Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00635-CV

Gary Beck; Law Insurance Agency f/k/a The G. Beck Company d/b/a The Beck Company;

The Beck Benefits Company; and John Mueller’s Barbecue, Inc., Appellants

v.

The Law Offices of Edwin J. (Ted) Terry, Jr., P.C.; John Ott, as Representative of the

Estate of Edwin J. (Ted) Terry, Jr., deceased; James A. Vaught; and Karl E. Hays,

Appellees

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT

NO. D-1-GN-04-002126, HONORABLE STEPHEN YELENOSKY, JUDGE PRESIDING

OPINION

Appellants, Gary G. Beck; Law Insurance Agency f/k/a The G. Beck Company d/b/a

The Beck Company; The Beck Benefits Company; and John Mueller’s Barbecue, Inc., appeal a

district court judgment that they take nothing on claims against appellees, The Law Offices of

Edwin J. (Ted) Terry, Jr. P.C.; John Ott, as Representative of the Estate of Edwin J. (Ted) Terry, Jr.,

Deceased; James A. Vaught; and Karl E. Hays. We will affirm the judgment.

BACKGROUND

This appeal arises from a suit brought by a client against attorneys who had

represented him in a divorce. After seventeen years of marriage, Ruth Ann Beck filed for divorce

against appellant, Gary G. Beck, in November 2000. The sole contested issue in the divorce

concerned the property division; there were no children of the marriage. After initially retaining

a Dallas-area family law firm, Beck eventually hired the late Edwin J. (Ted) Terry, an Austin-

based family law attorney, in September or October 2001. At the time, Terry practiced in a sole

proprietorship known as The Law Offices of Edwin J. (Ted) Terry. Appellees James A. Vaught

and Karl E. Hays are family law attorneys who were then associates (employees) of Terry. Terry,

Vaught, and Hays (collectively, the “Terry Defendants”) were board-certified in family law by the

Texas Board of Legal Specialization.1 Beck and Terry executed a “Legal Services Contract” wherein

they agreed that, among other terms, Terry would be the attorney-in-charge of Beck’s case but that

Hays and Vaught might also perform work on the matter.

A central issue in the divorce litigation concerned the characterization of assets

and stock of three Texas corporations that were wholly owned, directly or indirectly, by Beck. Beck

was the sole shareholder in Beck Benefits Company, which he had formed in 1987. Beck Benefits

Company, in turn, was the sole shareholder in G. Beck Company, which he also had formed in 1987.

Beck was president of both corporations, and through them he conducted a risk management or

insurance consulting business. As Ms. Beck emphasized at trial, Beck’s work included testifying

as an expert witness in over one hundred court cases. Beck also traded or invested in real estate

through the two corporations. At the time of the divorce, the entities held title to several parcels of

1

Additionally, Vaught and Hays were each board-certified in civil appellate law, and Hays

was board-certified in civil trial law.

2

real property in Austin. Beck had also formed John Mueller’s Barbecue, Inc., which operated a

restaurant and held real property and other assets. The value of the assets Beck held through the

three corporations greatly exceeded the value of assets that Mr. Beck, Ms. Beck, or both held in

their own names.

Beck claimed that when he first consulted with Terry about the representation,

Beck expressed his desire to obtain a summary judgment that his stock in his wholly-owned

corporations was his separate property. Because most of his assets were held through the

corporations, Beck perceived such a ruling would lead Ms. Beck’s counsel to “fold her tent . . .

because she would see that there’s no big pile of money at the rainbow.” The Terry Defendants, on

Beck’s behalf, subsequently filed a motion for summary judgment that his stock in Beck Benefits

Company and G. Beck Company should be characterized as his separate property. Although Beck

had formed both of the corporations during the marriage, Beck relied on a theory, originally devised

by an expert hired by his prior divorce counsel, that his ownership interests could be traced back

to separate property interests he had held in Beck Benefits Company’s corporate predecessors.

Ms. Beck filed a response attacking Beck’s tracing theory, as well as a cross-motion for summary

judgment that Beck’s stock was instead properly characterized as a community asset. Ms. Beck

further argued in her response that the evidence presented a fact issue as to whether the corporate

forms should be disregarded under an alter-ego or corporate veil-piercing theory. See Castleberry

v. Branscum, 721 S.W.2d 270, 271 (Tex. 1986); Zisblatt v. Zisblatt, 693 S.W.2d 944, 953

(Tex. App.—Fort Worth 1985, writ dism’d). In support, Ms. Beck presented evidence that Mr. Beck

had run approximately $650,000 in personal expenses through the corporations since 1990, had

3

commingled personal and corporate assets, and had diverted community assets and opportunities to

the corporations. The district court denied both motions.

A mediation was scheduled for February 4, 2002. A few days beforehand, Ms. Beck

filed an amended petition adding Beck Benefits Company and G. Beck Company as defendants

and asserting claims for alter ego, fraud on the community, and reimbursement. The mediation

proceeded as scheduled. Terry attended the mediation with Beck, and was the sole attorney advising

him there. The parties negotiated the property division into the evening hours and resumed the

following morning, with Hays joining Terry in assisting with the negotiations. The parties eventually

reached a settlement that day.

Beck agreed to a 57-43 percent division of the marital property. Of significance to

this appeal, Beck and his counsel acquiesced in including his corporations’ stock and their assets

in the property the parties negotiated to divide, in effect conceding for purposes of settlement that

both the corporations’ stock and their assets were community property. It was agreed that Ms. Beck

would receive certain bank account balances and other financial assets previously held by the

corporations. Beck retained ownership of both the corporate stock and the corporate-held real estate

assets, as he had desired. Because the value of these assets caused Beck’s share of the property

being divided to exceed the agreed-upon forty-three percent, it was agreed that he would execute an

owelty note in Ms. Beck’s favor in the amount of the excess—approximately $516,000—plus

interest. It was further agreed that Beck would cause his corporations to consent to a lien on all of

the real property they held to secure the entire amount of the indebtedness. The parties also agreed

that Beck would secure confirmations from the superior lienholders on the corporate-held properties

4

that the additional lien was not prohibited and would not trigger an event of default. To protect

Ms. Beck’s interest in the event Beck did not obtain the confirmations or consents, it was agreed that

she would hold the stock certificates until the additional lien was perfected.

The parties memorialized their agreement in a “Mediated Settlement Agreement”

under section 6.602 of the family code. See Tex. Fam. Code Ann. § 6.602 (West 2006). The

Mediated Settlement Agreement provided, “THIS AGREEMENT IS NOT SUBJECT TO

REVOCATION,” and that, “The parties and their attorneys recognize that this provision means

that either party is entitled to judgment on this Mediated Settlement Agreement as a matter

of law.” (Emphases in original). See id. § 6.602(b)(1) (“A mediated settlement agreement is

binding on the parties if the agreement: . . . provides, in a prominently displayed statement that is in

boldfaced type or capital letters or underlined, that the agreement is not subject to revocation”).

Beck signed the agreement in both his individual capacity and as president of G. Beck Company

and Beck Benefits Company. See id. § 6.602(b)(2) (also requiring signature of each party to the

settlement agreement). Terry signed the agreement as “Attorney for Gary Gene Beck.” See id.

§ 6.602(b)(3) (also requiring signatures of attorneys for each party).

Later that day, the parties proved up the divorce and Mediated Settlement Agreement

before the district court. Beck testified that he understood the entire deal memorialized in the

Mediated Settlement Agreement, that he was compromising claims he had previously made that his

businesses and other entities were his separate property,2 that he was obligating his corporations to

perform acts to effectuate the Mediated Settlement Agreement’s terms, that Ms. Beck was receiving

2

As Beck put it, “I think that agreement effectively moots all of those claims.”

5

certain corporate-held financial assets that day, and that he could have gone to trial and obtained

either a better or worse outcome than that to which he had agreed. Following his examination, the

district court further inquired of Beck:

If I pronounce this today, it is effective today. The decree will then be presented in

accordance with this, but you cannot go change any terms and conditions. And

anything that you’ve submitted, then this will overrule. You can’t change it just

because you don’t like it, or you get mad at each other. So you still want me to go

and enter this, Mr. Beck?

Beck responded, “I do.” Based on the evidence, the district court rendered judgment granting the

divorce, approving the Mediated Settlement Agreement, and dividing the property as the parties

had agreed.

Finalizing the divorce decree and ancillary documents proved to be a lengthy and

contentious process. In the aftermath of the settlement, Beck testified that he consulted with an

accountant and, at her suggestion, a corporate and tax lawyer, and determined that the settlement’s

structure was “unworkable” due to its impact on the corporations. During the months that followed,

Beck, primarily with the assistance of Hays, attempted to raise a number of issues as to both

the form and substance of the divorce decree and the ancillary documents.3 Beck testified that—

3

Among Beck’s concerns was that at least one of the corporations would be rendered

insolvent by the additional lien because the amount of the indebtedness secured by the lien would

exceed the value of the corporation’s assets, and that the encumbrance would prevent him from

selling the properties or obtaining financing. Another issue related to the tax implications of

“awarding” him the corporate assets. That issue was ultimately settled by the parties.

Beck also claimed that while he had initially succeeded in obtaining consent to the second

liens from the superior lienholders, the superior lienholders had subsequently “change[d] their mind”

and revoked that consent, presenting the risk that the attachment of the additional lien would

constitute an event of default. Hays advocated this position on Beck’s behalf at several hearings over

6

notwithstanding the language of the Mediated Settlement Agreement, his testimony at the prove-up

hearing, and his sophistication and experience as an expert witness and insurance consultant—he

“did not understand the agreement at the time. Certainly didn’t know it was irrevocable.” In April,

Beck and Hays were sanctioned for failing to meet deadlines under the Mediated Settlement

Agreement for commenting on opposing counsel’s drafts of the final divorce decree and ancillary

documents.4 The disputes were initially arbitrated, as the Mediated Settlement Agreement had

provided, but ultimately were resolved by the district court, which signed the final divorce decree

on May 17, 2002.5 Thereafter, Beck admitted he “resisted and refused” signing the ancillary

documents. (In fact, after the final divorce decree was signed, Beck caused one of the properties

subject to the lien to be sold.) Ultimately, on June 15, Beck reluctantly signed the ancillary

document under threat of arrest after opposing counsel filed a motion for emergency relief and

for sanctions.

In July 2004, Beck sued the law firm he had initially hired to represent him in his

divorce, as well as two of their lawyers, pleading causes of action for professional negligence, breach

of fiduciary duty, DTPA violations,6 and breach of contract. These claims were later settled and

the ensuing months and, based on that understanding, filed an appeal from the divorce decree. Hays

thereafter determined that Beck’s assertions about the superior lienholders’ revocations of consent

had been false. Hays obtained Beck’s permission to advise the district court of the inaccurate

information, and did so on June 12. Tex. Disc. R. Prof. Resp. 3.03. Beck thereafter dismissed

his appeal.

4

Hays testified that the firm credited Beck’s bill for the sanctions amount.

5

Hays testified that the district court accepted some of the Terry Defendants’s proposed

changes and rejected others.

6

See Tex. Bus. & Com. Code Ann. §§ 17.46, .50 (West Supp. 2008).

7

are not at issue in this appeal. In August, Beck amended his petition to add causes of action for

professional negligence, breach of fiduciary duty, DTPA violations, and breach of contract against

the Terry Defendants and The Law Offices of Edwin J. (Ted) Terry, Jr., P.C., an entity Terry had

formed during the intervening years (collectively, “appellees”). Beck’s wholly-owned corporations

also joined the suit as plaintiffs and asserted the same causes of action against appellees. Appellants’

central complaint was that the Terry Defendants advised or permitted Beck to include his

corporations’ stock and their assets in the property division under the Mediated Settlement

Agreement, causing injury to the corporations.

Both in the district court and on appeal, appellants have attempted to rely primarily

upon factual allegations that Terry “suffered from alcoholism and substance abuse while he was

representing Gary Beck in the above-described divorce action.”7 Specifically, appellants alleged that

“Terry’s alcohol and substance abuse addictions caused or contributed to the Terry Defendants’

failure to exercise a reasonabl[e] standard of care when providing legal services.” They further pled

that “all of the Terry Defendants knew of Ted Terry’s alcohol and substance abuse problems,” failed

to disclose these problems to Beck, and that this failure violated the Terry Defendants’ duties of

ordinary care, fiduciary duties, and the DTPA.

Also of relevance to this appeal, appellants pled that the Terry Defendants failed

to advise Beck about or “disclose” a “conflict of interest” between Beck’s personal interests and

those of his corporations. Appellants pled these allegations as an additional basis for their

7

In fact, during his deposition, Beck acknowledged that his decision to sue Terry was

“solidified” when he heard at a family law practitioners’ event that Terry “had an impairment issue.”

8

negligence, breach-of-fiduciary-duty, and DTPA claims. Finally, Beck pled a breach-of-contract

claim predicated upon allegations that the Legal Services Contract contained a binding, enforceable

promise by the Terry Defendants not to advise Beck to enter into a divorce settlement without first

agreeing to the language of the final divorce decree. Beck pled that the Terry Defendants “breached

this promise and had [Beck] enter into a mediated settlement agreement on February 5, 2002, which

was a producing cause of Plaintiff’s damages.”

Appellees moved for traditional summary judgment on three grounds: (1) the claims

that appellants pled for breach of fiduciary duty, DTPA violations, and breach of contract were

mere components of a “fractured” professional negligence claim; (2) the Legal Services Contract

provision made the basis for Beck’s breach-of-contract claim was not an enforceable promise;

and (3) appellants’ DTPA and professional negligence claims were barred by limitations. Appellees

filed a response with evidence. This evidence included summary-judgment proof going to whether

Terry, in fact, had “alcohol and substance abuse addictions” during the period in which the Terry

Defendants had represented Beck. The district court granted summary judgment as to the breach-of-

fiduciary-duty, DTPA, and breach-of-contract claims without stating the grounds. It expressly

denied summary judgment as to the professional negligence claim.

The case proceeded to jury trial on appellants’ professional negligence claim.8

Appellants again attempted to interject the issue of alleged alcohol or drug use by Terry into the

proceeding. They sought to introduce evidence they had obtained in discovery since the summary-

judgment ruling, including medical records from an Arizona rehabilitation center, Sierra Tucson,

8

Prior to trial, Terry died. His estate, through its representative, John Ott, was substituted

as a party. See Tex. R. Civ. P. 152.

9

where Terry had been treated for an alcohol problem in September and October 2002. The

district court excluded this evidence in its entirety under rule of evidence 403.

The district court granted a directed verdict as to appellants’ negligence claim against

Vaught, but submitted a jury issue as to whether the negligence of Terry, Hays, the firm he originally

hired in the divorce, or Beck had proximately caused economic loss to the corporations. Only one

element of damages was submitted: “the amount, if any, that the Beck Benefits Company paid

to Ruth Ann Beck pursuant to the mediated settlement agreement that it would not have paid but

for the negligence you found in answer to [the negligence question].” The jury found “no” as to the

negligence of each party or responsible person, and did not reach the damages issue. Based on the

verdict, the district court rendered final judgment that appellants take nothing on their claims.

Appellants timely filed a motion for new trial. Appellants urged the district court

to revisit the summary-judgment ruling on the fracturing issue in light of the evidence going to

Terry’s “alcohol or substance abuse addictions” that appellants had obtained in discovery since

that ruling. Following a hearing, the district court overruled appellants’ motion for new trial. This

appeal followed.

ANALYSIS

In three issues, appellants contend that the district court erred in granting

summary judgment on their claims for breach of fiduciary duty, DTPA violations, and breach of

contract; by excluding evidence of Terry’s “alcoholism and substance abuse” at trial; and by

overruling their motion for new trial.

10

Summary judgment

In their first issue, appellants contend that the district court erred in granting summary

judgment as to their claims for breach of fiduciary duty, DTPA violations, and breach of contract.

We review the district court’s summary-judgment ruling de novo. Joe v. Two Thirty Nine J.V.,

145 S.W.3d 150, 156-57 (Tex. 2004). To prevail on their traditional motion for summary judgment,

appellees had the burden of proving “there is no genuine issue as to any material fact and the

moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion.”

Tex. R. Civ. P. 166a(c); Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 (Tex. 1985). If

appellees met this burden, appellants would have the burden to present to the district court

any grounds that would preclude summary judgment. City of Houston v. Clear Creek Basin Auth.,

589 S.W.2d 671, 678 (Tex. 1979). Summary judgment is appropriate only when there are no

disputed issues of material fact and the moving party is entitled to judgment as a matter of law.

Nixon, 690 S.W.2d at 548. In deciding whether a disputed fact issue exists to preclude summary

judgment, we treat evidence favorable to the non-movant as true, and we must resolve every doubt

and indulge all reasonable inferences in the non-movant’s favor. Id. at 548-49. When, as here, the

district court’s order granting summary judgment does not specify the ground or grounds relied on

for the ruling, summary judgment will be affirmed on appeal if any of the theories advanced are

meritorious. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993).

Although appellants challenge all three of the summary-judgment grounds

appellees presented in their motion, they devote most of their attention to the non-fracturing ground.

Appellees join issue on appeal only with this ground and the ground challenging the enforceability

11

of the contractual provision on which Beck’s breach-of-contract claim is based; they do not contend

on appeal that their limitations ground can support summary judgment as to the DTPA claim.

Attorneys owe their clients the duty to act with ordinary care—i.e., in a manner

consistent with the standard of care that would be expected to be exercised by a reasonably prudent

attorney. See Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989). This “standard is an objective

exercise of professional judgment, not the subjective belief that [the attorney’s] acts are in good

faith.” See id. at 664-65.9 Complaints about an attorney’s care, skill, or diligence in representing

a client implicate this duty of ordinary care and sound in negligence. See id. For example, “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). To prevail on a professional-negligence claim

against a lawyer, the plaintiff must prove (1) the attorney owed this duty to the plaintiff; (2) the

attorney breached that duty; (3) the breach proximately caused the plaintiff’s injuries; and

(4) damages occurred. Floyd v. Hefner, 556 F. Supp. 2d 617, 660 (S.D. Tex. 2008) (Texas law).

9

As the supreme court described the standard:

If an attorney makes a decision which a reasonably prudent attorney could make

in the same or similar circumstance, it is not an act of negligence even if the result

is undesirable. Attorneys cannot be held strictly liable for all of their clients’

unfulfilled expectations. An attorney who makes a reasonable decision in the

handling of a case may not be held liable if the decision later proves to be imperfect.

The standard is an objective exercise of professional judgment, not the subjective

belief that his acts are in good faith.

Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989).

12

The rule against “fracturing” professional negligence claims against attorneys holds

that “a case arising out of an attorney’s alleged bad legal advice or improper representation” may

not “be split out into separate claims for negligence, breach of contract, or fraud [(or any other non-

negligence theory)] 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) (citations omitted).10 This Court has described some of

the jurisprudential policies underlying the non-fracturing rule:

Nothing is to be gained by fracturing a cause of action arising out of bad legal advice

or improper representation into claims for negligence, breach of contract, fraud or

some other name. If a lawyer’s error or mistake is actionable, it should give rise to

a cause of action for legal malpractice with one set of issues which inquire if the

conduct or omission occurred, if that conduct or omission was malpractice and if so,

subsequent issues on causation and damages. Nothing is to be gained in fracturing

that cause of action into three or four different claims and sets of special issues. . . .

The ultimate issue is whether there has been a breach of duty which causes damage.

Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274-75 (Tex. App.—Austin 2002, pet. denied)

(quoting Sledge v. Alsup, 759 S.W.2d 1, 2 (Tex. App.—El Paso 1988, no writ)). The rule also serves

10

Courts frequently use “legal malpractice” and “professional negligence” interchangeably

to refer to claims arising from an attorney’s allegedly inadequate legal representation, although

“professional negligence” might be a more precise term. Compare Duerr v. Brown, 262 S.W.3d 63,

69-70 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (using “legal malpractice claims” to refer to

professional negligence claims when addressing fracturing issues), with Deutsch v. Hoover, Bax

& Slovacek, L.L.P., 97 S.W.3d 179, 184 n.1 (Tex. App.—Houston [14th Dist.] 2002, no pet.) (noting

“a potential nomenclature problem” with using “legal malpractice” to describe professional

negligence claims because term could also be understood to encompass any claim brought by a client

against that client’s attorney, and opting to use “negligence claim” to “avoid confusion”). We will

generally use “professional negligence”to describe such claims, although we will also quote several

opinions that use “legal malpractice” to refer to negligence claims against lawyers.

13

to “prevent[] legal-malpractice plaintiffs from opportunistically transforming a claim that sounds

only in negligence into other claims” to avail themselves of longer limitations periods, less onerous

proof requirements, or other tactical advantages. Deutsch v. Hoover, Bax & Slovacek, L.L.P.,

97 S.W.3d 179, 189 (Tex. App.—Houston [14th Dist.] 2002, no pet.).

On the other hand, “when cases say that clients cannot divide or fracture their

negligence claims against their attorneys into other claims, this does not mean that clients can sue

their attorneys only for negligence.” Id. Nor does the non-fracturing rule necessarily bar a client

from simultaneously asserting professional negligence and non-negligence claims against an attorney

that are predicated on some common or overlapping facts. Id. at 190; see Tex. R. Civ. P. 48.

However, the claimant must do more than “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.). “The plaintiff must present a claim that goes beyond what traditionally has been

characterized as legal malpractice.” Id.; see also id. at 74 (focusing on whether plaintiff had asserted

“separate” non-negligence claim “distinct from his legal malpractice”).

In determining whether a complaint is a claim for negligence or something else,

“we are not bound by the labels the parties place on their claims.” Murphy, 241 S.W.3d at 697.

“Regardless of the theory a plaintiff pleads, as long as the crux of the complaint is that the plaintiff’s

attorney did not provide adequate legal representation, the claim is one for legal malpractice.”

Kimleco Petroleum, Inc., 91 S.W.3d at 924. This analysis focuses primarily on ascertaining whether

the facts that are the basis for an asserted cause of action implicate only the lawyer’s duty of ordinary

care or independently actionable fiduciary, statutory, contractual, or other tort duties. As the

Fourteenth Court of Appeals has summarized the analysis:

14

If the gist of a 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. If, however, the client’s complaint is more appropriately classified

as another claim, for example, fraud, DTPA, breach of fiduciary duty, or breach of

contract, then the client can assert a claim other than negligence.

Deutsch, 97 S.W.3d at 189-90 (citing Goffney v. Rabson, 56 S.W.3d 186, 190-94

(Tex. App.—Houston [14th Dist.] 2001, pet. denied)); see also Murphy, 241 S.W.3d at 697 (looking

to “the real substance of the claims”). This inquiry may also be informed by the remedy the plaintiff

seeks. See id. at 698. The analysis is analogous to determining whether claims are based on contract

versus the DTPA or whether they sound in contract or tort. Id. at 189 (citing Crawford v. Ace Sign,

Inc., 917 S.W.2d 12, 13-15 (Tex. 1996); Southwestern Bell Tel. Co. v. DeLanney, 809 S.W.2d 493,

493-95 (Tex. 1991)). The determination of whether a complaint against a lawyer is actionable in

negligence versus some other legal theory is a question of law. Duerr, 262 S.W.3d at 70; Murphy,

241 S.W.3d at 692.

In support of the fracturing ground in their traditional summary-judgment motion,

appellees relied on the factual allegations in appellants’ live pleading at the time, appellants’

second amended petition. We accept each of these allegations as true when reviewing the summary

judgment. See Perry v. S.N., 973 S.W.2d 301, 303 (Tex. 1998); American Nat’l Ins. Co. v. Int’l Bus.

Mach. Corp., 933 S.W.2d 685, 686 (Tex. App.—San Antonio 1996, writ denied).11

11

Emphasizing appellees’ reliance on their pleadings, appellants urge that the summary-

judgment motion is an attack on a “pleading defect” and is permitted only through special exceptions

with an opportunity to amend. See Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex. 1983);

Texas Dep’t of Corrections v. Herring, 513 S.W.2d 6, 10 (Tex. 1974). We disagree. Appellees

challenge not a “pleading defect” in the sense of this rule, but whether, as a matter of law, the facts

that are the basis for appellants’ asserted causes of action implicate only the Terry Defendants’ duties

15

Breach of fiduciary duty

In addition to the duty of ordinary care, an attorney owes fiduciary duties to his

client as a matter of law. Willis v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988). The term

“fiduciary” refers to integrity and fidelity; thus, “the attorney-client relationship is one of the

most abundant good faith, requiring absolute perfect candor, openness and honesty, and the absence

of any concealment or deception.” Goffney, 56 S.W.3d at 193 (internal quotations omitted).

Attorneys must, among other things, “render a full and fair disclosure of facts material to the client’s

representation.” Willis, 760 S.W.2d at 645. To prevail on a breach-of-fiduciary-duty claim, a

plaintiff must prove (1) the existence of the fiduciary relationship; (2) a breach of that duty by the

attorney defendant; (3) that causes; and (4) damages to the plaintiff. Floyd, 556 F. Supp. 2d at 661.

However, if a client seeks the remedy of equitable fee forfeiture and proves a breach of fiduciary

duty by the attorney, the client may obtain that remedy without need to prove causation or damages

if the court finds the attorney’s conduct was a “clear and serious breach of duty” and that forfeiture

of the fee (or some portion of it) is “necessary to satisfy the public’s interest in protecting the

attorney-client relationship.” Burrow v. Arce, 997 S.W.2d 229, 246 (Tex. 1998).

of ordinary care or independent fiduciary, statutory, or contractual duties. Appellants’ petition is

significant to this inquiry because the factual allegations it contains are in the nature of admissions

relevant to that issue, not because there is any defect in how appellants have pled any of their causes

of action. Consistent with these observations, Texas courts routinely look to the factual allegations

in the plaintiff’s petition when addressing fracturing issues not only in the summary-judgment

context, see Duerr, 262 S.W.3d at 71; Murphy, 241 S.W.3d at 697-98, but also when such issues are

raised at trial or post-trial. See Deutsch, 97 S.W.3d at 187-91 (directed verdict); Kahlig v. Boyd,

980 S.W.2d 685, 688-89 (Tex. App.—San Antonio 1998, pet. denied) (j.n.o.v); Goffney v. Rabson,

56 S.W.3d 186, 189-90 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (motion for new trial).

16

Not every complaint that can be said to implicate a lawyer’s fiduciary duties is

actionable separately from a negligence claim. Because a lawyer’s “standard of care in negligence

claims is often defined by the characteristics of that inherent fiduciary relationship . . . courts refer

to the fiduciary relationship that the lawyer has to the client and use fiduciary standards to define

the standard of care required of lawyers.” Murphy, 241 S.W.3d at 696. Consequently, “courts have

most often applied those standards to conclude that the claims are really negligence, not breach-of-

fiduciary-duty claims.” Id. To distinguish independently actionable breach-of-fiduciary-duty claims

against lawyers from those that sound in negligence, Texas courts have generally held that a breach-

of-fiduciary-duty claim focuses on “whether an attorney obtained an improper benefit from

representing the client,” while a negligence claim focuses on “whether an attorney represented a

client with the requisite level of skill.” Id. at 693 (quoting Gibson v. Ellis, 126 S.W.3d 324, 330

(Tex. App.—Dallas 2004, no pet.)). “Breach of fiduciary duty by an attorney 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.” Gibson,

126 S.W.3d at 330.

In their second amended petition, appellants pled the following “facts of claims

against Terry Defendants” as the basis for all of their asserted causes of action:

38. Defendants, Edwin J. (Ted) Terry, Jr., James A. Vaught, and Karl E. Hays are

attorneys licensed to practice law in the State of Texas. Said Defendants

were, at all times relevant herein, members of the law firm, Defendant, [Law

Offices of] Edwin J. (Ted) Terry, Jr. In the fall of 2001, Plaintiff, Gary Beck

and Terry, Jr., Vaught, Hays, and the Terry, Jr., Firm entered into an

agreement for said Defendants attorneys to provide legal services to Beck.

17

39. The Defendant, Terry, Jr. Firm and its attorneys were engaged by Beck to

provide legal services in connection with a divorce matter identified as Cause

No. FM0-07412; In the Matter of the Marriage of Ruth Ann Beck and Gary

Gene Beck, In the 345th Judicial District Court, Travis County, Texas.

40. During the course of that representation, Edwin J. (Ted) Terry, Jr., James A.

Vaught, and Karl E. Hays committed acts amounting to negligence in failing

to be prepared for hearings in court, failing to timely comply with court

orders resulting in the payment of attorneys’ fees to the attorney for Beck’s

wife in the divorce proceeding, failing to timely and appropriately respond to

changes in the divorce decree, pledging corporate and separate property as

security for notes given by Plaintiff, Gary Beck, failing to keep corporate

property as separate property, permitting corporate property to be combined

with property of the marital estate, failing to disclose a conflict of interest

between Gary Beck, individually and the corporate Plaintiffs named herein,

and failing to keep their client, the Plaintiff, properly and timely informed of

matters associated with his case thereby resulting in damages to Plaintiffs.

41. The Terry Defendants also assumed representation of the named corporate

Plaintiffs by giving Ruth Ann Beck a security interest in and to stock in the

Plaintiff corporations. The Terry Defendants failed to disclose to Plaintiffs

the conflict of interest between Gary Beck and the Plaintiff companies named

herein, failed to advise Plaintiff Gary Beck to seek independent legal counsel.

42. Upon information and belief, Defendant Ted Terry suffered from alcoholism

and substance abuse while he was representing Gary Beck in the

above-described divorce action. Defendant Ted Terry’s alcohol and

substance abuse addictions caused or contributed to the Terry Defendants’

failure to exercise a reasonabl[e] standard of care when providing legal

services to Gary Beck. Upon information and belief, all of the Terry

Defendants knew of Ted Terry’s alcohol and substance abuse problems, but

failed to disclose such facts to Gary Beck. Had such facts been disclosed to

Gary Beck, he would not have hired the Terry Defendants to represent him.

43. The Terry Defendants’ acts and omissions were a proximate and/or producing

cause of the damages suffered by Plaintiffs herein.

Appellees did not attempt to negate appellants’ factual allegations in their summary-judgment

motion. Consequently, we must take them as true for purposes of our review. See Perry,

973 S.W.2d at 303; American Nat’l Ins. Co., 933 S.W.2d at 686.

18

Appellants incorporated these factual allegations and pled the following “breach of

fiduciary duty” cause of action:

A relationship of trust and confidence existed between Plaintiff[s] and the Terry

Defendants. Defendants breached their duty to act with utmost fairness and in

good faith in the representation of Plaintiff[s] in [the] divorce action. Defendants

breached [their] duty to Plaintiff[s] to represent Plaintiff[s] with undivided loyalty

and to inform Plaintiff[s] of all material facts as soon as they arose. In addition,

Defendants failed to make a full and fair disclosure of all material aspects of the

case to Plaintiff[s]. Specifically, Defendants failed to notify Plaintiff[s] of important

discovery deadlines which resulted in discovery sanctions by the court as well as

an unreceptive attitude toward Plaintiff[s] by the court. Defendants also failed to

adequately prepare Plaintiff[s] for court proceedings in that he was not fully

informed of material aspects of the case. Said breaches of the fiduciary duty

Defendants owed Plaintiff[s] were a proximate cause of Plaintiff[s]’[] damages.12

Appellants have contended they have asserted two factual theories that are properly classified

as independent claims for breach of fiduciary duty: (1) the Terry Defendants failed to disclose

that Terry “suffered from alcohol and substance abuse” during the representation; and (2) the Terry

Defendants “failed to disclose to Plaintiffs the conflict of interest” between Beck and his

corporations and “failed to advise Plaintiff Gary Beck to seek independent legal counsel.” We note

that appellants did not refer to either of these factual theories when pleading their breach-of-

fiduciary-duty cause of action, instead “[s]pecifically” referring to the Terry Defendants’ alleged

failures to notify them of “important discovery deadlines” or “to adequately prepare” Beck for trial.

Nonetheless, because appellants also incorporated their “facts of claims against Terry Defendants”

12

Following the “facts of claims against Terry Defendants,” the second amended petition

was organized into separate sections containing pleadings of Beck’s causes of action and damages,

followed by the corporations’ pleadings of their causes of actions and damages. These sets of

pleadings were parallel and largely identical, differing chiefly in using the singular versus plural

forms of verbs.

19

when pleading this cause of action, those factual allegations are a basis for appellants’ allegations

that the Terry Defendants “breached their duty to act with utmost fairness and in good faith in the

representation,” breached the duty of “undivided loyalty and to inform Plaintiff[s] of all material

facts as soon as they arose,” and “failed to make a full and fair disclosure of all material aspects of

the case to Plaintiff[s].”

Alcohol or substance abuse

Appellants contend their allegations that the Terry Defendants failed to disclose

Terry’s “alcohol and substance abuse addictions” implicates a fiduciary duty that is actionable

independently from the duty of ordinary care. Appellants represent that there is no case from any

jurisdiction that has addressed whether these sorts of allegations can implicate an independently

actionable fiduciary duty, and we are aware of none. However, appellants’ theory is inconsistent

with the reasoning of the Texas cases applying the non-fracturing rule.

Texas courts, including this Court, have recognized that a complaint that a lawyer

“misrepresented” his competence to provide legal services or “failed to disclose” his incompetence

implicates only the lawyer’s duty of ordinary care and is not independently actionable as a fiduciary

duty, DTPA, or other tort claim. See, e.g., Ersek, 69 S.W.3d at 270, 274-75 (DTPA claim based on

law firm’s “misrepresentations regarding its competency to adequately represent Ersek in the

underlying medical malpractice action” constituted an improperly fractured negligence claim);

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

(complaint that lawyer misrepresented legal services would be of competent quality when they were

not constituted a negligence claim and not a claim for breach of fiduciary duty, DTPA violations,

20

fraud, or breach of duty of good faith and fair dealing); see also Aiken v. Hancock, 115 S.W.3d 26,

28-29 (Tex. App.—San Antonio 2003, pet. denied) (“breach-of-fiduciary-duty” claim predicated

on “misrepresentation” and “failure to disclose” that lawyer and expert witness were unprepared for

trial sounded in negligence). This is because the complaint ultimately goes to the adequacy of the

lawyer’s legal representation. See Deutsch, 97 S.W.3d at 189-90 (“If the gist of a 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.”).

Appellants’ complaint that the Terry Defendants failed to disclose Terry’s “alcohol

and substance abuse addictions” concerns a type of antecedent act or condition that potentially

impacts a lawyer’s competence or capacity to provide legal services. Appellants acknowledged

this relationship in their pleadings, alleging that “Defendant Ted Terry’s alcohol and substance abuse

addictions caused or contributed to the Terry Defendants’ failure to exercise a reasonabl[e] standard

of care when providing legal services to Gary Beck.” Similarly, in their appellate briefs, appellants

describe their allegations relating to alcohol and substance abuse: “In short, Plaintiffs alleged that

if Defendants had not breached their various obligations and duties to Mr. Beck and advised him of

Mr. Terry’s substance abuse problems, Mr. Beck would have retained unimpaired counsel, been

properly advised, and not suffered damages.” The gist of appellants’ complaint, in other words, is

that because of Terry’s alleged alcohol or substance abuse, appellants did not receive legal services

of satisfactory care, skill, and diligence. This is a negligence claim as a matter of law. See id.

21

Although appellants emphasize the sensational nature of their allegations about

alcohol or drug use, their complaint is analogous to an assertion that a lawyer was afflicted by any

of the myriad, more innocuous physiological factors that might adversely impact a lawyer’s practice

performance on a given day—e.g., illness, sleep deprivation, emotions, or simply a lack of innate

intelligence or ability—or, for that matter, by such non-physiological practice impediments as a

malfunctioning office printer or absent secretary. A complaint that a lawyer “failed to disclose” such

a condition or situation, like the complaints in Ersek and Greathouse, would go to the lawyer’s

competence or ability and, ultimately, to the quality of legal services the lawyer provided. An

independent “breach-of-fiduciary-duty” claim for “failure to disclose” Terry’s “alcohol and substance

abuse addictions” or any other antecedent condition bearing on the Terry Defendants’ competence

would merely fracture a professional negligence claim, permitting separate submissions (and

liability) regarding whether the Terry Defendants breached the standard of care and the reasons why

they breached it. See Ersek, 69 S.W.3d at 274-75 (quoting Sledge, 759 S.W.2d at 2) (explaining

rationales of non-fracturing rule).

Also instructive is Kahlig v. Boyd, 980 S.W.2d 685 (Tex. App.—San Antonio 1998,

pet. denied). In Kahlig, a former client sued the lawyer who had represented him in a child-custody

dispute with his first wife that had yielded an adverse result for the client. The client asserted causes

of action for fraud and DTPA violations based in part on allegations that the lawyer surreptitiously

had an affair with the client’s second wife during the representation. Id. at 687. One of the client’s

factual theories was that the affair created a “conflict of interest” that diminished the lawyer’s

performance and rendered false previous representations by the lawyer that he would handle the

22

case to the “best of [his] ability” and “be the best that [he] could be.” Id. at 688-89, 690. The court

of appeals held that, however reprehensible the lawyer’s conduct might have been, his failure

to disclose the affair was not independently actionable as a breach-of-fiduciary-duty or DTPA

claim under this theory because it ultimately was a complaint with the quality of the lawyer’s

representation and “fall[s] within the ambit of a claim for malpractice.” See id. Terry’s undisclosed

“alcohol and substance abuse addictions” is analogous to the undisclosed affair in Kahlig—it is an

antecedent act or condition that is alleged to have impacted the care, skill, and diligence with which

a lawyer represents his client. In the same way, appellants’ complaint that the Terry Defendants

failed to disclose Terry’s condition “fall[s] within the ambit of a claim for malpractice.” See id.

During oral argument, appellants elaborated on their notion of the independently

actionable fiduciary duty they believe to be implicated by their allegations about Terry’s undisclosed

“alcohol and substance abuse addictions.” They insisted that even if a lawyer’s alcohol or substance

abuse or addition has no impact on the quality of legal services the lawyer provides, a client can

nonetheless sue for breach of fiduciary duty based on non-disclosure of the condition, and at least

obtain the remedy of equitable fee forfeiture, if the client would not have initiated or continued the

representation if he or she had known of the condition. Even if the condition ultimately did not

affect the legal services the lawyer provided, the complaint would nonetheless go to the lawyer’s

competence and, therefore, sound in negligence. See Ersek, 69 S.W.3d at 270, 274-75; Greathouse,

982 S.W.2d at 172. Appellants’ theory amounts to an end-run around the breach and causation

elements of a professional-negligence claim, permitting recovery based on the mere existence of an

antecedent condition that potentially could have contributed to a breach of the standard of care by

a lawyer, but did not.

23

In their attempt to recast their negligence claim as breach-of-fiduciary-duty claim,

appellants ultimately rely on the fact that the Terry Defendants, like most lawyers, charged fees for

their services. Specifically, appellants maintain that because the Terry Defendants presumably stood

to receive attorney’s fees as long as their representation of Beck continued, and because appellants

alleged that Beck would not have hired the Terry Defendants had he known of Terry’s “alcohol and

substance abuse addictions,” they have asserted a complaint that the Terry Defendants, when failing

to disclose Terry’s condition, were committing the sort of subordination of their client’s interests to

their own that distinguishes a breach-of-fiduciary-duty claim. We disagree that the mere fact the

Terry Defendants might have had an expectation of fees from continuing to represent Beck—a factor

present in virtually every attorney-client relationship—can convert appellants’ negligence claim into

breach-of-fiduciary-duty claim.

First, an expectation of fees from continuing the representation, without more,

would not support the inference that the Terry Defendants’ failure to disclose Terry’s “alcohol

and substance abuse addictions” was motivated by an intent to obtain those fees. The non-disclosure

is equally consistent with a more general aversion to revealing these sorts of discomforting private

facts to others. See Kahlig, 980 S.W.2d at 689-90 (mere fact that lawyer continued to receive

fees from representing client did not support inference that lawyer’s failure to disclose affair with

client’s wife was calculated to obtain an improper benefit because the facts were equally consistent

with lawyer’s desire to surreptitiously continue the affair). More importantly, whether the Terry

Defendants received attorney’s fees or an improper benefit is not the focus of appellants’ complaint

regarding undisclosed alcohol or substance abuse. Appellants did not allege that the Terry

24

Defendants’ failure to disclose Terry’s “alcohol and substance abuse addictions” had anything

to do with the pursuit of attorney’s fees or an improper benefit. See Murphy, 241 S.W.3d at 699

(complaint that lawyer “engaged in self-dealing when they continued to represent both Renick and

the Brock[s]” sounded in negligence and not fiduciary duty when “the Brocks do not allege the

Lawyers deceived them, pursued their own pecuniary interests over the Brocks’ interests, or obtained

any improper benefit by continuing to represent both clients”). Instead, appellants’ focus is that

“Defendant Ted Terry’s alcohol and substance abuse addictions caused or contributed to the

Terry Defendants’ failure to exercise a reasonabl[e] standard of care when providing legal services

to Gary Beck.” See Duerr, 262 S.W.3d at 73-74 (despite allegations that firm received additional

fees from persuading client to settle, crux of complaint was that client did not receive desired

settlement amount due to mishandling of claim). Even if the Terry Defendants stood to receive

attorney’s fees from continuing the representation, the gist of appellants’ complaint was that the

Terry Defendants were unable to provide and/or did not provide adequate legal services because

of Terry’s condition. Such a claim sounds in negligence, not breach of fiduciary duty. See id.;

Murphy, 241 S.W.3d at 699; Ersek, 69 S.W.3d at 270, 274-75; Greathouse, 982 S.W.2d at 172.

We hold that appellees met their summary-judgment burden to establishing their

entitlement to judgment as a matter of law that appellants’ complaint regarding Terry’s undisclosed

“alcohol and substance abuse addictions” sound solely in negligence.13 We also conclude that

13

In reaching this conclusion, as well as our similar conclusion regarding appellants’

“conflict-of-interest” theory, discussed below, we have considered the remedies appellants sought.

See Murphy, 241 S.W.3d at 698. Appellants pled for the following “actual damages” incurred “[a]s

a result of the Terry Defendants’ negligence, and other bases of liability”:

25

a. An adverse judgment and payment of attorney’s fees for services not rendered

or rendered inadequately;

b. Losses incurred due to encumbering corporate stock and properties as

security for indebtedness to Ruth Ann Beck;

c. Losses incurred by Plaintiff due to payments made to Ruth Ann Beck by the

Plaintiff companies;

d. Losses incurred as a result of the Owelty note signed by Plaintiffs;

e. Interest paid on the Owelty note;

f. Attorney’s fees paid to Defendants;

g. Loss of income due to encumbrance of additional liens on real estate; and

h. Losses incurred as a result of the inability to further develop properties.

The corporations, although not Beck, also sought “i. Loss of corporate assets as a result of payments

secured by corporate stock.” All appellants further sought exemplary damages, treble damages under

the DTPA, attorney’s fees under the DTPA and section 38.001 of the civil practice and remedies

code, and interest.

Although these remedies consisted primarily of actual damages arising from the terms of

the Mediated Settlement Agreement and divorce decree, appellants characterize their request for

“[a]ttorney’s fees paid to Defendants” as a claim for equitable fee forfeiture. While appellees dispute

this characterization on appeal, they successfully advanced the position before the district court that

this pleading sought equitable fee forfeiture. After obtaining the summary judgment at issue on

appeal, appellees filed a second summary-judgment motion seeking to limit the negligence damages

appellants could recover. Appellees asserted the ground that appellants could not recover their

attorney’s fees as negligence damages because “Plaintiffs’ claim for breach of fiduciary duty was

dismissed on summary judgment” and “[f]ee forfeiture, as a matter of law, is not an element of

damages under Beck’s negligence claims.” The district court granted summary judgment on that

ground. It acknowledged the prior summary-judgment order “finding there was no breach of

fiduciary duty,” and held, “Because a breach of fiduciary duty is a necessary element of Plaintiffs’

claims for disgorgement, summary judgment is proper.”

That a plaintiff sought equitable fee forfeiture—a remedy characteristic of a breach-of-

fiduciary-duty claim—is a factor courts can consider when classifying a complaint as either a

negligence or breach-of-fiduciary-duty claim. See id. However, while the remedy may inform our

26

appellants did not raise a fact issue to defeat appellees’ entitlement to summary judgment on this

issue. In response to appellees’ motion, appellants presented summary-judgment evidence—chiefly,

deposition testimony from Terry’s ex-wife, Kim Terry—going to whether Terry, in fact, had a

problem with alcohol or drug use during the period in which he had represented Beck.14 Appellants

also presented an affidavit from Beck in which he averred that the Terry Defendants never disclosed

to him that Terry had an alcohol or substance-abuse problem, and that Beck would have fired the

firm had he known of the problem. Appellees do not quarrel that this evidence raises a fact issue

as to the existence of an undisclosed alcohol and substance-abuse problem that would have led

analysis, it is not necessarily dispositive. Duerr, 262 S.W.3d at 74; Murphy, 241 S.W.3d at 698.

Even assuming that appellees are bound to their prior position that appellants sought equitable

fee forfeiture, the mere fact appellants requested that remedy does not alter our conclusion that

appellants’ complaints implicate only the Terry Defendants’ duty of ordinary care and not any

independently actionable fiduciary duty, for the reasons we have explained above.

14

Ms. Terry, who was also an employee of Terry’s firm, testified that Terry would drink and

become drunk at the office, and had wrecked his car while driving drunk in November 2001. She

also claimed to have seen signs of controlled substance use in his office at home. Ms. Terry further

testified that she had organized an “intervention” in September 2002 by friends and colleagues of

Terry, including Hays. Shortly after the intervention, according to Ms. Terry, Terry checked into the

Arizona rehabilitation center, Sierra Tucson, but ultimately returned home without completing

the treatment program. Ms. Terry claimed that Terry’s problems were “a slow progression” that

reached “the really severe state” during “[p]robably the ten months before he went off to rehab,” and

that he was “really kind of spiraling out of control” between his November 2001 car wreck and

the September 2002 intervention. As noted, Beck hired the Terry Defendants in the fall of 2001, and

the divorce was mediated and settled in February 2002.

27

Beck to terminate the representation—facts that we are required to presume for summary-judgment

purposes anyway—but urge that it adds nothing to the legal analysis of whether appellants’

complaint about the problem sounds in negligence or breach of fiduciary duty.15 We agree

with appellees.

As we have explained, appellants’ complaint that the Terry Defendants failed to

disclose Terry’s “alcohol and substance abuse addictions” is a negligence claim as a matter of law

because it goes to the adequacy of the Terry Defendants’ representation. This legal conclusion does

not depend on the quantum of proof appellants presented that Terry actually had “alcohol and

substance abuse addictions,” the extent of that problem, or that his colleagues might have known

about it while Beck did not. With or without appellants’ summary-judgment evidence, it remains

that their complaint implicates only the Terry Defendants’ duty of ordinary care and not an

independently actionable fiduciary duty. Consequently, appellants did not defeat appellees’

entitlement to summary judgment as to this breach-of-fiduciary-duty theory.

15

Appellees also urge us to affirm the summary judgment because “Plaintiffs could

not establish the necessary causal connection between the alleged substance abuse and any

wrongdoing by Defendants.” They further assert we should affirm based on an implied finding that

non-disclosure of the substance-abuse was not a “clear and serious” breach of fiduciary duty. See

Burrow v. Arce, 997 S.W.2d 229, 246 (Tex. 1998). However, the Terry Defendants did not raise

either ground in their summary-judgment motion; consequently, we cannot affirm on those bases.

McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 340-41 (Tex. 1993); see Deutsch,

97 S.W.3d at 190-92 (distinguishing between directed verdict based on non-fracturing rule versus

no evidence that the attorney-client fiduciary duty was breached); id. at 204-05 (Brister, C.J.,

concurring and dissenting) (while urging that directed verdict could be affirmed based on implied

finding of no clear and serious breach of fiduciary duty regardless whether the ground had been

presented in the directed-verdict motion, observing that “[a] directed verdict is not like a summary

judgment”).

28

“Conflict of interest”

Appellants additionally contend their allegations that “[t]he Terry Defendants

failed to disclose to Plaintiffs the conflict of interest between Gary Beck and the Plaintiff companies

named herein [and] failed to advise Plaintiff Gary Beck to seek independent legal counsel”

implicates a fiduciary duty that is actionable independently from the duty of ordinary care. As noted,

an “attorney’s failure to disclose conflicts of interest” is one of the circumstances that may give

rise to an independent breach-of-fiduciary-duty claim. Gibson, 126 S.W.3d at 330. However,

“characterizing conduct as a . . . ‘conflict of interest’ does not alone transform what is really a

professional negligence claim into . . . a breach-of-fiduciary-duty claim.” Murphy, 241 S.W.3d

at 698. Regardless of how the plaintiff may attempt to label his claims, if the gist of the plaintiff’s

complaint is that the lawyer failed to advise, inform, or communicate with a client, it is a negligence

claim. Id. If, on the other hand, the gist of the complaint is that the lawyer obtained an improper

benefit by not disclosing the asserted “conflict,” it is an independent breach-of-fiduciary-duty claim.

Id. at 693 (quoting Gibson, 126 S.W.3d at 330).

Examples of the latter include complaints that lawyers failed to disclose a direct

pecuniary interest in the litigation that was adverse to the client and pursued such an

interest to the client’s detriment. See Archer v. Medical Protective Co., 197 S.W.3d 422, 427-28

(Tex. App.—Amarillo 2006, pet. denied) (allegation that insurance-defense lawyer failed to represent

client’s interests in order to serve counsel’s “own interests in keeping the business and favor” of the

carrier “concerns a matter of divided loyalties, e.g., the pursuit of his own pecuniary interests over

the interests of his client . . . [and] can be viewed as claims involving breached fiduciary duties”);

29

Deutsch, 97 S.W.3d at 187, 190 (allegations that law firm failed to advise client about conflicts

presented when law firm was named as party in related proceeding, failed to withdraw, and failed

to recommend separate counsel “are appropriately classified as a breach-of-fiduciary-duty claim,

independent of Deutsch’s negligence claim”); Spera v. Fleming, Hovenkamp & Grayson, P.C.,

25 S.W.3d 422, 427-28 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (lawyers’ failure to disclose

to clients that they had competing claims to attorney’s fee award).

The requisite focus on improper benefit was also found in Floyd, a case that

appellants emphasize on appeal. 556 F. Supp. 2d at 662. That case arose from the bankruptcy of

Seven Seas, an oil and gas company, following a risky and unsuccessful exploration project that had

been financed through a series of transactions in which the participants had received mortgages on

the company’s assets and warrants on the company’s stock to the detriment of other creditors. Three

of the Seven Seas directors participated directly or indirectly in the financing transactions. One

of these directors, Fuller, was a partner in the law firm of McAfee & Taft, P.C. (M&T), which

also served as Seven Seas’s outside counsel. During the same period in which M&T had been

extensively involved in advising Seven Seas regarding the financing, it also represented at least two

other directors and the largest participant in the financing on unrelated matters. See id. at 623-28,

630-31. The debtor and its trustee subsequently sued M&T and Fuller complaining that the lawyers

had breached their fiduciary duties by (1) failing to fully inform Seven Seas of numerous conflicts

of interest, (2) by providing legal representation and advice while these conflicts existed, (3) by

failing to withdraw from representing Seven Seas when certain conflicts likely would have or did

impair their judgment, and (4) by putting the interests of M&T and Fuller ahead of those of the

30

company when they “chose not to . . . hire an independent counsel to provide the legal opinion for

the closing,” among other omissions. See id. at 662. Although acknowledging that “[t]he fact that

a ‘conflict of interest’ is alleged does not necessarily give rise to a separate cause of action for a

breach of fiduciary duty,” the court held that the first three complaints sounded in breach of fiduciary

duty because their “‘gist’ . . . is that the Lawyers obtained an improper benefit from their dual roles,

which speaks to a breach of fiduciary duty claim.” Id.

On the other hand, the Floyd court also held the allegations that the lawyers put M&T

and Fuller’s interests ahead of Seven Seas’s by failing to hire an independent counsel (instead of

the firm) to provide the legal opinion for closing “complain about the adequacy of the representation

rather than an improper benefit accruing to the Lawyers [and] . . . relate solely to Seven Seas’

negligence claim.” Id. Other Texas courts have similarly held that “conflict-of-interest” complaints

sound in negligence when their real focus is the quality of the lawyer’s legal services and not whether

the lawyer pursued self-interest or improper benefit at the client’s expense. See Duerr, 262 S.W.3d

at 73-74; Murphy, 241 S.W.3d at 698-99. In Murphy, the Brocks, heirs to limited partner in an entity

that owned several Blockbuster Video franchises, joined in a lawsuit brought by a fellow limited

partner, Renick, against the franchisor, Blockbuster Entertainment Corp. As the case progressed,

the defendants filed a counterclaim against Renick. Ultimately, counsel for the Brocks and Renick

negotiated a $7.5 million settlement of the suit, and a final judgment was rendered based on the

settlement agreement. The Brocks subsequently sued the lawyers, pleading causes of action for

breach of fiduciary duty and fraud. The lawyers successfully moved for summary judgment on

grounds that the Brocks had asserted a single “fractured” claim for professional negligence that was

31

barred by limitations. Murphy, 241 S.W.3d at 691-92. The Dallas Court of Appeals affirmed. With

regard to breach of fiduciary duty, it considered the following allegations:

(1) the Lawyers “continu[ed] to represent Renick and the Brock[s] after Renick was

sued by way of counterclaim without getting a written waiver of the conflict of

interest” from the Brocks;

(2) the Lawyers “represent[ed] to the Brock[s] that their claims were not worth

pursuing at trial should Renick settle out despite the fact that [the Lawyers] knew that

the [Brocks] had viable and valuable claims independent of the claims or cooperation

of Renick”;

(3) the Lawyers “urg[ed] the [Brocks] to accept the $ 7.5 million aggregate settlement

offer (which [the Brocks] did, relying upon the [Lawyers’] expertise and duties of

loyalty to them, and the purported truthfulness of the [Lawyers’] representations)”;

(4) the Lawyers “engag[ed] in self-dealing when they continued to represent both

Renick and the Brock[s] after Renick was sued by way of a counterclaim and no

longer wanted to pursue the matter to trial”;

(5) the Lawyers “agree[d] to set aside the findings of the court in the Howell case,

after advising [the Brocks] that the Howell case had decided most of the issues

leaving ‘very little to do to prove damages’ and charging [the Brocks] exorbitant

hourly fees for reestablishing and proving the issues set aside”;

(6) the Lawyers “divid[ed] the aggregate settlement, half to Renick and half to [the

Brocks], despite the fact that Renick had been sued by way of counterclaim and

knowledge that Renick’s cause of action was probably barred by limitations while

[the Brocks’] claims were not”;

(7) the Lawyers “chos[e] their own interest in obtaining a multimillion dollar fee in

the Howell case through taking action in that case which was detrimental to the

[Brocks’] interest”;

(8) the Lawyers “fail[ed] to represent [the Brocks’] interest with undivided loyalty”;

(9) the Lawyers “fail[ed] to inform clients of all material facts as soon as conflicts

arose”;

32

(10) the Lawyers “fail[ed] to make full and fair disclosures of every facet of the

proposed ‘Howell’ settlement and the settlement of the [Blockbuster] lawsuit”;

(11) the Lawyers “ha[d] the [Brocks] sign a settlement document releasing another

client in the same suit (Renick) without advising them of the effect of such release

and then attempted to use such release in this suit to the detriment of [the Brocks]

and to their own benefit.”

Id. at 698. The court concluded that “these allegations complain about the quality of the Lawyers’

representation, specifically, the Lawyers’ failure to properly advise, inform, and communicate

with the Brocks, which are claims of professional negligence.” Id. While it acknowledged that

“paragraph (4) states the Lawyers ‘engaged in self-dealing when they continued to represent both

Renick and the Brock[s],’” the court emphasized that “the Brocks do not allege the Lawyers deceived

them, pursued their own pecuniary interests over the Brocks’ interests, or obtained any improper

benefit from continuing to represent both clients.” Id. at 699. The court similarly concluded that

paragraph (7), while stating “the Lawyers ‘chos[e] their own interest in obtaining a multimillion

dollar fee in the Howell case,’ to the detriment of the Brocks,” related to paragraph (5) and “does not,

without more, allege the type of dishonesty or intentional deception that will support a breach-of-

fiduciary-duty claim.” Id.

Although Texas courts have struggled with the distinction in closer cases, see

Murphy, 241 S.W.3d at 695, 696, we conclude without difficulty here that appellants’ “conflict-of-

interest” complaint sounds in negligence only and not breach of fiduciary duty. As in Murphy,

appellants “do not allege the [Terry Defendants] deceived them, pursued their own pecuniary

interests over [appellants’] interests, or obtained any improper benefit” from failing to disclose

the “conflict” or advising appellants to obtain separate counsel. Id. at 698. This is not a case like

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Deusch or Floyd where the focus of the client’s complaint is that a lawyer or firm pursued its

own pecuniary interests at the client’s expense. Instead, the focus of appellants’ “conflict-of-

interest” complaint is simply that the Terry Defendants failed to advise Beck, the corporations’ sole

shareholder, that the interests of these entities diverged from his own personal interests and that he

should obtain separate counsel for the entities. “[T]hese allegations complain about the quality of

the [Terry Defendants’] representation, specifically, [their] failure to properly advise, inform,

and communicate with the [clients], which are claims of professional negligence.” Id. Although

appellants urge that the Terry Defendants, by their omissions, stood to obtain attorney’s fees that a

separate counsel otherwise would have received, appellants make no allegations to that effect, and

both the Murphy and Floyd courts characterized such a complaint, standing alone, as a negligence

claim. Murphy, 241 S.W.3d at 698; Floyd, 556 F. Supp. 2d at 662; see Duerr, 262 S.W.3d at 73-74.

We conclude that appellees met their burden of establishing that, as a matter of law,

appellants’ complaint that the Terry Defendants failed to disclose “conflicts of interest” between

Beck’s personal versus corporate interests or advise him to retain separate counsel sound only

in negligence. Appellants do not refer us to anything in their summary-judgment response that

would present a fact issue on that question. Accordingly, the district court did not err in granting

summary judgment as to this theory of breach of fiduciary duty.16

16

In their reply brief on appeal, appellants, for the first time, argue that they have alleged

an independent breach of fiduciary duty based on the Terry Defendants’ “failing to make a full and

fair disclosure of every facet of a proposed divorce settlement” and that the settlement “would

improperly impair the Beck Corporate Plaintiffs’ assets, as well as Mr. Beck’s ability to operate

his corporate businesses.” It is unclear whether appellants view this theory as distinct from their

“conflict-of-interest” theory and, if so, whether they have preserved this argument. In any event, this

theory sounds only in negligence, as it goes to the adequacy of the Terry Defendants’ legal advice

regarding the possible impact of the Mediated Settlement Agreement. See Murphy, 241 S.W.3d 698

(holding that a similar complaint sounded in negligence).

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DTPA violations

Appellants’ allegations of DTPA violations largely tracked their allegations of

professional negligence. On appeal, appellants do not dispute that these allegations “fractured” their

professional negligence claim except to assert their allegations that appellees “fail[ed] to disclose

Terry’s alcohol and substance abuse problems to Plaintiff” can support an independent DTPA claim.

See Latham v. Castillo, 972 S.W.2d 66, 69 (Tex. 1998) (permitting independent DTPA claim based

on attorney’s affirmative misrepresentations that he had filed lawsuit when, in fact, he had not). We

have previously explained that appellants’ complaint about Terry’s undisclosed “alcohol and

substance abuse addictions” sounds in negligence rather than breach of fiduciary duty because it goes

to the Terry Defendants’ competence and, ultimately, the adequacy of their legal services. See Ersek,

69 S.W.3d at 270, 274-75 (DTPA claim based on law firm’s “misrepresentations regarding its

competency to adequately represent Ersek in the underlying medical malpractice action” was an

improperly fractured negligence claim); Greathouse, 982 S.W.2d at 172 (complaint that lawyer

misrepresented legal services would be of competent quality when they were not constituted a

negligence claim and not a DTPA claim); see also Tex. Bus. & Com. Code Ann. § 17.49(c)

(West Supp. 2008). Consequently, summary judgment was appropriate on appellants’ DTPA claim.

Breach of contract

On appeal, appellants contend that the following allegation—which appears only in

Beck’s pleadings but not the corporations’—can support an independent breach-of-contract claim:

Defendants promised to finalize the divorce decree only at such times as the Agreed

Final Decree of Divorce has been prepared and signed by both parties. Defendants

35

breached this promise and had Plaintiff enter into a mediated settlement agreement

on February 5, 2002, which was a producing cause of Plaintiff’s damages as stated

herein.

We need not reach this issue because summary judgment can be affirmed on the alternative ground

that the contractual provision on which this cause of action is predicated is unenforceable. See State

Farm Fire & Cas. Co., 858 S.W.2d at 380 (when trial court’s order granting summary judgment does

not specify the ground or grounds relied on for the ruling, summary judgment will be affirmed on

appeal if any of the theories advanced are meritorious).

Beck’s breach-of-contract claim is based on the following provision of the Legal

Services Agreement, which is incorporated by reference into their petition:

Requirement of Divorce Decree: Except in exigent circumstances, as determined by

agreement between the attorneys and the Client, in cases involving the settlement of

a divorce suit, a final Decree of Divorce must be prepared and agreed upon by the

parties before the Divorce is rendered by the Court. Rule 11 of the Texas Rules of

Civil Procedure and Texas law allows a matter in controversy to be “settled” by a

written agreement of the parties and for the trial court to grant a divorce based solely

upon the “Rule 11 Agreement,” and the Final Decree of Divorce to be drafted, and

signed by the parties and the judge at a later date. This procedure is also allowed in

instances where a controversy is settled through mediation, and a written mediation

agreement is signed. However, a written order (Decree of Divorce) must be still

prepared and submitted to the Court for signature before the divorce judgment is

final. It has been the repeated experience of this firm that obtaining a divorce based

only on the written agreement before the Decree of Divorce is prepared results in an

increased time delay, and an increased expense to the Client in having all matters

finalized. This increased time and expense is incurred because many of the detailed

terms of the Decree of Divorce are not covered by the written settlement agreement,

and disputes usually arise regarding such items. Thus, this Firm has a strong policy

of finalizing a divorce only at such times as the Agreed Final Decree of Divorce

has been prepared and signed by both parties. In the event that the case proceeds

to trial and has not been settled, then this section of the Legal Services Contract does

not apply. Different treatment is afforded to cases that proceed to trial than those that

are settled, only because the powers of the Court to resolve disputes concerning the

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terms of the Final Decree of Divorce are more expansive in cases where a trial was

held and the court was required to resolved the disputed issues.

(Emphasis added). Beck characterizes the italicized statement as a binding promise that was

breached when the Terry Defendants advised him to settle the divorce, and participated in settling

the divorce, before the final decree was prepared. Appellees respond that the provision, by its terms,

merely describes a “policy” and that a mere policy is not an enforceable promise. See Loftis v. Town

of Highland Park, 893 S.W.2d 154, 155 (Tex. App.—Eastland 1995, no writ) (policy in employee

handbook not an enforceable promise). Beck attempts to distinguish Loftis, noting that the “strong

policy” at issue here was set out in a contract signed by both parties, rather than by something akin

to an employment handbook, as in Loftis.

We apply well-established principles of construction in interpreting a written contract.

The primary concern of the court is to ascertain the true intentions of the parties as expressed in the

instrument. R & P Enters. v. LaGuarta, Gavrel & Kirk, Inc., 596 S.W.2d 517, 518 (Tex. 1980);

City of Pinehurst v. Spooner Addition Water Co., 432 S.W.2d 515, 518 (Tex. 1968). To achieve this

objective, courts should examine and consider the entire writing in an effort to harmonize and

give effect to all the provisions of the contract so that none will be rendered meaningless. Universal

C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 158 (Tex. 1951). No single provision taken alone

will be given controlling effect; rather, all the provisions must be considered with reference to the

whole instrument. Myers v. Gulf Coast Minerals Mgt. Corp., 361 S.W.2d 193, 196 (Tex. 1962);

Citizens Nat’l Bank in Abilene v. Texas & P. Ry. Co., 150 S.W.2d 1003, 1006 (Tex. 1941).

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If the written instrument is so worded that it can be given a certain or definite legal

meaning or interpretation, then it is not ambiguous and the court will construe the contract as a

matter of law. Universal C.I.T. Credit Corp., 243 S.W.2d at 157; R & P Enters., 596 S.W.2d at 519.

Whether a contract is ambiguous is a question of law for the court to decide by looking at the

contract as a whole in light of the circumstances present when the contract was entered. Id. at 518.

In general, a contract is legally binding only if the terms are sufficiently definite to allow a court to

understand the parties’ obligations. Fort Worth Indep. Sch. Dist. v. City of Fort Worth, 22 S.W.3d

831, 846 (Tex. 2000). When an agreement leaves material matters open for future adjustment and

agreement, it is not binding upon the parties and merely constitutes an agreement to agree. Id.

The provision at issue, by its plain terms, states a “policy” against finalizing a divorce

before agreeing on the terms of a final decree of divorce: “this Firm has a strong policy of finalizing

a divorce only at such times as the Agreed Final Decree of Divorce has been prepared and

signed by both parties.” Preceding that statement is an explanation for the policy, as well as a

provision contemplating deviation from the policy. Although deviation is permitted “in exigent

circumstances,” such circumstances are “as determined by agreement between the attorneys and

the Client.” Construed as a whole, the provision at issue merely states a general firm preference or

practice not to settle divorce cases until a final divorce decree can be agreed upon. Furthermore,

the provision leaves the parties free to deviate from this policy by agreement (as they did here). This

provision is too indefinite to be enforceable as a binding contractual promise. See id.; Valence

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Operating Co., 164 S.W.3d at 662 (contract terms are given their plain, ordinary, and generally

accepted meanings); see also Loftis, 893 S.W.2d at 156 (mere statement of policy cannot support

binding contract). The district court did not err in granting summary judgment on Beck’s breach-of-

contract claim.

Conclusion regarding summary judgment

We overrule appellants’ first issue and affirm the district court’s summary judgment

as to appellants’ claims for breach of fiduciary duty, DTPA violations, and breach of contract.

Exclusion of evidence

In their second issue, appellants argue that the district court abused its discretion at

trial in excluding evidence of Terry’s purported “alcohol or substance abuse” during the period in

which he and his firm were representing Beck. Appellees objected to the admission of any such

evidence on the grounds that its potential for unfair prejudice or confusion of the issues substantially

outweighed its probative value. See Tex. R. Evid. 403. The district court agreed and excluded all

such evidence. Appellants urge this was an abuse of discretion because this evidence was “highly

probative,” “essential,” and “a critical component” of their professional-negligence claims because

“the pervasive nature of the substance abuse affected [Terry’s] judgment and representation of

Mr. Beck in his divorce proceedings.” Alternatively, appellants contend that it was an abuse of

discretion to wholly exclude the evidence rather than addressing any potential unfair prejudice with

limiting instructions or by restricting the quantity of such evidence presented to the jury.

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Rulings on the admission or exclusion of evidence are committed to the trial court’s

sound discretion. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). A trial court

abuses its discretion if it rules without regard for any guiding rules or principles. Id. We uphold the

district court’s evidentiary ruling if there is any legitimate basis for the ruling. Owens-Corning

Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). In other words, a trial court does not

abuse its discretion in admitting or excluding evidence if it reaches the right result for the wrong

reason. Donalson v. Barr, 86 S.W.3d 718, 720 (Tex. App.—Houston [1st Dist.] 2002, no pet.);

Luxenberg v. Marshall, 835 S.W.2d 136, 141-42 (Tex. App.—Dallas 1992, no writ). Furthermore,

for the exclusion of evidence to constitute reversible error, the complaining party must show:

(1) that the trial court committed error; and (2) that the error was reasonably calculated to cause

and probably did cause rendition of an improper judgment. McCraw v. Maris, 828 S.W.2d 756,

757 (Tex. 1992).

In urging the exclusion of appellants’ evidence of “alcohol or substance abuse” under

rule 403, appellees advocated two grounds. First, appellees questioned whether the evidence

was even relevant to appellants’ professional negligence claims because the ultimate issue was

whether the Terry Defendants’ advice had met the standard of care—an objective standard—not why

their advice had failed to meet it. See Cosgrove, 774 S.W.2d at 665 (“The standard is an objective

exercise of professional judgment, not the subjective belief that his acts are in good faith.”). Second,

appellees argued that appellants had not presented evidence that any alcohol or substance abuse had

actually impacted the Terry Defendants’ representation. We need only consider the second ground.

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Appellants made a bill of exceptions detailing the evidence they were prepared to

offer regarding Terry’s alcohol or drug use. Outside the presence of the jury, appellants elicited

testimony from Kim Terry; Jim Mallios, who testified he was a friend and former client of Terry;

Vaught; and Hays. Appellants also included medical records from Sierra Tucson, the Arizona

rehabilitation facility where Terry was treated in September and October 2002.

Ms. Terry claimed that in November 2001, Terry “was driving to go duck hunting

and was drinking in the car and drove his car into a ditch.” She termed this event “kind of a turning

point” after which “[h]e was drinking a lot more, drinking in the morning before he went to work

drinking, coming home drunk.” Eventually, Ms. Terry testified that she organized an “intervention”

in Terry’s law office on September 13, 2002, in which six of Terry’s professional colleagues,

including Vaught and Hays, urged him to get help. Following the intervention, Terry went to

Sierra Tucson for treatment. Ms. Terry claimed that by the time Terry went to Sierra Tucson, “it

was becoming very clear” that Terry was suffering from an alcohol and cocaine addiction that

was impacting his judgment and ability to function. She added that “[w]ork wise, he just seemed

like he was in chaos drinking continuously and everything was getting more and more disruptive

at home.”

Mallios testified that Terry had represented him in a divorce that was filed in 2001.

He claimed that sometime between February 21 and April 18, 2002, Vaught called him and advised

that Terry “was not going to be able to finish up my divorce” because he “was going to have to go

to rehab because of cocaine addiction and possible alcoholism.” Mallios—who admitted to a prior

probated suspension from the State Bar “because of my own use of cocaine and alcohol”—also

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opined that, based on his own experience, cocaine or alcohol addiction “[a]dversely affects

the ability of the lawyer to represent a client,” in particular, “in the area of judgment. You might

decide to do some things that were inappropriate or too . . . expensive.” Mallios cited two examples

of Terry’s “impaired judgment” from his divorce—Terry’s request for a cash retainer and an

unsuccessful attempt to circumvent a district court ruling by going to probate court. He added that

he perceived Terry’s problems to be widely known in the legal community.

Vaught testified that he first learned of any issue with Terry and alcohol or drugs on

September 13, 2002, when Ms. Terry interrupted a meeting he was conducting at the office

with Hays and paralegals and asked him and Hays to participate in an “intervention.” He termed

Mallios’s account of their phone conversation as “absolutely false” and disputed Mallios’s

perception that it was commonly known Terry had alcohol or drug problems. Vaught added that

Terry was gone for about four weeks after the intervention, but that he had no knowledge whether

Terry had completed the rehabilitation program. Similar to Vaught, Hays testified that he first

learned about any problems with Terry when he was asked to participate in the intervention, adding

that “[i]t was explained to me that it was for—Ted was drinking.” Hays, like Vaught, recounted that

he had not known whether Terry completed the rehabilitation program.

The Sierra Tucson records reflect that Terry was treated at the facility between

September 13 and October 4, 2002, when he left against medical advice. They further indicated that

Terry and Ms. Terry had been experiencing marital problems, that the couple had been intermittently

separated for about two months prior to the intervention, and that Terry had perceived Ms. Terry’s

orchestration of the intervention as posturing for an anticipated divorce proceeding. However, the

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records also reflected clinical findings of alcohol dependency and depression, and that Terry had

planned to come to the facility on his own volition later that year to treat his alcohol problem.

According to the records, Terry reported daily consumption of three to six beers but denied ever

going to court while intoxicated. We cannot discern any clinical findings related to drug use

from these records. The records also reflect that Terry complained of “some difficulty concentrating

with poor decision-making” and “a history of short-term memory loss.” Appellants portray these

statements as indications that Terry’s judgment or performance as a lawyer had been impaired by

alcohol. However, the records indicate that the staff associated these symptoms with depression

rather than alcohol use.

At trial, appellants attempted to lay a predicate for the excluded evidence with the

following testimony from Beck about Terry’s behavior during the February 4, 2002 mediation:

Q. Did the actions and conduct of Mr. Ted Terry concern you during the

mediation?

A. Oh, very definitely during the mediation, yes, sir.

Q. Describe the observable physical actions of Mr. Terry that caused you

concern and concern about your case.

A. We were sitting at the—in the mediation room and Mr. Terry—I kept

thinking he was nervous and he was physically—his hands were like this

(indicating).[17]

Q. Is this all you noticed?

A. No. And that is what I alluded to earlier about what my legal advice—Mr.

Herman asked me what legal advice did I base my complaint on. And that

was that. The only thing that mattered was the size of the owelty note, that

17

The record does not reflect the nature of the behavior Beck was demonstrating.

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it didn’t matter what stuff went into the pie because the owelty note was

going to be the size of that thing was all that mattered. And that’s what he

was telling me. And he did it because he just kept sitting in his chair with his

eyes closed. And he would lean back and forth like this (indicating) and say

only the size that matters is the size of the owelty note. He just—he did that

literally for like an hour. And I thought at the time that that’s really strange.

And I had been around Ted before and had not necessarily observed him

doing that.

Appellants urge that the excluded evidence was highly probative of Terry’s

“pervasive” use or dependency on alcohol or drugs and that, together with Beck’s testimony, of

Terry’s impaired judgment and performance during the representation. We cannot conclude that

the district court abused its discretion in excluding the evidence under rule 403. As previously

explained, the pivotal events in Beck’s divorce proceeding were the February 4, 2002 mediation and,

on the following day, the execution of the irrevocable Mediated Settlement Agreement and rendering

of the divorce judgment based on that agreement. At trial, appellants sought only damages for “the

amount, if any, that the Beck Benefits Company paid to Ruth Ann Beck pursuant to the mediated

settlement agreement that it would not have paid but for the negligence you found in answer to [the

negligence question].” The Sierra Tucson records reflected Terry’s condition some seven months

after the settlement.

Appellants were prepared to present evidence that, in general, Terry had increased

his use of alcohol between November 2001 and the September 2002 intervention, and Ms. Terry and

Mallios did accuse the late Terry of using cocaine during this period. Mallios, in particular, gave

disputed testimony that he was informed sometime after the mediation and settlement—between

February 21 and April 18, 2002—that Terry had a cocaine addiction. However, appellants come

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no closer to establishing any relationship between Terry’s alleged drinking or drug use and his

performance when representing Beck than Beck’s testimony about what he termed Terry’s “strange”

behavior during the mediation. Without more, the evidence falls short of supporting an inference

that Terry’s performance when negotiating the Mediated Settlement Agreement was actually

impaired by alcohol or drugs. Similarly, even crediting Mallios’s opinions that alcohol and drug

addiction can adversely impact a lawyer’s judgment, there is nothing linking this general observation

to Terry’s performance during the settlement negotiations. At a minimum, we conclude that any

probative value of the excluded evidence was so greatly outweighed by the danger of unfair prejudice

and confusion of the issues that the district court properly excluded it under rule 403. See Dudley

v. Humana Hosp. Corp., 817 S.W.2d 124, 126-27 (Tex. App.—Houston [14th Dist.] 1991, no writ);

Hutton v. Payne, No. 07-00-00468-CV, 2002 Tex. App. LEXIS 3376, at *5-6 (Tex. App.—Amarillo

2002, no pet.). We overrule appellants’ second issue.

Motion for new trial

In their third issue, appellants argue that the district court abused its discretion

in denying their motion for new trial. Appellants urge that the district court should have vacated

the summary-judgment ruling in light of the evidence of Terry’s alcohol use—particularly the

Sierra Tucson records—that appellants obtained in subsequent discovery. Appellants complain

that appellees unfairly benefitted from “obstructionist discovery conduct” that deprived appellants

of the Sierra Tucson records until shortly before trial, when it was too late to use this evidence

in opposition to the summary judgment. Relatedly, appellants suggest that the district court’s

summary-judgment and evidentiary rulings, which were made by different judges, were inconsistent

45

and that the trial judge, who also decided the new trial motion, recognized this yet arbitrarily

declined to disturb his colleague’s prior summary-judgment ruling.18 Appellants emphasize

the following comments by the trial judge when excluding Kim Terry’s testimony: “I want to say

that I could see it going to the fiduciary duty claim. And that has—is no longer in the case. And

obviously, if that’s reversed on appeal, then somebody would have to take up the question of

admissibility of the evidence on that claim.”

We review a trial court’s denial of a motion for new trial for abuse of discretion.

In the Interest of R.R., 209 S.W.3d 112, 114 (Tex. 2006); Director, State Employees Workers’ Comp.

Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). The trial court abuses its discretion if it

acts without reference to any guiding principles or acts arbitrarily or unreasonably. Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Although we are generally

deferential to the trial court’s determination of facts, see, e.g., Flores v. Fourth Court of Appeals,

777 S.W.2d 38, 41-42 (Tex. 1989), we do not defer to a trial court’s application of the law,

McDaniel v. Yarbrough, 898 S.W.2d 251, 253 (Tex. 1995). A failure by a trial court to analyze or

apply the law correctly is an abuse of discretion. Id.

We conclude that the district court did not abuse its discretion in overruling

appellants’ motion for new trial. When analyzing appellants’ first issue challenging the summary-

judgment ruling, we took as true appellants’ pleading allegations that Terry had “alcohol and

substance abuse addictions,” that the Terry Defendants were aware of that condition and never

disclosed it to Beck, and that Beck would not have hired the Terry Defendants if he had known of

18

The Honorable Suzanne Covington granted the summary judgment that is the subject of

this appeal, while the Honorable Stephen Yelenosky presided at trial and post-trial.

46

the condition. We concluded that appellants’ complaint with the Terry Defendants’ failure to

disclose that condition sounded only in negligence because it implicated the Terry Defendants’

competence and the adequacy of their representation. See Ersek, 69 S.W.3d at 270, 274-75; Kahlig,

980 S.W.2d at 689-91; Greathouse, 982 S.W.2d at 172. As with the evidence appellants presented

with their summary-judgment response, the Sierra Tucson records and other additional evidence add

nothing to the legal analysis of whether appellants’ complaint regarding Terry’s undisclosed “alcohol

and substance abuse addictions” are classified as negligence claims or breach-of-fiduciary-duty

claims. We also note that the trial judge explained its similar analysis of this issue during the new

trial hearing. Appellants’ attempt to portray the judge as blindly adhering to the summary-judgment

ruling does not accurately depict the record as a whole.

Beyond this, appellants urged during oral argument that the district court’s summary

judgment and evidentiary rulings, in combination, stand for the troubling proposition that Texas

clients have no remedy for injury caused by their drunken or drugged lawyers. This, of course, is

not the import of our holdings. As appellees acknowledged during oral argument, there may be

circumstances in which evidence of a lawyer’s impairment by drugs and alcohol is integral to proof

of whether the lawyer’s representation fell below the standard of care. However, as we have

explained, this is not such a case. We also note that the regulatory regime that governs the conduct

of Texas lawyers is not limited to tort duties applied in the courts, but also includes the Disciplinary

Rules of Professional Responsibility that are enforced by the State Bar.

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We overrule appellants’ third issue.

CONCLUSION

Having overruled each of appellants’ issues, we affirm the judgment of the

district court.

__________________________________________

Bob Pemberton, Justice

Before Justices Patterson, Pemberton and Waldrop;

Concurring Opinion by Justice Patterson

Affirmed

Filed: May 1, 2009

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