Stanley A. Tener v. Short Carter Morris LLP and Adam J. Morris ( 2014 )

Opinion issued August 28, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-12-00676-CV
———————————
STANLEY A. TENER, Appellant
V.
SHORT CARTER MORRIS, LLP AND ADAM J. MORRIS, Appellees
On Appeal from the 151st District Court
Harris County, Texas
Trial Court Case No. 2011-45023
MEMORANDUM OPINION ON REHEARING
Appellant, Stanley A. Tener (“Tener”), has filed a motion for rehearing of
our March 27, 2014 opinion and judgment. We deny the motion for rehearing,
withdraw our opinion and judgment of March 27, 2014, and issue the following
opinion and a new judgment in their stead.
Tener challenges the trial court’s rendition of summary judgment in favor of
appellees, Short Carter Morris, LLP (“SCM”) and Adam J. Morris, in his suit
against them for negligence and breach of fiduciary duty. In three issues, Tener
contends that the trial court erred in granting Morris and SCM summary judgment
and overruling his objections to their summary-judgment evidence.
We affirm.
Background
In his first amended petition, Tener alleges that Morris, while employed at
SCM, represented him in a divorce proceeding against his wife, Sezanne A. Tener.
Included in the community estate to be divided was real property located in Aspen,
Colorado, which the Teners “occupied as their marital residence during most of
their marriage.” Sezanne eventually moved to Houston and subsequently sued
Tener, who asserts that he has never resided in Texas, for divorce.
Tener claims that Morris and SCM acted negligently in:
(a) [F]ailing to prepare and properly present [his] claims at a final
trial as to the Colorado property.
(b) [F]ailing to ensure that the underlying case . . . was litigated in
Colorado instead of Texas.
(c) [F]ailing to supply to the trial [c]ourt pleading and proof that
Colorado law holds that any increase of property value above
$315,000 (purchase price) is marital property and subject to
division under Colorado marital law.
(d) [F]ailing to competently prepare and present [his] claims to the
Court in regard to the Colorado property.
2
(e) [F]iling documents waiving any further right [to contest]
personal jurisdiction . . . .
(f) [F]ailing to offer proof that the Colorado property was
purchased for $315,000.
(g) [F]ailing to plead and prove a marital property claim of
$2,185,000.
(h) [F]ailing to prove the value of the Colorado property at the time
of the divorce in June and July, 2009 of at least $2,500,000.
(i) [A]ccepting the benefits of the requested affirmative relief.
(j) [C]onsenting to personal jurisdiction and [allowing] Texas to
apply Texas law to Colorado real property.
(k) [S]tipulating that the Colorado real property . . . was
[Sezanne’s] separate property . . . even though it was purchased
during the marriage for $315,000.
(l) [F]ailing to plead and prove Colorado marital property law and
the purchase price of the Colorado real property which would
have greatly enhanced [his] and the community’s recovery
($2,185,000).
(m) [F]ailing to prove the value of the real property at the time of
the divorce under Colorado law which would have greatly
enhanced [his] recovery.
(n) [F]ailing to plead Colorado marital property law pursuant to
Texas Rule[] of Evidence 202.
(o) [F]ailing to prove Colorado real and marital property law
pursuant to Texas Rule[] of Evidence 202.
(p) [S]tipulating that [the Colorado property] was [Sezanne’s]
separate property.
(q) [T]elling [Stanley] that “he had to” stipulate that [the Colorado
property] was [Sezanne’s] separate property.
(r) [P]ursuing claims under Texas law for economic contribution
instead of Colorado law § 14-10-113 for the increase in the
value of [the Colorado property] from November 7, 1991
through September of 2009.
3
(s) [F]ailing to make a claim for $2,185,000 on behalf of the
community estate for the increase in value of [the Colorado
property].
(t) [F]ailing to make a claim for $1,092,500 for [Stanley’s] portion
of the increase in value of [the Colorado property].
(u) [F]ailing to plead and prove Colorado law § 14-10-113 pursuant
to Texas Civil Rule[] of Evidence 202.
Tener further alleges that had Morris and SCM pleaded and proved the
applicability of Colorado law, instead of Texas law, the divorce court would have
been required to follow Colorado law and he would have had a claim in the
Colorado property worth $2,185,000. He notes that the divorce court, pursuant to
Texas law, entered the following offsets against him: (1) $127,531.49 in
enhancement contributions; (2) $400,000 in use and benefit expenses; (3) $41,600
for time, toil and effort; and (4) $255,062.92 in separate property reimbursement.
And Tener asserts that these offsets do not exist under Colorado law. He seeks to
recover from Morris and SCM as negligence damages: (1) the total amount of the
offsets; (2) $2,185,000, the value of the Colorado property; (3) $315,000, the
purchase price of the Colorado property; (4) mental anguish damages; and (5) his
attorney’s fees.
In regard to his claim for breach of fiduciary duty, Tener alleges that Morris
and SCM breached their fiduciary duties by committing the above negligent
practices and accepting his divorce case “when they had insufficient experience to
4
do so and were otherwise unready or unable to do so.” He asserts that Morris and
SCM “were not competent to handle” his divorce proceedings.
In their original answer, Morris and SCM generally denied Tener’s
allegations and asserted that his claims were “caused by the negligence and
carelessness of responsible third parties” over which they had no control. They
filed a matter-of-law and no-evidence summary-judgment motion, asserting that, in
the divorce proceeding, Tener, using another attorney, Kathryn Geiger,1 filed a
special appearance and contested the divorce court’s personal jurisdiction over
him. Morris and SCM contended that they could not have caused Tener any
damages arising from a waiver of a challenge to the divorce court’s personal
jurisdiction. Morris and SCM further argued that Tener was himself at fault
because another attorney had handled his appeal of the case, which was dismissed
due to Tener’s failure to prove his indigent status.2 And Morris and SCM asserted
that Tener’s own testimony at the special appearance demonstrated that the court
properly exercised personal jurisdiction over him. Finally, Morris and SCM
argued that their performance could not have fallen below the pertinent standard of
care because “Sezanne and [Tener’s] son had lived in Houston for at least four
years before the divorce” and, thus, the divorce court was required to apply Texas,
1
Tener initially named Geiger as a defendant in the instant suit, but the trial court
later severed his claims against her.
2
See Tener v. Arlitt, No. 01-09-01091-CV, 2011 WL 1755614, at *1 (Tex. App.—
Houston [1st Dist.] May 5, 2011, no pet.) (mem. op.).
5
not Colorado law, to the property claims. In regard to Tener’s claim for breach of
fiduciary duty, Morris and SCM asserted that the claim was simply a reassertion of
his negligence claim.
Morris and SCM attached to their summary-judgment motion a transcript of
the divorce court’s hearing on Tener’s special appearance, which shows that he
was then represented by Geiger. They also attached to their motion the Teners’
joint tax returns from 2000 to 2006, wherein Tener had represented “Houston,
Texas” as the couple’s residence, and the divorce court’s final decree of divorce.
In its final decree of divorce, the divorce court concluded that Tener was
“guilty of cruel treatment” toward Sezanne and their child and Sezanne “should be
awarded a disproportionate share of the community estate based upon the cruelty
of” Tener, the “ill health” of Sezanne, Sezanne’s need for future support, and “the
reimbursement claims which are detailed” as having benefitted Tener and the
community estate. The divorce court also concluded that, in regard to the
Colorado property, which it described as Sezanne’s “separate property residence,”
the community had received reimbursement in the amount of $255,062.98 from the
use and benefit of the property. And the divorce court concluded that although
Tener had “expended time, toil, and effort,” which had benefited the Colorado
property in the amount of $41,600, this benefit was offset by the fact that Tener
had “benefited solely and individually” from the use of the Colorado property in an
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amount equal to $400,000. In its findings of fact, the divorce court found that
“Texas was the last marital residence of” Tener and Sezanne within two years
before she had filed the divorce suit on September 5, 2007. The divorce court
further found that the Colorado property was Sezanne’s separate property and
Tener had lived on the property “rent-free with utilities and various other expenses
including all insurance and taxes” paid by Sezanne.
Finally, Morris and SCM attached to their summary-judgment motion
Tener’s response to a motion to dismiss his petition for dissolution, which he had
filed in Colorado while represented by McGuane and Hogan, LLP. In his
response, Tener noted,
Husband requests only that a decree of dissolution be entered and that
the Colorado property be divided in the Colorado action. . . . The
property, on 2.683 acres, was purchased approximately six months
after the marriage of the parties for $315,000. The purchase price was
paid from Wife’s separate property and title has always been solely in
her name. However, during the marriage, Husband’s earned income
and his personal labor and services were contributed in significant
amounts to the upkeep and improvement of the property. Since the
parties separated, Husband has continued to live in the home, maintain
it, and manage the rental apartment that is also on the premises.
Tener made several objections to Morris and SCM’ summary-judgment
evidence, arguing, among other points, that because the opinion of the court of
appeals concerning his special appearance, the divorce court’s findings of fact and
conclusions of law, and the Teners’ joint tax returns were not authenticated or self-
authenticated, they constituted hearsay. Tener also filed a response to Morris and
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SCM’ summary-judgment motion, asserting that genuine issues of material fact
existed as to each element of his claims.
Tener attached to his response the affidavits of Mark J. Carroll and Jeremy
M. Bernstein. In his affidavit, Carroll testified that it was his opinion that Morris
had breached the pertinent standard of care owed to Tener in his divorce suit,
causing him damages of $1,075,163.86. Carroll’s review of the divorce court
documents revealed that Sezanne had purchased the Colorado property for
$315,000 in her name, the property, at the time of the divorce, had a fair market
value of $2,500,000, and Tener, while represented by Morris, had agreed to a
partial summary judgment that the Colorado property was Sezanne’s separate
property. Carroll opined that an ordinary prudent lawyer would have asked the
divorce court, in regard to the Colorado property, to take judicial notice of and
apply Colorado law, which provides that an increase in the value of separate
property during a marriage is “marital property to be divided by the spouses
without regard to marital misconduct.” As a result, the community estate would
have increased by $2,150,327.72, or the increase in value of the Colorado property
during the Teners’ marriage, to be divided equally between the parties. Because
Colorado “has the most significant relationship to the particular substantive issue,”
Carroll asserted that a Texas court “probably would have applied Colorado law
upon request.”
8
In his affidavit, Bernstein testified that, under Colorado law, “any increase in
value of separate property is marital property” and “the increase in value, no matter
the reason[,] is marital property subject to equitable division.”
Tener also attached to his response the divorce court’s “Order on Motion for
Summary Judgment Regarding Characterization of the Aspen Home,” in which it
concluded that Tener had stipulated the Colorado property to be Sezanne’s separate
property.
In their reply, Morris and SCM asserted that the undisputed material facts
established that the divorce court was required to apply Texas law. 3 And they
asserted that the opinion of the court of appeals and the divorce court’s findings of
fact and conclusions of law were admissible as authenticated public records that
fell within a hearsay exception for public records and reports. 4 In regard to the
Teners’ joint tax returns, Morris and SCM argued that they were admissible into
evidence because they were signed by Tener himself.
3
Specifically, Morris and SCM cited the following provision of the Texas Family
Code:
(b) In a decree of divorce or annulment, the court shall award to a
spouse the following real and personal property, wherever
situated, as the separate property of the spouse:
(1) property that was acquired by the spouse while
domiciled in another state and that would have been
the spouse’s separate property if the spouse had been
domiciled in this state at the time of acquisition[.]
TEX. FAM. CODE ANN. § 7.002(b) (Vernon 2006).
4
See TEX. R. EVID. 803(8).
9
The trial court overruled Tener’s objections as to the opinion of the court of
appeals, the divorce court’s findings of fact and conclusions of law, and the
Teners’ joint tax returns. It then granted Morris and SCM’s matter-of-law
summary- judgment motion on Tener’s claims, and it denied their no-evidence
summary- judgment motion.
Standard of Review
To prevail on a summary-judgment motion, a movant has the burden of
establishing that it is entitled to judgment as a matter of law and there is no
genuine issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900
S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary judgment, it
must either (1) disprove at least one essential element of the plaintiff’s cause of
action or (2) plead and conclusively establish each essential element of its
affirmative defense, thereby defeating the plaintiff’s cause of action. Cathey, 900
S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex.
App.—Houston [1st Dist.] 2005, pet. denied). When deciding whether there is a
disputed, material fact issue precluding summary judgment, evidence favorable to
the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d
546, 548–49 (Tex. 1985). Every reasonable inference must be indulged in favor of
the non-movant and any doubts must be resolved in his favor. Id. at 549.
10
Legal Malpractice
In his first issue, Tener argues that the trial court erred in granting Morris
and SCM’s summary-judgment motion because it failed “to include expert
testimony addressing the standard of care, breach, causation, or damages” and it
did not address all of his liability theories. Tener further asserts that Morris and
SCM “did not conclusively establish” that the divorce court was required to apply
Texas law, his expert witness established a fact issue as to whether Morris and
SCM breached their standard of care and caused Tener’s damages, and fact issues
exist as to whether Tener resided in Colorado or Texas.
Morris and SCM’s Summary-Judgment Motion
Tener first argues that Morris and SCM failed to meet their summary-
judgment burden because they did not include any expert testimony and did not
address all of his theories of liability, namely, Morris and SCM’ negligence in
filing documents waiving any further right to contest personal jurisdiction,
accepting the benefits of requested affirmative relief, and stipulating that the
Colorado property was Sezanne’s separate property without Tener’s consent.
In their summary-judgment motion, Morris and SCM asserted that Tener lost
his special appearance due to the actions of Geiger, who represented him at the
special-appearance hearing, and not due to any acts or omissions of Morris. Morris
and SCM specifically argued that Morris’s actions, taken after the divorce court
11
had overruled Tener’s objection to jurisdiction, including the filing of a counter-
claim and seeking affirmative relief, did not constitute a waiver of Tener’s right to
appeal the divorce court’s special-appearance order.
In Texas,
If the objection to jurisdiction is overruled, the objecting party may
thereafter appear generally for any purpose. Any such special
appearance or such general appearance shall not be deemed a waiver
of the objection to jurisdiction when the objecting party or subject
matter is not amenable to process issued by the courts of this State.
TEX. R. CIV. P. 120a(4) (emphasis added); see also Aduli v. Aduli, 368 S.W.3d 805,
813 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (holding that party could not
have waived challenge to trial court’s denial of his special appearance even though
he had entered into agreed temporary orders establishing trial court’s jurisdiction
because special appearance preserved error); Equitable Prod. Co. v. Canales-
Trevino, 136 S.W.3d 235, 238 (Tex. App.—San Antonio 2004, pet. denied)
(holding that party’s filing of general appearance did not waive error in objection
to jurisdiction because trial court had already denied special appearance). Thus, in
their summary-judgment motion, Morris and SCM argued and established that
Morris did not waive Tener’s challenge to the divorce court’s ruling on his special
appearance.
Furthermore, although Morris and SCM did not attach any expert testimony
to their summary-judgment motion, they asserted, as a matter of law, that the
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divorce court was required, under the facts of the case, to apply Texas law to the
division of the estate. Morris and SCM argued, thus, that Morris could not have
caused Tener any damages in not moving the divorce court to apply Colorado law
or in his stipulation that the Colorado property constituted Sezanne’s separate
property. And Tener has not offered any authority establishing that Morris and
SCM in this case needed to attach expert testimony to their summary-judgment
motion in order to prove the legal issue of whether Texas or Colorado law applied
to the division of the estate. An expert may not testify on pure questions of law.
Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 94 (Tex. App.—
Houston [14th Dist.] 2005, no pet.) (citing Mega Child Care, Inc. v. Tex. Dep’t of
Protective & Regulatory Servs., 29 S.W.3d 303, 309 (Tex. App.—Houston [14th
Dist.] 2000, no pet.)). Thus, the question was a legal issue for the court to decide.
Genuine Issues of Material Fact
Tener asserts that Morris and SCM did not conclusively establish that the
divorce court was required to apply Texas law, rather than Colorado law, to the
division of the estate.
A legal malpractice action is based on negligence. Cunningham v. Hughes
& Luce, L.L.P., 312 S.W.3d 62, 67 (Tex. App.—El Paso 2010, no pet.) (citing
Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989)). A plaintiff bringing a
legal malpractice claim must show that “(1) the attorney owed the plaintiff a duty,
13
(2) the attorney breached that duty, (3) the breach proximately caused the
plaintiff’s injuries, and (4) damages occurred.” Grider v. Mike O’Brien, P.C., 260
S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.] 2008, pet. denied) (quoting
Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004)). If the
legal malpractice claim is based on the attorney’s acts during prior litigation, the
plaintiff must prove that, but for the attorney’s breach of duty, the plaintiff would
have been successful in the prior case. Id. (citing Greathouse v. McConnell, 982
S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)); see also
Heath v. Herron, 732 S.W.2d 748, 753 (Tex. App.—Houston [14th Dist.] 1987,
writ denied) (stating that defendant in underlying case claiming malpractice must
show defense “that, if proved, would cause a different result upon retrial of the
case”). The causation burden in this type of legal-malpractice claim has been
called the “suit-within-a-suit” requirement. See Greathouse, 982 S.W.2d at 173.
The suit-within-a-suit causation requirement applies both to claims for legal
malpractice and claims for a former attorney’s alleged breach of fiduciary duty
when the damages sought are based on the attorney’s wrongful conduct in prior
litigation. See Finger v. Ray, 326 S.W.3d 285, 291–92 (Tex. App.—Houston [1st
Dist.] 2010, no pet.); Greathouse, 982 S.W.2d at 173.
Generally, expert testimony is required to prove causation in a legal
malpractice suit. See Alexander, 146 S.W.3d at 119–20. Proximate cause has two
14
elements: cause in fact and foreseeability. Western Invs., Inc. v. Urena, 162
S.W.3d 547, 551 (Tex. 2005). “These elements cannot be established by mere
conjecture, guess, or speculation.” Id. (quoting Doe v. Boys Clubs of Greater
Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)). The test for cause in fact is
whether the act or omission constituted a substantial factor in causing the injury
without which the harm would not have occurred. Id.
As they did in their summary-judgment motion, Morris and SCM argue that
Morris could not have breached a duty to Tener or caused him any damages by not
urging the trial court to apply Colorado law to the distribution of the Colorado
property because the trial court was required to apply Texas law. Tener asserts that
Morris and SCM “erroneously assume[] that because the family court decided it
had personal jurisdiction,” it “had to” apply Texas law. And he asserts that “Texas
has long applied the Restatement’s ‘most significant relationship test’ . . . to
determine which jurisdiction’s substantive law should govern in a case,” citing
Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 421 (Tex. 1984) (adopting
Restatement (Second) of Conflict of Laws § 6 (1971)).
Generally, once a trial court in a Texas divorce proceeding establishes
personal jurisdiction over both spouses, it applies Texas law in making its division
of property, even if the property is located in another state. See Griffith v. Griffith,
341 S.W.3d 43, 57 (Tex. App.—San Antonio 2011, no pet.) (applying Texas
15
Family Code to divide real property in Florida); Ismail v. Ismail, 702 S.W.2d 216,
222 (Tex. App.—Houston [1st Dist.] 1985, writ ref’d n.r.e.) (declining to apply
Egyptian law); see also Nieto v. Nieto, No. 04-11-00807-CV, 2013 WL 1850780,
at *14 (Tex. App.—San Antonio May 1, 2013, pet. denied) (mem. op.) (declining
to apply laws of Mexico and noting, “The divorce was filed in Texas and the trial
court found the parties met the domiciliary and residence requirements . . . .
Therefore, we apply Texas law.”); Dawson-Austin v. Austin, 968 S.W.2d 319, 331
(Tex. 1998) (Baker, J., dissenting) (noting once trial court obtained personal
jurisdiction over parties, “divisibility” of divorce “turns on Texas law”).
As explained by Professor J. Thomas Oldham, a number of jurisdictions in
the United States have applied the “total mutability” approach in dividing property
in divorce proceedings, as follows:
Under this approach, all of the spouses’ marital property rights
at divorce are to be determined by the law of the jurisdiction where
the divorce is granted, regardless of when or where their property was
acquired. Notice that, under this approach (as contrasted with partial
mutability), property accumulated while living elsewhere is divided
based on forum law. . . .
This approach has the same benefit as total immutability in that
the court has to apply the law of only one jurisdiction to resolve the
parties’ rights. And, more importantly, the law to be applied is the
law of the forum, a set of laws one would hope the court would be
familiar with and competent to administer. So, this rule presumably
should be efficient for the court and inexpensive for the parties, since
they would avoid having to retain experts to explain the marital
property rules of another jurisdiction.
16
J. Thomas Oldham, What if the Beckhams Move to L.A. and Divorce? Marital
Property Rights of Mobile Spouses when They Divorce in the United States, 42
FAM. L. Q. 263, 268–69 (2008). Texas utilizes this approach, and this Court has
applied it. See id. (citing Ismail, 702 S.W.2d 216).
Texas Family Code section 7.001 provides that “[i]n a decree of divorce or
annulment, the court shall order a division of the estate of the parties in a manner
that the court deems just and right, having due regard for the rights of each party
and any children of the marriage.” TEX. FAM. CODE ANN. § 7.001 (Vernon 2006)
(emphasis added). And the trial court must assign any separate property to its
respective owner. See Cameron v. Cameron, 641 S.W.2d 210, 216 (Tex. 1982);
see also TEX. CONST. art. XVI, § 15; TEX. FAM. CODE ANN. § 3.001 (Vernon
2006).
Further, section 7.002, which governs “Division and Disposition of Certain
Property Under Special Circumstances,” provides
(a) In addition to the division of the estate of the parties required
by Section 7.001, . . . the [trial] court shall order a division of
the following real and personal property, wherever situated, in a
manner that the court deems just and right, having due regard
for the rights of each party and any children of the marriage:
(1) property that was acquired by either spouse while
domiciled elsewhere and that would have been
community property if the spouse who acquired the
property had been domiciled in this state at the time of
acquisition[.]
....
17
(b) . . . [And] the court shall award to a spouse the following real
and personal property, wherever situated, as the separate
property of the spouse:
(1) property that was acquired by the spouse while domiciled
in another state and that would have been the spouse’s
separate property if the spouse had been domiciled in this
state at the time of acquisition[.]
....
TEX. FAM. CODE ANN. § 7.002(a), (b) (Vernon 2006) (emphasis added).
In Cameron, the Texas Supreme Court recognized that “two different
systems of marital property regimes exist in the various states: common law and
community property,” and it explained that in enacting Texas Family Code section
7.002(a),5 “the legislature established a workable, uncomplicated framework for
effectuating just divisions of common law marital property on divorce in Texas.”
641 S.W.2d at 222. The court explained that there was no need to “embark[] on a
cumbersome, conflict of laws approach” when dividing property acquired in
various jurisdictions. Id. (citing J. Thomas Oldham, Property Division in a Texas
Divorce of a Migrant Spouse, Heads He Wins, Tails She Loses, 19 HOUS. L. REV. 1
(1981)).
This court, in reviewing a divorce court’s distribution of property in Ismail,
held that “[s]ince the [divorce] court properly applied [section 7.002(a)], there was
5
In 1997, the Texas legislature re-codified Texas Family Code section 3.63(a) and
3.63(b) into sections 7.001 and 7.002(a). See Act of April 17, 1997, 75th Leg.,
R.S., ch. 7, § 1, 1997 Tex. Gen. Laws 33, 33 (current version at TEX. FAM. CODE
ANN. §§ 7.001, 7.002(a) (Vernon 2006)). The language of these sections did not
substantively change.
18
no error in refusing to apply Egyptian law.” 702 S.W.2d at 222. In Ismail, the
defendant argued that the divorce court had erred in applying Texas law “because
applicable choice of law principles, both traditional and those contained in the
Restatement (Second) of Conflicts, dictate[d] that th[e] case be determined under
Egyptian law.” Id. We explained that “[p]roperty acquired by a spouse when
domiciled in another jurisdiction was, under pre-Cameron common law,
characterized according to the previous domicile’s laws.” Id. “The enactment of
[section 7.002], however, obviate[d] the need to apply this anachronistic conflict-
of-laws principle.” Id. (citing Cameron, 641 S.W.2d at 222). We further
explained:
[Section 7.002(a)] constitutes a rejection of, or rather a substitution
for, the standard conflict-of-laws solution. This remedy has become
unworkable in modern mobile America. In short, a legislative
solution has been provided to cut through the tangled jungle that has
necessarily grown from the inherent limitations of the judge-created
answer supplied by traditional conflict-of-laws theory.
Id. (citation omitted).
In support of his argument, Tener relies on Dawson-Austin v. Austin, 920
S.W.2d 776 (Tex. App.—Dallas 1996), rev’d on other grounds, 968 S.W.2d 319
(Tex. 1998). In Dawson-Austin, a divorcing couple disputed whether Texas or
Minnesota law applied to the division of certain shares of stock that the husband
had purchased before marriage. Id. at 787–88. Under the laws of each state, the
shares were the husband’s property to the extent of their value at the time of
19
marriage. Id. at 788. Under Texas law, the increase in the value of the shares due
to market forces that occurred during the marriage was considered an inherent part
of the stock and the husband’s separate property. Id. Under Minnesota law,
however, the appreciation in value was subject to equitable distribution on divorce.
Id. at 788–89.
As section 7.002(b), which governs the distribution of separate property, did
not yet exist, the husband argued that section 7.002(a), which solely governs
community property, “operate[d] as a comprehensive choice-of-law provision in
property characterization issues.” Id. Reasoning that section 7.002(a) “act[ed]
only to expand, not restrict, the definition of community property” and could not
be interpreted “to expand the definition of separate property and thus restrict
community property,” the court concluded that the choice-of-law issue there was to
be decided under the Restatement of Conflict of Laws. Id. at 790 (citing Duncan,
665 S.W.2d at 420–21).
As Morris and SCM note, however, Dawson-Austin was decided before the
legislature’s 2003 enactment of section 7.002(b). And Morris and SCM assert,
“The only reason [the court in] Dawson[-Austin] performed a Restatement analysis
was because there was no . . . controlling statute yet in existence” regarding
separate property.
20
Tener argues that section 7.002(b) is inapplicable because it applies only to
property acquired by a spouse while domiciled in another state, and Morris and
SCM did not conclusively establish that Sezanne was domiciled in Colorado at the
time she purchased the Colorado property. Tener asserts that in a Texas divorce
proceeding, the traditional conflict-of-laws approach applies to property acquired
by a spouse while domiciled in Texas.
Applying Tener’s approach would return us to the pre-Cameron
“cumbersome, conflict of laws approach” to dividing property acquired in various
jurisdictions. 641 S.W.2d at 222. The legislature’s purpose in amending the
statute was to “eliminate the need to apply this anachronistic conflict-of-laws
principle” in dividing property located in different states. Ismail, 702 S.W.2d at
222 (citing Cameron, 641 S.W.2d at 222). Moreover, Tener’s approach would
lead to the absurd result of applying Texas law in dividing property located outside
the state that a spouse acquires while domiciled in another state, but not
necessarily applying Texas law to property located outside the state that a spouse
acquires while domiciled in Texas. And Tener does not direct us to any authority
to support his proposition.
Because Sezanne filed this divorce proceeding in Texas, and the trial court
established personal jurisdiction over her and Tener, Texas law applied to the
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division of their property. See Griffith, 341 S.W.3d at 57; see also Nieto, 2013 WL
1850780, at *14; Dawson-Austin, 968 S.W.2d at 331.
Tener next argues that the trial court erred in granting Morris and SCM
summary judgment because Carroll’s affidavit established a fact issue as to each
element of his legal-malpractice claim. Carroll testified that “Texas courts
probably would have applied Colorado law upon request in this case because,
under the choice of law standard in Texas, Colorado has the most significant
relationship to the particular substantive issue.” Again, however, an expert may
not testify on pure questions of law. Greenberg Traurig of N.Y., P.C., 161 S.W.3d
at 94. Thus, to the extent that Carroll testified that Colorado law would have
applied in the underlying divorce proceeding had Morris presented it to the divorce
court, such testimony could not establish a fact issue.
Finally, Tener argues that the trial court erred in granting Morris and SCM
summary judgment because fact issues exist as to whether he resided in Colorado
or Texas. However, Tener’s residence is irrelevant as to whether the Texas Family
Code applied to the division of property in the divorce proceeding.
We hold that Morris and SCM, in their summary-judgment motion,
conclusively established that they did not breach a duty to Tener to assert the
application of Colorado law in the underling divorce proceeding or that any such
failure caused Tener any damages. See Grider, 260 S.W.3d at 55.
22
We overrule Tener’s first issue.
Breach of Fiduciary Duty
In his second issue, Tener argues that the trial court erred in granting Morris
and SCM summary judgment on his claim for breach of a fiduciary duty because
genuine issues of material fact exist on the claim and Morris and SCM “made no
attempt to meet their summary-judgment burden.”
The elements of a claim for breach of fiduciary duty claim are (1) a fiduciary
relationship between the plaintiff and defendant, (2) a breach by the defendant of
his fiduciary duty to the plaintiff, and (3) an injury to the plaintiff or benefit to the
defendant as a result of the defendant’s breach. Lundy v. Masson, 260 S.W.3d 482,
501 (Tex. App.—Houston [14th Dist.] 2008, pet. denied).
The “rule against fracturing” a legal-malpractice claim provides that a
claimant for legal malpractice may not opportunistically transform such a
negligence claim into separate non-negligence causes of action. See Deutsch v.
Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex. App.—Houston [14th
Dist.] 2002, no pet.); Goffney v. Rabson, 56 S.W.3d 186, 190 (Tex. App.—
Houston [14th Dist.] 2001, pet. denied). Other claims may still be advanced
simultaneously, but a plaintiff must do more than merely reassert the same claim
for legal malpractice under an alternative label. See Duerr v. Brown, 262 S.W.3d
63, 70 (Tex. App.—Houston [14th Dist.] 2008, no pet.).
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Not every claim for breach of a fiduciary duty is actionable separately from
a claim for professional negligence. See Beck v. Law Offices of Edwin J. (Ted)
Terry, Jr., P.C., 284 S.W.3d 416, 429 (Tex. App.—Austin 2009, no pet.). To
distinguish between the two, courts have generally held that a claim for breach of
fiduciary duty focuses on whether an attorney obtained an improper benefit from
representing the client, whereas a negligence claim focuses on whether an attorney
represented a client with the requisite level of skill. Id. “An attorney breaches his
fiduciary duty when he benefits improperly from the attorney-client relationship
by, among other things, subordinating his client’s interest to his own, retaining the
client’s funds, engaging in self-dealing, improperly using client confidences,
failing to disclose conflicts of interest, or making misrepresentations to achieve
these ends.” Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex. App.—Dallas 2004, no
pet.). Such claims require allegations of self-dealing, deception, or
misrepresentations that go beyond the mere negligence allegations in a malpractice
action. Trousdale v. Henry, 261 S.W.3d 221, 228 (Tex. App.—Houston [14th
Dist.] 2008, pet. denied).
Here, Tener asserts that Morris “affirmatively represented a material
matter,” namely, that Tener “had to” stipulate that the Colorado property was
Sezanne’s separate property. This is an assertion that Morris did not represent
Tener with the requisite level of skill. Tener does not assert that Morris engaged in
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self-dealing, deception, or misrepresentations that would go beyond a mere
negligence allegation in a malpractice action. See, e.g., Trousdale, 261 S.W.3d at
227–28.
Tener further asserts that he should be given an opportunity to replead his
claim for breach of a fiduciary duty, but he does not state how he would replead
the claim or what he would add to his claims in order to distinguish it from his
legal-malpractice claim. An opportunity to amend is available only when a defect
is curable. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007).
And Tener has not established how he would cure his pleadings, nor did he ask the
trial court for an opportunity to replead his claims. Accordingly, we hold that the
trial court did not err in granting Morris and SCM summary judgment on Tener’s
claim for breach of fiduciary duty.
We overrule Tener’s second issue.
Evidentiary Objections
In his third issue, Tener argues that the trial court erred in overruling his
objections to Morris and SCM’s summary-judgment evidence, specifically, his
objection to the opinion of the court of appeals dismissing his appeal for failure to
prove indigent status, the divorce court’s findings of fact and conclusions of law,
and the Teners’ joint tax returns. Tener asserts that the above evidence was “not
authenticated” or “self-authenticating” and constituted hearsay.
25
Documents submitted as summary-judgment evidence must be sworn to or
certified. TEX. R. CIV. P. 166a(f). Therefore, although court records from other
proceedings are acceptable summary-judgment evidence, they must be certified or
attested to under oath as authentic. Gardner v. Martin, 345 S.W.2d 274, 276–77
(Tex. 1961); Soefje v. Jones, 270 S.W.3d 617, 626 (Tex. App.—San Antonio 2008,
no pet.).
Morris and SCM attached to their response to Tener’s objections an affidavit
from Morris. Morris testified that Exhibit A, which he received from the court of
appeals, “is a true and correct copy of the court of appeals opinion in the
underlying divorce case.” He testified that Exhibit C, which he received from the
divorce court when it was issued, is “a true and correct copy of the findings of fact
and conclusions law.” And Morris testified that Exhibit D, a copy of the Teners’
joint tax returns, is a “true and correct” copy of the records, which were produced
during discovery in the divorce case. While Morris represented Tener, Tener
“admitted his signature [was] on the tax returns for the years 2000–2006” and the
returns were “true and correct copies of those filed.”
Thus, Morris swore to the authenticity of all of the summary-judgment
evidence about which Tener complains. Accordingly, we hold that the trial court
did not err in overruling Tener’s objections to Morris and SCM’s summary-
judgment evidence.
26
We overrule Tener’s third issue.
Conclusion
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Brown, and Huddle.
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