Trial Court: 165th District Court Harris County, Texas Trial Court Case No. 2013-31227
STINAL ATKINS, Appellant,
v.
JOSEPH BERNARD SCHULTZ, Appellee.
Court of Appeals of Texas, First District, Houston.
Joseph Schultz, for Appellee, Pro Se.
Sonya Chandler-Anderson, for Stinal Atkins, Appellant.
On Appeal from the 165th District Court, Trial Court Case No. 2013-31227, Harris County, Texas.
Panel consists of Chief Justice Radack and Justices Massengale and Brown.
MEMORANDUM OPINION
SHERRY RADACK, Chief Justice.
In this legal malpractice case, we consider whether the client, Stinal Atkins, presented sufficient evidence to raise a fact question thereby precluding the attorney, Joseph Bernard Schultz, from obtaining a no-evidence summary judgment. Because we hold that Atkins did not, we affirm.
BACKGROUND
On May 17, 2010, Schultz filed a personal injury lawsuit[1] against Dun Huang Plaza Association ["Dun Huang"], on behalf of Atkins, alleging that Atkins sustained personal injuries due to Dun Huang's negligence. On April 12, 2011, Schultz filed an amended petition on behalf of Atkins, which added MGBAH, Inc. d/b/a Justice Protective Services ["Justice"] as a defendant.
On March 19, 2012, the trial court granted summary judgment in favor of Dun Huang. Although the claims against Justice remained pending, the Harris County District Clerk listed the case as "disposed."
In 2013, while the underlying case was still pending, Atkins filed the present legal malpractice suit against Schultz based on his handling of the underlying lawsuit.
In May 2015, Schultz filed two motions in the underlying case; a motion to withdraw as counsel and a motion to clarify the status of the case. After a hearing on the motions, the trial court in the underlying case granted Schultz's motion to withdraw and changed the status of the case to "active."
On July 28, 2016, through new counsel,[2] Atkins obtained a post-answer default judgment in the underlying case against Justice, the only remaining defendant. Though Atkins now claims that the amount awarded in the underlying suit is insufficient, no appeal from that disposition was filed in the underlying lawsuit.
On August 18, 2016, Shultz filed a combined traditional and no-evidence motion for summary judgment in this legal malpractice case. Schultz's motion alleged that there was no evidence on one or more of each of Atkins's asserted causes of action. The only evidence attached to Schultz's motion were five pleadings or orders from the underlying suit.
On September 7, 2016, Atkins filed a response to Schultz's combined traditional and no-evidence motion for summary judgment, but he did not attach any evidence. Instead, he "incorporated" the evidence attached to Schultz's motion.
The trial court granted Schultz's motion without specifying the grounds upon which it was based, and this appeal followed.
PROPRIETY OF SUMMARY JUDGMENT
In his sole issue on appeal, Atkins contends as follows:
The Trial Court Erred in Granting the Appellee's Motion for Summary Judgment, as the Appellant Did Prove that a Genuine Issue[] of Fact Existed.
Specifically, Atkins claims that his response to the motion for summary judgment raised fact issues on his legal malpractice claims, damages, and breach-of-fiduciary-duty claim.
Standard of Review
When, as here, a party moves for summary judgment under both rule 166a(c) and rule 166a(i), we first review the trial court's summary judgment under the standards of rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). Under rule 166a(i), a movant must assert that, after adequate time for discovery, there is no evidence of one or more essential elements of a claim or defense on which the adverse party would have the burden of proof at trial. TEX. R. CIV. P. 166a(i); see Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). To defeat a rule 166a(i) summary-judgment motion, the nonmovant must produce summary-judgment evidence raising a genuine issue of material fact as to each of the challenged elements. TEX. R. CIV. P. 166a(i); Ford Motor Co., 135 S.W.3d at 600. A genuine issue of material fact exists if the nonmovant produces more than a scintilla of evidence establishing the existence of the challenged elements. Id. More than a scintilla of evidence exists if the evidence would allow reasonable and fair-minded people to differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); see Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex. 2007). If the nonmovant fails to produce more than a scintilla of evidence under that burden, there is no need to analyze whether the movant's proof satisfies the rule 166a(c) burden. Ford Motor Co., 135 S.W.3d at 600.
Legal Malpractice
A legal-malpractice action require proof of four elements: (1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately caused the plaintiff's injuries; and (4) damages occurred. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004). If the malpractice action arises from prior litigation, the plaintiff bears the additional burden of proving that, "but for" the attorney's breach of duty, the plaintiff would have prevailed on the underlying cause of action and would have been entitled to judgment. See id. at 188-19. To discharge this burden, known as the "suit within a suit" requirement, the plaintiff must produce evidence explaining the legal significance of the attorney's failure and the impact this had on the underlying actions. Id.at 119-20. The plaintiff will not be successful in discharging this burden if he fails to produce expert testimony regarding causation and the standard of skill and care ordinarily exercised by an attorney. Id.
In his no-evidence motion for summary judgment, Schultz asserted that Atkins had no evidence of the breach, causation, or damages elements of a legal-malpractice claim. We agree.
Atkins attached no summary-judgment evidence to his summary-judgment response, but merely "incorporate[d] by reference it in its entirety the Defendants exhibits," specifically, "[Atkins's] petition statement of facts and exhibits included with it." However, the only evidence that Schultz attached to his no-evidence motion for summary judgment that could possibly have been incorporated into Atkins's response were five pleadings or orders from the underlying lawsuit.[3]
With regard to the causation element of legal malpractice, Atkins was required to present evidence explaining how Schultz breached the applicable standard of care and that such breach caused Atkins's damage. Haddy v. Caldwell, 403 S.W.3d 544, 547 (Tex. App.-El Paso 2013, pet. denied) (citing Alexander, 146 S.W.3d at 119-20; McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.-Houston [14th Dist.] 2008, no pet.); Cantu v. Horany, 195 S.W.3d 867, 873 (Tex. App.-Dallas 2006, no pet.); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex. App.-Austin 2002, pet. denied)). Here, Atkins provided no evidence, and certainly not expert evidence, to raise a fact issue as to breach and causation.
In his appellate brief, Atkins refers to "the affidavit of Stinal Atkins" and "the deposition transcript of Joseph Schultz," claiming that they raise fact questions. However, neither are part of the summary judgment evidence or the appellate record.
Because Atkins did not raise a fact issue, the trial court properly granted summary judgment in Schultz's favor on Atkins's legal malpractice claim.
Damages
Regarding damages, Atkins again contends that his own affidavit "is evidence that Stinal Atkins suffered damages as a result of Joseph Schultz's breach of fiduciary duty." Again, we note that Atkins's affidavit is not included within the summary-judgment evidence. As such, it cannot raise a fact issue on damages.
Breach of Fiduciary Duty
In his no-evidence motion for summary judgment, Schultz argued that "[Atkins] attempts to recast a professional negligence claim as a breach of fiduciary duty claim." We agree.
The rule against fracturing claims 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); see also Young v. Dwayne R. Day, No. 01-16-00325-CV, 2018 WL 1473931, at *3 (Tex. App.-Houston [1st Dist.] March 27, 2018, no pet. h.). 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 a client's complaint must focus on the quality or adequacy of the attorney's representation. Murphy v. Gruber, 241 S.W.3d 689, 692-93 (Tex. App.-Dallas 2007, pet. denied). "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." Deutsch v. Hoover, Bax & Slovacek, L.L.P, 97 S.W.3d 179, 189 (Tex. App.-Houston [14th Dist.] 2002, no pet.). If, however, the client's complaint is more appropriately classified as another claim, for example, fraud, DTPA, breach of fiduciary duty, or breach of contract, then the client can assert a claim other than negligence. Id. In particular, claims of breach of fiduciary duty against an attorney focus on whether the attorney obtained an improper benefit from representing the client. 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.
According to Atkins's appellate brief, his petition alleged that Schultz's representation was deficient because Schultz (1) delayed serving citation on Dun Huang for 180 days, (2) did not compel discovery from Dun Huang to discover information on Justice., whose employee assaulted Schultz, (3) did not conduct discovery, (4) did not obtain Atkins's medical records, (5) did not respond to Dun Huang's motion for summary judgment, (6) did not know that Atkins's claims against Dun Huang had been disposed of, (7) misrepresented settlement negotiations and misrepresented that the case was worth 2.5 million dollars, (8) did not know that the court records incorrectly showed that the case was closed, and (9) should have sued Mr. Yu Yeng in his individual capacity.
The gist of all these complaints is that Schultz "did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess." As such, the breach of fiduciary duty is the same as the legal malpractice claim.
"The elements of a breach-of-fiduciary-duty claim are: (1) a fiduciary relationship existed between the plaintiff and defendant; (2) the defendant breached its fiduciary duty to the plaintiff; and (3) the defendant's breach resulted in injury to the plaintiff or benefit to the defendant." Anderton v. Cawley, 378 S.W.3d 38, 51 (Tex. App.-Dallas 2012, no pet.). Just as there was no evidence raising a fact issue on breach, causation, or damages in the legal malpractice claim, Atkins presented no evidence raising a fact issue on breach, causation, or damages in the breach-of-fiduciary-duty claim.
We overrule Atkins's sole issue on appeal.
CONCLUSION
We affirm the trial court's judgment.
[1] Cause No. 2010-30696 in the 165th District Court of Harris County, hereinafter "the underlying lawsuit."
[2] Atkins's new attorney in the underlying suit is the same attorney that is representing him in the malpractice case currently on appeal.
[3] The exhibits attached to Schultz's no-evidence summary judgment were the following documents from the underlying lawsuit: (1) Atkins's Original Petition dated May 17, 2010; (2) Atkins's First Amended Original Petition dated April 12, 2011; (3) a March 19, 2012 order granting summary judgment to Dun Huang Plaza Association; (4) a June 22, 2015 order clarifying that the case status was "Active," and (5) a July 28, 2017 post-answer default judgment in Atkins's favor against Justice.
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