Franks v. Roades, 13-08-00439-CV.
| Decision Date | 15 April 2010 |
| Docket Number | No. 13-08-00439-CV.,13-08-00439-CV. |
| Citation | 310 SW 3d 615 |
| Parties | Christine FRANKS, Appellant, v. John Leslie ROADES, Appellee. |
| Court | Texas Court of Appeals |
Jason Brower, Don D. Ford, III, Ford & Mathiason, Houston, for Appellant.
Billy Shepherd, Allison Stanish Miller, Cruse, Scott, Henderson & Allen, Houston, for Appellee.
Walter James Kronzer III, Houston, for Real Party in Interest, Carol Thompson.
Before Justices YA—EZ, RODRIGUEZ, and BENAVIDES.
Christine Franks, appellant, appeals from a summary judgment granted in favor of John Leslie Roades, appellee. Franks asserts that fact issues exist regarding whether Roades breached his fiduciary duty to her and whether Roades acted negligently. We affirm.
Roades, an attorney in Wharton, Texas, began representing Franks in 1999 when he prepared a durable power of attorney, appointing Michael Franks ("Michael"), her son, as her attorney-in-fact. In July 2001, Franks changed the power of attorney to appoint Carol Thompson ("Thompson"), her daughter, as her attorney-in-fact. Franks also granted Thompson signing authority on her checking account.
Franks's mental condition deteriorated over time to the point where she was unable to handle her affairs, and Thompson would help her with various activities, including writing checks to pay bills, dressing, going grocery shopping and to doctors' appointments, and taking her medication. In January 2003, Franks was diagnosed as having "severe and global cognitive dysfunction" and was informed that she should have "complete supervision in tasks that require memory such as medication management and meal management." Franks also had a history of "mini strokes" and nighttime hallucinations, and it was recommended that she have 24-hour care. Thompson hired "sitters" for Franks to help with meal preparation and other household duties, along with taking her shopping. Thompson paid the sitters out of Franks's funds.
Throughout this time, Michael continually disagreed with the diagnoses, encouraged Franks to not take her medication, and even threatened Thompson and her family. Because of the difficulties with Michael and Franks's deteriorating condition, Thompson visited Roades on multiple occasions, seeking his help in discerning the best ways to resolve the family disputes regarding Franks's care and the management of Franks's funds. Roades discussed various options with Thompson, including guardianships and estate plans, and referred Thompson to an estate planning and elder law attorney in Austin who he hoped could devise an estate plan that would placate Michael. Roades continually encouraged Thompson to try to work things out with Michael.
After being unable to reach an agreement with Michael and due to Franks's continual decline, acting within her powers under the durable power of attorney as Franks's attorney-in-fact, Thompson decided to file an application for guardianship of Franks. To do so, Thompson retained Roades to file the application and paid Roades $5,000 from Franks's funds.
On June 24, 2003, Roades filed the application for guardianship. Roades believed that the guardianship was necessary to protect Franks and considered himself obligated under rule 1.02(g) of the disciplinary rules of professional conduct to file the application. See TEX. DISCIPLINARY R. PROF'L CONDUCT 1.02(g), reprinted in TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 2005) ("A lawyer shall take reasonable action to secure the appointment of a guardian ... for ... a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client.").
That same day, Franks and Michael appeared in Roades's office because Michael wanted Roades to change Franks's power of attorney and appoint him her attorney-in-fact. Roades informed Michael that he could not represent Michael and that Michael should seek another attorney. Pursuant to a prior instruction from Franks, Roades was not to discuss any of her legal matters with Michael or in Michael's presence; therefore, Roades did not mention the filing of the guardianship application with either Franks or Michael at that meeting. Roades also believed that Franks was not competent to change her power of attorney at that time. Roades knew of Michael's previous threats against Thompson and believed him to have a "volatile nature," so he said as little as possible during the meeting in order to hasten Michael's departure.
Michael contested the guardianship. Upon Michael's application, a statutory probate judge was appointed. Pursuant to the probate code, the probate judge appointed an attorney ad litem to represent Franks and appointed a temporary guardian of Franks's person. See TEX. PROB. CODE ANN. ß 646(a) (Vernon Supp.2009) ("In a proceeding under this chapter for the appointment of a guardian, the court shall appoint an attorney ad litem to represent the interests of the proposed ward."). Franks also had a privately-retained attorney to represent her during the guardianship proceedings. The trial court ordered an independent medical and psychological evaluation of Franks, and the court-appointed physician concluded that Franks was incapacitated and recommended the appointment of a guardian of Franks's person and estate. Franks's attorney ad litem moved to disqualify Roades from representing Thompson, asserting that Roades had a conflict of interest due to his prior legal work for Franks. The attorney ad litem alleged that, even though Thompson used Franks's power of attorney to retain Roades to file the guardianship, in fact, Roades was representing Thompson in the guardianship proceedings. On September 29, 2003, the trial court denied the motion.
On December 30, 2003, the parties filed a binding mediated settlement agreement wherein the parties agreed to: (1) dismiss the guardianship application; (2) "pursue the viability" of creating a trust to manage Franks's estate; (3) grant the temporary guardian the power to manage Franks's home assistant from January 2004 to June 2004; (4) have the home assistant work specified hours in Franks's home; (5) alternate visitation with Franks between Michael and Thompson; (6) make certain repairs to Franks's home; (7) make no expenditures from Franks's funds except those "regular and ordinary expenditures as agreed upon by Christine Franks"; (8) prohibit Michael from moving into Franks's home or relocating Franks from January 2004 to June 2004; and (9) pay out of Franks's estate the professional fees for the attorney ad litem, the temporary guardian, Thompson's attorney's fees, Franks's attorney's fees, and the mediator's fees. The fees amounted to more than $120,000, including $38,000 in attorney's fees for Roades. Franks, Michael, Thompson, their attorneys, and Roades all signed the agreement. Franks, Michael, and Thompson signed agreeing as to substance; and the attorneys, including Roades, signed agreeing as to form only. Roades then non-suited the guardianship proceeding.
On June 22, 2005, asserting negligence, breach of fiduciary duty, gross negligence, conversion, fraud, and deceptive trade practices, Franks sued Roades and Thompson.1 On February 15, 2008, Roades filed both a traditional and no-evidence motion for summary judgment. See TEX.R. CIV. P. 166a. On April 4, 2008, Franks responded to Roades's motion for summary judgment. On April 11, 2008, without stating the grounds, the trial court entered summary judgment on Roades's motion. This appeal ensued.
Whether the motion for summary judgment was brought on no-evidence or traditional grounds determines our standard of review. See TEX.R. CIV. P. 166a(c), (i); see also Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex.App.-Corpus Christi 2003, no pet.). A no-evidence summary judgment equates to a pre-trial directed verdict, so we apply the same legal sufficiency standard of review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006); Ortega, 97 S.W.3d at 772.
We review de novo the trial court's granting of a traditional motion for summary judgment. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003); Branton v. Wood, 100 S.W.3d 645, 646 (Tex.App.-Corpus Christi 2003, no pet.). We must determine whether the movant met its burden to establish 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); see Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). In a traditional summary judgment, the movant bears the burden of proof, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. See Sw. Elec. Power Co., 73 S.W.3d at 215. We take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).
We affirm a traditional summary judgment only if the record establishes that the movant has negated at least one essential element of the plaintiff's causes of action or has conclusively proved its defense as a matter of law. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004); see Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Clear Creek Basin Auth., 589 S.W.2d at 678. When reasonable people could not differ as to the conclusion to be drawn from the evidence, the matter is conclusively established. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005). Once the movant has produced sufficient evidence to establish its right to summary judgment, the burden to produce competent controverting evidence raising a fact issue with regard to the challenged element shifts to the non-movant. Rhone-Poulenc,...
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