Panizo v. Young Men's Christian Ass'n , 1996 Tex. App. LEXIS 5846 ( 1996 )

O’CONNOR, Justice,

concurring and dissenting.

The majority holds that the plaintiff should have segregated the attorney fees between the contract and fraud cause of action, and remands the case for a hearing to permit Panizo’s attorney to segregate attorney fees. I concur with the majority’s disposition to reverse and remand for a hearing on attorneys fees; however, I dissent from the majority’s holding which requires Panizo’s attorney to segregate attorney fees.

The attorney already testified that he could not segregate the attorney fees for the contract and fraud claims. The attorney testified as follows:

[W]e were pursuing a contract cause of action and a fraud cause of action and you cannot recover attorneys fees for fraud but ... both of our claims were based upon the very same facts, what was said to Ms. Panizo before she put her children in this day care and what the brochure said. We were pleading for contract and alternatively, fraud. Those two claims were so inextricably intertwined that there was no way to segregate my work with respect to both those causes of action and therefore I have — I made no segregation with respect to those claims. As I’ve already stated, I did make some segregation for ... things that I did that were only helpful to the minor....

The majority holds that Panizo was required to prove the element of scienter for the fraud claim, which would require “significant additional pretrial discovery.” I disagree. Panizo’s lawyer testified that fraud was pled in the alternative, and he did not actively pursue the fraud claim.

Even if the lawyer had actively pursued the fraud claim, I would still hold that Pani-zo’s fraud and contract claims involve proof of “essentially” the same facts. Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991). Other opinions have so held. AmSav Growp, Inc. v. American Sav. & Loan Ass’n, 796 S.W.2d 482, 492 (Tex.App.—Houston [14th Dist.] 1990, writ denied) (contract and fraudulent misrepresentation claims were so intertwined that party was not required to segregate attorney fees); Gill Sav. Ass’n v. Chair King, Inc., 783 S.W.2d 674, 680 (Tex.App.—Houston [14th Dist.] 1989) (contract and fraud claims were so intertwined that party was not required to segregate), ajfd in part and modified in part, 797 S.W.2d 31 (Tex.1990). In issuing this opinion, this Court creates a split in authority for the trial courts within the district covered by the First and the Fourteenth Courts of Appeal.