### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-08-00042- CV

Angela Brescia and Duane Brescia, Appellants

v. Slack & Davis, L.L .P . and Don na Bow en, Appellees

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 200 TH JUDICI AL DISTRICT NO. D-1 -GN-0 6-0 0250 0, H ONO RAB LE SUZ ANNE COVI NGTON, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N
Ang ela Br escia and Duane Br escia (the “B resc ias”) sued Slack & Davis, L .L .P., and attorney Donna Bow en (collec tively , “Slack & Davis”or “the law firm” ) for neg lige nce, de ceptive trade prac t i ce s, and brea ch of fiduciar y duty in the handling of the Br escia s’ underly ing medicalmalprac tice lawsuit. The trial court denied the Br escia s’ motion for entry of a discovery -control plan (L evel 3) and struck two of the Br escia s’ expert-witness aff idavits. The court then g ranted S lack & Davis’s no-evide nce motion for summary judgme nt and rende red judgme nt that the Br escia s take nothing on all claims. On appea l, the Br escia s arg ue seven issues, su mmarized by the following 1

t hree issues: (1) whether the trial court abused its discretion by deny ing the Br escia s’ motion fo r entry of a discovery -control plan and by striking the aff idavits of two of the Br escia s’ experts;

The Br escia s conce de the supreme court’s decision in Fort Brown Villas III Condo

. 1 Ass’n. v. Gillenwater

disposes of their four

th issue. 285 S.W .3d 879 (Tex. 2009).(2) whether claims for dece ptive trade prac tices and brea ch of fiduciar y d u t i es are subject to the “suit-within-a-suit” require ment; and (3) whether Slack & Davis’s no-evide nce motion was leg ally sufficie nt to support a take- nothing summary judgme nt on all claims. We will aff irm the judgme nt of the trial c ourt.

F ACTUAL AND P ROCEDURAL BACK GR OUND

I n Aug ust 2001, Ang ela Br escia was admitted to Presby terian Hospital (“Pre sby terian” ) in Dallas for the delivery of her first child. Her obstetrician was Dr. Be rnadine Ba nk, who prac ti c e d th

r o u g h th e Walnut Hill Obstetrics & Gy necolog y Association (“Walnut Hill”). To induce labor, Ang ela was administered the drug Cy totec as a cer

vical ripene r. The United States Food and Drug Administrative (“F DA”) had approve d Cy totec for trea ting peptic ulcer s but not to induce labor. Both the drug ’s manufa cture r and the FDA had issued war nings ag ainst g iving Cy

totec
to preg nant women, noting that uterine rupture and materna l or feta l death had been repor ted when the drug was used “off

-labe l” as a labor inducer

. After rec eiving the drug , Ang ela’ s uterus ruptured and her baby was de livered by

emer g ency

cesa rea n section. Whil e still hospitaliz ed and rec overing from surger y , Ang ela beg an experiencing abdominal swelling and sever e discomfort. Five day s afte r the ce sare an section, a surg eon deter mined that Ang ela’ s colon had been perf orate d multipl e times and she had peritoni ti s a s a r e s u lt

. The sur geo n remove d 60 perc ent of Ang ela’ s colon and part of her small intestine. She has si nce endure d sever al additional surg ical proce dures to corr ect intestinal problems an d re s u lting complications that continue to this day and has been told she cannot safe ly bear any more children.

After initially reta ining another law firm, the Br escia s hired Slack & Davis to pursue
2a medical- malprac tice case on their behalf

. Bow en was the primary Slack & Davis attorney working

on the case . Slack & Davis asser ts tha t it consulted with thr ee doctors to revie w Ang ela’ s medical

rec ords and that two of those experts told the law firm that Dr. Ba nk, Walnut Hill, and Presby terian (collec tively , the “under ly ing healthca re defe ndants”) should have informed Ang ela of the risks and hazards associate d with the use of Cy totec. The Br escia s believed that, bey ond the informed- consent claim, the underly ing healthca re defe ndants we re also neg lige nt in the following aspec ts: (a) neg lige nt administration of Cy totec to induce labor; (b) neg lige nt follow-up car e afte r Ang ela’ s

cesa rea n section; (c) neg lige nt failure to tim ely diag nose and trea t Ang ela’ s post-cesa rea n-sec tion infec tion; and (d) Dr. Ba

nk’s neg lige nt delay in calling for a surg ical consultation (collec tively , the “additional medica l-malprac tice cla ims”). Yet, Slack & Davis conte nds the three medical e x perts it consulted opined that the additional medical- malprac tice cl ai m s wer e not viable and they told Slack & Davis they would not testify that the underly ing healthca

re defe ndants brea ched the standard of car e with reg ard to those additional claims. I n Aug ust 2003, Slack & Davis filed suit ag ainst the underly ing healthca

re defe ndants, asser

ting they failed to obta in A ng ela’ s informed consent to use Cy totec and tha

t failure br eac hed the a

pplicable standa

rd of c are (the “ underly

ing la wsuit”). I n September 2004, the Br escia s fired Slack & Davis and hired another law firm. J ust prior to be ing fired, howeve r, Slack & Davis rea ched an ag ree ment with the underly ing healthca

re defe ndants not only to con t i n ue the orig inal trial date but also to maintain the exis ting expertdesig nation deadline that had p as s ed in May 2004. As a result, the Bresc ias’ new counsel, David Marc hand, was unable to de signa te experts w ho would testify to the Br escia s’ additional medica lmalprac tice claims. The Br escia s wer e subsequently forc ed to settle the underly ing law s u i t “for

3nuisance value.” Six months later, in J uly 2006, the B resc ias sued Slack & Davis. Although the Br escia s’ orig inal petition stated the case would be conducte d as a L evel -3 discovery -control- plan case , no motion for entry of a discovery -control plan was filed. On September 5, 2007, the Br escia s filed a re s p o n s e to Slack & Davis’s reque st for disclosures that stated no testify ing expert witnesses had been reta ined. On September 7, 2007, they fi led their first amende d petition.

On September 17, 2007, Slack & Davis filed a no-e v i d en ce motion for summary judgme nt. See Tex. R. Civ. P. 166a(i). I n its motion, Slack & Davis alleg ed there was no expert evidenc e to support the Br escia s’ claims that they would have preva iled in the underly ing lawsuit. Two day s later, the Br escia s filed a moti o n fo r a L evel- 3 discovery -control plan and

serve d supplemental discovery response s, identify ing Wil liam Neumann and Dr. Marsde n Wagne r

as testify ing expert witnesses. On Oc tober 8, 2007, the Br escia s filed a response to Slack & Davis’s summary -judg ment motion, to which they att ache d, among others, the aff idavits of Dr. Wag ner a

nd Neumann. The trial court den i ed the Br escia s’ motion for entry of a discovery -control plan. Afte r s u staining Slack & Davis’s objections to the aff idavits of Dr. Wagne r and Neumann on the
g rounds that neither was timely desig nated as an expert witness, the trial court struck the aff idavits

as i n competent summary judgme nt evidenc e. The trial court then g rante d Slack & Davis’s n o evidenc e motion for summary judgme nt and rende red judgme nt that the Br escia s take nothing from Slack & Davis. The B resc ias now bring this appeal.

4DISCUSSIO N

Stan dard of Revie w

We revie w the trial court’s decision to deny the Br es ci as ’ m o t i on for entry of a discovery -control plan under an abuse- of-discr etion standard. See Brown v. Brown , 1 4 5 S.W .3d 745, 750 (Tex. App.—Dallas 2004, pet. denied) (cour t did not abuse its discretion by deny ing motion
to modify discovery -control plan). The trial court abuses its discretion when it acts without ref ere nce
to a ny g uiding rules and principles, such that its ruling is arbitra ry or unrea sonable. Low v. Henry , 221 S.W .3d 609, 614 (Tex. 2007); Cire v. Cummings , 134 S.W .3d 835, 838-39 (Te x . 2004).

We reviewde novo the t rial court’s decision to g rant summary judgme nt. Valence Operating Co. v. Dorsett , 164 S.W .3d 656, 661 (Tex. 2005). Under the no-e vidence standard set forth in Rule 166a(i), a defe ndant may , afte r adequate time for discovery , move for summary judgme nt on the g round there is no evidenc e of one or more essential elements of a claim on which the plaintiff woul d h av e t h e b u rden of proof at trial. See Tex. R. Civ. P. 166a(i). A no-evide nce summary judgme nt is, in essenc e, a pretria l direc ted verdic t, and we apply the same leg al-suff iciency standard in revie wing a no-evide nce summary judgme nt as we use in revie wing a direc ted verdic t. King Ranch, Inc. v . Chapman , 118 S.W .3d 742, 750-751 (Tex. 2003)

. We review the evidenc e in the light most favor able to the nonmovant, disreg arding all contra ry evidenc e and infere nces. Id. at 750. I f the nonmovant b ri n g s forth more than a scintilla of evidenc e to raise a g enuine issue of materia l fac t, a no-evide nce summary judgme nt is improperly g rante d. Id. at 751. “More than a scintilla of evidenc e exis ts when the evidenc e ‘rises to a level that would enable rea sonable and fairminded people to differ in their conclusions.’” Id. (quoting Merre ll Dow Pharms, Inc. v. Havne r , 953 S.W .2d 706, 711 (Tex. 1997)).
5Motion for Entry of a Leve l-3 Discove ry-Control Plan A plaintiff must alleg e in the orig inal petition whether discovery is intended to b e conducte d und er L ev el 1 , 2 , or 3. See Tex. R. Civ. P. 190.1. The Br escia s’ petition stated an intention to conduct discovery under L evel 3. Howeve r, “[ T]he initial pleading require d by Rule 190.1 is mere ly to notify the court and other parties of the plaintiff’s intenti o n ; i t d o es not deter mine the applicable discovery level or bind the court or other parties.” Id. 190 cmt.1. A case can be designate d L evel 3 only by court order , d es p i t e pleading an i ntention to conduct discovery under L evel 3. Id.

The Br escia s asser

t the trial court err ed in deny ing their motion for entry of a L evel- 3 discovery -control plan. Be cause the Br escia s did not file their motion fo r en t ry o f a discovery

control plan until the expert-desig nation deadline under L evel 2 had passed and Slack & Davis had filed their motion for summary judgme n t , a L ev el-2 discovery -control plan was in eff ect. The Br escia s did not dispute that the expert-desig nation deadline had passed. Howeve r, they reque sted that the trial court, “in the interest of ju s t i ce , ” enter a scheduling order with a new expertdesig nation-dea dline. Wit hout expl anation, the tria l court denie d the B resc ias’ motion.

The Bre scias contend Texas Rule of Civil P roce dure 190.4( a) r equire d the cour t to
g rant their motion and enter a discovery -control plan that changed the L evel- 2 deadlines applicable to this lawsuit. See Tex. R. Civ. P. 190.4(a)

. We disa g ree . Rule 190.4(a) states, in pertinent part, the following : “The court must, on a party ’s moti o n . . . order that discovery be conducte d in

acc ordanc e with a discovery control plan tail o re d t o t h e circ umstances of the specific suit.” But Rule 190.4 does not require that the court’s order p ro v i d e d ea dlines differ ent from those under a

6L evel- 2 case . Ra t h er, the decision to provide differ ent deadlines is left to the court’s discretion.

See Tex. R. Civ. P. 190.4(b) (“The discovery control plan order ed by the court

. . . may chang e any limit ation on the time for

. . . discovery set forth in these rules.” (Emphasis added.) ); Allen v. United of Omaha Life Ins. Co. , 236 S

. W

. 3 d 315, 327 (Tex. App.—For t Worth 2007, pet. denied) ; Baize v. Scott & W

hite Clini c , No. 03-05-00780- CV, 2007 WL 135956, at *9 (Tex. App.—Austin J an. 22, 2007, pet. denied) (mem. op.) (cour t’s discretion to provide deadlines differ ent from those under L evel- 2 case ). I n other words, even under a L evel- 3 scheduling order , L evel- 2 deadlines continue to apply “unless specific ally chang ed in the discovery control plan order ed by the court.” See Tex. R. C iv. P. 190.4(b).

The Br escia s further arg

ue Rule 190.5 provides that a court must modify a discovery

contro l plan “whe n the interest of justice require s” and that the circ umstances of this lawsuit compelled the trial court to modify the discovery -control plan. See id. 190.5. They point out their orig inal p et i t i o n stated this case would be conducte d under a L evel- 3 discovery -control plan, and both sides subsequently conducte d active written d i s co v er y . The Br escia s note that their trial attorney , J erome Schiefe lbein, wrote Sl ack & Davis in Dec ember 2006 seeking entry of a doc ketcontrol order and trial date. I n his affida vit attached to the B resc ias’ re sponse to Slack & Davis’s motion for summary judgme nt, Schiefe lbein stated th at , al t houg h he rec eived no response to his Dec ember 2006 letter, he was told during conver sations with Slack & Davis that they would discuss those issues later. Schiefe lbein stated he believed that, once written discovery had conclude d, Slack & Davis would ag ree to a L evel- 3 discovery -control plan without the need for a formal motion. He aff irmed he based this beli ef o n his conver sations with Slack & Davis and his experience with

7another law firm in an unrela ted case . On September 10, 2007, Schiefe lbein ag ain wrote opposing counsel, sugg esting trial dates and entry of a discovery -control plan. Howeve r, on September 18, 2007, he rec eived a letter from Slack & Davis stating they had filed their n o -evidence motion for
summary judgme nt. The Br escia s asser t these circ umstances and the “string ing Schiefe lbein along until the L evel 2 deadline expired” required the trial court, in the i ntere st of j ustice, t o modify the L evel- 2 discovery -control plan by extending the e x pert-de signa tion deadline. Rule 190.5 (“Modification of Discover y Control Pl an”) provides:

The court may modify a discovery control plan at any time and must do so when the interest of justice requi r es . The court must allow additional di scove ry : (a) rela ted to new, amende d o r supplemental pleading s, or new information disclosed in a discovery response or i n an amende d or supplemental re sponse, if: (1) the pleading s or response s wer e made afte r the deadline for completion of disco v ery or so near ly befor e that deadline that an adver se party does not have an adequate opport u n i t y to conduct discovery rela ted to the new ma tters, and (2 ) the adver se party would be unfairly prejudiced without such additional discovery ; (b) reg arding matters that have chang ed materia lly afte r the discovery cutoff if trial is set or postponed so that the trial date is more than three months after the discovery period e nds.

Tex. R. C iv. P. 190.5 (emphasis added)

.

Rule 1 9 0

. 5 l i s t s two specific situations in which the trial court must modify a discovery -control plan to allow for additional discovery

. Id. 190.5(a) , (b). The Br escia s do not arg ue

8that either of these two situations applies. Rather, they contend that modification was called for “in

the intere st of justice.”

This cause had bee n p ending for fourtee n months when, in response to Slack & Davis’s reque st for disclosures, the Br escia s stated no testify ing expert witnesses had been reta ined. Only afte r Slack & Davis filed its no-e vidence motion for summary judgme nt did the Br escia s file their motion for entry o f a d i s cover y -control plan and serve supplemental discovery response s identify ing their expert witnesses. I n any event, the trial court considere d the Br escias ’ m o tion, Slack & Davis’s response , arg uments of counsel, and the Br escia s’ post-hear ing brief befor e deny ing the motion. I n making its decision, the court could rea sonably have conclude d that the circ umstances
set forth in Schiefe lbein’s aff idavit did not, in the interest of justice, compel the court to modify the L evel- 2 d ea d l i n es. The court could also have rea sonably conclude d that Schiefe lbein should not have relied on his experience with differ ent attorney s in another lawsuit but should have timely filed

a R u l e 1 9 0.4 motion in an eff ort to obtain a L evel- 3 discovery -control order and documented in writing any oral ag ree ments betwee n the parties as require d by Rule 11. See Tex. R. Civ. P. 11, 190.4. We conclude it was within the trial court’s discretion to hold that “the interest of justice” did not require modification of the discovery -control plan. See Brown , 145 S.W .3d at 750; Fuentes v. Schooling , No.07-07-00118- CV, 2008 WL 5083012, at *4 (Tex. App.—A m ar i l lo Dec

. 3, 2008, no pet.) (me m. op.); Abdelhak v . Farney , No. 04-07-00121- CV, 2007 WL 4180133,
at *2 (Tex. App.—San An t onio Nov. 28, 2007, no pet.) (mem op.). The Br escia s’ fifth issue is

overr uled.

9Stri

king th e Affidav its of the Brescias’ Expert Witn esses I n their six th issue, the Br escia s arg ue the trial court abused its discretion i n s t ri k i n g the aff idavits of their experts Wag ner a nd Neumann a s untimely desig nated. I f a pa rty fails to timely desig nate a wi t n es s , then testimony from that witness will be excluded unless the trial court deter mines that the party seeking to introduce the evidenc e establishes either (1) there was g ood

cause for the failure , or (2) the failure to desig nate wi t n esses will neither unfairly surprise

nor unfairly prejudice the other parties. T ex . R

. C i v . P. 193.6(a) ; Fort Brown Villas III Condo. Ass’n. v. Gillenwater , 285 S.W .3d 879, 881 (Tex. 2009); Ersek v. Davis & Davis, P.C. , 69 S.W .3d 268, 271 (Tex. App.—Austin 2002, pet. denied)

. The burden of establishing g ood cause or lack of unfair surprise or unfair prejudice is on the party seeking to in troduce the evidenc e. Tex. R. Civ. P. 193.6(b). A finding of g ood cause or lack of unfair surprise or unfair prejudice must be supported b y the rec ord. Id. The trial court’s decision to exclude the aff idavits of the untimely -desig nat ed expert witnesses Wagne r and Neumann can be overturne d only on a finding of abuse of discretion. See Fort Brown Villas , 285 S.W .3d at 881. Abuse of discretion occur s when the trial court rea ches

a decision so arbitra

ry and unrea sonable as to be essentially a clea r and prejudicia l err or of law. In re Bass , 1113 S.W .3d 735, 738 (Tex. 2003).

The Br escia s do not a ssert they established g ood cause for their failure to timely desig nate ex pert witnesses. Rather, they contend Sl ack & Davis was ne ither unfa irly surprised

nor u n fa i rl y prejudice d by their l ate designa tion of ex perts W ag ner and Neumann. They arg ue no depositions ha d been taken, no trial date had bee n set, and Slack & Davis had de signa ted no experts, thus “under

mining any sug g estion” that Slack & Davis “truly believed this was a L evel 2

10case or that it neede d the Br escia s’ expert desig nati o n s to prepa re for trial.” Even if Slack & Davis wer e somehow surprised or prejudice d by the Br escia s’ late desig nation of Wagne r and Neumann, the Br escia s contend “that can hardly be descr ibed as ‘unfa ir’ under t h es e fa cts and particula rly in light of [Slack & D avis’s] role in cre ating the situation at hand.” We find the Br escia s’ arg uments unpersua sive. Rule 193.6(a) (2) rea ds as follows:
(a) Excl u s i on of Evidenc e and Exc eptions

. A party who fails to make, am en d, or supplement a discovery response in a timely m anner may not introduce in evidenc e the materia l or info rmation that was not t i mely disclosed, or offe r the testimony of a witness (other tha n a n amed party ) who was not timely identified, unless the court finds that: * * * (2) the fail u re to timely make, amend, o r s u p p l em en t t h e d i s co v e r y response will not unfairly surpris e or unfairly prej udice the other parties.

Tex. R. C iv. P. 193.6(a)(2)

.

The supreme court discussed the conce pt of unfair surprise in Alvarado v. Farah Manufacturing Co. :

Deter mining whether a party is rea lly surprised by an offe r of testimony not formally identified in discovery i s d i fficult. The better prepa

red counsel is for trial, the more likely he is to have anticipated what evidenc e may be offe red ag ainst his client, and the less l i k el y h e is to be surprised. I t would hardly be rig ht to rew ard competent co unsel’s diligent prepa ration by excusing his opponent from comply ing with the require ments of the rules. As we e x plained in [ Sharp v. Broadway National Bank ]:

11A party is entitled to prepa re fo r trial assure d that a witness will not be called beca use o p p o sing counsel has not identified him or her in response to a prope r interr og atory

. . . .

830 S.W .2d 911, 915 (Tex. 1992) (quoting Sharp v. Broadway Nat’l Bank , 784 S.W .2d 669, 671 (Tex. 1990)). Depe nding on the discovery plan level, the discovery rules establish a date cer tain for the completion of discovery

. F o r t B rown Villas , 285 S.W .3d at 882; see Tex. R. Civ. P. 190.2-.4. Under the discovery rules, no longe r is there a conce rn that discovery will be incomplete at the summary judgme nt phase. Fort Brown Villas , 285 S.W .3d at 882. The specific deadline established by the pretria l discovery ru l es ensure s that the evidenc e prese nted at the
summary judgme nt stag e and at the trial stag e re mains the same. Id. I n this case , the Br escia s desi g nated Wagne r and Neumann as their experts six months afte r the expert-desig nation deadline had expired and only afte r Slack & Davis had filed its motion for summary judgme nt. Appar ently , afte r balanc ing Slack & Davis’s prepa ration for
t ri al ag ainst the failure of Br escia s’ counsel to comply with the require ments of the di s co v er y rules, the court deter

mined that the aff

idavits of the Br escia s’ untimely -desig nated expert witnesses should be excluded. We hold the tr i al co u rt ’s decision to exclude the aff idavits of experts Wagn er an d Ne umann was not so arbitra ry and unrea sonable as to be an abuse of discretion. See Fort Brown Villas , 285 S.W .3d at 882; Ersek , 69 S.W .3d at 272. We further hold the Bresc ias have failed to satisfy their burden of showing t hat no rea sonable judge could have deter mined that the aff

idavits of the Br escia s’ expert-witnesses would not have unfairly surprised or unfa irly

prejudice d Slack & Davis. Id. The B resc ias’ six th issue is overruled.

12Sufficiency of Rul e 166a(i) Motion I n their first, third, and seventh issues, the Br escia s asser t Slack & Dav i s ’s Rule 166a(i) motion was leg ally insufficient to support the trial court’s decision to g rant summary judgme nt on all their claims. The Br escia s arg ue the motion failed to identify any of the elements of a Texas Dec eptive Trade Practice s—Consumer Protection Act (“D TPA”) cause of action and

a brea ch-of

-fiducia ry -duty claim with the kind of specific ity Rule 166a(i) require s. See Tex. R. Civ. P. 166a(i) (motion must state ele ments to which there is no evidence ). They contend the closest the motion came to identify ing the elements of a DTPA claim and a brea ch-of -fiducia ry duty claim was to mention the concept of producing cause . Slack & Davis, however, contends its motion complied with Rule 166a(i) beca use, in eac h of the Br esci as’ claims, it specific ally identified causa tion as the element for which there was no ev i d en ce . The Br escia s ref ute this contention, arg uing the motion only mentioned the conce pt of producing cause in the context of whether Slack & Davis’s neg lige nce cause d the Br escia s’ damag es—not whethe r t h e Br escia s suffe red damag es as a result of Slack & Davis’s dece ptive trade prac tices and brea ch of fiduciar y duty

. The Br escia s urg e that, beca use the trial court g rante d relief bey ond what Slack & Davis’s no-evide nce motion proper ly reque sted, that is, the court g r a n te d s u mma ry judgme nt and rende red

a take- nothing judgm en t o n all the Br escia s’ claims, the judgme nt should be reve rsed. See Lehmann v. Har- Con Corp. , 39 S.W .3d 191, 200 (Tex. 2001).

To preva il on a no-evide nce motion, the movant must alleg e there is no evidenc e of an essential element of the adver se party ’s claim. Tex. R. Civ. P. 166a(i); Southwestern Elec. Power Co. v. Grant , 73 S.W .3d 211, 215 (Tex. 2002). A no-evide nce m o tion that mere ly

13challeng es the sufficie ncy of the nonmovant’s case and fails to specific ally state the elements for

which there i s n o evidenc e is fundame ntally defe ctive and insufficient to support summary judgme nt as a matter of law. Fieldtech Avionics & Instruments, Inc. v. Component Control.C om, Inc. , 262 S.W .3d 813, 824 (Tex. App.—For t Worth 2008, no pet.). The Br escia s asser

ted claims for profe ssional neg lige nce, dece ptive-trade violations, and brea ch of fiduciar y duties ag ainst Slack & Davis. The law firm moved for a noevidenc e summary judgme nt on all of the Br escia s’ claims on the basis “ther e is no expert eviden ce t h at the Br escia s would have preva iled in the Under ly ing L awsuit.” Their motion

asser ted the following :

1. As to all of the Brescias’ claims , there is no expert medical testimony that the Under ly ing Def endants in the Under ly ing L awsuit brea ched the applicable standard of car e with res p ec t to the Additional Medica l Malprac tice Claims. Wit hout such evidenc e, there is no evidenc e the Br escia s would have pre vailed on the Additional Medica l Malprac tice Claims, and there is no evidenc e that Slack & Davis’s failure to p u rs u e the Additional Medica l Malprac tice Claims was the proxi mate or producing cause of any

damag e to the B resc ias. 2. A s to all claims, there is no evidenc e that t h e alleg ed wrong ful actions of the Under ly ing Def endants concer ning the Additional Medica l Malprac tice Claims wer e the p ro x imate or producing cause of damag e to Ang ela. Wit hout such evidenc e, there is no evidenc e that the Br escia s would have preva iled on the Additional Medica l Malprac tice Claims, and there is no evidenc e that Slack & Davis’s failure to pursue the Additional Medica l Mal prac tice Claims was the proxi mate or producing cause of any damag es to the B resc ias.

14(Emphasis adde d.) For an action to succe ed under the DTPA, the following elements must be proven: (1) the plaintiff is a consumer; (2) the defe ndant eng ag ed in false, misleading , or dece ptive acts; and (3) these ac t s co n s t i t u ted a producing cause of the consumer’ s damag es. See Tex. Bus. & Com. Co d e An n . § 17.50(a) (West Supp. 2010); Doe v. Boys Clubs of Greater Dallas, Inc. , 907 S.W .2d 472, 478 (Tex. 1995). Attorney s may not be sued under the DT PA unless they
eng ag e in one of the following acts: (1) an express misrepr es en t at ion of a materia l fac t that
cannot be char acte rized as advice , judgme nt, or opinion; (2) a failure to disclose information; (3) an unconsciona

ble action or course of action that cannot be char acte rized as advice , judgme nt,

o r opinion; or (4) a brea ch of an express war ranty that cannot be char acte rized as ad v i ce , judgme nt, or opi n i o n . See Tex. Bus. & Com. Code Ann. § 17.49(c) (West Supp. 2010); Latham v. Castil lo , 972 S.W .2d 66, 69 n. 2 (Tex. 1998). The DTPA define s an “unconsc ionable action or course of action” as “an act or prac tice which, to a consum er’ s detriment, takes advanta g e of the lack of knowledg e, ability , experience , or capa city of the consumer to a g rossly unfair deg ree .” Tex. Bus. & Com. Code Ann. § 17.45(5) (West Supp. 2010). Taking advanta g e of a consumer’ s lack of knowledg e, ability , experience , or capa city to a g rossly unfair deg ree require s a showing that the resulting unfairne ss was “g laring ly noticeable , flag rant, complete and unmitigated.” Bradford v. Vento , 48 S.W .3d 749, 760 (Tex. 2001); C h a s t a i n v. Koonce , 700 S.W .2d 579, 584 (Tex. 1985).

The elements of a brea ch-of -fiducia ry -duty claim are the following : (1) a fi d u c ia ry rela tionship betwee n plaintiff and defe ndant; (2) a brea ch of the fiduciar y duty owed to the plaintiff by the attorney -def endant; (3) that cause s; (4) damag es to the plaintif f. Bec k v. Law
15Offices of Edwin J. Terry, Jr., 284 S.W .3d 416, 429 (Tex. App.—Austin 2009, no pet.); see also

Restatement (Thir d), The L aw Gove rning L awy ers § 49 ( 2001).
Fractured Professional-Negligence Argum ent To deter mine whether the Br escia s have actua lly alleg ed DT P A and brea ch-of

fiduciar y -duty claims, we first addre ss Slack & Davis’s arg ument that the Br es cias’ brea ch-of

fiduciar y -duty and DTPA claims are , in f act, fra cture d profe ssional-neg lige nce claims. The rule 2
ag ainst fra cturing a profe ssional-neg lige nce claim holds that a case arising out o f an attorney ’s alleg ed bad advice or improper repr esenta tion may not be split into separ ate claims for neg lige nce, brea ch of c ontrac t, or fr aud (or any other non-ne g lige nce the ory ), bec ause the rea l issue remains whether the attorney exercised that deg ree of ca re, skill, and dilige nce tha t attorney s of ordinar y skill and knowledg e commonly p o s s es s and exercise. Bec k , 284 S.W .3d at 426-27; Kimleco Petroleum, Inc. v. Morrison & Shelton , 91 S

. W

. 3d 921, 924 (Tex. App.—For t Worth 2002, pet. denied)

. The rule ag ainst fra cturing a neg lige nce claim preve nts le g al-malpra ctice plaintiffs from opportunistically transfor ming a profe ssional-neg lige nce claim into other cause s of action.

As noted in Bec k , courts often use the ter m s “leg al malprac tice” and “prof essional 2 neg lige nce” intercha

ng eably to ref

er to claims arising from an attorney ’s alleg edly inadequa te leg al repr esenta tion, althoug h “prof essional neg lige nce” may be the more prec ise term. B ec k v. Law Offices of Edwin J. Terry, Jr. , 284 S.W .3d 416, 427 n.10 (Tex. App.—Austin 2009, no pet.). We will use the term “prof

essional neg lige nce” to descr ibe a neg lige nce claim in which t he issue is whether an attorney exercised that deg ree of car e, skill, and diligenc e as attorney s of ordinary skill and knowledg e commonly possess and exercise. See Deutsch v. Hoove r, Bax, & Slovace k, L.L.P. , 97 S.W .3d 179, 184 n.1 (Te x . App.—Houston [14t h Dist.] 2002, no pet.). We will use the term “leg al malprac tice” to ref

er to any claim broug ht by a client ag ainst that client’s attorney , reg ardle ss of whether the claim asser ts profe ssional neg lige nce, brea ch of fiduciar y duty , DTPA violations, or any other a lleg ation. Id. 16The ultimate issue is whether there has been a b re ac h o f d uty that cause s damag e. Ersek , 69 S.W .3d at 275.

We must first asce rtain whether the fac ts that are the basis for the Br escia s’ asser ted

cause s of action implicate only Slack & Davis’s duty of ordinary car e or some other actionable statutory or fiduciar

y duties. Bec k , 284 S.W .3d at 428. The deter mination of whether a complaint
ag ainst an attorney is actionable in neg lige nce versus some other leg al theory is a question of law. Id.

A. DTPA Claim

I n their first amende d petition, the Br escia s alleg ed Slack & Davis made the following misrepre sentations of m ater ial fac t: the l aw firm repr esente d (1) it would full y fund, i n v estig ate, and prosec ute all claims, including the Br escia s’ neg lige nce- and g ross-neg lige ncebased claims, ag ainst all possible parties when, in fac t, it only investiga ted and prosec uted the lackof-infor med-c onsent claims ag ainst Dr. Ba nk and Presb y

t er i an; (2) it would make diligent attempts to locate and hire medical experts to support the Br escia s’ neg lige nce- based claims when, in fac t, it only contac ted two doctors and then hired one who had used Cy totec as a cer

vical ripene r in his own practice; (3) it would amend the pleading s to include the Br escia s’ ne gl i gence -base d claims when, in fac t, it never at t em p t ed s uch an amendment; (4) it would include as part of the Br escia s’ claims the numerous instances iden t i fi ed b y consul ting- expert “Dr

. X” in which Dr. Ba nk and Presby

terian had been g rossly -neg lige nt when, in fac t , n o such alleg ations wer e ever included; and (5) it would assig n attorney s and staff fully qualified to handle the Br escia s’ claims when, in fac t, the attorney in char g e was inexperience d in prosec uting medical malprac tice claims

17and the in-house nurse in cha rg e of the case file had undisclose d bias ag ainst the Br escia s. The B resc ias attac hed Dua ne’s a ffidavit to their response t o Slack & Davis’s noevidenc e motion. Duane stated that he and Ang ela provided the law firm with the following : (1) the name of a d o ct o r wi l l i ng to testify that Dr. Ba nk was neg lige nt in perf orming Ang ela’ s

emer g ency cae sare an section; (2) the name of a nursing expert knowledg ea b l e i n the use and administration of Cy

totec; and (3) the n am e o f a renow ned phy sician to explain the dang ers of Cy totec whe n used to induc e labor. He stated Slack & D avis neve r ac ted on any of those name s but insisted it wanted to use its own “conta cts

. ” T h e l aw firm also repe atedly rea ssured the Br escia s that it was doing all it could t o obtain additional expert witnesses who would testify as
to their neg lige nce and other pot en t i al claims. He further stated that, without his and Ang ela’ s knowledg e or consent, Slack & Davis ag ree d not only to a continuance of the trial date but also to “kee p in place the May 5th cut off date for identify ing expert witnesses, which had passed sever al months befor e.” He reiter ated that Slack & Davis’s ag ree ment to “f re ez e d i s cover

y ” was done without the Br escia s’ knowledg e or consent. Duane then stated the law firm’s actions cause d his and Ang ela’ s “valua

ble claims to be lost and we wer e for ced to se ttle for nuisanc e value .” The aff idavit of David Marc hand, an attorney whose law prac tice larg ely involved medical malpr actice , was a lso attache d to the Br escia s’ response. He stated that, beca use of the
cata strophic injuries Angela suffe red as a result of the appar ent neg lige nce of the underly ing healthca re defe ndants in administering a dang erous drug with well-known propensities and

war nings, he and his firm took the Br escia s’ case , which “appe are d to be a seven- fig ure lack of i n fo rm ed consent.” He further noted he later lear ned that, prior to the time Slack & Davi s

18withdrew from the case , the parties by joint motion had reque sted that the court rese t the trial date.

Marc hand point ed out that, on September 20, 2004, the court enter ed an order rese tting the t rial date a nd also substitut ing Ma

rcha nd’s law f

irm for Slack & Davis. He continued:

I nexpli ca b l y and unknown to me, Slack & Davis, in the joint motion to co n t inue, left in place the previous limit ation as to the t i m e to identify [t he Br escia s’] expert witnesses. I n other wo rd s , [t he Br escia s] wer e left with an exper t who had only opined on informed consent, not on the neg lige nce, on the part of the [underly ing healthca

re defe nda

n ts ] in a d mi n is te r in g Cy

tote c, failing to a dequate ly monitor [Ang ela] during her labor, and in da mag ing her c olon. I twice tried to reque st relief from the scheduling orde r S l ac k & Da v is had ag ree d to, but without succe ss. Be cause of Slack & Davis’s ag ree ment, the trial judge left in place the May 4th date to desig nate e x pert witnesse s that preda ted our involvement. The acti o n s of Slack & Davis, coupled with their inadequa te pleadin g s, resulted in chang ing a valuable leg al rig ht to one of limit ed value

.
The Br escia s all ege Slack & Davis’s aff irmative misrepre sentations constituted unconsciona

ble conduct or course of action on t h e l aw fi rm’s part, actionable under section 17.49(c) (1) and (3) of the DTPA, which cause d them to lose their day in c ourt and was a producing cause of their e conomic dama g es. Section 17.49(c )(1) and (3) rea ds as follows:

(c) No t hing in this subchapte r [“Dece ptive Trade Practice s and Consumer Protection”] shall apply to a claim for damag es based on the rende rin g o f a profe ssional service, the essenc e of which is the providing of advice , judgme nt, opinion, or simil ar profe ssion al s kill. This exemption does not apply to:
19(1) an express misrep rese ntation of a m at er i a l f

a c t t h a t ca n n o t b e char acte ri zed as advice , judgme nt, or opinion; * * * (3) an unconscionab l e action or course o f a c t i o n t h a t c a n n o t b e char acte rized as advice, judgme nt, or opinion . . . .

Tex. Bus. & Com. Code Ann. § 17.49(c)( 1), (3). I n other wor ds, an attorne y ’s ac tions or course

o f ac t i o n an d express misrepre sentations of m ater ial fac ts are not actionable under the DTPA i f they can be char acte rized as advice , judgme nt, or opinion.

The Bres ci as asser

t that Slack & Davis aff

irmatively misrepre sented it was fully investiga ting and prosec uting their neg lige nce- and g ross-neg lige nce claims and would amend the pleading s to include those claims ag ainst all parties. And, i n h i s aff idavit, Duane stated he and Ang ela wer e repe atedly assure d by Slack & Davis that it was sear ching for appropr iate experts so that it could reple ad and add their neg lige nce claims to their lack- of-infor med-c onsent claim; y et,
t h e law firm onl y investiga ted t he Bresc ias’ lack-of- informed- consent claim and contact ed o n l y
two doctors, one of whom had used Cy totec as a cer

vical ripene r in his own prac tice. Moreove r, the Br escia s contend that, without their knowledg e an d co nsent, Slack & Davis enter ed into an ag ree d scheduling order with the underlyin g healthca re defe ndants that maintained the date for desig nating expert witnesses, a date that had passed approximately four months ear lier. The Br escia s arg ue these wer e express misrepre sentations and unconsciona ble conduct on the part of Slack & Davis in its repr esenta tion of the Br escia s that wer e dece ptive and thus actionable under the DTPA. We disag ree . 20Unlike the attorney in Latham who aff irmatively repr esente d to his clients that he was actively pursuing their claims when, in fac t, he had never filed the s uit and then limit ations

ra n , the Br escia s only contend that Slack & Davis failed to actively pursue the Br esci as ’
neg lige nce- and g ross-neg lige nce claims and to disc l o se that the law firm had enter ed into an ag ree d scheduling order with the underlying healthca re defe ndants that maint ai ned the date for desig nating expert witnesses. After revie wing the Br escia s’ DTPA alleg ations, we conclude that Slack & Davis made no express misrepre sentations of materia l fac ts that cannot be char acte rized

as advice , judgme nt, or opinion. Nor do we find that the law firm eng ag ed in any unconsciona ble actions or course of action, that is, acts or prac tices that, to the Br escia s’ detriment, took advanta g e of their lack of knowledg e, ability , experience , or capa city to a g rossly unfair deg ree , that cannot be char acte rized as advice , judgme nt, or opinion. See Tex. Bus. & Com. Code Ann § 17.45(5). Consequently , we conclude that, beca use their alleg ations ultimately g o to the adequa cy of Slack & Davis’s leg al repr esenta tion, the Br escia s’ DTPA claim is essentially a dresse d-up profe ssionalneg lige nce claim and that summary judgme nt was appropr iate on the Br escia s’ DTPA claim. See Bec k , 284 S.W .3d at 431-32; Deutsch v . Hoove r, Bax & Slovace k , 97 S.W .3d 179, 189-90 (Te x . App.—Houston [14t h Dist.] 2002 , n o p et

. ) (i f g ist of client’s complaint is that attorney did not exercise that deg ree of car e, skill, or diligenc e as attorney s of ordinary skill and kno wledg e commonly possess, then that complaint should be pursued as profe ssional-neg lige nce claim, rathe r than some other c laim); see also Tex. Bus. & Com. Code Ann. § 17.49(c).

B. Breach-of- Fidu ciary-D uty Clai m The Br escia s further alleg ed in their petition that, as their attorney s, Slack & Davis

21brea ched its fiduciar y duty

. “A fiduciar

y rela tionship exis ts betwee n attorney and client.” W illis

v. Mave rick , 760 S.W .2d 642, 645 (Tex. 1988). The rela tionship exis ting betwee n attorney and client is highly fiduciar

y in nature and require s proof of “per fec t fairne ss” on the attorney ’s part. Archer v. Griffit h , 390 S.W .2d 735, 739 (Tex. 196 5 ); Ja ckson Law Office, P.C. v. Chappell , 37 S.W .3d 15, 22 (Tex. App.—Ty ler 2000, pet. denied)

. The essenc e of a brea ch of fiduciar y duty involves an attorney ’s integ rity and fidelity

. Kiml ec o P et r o l eu m , 91 S.W .3d at 923. As a fiduciar y , an attorney owes the client a duty of u n d i v i d ed loy alty

. See Restatement (Third) of Ag ency § 8.01 (2006). I ncident to the g ener al duty of loy alty is the duty of full disclosure. Id. § 8.11 (discussing the duty of disclosure). “As a fiduciar y , an attorney is obliga ted to rende r a full and fair disclosure of fac ts materia l to the client’s repr esenta tion.” W illis , 760 S.W .2d at 645. An attorney ’s brea ch of the fiduciar y duty of full disclosure is tantamount to fra udulent conce alment. Id. ; Jack son Law Off

ice , 37 S.W .3d at 22. Attorney s brea ch their fiduciar y duties to clients by their “fa ilure to di s cl o se conflicts of interest, failure to deliver funds belong ing to the client, placing persona l interests over the clients’ interests, improper u s e of client confide nces, taking advanta g e of the client’s trust,
eng ag ing in self-de aling , and making represe ntations.” Goffney v. Rabson , 56 S.W .3d 186, 193 (Tex. App.—Houston [14t h Dist.] 2001, pet. denied)

. The Br escia s asser t Slack & Davis brea ched its fiduciary

duty to them by its failure to: (1) disclose its intent not to “prove-up” the B resc ias’
neg lige nce- based claims; (2) disclose its decision to rea llocate fi rm as s ets awa y from medicalmalprac tice cla ims; (3) tim ely disclose t he identit y of “Dr. X” a nd the true r elationship betwee n Presby terian and Dr. X; (4) disclose the bias and conflict of interest of the in-house nurse in char g e of the case file; (5) disclose that the law firm had not soug ht expert wi t n es s es t o s upport the
22Br escia s’ neg lige nce- based claims desp i t e prior repr esenta tions to the contra ry ; (6) inform the Br escia s in advanc e of the law firm’s intention to move for a continuance of the trial date and enter into an ag ree d scheduling order without the Br escia s’ k n o wledg e or consent; and (7) advise the Br es ci as of the continuance and terms of the ag ree d scheduling order afte r the law firm

was terminated on September 16, 2004, and befor e the trial court s i gned the order on September 20, 2004. I n his aff idavit attache d to the Br escia s’ response to Slack & Davis’s motion, Duane stated that he and Angel a, as the law firm’s clients, expected full, complete, and honest disclosure; Slack & Davis, howe ver, e ither withheld informa tion f rom them, misrepre sented the information it g ave them, or failed to act on the information the law firm had solicited from them. As a re sult of the law firm’ s conduct a nd brea ch of fiduciar

y duty , the Bresc ias alleg e they wer e unable to prosec ute their valuable neg lige nce- based claims in the underly ing lawsuit, resulting in their dama g es. Slack & Davis responds that the Br escia s’ bre ac h -o f-f iduciary -duty complaint is
actua lly a fra cture d profe ssional-n egl i gen ce claim requiring them to prove they would have
preva iled in the underly ing lawsuit. We ag ree . The Br escia s alleg ed that Slack & Davis failed to inform them it had (1) decide d not to pursue the Br escia s’ neg lige nce- based claims, (2) not soug ht expert witnesses, (3) rea llocated firm assets awa y from medical- malprac tice claims, (4) moved for a continuance of the trial date, and (5) entere d into an agr eed scheduling order without advising the Br escia s of the terms of the order

. The Br escia s also alleg ed Slack & Davis failed to disclose the identity of “Dr

. X” and the true rela tionship betwee n Presby terian and Dr. X and that Slack & Davis’s in-house nurse in char g e of t h e ca s e fi l e wa s biased and had a conflict of interest. We

23conclude these alleg ations complain about the quality of Slack & Da v i s ’s repr esenta tion,

specific ally the law firm’s failure to proper ly advise, inform, and communicate with the Br escia s about their case , which are claims of profe ssional neg lige nce. See Murphy v. Gruber , 241 S.W .3d 689, 699 (Tex .App.—Dallas 2007, pe t. denied).

The g ist or essenc e of the Br escia s’ brea ch-of -fiducia ry -duty alleg atio n s i s that S l ac k & Davis did not exercise that deg ree of car e, skill, or diligenc e that attorney s of o rd i n ar y skill and knowledg e commonly possess; there fore , their alleg ations should have been pursued as profe ssional-neg lige nce claims

. See Kimleco Petroleum , 91 S.W .3d at 924 (re g ardle ss of theory plead, as long as crux of complaint is that attorney did not provide adequate leg al repr esenta tion, cl ai m is for profe ssional neg lige nce) ; Zidell v. Bird , 692 S.W .2d 550, 553 (Tex. App.—Austin 1985, no writ) (attorne y ’s neg lige nce may consist in want of ordinary car e in prepa ring , manag ing, and prese nting litigation that aff ects client’s interests). Be cause t h e Br escia s impermissibly fra cture d their profe ssional-neg lige nce claims by asser ting them as b reach-of

-fiducia ry -duty claims, we hold that they failed to defe at Slack & Davis’s entitlement to summary judgme nt as to those claims. The B resc ias’ first, third, and se venth issues are overr uled. Expert Medical Testim ony and Econom ic Damages

Slack & Davis arg ues that, assuming the Br escia s’ DTPA and brea ch-of -fiducia ry duty claims are not fra cture d profe ssional-neg lige nce claims, the Br escia s had to prese nt exp ert medical testimon y t o m aintain their DTPA and brea ch-of -fiducia ry -duty claims for economic damag es. The law firm contends the Br escia s could rec over economic damag es only if they could
prov e t h ey would have won the underly ing lawsuit, that is, a “suit-within-a-suit” require ment.

24Disputing the law firm’s contention, the Br escia s asser t they did not have to prese nt expert medical testimony to maintain their DTPA and brea ch-of -fiducia ry -duty claims. Rather, they arg ue in their second issue that the trial court err ed by rea ding a “suit-within-a-su i t ” re q u irement into all the Br escia s’ cause s of action. Be cause we have deter mined that their DTPA and brea ch-of -fiducia ry duty claims are essentially dresse d-up profe ssional-neg lige nce claims, we need not reach the Br escia s’ sec ond issue.

CONCLUSION

Having overr

uled all of the Br escia s’ issues, we aff irm the trial court’s judgme nt.

__________________________________________ David Pury ear , J ustice Be fore Chief J ustice Jones, J ustices Pury ear and He nson Affir med Filed: Nove mber 19, 2010

25