                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-325-CV


JERRY BERGTHOLD                                                   APPELLANT

                                        V.

WINSTEAD SECHREST &                                                 APPELLEE
MINICK, P.C.

                                    ------------

           FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

                                I. INTRODUCTION

      This is a legal malpractice case. Appellant Jerry Bergthold appeals from

the trial court’s grant of summary judgment in favor of Appellee Winstead

Sechrest & Minick, P.C. (Winstead). Because the summary judgment evidence

conclusively negates the existence of any attorney-client relationship, as well




      1
          … See Tex. R. App. P. 47.4.
as the existence of Bergthold’s expectation of representation by Winstead, we

will affirm.

                            II. F ACTUAL B ACKGROUND

      Bergthold was an employee of Southwestern Bell Yellow Pages (SWBYP).

Another SWBYP employee, Virgil Bingham, sued SWBYP for defamation.2

Jarrett Andrews, an associate at Winstead, represented SWBYP in the Bingham

litigation, and attorney Tom Carse represented Bingham.         Attorney Carse

deposed Bergthold on October 20, 2005 as part of the Bingham litigation.

Attorney Andrews defended the deposition.           Attorney Carse represents

Bergthold in the present litigation.

      In September 2004—almost a year before Bergthold’s October 20, 2005

deposition in the Bingham litigation—Bergthold began consulting with attorney

Carse about filing his own suit against SWBYP. Bergthold, a senior account

representative (SAR) with SWBYP, met at least twice with attorney Carse prior

to his October 20, 2005 deposition. Ten to twelve other SARs with SWBYP

also attended those meetings with attorney Carse. When Bergthold was asked

at his deposition in this litigation, “And the purpose of that meeting was what?”




      2
      … See Bingham v. Sw. Bell Yellow Pages, Inc., No. 02-06-00229-CV,
2008 WL 163551, at *1 (Tex. App.— Fort Worth Jan. 17, 2008, no pet. h.)
(mem. op. on reh’g). That litigation is referred to as the Bingham litigation.

                                       2
Attorney Carse objected on the ground of “attorney-client privilege.” Bergthold

thereafter refused to answer based on attorney-client privilege.         Bergthold

testified that he had not retained attorney Carse but that “all the [SARs] for

[SWBYP] in the Dallas/Fort Worth area, which there were like 10 or 12 of us,

had met with Mr. Carse to discuss pay and issues with the company in the SAR

position.” Bergthold was also asked on what date he had paid a retainer fee to

attorney Carse.    Attorney Carse objected and instructed Bergthold not to

answer based on the attorney-client privilege.

      On the day that Bergthold was scheduled to be deposed by attorney

Carse in the Bingham litigation, the depositions were running long. Several

people were deposed that morning by attorney Carse, including Sue Sharley and

Susan Fuchs. During Sharley’s deposition, attorney Andrews stated on the

record that Sharley “is represented by counsel here today” and that he

represented her “as a company representative, which is the capacity she’s here

in today.” At lunchtime, prior to Bergthold’s scheduled deposition, Bergthold,

Sharley, Fuchs, Bingham, and attorney Carse went to eat lunch together. At

the lunch, they discussed how Sharley’s deposition went, including, “[w]as it

difficult[,] [w]as it easy[,] . . . is there anything that [Bergthold] need[s] to be

aware of that would help [him] when [he goes] in.” Sharley told the group, in

front of attorney Carse, that “multi-year contracts were an issue.”

                                         3
      Bergthold’s deposition in the Bingham litigation ultimately was not taken

the same date as Sharley’s but was rescheduled for October 20, 2005. During

the deposition, Bergthold produced confidential SWBYP documents called multi-

year contracts.   Bergthold testified that he brought the documents because

Bingham had asked him about multi-year contracts, and he “brought them in

case it came up” during his deposition. He further testified that he did not

seek, and no one at SWBYP gave him, permission to take the documents to his

deposition. Bergthold conceded at his deposition in this litigation that attorney

Andrews did not know of the existence of the multi-year contracts before

Bergthold produced them.      During breaks in his deposition in the Bingham

litigation, Bergthold visited with attorney Carse, although he denied that they

discussed the Bingham case.        At the conclusion of Bergthold’s deposition,

attorney Andrews mentioned that Bergthold might be in some trouble for

producing the multi-year contracts. Bergthold got in the elevator with attorney

Carse and asked him what attorney Andrews had meant by that comment.

Attorney Carse told Bergthold, “[I]f there’s any adverse consequences that

came from my [Bergthold’s] deposition in terms of Bell’s [SWBYP’s] doing

anything punitive, that I should notify him.”

      Seven   days   after   his   deposition,   Bergthold—with   Carse   as   his

attorney—filed this suit against SWBYP for defamation and tortious interference

                                         4
with his union contract. The defamation allegedly occurred in September 2004,

before Bergthold’s October 20, 2005 deposition in the Bingham litigation. A

month later, SWBYP terminated Bergthold for producing the confidential

documents at his deposition in violation of SWBYP company policy.

      Bergthold added Winstead as a defendant in his suit against SW BYP,

alleging that attorney Andrews’s failure to advise Bergthold not to produce the

documents resulted in Bergthold’s termination. Specifically, Bergthold asserted

causes of action for legal malpractice and ordinary negligence, alleging that

attorney Andrews negligently failed to advise Bergthold not to produce the

confidential documents or object to their production and, alternatively, that

attorney Andrews negligently failed to inform Bergthold that he was not

Bergthold’s attorney.3 Bergthold later nonsuited SWBYP, leaving Winstead as

the sole defendant.

      In a deposition Bergthold gave as part of this litigation in July

2006—before he joined W instead as a defendant—he testified that when he




      3
       … Bergthold also asserted causes of action for intentional infliction of
emotional distress—which he had abandoned by the time he filed his eighth
amended original petition—and for tortious interference with his union contract.
The trial court granted summary judgment on his tortious interference claim,
and Bergthold does not argue on appeal that the trial court erred by so doing.
Instead, his brief on appeal challenges only the propriety of summary judgment
granted on his legal malpractice and negligence claims.

                                       5
gave his deposition in the Bingham litigation, “Jared Andrews was . . . repping

-- representing the company.” And in an April 2007 deposition—after he sued

Winstead—Bergthold testified that he received an email informing him that

attorney Andrews was representing SWBYP against Bingham’s claims. But in

that same deposition, Bergthold also said that attorney Andrews called him two

or three times before he gave his deposition in the Bingham litigation and told

him that “he was representing the company and its employees.” Later in the

same deposition, Bergthold testified that “Mr. Andrews indicated that he was

representing us as employees, because Southwestern Bell was, in fact,

providing us to Mr. Carse to be deposed and, as such, we were also his client.”

Bergthold further testified that he asked attorney Andrews whether he should

take anything to his deposition and that Andrews told him “that if [he] had to

have [] document[s] to answer a question, to bring [them].”

      At attorney Andrews’s deposition in this litigation, he testified that he

was present during Bergthold’s April 2007 deposition and heard Bergthold’s

testimony about their phone conferences. When asked whether Bergthold left

anything out of his description of the conferences, attorney Andrews said that

when he first contacted Bergthold, he told Bergthold “that I represent

Southwestern Bell Yellow Pages and the employee being sued, Steve Brown.”

He also testified that when Bergthold asked him if he should take anything to

                                      6
the Bingham deposition, attorney Andrews told him, “no, we generally don’t

advise witnesses to bring anything unless . . . we think you’re going to need it

. . . and in this case, I don’t think we anticipate anything like that.”

      Winstead eventually filed a motion for summary judgment on Bergthold’s

legal malpractice and negligence claims, asserting that it had no attorney-client

relationship with Bergthold and thus owed him no duty as a matter of law.4

The trial court granted the motion, and Bergthold filed this appeal.

                      III. S UMMARY J UDGMENT W AS P ROPER

              A. No-evidence or Traditional Summary Judgment

      Before turning to the merits of the case, we must first determine whether

Winstead filed, and the trial court granted, a no-evidence motion for summary

judgment, a traditional motion for summary judgment, or a hybrid motion with

regard to Bergthold’s legal malpractice and negligence claims.         In the first

paragraph of its motion, Winstead stated that it filed the motion “pursuant to

Texas Rules of Civil Procedure 166a(b) and (i).”            The “argument and

authorities” section of the motion begins with two paragraphs describing both


      4
       … Winstead also moved for no-evidence and traditional summary
judgment on Bergthold’s claims for tortious interference and intentional infliction
of emotional distress, but those motions are not at issue in this appeal because
Bergthold abandoned his intentional infliction of emotional distress claim before
summary judgment and does not challenge the trial court’s summary judgment
on his tortious interference claim.

                                        7
the traditional and the no-evidence summary judgment standards.         But the

words “no evidence” appear nowhere in the section of the motion discussing

Bergthold’s legal malpractice claim, and, with respect to this claim, the motion

fails to identify “the essential elements of a claim or defense” for which there

is no evidence as required by rule 166a(i). Tex. R. Civ. P. 166a(i) & cmt.; Mott

v. Red’s Safe & Lock Servs., Inc., 249 S.W.3d 90, 98 (Tex. App.—Houston

[1st Dist.] 2007, no pet.) (holding that a motion that fails to state specific

elements is fundamentally defective and insufficient to support summary

judgment as a matter of law).     Instead, Winstead analyzed at considerable

length the summary judgment evidence attached to its own motion and argued

that the evidence conclusively negated elements of Bergthold’s claim, such as

an attorney-client relationship and duty. By contrast, in the sections of its

motion challenging Bergthold’s intentional infliction of emotional distress and

tortious interference claims, W instead specifically identified elements of the

claims for which Bergthold could present no evidence.

      The trial court’s order granting summary judgment does not specify

whether it is a no-evidence or traditional summary judgment.        On appeal,

Bergthold’s first issue is that the trial court erred by granting Winstead a

traditional summary judgment on his legal malpractice claim, and his second

issue is that the trial court erred by granting Winstead a no-evidence summary

                                       8
judgment on his legal malpractice claim. In response to Bergthold’s second

issue, Winstead argues that the trial court did not err by granting a no-evidence

summary judgment; unlike its trial court motion, Winstead’s appellate brief

specifically identifies elements of Bergthold’s claim for which there is no

evidence.

      Based on the record before us, we hold that Winstead’s summary

judgment motion on Bergthold’s legal malpractice claim was not a no-evidence

motion because it failed to identify the essential elements of the claim for which

there is no evidence as required by rule 166a(i). See Tex. R. Civ. P. 166a(i) &

cmt.; Mott, 249 S.W.3d at 98.        Therefore, we will analyze the summary

judgment on Bergthold’s legal malpractice claims under the traditional summary

judgment standard of review. Because Winstead did not file a no-evidence

motion on the legal malpractice claim, the trial court could not grant a no-

evidence summary judgment on that claim; thus, we overrule Bergthold’s

second issue as moot.

            B. Traditional Summary Judgment Standard of Review

      In a summary judgment case, the issue on appeal is whether the movant

met the summary judgment burden by establishing that no genuine issue of

material fact exists and that the movant is entitled to judgment as a matter of

law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211,

                                        9
215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671,

678 (Tex. 1979). The burden of proof is on the movant, and all doubts about

the existence of a genuine issue of material fact are resolved against the

movant. Sw. Elec. Power Co., 73 S.W.3d at 215.

       When reviewing a summary judgment, we take as true all evidence

favorable to the nonmovant, and we indulge every reasonable inference and

resolve any doubts in the nonmovant’s favor.         Valence Operating Co. v.

Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Evidence that favors the movant’s

position will not be considered unless it is uncontroverted. Great Am. Reserve

Ins. Co. v. San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47 (Tex. 1965).

We will affirm a summary judgment only if the record establishes that the

movant has conclusively proved all essential elements of the movant’s cause

of action or defense as a matter of law. Clear Creek Basin, 589 S.W.2d at

678.

                      C. Attorney-Client Relationship Law

       To recover on a claim of legal malpractice, a plaintiff must prove (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); Stancu v.

Stalcup, 127 S.W.3d 429, 433 (Tex. App.—Dallas 2004, no pet.). An attorney

                                       10
owes a duty of care only to his or her client, not to third parties who may have

been damaged by the attorney’s negligent representation of the client. Barcelo

v. Elliott, 923 S.W.2d 575, 578 (Tex. 1996) (preserving a bright-line privity rule

denying a cause of action to all estate beneficiaries whom the attorney did not

represent). Under Texas law, attorneys are not ordinarily liable for damages to

a nonclient because privity of contract is absent. Am. Centennial Ins. Co. v.

Canal Ins. Co., 843 S.W.2d 480, 484 (Tex. 1992). When a defendant moves

for a summary judgment because no attorney-client relationship exists, the

defendant takes on the burden of proving the nonexistence of the relationship

as a matter of law. Stancu, 127 S.W.3d at 433; Yaklin v. Glusing, Sharpe &

Krueger, 875 S.W.2d 380, 383 (Tex. App.—Corpus Christi 1994, no writ).

      The attorney-client relationship may be expressly created through a

contract, or it may be implied from the actions of the parties.         Bright v.

Addison, 171 S.W.3d 588, 596 (Tex. App.—Dallas 2005, pet. denied);

Honeycutt v. Billingsley, 992 S.W.2d 570, 581 (Tex. App.—Houston [1st Dist.]

1999, pet. denied). To establish an attorney-client relationship, the parties

must explicitly or by their conduct manifest an intention to create it. Roberts

v. Healey, 991 S.W.2d 873, 880 (Tex. App.—Houston [14th Dist.] 1999, pet.

denied) (citing Vinson & Elkins v. Moran, 946 S.W.2d 381, 405 (Tex.

App.—Houston [14th Dist.] 1997, writ dism’d by agr.)). Whether there was a

                                       11
meeting of minds between the parties to create an attorney-client relationship

is determined under an objective standard examining what the parties said and

did, not by the parties’ subjective states of mind. Bright, 171 S.W.3d at 596;

Roberts, 991 S.W.2d at 880; Vinson & Elkins, 946 S.W.2d at 405.

      Thus, an attorney-client relationship may be implied from the conduct of

the two parties. Kotzur v. Kelly, 791 S.W.2d 254, 257–58 (Tex. App.—Corpus

Christi 1990, no writ); Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex.

App.—Texarkana 1989, writ denied); see also Lemaire v. Davis, 79 S.W.3d

592, 600 (Tex. App.—Amarillo 2002, pet. denied) (explaining that an attorney-

client relationship may be implied “from the conduct of the parties”); Scientific

Leasing, Inc. v. Windle, No. 05-92-00469-CV, 1993 WL 25336, at *5 (Tex.

App.—Dallas Feb. 4, 1993, no writ) (not designated for publication) (“Both

parties must manifest an intention to create an attorney-client relationship by

their conduct.”). Conversely, an attorney-client relationship cannot be implied

based simply on the conduct of an attorney; the “client” must also engage in

conduct evidencing the client’s acceptance of the attorney-client relationship.

See Collin County v. Johnson, No. 05-95-00281-CV, 1996 WL 223590, at

*5–6 (Tex. App.—Dallas Apr. 30, 1996, no writ) (not designated for

publication) (refusing to imply attorney-client relationship because conduct of




                                       12
plaintiff—the alleged client—“indicates that it was looking to American States

Insurance rather than to [attorney] Johnson to protect its subrogation interest”).

      Even in the absence of an attorney-client relationship, an attorney may

be liable for negligently failing to advise a party that he is not representing the

party. Burnap v. Linnartz, 914 S.W.2d 142, 148 (Tex. App.—San Antonio

1995, writ denied); Kotzur, 791 S.W.2d at 258; Parker, 772 S.W.2d at 157.

Generally, such negligence cannot be established in the absence of evidence

that the attorney knew that the party had assumed that he was representing

the party in a matter. Burnap, 914 S.W.2d at 148–49 (citing Dillard v. Broyles,

633 S.W.2d 636, 643 (Tex. App.—Corpus Christi 1982, writ ref’d n.r.e.), cert.

denied, 463 U.S. 1208 (1983)). If circumstances lead a party to believe that

it is represented by an attorney, however, the attorney may be held negligent

for failing to advise that party of the attorney’s non-representation. Id. at 149;

Parker, 772 S.W.2d at 157; Rice v. Forestier, 415 S.W.2d 711, 713 (Tex. Civ.

App.—San Antonio 1967, writ ref’d n.r.e.).         The question is whether the

attorney was aware or should have been aware that his conduct would have led

a reasonable person to believe that the attorney was representing that person.

Burnap, 914 S.W.2d at 149; Parker, 772 S.W.2d at 157.5


      5
      … Bergthold cites disciplinary rule of professional conduct 1.12 as a
standard of liability. Rule 1.12 provides that a lawyer representing an

                                        13
                       D. No Attorney-Client Relationship

      On appeal, Bergthold does not argue that he entered into an express

attorney-client relationship with attorney Andrews and Winstead. We therefore

turn to the summary judgment evidence of what the parties said and did to

determine whether Winstead conclusively negated the existence of an implied

attorney-client relationship.   See Bright, 171 S.W.3d at 596; Roberts, 991

S.W.2d at 880; Vinson & Elkins, 946 S.W.2d at 405.

      To recap the summary judgment evidence, according to Bergthold,

attorney Andrews told Bergthold that Winstead represented both SWBYP and

its employees, including Bergthold. Attorney Andrews called Bergthold two or

three times before Bergthold’s deposition in the Bingham litigation. Bergthold




organization shall—when dealing with the organization’s employees—explain
the identity of the client when it is apparent that the organization’s interests are
adverse to those of its constituents. Tex. Disciplinary R. Prof’l Conduct
1.12(e). But the preamble to the State Bar Rules states that the rules do not
define standards of civil liability, that violation of the rules does not give rise to
a private cause of action nor create any presumption that a legal duty to a client
has been breached, and that nothing in the rules should be deemed to augment
any substantive legal duty of lawyers or the extra-disciplinary consequences of
violating such a duty. Id. preamble ¶ 15. The disciplinary rules set forth the
proper conduct of lawyers solely for the purpose of discipline within the
profession. 1 J. Hadley Edgar, Jr. & James B. Sales, Texas Torts & Remedies
§ 12.02[1][a][ii][A] (2000). A private cause of action does not exist for
violation of the disciplinary rules. Id.; Jones v. Blume, 196 S.W.3d 440, 449
(Tex. App.—Dallas 2006, pet. denied). Thus, our analysis will focus on the
common law standards of liability articulated in the foregoing paragraphs.

                                         14
and attorney Andrews both testified that Bergthold asked attorney Andrews

whether he should take anything to his deposition. According to Bergthold,

attorney Andrews “suggested or indicated that if I had to have a document to

answer a question, to bring it. He didn’t say which documents or how.” This

objective evidence of what the parties said and did is some evidence of

attorney Andrews’s intention to create an attorney-client relationship, but there

must also be some objective evidence of Bergthold’s intention to create an

attorney-client relationship; that is, there must be some evidence of a mutual

understanding between the parties that attorney Andrews was acting as

Bergthold’s counsel. See Bright, 171 S.W.3d at 596; Roberts, 991 S.W.2d at

880; Vinson & Elkins, 946 S.W.2d at 405.

      Bergthold’s conduct—conclusively established in the summary judgment

record through Bergthold’s own testimony— defeats as a matter of law any

implied attorney-client relationship between himself and attorney Andrews

during Bergthold’s deposition in the Bingham litigation. Bergthold contacted

and met several times with attorney Carse beginning more than a year before

his deposition in the Bingham litigation.    Bergthold refused to disclose the

purpose of these meetings, or the date on which Bergthold paid attorney Carse

a retainer fee, based on attorney-client privilege—an attorney-client relationship

between Bergthold and attorney Carse that existed prior to October 20, 2005.

                                       15
Later, Bergthold revealed that the meetings were to “discuss those complaints

[against SWBYP] and . . . what remedies we may or may not have or what we

could or couldn’t do about those.” On the date of his scheduled deposition in

the Bingham litigation and prior to his deposition, Bergthold went to lunch with

attorney Carse and Bingham; and Sharley discussed her deposition in front of

attorney Carse and fielded questions from Bergthold about anything that would

help him in his deposition. Additionally, Sharley informed Bergthold in front of

attorney Carse that multi-year contracts were an issue.      Seven days after

Bergthold’s deposition in the Bingham litigation, attorney Carse filed suit on

Bergthold’s behalf against SWBYP, asserting a cause of action for defamation

that allegedly occurred on a date prior to Bergthold’s deposition in the Bingham

litigation.

       The summary judgment evidence establishes that Bergthold and attorney

Andrews spoke three times via telephone prior to Bergthold’s deposition.

Attorney Andrews called Bergthold each time they spoke; Bergthold never

called attorney Andrews.     Bergthold testified that he did not tell attorney

Andrews that he was bringing the multi-year contracts to his deposition and did

not show the contracts to attorney Andrews before his deposition. Bergthold

admitted that attorney Andrews did not know of the existence of the multi-year

contracts before the deposition.

                                      16
      In the trial court and on appeal, the parties argue over the significance of

attorney Andrews’s statements—made at Sharley’s deposition in the Bingham

litigation—that he represented Sharley, but any attorney-client relationship

attorney Andrews may or may not have had with Sharley has no bearing on

whether Bergthold’s conduct manifested an implied attorney client relationship

between himself and attorney Andrews.          In short, Winstead’s summary

judgment evidence concerning Bergthold’s conduct conclusively establishes that

Bergthold did not engage in conduct manifesting the existence of an implied

attorney-client relationship between himself and attorney Andrews.

      Bergthold’s conduct as reflected in the summary judgment evidence, if

anything, manifested the existence of an implied attorney-client relationship

between himself and attorney Carse on October 20, 2005 during his deposition

in the Bingham litigation. See, e.g., Brown v. McCleskey, Harriger, Brazil and

Graf, L.L.P., No. 07-99-00027-CV, 1999 W L 795478, at *6–7 (Tex.

App.—Amarillo Oct. 6, 1999, pet. denied) (not designated for publication)

(noting factors external to the transaction at issue—including representation on

other matters—that could support an inference that attorney knew client

thought attorney was representing him). Bergthold went to lunch with attorney

Carse, Bingham, Fuchs, and Sharley; sought advice concerning his deposition;

and was told that multi-year contracts were at issue.            Attorney Carse

                                       17
rescheduled his deposition of Bergthold, and Bergthold—without consulting the

attorney he now claims represented him specifically on whether he should bring

multi-year contracts—brought them with him to his deposition. Additionally,

Bergthold visited with attorney Carse during breaks in his deposition, Berthold

went to attorney Carse for advice and clarification of the meaning of attorney

Andrews’s comment at the end of his deposition, and attorney Carse responded

that he would protect Bergthold’s interests if SWBYP engaged in any punitive

conduct.

       Thus, even viewing all of the summary judgment evidence in the light

most favorable to Bergthold, at most that summary judgment evidence

establishes that possibly attorney Andrews’s conduct might have manifested

an intent that he represent Bergthold at his October 20, 2005 deposition in the

Bingham litigation. But an attorney-client relationship cannot be implied based

on the conduct of only one party. See Kotzur, 791 S.W.2d at 257–58; Parker,

772 S.W.2d at 157. The summary judgment evidence concerning Bergthold’s

conduct conclusively establishes that Bergthold did not engage in any conduct

manifesting an implied attorney-client relationship with attorney Andrews and

instead indicates that Bergthold was not looking to attorney Andrews, but to

attorney Carse, to protect his interests during his deposition in the Bingham

litigation.

                                      18
   E. No Duty to Inform of Non-Existence of Attorney-Client Relationship

      Likewise, the same evidence detailed above conclusively negates the

existence of any duty by attorney Andrews to inform Bergthold that he did not

represent Bergthold.   Such a duty may arise when circumstances lead a

reasonable person to believe they are represented by the attorney. Burnap, 914

S.W .2d at 149. In determining whether such a duty exists, we examine the

conduct of the parties at the time of the assumed representation—here, leading

up to and during Bergthold’s deposition in the Bingham litigation. Bergthold’s

conduct, as reflected in the summary judgment evidence, is inconsistent with

an assumption that attorney Andrews represented him at his October 20, 2005

deposition.   See Dillard, 633 S.W .2d at 643 (declining to impose duty on

attorney to affirmatively deny that he represented appellants when there was

no evidence that appellants assumed attorney represented them). Bergthold

never initiated contact with attorney Andrews, Bergthold did not tell attorney

Andrews that he was bringing the multi-year contracts to his deposition or even

inform attorney Andrews of the existence of such contracts, Bergthold went to

lunch with attorney Carse—the attorney taking his deposition—on the day of

his deposition, and Bergthold had a conversation with Sharley, in front of

attorney Carse, about what to expect in his deposition. Bergthold’s conduct

demonstrates that he affirmatively rejected any representation by attorney

                                      19
Andrews during his deposition. And Bergthold could not have been represented

during his deposition by both attorney Carse, the attorney taking his deposition,

and attorney Andrews, the attorney defending his deposition. Under these

narrow facts, because the summary judgment evidence, even viewed in the

light most favorable to Bergthold, conclusively establishes that Bergthold

rejected representation by attorney Andrews at his October 20, 2005

deposition in the Bingham litigation and instead looked to attorney Carse for

representation, attorney Andrews possessed no duty to tell Bergthold that he

did not represent Bergthold at that deposition.

      Consequently, because the summary judgment evidence conclusively

establishes that no attorney-client relationship existed between attorney

Andrews and Bergthold and that attorney Andrews had no duty to inform

Bergthold that he did not represent him, we hold that the trial court did not err

by granting summary judgment on this basis.          Accordingly, we overrule

Bergthold’s first issue.




                                       20
                              IV. C ONCLUSION

     Having overruled both of Bergthold’s issues, we affirm the trial court’s

summary judgment for Winstead.




                                                SUE WALKER
                                                JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

GARDNER, J. filed a concurring and dissenting opinion.

DELIVERED: January 29, 2009




                                    21
                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 2-07-325-CV

JERRY BERGTHOLD                                                  APPELLANT

                                        V.

WINSTEAD SECHREST &                                                APPELLEE
MINICK, P.C.
                                    ------------

           FROM THE 236TH DISTRICT COURT OF TARRANT COUNTY

                                    ------------

           CONCURRING AND DISSENTING MEMORANDUM OPINION 1

      I agree with the majority that Winstead’s summary judgment motion on

Bergthold’s legal malpractice claim was not a no-evidence motion and must be

reviewed under the traditional standard of review. I agree that the summary

judgment evidence conclusively established that neither an express nor an

implied attorney-client relationship existed between Winstead and Bergthold.

However, I must disagree that Winstead conclusively established on this record

that attorney Andrews owed no duty to affirmatively advise Bergthold that he

did not represent him in the deposition.



      1
          … See Tex. R. App. P. 47.4.
      I believe we must indulge the reasonable inference in favor of Bergthold

from the evidence of what the parties said and did, particularly Bergthold’s

testimony that attorney Andrews told him he was representing him in the

matter, that Andrews thereby knew or at least should have known that his

conduct would lead a reasonable person to assume Andrews (and hence,

Winstead) was, indeed, representing Bergthold.2

      Dillards v. Broyles 3 is cited by the majority for the proposition that no duty

to advise arose when there was no evidence that appellants assumed that the

attorney represented them. Dillards involved an instructed verdict, which was

proper where there was no evidence to raise an issue of fact for the jury. But

we are reviewing a traditional summary judgment requiring that evidence negate

an element of a claim as a matter of law, not a no-evidence motion. And again,




      2
       … See Burnap v. Linnartz, 914 S.W.2d 142, 149 (Tex. App.—San
Antonio 1995, writ denied) (holding circumstances may lead a party to believe
they are represented by an attorney); Parker v. Carnahan, 772 S.W.2d 151,
157 (Tex. App.—Texarkana 1989, writ denied) (holding fact issue on duty
raised by evidence attorneys were aware or should have been aware their
conduct would lead a reasonable person to believe she was being represented
by them).
      3
        … 633 S.W.2d 636, 643 (Tex. Civ. App.—Corpus Christi, writ ref’d
n.r.e.), cert. denied, 463 U.S. 1208 (1983).

                                         2
unlike Dillards, there is affirmative evidence here that attorney Andrews told

Bergthold he was representing him.4 We cannot simply disregard that evidence.

      As the majority recognizes, when reviewing a traditional summary

judgment, the issue is whether the movant established its right to judgment as

a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73

S.W.3d 211, 215 (Tex. 2002); City of the Colony v. N. Tex. Mun. Water Dist.,

No. 02-07-00128-CV, 2008 WL 5056886, at *8 (Tex. App.—Fort Worth, Nov.

26, 2008, no pet. h.). The burden of proof was on Winstead, and we must

indulge every reasonable inference and resolve all doubts about the existence

of a genuine issue of material fact in favor of Bergthold, the nonmovant. Sw.

Elec. Power Co., 73 S.W.3d at 215. We take as true all evidence favorable to

Bergthold. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.

2005). Reviewed under the proper standard, I do not believe Winstead met its

burden with respect to Bergthold’s negligence claim.




                                                ANNE GARDNER
                                                JUSTICE


DELIVERED: January 29, 2009


      4
       … Likewise, there was no evidence offered in Brown v. McCleskey, No.
07-99-00027-CV, 1999 WL 795478 (Tex. App.—Amarillo October 6,1999,
pet. denied) (not designated for publication), unlike in this case, that the
attorney told the putative client that he represented her.

                                      3
