Christine Finger v. Hugh M. Ray, III and Weycer, Kaplan Pulaski & Zuber, P.C.

Opinion issued August 5, 2010

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-09-00404-CV

———————————

Christine Finger , Appellant

V.

Hugh M. Ray,

III and Weycer, Kaplan,

Pulaski, and Zuber, P.C. , Appellees

On Appeal from the 151st District Court

Harris County, Texas

Trial Court Case No. 2007-71210

DISSENTING OPINION

The

majority errs in holding that appellant, Christine Finger, needed expert

testimony to prove the causal connection between the alleged misrepresentations

made to her by appellee, Hugh M. Ray, III, and her loss of $23,500, the amount

she seeks in restitution for attorney’s fees that she paid to Ray and his law

firm based on the alleged misrepresentations.

Finger is not seeking damages for what she would have recovered due to

Ray’s negligence in representing her. Rather,

as she notes, “it is crystal clear that the economic damages sought by [her]

[are] in the nature of restitution for the loss of her fees paid to Ray and

appellee, Weycer, Kaplan, Pulaski, and

Zuber, P.C. (collectively “Ray”), . . .

because of intentional false representation[s] made to her by Ray . . .

.”

I would hold that Finger’s claims

are independent of a claim for legal malpractice and require no expert

testimony to raise a fact issue on causation.

The majority errs in holding to the contrary. Accordingly, I dissent.

Background

Finger obtained a judgment against David Reitman for $29,495

in damages and $1,200 in attorney’s fees in settlement of a breach of contract

claim against him. Reitman then filed

for bankruptcy protection. Finger hired

Ray to represent her during the process of collecting her judgment from Reitman

and in any potential bankruptcy litigation.

Finger hired Ray based upon his

“express representations . . . that he would collect [her] judgment through

state court collection methods that would also provide [her] with attorneys

fees and costs of pursuit and collection[;] . . . the judgment that [she]

possessed was based upon fraud by Mr. Reitman[;] . . . if Mr. Reitman filed

personal bankruptcy then he, Mr. Ray, would file an action in the bankruptcy

court to except [her] claim out of the bankruptcy[;] and . . . [Ray] would

further proceed with the collection outside of any bankruptcy proceeding.” Ray did not file a “section 523 action” to

remove Reitman’s debt to Finger from discharge. [1] Rather, he filed a “section 727 action” to

bar Reitman’s bankruptcy discharge. [2] Ultimately, the bankruptcy court approved a

settlement between Finger and Reitman for $40,700. Finger then paid $23,500 to Ray for fees and

expenses, and she retained $17,200 from the settlement.

Finger, in her original petition, sued Ray for legal

malpractice, breach of fiduciary duties, breach of contract, and violations of

the Texas Deceptive Trade Practices Act (“DTPA”), [3]

which she alleged were based on Ray’s false representations to her that he

would take certain steps to collect her judgment against Reitman. Finger alleged that these representations

induced her to hire Ray and his firm, and Ray billed and collected excessive

and unreasonable attorney’s fees from her. Finger sought as damages the attorney’s fees

and expenses that she had paid to Ray, $225,000 in mental anguish damages, an equitable

fee forfeiture, a declaration that Ray breached the employment contract, and

attorney’s fees. However, in her second

amended petition, Finger dropped her legal malpractice and breach of contract

claims after Ray filed his summary judgment motion.

Standard of Review

To prevail

on a summary judgment motion, a movant has the burden of proving that he is

entitled to judgment as a matter of law and that there is no genuine issue of

material fact. Tex. R. Civ. P . 166a(c); Cathey

v. Booth , 900 S.W.2d 339, 341 (Tex. 1995). When a defendant moves for summary judgment, he

must either (1) disprove at least one essential element of the plaintiff’s

cause of action or (2) plead and conclusively establish each essential element

of his affirmative defense, thereby defeating the plaintiff’s cause of action. Cathey ,

900 S.W.2d at 341 ; Yazdchi v. Bank One,

Tex., N.A. , 177 S.W.3d 399, 404 (Tex. App. — Houston [1st Dist.] 2005, pet. denied).

A defendant moving for a no-evidence summary judgment must allege that

there is no evidence of an essential element of the non-movant’s cause of

action. Tex. R. Civ. P. 166a(i); Fort

Worth Osteopathic Hosp., Inc. v. Reese , 148 S.W.3d 94, 99 (Tex. 2004). The non-movant must then produce “more than a

scintilla of evidence” to create a genuine issue of material fact on the

challenged elements. Ford Motor Co. v. Ridgway , 135 S.W.3d

598, 600 (Tex. 2004). When deciding whether there is a disputed, material fact

issue precluding summary judgment, evidence favorable to the non-movant will be

taken as true . Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546 , 548–49 (Tex. 1985). Every reasonable inference must be indulged in favor

of the non-movant and any doubts must be resolved in her favor. Id .

at 549.

Causation Evidence

In her sole issue, Finger argues that

the trial court erred in rendering summary judgment in favor of Ray because

Texas law does not require expert testimony regarding a causal connection

between an alleged misrepresentation and out-of-pocket damages for money paid

in reliance upon the misrepresentation.

She asserts that her DTPA and breach of fiduciary duty claims are not

“fractures” of a professional negligence claim.

Rather, they are separate and independent claims based not on Ray’s

legal representation of her but on his misrepresentations that induced her to

hire him. In effect, she asserts that

she was induced into hiring Ray for services she did not want or need.

Finger’s Claims

Attorneys owe a duty to their clients

to act with ordinary care, and “[c]omplaints about an attorney’s care, skill,

or diligence in representing a client implicate this duty of ordinary care and

sound in negligence.” Beck v. Law Offices of Edwin J. (Ted) Terry,

Jr., P.C. , 284 S.W.3d 416, 426 (Tex. App.—Austin 2009, no pet.). A lawyer “can commit professional negligence

by giving an erroneous legal opinion or erroneous advice, 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.” Murphy

v. Gruber , 241 S.W.3d 689, 693 (Tex. App.—Dallas 2007, pet. denied). Such claims for negligence may not be

fractured into separate non-negligence claims, such as breach of fiduciary duty

or DTPA claims because “the real issue remains one of whether the professional

exercised that degree of care, skill, and diligence that professionals of

ordinary skill and knowledge commonly possess and exercise.” Kimleco

Petroleum, Inc. v. Morrison & Shelton , 91 S.W.3d 921, 924 (Tex.

App.—Fort Worth 2002, pet. denied) (citing Averitt

v. PriceWaterhouseCoopers L.L.P. , 89 S.W.3d 330, 334 (Tex. App.—Fort Worth

2002, no pet.)).

However, the rule against fracturing

professional negligence claims does not preclude a client from simultaneously

asserting both negligence and non-negligence claims that arise out of common

facts. Beck , 284 S.W.3d at 427 (citing Deutsch

v. Hoover, Bax & Slovacek, L.L.P. , 97 S.W.3d 179, 189 (Tex.

App.—Houston [14th Dist.] 2002, no pet.)).

To do so, the client must “present a claim that goes beyond what

traditionally has been characterized as legal malpractice,” and not “merely

reassert the same claim for legal malpractice under an alternative label.” Duerr v.

Brown , 262 S.W.3d 63, 70 (Tex. App.—Houston [14th Dist.] 2008, no pet.). Whether a claim is a claim for professional

negligence is a question of law, and we are not bound by the labels the parties

place on the claims. Beck , 284 S.W.3d at 427–428. Regardless of the pleaded theory, if the crux

of the complaint is that a plaintiff’s attorney did not provide adequate legal

representation, the claim is one for legal malpractice. Kimleco

Petroleum , 91 S.W.3d at 924 . Courts

are to focus on whether “the facts that are the basis for an asserted cause of

action implicate only the lawyer’s duty of care or independently actionable

fiduciary, statutory, contractual, or other tort duties.” Beck ,

284 S.W.3d at 428 ; see also Deutsch ,

97 S.W.3d at 189–90 (if client’s complaint more appropriately classified as

fraud, DTPA, breach of fiduciary duty, or breach of contract, then client can

assert claim other than professional negligence).

DTPA Violations

In her second amended petition, Finger alleges that during

Ray’s representation of her, he “committed breaches of fiduciary duties and

violated [section] 17.46(b)(5)(7)(12) and (24) and [section] 17.50(a)(3)”

of the DTPA by knowingly and intentionally (1) falsely representing to Finger

that he would except her judgment against Reitman from Reitman’s bankruptcy; (2)

falsely representing to Finger that he would seize Reitman’s property

separately from the bankruptcy proceeding to satisfy the judgment; (3) falsely

representing to Finger that he would file a Section 523 action to except

Finger’s judgment from discharge; (4) failing to disclose that he would not

file an action to except Finger’s judgment from Reitman’s discharge to induce her

into employing Ray, which she would not have done if Ray had disclosed that he

would not file a Section 523 action; and (5) billing and collecting excessive

and unreasonable fees because his services were worthless and obtained under

false pretenses.

In determining whether a claim is merely one for professional

negligence or one for DTPA violations, we consider the “difference between

negligent conduct and deceptive conduct.”

Latham v. Castillo , 972 S.W.2d

66, 69 (Tex. 1998). Finger’s allegations

against Ray go beyond mere negligence, and instead involve deception and

misrepresentations made to secure employment.

See Trousdale v. Henry , 261

S.W.3d 221, 232 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); see also Tolpo v. DeCordova , 146 S.W.3d

678, 685 (Tex. App.—Beaumont 2004, no pet.) (per curiam) (plaintiff’s failure

to contend that defendant-attorney knowingly excluded required contract term or

affirmatively misrepresented effect of contract did not support independent DTPA

claim, separate from plaintiff’s legal malpractice claim).

In Aiken v. Hancock ,

the San Antonio Court of Appeals distinguished between deceptive and negligent

conduct. 115 S.W.3d 26, 29 (Tex.

App.—San Antonio 2003, pet. denied). The

plaintiff alleged that his attorney (1) falsely represented that he was

prepared to try the plaintiff’s case, (2) failed to reveal that he was not

prepared to try the case, (3) falsely represented that an expert witness was

prepared to testify, and (4) failed to reveal that the expert witness was not

so prepared. Id . The court concluded that

this conduct was “conceivably negligent,” but not deceptive, and therefore the

plaintiff’s allegations did not support an independent DTPA claim. Id.

Here, however, Finger alleges that, to induce her into

employing his firm, Ray willfully made misrepresentations to her regarding the

actions that he would take to collect her judgment against Reitman. The gist of Finger’s complaints against Ray

is not that he gave her bad legal advice or did not adequately represent her,

but that he deceived her into unnecessarily hiring him. See

Kimleco Petroleum , 91 S.W.3d at 924 ; Greathouse

v. McConnell , 982 S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet.

denied). Finger has not alleged that Ray

negligently informed her that her judgment against Reitman could be excepted

from the bankruptcy discharge, but she instead alleges and presented some

evidence that Ray made affirmative misrepresentations and engaged in deceptive

conduct to induce Finger into hiring him. [4] See

Latham , 972 S.W.2d at 69 (had plaintiffs alleged that defendant “negligently

failed to timely file their claim” and not that he had affirmatively

misrepresented that he had filed and was pursuing claim, then claim would

properly be one for legal malpractice).

Ray argues that he cannot be held

liable for any representations he made based upon his “professional judgment”

because his conduct falls within the “professional services exemption” to the

DTPA. The Texas Legislature has specifically

provided that the DTPA does not apply to “a claim for damages based upon the

rendering of professional service, the essence of which is the providing of

advice, judgment, opinion, or similar professional skill.” Tex.

Bus. & Com. Code Ann. § 17.49(c) (Vernon Supp. 2009). Ray, however, raised the professional

services exemption in his no-evidence motion for summary judgment, stating that

legal services fall within the exemption.

No-evidence summary judgment is only appropriate for essential elements

of a claim or defense upon which the adverse party bears the burden of proof at

trial. Tex.

R. Civ. P. 166a(i). The

professional services exemption from DTPA liability “is properly characterized

as an affirmative defense that must be pleaded because it is a plea of

confession and avoidance.” Head v. US Inspect DFW, Inc. , 159 S.W.3d

731, 740 (Tex. App.—Fort Worth 2005, pet. denied); Cole v. Central Valley Chemicals, Inc. , 9 S.W.3d 207, 210 (Tex.

App.—San Antonio 1999, pet. denied). As

an affirmative defense, Ray bore the burden to prove that his services fell

within the section 17.49(c) exemption, and, thus, he could not move for

no-evidence summary judgment on this ground.

Section 17.49(c) also includes several exceptions to the exemption,

three of which involve express misrepresentations of material facts and

unconscionable actions that cannot be characterized as advice, judgment or

opinion, and failure to disclose information in violation of section

17.46(b)(24). See Tex. Bus. & Com.

Code Ann. § 17.49(c)(1)–(3).

Because Ray did not establish as a matter of law that his alleged

misrepresentations did not fall within the exceptions to the professional

services exemption, he is not entitled to summary judgment on the basis of this

exemption. See Gibson v. Ellis , 58 S.W.3d 818, 826 (Tex. App.—Dallas 2001, no

pet.) (where defendant did not address misrepresentations alleged in plaintiff’s

DTPA claim, defendant did not establish as matter of law that representations did

not fall within section 17.49(c) exceptions).

I would, therefore, hold that Finger has sufficiently alleged a claim

for violations of the DTPA independent from a claim of legal malpractice. [5]

Breach of Fiduciary Duty

In addition to the duty to act with ordinary care, attorneys

also owe fiduciary duties to their clients.

Willis v. Maverick , 760 S.W.2d

642, 645 (Tex. 1988). The attorney-client

relationship “is one for the most abundant good faith, requiring absolute

perfect candor, openness and honesty, and the absence of any concealment or

deception.” Goffney v. Rabson , 56 S.W.3d 186, 193 (Tex. App.—Houston [14th

Dist.] 2001, pet. denied). In

representing a client, an attorney must “render a full and fair disclosure of

facts material to the client’s representation.”

Beck , 284 S.W.3d at 429 (quoting

Willis , 760 S.W.2d at 645 ). Thus, a professional negligence claim focuses

on “whether an attorney represented a client with the requisite level of

skill,” while a breach of fiduciary duty claim focuses on “whether an attorney

obtained an improper benefit from representing the client.” Beck ,

284 S.W.3d at 429 (quoting Murphy ,

241 S.W.3d at 693 ). A breach of

fiduciary duty “most often involves the attorney’s failure to disclose

conflicts of interest, failure to deliver funds belonging to the client,

placing personal interests over the client’s interests, improper use of client

confidences, taking advantage of the client’s trust, engaging in self-dealing,

and making misrepresentations.” Goffney , 56 S.W.3d at 193 .

In Goffney , the

plaintiff alleged that the defendant abandoned her at trial, did not properly

prepare for trial, and misled her into believing that the case had been

properly prepared. The court held that the

plaintiff’s allegations did not “amount to [allegations of] self-dealing,

deception, or misrepresentations” sufficient to support a separate cause of

action for breach of fiduciary duty.” Id. at 194 . In Beck ,

the plaintiff contended that the law firm’s failure to disclose the attorney’s

substance abuse problems breached the attorneys’ fiduciary duties and resulted

in an improper benefit—the attorney’s fees paid by the plaintiff. See

Beck , 284 S.W.3d at 431, 433 . The court

held that the firm’s expectation of receiving fees from their continued

representation of the plaintiff did not convert what was essentially a

professional negligence claim into a claim for breach of fiduciary duty because

the plaintiff “did not allege that the [firm’s] failure to disclose the

[attorney’s] ‘alcohol and substance abuse addictions’ had anything to do with

the pursuit of attorney’s fees or an improper benefit.” Id.

at 434 ; see also Murphy , 241 S.W.3d

at 699 (holding that plaintiffs did not state independent claim for breach of

fiduciary duty when they did not allege that lawyers deceived them, pursued own

pecuniary interests, or obtained improper benefit by continuing to represent

both clients).

In contrast, Finger alleges that Ray made affirmative

misrepresentations to her and engaged in deceptive conduct to induce her to

hire his firm. Unlike in Beck , where the firm’s receipt of

attorney’s fees for an improper benefit was not the focus of the plaintiff’s

complaint, here, Ray’s receipt of attorney’s fees based on his

misrepresentation is the basis of Finger’s suit. See

Beck , 284 S.W.3d at 433–34. Finger’s

complaint is not ultimately about the quality of representation that she

received, but that Ray’s misrepresentations induced her to unnecessarily hire

an attorney, which she would not have done had Ray not made the

misrepresentations. Accordingly, I would

hold that Finger has sufficiently alleged a claim for breach of fiduciary duty

independent from a claim of legal malpractice.

Expert Testimony Not Required

Because Finger’s claims for DTPA violations and breach of

fiduciary duty are independent of any claims for legal malpractice, expert

testimony is not required to prove causation of her damages, an issue that is

within the common experience of lay persons.

To prevail on a DTPA claim, a plaintiff must prove that a

defendant’s statutory violation is a producing cause of the injury. Tex.

Bus. & Com. Code Ann. § 17.50(a) (Vernon Supp. 2009); Alexander v. Turtur & Assocs., Inc. ,

146 S.W.3d 113, 117 (Tex. 2004); Hoover

v. Larkin , 196 S.W.3d 227, 232 (Tex. App.—Houston [1st Dist.] 2006, pet.

denied) (“A plaintiff may recover all damages, including attorney’s fees, that

are the result of the defendant’s wrongful acts, but the burden remains on the

plaintiff to demonstrate such causation.”).

A plaintiff must establish that an “unbroken causal connection” exists

between the actionable misrepresentation and the plaintiff’s injury. Doe

v. Boys Clubs of Greater Dallas, Inc. , 907 S.W.2d 472, 481 (Tex. 1995).

To prevail on a breach of fiduciary duty claim, a plaintiff

must prove that the defendant’s breach of his fiduciary duties proximately

caused the plaintiff’s damages. Abetter Trucking Co. v. Arizpe , 113

S.W.3d 503, 508 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Both proximate and producing cause encompass

causation in fact, which requires

proof that a defendant’s act or omission was a substantial factor in bringing

about the injury, without which the injury would not have occurred. Prudential

Ins. Co. of Am. v. Jefferson Assocs. , 896 S.W.2d 156, 161 (Tex. 1995); Thomas v. CNC Invs., L.L.P. , 234 S.W.3d

111, 124 (Tex. App.—Houston [1st Dist.] 2007, no pet.). In addition to cause in fact, proximate cause

also requires foreseeability. See Lee Lewis Constr., Inc. v. Harrison ,

70 S.W.3d 778, 785 (Tex. 2001); Thomas ,

234 S.W.3d at 124 .

In a claim for professional negligence arising from prior

litigation, to establish causation, a plaintiff must prove a “suit within a

suit,” i.e., but for the attorney’s breach of his duty, the plaintiff would

have prevailed in the underlying case. Hoover , 196 S.W.3d at 231 . The fact finder must have some basis for

understanding the causal link between the attorney’s negligence and the injury,

and although the client’s lay testimony may provide this link, in some cases

the “connection may be beyond the jury’s common understanding and require expert

testimony.” Alexander , 146 S.W.3d at 119 .

However, as previously discussed, Finger’s claims against Ray are not

merely disguised professional negligence claims, but are independent claims for

breach of fiduciary duty and DTPA violations.

Neither claim requires Finger to prove “suit within a suit”

causation. Latham , 972 S.W.2d at 69 .

In its summary judgment order, the

trial court acknowledged that, generally, expert testimony is not necessary to

prove causation for DTPA and breach of fiduciary duty claims. The trial court then, however, ruled that

Finger did need expert testimony to create a fact issue on causation because

all of her claims are “essentially claims that but for the alleged

misrepresentations by [Ray] about proceeding under section 523 as opposed to

section 727 of the bankruptcy code, [Finger] would have simply filed a claim in

the bankruptcy court and settled her claim with the bankrupt debtor or

otherwise recovered more than she netted based upon [Ray’s] efforts.” According to the trial court, Finger

“required a bankruptcy law expert to create a fact issue on her ability to

have, at a minimum, collected more than what she netted in this case had she

done as she claims she could have and merely ‘filed a claim.’” If Finger had alleged that she could have

collected more than Ray negotiated, given that the bankruptcy judge must

approve all settlements of claims against the debtor, to raise a fact issue on

causation, Finger would indeed have needed testimony about what the bankruptcy

judge would do, which requires expert testimony. See

Alexander , 146 S.W.3d at 119 (decision-maker bankruptcy judge did not

testify regarding how he might have ruled if case had been presented

differently, leaving jury without expert testimony explaining legal significance

of omitted evidence).

Finger, however, did not allege that, had she not hired Ray,

she could have collected more than the $40,700 settlement Ray negotiated with

Reitman or would have netted more than $17,200 in a settlement with

Reitman. Rather, Finger asserts that had

Ray not made affirmative misrepresentations, she would not have hired him at

all, and would not have incurred $23,500 in attorney’s fees. Finger might not have reached a settlement

amount of $40,700 with Reitman without Ray’s assistance, but regardless of what

amount she would ultimately have recovered from Reitman, she would not have

expended $23,500 in attorney’s fees.

In support of her position, Finger relies on Streber v. Hunter , 221 F.3d 701 , 726–27

(5th Cir. 2000) and Delp v. Douglas ,

948 S.W.2d 483 , 495–96 (Tex. App.—Fort Worth 1997), rev’d on other grounds , 987 S.W.2d 879 (Tex. 1999). Ray contends that this case is factually

distinguishable from Streber and Delp . He asserts that the plaintiffs in those cases were

the “decision-makers” whereas here, the “ultimate decision-maker” was the

bankruptcy judge, who would determine whether Finger was entitled to a greater

recovery than the one negotiated with Reitman by Ray. He argues, thus, that expert testimony was

required to prove what the bankruptcy judge could or would do under the

particular facts. See Streber , 221 F.3d at 726–27; Delp , 948 S.W.2d at 495–96.

However, the Texas Supreme Court, in distinguishing both Streber and Delp from the facts before it in Alexander , noted that, in both cases, “because of [the plaintiffs’]

lawyers’ bad advice, [the plaintiffs] made the decision and took the actions

that resulted in their injuries.” Alexander , 146 S.W.3d at 119 . On the other hand, the issue in Alexander involved whether a bankruptcy

judge would have decided the underlying case differently if another lawyer at

the firm had handled the adversary proceeding.

See id. at 118–19. Thus, the bankruptcy judge was the “decision

maker,” and the plaintiff had to produce expert testimony on how the judge

would have ruled had the case been tried with a different attorney. Id.

Here, in contrast, Finger alleges

that in making affirmative misrepresentations about the recovery that could be

obtained and the procedures that Ray would use to obtain that recovery, Ray

induced Finger into hiring him and his firm and paying them $23,500 in

attorney’s fees. Regardless of what

settlement amount the bankruptcy judge would have approved if Finger herself had

negotiated with Reitman, Finger asserts that she would not have hired Ray and

paid $23,500 in fees had the misrepresentations not been made. On her own, Finger might have recovered the

same amount that Ray had negotiated, or even less, but Ray would not have obtained

her money in payment of his attorney’s fees.

Based on Ray’s misrepresentations, Finger made the decision to hire him

instead of proceeding on her own to collect her judgment from Reitman, and this

caused her to incur $23,500 in attorney’s fees to Ray. Like the plaintiffs in Streber and Delp , Finger

was the “key decision maker.”

Because the causal link between Ray’s

alleged misrepresentations and Finger’s alleged injury, her payment of $23,500 to

Ray, is not beyond the common understanding of the jurors, Finger need not

produce expert testimony to raise a fact issue on causation in regard to her

DTPA and breach of fiduciary claims. See Alexander , 146 S.W.3d at 119–20; Streber , 221 F.3d at 726–27; Delp , 948 S.W.2d at 495–96.

Finger’s Lay Testimony

Finally, within her sole issue,

Finger further argues that the trial court erred in sustaining Ray’s objections

to her affidavit testimony, which created a material fact issue on the element

of causation. Ray made five objections

to various statements in Finger’s affidavit. [6] He objected on hearsay and speculation

grounds to Finger’s assertion that, upon Reitman’s bankruptcy, “[she] would

have simply filed [her] claim with the bankruptcy court and negotiated with Mr.

Reitman on the settlement that [she] knew he would make, based upon

conversations with him, and would not have paid Mr. Ray and his law firm from

[her] own funds the sum of $23,500.” The

trial court sustained these objections. Ray

also objected to Finger’s statement that she would have been able to achieve

the same settlement without paying $23,500 to Ray as speculative, conclusory,

hearsay, and not based on personal knowledge.

He also asserted that Finger, in her affidavit, did not affirmatively

indicate that she is competent to testify on this matter. The trial court also sustained these

objections.

Regardless, Ray only objected to

select statements made by Finger in her affidavit. Ray did not object to Finger’s testimony that

he misrepresented the actions he would pursue in collecting her judgment

against Reitman or her testimony that, but for his express misrepresentations,

she would not have hired him and paid $23,500 in attorney’s fees. Ray also did not object to Finger’s testimony that

his representations were “false, serious, and willfully made” or that, although

he could have “easily checked with the state court file to determine whether

[Finger] was eligible for an action to take [her] judgment out of personal

bankruptcy of Mr. Reitman,” he did not do so, “but instead made the representations

that caused [Finger] to pay him and his law firm $23,500.” Even excluding Finger’s testimony on which the

trial court sustained Ray’s objections, the remainder of Finger’s testimony is

sufficient to raise a genuine issue of material fact on the question of

causation.

Conclusion

I would hold that Finger has,

independent of any claim for legal malpractice, alleged claims for breach of

fiduciary duty and under DTPA sections 17.46(b)(24) and 17.50(a)(3), which do

not require expert testimony on the issue of causation. Accordingly, I would sustain Finger’s sole

issue and remand the case to the trial court.

Terry

Jennings

Justice

Panel

consists of Justices Jennings, Hanks, and Bland.

Justice

Jennings dissenting.

[1] See 11 U.S.C. § 523 (2006).

[2] See 11 U.S.C. § 727 (2006).

[3] See

Tex. Bus. & Com. Code Ann. §§

17.46, 17.50 (Vernon Supp. 2009).

[4]

In its order granting and

denying Ray’s summary judgment in part, the trial court found that “there is at

least a scintilla of evidence as to whether Defendants made a misrepresentation

to Plaintiff.” Ray does not cross-appeal

this ruling.

[5]

Finger alleges that Ray violated

five different sections of the DTPA, including section 17.46(b)(5), which

prohibits the representation of services as one quality when they are really of

another. The Fourteenth Court of Appeals

has previously held that alleging a violation of this section of the DTPA is a

“recast claim for legal malpractice.” See Goffney v. Rabson , 56 S.W.3d 186,

192 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). Sections 17.46(b)(7) and (12) prohibit

similar representations. See Tex.

Bus. & Com. Code Ann. §§ 17.46(b)(7), (12).

[6] Although

the trial court sustained four of Ray’s five objections, Finger only challenges

two of those rulings on appeal.