Reverse and Remand and Opinion Filed June 30, 2014 

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In The 

## Court of Appeals Fifth District of Texas at Dallas

No. 05-12-01451-CV EDWIN M. SIGEL, Appellant V. AAMER RAZI, Appellee On Appeal from the 44th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-10-15162 

### MEMORANDUM OPINION Before Justices Bridges, Fillmore, and Lewis Opinion by Justice Bridges Edwin M. Sigel appeals the tr ial court’s summary judgment in favor of Aamer Razi on Razi’s claims of breach of fiduciary duty and c onversion. In a single issue, Sigel argues issues of material fact precluding summary judgment ex ist, and the trial cour t erred in entering its summary judgment. We reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

The record indicates Razi hired Sigel as his attorney in October 2008 to defend him against charges of attempted kidnapping of a chil d. Razi paid $1000 to Sigel at the outset of the representation. Razi also signed a statutory dura ble power of attorney appointing Sigel as his agent generally and specifically providing “My Agent’s powers includes [sic] all matters with respect to my residence condominium.” In Nove mber 2008, Sigel, acting as attorney-in-factpursuant to the power of attorney, signed a sp ecial warranty deed conve ying the condominium to

himself as trustee. Sigel continued to represen t Razi in the criminal case from October 2008 until April 2009, at which time he filed a motion to withdr aw. On July 7, 2009, Sigel conveyed Razi’s condominium to a third party for $17,000. In Nove mber 2010, Razi sued Sigel, alleging Sigel sold the condominium without Razi’s knowledge or consent. Razi asserted claims for breach of fiduciary duty, fraud, violations of the Texas th eft liability act, and co nversion. Sigel filed a general denial and counterclaim asserting Razi accepted Sigels’s legal services over an eightmonth period, Razi owed approx imately $28,000 in legal fees, Razi breached his oral contract for legal services with Sigel, and Razi owed damages of $28,000 under a quantum meruit theory. Razi filed a motion for partial summary j udgment on his breach of fiduciary duty and conversion claims. In support of his motion, Razi attached the power of attorney naming Sigel as his agent, the special warranty deed Sigel gr anted to himself as tr ustee via the power of attorney, and the general warranty deed to a th ird-party purchaser. Razi based his summary judgment motion on his assertions , contained in his affidavit, that he paid Sigel $1000 to represent him and never signed a written fee agr eement; Sigel had Razi sign a power of attorney so that Sigel could take care of Razi’s condomin ium; Sigel never explained that the power of attorney allowed him to sell Razi’s condominium to pay his legal fees; Sigel never informed

Razi he sold the condominium or that he re moved or otherwise discarded Razi’s property 1 left inside; Sigel’s sale of the condominium left Razi homeless; and Sigel never provided an accounting for the money he received from the sale of the condominium.

1 Included in Razi’s affidavit was a picture that purports to show the condition of the condominium dated January 12, 1997.Attached to Razi’s motion as Exhibit 9 was Sigel’s response to Razi’s request for disclosure of “the legal theories and, in general, fact ual bases for Sigel’s claims or defenses” containing the following response: Razi hired Sigel to defend him agai nst serious felony charges of child molestation, child abuse and injury and ki dnapping in Denton, Texas. Sigel’s fee for that representation against the criminal charges was set at $20,000. The factors Sigel considered, among others, in setting the fee was the nature of the criminal charges, the time and labor requi red, the required trips out of county, the likelihood that the case mi ght preclude other employment, the fee customarily charged by attorneys with equal experience and expert ise possessed by Sigel. Sigel successfully performed the request ed services over an extended period of time. The Aamir lawsuit against Sigel and [the purchaser of the condominium] is frivolous and supported by no convincing evidence. Sigel filed a response to the motion fo r summary judgment supported by his affidavit stating that Razi contacted him on charges that “supposedly involve d child molestation”; after an initial interview, Sigel agreed to look into the matter for a non -refundable retainer of $1000; Razi agreed and paid some of the retainer that day and some the next day; shortly thereafter, Razi called Sigel collect and said he was again in the Denton jail after being re-arrested for investigation of injury to a child; Sigel went to Denton and attempted to persuade the bondsman not to go off of Razi’s bond and called the detectiv e involved in the case, the magistrate, and the district attorney in charge of the case; Sigel expl ained to Razi that Razi was entitled to effective assistance of counsel, and if Razi could not a fford Sigel’s services, Razi could get another attorney or the State would furnis h other counsel; Sigel said he need ed a second attorney to assist

him and that his minimum retainer for a case th is difficult was $20,000; Sigel said he needed his investigator, a psychiatrist, and a psychologist to assist him a nd possibly testify; taking into account all the fees requir ed to provide Razi with effective a ssistance of counsel, Sigel said the total retainer was $42,000; Razi said he could afford this repres entation; Razi said he had a condominium he claimed was worth $35,000 and his father had money; Sigel stated Razi’s statement in his affidavit that the power of atto rney would allow Sigel to “take care of his homeand property” was “a total lie”; Sigel took Razi’s condominium as “trustee” not as trustee for Razi but rather as “trustee” to allow Sigel to use the condominium “to some how get funds to pay the above described fees for me, the second lawyer . . . the investigator, an d the psychiatrist, and a psychologist”; when Razi signed the condominiu m paperwork he knew he was signing over his condominium to pay for his defense; the condominium turned out to be a “wreck and in no way worth $35,000”; the condominium air-conditioni ng was not working, and the kitchen and bathroom were “trashed”; Razi’s financial situ ation was “in no way as Razi described,” and none of his friends or family stepped up to help him; because of Sigel’s efforts “over a six to nine months period,” Sigel was able to obtain a plea bargain agreement which he advised Razi not to take because it required him to plead guilty and “he was claiming innocence;” Razi, “after consulting his jail house lawyer friends,” told Si gel he wanted to plead guilty and would get “a court appointed lawyer to do it”; because Razi “basically fired” him, Sigel filed a motion to withdraw and gave the files to Razi’s appointed lawyer. On September 10, 2012, the trial court ente red summary judgment in favor of Razi 2 on his claims of breach of fiduciary duty and co nversion. On October 3, 2012, the trial court granted Razi’s motion to dismiss without prejudi ce his claims of fraud and violations of the Texas Civil Theft Liability Act. On October 9, 2012, the trial court entered its final summary judgment in Razi’s favor as to his claims for breach of fiduciary duty and conversion. This appeal followed. In a single issue, Sigel argues the trial cour t erred in granting Razi’s motion for summary judgment. In reviewing the tria l court’s decision to grant su mmary judgment, we apply wellknown standards. See T EX

. R. C IV

. P. 166a(c); Nixon v. Mr. Property Mgmt. Co. , 690 S.W.2d

2 The same day, the trial court entered a no-evidence summary judg ment on a counterclaim brought by Sigel. Sigel has not appeal ed the summary judgment on his counterclaim, and we need not further address it.546, 548-49 (Tex. 1985). We review the tria l court’s summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex. 2003). A traditional motion for summary judgment must show there is no genuine issue as to a specified material fact and, therefore, the moving party is entitled to judgment as a matter of law. See T EX

. R. C IV

. P. 166a(c). If the movant meets its burden, then and only then must the non-movant respond and present evidence raising a fact issue. See Rhone-Poulenc, Inc. v. Steel , 997 S.W.2d 217, 222-23 (Tex. 1999). Here, Razi based his motion for summary j udgment on his claim that Sigel represented the power of attorney was to enable Sigel to take care of Razi’s condominium, and Sigel never explained that the power of attorney allowed him to sell the condominium in order to pay for legal fees. In response, Sigel presented evidence he discussed with Razi a $42,000 retainer, Razi represented that his condominium was worth $35,000, and Razi executed the power of attorney so that Sigel, as “trustee,” could “some how get funds to pay the above described fees for me, the second lawyer . . . the investigator, and the psyc hiatrist, and a psychologi st.” Sigel presented evidence Razi knew he was signing over his condomi nium to pay for his defense. The record shows Sigel represented Razi from October 2008 until the end of April 2009, and the summary judgment evidence indicates Sigel worked out a plea bargain agreement on Razi’s behalf with the district attorney. The power of attorney specifically included “all matters” with respect to

Razi’s condominium. We conclude fact issu es precluding summary judg ment exist regarding whether Sigel committed any breach of fiduciary duty or conversion of Razi’s property. See

Nixon , 690 S.W.2d at 548-49. We sustain Sigel’s sole issue.We reverse the trial court’s judgment and remand for further proceedings.

121451F.P05 /David L. Bridges/ DAVID L. BRIDGES JUSTICE

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT

EDWIN M. SIGEL, Appellant

No. 05-12-01451-CV V. AAMER RAZI, Appellee On Appeal from the 44th Judicial District Court, Dallas County, Texas Trial Court Cause No. DC-10-15162. Opinion delivered by Justice Bridges. Justices Fillmore and Lewis participating. In accordance with this Court’s opinion of this date, the judgment of the trial court is AFFIRMED

. It is ORDERED that appellant EDWIN M. SIGEL rec over his costs of this appeal from appellee AAMER RAZI.

Judgment entered June 30, 2014