In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

No. 06-14-00020-CV

WENDOLYN MESSNER, 

AS DEPENDENT ADMINISTRATOR, Appellant

V.

MARK L. BOON AND BOON SHAVER 

ECHOLS COLEMAN & GOOLSBY, P.L.L.C., Appellees

On Appeal from the County Court at Law

Rusk County, Texas

Trial Court No. 02-043 A

Before Morriss, C.J., Carter and Moseley, JJ.

Opinion by Justice Moseley
2

OPINION

Wendolyn Messner, as the administratrix of the estate of Delbert M. Messner, filed suit 

May 14, 2013, against an attorney, alleging that the attorney had been negligent and had 

breached his fiduciary duty in the attorney’s legal representation of both Delbert (during his 

lifetime) and the executrix of his estate, Juanita Bengel (Delbert’s niece), after Delbert’s demise. 

The trial court granted a traditional motion for summary judgment filed by the attorney and his 

law firm and entered a take-nothing judgment against Wendolyn.1

 Wendolyn appeals. 

We find that Wendolyn, as the administratrix of the estate, had the standing to pursue 

claims belonging to Delbert’s estate and that the trial court erred in granting summary judgment 

on those claims. However, we also find that Wendolyn did not possess the authority to raise 

legal malpractice claims on behalf of Bengel for the attorney’s representation of Bengel. Thus, 

we affirm the trial court’s judgment with respect to claims against the attorney relating to 

Bengel, but reverse the trial court’s judgment with respect to claims raised on behalf of Delbert’s 

estate and remand those claims for further proceedings consistent with this opinion. 

I. Factual and Procedural Background

A. The 1996 Trusts

Delbert and his wife, Barbara E. Messner, hired attorney Jennifer Davalos to draft The 

Delbert M. Messner and Barbara E. Messner Revocable Living Trust Agreement (the Trust 

Agreement). The Trust Agreement, executed by Delbert and Barbara in 1996, set up the 

framework for the establishment of three separate trusts designed to accomplish different goals 

via trusts that would be created upon the death of the first spouse. The first trust, called 

 1

We use Wendolyn’s name in this opinion to refer to her in her capacity as administrator of Delbert’s estate. 
3

Survivor’s Trust A, would be “set up for the Surviving Spouse” and would be revocable during 

the lifetime of the surviving spouse. The second trust, called Decedent’s Trust B, would be 

irrevocable and was designed to take advantage of the available marital deduction. The third 

trust, called the Excess Property Trust C, would give the surviving spouse an interest in the entire 

net income of the trust for life and up to $5,000.00 per year in principal. 

With respect to Trust A and Trust C, the Trust Agreement stated that Delbert had “a 

general power of appointment as is necessary to bring the Trust into compliance with the 

provisions of Section 2056(b)(5) of the Internal Revenue Code,” so that it would qualify for the 

marital deduction.2 The Trust Agreement provided that (1) upon the death of the surviving 

spouse, all remaining trust assets would be held in trust for the benefit of Barbara and Delbert’s 

only son, Michael T. Messner, and that (2) upon Michael’s death, all remaining assets would “go 

to LE TOURNEAU UNIVERSITY to establish the Dell and Barbara Messner Scholarship 

 2

Section 2056(b)(5) of the Internal Revenue Code states the following:

5. Life estate with power of appointment in surviving spouse.—In the case of an interest 

in property passing from the decedent, if his surviving spouse is entitled for life to all the income 

from the entire interest, or all the income from a specific portion thereof, payable annually or at 

more frequent intervals, with power in the surviving spouse to appoint the entire interest, or such 

specific portion (exercisable in favor of such surviving spouse, or of the estate of such surviving 

spouse, or in favor of either, whether or not in each case the power is exercisable in favor of 

others), and with no power in any other person to appoint any part of the interest, or such specific 

portion, to any person other than the surviving spouse --

(A) the interest or such portion thereof so passing shall, for purposes of 

subsection (a), be considered as passing to the surviving spouse, and

(B) no part of the interest so passing shall, for purposes of paragraph (1)(A), be 

considered as passing to any person other than the surviving spouse.

This paragraph shall apply only if such power in the surviving spouse to appoint the 

entire interest, or such specific portion thereof, whether exercisable by will or during life, is 

exercisable by such spouse alone and in all events.

I.R.C. § 2056(b)(5) (West, Westlaw current through Sept. 26, 2014). 
4

Endowment.” The Trust Agreement also named Jim Hughey, an employee of Le Tourneau 

University (University), as the successor trustee upon the death of both spouses. 

Barbara died in 2000. While “[t]here were assets that had been titled in the name of the 

revocable living trust[,] . . . there were no assets titled in those specific [A, B, and C] trusts” that 

were created upon Barbara’s death. Thus, in his capacity as the trustee, Delbert hired Neil 

Joseph, Ronald Stringer, and Ron Stringer & Associates, a CPA firm (collectively referred to as 

Stringer), to assist him in assigning a value to the estate’s assets and in filing Barbara’s estate tax 

returns. Because the marital deduction in 2000 was $675,000.00, Trust B was to be funded with 

property valued at that amount. The remaining property was to be divided between Trust A and 

Trust C, with ten percent of the remaining property being allocated to Trust A and the other 

ninety percent of the remaining property to be placed into Trust C in accord with the terms of the 

Trust Agreement. Stringer went to work to value Barbara’s property in preparation of her estate 

tax return. 

B. Boon’s Involvement 

After Barbara’s death, Delbert also hired Mark L. Boon and Boon Shaver Echols 

Coleman & Goolsby, P.L.L.C. (collectively referred to as Boon), to assist Delbert with probating 

Barbara’s will as a muniment of title and in his capacity as trustee of the living trusts. After 

Delbert died, Boon represented the personal representative of Delbert’s estate. Because Delbert 

believed that he had supported the University sufficiently throughout his life, he decided not to 

leave additional sums to the University. Thus, Delbert also hired Boon (1) to help him 

understand and assess his responsibilities under the Trust Agreement, (2) to prepare a document 

revoking Trust A, and (3) to prepare a will exercising Delbert’s general power of appointment in 
5

Trust C in favor of other beneficiaries. Boon prepared a document revoking Trust A. He also 

drafted a will for Delbert containing the following language:

All references in my Will to my “Residue” shall mean all the remainder of my 

property, of whatsoever kind . . . and wheresoever situated . . . not specifically 

disposed of herein, and also including all property over which I am given a 

general power of appointment remaining in that certain trust known as the Excess 

Property Trust “C,” said trust established under Article Three, Section 3.04 of The 

Delbert M. Messner and Barbara E. Messner Revocable Living Trust Agreement 

dated July 11, 1996 . . . .

Under Delbert’s will, (1) forty percent of his residue went to the “Michael Taylor Messner 

[testamentary] Trust” for Michael’s sole benefit during his lifetime, (2) another forty percent of 

his residue went to the “Michele Suzanne Diaz [testamentary] Trust” for Michael’s daughter’s 

sole benefit during her lifetime, and (3) five percent of his residue went to each of the following 

organizations: the Masonic Lodge #404 in Longview, Texas (Masonic Lodge); the Masonic 

Home for Aged Masons in Arlington, Texas (Masonic Home); the Masonic Home and School of 

Texas in Fort Worth, Texas (Masonic School); and the Perritte Memorial Methodist Church in 

Nacogdoches, Texas (Church). Delbert’s will appointed Bengel to be the independent executrix 

of the will and the trustee of the testamentary trusts created by the will. 

In early February 2002, Delbert filed Barbara’s estate tax return, which showed (1) that 

the total value of her estate was $911,675.00, (2) that $675,000.00 was allocated to Trust B, 

(2) that $20,954.00 was allocated to Trust A, (3) that $188,586.00 was allocated to Trust C, and 

(4) that $27,135.00 was allocated to expenses. Although Delbert had assigned pecuniary values 

to the three trusts, Delbert died on February 28, 2002, before he had the opportunity to fund the 

specific trusts with Barbara’s property. According to the terms of the Trust Agreement, Hughey 
6

then became the successor trustee of the non-testamentary trusts and was charged with the 

responsibility of distributing the trust assets. 

Bengel became the executrix of Delbert’s estate and the trustee of Delbert’s testamentary 

trusts. She hired Boon to help her execute her duties and hired Stringer to prepare Delbert’s 

estate tax return. Stringer completed an accounting in 2005 to determine what assets belonged to 

the estate and what assets remained in the trust. Even though Trust A had been terminated and 

Trust C’s power of appointment had been exercised under Delbert’s will, the accounting showed 

that property used to fund Trust A and Trust C had been mistakenly placed into a scholarship 

trust for the benefit of the University. Nevertheless, Boon wrote on the accounting, “Per 

[Stringer], this takes into account that Delbert exercised his GPOA over Trust C.” In 2005, 

Bengel wrote a check to the University for $293,241.77 from an account labeled “Estate of D.M. 

or Barbara Messner.” Although Boon was unclear why the check was written, he later testified 

that the check was for Trust C assets. 

C. The Newly Discovered Mineral Interest and the 2006 Releases 

On July 25, 2006, it was discovered that Barbara had additional separate property 

assets—mineral interests situated in Nacogdoches County, Texas—that had not been previously 

taken into account. In a letter dated September 21, 2006, on which Bengel was copied, Boon 

wrote to Hughey to inform him of the mineral interests. The letter stated, “Since the trust of 

which you are the trustee was the ultimate owner of this property, I am sending it on to you for 

handling as you deem appropriate.” 

In late August through November 2006, beneficiaries of Delbert’s estate executed 

releases containing the following language:
7

The undersigned hereby acknowledges that Juanita Bengel, the 

independent executrix of this estate, has taken care of and managed this estate in 

compliance with the standards of the Texas Probate Code and the provisions of 

the Will of Delbert M. Messner and is entitled to an executor’s fee under the 

provisions of the Will . . . but that she has waived her right to be paid said fee. 

The undersigned further hereby acknowledges that Juanita Bengel has the 

right to seek a judicial discharge by filing an action for declaratory judgment 

under Chapter 37, Texas Civil Practice and Remedies Code, pursuant to the 

provisions of Section 149D though G of the Texas Probate Code. If Juanita 

Bengel filed this action, there would be a delay in the undersigned receiving the 

final distribution from the estate and an increase in the expenses of 

administration, thereby reducing the value of the assets which the undersigned 

would receive from the estate. 

The undersigned further hereby acknowledges that the undersigned has 

received any and all accountings which the undersigned deems necessary to 

determine the sufficiency of the assets . . . .

Accordingly, in consideration for Juanita Bengel not being paid an 

executor’s fee to which she is entitled and in further consideration for Juanita 

Bengel not filing an action for declaratory judgment to seek a judicial discharge to 

which she has the right to do, the undersigned RELEASES AND FULLY 

ACQUITS the estate and all persons acting for or on behalf of the estate 

including, without limitation, Juanita Bengel, with respect to any and all possible 

claims, demands, or causes of action, whether known or unknown, that the 

undersigned may have with respect to the estate or in any way connected with the 

estate or any of the assets of the estate. This RELEASE shall be binding on the 

undersigned and the undersigned’s heirs . . . . The undersigned has relied solely 

upon his judgment, belief and knowledge as to the nature and extent of the claims 

and other matters to which reference is made herein and has not been influenced 

to any extent whatsoever in signing this document by any representations or 

statements regarding such matters by Juanita Bengel or any of the agents, 

attorneys or representatives of Juanita Bengel. This agreement shall inure to the 

benefit of Juanita Bengel and her heirs and assigns. 

Specifically, the releases were signed by the following beneficiaries in exchange for the 

following amounts: Michael—$90,595.13, Michele—$90,595.13, Masonic Lodge—$23,712.08, 

Masonic School—$23,712.08, Masonic Home—$23,712.08, Church—$23,712.08. The sums 

paid in exchange for the release were considered the “full, final and complete satisfaction of that 

portion of the estate to which the undersigned [beneficiary was] entitled.” The dates on the 
8

releases establish that Michael and Michele signed their releases after Bengel had been notified 

about the additional mineral interests. It appeared that Delbert’s estate had been settled, but 

subsequent litigation revealed otherwise. 

D. The LeTourneau Lawsuit and Settlement 

On May 16, 2011, the University, Hughey, and successor trustee, Ben March, filed suit 

against all of the beneficiaries of Delbert’s estate, among others, alleging that the University was 

the fee-simple owner of the mineral interests. In response to the University’s lawsuit (the 

LeTourneau lawsuit), the beneficiaries of Delbert’s estate, except for the Masonic Lodge 

(LeTourneau Defendants3

), countersued, arguing that Hughey never distributed the assets in 

Trust A and Trust C to Delbert’s beneficiaries and that he had instead used all of the assets to 

fund the Delbert and Barbara Messner Scholarship Trust, thereby giving his employer, the 

University, a remainder interest in all of the assets of the trust. Thus, the LeTourneau 

Defendants sought (1) a declaratory judgment (a) that assets worth ten percent of Barbara’s 

estate in excess of $675,000.00, including the mineral interests, be finally assigned to Trust A, 

(b) that ninety percent of Barbara’s estate in excess of $675,000.00, including the mineral 

interests, be assigned to Trust C, and (c) that Trust A and Trust C be assigned to the beneficiaries 

of Delbert’s will, subject to any conveyances they made to third parties, and (2) attorney fees. 

Because the Masonic Lodge did not appear, a default judgment was granted against it. 

During the LeTourneau lawsuit, there was some concern over whether Delbert actually had a 

general power of appointment over Trust C assets. After the LeTourneau Defendants filed an 

expert report concluding that Delbert had the general power of appointment and that it was 

 3

The term LeTourneau Defendants excludes the Masonic Lodge, which never answered the lawsuit, and includes 

third parties who were not named in Delbert’s will, but who were named as defendants in the LeTourneau lawsuit. 
9

validly exercised, all remaining claims arising out of the LeTourneau lawsuit were settled, 

including the counterclaims for declaratory judgment. The LeTourneau Settlement Agreement 

and Release (the Settlement) was entered into between the University, Hughey, March, and Dale 

Lunsford (another successor trustee), and the LeTourneau Defendants. Under the Settlement, 

Michael and Michele (and those claiming under them) received $100,000.00; the Church 

received $45,000.00; and the Masonic Home and the Masonic School each received $30,000.00;

each of these payments being made in addition to annual payments that would be made to each. 

Pursuant to the Settlement, all of the beneficiaries of Delbert’s estate, save the Masonic Lodge, 

agreed to:

“ACQUIT, CANCEL, RELINQUISH, AND FOREVER DISCHARGE every 

other party to this agreement, together with their agents, representatives[,] . . . 

attorneys[,] . . . and assigns from any and all claims, rights, demands, debts, 

liabilities, controversies, or causes of action, known or unknown, asserted or 

which could have been asserted . . . arising out of or related to the disputes and 

controversies described in this [Settlement] at or before the effective date of this 

[Settlement] . . . . This release includes, but is not limited to, any claims or causes 

of action arising from or relating to the administration of the Barbara Messner 

estate, the Delbert Messner estate, the 1996 Messner Revocable Living Trust . . .

and any related or resulting trusts, including but not limited to claims for breach 

of trust, breach of fiduciary duty, negligence, [and] breach of contract . . . . This 

release is intended to be general in nature and expressly binds the parties, their 

heirs, assigns, representatives, agents, attorneys and any other person who is 

authorized, empowered or under any duty to pursue a claim by, through, under or 

on behalf of the parties, including but not limited to administrators and 

administratrixes of the estates of Barbara Messner and Delbert Messner and 

future, current and former successor executors and executrixes of the estates of 

Barbara Messner and Delbert Messner, trustees and successor trustees[,] . . . any 

other fiduciary, trustee, agent, receiver, representative, executor or administrator 

acting for or on behalf of any of the parties. 
10

All parties to the Settlement agreed to pay their own attorney fees and costs. The Settlement also 

stated, “Nothing in [the Settlement] shall be construed to prejudice any claims or defenses of the 

Parties against any persons or entities that are not parties to this Agreement.” 

The trial court entered an agreed final judgment in accordance with the Settlement. 

Specifically, the judgment declared (1) that the mineral interests were Barbara’s separate 

property, (2) that on her death, the minerals passed to and became a part of Trust C, (3) that 

Delbert had general power of appointment over Trust C assets, (4) that Delbert legally exercised 

the general power of appointment over the mineral interests because they were Trust C assets,

and (5) that the minerals interests passed to the beneficiaries of Delbert’s residuary estate under 

his probated will. 

E. The Lawsuit Against Boon 

Again, it seemed that all matters related to the trusts established under the Trust 

Agreement and Delbert’s estate had been settled. However, after Bengel’s death in 2009, no one 

had been appointed to represent Delbert’s estate, and Wendolyn, who became the successor 

personal representative of Delbert’s estate after the LeTourneau lawsuit was concluded, believed 

that the estate had not been represented in the LeTourneau lawsuit. Consequently, Wendolyn 

determined that the estate could now bring claims similar to the counterclaims filed by the 

LeTourneau Defendants so long as those claims were not brought against parties to the 

Settlement. She hired the same attorney that represented the LeTourneau Defendants and filed 

suit, as administrator of Delbert’s estate, against Stringer and Boon for negligence and breach of 

fiduciary duty. The petition recited much of the case history discussed above and made the 

following claims:
11

Although the Trust Agreement contemplated Trust C was to be treated as a 

2056(b)(5) trust for purposes of obtaining a marital deduction, Defendants 

Stringer and Boon elected to treat Trust C as a 2056(b)(7)[4] trust because they 

were more familiar with such trusts. This unnecessary or improper election later 

added to concerns that the Decedent might not have a general power of 

appointment over Trust C. 

. . . .

. . . . Boon prepared a document whereby [Delbert] revoked Trust A . . . [and a] 

last will and testament for [Delbert] in which he exercised his general power of 

appointment over Trust C for the beneficiaries of his estate. . . . Therefore, all of 

the property of the estate of his deceased wife that was to fund Trust A and Trust 

C should have gone to the beneficiaries of the estate of [Delbert].

. . . . In 2005, Defendant Stringer . . . prepared an accounting showing properties 

formerly belonging to [Barbara] that were to fund a scholarship trust for the 

ultimate benefit of LeTourneau University. . . . None of her property went to the 

Estate of [Delbert]. Because Defendant Boon was an attorney . . . and 

Defendant[] Stringer . . . [was a] certified public accountant[], Mrs. Bengel relied 

on and trusted [their] work in helping her marshal the assets of the estate of 

[Delbert]. But Defendant Boon misinformed her about the assets of the estate, . . . 

and he did not provide her with information about the Trust Agreement and 

[Delbert’s] exercise (or attempted exercise) of his power of appointment. 

. . . . During the course of the [LeTourneau] litigation, the attorney for Michael 

and Michele discovered that assets that should have gone to Michael and to the 

estate of [Delbert] were transferred instead to the scholarship trust. . . . During 

that [LeTourneau] litigation, . . . Defendant Boon gave a deposition in August 

2012. He testified Defendant Stringer . . . had made a mistake in assigning to the 

scholarship trust the $20,954.00 in property that had been earmarked for Trust A. 

But he curiously refused to admit that a mistake was made in assigning to the 

scholarship trust the $188,585.00 in property that had been earmarked for Trust C 

because he had always been concerned about the validity of [Delbert’s] power of 

appointment, though he had never communicated this concern to [Delbert], 

Mrs. Bengel, or anyone else. This testimony either is a breach of Defendant 

 4

Section 2056(b)(7) of the Internal Revenue Code, generally known as a QTIP trust, provides that a qualified 

terminable interest property in which the surviving spouse has a qualifying income interest for life shall be treated as 

passing to the surviving spouse. I.R.C. § 2056(b)(7)(A), (B)(i) (West, Westlaw current through P.L. 113-185 

approved Oct. 6, 2014). A surviving spouse has a qualifying income interest for life if the surviving spouse is 

entitled to all the income from the property, payable annually or at more frequent intervals, and no person has a 

power to appoint any part of the property to any person other than the surviving spouse. I.R.C. § 2056(b)(7)(A),

(B)(ii) (West, Westlaw current through P.L. 113-185 approved Oct. 6, 2014). This does not apply to a power 

exercisable only at or after the death of the surviving spouse. I.R.C. § 2056(b)(7)(A), (B)(ii)(II). 
12

Boon’s fiduciary duty to [Delbert], his estate, and/or the personal administrators 

of his estate because it is false or reveals that Defendant Boon breached his 

fiduciary duty to [Delbert] and Mrs. Bengel by not informing them of his 

concerns about the validity of the general power of appointment. . . .

. . . .

. . . [D]ue to the negligence of Defendants Boon, [and] Stringer . . . , assets that 

should have gone to Michael and the estate of [Delbert] went instead to the 

scholarship trust. 

Damages sought by Wendolyn included “the value of the property that went to the scholarship 

trust but which should have gone to the estate of [Delbert]” and forfeiture of attorney fees that 

had been paid to Boon. The matters related to Stringer were subsequently settled.

F. The Summary Judgment Arguments 

In response to the petition, Boon moved for summary judgment on the grounds that 

(1) the claims were malpractice claims subject to the two-year statute of limitations, 

(2) Wendolyn could not sue Boon for malpractice because there was no privity between 

Wendolyn and Boon, (3) the claims were barred by the statute of limitations, (4) the claims 

against Boon were previously released in the LeTourneau Settlement and distribution of assets, 

(5) the will’s hold harmless clause barred claims against Boon, and (6) there was no damage to 

Delbert’s estate or to the beneficiaries due to the LeTourneau Settlement. In addition to this 

traditional motion for summary judgment, Boon filed a no-evidence motion for summary 

judgment arguing that there was no evidence of either the standard of care or breach to support 

the negligence claim. 

In response to Boon’s motion for summary judgment, Wendolyn argued (1) that the 

claims for breach of fiduciary duty were separate and apart from the negligence claims (2) that 
13

privity was not necessary since she was suing on behalf of both the estate and Bengel, (3) that 

the discovery rule saved the claims from limitations, (4) that the releases executed in 2006 by the 

beneficiaries and the LeTourneu Settlement did not apply since (a) Wendolyn was not suing on 

behalf of the beneficiaries, (b) no representative of Delbert’s estate was identified as a releasing 

party, and (c) the Masonic Lodge was not a party to the Settlement, (5) that the will’s holdharmless clause did not relieve Boon from liability, and (6) that there was damage to the estate 

because (a) it was seeking $209,540.00 (the amount that should have been in Trust A and Trust 

C), and only $205,000.00, which included settlement over the mineral interests, was paid to the 

LeTourneau Defendants, and (b) she was also seeking fee forfeiture. In response to the noevidence motion for summary judgment, Wendolyn stated that Boon’s 2012 deposition provided 

the standard of care and admitted the breach. 

After reviewing the summary judgment evidence, the trial court granted Boon’s 

traditional motion for summary judgment and entered a take-nothing judgment in Boon’s favor.5

 

Wendolyn appeals. 

II. Standard of Review

We review the grant of a motion for summary judgment de novo. Mann Frankfort Stein 

& Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). “The party moving for 

traditional summary judgment bears the burden of showing no genuine issue of material fact 

exists and it is entitled to judgment as a matter of law.” Id. (citing Tex. R. Civ. P. 166a(c)). We 

review the summary judgment evidence in the light most favorable to the party against whom the 

summary judgment was rendered, crediting evidence favorable to that party if reasonable jurors 

 5

The trial court did not consider Boon’s no-evidence motion for summary judgment. 
14

could and disregarding contrary evidence unless reasonable jurors could not. City of Keller v. 

Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193, 

208 (Tex. 2002).

III. Analysis of the Issues 

A. The Claims Against Boon Are Legal Malpractice Claims

The petition filed by Wendolyn raises negligence and breach of fiduciary duty claims. 

“‘Legal malpractice is not the only cause of action under which a client can recover from [its] 

attorney.’” Isaacs v. Schleier, 356 S.W.3d 548, 555 (Tex. App.—Texarkana 2011, pet. denied) 

(quoting Goffney v. Rabson, 56 S.W.3d 186, 190 (Tex. App.—Houston [14th Dist.] 2001, pet. 

denied)). “‘When the facts of a case support claims against a lawyer for something other than 

professional negligence,’” the claims may be allowed. Isaacs, 356 S.W.3d at 555–56 (quoting 

Murphy v. Gruber, 241 S.W.3d 689, 695 (Tex. App.—Dallas 2007, pet. denied)). However, 

unless the claim cannot be characterized as advice, judgment, or opinion arising from the 

attorney-client relationship, the cause of action is for malpractice. Isaacs, 356 S.W.3d at 556

(citing Brescia v. Slack & Davis, L.L.P., No. 03-08-00042-CV, 2010 WL 4670322, at *7 (Tex. 

App.—Austin Nov. 19, 2010, pet. denied) (mem. op.)). 

This is because “‘Texas law . . . does not permit a plaintiff to divide or fracture her legal 

malpractice claims into additional causes of action.’” Isaacs, 356 S.W.3d at 556 (quoting 

Goffney, 56 S.W.3d at 190) (citing Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.—

Houston [1st Dist.] 1998, pet. denied); Smith v. Heard, 980 S.W.2d 693, 697 (Tex. App.—San 

Antonio 1998, pet. denied); Kahlig v. Boyd, 980 S.W.2d 685, 688–91 (Tex. App.—San Antonio 

1998, pet. denied); Rodriguez v. Klein, 960 S.W.2d 179, 184 (Tex. App.—Corpus Christi 1997, 
15

no pet.); Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 506 (Tex. App.—Houston 

[1st Dist.] 1995, no writ); Am. Med. Elecs., Inc. v. Korn, 819 S.W.2d 573, 576 (Tex. App.—

Dallas 1991, writ denied); Bray v. Jordan, 796 S.W.2d 296, 298 (Tex. App.—El Paso 1990, no 

writ)). 

Therefore, in general, courts do not allow a case arising out of an 

attorney’s alleged bad legal advice or improper representation to be split out into 

separate claims for negligence, breach of contract, or fraud, because the “real 

issue remains one of whether the professional exercised that degree of care, skill, 

and diligence that professionals of ordinary skill and knowledge commonly 

possess and exercise.” 

Isaacs, 356 S.W.3d at 556 (quoting Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 

921, 924 (Tex. App.—Fort Worth 2003, pet. denied)). 

Wendolyn argues that the deposition Boon gave in the LeTourneau lawsuit demonstrates 

that the claims are not for legal malpractice because it shows that he willfully failed to disclose 

his uncertainty over the issue of whether Delbert possessed a general power of appointment over 

the assets of Trust C. During the deposition, Boon made the following statements:

Q. And so, after you had all of these conversations with Delbert 

Messner about the trust agreement, about not wanting to give to LeTourneau and 

he wanted to revoke Trust A and withdraw rights under the other two trusts, is this 

one of the things that you prepared for him based on his desires and wishes?

A. Yes. 

Q. And could you especially look at anything to do with the general 

power of appointment under Trust C?

A. Yes. 

Q. So, when you prepared that document, what were you doing for 

Mr. Messner as to the general power of appointment under Trust C?
16

A. I was attempting -- if he had the power of appointment, I was 

attempting to exercise it. 

Q. All right. Well, why do you say if he had it?

A. I’d never seen one quite like this. I’ve written many general 

powers of appointment and read many general powers of appointment. Normally, 

you’ll see the provision that will say when the person passes away, they have a 

general power of appointment exercisable in favor of their estate or creditors of 

their estate. I’d not seen one like this. 

I did go and review the co-provisions talking about and determined that he 

certainly if he had the power, he wanted to exercise it; so, that’s what I did. 

Q. So, do you remember actually telling Delbert Messner that you 

may not have this power or I don’t know if you have it or not?

A. I do not remember telling him that, no. 

. . . .

Q. But, I mean, do you know of any reason why the power in that will 

was not valid and effective?

A. No, I don’t; but I had never seen one quite like this before. 

Q. What concerns do you now have for you to say if --

A. I don’t have any concerns now. 

Q. -- for you to say if it’s valid. “If he had it,” what do you mean by 

“if he had it”?

A. Well, I guess that’s the whole crux of this lawsuit, did he have the 

power of appointment. I thought he did or I wouldn’t have -- you know, and 

obviously the provision is in the trust agreement; so, that’s why I put it in there. 

But I don’t know if it’s a slam-dunk case, but I wouldn’t have put it in there if I 

thought it was illegal to put the provision in the will. 

Q. Right. But let me ask you though, . . . [i]s there anything in your 

mind for you to say “if he had it”?

A. Nothing has come from talking to lawyers subsequent. I guess --

again, I’d just never seen this provision before . . . .
17

. . . .

Q. Is there any reason in your mind to believe that 2056(b)(5) would 

not be legal or proper or able to be exercised by Delbert Messner?

A. No, there’s not. 

However, as Boon’s examination continued, he wavered and ultimately admitted that he was 

unsure one way or the other whether the Trust C general power of appointment was valid. 

The crux of a breach of fiduciary duty cause of action is different from that of legal 

malpractice. Isaacs, 356 S.W.3d at 559. “The focus of breach of fiduciary duty is whether an 

attorney obtained an improper benefit from representing a client, while the focus of a legal 

malpractice claim is whether an attorney adequately represented a client.” Id. Whereas, “[a]

cause of action for legal malpractice arises from an attorney giving a client bad legal advice or 

otherwise improperly representing the client,” 

[a] breach of fiduciary duty occurs when an attorney benefits improperly from the 

attorney-client relationship by, among other things, subordinating his client’s 

interests to his own, retaining the client’s funds, using the client’s confidences 

improperly, taking advantage of the client’s trust, engaging in self-dealing, or 

making misrepresentations.

Id. The petition filed by Wendolyn complains of Boon’s alleged failure to disclose his struggle 

with the legal interpretation of a trust provision drafted by another attorney and with his 

negligence in overlooking the fact that Trust A and Trust C assets had not been properly 

allocated. As we previously explained in Isaacs, without more, the petition does not “allege the 

type of dishonesty or intentional deception that will support a breach-of-fiduciary-duty claim.” 

Id. Neither does the petition establish a negligence claim separate and apart from a legal 

malpractice claim. 
18

We conclude that the trial court properly determined that the claims against Boon were 

legal malpractice claims. Thus, they were subject to the two-year statute of limitations. See

TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2014). 

B. Privity: Wendolyn Could Raise Claims on Behalf of the Estate, but Could 

Not Raise Claims Personal to Bengel 

“Legal malpractice claims sound in tort.” Belt v. Oppenheimer, Blend, Harrison & Tate,

Inc., 192 S.W.3d 780, 783 (Tex. 2006). “The plaintiff must demonstrate ‘that (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.’” Id. (quoting Peeler v. Hughes & Luce, 909 

S.W.2d 494, 496 (Tex. 1995)). Boon argues that he owed no duty to Wendolyn. 

“While an attorney always owes a duty of care to a client, no such duty is owed to nonclient beneficiaries, even if they are damaged by the attorney’s malpractice.” Id. (quoting 

Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex. 1996)). “Without this ‘privity barrier,’ the 

rationale goes, clients would lose control over the attorney-client relationship, and attorneys 

would be subject to almost unlimited liability.” Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex. 

1996). “Texas courts of appeals have uniformly applied the privity barrier in the estate planning 

context.” Id.; see also Huie v. DeShazo, 922 S.W.2d 920, 921 (Tex. 1996) (orig. proceeding) 

(holding that because trustee was client of attorney, beneficiary could not discover 

communications between trustee and attorney otherwise protected by attorney-client privilege). 

Boon argues that he cannot be liable to Wendolyn because she is a non-client. For 

support, he cites to Barcelo. See Barcelo, 923 S.W.2d at 577. That case involved suit filed by 

beneficiaries for services that were provided to the testator of a will and settlor of a trust. Id. at 
19

576. There, the Texas Supreme Court rejected the invitation to create an exception to the privity 

barrier. The court reasoned that allowing an exception to the privity barrier in such a 

circumstance would lead to “inevitable problems with disappointed heirs attempting to prove that 

the defendant-attorney failed to implement the deceased testator’s intentions . . . [by] extrinsic 

evidence.” Id. at 578. 

Wendolyn argues that Barcelo does not apply. She cites to Smith v. O’Donnell, 288 

S.W.3d 417, 419 (Tex. 2009), which found that the executor of a decedent’s estate could bring 

the decedent’s survivable malpractice claims on behalf of his estate for legal malpractice arising 

from advice given to the decedent while the decedent was serving as the executor of his wife’s 

estate because “[a]n executor is a personal representative who ‘stands in the shoes’ of the 

decedent.” Id. at 421 (quoting Belt, 192 S.W.3d at 787). Smith reasoned, “[t]he threat of 

executor lawsuits will not impede the attorney-client relationship, because the estate’s suit is 

based on injury to the deceased client, as opposed to any third party. The estate’s suit is identical 

to one the client could have brought during his lifetime.” Based on Smith, we find that 

Wendolyn properly brought claims for legal malpractice arising out of advice Boon gave to 

Delbert when he was acting as the administrator of Barbara’s estate. Thus, the alleged claim for

Boon’s failure to disclose his belief that Trust C may not have contained a viable general power 

of appointment was properly brought by Wendolyn. 

Wendolyn also argues that she could bring claims for legal malpractice arising out of 

Boon’s representation of Bengel because she stepped into Bengel’s shoes as the successor 

trustee. Wendolyn looks to Belt for support. In Belt, the court was asked to determine whether 

Barcelo barred a personal representative of the estate, as opposed to estate beneficiaries, from 
20

bringing legal malpractice claims on behalf of decedent’s estate. Belt, 192 S.W.3d at 783. 

Reasoning (1) that a claim for malpractice in planning an estate can accrue prior to death even 

though the damage might not be realized until after a death and (2) that a personal representative 

steps into the shoes of the decedent, Belt found that the personal representatives could bring the 

decedent’s claims for legal malpractice. Id. at 786–87. Belt did not answer the question of 

whether a successor personal representative can bring legal malpractice claims arising from 

advice given to a previous personal representative. Instead, it stands for the idea that Wendolyn 

could also bring Delbert’s claims for legal malpractice arising out of Boon’s estate planning 

advice. 

In discussing Belt, Smith reflected, “The threat of executor lawsuits will not impede the 

attorney-client relationship, because the estate’s suit is based on injury to the deceased client, as 

opposed to any third party . . . [and] is identical to the one the client could have brought during 

his lifetime.” Smith, 288 S.W.3d at 421. Here, claims alleging that Boon failed to properly 

advise Bengel in her role as administrator of Delbert’s estate are not based on injury to Delbert 

and could not have been brought by Delbert during his lifetime. Instead, the injury, if any, was 

to Bengel. Because Bengel is deceased, claims of malpractice with respect to advice Bengel 

received belonged to her estate, which is not involved in this litigation.6 

The privity barrier is the general rule, and the exceptions crafted by Belt and Smith do not 

fit the situation before us. Moreover, legal malpractice claims are not assignable. Vinson & 

 6

The role of an executrix and her attorney should not be blurred. See Lesikar v. Rappeport, 33 S.W.3d 282, 320 

(Tex. App.—Texarkana 2000, pet. denied). “The executrix’s duty is to prosecute claims on behalf of the estate; the 

attorney’s duty is to give the executrix candid legal advice.” Id. Separate recourse is available for an executrix’ 

mismanagement of her responsibilities. Given the 2006 releases and lack of action against Bengel, it is difficult to 

imagine how Bengel was actually harmed by the advice Boon gave to her. Thus, it appears that other grounds raised 

by Boon supported the trial court’s grant of summary judgment on claims asserted against Bengel. 
21

Elkins v. Moran, 946 S.W.2d 381, 389–90 (Tex. App.—Houston [14th Dist.] 1997, writ dism’d); 

see Magill v. Watson, 409 S.W.3d 673 (Tex. App.—Houston [1st Dist.] 2013, no pet.). We find 

that although Wendolyn had the right to bring Delbert’s legal malpractice claims in her capacity 

as the representative of Delbert’s estate, she did not possess the power to bring claims for legal 

malpractice on behalf of Bengel. 

C. Limitations 

Boon argues that in any case, the claims against him are barred by the two-year statute of 

limitations. “‘A defendant moving for summary judgment on the affirmative defense of 

limitations has the burden to conclusively establish that defense.’” Estate of Jobe v. Berry, 428 

S.W.3d 888, 897 (Tex. App.—Texarkana 2014, no pet.) (quoting Friddle v. Fisher, 378 S.W.3d 

475, 483 (Tex. App.—Texarkana 2012, pet. denied)). Wendolyn seeks to apply the discovery 

rule. Thus, Boon was required to “‘(1) conclusively prove that the cause of action accrued 

before the commencement of the statute of limitations period,’” and “‘(2) negate the discovery 

rule . . . by proving as a matter of law that there [was] no genuine issue of material fact about 

when [Delbert or Bengel, as the previous administrator of Delbert’s estate] discovered, or in the 

exercise of reasonable diligence should have discovered[,] the nature of [the] injury.’” Id.

(quoting Friddle, 378 S.W.3d at 483). If Boon did not conclusively prove these matters, then “‘a 

fact question exists about when the limitations period began to accrue.’” Id. (quoting Isaacs, 356 

S.W.3d at 562. However, if Boon established that the statute of limitations barred the action, it 

was left to Wendolyn to “‘then adduce summary judgment proof raising a fact issue in avoidance 

of the statute of limitations.’” Id. (quoting Friddle, 378 S.W.3d at 483).
22

“Generally, when a cause of action accrues is a question of law.” Jobe, 428 S.W.3d at 

898 (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003)).

“‘[A] cause of action accrues and the statute of limitations begins to run when facts come into 

existence that authorize a party to seek a judicial remedy.’” Id. (quoting Knott, 128 S.W.3d at

221). “‘In most cases, a cause of action accrues when a wrongful act causes a legal injury, 

regardless of when the plaintiff learns of that injury or if all resulting damages have yet to 

occur.’” Id. (quoting Knott, 128 S.W.3d at 221). Suit must generally be filed within the 

limitations period. However, as an exception to this general rule, “‘Texas applies the discovery 

rule to legal malpractice claims’” because an attorney’s client is not expected to have sufficient 

legal acumen to perceive injury at the time an omission is made by her attorney. Id. (quoting 

Isaacs, 356 S.W.3d at 560).

It is undisputed that prior to the LeTourneau lawsuit, Boon failed to disclose to anyone 

any discomfort that he might have had with whether Delbert had a general power of appointment 

over Trust C. According to the petition, Boon’s failure to disclose his concern led Delbert to 

execute a will that, according to Boon’s 2012 deposition, may or may not have exercised the 

general power of appointment and resulted in claims that had to be litigated in the LeTourneau 

lawsuit. 

The primary thing needing determination is that of defining when Delbert (or someone 

else, acting on behalf of the estate) discovered the alleged malpractice. Boon argues that the 

estate’s claims should have been discovered in 2006 because (1) the 2005 accounting showed

that funds were being held in a scholarship trust, (2) all of the beneficiaries acknowledged receipt 

of the accounting in the 2006 releases, and (3) Bengel discovered in 2006 that Barbara’s
23

additional mineral interests had not been accounted for. However, even though Boon testified 

that he reviewed the 2005 accounting and that the accounting was available to the beneficiaries 

at Stringer’s office, he stated in his 2012 deposition that he did not realize that trust assets had 

been misallocated until after Bengel’s death. In fact, Boon testified that Bengel herself wrote a 

check to the University for Trust C assets and that Boon prepared a receipt and release to be 

signed by the University.7 

Boon also admitted that although he sent Bengel a copy of his letter to Hughey in 2006, 

he did not otherwise speak to Bengel about the newly discovered mineral interests. The 2006 

letter to Hughey merely stated that “the trust of which you are the trustee was the ultimate 

owner” of the mineral interests, without referencing which trust was the “owner,” suggesting the 

possibility that the scholarship trust owned the assets. Thus, it appears that injury resulting to the 

estate arising from Boon’s alleged malpractice in advising Delbert, if any, had not been realized 

until the LeTourneau lawsuit. Further, there is no evidence in the record that any personal 

representative was representing Delbert’s estate during the pendency of the LeTourneau lawsuit. 

Based on the facts of this case, we cannot conclude that Boon conclusively established 

his entitlement to summary judgment on the ground of limitations as a matter of law. 

D. The 2006 Releases and the LeTourneau Settlement 

Next, Boon argues that both the 2006 releases and the Settlement bar the estate’s claims. 

Wendolyn argues that the 2006 releases (1) only exculpated the estate and its personal 

representatives from causes of action filed by the beneficiaries of Delbert’s estate, (2) do not 

apply to causes of action filed on behalf of the estate, and (3) could not have released a cause of 

 7

Because the assets were held in trust, Boon stated that the inventory he prepared on Bengel’s behalf included no 

Trust C assets. 
24

action that was not discovered until 2012. She further argues that the Settlement does not bar the 

estate’s claims because no personal representative was made a party to the LeTourneau lawsuit. 

“A release is a contractual arrangement that operates as a complete bar to any later action 

based upon matters covered in the release.” Naik v. Naik, 438 S.W.3d 166, 174 (Tex. App.—

Dallas 2014, no pet.). “A release is subject to the rules of contract construction,” which are well 

established. Id. Here, the 2006 releases “RELEASE[] AND FULLY ACQUIT[] the estate and 

all persons acting for or on behalf of the estate.” There is nothing in the record showing that 

Boon, who represented Bengel, was also representing the estate or that he was otherwise 

intended to benefit from or entitled to enforce the release. Further, the release establishes the 

beneficiaries (not the estate) as the parties giving a release of further potential claims. 

Boon argues that the LeTourneau lawsuit asserted claims against all of Delbert’s 

beneficiaries and that those beneficiaries filed counterclaims that were settled. Boon further 

argues that the estate was not included as a party to the LeTourneau lawsuit because “[i]t has 

long been settled that the ‘estate’ of a decedent is not a legal entity and may not sue or be sued as 

such.” Miller v. Estate of Self, 113 S.W.3d 554, 556 (Tex. App.—Texarkana 2003, no pet.) 

(citing Price v. Estate of Anderson, 522 S.W.2d 690, 691 (Tex. 1975)). While the general rule is 

that “suit seeking to establish the liability of an estate should be filed against the personal 

representative,” suit may be filed “in certain circumstances, [against] the heirs or beneficiaries.” 

Id. 

The 2006 releases from Delbert’s beneficiaries acknowledged that Bengel had “taken 

care of and managed this estate in compliance with the standards of the Texas Probate Code” and 

that she had the right to seek judicial discharge “pursuant to the provisions of Section 149D 
25

through G of the Texas Probate Code,”8 now contained in Section 405.003 of the Texas Estate 

Code. Under those sections, judicial discharge would be available only after Bengel had 

marshaled all the assets and paid all of the debts of the estate.9 Because judicial discharge would 

only be available if there was no further need for independent administration, the releases were 

intended to discharge Bengel from further service and duty as a fiduciary. See In re Estate of 

Whittington, 409 S.W.3d 666, 671 (Tex. App.—Eastland 2013, no pet.) (discussing that Section 

149E terminates the administration). “When there is no duly appointed executor, the proper 

parties are the heirs or beneficiaries of the estate.” Id. 

It is true that after Bengel’s death, no one was appointed to serve as the estate’s personal 

representative. However, (1) Bengel did not obtain a judicial discharge, (2) there is no evidence 

in the record showing that the administration was closed pursuant to Section 151 of the Texas 

Probate Code,10 (3) Boon was never included as a party to the LeTourneau lawsuit, (4) there is 

no evidence that the LeTourneau Defendants were sued in a capacity that would include the 

estate as a party, and (5) there is no argument that the LeTourneau Defendants’ claims against 

 8

Act of May 27, 1999, 76th Leg., R.S., ch. 855, § 6, sec. 149D, 1999 Tex. Gen. Laws 3527, 3528 (West), repealed 

by Act of May 29, 2011, 82d Leg., R.S., ch. 1338, § 2.54(d)(2), 2011 Tex. Sess. Law Serv. 3884, 3935 (West); see 

TEX. ESTATES CODE ANN. § 405.003 (West 2014).

9

Act of May 27, 1999, 76th Leg., R.S., ch. 855, § 6, sec. 149D, 149E, 1999 Tex. Sess. Law Serv. 3527, 3528 (West), 

repealed by Act of May 29, 2011, 82d Leg., R.S., ch. 1338, § 2.54(d)(2), 2011 Tex. Sess. Law Serv. 3884, 3935

(West); see TEX. ESTATES CODE ANN. §405.003 (West 2014).

10The Texas Probate Code, 54th Leg., R.S., ch. 55, § 1, sec. 151, 1955 Tex. Gen. Laws 88, 137, amended by Act of 

May 17, 1979, 66th Leg., R.S., ch. 713, § 21, 1979 Tex. Gen. Laws 1740, 1752, amended by Act of May 24, 1991, 

72d Leg., R.S., ch. 895, § 11, 1991 Tex. Gen. Laws 3062, 3067, amended by Act of May 24, 1995, 74th Leg., R.S., 

ch. 642, § 5, 1995 Tex. Gen. Laws 3516, 3518, Subsection (e) repealed by Act of May 15, 2007, 80th Leg., R.S., ch. 

302, § 7(1), 2007 Tex. Gen. Laws 575, 577, amended by Act of May 29, 2011, 82d Leg., R.S., ch. 1338, § 1.26, 

2011 Tex. Sess. Law Serv. 3884, 2897 (West), repealed by Act of May 29, 2011, 82d Leg., R.S., ch. 1338, 

§ 2.54(d)(1), 2011 Tex. Sess. Law Serv. 3884, 3935 (West); See TEX. ESTATES CODE ANN. §§ 405.002, .004–.007

(West 2014).
26

Boon would have been compulsory counterclaims in the LeTourneau lawsuit.11 Further, it is 

uncontested that at least one beneficiary never appeared in the LeTourneau lawsuit and did not 

execute the Settlement. 

“A tortfeasor can claim the protection of a release only if the release refers to him by 

name or with such descriptive particularity that his identity or his connection with the tortious 

event is not in doubt.” Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 (1984). The broad 

language of the Settlement does not save Boon since (1) it stated that it applied only to “part[ies]

to this agreement, together with their agents, representatives . . . [and] attorneys,” (2) there is no 

evidence that Boon was an agent, representative, or attorney for any party in the LeTourneau 

lawsuit, and (3) the Settlement also plainly stated, “Nothing in this [Settlement] shall be 

construed to prejudice any claims or defenses of the Parties against any persons or entities that 

are not parties to this Agreement.” 

We find that neither the 2006 releases nor the Settlement barred the estate’s legal

malpractice claim. 

E. The Exculpatory Clause

Boon argues that there is an exculpatory provision in Delbert’s will that bars the estate’s 

legal malpractice claim. This clause states, 

Any Executor or Trustee may rely in good faith upon the written opinion of any 

attorney, any facts stated in any instrument in writing and believed true or any 

other evidence deemed sufficient. Any Executor or Trustee shall be saved 

harmless from any liability for any action such Executor or Trustee may take, or 

 11If Boon had been made a party to the LeTourneau lawsuit, it is possible that the LeTourneau Defendants would be 

placed in the position of arguing both (1) that the general power of appointment was valid and that they were 

entitled to all of the Trust A and Trust C assets and (2) that general power of appointment was invalid and they were 

entitled to recover from Boon. 
27

for the failure of such Executor or Trustee to take any action, if done in good faith 

and without gross negligence. 

“Texas requires that the exculpatory language be unequivocal.” Mostek Corp. v.

Chemetron Corp., 642 S.W.2d 20, 26 (Tex. App.—Dallas 1982, writ dism’d). The exculpatory 

agreement clearly bars any action against Bengel. Boon argues that the exculpatory clause 

inured to his benefit for advice he gave to Bengel. We need not address this argument since we 

have previously determined that lack of privity bars any legal malpractice claim that Bengel 

would have. However, there is nothing in this exculpatory provision that prevents the estate 

from taking action for legal malpractice claims held by Delbert. Thus, we find that the 

exculpatory provision does not apply to claims arising from Boon’s representation in assisting 

Delbert with handling Barbara’s estate or in preparing Delbert’s will. 

F. Damages to the Estate

Finally, Boon argues that due to the releases executed in 2006 and the Settlement, he has 

conclusively proved that the estate can show no damage resulting from any alleged malpractice. 

If a defendant conclusively negates one of the essential elements of a cause of action, then the 

defendant is entitled to summary judgment as to that cause of action. Randall’s Food Mkts., Inc. 

v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995); Davis v. Ed. Serv. Ctr., 62 S.W.3d 890, 893 (Tex. 

App.—Texarkana 2001, no pet.). The burden does not shift to the plaintiff to present evidence 

that creates a fact issue on the challenged essential element until the defendant produces 

evidence entitling it to summary judgment.

12 Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 

1996).

 12In addition to Boon’s testimony, the summary judgment record contained the expert report of Ronald R. Cresswell, 

a board-certified estate planning and probate law attorney that has practiced for over forty-two years. As the final 
28

Boon seeks to apply the “one satisfaction” rule. “Under the one satisfaction rule, a 

plaintiff is entitled to only one recovery for any damages suffered.” Crown Life Ins. Co. v. 

Casteel, 22 S.W.3d 378, 390 (Tex. 2000) (citing Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 

1, 7 (Tex. 1991)). “This rule applies when multiple defendants commit the same act as well as 

when defendants commit technically different acts that result in a single injury.” Id. “The one 

satisfaction rule is grounds for granting summary judgment when (1) the one satisfaction rule 

applies, (2) the credit sought by the defendant entirely sets off the maximum compensatory 

liability claimed by the plaintiff, and (3) punitive damages are not at issue.” Brewer & 

Pritchard, P.C. v. AMKO Res. Int’l, L.L.C., No. 14-13-00113-CV, 2014 WL 3512836, at *2 

(Tex. App.—Houston [14th Dist.] Jul. 15, 2014, no pet.) (mem. op.) (citing Cohen v. Arthur 

Andersen, L.L.P., 106 S.W.3d 304, 309–10 (Tex. App.—Houston [1st Dist.] 2003, no pet.)). The 

goal of the one satisfaction rule is to prevent a double recovery. 

Yet,

[w]here the tortious acts of two or more wrongdoers join to produce an indivisible 

injury, that is, an injury which from its nature cannot be apportioned with 

reasonable certainty to the individual wrongdoers, all of the wrongdoers will be 

held jointly and severally liable for the entire damages and the injured party may 

proceed to judgment against any one separately or against all in one suit.

Landers v. E. Tex. Salt Water Disposal Co., 248 S.W.2d 731, 734 (Tex. 1952); see Krobar 

Drilling, L.L.C. v. Ormiston, 426 S.W.3d 107, 112 (Tex. App.—Houston [1st Dist.] 2012, pet. 

denied). Assuming, without deciding, that the one satisfaction rule applies, the allegations 

 

judgment in the LeTourneau lawsuit held, Cresswell’s report stated that there was a general power of appointment in 

Trust C and that “Delbert executed a Last Will and Testament, which clearly exercised the general power of 

appointment.” Because the trial court failed to rule on Boon’s no-evidence motion for summary judgment, we 

express no opinion on the argument that Wendolyn had no evidence of breach of a duty owed to Delbert. 
29

against Hughey and March in the LeTourneau lawsuit and the allegation against Boon resulted in 

the same injury—misallocation of funds in Trust A and Trust C to the University. 

However, the one satisfaction rule “‘prevents a claimant from recovering more than the 

amount required for full satisfaction of his damages.’” Brewer, 2014 WL 3512836, at *6 

(quoting El Paso Natural Gas Co. v. Berryman, 858 S.W.2d 362, 364 (Tex. 1993) (per curiam). 

Because Boon is asserting that the Settlement in the LeTourneau lawsuit satisfied the estate’s 

claim for damages, he “must prove as a matter of law that [he is] entitled to a credit equaling the 

entire amount” included in the Settlement. Id. (citing Mobil Oil Corp. v. Ellender, 968 S.W.2d 

917, 927 (Tex. 1998); Cohen, 106 S.W.3d at 310). Here, the $205,000.00 Settlement did not 

fully satisfy the estate’s claim for $209,540.00—the fully added value of Trust A and Trust C. 

Moreover, the estate seeks fee forfeiture.13 Thus, Boon has not conclusively negated the damage 

element of the estate’s malpractice claims.14

We find that with respect to the claims Wendolyn asserted on Delbert’s behalf, Boon has 

failed to establish his entitlement to a traditional summary judgment as a matter of law. 

IV. Conclusion 

We affirm the trial court’s summary judgment in favor of Boon with respect to claims 

relating to damages allegedly suffered by Bengel. However, we reverse the trial court’s 

summary judgment dismissing the claims by Wendolyn in her capacity as the personal 

 13See Burrow v. Arce, 997 S.W.2d 229, 238 (Tex. 1999) (holing that actual damages need not be shown prior to 

entitlement to fee forfeiture). 

14Boon also argues that the beneficiaries of Delbert’s estate are barred from seeking additional amounts under the 

estate due to the 2006 releases. That matter is to be handled by the estate at another time. 
30

representative of Delbert’s estate against Boon and remand those claims to the trial court for 

further proceedings consistent with this opinion. 

Bailey C. Moseley

Justice

Date Submitted: October 22, 2014

Date Decided: December 19, 2014