      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00861-CV



                                Veronica Chavez Vara, Appellant

                                                  v.

                               Melissa Morgan Williams, Appellee


   FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
  NO. D-1-GN-10-000225, HONORABLE GISELA D. TRIANA-DOYAL, JUDGE PRESIDING



                             MEMORANDUM OPINION


               This appeal arises from Veronica Chavez Vara’s legal malpractice claim against her

attorney, Melissa Morgan Williams. Vara appeals the trial court’s grant of Williams’s traditional

motion for summary judgment. For the reasons that follow, we affirm the trial court’s judgment.


                      FACTUAL AND PROCEDURAL BACKGROUND

               In 2007, Vara hired Williams to represent her in a divorce proceeding.              In

January 2008, the parties reached a mediated settlement agreement (MSA). In the MSA, both parties

verified that they had disclosed all community and separate property and all community

indebtedness. The MSA also provided that Vara could reside in the marital residence “until the date

of sale or October 1, 2008, whichever is earlier.” The MSA further stated that “[i]f the house does

not sell by October 1, 2008, Veronica Vara will move out by that date.” On February 1, 2008, the

trial court signed a final divorce decree, which included a provision that the parties were to sign an
operating trust agreement (OTA) to delineate the parties’ ownership and use of certain community

property assets. Following the entry of the divorce decree, disputes arose concerning the OTA, the

parties’ rights to the residence, and the disclosure of assets. In approximately September 2008, Vara

hired new counsel to represent her in post-divorce proceedings. Subsequently, the trial court entered

further orders clarifying and enforcing the terms of the divorce decree, including the provisions

relating to the OTA and Vara’s use of the marital residence.

               In January 2010, Vara, acting pro se, filed her “Original Suit of Legal Malpractice”

against Williams asserting negligence, violations of the Texas Deceptive Trade Practices Act

(DTPA), breach of contract, and breach of fiduciary duty. In her answer, Williams asserted that any

causes of action beyond legal malpractice were merely components of an impermissibly “fractured”

professional negligence claim.1 In March 2010, Vara filed her “1st Amended Suit of Legal

Malpractice,” again asserting negligence, DTPA, breach of contract, and breach of fiduciary causes

of action, and adding a claim for negligent misrepresentation. In June 2010, the trial court

signed a docket control order that set the deadline for Vara to designate testifying experts for

September 27, 2010. In August 2010, Williams filed special exceptions to Vara’s first amended

petition, and in response Vara filed her “Second Amended Petition” in early October 2010, adding

a claim for fraud and alleging misrepresentation in lieu of negligent misrepresentation.

               Meanwhile, the deadline for Vara to designate testifying experts passed in September,

and Vara did not designate any experts. In October, Williams filed a “traditional” motion for


       1
         As discussed more fully below, Texas law does not permit a plaintiff to divide or “fracture”
a legal malpractice claim into additional causes of action. O’Donnell v. Smith, 234 S.W.3d 135, 146
(Tex. App.—San Antonio 2007), aff’d, 288 S.W.3d 417 (Tex. 2009).

                                                 2
summary judgment asserting that (1) Vara’s non-negligence claims were actually fractured claims

for professional negligence and (2) Vara’s professional negligence claims failed as a matter of law

because she did not have the required expert testimony.2 Vara responded by filing a “3rd Amended

Petition,” in which she reasserted her fraud, DTPA, and breach of fiduciary duty claims, but omitted

her prior claims for breach of contract, negligence, and misrepresentation. Vara also filed special

exceptions to Williams’s motion for summary judgment contending that the grounds for Williams’s

motion were unclear in light of her amended petition. Vara subsequently filed written responses to

Williams’s motion for summary judgment in which she contended that Williams’s claim that her suit

was an improperly fractured malpractice claim was based on her second amended petition and since

she had filed her third amended petition in which she sought “no grounds of negligence whatsoever,”

Williams’s request to dispose of the entire case was improper.

               In November 2010, a hearing was held on Williams’s motion for summary judgment

and Vara’s special exceptions. The trial court first heard Vara’s special exceptions on the record.

Vara argued that Williams’s contention that the “entire lawsuit should be dismissed because it’s

basically legal malpractice” was based on her second amended petition and that under her third

amended petition, “[t]here’s nothing having to do with the standard of care. There’s no need for an

expert witness to come in and speak about the standard of care.” The trial court, observing that the

motion for summary judgment addressed the remaining live claims contained in Vara’s third

amended petition, overruled Vara’s special exceptions. The trial court then heard the motion


       2
          Alternatively, Williams also asserted that Vara’s DTPA claim was barred by the
professional services exception under the statute. See Tex. Bus. & Com. Code Ann. § 17.49(c)
(West Supp. 2012).

                                                 3
for summary judgment without a record and subsequently granted the motion in its entirety. This

appeal followed.


                                          DISCUSSION

               In a single issue, Vara contends that the trial court erred in granting Williams’s

“traditional” motion for summary judgment when there were genuine issues of material fact as to

Vara’s various causes of action. We review the trial court’s decision to grant summary judgment

de novo. Texas Mun. Power Agency v. Public Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex.

2007); Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a

traditional motion for summary judgment, the movant must establish that there are no genuine issues

of material fact and the movant is entitled to judgment as a matter of law. See Tex. R. Civ.

P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215–16 (Tex. 2003). A

defendant must disprove as a matter of law at least one essential element of each of a plaintiff’s

theories of recovery. D. Houston, Inc. v. Love, 92 S.W.3d 450, 454 (Tex. 2002). Stated another

way, “[a] defendant is entitled to summary judgment if the summary judgment evidence establishes,

as a matter of law, that at least one element of a plaintiff’s cause of action cannot be established.”

Maher v. Herrman, 69 S.W.3d 332, 336 (Tex. App.—Fort Worth 2002, pet. denied). Once the

defendant presents evidence to disprove an element of the plaintiff’s claim, the burden shifts to the

plaintiff to present controverting evidence that creates a fact issue on the element challenged by

the defendant. Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Maher, 69 S.W.3d

at 337.




                                                  4
               On appeal, the defendant, as movant, still bears the burden of showing there are no

fact issues and that it is entitled to judgment as a matter of law. Elliott-Williams Co. v. Diaz,

9 S.W.3d 801, 803 (Tex. 1999). When reviewing a summary judgment, the appellate court takes as

true all evidence favorable to the nonmovant and indulges every reasonable inference and resolves

any doubts in the nonmovant’s favor. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006); Dorsett, 164 S.W.3d at 661. When the trial court does not specify the grounds for its

summary judgment, the appellate court must affirm the summary judgment if any of the theories

presented to the trial court and preserved for appellate review are meritorious. Knott, 128 S.W.3d

at 216.


Fractured Malpractice Claim

               Williams sought summary judgment on Vara’s non-negligence claims on the ground

that they were not independent causes of action but were instead merely components of a fractured

legal malpractice claim. On appeal, Vara contends that her pleadings contain independent,

non-fractured causes of action for fraud, breach of fiduciary duty, and DTPA violations.3 To

determine whether Vara has asserted separate non-negligence claims that are distinct from a legal

malpractice claim, we look to the law characterizing professional negligence claims and the rule

prohibiting plaintiffs from dividing negligence claims against their attorneys into other claims.




          3
         Vara also contends that Williams’s fractured malpractice claim argument is irrelevant
because Williams failed to negate any element of her negligence cause of action. We address this
argument in our discussion of Vara’s failure to designate a testifying expert.

                                                 5
                 Attorneys owe their clients the duty to act in a manner consistent with the

standard of care expected to be exercised by a reasonably prudent attorney. Beck v. Law Offices of

Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 426 (Tex. App.—Austin 2009, no pet.). A legal

malpractice claim is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989).

To prevail in a professional negligence case against an attorney, the plaintiff must prove (1) the

attorney owned a duty to the plaintiff; (2) the attorney breached that duty; (3) the breach caused the

plaintiff’s injuries; and (4) damages occurred. Id. at 665; Beck, 284 S.W.3d at 426.

                 Texas law does not permit a plaintiff to divide or “fracture” a legal malpractice claim

into additional causes of action. O’Donnell v. Smith, 234 S.W.3d 135, 146 (Tex. App.—San

Antonio 2007), aff’d, 288 S.W.3d 417 (Tex. 2009); Goffney v. Rabson, 56 S.W.3d 186, 190 (Tex.

App.—Houston [14th Dist.] 2001, pet. denied). The rule against fracturing a negligence claim

prevents malpractice plaintiffs from 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.). “‘[A] case arising out of an attorney’s alleged bad legal advice or improper

representation’ may not ‘be split out into separate claims for negligence, breach of contract, or fraud

[(or any other non-negligence theory)] because the real issue remains one of whether the professional

exercised that degree of care, skill, and diligence that professionals of ordinary skill and knowledge

commonly posses and exercise.’” Beck, 284 S.W.3d at 426–27 (brackets in original) (quoting

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

pet. denied)).




                                                   6
               This rule does not preclude clients from asserting causes of action other than

negligence against their attorneys if supported by the facts. See id.; Deutsch, 97 S.W.3d at 189.

However, a plaintiff may not rely on multiple causes of action as a “‘means to an end’ to achieve one

complaint of legal malpractice.”       Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex.

App.—Houston [1st Dist.] 1998, pet. denied). “[T]he claimant must do more than ‘merely reassert

the same claim for legal malpractice under an alternative label.’” Beck, 284 S.W.3d at 427 (quoting

Duerr v. Brown, 262 S.W.3d 63, 70 (Tex. App.—Houston [14th Dist.] 2008, no pet.)). In

determining whether an asserted cause of action is a claim for negligence or something else, “‘we

are not bound by the labels the parties place on their claims.’” Id. at 427–28 (quoting Murphy

v. Gruber, 241 S.W.3d 689, 697 (Tex. App.—Dallas 2007, pet. denied)). If the gist of the complaint

is that the attorney did not exercise that degree of care, skill, or diligence as attorneys of ordinary

skill and knowledge commonly possess and exercise, then the complaint should be pursued as a

negligence claim rather than as some other claim. Id.; Deutsch, 97 S.W.3d at 189–90.

               After reviewing Vara’s fraud, DTPA, and breach of fiduciary duty allegations, we

conclude that the gist of these claims is that Williams did not exercise that degree of care, skill, or

diligence as attorneys of ordinary skill and knowledge commonly possess and exercise and they are

thus components of a fractured malpractice claim. See Beck, 284 S.W.3d at 434; Deutsch,

97 S.W.3d at 190.       In her fraud allegations, Vara complains that Williams made “false

representations” regarding the drafting of the OTA and divorce decree, “concealed” information

concerning the OTA and verification of assets, and “induced” her into signing the divorce decree.

In her DTPA claim, Vara contends that these same acts constituted “false, misleading, and



                                                  7
deceptive” representations on which Vara relied to her detriment. And in her breach of fiduciary

duty claim, Vara asserts that this same conduct, as well as her failure to seek a restraining order

against Vara’s ex-husband, was a breach of Williams’s fiduciary duty to Vara.

                However, in each of these claims, all of which are based on the same factual

allegations, the substance of Vara’s allegations is that Williams did not competently fulfill her duties

as Vara’s attorney by failing to obtain an executed OTA contemporaneously with or immediately

after the court’s signing the final decree of divorce, to ensure “appropriate language” in the divorce

degree, particularly with regard to the parties’ rights to the marital residence, and to obtain the

necessary documentation to verify Vara’s ex-husband’s assets. Merely characterizing conduct as a

“misrepresentation,” “concealment,” “inducement,” “misleading,” or “deceptive” does not

necessarily transform what is really a professional negligence claim into a fraud, DTPA, or breach

of fiduciary duty cause of action.4 See Murphy, 241 S.W.3d at 697; see also Kimleco, 91 S.W.3d

at 924; Greathouse, 982 S.W.2d at 172. In short, the crux of these purported causes of action is that

Williams did not provide adequate legal representation to Vara, these claims should be pursued only




        4
           Further, claims for breach of fiduciary duty involve the integrity and fidelity of an attorney
and focus on whether an attorney obtained an improper benefit from representing the client. Murphy
v. Gruber, 241 S.W.3d 689, 693 (Tex. App.—Dallas 2007, pet. denied). The only benefit to
Williams that Vara alleges is attorney’s fees from continued representation of Vara. Such an alleged
benefit does not rise to the level of “improper benefit” generally necessary to constitute a breach of
fiduciary duty. See Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex. App.—Houston [14th Dist.] 2001,
pet. denied) (“Breach of fiduciary duty by an attorney most often involves the attorney’s failure to
disclose conflicts of interest, failure to deliver funds belonging to the client, placing personal
interests over the client’s interests, improper use of client confidences, taking advantage of the
client’s trust, engaging in self-dealing, and making misrepresentations.”); O’Donnell, 234 S.W.3d
at 146 (breach of fiduciary duty often involves attorney’s failure to disclose conflicts of interest,
failure to deliver client funds, improper use of client confidences, or engaging in self-dealing).

                                                   8
as a professional negligence claim, and Vara impermissibly fractured her malpractice claim by

asserting them as fraud, breach of fiduciary duty, and DTPA claims. See Kimleco, 91 S.W.3d at 924;

Deutsch, 97 S.W.3d at 189; Greathouse, 982 S.W.2d at 172. We therefore conclude that the trial

court did not err in granting Williams’s motion for summary judgment as to Vara’s non-negligence

causes of action.5


Failure to Designate Expert

               Although Vara’s third amended petition purports to omit her cause of action for

negligence, because we conclude that her non-negligence claims were actually components of a

fractured claim for professional negligence, we turn to the issue of Vara’s failure to designate an

expert in accordance with the deadline established by the trial court. Under Texas law, a plaintiff

in a legal malpractice case is required to present expert testimony regarding the standard of skill and

care ordinarily exercised by an attorney.       McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex.

App.—Houston [14th Dist.] 2008, no pet.); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex.

App.—Austin 2002, pet. denied). It is undisputed that Vara did not designate any testifying experts

within the time allowed by the trial court’s docket control order and did not request an extension of

time in which to do so. Williams sought summary judgment on the ground that in the absence of

expert testimony Vara could not prove the elements of her legal malpractice claim. Williams’s

summary judgment included an affidavit from her attorney averring that neither he nor Williams had


       5
          Vara also contends that the trial court erred in granting summary judgment because
Williams failed to present affirmative evidence negating at least one element of each non-negligence
cause of action asserted. Because we conclude that Vara’s non-negligence claims are merely
components of a fractured malpractice claim, we do not reach this argument.

                                                  9
been served with a response to Williams’s request for disclosure that designated any testifying expert

witnesses for Vara concerning any elements of her legal malpractice claim or any other issue.

               Vara contends that the trial court erred in granting summary judgment because in

doing so it treated Williams’s traditional motion for summary judgment as a “no-evidence” motion

for summary judgment.6 In other words, Vara asserts, because Williams brought a traditional motion

for summary judgment but offered no summary judgment evidence on any of the elements of Vara’s

legal malpractice claim, Williams did not meet her burden, Vara had no obligation to offer

controverting evidence, and the trial court should have denied the motion. In essence, Vara argues

that the affidavit of Williams’s attorney was insufficient to negate any element of her claim, a

requirement of a traditional motion for summary judgment. We find this argument unpersuasive.

               The affidavit of Vara’s attorney established, and Vara did not and does not on appeal

dispute, that Vara failed to designate an expert to testify on the standard of care required of an

attorney. Because such expert testimony is required, see McInnis, 261 S.W.3d at 201; Ersek,

69 S.W.3d at 271, the affidavit of Williams’s attorney proving that Vara had not designated an expert

disproved as a matter of law at least one essential element of Vara’s legal malpractice claim.7 See

D. Houston, Inc., 92 S.W.3d at 454. Thus, the summary judgment evidence established, as a matter

of law, that at least one element of Vara’s cause of action could not be established, see Maher,



       6
          In a no-evidence motion for summary judgment, the movant, without presenting evidence,
seeks summary judgment on the ground that there is no evidence of one or more essential elements
of the nonmovant’s claim, and the burden shifts to the nonmovant to produce evidence raising a fact
issue. See Tex. R. Civ. P. 166a(i).
       7
          We do not address whether expert testimony is required to prove the other elements of
Vara’s legal malpractice claim.

                                                 10
69 S.W.3d at 336, and Williams met her burden under rule 166a(c), see Tex. R. Civ. P. 166a(c);

Provident Life & Accident Ins. Co., 128 S.W.3d at 216. When Williams presented evidence to

disprove the standard of care element of Vara’s legal malpractice claim, the burden shifted to Vara

to present controverting evidence to create a fact issue on that element. See Centeq Realty, Inc.,

899 S.W.2d at 197; Maher, 69 S.W.3d at 337. Because Vara failed to do so, we conclude that the

trial court did not err in granting Williams’s motion for summary judgment. We overrule Vara’s

single appellate issue.


                                        CONCLUSION

               Because we conclude that Vara’s non-negligence claims were merely components of

a fractured legal malpractice claim and that Williams met her burden under Rule 166a(c) to disprove

at least one element of that claim, we overrule Vara’s single issue and affirm the judgment of the

trial court.



                                             __________________________________________

                                             Melissa Goodwin, Justice

Before Chief Justice Jones, Justices Puryear and Goodwin

Affirmed

Filed: March 28, 2013




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