Jampole v. Matthews
| Decision Date | 04 March 1993 |
| Docket Number | No. 01-91-00312-CV,01-91-00312-CV |
| Citation | 857 S.W.2d 57 |
| Parties | Stanley JAMPOLE, William Jampole, Daniel Joseph Jampole, Debra E. Bodell, and Laura Sue Vinogradov, Appellants, v. W. Douglas MATTHEWS and Schmidt, Matthews & Brannon, P.C., n/k/a Schmidt & Matthews, Appellees. (1st Dist.) |
| Court | Texas Court of Appeals |
Jimmy G. Williamson, Larry J. Doherty, Houston, for appellants.
Linda Burkett, Timothy F. Lee, Douglas Matthews, Houston, for appellees.
Before MIRABAL, SAM BASS and O'CONNOR, JJ.
This is an appeal from a take-nothing summary judgment denying recovery to clients who asserted their attorney's fee was excessive. We reverse and remand.
In 1979, Judith Goodley Jampole died from injuries suffered when her Chevy Vega was struck in the rear by another car and caught fire. 1 That same year, the appellants, her husband, Stanley, and children, William, Daniel, Debra, and Laura Sue (the Jampole family), signed an agreement (the fee agreement) with Attorney Arthur Combs authorizing him to file suit against the other driver and the Chevrolet Company. As consideration, Combs would receive 33 1/3 percent of any settlement made before trial, or 40 percent if collection or settlement was made during or after trial. Combs referred the case to the appellees, W. Douglas Matthews (Matthews) and Schmidt, Matthews & Brannon (the firm). Matthews and Combs agreed in writing that the firm would receive 60 percent of the total attorney's fees collected and Combs would receive the remaining 40 percent. Combs died in February 1981.
Matthews brought suit against General Motors (GM), and the case settled in August 1986 before trial. In June 1986, shortly before the case settled, Matthews sent a letter to the Jampole family giving them a status report. He also asked the Jampole family to consider raising the firm's fee to 40 percent from 33 1/3 percent because the firm had invested large amounts of its money as case costs and court costs at no interest, because products liability cases involved a good deal of risk in recovery, and because 40 percent was closer to the firm's standard fee. 2 Matthews closed the letter by saying that, if the Jampole family felt the fee should remain 33 1/3 percent, it would stay at 33 1/3 percent.
In late June 1986, Stanley Jampole and Matthews verbally agreed to change the fee to 33 1/3 percent of any recovery up to $2.75 million and 50 percent of any recovery in excess of that amount. On August 11, 1986, the Jampole family and GM agreed to a $3.5 million settlement. GM made the final settlement payment on April 22, 1988.
On October 17, 1989, the Jampole family filed suit against Matthews and the firm. The plaintiffs alleged they were entitled to damages for paying a fee higher than that called for in the fee agreement, because of the defendants' overreaching (Archer v. Griffith, 390 S.W.2d 735 (Tex.1964)), breach of fiduciary duty, breach of contract, violation of the Deceptive Trade Practices Act (DTPA), 3 negligence, gross negligence, fraud, deceit, and misrepresentation. When the defendants filed a general denial and asserted limitations as an affirmative defense, the plaintiffs amended their pleading to assert the discovery rule. According to the plaintiffs, they
instituted these claims within the appropriate time limitations after Defendants fraudulently took their money in August, 1986, after Defendants' attorney/client relationship ended with final accounting and payment by Defendant in April, 1988 or late 1989, and/or they discovered, knew or should have known in mid 1989 of the wrongdoing by the Defendants.
On October 12, 1990, Matthews and the firm filed a motion for summary judgment. They sought summary judgment on the following two grounds:
1. The statute of limitations for causes of action arising out of the rendering of legal services is two years and this suit was brought [more than two years] after the plaintiffs knew and should have known of alleged facts giving rise to a cause of action.
2. The plaintiffs failed to replead in accordance with the court's order and the defendants were entitled to have plaintiffs' pleadings stricken, [and] alternatively and additionally to have this motion for summary judgment granted as to all claims.
The trial court granted the motion for summary judgment in favor of Matthews and the firm without specifying the grounds relied on.
In their first point of error, the Jampole family contend the trial court erred in granting summary judgment based on limitations because (1) the statute of limitations for fraud is four years, and they alleged and presented evidence of fraud, and (2) the statute of limitations for a breach of contract claim is four years, and they presented evidence of breach of contract.
The standard for appellate review of a summary judgment for a defendant is whether the summary judgment proof establishes, as a matter of law, that there is no genuine issue of fact as to one or more of the essential elements of the plaintiff's cause of action. Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). The movant has the burden to show that there is no genuine issue of material fact, and that it is entitled to judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548-49 (Tex.1985). Evidence favorable to the non-movant will be taken as true in deciding whether there is a disputed material fact issue that precludes summary judgment. Id. Every reasonable inference must be indulged in favor of the non-movants and any doubts resolved in their favor. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex.1984). A summary judgment for the defendant, disposing of the entire case, is proper only if, as a matter of law, the plaintiff could not succeed upon any theories pleaded. Havens v. Tomball Community Hosp., 793 S.W.2d 690, 691 (Tex.App.--Houston [1st Dist.] 1990, writ denied); Dodson v. Kung, 717 S.W.2d 385, 390 (Tex.App.--Houston [14th Dist.] 1986, writ ref'd n.r.e.). Once the defendant produces sufficient evidence to establish the right to a summary judgment, the plaintiff must set forth sufficient evidence to give rise to a fact issue to avoid a summary judgment. "Moore" Burger, Inc. v. Phillips Petroleum Co., 492 S.W.2d 934, 936-37 (Tex.1972).
If a defendant moves for summary judgment based on an affirmative defense, the defendant's burden is to prove conclusively all the elements of the affirmative defense as a matter of law. Montgomery, 669 S.W.2d at 310-11. Unless the movant conclusively establishes the affirmative defense, the non-movant plaintiff has no burden in response to a motion for summary judgment filed on the basis of an affirmative defense. Torres v. Western Casualty & Sur. Co., 457 S.W.2d 50, 52 (Tex.1970).
A summary judgment cannot be affirmed on any grounds not presented in the motion for summary judgment. Hall v. Harris County Water Control and Improvement Dist. No. 50, 683 S.W.2d 863, 867 (Tex.App.--Houston [14th Dist.] 1984, no writ.). When a trial court's order does not specify the grounds relied on for its ruling, the summary judgment will be affirmed if any of the theories advanced are meritorious. Insurance Co. of North America v. Security Ins. Co., 790 S.W.2d 407, 410 (Tex.App.--Houston [1st Dist.] 1990, no writ).
The parties agree that the usual statute of limitations is four years for fraud 4 and four years for breach of contract. 5 5 If the four-year statute of limitations applies, limitations had not run on the fraud and breach of contract causes of action when suit was filed on October 17, 1989, because the causes of action accrued at the earliest in June or August 1986, when Stanley Jampole and Matthews agreed to modify the fee. However, Matthews and the firm argue that the Jampole family's cause of action is really one for legal malpractice, and that, no matter what label is given the cause of action, legal malpractice is governed by a two-year statute of limitations. They rely on Willis v. Maverick, 760 S.W.2d 642 (Tex.1988), Pham v. Nguyen, 763 S.W.2d 467 (Tex.App.--Houston [14th Dist.] 1988, writ denied), Sledge v. Alsup, 759 S.W.2d 1 (Tex.App.--El Paso 1988, no writ), Black v. Wills, 758 S.W.2d 809 (Tex.App.--Dallas 1988, no writ), Gabel v. Sandoval, 648 S.W.2d 398 (Tex.App.--San Antonio 1983, writ dism'd), Woodburn v. Turley, 625 F.2d 589 (5th Cir.1980), and Citizens State Bank v. Shapiro, 575 S.W.2d 375 (Tex.Civ.App.--Tyler 1978, writ ref'd n.r.e.). They acknowledge a contrary holding in Estate of Degley v. Vega, 797 S.W.2d 299 (Tex.App.--Corpus Christi 1990, no writ).
In Willis v. Maverick, the attorney drafted the divorce settlement agreement for both husband and wife. The husband urged the attorney to delete the provision allowing the wife to reside in the marital home, and the provision was deleted. According to the wife, the attorney assured her that, despite the deletion, she would still have to agree before the home was sold. 760 S.W.2d at 643. A year after the divorce, the wife received notice of the husband's intent to force partition of the home. Id. A year later, the wife sued the attorney, alleging legal malpractice and violation of the DTPA. There was no allegation of fraud in the trial court. Id. at 647. Nor does there appear to have been a claim of breach of contract. The supreme court stated:
At the outset, we express agreement with the court of appeals' determination that the two-year statute of limitations governs the case. A cause of action for legal malpractice is in the nature of a tort and is thus governed by the two-year limitations statute.
Id. at 644 (citations omitted). We read this decision as meaning that when an attorney is sued for malpractice based on negligence and violations of the DTPA, the limitations period is two years. We do not understand the supreme court to be saying that the limitations period is two years for legal malpractice,...
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