Goffney v Rabson

• Decision Date: 12 July 2001
• Citation: 56 S.W.3d 186
• Parties: <!--56 S.W.3d 186 (Tex.App.-Houston 2001) GLADYS R. GOFFNEY, Appellant v. SYLVIA RABSON, Appellee NO. 14-99-00327-CV Court of Appeals of Texas, Houston (14th Dist.)
• Court: Texas Court of Appeals

Page 186

56 S.W.3d 186 (Tex.App.-Houston [14th Dist.] 2001)

GLADYS R. GOFFNEY, Appellant v SYLVIA RABSON, Appellee

NO. 14-99-00327-CV

Court of Appeals of Texas, Houston (14th Dist.).

July 12, 2001.

Rehearing Overruled Oct. 25, 2001

On Appeal from the 55th District Court Harris County, Texas Trial Court Cause No. 95-40177

[Copyrighted Material Omitted] Panel consists of Justices Yates, Wittig,^* and Frost.

OPINION

Yates, Justice

Appellant, Gladys R. Goffney, appeals the trial court's judgment entered in favor of appellee, Sylvia Rabson. Rabson initially sued Goffney for legal malpractice, breach of contract, Deceptive Trade Practices Act-Consumer Protection Act ("DTPA") violations, and breach of fiduciary duty in connection with Goffney's representation of her in an underlying lawsuit involving a will contest. Prior to trial, Rabson dropped her legal malpractice claim against Goffney and proceeded to trial on her remaining claims. The jury found in favor of Rabson on her breach of contract, DTPA, and breach of fiduciary duty claims. Because we find Rabson's breach of contract, DTPA, and breach of fiduciary duty claims are in the nature of a tort action for legal malpractice, which was abandoned prior to trial, we reverse the judgment of the trial court and render judgment that Rabson take nothing on her claims against Goffney.

I. Background

Between 1980 and 1991, Rabson and her sons, William Rabson and Robert Rabson, had been engaged in a dispute over the estate of Rabson's mother, Heidi Jenny. In 1991, Rabson filed suit to probate a 1985 will executed by Jenny and to set aside a 1990 will executed by Jenny in favor of William and Robert on the basis of undue influence (the "estate lawsuit"). Rabson originally hired Doug Clarke of Andrews & Kurth to represent her in the estate lawsuit. Clarke's fees became too expensive for Rabson, and in April 1992, Rabson hired John Schnellbacher, on a contingency fee basis, to replace Clarke. Schnellbacher brought Goffney in to work on the estate lawsuit. On May 15, 1992, Schnellbacher and Rabson signed a contingency fee agreement. Goffney did not sign the agreement, but her name was interlineated in the agreement. At trial, it was disputed whether Goffney was present at the May 15, 1992 meeting when Schnellbacher and Rabson signed the agreement.

The estate lawsuit had a July 26, 1993 trial setting. On the previous Friday, July 23, 1993, Schnellbacher told Rabson he would not be able to appear at trial because of a heart condition. Goffney claims Rabson agreed with her that she could not proceed alone as trial counsel. Goffney testified that she was not familiar with all the documents produced in the estate lawsuit, but, instead, Schnellbacher was responsible for preparing and organizing the trial exhibits and for assisting her with the exhibits at trial. Efforts were begun to contact an attorney who could appear in court on the following Monday and assist Goffney in obtaining a continuance. Goffney contacted another attorney, Aston Rice, who agreed to appear in court with Goffney to argue for a continuance. Rice agreed to take over as lead counsel only if the trial court granted a continuance. On Monday, July 26, 1993, Goffney announced not ready when the case was called to trial and sought a continuance. Goffney told the trial court she did not have a contract with Rabson. The trial court refused to grant a continuance and informed the parties that jury selection would commence that afternoon. The trial court told Rabson if she wanted another attorney, to produce one and a one-week continuance would be granted.

Rabson claims that when the court recessed for lunch and Goffney started to leave the courtroom, she pleaded with Goffney to stay and help her, but Goffney, instead, told Rabson that she did not know what she was going to do and left the courtroom. Rabson asserts that she did not know where Goffney was going, or if Goffney was going to return at all. Rabson remained at the courthouse and contacted other attorneys to represent her. Goffney testified that she returned to her office to prepare to re-urge the request for a continuance. Goffney also maintains that Rabson was not "alone," but, rather, Rabson telephoned Goffney at her office to tell Goffney that she had contacted Doug Clarke, who agreed to appear in court and argue for a continuance.

The trial court offered Clarke a one-week continuance, which Clarke refused. After another recess, Wayne Harpold of Looper, Reed, Mark & McGraw appeared on behalf of Rabson and requested a continuance, but the trial court informed Harpold that the trial would commence in one week. Goffney arrived with a motion to withdraw as counsel, believing it would help another attorney in obtaining a continuance. The trial court, however, refused to allow Goffney to withdraw from the case. Rabson hired Harpold and his firm on an hourly rate basis. Goffney assisted Harpold at trial.

On August 18, 1993, the jury awarded Rabson's sons and Jenny's estate $750,000 on their claims against Rabson for interference with the right of inheritance, intentional infliction of emotional distress, and attorney's fees.¹ On August 30, 1993, Rabson filed for bankruptcy. On November 18, 1993, the trial court entered a final judgment, from which Rabson appealed. On August 10, 1995, determining that the trial court had erred in refusing to grant Rabson's request for a jury of twelve, this court reversed and remanded the case for a new trial. See Rabson v. Rabson, 906 S.W.2d 561, 563 (Tex. App. Houston [14th Dist.] 1995, writ denied).

On August 18, 1995, Rabson filed the current lawsuit against Goffney, alleging legal malpractice in the handling of the underlying estate lawsuit.² Rabson also raised claims for breach of contract and DTPA violations. Rabson and her sons entered into a settlement agreement of the underlying estate lawsuit, and on November 9, 1997, a final judgment was entered in that case. Rabson subsequently abandoned her legal malpractice claim in her Fifth Amended Original Petition, and added a claim for breach of fiduciary duty. The parties proceeded to trial on Rabson's breach of contract, DTPA, and breach of fiduciary duty claims.

The jury found in favor of Rabson on her: (1) breach of contract claim and awarded her $125,000 in damages for attorney's fees incurred in the underlying estate lawsuit, (2) DTPA claim and awarded her $100,000 in mental anguish damages and $10,000 in damages on the jury's finding that Goffney's conduct was committed "knowingly," and (3) breach of fiduciary duty claim and awarded her $60,000 in damages for mental anguish and attorney's fees incurred in the underlying estate lawsuit. The jury also award Rabson $65,000 in attorney's fees. The trial court's judgment awarded Rabson $225,000 in actual damages, $10,000 in additional damages under the DTPA, $71,082.24 in prejudgment interest, and $65,000 in attorney's fees.³

On appeal, Goffney contends: (1) Rabson lacked standing to bring this lawsuit, (2) the trial court lacked subject matter jurisdiction, (3) Rabson was judically estopped from asserting any claims against her, (4) Rabson's breach of contract, DTPA, and breach of fiduciary duty claims are in the nature of a claim for legal malpractice, which was abandoned prior to trial, (5) Rabson's claims were barred by the statute of limitations, and (6) the evidence is legally and factually insufficient to support the jury's findings and awards on Rabson's breach of contract, DTPA, and breach of fiduciary duty claims. Because we find that Goffney's contention that Rabson's breach of contract, DTPA, and breach of fiduciary duty claims are merely a restated legal malpractice claim is dispositive of this appeal, we shall address it first.

II. Dividing Legal Malpractice Claim

Goffney contends Rabson's breach of contract, breach of fiduciary duty, and DTPA claims are essentially legal malpractice claims. Therefore, according to Goffney, because Rabson abandoned her legal malpractice claim prior to trial, Rabson no longer had a viable cause of action upon which to recover. We agree.

Legal malpractice is not the only cause of action under which a client can recover from her attorney. Kahlig v. Boyd, 980 S.W.2d 685, 688 (Tex. App. San Antonio 1998, pet. denied). Texas law, however, does not permit a plaintiff to divide or fracture her legal malpractice claims into additional causes of action. See, e.g., Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App. Houston [1st Dist.] 1998, pet. denied); Kahlig, 980 S.W.2d at 688-91; Smith v. Heard, 980 S.W.2d 693, 697 (Tex. App. San Antonio 1998, pet. denied); Rodriguez v. Klein, 960 S.W.2d 179, 184 (Tex. App. Corpus Christi 1997, no pet.); American Med. Elecs., Inc. v. Korn, 819 S.W.2d 573, 576 (Tex. App. Dallas 1991, writ denied); Judwin Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498, 506 (Tex. App. Houston [1st Dist.] 1995, no writ); Bray v. Jordan, 796 S.W.2d 296, 298 (Tex. App. El Paso 1990, no writ). The issue in a legal malpractice action is whether the attorney exercised that degree of care, skill, and diligence as lawyers of ordinary skill and knowledge commonly possess and exercise. Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 481 (Tex. App. Dallas 1995, writ denied).

In her Eighth Amended Original Petition, Rabson generally alleges the following conduct by Goffney: (1) Goffney did not properly prepare the estate lawsuit for trial; (2) Goffney failed to respond to special exceptions, which pointed out defects in Rabson's pleadings; and (3) Goffney failed to provide timely supplemental answers to interrogatories, thereby precluding Rabson from calling crucial witnesses. Because Rabson abandoned her legal malpractice claim prior to trial, she may not recover on other causes of actions which amount to no more than restated claims for legal malpractice. See Kahlig 980 S.W.2d at 689 (finding judgment notwithstanding the verdict was proper on claim...