Dennis H. Taylor and Shepherd, Smith & Bebel, P.C. v. Valerie Wilson--Appeal from 333rd District Court of Harris County

Reversed and Remanded and Majority and Concurring Opinions filed October 6, 2005

Reversed and Remanded and Majority and Concurring Opinions filed October 6, 2005.

In The

Fourteenth Court of Appeals

____________

NO. 14-04-00701-CV

____________

DENNIS H. TAYLOR AND SHEPHERD, SMITH & BEBEL, P.C., Appellants

V.

VALERIE WILSON, Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 04-02864

C O N C U R R I N G O P I N I O N

The court correctly concludes that the legal malpractice claim does not fall within the statutory exemption for personal injury claims under the Texas Arbitration Act. However, the majority=s analysis, which ostensibly relies in part on legislative history, misses the mark. The legislative history for the Texas Arbitration Act is silent with respect to whether Apersonal injury@ includes legal malpractice, but even if it were not, there is no reason to look to legislative history because, under the unambiguous meaning of the statute, a legal malpractice claim is not a claim for personal injury.

The Texas Arbitration Act is contained in Chapter 171 of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. ' 171.001, et seq. Section 171.002, entitled AScope of Chapter@ states:

(a) This chapter does not apply to:

. . .

(3) a claim for personal injury, except as provided by Subsection (c);

. . .

(c) A claim described by Subsection (a)(3) is subject to this chapter if:

(1) each party to the claim, on the advice of counsel, agrees in writing to arbitrate; and

(2) the agreement is signed by each party and each party=s attorney.

Tex. Civ. Prac. & Rem. Code Ann. ' 171.002 (Vernon 2005). The parties did not comply with 171.002(c); therefore, if the legal malpractice claim is a claim for personal injury, it is subject to the Texas Arbitration Act. Thus, the outcome of this case turns on the meaning of Apersonal injury@ as used in section 171.002(a)(3) and whether a legal malpractice claim falls within its scope.

As noted in the majority opinion, Texas courts are divided on this issue. Compare Miller v. Brewer, 118 S.W.3d 896, 899 (Tex. App.CAmarillo 2003, no pet.) (holding a legal malpractice suit stemming from employment discrimination is not a claim for personal injury); and In re Hartigan, 107 S.W.3d 684, 690B91 (Tex. App.CSan Antonio 2003, pet. denied) (holding a legal malpractice claim is not a claim for personal injury); with In re Godt, 28 S.W.3d 732, 738B39 (Tex. App.CCorpus Christi 2000, no pet.) (holding a legal malpractice claim is a personal injury action for all purposes).

The term Apersonal injury@ has been used in both a narrow sense of Abodily injury@ and a broader sense, meaning a personal wrong, including libel, slander, malicious prosecution, assault, and false imprisonment, as well as bodily injury. See Gray v. Wallace, 319 S.W.2d 582, 583B84 (Mo. 1958); Soukop v. Employers Liability Assur. Corp., 108 S.W.2d 86, 90 (Mo. 1937). (AThe words >personal injuries= as defined by lexicographers, jurists, and text-writers and by common acceptance, denote an injury either to the physical body of a person or to the reputation of a person, or to both.@); Black=s Law Dictionary 707 (5th ed. 1979) (defining Apersonal injury@ as follows: AIn a narrow sense, a hurt or damage done to a man=s person, such as a cut or a bruise, a broken limb, or the like, as distinguished from an injury to his property or his reputation . . . the term is also used (chiefly in statutes) in a much wider sense, and as including any injury which is an invasion of personal rights, and in this signification it may include such injuries to the person as libel or slander, criminal conversation, malicious prosecution, false imprisonment, and mental suffering.@). Regardless of whether torts that do not cause bodily injury, such as libel, slander, and malicious prosecution, constitute Aa claim for personal injury@ under section 171.002(a)(3), under either the narrow or broad definition of Apersonal injury,@ a legal malpractice claim is not a personal-injury claim. Legal malpractice does not involve bodily injury, and it does not involve injuries to rights regarding the person.

Other states considering the issue in the context of which statute of limitations to apply to legal malpractice claims, have found legal malpractice is not a personal injury claim. For example, the New Jersey Supreme Court reasoned that Athe gravamen of legal-malpractice actions is injury to the rights of another, not personal injury.@ McGrogan v. Till, 771 A.2d 1187, 1192 (N.J. 2001); see also Neel v. Magana, Olney, Levy, Cathcart & Gelfand, 98 Cal. Rptr. 837, 840 (Cal. 1971) (noting that legal malpractice causes damage to Aintangible property interests@); Higa v. Mirikitani, 55 Haw. 167, 517 P.2d 1, 4 (1973) (commenting that Avirtually all claims for legal malpractice [concern] a non-physical injury to an intangible interest of the plaintiff@); Acharya v. Carroll, 152 Wis.2d 330, 348 N.W.2d 275, 279 (Ct. App. 1989) (A>With few exceptions, . . . the courts have concluded that legal malpractice does not cause personal injuries and, therefore, is not governed by a personal injury tort statute of limitations.@) (quoting 2 Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice 18.6 at 75B76 (3d ed. 1989)). The McGrogan court relied on the analysis from an earlier case in which the court reasoned that Aa legal-malpractice action was not >a personal injury claim but rather an assertion that an attorney engaged for a particular purpose was negligent in the handling of it, resulting in pecuniary loss to appellant.@ McGrogan, 771 A.2d at 1193. Likewise, a Tennessee court found that legal malpractice is a claim in which Athe injury is not to the person but the negligent failure of the attorney to perform@ his or her professional obligation. Hillhouse v. McDowell,410 S.W.2d 162, 166 (Tenn. 1966).

The Supreme Court of Illinois reasoned that the Abasis of the legal malpractice claim is that the plaintiff would have been compensated for an injury caused by a third party, absent negligence on the part of the plaintiff=s attorney.@ Eastman v. Messner, 721 N.E.2d 1154, 1158 (Ill. 1999). Thus, the court came to the conclusion that the Ainjuries resulting from legal malpractice are not personal injuries but, instead, are pecuniary injuries to intangible property interests.@ Id. Likewise, the Supreme Court of Pennsylvania, in determining whether a legal malpractice claim was for damages for personal injury, concluded that Aa claim for damages based upon legal malpractice does not involve personal injury in that it arises out of negligence and breach of contract, and the injury alleged concerns purely pecuniary interests.@ Hedlund Mfg. Co. v. Weiser, Stapler & Spivak, 539 A.2d 357, 359 (Pa. 1988). Pennsylvania=s high court reasoned that the rights involved are more akin to property rights. See id.

In sum, though the nature of a legal-malpractice claim may vary, it is fundamentally a claim for damage to the claimant=s intangible interest, not to a personal right seeking redress for injury to one=s body, mind, or emotions. Applying a plain-meaning analysis, a legal malpractice claim is not a claim for personal injury.

The majority emphasizes the legislative history of the statute, which the majority claims evinces a legislative intent to restrict the scope of Apersonal injury@ to Aphysical injury.@ This is not an accurate characterization of the legislative history. As stated in the law review comment on which the majority relies, an amendment was added to the 1979 legislation in question, creating the exceptions that are now codified at section 171.002(a)(3),(4) of the Texas Civil Practice and Remedies Code. See Robert J. Kraemer, Attorney-Client Conundrum: The Use of Arbitration Agreements for Legal Malpractice in Texas, 33 St. Mary=s L.J. 909, 932B34 (2002). As noted by the author of the comment, A[t]hroughout this evolution in the statute, no discussion or consideration is on record that the original legislative intent for the personal injury provision under Section 171.002 included or excluded legal malpractice.@ Kraemer, 33 St. Mary=s L.J. at 934. Furthermore, the legislative history is silent as to whether the Texas Legislature intended to use Apersonal injury@ in the narrower sense of bodily injury. The only support in the one authority (the law review comment) the majority cites is the author=s statement that A[t]he amendment was only concerned with physical personal injuries, as it also sought to exclude claims for workers= compensation.@ Kraemer, 33 St. Mary=s L.J. at 933. However, the only authority cited for this proposition is the text of the statute itself. See Kraemer, 33 St. Mary=s L.J. at 933, n.139. This is not part of the legislative history at allCit is the opinion of the author of a comment in 2002 as to the unstated intent of legislators in enacting a statute in 1979. See In re Sullivan, 157 S.W.3d 911, 918B19 (Tex. App.CHouston [14th Dist.] 2005, mand. denied) (stating that statements of nonlegislators made after the enactment of the legislation at issue are not legislative history and are not relevant to the construction of the statute). Furthermore, the comment author bases his opinion on the statute=s exclusion of all workers= compensation claims, regardless of whether the agreement to arbitrate is in writing and signed by each party=s attorney. It is not reasonable to conclude that the legislature intended to limit Apersonal injury claim@ to physical personal injury simply because the legislature was simultaneously considering an exemption for workers= compensation claims.

Since at least the early part of the last century, Texas courts have recognized claims such as libel, slander, and false imprisonmentCnone of which involve physical injuryCas personal injury claims. Over a century ago, in Houston Printing Co. v. Dement, the court, holding that libel and slander are included in the term Apersonal injuries,@ explained:

That injuries to the physical man are generally meant by the expression Apersonal injuries@ may be conceded, but it is nevertheless true that injuries to the reputation and to the health have ever been classed and treated by law writers as personal injuries. The absolute rights of each individual are the rights of personal security and injuries against the life, the limb, the body, the health, or the reputation of the individual.

44 S.W. 558, 560 (Tex. Civ. App. 1898, writ denied); accord Brewster v. Baker, 139 S.W.2d 643, 645 (Tex. Civ. App.CBeaumont 1940, no writ) (stating that A[d]amage to character as the result of slander or libel is a personal injury@). Thus, the majority=s analysis seems to overlook how Texas courts have interpreted the term Apersonal injury claim.@

Appellants assertCand the majority seems to agreeCthat because various Texas statutes define Apersonal injury@ in a way that suggests the term is limited to physical injuries,[1] we should apply that same meaning in determining if legal malpractice claims fall within the scope of section 171.002(a)(3) of the Texas Arbitration Act. If anything, the fact that the legislature chose to define the term Apersonal injury@ in other statutes in a way that differs from both case law and ordinary usage, but did not do so in the Texas Arbitration Act tends to suggest that the legislature did not intend the term to be used in the more restrictive sense (that is, to limit it to physical injuries) in the Texas Arbitration Act. But the question of whether Apersonal injury@ in the Texas Arbitration Act is restricted to Aphysical injury@ is a question this court need not and should not answer today. Based on a plain-meaning analysis of the statute, the court should simply hold that a legal malpractice claim is not a claim for Apersonal injury@ under the Texas Arbitration Act.

In sum, the court is correct to the extent it concludes that legal malpractice is not included in Apersonal injury@ as that term is used in section 171.002(a)(3) of the Texas Civil Practice and Remedies Code. However, the court errs in relying on an after-the-fact opinion as to legislative intent as if it were part of the legislative history. Furthermore, the court need not and this should not decide today the issue of whether a Aclaim for personal injury@ as used in this statute is limited to physical injury.

/s/ Kem Thompson Frost

Justice

Judgment rendered and Majority and Concurring Opinions filed October 6, 2005.

Panel consists of Justices Anderson, Frost, and Seymore. (Anderson, J., majority.)

[1] See Majority Opinion, p. 4., n.4.