JOHN W. NABORS, ET UX., SHELLI NABORS, Appellants v. ARCH C. MCCOLL AND MCCOLL & MCCOLLOGH P.L.L.C., Appellees

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AFFIRM; Opinion issued January 25, 2010



In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-01491-CV
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JOHN W. NABORS, ET UX., SHELLI NABORS, Appellants
V.
ARCH C. MCCOLL AND MCCOLL & MCCOLLOGH P.L.L.C., Appellees
.............................................................
On Appeal from the 160th District Court
Dallas County, Texas
Trial Court Cause No. 06-05738-H
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MEMORANDUM OPINION
Before Justices Bridges, Lang, and Lang-Miers
Opinion By Justice Bridges
        John W. Nabors, et ux, Shelli Nabors, appeal the trial court's summary judgment in favor of Arch C. McColl and McColl and McCollogh, P.L.L.C. In four issues, Nabors argues his legal malpractice claim was legally sufficient and not barred by law; his claims for breach of contract, breach of fiduciary relationship, and common law fraud are not subsumed in his legal malpractice claim; and fact issues preclude summary judgment. We affirm the trial court's judgment. We issue this memorandum opinion pursuant to Texas Rules of Appellate Procedure 47.4 because the law to be applied in the case is well settled.
        Beginning in 2000, McColl represented Nabors in drug-related cases in United States District Court, Navarro County, and Dallas County. The attorney-client agreements between the parties provided that Nabors would pay $25,000 for representation in each of the three matters and an additional $25,000 to $50,000 in expenses. By plea agreement in November 2001, Nabors received a 100-month sentence in the federal case.   See Footnote 1  By plea agreement in Navarro County, Nabors received a five-year sentence to run concurrently with the federal sentence. McColl informed Nabors that the Dallas County case had been dismissed.
        In 2004, while in federal prison, Nabors attempted to participate in a residential drug and alcohol treatment program (RDAP). Successful completion of the RDAP could result in up to a one-year reduction in an inmate's term of confinement. However, in November or December 2004, Nabors was informed that the Dallas case was still pending against him, and this rendered him ineligible to participate in the RDAP scheduled for July 2005. Nabors contacted McColl, who told Nabors there was a “bureaucratic error.” McColl determined the Dallas County case remained pending, but he did not inform Nabors of this fact until February 2005. At that time, McColl attempted to retain the former Dallas County prosecutor in Nabors' case to help resolve the matter. Efforts to get the Dallas County case dismissed were ineffective, and in October 2005, Nabors hired a different attorney who obtained a plea agreement with Dallas County on November 22, 2005. Nabors subsequently entered the RDAP program and was released on May 13, 2007, approximately seven and a half months early. Nabors sued McColl for legal malpractice, arguing McColl's failure to resolve the Dallas County case and misrepresentations prevented Nabors from being released a full twelve months early because he was delayed entering the RDAP program while the Dallas County matter was resolved. Nabors also asserted causes of action for DTPA violations, fraud, breach of contract, breach of fiduciary relationship, and conversion. The trial court granted McColl's motion for summary judgment, and this appeal followed.
        In his first issue, Nabors argues his legal malpractice claim is legally sufficient and is not generally barred by law or specifically barred by his criminal conduct. We disagree. Generally, to recover on a claim of legal malpractice, a plaintiff must prove that (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff's injuries, and (4) damages occurred. Peeler v. Hughes & Luce 909 S.W.2d 494, 496 (Tex. 1995). To recover either in negligence or under the DTPA, a plaintiff must prove causation. See Tex. Bus. & Com. Code Ann. § 17.50(a) (Vernon Supp. 2009) (establishing causation as an element of a DTPA claim). A plaintiff seeking to recover in negligence must prove that the defendant's breach of a legal duty proximately caused his damages. A plaintiff suing under the DTPA must prove that the defendant's malfeasance was the producing cause of his damages. See Tex. Bus. & Com. Code Ann. § 17.50 (Vernon Supp. 2009). Common to both tests of causation is the element of cause in fact. Cause in fact means that the defendant's acts or omissions were a substantial factor in bringing about the injury which would not otherwise have occurred. Rodgers v. Weatherspoon, 141 S.W.3d 342, 345 (Tex. App.-Dallas 2004, no pet.).
        Plaintiffs who have been convicted of a criminal offense may negate the sole proximate cause bar to their claim for legal malpractice in connection with that conviction only if they have been exonerated on direct appeal, through post-conviction relief, or otherwise. Peeler, 909 S.W.3d at 498. Allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict. Id. This opportunity to shift much, if not all, of the punishment assessed against convicts for their criminal acts to their former attorneys, drastically diminishes the consequences of the convicts' criminal conduct and seriously undermines our system of criminal justice. Id. It is the illegal conduct rather than the negligence of a convict's counsel that is the cause in fact of any injuries flowing from the conviction, unless the conviction has been overturned. Id. To allow Nabors' suit against his attorneys merely permits cost-shifting of the consequences of his criminal conduct to his lawyer. Id.
        Since Nabors has not been exonerated, his illegal acts remain the sole proximate and producing causes of his indictment and conviction as a matter of law. Id. Accordingly, the trial court properly granted summary judgment for McColl on Nabors' legal malpractice claims. We overrule Nabors' first issue.
        In his second issue, Nabors argues his claims for breach of contract, breach of fiduciary relationship, and common law fraud are not subsumed in his legal malpractice claim. In his third and fourth issues, Nabors argues his response to McColl's motion for summary judgment raised fact issues on his claims that he was entitled to an accounting, his DTPA claim, and Shelli Nabors' claims for breach of contract, breach of fiduciary duty, and conversion. The function of summary judgment is not to deprive a litigant of its right to a full hearing on the merits of any real issue of fact, but to eliminate patently unmeritorious claims and untenable defenses. Turner v. Church of Jesus Christ of Latter-Day Saints, 18 S.W.3d 877, 885 (Tex. App.-Dallas 2000, pet. denied) (citing Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, 931 (1952)). Whether allegations against a lawyer, labeled as breach of fiduciary duty, fraud, or some other cause of action, are actually claims for professional negligence or something else is a question of law to be determined by the court. See, e.g., Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.-Houston [1st Dist.] 1998, pet. denied) (stating court had to decide precise nature of claims alleged before considering grounds asserted in summary judgment motion). Our review of a decision of a question of law is de novo. See Barber v. Colo. Indep. Sch. Dist., 901 S.W.2d 447, 450 (Tex.1995).
        Texas courts do not allow plaintiffs to convert what are really negligence claims into claims for fraud, breach of contract, breach of fiduciary duty, or violation of the DTPA. See, e.g., Rangel v. Lapin, 177 S.W.3d 17, 24 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (concluding claims for DTPA violations and breach of contract actually claim for legal malpractice because crux of claims was lawyers did not provide adequate legal representation); Aiken v. Hancock, 115 S.W.3d 26, 29 (Tex. App.-San Antonio 2003, pet. denied) (allegations that lawyer falsely represented he was prepared to try case, failed to reveal he was not prepared to try case, falsely represented expert witness was prepared to testify, and failed to reveal expert witness not fully prepared to testify did not allege “self-dealing, deception, or express misrepresentations in [the lawyer's] legal representation,” to support separate cause of action for breach of fiduciary duty); Kimleco Petroleum v. Morrison & Shelton, 91 S.W.3d 921, 924 (Tex. App.-Fort Worth 2002, pet. denied) (crux of claim that lawyer negligently failed to timely designate qualified expert witness and misled clients into believing case ready for trial stated claim for legal malpractice, not breach of fiduciary duty); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 270, 274 (Tex. App.-Austin 2002, pet. denied) (DTPA claim based on law firm's alleged “misrepresentations regarding its competency” was impermissibly fractured claim for legal malpractice); Goffney v. Rabson, 56 S.W.3d 186, 193-94 (Tex. App.-Houston [14th Dist.] 2001, pet. denied) (client's allegations of breach of fiduciary duty against lawyers were “no more than a claim for legal malpractice” because allegations did not “amount to self-dealing, deception, or misrepresentations”); Greathouse, 982 S.W.2d at 172-75 (misrepresentations alleged as claims for breach of fiduciary duty, fraud, breach of contract, and others, interpreted as claims for legal malpractice because complaint was that lawyer did not provide adequate legal representation); Klein v. Reynolds, Cunningham, Peterson & Cordell, 923 S.W.2d 45, 49 (Tex. App.-Houston [1st Dist.] 1995, no writ) (op. on mot. for reh'g) (principal allegation that lawyer filed defective appeal without obtaining extension alleged legal malpractice, not breach of contract, breach of fiduciary duty, or violations of DTPA).
        This Court has differentiated between claims against a lawyer for professional negligence and breach of fiduciary duty. For example, in Murphy v. Mullin, Hoard & Brown, L.L.P., 168 S.W.3d 288 (Tex. App.-Dallas 2005, no pet.), the focus of the clients' allegations was negligent drafting or review of documents and failure to timely inform the clients of defects in the documents. Id. at 290 n.1. Additionally, the clients did not complain that the lawyers received an improper benefit from the representation. Id. As a result, we concluded the clients' claim for breach of fiduciary duty was actually a claim for professional negligence. Id.; see also Gibson, 126 S.W.3d at 330 (concluding that, even if lawyer gave incorrect explanations for deductions from settlement in personal injury lawsuit, no conclusive evidence lawyer knew of falsity at time or that explanations made for purpose of subordinating client's interest).
        Thus, we analyze the claims in this case recognizing that claims regarding the quality of the lawyer's representation of the client are professional negligence claims, but not all claims by clients against lawyers are professional negligence claims. Although Nabors has labeled his claims breach of fiduciary duty and fraud, we are not bound by the labels the parties place on their claims. See, e.g., State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex.1980); BCY Water Supply Corp. v. Residential Invs., Inc., 170 S.W.3d 596, 604-05 (Tex. App.-Tyler 2005, pet. denied). Additionally, characterizing conduct as a “misrepresentation” or “conflict of interest” does not alone transform what is really a professional negligence claim into either a fraud or a breach-of-fiduciary-duty claim. See, e.g., Aiken, 115 S.W.3d at 29; Kimleco Petroleum, 91 S.W.3d at 924; Ersek, 69 S.W.3d at 270, 274; Goffney, 56 S.W.3d at 193-94; Greathouse, 982 S.W.2d at 172-75; Klein, 923 S.W.2d at 49. Instead, we must discern the real substance of the claims. Murphy v. Gruber, 241 S.W.3d 689, 696- 97 (Tex. App.-Dallas 2007, pet. denied).         Here, Nabors' claim for breach of contract is based on McColl's failure to “fully perform his agreement to represent [Nabors] in the Dallas case and timely complete” it and on Nabors' claim that McColl failed to earn the $25,000 fee in the Dallas case. Nabors' breach of fiduciary relationship claim is based on McColl's failure to disclose that the Dallas case was not dismissed, McColl's misrepresentations that the case was dismissed, and McColl's refusal to turn over certain client files and accounting records. Nabors' common law fraud claim is also based on McColl's alleged intentional nondisclosure of the fact the Dallas case had not been dismissed. A cause of action claiming bad legal advice or improper representation is one for legal malpractice. Newton v. Meade, 143 S.W.3d 571, 574 (Tex. App.-Dallas 2004, no pet.). An attorney's misrepresentations about the status of litigation being handled by the attorney constitutes a claim for malpractice rather than breach of fiduciary duty. Kimleco, 91 S.W.3d at 924; Goffney, 56 S.W.3d at 193-94. An attorney's giving of an erroneous legal opinion or legal advice, delaying or failing to handle a matter entrusted to the lawyer's care, or failing to use ordinary care in preparing, managing, and prosecuting a case constitute professional negligence, not fraud, breach of contract, or breach of fiduciary duty. Murphy, 241 S.W.3d at 693. Thus, Nabors' claims were an impermissible attempt to convert what were really negligence claims into claims of breach of contract, fraud, and breach of fiduciary duty. Murphy, 241 S.W.3d at 693; Newton, 143 S.W.3d at 574; Rangel, 177 S.W.3d at 24; Kimleco Petroleum, 91 S.W.3d at 924; Goffney, 56 S.W.3d at 193-94.
        To the extent Nabors argues that McColl breached a fiduciary duty by keeping more fees than the attorney client contract permitted and refusing to return Nabors' client file, the record shows Nabors did not raise these issues in his response to McColl's motion for summary judgment. Nabors also failed to address in his response to McColl's motion for summary judgment his claims that he was entitled to an accounting, his DTPA claim, and Shelli Nabors' claims for breach of contract, breach of fiduciary duty, and conversion.   See Footnote 2  Because Nabors did not raise these issues in his response to McColl's motion for summary judgment, Nabors cannot raise these issues as grounds for reversal on appeal. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 343 (Tex. 1993). We overrule Nabors' second, third, and fourth issues.
        We affirm the trial court's judgment.


                                                          
                                                          DAVID L. BRIDGES
                                                          JUSTICE

081491F.P05

Footnote 1 Nabors had two prior felony convictions-a 1990 conviction for possession of a controlled substance and a 1995 conviction for possession of a firearm by a felon.
Footnote 2 We note that, taking as true Nabors' summary judgment evidence regarding McColl's receipt of fees, the record shows McColl was not paid the minimum $125,000 fee provided for in the attorney-client agreements. Therefore, the record conclusively establishes that McColl was contractually entitled to more than he was paid.