Neubaum v. Stanfield
| Decision Date | 09 April 2015 |
| Docket Number | NO. 14–13–00943–CV,14–13–00943–CV |
| Citation | 465 S.W.3d 266 |
| Parties | Jon T. Neubaum and Barbara Neubaum, Appellants v. Brenton M. Stanfield, Thomas P. Stone, Stone & Associates, LLP, & Jimmy Van Knighton, II, Appellees |
| Court | Texas Court of Appeals |
Kristin Bays, James Randal Bays, Conroe, TX, for Appellant.
Samuel A. Houston, Stephen R. Bailey, Houston, TX, for Appellee.
Panel consists of Chief Justice Frost and Justices Donovan and Brown.
MAJORITY OPINION
This appeal arises from a lawyer-client dispute. Clients sued lawyers and the law firm at which they worked, alleging various acts of negligence in representing the clients in a lawsuit, as well as alleged breaches of fiduciary duty. The trial court granted the lawyers' motion for a traditional summary judgment. We affirm as to the claims for breach of fiduciary duty, and we sever, reverse, and remand the negligence claims.
Appellants/plaintiffs Jon T. Neubaum and Barbara Neubaum brought suit against three lawyers, alleging negligence in their representation of the Neubaums in a prior lawsuit in which the Buck Glove Company sued the Neubaums asserting usury claims (hereinafter the “Usury Lawsuit”). See Neubaum v. Buck Glove Co., 302 S.W.3d 912, 916 (Tex.App.–Beaumont 2009, pet. denied). According to their live pleading, the Neubaums, after being served in the Usury Lawsuit, conferred with appellee Thomas P. Stone of Stone & Associates, L.L.P., an attorney who had represented them for several years in other matters. Stone and appellee Brenton M. Stanfield undertook to represent the Neubaums in the Usury Lawsuit.
The Neubaums counterclaimed against Buck Glove Company and asserted third-party claims against E.L. “Buck” Hord and Kathie Hord. Following a jury trial, the trial court in the Usury Lawsuit rendered judgment in favor of Buck Glove Company for more than $3.9 million in actual damages, as well as attorney's fees. The trial court in the Usury Lawsuit also rendered judgment in favor of the Neubaums in the amount of approximately $151,000 on their counterclaim for money had and received. The Neubaums retained new lead counsel for an appeal from the judgment. The Ninth Court of Appeals concluded that the trial evidence was legally insufficient to support the jury's finding that the Neubaums loaned money to Buck Glove Company through an agent. That appellate court reversed the trial court's judgment as to the usury claim and rendered judgment that Buck Glove Company take nothing.See id. at 920.
The Neubaums filed suit against appellees/defendants Brenton M. Stanfield, Thomas P. Stone, Jimmy Van Knighton II, and Stone & Associates, L.L.P. (collectively hereinafter the “Stone Parties”) asserting various negligence claims and breach-of-fiduciary-duty claims. The Stone Parties filed a motion seeking a traditional summary judgment on the following grounds: (1) the Neubaums impermissibly fractured negligence claims into breach-of-fiduciary-duty claims and any claims the Neubaums arguably have against the Stone Parties sound only in negligence; (2) as a matter of law, the Stone Parties' allegedly actionable conduct did not proximately cause any damage to the Neubaums; (3) the Stone Parties cannot be held liable for an error committed by the trial court in the Usury Lawsuit; (4) as a matter of law, the Neubaums were not damaged by the failure to obtain a judgment against Buck Hord because the judgment against the Buck Glove Company may be enforced against Buck Hord; (5) to the extent the Neubaums complain about prior asset-preservation work performed by Van Knighton, Van Knighton's conduct did not cause the Neubaums any damage and any such claim is barred by the statute of limitations. The trial court granted the Stone Parties' motion and rendered a final summary judgment as to all of the Neubaums' claims.1
On appeal, the Neubaums assert that the trial court erred in granting summary judgment in favor of the Stone Parties. The Stone Parties filed a traditional summary-judgment motion. In a traditional motion for summary judgment, if the movant's motion and summary-judgment evidence facially establish its right to judgment as a matter of law, the burden shifts to the nonmovant to raise a genuine, material fact issue sufficient to defeat summary judgment. M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex.2000). In our de novo review of a trial court's summary judgment, we consider all the evidence in the light most favorable to the nonmovant, crediting evidence favorable to the nonmovant if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006). The evidence raises a genuine issue of fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755 (Tex.2007). When, as in this case, the order granting summary judgment does not specify the grounds upon which the trial court relied, we must affirm the summary judgment if any of the independent summary-judgment grounds is meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex.2000).
In their first summary-judgment ground, the Stone Parties asserted that the Neubaums impermissibly fractured negligence claims into breach-of-fiduciary-duty claims and that any claims the Neubaums arguably have against the Stone Parties sound only in negligence. When deciding whether an allegation against an attorney states a claim sounding in negligence or some other claim, we are not bound by the client's characterization of the pleadings. See Haase v. Abraham, Watkins, Nichols, Sorrels, Agosto, & Friend, 404 S.W.3d 75, 82 (Tex.App.–Houston [14th Dist.] 2013, no pet.). The rule against fracturing a negligence claim prevents legal-malpractice plaintiffs from opportunistically transforming a claim that sounds only in negligence into some other claim.See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex.App.–Houston [14th Dist.] 2002, no pet.). If the gist of the 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.2 See id. If, however, the client's complaint is more appropriately classified as another claim, for example, fraud, a violation of the Texas Deceptive Trade Practices Act, breach of fiduciary duty, or breach of contract, then the client can assert a claim other than negligence. See Haase, 404 S.W.3d at 82–83 ; Deutsch, 97 S.W.3d at 189.
Liberally construing the Neubaums' live petition,3 the Neubaums alleged that the Stone Parties violated their respective fiduciary duties to the Neubaums by engaging in the following conduct: (1) failing to advise the Neubaums of the damages sought against them in the Usury Lawsuit, (2) failing to advise the Neubaums of Stanfield's lack of competence to handle the Usury Lawsuit, (3) failing to advise the Neubaums that Stanfield was not being supervised by more experienced counsel, and (4) failing to “pull” Stanfield from the Usury Lawsuit.4 Though an alleged failure to disclose matters regarding an alleged conflict of interest may be the basis of an independent claim for breach of fiduciary duty, the Neubaums do not allege that the Stone Parties failed to disclose a conflict of interest or matters related thereto. See McInnis v. Mallia, No. 14–08–00931–CV, 2011 WL 782229, at *7 (Tex.App.–Houston [14th Dist.] Mar. 8, 2011, pet. denied) ; Deutsch, 97 S.W.3d at 189. After reviewing the Neubaums' allegations regarding the Stone Parties' alleged breaches of fiduciary duty, we conclude that the gist of each of these allegations is that the Stone Parties did not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess. See McInnis, 2011 WL 782229, at *7 ; Deutsch, 97 S.W.3d at 189–90. Therefore, these allegations are to be pursued only as negligence claims; the Neubaums impermissibly fractured their negligence claims by asserting these complaints as breach-of-fiduciary-duty allegations. See McInnis, 2011 WL 782229, at *7 ; Deutsch, 97 S.W.3d at 189–90. Accordingly, the trial court did not err in granting summary judgment as to the Neubaums' breach-of-fiduciary-duty claims.
In their petition, the Neubaums alleged that the Stone Parties' negligence caused them damage when they obtained a judgment on the Neubaums' money-had-and-received claim against only the Buck Glove Company. The Neubaums allege that Buck Hord does business as the Buck Glove Company, which is only his assumed name. According to the Neubaums, because the Stone Parties obtained a judgment against only the Buck Glove Company, the judgment is “worthless” and “uncollectible” because it was rendered against a “non-existent entity” rather than against “Buck Hord” or against “Buck Hord doing business as the Buck Glove Company.” In their summary-judgment motion, the Stone Parties asserted that, as a matter of law, the Neubaums were not damaged by the failure to obtain a judgment against Buck Hord because the judgment against the Buck Glove Company may be enforced against Buck Hord.
If, as the Neubaums alleged, Buck Hord does business under the assumed name of “the Buck Glove Company,” then Buck Hord and the Buck Glove Company are one and the same, and the judgment against the Buck Glove Company is a judgment against Buck Hord. See Ideal Lease Serv., Inc. v. Amoco Prod. Co., 662...
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