First National Bank v. Douglass ( 1998 )


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  •                      REVISED, June 17, 1998
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    _____________________
    No. 97-10167
    _____________________
    THE FIRST NATIONAL BANK OF DURANT,
    Plaintiff-Appellant,
    versus
    TRANS TERRA CORPORATION INTERNATIONAL, ET AL.,
    Defendants,
    LANE & DOUGLASS and DON R. LANE,
    Defendants-Appellees.
    No. 97-10914
    THE FIRST NATIONAL BANK OF DURANT,
    Plaintiff-Appellant,
    versus
    MALCOLM C. DOUGLASS,
    Defendant-Appellee.
    _______________________________________________________
    Appeals from the United States District Court for
    the Northern District of Texas
    _______________________________________________________
    May 27, 1998
    Before REAVLEY, JONES and BENAVIDES, Circuit Judges.
    REAVLEY, Circuit Judge:
    The principal issue in this diversity case is whether a
    lender can pursue a negligence claim against an attorney who, in
    the course of representing a borrower, submits an inaccurate
    title opinion to the lender.   Because we hold that Texas law
    allows for such a claim under the facts presented, we reverse.
    BACKGROUND
    Tim Epps was the president and owner of Trans Terra
    Corporation International (Trans Terra).   Trans Terra owned
    interests in six oil and gas wells known as the Ledrick wells,
    located in Roberts County, Texas.    Attorney Malcolm Douglass, of
    the firm of Lane & Douglass, prepared a lease on the Ledrick
    wells for Epps in 1990.   In the course of preparing the lease and
    a 1992 opinion letter, he personally went to the Roberts County
    courthouse to examine title records on the wells.   Thereafter he
    prepared numerous title opinions on the wells purporting to show
    the ownership interests of Trans Terra.    In preparation of these
    later opinions he did not examine courthouse records for the
    documents affecting the title, but instead relied on information
    provided to him by Epps and a landman, Chuck Robinson.
    In October of 1993 Epps approached appellant First National
    Bank in Durant (the Bank), seeking a $2 million loan to Trans
    Terra, to be secured by Trans Terra’s interest in the Ledrick
    wells.   In considering the loan request, the Bank reviewed 1993
    title opinions Douglass had prepared for Trans Terra.    These
    title opinions were addressed to Epps and Trans Terra.
    2
    In November of 1993 the Bank agreed to loan Trans Terra $1.5
    million, provided that the Bank receive an updated title opinion
    addressed to the Bank.   Attorney Ben Munson documented the loan
    transaction for the Bank by preparing all of the loan documents
    except the title report.   He prepared a promissory note and a
    deed of trust providing a description of the collateral derived
    in part from Douglass’ title opinions.    The property descriptions
    state that Trans Terra had a .33 net revenue interest in three of
    the Ledrick wells and a .48761 net revenue interest in the other
    three Ledrick wells.
    The loan was set for closing on November 19.    On November 18
    Munson faxed Douglass a letter requesting a title opinion on the
    Ledrick wells that was (1) “dated within 30 days of November 19,
    1993,” and (2) addressed to the Bank.    Douglass had no prior
    notice that he was to prepare such a title opinion.    Epps flew to
    Oklahoma for the November 19 closing.    Bank officers and Munson
    attended the closing on behalf of the Bank.    Epps did not bring
    the title opinion the Bank expected.    Epps called Douglass and
    requested the opinion.   This conversation was made on a speaker
    phone in the presence of Munson and the Bank personnel.    Epps
    told Douglass that he had promised the Bank a title opinion and
    asked Douglass to prepare it.   Munson recalled that Epps told
    Douglass he was in the process of closing a loan and needed a
    title opinion directed to the Bank as soon as it could be
    completed.   Douglass stated that he did not have time to prepare
    the opinion that day.    Epps and the Bank agreed to sign the loan
    3
    documents with the understanding that the loan would not fund
    until the title report was received.
    On the following Monday, November 22, Douglass forwarded a
    title opinion to the Bank.   As requested, this title opinion was
    addressed to the Bank.   It states that the “title opinion is
    rendered solely and exclusively for your benefit.”    It also
    states that Douglass has “examined the Deed Records of Roberts
    County, Texas, from inception of title to the date of this
    opinion as to the captioned acreage.”   In fact, Douglass had not
    examined records at the courthouse to the date of the opinion,
    and had not received any new information from the landman,
    Robinson.
    Trans Terra defaulted on the loan.   The Bank proceeded to
    foreclose on the collateral, namely Trans Terra’s interests in
    the Ledrick wells.   The November 22 title opinion and earlier
    title opinions prepared by Douglass were incorrect.    For example,
    Douglass later wrote the Bank in December of 1994, informing it
    that Trans Terra’s net revenue interest on the Ledrick 55-1 well
    was .039375, versus .33 as represented in the November 22 title
    opinion, and the net revenue interest in the Ledrick 55-4 well
    was .028150, versus .33 as represented.   In preparing the title
    opinion Douglass failed to discover certain instruments which
    caused Trans Terra’s interests in the Ledrick wells to be
    substantially smaller that those represented in the title
    opinion.    The Bank’s expert testified that Douglass was negligent
    4
    in preparing the title opinion without having examined the
    courthouse records.
    The Bank sued Trans Terra, Epps, Douglass, Lane & Douglass,
    and Douglass’ law partner Don Lane.   Trans Terra and Douglass
    filed for bankruptcy.   Proceedings against Trans Terra and
    Douglass were severed and administratively closed.   The Bank and
    Epps later entered into an agreed but uncollectible judgment.
    The case proceeded to trial against the law firm and Lane, based
    on theories of legal malpractice and negligent misrepresentation
    on the part of Douglass.   The jury sided with the Bank, finding
    an attorney-client relationship between Douglass and the Bank,
    and negligence on the part of Douglass.   It awarded damages in
    the amount of the deficiency on the loan.
    The district court granted a post-verdict motion for
    judgment as a matter of law in favor of defendants Lane and the
    law firm.   It concluded that under Texas law the Bank was not
    Douglass’ client, and therefore could not recover against these
    defendants.   Douglass then dismissed his bankruptcy case,
    notified the district court that the automatic stay had been
    terminated, and moved for summary judgment based on the court’s
    judgment in favor of Lane and the law firm.   The court granted
    summary judgment in favor of Douglass, consistent with its prior
    ruling that the absence of attorney-client privity between the
    Bank and Douglass precluded a recovery for the Bank.
    The Bank appeals the judgment in favor of Lane and the law
    firm, and the separate judgment entered in favor of Douglass.
    5
    Appellees concede that if the judgment as a matter of law in
    favor of Lane and the law firm must be reversed, the summary
    judgment in favor of Douglass cannot stand.
    DISCUSSION
    A judgment as a matter of law is warranted if the facts and
    inferences point so strongly and overwhelmingly in favor of one
    party that reasonable people could not arrive at a verdict to the
    contrary.1    In this diversity case, we must of course endeavor
    to decide the case as the Texas Supreme Court would decide it.2
    A.   Attorney-Client Privity and Negligent Misrepresentation
    The district court concluded that a reasonable jury could
    not find an attorney-client relationship between Douglass and the
    Bank.    The Bank argues that there was sufficient evidence to
    support such a finding, and alternatively, that the Bank can
    recover under a negligent misrepresentation theory irrespective
    of an attorney-client relationship.    We find merit with the
    latter argument.
    Texas law is clear that a legal malpractice claim requires
    proof of an attorney-client relationship between the plaintiff
    and the defendant attorney.    In Banc One Capital Partners
    Corporation v. Kneipper, we explained:
    1
    Texas Farm Bureau v. United States, 
    53 F.3d 120
    , 123 (5th
    Cir. 1995).
    2
    Texas Dep’t of Housing and Community Affairs v. Verex
    Assurance, Inc., 
    68 F.3d 922
    , 928 (5th Cir. 1995); Jackson v.
    Johns-Manville Sales Corp., 
    781 F.2d 394
    , 397-98 (5th Cir. 1986)
    (en banc).
    6
    In order to establish liability for professional
    negligence or legal malpractice, the [plaintiffs] must
    show the existence of a duty owed to them by [the
    attorney], a breach of that duty, and damages arising
    from the breach. Under Texas law, there is no
    attorney-client relationship absent a showing of
    privity of contract, and an attorney owes no
    professional duty to a third party or non-client.3
    This principle was confirmed in Barcelo v. Elliott,4 where
    the Texas Supreme Court held that an attorney who negligently
    drafts a will or trust agreement owes no duty of care to the
    beneficiaries of the will or trust.      The court noted that the
    “potential tort liability to third parties would create a
    conflict during the estate planning process, dividing the
    attorney’s loyalty between his or her client and the third-party
    beneficiaries.”5       It reasoned that “the greater good is served
    by preserving a bright-line privity rule which denies a cause of
    action to all beneficiaries whom the attorney did not represent.
    This will ensure that attorneys may in all cases zealously
    represent their clients without the threat of suit from third
    parties compromising that representation.”6      It also expressed
    concern that “[w]ithout this ‘privity barrier,’ the rationale
    goes, clients would lose control over the attorney-client
    3
    
    67 F.3d 1187
    , 1198 (5th Cir. 1995) (citations omitted).
    4
    
    923 S.W.2d 575
    (Tex. 1996).
    5
    
    Id. at 578.
         6
    
    Id. at 578-79.
    7
    relationship, and attorneys would be subject to almost unlimited
    liability.”7
    In support of the existence of an attorney-client
    relationship between Douglass and the Bank, the Bank points out
    that the November 22 title opinion was addressed to the Bank, and
    states that it “is rendered solely and exclusively for [the
    Bank’s] benefit.”      Appellees Douglass, Lane, and Lane & Douglass
    (hereinafter the lawyers) point to evidence rebutting the
    existence of an attorney-client relationship.     The Bank had its
    own counsel, Munson.     Munson’s letter to Douglass requesting the
    preparation of the title opinion states that “[i]t is my
    understanding that you represent Trans Terra Corporation
    International,” the borrower.     Douglass never billed the Bank for
    his services, and consistent with lending practices, the borrower
    paid all the closing costs, including the legal fees of Douglass
    and Munson.    Douglass testified that his clients were Trans Terra
    and Epps.   Further, the title opinion states in its opening
    sentence that it was prepared at the request of Epps.
    We agree with the district court that the lawyers were
    entitled to judgment as a matter of law on the legal malpractice
    claim, because no attorney-client relationship existed between
    Douglass and the Bank.     The mere fact that the November 22 letter
    was addressed to the Bank, or states it was prepared for the
    benefit of the Bank, is insufficient to establish an attorney-
    client relationship.     In Bank One, the opinion letter in issue
    7
    
    Id. at 577.
    8
    was addressed to the plaintiff investors, and stated that it was
    furnished solely for their benefit, yet we held as a matter of
    law that no attorney-client relationship existed between the
    investors and the defendant law firm retained by the issuer of
    the securities purchased by the plaintiffs.8    Further, the
    statement in the opinion letter that it was rendered solely and
    exclusively for the Bank’s benefit must be read in context.    The
    next sentence states that “[i]t is not a representation of the
    title to the subject acreage to any other party.”    The disclaimer
    was plainly intended to protect Douglass from claims of reliance
    by parties other than the Bank, rather than to manifest an
    intention to create an attorney-client relationship.
    An attorney-client relationship can arise by express
    agreement or by implication from the parties’ actions.9
    However, courts will not readily find an implied relationship
    “absent a sufficient showing of intent.”10    In Banc One, we held
    as a matter of law that neither an expressed nor implied
    attorney-client relationship existed based on a single letter
    addressed to plaintiffs and purporting to give an opinion solely
    for their benefit.
    Likewise, a rational jury could not find an implied
    attorney-client relationship in this case based on the November
    22 title opinion, where (1) Douglass did not bill the Bank for
    8
    Banc 
    One, 67 F.3d at 1199
    & n.21.
    9
    
    Id. at 1198.
         10
    
    Id. 9 his
    services, (2) the Bank had its own counsel, (3) the Bank’s
    counsel stated in his November 18 letter his understanding that
    Douglass represented Trans Terra, not the Bank, (4) Douglass
    testified without qualification that his clients were Epps and
    Trans Terra, not the Bank, and (5) the title opinion states that
    it was prepared at the request of Epps.11   The attorney-client
    relationship is contractual in nature.12    Whether the contract is
    express or implied, there must be a meeting of the minds that the
    attorney will render professional services to the client.13    An
    “implied” contract merely refers to the manner of proof; the
    meeting of the minds is inferred from the conduct of the parties
    or the circumstances.14   On these facts, a rational jury could
    not infer a meeting of the minds that Douglass would serve as
    attorney for the Bank.
    The Bank argues that the testimony of its attorney expert
    supports a finding of an express or implied attorney-client
    11
    Cf. Kotzur v. Kelly, 
    791 S.W.2d 254
    , 258 (Tex. App.--
    Corpus Christi 1990, no writ) (holding that fact issue precluded
    summary judgment on issue of implied attorney-client relationship
    where attorney admitted that he knew that plaintiffs did not have
    a separate attorney, and charged plaintiffs for his services.)
    12
    Vinson & Elkins v. Moran, 
    946 S.W.2d 381
    , 405 (Tex. App.-
    -Houston [14th Dist.] 1997, writ dism’d by agr.).
    13
    Id.; Hallmark v. Hand, 
    885 S.W.2d 471
    , 476 (Tex. App.--El
    Paso 1994, writ denied) (holding that elements of a contract,
    including element of meeting of minds, are the same whether the
    contract is express or implied).
    14
    Haws & Garrett Gen. Contractors, Inc. v. Gorbett Bros.
    Welding Co., 
    480 S.W.2d 607
    , 609 (Tex. 1972); Williford v.
    Submergible Cable Servs., Inc., 
    895 S.W.2d 379
    , 384 (Tex. App.--
    Amarillo 1994, no writ).
    10
    relationship between Douglass and the Bank.        He testified that
    when a lawyer addresses a title opinion to a lender, the lawyer
    is “in effect” representing the Bank.     We agree with the lawyers
    that the unqualified statement by the expert that the lawyer
    always represents the addressee of a title opinion is a legal
    conclusion that will not support the verdict, and is further an
    incorrect statement of the law.      The designation of an addressee
    in a title opinion letter, without more, does not establish a
    meeting of the minds that the author of the title opinion will
    serve as counsel to the addressee.
    Even though an attorney-client relationship did not exist
    between Douglass and the Bank, we agree with the Bank that under
    the facts presented Texas law allows it a cause of action under a
    theory of negligent misrepresentation.        At the outset we note
    that the Bank’s complaint asserted separate causes of action for
    attorney malpractice and negligent misrepresentation.        Likewise,
    the jury charge instructed the jury on both legal malpractice and
    negligent misrepresentation (the former requiring proof of an
    attorney-client relationship), and the jury found liability and
    damages under both theories.
    The Texas Supreme Court, in Federal Land Bank Association of
    Tyler v. Sloane,15 adopted the common law cause of action for
    negligent misrepresentation as set out in the RESTATEMENT (SECOND)
    OF TORTS   § 552 (1977).   Under § 552:
    15
    
    825 S.W.2d 439
    , 442 (Tex. 1991).
    11
    (1) One who, in the course of his business, profession
    or employment, or in any other transaction in which he
    has a pecuniary interest, supplies false information
    for the guidance of others in their business
    transactions, is subject to liability for pecuniary
    loss caused to them by their justifiable reliance upon
    the information, if he fails to exercise reasonable
    care or competence in obtaining or communicating the
    information.
    (2) Except as stated in Subsection (3), the liability
    stated in Subsection (1) is limited to loss suffered
    (a) by the person or one of a limited group of
    persons for whose benefit and guidance he intends to
    supply the information or knows that the recipient
    intends to supply it; and
    (b) through reliance upon it in a transaction that he
    intends the information to influence or knows that the
    recipient so intends or in a substantially similar
    transaction.
    Sloane expressly agreed with the Restatement’s definition,
    and also set out its own elements of the negligent
    misrepresentation cause of action:
    (1) the representation is made by a defendant in the
    course of his business, or in a transaction in which he
    has a pecuniary interest; (2) the defendant supplies
    “false information” for the guidance of others in their
    business; (3) the defendant did not exercise reasonable
    care or competence in obtaining or communicating the
    information; and (4) the plaintiff suffers pecuniary
    loss by justifiably relying on the representation.16
    Under either formulation of the elements of a negligent
    misrepresentation claim, the evidence supports a finding of
    liability against Douglass.
    The lawyers argue that a negligent misrepresentation cause
    of action cannot be asserted against an attorney absent an
    attorney-client relationship between the plaintiff and the
    attorney.    In F.E. Appling Interests v. McCamish, Martin, Brown &
    16
    
    Sloane, 825 S.W.2d at 442
    .
    12
    Loeffler,17 the Texarkana Court of Appeals recently held that
    attorneys are subject to liability under the § 552 cause of
    action for negligent misrepresentation, whether or not an
    attorney-client relationship existed.    In Appling, decided after
    the district court granted the motion for judgment, the plaintiff
    sued a savings association, VSA, under a lender liability theory.
    The parties worked toward a settlement, but the plaintiff was
    concerned that the settlement agreement would not be enforceable
    if VSA became insolvent and was taken over by the FSLIC.    To
    complete the settlement, an attorney for the defendant law firm
    signed a settlement agreement, stating that VSA and its counsel
    represent that the agreement has been approved by the VSA board
    of directors and otherwise meets the requirements of 12 U.S.C. §
    1823(e).    Later, VSA did become insolvent, the FSLIC became the
    receiver, and a federal court held that the settlement agreement
    was unenforceable because it did not comply with § 1823(e).
    After analyzing Barcelo and other authorities, the court held
    that contractual privity between the plaintiff and the defendant
    attorney is not required if the elements of a § 552 negligent
    misrepresentation claim are otherwise met.18
    The Appling court reasoned that a negligent
    misrepresentation claim is not premised on the breach of a duty a
    professional owes his client or others in privity, but on an
    independent duty based on the attorney’s manifest awareness of
    17
    
    953 S.W.2d 405
    (Tex. App.--Texarkana 1997, writ denied).
    18
    
    Id. at 406-08.
    13
    plaintiff’s reliance on the representation and intention that the
    plaintiff so rely.19    It noted that its holding did not conflict
    with Barcelo, since the plaintiffs in that case “would have no
    negligent misrepresentation cause of action because the defendant
    never made a representation to them.”20
    “[A] decision by an intermediate appellate state court ‘is a
    datum for ascertaining state law which is not to be disregarded
    by a federal court unless it is convinced by other persuasive
    data that the highest court of the state would decide
    otherwise.’”21     Although the lawyers correctly point out that
    Appling is in conflict with earlier intermediate state appellate
    court decisions,22 we are persuaded that the Texas Supreme Court
    would agree with Appling.    It is the latest authority from the
    Texas courts, and in our view is directly on point.    The Texas
    Supreme Court denied review in Appling.    The Appling court had
    the benefit of the Texas Supreme Court’s decisions in Sloane and
    Barcelo, the most recent Texas Supreme Court decisions relevant
    to the issue presented, and discussed both cases.    We further
    19
    
    Id. at 408.
         20
    
    Id. at 409.
         21
    Verex 
    Assurance, 68 F.3d at 928
    (citation omitted).
    22
    Thompson v. Vinson & Elkins, 
    859 S.W.2d 617
    , 623 (Tex.
    App.--Houston [1st Dist.] 1993, writ denied); First Mun. Leasing
    Corp. v. Blankenship, Potts, Aikman, Hagin & Stewart, 
    648 S.W.2d 410
    , 413-14 (Tex. App.--Dallas 1983, writ ref’d n.r.e.); Bell v.
    Manning, 
    613 S.W.2d 335
    , 337-38 (Tex. Civ. App.--Tyler 1981, writ
    ref’d n.r.e.).
    14
    note that writing contrary to Appling in earlier Texas cases was
    not essential to the holdings in those cases.23
    We also conclude that the Texas Supreme Court’s reasons for
    requiring attorney-client privity in legal malpractice cases do
    not compel a privity requirement in a negligent misrepresentation
    case such as this one.     As discussed above, Barcelo reasoned that
    the privity requirement is justified because: (1) “potential tort
    liability to third parties would create a conflict during the
    estate planning process, dividing the attorney’s loyalty between
    his or her client and the third-party beneficiaries;”24 (2) the
    privity requirement “will ensure that attorneys may in all cases
    zealously represent their clients without the threat of suit from
    third parties compromising that representation;”25 and (3)
    “[w]ithout this ‘privity barrier’ . . . clients would lose
    23
    While Thompson rejects the application of § 522 to
    lawyers, it is readily distinguishable from Appling and the
    pending case because the evidence was undisputed that the law
    firm defendant made no representations to the 
    plaintiffs. 859 S.W.2d at 622
    . First Municipal Leasing imposed a privity
    requirement in a negligent misrepresentation case, but also held
    that even absent a privity requirement “the final result in the
    present case would be the same . . . . [T]he non-client First
    Municipal could not recover for the alleged negligence because it
    did not rely upon the opinion of the 
    Attorneys.” 648 S.W.2d at 413
    . Similarly, Bell requires privity between the attorney and
    the plaintiff, but indicates that the result would have been the
    same without a privity requirement because “we fail to see how
    the [representation] could be classified as a negligent
    representation . . . 
    .” 613 S.W.2d at 339
    .
    24
    
    Barcelo, 923 S.W.2d at 578
    .
    25
    
    Id. at 578-79.
    15
    control over the attorney-client relationship, and attorneys
    would be subject to almost unlimited liability.”26
    These concerns are not present where the negligent
    misrepresentation claim is premised on the facts presented in the
    pending case.    There is no conflict of interest where, as here,
    both the client borrower and the third party lender jointly ask
    the attorney to prepare an opinion letter.   A conflict could only
    arise if the client secretly hopes that the title opinion will
    contain false information, and we see no reason to protect the
    attorney from his own negligence with a privity barrier in such
    circumstances.   We see no burden on zealous representation when
    both the lender and client request a discrete service from the
    attorney, namely the preparation of a title opinion.   Again,
    barring sinister motives of the client, both   client and lender
    seek only a accurate title opinion.   Further, where as here the
    client directs the attorney to prepare a title opinion for a
    single lender, and the attorney prepares the opinion disclaiming
    liability to any party other than the lender, there is little
    risk that the client will lose control over the attorney-client
    relationship or the attorney will face unlimited liability.
    B.   Other Issues
    The lawyers argue that the evidence does not show that the
    inaccurate title opinion was the proximate cause of any injury to
    the Bank, since the loan documents were signed before the title
    opinion was received.   The evidence shows, however, that Epps and
    26
    
    Id. at 577.
    16
    the Bank agreed that the loan would not fund, and indeed it did
    not fund, until the title opinion was received.           The lawyers
    argue that the Bank was legally obligated to fund the loan after
    the loan documents were signed, whether or not the title opinion
    was received.   A rational jury could conclude that, regardless of
    the terms of the loan documents, Epps understood that no loan
    proceeds would be forthcoming without the title opinion, and that
    he would not have demanded the proceeds without the title
    opinion.   Further, the loan agreement states that the borrower
    agrees to furnish certain defined financial information and “such
    other information from time to time as Bank may reasonably
    request,” and the deed of trust requires Epps to furnish, at any
    time upon request of the Bank, real estate documents, including
    “instruments of further assurance . . . and other documents as
    may in the sole opinion of the [Bank] be necessary or desirable
    to effectuate, complete, perfect, continue or preserve” Trans
    Terra’s loan obligations.
    The lawyers argue that the jury was incorrectly instructed
    that the measure of damages is “the amount of money paid out by
    the Bank, minus recoveries had on the loan.”        They argue that the
    correct measure of damages is the difference between the true
    value of the collateral and the value of the collateral as
    represented in the title opinion.      We agree with the district
    court’s instruction.   In Sloan, the court adopted the measure of
    damages as set out in RESTATEMENT (SECOND)   OF TORTS   § 552B (1977).
    Under § 552B:
    17
    (1) The damages recoverable for a negligent
    misrepresentation are those necessary to compensate the
    plaintiff for the pecuniary loss to him of which the
    misrepresentation is legal cause, including
    (a) the difference between the value of what he has
    received in the transaction and its purchase price or
    other value given for it; and
    (b) pecuniary loss suffered otherwise as a
    consequence of the plaintiff’s reliance upon the
    misrepresentation.
    (2) the damages recoverable for a negligent
    misrepresentation do not include the benefit of the
    plaintiff’s contract with the defendant.27
    The evidence supports a measure of damages equal to the
    entire amount of the loan, minus the amounts secured through note
    payments and foreclosure, since such a measure reflects the
    “pecuniary loss suffered otherwise as a consequence of the
    plaintiff’s reliance upon the misrepresentation.”       The Bank’s
    president testified that if the November 22 title opinion had
    shown Trans Terra’s true interests in the Ledrick wells, the Bank
    would not have made the loan at all, for two reasons.       First, the
    Bank would not have made the loan if the interests set out in the
    title opinion had been seriously at odds with earlier
    representations of Trans Terra’s interests.    Second, the cash
    flow expected from the true interests would not have been
    sufficient to support the loan.28
    27
    
    Sloane, 825 S.W.2d at 442
    (emphasis added).
    28
    While the jury instruction was correct, we note that
    testimony regarding the amount of the Bank’s damages does not
    appear to square with the correct measure of damages. The Bank’s
    president testified that the Bank recovered $501,766 at
    foreclosure, on a loan of $1.5 million. Yet he testified that
    the amount still owing on the note was $1,214,260. This figure
    apparently includes interest the Bank would have received under
    the terms of the note. However, § 552B, as quoted above, does
    not allow the plaintiff to recover the benefit of the plaintiff’s
    18
    The lawyers moved for a new trial in the alternative to
    their motion for judgment.      The district court denied this
    motion, which was mooted by the granting of the motion for
    judgment.     The lawyers contend that if we reverse the judgments,
    we should hold that they are entitled to a new trial rather that
    entry of judgment against them on the jury verdict.
    The ground for the new trial motion was that the district
    court allowed the Bank’s expert to testify about the November 22,
    1993 title opinion.     The lawyers complain that the expert report
    produced before trial did not reference that title opinion as a
    document the expert had reviewed, as required by FED. R. CIV. P.
    26(a).
    “The admission or exclusion of expert testimony is a matter
    left to the discretion of the trial court, and that decision will
    not be disturbed on appeal unless it is manifestly erroneous.”29
    Further, the admission of expert testimony in violation of Rule
    26(a) is subject to harmless error analysis.30
    The district court did not manifestly err in allowing the
    expert to testify about the November 22 title opinion.      The
    contract. Sloane explains that § 552B “allows for damages
    suffered in reliance upon negligent misrepresentation, but not
    for the failure to obtain the benefit of the 
    bargain.” 825 S.W.2d at 443
    . Accordingly, the Bank is only entitled to recover
    the amount of principal it originally loaned, minus the amounts
    secured through pre-default loan payments and foreclosure, plus
    any prejudgment and post-judgment interest Texas law might allow.
    29
    Eiland v. Westinghouse Elec. Corp., 
    58 F.3d 176
    , 180 (5th
    Cir. 1995).
    30
    FED. R. CIV. P. 37(c)(1).
    19
    expert report indicates that the expert had reviewed numerous
    other title opinions Douglass had prepared, which provided
    essentially the same opinions contained in the November 22 title
    opinion.    The expert report goes on to give the opinion that
    Douglass was negligent “in the preparation of the oil and gas
    title opinions” insofar as the opinions represent that he had
    reviewed the courthouse records when in fact he had not.    The
    report assumed that Douglass had not reviewed the courthouse
    records.    The lawyers knew or should have known that the expert
    would have the same opinion as to the November 22 title opinion,
    whether or not he had reviewed it prior to preparing the expert
    report, and that the Bank would ask him about that title opinion
    at trial.
    The judgments below are reversed, and the case is remanded
    for further proceedings consistent with this opinion.
    REVERSED and REMANDED.
    ENDRECORD
    20
    EDITH H. JONES, Circuit Judge, dissenting.
    With due respect to my colleagues’ sensitivity to Texas
    law, and with some sympathy for the result they reach, I feel I
    must respectfully dissent from the portion of the majority
    opinion discussing negligent misrepresentation under RESTATEMENT
    (RECORD)   OF   TORTS § 552.
    Texas case law is without doubt unclear regarding
    whether lawyers are liable for the tort of negligent
    misrepresentation absent a privity relationship.        Two lines of
    cases now directly conflict with each other in their statement of
    the law.        Compare F.E. Appling Interests v. McCamish, Martin,
    Brown & Loeffler, 
    953 S.W.2d 405
    (Tex. App.—Texarkana 1997, pet.
    denied) (permitting a negligent misrepresentation claim against
    an attorney absent privity) with Thompson v. Vinson & Elkins, 
    859 S.W.2d 617
    , 622-23 (Tex. App.—Houston [1st Dist.] 1993, writ
    denied); First Mun. Leasing Corp. v. Blakenship, Potts, Aikman,
    Hagin & Stewart, 
    648 S.W.2d 410
    , 413-14 (Tex. App.—Dallas 1983,
    writ ref’d n.r.e.); Bell v. Manning, 
    613 S.W.2d 335
    , 338 (Tex.
    Civ. App.—Tyler 1981, writ ref’d n.r.e.) (all holding that a
    negligent misrepresentation claim pursuant to § 552 cannot be
    made absent an attorney-client relationship).        Although, as the
    majority here notes, the “anti-negligent misrepresentation” cases
    may be factually distinguishable such that their holdings could
    (not must) rest on other grounds, their statement of the law
    could not be more clear and forthright—and contradictory to
    21
    Appling.   The Supreme Court’s unfortunate denial of review in
    Appling affords no solution to the dilemma.
    But in a closely related case, the Texas Supreme Court
    has strictly construed the privity requirement for a legal
    malpractice claim wherein third-party beneficiaries of a trust
    sue the lawyer and law firm that created the trust.   See Barcelo
    v. Elliott, 
    923 S.W.2d 575
    (Tex. 1996).   In doing so, the court
    rejected the position of the vast majority of states, which have
    relaxed the privity barrier in the estate planning context.      See
    
    id. at 577-78;
    see also 
    id. at 579
    (Cornyn, J., dissenting) (“By
    refusing to recognize a lawyer’s duty to beneficiaries of a will,
    the Court embraces a rule recognized by only four states, while
    simultaneously rejecting the rule in an overwhelming majority of
    jurisdictions.”).   Interestingly, Appling, the case from which
    the majority here infer that Texas will extend to lawyers the
    potential liability for negligent misrepresentation, relies
    entirely upon cases from other states in dispensing with privity.
    Appling has to distinguish two contrary Texas appellate cases to
    reach its conclusion.
    Judge Reavley’s opinion is certainly not wrong, as it
    reflects a rule many other states have adopted.   The only
    question is whether the Texas Supreme Court, having made such a
    bright-line decision for privity in Barcelo, will cut back on it
    to adopt Appling.   I do not think these two decisions are easily
    reconcilable in principle, in equity, or in fact.   Thus, I am
    22
    wary of making the majority’s Erie-guess that Appling will become
    governing Texas law.   I respectfully dissent.
    23