                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-09-00380-CV


ROGER K. PARSONS,                                                 APPELLANT
INDIVIDUALLY AND AS THE
INDEPENDENT ADMINISTRATOR
FOR THE ESTATE OF ESTHER
ANN KARTSOTIS PARSONS

                                        V.

LISA A. BLUE BARON AS                                             APPELLEES
EXECUTRIX OF THE ESTATE OF
FREDERICK M. BARON AND
BARON & BUDD, P.C.

                                     ----------

          FROM THE 17TH DISTRICT COURT OF TARRANT COUNTY

                                     ----------

                       MEMORANDUM OPINION1
                                     ----------

                                  I. Introduction

      Appellant Roger K. Parsons, Individually and as the Independent

Administrator for the Estate of Esther Ann Kartsotis Parsons (Parsons), appeals

      1
      See Tex. R. App. P. 47.4.
the trial court‘s summary judgment against him and in favor of Appellees Lisa A.

Blue Baron as Executrix of the Estate of Frederick M. Baron and Baron & Budd,

P.C. (collectively, Baron & Budd). In sixteen issues, Parsons challenges the

summary judgment for Baron & Budd and also contends that the trial court judge

should have been disqualified. We affirm.2

                                 II. Background

      In November 1991, Parsons retained Windle Turley and Windle Turley,

P.C. (collectively, Turley) to represent him in wrongful death and survival actions

in connection with the death of his wife (the DuPont Litigation). A jury returned a

verdict for Parsons awarding him $4.75 million in damages and also awarding

punitive damages. The trial court granted judgment notwithstanding the verdict

on the punitive damages but signed a $4.75 million judgment for Parsons.

      In July 1996, Parsons retained Robert Greenberg to sue Turley for legal

malpractice (the Turley Litigation) relating to Turley‘s representation of him in the

DuPont Litigation. The trial court granted summary judgment for Turley, and the

Dallas Court of Appeals affirmed the summary judgment on limitations grounds

because Turley was not served with citation prior to the expiration of the statute

of limitation.   See Parsons v. Turley, 109 S.W.3d 804, 808–10 (Tex. App.—

Dallas 2003, pet. denied).



      2
      Also pending before the court are two post-submission motions filed by
Parsons. Each motion is addressed within this opinion.


                                         2
      In the meantime, Parsons retained a new attorney and filed the instant

legal malpractice suit against Greenberg and Motsenbocker (who Parsons had

hired at Greenberg‘s suggestion) for their representation in the Turley Litigation.

Acting pro se, Parsons subsequently added Baron & Budd as additional

defendants.3 Baron & Budd then filed no-evidence and traditional motions for

summary judgment as to each cause of action Parsons had asserted against it.

Parsons filed at least three pro se responses to the motions, only two of which

were timely.4   The trial court granted summary judgment for Baron & Budd

without stating the grounds and later severed the summary judgment for Baron &

Budd from the underlying cause. Parsons thereafter perfected this appeal.




      3
        Kevin Queenan was Parsons‘s attorney when he filed his original petition
in this case, but Queenan was permitted to withdraw shortly after Parsons filed
his pro se third amended petition.
      4
        Parsons filed his original response to the motion for summary judgment
on May 29, 2009. He later filed an amended response that was mailed to the
trial court more than seven days before the summary judgment hearing but filed
within seven days of the hearing on July 20, 2009; the July 20, 2009 amended
response was therefore timely. See Tex. R. Civ. P. 5, 166a(c). Parsons filed
another amended response the day before the summary judgment hearing, but it
was untimely. See Tex. R. Civ. P. 166a(c). The July 20, 2009 amended
response to Baron & Budd‘s motion for summary judgment is the response that
we have reviewed in this appeal. In that regard, we deny as moot Parsons‘s
post-submission ―Motion that the court rule that it should fully consider and rule
upon points of error ‗2a‘ and ‗2b,‘ as addressed in [Parsons]‘s Reply Brief.‖
Because these arguments relating to the timeliness of the July 20, 2009
response were made in Parsons‘s reply brief, they were already before this court
at the time of the post-submission brief.


                                        3
                            III. Standard of Review

A. Traditional Summary Judgment

      We review a summary judgment de novo. Travelers Ins. Co. v. Joachim,

315 S.W.3d 860, 862 (Tex. 2010). We consider the evidence presented in the

light most favorable to the nonmovant, crediting evidence favorable to the

nonmovant if reasonable jurors could, and disregarding evidence contrary to the

nonmovant unless reasonable jurors could not. Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). We indulge every

reasonable inference and resolve any doubts in the nonmovant‘s favor. 20801,

Inc. v. Parker, 249 S.W.3d 392, 399 (Tex. 2008). A defendant who conclusively

negates at least one essential element of a cause of action is entitled to

summary judgment on that claim. Frost Nat’l Bank v. Fernandez, 315 S.W.3d

494, 508 (Tex. 2010), cert. denied, 131 S. Ct. 1017 (2011); see Tex. R. Civ. P.

166a(b), (c).

B. No-Evidence Summary Judgment

      After an adequate time for discovery, the party without the burden of proof

may, without presenting evidence, move for summary judgment on the ground

that there is no evidence to support an essential element of the nonmovant‘s

claim or defense. Tex. R. Civ. P. 166a(i). The motion must specifically state the

elements for which there is no evidence. Id.; Timpte Indus., Inc. v. Gish, 286

S.W.3d 306, 310 (Tex. 2009). The trial court must grant the motion unless the

nonmovant produces summary judgment evidence that raises a genuine issue of


                                       4
material fact. See Tex. R. Civ. P. 166a(i) & cmt.; Hamilton v. Wilson, 249 S.W.3d

425, 426 (Tex. 2008).

      When reviewing a no-evidence summary judgment, we examine the entire

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion. Sudan v. Sudan, 199

S.W.3d 291, 292 (Tex. 2006). We review a no-evidence summary judgment for

evidence that would enable reasonable and fair-minded jurors to differ in their

conclusions. Hamilton, 249 S.W.3d at 426 (citing City of Keller v. Wilson, 168

S.W.3d 802, 822 (Tex. 2005)). We credit evidence favorable to the nonmovant if

reasonable jurors could, and we disregard evidence contrary to the nonmovant

unless reasonable jurors could not. Timpte Indus., 286 S.W.3d at 310 (quoting

Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006)).              If the

nonmovant brings forward more than a scintilla of probative evidence that raises

a genuine issue of material fact, then a no-evidence summary judgment is not

proper. Smith v. O’Donnell, 288 S.W.3d 417, 424 (Tex. 2009); King Ranch, Inc.

v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003), cert. denied, 541 U.S. 1030

(2004).




                                       5
                             IV. Summary Judgment

      Parsons challenges the trial court‘s summary judgment on his claims for

negligence, respondeat superior, breach of fiduciary duty, fraud, and unjust

enrichment.5 We address each claim in turn.

A. Negligence

      Parsons contends in his first seven issues that the trial court erred by

granting summary judgment on his negligence claims against Baron & Budd. 6

Baron & Budd responds that Parsons failed to present evidence of an attorney-

client relationship between himself and Baron & Budd.

      1. Applicable Law

      A plaintiff in a legal malpractice suit must prove that (1) the attorney owed

the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately

caused the plaintiff‘s injuries, and (4) damages occurred. 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 owes a duty of care only to his or

      5
       Parsons‘s statement of issues lists separate causes of action for
misrepresentation and fraud, but he treats them as one cause of action in his
argument section, just as he did in the trial court.         We thus address
misrepresentation and fraud as one cause of action, and we address Parsons‘s
claims for unjust enrichment and constructive trust as one for the same reason.
However, we express no opinion as to whether misrepresentation and fraud or
unjust enrichment and constructive trust are separate causes of action.
      6
       Parsons also argues that the trial court erred by sustaining certain
objections to his summary judgment evidence, but we have reviewed the
summary judgment record as if the trial court did not sustain any of Baron &
Budd‘s objections. Thus, we need not address these arguments.


                                         6
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 nonclients because there is no

privity of contract. Am. Centennial Ins. Co. v. Canal Ins. Co., 843 S.W.2d 480,

484 (Tex. 1992).

      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 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; Moran,

946 S.W.2d at 405.




                                         7
      2. Applicable Facts

      Parsons‘s July 20, 2009 amended response to Baron & Budd‘s motion for

summary judgment relied on two items of summary judgment evidence that are

relevant to this appeal: Parsons‘s affidavit and excerpts from the deposition of

Sidney K. Powell.7

      Parsons testified by affidavit that he hired Sidney K. Powell and S. Ann

Saucer in December 1995 as legal counsel on appeal in the DuPont Litigation.

At the time, Parsons learned that Powell and Saucer were working with Baron &

Budd on the appeal of a case pending before the Fifth Circuit (the Ahearn case).

Parsons testified that he attended the oral argument in the Fifth Circuit case.

Parsons continued,

      Following the oral arguments, Baron invited me to lunch with his
      appellate team that included my attorneys Powell and Saucer. Over
      lunch I told Baron about my complaints with the Turley Defendants
      and thanked him for his diligence in the Ahearn case.

             I trusted and confided in Baron because Powell and Saucer,
      with whom I had a[n] attorney-client relationship, advised me that
      they trusted and confided in both Baron and Baron‘s wife . . .



      7
        Parsons also attached his response to Greenberg‘s 2007 motion for
summary judgment and asked that the trial court take judicial notice of his fifth
and sixth amended petitions, but the trial court struck Parsons‘s fifth amended
petition as it related to Baron & Budd and denied Parsons‘s motion for leave to
file the sixth amended petition. It is also well-settled that a party generally may
not rely on its own pleadings as summary judgment evidence. See Laidlaw
Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660–61 (Tex. 1995)
(discussing Hidalgo v. Surety Sav. & Loan Ass’n, 462 S.W.2d 540, 545 (Tex.
1971)).


                                        8
Parsons‘s affidavit also stated that he had informed Powell that ―it was [his]

intention to hire a lawyer having Baron‘s qualities and capabilities who was

willing and able to investigate and prosecute all of my viable claims against the

Turley Defendants.‖

      Other arguably relevant averments from Parsons‘s affidavit are:

      ● In July 1996, the Barons, based upon what I had told Baron and
      what Powell had told Baron and Blue[,] referred me to me [sic] to
      their friend and personal lawyer Robert M. Greenberg (―Greenberg‖)
      to handle the claims that I wanted investigated and prosecuted.

      ● In July 1996, Greenberg agreed to work on my case, and by
      December 1996, Greenberg enthusiastically advised me to hire F.
      Clif Cameron (―Cameron‖), a private investigator who also did
      considerable work for [Baron & Budd], as a necessary step toward
      discovering evidence that had been hidden or destroyed [in the
      DuPont litigation].

      ● Baron represented that his personal lawyers would handle this
      case. I trusted Baron and considered him to be a skilled lawyer, and
      one who was very interested in justice.

      ● I understood that the Barons‘ referral was a material
      representation to me that Greenberg‘s expertise and experience
      qualified him to handle my cases.

      ● I was advised by [Greenberg and Motsenbocker] that they worked
      closely with Fred Baron and that they would do my case. Baron also
      told me that. They represented that they could jointly handle a case
      against Turley and that however it would be necessary to work as a
      team, and the team was an enterprise consisting of the
      Greenberg/Motsenbocker Defendants, Fred Baron, Baron and
      Budd[,] and the investigator, Clif Cameron.

      ● My attorneys also represented that they were an enterprise and
      by working with them, we were going to get the benefit of the Baron
      resources and alliance. Greenberg represented that he was Fred
      Baron‘s lawyer.



                                       9
      ● My attorneys represented that Attorney-Greenberg was corporate
      counsel for Baron.

      Powell testified in her deposition that she attempted to help Parsons find

counsel to sue Turley by making ―some phone calls to other lawyers that [she]

knew and respected and asked for their recommendations and then followed up

on those.‖    Powell also testified that she spoke with Baron about Parsons.

Powell testified that Baron said that ―Greenberg was an excellent lawyer and was

also his lawyer,‖ meaning that Greenberg ―had represented either [Baron] or the

law firm in any number of cases.‖

      3. No Attorney-Client Relationship

      In its motion for no-evidence summary judgment, Baron & Budd argued

that Parsons had no evidence of a duty owed to him by Baron & Budd. ―In a

general sense, an attorney-client relationship arises from a lawyer‘s agreement

to render professional services to a client.‖ Valls v. Johanson & Fairless, L.L.P.,

314 S.W.3d 624, 633 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing

Greene’s Pressure Treating & Rentals, Inc. v. Fulbright & Jaworski, L.L.P., 178

S.W.3d 40, 43 (Tex. App.—Houston [1st Dist.] 2005, no pet.)). That agreement

may be implied from the parties‘ conduct, but ―[w]hether the agreement is

express or implied, however, there still must be some manifestation that both

parties intended to create an attorney-client relationship; therefore, one party‘s

mistaken belief is not sufficient, by itself.‖ Id. at 634.




                                           10
        Parsons presented no evidence of an implied legal services contract or

attorney-client relationship between himself and Baron & Budd. Baron‘s only

conduct toward Parsons was to listen to Parsons‘s complaints about Turley over

lunch and to tell Powell that ―Greenberg was an excellent lawyer and was also

his lawyer.‖ Powell understood this to mean that Greenberg ―had represented

either [Baron] or the law firm in any number of cases.‖         Neither of these

occurrences suggests an intention or agreement by Baron to enter into an

attorney-client relationship with Parsons. Rather than evidence of conduct by

Baron, the bulk of Parsons‘s evidence relates to statements made to him by

Greenberg or his own subjective beliefs about his relationship with Baron &

Budd.

        Parsons argues that he presented evidence of a legal services contract

with Baron & Budd because (1) he asked Baron for a referral; (2) Baron accepted

his request by making a referral to Greenberg; and (3) this ―contract‖ was

supported by two forms of consideration: (a) Parsons‘s retention of Greenberg to

handle the Turley Litigation ―strengthened the Baron & Budd-Greenberg

relationship and better positioned Greenberg to continue his work for the firm‖

and (2) Baron & Budd‘s right to enter into a referral fee contract with Greenberg.

However, Parsons did not make this argument to the trial court in his pro se

response to Baron & Budd‘s motion for summary judgment. Therefore, Parsons

cannot rely on this argument as a basis for reversing the trial court‘s summary

judgment. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 679


                                       11
(Tex. 1979); see also Tex. R. Civ. P. 166a(c) (―Issues not expressly presented to

the trial court by written motion, answer or other response shall not be

considered on appeal as grounds for reversal.‖ (emphasis added)).

      Parsons also argues that even if Baron & Budd did not represent him ―for

the referral and thereafter,‖ Baron & Budd negligently failed to inform him of its

non-representation.8 However, negligent failure to inform of non-representation

was not pleaded in Parsons‘s fourth amended petition, nor did Parsons make this

argument in his pro se response to the motion for summary judgment. See Clear

Creek Basin Auth., 589 S.W.2d at 679; see also Tex. R. Civ. P. 166a(c). We

hold that the trial court did not err by granting Baron & Budd‘s no-evidence

motion for summary judgment on Parsons‘s negligence claims.

      4. No Respondeat Superior Liability

      Parsons further contends that the trial court erred by granting summary

judgment against him on his assertion that Baron & Budd had respondeat

superior liability for Greenberg‘s negligence. In its traditional motion for summary

judgment, Baron & Budd included a section in which it argued that it had no

liability for the alleged acts or omissions of Greenberg or his firm. And Baron &

Budd attached to its motion for summary judgment an affidavit by Greenberg that


      8
        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 v. Kelly, 791 S.W.2d 254, 258 (Tex. App.—Corpus Christi 1990,
no writ); Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App.—Texarkana 1989,
writ denied).

                                          12
established as a matter of law that he was not an employee, shareholder,

partner, or member of Baron & Budd; that Baron & Budd had not controlled and

did not control his legal work; that he was not acting as an agent of Baron &

Budd when representing Parsons in the Turley Litigation; that no one from Baron

& Budd conferred upon him actual or apparent authority to act as its agent in the

Turley Litigation; that his law firm is and was a separate legal entity unrelated to

Baron & Budd; and that any agency relationship he had with Baron & Budd

related only to his representation of Baron & Budd in unrelated matters. 9 This

evidence established Baron & Budd‘s right to judgment as a matter of law

because it affirmatively disproved any employment or agency relationship. See

generally Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 312 (Tex.

2002); Baptist Mem’l Hosp. Sys. v. Sampson, 969 S.W.2d 945, 947 (Tex. 1998).

Parsons‘s pro se response did not address Baron & Budd‘s respondeat superior

argument, nor did it include evidence creating a genuine issue of material fact on

the issue. Therefore, the trial court did not err by granting summary judgment on

Parsons‘s respondeat superior claim. We overrule Parsons‘s first six issues.10



      9
        In his sixteenth issue, Parsons argues that the Lance Pool affidavit, also
attached to Baron & Budd‘s motion for summary judgment, should be struck on
appeal because it is not based on Pool‘s personal knowledge. Greenberg‘s
affidavit, for purposes of Parsons‘s respondeat superior claim, is virtually
identical to Pool‘s affidavit. Thus, we do not reach Parsons‘s sixteenth issue.
See Tex. R. App. P. 47.1.
      10
        We need not address Parsons‘s seventh issue, in which he contends that
expert testimony was not required to overcome his summary judgment burden

                                        13
B. Parsons’s Remaining Claims

      In issues eight through twelve, Parsons argues that the trial court erred by

granting summary judgment on his claims for breach of fiduciary duty, and he

argues that his alleged legal services contract with Baron & Budd ―created an

attorney-client relationship that in turn underpins the firm‘s fiduciary duties.‖ We

held above, however, that the trial court did not err by granting Baron & Budd‘s

motion for no-evidence summary judgment because Parsons presented no

evidence of an attorney-client relationship between himself and Baron & Budd.

Thus, there was also no fiduciary relationship between Parsons and Baron &

Budd, and the trial court did not err by granting summary judgment against

Parsons on this claim.11 We overrule issues eight through twelve.

      In his thirteenth issue, Parsons challenges the summary judgment on his

fraud, conspiracy to defraud, and unjust enrichment claims. One element of

Parsons‘s fraud claim is that Baron & Budd made a false representation to

Parsons that it knew was false or that it made recklessly without any knowledge

of the truth. See, e.g., Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc.,



because our holdings are not dependent on whether Parsons did or did not have
expert testimony. See Tex. R. App. P. 47.1
      11
        Parsons did not argue to the trial court or in his initial brief in this court
that he presented evidence of an informal fiduciary relationship; the argument is
therefore waived. See Tex. R. Civ. P. 166a(c); Clear Creek Basin Auth., 589
S.W.2d at 679; see also Pineridge Assocs., L.P. v. Ridgepine, LLC, 337 S.W.3d
461, 472 n.10 (Tex. App.—Fort Worth 2011, no pet.) (holding appellant waived
argument by making it for the first time in its reply brief).


                                         14
962 S.W.2d 507, 524 (Tex. 1998). Parsons argued in his summary judgment

response that ―by virtue of their long association and close friendship, Baron

either knew the representation [that Greenberg was a qualified and able attorney]

was false or made it recklessly without truth of its assertion.‖ However, nothing

in the summary judgment record suggests that either Baron or Baron & Budd had

any belief or indication that Greenberg was not a qualified and able attorney. To

the contrary, the only reasonable inference from the summary judgment evidence

is that Baron & Budd believed Greenberg to be qualified and able because it

used Greenberg as its own counsel.          Parsons therefore failed to present

evidence raising a genuine issue of material fact on this element of his fraud

claim or the related conspiracy to defraud claim, and we hold that the trial court

did not err by granting summary judgment on these claims.

      Finally, Parsons predicated his unjust enrichment claim on his causes of

action for fraud and breach of fiduciary duty. 12 Because we have held that the

trial court did not err by granting summary judgment against Parsons‘s fraud and

fiduciary duty claims, we also hold that the trial court did not err by granting

summary judgment on his claim for unjust enrichment. We overrule Parsons‘s

thirteenth issue.


      12
        The entirety of Parsons‘s pro se summary judgment response as to his
unjust enrichment claim stated: ―The Baron Defendant[s] state that the Plaintiff‘s
unjust enrichment claims is [sic] predicated upon the fraud and breach of
fiduciary duty allegations. Since those claims are properly before the Court, the
Defendant‘s [sic] impliedly admit this one as well.‖


                                       15
                              V. Trial Court Recusal

        In his fourteenth and fifteenth issues, Parsons argues that Judge Melody

Wilkinson should have been disqualified from presiding over his lawsuit, and he

contends that he presented ―reasonable grounds for questioning Judge

Wilkinson‘s qualifications and impartiality.‖   In addition, Parsons argues that

Judge Wilkinson‘s alleged lack of impartiality ―could have affected her judgment

regarding whether the deadline for [his] expert designations should have been

increased from the two months that remained when [his] attorney was allowed to

withdraw.‖ This court previously addressed Parsons‘s motion to disqualify Judge

Wilkinson from the underlying litigation when Parsons appealed the summary

judgment in favor of Turley. See Parsons v. Turley, No. 02-09-00381-CV, 2010

WL 5187704, at *3–4 (Tex. App.—Fort Worth Dec. 23, 2010, no pet. h.) (mem.

op.).   We overrule Parsons‘s fourteenth and fifteenth issues for the reasons

stated in our previous opinion. 13 See id.




        13
        We also deny Parsons‘s post-submission motion that we consider his
April 2011 letter brief. The letter brief attempts to inject into this appeal matters
that occurred during the trial of Parsons‘s claims against Greenberg and
Motsenbocker, and none of the information contained within the April 2011 letter
brief would correct the deficiencies in Parsons‘s motion to disqualify Judge
Wilkinson.


                                         16
                               VI. Conclusion

      Having overruled each of Parsons‘s dispositive issues, we affirm the trial

court‘s judgment. See Tex. R. App. P. 47.1.




                                                 ANNE GARDNER
                                                 JUSTICE


PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: August 11, 2011




                                      17
