professional negligence claim in Texas

2021See Won Pak, 313 S.W.3d at 457 ; see also Murphy v. Gruber, 241 S.W.3d 689, 697 (Tex. App.—Dallas 2007, pet. denied) (“[C]haracterizing 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.”).

2016See Won Pak, 313 S.W.3d at 457 ; see also Gruber, 241 S.W.3d at 697 (“[C]haracterizing 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.”).

2013Merely characterizing conduct as a “misrepresentation,” “concealment,” “inducement,” “misleading,” or “deceptive” does not necessarily transform what is really a professional negligence claim into a fraud, DTPA, or breach of fiduciary duty cause of action.4 See Murphy, 241 S.W.3d at 697 ; see also Kimleco, 91 S.W.3d at 924 ; Greathouse, 982 S.W.2d at 172 .

2011But, “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.” Id. at 697 (citing Aiken, 115 S.W.3d at 29; Kimleco, 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).

2021See Won Pak, 313 S.W.3d at 457 ; see also Murphy v. Gruber, 241 S.W.3d 689, 697 (Tex. App.—Dallas 2007, pet. denied) (“[C]haracterizing 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.”).

2016Won Pak v. Harris, 313 S.W.3d 454, 457 (Tex. App.—Dallas 2010, pet. denied). 4 In a professional negligence claim, the gravamen of the plaintiff’s complaint focuses on the quality or adequacy of the 4 In this case, J.A.

2009See Ersek, 69 S.W.3d at 274 -75 (quoting Sledge, 759 S.W.2d at 2 ) (explaining rationales of non-fracturing rule).

2009See Ersek , 69 S.W.3d at 274 -75 (quoting Sledge , 759 S.W.2d at 2 ) (explaining rationales of non-fracturing rule).

2009In a professional negligence claim, the plaintiff must demonstrate "'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.'" Belt v.Oppenheimer, Blend, Harrison & Tate, Inc. , 192 S.W.3d 780, 783 (Tex. 2006) (quoting Peeler v. Hughes & Luce , 909 S.W.2d 494, 496 (Tex. 1995)).

2001Jacobs moved for summary judgment on the professional negligence claim, asserting that Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex.1995), precluded Satterwhite’s claim as a matter of law.

2014See Murphy, 241 S.W.3d at 697 ; see also Aiken v. Hancock, 115 S.W.3d 26, 29 (Tex.App.-San Antonio. 2003, pet. denied) (claim phrased to allege that attorney made “false representations” about his prosecution of plaintiffs case did not sup *112 port an independent claim under the DTPA for deceptive conduct, only a claim for legal malpractice); see also Kahlig, 980 S.W.2d at 689 (claims for fraud and DTPA based on attorney’s affair with client’s wife were “disguised malpractice claims” because real complaint was that attorney did not represent client to best of his ability).

2012See Aiken, 115 S.W.3d at 28 ; see also Murphy, 241 S.W.3d at 698 (allegations relating to improper legal advice regarding conflicts of interest between jointly represented clients relate to quality of representation and constitute a professional negligence claim).

2009Floyd v. Hefner, 556 F.Supp.2d 617, 660 (S.D.Tex.2008) (Texas law).

2009Floyd v. Hefner , 556 F. Supp. 2d 617, 660 (S.D.

2009See Ersek, 69 S.W.3d at 274 -75 (quoting Sledge, 759 S.W.2d at 2 ) (explaining rationales of non-fracturing rule).

2009See Ersek , 69 S.W.3d at 274 -75 (quoting Sledge , 759 S.W.2d at 2 ) (explaining rationales of non-fracturing rule).

2013Merely characterizing conduct as a “misrepresentation,” “concealment,” “inducement,” “misleading,” or “deceptive” does not necessarily transform what is really a professional negligence claim into a fraud, DTPA, or breach of fiduciary duty cause of action.4 See Murphy, 241 S.W.3d at 697 ; see also Kimleco, 91 S.W.3d at 924 ; Greathouse, 982 S.W.2d at 172 .

2011But, “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.” Id. at 697 (citing Aiken, 115 S.W.3d at 29; Kimleco, 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).

2010Newton v. Meade, 143 S.W.3d 571, 574 (Tex.App.-Dallas 2004, no pet.).

2010Newton v. Meade, 143 S.W.3d 571, 574 (Tex.App.-Dallas 2004, no pet.).

2013Impermissible Fracturing of Legal Malpractice ―Parties are prohibited from fracturing a professional negligence claim into multiple causes of action, but this prohibition does not necessarily foreclose the simultaneous pursuit of a negligence-based malpractice claim and a separate breach of fiduciary duty or fraud claim when there is a viable basis for doing so.‖ Meullion v. Gladden, No. 14-10-01143-CV, 2011 WL 5926676 , at *4 (Tex. App.—Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.). ―But to do so, ‗the plaintiff must do more than merely reassert the same claim . . . under an alterna

2013Impermissible Fracturing of Legal Malpractice ―Parties are prohibited from fracturing a professional negligence claim into multiple causes of action, but this prohibition does not necessarily foreclose the simultaneous pursuit of a negligence-based malpractice claim and a separate breach of fiduciary duty or fraud claim when there is a viable basis for doing so.‖ Meullion v. Gladden, No. 14-10-01143-CV, 2011 WL 5926676 , at *4 (Tex. App.—Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.). ―But to do so, ‗the plaintiff must do more than merely reassert the same claim . . . under an alterna

2024See Parkway Co. v. Woodruff, 857 S.W.2d 903, 919 (Tex. App.—Houston [1st Dist.] 1993), aff’d as modified on other grounds, 901 S.W.2d 434 (Tex. 1995).

2013See Palmer v. Espey Huston & Assocs., Inc., 84 S.W.3d 345, 354 (Tex. App.—Corpus Christi 2002, pet. denied) (holding that absence of expert testimony on the elements of a professional negligence claim against engineers “necessitated entry of directed verdicts” in favor of the engineers); Parkway Co. v. Woodruff, 857 S.W.2d 903, 919 (Tex. App.—Houston [1st Dist.] 1993) aff’d as modified, 901 S.W.2d 434 (Tex. 1995) (holding that a directed verdict was proper when there was no expert testimony on “the applicable engineering standard of care”); see also Tex. Civ.

2013See Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (“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.”); O’Donnell, 234 S.W.3d at 146 (breach of fiduciary duty often involves attorney’s failure to disclose conflicts of interest, failure to deliver cl

2009O'Donnell v. Smith , 234 S.W.3d 135, 146 (Tex. App.--San Antonio 2007), aff'd, Smith v. O'Donnell , 288 S.W.3d 417 (Tex. 2009).

2011We find that because the Isaacses’ negligence claims regarding conflicts raise the issue of whether Schleier “exercised that degree of care, skill, and diligence that [lawyers] of ordinary skill and knowledge commonly possess and exercise,” the claim is one for legal malpractice. 9 Kimleco, 91 S.W.3d at 924 ; see Pham 10 v. Nguyen, 763 S.W.2d 467 (Tex.App.-Houston [14th Dist.] 1988, writ denied).

2011We find that because the Isaacses‘ negligence claims regarding conflicts raise the issue of whether Schleier ―exercised that degree of care, skill, and diligence that [lawyers] of ordinary skill 18 and knowledge commonly possess and exercise,‖ the claim is one for legal malpractice. 9 Kimleco, 91 S.W.3d at 924 ; see Pham10 v. Nguyen, 763 S.W.2d 467 (Tex. App.—Houston [14th Dist.] 1988, writ denied).

2008Because a professional negligence claim requires privity of contract, see Ervin v. Mann Frankfort Stein & Lipp CPAS, LLP, 234 S.W.3d 172, 182-83 (Tex. App.–San Antonio 2007, no pet.), we also sustain C&B's seventh issue urging that the trial court erred by entering judgment against it based upon a claim of professional negligence.

2008Because a professional negligence claim requires privity of contract, see Ervin v. Mann Frankfort Stein & Lipp CPAS, LLP , 234 S.W.3d 172, 182-83 (Tex. App.-San Antonio 2007, no pet.), we also sustain C&B's seventh issue urging that the trial court erred by entering judgment against it based upon a claim of professional negligence.

2015Again, the nonsensical nature of the Flores’ 11 Similarly, a professional negligence claim cannot be “fractured” out into a breach of contract claim, “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.” Beck, 284 S.W.3d at 426–27. 35 complaint is clear – they complain that their lawyer informed them of what the opposing party included in sworn discovery responses.

2010Thus, a professional negligence claim focuses on “whether an attorney represented a client with the requisite level of skill,” while a breach of fiduciary duty claim focuses on “whether an attorney obtained an improper benefit from representing the client.” Beck, 284 S.W.3d at 429 (quoting Murphy, 241 S.W.3d at 693 ).

2013See Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (“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.”); O’Donnell, 234 S.W.3d at 146 (breach of fiduciary duty often involves attorney’s failure to disclose conflicts of interest, failure to deliver cl

2011But, “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.” Id. at 697 (citing Aiken, 115 S.W.3d at 29; Kimleco, 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).

2024See Parkway Co. v. Woodruff, 857 S.W.2d 903, 919 (Tex. App.—Houston [1st Dist.] 1993), aff’d as modified on other grounds, 901 S.W.2d 434 (Tex. 1995).

2013See Palmer v. Espey Huston & Assocs., Inc., 84 S.W.3d 345, 354 (Tex. App.—Corpus Christi 2002, pet. denied) (holding that absence of expert testimony on the elements of a professional negligence claim against engineers “necessitated entry of directed verdicts” in favor of the engineers); Parkway Co. v. Woodruff, 857 S.W.2d 903, 919 (Tex. App.—Houston [1st Dist.] 1993) aff’d as modified, 901 S.W.2d 434 (Tex. 1995) (holding that a directed verdict was proper when there was no expert testimony on “the applicable engineering standard of care”); see also Tex. Civ.

2026See Ontiveros, 218 S.W.3d at 71 (holding that court of appeals erred by reversing claims for tortious interference, conspiracy, conversion, and fraud because the appellant had “complained only about the summary judgment granted on his claims for fraudulent transfer and breach of fiduciary duty” so he “waived error” as to the unchallenged portions of the judgment); Jacobs, 65 S.W.3d at 655–56 (holding that “[t]he court of appeals erred in reversing summary judgment on the professional negligence claim” because the appellant complained of summary judgment on its contract claim but “never complai

2021See id. (stating courts should construe judgment as whole to give effect to all that is written). 17 The Youngs argue the trial court nonetheless erred because our determination in the first appeal that a fact issue existed precluding summary judgment on the Youngs’ professional negligence claim based on the allegation Day failed to convey a $200,000 settlement offer to the Youngs is law of the case.

2021Id. at 402 (citing Milivojevich, 426 U.S. at 717 (stating that “questions of church discipline and composition of the church hierarchy are at the core of ecclesiastical concern”)).

2020Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017).

2016Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001).

2016Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex.2001).

2014See Swank, 258 S.W.3d at 655-56 (failure to safeguard and manage settlement proceeds is breach of attorney’s duty of ordinary care, and amounts to claim for legal malpractice); Byrd, 891 S.W.2d at 700-01 (same).

2014See Swank, 258 S.W.3d at 655-56 (failure to safeguard and manage settlement proceeds is breach of attorney’s duty of ordinary care, and amounts to claim for legal malpractice); Byrd, 891 S.W.2d at 700-01 (same).

2014See Murphy, 241 S.W.3d at 697 ; see also Aiken v. Hancock, 115 S.W.3d 26, 29 (Tex.App.-San Antonio. 2003, pet. denied) (claim phrased to allege that attorney made “false representations” about his prosecution of plaintiffs case did not sup *112 port an independent claim under the DTPA for deceptive conduct, only a claim for legal malpractice); see also Kahlig, 980 S.W.2d at 689 (claims for fraud and DTPA based on attorney’s affair with client’s wife were “disguised malpractice claims” because real complaint was that attorney did not represent client to best of his ability).

2014Haynes & Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181 (Tex.1995).