Roger K. Parsons, Individually and as Independent Administrator for the Estate of Esther Ann Kartsotis Parsons v. Michael Kevin Queenan and the Queenan Law Firm

Affirmed and Opinion Filed January 23, 2017
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-01375-CV
ROGER K. PARSONS, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR
FOR THE ESTATE OF ESTHER ANN KARTSOTIS PARSONS, Appellant
V.
MICHAEL KEVIN QUEENAN AND THE QUEENAN LAW FIRM, Appellees
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-00971
MEMORANDUM OPINION
Before Justices Francis, Fillmore, and Stoddart
Opinion by Justice Francis
Roger K. Parsons, individually and as independent administrator for the estate of his
wife, Esther Ann Kartsotis Parsons, appeals the trial court’s summary judgment disposing of his
negligence, breach of fiduciary duty, and fraud claims against appellees Michael Kevin Queenan
and the Queenan Law Firm. In two issues, Parsons contends the trial court erred by granting
Queenan’s summary judgment on anti-fracturing and statute of limitations grounds. We affirm.
This is the third malpractice lawsuit brought by Parsons against lawyers who have
represented him since the death of his wife in a plane crash more than two decades ago. In 1991,
Parsons retained Windle Turley and Windle Turley, P.C. to represent him in wrongful death and
survival actions in connection with his wife’s death. A federal jury awarded Parsons $4.75
million in actual damages and also made predicate gross negligence findings, but the judge set
aside the gross negligence findings on legal sufficiency grounds. See Parsons v. E.I. Du Pont De
Nemours, 91 F.3d 139 (5th Cir. 1996) (per curiam) (not designated for publication). Parsons
appealed to the Fifth Circuit Court of Appeals, which affirmed the decision. Id.
More than two years later, Parsons retained attorneys Robert Greenberg and Robert
Motsenbocker to sue Turley for legal malpractice, alleging among other things that Turley had
negligently failed to use and discover evidence of the pilot’s alcohol problem. See Parsons v.
Turley, 109 S.W.3d 804, 808 (Tex. App.—Dallas 2003, pet. denied). Turley moved for
summary judgment on the ground he was not served with citation prior to the time the statute of
limitations expired. The trial court granted summary judgment for Turley, and this Court
affirmed the summary judgment. Id. at 808–10.
Parsons then sued Greenberg and Motsenbocker for malpractice for their representation
in the Turley litigation. In addition to disgorgement of fees, Parsons sought as actual damages
the “lost punitive damages” from the underlying wrongful death suit. One year into the suit,
Parsons’s attorneys withdrew and Parsons hired Queenan to replace them. Queenan represented
Parsons for about twenty months. During that time, the trial court granted a partial summary
judgment on lost punitive damages and, according to Parsons, later “expanded the effect” of that
ruling to limit him to a refund of fees. Shortly after, Parsons wanted to add the law firm Baron &
Budd and the estate of Fred Baron as defendants in the suit because Baron had recommended
Greenberg to Parsons. On December 22, 2008, Parsons, acting pro se, filed an amended petition
adding the Baron defendants. Seven weeks later, the trial court granted Queenan’s motion to
withdraw as Parsons’s attorney. The order recites that Parsons agreed to Queenan’s withdrawal
from the lawsuit.
Once Queenan withdrew, Parsons was unable to find new counsel and represented
himself. The trial was held about eight months later. Parsons obtained a negligence finding
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against Greenberg, but the jury did not award any damages. Parsons appealed, and the Fort
Worth Court of Appeals affirmed the judgment. Parsons v. Greenberg, No. 02-10-00131-CV,
2012 WL 310505, at *1 (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied) (mem. op.). Parsons
appealed to the Texas Supreme Court, which denied his petition for review on October 19, 2012
and denied his motion for rehearing on December 7, 2012.
After Parsons’s appeal in the Greenberg suit became final, Parsons filed a Texas Rule of
Civil Procedure 202 petition seeking Queenan’s deposition and certain categories of documents
from Queenan. The trial court denied Parsons’s request, and fourteen months later, on January
27, 2015, he filed this suit against Queenan. The petition alleged claims for fraud, breach of
fiduciary duty, professional negligence, gross negligence, and violations of the Deceptive Trade
Practices Act. In addition, the petition alleged the statute of limitations was tolled until the final
appeal in the Greenberg case.
After filing an answer to the lawsuit, Queenan moved for traditional summary judgment
on two grounds. First, Queenan argued the legal malpractice suit is time-barred because under
the Hughes1 tolling doctrine, the two-year statute of limitations was tolled until December 7,
2012, the date the supreme court denied Parsons’s motion for rehearing in the Greenberg lawsuit,
and Parsons did not file this suit until more than two years later, on January 27, 2015. Second,
Queenan argued the fraud, breach of fiduciary duty, and DTPA claims were impermissible
attempts to “fracture” his legal malpractice claim. Alternatively, he argued that even if these
claims are not fractured malpractice claims, they are nevertheless time-barred.
In response, Parsons argued his negligence claim was timely filed within two years of the
issuance of the mandate, which he contended was the proper date for tolling purposes. Further,
he asserted that even if the negligence claim is time-barred, his fraud and breach of fiduciary
1
Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1992).
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duty claims are governed by a four-year statute of limitations and are not time-barred once the
tolling doctrine is applied. Finally, he argued his fraud and breach of fiduciary duty claims were
not fractured malpractice claims and withdrew his DTPA claim.
The trial court granted Queenan’s motion for summary judgment and dismissed all of
Parsons’s claims with prejudice. Parsons filed a motion for new trial, which was overruled by
operation of law. This appeal followed.
In his first issue, Parsons contends the trial court erred by granting summary judgment on
his fraud and breach of fiduciary duty claims based on the anti-fracturing rule.
The anti-fracturing rule prevents plaintiffs from converting what are actually professional
negligence claims against an attorney into other claims such as fraud, breach of contract, breach
of fiduciary duty, or DTPA violations. Won Pak v. Harris, 313 S.W.3d 454, 457 (Tex. App.—
Dallas 2010, pet. denied). The rule prevents legal malpractice plaintiffs from “opportunistically
transforming a claim that sounds only in negligence into other claims” to avail themselves of
longer limitations periods, less onerous proof requirements, or other tactical advantages. Beck v.
Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 427 (Tex. App.—Austin 2009,
no pet.).
For the anti-fracturing rule to apply, however, the gravamen of Parsons’s complaints
must focus on the quality or adequacy of the attorney’s representation. See Won Pak, 313
S.W.3d at 457. In other words, if the gist of a client’s complaint is that the attorney did not
exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge
commonly possess, then that complaint should be pursued as a negligence claim rather than
some other claim. Futch v. Baker Botts, LLP, 435 S.W.3d 383, 387 (Tex. App.—Houston [14th
Dist.] 2014, no pet.). In contrast, claims of breach of fiduciary duty against an attorney focus on
whether the attorney obtained an improper benefit from representing the client and involve the
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integrity and fidelity of the attorney. Won Pak, 313 S.W.3d at 457. Merely characterizing
conduct as a “misrepresentation” or “conflict of interest” does not necessarily transform what is
really a professional negligence claim into a fraud or breach of fiduciary duty claim. Id.
Even if a complaint implicates a lawyer’s fiduciary duties, it does not necessarily follow
that such a complaint is actionable apart from a negligence claim. Won Pak, 313 S.W.3d at 458.
In fact, the standard of care in attorney negligence cases often refers to and is defined by the
characteristics inherent in the fiduciary duty between the lawyer and the client. Id. 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. Goffney v. Rabson, 56 S.W.3d 186,
193 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). Whether certain allegations asserted
against an attorney and labeled as breach of fiduciary duty or fraud are actually claims for
professional negligence is a question of law to be determined by the court. Id.
Parsons argues he alleged a proper fraud claim based on the following allegations in his
original petition. Parsons claims that in conversations leading to Queenan’s hire, Queenan told
him he knew a judge who was friends with the presiding judge in the case and, through that
friendship, Queenan “would be able to learn what the presiding judge was thinking about
Parsons’s case.” He alleged the statement was false, that “[a]t no time, did Queenan’s
relationship with retired judges work to Parsons’s advantage,” and Queenan was “unethical” for
making the statement.
Additionally, he alleged Queenan stated he would develop Parsons’s fraud claim against
Greenberg and Motsenbocker by “deposing witnesses” relevant to those allegations, including
Greenberg and Motsenbocker. Parsons maintained this statement was also false. Further, he
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stated that when the insurer failed to send a representative to a noticed deposition, Queenan
dropped the matter and also “caved” when the defendants failed to provide documentation of
their previous insurance companies.
These allegations do not give rise to a separate fraud cause of action. The gist of the first
allegation is that Queenan contemplated, but did not successfully pursue, indirect ex parte
communication with the trial judge concerning the case. Although an attorney’s representation
of a client should never include improper ex parte communication with a trial judge, this
allegation focuses upon the quality or adequacy of the attorney’s representation. The second
statement simply alleges that Parsons failed to take some actions he argued were necessary to his
case. This second allegation is a complaint that Queenan did not exercise the degree of care or
skill that attorneys of ordinary skill and knowledge commonly possess. As such, these
allegations are negligence claims.
Following his cause of action for fraud, Parsons alleged in his petition that Queenan
owed him a fiduciary duty with regard to Queenan’s “billing practices” and the manner in which
he withdrew from the case and breached that duty. He sought damages and a forfeiture of a
portion of the expenses and fees collected by Queenan.
Beginning with the “billing” complaint, Parsons alleged Queenan billed him “about
$800,000 and did little work on the practical aspects” of his case. In his brief, he explains the
primary reason for Queenan’s hire was to recover “lost punitive damages,” and once the trial
court granted summary judgment on that issue, “the justification for Queenan’s exorbitant hourly
fee went with them.” He asserts Queenan owed a fiduciary duty to “advise him that he was
throwing good money after bad, or to develop other, potential avenues for obtaining relief,” but
instead Queenan “continued to milk Parsons for all he was worth without doing anything to try to
salvage his case.”
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We conclude the gist of this allegation concerns the quality of Queenan’s representation,
specifically, his failure to properly advise Parsons and to develop and pursue a better trial
strategy, which are claims of negligence. See Murphy v. Gruber, 241 S.W.3d 689, 698–99 (Tex.
App.—Dallas 2007, pet. denied). Although he complains the “justification” for Queenan’s
“exorbitant hourly fee” disappeared once summary judgment was granted on lost punitive
damages, Parsons does not allege he was billed for work never performed or that Queenan
charged a fee that exceeded the amount agreed upon. See id. at 699 (concluding allegation that
lawyers “chos[e] their own interest in obtaining a multimillion dollar fee” in case does not,
without more, allege type of dishonesty or intentional deception to support breach of fiduciary
duty claim).
Parsons also alleged Queenan breached his fiduciary duty in the manner of his
withdrawal from the case. He suggested a “cooperative effort” existed to force Queenan to
withdraw from his case, “by creating a personal interest for Queenan that conflicted with his
fiduciary duty to Parsons” and Queenan “bowed” to this effort. Specifically, Parsons alleged that
during Queenan’s representation of him, Queenan hired attorney William Cobb to defend
Queenan in an unrelated legal malpractice action. Parsons stated that suit was filed on January 8,
2008. Thirteen months later, Cobb appeared in Parsons’s malpractice lawsuit on behalf of
Baron and Budd after Parsons, acting pro se and while Queenan was still his counsel, amended
the petition to add the firm as a defendant. Five days later, the trial court signed an order
granting Queenan leave to withdraw. Parsons alleged Cobb came in before the hearing and
shook hands with Queenan, and the two “acted as though this was the first time they’d met.”
Further, Parsons asserted Cobb continued to represent Queenan in the malpractice action and
settled the case two weeks before Parsons “was forced to represent himself (pro se) against
Greenberg and Motsenbocker.” In his petition, Parsons alleged Queenan owed him a duty “not
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to let Cobb’s work as Queenan’s attorney affect Queenan, when Cobb appeared on the other side
in Parson’s case.” Rather, Parsons asserted Queenan should have fired Cobb rather than
“withdrawing and leaving Parsons pro se.”
While Parsons suggests Queenan put his own personal interest over Parsons’s interests,
he does not brief how Cobb’s representation of Queenan (in an unrelated matter) and Baron and
Budd (in the Greenberg malpractice action) created a conflict of interest for Queenan in his
representation of Parsons. And he did not allege Queenan pursued his own pecuniary interests or
otherwise obtained an improper benefit by withdrawing from the case or failing to disclose that
Cobb was his lawyer. Instead, the gist of Parsons’s complaint is that Queenan abandoned him
and he could not find another lawyer to represent him at trial eight months later. In fact,
Parsons’s petition specifically complained that Queenan “[f]ailed to represent Parsons’s interest
adequately and competently by withdrawing before Parsons could secure alternate
representation.”
We conclude this allegation challenges the degree of care Queenan owed to Parsons at
the time he decided to withdraw from the case as well as his duty to fully inform Parsons of the
circumstances of the withdrawal and any resulting consequences, which is more properly
characterized as a malpractice claim. See Goffney, 56 S.W.3d at 193–94 (claim that attorney
abandoned client at trial, failed to prepare adequately for trial, and misled client into believing
case was properly prepared for trial constituted claim for malpractice rather than breach of
fiduciary duty); West v. Hubble, No. 05-06-01683-CV, 2008 WL 2941854, at *2 (Tex. App.—
Dallas Aug. 1, 2008, pet. denied) (mem. op.) (claims that attorney, among other things,
abandoned client on eve of trial after failing to timely designate expert, withdrew from
representing client after client would not consent to increase in contingent fee percentage,” and
agreed with opposing counsel to modify settlement agreement (to client’s benefit) without
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client’s knowledge or consent after representation did not constitute breach of fiduciary duty but
were legal malpractice claims). Moreover, to the extent any conflict was created by Cobb’s
representation of Queenan and Baron and Budd, it was cured by Queenan’s withdrawal, which
the record undisputedly shows was agreed to by Parsons. It is not “the type of dishonesty or
intentional deception” that will support a breach of fiduciary duty claim. See Murphy, 241
S.W.3d at 699.
In summary, we conclude the allegations supporting Parsons’s claims for fraud and
breach of fiduciary duty sound in professional negligence because the essence of the allegations
focuses on the quality or adequacy of Queenan’s representation. Accordingly, the trial court did
not err in concluding these claims constituted impermissible “fractured” malpractice claims. We
overrule the first issue.
In his second issue, Parsons argues the trial court erred by granting summary judgment
on the basis that his legal malpractice claim was barred by the statute of limitations. He argues
the statute of limitations was tolled until the mandate issued on January 31, 2013, under the rule
established in Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991) and Apex Towing Co.
v. Tolin, 41 S.W.3d 118, 118–19 (Tex. 2001). Because he filed suit on January 27, 2015, he
argues it was not time-barred. In contrast, Queenan asserts the statute of limitations was tolled
until the supreme court denied Parsons’s motion for rehearing on December 7, 2012, and
Parsons’s suit was filed more than two years from that date, making it untimely.
The legal malpractice claims presented in this case are governed by the two-year statute
of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2016); Willis v.
Maverick, 760 S.W.2d 642, 644 (Tex. 1988). Limitations generally begins to run when the cause
of action accrues, which means when facts have come into existence that authorize a claimant to
seek a judicial remedy. Apex, 41 S.W.3d at 120. In cases where the discovery rule applies,
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limitations does not begin to run until the client discovers or should have discovered through the
exercise of reasonable diligence the facts establishing the elements of a cause of action. Id.
In Hughes, the Texas Supreme Court established a tolling rule for the statute of
limitations in legal malpractice cases: “[W]hen an attorney commits malpractice in the
prosecution or defense of a claim that results in litigation, the statute of limitations on the
malpractice claim against the attorney is tolled until all appeals on the underlying claim are
exhausted.” Hughes, 821 S.W.2d at 157. The court held the tolling ended “when we overruled
the Hughes’s motion for rehearing because the last action of right that they could take and did
take on the underlying case was concluded on that date.” Id. at 158 n.6. In accordance with
Hughes, we likewise conclude limitations in this case was tolled until December 7, 2012, the
date the supreme court overruled Parsons’s motion for rehearing. Consequently, Parsons’s suit,
filed more than two years later, was time-barred.
In reaching this conclusion, we reject Parsons’s argument that the mandate should control
the date tolling ended because that date would be the “best, bright line” rule. He argues Apex
Towing crafted an “additional reference date”––when litigation is “otherwise finally concluded”–
– which supports using the date of the mandate in this case. We cannot agree. In Apex Towing,
the court applied the Hughes rule and determined the underlying case was not concluded until
the court of appeals dismissed Apex’s appeal, which was after the parties settled the case. Apex
Towing, 41 S.W.3d at 123. Nothing in the opinion suggests that limitations is tolled from the
date of the mandate. We overrule the second issue.
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We affirm the trial court’s order granting Queenan’s summary judgment and dismissing
Parsons’s claims.
/Molly Francis/
MOLLY FRANCIS
JUSTICE
151375F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ROGER K. PARSONS, INDIVIDUALLY On Appeal from the 160th Judicial District
AND AS INDEPENDENT Court, Dallas County, Texas
ADMINISTRATOR FOR THE ESTATE Trial Court Cause No. DC-15-00971.
OF ESTHER ANN KARTSOTIS Opinion delivered by Justice Francis;
PARSONS, Appellant Justices Fillmore and Stoddart participating.
No. 05-15-01375-CV V.
MICHAEL KEVIN QUEENAN AND THE
QUEENAN LAW FIRM, Appellees
In accordance with this Court’s opinion of this date, the trial court’s Order Granting
Defendants’ Motion for Summary Judgment is AFFIRMED.
It is ORDERED that appellees MICHAEL KEVIN QUEENAN AND THE QUEENAN
LAW FIRM recover their costs of this appeal from appellant ROGER K. PARSONS,
INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR FOR THE ESTATE OF
ESTHER ANN KARTSOTIS PARSONS.
Judgment entered January 23, 2017.
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