                             NUMBER 13-06-469-CV

                            COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG


ROBERT S. BENNETT, INDIVIDUALLY                                            Appellants,
AND THE BENNETT LAW FIRM, P.C.

v.

STEPHEN T. LEAS,                                                              Appellee.


              On appeal from the County Court at Law No. 4
                        of Hidalgo County, Texas


              DISSENTING MEMORANDUM OPINION

        Before Chief Justice Valdez and Justices Yañez and Vela
           Dissenting Memorandum Opinion by Justice Vela

      I dissent from the majority’s opinion because I do not agree that a legal malpractice

claim can be broadly construed as personal injury claim for purposes of the Texas

Arbitration Act. See TEX . CIV. PRAC . & REM . CODE ANN . § 171.002(a)(3) (Vernon 2005).
The majority correctly sets forth the holdings of three sister courts that disagree with our

holding in, In re Godt, that a legal malpractice case is a personal injury claim and exempt

under the Texas Arbitration Act. In re Godt, 28 S.W.3d 732, 738-39 (Tex. App.–Corpus

Christi 2000, orig. proceeding); contra Taylor v. Wilson, 180 S.W.3d 627, 631 (Tex.

App.–Houston [14th Dist.] 2005, pet. denied); Miller v. Brewer, 118 S.W.3d 896, 898 (Tex.

App.–Amarillo 2003, no pet.) (per curiam); In re Hartigan, 107 S.W.3d 684, 690 (Tex.

App.–San Antonio 2003, orig. proceeding). The cases, disapproving Godt, point out that

Willis v. Maverick, the underlying authority for this Court’s reasoning, does not really

support the Court’s holding. See Willis v. Maverick, 760 S.W.2d 642, 644 (Tex. 1988).

This Court relied on Willis as authority for the proposition that a legal malpractice claim is

one for tort, and therefore is also a claim for personal injury. Id. Willis held only that a

legal malpractice case qualifies as a tort in order to apply the two year statute of limitations.

Id. The issue in Willis was limitations, not the nature of a legal malpractice claim. See

Robert J. Kraemer, Attorney-Client Conundrum: The Use of Arbitration Agreements for

Legal Malpractice in Texas, 33 St. Mary’s L.J. 909, 930 (2002).

       In addition to Willis, Godt relied on two derivative cases to support its holding. Two

years after Willis, this Court held that legal malpractice qualified as a personal injury action

for purposes of applying a two year statute of limitations. Estate of Degley v. Vega, 797

S.W.2d 299, 302-03 (Tex. App.–Corpus Christi 1990, no writ). Again, this Court cited Willis

as authority for the proposition that a legal malpractice case is a personal injury claim. Id.

However, the words “personal injury” do not appear anywhere in the Willis opinion. The

second was Sample v. Freeman, which also relied on Willis for the same proposition.

Sample v. Freeman, 873 S.W.2d 470, 476 (Tex. App.–Beaumont 1994, writ denied). Thus,

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our opinions in Godt and the majority opinion in this case ultimately rely on a proposition

of law attributed to Willis, but not actually determined by the supreme court in Willis. That,

however, only begins the inquiry.

       The Texas Arbitration Act does not apply to claims for personal injury. TEX . CIV.

PRAC . & REM . CODE ANN . § 171.002 (a)(3). There is a strong presumption favoring

arbitration that generally requires we resolve disputes as to the scope of the agreement in

favor of coverage. In re Kellogg, Brown & Root, Inc., 166 S.W.3d 732, 737 (Tex. 2005).

In disagreeing with Godt, the Taylor court relied on the legislative history of the Texas

Arbitration Act. See Taylor, 180 S.W.3d at 630-31. According to Taylor, the legislative

history focused on the exemption of workers’ compensation claims from arbitration. Id. at

631; TEX . CIV. PRAC . & REM . CODE ANN . § 171.002(a)(4). The Taylor court reasoned that

a 1978 amendment allowed arbitration of personal injury actions so long as the parties

could prove they were advised on the implications of arbitration by counsel. Id. Taylor

states that the amendment was only concerned with physical personal injuries because

it also sought to exclude workers’ compensation claims. Id. But even this analysis seems

to come up short.

       The concurring opinion in Taylor presents a more persuasive argument. It states

that it makes no sense that the legislature intended to limit personal injury claims to

physical personal injury solely because the legislature also was considering an exemption

for workers’ compensation claims.        Id. at 634 (Frost, J., concurring).     Rather, the

concurrence argues that an analysis of the plain meaning of the statute should result in a

simple holding that a legal malpractice case is not a claim for personal injury. Id. at 635.

       I would begin by looking to the definition of personal injury as well as the type of

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damages sought in deciding if legal malpractice cases, in general, and, in particular, this

legal malpractice case, are claims for personal injury. A “personal injury” is defined as:

“In a negligence action, any harm caused to a person, such as a broken bone, a cut or a

bruise; bodily injury. 2. Any invasion of a personal right, including mental suffering and

false imprisonment.” BLACK’S LAW DICTIONARY 651 (8th ed. 2004).

       The crux of a malpractice claim is that a party would have been compensated for

an injury but for the negligence of the attorney. See Taylor v. Wilson, 180 S.W.3d at 633

(citing Eastman v. Messner, 721 N.E.2d 1154, 1158 (Ill.1999) (Frost, J., concurring). It is

generally a pecuniary injury to intangible property. Id. Fundamentally, a legal malpractice

claim is not a personal right "seeking redress for injury to one’s body, mind, or emotions."

Id. Rather, it is a claim for an intangible interest. Id.

       Recently, the supreme court iterated that when an attorney’s malpractice results in

financial loss, the aggrieved client is fully compensated by recovery of that loss; the client

may not recover damages for mental anguish or other personal injuries.                Belt v.

Oppenheimer, Blend, Harrison & Tate, 192 S.W.3d 780, 784 (Tex. 2006). In Tate, the

court held that estate planning malpractice claims seeking purely economic loss are limited

to recovery for property damage. Id. While the supreme court, in Tate, certainly did not

say legal malpractice cases are not personal injury cases, it opined that, when the

damages are financial loss, a party is fully compensated by recovery of that loss. Id.

Earlier, the supreme court denied mental anguish damages caused by economic loss in

a legal malpractice case. Douglas v. Delp, 987 S.W.2d 879, 885 (Tex. 1999).

        Here, appellee does not plead those types of damages generally associated with

“personal injury.”    Rather, his petition urges that he “was and is being damaged

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economically due to the said failures of defendant to exercise the requisite degree of care

and skill, which damage is continuing to accrue.” Financial losses are not personal injury

damages. Hencerling v. Tex. A & M Univ., 986 S.W.2d 373, 375 (Tex. App.–Houston [1st

Dist.] 1999, pet. denied).

       Taking into consideration the general definition of personal injury, the nature of a

malpractice action and the damages generally suffered as a result of an attorney’s

negligence in such a claim, this claim was not one for personal injury. Again, I agree with

the concurring opinion in Taylor that legal malpractice claims do not involve bodily injury

or the invasion of a personal right. Taylor, 180 S.W.3d at 632.

       Accordingly, I would overrule our precedent and hold that a legal malpractice case

is not a claim for personal injury. Therefore, it should not be exempt from arbitration under

section 171.002(a)(3) of the Texas Arbitration Act. I would sustain appellant’s second and

third issues and address appellant’s remaining issues.




                                                    ROSE VELA
                                                    Justice


Dissenting Memorandum Opinion delivered
and filed this 26th day of June, 2008.




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