
giv
if
been
amount would have
recovered
effect,
public
is
en conclusive
consistent with
Urban,
judgment.
Coolidge,
Jackson v.
Pen
(5)
based,
policy which
the rule is
(Tex.
Scott,
948,
nington
516
949
&
S.W.2d
party’s
opposing
not destructive of the
is
1974,
App.
[1st
writ ref'd
Dist.]
—Houston
theory
recovery.”
v.
Catherman
n.r.e.);
Lloyd,
Drilling Corp.
MND
v.
see
Bank,
299,
(Tex.App.—
796
State
302
29,
(Tex.App.
[14th
866 S.W.2d
31
—Houston
writ).
1990,
words,
“In
Austin
no
other
writ).
1987,
Texas,
lawyer
a
is
Dist.]
[judicial
relating
a
must be one
admission]
of care that would
held
the standard
fact
which
in favor of the
by
reasonably prudent attorney.
exercised
party may
opposing
be based.” United
(Tex.
Stevens,
291,
Veschi v.
861 S.W.2d
292
Carr,
Fidelity
242
& Guar. Co. v.
States
writ).
1993, no
App.
Antonio
There
— San
224,
(Tex.App.
229
Antonio
fore, expert testimony
attorney
of an
is nec
— San
ref'd).
1951,
pleadings
par
writ
“[Live]
essary to establish this standard of skill and
regarded
judicial
ty are
formal
as
admissions
ordinarily
by
attorney.
care
exercised
an
any
conclusively
fact admitted is
estab
[and]
plaintiff
required
The
is then
to controvert
ease without
introduction of
lished
expert testimony
expert
with other
testi
pleadings
presentation
other evi
Snider,
54,
mony. Anderson v.
808 S.W.2d
Musick,
Am.
dence.” Houston First
Sav.
(Tex.1991). Generally,
attorney only
55
an
(Tex.1983).
764,
judicial
650 S.W.2d
767
duty
party
privity
owes a
to a
of contract
appli
is not limited in its
admission doctrine
Dodson,
Berry
attorney.
Nunley
with the
encompasses
testimony, but
cation to oral
(Tex.
P.C.,
716,
Taylor,
718
“any
statement —whether oral writ
sworn
1986),
App.
judgm’t
Antonio
vacated
— San
judicial pro
of a
ten —made
the course
(Tex.1987). Therefore,
agr.,
ADMISSIONS fact admitted bars City Corpus disputing it.” Herschbach v. admission, extrajudi- An also known Christi, (Tex.App . —Cor cial or an admission inter- admission “ denied). pus Christi writ est, ‘any or act statement made done parties any things, summary judg- or on his Among one of the other prior ap- generally behalf amounts to acknowl- established that which ment evidence party employment edgement pellant that one of the facts had a contract of such never deny rep- appellees; to the issues is not he now with relevant ” time; individually resenting appellant Accident & Indem. Co. v. claims.’ Hartford *11 appellees clearly that to nothing had do with the evidence reflects legal representation gen- that, fact, that in any resulted the in appellant never had direct partnership eral known as Kittie Partners any appellees regarding contact with of the (“KP 1984-1”); appellees that had legal representation. appel- The thrust of nothing do to with the transaction that re- allegations lant’s that because he was original partners becoming in per- sulted the 1984-1, partner at time in KP one he was guarantors pay- sonal of a million note $3.2 indirectly duty by appellees. owed the Association; able to that fact, appellant’s deposition reflects the fol- appellees nothing had to appellant do with lowing question and answer: becoming partner later KP in 1984-1 in Q. Okay. Larry rep- Did Linnartz ever 1985;1 in that when partners Daniel you individually any resent transaction? Linnartz and Max Burleson decided to with- I’m talking Burnap, about Willard individ- from the partnership, they complied draw partner ually, not as a to Kittie? provisions partnership with the for withdraw- partner A. As a he did. That’s all I can ing agreement and reached an with the re- say. maining partners; that Daniel Linnartz and hand, On the other the record reflects that appellee Max Burleson contacted the law appellees plea filed a in abatement contend- Martin, P.C., firm put McCamish & ing appellant that was not entitled recover agreement legal form; although ap- that (as capacity partner in which he sued pellee Lawrence brother of Daniel 1984-1) expartner or KP because had Linnartz, was a member of the McCamish & previously rights transferred all and liabili- time, Martin firm law at the he made known partnership by ties back a bill of sale his conflict of refusing interest concern partner executed when he ceased be a on participate legal representation; that January In appellant’s judi- 1988.2 sworn result, appellee Rork, as a another member pleadings responding cial plea to the firm, legal representation assumed the abatement, appellant following: states the agreement and reduced the partners Contrary to the claims made Defen- to a Mutual Indemnity Agree- Release and dants, right bring this is not lawsuit signed ment which was partners; all the partnership right does arise that time and thereafter until partnership from right interests. The appellee Ingram, firm of Linnartz & pursue legal malpractice this action arises P.C., Reynolds, exist; did not appellant attorney-client relationship out of the any never had any direct with contact existed between Willard and De- appellees regarding legal representation ei- Larry fendant Linnartz. individually partner expart- ther or as a or ner; and that it legal representation is the appellant record also reflects that there- surrounding the Mutual after, Release and Indem- open in an plea court in the abatement Agreement nity which is the center this judicial hearing, reiterated admission that dispute. against appellees cause was not grounded legal representation
Specifically, appellant’s pleadings reflect expartner ner Appellant’s or of KP 1984-1. that his malpractice cause of action open judicial court admission was so convinc- appellees solely all allega- is based ing it judge caused to enter an tions that duty breached a to him 30, 1993, September denying order on arising representation sur- plea abatement, specifically rounding “based Agree- Indemnity Release and Plaintiffs Appellant alleged open ment. statements court that has never that he individually partner seeking partner or as were not relief as a or expartner ex- directly sought legal representa- obtained as KP known Indeed, appellees. tion from 1984-1.” fact, appellant
1. In the evidence reflects that 2. This contention is uncontroverted. partnership only became a be- Walter, urgings cause of the of his son who advantages convinced him of appellant. tax involved for *12 judicial theory properly Undoubtedly, doc Since this meritorious admissions by appellees, the trial court cor advanced Appellant’s has trine been invoked here. granted summary judgment. Rog rectly response pleadings, plea to the sworn ers, 772 at 79. abatement, answers, open deposition during to the trial court court statements summary judgment. I would affirm the judicial plea hearing admis abatement (1) they during sions because were “made (2) judicial proceeding,” they
course contrary to an fact asserted
were essential (3) “deliberate, appellant, were (4)
clear, unequivocal,” the conclusive public policy,
effect is consistent with Cather (5)
man, were
judicial relating admissions fact appel-
which a favor of Fidelity may
lees be based. United States Co., Appellant’s at 229.
Guar. including response to
pleadings, his sworn abatement, pleadings” “live plea were appellant “regarded as a formal which are
judicial admission facts admitted [and] conclusively established the case
[are]
pleadings
COMPANY, Appellant,
or
without the introduction
AMOCO GAS
presentation of other
Houston
evidence.”
Sav.,
American
representation complain he can about existed 6, 1995. Rehearing Overruled Nov. as a result of his status However, appel expartner KP 1984-1. judicial also concede that he
lant’s admissions seeking any damages from re relief
sulting any legal representation that from result of his status as a
existed expartner of KP 1984-1.
Thus, admissions, judicial appel- these conclusively
lant established the basis of action he has chosen to the cause merit,
pursue against appellees is without There-
and must fail his own admissions.
fore, summary judg- appellees are entitled law, appellant’s since
ment as a matter appel-
judicial relieved admissions not fact making proof
lees from admitted appellant disputing also barred
but Herschbach, S.W.2d at 733.
them.