## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH NO. 2 - 09 - 376 - CV

PATRICK GALLAGHER AND A PPELLANT S LOIS GALLAGHER
V. A. BRUCE WILSON APPELLEE

------------ FROM COUNTY COURT AT LAW NO. 1 OF TARRANT COUNTY

------------ 

### MEMORANDUM OPINION 1

------------ I. I NTRODUCTION This is a summary judgment appeal. Appellee A. Bruce Wilson filed no

evidence and traditional motion s for summary judgment. The trial court granted both motions without stating a basis for its ruling s

. Appellants Patrick Gallagher and his wife Lois Gallagher perfected this appeal, raising two iss ues, one challenging the no

- evidence summary judgment and one challenging the

1 See Tex. R. App. P. 47.4.2

traditional summary judgment. For the reasons set forth below, we will affirm the trial court ‟ s s ummary judgment s in favor of Wilson

.

II. F ACTUAL AND P ROCEDURAL B ACKGROUND Pat rick and Lois sued Wilson , an attorney, for legal malpractice and for breach of fiduciary duty. Patrick and Lois ‟ s claims against Wilson, according to their Third Amended Original Petition, involve actions Wilson took while representing Patrick in a 2003 probate matter in connection with Patrick ‟ s service as the e xecutor of his mother ‟ s estate (the 2003 Probate Matter ) and in a 2005 lawsuit filed by Patrick ‟ s brother , Ga r rett , stemming from the probate of their mother ‟ s estate (the 2005 Litigation )

. A. The 2003 Probate Matter Patrick ‟ s mother , Neva R. Gallagher , died in 2003, and under the terms of her will, Patrick was appointed indepe ndent executor of her estate. The will also specified that h er two sons, Patrick and Gar r ett , were to equally shar e the as sets of her estate. The estate included two parcels of real estate titled in Neva ‟ s name, the Van Deman Property an d the Trinity Vista Property. According to Patrick and Lois , although the Trinity Vista Property was in Neva ‟ s name, Patrick had actually p urchased it and made all payments on the property himself ; he put it in his mother ‟ s name “ because [he] thought it would expedite her hospice care. ” Patrick retained Wilson to assist in the probate of his mother ‟ s estate. Acting on Wilson ‟ s advice, Patrick listed the Trinity Vista Property as part of the estate on several sworn documents filed with the probate cour t without indicating3

that the property actually belonged to Patrick or that it was subject to a significant mortgage debt. Patr ick informed Wilson of his concerns with how the Trinity Vista Property was listed, but ultimately, acting on Wilson ‟ s advice and instructions, he signed the sworn documents “ even though he did not believe that the information was accurate or complete. ”
L ater in 2003, Patrick, acting as independent executor of the estate, transferred the Trinity Vista Property to himself and his wife Lois. He also paid Gar r ett $10,000 as a partial distribution of the estate and advised Ga r rett that he would receive anothe r distribution when Patrick sold the Van Deman Property. B. The 2005 Litigation In 2005, Gar r ett filed suit against Patrick and Lois, claiming that Patrick had breached his duties as independent executor by transferring the Trinity Vista Property to himself and Lois without notify ing Garrett and without Garrett ‟ s consent. Pointing to the inventory and closing affidavit for his mother ‟ s estate, which listed the Trinity Vista Property as part of the estate, Ga r rett asserted that the Trinity Vista Property shou ld have passed in equal s hares to himself and Patrick. Patrick and Lois hired Wilson to defend t hem in the 2005 Litigation. During discovery, Gar r ett served requests for admissions on Patrick and Lois , and Patrick gave Wilson hand

- written instructions on how t he requests should be answered. But Wilson failed to timely respond to the requests for admissions , and the y were deemed admitted

. Wilson did not notify Patrick and Lois of these4

deemed admissions, but he sought and received the probate court ‟ s perm ission to withdraw the deemed admissions and to s ubstitute answers to the requests. Contrary to the hand

- written answers to the requests for admissions that Patrick had given Wilson , however, Wilson answered “ Admitted ” to four request s
–– admitting that Patrick and Lois had never notified Gar r ett of their intent to convey the Trinity Vista Property to themselves and that Gar r ett did not receive compensation for his h alf interest in the property. During the 2005 Litigation, Wilson also advised Patrick and Lois that the sworn documents filed in the 2003 Probate Matter, listing the Trinity Vista Property as part of Neva ‟ s estate, were binding on them and that, consequently, they should negotiate a settlement with Gar r ett

. Relying on Wilson ‟ s advice, Patrick and Lois entered into a Rule 11 Agreement with Ga r rett in which Ga r rett would receive seventy
- five percent of the sale proceeds from the Van Deman Property and in which Lois, who is a real estate agent, w ould be prohibited from acting as a real estate agent in the sale of that property. Patrick, acting as executor of the estate, entered into a contract to sell the Van Deman Property to a third person, but after Wilson unilaterally inserted into the contract certa in langu age about the Rule 11 Agreement , the buyer back ed out of the contract

. Patrick also negotiated a sale of the Trinity Vista Property, and he requested that Wilson obtain a release of the lis pendens that Gar r ett had5

filed against the property. 2 Wi lson failed to do so, and Patrick had to pay Gar r ett an additional $3,500 in order to get a release of the lis pendens so that Patrick
could sell the Trinity Vista Property. Gar r ett ultimately filed a motion to dismiss his suit against Patrick and Lois with prejudice based on the settlement agreement between the parties

. The trial court signed an order dismissing Gar r ett ‟ s suit wi th prejudice on May 31, 2006. On November 8, 2006, Pa trick filed an amended closing affidavit in the 2003 Probate Matter, reflecting that all assets of the estate had been distributed

.

C. Patrick and Lois ’ s Suit Against Wilson On June 2, 2008, Patrick and Lois filed suit against Wilson for legal malpractice and breach of fiduciary duty based on actions Wilson took during both the 2003 Probate Ma tter and the 2005 Litigation. Specifically regarding the 2003 Probate Matter, they complained of Wilson ‟ s advice to list the Trinity Vista Property as belonging to the estate in sworn documents filed with the probate court without any indication (1) that the property actually belonged to Patrick and Lois and (2) that the property wa s subject to a mortgage de bt. Specifically regarding the 2005 Litigation, Patrick and Lois complained of (1) Wilson ‟ s advice
to enter into an unfavorable settlement agreement with Ga r rett , (2) Wilson ‟ s failure to timely respond to requests for admissions, (3) Wilson ‟ s insertion of the

2 A lis pendens is a document that prev ents a party to litigation from transferring an interest in real property until the litigation is resolved. See Tex. Prop. Code Ann. § 12.007 (Vernon Supp. 200 9 ); World Savings Bank, F.S.B. v. Gantt , 246 S.W.3d 299, 303 (Tex. App.

–– Houston [14th Dist.] 2008, no pet.).6

Rule 11 Agreement language into the contract for sale of the Van Deman Property, and (4) Wilson ‟ s failure to obtain a release of the lis p endens on the Trinity Vista Property. III. S TANDARDS OF R EVIEW

A. No - Evidence Summary Judgment After an adequate time for discovery, the party without the burden of proof may, without presenting evidence, move for summary judgment on the ground that there is no evidence to support an essential element of the nonmovant ‟ s claim or defense. Tex. R. Ci v. P. 166a(i). The motion must specifically state the elements for which there is no evidence. Id. ; Timpte Indus., Inc. v. Gish , 286 S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the nonmovant produces summary judgment eviden ce that raises a genuine issue of material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson , 249 S.W.3d 425, 426 (Tex. 2008). When reviewing a no

- evidence summary judgment, we examine the entire record in the light most favorable to the nonmo vant, indulging every reasonable inference and resolving any doubts against the motion. Sudan v. Sudan , 199 S.W.3d 291, 292 (Tex. 2006). We review a no

- evidence summary judgment for evidence that would enable reasonable and fair

- minded jurors to differ i n their conclusions. Hamilton , 249 S.W.3d at 426 (citing City of Keller v. Wilson , 168 S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if reasonable jurors could, and we disregard evidence contrary to the nonmovant7

unless reas onable jurors could not. Timpte Indus., Inc. , 286 S.W.3d at 310 (quoting Mack Trucks, Inc. v. Tamez , 206 S.W.3d 572, 582 (Tex. 2006)). If the nonmovant brings forward more than a scintilla of probative evidence that raises a genuine issue of material fac t, then a no

- evidence summary judgment is not
proper. Smith v. O ’ Donnell , 2 88 S.W.3d 417, 424 (Tex. 2009).

B. Traditional Summary Judgment In a summary judgment case, the issue on appeal is whether the movant met the summary judgment burden by establish ing that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding , 289 S.W.3d 844, 848 (Tex. 2009). We review a summary judgme nt de novo. Mann Frankfort

, 289 S.W.3d at 848. We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant ‟ s favor. 20801, Inc. v. Parker

, 249 S.W.3d 392, 399 (Tex. 2008); Sw . Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). We consider the evidence presented in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding evidence contrary to th e nonmovant unless reasonable jurors could not. Mann Frankfort , 289 S.W.3d at 848. We must consider whether reasonable and fair

- minded jurors could differ in their conclusions in light of all of the evidence presented. See Wal

- Mart Stores, Inc. v. Spate s , 186 S.W.3d 566, 568 (Tex. 2006); City of Keller , 168 S.W.3d at8

822

– 24 . The summary judgment will be affirmed only if the record establishes that the movant has conclusively proved all essential elements of the movant ‟ s defense as a matter of law. City of Houston v. Clear Creek Basin Auth. , 5 89 S.W.2d 671, 678 (Tex. 1979). IV. L EGAL M ALPRACTICE Concerning Patrick and Lois ‟ s legal malpractice claim, Wilson ‟ s no evidence summary judgment motion claimed that no evidence existed on the elements of breach of duty , proximate cause, or damages. Wilson argues that expert testimony was required to establish these elements. Because Patrick and Lois ‟ s summary judgment evidence did not include any expert report or affidavit, Wilson argues that the trial court pr operly granted his no

- evidence summary judgment motion. Patrick and Lois argue that expert testimony was not required to support their claims because Wilson ‟ s errors were “ plainly within the understanding and common knowledge of laymen. ”
A. Law on Legal Malp ractice Legal malpractice cases in Texas are based on negligence. Barcelo v. Elliott , 923 S.W.2d 575, 579 (Tex. 1996) ; Delp v. Douglas , 948 S.W.2d 483, 495 (Tex. App.

–– Fort Worth 1997), rev ’ d in part on other grounds , 987 S.W.2d 879 (Tex. 1999). To prevail on a legal malpractice claim, a plaintiff must show “„ 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) damages9

occurred. ‟” Alexander v. Turtu r & Assocs., Inc ., 146 S.W.3d 113, 117 (Tex. 2004) (quoting Peeler v. Hughes & Luce , 90 9 S.W.2d 494, 496 (Tex.1995)). A plaintiff must generally present expert testimony to establish the breach and causation elements of a legal malpractice claim. Alexander , 146 S.W.3d at
117 , 119

– 20

. Breach of the standard of care and causation are separate inquiries, and an abundance of evidence as to one cannot substitute for a deficiency of evidence as to the other. Id. at 119. Regarding the breach element, a ttorneys are held to the standard of care that a reasonably prudent attorney would exercise, and expert testimony is typically needed to demonstrate that standard of skill and noncompliance with that standard

. Longaker v. Evans , 32 S.W.3d 725, 735 (Tex

. A pp.
–– San Antonio 2000, pet. withdrawn) ( en banc op. on reh‟g) ; J atoi v. Decker, Jones, McMackin, Hall & Bates , 955 S.W.2d 430, 434 (Tex. App.

–– Fort Worth 1997, writ denied) ; Hall v. Rutherford

, 911 S.W.2d 422, 424 (Tex. App.

–– San Antonio 1995, writ denied). [A] n attorney can commit legal malpractice by giving an erroneous legal opinion or erroneous advice, by failing to give any advice or opinion when legally obliged to do so, by disobeying a client ‟ s lawful instruction, by taking an action when not instructed by the client to do so, by delaying or failing to handle a matter entrusted to the attorney ‟ s care by the client, or by not using an attorney ‟ s ordinary care in preparing, managing, and presenting litigation that affects the client ‟ s interests

. Kimleco Petroleum , Inc. v. Morrison & Shelton , 91 S.W.3d 921, 92 3

– 2 4 (Tex. App.

–– Fort Worth 2002, pet. denied) (citing Zidell v. Bird , 692 S.W.2d 550, 55310

(Tex. App.

–– Austin 1985, no writ) )

. Expert testimony is not required if the attorney ‟ s lack of care and skill is so obvious that the trier of fact can find negligence as a matter of common knowledge. James V. Mazuca and Assocs

. v. Schumann , 82 S.W.3d 90 , 97 ( Tex. App.

–– San Antonio 2002 , pet. denied ). The most common example of a case requiring no expert testimony is one in which an attorney allows the statute of limitations to run on a client ‟ s claim. Id.

B. Expert Testimony Was Required Here, the majority of Wilson ‟ s alleged breaches were not within a jury ‟ s common understanding

. Whether Wilson was negligent and breached his duty of

care in advising Patrick and Lois to list real property as part of Neva ‟ s estate when Neva was, in fact, the listed owner of that property and advising them to list that property at full value without i ndicating that Patrick claimed to be the actual

owner and made all payments on the property himself is not a matter of common knowledge

. Similarly, whether advising Patrick and Lois to enter into the settlement agreement with Ga r rett , whether inserting la nguage about the settlement agreement into the contract for sale of the Van Deman Property , and whether failing to obtain a release of the lis p endens on the Trinity Vista Property constituted negligence and breaches of the duty of care Wilson owed to Patr ick and Lois are not matters of common knowledge . These allegations are substan tially more complex than , for example, allowing the statute of limitations to run and required expert testimony to establish a breach of the requisite standard of care. See, e.g. , Longaker , 32 S.W.3d at 735 (requiring expert11

testimony to establish breach element when client alleged malpractice based on attorney ‟ s advice on closing a trust) ; see also Francisco v. Foret , No. 05

- 01

- 00783

- CV , 2002 WL 535455 , at *2 (Tex. App.

–– Dallas Apr. 11, 2002, pet. denied ) (requiring expert testimon y of an attorney to establish breach of standard of care regarding malpractice claim premised on attorney ‟ s alleged failure to understand medical malpractice law, mishandling of the case, and misstatements of the applicable law ). The only alleged breach by Wilson that remains i s hi s failure to timely respond to requests for admissions. Failing to timely respond to discovery is less complex than the above alleged breaches and m ore analogous to allowing a statute of limitation to run , but Wilson successfully obtained the probate court ‟ s permission to withdraw the deemed admissions and substituted answers to those requests . Consequently, Wilson ‟ s failure to timely respond to requ ests for admissions could not have caused any harm to Patrick and Lois. See Alexander , 146 S.W.3d at 117 (requiring pro of that breach caused plaintiff ‟ s injuri es and that damages occurred). Patrick and Lois further claim that , even though Wilson successfully substituted answers to the deemed admissions, he “ failed to faithfully adhere to the instruction provided by [Patrick] as to how the Requests should be answer ed ” and instead answered, “ Admitted ” to several requests despite Patrick ‟ s instructions otherwise. But Patrick and Lois failed to present any evidence to show a causal link between Wilson admitting to four requests for admissions and12

Patrick and Lois entering into the settlement agreement with Garrett. See id. ; see also Cantu v

. Horany , 195 S.W.3d 867 , 873 (Tex. App.

–– Dallas 2006, no pet.) (requiring expert testimony to show that client would have prevailed in litigation if attorney had properly sued responsible party). Any causal relationship between Wilson admitting several r equests and Patrick and Lois ultimately settling the lawsuit with Garrett on unfavorable terms i s not an obvious matter of common knowledge. Cf. Streber v. Hunter , 221 F.3d 701, 726

– 27 (5th Cir. 2000) ( holding expert testimony on causation not required when expert testified that attorney ‟ s tax advice was incorrect, thus establishing negligence and breach, and client t estified that attorney ‟ s advice not to settle tax dispute caused her specific financial losses ) ; Delp , 948 S.W.2d at 495 (holding expert testimony on causation not required when expert testimony established breach and client‟s testimony established that his reliance on attorney‟s advice caused him to lose business interest and file for bankruptcy)

. Examining the entire record in the light most favorable to Patrick and Lois,

as the nonmovant s , indulging every reasonable inference an d resolving any doubts against Wilson ‟ s no - evidence motion , we hold that Patrick and Lois failed to bring f orward a scintilla of probative evidence that raises a genuine issue of material fact on the breach and causation elements of their legal malpractice cause of action

. See S mith , 288 S.W.3d at 424 ; Sudan , 199 S.W.3d at 292. Consequently, we hold that the trial court did not err by granting Wilson ‟ s no evidence summary judgment motion on Patrick and Lois ‟ s legal malpractice13

cause of action. We overrule that portion of Patrick and Lois ‟ s first issue addressing their l egal malpractice claim

. V. B REACH OF F IDUCIARY D UTY Wilson ‟ s traditional summary judgment motion claimed that the Gallagher ‟ s breach of fiduciary duty claim wa s improper because it was simply a restatement of their legal malpractice claim.

A. Law on Fracturing Breach of Fiduciary Duty Claims Generally, Texas courts do not allow plaintiffs to convert what are really negligence claims into claims for fraud, breach of contract, breach of fiduciary duty, or violation of the DTPA “ because the „ real issue r emains one of whether the professional exercised that degree of care, skill, and diligence that professionals of ordinary skill and knowledge commonly possess and exercise. ‟” Kimleco Petroleum , Inc. , 91 S.W.3d at 924 (quoting Averitt v. PriceWaterhouseCoopers L.L.P. , 89 S.W.3d 330, 333 (Tex. App.

–– Fort Worth,
2 002, no pet.) )

. 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 i s whether an attorney adequately represented a client. See id

. Breach of fiduciary duty often involves the attorney ‟ s fai ling to disclose conflicts of interest, fail ing to deliver funds belonging to the client, improper ly

us ing client confidences, or engaging in self

- dealing. Aiken v. Hancock , 115 S.W.3d 26, 2 8 (Tex. App.

–– San Antonio 2003, pet. denied) ; Goffney v. Rabson , 56 S.W.3d 186, 193 (Tex. App.

–– Houston [14th Dist.] 2001, pet. denied)

.14

R egardless of the theory a plainti ff pleads, as long as the crux of the complaint is that the plaintiff ‟ s attorney did not provide adequate legal representation, the claim is one for legal malpractice. See Greathouse v. McConnell , 982 S.W.2d 165, 172 (Tex. App.

–– Houston [1st Dist.] 1998, pet. denied )

.

B. Breach of Fiduciary Duty Claims Improper Here, Patrick and Lois rely on the same conduct by Wilson for their breach of fiduciary duty claim as they do for their legal malpractice claim. They claim that Wilson breached his fiduciary duty by giving Patrick bad advice, failing to respond to discovery, failing to seek a release of a lis pendens o n property, and improperly adding language into a contract for sale of the property. Patrick and Lois further allege that Wilson ‟ s “ insistence on reaching a settlement with Garrett was based, at least in part, on Wilson ‟ s need to conceal his failure to respond to the requests for admissions and on Wilson ‟ s need to conceal the possible criminal repercussions of the sworn

- to inventories he directed [P atrick] to
execute. ” But Patrick and Lois ‟ s allegations constitute claims for legal malpractice that do not amount to self

- dealing, deception, or express misrepresentations in the course of Wilson ‟ s representation sufficient to support a separate cause of action for breach of fiduciary duty. See, e.g. , Newton v. Meade , 143 S.W.3d 571, 574 (Tex. Ap p.
–– Dallas 2004, no pet.) (explaining that a cause of action claiming bad legal advice or improper representatio n is one for legal malpractice); Aiken , 115 S.W.3d at 29 ( holding that allegations that lawyer falsely represented that he15

and expert witness w ere prepared for trial and failed to reveal that he and expert witness were, in fact, not prepared for trial did not allege “ self

- dealing, deception,
or express misrepresentations in [the lawyer ‟ s] legal representation ” to support separate cause of action for breach of fiduciary duty); Kimleco Petroleum , Inc. , 91 S.W.3d at 924 ( holding that crux of claim that lawyer negligently failed to timely designate expert wi tness and misled clients into believing case was ready for trial stated claim for legal malpractice, not breach of fiduciary duty); Goffney , 56 S.W.3d at 193

– 94 ( holding that client ‟ s allegation of breach of fiduciary duty against lawyers w as “ no more than a claim for legal malpractice ” because acts did not “ amount to self

- dealing, deception, or misrepresentations ” ); Greathouse , 982 S.W.2d at 172

– 75 ( holding that claims for breach of fiduciary duty were actually claims for legal malpractice because they were based on complaint s that lawyer did not provide adequate legal representation ). Accordingly, we hold that the trial court properly granted Wilson ‟ s motion for traditional summary judgment with respect to Patrick and Lois ‟ s breach of fiduciary d uty claim

. We overrule that portion of Patrick and Lois ‟ s second issue addressing their breach of fiduciary duty claim. V I
. C ONCLUSION Having determined that the trial court properly granted no - evidence summary judgment for Wilson based on Patrick and Lois ‟ s legal malpractice cause of action and that the trial court properly granted traditional summary judgment for Wilson based on Patrick and Lois ‟ s remaining cause of action for16

breach of fiduciary duty, we affirm the trial court ‟ s su mmary judgment s

. B ecause we affirm the trial court ‟ s summary judgment s on th ese bas es , we need not address Patrick and Lois ‟ s challenges to the other grounds on which the trial
court ‟ s summary judgment s could have been based. See, e.g., Carr v. Brasher , 776 S.W.2d 567, 569 (Tex. 1989) (instructing us that if trial court ‟ s summary judgment does not specify the grounds upon which it is granted, we are to affirm the judgment if any of the theor ies advanced are meritorious).

SUE WALKER JUSTICE PANEL: DAUPHINOT, WALKER, and MEIER, JJ. DELIVERED: August 26, 2010