                                             OPINION
                                        No. 04-11-00926-CV

                         RIVERWALK CY HOTEL PARTNERS, LTD.,
                                      Appellant

                                                   v.

                         AKIN GUMP STRAUSS HAUER & FELD, LLP,
                                       Appellee

                     From the 288th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-CI-19061
                            Honorable Karen H. Pozza, Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Karen Angelini, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: November 14, 2012

AFFIRMED IN PART; REVERSED AND REMANDED IN PART

           Riverwalk CY Hotel Partners, Ltd. sued Akin Gump Strauss Hauer & Feld, LLP for legal

malpractice, asserting both breach of fiduciary duty and negligence claims. The trial court

granted Akin Gump’s motion for a partial summary judgment on Riverwalk’s breach of fiduciary

duty claim. The motion asserted that Riverwalk could not “fracture” its legal malpractice claim

into an additional cause of action for breach of fiduciary duty. The trial court also granted Akin

Gump’s motion for summary judgment on Riverwalk’s negligence claim based on limitations.
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       Riverwalk contends the trial court erred in granting the summary judgments because: (1)

Akin Gump’s motion did not address all of the grounds alleged as a basis for Riverwalk’s breach

of fiduciary duty and negligence claims; (2) the breach of fiduciary duty claim did not “fracture”

Riverwalk’s legal malpractice claim; (3) the only evidence submitted in support of the breach of

fiduciary duty claim was inadmissible; and (4) Akin Gump did not establish its limitations

defense as a matter of law because limitations was tolled by the discovery rule or the Hughes

tolling rule. We reverse the trial court’s judgment as to Riverwalk’s negligence claim and

portions of Riverwalk’s breach of fiduciary duty claim, and we remand those claims to the trial

court for further proceedings. We affirm the remainder of the trial court’s judgment.

                                          BACKGROUND

       In 2005, Akin Gump began representing Riverwalk in connection with Riverwalk’s

acquisition of a tract of land upon which Riverwalk intended to build a hotel. After acquiring the

land, Riverwalk contracted with Lyda Swinerton Builders, Inc. for the hotel’s construction.

       In July of 2006, Lyda and Riverwalk were sued by Auburn Investments, Inc., the owner

of an adjacent hotel, for trespass, tortious interference with prospective relations, and nuisance.

The claims were based on allegations pertaining to the dust, debris, and noise generated by the

construction. Akin Gump was retained to represent both Riverwalk and Lyda in the lawsuit, and

Riverwalk signed a conflicts waiver in relation to the joint representation.

       In October of 2008, Riverwalk was represented by a different attorney, David Peden, in

connection with a mediation between Riverwalk and Lyda regarding the completion of the hotel

construction project. On October 2, 2008, Peden and Riverwalk’s principal, Richard Finvarb,

called Janie Shannon, one of the Akin Gump attorneys representing Riverwalk in the Auburn

lawsuit. Peden demanded to know why Akin Gump had not tendered the defense of the Auburn



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lawsuit to Lyda’s insurance carrier under the terms of the construction agreement between

Riverwalk and Lyda. A few months after this phone call, the defense of the Auburn lawsuit was

tendered to Lyda’s insurance carrier, and the lawsuit eventually settled sometime after Riverwalk

sued Akin Gump for legal malpractice.

       In its lawsuit against Akin Gump, Riverwalk alleged claims for negligence and breach of

fiduciary duty. As previously noted, the trial court granted summary judgment as to all of

Riverwalk’s claims.

                                     STANDARD OF REVIEW

       We review a summary judgment de novo. Provident Life & Acc. Ins. Co. v. Knott, 128

S.W.3d 211, 215 (Tex. 2003). We consider all the evidence in the light most favorable to the

respondent, indulging all reasonable inferences in favor of the respondent, and determine

whether the movant proved that there were no genuine issues of material fact and that it was

entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49

(Tex. 1985).

                                          NEGLIGENCE

       Riverwalk contends the trial court erred in granting summary judgment with regard to its

negligence claim because: (1) the motion did not address each act of negligence alleged in its

petition; and (2) Akin Gump did not properly plead or negate the Hughes tolling rule or the

discovery rule. Because we hold the trial court erred in granting the summary judgment as to

Riverwalk’s negligence claim based on the Hughes tolling rule, we do not address the other

issues raised by Riverwalk with regard to its negligence claim. See TEX. R. APP. P. 47.1.




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A.    Whether Negation of the Discovery Rule and the Hughes Tolling Rule Was Properly
Raised by Akin Gump

       Before addressing the merits of the Hughes tolling rule, Riverwalk asserts Akin Gump

procedurally failed to negate the application of either the discovery rule or the Hughes tolling

rule because Akin Gump did not amend or supplement its motion after Riverwalk raised these

defenses in a supplemental petition filed after Akin Gump filed its motion. Therefore, Riverwalk

asserts the defenses were not properly addressed in the summary judgment proceeding.

       A defendant’s motion for summary judgment based on limitations need not negate the

discovery rule unless the plaintiff has pleaded it. Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313

(Tex. 2006). When a plaintiff asserts the discovery rule for the first time in a summary judgment

response, the defendant has two choices: (1) object that the discovery rule has not been pleaded;

or (2) respond on the merits and try the issue by consent. Id. If the defendant elects to follow

the second alternative, the discovery rule’s applicability is placed squarely before the trial and

appellate courts. Id. We apply this same rule with regard to the Hughes tolling rule.

       In this case, Riverwalk raised the discovery rule and Hughes tolling rule in its summary

judgment response and in a supplemental petition that were simultaneously filed. Akin Gump

addressed the merits of both rules in its reply to Riverwalk’s response. Therefore, Akin Gump

responded on the merits, and the issue was tried by consent. Id. Accordingly, the applicability

of both rules was placed squarely before the trial court and this court. Id.

B.     Hughes Tolling Rule

       Riverwalk contends the Hughes tolling rule applies whenever the alleged malpractice

occurs in connection with litigation. Akin Gump counters that the Hughes tolling rule applies

only when the attorney’s alleged error results in litigation or directly affects the client’s position

in pending litigation.

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       In Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 155 (Tex. 1991), the Texas Supreme

Court addressed “the proper application of the statute of limitations in a legal malpractice case

when the attorney allegedly commits malpractice while providing legal services in the

prosecution or defense of a claim which results in litigation.” In that case, Robert M. Mahaney,

an attorney who was retained by James and Patti Hughes to assist them with an adoption,

obtained a signed affidavit of relinquishment of parental rights from the child’s biological

mother that named Mahaney, as opposed to the Hughes, as the child’s temporary managing

conservator. Id. The Hughes filed a lawsuit to terminate the mother’s rights and adopt the child;

however, the biological mother had a change of heart and filed a motion to dismiss the Hughes’

lawsuit. Id. The motion to dismiss alleged the Hughes lacked standing to bring the suit because

they were not named in the affidavit as the temporary managing conservators. Id. The trial court

denied the motion; however, the appellate court reversed, holding the Hughes lacked standing.

Id. at 156. The application for writ of error challenging the appellate court’s holding was denied,

and the motion for rehearing on the application was overruled on July 10, 1985. Id.

       On May 21, 1987, the Hughes sued Mahaney for legal malpractice, alleging they would

have had standing if they had been named temporary managing conservators in the affidavit. Id.

Mahaney filed a motion for summary judgment based on limitations, arguing the malpractice

cause of action accrued as early as February 17, 1983, the date the biological mother revoked her

affidavit of relinquishment. Id. at 157. The Texas Supreme Court concluded that the statute of

limitations was tolled until all of the Hughes’ appeals in the termination action were exhausted

regardless of when the cause of action accrued. Id. at 156.

       The court held “when an attorney commits malpractice in the prosecution or defense of a

claim that results in litigation, the statute of limitations on the malpractice claim against the



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attorney is tolled until all appeals on the underlying claim are exhausted.” Id. at 157. The court

gave two justifications or policy reasons for its holding. Id. First, requiring the Hughes to file

the malpractice lawsuit while the termination/adoption proceeding was still pending would

require the Hughes to take “inherently inconsistent positions” by arguing that Mahaney’s actions

were negligent in the malpractice case while also arguing that the affidavit and Mahaney’s

actions did not affect their standing in the termination/adoption case. Id. Second, limitations

must be tolled for the malpractice cause of action because the viability of the malpractice cause

of action was dependent on the outcome of the termination/adoption proceeding. Id. If the

courts ultimately held that the affidavit did not affect the Hughes’ standing, the Hughes would

not have a malpractice claim.

        Akin Gump focuses on the use of the phrase “that results in litigation” in the holding in

Hughes to contend that the tolling rule applies only when the attorney’s alleged error results in

litigation.   Two subsequent cases decided by the Texas Supreme Court in 2001, however,

demonstrate that the Hughes tolling rule is not so limited.

        In Apex Towing Co. v. Tolin, 41 S.W.3d 118, 118 (Tex. 2001), the Texas Supreme Court

“reexamine[d] when the statute of limitations in a legal-malpractice cause should be tolled.” In

that case, an attorney was sued for mishandling the defense of a maritime personal-injury

lawsuit. Id. at 119. Specifically, the attorney failed to file a timely maritime limitation-of-

liability pleading which would have imposed a limit on the amount of damages that could be

recovered by the plaintiff. Id. Ultimately, a judgment was rendered on a jury verdict for an

amount in excess of the limit that would have been imposed if the attorney had timely filed the

maritime- limitation pleading. Id. The case was settled on appeal. Id.




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       When Apex sued the attorney for malpractice, the attorney contended that limitations

began to run at least by the date of the settlement. Id. The Texas Supreme Court, however, held

that limitations was tolled until the court of appeals issued its order on May 19, 1995, dismissing

the pending appeal based on the settlement. Id. at 123. Since Apex filed its malpractice lawsuit

within two years of that date, the lawsuit was timely filed. Id.

       In reaching its holding in Apex, the Texas Supreme Court noted the two policy

considerations articulated in Hughes to support tolling, namely: (a) a client should not have to

adopt inherently inconsistent postures in the underlying case and the malpractice case; and (2)

the viability of the malpractice case depends on the outcome of the underlying litigation. 41

S.W.3d at 121. The court further noted that it had elaborated on the first policy in a subsequent

case when it stated “that attorney-client trust would be eroded if the client had to scrutinize every

stage of the case for possible missteps.” Id. (citing Sanchez v. Hastings, 898 S.W.2d 287, 287

(Tex. 1995)). Noting that the tolling rule adopted in Hughes is not universally followed in other

states, the court asserted that it continued to believe bright-line rules in the area of limitations

represent the better approach. Id. at 122. The court concluded, “without re-examining whether

the policy reasons behind the tolling rule apply in each legal-malpractice case matching the

Hughes paradigm, courts should simply apply the Hughes tolling rule to the category of legal-

malpractice cases encompassed within its definition.” Id. The court then held, “In this case,

Apex alleges that [the attorney] committed malpractice while defending Apex in the underlying

personal-injury litigation. The Hughes rule thus applies to this case.” Id. at 123.

       Thus, in reaching its holding in Apex, the court did not analyze whether the alleged

malpractice resulted in litigation, noting only that the malpractice was committed while

defending the client in the underlying litigation. Similarly, in Underkofler v. Vanasek, decided



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the same day as Apex, the court held, “Vanasek’s malpractice claims arise out of the underlying

litigation on the note. Under Hughes, limitations was therefore tolled until the underlying

litigation was concluded….” 53 S.W.3d 343, 346 (Tex. 2001). Moreover, in Underkofler, the

court approved the intermediate appellate court’s application of Hughes, wherein the

intermediate appellate court held Hughes applied because “Vanasek sued Underkofler claiming

that Underkofler committed legal malpractice while providing legal services in the context of

litigation.” Vanasek v. Underkofler, 50 S.W.3d 1, 13-14 (Tex. App.—Dallas 1999), aff’d in part,

rev’d in part, Underkofler v. Vanasek, 53 S.W.3d 343 (Tex. 2001).

       In the instant case, we hold the Hughes tolling rule applies because: (1) Riverwalk alleges

Akin Gump “committed malpractice while defending” Riverwalk in the Auburn lawsuit; (2)

Riverwalk’s malpractice claims “arise out of” the Auburn lawsuit; and (3) Akin Gump allegedly

“committed legal malpractice while providing legal services in the context of litigation.” Akin

Gump also argues that the alleged malpractice was not committed in the prosecution or defense

of a claim because the failure to tender the defense to Lyda’s insurance carrier did not affect

Riverwalk’s legal posture with regard to Auburn. As pronounced by the Texas Supreme Court,

the Hughes rule contains no requirement that the alleged malpractice adversely affect the client’s

position in the pending litigation, and we refuse to add such a requirement to the rule.

       Based on the applicability of the Hughes tolling rule, the trial court erred in granting

summary judgment as to Riverwalk’s negligence claim. Accordingly, we reverse the summary

judgment as to the negligence claim.

                                  BREACH OF FIDUCIARY DUTY

       With regard to its breach of fiduciary duty claim, Riverwalk contends that it amended its

pleading after Akin Gump filed its motion for summary judgment, adding additional acts that



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resulted in a breach of fiduciary duty that Akin Gump’s motion did not address. Riverwalk also

contends that the trial court erred in concluding that its pleadings were attempting to

impermissibly fracture its legal malpractice claim. Finally, Riverwalk asserts the trial court erred

in granting summary judgment because the interrogatory answer Akin Gump attached as

evidence to its motion was amended prior to the summary judgment hearing.

A.      Amendment of Pleadings/Fracturing of Legal Malpractice Claim

        1.      General Law Regarding Fracturing of Legal Malpractice Claim

        “The rule against dividing or fracturing a negligence claim prevents legal-malpractice

plaintiffs from opportunistically transforming a claim that sounds only in negligence into other

claims.” Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex. App.—Houston

[14th Dist.] 2002, no pet.). If the gist of a client’s complaint is that the attorney failed to exercise

the degree of care, skill, or diligence that attorneys of ordinary skill and knowledge commonly

possess, then the legal malpractice claim is based on negligence. See Aiken v. Hancock, 115

S.W.3d 26, 28 (Tex. App.—San Antonio 2003, pet. denied); Deutsch, 97 S.W.3d at 189. Such a

claim encompasses a cause of action based on an attorney giving a client bad legal advice or

otherwise improperly representing the client. Aiken, 115 S.W.3d at 28; see also Murphy v.

Gruber, 241 S.W.3d 689, 692-93 (Tex. App.—Dallas 2007, pet. denied).

        If, however, the claim is more appropriately classified as another claim, then the client

can assert a claim other than negligence. Deutsch, 97 S.W.3d at 189. For example, if the claim

focuses on an attorney obtaining an improper benefit, as opposed to the attorney failing to

adequately represent the client, then the claim may appropriately be classified as a breach of

fiduciary duty claim. Murphy, 241 S.W.3d at 693; Aiken, 115 S.W.3d at 28. A breach of

fiduciary duty occurs when an attorney, among other things, subordinates his client’s interest to



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his own, retains the client’s funds, engages in self-dealing, improperly uses client confidences,

fails to disclose conflicts of interest, or makes misrepresentations to achieve these ends. Kimleco

Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 923 (Tex. App.—Fort Worth 2002, pet.

denied). Unlike conflicts of interest between jointly represented clients, the types of conflicts of

interest which could give rise to a breach of fiduciary duty are those in which the lawyer has a

direct pecuniary interest in the litigation that is adverse to the client, and the attorney pursues his

own interest to the client’s detriment. Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284

S.W.3d 416, 436 (Tex. App.—Austin 2009, no pet.).

       “Whether allegations against a lawyer, labeled as breach of fiduciary duty, fraud, or some

other cause of action, are actually claims for professional negligence or something else is a

question of law to be determined by the court.” Murphy, 241 S.W.3d at 692. “Our review of a

decision of a question of law is de novo.” Id.

       2.      Unaddressed Allegations

       Riverwalk initially contends that its amended pleadings added additional breach of

fiduciary duty allegations that were not addressed in Akin Gump’s motion. As a general rule,

granting a summary judgment on a claim not addressed in the summary judgment motion is

reversible error. G & H Towing Co. v. Magee, 347 S.W.3d 293, 297 (Tex. 2011). Any error in

granting summary judgment on a cause of action not expressly presented by written motion is

harmless, however, when the omitted cause of action is precluded as a matter of law by other

grounds raised in the motion. Id. at 298. Thus, if the amended pleading merely asserted

additional allegations labeled as breach of fiduciary duty that were additional efforts to fracture

its professional negligence claim, the summary judgment would not be subject to reversal based

on a failure to address the additional allegations.



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       3.      Intentionally Failing to Tender Defense to Insurance Carrier

       Riverwalk contends that its claim that Akin Gump intentionally failed to tender the

defense of the Auburn lawsuit to the insurance carrier is separate from its claim that Akin

Gump’s failure to tender the defense fell below the applicable standard of care, constituting

negligence. In its petition, Riverwalk specifically alleged that “Akin Gump was aware of the

contractual provisions requiring Lyda to indemnify Riverwalk, and was aware of the existence of

insurance coverage, and that the defense of the Auburn suit could have, and should have, been

tendered to Lyda’s insurance carrier; however, Akin Gump intentionally withheld tendering this

case to the insurance company because it would have deprived them of an extremely lucrative

employment arrangement.”        Riverwalk alleged “Akin Gump put its interest in collecting

excessive legal fees above its client’s interest” and improperly benefitted by “subordinating the

client’s interests of utilizing the insurance coverage it had paid for.”

       In Latham v. Castillo, 972 S.W.2d 66 (Tex. 1998), the Texas Supreme Court addressed

whether a legal malpractice claim was impermissibly fractured in a case involving claims similar

to the instant case. In Latham, Ernest and Audona Castillo sued their attorney, B. Mills Latham,

alleging he failed to file a medical malpractice claim before the limitations period had run. 972

S.W.2d at 67. In addition to alleging Latham missed the limitations date, the Castillos also

alleged that Latham “affirmatively represented to them that he had filed and was actively

prosecuting the medical malpractice claim.” Id. In rejecting Latham’s argument that the second

claim was essentially a “dressed-up legal malpractice claim,” the court asserted:

               If the Castillos had only alleged that Latham negligently failed to timely
       file their claim, their claim would properly be one for legal malpractice.
       However, the Castillos alleged and presented some evidence that Latham
       affirmatively misrepresented to them that he had filed and was actively




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        prosecuting their claim.     It is the difference between negligent conduct and
        deceptive conduct.

Id. at 69.

        This same logic applies in the instant case. If Riverwalk had only alleged that Akin

Gump negligently failed to recognize that insurance coverage existed and therefore negligently

failed to tender the defense of the Auburn lawsuit to the insurance carrier, Riverwalk’s claim

would have been simply a claim for legal malpractice. However, Riverwalk alleged that Akin

Gump knew about the insurance coverage and intentionally failed to tender the defense. Like in

Latham, this “is the difference between negligent conduct and deceptive conduct.” Id.; see also

Trousdale v. Henry, 261 S.W.3d 221, 232 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)

(rule against fracturing inapplicable where plaintiff alleged attorney negligently allowed her case

to be dismissed and breached its fiduciary duty by intentionally failing to disclose the case was

dismissed while continuing to demand and accept payment for services which involves

allegations of deception); Archer v. Medical Protective Co., 197 S.W.3d 422, 427-28 (Tex.

App.—Amarillo 2006, pet. denied) (claim not fractured where negligence claim related to

quality of attorney’s performance while breach of fiduciary duty claim concerned the attorney’s

pursuit of his own pecuniary interest over the interests of the client).

        Therefore, we hold the trial court erred in granting summary judgment as to Riverwalk’s

breach of fiduciary duty claim alleging that Akin Gump intentionally withheld tendering the

defense of the Auburn lawsuit to the insurance company, despite its knowledge of the existence

of insurance coverage, in order to collect legal fees.

        4.     Excessive Fees

        In its amended pleading, Riverwalk specifically alleged that some of the legal fees

charged by and paid to Akin Gump were “almost double the hourly rates set forth in Riverwalk’s

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only written fee agreement with Akin Gump, and were excessive and unreasonable.” Riverwalk

also alleged that “Akin Gump grossly overworked this file, and that its fees were unreasonable.”

Riverwalk further alleged, “Akin Gump charged Riverwalk excessive fees, billed Plaintiff for

work that was not necessary, [and] provided legal services in a manner intended to unnecessarily

increase the scope of litigation and related activities to increase its billings ….”         Finally,

Riverwalk asserted that it was alleging “a separate claim regarding the integrity of Akin Gump’s

billing practices.”

          In Sullivan v. Bickel & Brewer, 943 S.W.2d 477, 481-82 (Tex. App.—Dallas 1995, writ

denied), the plaintiff asserted a claim that the attorneys charged excessive time on certain legal

matters and billed for work that was unnecessary. The court construed these pleadings as an

allegation that the attorneys committed fraud in the manner in which they billed the plaintiff. Id.

at 482.     The attorneys asserted that the fraud claim was a negligence claim based on the

attorneys’ mishandling of the case which resulted in damages in the form of excessive fees and

unsatisfactory results. Id. In resolving the issue, the court noted decisions from two other

appellate courts which distinguished between an action for negligent legal practice and one for

fraud allegedly committed by an attorney relating to the establishing and charging of fees for

legal services. Id. The court concluded that although the case did involve claims pertaining to

the quality of the legal services, it also included a claim regarding the integrity of the attorneys’

billing practices. Id. at 483. Thus, the court concluded that the plaintiff properly alleged a

separate claim for fraudulent billing practices. Id.; see also Murphy v. Gruber, 241 S.W.3d 689,

695 (Tex. App.—Dallas 2007, pet. denied) (reaffirming Sullivan and acknowledging that a client

may have a separate fraud claim where the client alleges a claim pertaining to the integrity of an

attorney’s billing practices).



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       Akin Gump relies on the Austin court’s holding in Beck v. Law Offices of Edwin J. (Ted)

Terry, Jr., P.C., 284 S.W.3d 416 (Tex. App.—Austin 2009, no pet.), to counter Riverwalk’s

reliance on Sullivan. In Beck, the clients alleged a claim of breach of fiduciary duty based on the

attorneys’ failure to disclose the alcohol and substance abuse of the lead attorney on the case.

284 S.W.3d at 431. The clients contended that their claim for breach of fiduciary duty was

separate from a negligence claim because they would not have initiated or continued the

representation if they had known of the condition. Id. at 433. By failing to disclose the

condition and continuing the representation, the clients alleged the attorneys were “committing

the sort of subordination of their client’s interests to their own that distinguishes a breach-of-

fiduciary-duty claim.” Id.

       The Austin court disagreed that the mere fact that the attorneys “might have had an

expectation of fees from continuing to represent [the clients] — a factor present in virtually

every attorney-client relationship — [could] convert [the clients’] negligence claim into [a]

breach-of-fiduciary-duty claim.” Id. First, the court reasoned that the expectation of fees from

continuing the representation, without more, does not support an inference that the attorneys’

failure to disclose the condition was motivated by an intent to obtain those fees. Id. The court

noted the nondisclosure was equally consistent with a more general aversion to revealing those

sorts of discomforting personal facts to others. Id. More importantly, the court noted that

whether the attorneys received fees or an improper benefit was not the focus of the clients’

complaint regarding the undisclosed abuse. Id. at 433-34. Instead, their claim focused on

whether the abuse caused or contributed to the attorneys’ failure to exercise a reasonable

standard of care when providing legal services. Id. at 434.




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       We find the Beck opinion to be distinguishable. In Beck, unlike in Sullivan, no allegation

was made that the fees charged by the attorneys were excessive or that fees were charged for

unnecessary services. In the instant case, Riverwalk’s pleadings contain an allegation similar to

Sullivan challenging the integrity of Akin Gump’s billing practices.          Therefore, we hold

Riverwalk’s allegations challenging the integrity of Akin Gump’s billing practices can be

brought as a separate breach of fiduciary duty claim.

       4.      Other Breach of Fiduciary Duty Allegations

       With the exception of the two breach of fiduciary allegations previously addressed

involving Akin Gump’s intentional failure to tender Riverwalk’s defense to the insurance carrier

and Akin Gump’s excessive billing, we have been unable to identify any other breach of

fiduciary duty allegations that are not based on Akin Gump giving bad legal advice or otherwise

improperly representing Riverwalk. Allegations that an attorney has given bad legal advice or

otherwise improperly represented the client are encompassed within Riverwalk’s negligence

claim. See Aiken, 115 S.W.3d at 28; see also Murphy, 241 S.W.3d at 698 (allegations relating to

improper legal advice regarding conflicts of interest between jointly represented clients relate to

quality of representation and constitute a professional negligence claim). Accordingly, the trial

court properly granted summary judgment as to the breach of fiduciary duty allegations with the

exception of those allegations involving Akin Gump’s intentional failure to tender the defense

and its excessive billing.

B.     Interrogatory Answer

       Riverwalk also asserts that summary judgment was improper because Akin Gump

attached an interrogatory answer to its motion as evidence which Riverwalk amended before the

hearing. First, as previously noted, the issue of whether Riverwalk impermissibly fractured its



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negligence claim is a question of law based on the pleadings, not based on any evidence attached

to Akin Gump’s motion. Murphy, 241 S.W.3d at 692. Second, Akin Gump accurately responds

that Riverwalk did not object to the evidence, so any objection was waived. Accordingly, this

issue is overruled.

                                          CONCLUSION

       The trial court’s judgment is reversed as to Riverwalk’s negligence claim and its breach

of fiduciary duty claim alleging that Akin Gump: (1) intentionally withheld tendering the defense

of the Auburn lawsuit to the insurance carrier; and (2) overworked the file and charged excessive

fees, and those claims are remanded to the trial court for further proceedings. The remainder of

the trial court’s judgment is affirmed.

                                                 Catherine Stone, Chief Justice




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