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At a Glance:
Title:
Border Demolition & Environmental, Inc. v. Pineda
Date:
November 8, 2017
Citation:
535 S.W.3d 140
Status:
Published Opinion

Border Demolition & Environmental, Inc. v. Pineda

Court of Appeals of Texas, El Paso.

BORDER DEMOLITION & ENVIRONMENTAL, INC., Appellant,

v.

Ernesto PINEDA, Appellee.

No. 08-16-00094-CV

|

November 8, 2017

*147 Appeal from the 171st District Court of El Paso County, Texas (TC# 2014DCV1097), The Honorable Yvonne Rangel, Judge

Attorneys & Firms

ATTORNEY FOR APPELLANT: Hon. James A. Martinez, James A. Martinez, P.L.L.C., 7170 Westwind Dr., Ste. 201, El Paso, TX 79912.

ATTORNEY FOR APPELLEE: Hon. Steven C. James, Attorney at Law, 521 Texas, El Paso, TX 79901.

Before Palafox, J., and Larsen, J. (Senior Judge)

OPINION

GINA M. PALAFOX, Justice

This is an appeal from a judgment granting a hybrid motion for summary judgment. Appellant Border Demolition & Environmental, Inc. (“Border Demolition”), filed tort and contract claims against Appellee Ernesto Pineda, a licensed Texas attorney, based on alleged duties flowing from a continuing relationship and implied agreement of representation. We affirm in part, and reverse and remand in part.

I. BACKGROUND

A. Factual Background

Border Demolition, an environmental and demolition contractor, is a Texas corporation wholly owned by its principals, Raul and Bonnie Solis, who are husband and wife.1 Raul Solis serves as president and Bonnie Solis serves as vice-president, secretary, and treasurer. Ernesto Pineda is a self-employed attorney who provided legal services to the Solises over the course of nearly ten years beginning in 2003.

In March 2007, Border Demolition hired Luis Reza, a construction worker recommended by Pineda who had recently been laid off from his prior job. Months later, in November 2007, Border Demolition terminated Reza’s employment when a Solis family member reported she had seen Reza speeding and driving erratically in a company-owned truck. As she caught up to confront the driver, Reza rudely responded with an obscene hand gesture. Raul Solis informed Pineda of Reza’s termination in December 2007 during a phone conversation in which they were also discussing other unrelated business issues.

After Reza’s termination, Border Demolition received notice that Reza had filed a workers’ compensation claim alleging he had been injured on the job and that he was seeking workers’ compensation benefits.2 On May 5, 2008, Bonnie Solis sent an email addressed to Pineda’s paralegal containing the subject line “Luis Reza,” which stated:

Sandra,

Will you please show this to [M]r. [P]ineda. I don’t want to give anyone information on Mr. Reza. If I receive a subpoena, then I will. Ask Mr. Pineda if he agree[s] .. [I] know he’s more than familiar with the situation with [M]r. Reza. Thx.

Bonnie Solis

Vice President

*148 Border Demolition and Environmental, Inc.

[Address Omitted]

Pineda claimed that he did not see Bonnie Solis’s email at the time it was sent, and that he only became aware of Reza’s workers’ compensation claim sometime the next year.

On April 16, 2009, Reza served Border Demolition with a wrongful discharge lawsuit he had filed alleging he was fired based on workers’ compensation retaliation (the “Reza lawsuit”). That same day, Bonnie Solis sent an email to Pineda with the subject line “luis reza,” stating:

Mr. Pineda,

Remember that supervisor you recommended to us, Luis Reza? We just got served a lawsuit by him. I realize that the workers comp will step in, but attached is the lawsuit for your review.

Bonnie Solis

Vice President

Border Demolition and Environmental Inc.

[Address Omitted]

Pineda acknowledged both receiving and reading Bonnie Solis’s email and the Reza lawsuit attached. He also acknowledged that he did not reply, nor take any other steps relevant to the suit on behalf of Border Demolition. In an affidavit, he explained he thought Bonnie Solis was going to turn over the suit to her workers’ compensation insurance carrier as she had written. At his deposition, he added he had waited for Bonnie Solis to contact him or call, “to see if there was going to be any follow up.” Although he continued meeting with both Solises on other matters, he claimed he never had any conversations with either of them about the Reza suit. Bonnie Solis acknowledged that she did not have any additional conversations with Pineda after she emailed the Reza lawsuit. She admitted that she did not personally retain Pineda to represent Border Demolition, did not enter a fee agreement with him, or receive any bills from him on the Reza matter. She asserted, however, that Pineda spoke mostly with her husband about Reza. She explained that she had partially overheard one side of a phone conversation but could not remember the exact verbiage of their call.

Raul Solis stated that within a few days after his wife sent her email, he spoke with Pineda by phone and, based on this conversation, he believed that Pineda had agreed to represent Border Demolition. Raul Solis testified that during this call, Pineda explained he had spoken to Reza and asked him, “Why are you suing these people? These are good people.”3 Raul Solis reported he then asked Pineda, “What are we going to do next?” Pineda responded with two comments: “I don’t know if he’ll drop it,” and, “We’ll have to keep an eye on it.” From this conversation, Raul Solis understood that Pineda had agreed to assist with the Reza matter and would receive his “normal” hourly rate, even though Pineda had never represented Border Demolition in a litigation matter.

Because Border Demolition never answered the Reza lawsuit, Reza obtained a default judgment on July 15, 2009, awarding damages to him in the amount of three hundred forty-five thousand one hundred thirty-four dollars. The district clerk’s office mailed a notice of default judgment to Border Demolition the next day. Bonnie Solis testified that she did not recall receiving *149 the notice, and further acknowledged that Border Demolition took no action to either timely move for a new trial or appeal the judgment.4 Four years later, in September 2013, Bonnie Solis contacted Pineda informing him that she just learned that a default judgment had been entered in Reza’s favor and that Reza had begun collection efforts.

B. Procedural Background

On April 4, 2014, Border Demolition filed suit against Pineda alleging claims of negligence, breach of fiduciary duty, and, in the alternative, a claim of breach of contract. In the negligence and breach of fiduciary duty claims, Border Demolition listed the following omissions against Pineda connected to his handling of the Reza suit: his failure to defend Border Demolition, his failure to file an answer on its behalf, his failure to transmit the petition and citation to its insurance agent or carrier, his failure to arrange for a lawyer to defend it, his failure to inform Border Demolition personnel that he would not defend it, and his failure to advise Raul and Bonnie Solis that they should engage another lawyer to defend their business. As for the alternative claim, Border Demolition asserted it had established a course of dealing with Pineda that permitted it to informally enter agreements with him. Consequently, when Border Demolition transmitted the Reza petition to him and Pineda promised to “talk to” Reza, a contract had been formed to defend the Reza lawsuit. As to all three causes of action, Border Demolition asserted that Pineda’s conduct proximately caused resulting damages, which included a one hundred fifty-thousand-dollar payment made by Border Demolition after reaching a compromise and settlement with Reza of the final judgment he had earlier obtained by default.

After adequate discovery, Pineda filed a motion for summary judgment with a single, general reference to the Texas Rules of Civil Procedure indicating that he filed his motion “pursuant to TRCP 166a[.]” Pineda argued three grounds to support judgment in his favor in the following order: (a) he asserted that Border Demolition impermissibly fractured a legal malpractice claim into multiple causes of action; (b) he asserted he owed no duties of care to Border Demolition with regard to the Reza lawsuit as neither he nor Border Demolition manifested an intention to create an explicit or implied attorney-client relationship on that matter; and (c) he asserted that Border Demolition had no expert testifying that Pineda had committed legal malpractice.

In support of his motion, Pineda attached his own affidavit averring, among other things, that he was never retained to represent Border Demolition in the Reza lawsuit, that Border Demolition never expressly asked him to represent it, and that neither of the Solises requested he file an answer to the suit or to take any action on behalf of Border Demolition in its defense. Pineda also attached emails showing his past course of conduct in which he quoted fees and requested retainers when he and Bonnie Solis previously discussed individual or transactional work. Lastly, he also supported his motion with documentation from other cases over the same period in which Border Demolition hired other lawyers to litigate on its behalf. Pineda’s motion analyzed the summary judgment evidence he attached arguing first, that the evidence conclusively negated an attorney-client relationship and, second, that Border *150 Demolition failed to provide expert testimony necessary to its malpractice claim.

Border Demolition responded to Pineda’s motion providing argument and supportive evidence. It argued that the evidence raised a question of fact concerning an implied agreement on the Reza matter. In support of its argument, Border Demolition attached an expert witness affidavit from Ruben Robles of El Paso, an attorney licensed to practice law in Texas since 1983 and board-certified in personal injury trial law. In his affidavit, Robles asserted Pineda had established a long-term pre-existing attorney-client relationship that did not require express formalities on the Reza matter. Robles opined that Pineda breached duties of care and protection owed to Border Demolition based on an implied contract of representation. He averred that Pineda had a duty to inform Bonnie Solis of her “legal rights and duties” with respect to the Reza suit. He also averred that Pineda should have informed her of the deadline for filing an answer and the consequences that could follow in failing to do so. Robles described that when an attorney is “presented with a legal problem from a client ... with whom he has a continuing relationship, that attorney must act to protect his client’s interest.” Moreover, he claimed that by doing “absolutely nothing” in response to Bonnie Solis’s email, Pineda fell “well short of the standard of care,” adding that it was “almost unimaginable that an attorney, when presented with this scenario, would take absolutely no action.”

The trial court granted Pineda’s motion without specifying the basis for its decision, and Border Demolition filed this appeal.

II. ISSUES ON APPEAL

In four issues, Border Demolition contends that the trial court erred in granting summary judgment in favor of Pineda. Issue One is framed as a TEX.R.APP.P. 47.1.

*151 A. Standard of Review

On appeal, both no-evidence and traditional motions for summary judgment are reviewed de novo. See Lozano v. Lozano, 52 S.W.3d 141, 145 (Tex. 2001).

Under a traditional motion, the moving party bears the burden of showing that there is no genuine issue of material fact and it is entitled to judgment as a matter of law. Id.

When, as here, the trial court’s order does not specify any grounds upon which it relied for its ruling, we must affirm the judgment if any of the theories asserted in the motion are meritorious. 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.).

B. Issue Two: Legal Malpractice (Duty)

In Issue Two, Border Demolition contends that the evidence raised a genuine issue of material fact as to two distinct duties of care Pineda owed based on the existence of an attorney client relationship. First, Border Demolition asserts the evidence raised a fact issue as to whether Pineda expressly agreed to defend Border Demolition in the Reza suit. Second, Border Demolition asserts that even if Pineda did not agree to represent it, he owed a duty to timely advise that he would not do so based on the existence of a continuing relationship.

*152 The first question in a legal malpractice claim is whether there exists an attorney-client relationship as an attorney only owes a duty to his or her clients. Valls v. Johanson & Fairless, L.L.P., 314 S.W.3d 624, 634 (Tex.App.—Houston [14th Dist.] 2010, no pet.).

When determining whether the parties formed an implied attorney-client relationship, the focus is on “whether there is a meeting of the minds ... based on objective standards of what the parties did and said and not on their alleged subjective states of mind.” Tanox, 105 S.W.3d at 254).

When an attorney-client relationship exists, the attorney “is held to the standard of care which would be exercised by a reasonably prudent attorney.” Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 426 (Tex.App.—Austin 2009, no pet.) (lawyer may commit legal malpractice by “delaying or failing to handle a matter entrusted to the lawyer’s care, or by not using a lawyer’s ordinary care in preparing, managing, and prosecuting a case”).

Attorney duties are not, however, limited to representing a client in a lawsuit and under certain circumstances, an attorney also has a duty to inform a client, or even a putative client, that he or she will not be representing it in litigation, and to instruct the putative client to take alternative action to protect its interests. Valls, 314 S.W.3d at 636 (summary judgment in attorney’s favor appropriate where evidence clearly established that the defendant counsel represented the opposing party during settlement negotiations and the plaintiff was represented by his own attorneys in negotiations). With these principles in mind, we turn to Border Demolition’s legal malpractice claim against Pineda.

Here, Pineda describes himself as a transactional attorney, not a litigator. He does not dispute that he had a pre-existing, long-term attorney-client relationship assisting Border Demolition with a variety of business issues. He asserts his work with the Solises, however, centered on transactional advice for their ongoing businesses, for investments they considered, and for preparation of their last wills. Before engaging in work for the couple individually, or for one of their business interests, Pineda described he would typically quote an estimate and charge an hourly rate for his services with a retainer requested. On appeal, Pineda argues that he conclusively established he did not agree to represent Border Demolition in the Reza lawsuit, nor was he paid any fees. Moreover, he asserts evidence of his past pattern of conduct showed he entered express agreements whenever he was previously retained for their legal work. Thus, he asserts that the absence of an express agreement on the Reza suit conclusively established no attorney client relationship existed thereby precluding a finding that he owed any duty of care or protection. In these circumstances, however, we do not agree.

The absence of an express agreement is not conclusive. An attorney-client relationship may also be established through an implied agreement based on words and conduct of the parties. See Hill v. Bartlette, 181 S.W.3d 541, 547–48 (Tex.App.—Texarkana 2005, no pet.) (considering the lack of payment schedule as a factor when finding no evidence of an attorney-client relationship).

Here, there is no dispute that Bonnie Solis sent Pineda a copy of the Reza lawsuit on the same day as service asking him to review it, and Pineda acknowledged that he did. Pineda argues, however, that Bonnie Solis’s email with the Reza suit attached misled him since she stated therein that the workers’ compensation carrier would “step in” to handle the Reza lawsuit. He further asserts he had no reason to believe that Border Demolition relied on him to represent it in the lawsuit. Pointedly, he claims he never assured Raul or Bonnie Solis that he would help “keep an eye on” the suit or that he would provide representation of any kind. In direct conflict with this evidence, however, Raul Solis testified that Pineda told him words to the effect that, “We’ll have to keep an eye on it.” Given this conflict, we hold that Border Demolition established the existence of a genuine issue of material fact on whether Pineda knew or should have known that Border Demolition relied on him for representation or advice on the Reza matter.

Courts faced with similar factual scenarios have concluded that when an attorney’s actions—particularly one with a pre-existing attorney-client relationship—suggest he is assisting with a legal matter, or the attorney makes promises that he will assist in the future, this evidence is sufficient to raise a question of fact regarding an implied agreement. See, e.g., Perez v. Kirk & Carrigan, 822 S.W.2d 261, 265 (Tex.App.—Corpus Christi 1991, writ denied) (where attorneys allegedly stated to plaintiff that they were his lawyers and that they “were going to help him” was sufficient to raise a fact issue on whether an implied attorney-client relationship existed).

In Id.

Here, after Pineda received a request to review a lawsuit from a client with whom he has had a long-term relationship, Pineda failed to make clear his intention not to provide advice or services on a time-sensitive matter.6 Pineda admitted that he never sent a reply, nor did he communicate by another means. Border Demolition’s expert witness further opined that Pineda had an obligation to respond to Bonnie Solis’s email and advise, at a minimum, that he was rejecting an implied request for representation and it should seek other legal counsel.

On review, we find that Border Demolition presented sufficient evidence from which a jury could reasonably conclude that Pineda knew or should have known that Border Demolition was relying on him for representation. See Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). Accordingly, we sustain Border Demolition’s second issue.

C. Issue Three: Legal Malpractice: No Expert Testimony

In Issue Three, Border Demolition asserts that Pineda was not entitled to summary judgment based on a lack of expert testimony as no such evidence was necessary under the circumstances. Alternatively, if expert testimony is deemed necessary, then Border Demolition asserts the affidavit of attorney Ruben Robles is sufficient to preclude judgment in Pineda’s favor.

Legal malpractice is a negligence cause of action based on an attorney-client relationship. Stanfield v. Neubaum, 494 S.W.3d 90, 96 n.3 (Tex. 2016)).

Discussing the elements of a legal malpractice claim, the Texas Supreme Court recently restated that “[b]reach and causation are entirely distinct such that ‘an abundance of evidence as to one cannot substitute for a deficiency of evidence as to the other.’ ” Saldana-Fountain, 450 S.W.3d at 918.

In seeking summary judgment, Pineda contends he challenged the expert evidence in support of two elements of the legal malpractice claim: standard of care and causation. In contrast, Border Demolition contends Pineda challenged the standard of care element only, and its expert affidavit sufficiently raised a genuine issue of material fact on that element of the claim. Partly agreeing, Pineda does not challenge the adequacy of Robles’ affidavit in addressing the standard of care element, but rather, he asserts that Border Demolition did not bring forth any evidence on the element of causation. Without expert testimony on causation, Pineda asserts that summary judgment is appropriate. Being the center of the controversy, we turn first to examine the extent to which the no-evidence motion challenged elements of the legal malpractice claim.

A no-evidence motion for summary judgment must state the elements as to which the movant contends there is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).

Here, rather than listing elements being challenged, Pineda’s motion presents nine lines in one paragraph titled “No Expert.” The first two lines are general statements regarding the legal malpractice claim. The first line states, “Border Demolition has no expert testifying that Ernesto Pineda committed legal malpractice.” Then, the second line describes that expert testimony is generally needed to support a legal malpractice claim with citation to two cases provided, Hall v. Rutherford, 911 S.W.2d 422 (Tex.App.—San Antonio 1995, writ denied).

Several lines next address the standard of care element only. For example, the fourth line makes a reference to a pattern jury charge holding an attorney liable for “failing to do that which an attorney of ordinary prudence could have done under the same or similar circumstances or doing that which an attorney of ordinary prudence could not have done under the same or similar circumstances.” Tex.Pat.Jury Charges, Malpractice § 60.1, as modified by Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989). The last line argues, “[u]ndoubtedly, Plaintiff cannot find an attorney willing to testify that a reasonably prudent attorney under these circumstances would have known he had been retained to file an answer in the Reza lawsuit.” Responding to allegations asserted in Border Demolition’s petition, line five asserts “[t]here is no expert testimony that the recipient of an email merely notifying an attorney of a lawsuit and that workers’ compensation insurance will handle it would cause an ordinary prudent attorney to take some action.” This sentence is followed by three similar lines of argument as follows:

And, certainly not a transactional/estate planning attorney who had never been hired by that company to handle its litigation. Undoubtedly, Plaintiff cannot find an attorney willing to testify that a reasonably prudent attorney under these circumstances would have known he had been retained to file an answer in the Reza lawsuit. Both Solises admit Mr. Pineda was not asked to file an answer.

In the last remaining line, the third sentence states, “[t]he standard of care and the consequences of a failure to meet the standard are typically beyond the ken of the average juror.” In his oral argument to this Court, Pineda asserted that this line of his motion challenged the causation element. His brief, however, expressed his causation argument more expansively stating, “Border Demolition presented no expert evidence that it would have prevailed or had a better outcome in the Reza lawsuit *158 had Mr. Pineda either represented it or informed it he would not represent the company.”

Although Id.

Having reviewed Pineda’s motion, we hold that it expressly challenges standard of care by giving Border Demolition adequate information but falls short of challenging the causation element of the malpractice claim. Saldana-Fountain, 450 S.W.3d at 918.

In reaching our conclusion, we recognize that Pineda’s motion cited two cases, 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.). Accordingly, we hold that Pineda’s motion does not sufficiently raise *159 a no evidence issue on the element of causation.

We conclude that Pineda’s no-evidence motion did not conform to the specificity requirement of In re Mohawk Rubber Co., 982 S.W.2d 494, 497 (Tex.App.—Texarkana 1998, no pet.) (defendant’s motion alleged plaintiffs had no evidence of “causation”). We therefore conclude that Pineda’s no-evidence motion for summary judgment did not challenge the causation element of the legal malpractice claim. Accordingly, we sustain Border Demolition’s third issue.

D. Issue Four: Impermissible Fracturing

In Issue Four, Border Demolition asserts Pineda was not entitled to summary judgment based on his assertion that it impermissibly fractured the legal malpractice claim into two other causes of action for breach of fiduciary duty and breach of contract.

“A plaintiff is not limited to suing an attorney only for professional negligence” when other claims are applicable. Deutsch, 97 S.W.3d at 189).

In determining whether a plaintiff has only a claim for legal malpractice or whether he may truly assert other independent claims for relief, we look to the “substance of the claim and not its title[.]” Sledge v. Alsup, 759 S.W.2d 1, 2 (Tex.App.—El Paso 1988, no writ) (noting that regardless of how a plaintiff characterizes his claim, the undertaking to exercise ordinary skill and knowledge constitutes a claim for legal malpractice). Given that Pineda asserts impermissible fracturing of two claims, we will separate our analysis and begin with consideration of the breach of fiduciary duty claim.

Texas courts have long recognized that fiduciary duties are owed by an attorney to a client due to the special nature of the attorney client relationship. See Saldana-Fountain, 450 S.W.3d at 918-19.

In its petition, Border Demolition asserted that Pineda owed it a fiduciary duty as a matter of law and such duty required Pineda to disclose that he had not answered and would not defend the Reza lawsuit. On appeal, Border Demolition similarly argues that Pineda breached a fiduciary duty by failing to disclose that he did not take any action to represent Border Demolition in Reza’s lawsuit. Border Demolition relies on Anglo-Dutch Petroleum Int’l, Inc. v. Greenberg Peden, P.C., 352 S.W.3d 445, 450 (Tex. 2011).

Importantly, Texas courts consistently hold that an attorney’s failure to make such a disclosure is considered a breach of the lawyer’s professional duties. Standing alone, however, such allegations do not support an independent claim for breach of fiduciary duty. See, e.g., Goffney, 56 S.W.3d at 193-94 (reversing judgment in favor of plaintiff on claim for breach of fiduciary duty, where plaintiff alleged that an attorney misled him into believing he had properly prepared his case for trial, where plaintiff failed to allege any claims of self-dealing or deception).

Here, Border Demolition failed to allege in its petition that Pineda engaged in any self-dealing or that Pineda improperly benefitted from his actions or inactions regarding the Reza lawsuit. Instead, Border Demolition made virtually identical factual allegations in support of both its legal malpractice claim and its claim for breach of fiduciary duty. Both claims allege that *161 Pineda failed to timely answer the Reza lawsuit and otherwise defend and protect Border Demolition’s interests. Although these allegations support a claim for legal malpractice, they do not additionally support a distinct claim for breach of fiduciary duty. Thus, we find that bringing these allegations as separate claims constitutes impermissible fracturing. See generally Klein v. Reynolds, Cunningham, Peterson & Cordell, 923 S.W.2d 45, 49 (Tex.App.—Houston [1st Dist.] 1995, no writ), as clarified on denial of reh’g (Nov. 30, 1995) (where plaintiff laid out an identical list of alleged acts and omissions in his claims for legal malpractice and breach of fiduciary duty, the trial court properly dismissed all but his claim for legal malpractice).

In conclusion, when a corporate plaintiff alleges only that an attorney failed to take certain actions to protect its interests in a case, or otherwise failed to provide proper representation—but makes no allegation that the attorney engaged in any self-dealing or that the attorney received an improper benefit from his or her actions—the action sounds solely in professional negligence, rather than in breach of fiduciary duty. See Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex.App.—Houston [1st Dist.] 1998, pet. denied). Because Border Demolition’s claim for breach of fiduciary duty centers solely on Pineda’s failure to adequately perform his legal duties, his failure to disclose that he did not perform those duties sounds solely in professional negligence, and the trial court did not err in granting Pineda’s motion for summary judgment on the breach of fiduciary duty claim.

As for the breach of contract cause of action, Border Demolition argues the evidence supports a finding that Border Demolition entered an implied agreement with Pineda to provide representation in the Reza lawsuit, and that Pineda breached this implied agreement by failing to answer the lawsuit. Border Demolition contends that there is a “difference between failing to do what one has agreed to do, and failing to meet the standard of care required of a reasonably prudent attorney.”

As recognized by the Texas Supreme Court, a claim that an attorney failed to provide legal services as agreed upon by the parties is a claim for negligence sounding in tort law. Klein, 923 S.W.2d at 49.

Here, similar to the breach of fiduciary duty claim, Border Demolition’s factual allegations regarding its breach of contract claim centers solely on Pineda’s failure to represent Border Demolition in the Reza lawsuit, a failure of adequate representation in the Reza lawsuit, or both. Those allegations support a claim for legal malpractice only and Border Demolition may not recast its malpractice claim into a separate claim for breach of contract. Because we conclude that Border Demolition’s claim sounds solely in professional negligence, the trial court did not err by granting Pineda’s motion for summary judgment on the breach of fiduciary duty claim or the breach of contract claim. Thus, we overrule Border Demolition’s fourth issue.

III. CONCLUSION

We affirm that portion of the trial court’s order granting summary judgment as to Border Demolition’s claims for breach of fiduciary duty and breach of contract. We reverse the trial court’s order granting summary judgment on Border Demolition’s claim for legal malpractice, and remand the matter for further proceedings in accordance with our opinion.

Larsen, J. (Senior Judge), sitting by assignment

Footnotes

1

We take the facts from the evidence the parties presented in support of their summary judgment pleadings, identifying disputes in the evidence where they exist, and recognizing that the facts have not yet been adjudicated.

2

The record does not contain a copy of Reza’s workers’ compensation claim. Moreover, there is no indication of when the claim was filed, if at all, when the Solises became aware of it, or how it was resolved.

3

Raul Solis also stated that it was during this conversation with Pineda that he learned Reza had been a tenant of Pineda at the time Pineda recommended Reza’s employment. Pineda, however, claimed that he disclosed his landlord-tenant relationship to the Solises shortly after they hired Reza in 2007.

4

Shortly thereafter, in August of 2009, Pineda evicted Reza from his home for non-payment of rent, and obtained a judgment against Reza for approximately $4,200. According to Pineda, however, he never collected on that judgment.

5

This general issue is sometimes referred to as a Malooly Bros., Inc. v. Napier, 461 S.W.2d 119, 121 (Tex. 1970)).

6

Pineda also cites Id. at 148. As Border Demolition alleges the existence of an implied attorney-client relationship, it was not necessary for Border Demolition to plead any allegations of fraud, deception, or collusion in order to establish that Pineda owed it a duty.

7

We note that courts have found an independent cause of action based on breach of contract against an attorney for “excessive legal fees.” See, e.g., Jampole v. Matthews, 857 S.W.2d 57, 61 (Tex.App.—Houston [1st Dist.] 1993, writ denied) (distinguishing a client’s breach of contract claim relating to excessive fees). In the present case, however, Border Demolition makes no claim that it had any fee dispute with Pineda.

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