05-06-01683-CV
AFFIRM; Opinion Filed August 1, 2008
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01683-CV
............................
ROXANE WEST, Appellant
V.
JOHN L. HUBBLE, Individually, K. MARK PISTORIUS, Individually,
and HUBBLE PISTORIUS, ATTORNEYS AT LAW, Appellees
.............................................................
On Appeal from the 193rd Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-06922
.............................................................
MEMORANDUM OPINION
Before Justices Wright, O'Neill, and Francis
Opinion By Justice Francis
Roxane West appeals the trial court's summary judgment in favor of John L. Hubble, K. Mark Pistorius, and
Hubble Pistorius, Attorneys at Law. In a single issue, appellant contends the trial court erred in granting
summary judgment on her claim for breach of fiduciary duty. We affirm.
Appellant engaged appellees to represent her after a fire destroyed her personal property (primarily
designer and vintage clothing), which she valued at approximately $2.8 million. During the ensuing litigation,
appellant settled her claims against all defendants except one, Corbett Lighting. With respect to Corbett,
appellant signed a high/low agreement where she received $160,000 in partial settlement of her claims but
agreed to a maximum recovery of $550,000. In all, settlement funds amounted to more than $1 million.
Trial against Corbett was set for September 2003. In May, Hubble notified appellant that he was
withdrawing from representation due to irreconcilable differences. Pistorius attempted to negotiate a
reconciliation between Hubble and appellant, which included asking appellant to increase the contingency fee
from 25 percent to 30 percent. Ultimately, Pistorius's attempts failed, and in July, appellees withdrew from the
case.
Subsequently, appellant engaged two successive attorneys, obtained a continuance in the trial setting,
and ultimately settled with Corbett. She then sued appellees on claims for breach of contract, breach of
fiduciary duty, legal malpractice, deceptive trade practices, and fraud. The gist of her lawsuit centered on her
allegations that, although appellees designated an expert for trial, the expert had not been retained and was
not prepared to testify. As a result, she alleged she was forced to settle her claim against Corbett for much
less than she expected.
Appellees filed both traditional and no-evidence motions for summary judgment on all of appellant's claims,
and the trial court granted the motions. This appeal ensued.
The standards for reviewing summary judgment are well established. King Ranch v. Chapman, 118 S.W.3d
742, 750-51 (Tex. 2003) (no-evidence motion) Nixon v. Mr. Prop. Mgm't Co., 690 S.W 546, 548-49 (Tex.
1985) (traditional motion). Because appellant complains about summary judgment only on her claim for
breach of fiduciary duty, we limit our review to the summary judgment on that claim. See Walling v. Metcalfe,
863 S.W.2d 56, 58 (Tex. 1993).
Appellant contends appellees breached their fiduciary duty to her by (1) holding themselves out as
partners and a partnership when they were actually informally associated; See Footnote 1 (2) falsely
representing to her that they had retained and timely designated an expert witness for trial and they were
ready to try the case; (3) abandoning her on the eve of trial after failing to timely designate an expert; (4)
withdrawing from representing her after she would not consent to an increase in their contingent fee
percentage; and (5) agreeing with opposing counsel to modify one of the settlement agreements (to her
benefit), without her knowledge or consent, after the representation had ended. Appellees counter that
appellant's breach of fiduciary duty claim was an improper attempt to split a legal malpractice claim into
multiple claims. We agree.
A claim for breach of fiduciary duty against an attorney arises when an attorney improperly benefits from
representing a client by, among other acts, subordinating the client's interest to the attorney's interest,
retaining the client's funds, engaging in self-dealing, improperly using client confidences, failing to disclose
conflicts of interest, or making misrepresentations to achieve these ends. Gibson v. Ellis, 126 S.W.3d 324,
330 (Tex. App.-Dallas 2004, no pet.).
A legal malpractice claim, in contrast, alleges professional negligence in failing to exercise the degree of
care, skill, and diligence as attorneys of ordinary skill and knowledge commonly possess and exercise.
Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 481 (Tex. App.-Dallas 1995, writ denied). Examples of legal
malpractice include giving an erroneous opinion or bad advice, delaying or failing to handle a matter
entrusted to the attorney's care, or not using an attorney's ordinary care in preparing, managing, and
prosecuting litigation. Murphy v. Gruber, 241 S.W.3d 689, 693 (Tex. App.-Dallas 2007, pet. denied). Whether
appellant's complaints should be characterized as breach of fiduciary duty or legal malpractice is a question
of law for the Court. Id. at 692.
Here, appellant's allegations ultimately concern appellees' professional handling of her case and her
dissatisfaction with their work, rather than a breach of fiduciary duty involving appellees obtaining an
improper benefit from representing her. See, e.g., Murphy, 241 S.W.3d at 698-99 (failure to properly advise,
inform, and communicate with clients constituted legal malpractice rather than breach of fiduciary duty);
Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 924 (Tex. App.-Fort Worth 2002, pet. denied)
(complaint that attorney failed to timely designate expert witness and misled clients about readiness for trial
stated claim for legal malpractice rather than breach of fiduciary duty); Goffney v. Rabson, 56 S.W.3d 186,
193-94 (Tex. App.-Houston [14th Dist.] 2001, pet. denied) (claim that attorney abandoned client at trial, failed
to prepare adequately for trial, and misled client into believing the case was properly prepared for trial
constitute claim for legal malpractice rather than breach of fiduciary duty); Murphy v. Mullin, Hoard & Brown,
L.L.P., 168 S.W.3d 288, 289-90 n.1 (Tex. App.-Dallas 2005, no pet.) (negligent review and drafting of
documents coupled with failure to timely inform clients of defects in documents raises claim for legal
malpractice). Texas law does not permit appellant to fracture her legal malpractice claim into a claim for
breach of fiduciary duty. See Murphy, 241 S.W.3d at 696-97. We conclude appellant's complaints do not
constitute breaches of fiduciary duty and are instead properly characterized as legal malpractice. See id. at
693-94.
Because appellant raised no evidence or complaints that would constitute a breach of fiduciary duty, we
conclude the trial court did not err in granting summary judgment to appellees on appellant's cause of action
for breach of fiduciary duty. We overrule appellant's sole issue. We affirm the trial court's judgment.
MOLLY FRANCIS
JUSTICE
061683F.P05
Footnote 1 With respect to this allegation, appellant conceded at oral argument that holding out an informal
association as a partnership would not, standing alone, constitute a breach of fiduciary duty.
File Date[08/01/2008]
File Name[061683F]
File Locator[08/01/2008-061683F]