Veronica Chavez Vara v. Melissa Morgan Williams ( 2013 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-10-00861-CV
Veronica Chavez Vara, Appellant
v.
Melissa Morgan Williams, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-GN-10-000225, HONORABLE GISELA D. TRIANA-DOYAL, JUDGE PRESIDING
MEMORANDUM OPINION
This appeal arises from Veronica Chavez Vara’s legal malpractice claim against her
attorney, Melissa Morgan Williams. Vara appeals the trial court’s grant of Williams’s traditional
motion for summary judgment. For the reasons that follow, we affirm the trial court’s judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In 2007, Vara hired Williams to represent her in a divorce proceeding. In
January 2008, the parties reached a mediated settlement agreement (MSA). In the MSA, both parties
verified that they had disclosed all community and separate property and all community
indebtedness. The MSA also provided that Vara could reside in the marital residence “until the date
of sale or October 1, 2008, whichever is earlier.” The MSA further stated that “[i]f the house does
not sell by October 1, 2008, Veronica Vara will move out by that date.” On February 1, 2008, the
trial court signed a final divorce decree, which included a provision that the parties were to sign an
operating trust agreement (OTA) to delineate the parties’ ownership and use of certain community
property assets. Following the entry of the divorce decree, disputes arose concerning the OTA, the
parties’ rights to the residence, and the disclosure of assets. In approximately September 2008, Vara
hired new counsel to represent her in post-divorce proceedings. Subsequently, the trial court entered
further orders clarifying and enforcing the terms of the divorce decree, including the provisions
relating to the OTA and Vara’s use of the marital residence.
In January 2010, Vara, acting pro se, filed her “Original Suit of Legal Malpractice”
against Williams asserting negligence, violations of the Texas Deceptive Trade Practices Act
(DTPA), breach of contract, and breach of fiduciary duty. In her answer, Williams asserted that any
causes of action beyond legal malpractice were merely components of an impermissibly “fractured”
professional negligence claim.1 In March 2010, Vara filed her “1st Amended Suit of Legal
Malpractice,” again asserting negligence, DTPA, breach of contract, and breach of fiduciary causes
of action, and adding a claim for negligent misrepresentation. In June 2010, the trial court
signed a docket control order that set the deadline for Vara to designate testifying experts for
September 27, 2010. In August 2010, Williams filed special exceptions to Vara’s first amended
petition, and in response Vara filed her “Second Amended Petition” in early October 2010, adding
a claim for fraud and alleging misrepresentation in lieu of negligent misrepresentation.
Meanwhile, the deadline for Vara to designate testifying experts passed in September,
and Vara did not designate any experts. In October, Williams filed a “traditional” motion for
1
As discussed more fully below, Texas law does not permit a plaintiff to divide or “fracture”
a legal malpractice claim into additional causes of action. O’Donnell v. Smith, 234 S.W.3d 135, 146
(Tex. App.—San Antonio 2007), aff’d, 288 S.W.3d 417 (Tex. 2009).
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summary judgment asserting that (1) Vara’s non-negligence claims were actually fractured claims
for professional negligence and (2) Vara’s professional negligence claims failed as a matter of law
because she did not have the required expert testimony.2 Vara responded by filing a “3rd Amended
Petition,” in which she reasserted her fraud, DTPA, and breach of fiduciary duty claims, but omitted
her prior claims for breach of contract, negligence, and misrepresentation. Vara also filed special
exceptions to Williams’s motion for summary judgment contending that the grounds for Williams’s
motion were unclear in light of her amended petition. Vara subsequently filed written responses to
Williams’s motion for summary judgment in which she contended that Williams’s claim that her suit
was an improperly fractured malpractice claim was based on her second amended petition and since
she had filed her third amended petition in which she sought “no grounds of negligence whatsoever,”
Williams’s request to dispose of the entire case was improper.
In November 2010, a hearing was held on Williams’s motion for summary judgment
and Vara’s special exceptions. The trial court first heard Vara’s special exceptions on the record.
Vara argued that Williams’s contention that the “entire lawsuit should be dismissed because it’s
basically legal malpractice” was based on her second amended petition and that under her third
amended petition, “[t]here’s nothing having to do with the standard of care. There’s no need for an
expert witness to come in and speak about the standard of care.” The trial court, observing that the
motion for summary judgment addressed the remaining live claims contained in Vara’s third
amended petition, overruled Vara’s special exceptions. The trial court then heard the motion
2
Alternatively, Williams also asserted that Vara’s DTPA claim was barred by the
professional services exception under the statute. See Tex. Bus. & Com. Code Ann. § 17.49(c)
(West Supp. 2012).
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for summary judgment without a record and subsequently granted the motion in its entirety. This
appeal followed.
DISCUSSION
In a single issue, Vara contends that the trial court erred in granting Williams’s
“traditional” motion for summary judgment when there were genuine issues of material fact as to
Vara’s various causes of action. We review the trial court’s decision to grant summary judgment
de novo. Texas Mun. Power Agency v. Public Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.
2007); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a
traditional motion for summary judgment, the movant must establish that there are no genuine issues
of material fact and the movant is entitled to judgment as a matter of law. See Tex. R. Civ.
P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). A
defendant must disprove as a matter of law at least one essential element of each of a plaintiff’s
theories of recovery. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Stated another
way, “[a] defendant is entitled to summary judgment if the summary judgment evidence establishes,
as a matter of law, that at least one element of a plaintiff’s cause of action cannot be established.”
Maher v. Herrman, 69 S.W.3d 332, 336 (Tex. App.—Fort Worth 2002, pet. denied). Once the
defendant presents evidence to disprove an element of the plaintiff’s claim, the burden shifts to the
plaintiff to present controverting evidence that creates a fact issue on the element challenged by
the defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Maher, 69 S.W.3d
at 337.
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On appeal, the defendant, as movant, still bears the burden of showing there are no
fact issues and that it is entitled to judgment as a matter of law. Elliott-Williams Co. v. Diaz,
9 S.W.3d 801, 803 (Tex. 1999). When reviewing a summary judgment, the appellate court takes as
true all evidence favorable to the nonmovant and indulges every reasonable inference and resolves
any doubts in the nonmovant’s favor. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2006); Dorsett, 164 S.W.3d at 661. When the trial court does not specify the grounds for its
summary judgment, the appellate court must affirm the summary judgment if any of the theories
presented to the trial court and preserved for appellate review are meritorious. Knott, 128 S.W.3d
at 216.
Fractured Malpractice Claim
Williams sought summary judgment on Vara’s non-negligence claims on the ground
that they were not independent causes of action but were instead merely components of a fractured
legal malpractice claim. On appeal, Vara contends that her pleadings contain independent,
non-fractured causes of action for fraud, breach of fiduciary duty, and DTPA violations.3 To
determine whether Vara has asserted separate non-negligence claims that are distinct from a legal
malpractice claim, we look to the law characterizing professional negligence claims and the rule
prohibiting plaintiffs from dividing negligence claims against their attorneys into other claims.
3
Vara also contends that Williams’s fractured malpractice claim argument is irrelevant
because Williams failed to negate any element of her negligence cause of action. We address this
argument in our discussion of Vara’s failure to designate a testifying expert.
5
Attorneys owe their clients the duty to act in a manner consistent with the
standard of care expected to be exercised by a reasonably prudent attorney. Beck v. Law Offices of
Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 426 (Tex. App.—Austin 2009, no pet.). A legal
malpractice claim is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989).
To prevail in a professional negligence case against an attorney, the plaintiff must prove (1) the
attorney owned a duty to the plaintiff; (2) the attorney breached that duty; (3) the breach caused the
plaintiff’s injuries; and (4) damages occurred. Id. at 665; Beck, 284 S.W.3d at 426.
Texas law does not permit a plaintiff to divide or “fracture” a legal malpractice claim
into additional causes of action. O’Donnell v. Smith, 234 S.W.3d 135, 146 (Tex. App.—San
Antonio 2007), aff’d, 288 S.W.3d 417 (Tex. 2009); Goffney v. Rabson, 56 S.W.3d 186, 190 (Tex.
App.—Houston [14th Dist.] 2001, pet. denied). The rule against fracturing a negligence claim
prevents malpractice plaintiffs from transforming a claim that sounds only in negligence into other
claims. Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex. App.—Houston [14th
Dist.] 2002, no pet.). “‘[A] case arising out of an attorney’s alleged bad legal advice or improper
representation’ may not ‘be split out into separate claims for negligence, breach of contract, or fraud
[(or any other non-negligence theory)] because the real issue remains one of whether the professional
exercised that degree of care, skill, and diligence that professionals of ordinary skill and knowledge
commonly posses and exercise.’” Beck, 284 S.W.3d at 426–27 (brackets in original) (quoting
Kimleco Petroleum, Inc. v. Morrison & Shelton , 91 S.W.3d 921, 924 (Tex. App.—Fort Worth 2002,
pet. denied)).
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This rule does not preclude clients from asserting causes of action other than
negligence against their attorneys if supported by the facts. See id.; Deutsch, 97 S.W.3d at 189.
However, a plaintiff may not rely on multiple causes of action as a “‘means to an end’ to achieve one
complaint of legal malpractice.” Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex.
App.—Houston [1st Dist.] 1998, pet. denied). “[T]he claimant must do more than ‘merely reassert
the same claim for legal malpractice under an alternative label.’” Beck, 284 S.W.3d at 427 (quoting
Duerr v. Brown, 262 S.W.3d 63, 70 (Tex. App.—Houston [14th Dist.] 2008, no pet.)). In
determining whether an asserted cause of action is a claim for negligence or something else, “‘we
are not bound by the labels the parties place on their claims.’” Id. at 427–28 (quoting Murphy
v. Gruber, 241 S.W.3d 689, 697 (Tex. App.—Dallas 2007, pet. denied)). If the gist of the complaint
is that the attorney did not exercise that degree of care, skill, or diligence as attorneys of ordinary
skill and knowledge commonly possess and exercise, then the complaint should be pursued as a
negligence claim rather than as some other claim. Id.; Deutsch, 97 S.W.3d at 189–90.
After reviewing Vara’s fraud, DTPA, and breach of fiduciary duty allegations, we
conclude that the gist of these claims is that Williams did not exercise that degree of care, skill, or
diligence as attorneys of ordinary skill and knowledge commonly possess and exercise and they are
thus components of a fractured malpractice claim. See Beck, 284 S.W.3d at 434; Deutsch,
97 S.W.3d at 190. In her fraud allegations, Vara complains that Williams made “false
representations” regarding the drafting of the OTA and divorce decree, “concealed” information
concerning the OTA and verification of assets, and “induced” her into signing the divorce decree.
In her DTPA claim, Vara contends that these same acts constituted “false, misleading, and
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deceptive” representations on which Vara relied to her detriment. And in her breach of fiduciary
duty claim, Vara asserts that this same conduct, as well as her failure to seek a restraining order
against Vara’s ex-husband, was a breach of Williams’s fiduciary duty to Vara.
However, in each of these claims, all of which are based on the same factual
allegations, the substance of Vara’s allegations is that Williams did not competently fulfill her duties
as Vara’s attorney by failing to obtain an executed OTA contemporaneously with or immediately
after the court’s signing the final decree of divorce, to ensure “appropriate language” in the divorce
degree, particularly with regard to the parties’ rights to the marital residence, and to obtain the
necessary documentation to verify Vara’s ex-husband’s assets. Merely characterizing conduct as a
“misrepresentation,” “concealment,” “inducement,” “misleading,” or “deceptive” does not
necessarily transform what is really a professional negligence claim into a fraud, DTPA, or breach
of fiduciary duty cause of action.4 See Murphy, 241 S.W.3d at 697; see also Kimleco, 91 S.W.3d
at 924; Greathouse, 982 S.W.2d at 172. In short, the crux of these purported causes of action is that
Williams did not provide adequate legal representation to Vara, these claims should be pursued only
4
Further, claims for breach of fiduciary duty involve the integrity and fidelity of an attorney
and focus on whether an attorney obtained an improper benefit from representing the client. Murphy
v. Gruber, 241 S.W.3d 689, 693 (Tex. App.—Dallas 2007, pet. denied). The only benefit to
Williams that Vara alleges is attorney’s fees from continued representation of Vara. Such an alleged
benefit does not rise to the level of “improper benefit” generally necessary to constitute a breach of
fiduciary duty. See Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied) (“Breach of fiduciary duty by an attorney most often involves the attorney’s failure to
disclose conflicts of interest, failure to deliver funds belonging to the client, placing personal
interests over the client’s interests, improper use of client confidences, taking advantage of the
client’s trust, engaging in self-dealing, and making misrepresentations.”); O’Donnell, 234 S.W.3d
at 146 (breach of fiduciary duty often involves attorney’s failure to disclose conflicts of interest,
failure to deliver client funds, improper use of client confidences, or engaging in self-dealing).
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as a professional negligence claim, and Vara impermissibly fractured her malpractice claim by
asserting them as fraud, breach of fiduciary duty, and DTPA claims. See Kimleco, 91 S.W.3d at 924;
Deutsch, 97 S.W.3d at 189; Greathouse, 982 S.W.2d at 172. We therefore conclude that the trial
court did not err in granting Williams’s motion for summary judgment as to Vara’s non-negligence
causes of action.5
Failure to Designate Expert
Although Vara’s third amended petition purports to omit her cause of action for
negligence, because we conclude that her non-negligence claims were actually components of a
fractured claim for professional negligence, we turn to the issue of Vara’s failure to designate an
expert in accordance with the deadline established by the trial court. Under Texas law, a plaintiff
in a legal malpractice case is required to present expert testimony regarding the standard of skill and
care ordinarily exercised by an attorney. McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex.
App.—Houston [14th Dist.] 2008, no pet.); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex.
App.—Austin 2002, pet. denied). It is undisputed that Vara did not designate any testifying experts
within the time allowed by the trial court’s docket control order and did not request an extension of
time in which to do so. Williams sought summary judgment on the ground that in the absence of
expert testimony Vara could not prove the elements of her legal malpractice claim. Williams’s
summary judgment included an affidavit from her attorney averring that neither he nor Williams had
5
Vara also contends that the trial court erred in granting summary judgment because
Williams failed to present affirmative evidence negating at least one element of each non-negligence
cause of action asserted. Because we conclude that Vara’s non-negligence claims are merely
components of a fractured malpractice claim, we do not reach this argument.
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been served with a response to Williams’s request for disclosure that designated any testifying expert
witnesses for Vara concerning any elements of her legal malpractice claim or any other issue.
Vara contends that the trial court erred in granting summary judgment because in
doing so it treated Williams’s traditional motion for summary judgment as a “no-evidence” motion
for summary judgment.6 In other words, Vara asserts, because Williams brought a traditional motion
for summary judgment but offered no summary judgment evidence on any of the elements of Vara’s
legal malpractice claim, Williams did not meet her burden, Vara had no obligation to offer
controverting evidence, and the trial court should have denied the motion. In essence, Vara argues
that the affidavit of Williams’s attorney was insufficient to negate any element of her claim, a
requirement of a traditional motion for summary judgment. We find this argument unpersuasive.
The affidavit of Vara’s attorney established, and Vara did not and does not on appeal
dispute, that Vara failed to designate an expert to testify on the standard of care required of an
attorney. Because such expert testimony is required, see McInnis, 261 S.W.3d at 201; Ersek,
69 S.W.3d at 271, the affidavit of Williams’s attorney proving that Vara had not designated an expert
disproved as a matter of law at least one essential element of Vara’s legal malpractice claim.7 See
D. Houston, Inc., 92 S.W.3d at 454. Thus, the summary judgment evidence established, as a matter
of law, that at least one element of Vara’s cause of action could not be established, see Maher,
6
In a no-evidence motion for summary judgment, the movant, without presenting evidence,
seeks summary judgment on the ground that there is no evidence of one or more essential elements
of the nonmovant’s claim, and the burden shifts to the nonmovant to produce evidence raising a fact
issue. See Tex. R. Civ. P. 166a(i).
7
We do not address whether expert testimony is required to prove the other elements of
Vara’s legal malpractice claim.
10
69 S.W.3d at 336, and Williams met her burden under rule 166a(c), see Tex. R. Civ. P. 166a(c);
Provident Life & Accident Ins. Co., 128 S.W.3d at 216. When Williams presented evidence to
disprove the standard of care element of Vara’s legal malpractice claim, the burden shifted to Vara
to present controverting evidence to create a fact issue on that element. See Centeq Realty, Inc.,
899 S.W.2d at 197; Maher, 69 S.W.3d at 337. Because Vara failed to do so, we conclude that the
trial court did not err in granting Williams’s motion for summary judgment. We overrule Vara’s
single appellate issue.
CONCLUSION
Because we conclude that Vara’s non-negligence claims were merely components of
a fractured legal malpractice claim and that Williams met her burden under Rule 166a(c) to disprove
at least one element of that claim, we overrule Vara’s single issue and affirm the judgment of the
trial court.
__________________________________________
Melissa Goodwin, Justice
Before Chief Justice Jones, Justices Puryear and Goodwin
Affirmed
Filed: March 28, 2013
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