Jampole v. Matthews

acting under are told that a court pleadings, may 13.02 not strike and that JAMPOLE, Jampole, Stanley § William rendered judgment may a default not be Joseph Jampole, Debra E. Bo Daniel This there is an on file. when answer Appel dell, Vinogradov, and Laura Sue 13.02(b)’s argument does not reckon with § lants, language authorizing the to “resolve paternity against the question [non- complying] party” “proof if there is suffi- Schmidt, Douglas MATTHEWS and W. justify judgment. a default cient” to P.C., Brannon, Matthews & n/k/a effect, 13.02 a declaration of authorizes § Matthews, Appellees. & Schmidt paternity regardless pleadings of the when litigant participate refuses to blood 01-91-00312-CV. No. unnecessary tests. It was therefore Texas, Appeals of Court of strike Morales’s answer. (1st Dist.). Houston suggested only one set of It is ordered, may may tests be and that a court March 1993. testing not order a second round of Opinion on Motion for proves indecisive. the first round somewhat May Rehearing That notion is not warranted the lan statute, guage says which without may

limitation that the court order blood holding

tests. Our allows courts to order a tests, expensive,

less initial round of and to if not

order a second round the first does If order

decide the issue. the courts could once,

testing only might common become thoroughness

for them to err on the side of tests, entire some of

and order an set of might unnecessary. The statute

which testing by step,

wisely step authorizes preliminary

therefore when the tests are

determinative, are, par often always pay

ties will not have to for addi testing. expressly au

tional Section 13.02 B, a court to order tests A and

thorizes proves if

then to cancel test B test A may We think the court also

conclusive.2 test B if

order test A and then later order did

the first test is inconclusive. The court ordering further tests.

not err judgment is affirmed. alleged 13.02(a) father is says part: to establish that the “The court shall sufficient 2. Section testing necessary child, require to ascer- in its order costs of the father of the or if the not pater- possibility father’s tain the nity of the testing the court have reached an amount that require that the tests exclude at and shall may greatest determines to be the amount population percent of the male from the least 95 reasonably parties be borne one or more child, being possibility ex- the father 13.02(a) (Vernon § the suit." Tbx.Fam.Code Ann. permit cept court shall the omission of Supp.1992). testing testing any further if has been conducted costs at costs and court Williamson, Doherty, money as case Larry Jimmy G. J. liability cases interest, products Houston, appellants. recovery, deal of risk good involved Burkett, Lee, Douglas Timothy F. Linda closer percent and because Matthews, Houston, appellees. the closed fee.2 Matthews firm’s standard MIRABAL, family that, Jampole SAM BASS Before if the by saying letter remain 33 n O’CONNOR, JJ. percent, felt the fee should percent. stay at 33Vs would OPINION Jampole and Stanley In June late MIRABAL, Justice. change the verbally agreed to Matthews recovery up to any take-nothing percent to 33½ fee appeal This is an from a recov- any recovery percent million and 50 denying to $2.75 August fee amount. On attorney’s their of that ery clients who asserted excess 11, 1986, Jampole family and remand. and GM excessive. We reverse the million settlement. GM agreed to a $3.5 Goodley Jampole died Judith April payment made the final settlement Chevy her injuries from suffered when 22, 1988. in the rear another car Vega was struck year, ap- caught fire.1 That same 17, 1989, On October husband, Stanley, and chil- pellants, her firm. against filed suit Matthews Daniel, Debra, dren, William, and Laura plaintiffs alleged they were entitled (the agree- Jampole family), signed an Sue higher damages paying a fee than (the Attorney agreement) ment fee with agreement, for in the fee because called authorizing him to file suit Arthur Combs (Archer overreaching the defendants’ against other driver and the Chevrolet (Tex.1964)), Griffith, consideration, would Company. As Combs duty, of con- fiduciary breach percent settlement 33½ receive Deceptive Trade tract, of the violation trial, percent if collection made before or (DTPA),3 negligence, gross Practices Act during was made or after or settlement fraud, deceit, misrepresen- negligence, ap- trial. referred the case to Combs gener- filed When the defendants tation. (Matthews) Douglas pellees, W. Matthews as an and asserted al denial (the Schmidt, Matthews & Brannon defense, plaintiffs amended affirmative firm). agreed in Matthews Combs discovery rule. assert the pleading per- writing that the firm would receive they According plaintiffs, attorney’s fees collected cent of the total appro- these claims within instituted remaining 40 receive the and Combs would after Defendants priate time limitations February 1981. percent. Combs died money August, took their fraudulently brought against suit General attorney/client Defendants’ after (GM), in Au- and the case settled Motors accounting ended with final relationship short- gust 1986before trial. June April, payment by Defendant settled, ly the case Matthews sent before discovered, and/or or late giving them a Jampole family letter to the in mid 1989 have known knew should report. He also asked status Defendants. wrongdoing of the fee to raising the firm’s family to consider 12, 1990, Matthews and percent On October percent from 33½ summary judgment. of its firm filed a motion large amounts firm had invested (Tex. appeal Matthews’ letter stated Touchy, bond filed. Jampole v. 673 S.W.2d 569 1. See completed appeal orig. proceeding). been an because there had Court, Supreme the firm's standard the Texas Matthews, years According the firm’s percent. actually be 45 fee would percent if collection or fee had been 40 standard filed, and 45 made after suit was settlement was (Vernon 1987). 17.41 § 3. Tex.Bus. &Com.Code Ann. percent settlement was made if collection or given appeal and an had been after notice of They sought summary judgment (Tex.1984). on the summary judgment for the following grounds: two defendant, disposing case, of the entire 1. The statute of limitations for causes if, proper only law, as a matter of arising out rendering upon any could not succeed theo services is two and this pleaded. ries Havens v. Tomball Commu brought suit was than two [more nity Hosp., years] plaintiffs after the knew and App. 1990, writ de [1st Dist.] —Houston should have known of facts nied); Rung, Dodson v. giving rise to a cause of action. [14th Dist.] plaintiffs 2. The replead failed to in ac- writ ref’d pro Once the defendant cordance with the court’s order and the duces sufficient evidence to establish the defendants were plain- entitled to have right to summary judgment, a the stricken, tiffs’ pleadings alterna- [and] must set forth give sufficient evidence to tively additionally and to have this mo- rise to a fact issue to summary avoid a summary tion for judgment granted as judgment. Burger, “Moore” Inc. v. Phil to all claims. lips Co., 934, Petroleum 492 S.W.2d 936- The granted trial court the motion for sum- (Tex.1972). mary judgment in favor of Matthews and the firm specifying grounds without the If a defendant moves for sum relied on. mary judgment based on an affirmative error, In their first of the defense, the prove defendant's burden is to family contend the trial court erred in conclusively all the elements of affir the granting summary judgment based on limi- mative defense as a matter of law. Mont (1) tations because the statute of limita- gomery, 669 S.W.2d at 310-11. Unless the tions for fraud is four years, and they conclusively movant establishes the affir presented fraud, evidence of defense, mative the non-movant (2) the statute of limitations for a has no in response burden to a motion for breach of contract years, claim is four summary judgment filed on the an basis of they presented evidence of breach of con- affirmative defense. Torres v. Western tract. Co., Casualty 50, & Sur. 457 S.W.2d The appellate standard for review of a (Tex.1970). summary judgment for a defendant is summary judgment whether the proof es summary judgment cannot be tablishes, law, as a matter of that there is any grounds affirmed presented on not genuine no issue of fact as to one or more summary the motion for judgment. Hall of the essential plaintiff’s elements of the County v. Harris Water Control and Im cause action. Gibbs v. General Motors 50, provement 863, Dist. No. 683 S.W.2d 827, Corp., (Tex.1970). 450 S.W.2d 1984, [14th Dist.] —Houston movant has the burden to show that there writ.). no When a trial court’s order does genuine is no fact, issue of material specify grounds not the relied on for its that it is entitled judgment as a matter ruling, will be af of law. Nixon v. Mr. Property Manage if any firmed of the theories advanced are Co., (Tex. ment 548-49 meritorious. Insurance Co. North 1985). Evidence favorable to the non-mov- Co., Security America v. Ins. deciding ant will be taken as true in wheth disputed er 410 (Tex.App. there is a material fact issue [1st Dist.] —Houston precludes summary judgment. writ). Id. no Every reasonable inference must be in parties agree

dulged in the usual favor of the non-movants and doubts resolved in their statute of years favor. limitations is four for Montgom ery Kennedy, v. 310-11 years fraud4 and four for breach of con- Khalaf, 4. Williams v. (Tex. 1990). for governs the A cause action four-year If of limita case.

tract.5 statute applies, had run on the in the nature of legal malpractice tions limitations not is fraud and of contract causes two- governed and is tort thus action when suit was filed on October year limitations statute. accrued because the causes action (citations omitted). this We read at 644 Id. August earliest June meaning as that when decision Stanley Jampole malpractice negligence based is sued However, agreed modify fee. Mat DTPA, the limitations and violations argue firm thews years. do not understand period is two family’s is really cause of action one supreme saying legal malpractice, and no matter what legal period is two given cause of label is regardless causes malpractice, of how the malpractice governed by two-year stat Willis, action are formulated. They rely ute of limitations. on Willis limita- asserted with a cause of Maverick, (Tex.1988), S.W.2d 642 longer years. period than two tions (Tex. Nguyen, Pham v. 763 S.W.2d 467 de [14th Shapiro, Bank v. Citizens State nied), Alsup, Sledge v. bank, executor of the former husband’s 1988, writ), no v. Paso Black against estate, —El the continued his lawsuit Wills, (Tex.App. 758 809 S.W.2d —Dallas lawyers represented had him and his who Sandoval, writ), no Gabel v. 648 dealings, his in various business wife 398 S.W.2d Antonio —San proceeding. in their divorce wife dism’d), v. Turley, writ Woodburn at 378. The lawsuit six S.W.2d (5th Cir.1980), F.2d 589 and Citizens State action, including negli- different causes of (Tex.Civ. Shapiro, Bank v. 575 S.W.2d 375 duty lawyers, gence discharging in n.r.e.). App. Tyler They writ ref 'd — contract, warranty, of of breach acknowledge contrary holding a in Estate Ty- misrepresentation. Id. at 378-79. The (Tex. Degley Vega, 797 S.W.2d 299 of Appeals of stated: ler Court 1990, writ). App. Corpus Christi no — assume, deciding, that may without We Maverick, attorney Willis v. the draft- allegations appellant’s petition the ed the for agreement divorce settlement legal malprac- for a cause of action state both husband and wife. The husband tice, stated in whether it be terms urged the attorney provision to delete the disciplinary intentional violations allowing the to reside in the marital wife rules, negligence per se. negligence, or home, and provision the was Ac- deleted. it, in placed label is Whichever cording wife, to the the assured nature of a tort action thus deletion, despite her she would applies. limitations two-year statute of agree still have to before the home was The noted 386. court also that the Id. at year sold. 760 at 643. after S.W.2d period fraud limitations for an divorce, the received notice of wife at years. deceit was Id. 380. To- two partition to force husband's intent day, period for is four the limitations fraud later, year home. Id. A the wife sued the Williams, at Fi- years. 658. malpractice attorney, alleging legal and vi- nally, the court the contract allega- stated olation of the DTPA. There was no nothing more in the trial at 647. cause of action did than reit- tion fraud court. Id. appear negligence, Nor does there to have a claim the causes of action for been erate deceit, The supreme of breach of contract. fraud misrepresentation, and stated: period the limitations two which was if it con- outset, years. Id. at 387. Even was a express agreement

At we action, the court there appeals’ the court of tract cause noted with determination two-year allegation statute of limitations in contract was Williams, (Tex.Civ.App. S.W.2d at v. Bank French writ [1st Ass’n, Nat'l Southwest ref'd writing, two-year and a period regardless limitations of how the causes of action are applied to oral contracts. Id. As we read formulated. Bank, applica- Citizens State there was no Nguyen, have reviewed Pham v. four-year ble statute of limitations in- Wills, Black v. and Gabel v. Sandoval. volved. holdings For their that a cause of action Turley, Woodburn v. Woodburn sued legal malpractice is a tort con attorneys his former malpractice be two-year trolled statute of limita

cause failed to file notice of intent to regard tions without to the cause of action sue Age under the federal Discrimination asserted, they rest on Woodburn and Citi Employment in Act of which was Pham, zens State Bank. 763 S.W.2d at prerequisite maintaining under lawsuit 469; Black, 814; Gabel, the act. 625 F.2d at 591-92. He later S.W.2d at 399. As have discussed amended his cause of action to include above, Woodburn followed Citizens State breach of contract. The federal district inquiring Bank without into what limita court, relying Bank, on Citizens held State period applied tions to what cause of ac malpractice against attorneys actions Woodburn, tion. Unlike the case tort, regardless Texas sounded in of how period was the same for all complaint. framed his plead causes of action State Citizens Therefore, F.2d at 592. the court affirmed Bank. the dismissal of Woodburn’s claim because two-year it was not filed within the limita brought of Degley Estate period. tions Id. The court also relied on probate alleg a motion in court to recover Taylor, Pack v. edly charged excessive fees' Civ.App. Worth ref’d fraud, fiduciary estate because of breach of —Fort n.r.e.), Rosser, Cox v. 75 duty, overreaching. Corpus (Tex.Civ.App. 1979, writ ref’d Appeals legal of held —Eastland Christi Court that n.r.e.), Davis, and v. 148 S.W.2d malpractice, fiduciary duty, breach of Crawford (Tex.Civ.App. —Eastland overreaching properly classified as were writ). The cause of action in those cases subject torts under to a Willis were negligence. Accordingly, do not we two-year period. limitations Estate of find authority Woodburn be for the Degley, at 302-303. The also 797 S.W.2d court proposition legal malpractice that all ac held that a cause of action for fraud is subject tions two-year are to a limitations subject classified as an action on debt and period regardless of the cause of action four-year period. to a limitations Id. at plead. Daniel, see v. Rhodes Gordon & Sledge Alsup. (1909). We have studied v. The Tex. 116 S.W. plaintiff sought monetary damages there distinguish, Corpus as the Christi alleged attorney malpractice in a real did, Appeals Court of an between action for estate transaction of based breach con- negligent legal practice and one for fraud tract, legal malpractice, and fraud. 759 allegedly by committed an relat- S.W.2d at 1. The El Paso Court of Ap- ing to establishing charging of fees Willis, peals, relying on stated that a cause Similarly, distinguish for services. be- legal malpractice in negligent legal tween an practice action for governed by nature of a tort and the two- relating and one for breach of contract year limitations statute. Id. at 2. The Accordingly, excessive fees for services. stated, nothing court further that was to appellants’ point we sustain the first “fracturing gained by a cause of action proper error period limitations arising improper out of bad advice or for both fraud and breach of contract is representation negligence, into claims for years. four contract, fraud or some other breach above, error, As name.” Id. we noted we do not their second the Jam- holding pole assert, family part, read limitations Willis that the trial legal malpractice, period is two in granting summary judgment erred limitations, mary judgment on the basis fact issue on limitations because a based rule, discovery raises the discovery plaintiff under the rule. was raised discovery negate must the defendant applies two-year statute of limitations of law proving as a matter by rule of action Jampole family’s causes to the of fact about genuine issue there is no than those for fraud other or should discovered plaintiff when statute is tolled contract. Unless the injury. the nature of discovered have rule, theory, discovery or some other 266, 267 Thomas, 786 S.W.2d Burns v. causes of ac- limitations will bar the other Witt, (Tex.1990); 561 S.W.2d v. Weaver tion.6 (Tex.1977); & Rose v. Baker peti- amended their (Tex.App.— Botts, discovery Mat- plead the rule after tion to denied). 1991, writ Houston [1st pled and the firm the statute thews proceeds to trial on the Only a case original to the limitations their answers the burden shift to merits does family’s third amended suit. The requirements of the prove the plead states, petition part: Mer discovery v. M. rule. William Woods they are enti- Plaintiffs would show that (Tex.1988). Inc., cer, discovery rule tled to benefit Supreme Court as set forth the Texas exception discovery rule is Maverick, 760 case in the of Willis of action general rule that a cause (Tex.1988). regard, In this S.W.2d 642 au come into existence facts accrues when the Defen- plaintiffs would assert reme judicial thorizing a claimant seek fraudu- dants firm] [Matthews Weaver, 550 S.W.2d dy. Robinson v. wrongdoing their lently concealed Rose, at 810. (Tex.1977); De- through conspiracy of silence. running of the rule tolls the applied, When equitably estopped to assert fendants are until the the statute of in- Plaintiffs statute of limitations. of rea discovers, through the exercise appropri- these claims within the stituted discover, diligence should care and sonable time limitations after Defendants ate injury. v. Ster of its Moreno the nature money August, fraudulently took their Inc., 787 ling Drug, attorney/client after Defendants’ Texas 1990); Rose, at 810. The accounting relationship ended final with discovery applied has Supreme Court payment by April, Defendant in 1988 cases, includ rule to a limited number 1989, discovered, they or late and/or violations, DTPA ing: legal malpractice, in mid 1989 knew or should have known 351; Moreno, at and fraud. wrongdoing by the Defendants. 644-45; Rose, 816 Willis, at Further, alternative, plaintiffs and in the at 810. S.W.2d they would show that have instituted this appropriate time limita- suit within summary judg In their motion the termination of attor- tions after ment, argued firm that Matthews ney/client relationship plain- between giv Jampole family knew of the facts Plaintiffs tiffs and the defendants. cause of action no later ing rise to their such show unto the Court that would 11, 1986, of the final August the date than begin did not to run nor did They to pointed Stan settlement with GM. upon the case the cause of action accrue deposition, he testified ley Jampole’s where attorney/client time that the until such August the final settlement that before in late 1989. relationship was terminated he 11, his children that he discussed with seeking thought was unfair and the firm moved Matthews Matthews “eleventh hour” part negotiate limita a new fee at the summary judgment based in might Matthews for sum and that he was concerned a defendant moves tions. When 17, August on October 1989. The or 6. Suit was filed at the earliest in June causes of action accrued 64 firm,

delay agree' seeking take-nothing the settlement if he did not addition to a higher a fee. the statute of based on limitations, requested Jampole family respond that the is- family’s pleadings be stricken as sanctions they sue is not there was when discovered sustaining for violation of order renegotiation agreement, a of the fee but summary judg- special exceptions, and that they when realized or should have realized granted then be for failure to state a ment right that Matthews and the firm had no They claim. asserted that the third amend- renegotiate agreement. They the fee as- petition ed did not state act or omission they sert there is a fact issue about by them that form the basis of a would realized or should have realized that legal a con- cause series right such existed. clusions, wholly provide suffi- failed to discovery in a Under the rule prepare defense. cient information to ease, malpractice run limitations starts to pleadings The trial court did not strike the from the date the claimant discovers or judgment stated that the its final should have discovered the facts establish plaintiffs nothing by “take virtue of ing the elements of the claimant’s cause of causes of action.” Willis, 644; action. 760 S.W.2d at Hart general rule sum sough Steinberg, S.W.2d mary judgment may to resolve not be used denied). writ One —Dallas pleadings a cause of whether fail to state of the elements of the cause of action al Co., 652 Massey action. v. Armco Steel leged by Jampole family is that Mat (Tex.1983); Dep’t Texas S.W.2d firm thews and the overreached and Herring, Corrections v. S.W.2d fiduciary duty breached their to inform the (Tex.1974); Indep. v. Hitchcock James Jampole family that and the firm Dist., (Tex.App.— Sch. were not entitled to seek an increase in denied). writ Houston [1st Dist.] Jampole family specifically fees. The al given oppor Only party after a has been discover, leged did not and rea amend, tunity special exceptions after discovered, sonably should not have sustained, may the case dis have been fiduciary duty breach of the until well with a claim. Mas missed failure to state filing two of their suit on October (citing sey, Herring, 652 S.W.2d at 934 firm 1989. Matthews and the did not 10); James, S.W.2d at law, prove, as a matter of Laboratories v. Brown & Ruth Geochem discovered, reasonably should Laboratories, 17, 1987, prior have discovered to October ref’d [1st Dist.] of, of, the existence fiduciary duty. Municipal In Brubaker v. Brookshire Accordingly, sustain of error District, 808 Water S.W.2d two. 1991, writ), no [14th Dist.] error, point In third judge trial the court held after the Jampole contend the trial court special exceptions and the sustained rendering summary judgment on erred petition to amended later filed still failed any special exceptions, the basis of to the proper state a cause of for it was extent it did. judge grant summary judg the trial to special and the firm filed ex- ment. The on Herring court relied Jampole family’s to ceptions second Winograd Au City v. Clear Lake Water granted petition. The trial court amended thority, (Tex.App.— exceptions and some of the directed the Houston ref’d [14th Dist.] Jampole family replead days. to within 30 However, circumstances, Herring in such They petition. did so their third amended Winograd in dicta that stated dismiss support proper. In of the motion for Herring, their brief al was 513 S.W.2d at summary judgment, Matthews and the Winograd, 654 S.W.2d at 863. present from the lar, distinguishable for the proper

It would not have been Rose, irrelevant it was case. did, summary grant if he judge, trial pled had that, although opinion on the failure in this case based judgment defense, discovery rule raising the facts pleadings to con- plaintiffs’ amended of the stated: a lack of evidence. ex- there was granting special to the order form ap- Accordingly, we sustain evidence ceptions. summary judgment There is no supports of error. pellants’ third facts that later discovered action, and there- [plaintiff’s] cause remand judgment We reverse fore, of fact about when genuine issue the cause to the trial court. father) (or discovered [plaintiff] her of the the nature have discovered should O’CONNOR, J., in the participating not injury. decision. 811.1 Rose, ON MOTION OPINION evi- contrast, summary judgment REHEARING FOR deposi- includes present in the case dence firm, and the have Appellees, Matthews Jampole, one testimony Stanley from tion rehearing, we which filed a motion the effect that was plaintiffs, to of the brief comment. overrule with an- spoke he June not until the acts attorney, that he discovered other emphasize that this case clarity, For inappropri- firm were of Matthews the is- present for determination does not grounds had to the extent ate the firm had Matthews and sue whether Again, the acts them. whether to sue agreement right renegotiate the fee actually inap- the firm were Matthews and they family, or with the whether us on this not an issue before propriate is firm properly did so. Matthews and the judgment appeal. summary summary grounds for did not assert as a judgment they are not liable rehearing. the motion for We overrule did assert as matter of law. Neither judgment there grounds summary BASS, J., participating. also fiduciary duty under Archer v. is no Grif- (Tex.1965), pro- fin, 390 S.W.2d 735 which renegotiating from a fee hibits

agreement during existence of the at- Rather, only

torney-client relationship. grounds

asserted procedural grounds, running

were applicable statute of limitations SMITH, Jr., Appellant, Moses suit, failure appellants’ and that the barred Jampole family in accor- replead court’s order entitled dance with the trial Texas, Appellee. The STATE summary judg- the firm to Matthews and No. 12-91-00008-CR. intend no comment on the mer- ment. We Texas, Appeals of allegations Court of Jampole family’s its of the firm, Tyler. against Matthews and appeal are not before us on this such issues April summary judgment.

Secondly, note that Rose v. Baker &

Botts, denied), although simi- [1st submitting her own appears opinion issue from the in Rose that

1. It summary judg- presented her bur- sufficient failed to meet defendant evidence. The thereby judgment, ment evidence to entitle shifting den. to raise a fact the burden to the

Case Details

Case Name: Jampole v. Matthews

Court Name: Court of Appeals of Texas

Date Published: May 13, 1993

Citation: 857 S.W.2d 57

Docket Number: 01-91-00312-CV

Court Abbreviation: Tex. App.