      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-08-00042-CV



                         Angela Brescia and Duane Brescia, Appellants

                                                  v.

                      Slack & Davis, L.L.P. and Donna Bowen, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
     NO. D-1-GN-06-002500, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Angela Brescia and Duane Brescia (the “Brescias”) sued Slack & Davis, L.L.P., and

attorney Donna Bowen (collectively, “Slack & Davis”or “the law firm”) for negligence, deceptive

trade practices, and breach of fiduciary duty in the handling of the Brescias’ underlying medical-

malpractice lawsuit. The trial court denied the Brescias’ motion for entry of a discovery-control plan

(Level 3) and struck two of the Brescias’ expert-witness affidavits. The court then granted Slack

& Davis’s no-evidence motion for summary judgment and rendered judgment that the Brescias take

nothing on all claims. On appeal, the Brescias argue seven issues,1 summarized by the following

three issues: (1) whether the trial court abused its discretion by denying the Brescias’ motion for

entry of a discovery-control plan and by striking the affidavits of two of the Brescias’ experts;


       1
          The Brescias concede the supreme court’s decision in Fort Brown Villas III Condo.
Ass’n. v. Gillenwater disposes of their fourth issue. 285 S.W.3d 879 (Tex. 2009).
(2) whether claims for deceptive trade practices and breach of fiduciary duties are subject to the

“suit-within-a-suit” requirement; and (3) whether Slack & Davis’s no-evidence motion was legally

sufficient to support a take-nothing summary judgment on all claims. We will affirm the judgment

of the trial court.


                      FACTUAL AND PROCEDURAL BACKGROUND

                In August 2001, Angela Brescia was admitted to Presbyterian Hospital

(“Presbyterian”) in Dallas for the delivery of her first child. Her obstetrician was Dr. Bernadine

Bank, who practiced through the Walnut Hill Obstetrics & Gynecology Association (“Walnut Hill”).

To induce labor, Angela was administered the drug Cytotec as a cervical ripener. The United States

Food and Drug Administrative (“FDA”) had approved Cytotec for treating peptic ulcers but not to

induce labor. Both the drug’s manufacturer and the FDA had issued warnings against giving Cytotec

to pregnant women, noting that uterine rupture and maternal or fetal death had been reported when

the drug was used “off-label” as a labor inducer. After receiving the drug, Angela’s uterus ruptured

and her baby was delivered by emergency cesarean section.

                While still hospitalized and recovering from surgery, Angela began experiencing

abdominal swelling and severe discomfort. Five days after the cesarean section, a surgeon

determined that Angela’s colon had been perforated multiple times and she had peritonitis as a result.

The surgeon removed 60 percent of Angela’s colon and part of her small intestine. She has since

endured several additional surgical procedures to correct intestinal problems and resulting

complications that continue to this day and has been told she cannot safely bear any more children.

                After initially retaining another law firm, the Brescias hired Slack & Davis to pursue

                                                  2
a medical-malpractice case on their behalf. Bowen was the primary Slack & Davis attorney working

on the case. Slack & Davis asserts that it consulted with three doctors to review Angela’s medical

records and that two of those experts told the law firm that Dr. Bank, Walnut Hill, and Presbyterian

(collectively, the “underlying healthcare defendants”) should have informed Angela of the risks and

hazards associated with the use of Cytotec. The Brescias believed that, beyond the informed-consent

claim, the underlying healthcare defendants were also negligent in the following aspects:

(a) negligent administration of Cytotec to induce labor; (b) negligent follow-up care after Angela’s

cesarean section; (c) negligent failure to timely diagnose and treat Angela’s post-cesarean-section

infection; and (d) Dr. Bank’s negligent delay in calling for a surgical consultation (collectively, the

“additional medical-malpractice claims”). Yet, Slack & Davis contends the three medical experts

it consulted opined that the additional medical-malpractice claims were not viable and they told

Slack & Davis they would not testify that the underlying healthcare defendants breached the standard

of care with regard to those additional claims. In August 2003, Slack & Davis filed suit against the

underlying healthcare defendants, asserting they failed to obtain Angela’s informed consent to use

Cytotec and that failure breached the applicable standard of care (the “underlying lawsuit”).

               In September 2004, the Brescias fired Slack & Davis and hired another law firm. Just

prior to being fired, however, Slack & Davis reached an agreement with the underlying healthcare

defendants not only to continue the original trial date but also to maintain the existing expert-

designation deadline that had passed in May 2004. As a result, the Brescias’ new counsel, David

Marchand, was unable to designate experts who would testify to the Brescias’ additional medical-

malpractice claims. The Brescias were subsequently forced to settle the underlying lawsuit “for



                                                  3
nuisance value.” Six months later, in July 2006, the Brescias sued Slack & Davis.

               Although the Brescias’ original petition stated the case would be conducted as a

Level -3 discovery-control-plan case, no motion for entry of a discovery-control plan was filed. On

September 5, 2007, the Brescias filed a response to Slack & Davis’s request for disclosures that

stated no testifying expert witnesses had been retained. On September 7, 2007, they filed their

first amended petition.

               On September 17, 2007, Slack & Davis filed a no-evidence motion for summary

judgment. See Tex. R. Civ. P. 166a(i). In its motion, Slack & Davis alleged there was no expert

evidence to support the Brescias’ claims that they would have prevailed in the underlying lawsuit.

Two days later, the Brescias filed a motion for a Level-3 discovery-control plan and

served supplemental discovery responses, identifying William Neumann and Dr. Marsden Wagner

as testifying expert witnesses. On October 8, 2007, the Brescias filed a response to Slack

& Davis’s summary-judgment motion, to which they attached, among others, the affidavits of

Dr. Wagner and Neumann.

               The trial court denied the Brescias’ motion for entry of a discovery-control plan.

After sustaining Slack & Davis’s objections to the affidavits of Dr. Wagner and Neumann on the

grounds that neither was timely designated as an expert witness, the trial court struck the affidavits

as incompetent summary judgment evidence. The trial court then granted Slack & Davis’s no-

evidence motion for summary judgment and rendered judgment that the Brescias take nothing from

Slack & Davis. The Brescias now bring this appeal.




                                                  4
                                           DISCUSSION

Standard of Review

               We review the trial court’s decision to deny the Brescias’ motion for entry of a

discovery-control plan under an abuse-of-discretion standard. See Brown v. Brown, 145 S.W.3d

745, 750 (Tex. App.—Dallas 2004, pet. denied) (court did not abuse its discretion by denying motion

to modify discovery-control plan). The trial court abuses its discretion when it acts without reference

to any guiding rules and principles, such that its ruling is arbitrary or unreasonable. Low v. Henry,

221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).

               We review de novo the trial court’s decision to grant summary judgment. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under the no-evidence standard set

forth in Rule 166a(i), a defendant may, after adequate time for discovery, move for summary

judgment on the ground there is no evidence of one or more essential elements of a claim on which

the plaintiff would have the burden of proof at trial. See Tex. R. Civ. P. 166a(i). A no-evidence

summary judgment is, in essence, a pretrial directed verdict, and we apply the same legal-sufficiency

standard in reviewing a no-evidence summary judgment as we use in reviewing a directed verdict.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750-751 (Tex. 2003). We review the evidence in

the light most favorable to the nonmovant, disregarding all contrary evidence and inferences. Id. at

750. If the nonmovant brings forth more than a scintilla of evidence to raise a genuine issue of

material fact, a no-evidence summary judgment is improperly granted. Id. at 751. “More than a

scintilla of evidence exists when the evidence ‘rises to a level that would enable reasonable and fair-

minded people to differ in their conclusions.’” Id. (quoting Merrell Dow Pharms, Inc. v. Havner,

953 S.W.2d 706, 711 (Tex. 1997)).

                                                  5
Motion for Entry of a Level-3 Discovery-Control Plan

               A plaintiff must allege in the original petition whether discovery is intended to be

conducted under Level 1, 2, or 3. See Tex. R. Civ. P. 190.1. The Brescias’ petition stated an

intention to conduct discovery under Level 3. However, “[T]he initial pleading required by

Rule 190.1 is merely to notify the court and other parties of the plaintiff’s intention; it does not

determine the applicable discovery level or bind the court or other parties.” Id. 190 cmt.1. A case

can be designated Level 3 only by court order, despite pleading an intention to conduct discovery

under Level 3. Id.

               The Brescias assert the trial court erred in denying their motion for entry of a Level-3

discovery-control plan. Because the Brescias did not file their motion for entry of a discovery-

control plan until the expert-designation deadline under Level 2 had passed and Slack & Davis had

filed their motion for summary judgment, a Level-2 discovery-control plan was in effect. The

Brescias did not dispute that the expert-designation deadline had passed. However, they requested

that the trial court, “in the interest of justice,” enter a scheduling order with a new expert-

designation-deadline. Without explanation, the trial court denied the Brescias’ motion.

               The Brescias contend Texas Rule of Civil Procedure 190.4(a) required the court to

grant their motion and enter a discovery-control plan that changed the Level-2 deadlines applicable

to this lawsuit. See Tex. R. Civ. P. 190.4(a). We disagree. Rule 190.4(a) states, in pertinent part,

the following: “The court must, on a party’s motion . . . order that discovery be conducted in

accordance with a discovery control plan tailored to the circumstances of the specific suit.” But

Rule 190.4 does not require that the court’s order provide deadlines different from those under a



                                                  6
Level-2 case. Rather, the decision to provide different deadlines is left to the court’s discretion.

See Tex. R. Civ. P. 190.4(b) (“The discovery control plan ordered by the court . . . may change any

limitation on the time for . . . discovery set forth in these rules.” (Emphasis added.)); Allen v. United

of Omaha Life Ins. Co., 236 S.W.3d 315, 327 (Tex. App.—Fort Worth 2007, pet. denied);

Baize v. Scott & White Clinic, No. 03-05-00780-CV, 2007 WL 135956, at *9 (Tex. App.—Austin

Jan. 22, 2007, pet. denied) (mem. op.) (court’s discretion to provide deadlines different from those

under Level-2 case). In other words, even under a Level-3 scheduling order, Level-2 deadlines

continue to apply “unless specifically changed in the discovery control plan ordered by the court.”

See Tex. R. Civ. P. 190.4(b).

                The Brescias further argue Rule 190.5 provides that a court must modify a discovery-

control plan “when the interest of justice requires” and that the circumstances of this lawsuit

compelled the trial court to modify the discovery-control plan. See id. 190.5. They point out their

original petition stated this case would be conducted under a Level-3 discovery-control plan, and

both sides subsequently conducted active written discovery. The Brescias note that their trial

attorney, Jerome Schiefelbein, wrote Slack & Davis in December 2006 seeking entry of a docket-

control order and trial date. In his affidavit attached to the Brescias’ response to Slack & Davis’s

motion for summary judgment, Schiefelbein stated that, although he received no response to his

December 2006 letter, he was told during conversations with Slack & Davis that they would discuss

those issues later. Schiefelbein stated he believed that, once written discovery had concluded, Slack

& Davis would agree to a Level-3 discovery-control plan without the need for a formal motion. He

affirmed he based this belief on his conversations with Slack & Davis and his experience with



                                                   7
another law firm in an unrelated case. On September 10, 2007, Schiefelbein again wrote opposing

counsel, suggesting trial dates and entry of a discovery-control plan. However, on September 18,

2007, he received a letter from Slack & Davis stating they had filed their no-evidence motion for

summary judgment. The Brescias assert these circumstances and the “stringing Schiefelbein along

until the Level 2 deadline expired” required the trial court, in the interest of justice, to modify the

Level-2 discovery-control plan by extending the expert-designation deadline.

               Rule 190.5 (“Modification of Discovery Control Plan”) provides:


               The court may modify a discovery control plan at any time and must
               do so when the interest of justice requires. The court must allow
               additional discovery:

               (a) related to new, amended or supplemental pleadings, or new
               information disclosed in a discovery response or in an amended or
               supplemental response, if:

                       (1) the pleadings or responses were made after the
                       deadline for completion of discovery or so nearly
                       before that deadline that an adverse party does not
                       have an adequate opportunity to conduct discovery
                       related to the new matters, and
                       (2) the adverse party would be unfairly prejudiced
                       without such additional discovery;

               (b) regarding matters that have changed materially after the discovery
               cutoff if trial is set or postponed so that the trial date is more than
               three months after the discovery period ends.


Tex. R. Civ. P. 190.5 (emphasis added).

               Rule 190.5 lists two specific situations in which the trial court must modify a

discovery-control plan to allow for additional discovery. Id. 190.5(a), (b). The Brescias do not argue



                                                  8
that either of these two situations applies. Rather, they contend that modification was called for “in

the interest of justice.”

                This cause had been pending for fourteen months when, in response to Slack &

Davis’s request for disclosures, the Brescias stated no testifying expert witnesses had been retained.

Only after Slack & Davis filed its no-evidence motion for summary judgment did the Brescias file

their motion for entry of a discovery-control plan and serve supplemental discovery responses

identifying their expert witnesses. In any event, the trial court considered the Brescias’ motion,

Slack & Davis’s response, arguments of counsel, and the Brescias’ post-hearing brief before denying

the motion. In making its decision, the court could reasonably have concluded that the circumstances

set forth in Schiefelbein’s affidavit did not, in the interest of justice, compel the court to modify the

Level-2 deadlines. The court could also have reasonably concluded that Schiefelbein should not

have relied on his experience with different attorneys in another lawsuit but should have timely filed

a Rule 190.4 motion in an effort to obtain a Level-3 discovery-control order and documented

in writing any oral agreements between the parties as required by Rule 11. See Tex. R. Civ. P. 11,

190.4. We conclude it was within the trial court’s discretion to hold that “the interest of justice”

did not require modification of the discovery-control plan. See Brown, 145 S.W.3d at 750;

Fuentes v. Schooling, No.07-07-00118-CV, 2008 WL 5083012, at *4 (Tex. App.—Amarillo

Dec. 3, 2008, no pet.) (mem. op.); Abdelhak v. Farney, No. 04-07-00121-CV, 2007 WL 4180133,

at *2 (Tex. App.—San Antonio Nov. 28, 2007, no pet.) (mem op.). The Brescias’ fifth issue is

overruled.




                                                   9
Striking the Affidavits of the Brescias’ Expert Witnesses

       In their sixth issue, the Brescias argue the trial court abused its discretion in striking the

affidavits of their experts Wagner and Neumann as untimely designated. If a party fails to timely

designate a witness, then testimony from that witness will be excluded unless the trial court

determines that the party seeking to introduce the evidence establishes either (1) there was good

cause for the failure, or (2) the failure to designate witnesses will neither unfairly surprise

nor unfairly prejudice the other parties. Tex. R. Civ. P. 193.6(a); Fort Brown Villas III Condo.

Ass’n. v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009); Ersek v. Davis & Davis, P.C., 69 S.W.3d

268, 271 (Tex. App.—Austin 2002, pet. denied). The burden of establishing good cause or lack of

unfair surprise or unfair prejudice is on the party seeking to introduce the evidence. Tex. R. Civ.

P. 193.6(b). A finding of good cause or lack of unfair surprise or unfair prejudice must be supported

by the record. Id. The trial court’s decision to exclude the affidavits of the untimely-designated

expert witnesses Wagner and Neumann can be overturned only on a finding of abuse of discretion.

See Fort Brown Villas, 285 S.W.3d at 881. Abuse of discretion occurs when the trial court reaches

a decision so arbitrary and unreasonable as to be essentially a clear and prejudicial error of law. In

re Bass, 1113 S.W.3d 735, 738 (Tex. 2003).

                  The Brescias do not assert they established good cause for their failure to timely

  designate expert witnesses. Rather, they contend Slack & Davis was neither unfairly surprised

  nor unfairly prejudiced by their late designation of experts Wagner and Neumann. They argue

  no depositions had been taken, no trial date had been set, and Slack & Davis had designated no

  experts, thus “undermining any suggestion” that Slack & Davis “truly believed this was a Level 2



                                                   10
case or that it needed the Brescias’ expert designations to prepare for trial.” Even if Slack

& Davis were somehow surprised or prejudiced by the Brescias’ late designation of Wagner and

Neumann, the Brescias contend “that can hardly be described as ‘unfair’ under these facts and

particularly in light of [Slack & Davis’s] role in creating the situation at hand.”

               We find the Brescias’ arguments unpersuasive. Rule 193.6(a)(2) reads as follows:


               (a)     Exclusion of Evidence and Exceptions. A party
                       who fails to make, amend, or supplement a
                       discovery response in a timely manner may not
                       introduce in evidence the material or information
                       that was not timely disclosed, or offer the
                       testimony of a witness (other than a named party)
                       who was not timely identified, unless the court
                       finds that:
                                        *       *     *
                       (2)     the failure to timely make, amend,
                               or supplement the discovery
                               response will not unfairly surprise
                               or unfairly prejudice the other
                               parties.


Tex. R. Civ. P. 193.6(a)(2).

               The supreme court discussed the concept of unfair surprise in Alvarado v. Farah

Manufacturing Co.:


               Determining whether a party is really surprised by an offer of
               testimony not formally identified in discovery is difficult. The
               better prepared counsel is for trial, the more likely he is to have
               anticipated what evidence may be offered against his client, and
               the less likely he is to be surprised. It would hardly be right to
               reward competent counsel’s diligent preparation by excusing his
               opponent from complying with the requirements of the rules. As
               we explained in [Sharp v. Broadway National Bank]:

                                                11
                       A party is entitled to prepare for trial assured that
                       a witness will not be called because opposing
                       counsel has not identified him or her in response to
                       a proper interrogatory. . . .


830 S.W.2d 911, 915 (Tex. 1992) (quoting Sharp v. Broadway Nat’l Bank, 784 S.W.2d 669, 671

(Tex. 1990)). Depending on the discovery plan level, the discovery rules establish a date certain

for the completion of discovery. Fort Brown Villas, 285 S.W.3d at 882; see Tex. R. Civ. P.

190.2-.4. Under the discovery rules, no longer is there a concern that discovery will be

incomplete at the summary judgment phase. Fort Brown Villas, 285 S.W.3d at 882. The specific

deadline established by the pretrial discovery rules ensures that the evidence presented at the

summary judgment stage and at the trial stage remains the same. Id.

               In this case, the Brescias designated Wagner and Neumann as their experts six

months after the expert-designation deadline had expired and only after Slack & Davis had filed

its motion for summary judgment. Apparently, after balancing Slack & Davis’s preparation for

trial against the failure of Brescias’ counsel to comply with the requirements of the discovery

rules, the court determined that the affidavits of the Brescias’ untimely-designated expert

witnesses should be excluded. We hold the trial court’s decision to exclude the affidavits of

experts Wagner and Neumann was not so arbitrary and unreasonable as to be an abuse of

discretion. See Fort Brown Villas, 285 S.W.3d at 882; Ersek, 69 S.W.3d at 272. We further hold

the Brescias have failed to satisfy their burden of showing that no reasonable judge could have

determined that the affidavits of the Brescias’ expert-witnesses would not have unfairly surprised

or unfairly prejudiced Slack & Davis. Id. The Brescias’ sixth issue is overruled.

                                                12
Sufficiency of Rule 166a(i) Motion

               In their first, third, and seventh issues, the Brescias assert Slack & Davis’s

Rule 166a(i) motion was legally insufficient to support the trial court’s decision to grant summary

judgment on all their claims. The Brescias argue the motion failed to identify any of the elements

of a Texas Deceptive Trade Practices—Consumer Protection Act (“DTPA”) cause of action and

a breach-of-fiduciary-duty claim with the kind of specificity Rule 166a(i) requires. See Tex. R.

Civ. P. 166a(i) (motion must state elements to which there is no evidence). They contend the

closest the motion came to identifying the elements of a DTPA claim and a breach-of-fiduciary-

duty claim was to mention the concept of producing cause. Slack & Davis, however, contends

its motion complied with Rule 166a(i) because, in each of the Brescias’ claims, it specifically

identified causation as the element for which there was no evidence. The Brescias refute this

contention, arguing the motion only mentioned the concept of producing cause in the context of

whether Slack & Davis’s negligence caused the Brescias’ damages—not whether the Brescias

suffered damages as a result of Slack & Davis’s deceptive trade practices and breach of fiduciary

duty. The Brescias urge that, because the trial court granted relief beyond what Slack & Davis’s

no-evidence motion properly requested, that is, the court granted summary judgment and rendered

a take-nothing judgment on all the Brescias’ claims, the judgment should be reversed. See

Lehmann v. Har-Con Corp., 39 S.W.3d 191, 200 (Tex. 2001).

               To prevail on a no-evidence motion, the movant must allege there is no evidence

of an essential element of the adverse party’s claim. Tex. R. Civ. P. 166a(i); Southwestern Elec.

Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). A no-evidence motion that merely



                                                13
challenges the sufficiency of the nonmovant’s case and fails to specifically state the elements for

which there is no evidence is fundamentally defective and insufficient to support summary

judgment as a matter of law. Fieldtech Avionics & Instruments, Inc. v. Component Control.Com,

Inc., 262 S.W.3d 813, 824 (Tex. App.—Fort Worth 2008, no pet.).

               The Brescias asserted claims for professional negligence, deceptive-trade

violations, and breach of fiduciary duties against Slack & Davis. The law firm moved for a no-

evidence summary judgment on all of the Brescias’ claims on the basis “there is no expert

evidence that the Brescias would have prevailed in the Underlying Lawsuit.” Their motion

asserted the following:


               1.      As to all of the Brescias’ claims, there is no expert
                       medical testimony that the Underlying Defendants
                       in the Underlying Lawsuit breached the applicable
                       standard of care with respect to the Additional
                       Medical Malpractice Claims. Without such
                       evidence, there is no evidence the Brescias would
                       have prevailed on the Additional Medical
                       Malpractice Claims, and there is no evidence that
                       Slack & Davis’s failure to pursue the Additional
                       Medical Malpractice Claims was the proximate or
                       producing cause of any damage to the Brescias.

               2.      As to all claims, there is no evidence that the
                       alleged wrongful actions of the Underlying
                       Defendants concerning the Additional Medical
                       Malpractice Claims were the proximate or
                       producing cause of damage to Angela. Without
                       such evidence, there is no evidence that the
                       Brescias would have prevailed on the Additional
                       Medical Malpractice Claims, and there is no
                       evidence that Slack & Davis’s failure to pursue the
                       Additional Medical Malpractice Claims was the
                       proximate or producing cause of any damages to
                       the Brescias.

                                                14
(Emphasis added.)

               For an action to succeed under the DTPA, the following elements must be proven:

(1) the plaintiff is a consumer; (2) the defendant engaged in false, misleading, or deceptive acts;

and (3) these acts constituted a producing cause of the consumer’s damages. See Tex. Bus.

& Com. Code Ann. § 17.50(a) (West Supp. 2010); Doe v. Boys Clubs of Greater Dallas, Inc.,

907 S.W.2d 472, 478 (Tex. 1995). Attorneys may not be sued under the DTPA unless they

engage in one of the following acts: (1) an express misrepresentation of a material fact that

cannot be characterized as advice, judgment, or opinion; (2) a failure to disclose information;

(3) an unconscionable action or course of action that cannot be characterized as advice, judgment,

or opinion; or (4) a breach of an express warranty that cannot be characterized as advice,

judgment, or opinion. See Tex. Bus. & Com. Code Ann. § 17.49(c) (West Supp. 2010);

Latham v. Castillo, 972 S.W.2d 66, 69 n. 2 (Tex. 1998). The DTPA defines an “unconscionable

action or course of action” as “an act or practice which, to a consumer’s detriment, takes

advantage of the lack of knowledge, ability, experience, or capacity of the consumer to a grossly

unfair degree.” Tex. Bus. & Com. Code Ann. § 17.45(5) (West Supp. 2010). Taking advantage

of a consumer’s lack of knowledge, ability, experience, or capacity to a grossly unfair degree

requires a showing that the resulting unfairness was “glaringly noticeable, flagrant, complete and

unmitigated.” Bradford v. Vento, 48 S.W.3d 749, 760 (Tex. 2001); Chastain v. Koonce,

700 S.W.2d 579, 584 (Tex. 1985).

               The elements of a breach-of-fiduciary-duty claim are the following: (1) a fiduciary

relationship between plaintiff and defendant; (2) a breach of the fiduciary duty owed to the

plaintiff by the attorney-defendant; (3) that causes; (4) damages to the plaintiff. Beck v. Law

                                                15
  Offices of Edwin J. Terry, Jr., 284 S.W.3d 416, 429 (Tex. App.—Austin 2009, no pet.); see also

  Restatement (Third), The Law Governing Lawyers § 49 (2001).


           Fractured Professional-Negligence Argument

                  To determine whether the Brescias have actually alleged DTPA and breach-of-

  fiduciary-duty claims, we first address Slack & Davis’s argument that the Brescias’ breach-of-

  fiduciary-duty and DTPA claims are, in fact, fractured professional-negligence claims.2 The rule

  against fracturing a professional-negligence claim holds that a case arising out of an attorney’s

  alleged bad advice or improper representation may not be split into separate claims for negligence,

  breach of contract, or fraud (or any other non-negligence theory), because the real issue remains

  whether the attorney exercised that degree of care, skill, and diligence that attorneys of ordinary

  skill and knowledge commonly possess and exercise. Beck, 284 S.W.3d at 426-27; Kimleco

  Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 924 (Tex. App.—Fort Worth 2002,

  pet. denied). The rule against fracturing a negligence claim prevents legal-malpractice plaintiffs

  from opportunistically transforming a professional-negligence claim into other causes of action.




       2
           As noted in Beck, courts often use the terms “legal malpractice” and “professional
negligence” interchangeably to refer to claims arising from an attorney’s allegedly inadequate legal
representation, although “professional negligence” may be the more precise term. Beck v. Law
Offices of Edwin J. Terry, Jr., 284 S.W.3d 416, 427 n.10 (Tex. App.—Austin 2009, no pet.). We
will use the term “professional negligence” to describe a negligence claim in which the issue is
whether an attorney exercised that degree of care, skill, and diligence as attorneys of ordinary skill
and knowledge commonly possess and exercise. See Deutsch v. Hoover, Bax, & Slovacek, L.L.P.,
97 S.W.3d 179, 184 n.1 (Tex. App.—Houston [14th Dist.] 2002, no pet.). We will use the term
“legal malpractice” to refer to any claim brought by a client against that client’s attorney, regardless
of whether the claim asserts professional negligence, breach of fiduciary duty, DTPA violations, or
any other allegation. Id.

                                                    16
The ultimate issue is whether there has been a breach of duty that causes damage. Ersek,

69 S.W.3d at 275.

                We must first ascertain whether the facts that are the basis for the Brescias’ asserted

causes of action implicate only Slack & Davis’s duty of ordinary care or some other actionable

statutory or fiduciary duties. Beck, 284 S.W.3d at 428. The determination of whether a complaint

against an attorney is actionable in negligence versus some other legal theory is a question of law.

Id.


                A.      DTPA Claim

                In their first amended petition, the Brescias alleged Slack & Davis made the

following misrepresentations of material fact: the law firm represented (1) it would fully fund,

investigate, and prosecute all claims, including the Brescias’ negligence- and gross-negligence-

based claims, against all possible parties when, in fact, it only investigated and prosecuted the lack-

of-informed-consent claims against Dr. Bank and Presbyterian; (2) it would make diligent

attempts to locate and hire medical experts to support the Brescias’ negligence-based claims when,

in fact, it only contacted two doctors and then hired one who had used Cytotec as a cervical ripener

in his own practice; (3) it would amend the pleadings to include the Brescias’ negligence-based

claims when, in fact, it never attempted such an amendment; (4) it would include as part of the

Brescias’ claims the numerous instances identified by consulting-expert “Dr. X” in which Dr.

Bank and Presbyterian had been grossly-negligent when, in fact, no such allegations were ever

included; and (5) it would assign attorneys and staff fully qualified to handle the Brescias’ claims

when, in fact, the attorney in charge was inexperienced in prosecuting medical malpractice claims

                                                  17
and the in-house nurse in charge of the case file had undisclosed bias against the Brescias.

               The Brescias attached Duane’s affidavit to their response to Slack & Davis’s no-

evidence motion. Duane stated that he and Angela provided the law firm with the following: (1)

the name of a doctor willing to testify that Dr. Bank was negligent in performing Angela’s

emergency caesarean section; (2) the name of a nursing expert knowledgeable in the use and

administration of Cytotec; and (3) the name of a renowned physician to explain the dangers of

Cytotec when used to induce labor. He stated Slack & Davis never acted on any of those names

but insisted it wanted to use its own “contacts.” The law firm also repeatedly reassured the

Brescias that it was doing all it could to obtain additional expert witnesses who would testify as

to their negligence and other potential claims. He further stated that, without his and Angela’s

knowledge or consent, Slack & Davis agreed not only to a continuance of the trial date but also to

“keep in place the May 5th cut off date for identifying expert witnesses, which had passed several

months before.” He reiterated that Slack & Davis’s agreement to “freeze discovery” was done

without the Brescias’ knowledge or consent. Duane then stated the law firm’s actions caused his

and Angela’s “valuable claims to be lost and we were forced to settle for nuisance value.”

               The affidavit of David Marchand, an attorney whose law practice largely involved

medical malpractice, was also attached to the Brescias’ response. He stated that, because of the

catastrophic injuries Angela suffered as a result of the apparent negligence of the underlying

healthcare defendants in administering a dangerous drug with well-known propensities and

warnings, he and his firm took the Brescias’ case, which “appeared to be a seven-figure lack of

informed consent.” He further noted he later learned that, prior to the time Slack & Davis



                                               18
withdrew from the case, the parties by joint motion had requested that the court reset the trial date.

Marchand pointed out that, on September 20, 2004, the court entered an order resetting the trial

date and also substituting Marchand’s law firm for Slack & Davis. He continued:


                Inexplicably and unknown to me, Slack & Davis, in the joint
                motion to continue, left in place the previous limitation as to the
                time to identify [the Brescias’] expert witnesses. In other words,
                [the Brescias] were left with an expert who had only opined on
                informed consent, not on the negligence, on the part of the
                [underlying healthcare defendants] in administering Cytotec, failing
                to adequately monitor [Angela] during her labor, and in damaging
                her colon.

                I twice tried to request relief from the scheduling order Slack &
                Davis had agreed to, but without success. Because of Slack &
                Davis’s agreement, the trial judge left in place the May 4th date to
                designate expert witnesses that predated our involvement.

                The actions of Slack & Davis, coupled with their inadequate
                pleadings, resulted in changing a valuable legal right to one of
                limited value.


                The Brescias allege Slack & Davis’s affirmative misrepresentations constituted

unconscionable conduct or course of action on the law firm’s part, actionable under

section 17.49(c)(1) and (3) of the DTPA, which caused them to lose their day in court and was a

producing cause of their economic damages. Section 17.49(c)(1) and (3) reads as follows:



                (c)     Nothing in this subchapter [“Deceptive Trade
                        Practices and Consumer Protection”] shall apply to
                        a claim for damages based on the rendering of a
                        professional service, the essence of which is the
                        providing of advice, judgment, opinion, or similar
                        professional skill. This exemption does not apply
                        to:

                                                 19
                       (1)     an express misrepresentation of a
                               material fact that cannot be
                               characterized as advice, judgment,
                               or opinion;
                                              *      *      *
                       (3)     an unconscionable action or course
                               of action that cannot be
                               characterized as advice, judgment,
                               or opinion . . . .


Tex. Bus. & Com. Code Ann. § 17.49(c)(1), (3). In other words, an attorney’s actions or course

of action and express misrepresentations of material facts are not actionable under the DTPA if

they can be characterized as advice, judgment, or opinion.

               The Brescias assert that Slack & Davis affirmatively misrepresented it was fully

investigating and prosecuting their negligence- and gross-negligence claims and would amend the

pleadings to include those claims against all parties. And, in his affidavit, Duane stated he and

Angela were repeatedly assured by Slack & Davis that it was searching for appropriate experts so

that it could replead and add their negligence claims to their lack-of-informed-consent claim; yet,

the law firm only investigated the Brescias’ lack-of-informed-consent claim and contacted only

two doctors, one of whom had used Cytotec as a cervical ripener in his own practice. Moreover,

the Brescias contend that, without their knowledge and consent, Slack & Davis entered into an

agreed scheduling order with the underlying healthcare defendants that maintained the date for

designating expert witnesses, a date that had passed approximately four months earlier. The

Brescias argue these were express misrepresentations and unconscionable conduct on the part of

Slack & Davis in its representation of the Brescias that were deceptive and thus actionable under

the DTPA. We disagree.

                                                20
                Unlike the attorney in Latham who affirmatively represented to his clients that he

was actively pursuing their claims when, in fact, he had never filed the suit and then limitations

ran, the Brescias only contend that Slack & Davis failed to actively pursue the Brescias’

negligence- and gross-negligence claims and to disclose that the law firm had entered into an

agreed scheduling order with the underlying healthcare defendants that maintained the date for

designating expert witnesses. After reviewing the Brescias’ DTPA allegations, we conclude that

Slack & Davis made no express misrepresentations of material facts that cannot be characterized

as advice, judgment, or opinion. Nor do we find that the law firm engaged in any unconscionable

actions or course of action, that is, acts or practices that, to the Brescias’ detriment, took advantage

of their lack of knowledge, ability, experience, or capacity to a grossly unfair degree, that cannot

be characterized as advice, judgment, or opinion. See Tex. Bus. & Com. Code Ann § 17.45(5).

Consequently, we conclude that, because their allegations ultimately go to the adequacy of Slack

& Davis’s legal representation, the Brescias’ DTPA claim is essentially a dressed-up professional-

negligence claim and that summary judgment was appropriate on the Brescias’ DTPA claim. See

Beck, 284 S.W.3d at 431-32; Deutsch v. Hoover, Bax & Slovacek, 97 S.W.3d 179, 189-90 (Tex.

App.—Houston [14th Dist.] 2002, no pet.) (if gist of client’s complaint is that attorney did not

exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge

commonly possess, then that complaint should be pursued as professional-negligence claim, rather

than some other claim); see also Tex. Bus. & Com. Code Ann. § 17.49(c).


        B.      Breach-of-Fiduciary-Duty Claim

                The Brescias further alleged in their petition that, as their attorneys, Slack & Davis


                                                  21
breached its fiduciary duty. “A fiduciary relationship exists between attorney and client.” Willis

v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988). The relationship existing between attorney and

client is highly fiduciary in nature and requires proof of “perfect fairness” on the attorney’s part.

Archer v. Griffith, 390 S.W.2d 735, 739 (Tex. 1965); Jackson Law Office, P.C. v. Chappell,

37 S.W.3d 15, 22 (Tex. App.—Tyler 2000, pet. denied). The essence of a breach of fiduciary duty

involves an attorney’s integrity and fidelity. Kimleco Petroleum, 91 S.W.3d at 923. As a

fiduciary, an attorney owes the client a duty of undivided loyalty. See Restatement (Third) of

Agency § 8.01 (2006). Incident to the general duty of loyalty is the duty of full disclosure. Id.

§ 8.11 (discussing the duty of disclosure). “As a fiduciary, an attorney is obligated to render a full

and fair disclosure of facts material to the client’s representation.” Willis, 760 S.W.2d at 645. An

attorney’s breach of the fiduciary duty of full disclosure is tantamount to fraudulent concealment.

Id.; Jackson Law Office, 37 S.W.3d at 22.

                Attorneys breach their fiduciary duties to clients by their “failure to disclose

conflicts of interest, failure to deliver funds belonging to the client, placing personal interests over

the clients’ interests, improper use of client confidences, taking advantage of the client’s trust,

engaging in self-dealing, and making representations.” Goffney v. Rabson, 56 S.W.3d 186, 193

(Tex. App.—Houston [14th Dist.] 2001, pet. denied). The Brescias assert Slack & Davis breached

its fiduciary duty to them by its failure to: (1) disclose its intent not to “prove-up” the Brescias’

negligence-based claims; (2) disclose its decision to reallocate firm assets away from medical-

malpractice claims; (3) timely disclose the identity of “Dr. X” and the true relationship between

Presbyterian and Dr. X; (4) disclose the bias and conflict of interest of the in-house nurse in charge

of the case file; (5) disclose that the law firm had not sought expert witnesses to support the

                                                  22
Brescias’ negligence-based claims despite prior representations to the contrary; (6) inform the

Brescias in advance of the law firm’s intention to move for a continuance of the trial date and enter

into an agreed scheduling order without the Brescias’ knowledge or consent; and (7) advise the

Brescias of the continuance and terms of the agreed scheduling order after the law firm

was terminated on September 16, 2004, and before the trial court signed the order on

September 20, 2004. In his affidavit attached to the Brescias’ response to Slack & Davis’s motion,

Duane stated that he and Angela, as the law firm’s clients, expected full, complete, and honest

disclosure; Slack & Davis, however, either withheld information from them, misrepresented the

information it gave them, or failed to act on the information the law firm had solicited from them.

As a result of the law firm’s conduct and breach of fiduciary duty, the Brescias allege they were

unable to prosecute their valuable negligence-based claims in the underlying lawsuit, resulting in

their damages.

                 Slack & Davis responds that the Brescias’ breach-of-fiduciary-duty complaint is

actually a fractured professional-negligence claim requiring them to prove they would have

prevailed in the underlying lawsuit. We agree. The Brescias alleged that Slack & Davis failed to

inform them it had (1) decided not to pursue the Brescias’ negligence-based claims, (2) not sought

expert witnesses, (3) reallocated firm assets away from medical-malpractice claims, (4) moved for

a continuance of the trial date, and (5) entered into an agreed scheduling order without advising

the Brescias of the terms of the order. The Brescias also alleged Slack & Davis failed to disclose

the identity of “Dr. X” and the true relationship between Presbyterian and Dr. X and that Slack &

Davis’s in-house nurse in charge of the case file was biased and had a conflict of interest. We



                                                 23
conclude these allegations complain about the quality of Slack & Davis’s representation,

specifically the law firm’s failure to properly advise, inform, and communicate with the Brescias

about their case, which are claims of professional negligence. See Murphy v. Gruber, 241 S.W.3d

689, 699 (Tex .App.—Dallas 2007, pet. denied).

               The gist or essence of the Brescias’ breach-of-fiduciary-duty allegations is that

Slack & Davis did not exercise that degree of care, skill, or diligence that attorneys of ordinary

skill and knowledge commonly possess; therefore, their allegations should have been pursued as

professional-negligence claims. See Kimleco Petroleum, 91 S.W.3d at 924 (regardless of theory

plead, as long as crux of complaint is that attorney did not provide adequate legal representation,

claim is for professional negligence); Zidell v. Bird, 692 S.W.2d 550, 553 (Tex. App.—Austin

1985, no writ) (attorney’s negligence may consist in want of ordinary care in preparing, managing,

and presenting litigation that affects client’s interests). Because the Brescias impermissibly

fractured their professional-negligence claims by asserting them as breach-of-fiduciary-duty

claims, we hold that they failed to defeat Slack & Davis’s entitlement to summary judgment as to

those claims. The Brescias’ first, third, and seventh issues are overruled.

Expert Medical Testimony and Economic Damages

               Slack & Davis argues that, assuming the Brescias’ DTPA and breach-of-fiduciary-

duty claims are not fractured professional-negligence claims, the Brescias had to present expert

medical testimony to maintain their DTPA and breach-of-fiduciary-duty claims for economic

damages. The law firm contends the Brescias could recover economic damages only if they could

prove they would have won the underlying lawsuit, that is, a “suit-within-a-suit” requirement.



                                                24
Disputing the law firm’s contention, the Brescias assert they did not have to present expert medical

testimony to maintain their DTPA and breach-of-fiduciary-duty claims. Rather, they argue in their

second issue that the trial court erred by reading a “suit-within-a-suit” requirement into all the

Brescias’ causes of action. Because we have determined that their DTPA and breach-of-fiduciary-

duty claims are essentially dressed-up professional-negligence claims, we need not reach the

Brescias’ second issue.



                                         CONCLUSION

               Having overruled all of the Brescias’ issues, we affirm the trial court’s judgment.



                                            __________________________________________

                                           David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and Henson

Affirmed

Filed: November 19, 2010




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