Trousdale v. Henry

• Decision Date: 24 June 2008
• Docket Number: No. 14-06-00848-CV.,14-06-00848-CV.
• Citation: 261 S.W.3d 221
• Parties: Lenieta Wylene TROUSDALE, Appellant v. Annette M. HENRY, R. Christopher Bell, and Bell & Henry, L.L.P., Appellees.
• Court: Texas Court of Appeals

261 S.W.3d 221

Lenieta Wylene TROUSDALE, Appellant v. Annette M. HENRY, R. Christopher Bell, and Bell & Henry, L.L.P., Appellees.

No. 14-06-00848-CV.

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

June 24, 2008.

Wayne H. Paris, Houston, for appellant.

Mark Allen Waite, Michael A. Moriarty, Annette M. Henry, Edward J. Murphy, Tracy Allen Phillips, James Emery Rogers, Houston, for appellees.

Panel consists of Justices YATES, FOWLER, and GUZMAN.

MAJORITY OPINION

WANDA McKEE FOWLER, Justice.

Lenieta Wylene Trousdale ("Trousdale") appeals from the trial court's order granting summary judgment in favor of appellees, Annette M. Henry, R. Christopher Bell, and Bell & Henry, L.L.P. In three issues, Trousdale contends the trial court erred in its grant of summary judgment and its dismissal of her claims with prejudice, because (1) certain of appellees' actions constitute a breach of fiduciary duty, to which a four-year statute of limitations applies; (2) the non-fracturing rule does not apply to the facts of this case, as claims for breach of fiduciary duty are not limited to instances of self-dealing by attorneys; and (3) the fraudulent concealment doctrine tolled the commencement of the two-year statute of limitations on her legal malpractice claims until August or September 2005, when appellees returned her file to her.

We conclude that the trial court erred in applying the two-year statute of limitations to Trousdale's breach of fiduciary duty claims. However, we also conclude that neither the discovery rule nor the fraudulent concealment doctrine tolled the running of the statute of limitations on Trousdale's legal malpractice claims until August or September 2005. As a result of these holdings, we reverse that portion of the trial court's order granting summary judgment on Trousdale's breach of fiduciary duty claims and affirm the summary judgment as to the legal malpractice claims.

Factual and Procedural Background

Because we are reviewing a summary judgment, we present the facts in the light most favorable to Trousdale, the non-movant. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In October 1998, following the death of her father, Trousdale retained Annette M. Henry ("Henry"), R. Christopher Bell ("Bell"), and their law firm, Bell & Henry, L.L.P., to represent her and the estate of her father in two lawsuits filed in Liberty County, Texas. The first was a probate action to have Trousdale appointed representative of her father's estate ("the probate action"). The second was a fraud and conversion action filed against Ellen Ayres, her half-sister, in district court ("the district court action"). According to the parties, the probate action was dismissed on September 27, 2002 for want of prosecution, and the district court action was dismissed on October 16, 2002, also for want of prosecution.

This appeal involves the manner and timing of Trousdale's discovery that these two lawsuits had been dismissed. With respect to the probate action, Trousdale alleges that Henry promised her in April 2001 that she would keep her apprised of an upcoming hearing in the probate court. After failing to receive any notification regarding the lawsuit, Trousdale telephoned Henry in December 2002 to inquire as to its status. However, instead of speaking directly with Henry herself, Trousdale spoke with a member of Henry's staff, who informed her that she would have Henry return her telephone call. When Henry failed to do so, Trousdale called Henry's office three times. During the second call, occurring sometime in January 2003, Henry merely informed Trousdale, "we missed it," without further explanation as to whether it was a hearing that had been missed, or whether the probate action itself had been dismissed. Trousdale then asked Henry to reschedule the probate hearing, to which Henry did not respond. Later that month, Trousdale called Henry a third time and again asked Henry to reschedule the probate hearing, whereupon Henry hung up on her. In a later conversation, Trousdale requested that Henry return her file. Henry told her that her case had been "sealed," and said that, for this reason, she could obtain her file from neither her nor the Liberty County courthouse. Henry further informed Trousdale that she would need a probate attorney to further pursue the matter.

With respect to the district court action, Trousdale alleges that she never inquired, and was never informed, as to its status. She also claims that Henry never informed her that anything had been "missed" on the district court action during their telephone conversations, much less that the district court action had been dismissed.

In sum, Trousdale asserts that appellees never informed her that either lawsuit had been dismissed. As a result, she clams she did not learn that either the probate action or the district court action had been dismissed until August-September 2005, when appellees finally returned her file to her.

On December 30, 2005, Trousdale sued appellees for legal malpractice and breach of fiduciary duties. She alleged that appellees (1) failed to appear at trial settings in September and October of 2002, which resulted in the dismissal of her claims for want of prosecution; (2) failed to disclose to her that her claims were dismissed, after she had paid them for their services and expenses; and (3) intentionally refused to return her files to her until September 2005, to conceal the fact that her claims had been dismissed and were time-barred. Trousdale later amended her petition as follows: (1) adding a claim that appellees were negligent in their failure to timely take any action to have her cases reinstated upon learning of their dismissal; (2) adding a claim that the discovery rule and the fraudulent concealment doctrine tolled the statute of limitations on her legal malpractice claims until appellees returned her files in September 2005; and (3) stating her legal malpractice and breach of fiduciary duty claims in separate sections.

Appellees filed a joint motion for summary judgment. Stating that Trousdale's sole claims of wrongdoing related to missed hearing/trial settings, appellees contended that Trousdale's claims amounted to nothing more than a claim for legal malpractice, subject to a two-year statute of limitations. Appellees further asserted that neither the discovery rule nor the fraudulent concealment doctrine tolled limitations until September 2005, as Trousdale admitted knowledge of and intent to sue on her cause of action in June 2003.¹ Because they claimed limitations had run in June 2005, and Trousdale did not file suit until December 2005, appellees sought dismissal of Trousdale's claims with prejudice.

In her response, Trousdale argued that she timely filed suit against appellees. She contended that her breach of fiduciary duty claims were controlled by a four-year statute of limitations, making those claims timely. She acknowledged that her legal malpractice claims were governed by a two-year statute of limitations, but asserted that the discovery rule and the fraudulent concealment doctrine tolled the running of limitations on those claims. With respect to the former, Trousdale attached to her response an affidavit in which she averred, "The first time I realized I had a risk of harm was in August or September 2005 when I saw this in the file I had been given." In their reply, appellees objected that Trousdale's affidavit amounted to a "sham affidavit," because it materially contradicted her sworn deposition testimony. Appellees requested that the trial court strike certain portions of the affidavit, including the above-quoted statement.

The trial court granted appellee's motion for summary judgment, and ordered Trousdale's claims dismissed with prejudice. In its order, the trial court further sustained appellees' objection to Trousdale's affidavit, and struck the statement, "The first time I realized I had a risk of harm was in August or September 2005 when I saw this in the file I had been given," from the affidavit. This appeal followed.

Issues on Appeal

In three issues, Trousdale contends that the trial court erred in granting summary judgment in favor of appellees. In her first issue, Trousdale asserts that her claims for breach of fiduciary duties were timely filed, as they are separate and independent from her claims for legal malpractice, and subject to a four-year statute of limitations. In her second issue, she argues that the non-fracturing rule cannot be applied on the facts of this case, as claims for breach of fiduciary duties are not limited solely to instances of self-dealing by attorneys. In her final issue, Trousdale contends that she timely filed her legal malpractice claims, as the fraudulent concealment doctrine tolled the running of limitations until appellees returned her file in August-September 2005. She further argues that the trial court erred in sustaining appellee's objection to her affidavit and striking a statement from that affidavit. We will address Trousdale's first and second issues together, because they are related.

Standard of Review

We review the trial court's grant of summary judgment de novo. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 156-57 (Tex.2004). To prevail on a traditional motion for summary judgment, the movant must show that there is no genuine issue as to any material fact and that it is entitled to judgment as a matter of law. TEX.R. CIV. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex.1985); Aguirre v. Vasquez, 225 S.W.3d 744, 750 (Tex.App.-Houston [14th Dist.] 2007, no pet.). A defendant moving for summary judgment must conclusively negate at least one essential element of each of the plaintiff's causes of action or conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997); Shirvanian v. DeFrates, 161 S.W.3d...