221 F.3d 701 (5th Cir. 2000), 99-50054, Streber v Hunter

Docket Nº:99-50054
Citation:221 F.3d 701
Party Name:TRACY PARKER STREBER; ET AL, Plaintiffs, TERRY PARKER DAVIS DELONY, Plaintiff-Appellee-Cross-Appellant, v. EDWIN K. HUNTER; ET AL, Defendants, Page 702 EDWIN K. HUNTER; EDWIN K. HUNTER, A PROFESSIONAL LAW CORPORATION; T. GLYNN BLAZIER; TIMOTHY O'DOWD, Defendants-Appellants-Cross-Appellees.
Case Date:August 04, 2000
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 701

221 F.3d 701 (5th Cir. 2000)


TERRY PARKER DAVIS DELONY, Plaintiff-Appellee-Cross-Appellant,


EDWIN K. HUNTER; ET AL, Defendants,

Page 702


No. 99-50054

United States Court of Appeals, Fifth Circuit

August 4, 2000

Page 703

[Copyrighted Material Omitted]

Page 704

[Copyrighted Material Omitted]

Page 705

[Copyrighted Material Omitted]

Page 706

[Copyrighted Material Omitted]

Page 707

[Copyrighted Material Omitted]

Page 708

[Copyrighted Material Omitted]

Page 709

[Copyrighted Material Omitted]

Page 710

[Copyrighted Material Omitted]

Page 711

[Copyrighted Material Omitted]

Page 712

Appeals from the United States District Court for the Western District of Texas

Before REYNALDO G. GARZA, JONES, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Edwin K. Hunter, T. Glynn Blazier, Timothy O'Dowd, and Edwin K. Hunter, P.C. ("the firm") (collectively "the attorneys"), appeal from a jury verdict holding them liable for legal malpractice, breach of fiduciary duties, and violations of the Deceptive Trade Practices Act ("DTPA"), Tex. Bus. & Com. Code Ann. § 17.41 et seq. We affirm in part and reverse in part.


In1979, Larry Parker ("Parker"), a self-made entrepreneur, businessman, and land developer, discovered over four hundred acres of undeveloped land in a potentially lucrative residential area outside of Houston.1 Parker, however, lacked the funds to purchase the land, so he recruited a friend, California attorney Robert Bradish. Bradish came to Texas and took title to the land for himself, forming a joint venture with Jack Thoner. Parker never owned any of the land, or any of the equity interest in the joint venture. As part of the joint venture agreement, for Parker's substantial work bringing the deal together: (1) he would receive $2.5 million from the venture's initial profits, and (2) a large portion of the equity interest in the venture was placed in trust for Parker's daughters, Terry and Tracy (collectively "the sisters"),2 with Bradish as the trustee. Parker envisioned the gift as an early inheritance of sorts, a "nest egg" for Terry and Tracy.3

In 1981, Bradish sold the property, and Terry and Tracy each received a promissory note, payable in 1985 in the amount of $2 million. Bradish endorsed the notes to Terry and delivered them to her sometime in 1982, when Terry was nineteen years old and Tracy fourteen. Contemporaneously, Terry signed a "management agreement" which purported to place control over the money in Parker's hands until each of the girls reached the age of twenty-five. Tracy then placed the notes and the "management agreement" in her safety deposit box. After the notes became due in 1985, the sisters each received $1.7 million and a lot in the Northgate Forest subdivision.4 At the time they received these large sums of money, Tracy was approximately twenty years old, and Terry was six months short of her twenty-fifth birthday.

When Terry and Tracy received the money from the promissory notes, they

Page 713

promptly deposited it in their own checking accounts and contemplated how to safely invest their "nest egg." The next day, however, Parker approached them and asked them to invest the money in one of his companies, Bowman Development D/B/A Sovereign Energy ("Sovereign Energy"), in which they were minority stockholders. Terry and Tracy both refused, telling their father that they wanted to invest the money in certificates of deposit and other safe investments. Parker became infuriated, fired Terry (who, at the time, was working for him), and ceased communication with his daughters. The record reflects that the family rift was never mended.5

After Terry and Tracy each received their $1.7 million, but before the family squabble, Parker had told Terry to make sure she paid the capital gains taxes on the income. Since Parker had cut off communication with Terry and Tracy, and neither had ever filed a tax return before, they asked their stepfather, Lee Berwick,6 if he knew of someone who could help them with their taxes. Berwick directed them to Edwin Hunter, a Lake Charles, Louisiana tax specialist who had done work for Berwick in the past.

With Berwick's recommendation, Terry and Tracy drove to Lake Charles and met with Hunter.7 After briefly examining a few documents which Tracy and Terry gave him, but before doing any legal research,8 Hunter presented the sisters with three options: (1) pay no taxes and hope the IRS did not find out about the transaction within the ten year statute of limitations, (2) treat the transaction as a 1981 gift and pay capital gains taxes on the income received in 1985, or (3) treat the transaction as a 1985 gift, in which case Parker would be liable for gift tax and they would be liable for nothing. Despite scoffing at the "management agreement" as unenforceable and calling it "not a legal document,"9 Hunter told Terry and Tracy that Parker had not given up control over the money until 1985, and that, accordingly, the gift did not occur until then.

While the sisters were somewhat wary of paying nothing to the IRS after receiving $1.7 million, Hunter told them that if they paid capital gains taxes on the money, the IRS might suspect they were "in cahoots" with their father to pay the lower capital gains tax as opposed to the higher gift tax. Hunter expressed to the sisters

Page 714

both his fervent belief that Parker owed the gift tax and the threat that paying capital gains taxes could place them at risk of IRS prosecution.10 When the sisters finally agreed to treat the transaction as a 1985 gift on which Parker owed gift tax, Hunter "affirmatively advise[d] and vigorously assist[ed] [in their] chosen course of action." Streber v. Commissioner, 138 F.3d 216, 221 (5th Cir. 1998).

Hunter and his firm subsequently became involved in several other lawsuits revolving around this less-than-amicable family. Specifically, Parker, described as a "highly litigious individual," filed several lawsuits against the sisters and the Berwicks. After Terry and Tracy refused to invest their money in Sovereign Energy, Parker sued them to recover the stock interest that he had given to them. Terry and Tracy were content to give the Sovereign Energy stock back to their father, but Hunter, who represented the sisters in the lawsuit, told them not to do so. Instead, Hunter recommended that they hold the stock as leverage against Parker to persuade him to pay the gift tax. Terry and Tracy, relying on Hunter's advice, agreed. Parker also threatened to file suit to enforce the "management agreement," and if he filed such a suit (the record conflicts on whether such the suit was filed), Hunter would have represented Terry and Tracy.

Hunter was also advising Betty Berwick in connection with an "alienation of affections" suit that Parker brought against her and her husband. After investigating Parker's assets, Hunter told Betty that Parker had hid substantial assets from her during their divorce and encouraged Betty to file suit against Parker for hiding those assets. The documents and testimony at trial shows that Hunter's planned lawsuit against Parker could have potentially brought a recovery for Betty of $17 million, and, under their contingent fee agreement, if Betty won the lawsuit, Hunter could have received approximately $3 million.11 Hunter believed Betty's lawsuit against Parker to be very important for his firm.12

In 1986, Parker's attorney, David Gamble, wrote a letter to Hunter expressing his belief that the sisters' positionthat Parker had made a gift to Terry and Tracy in 1985was belied by the documents surrounding the land deal. Gamble claimed that the documents were exceptionally clear that, by the terms of the 1980 land deal, Terry and Tracy became owners of a joint venture interest immediately, not subject to Parker's control at all. Gamble specifically offered to send Hunter the documents underlying the land deal, some of which Hunter had never before read, in an effort to prove his point.13 Hunter, however, refused to follow up on Gamble's

Page 715

offer, instead relying on his original advice; as he testified at trial, he "understood the land deal" and did not need to investigate further. Gamble also proposed so-called "global peace talks" to resolve all the conflicts between Parker and his daughters, which Hunter refused without first consulting with Terry and Tracy.

In October 1991, the IRS issued notices of deficiency against both the sisters and Parker "in order to avoid a 'whipsaw' situation," Streber, 138 F.3d at 218, and the cases were consolidated for trial in the Tax Court. Hunter, Blazier, and O'Dowd represented the sisters in discovery and at the tax trial. In 1992, Hunter put O'Dowd on the case, and he began (for the first time) to do legal research into what constituted a "gift" under Texas law14 and factual research into the particulars of the land deal.15 O'Dowd (1) sent out an memorandum to a colleague, Mitch Vervoort, asking for help with the legal research,16 (2) requested more documentation of the land deal, (3) called and later deposed Bradish (who had never been contacted by any lawyer on the sisters' case before), and (4) kept in contact with Parker's attorneys.

In 1993, there was a mediation between the sisters, Parker, and the IRS. Representing Terry and Tracy at the mediation were O'Dowd, Blazier, and Houston attorney Diana Marshall. As the district court found, "[t]here was credible evidence at trial that the IRS would have settled [during the mediation] for between [$1 and $1.2 million]."17 The mediator, a former judge, and Parker's...

To continue reading