Stanley A. Tener v. Short Carter Morris LLP; Adam J. Morris; and Kathryn GeigerAppeal from 151st District Court of Harris County (memorandum opinion )

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Opinion issued August 6, 2013 In The Court of Appeals For The First District of Texas NO. 01-12-00676-CV STANLEY A. TENER, Appellant V. SHORT CARTER MORRIS, LLP AND ADAM J. MORRIS, Appellees On Appeal from the 151st District Court Harris County, Texas Trial Court Case No. 2011-45023 MEMORANDUM OPINION Appellant, Stanley A. Tener, challenges the trial court s rendition of summary judgment in favor of appellees, Short Carter Morris, LLP ( SCM ) and Adam J. Morris, in his suit against them for negligence and breach of fiduciary duty. In three issues, Tener contends that the trial court erred in granting appellees summary judgment and overruling his objections to their summary-judgment evidence. We affirm. Background In his first amended petition, Tener alleges that Morris, while employed at SCM, represented him in a divorce proceeding against his wife, Sezanne A. Tener. Included in the community estate to be divided was real property located in Aspen, Colorado, which the Teners occupied as their marital residence during most of their marriage. Sezanne eventually moved to Houston and subsequently sued Tener for divorce. He alleges that he has never resided in the State of Texas. Tener alleges that Morris and SCM acted negligently in: (a) [F]ailing to prepare and properly present [his] claims at a final trial as to the Colorado property. (b) [F]ailing to ensure that the underlying case . . . was litigated in Colorado instead of Texas. (c) [F]ailing to supply to the trial Court pleading and proof that Colorado law holds that any increase of property value above $315,000 (purchase price) is marital property and subject to division under Colorado marital law. (d) [F]ailing to competently prepare and present [his] claims to the Court in regard to the Colorado property. 2 (e) [F]iling documents waiving any further right [to contest] personal jurisdiction . . . . (f) [F]ailing to offer proof that the Colorado property was purchased for $315,000. (g) [F]ailing to plead and prove a marital property claim of $2,185,000. (h) [F]ailing to prove the value of the Colorado property at the time of the divorce in June and July, 2009 of at least $2,500,000. (i) [A]ccepting the benefits of the requested affirmative relief. (j) [C]onsenting to personal jurisdiction and [allowing] Texas to apply Texas law to Colorado real property. (k) [S]tipulating that the Colorado real property . . . was [Sezanne s] separate property without [his] consent to the stipulation that the real property . . . even though it was purchased during the marriage for $315,000. (l) [F]ailing to plead and prove Colorado marital property law and the purchase price of the Colorado real property which would have greatly enhanced [his] and the community s recovery ($2,185,000). (m) [F]ailing to prove the value of the real property at the time of the divorce under Colorado law which would have greatly enhanced [his] recovery. (n) [F]ailing to plead Colorado marital property law pursuant to Texas Rule[] of Evidence 202. (o) [F]ailing to prove Colorado real and marital property law pursuant to Texas Rule[] of Evidence 202. 3 (p) [S]tipulating that [the Colorado property] was [Sezanne s] separate property. (q) [T]elling [Stanley] that he had to stipulate that [the Colorado property] was [Sezanne s] separate property. (r) [P]ursuing claims under Texas law for economic contribution instead of Colorado law § 14-10-113 for the increase in the value of [the Colorado property] from November 7, 1991 through September of 2009. (s) [F]ailing to make a claim for $2,185,000 on behalf of the community estate for the increase in value of [the Colorado property]. (t) [F]ailing to make a claim for $1,092,500 for [Stanley s] portion of the increase in value of [the Colorado property]. (u) [F]ailing to plead and prove Colorado law § 14-10-113 pursuant to Texas Civil Rule[] of Evidence 202. Tener alleges that had appellees pleaded and proved the applicability of Colorado law, instead of Texas law, the divorce court would have been required to follow Colorado law and he would have had a claim in the Colorado property worth $2,185,000. He notes that the divorce court, pursuant to Texas law, entered the following offsets against him: (1) $127,531.49 in enhancement contributions; (2) $400,000 in use and benefit expenses; (3) $41,600 for time, toil and effort; and (4) $255,062.92 in separate property reimbursement. And Tener asserts that these offsets do not exist under Colorado law. He seeks to recover from appellees as negligence damages: (1) the total amount of the offsets; (2) $2,185,000, the value 4 of the Colorado property; (3) $315,000, the purchase price of the Colorado property; (4) mental anguish damages; and (5) his attorney s fees. In regard to his claim for breach of fiduciary duty, Tener alleges that appellees breached their fiduciary duties by committing the above negligent practices and accepting his divorce case when they had insufficient experience to do so and were otherwise unready or unable to do so. He asserts that appellees were not competent to handle his divorce proceedings. In their original answer, appellees generally denied Tener s allegations and asserted that his claims were caused by the negligence and carelessness of responsible third parties over which they had no control. They filed a matter-oflaw and no-evidence summary-judgment motion, asserting that, in the divorce proceeding, Tener, using another attorney, Kathryn Geiger, 1 filed a special appearance and contested the divorce court s personal jurisdiction over him. Appellees contend that they could not have caused Tener any damages arising from a waiver of a challenge to the divorce court s personal jurisdiction. Appellees further argued that Tener was himself at fault because another attorney had handled his appeal of the case, which was dismissed due to Tener s failure to 1 Stanley initially named Geiger as a defendant in the instant suit, but the trial court later severed his claims against her. 5 prove his indigent status.2 And appellees asserted that Tener s own testimony at the special appearance demonstrated that the court properly exercised personal jurisdiction over him. Finally, appellees argued that their performance could not have fallen below the pertinent standard of care because Sezanne and [Tener s] son had lived in Houston for at least four years before the divorce and, thus, the divorce court was required to apply Texas, not Colorado law, to the property claims. In regard to Tener s claim for breach of fiduciary duty, appellees asserted that the claim was simply a reassertion of his negligence claim. Appellees attached to their summary-judgment motion a transcript of the divorce court s hearing on Tener s special appearance, which shows that he was then represented by Geiger. They also attached to their motion the Teners joint tax returns from 2000 to 2006, wherein Tener had represented Houston, Texas as the couple s residence, and the divorce court s final decree of divorce. In its final decree of divorce, the divorce court concluded that Tener was guilty of cruel treatment toward Sezanne and their child and Sezanne should be awarded a disproportionate share of the community estate based upon the cruelty of Tener, the ill health of Sezanne, Sezanne s need for future support, and the reimbursement claims which are detailed as having benefitted Tener and the 2 See Tener v. Arlitt, No. 01-09-01091-CV, 2011 WL 1755614, at *1 (Tex. App. Houston [1st Dist.] May 5, 2011, no pet.) (per curiam) (not designated for publication). 6 community estate. The divorce court also concluded that, in regard to the Colorado property, which it described as Sezanne s separate property residence, the community had received reimbursement in the amount of $255,062.98 from the use and benefit of the property. And the divorce court concluded that although Tener had expended time, toil, and effort which had benefited the Colorado property in the amount of $41,600, this benefit was offset by the fact that Tener had benefited solely and individually from the use of the Colorado property in an amount equal to $400,000. In its findings of fact, the divorce court found that Texas was the last marital residence of Tener and Sezanne within two years before she had filed the divorce suit on September 5, 2007. The divorce court further found that the Colorado property was Sezanne s separate property and Tener had lived on the property rent-free with utilities and various other expenses including all insurance and taxes paid by Sezanne. Finally, appellees attached to their summary-judgment motion Tener s response to a motion to dismiss his petition for dissolution, which he had filed in Colorado while represented by McGuane and Hogan, LLP. In his response, Tener noted, Husband requests only that a decree of dissolution be entered and that the Colorado property be divided in the Colorado action. . . . The property, on 2.683 acres, was purchased approximately six months after the marriage of the parties for $315,000. The purchase price was paid from Wife s separate property and title has always been solely in her name. However, during the marriage, Husband s earned income 7 and his personal labor and services were contributed in significant amounts to the upkeep and improvement of the property. Since the parties separated, Husband has continued to live in the home, maintain it, and manage the rental apartment that is also on the premises. Tener made several objections to appellees summary-judgment evidence, arguing, among other points, that because the opinion of the court of appeals concerning his special appearance, the divorce court s findings of fact and conclusions of law, and the Teners joint tax returns were not authenticated or selfauthenticated, they constituted hearsay. Tener also filed a response to the defendants summary-judgment motion, asserting that genuine issues of material fact existed as to each element of his claims. Tener attached to his response the affidavits of Mark J. Carroll and Jeremy M. Bernstein. In his affidavit, Carroll testified that it was his opinion that Morris had breached the pertinent standard of care owed to Tener in his divorce suit, causing him damages of $1,075,163.86. Carroll s review of the divorce court documents revealed that Sezanne had purchased the Colorado property for $315,000 in her name, the property, at the time of the divorce, had a fair market value of $2,500,000, and Tener, while represented by Morris, had agreed to a partial summary judgment that the Colorado property was Sezanne s separate property. Carroll opined that an ordinarily prudent lawyer would have asked the divorce court, in regard to the Colorado property, to take judicial notice of and apply Colorado law, which provides that all increase in the value of separate 8 property during a marriage is marital property to be divided by the spouses without regard to marital misconduct. As a result, the community estate would have increased by $2,150,327.72, or the increase in value of the Colorado property during the Teners marriage, to be divided equally between the parties. Because Colorado has the most significant relationship to the particular substantive issue, Carroll asserted that a Texas court probably would have applied Colorado law upon request. In his affidavit, Bernstein testified that, under Colorado law, any increase in value of separate property is marital property and the increase in value, no matter the reason[,] is marital property subject to equitable division. Tener also attached to his response the divorce court s Order on Motion for Summary Judgment Regarding Characterization of the Aspen Home, in which the divorce court concluded that Tener had stipulated the Colorado property to be Sezanne s separate property. In their reply, appellees assert that the undisputed material facts established that the divorce court was required to apply Texas law. 3 And they asserted that the 3 Specifically, appellees cited the following provision of the Texas Family Code: (b) In a decree of divorce or annulment, the court shall award to a spouse the following real and personal property, wherever situated, as the separate property of the spouse: 9 opinion of the court of appeals and the divorce court s findings of fact and conclusions of law were admissible as authenticated public records that fell within a hearsay exception for public records and reports. 4 In regard to the Teners joint tax returns, appellees argued that they were admissible into evidence because they were signed by Tener himself. The trial court overruled Tener s objections as to the opinion of the court of appeals, the divorce court s findings of fact and conclusions of law, and the Teners joint tax returns. It then granted appellees matter-of-law summary- judgment motion on Tener s claims, and it denied their no-evidence summaryjudgment motion. Standard of Review To prevail on a summary-judgment motion, a movant has the burden of establishing that it is entitled to judgment as a matter of law and there is no genuine issue of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995) (per curiam). When a defendant moves for summary judgment, it must either (1) disprove at least one essential element of the plaintiff s (1) property that was acquired by the spouse while domiciled in another state and that would have been the spouse s separate property if the spouse had been domiciled in this state at the time of acquisition[.] TEX. FAM. CODE ANN. § 7.002(b) (Vernon 2012). 4 See TEX. R. EVID. 803(8). 10 cause of action or (2) plead and conclusively establish each essential element of its affirmative defense, thereby defeating the plaintiff s cause of action. Cathey, 900 S.W.2d at 341; Yazdchi v. Bank One, Tex., N.A., 177 S.W.3d 399, 404 (Tex. App. Houston [1st Dist.] 2005, pet. denied). When deciding whether there is a disputed, material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548 49 (Tex. 1985). Every reasonable inference must be indulged in favor of the non-movant and any doubts must be resolved in his favor. Id. at 549. Legal Malpractice In his first issue, Tener argues that the trial court erred in granting appellees summary-judgment motion because it failed to include expert testimony addressing the standard of care, breach, causation, or damages and it did not address all of his liability theories. Tener further asserts that appellees did not conclusively establish that the divorce court was required to apply Texas law, his expert witness established a fact issue as to whether appellees breached their standard of care and caused Tener s damages, and fact issues exist as to whether Tener resided in Colorado or Texas. Defendants Summary-Judgment Motion Tener first argues that appellees failed to meet their summary-judgment burden because they did not include any expert testimony and did not address all of 11 his theories of liability, namely, appellees negligence in filing documents waiving any further right to contest personal jurisdiction, accepting the benefits of requested affirmative relief, and stipulating that the Colorado property was Sezanne s separate property without Tener s consent. In their summary-judgment motion, appellees asserted that Tener lost his special appearance due to the actions of Geiger, who represented him at the special-appearance hearing, and not due to any acts or omissions of Morris. Appellees specifically argued that Morris s actions, taken after the trial court had overruled Tener s objection to jurisdiction, including the filing of a counter-claim and seeking affirmative relief, did not constitute a waiver of Tener s right to appeal the divorce court s special-appearance order. In Texas, If the objection to jurisdiction is overruled, the objecting party may thereafter appear generally for any purpose. Any such special appearance or such general appearance shall not be deemed a waiver of the objection to jurisdiction when the objecting party or subject matter is not amenable to process issued by the courts of this State. TEX. R. CIV. P. 120a(4) (emphasis added); see also Aduli v. Aduli, 368 S.W.3d 805, 813 (Tex. App. Houston [14th Dist.] 2012, no pet.) (holding that party could not have waived challenge to trial court s denial of his special appearance even though he had entered into agreed temporary orders establishing trial court s jurisdiction because special appearance preserved error); Equitable Prod. Co. v. Canales12 Trevino, 136 S.W.3d 235, 238 (Tex. App. San Antonio 2004, pet. denied) (holding that party s filing of general appearance did not waive error in objection to jurisdiction because trial court had already denied special appearance). Thus, in their summary-judgment motion, appellees argued and established that Morris did not waive Tener s challenge to the divorce court s ruling on his special appearance. Furthermore, although appellees did not attach to their summary-judgment motion any expert testimony, they asserted, as a matter of law, that the divorce court was required, under the facts of the case, to apply Texas law to the division of the community estate. Appellees argued, thus, that Morris could not have caused Tener any damages in not moving the divorce court to apply Colorado law or in his stipulation that the Colorado property constituted Sezanne s separate property. And Tener has not offered any authority establishing that appellees in this case needed to attach expert testimony to their summary-judgment motion in order to prove the legal issue of whether Texas or Colorado law applied to the division of the community estate. An expert may not testify on pure questions of law. Greenberg Traurig of N.Y., P.C. v. Moody, 161 S.W.3d 56, 94 (Tex. App. Houston [14th Dist.] 2005, no pet.) (citing Mega Child Care, Inc. v. Tex. Dep t of Protective & Regulatory Servs., 29 S.W.3d 303, 309 (Tex. App. Houston [14th Dist.] 2000, no pet.)). Rather, the question was a legal issue for the court to decide. 13 Genuine Issues of Material Fact Tener next asserts that appellees did not conclusively establish that the divorce court was required to apply Texas law rather than Colorado law to the division of the community estate. A legal malpractice action is based on negligence. Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62, 67 (Tex. App. El Paso 2010, no pet.) (citing Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989)). A plaintiff bringing a legal malpractice claim must show 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. Grider v. Mike O Brien, P.C., 260 S.W.3d 49, 55 (Tex. App. Houston [1st Dist.] 2008, no pet.) (quoting Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004)). If the legal malpractice claim is based on the attorney s acts during prior litigation, the plaintiff must prove that, but for the attorney s breach of duty, the plaintiff would have been successful in the prior case. Id. (citing Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App. Houston [1st Dist.] 1998, pet. denied)); see also Heath v. Herron, 732 S.W.2d 748, 753 (Tex. App. Houston [14th Dist.] 1987, writ denied) (stating that defendant in underlying case claiming malpractice must show defense that, if proved, would cause a different result upon retrial of the case ). The causation burden in this type of legal-malpractice claim has been 14 called the suit-within-a-suit requirement. See Greathouse, 982 S.W.2d at 173. The suit within a suit causation requirement applies both to claims for legal malpractice and claims for a former attorney s alleged breach of fiduciary duty when the damages sought are based on the attorney s wrongful conduct in prior litigation. See Finger v. Ray, 326 S.W.3d 285, 291 92 (Tex. App. Houston [1st Dist.] 2010, no pet.); Greathouse, 982 S.W.2d at 173. Generally, expert testimony is required to prove causation in a legal malpractice suit. See Alexander, 146 S.W.3d at 119 20. Proximate cause has two elements: cause in fact and foreseeability. Western Invs., Inc. v. Urena, 162 S.W.3d 547, 551 (Tex. 2005). These elements cannot be established by mere conjecture, guess, or speculation. Id. (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995)). The test for cause in fact is whether the act or omission was a substantial factor in causing the injury without which the harm would not have occurred. Id. As they did in their summary-judgment motion, appellees argue that Morris could not have caused Tener any damages because the Texas Family Code required the divorce court to apply Texas law. Tener asserts that appellees erroneously assume[] that because the family court decided it had personal jurisdiction, it had to apply Texas law. 15 In support of his argument, Tener relies on Dawson-Austin v. Austin, 920 S.W.2d 776 (Tex. App. Dallas 1996), rev d on other grounds, 968 S.W.2d 319 (Tex. 1998). In Dawson-Austin, the wife argued, in her divorce proceeding, that the trial court erred in applying Texas law instead of Minnesota law to determine the characterization of certain stock. Id. at 787 88. Before their marriage, the husband had acquired the stock, and, during the marriage, the stock increased greatly in value. Id. at 781, 788. The trial court granted the husband partial summary judgment in characterizing the entirety of his stock as his separate property, although under Minnesota law, only the value of the corporation at the time of marriage would be his nonmarital property. Id. at 789. The husband argued that the Texas Family Code operates as a comprehensive choice-of-law provision in property characterization issues. Id. Specifically, the husband quoted the following: In a decree of divorce or annulment the court shall order a division of the following real and personal property wherever situated, in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage: (1) property that was acquired by either spouse while domiciled elsewhere and that would have been community property if the spouse who acquired the property had been domiciled in this state at the time of acquisition; or (2) property that was acquired by either spouse in exchange for real or personal property, and that would have been community property if the spouse who acquired the 16 property so exchanged had been domiciled in this state at the time of its acquisition. Id. at n.8 (quoting Act of May 31, 1981, 67th Leg., R.S., ch. 712, § 1, 1981 Tex. Gen. Laws 2656, 2656 (current version at TEX. FAM. CODE ANN. § 7.002(a) (Vernon 2006))). The Dallas Court of Appeals disagreed, holding that the statute by its terms acts only to expand, not restrict, the definition of community property. Dawson-Austin, 920 S.W.2d at 790 (emphasis in original). The court noted that nothing in the statute s legislative history suggested that the provision was intended to expand the definition of separate property and thus restrict the extent of community property and if the legislature had intended for the statute to be a comprehensive choice-of-law provision, it would not have phrased the statute as an expanded definition of community property. Id. Instead, the court concluded that choice-of-law issues are to be decided under the Restatement of Conflict of Laws. Id. (citing Duncan v. Cessna Aircraft Co., 665 S.W.2d 414, 420 21 (Tex. 1984)). In reversing the trial court, the Dallas court relied, in part, on Ismail v. Ismail, 702 S.W.2d 216, 219 (Tex. App. Houston [1st Dist.] 1985, writ ref d n.r.e.). In Ismail, the appellant argued that the trial court had erred in characterizing Texas real estate as quasi-community property under Texas Family Code section 3.63(b). Id. at 219. This Court, referring to section 3.63(b) as the quasi-community property statute, concluded that the provision applied in the division of the migratory spouses property regardless of the nature of the 17 previous domicile s legal system because the plain language of the statute applied to property wherever situated. Id. As noted by appellees, both Ismail and Dawson-Austin were decided before the legislature codified, in 1997, Texas Family Code section 3.63(a) and 3.63(b) into sections 7.001 and 7.002. See Act of April 17, 1997, 75th Leg., R.S., ch. 7, § 1, 1997 Tex. Gen. Laws 33, 33 (current version at TEX. FAM. CODE ANN. §§ 7.001, 7.002(a) (Vernon 2012)). In 2003, the Texas Legislature added section 7.002(b), which provides, (b) In a decree of divorce or annulment, the court shall award to a spouse the following real and personal property, wherever situated, as the separate property of the spouse: (1) property that was acquired by the spouse while domiciled in another state and that would have been the spouse s separate property if the spouse had been domiciled in this state at the time of acquisition[.] Act of June 18, 2003, 78th Leg., R.S., ch. 230, § 4, 2003 Tex. Gen. Laws 1057, 1058 (current version at TEX. FAM. CODE ANN. § 7.002(b) (Vernon 2012)) (emphasis added). As noted by appellees, Tener relies on cases all decided before the legislature s 2003 enactment of section 7.002(b). And, as mentioned in DawsonAustin, section 7.002(a), the provision at issue in that case, by its terms act[ed] only to expand, not restrict, the definition of community property and could not 18 be interpreted to expand the definition of separate property and thus restrict community property. 920 S.W.2d at 790. Section 7.002(b), however, does by its terms act to restrict the definition of community property by expanding the definition of separate property. Accordingly, section 7.002(b), which appellees cited in their summaryjudgment motion, would have required the divorce court to apply Texas law in deciding whether to characterize the Colorado property as part of the community estate or as part of Sezanne s separate estate. And, under Texas law, separate property includes property owned by a spouse before a marriage and property acquired by a spouse during the marriage by gift, devise, or descent. TEX. FAM. CODE ANN. § 3.001(1), (2) (Vernon 2012). Where an asset is purchased during marriage with monies traceable to a spouse s separate estate, the asset may appropriately be characterized as separate property. Pace v. Pace, 160 S.W.3d 706, 711 (Tex. App. Dallas 2005, pet. denied). Tener further argues that appellees have not conclusively established the applicability of section 7.002(b) because it applies only to property acquired by the spouse while domiciled in another state. And he asserts that appellees have not conclusively established that Sezanne was domiciled in Colorado at the time she purchased the property. However, in his first amended petition in the instant suit, Tener asserted, 19 During the marriage [the Teners] purchased [the Colorado property], which they occupied as their marital residence during most of their marriage. . . . Sezanne . . . moved to Texas and filed for a divorce in Houston, Texas. Likewise, Tener s own expert witness, Mark J. Carroll, testified by affidavit that Sezanne file[d] for divorce after the parties had resided in Colorado for the bulk of their marriage and the parties resided in Colorado when the property was purchased. (Emphasis added.) Carroll further testified that Sezanne did not move to Texas until a few years before filing for divorce in 2006. And Tener attached to his response to appellees summary-judgment motion an affidavit from Susan Ebert-Stone, a real estate appraiser who testified that the Colorado property had first been purchased in 1991. Tener himself testified that the Colorado property was the Teners marital residence and the Teners lived in the Colorado residence with their son, who was born in 1994, during most of [their] marriage. And he testified that Sezanne did not move out of the Colorado residence until 2004. Thus, Tener s own assertions and evidence conclusively establish that, at the time of acquisition, the Colorado property could be characterized as the Teners domicile. Tener next argues that the trial court erred in granting appellees summary judgment because Carroll s affidavit established a fact issue as to each element of his legal-malpractice claim. Carroll testified that Texas courts probably would have applied Colorado law upon request in this case because, under the choice of 20 law standard in Texas, Colorado has the most significant relationship to the particular substantive issue. We note, however, that an expert may not testify on pure questions of law. Greenberg Traurig of N.Y., P.C., 161 S.W.3d at, 94 (citing Mega Child Care, 29 S.W.3d at 309). Thus, to the extent that Carroll testified that Colorado law would have applied in the underlying divorce proceeding had Morris presented it to the divorce court, such testimony could not establish a fact issue. Finally, Tener argues that the trial court erred in granting appellees summary judgment because fact issues exist as to whether he resided in Colorado or Texas. However, Tener s residence is irrelevant as to whether the Texas Family Code would apply in the present case. Section 7.002(b) refers only to the domicile of the spouse who acquired the pertinent property. We hold that appellees, in their summary-judgment motion, conclusively established that they did not breach a duty to Tener to assert the application of Colorado law in the underling divorce proceeding or any such failure caused Tener any damages. See Grider, 260 S.W.3d at 55. We overrule Tener s first issue. Breach of Fiduciary Duty In his second issue, Tener argues that the trial court erred in granting appellees summary-judgment motion on his claim for breach of a fiduciary duty 21 because genuine issues of material fact exist on the claim and appellees made no attempt to meet their summary-judgment burden. The elements of a claim for breach of fiduciary duty claim are (1) a fiduciary relationship between the plaintiff and defendant, (2) a breach by the defendant of his fiduciary duty to the plaintiff, and (3) an injury to the plaintiff or benefit to the defendant as a result of the defendant s breach. Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App. Houston [14th Dist.] 2008, pet. denied). The rule against fracturing a legal-malpractice claim provides that a claimant for legal malpractice may not opportunistically transform such a negligence claim into separate non-negligence causes of action. See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex. App. Houston [14th Dist.] 2002, no pet.); Goffney v. Rabson, 56 S.W.3d 186, 190 (Tex. App. Houston [14th Dist.] 2001, pet. denied). Other claims may still be advanced simultaneously, but a plaintiff must do more than merely reassert the same claim for legal malpractice under an alternative label. See Duerr v. Brown, 262 S.W.3d 63, 70 (Tex. App. Houston [14th Dist.] 2008, no pet.). Not every claim for breach of a fiduciary duty is actionable separately from a claim for professional negligence. See Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 429 (Tex. App. Austin 2009, no pet.). To distinguish between the two, courts have generally held that a claim for breach of 22 fiduciary duty focuses on whether an attorney obtained an improper benefit from representing the client, whereas a negligence claim focuses on whether an attorney represented a client with the requisite level of skill. Id. An attorney breaches his fiduciary duty when he benefits improperly from the attorney-client relationship by, among other things, subordinating his client s interest to his own, 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.). Such claims require allegations of self-dealing, deception, or misrepresentations that go beyond the mere negligence allegations in a malpractice action. Trousdale v. Henry, 261 S.W.3d 221, 228 (Tex. App. Houston [14th Dist.] 2008, pet. denied) (citing Goffney v. Rabson, 56 S.W.3d 186, 193 94 (Tex. App. Houston [14th Dist.] 2001, pet. denied)). Here, Tener asserts that Morris affirmatively represented a material matter, namely, that Tener had to stipulate that the Colorado property was Sezanne s separate property. This is an assertion that Morris did not represent Tener with the requisite level of skill. Tener does not assert that Morris engaged in self-dealing, deception, or misrepresentations that would go beyond a mere negligence allegation in a malpractice action. See, e.g., Trousdale, 261 S.W.3d at 227 28. 23 Tener further asserts that he should be given an opportunity to replead his claim for breach of a fiduciary duty, but he does not state how he would replead the claim or what he would add to his claims in order to distinguish it from his legal-malpractice claim. An opportunity to amend is available only when a defect is curable. See Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007). And Tener has not established how he would cure his pleadings, nor did he ask the trial court for an opportunity to replead his claims. Accordingly, we hold that the trial court did not err in granting appellees summary judgment on Tener s claim for breach of fiduciary duty. We overrule Tener s second issue. Evidentiary Objections In his third issue, Tener argues that the trial court erred in overruling his objections to appellees summary-judgment evidence, specifically, his objection to opinion of the court of appeals dismissing his appeal for failure to prove indigent status, the divorce court s findings of fact and conclusions of law, and the Teners joint tax returns. Tener asserts that the above evidence was not authenticated or self-authenticating and constituted hearsay. Documents submitted as summary-judgment evidence must be sworn to or certified. TEX. R. CIV. P. 166a(f). Therefore, although court records from other proceedings are acceptable summary-judgment evidence, they must be certified or 24 attested to under oath as authentic. Gardner v. Martin, 345 S.W.2d 274, 276 77 (Tex. 1961); Soefje v. Jones, 270 S.W.3d 617, 626 (Tex. App. San Antonio 2008, no pet.). Appellees attached to their response to Tener s objections an affidavit from Morris. He testified that Exhibit A, which he received from the court of appeals, is a true and correct copy of the court of appeals opinion in the underlying divorce case. He testified that Exhibit C, which he received from the divorce court when it issued them, is a true and correct copy of the findings of fact and conclusions law. And he testified that Exhibit D, a copy of the Teners joint tax returns, is a true and correct copy of the records which were produced during discovery in the divorce case. While Morris represented Tener, Tener admitted his signature [was] on the tax returns for the years 2000 2006 and the returns were true and correct copies of those filed. Thus, Morris swore to the authenticity of all of the summary-judgment evidence about which Tener complains. Accordingly, we hold that the trial court did not err in overruling Tener s objections to appellees summary-judgment evidence. We overrule Tener s third issue. 25 Conclusion We affirm the judgment of the trial court. Terry Jennings Justice Panel consists of Justices Jennings, Brown, and Huddle. 26