Opinion issued May 16, 2017

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-16-00325-CV

———————————

DONALD YOUNG AND DORIS YOUNG, Appellants

V.

DWAYNE R. DAY, P.C. AND DWAYNE R. DAY, Appellees

On Appeal from County Court at Law No. 3

Galveston County, Texas

Trial Court Case No. CV0072910

MEMORANDUM OPINION

Appellants, Donald and Doris Young, appeal the trial court’s order granting 

summary judgment in favor of appellees, Dwayne R. Day, P.C., and Dwayne R. Day 

(collectively “Day”), on the Youngs’ claims of professional negligence, breach of 

contract, negligent misrepresentation, fraud, breach of fiduciary duty, violations of 
2

the Deceptive Trade Practices Act (“DTPA”), and declaratory relief. In two issues, 

the Youngs contend that the trial court (1) erred in granting summary judgment in 

favor of Day and (2) abused its discretion in failing to rule on their discovery motions 

prior to granting summary judgment. We affirm in part and reverse and remand in 

part.

Background

In 2009, Day represented the Youngs in a personal injury lawsuit against Don 

Clapsaddle (“Clapsaddle lawsuit”) stemming from injuries Donald sustained after 

he was struck by Clapsaddle’s car while walking in a post office parking lot in 

August 2007. Lawrence Tylka, the Youngs’ previous attorney, intervened in the 

Clapsaddle lawsuit seeking to recover unpaid fees and expenses,

1

and Chris Di

Ferrante, a judgment creditor, filed a motion for turnover order in the suit, seeking 

to collect on two previously obtained judgments against the Youngs.

The case proceeded to trial on September 7, 2010. The jury found Donald 

solely responsible for the accident, and the trial court rendered a take-nothing 

judgment against the Youngs on February 1, 2011. The Fourteenth Court of Appeals

affirmed. See Young v. Clapsaddle, No. 14-11-00396-CV, 2012 WL 2160249 (Tex. 

App.—Houston [14th Dist.] June 14, 2012, no pet.) (mem. op.).

 

1 The Youngs fired Tylka and later retained Day to represent them.
3

On October 8, 2014, the Youngs filed suit against Day, asserting claims for 

legal malpractice and breach of contract arising from the Clapsaddle lawsuit. On 

March 6, 2015, Day filed an answer and special exceptions. On April 17, 2015, Day 

filed an amended answer and special exceptions to which he attached as an exhibit 

a document entitled “Power of Attorney and Contingent Fee Contract” purportedly 

entered into by the Youngs and Day.

On May 21, 2015, the Youngs filed their first amended petition alleging that 

Day had (1) failed to call certain witnesses at trial; (2) allowed Clapsaddle to present 

his witnesses by deposition rather than in person; and (3) insisted that the Youngs

settle the lawsuit for any amount. They also alleged that he entered into an oral 

agreement to represent Donald in a lawsuit against Clear Lake Rehabilitation 

Hospital (“CLRH”) for an injury Donald allegedly sustained while being treated for 

his accident-related injuries. They assert that Day did not follow through on the 

alleged oral contract and caused them to miss the deadline to sue the hospital. They 

further alleged that Day falsely advised them that they had to go to trial because 

there was no settlement offer. In April 2015, Day produced two pdf files which 

appear to be a contingency fee contract executed by the parties and a refusal in 

writing of a $200,000 settlement offer from Clapsaddle, both of which had 

apparently been signed by the Youngs. The Youngs allege that they never signed a 

contract with Day, and that Day never told them that he had received a $200,000 
4

settlement offer from Clapsaddle. Claiming that these are “fraudulently generated 

documents,” the Youngs added claims for negligent misrepresentation, fraud, breach 

of fiduciary duty, and declaratory judgment. 

On October 28, 2015, Day filed a traditional motion for summary judgment. 

In the motion, Day alleged that (1) the Young’s non-negligence claims were barred 

by the rule against fracturing a professional negligence claim; (2) their negligence 

claims were barred by the applicable statute of limitations; (3) their claims for 

professional negligence, breach of fiduciary duty, and negligent misrepresentation 

claims failed because the Youngs did not designate an expert to testify with regard 

to the appropriate standard of care, breach, and causation; (4) the Youngs’ claim 

against Day with regard to CLRH failed because Day never agreed to represent the 

Youngs against CLRH; and (5) their declaratory judgment action failed because they 

signed a contingency fee agreement.

On November 13, 2015, the Youngs filed their summary judgment response, 

a supplemental amended original petition adding a claim for DTPA violations, and

various other motions. Day filed a reply to the Youngs’ summary judgment 

response.

On February 1, 2016, the trial court signed an order granting Day’s motion for 

summary judgment. On March 2, 2016, the Youngs filed a motion for new trial 

which the trial court denied on March 21, 2016. This appeal followed. 
5

Summary Judgment

In their first issue, the Youngs contend that the trial court erred in granting 

summary judgment on their claims.

A. Standard of Review

We review a trial court’s decision to grant a motion for summary judgment de 

novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under 

the traditional summary judgment standard, the movant has the burden to show that 

no genuine issues of material fact exist and that it 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); Nixon v. Mr. Prop. Mgmt. Co., 690 

S.W.2d 546, 548 (Tex. 1985). A defendant moving for traditional summary 

judgment must either (1) disprove at least one element of the plaintiff’s cause of 

action or (2) plead and conclusively establish each essential element of an 

affirmative defense to rebut the plaintiff’s case. Sci. Spectrum, Inc. v. Martinez, 941 

S.W.2d 910, 911 (Tex. 1997). A matter is conclusively established if reasonable 

people could not differ as to the conclusion to be drawn from the evidence. See City 

of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005). In our review, we take the 

non-movant’s competent evidence as true, indulge every reasonable inference in 

favor of the non-movant, and resolve all doubts in favor of the non-movant. 

Diversicare Gen. Partner, Inc. v. Rubio, 185 S.W.3d 842, 846 (Tex. 2005).
6

When, as here, a trial court’s order granting summary judgment does not 

specify the ground relied upon, the court must affirm the summary judgment if any 

of the summary judgment grounds is meritorious. See FM Props. Operating Co. v. 

City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). Because the trial court in this case 

did not specify the ground upon which it relied for its ruling, we will affirm if any 

theory advanced by Day in his summary judgment motion is meritorious. See Joe 

v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 157 (Tex. 2004).

B. Analysis

In support of their argument that the trial court erred in granting summary 

judgment, the Youngs contend that (1) their claims for breach of fiduciary duty, 

fraud, and DTPA violations are not barred by the anti-fracturing rule; (2) the 

discovery rule and the doctrine of fraudulent concealment applied to toll the statute 

of limitations on their claims; (3) Day did not seek dismissal of their DTPA claim 

and therefore summary judgment on this claim was improper; and (4) their claim 

related to Day’s alleged failure to file suit against CLRH was improperly dismissed.

1. Anti-Fracturing Rule

The rule against fracturing claims prevents plaintiffs from converting what are 

actually professional negligence claims against an attorney into other claims such as 

fraud, breach of contract, breach of fiduciary duty, or DTPA violations. Won Pak v. 

Harris, 313 S.W.3d 454, 457 (Tex. App.—Dallas 2010, pet. denied). The rule 
7

prevents legal malpractice plaintiffs from “opportunistically transforming a claim 

that sounds only in negligence into other claims” to avail themselves of longer 

limitations periods, less onerous proof requirements, or other tactical advantages. 

Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 427 (Tex. 

App.—Austin 2009, no pet.). 

For the anti-fracturing rule to apply, however, the gravamen of a client’s 

complaints must focus on the quality or adequacy of the attorney’s representation. 

Murphy v. Gruber, 241 S.W.3d 689, 692–93 (Tex. App.—Dallas 2007, pet. denied). 

“If the gist of a client’s complaint is that the attorney did not exercise that degree of 

care, skill, or diligence as attorneys of ordinary skill and knowledge commonly 

possess, then that complaint should be pursued as a negligence claim, rather than 

some other claim.” Deutsch v. Hoover, Bax & Slovacek, L.L.P, 97 S.W.3d 179, 189 

(Tex. App.—Houston [14th Dist.] 2002, no pet.). If, however, the client’s complaint 

is more appropriately classified as another claim, for example, fraud, DTPA, breach 

of fiduciary duty, or breach of contract, then the client can assert a claim other than 

negligence. Id. In particular, claims of breach of fiduciary duty against an attorney 

focus on whether the attorney obtained an improper benefit from representing the

client. Won Pak, 313 S.W.3d at 457. Merely characterizing conduct as a 

“misrepresentation” or “conflict of interest” does not necessarily transform what is 
8

really a professional negligence claim into a fraud or breach of fiduciary duty claim. 

Id.

When determining whether an allegation states a claim for negligence or some 

other cause of action, the court is not bound by the parties’ own characterization of 

the pleadings. Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto & Friend, 

LLP., 404 S.W.3d 75, 82 (Tex. App.—Houston [14th Dist.] 2013, no pet.). Whether 

certain allegations asserted against an attorney and labeled as breach of fiduciary 

duty or fraud are actually claims for professional negligence is a question of law to

be determined by the court. Murphy, 241 S.W.3d at 692.

On appeal, the Youngs contend that that they have asserted proper breach of 

fiduciary duty, fraud, and DTPA claims that are distinct from their negligence claim. 

They argue that while it is true that they originally only pleaded claims for 

negligence and breach of contract, Day’s production of the fraudulently generated 

fee contract and settlement memo “changed the ‘gist’ of the claims dramatically.” 

They argue that upon production of those documents that they never signed, “[t]hey 

amended their pleadings to include fraud, breach of fiduciary duty, and DTPA 

violations, all based on the fraudulent, and extremely negligent act of failing to 

convey a critical settlement offer to plaintiffs on the eve of trial.”
9

2. Breach of Fiduciary Duty 

In their summary judgment response, the Youngs alleged that Day breached 

his fiduciary duty “by promising to sue [CLRH] with no intention of doing so and 

refusing to settle the Clapsaddle suit . . . because Day wanted Di Ferrante paid” and 

the Youngs would not agree to pay Di Ferrante out of their settlement funds. They 

further stated that “when Day is deposed, [the Youngs] intend to attempt to 

determine i[f] Day obtained a benefit from Di Ferrante as Day violated 

attorney-client privilege to disclose confidential communications between [the 

Youngs] and Day and confidential settlement offers from [Clapsaddle’s attorney] to 

negotiate with Di Ferrante.” 

These allegations do not give rise to a separate breach of fiduciary duty claim. 

The Youngs’ mere assertion that they “intend to attempt to determine if Day obtained 

a benefit” does not raise a fact issue as to whether Day received an improper benefit, 

an element of the claim of breach of fiduciary duty. Id. at 693 (noting that claims of 

breach of fiduciary duty against attorney focus on whether attorney obtained 

improper benefit from representing the client and involve integrity and fidelity of

attorney); Beck, 284 S.W.3d at 429. Speculative and conclusory statements are 

insufficient to raise an issue to defeat summary judgment. See Brown v. Aztec Rig 

Equip., Inc., 921 S.W.2d 835, 846 (Tex. App.—Houston [14th Dist.] 1996, writ 

denied); Gibson v. Methodist, 822 S.W.2d 95, 100 (Tex. App.—Houston [1st Dist.] 
10

1991, writ denied). Absent an allegation that Day actually received an improper 

benefit, the Youngs’ assertions that Day promised to sue CLRH when he had no 

intention of doing so, refused to settle the Clapsaddle lawsuit, and disclosed 

confidential communications do not state a claim for breach of fiduciary duty. See 

Kemp v. Jensen, 329 S.W.3d 866, 872 (Tex. App.—Eastland 2010, pet. denied)

(concluding that, absent allegation that attorney had received improper benefit, 

plaintiffs’ contention that attorney had engaged in deceptive conduct by failing to 

disclose to plaintiffs that he had sued wrong entity stated claim for professional 

negligence rather than breach of fiduciary duty); West v. Hubble, No. 05–06–01683–

CV, 2008 WL 2941854, at *2 (Tex. App.—Dallas Aug. 1, 2008, pet. denied) (mem. 

op.) (claims that attorney agreed with opposing counsel to modify settlement 

agreement without client’s knowledge or consent after representation did not 

constitute breach of fiduciary duty but was legal malpractice claim); Judwin Props., 

Inc. v. Griggs & Harrison, 911 S.W.2d 498, 506 (Tex. App.—Houston [1st Dist.] 

1995, no writ) (finding no evidence to indicate unfairness or deception in attorneys’

use of confidential information to support claim for breach of fiduciary duty, but

instead found allegation of improper disclosure of confidential information was 

merely claim for legal malpractice).
11

3. Fraud

The Youngs rely on the same alleged misconduct discussed above as the basis 

for their fraud claim. In their summary judgment response, they argued that a

genuine issue of material fact existed as to whether Day promised to sue CLRH and 

either decided not to sue without informing the Youngs or never intended to bring 

suit. Allegations concerning an attorney’s delay or failure to handle a matter 

entrusted to the attorney give rise to a claim for professional negligence. See

Murphy, 241 S.W.3d at 698–99. Despite the Youngs’ claim of Day’s intentional 

misrepresentation, this is a claim for professional negligence. Samson v. Ghadially, 

No. 14-12-00522-CV, 2013 WL 4477863, at *4 (Tex. App.—Houston [14th Dist.] 

Aug. 20, 2013, no pet.) (mem. op.) (concluding plaintiff’s claims that attorney told 

him that he would prosecute medical malpractice claim, and later avoided contact 

with plaintiff, did not file lawsuit, and dismissed plaintiff as client shortly before 

expiration of limitations period stated claim for professional negligence); Meullion 

v. Gladden, No. 14–10–01143–CV, 2011 WL 5926676, at *4 (Tex. App.—Houston 

[14th Dist.] Nov. 29, 2011, no pet.) (mem. op.) (concluding client’s claims for fraud, 

breach of fiduciary duty, and breach of contract were claims for professional 

negligence where client alleged attorney drafted habeas petition that attorney “knew 

would fail”).
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4. DTPA

In their original brief, the Youngs argue that the trial court erred in granting 

summary judgment on their DTPA claim because Day did not seek dismissal of the 

DPTA claim in his summary judgment motion. In their reply brief, they contend 

that the allegations underlying their DTPA claim are not the same as those alleged 

in support of their other claims and, therefore, they have not fractured their DTPA 

claim.

After Day filed his summary judgment motion, the Youngs filed a

supplemental petition to include a DTPA claim. Day contends that although his 

summary judgment motion did not expressly address the Youngs’ DTPA claim 

because the Youngs had not made the claim before he filed his motion, the 

allegations underlying their DTPA claim are the same as those alleged in their other 

claims and are not distinct from their negligence claim. Thus, he argues, the 

anti-fracturing argument presented in his summary judgment motion was 

sufficiently broad to encompass the Youngs’ DTPA claim and therefore he was not 

required to amend the motion. We agree.

Generally, a party may not be granted summary judgment on a claim not 

addressed in a summary judgment proceeding. See Bauer-Pileco, Inc. v. Harris Cty. 

Appraisal Dist., 443 S.W.3d 304, 314 (Tex. App.—Houston [1st Dist.] 2014, pet. 

denied); Reule v. Colony Ins. Co., 407 S.W.3d 402, 414 n.15 (Tex. App.—Houston 
13

[14th Dist.] 2013, pet. denied). Nevertheless, summary judgment may be proper 

when the original motion is broad enough to encompass the newly asserted claims. 

Rotating Servs. Indus., Inc. v. Harris, 245 S.W.3d 476, 487 (Tex. App.—Houston 

[1st Dist.] 2007, pet. denied). 

In their supplemental petition, the Youngs alleged that Day engaged in 

unconscionable conduct in violation of DTPA section 17.50(a)(3) by (1) divulging 

to Di Ferrante confidential communications between the Youngs and Day and 

communications regarding settlement offers made to the Youngs and (2) failing to 

relay the $200,000 settlement offer to them. The Youngs alleged these same facts 

in support of their other claims.2 See West, 2008 WL 2941854, at *2; Judwin Props., 

Inc., 911 S.W.2d at 506. By establishing that the Youngs were not permitted to 

fracture their legal malpractice claim into a breach of fiduciary claim, Day’s motion 

was sufficiently broad to encompass the Youngs’ later-filed DTPA claim based on 

the same allegations. See Reule, 407 S.W.3d at 414 n.15; see also Nall v. Plunkett, 

404 S.W.3d 552, 555–56 (Tex. 2013) (holding traditional summary judgment 

challenge to duty element of social host liability claim broad enough to encompass 

duty element of negligent undertaking claim).

 

2

In their brief, the Youngs state that “[t]they amended their pleadings to include 

fraud, breach of fiduciary duty, and DTPA violations, all based on the fraudulent, 

and extremely negligent act of failing to convey a critical settlement offer to 

plaintiffs on the eve of trial.”
14

In summary, we conclude that the allegations upon which the Youngs rely to 

support their breach of fiduciary duty, fraud, and DTPA claims are nothing more 

than their claims for professional negligence under alternative labels. Accordingly, 

the trial court did not err in concluding that these claims constituted impermissible 

fracturing of the Youngs’ professional negligence claim.

3

5. Professional Negligence Claim 

The Youngs argue that the trial court erred by granting summary judgment on 

their professional negligence claim against Day. In support of their claim, they 

alleged that Day failed to file suit against CLRH before the statute of limitations 

expired. In the Clapsaddle lawsuit, they alleged that Day failed to call certain 

witnesses to testify at trial, designate his own expert medical witness, and convey 

the $200,000 settlement offer to them. We examine each of these grounds below.

a. Applicable Law 

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 

 

3 Because the Youngs present no argument as to why their claims for breach of 

contract and negligent misrepresentation are distinct from their professional 

negligence malpractice claim and therefore not subject to the anti-fracturing rule, 

they have not preserved this issue for our review. See Kris William, Inc. v. 

Tranquility Lakes Owners Ass’n, Inc., No. 01-13-00934-CV, 2015 WL 5770019, at 

*5 (Tex. App.—Houston [1st Dist.] Sept. 29, 2015, no pet.) (mem. op.) (concluding 

plaintiffs’ failure to challenge summary judgment grounds regarding claim required 

court to affirm summary judgment as to that claim).
15

proximately caused the plaintiff’s injuries, and (4) damages occurred.” Alexander 

v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004). Claims for legal 

malpractice are based in negligence and are governed by the two-year statute of 

limitations. TEX. CIV. PRAC. & REM. CODE ANN. § 16.003 (West 2014). A legal 

malpractice claim accrues when the client sustains a legal injury or when the client 

discovers or should have discovered through the exercise of reasonable care and 

diligence the facts establishing the elements of the claim. See Willis v. Maverick, 

760 S.W.2d 642, 646 (Tex. 1998); Nowak v. Pellis, 248 S.W.3d 736, 739 (Tex. 

App.—Houston [1st Dist.] 2007, no pet.).

b. Failure to Timely File Suit Against CLRH

In their amended petition, the Youngs alleged, in relevant part:

Approximately two months prior to September 28, 2009, Day on behalf 

of [Dwayne R. Day, P.C.], and Plaintiffs entered into an oral agreement 

for Defendants to sue CLRH for Plaintiffs.4 When Day had not filed 

suit and the statute of limitations was fast approaching, Doris called 

Day [approximately one day before the limitations deadline], who 

falsely claimed that he never told Plaintiffs that he would file suit on 

their behalf for CLRH. Day, believing that Plaintiffs might file a pro 

se petition suing CLRH, told Plaintiffs that they would have to send a 

75-day letter to extend the statute of limitations, which was due to 

expire on September 28, 2009. Day never told Plaintiffs what they 

needed to include in the letter or what they needed to do. Day[’]s false 

statements and delaying tactics caused Plaintiffs to miss the deadline to 

sue CLRH. 

 

4 The Youngs claimed that Donald suffered residual effects from the vehicular 

accident and was admitted a second time to CLRH on September 28, 2007, and that 

he suffered additional injuries while a patient at the hospital.
16

Based on these allegations, it is clear that the Youngs were aware that the 

limitations period on filing suit against CLRH was set to expire on September 28,

2009. The Youngs’ alleged injury therefore accrued on September 29, 2009, the day 

after limitations expired. Since the applicable statute of limitations is two years, the 

Youngs had to bring their legal malpractice claim against Day based on his failure 

to file suit against CLRH no later than September 29, 2011. However, the Youngs 

did not file suit against Day until October 8, 2014 (and did not request service of the 

suit on Day until February 16, 2015)—more than five years after their CLRH-related 

claim accrued. 

The discovery rule does not apply to the Youngs’ claim relating to Day’s 

failure to sue CLRH because the Youngs admitted in their petition that Doris was 

aware that Day denied having agreed to sue CLRH on the Youngs’ behalf, and that 

the deadline to file suit would expire on September 28, 2009. The Youngs’ 

professional negligence claim based on Day’s failure to sue CLRH is barred by 

limitations.

c. Failure to Designate Medical Expert and Call Certain Witnesses, 

Consideration of Youngs’ Creditors’ Judgments When Advising

About Settlement, and Disclosure of Confidential Information 

In support of their professional negligence claim in the Clapsaddle lawsuit, 

the Youngs also alleged that Day failed to designate an expert medical witness to 

testify at the trial of the Clapsaddle lawsuit about Donald’s injuries and past and 
17

future pain and suffering, instead opting to use the videotaped deposition testimony 

of Clapsaddle’s medical expert. They also complained that Megan Cools, the 

emergency medical technician who responded to the scene of the accident, was 

permitted to testify through her prior videotaped deposition rather than in person, 

and that Day never called as a witness the police officer who cited Clapsaddle as 

being at fault in the accident. They further alleged that Day improperly considered 

Di Ferrante’s judgments against the Youngs when advising them about settlement 

as well as improperly disclosed confidential settlement information and other 

attorney-client privileged information to Di Ferrante. 

A review of the record reveals that the Clapsaddle lawsuit was tried on 

September 7, 2010. The jury rendered its verdict on September 9, 2010, and the trial 

court entered a take-nothing judgment against the Youngs on February 1, 2011. The 

Fourteenth Court of Appeals affirmed the trial court’s judgment on June 14, 2012, 

and denied the Youngs’ motion for rehearing on August 22, 2012. No further appeal 

was sought. Based on these facts, the Youngs had to file suit on these claims arising 

out of the Clapsaddle lawsuit no later than August 22, 2014, or at the latest, by 

October 6, 2014, which was forty-five days after the Youngs’ motion for rehearing 
18

was denied.5 They did not file suit until October 8, 2014—more than two years after 

limitations for legal malpractice ran. 

Further, neither the discovery rule nor the Hughes6rule tolls the statute of 

limitations as to these claims. The Youngs alleged that in the course of Day’s 

representation of them in the Clapsaddle lawsuit, “they were frustrated with him 

about the fact that he would promise to do things he did not do,” including failing to 

designate an expert medical witness and call Cool or the responding officer as 

witnesses at trial, considering the Youngs’ judgment creditors when advising them 

about settlement, and disclosing confidential information to Di Ferrante. Because 

the Youngs knew of these alleged facts giving rise to their negligence claim during 

Day’s representation, the discovery rule does not apply. The Hughes rule tolls the 

statute of limitations of a legal malpractice claim “until all appeals on the underlying 

claim are exhausted or the litigation is otherwise finally concluded.” Apex Towing 

v. Tolin, 41 S.W.3d 118, 121 (Tex. 2001). Here, the Youngs’ appellate remedies 

were exhausted on August 22, 2012, or at the latest, on October 6, 2012. They did 

 

5 Under Rule of Appellate Procedure 53.7, a party must file a petition for review with 

the Texas Supreme Court within forty-five days after the date the court of appeals 

rendered judgment or the date of the court of appeals’ last ruling on all timely filed 

motion for rehearing or en banc reconsideration. See TEX. R. APP. P. 53.7.

6 Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991).
19

not file suit until October 8, 2014. Therefore, these claims arising against Day out 

of the Clapsaddle lawsuit are time barred.

d. Failure to Convey $200,000 Settlement Offer

In support of their professional negligence claim, the Youngs also alleged

After Defendants answered this suit, Plaintiffs’ attorney, Ronald M, 

Hall (“Hall”), received two Adobe Acrobat pdf files purporting to be a 

contract and refusal of settlement offer allegedly signed by Plaintiffs. 

Plaintiffs knew that they had never signed a contract with Day and they 

knew that Day had never told them that he had received a settlement 

offer of $200,000.

The Youngs each executed a sworn, notarized affidavit in which they averred, 

among other things, that they had not been told about the $200,000 settlement offer, 

that they had not signed the September 6, 2010 settlement memorandum reflecting 

their refusal to accept the offer and their desire to proceed to trial, and that they 

would have accepted the $200,000 offer. These affidavits were attached as exhibits 

to their summary judgment response.

The Youngs argue that the trial court erred in granting summary judgment 

because their affidavits were competent summary judgment evidence that raised a 

genuine issue of material fact as to whether Day breached his duty by failing to 

inform them of the settlement offer. They assert that because they were not aware 

of the settlement offer until Day produced the memorandum in April 2015, the 

discovery rule tolled their professional negligence action based on this claim.
20

The September 6, 2010 memorandum from Day to the Youngs states, in 

relevant part:

In light of the following factors, I, Dwayne R. Day, am 

recommending that the Young’s [sic] settle this matter and avoid going 

to trial on 9/7/2010 at 9am in Galveston County:

1. The defendant is offering to settle this matter for 

$200,000[.]

. . . . 

Therefore, I believe that the current offer on the table is a very good 

offer under the circumstances and I am recommending that the Young’s 

[sic] accept the offer in full and final settlement of this matter. 

However, if the Young’s [sic] choose to ignore my advice and “put this 

in the hands of the jury” I will honor their wishes and, to the best of my 

ability, try to obtain a favorable outcome for all.

Dwayne R. Day

_________________ 9/6/10

Receipt of this Memorandum is hereby acknowledged by: 

Donald L. Young Trial ________

_________________ Settle ________

Doris A. Young Trial ________

_________________ Settle ________

The document reflects that Donald and Doris signed the memorandum and initialed 

next to “Trial.” However, in their affidavits, the Youngs swear under oath “I was 

never told about the $200,000 offer from [Clapsaddle’s attorney] and I never signed 

any document on September 6, 2010 stating that I was refusing the offer. I would 

have accepted the $200,000 offer.”
21

Day contends that the Youngs’ affidavits do not preclude summary judgment 

because (1) the Youngs’ summary judgment response was deficient; (2) even 

assuming that a fact issue exists as to whether Day failed to inform the Youngs about 

the settlement offer, the Youngs failed to present expert testimony that the alleged 

failure breached the applicable standard of care; (3) a fact issue does not exist 

because a trial court does not have to consider summary judgment evidence that is 

unreasonable or incredible; and (4) the statements in the Youngs’ affidavits do not 

raise a fact issue.

With regard to the argument that the Youngs’ summary judgment response 

was deficient, Day asserts that other than incorporating the affidavits into their 

response, they neither cited to nor explained the applicability of the affidavits. In 

their summary judgment response, the Youngs stated that after Day filed his answer, 

they received a pdf file of the September 6, 2010 memorandum purporting to be their 

refusal of the $200,000 settlement offer. They further stated that Day had never told 

them that he had received a settlement offer of $200,000. They argued that “[t]here 

is a genuine issue of material fact as to whether Donald and Doris knew about the 

$200,000 settlement offer which they have denied and which they deny signing the 

refusal of the settlement on September 6, 2015 [sic].” The Youngs’ summary 

judgment response to which their affidavits were attached was not deficient in this 

regard.
22

With regard to his second argument, Day contends that even assuming a fact 

issue exists as to whether he failed to inform the Youngs about the settlement offer, 

the Youngs failed to present expert testimony that a failure to convey the offer 

breached the applicable standard of care. He argues that he knew that the Youngs

wanted to have any settlement structured so that they could unethically and illegally 

avoid their creditors. He asserts that he knew that the Youngs would not approve 

any settlement that paid Di Ferrante for his judgments because they believed that his 

judgments against them were invalid. Day argues that because of these allegedly 

unethical and illegal motives on the part of the Youngs, he did not have an automatic 

duty to inform them of the settlement offer. Day argues that the Youngs were 

required to present expert testimony that Day had such a duty under the 

circumstances and breached that duty.

A summary judgment movant has the burden to show that no genuine issues 

of material fact exist and that it is entitled to judgment as a matter of law. TEX. R.

CIV. P. 166a(c); Mann Frankfort Stein & Lipp Advisors, Inc., 289 S.W.3d at 848. A 

defendant moving for traditional summary judgment must either (1) disprove at least 

one element of the plaintiff’s cause of action or (2) plead and conclusively establish 

each essential element of an affirmative defense to rebut the plaintiff’s cause. See 

Sci. Spectrum, 941 S.W.2d at 911. As the movant, Day bore the burden to disprove 

that he owed a duty to the Youngs to convey the settlement offer to him or that he 
23

breached that duty. Day did not bring forward expert testimony to explain why he 

had no duty to inform the Youngs of the settlement offer based on their alleged 

unethical and illegal motives. Therefore, the Youngs were not required to bring forth 

expert testimony themselves. Zenith Star Ins. Co. v. Wilkerson, 150 S.W.3d 525, 

530–31 (Tex. App.—Austin 2004, no pet.) (“Once the defendant in a legal 

malpractice suit has submitted expert testimony on the standard of care, the plaintiff 

is then required to controvert the expert testimony with other expert testimony.”) 

(citing Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991)); Hall v. Rutherford, 911 

S.W.2d 422, 424 (Tex. App.—San Antonio 1995, writ denied) (noting that once 

expert opinion established that defendant attorney’s acts conformed to standard of 

care, plaintiff must offer expert testimony to contradict defendant’s expert 

testimony).7

 

7

In a post-submission letter, Day asserts that the recent decision by the Texas 

Supreme Court in Rogers v. Zanetti is analogous to the present case. See __ S.W.3d 

__, 2017 WL 1553154 (Tex. Apr. 28, 2017). In that case, Rogers sued his former 

attorneys and their law firm for legal malpractice arising out of a failed investment 

by Rogers in a home healthcare company. See id. at *1. Rogers alleged that the 

defendant attorneys were negligent because, among other things, they failed to 

communicate a settlement offer to settle the case and transfer full ownership of the 

business to Rogers for $450,000. See id. at *12. The Supreme Court concluded that 

Rogers’s testimony “that he would have tried to settle the case had he known about 

the offer” was no evidence that Rogers would have settled the underlying suit for 

$450,000. Id. The Rogers decision is distinguishable from the case before us. 

There, the Court rejected Rogers’s argument that “evidence of the offer’s existence 

and his willingness to explore settlement was sufficient to raise a fact issue” on 

causation and defeat summary judgment. Id. Here, in contrast, the Youngs averred 

in their affidavits, “I would have accepted the $200,000 offer.”
24

Day also argues that no fact issue exists because a trial court does not have to 

consider summary judgment evidence that is unreasonable or incredible. Day argues 

that the Youngs’ claim that Day failed to inform them about the $200,000 settlement 

offer is nonsensical given their allegation that Day “just wanted them to settle for 

any amount,” and the fact that the offer would have provided Day a contingency fee 

instead of having to try their problematic personal injury claim. Day further argues 

that this theory is even more absurd in light of Day’s handwriting expert’s opinion 

that the signatures on the September 6, 2010 memorandum belonged to the Youngs. 

Thus, he argues, because no reasonable juror could believe the evidence that Day 

withheld the settlement from the Youngs, no fact issue exists and Day conclusively 

disproved the Youngs’ claim. 

A matter is conclusively established if reasonable people could not differ as 

to the conclusion to be drawn from the evidence. See City of Keller, 168 S.W.3d at 

816. We are required by the law to take the non-movant’s competent evidence as 

true, indulge every reasonable inference in favor of the non-movant, and resolve all 

doubts in favor of the non-movant. Diversicare, 185 S.W.3d at 846. An appellate 

court is not allowed to weigh the credibility of witnesses and we cannot, on our own, 

conclude that no reasonable juror could believe the Youngs’ sworn denial of their 

signatures on the relevant documents. See City of Keller, 168 S.W.3d at 819 (noting 

it is province of jury to resolve conflicts in evidence). Day has not conclusively 
25

disproved their claim of non-signature which is inherently within the province of the 

trier of fact.

Finally, Day argues that the Youngs’ actual statements in their affidavits do 

not raise a fact issue. Day contends that “[t]the Youngs, aware of the ramifications 

of perjury, meticulously worded their affidavits so as to try and raise a fact issue 

without denying that they received and signed the memorandum.” In support of this 

argument, Day points to the fact that the Youngs’ assertions in their affidavits that 

“I was never told about the $200,000 offer from Mr. Fanaff and I never signed any 

documents on September 6, 2010 stating that I was refusing the offer,” are true 

because the memorandum states that Clapsaddle (not Fanaff) made the settlement 

offer, and there is no express language in the memorandum whereby the Youngs 

stated that they were refusing the offer (instead, they signed and initialed on the line 

indicating that they wanted to proceed to trial). Thus, Day claims, the Youngs’ 

affidavits do not actually contradict their having signed the memorandum and do not 

create any fact issues. We cannot adopt such a strained reading of the Youngs’ 

affidavits. See Diversicare, 185 S.W.3d at 846. 

In summary, after applying the rule against fracturing, we conclude that the 

Youngs’ only claim was for professional negligence, and that this claim was based 

on the allegations that Day failed to (1) file suit against CLRH before the statute of 

limitations expired; (2) call certain witnesses to testify at trial or designate his own 
26

expert medical witness; and (3) convey the $200,000 settlement offer to them. We 

conclude that the trial court properly granted summary judgment on the Youngs’ 

professional negligence action based on the first two allegations because these 

claims are barred by the statute of limitations. As for the remaining allegation that 

Day failed to convey the $200,000 settlement offer to the Youngs, we conclude that 

the trial court erred in granting summary judgment because Day has not established

as a matter of law that he was entitled to summary judgment. Accordingly, we 

sustain the Youngs’ first issue in part and overrule it in part.8

Discovery Motions

In their second issue, the Youngs argue that the trial court abused its discretion 

in failing to rule on certain of their discovery motions prior to granting summary 

judgment on their claims. Having concluded that Day was not entitled to summary 

judgment on a portion of the Youngs’ professional negligence claim, the case must 

be remanded to the trial court for further proceedings. Thus, we do not reach the 

issue of whether the trial court abused its discretion in failing to rule on the Youngs’ 

discovery motions prior to granting summary judgment.

 

8 Because the Youngs have not challenged the summary judgment granted as to their 

claim for declaratory relief, they have waived this issue for appellate review. See 

Kris William, Inc., 2015 WL 5770019, at *5.
27

Conclusion

We affirm the trial court’s judgment in part, reverse in part, and remand for 

additional proceedings consistent with this opinion.

 

Russell Lloyd

Justice 

Panel consists of Chief Justice Radack and Justices Brown and Lloyd.