                               Fourth Court of Appeals
                                      San Antonio, Texas
                                               OPINION
                                          No. 04-13-00239-CV

            LAW OFFICE OF OSCAR C. GONZALEZ, INC., and Oscar C. Gonzalez,
                                   Appellants

                                                    v.
                                                    /s
                                             Isabel SLOAN,
                                                Appellee

                     From the 408th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2010-CI-14280
                               Honorable Larry Noll, Judge Presiding

Opinion by:       Rebeca C. Martinez, Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: August 29, 2014

REVERSED AND RENDERED IN PART; AFFIRMED IN PART

           Oscar C. Gonzalez, individually, and the Law Office of Oscar C. Gonzalez, Inc. appeal the

trial court’s judgment against them 1 awarding Isabel Sloan actual damages plus treble damages

and attorney’s fees under the Texas Deceptive Trade Practices Act (“DTPA”). TEX. BUS. & COM.

CODE ANN. §§ 17.41-.50 (West 2011 & Supp. 2014). Sloan’s DTPA claim was based on alleged

deceptive conduct by Gonzalez in failing to disclose the disciplinary history of another lawyer to



1
  The judgment is rendered against Oscar Gonzalez, the Law Office of Oscar C. Gonzalez, Inc., and Eric Turton
“jointly and severally.” Turton does not appeal.
                                                                                      04-13-00239-CV


whom Sloan’s case was referred and that the lawyer would not be supervised by Gonzalez. We

conclude the DTPA claim and the other non-negligence claims raised by Sloan are components of

an improperly fractured professional negligence claim. We further conclude the evidence is

sufficient to support the jury’s finding that Gonzalez and the Law Office were negligent in their

failure to safeguard Sloan’s settlement proceeds. We therefore reverse the judgment based on

Sloan’s DTPA cause of action, and render judgment against Gonzalez and his Law Office based

on the jury’s finding of professional negligence. We affirm the trial court’s imposition of a

constructive trust on certain assets held by Gonzalez and his Law Office.

                                                   BACKGROUND

           Attorney Oscar C. Gonzalez practices law through his own incorporated law firm called

the “Law Office of Oscar C. Gonzalez, Inc.” (the “Law Office”). During the relevant time period,

Eric R. Turton, a licensed lawyer, had an office in the space owned by Gonzalez and the Law

Office and paid rent and his share of overhead expenses. Gonzalez would often originate a case

and refer it to Turton to work on, with Gonzalez taking 50% of the fee. On other occasions,

Gonzalez and Turton would work on a case together and the fees from such a joint case would be

deposited in an “office account” they shared. According to Turton, Gonzalez always set the fee

on referred and joint cases. Turton stated that this course of dealing had been in effect since the

1990s.

           On May 27, 2004, Isabel Sloan called the Law Office and spoke to Gonzalez about hiring

him to represent her in a matter concerning the estate of her older sister, 2 who had recently passed

away. Sloan obtained Gonzalez’s name from her husband’s uncle, Ron Wolff. According to

Sloan, during the five to ten minute phone conversation, she explained her relationship to Wolff



2
    Sloan’s sister and her husband had legally adopted Sloan many years before.

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                                                                                      04-13-00239-CV


and the circumstances surrounding her sister’s death and estate. Gonzalez asked Sloan for her

phone number and social security number, which she provided. Gonzalez told her he did not

handle probate matters but stated he would work with another attorney, Eric Turton, on the matter

if she paid a retainer fee of $2,500. Gonzalez also mentioned a contract and quoted his hourly rate

as $300 and Turton’s hourly rate as $200.

       The next day, Sloan met with Turton at the Law Office; Gonzalez was not present. Sloan

decided to try to work out the matter and postponed hiring an attorney at that time. Two months

later, after Sloan learned a probate proceeding had been instituted, she decided to proceed with

hiring an attorney. On July 12, 2004, Turton sent Sloan an “Attorney Consultation and Fee

Contract” (the “Employment Agreement”) along with a cover letter on the Law Office letterhead.

Turton stated the Employment Agreement was a standard form used by Gonzalez and his Law

Office. Sloan signed the agreement on July 19, 2004, and returned it along with a check made

payable to the Law Office for the $2,500 retainer fee. The $2,500 check shows it was endorsed

by the Law Office and deposited into Turton’s IOLTA trust account. The Employment Agreement

recites that it is made “in the Law Office of Oscar C. Gonzalez, Inc., between Isabel Sloan . . . and

Law Offices of Oscar C. Gonzalez and Eric R. Turton (‘Attorneys’).” It goes on to state that Sloan

“hereby retains and employs the Attorney” to represent her, and lists the hourly rates for Gonzalez

at $300.00 and for Turton at $200.00. The Employment Agreement further states, “if [at] any time

any of the above attorney’s [sic] should be working simultaneously on this case the total hourly

charge will be $300.00 to [the] client.” The agreement twice recites that Sloan agrees to “deposit

a non-refundable retainer of $2,500.00 to the Law Offices of Oscar C. Gonzalez, Inc.” Finally,

the agreement recites that it is the sole legal fee agreement between the parties and supersedes any

prior understandings. At the end of the Employment Agreement, there is a signature block for



                                                -3-
                                                                                    04-13-00239-CV


“Law Office of Oscar C. Gonzalez, Inc.” with the firm’s address and phone number and a signature

line for Gonzalez, individually. The agreement was signed by Sloan, but not by Gonzalez.

       On July 27, 2004, the “Law Offices of Oscar C. Gonzalez” filed a notice of appearance as

counsel for Sloan in the probate proceeding. Turton signed the notice of appearance below the

Law Office signature block. For the next four years, Turton represented Sloan in the probate

proceeding. Sloan stated the correspondence she received from Turton was initially on the Law

Office letterhead and later on Turton’s own letterhead. For example, pleadings filed in 2006 were

signed by Turton under a signature block for the “Law Office of Eric R. Turton.” Sloan stated she

thought nothing of the difference because she believed that both Turton and Gonzalez were her

attorneys. Turton occasionally told her that he had spoken with Gonzalez about various matters

involved in her case. Turton testified he did in fact verbally consult with Gonzalez at various

stages of Sloan’s case. Sloan never spoke with Gonzalez again after her initial phone conversation,

and never received a bill from Gonzalez for his time.

       Turton successfully settled Sloan’s case in 2008. The settlement check for $100,000 was

made payable jointly to Turton and Sloan.         Turton endorsed both signatures, which the

Employment Agreement authorized, and deposited the $100,000 into his IOLTA account on

March 3, 2008. The next day, Turton wrote a check to Gonzalez for rent out of his (Turton’s)

IOLTA account. In January 2009, Sloan received a letter stating she might owe taxes and called

Turton inquiring if the settlement funds had been received. On January 15, 2009, Turton paid

Sloan $25,000 with a check drawn on his IOLTA account, and indicated in a cover letter that the

balance of the settlement had not yet been received and would be paid when the estate was closed.

Turton misapplied the remaining $75,000 of Sloan’s settlement proceeds by using funds from his

IOLTA account to pay his personal and business expenses. Some of the IOLTA funds were used

to pay Gonzalez and/or the Law Office for Turton’s rent and overhead expenses.              Turton
                                               -4-
                                                                                   04-13-00239-CV


subsequently admitted his liability for misapplying the settlement funds owed to Sloan, and was

disbarred.

       Sloan sued Turton and Gonzalez individually, along with the Law Office, asserting causes

of action for negligence and gross negligence, breach of fiduciary duty, money had and

received/conversion, and violation of the DTPA. Sloan alleged that Gonzalez and his Law Office

were equally responsible with Turton for representing her interests, including safeguarding her

client funds. Sloan also alleged that Gonzalez and the Law Office committed misapplication and

theft due to the knowing receipt of trust funds from Turton. Sloan sought recovery of $75,000 in

actual damages and forfeiture of the $2,500 attorney’s fee paid, plus “interest as damages” on the

misapplied fiduciary funds, exemplary damages, treble damages under the DTPA, and imposition

of a constructive trust on the misapplied funds. Turton filed a cross-claim suit against Gonzalez

which was severed from Sloan’s case.

       At trial, Sloan’s basic theory against Gonzalez and his Law Office was that Gonzalez was

also her attorney and owed her the same duties as Turton, including managing and protecting her

settlement funds. Sloan raised no complaints regarding Turton’s representation leading up to the

settlement; all her claims stemmed from the failure to safeguard her client funds and the

misapplication of her funds. Sloan also asserted that Gonzalez failed to inform her of Turton’s

substantial disciplinary history and that he (Gonzalez) would not “work with” or supervise Turton

on her case. Sloan claimed these omissions led her to sign the Employment Agreement with the

Law Office and to agree to Turton’s representation of her, which ultimately led to the

misapplication of her settlement money. Sloan conceded that Turton was a licensed attorney

during the time he represented her, but testified that if she had been told of Turton’s prior

professional misconduct and suspensions she would never have agreed to his representation or his

access to her settlement money, especially without Gonzalez’s participation or oversight. Sloan
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                                                                                      04-13-00239-CV


testified that, based on her phone conversation with Gonzalez and the terms of the written

Employment Agreement with the Law Office, she believed that she had a contract with both

attorneys, Gonzalez and Turton, and that both attorneys were responsible for safeguarding her

settlement money.

           Gonzalez’s defense at trial was that he never intended to represent Sloan and had no

attorney-client relationship with her. Gonzalez testified that Turton was Sloan’s only attorney and

that Turton was not employed by the Law Office. The Employment Agreement was admitted into

evidence, along with handwritten notes which match the information Sloan says she gave Gonzalez

on the phone. Gonzalez testified that the notes were from his phone conversation with Wolff, and

stated he did not recall ever speaking to Sloan. Gonzalez testified he told Wolff that he did not

handle probate matters, but that Eric Turton did. Gonzalez testified that his habit was to send a

non-engagement letter if he had spoken with a prospective client and decided his Law Office did

not want the case; no evidence was produced showing that any such letter was sent to Sloan.

Gonzalez’s defense was also focused on his testimony that, although he knew of Turton’s

disciplinary history, it was not foreseeable to him that Turton would engage in a criminal act by

misapplying Sloan’s settlement money.

           At the conclusion of the evidence, the court submitted a jury charge on seven alternative

theories of liability: (1) breach of fiduciary duty; (2) common law failure to disclose; (3) fraud; 3

(4) violation of the DTPA; (5) negligent misrepresentation; (6) professional negligence; and (7)

money had and received. The jury returned a verdict for Sloan on all her theories of liability and

awarded actual damages of $77,500 under each theory except for breach of fiduciary duty, which

actual damages consisted of the $75,000 in misappropriated settlement funds plus forfeiture of the


3
    Fraud is not pled as a cause of action in Sloan’s petition.


                                                             -6-
                                                                                                  04-13-00239-CV


$2,500 retainer paid by Sloan. Even though the jury made affirmative findings against Gonzalez

and the Law Office of gross negligence and malice, as well as criminal conduct in the form of theft

and intentional misapplication, the jury indicated in a note that it could not agree on a specific

amount of exemplary damages; therefore, no exemplary damages were awarded on Sloan’s non-

DTPA claims.

        Sloan elected to recover under her DTPA claim, which included actual damages, treble

damages, and recovery of her attorney’s fees. In her DTPA claim, Sloan pled that Gonzalez and

his Law Office “failed to disclose . . . that fact, known to those Defendants at the time, that Eric

Turton was unfit to practice law and had a relevant and dismal disciplinary history, and that he

would be unsupervised by those Defendants, in order to induce [Sloan] into a transaction she would

not have otherwise entered, in violation of Section 17.46(b)(24), Tex. Bus. & Comm. Code.” 4 The

jury was asked in Question No. 11 whether Gonzalez and his Law Office engaged in “any false,

misleading, or deceptive act or practice that Isabel Sloan relied on to her detriment and that was

[a] producing cause of damages to Isabel Sloan?” The jury was instructed that a “‘[f]alse,

misleading, or deceptive act or practice’ means the failure to disclose information about services

that were known at the time of the transaction with the intention to induce Isabel Sloan into a

transaction she otherwise would not have entered into if the information had been disclosed.” TEX.

BUS. & COM. CODE ANN. § 17.46(a), (b)(24) (West 2011). The jury made an affirmative finding

against both Gonzalez and the Law Office.

        The trial court rendered judgment against Gonzalez, the Law Office, and Turton jointly

and severally for $77,500 in economic damages plus $64,125 in “interest as damages” based on


4
 Sloan also alleged that Gonzalez and the Law Office violated the DTPA by “engag[ing] in an unconscionable act or
course of action by accepting IOLTA checks for over three years from Eric Turton for law office rent and expenses,”
but this theory was not submitted to the jury.


                                                       -7-
                                                                                                      04-13-00239-CV


the jury’s finding that all three defendants intentionally misapplied the $75,000 in fiduciary

property 5 for a total actual damages award of $141,625. The court also awarded Sloan treble

damages of $424,875 based on the jury’s finding of “knowing” and “intentional” deceptive

conduct and $238,366 in attorney’s fees. See TEX. BUS. & COM. CODE ANN. § 17.50(a)(1)(A),

(b)(1) (West 2011). In addition to assessing post-judgment interest and costs of court, the

judgment also imposes a constructive trust on two bank accounts and the proceeds from the sale

of real property held by Gonzalez and/or the Law Office. Gonzalez and the Law Office now

appeal.

                          FRACTURING OF PROFESSIONAL NEGLIGENCE CLAIM

          We begin by determining whether Sloan’s DTPA claim, along with her other non-

negligence claims, are the result of improper fracturing of what is, at its crux, a professional

negligence claim. The issue is a question of law which we review de novo. Riverwalk CY Hotel

Partners, Ltd. v. Akin Gump Strauss Hauer & Feld, LLP, 391 S.W.3d 229, 236 (Tex. App.—San

Antonio 2012, no pet.); Murphy v. Gruber, 241 S.W.3d 689, 692 (Tex. App.—Dallas 2007, pet.

denied). In determining the issue, we are guided by the law characterizing legal malpractice claims

and the rule prohibiting malpractice plaintiffs from “opportunistically” transforming negligence

claims into other claims. Riverwalk, 391 S.W.3d at 236.

          Gonzalez and the Law Office argue in Issue No. 5 that Sloan’s DTPA claim and all of her

other non-negligence claims are predicated on conduct that amounts to negligence and, thus, are

merely components of a fractured legal malpractice claim rather than independent causes of action.



5
  In the second phase of trial on the issue of exemplary damages, the jury found that all three defendants intentionally
misapplied Sloan’s trust funds and committed theft in excess of $20,000. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 41.009 (West 2008); id. § 41.008(c) (West Supp. 2014) (cap on exemplary damages does not apply if conduct is
based on intentional commission of a designated felony, including misapplication of fiduciary property). As noted,
the jury was not able to unanimously agree on a dollar amount of exemplary damages. See id. § 41.003(d) (West
Supp. 2014).

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                                                                                     04-13-00239-CV


Texas law does not permit a plaintiff to fracture legal malpractice claims into separate claims.

O’Donnell v. Smith, 234 S.W.3d 135, 146 (Tex. App.—San Antonio 2007), aff’d, 288 S.W.3d 417

(Tex. 2009). A legal malpractice claim is based on negligence and arises from an attorney’s failure

to exercise ordinary care. Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989); Beck v. Law

Offices of Edwin J. (Ted) Terry, Jr., PC., 284 S.W.3d 416, 426 (Tex. App.—Austin 2009, no pet.)

(attorneys owe their clients the duty to act with ordinary care, in a manner consistent with the

standard of care expected to be exercised by a reasonably prudent attorney). Thus, a legal

malpractice claim is dependent on the existence of an attorney-client relationship. Barcelo v.

Elliott, 923 S.W.2d 575, 577 (Tex. 1996) (attorney owes a duty of care only to his client, and

privity rule requires this relationship as a predicate for legal malpractice claim); Gamboa v. Shaw,

959 S.W.2d 662, 664-65 (Tex. App.—San Antonio 1997, no pet.); see Swank v. Cunningham, 258

S.W.3d 647, 666 (Tex. App.—Eastland 2008, pet. denied) (applying privity rule). Therefore, we

must first determine whether an attorney-client relationship existed between Sloan and

Gonzalez/the Law Office.

       Despite Gonzalez’s arguments to the contrary, the evidence shows that an attorney-client

relationship was formed between Sloan and Gonzalez and his Law Office. As detailed, supra, the

written Employment Agreement signed by Sloan stated it was made between Sloan as the “Client”

and the “Law Offices of Oscar C. Gonzalez” as well as Turton, both of which it defined as the

“Attorneys” being employed. (emphasis added). The Employment Agreement further contained

the individual hourly rates for Gonzalez and Turton and provided the hourly rate for simultaneous

work by both attorneys. Sloan’s retainer check was made payable to the Law Office and was

endorsed by the Law Office. The Law Office, not Turton individually, then entered an appearance

as counsel for Sloan in the probate proceeding. Even though Turton later filed some pleadings

under his own letterhead as the “Law Office of Eric R. Turton,” the record does not show that the
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                                                                                                       04-13-00239-CV


Law Office of Oscar Gonzalez ever withdrew as attorney of record for Sloan. The existence of an

attorney-client relationship between Sloan and Gonzalez and his Law Office is thus proven by an

express agreement. See Byrd v. Woodruff, 891 S.W.2d 689, 700 (Tex. App.—Dallas 1994, writ

denied) (contractual relationship between attorney and client may be either express or implied

from the parties’ conduct).

         The existence of an attorney-client relationship gives rise to a duty on the attorney’s part

to act with ordinary care, in other words, in a manner consistent with the standard of care expected

to be exercised by a reasonably prudent attorney. Cosgrove, 774 S.W.2d at 664. An attorney must

use “the utmost good faith in dealings with the client” and “reasonable care in rendering

professional services to the client.” Byrd, 891 S.W.2d at 700; see also Meyer v. Cathey, 167

S.W.3d 327, 330-31 (Tex. 2005) (per curiam) (in a formal relationship such as an attorney-client

relationship a fiduciary duty arises as a matter of law). See TEX. DISCIPLINARY R. PROF’L

CONDUCT §§ 1.01-8.05, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, App. A, art. X (West

2013 & Supp. 2014) (rules defining attorney’s responsibilities within an attorney-client

relationship). An attorney’s failure to exercise “that degree of care, skill, and diligence that a

lawyer of ordinary skill and knowledge commonly possesses and exercises” gives rise to a legal

malpractice or professional negligence claim. 6 Cosgrove, 774 S.W.2d at 664-65 (complaints about

an attorney’s care, skill, or diligence in representing a client implicate this duty of ordinary care

and sound in negligence).

         The Texas rule against fracturing a negligence claim prevents legal malpractice plaintiffs

from dividing a claim that sounds only in negligence into other claims in order to benefit from a


6
 As noted by the Austin court of appeals in Beck, the terms “legal malpractice” and “professional negligence” are
often used interchangeably to refer to clients’ claims challenging the quality of an attorney’s representation. See Beck,
284 S.W.3d at 427 n.10. We agree with the Austin court that “professional negligence” is the more precise term, but
we will also use “legal malpractice” when such term is employed by the caselaw cited. See id.

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                                                                                      04-13-00239-CV


longer limitations period, the availability of treble damages, or “other tactical advantages.”

Riverwalk, 391 S.W.3d at 236; Beck, 284 S.W.3d at 427; see Deutsch v. Hoover, Bax & Slovacek,

97 S.W.3d 179, 189 (Tex. App.—Houston [14th Dist.] 2002, no pet.). When the real issue is

whether the professional exercised that degree of care, skill and diligence that professionals of

ordinary skill and knowledge commonly possess and exercise, then the complaint may not be

“fractured” into separate claims for negligence, breach of fiduciary duty, fraud, breach of contract,

or DTPA. 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 does not,

however, preclude a client from asserting causes of action other than negligence against an attorney

if those other claims are supported by the facts. Riverwalk, 391 S.W.3d at 236; Murphy, 241

S.W.3d at 695; Deutsch, 97 S.W.3d at 189; see also Beck, 284 S.W.3d at 427-28 (noting the

fracturing rule does not necessarily bar the simultaneous assertion of negligence and non-

negligence claims that are predicated on some “common or overlapping facts”); Deutsch, 97

S.W.3d at 190. However, the client 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.)). If the “gist” of the complaint is

that the attorney did not exercise the degree of care, skill, or diligence that 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. Riverwalk, 391 S.W.3d at 236; Beck, 284

S.W.3d at 427-28; Deutsch, 97 S.W.3d at 189-90. Claims regarding the quality of the lawyer’s

representation of the client are professional negligence claims. Murphy, 241 S.W.3d at 696-97;

Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274-75 (Tex. App.—Austin 2002, pet. denied) (if

the ultimate issue is whether there has been a breach of duty leading to damages, then the claim

constitutes a negligence claim).
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       We look to the language in the plaintiff’s petition to determine whether Sloan is really

complaining about the quality of services that Gonzalez and the Law Office provided or about

something else entirely. Beck, 284 S.W.3d at 428 n.11; Murphy, 241 S.W.3d at 698 (noting the

remedy sought is also a factor, although not a dispositive factor, in determining the true nature of

a claim). We are not bound, however, by the labels the parties place on their claims. Murphy, 241

S.W.3d at 697 (citing State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980)); Haase v.

Abraham, Watkins, Nichols, Sorrels, Agosto and Friend, LLP, 404 S.W.3d 75, 82 (Tex. App.—

Houston [14th Dist.] 2013, no pet.). “Regardless of the theory a plaintiff pleads, as long as the

crux of the complaint is that the plaintiff’s attorney did not provide adequate legal representation,

the claim is one for legal malpractice.” Kimleco, 91 S.W.3d at 924. The analysis focuses primarily

on determining whether the facts underlying the cause of action asserted implicate only the

attorney’s duty of ordinary care or an independently actionable fiduciary, statutory, or contractual

duty. Id.; see also Deutsch, 97 S.W.3d at 189-90.

       Notwithstanding the labels placed on the causes of action, the gist of all of Sloan’s

complaints is that Gonzalez and the Law Office fell below the standard of care required of an

attorney with respect to the management, safeguarding, and distribution of her settlement proceeds.

As noted, supra, Sloan does not find any fault with the legal representation of her interests in the

probate proceeding or the settlement of her case. It is only after the settlement proceeds were

received that Sloan allegedly sustained any injury giving rise to a complaint. Under each of her

causes of action, she seeks the same remedy — recovery of the $75,000 in lost settlement proceeds.

A claim based on an attorney’s failure to protect the client’s settlement proceeds implicates an

attorney’s duty of ordinary care and constitutes a professional negligence claim. See Kimleco, 91

S.W.3d at 924. For example, in Swank, former executives of the client corporation sued the

attorneys involved in the underlying corporate litigation asserting claims for legal malpractice,
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                                                                                      04-13-00239-CV


breach of fiduciary duty, conspiracy, conversion, and fraud because the corporation did not receive

its share of the settlement proceeds. Swank, 258 S.W.3d at 651, 655 (claims were based on the

attorneys “handling” of the settlement proceeds and the “application of the credit those [settlement]

proceeds allowed”). In characterizing the claims as essentially a legal malpractice claim based on

negligence, the court noted the plaintiffs alleged twenty-three acts and omissions which all related

in some manner to the settlement, and the law firms’ alleged negligence with respect to the

settlement, as grounds for the negligence and breach of fiduciary duty claims. Id. at 651, 656 n.2.

The court stated that, “[a]ny attempt to recast the negligence allegations as breach of fiduciary duty

allegations would constitute an improper fracturing of the legal malpractice claim.” Id. at 656 n.2

(noting the outcome of the appeal would remain the same whether the claims were characterized

as negligence or breach of fiduciary duty, or both); see Byrd, 891 S.W.2d at 700-01 (legal

malpractice claims against attorney and law firm for their “conduct in managing and protecting

settlement proceeds” owed to minor client in underlying personal injury action; summary

judgment was reversed because fact issues existed as to whether attorney “acted reasonably in

handling settlement proceeds” and whether alleged wrongful conversion of settlement proceeds

by minor’s parents was foreseeable). A lawyer has a duty to safeguard client funds and hold such

funds separate from the lawyer’s own funds. See TEX. DISCIPLINARY R. PROF’L CONDUCT § 1.14,

reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit. G, App. A, art. X (West 2013).

       In a case with facts analogous to the instant case, a former client sued several attorneys

who had represented him in an underlying divorce action for breach of fiduciary duty, asserting

that the lead attorney was suffering from alcoholism and substance abuse during the representation

and that the other attorneys knew of his substance abuse problems and failed to disclose them to

the client; the client asserted he would not have hired the law firm if he had known of the lead

attorney’s problems. Beck, 284 S.W.3d at 430-31. The plaintiff similarly argued that the
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associated attorneys’ failure to disclose Terry’s substance abuse “implicated a fiduciary duty that

is actionable independently from the duty of ordinary care.” Id. at 431. The Austin court of

appeals disagreed, holding the plaintiff’s theory was inconsistent with Texas’ rule against

fracturing of legal malpractice claims. Id. The court explained that, “Texas courts . . . have

recognized that a complaint that a lawyer ‘misrepresented’ his competence to provide legal

services or ‘failed to disclose’ his incompetence implicates only the lawyer’s duty of ordinary care

and is not independently actionable as a fiduciary duty, DTPA, or other tort claim.” Id. (internal

citations omitted).   The court reasoned that a complaint related to a lawyer’s competence

“ultimately goes to the adequacy of the lawyer’s legal representation” and is therefore a negligence

claim which may not be fractured. Id. at 432; see Ersek, 69 S.W.3d at 270, 274 (DTPA claim

based on law firm’s alleged “misrepresentation regarding its competency” was an impermissibly

fractured claim for legal malpractice); Beck v. Looper, Reed & McGraw, P.C., No. 05-05-00724-

CV, 2006 WL 1452108, at *1 (Tex. App.—Dallas May 26, 2006, no pet.) (mem. op.) (complaint

that lawyer failed to disclose that he omitted performance criteria from employment contract, and

that he transferred shares of stock without criteria having been met, alleged claim for professional

negligence, not claim for breach of fiduciary duty); see also Kahlig v. Boyd, 980 S.W.2d 685, 687-

90 (Tex. App.—San Antonio 1998, pet. denied) (client’s fraud and DTPA claims against lawyer

who secretly had an affair with client’s current wife during his representation of client during

child-custody dispute with first wife were fractured negligence claims; lawyer’s failure to disclose

the affair was not an independently actionable breach of fiduciary duty or DTPA claim because it

was ultimately a complaint about the quality of the representation).

       While Sloan’s petition alleged that Gonzalez and the Law Office committed several acts

and omissions with respect to Sloan’s representation, all of such alleged conduct ultimately goes

to the quality of the legal services rendered, or not rendered, with respect to the management and
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                                                                                                  04-13-00239-CV


protection of her settlement proceeds. Further, all of the alleged claims are based on the same

single injury to Sloan — the loss of her $75,000 in settlement proceeds — for which she sought

recovery. See Murphy, 241 S.W.3d at 698. With respect to Sloan’s DTPA claim on which she

recovered, she recast her negligence complaint against Gonzalez/the Law Office within the

DTPA’s terminology of a “failure to disclose” certain information concerning Turton in order to

induce her into signing the Employment Agreement, thereby amounting to a “deceptive act.” See

TEX. BUS. & COM. CODE ANN. § 17.46(b)(24). Sloan’s DTPA claim alleged that Gonzalez failed

to disclose Turton’s disciplinary history7 and that Gonzalez would not supervise or “work with”

Turton on her case. These omitted matters implicate only the quality and due care of the legal

services to be provided. See Beck, 284 S.W.3d at 431 (complaint based on failure to disclose

attorney’s “incompetence” implicates only the attorney’s duty of ordinary care); Murphy, 241

S.W.3d at 696-97 (claims regarding quality of attorney’s services are professional negligence

claims). The gist of Sloan’s complaint against Gonzalez and the Law Office is violation of the

duty of ordinary care in the handling and safeguarding of her settlement funds, which constitutes

a professional negligence claim. See Swank, 258 S.W.3d at 655-56 (failure to safeguard and

manage settlement proceeds is breach of attorney’s duty of ordinary care, and amounts to claim

for legal malpractice); Byrd, 891 S.W.2d at 700-01 (same).

        Sloan failed to allege facts sufficient to independently support a non-negligence action

against Gonzalez/the Law Office, such as her DTPA, breach of fiduciary duty, and conversion

claims. See Kimleco, 91 S.W.3d at 924; Deutsch, 97 S.W.3d at 189-90. With respect to the DTPA,

both sides rely on the Supreme Court’s opinion in Latham v. Castillo, in which the court held that


7
  Sloan cites us to no authority that would expand the scope of an attorney’s duty of ordinary care to encompass the
obligation to disclose the disciplinary history of another lawyer with whom the attorney will work or to whom the
attorney plans to refer the client’s case, and we express no opinion on whether such a duty exists.


                                                       - 15 -
                                                                                                04-13-00239-CV


an allegation that the attorney not only failed to timely file suit, but affirmatively misrepresented

to the client that he had filed the petition and was actively prosecuting the case supported a DTPA

claim for deceptive conduct independent of a legal malpractice claim based on negligent conduct.

Latham v. Castillo, 972 S.W.2d 66, 69-70 (Tex. 1998). The court was careful to note, however,

that the DTPA is not applicable to the majority of legal malpractice scenarios, and stressed the

importance of preserving the distinction between negligent conduct and deceptive conduct. Id. at

69; see Riverwalk, 391 S.W.3d at 237 (citing Latham and referring to the importance of

maintaining the difference between negligent conduct and deceptive conduct); see also James V.

Mazuca & Assocs. v. Schumann, 82 S.W.3d 90, 95 (Tex. App.—San Antonio 2002, no pet.) (en

banc op. on reh’g) (construing Latham to require an affirmative misrepresentation by an attorney

to support a DTPA action independent of a legal malpractice action). Sloan did not plead an

affirmative misrepresentation by Gonzalez/the Law Office. Further, merely characterizing an

attorney’s conduct as “deceptive” does not alone transform what is actually a professional

negligence claim into a DTPA claim 8 or breach of fiduciary claim. See Murphy, 241 S.W.3d at

697; see also Aiken v. Hancock, 115 S.W.3d 26, 29 (Tex. App.—San Antonio 2003, pet. denied)

(claim phrased to allege that attorney made “false representations” about his prosecution of

plaintiff’s case did not support an independent claim under the DTPA for deceptive conduct, only

a claim for legal malpractice); see also Kahlig, 980 S.W.2d at 689 (claims for fraud and DTPA

based on attorney’s affair with client’s wife were “disguised malpractice claims” because real

complaint was that attorney did not represent client to best of his ability).



8
  Even if we were to consider Sloan as having sufficiently alleged conduct by Gonzalez/the Law Office that could
support an independent DTPA claim, there is no evidence that Gonzalez/the Law Office engaged in “deceptive
conduct” with the intent to induce Sloan or that there was an unbroken causal connection between any deceptive
conduct by Gonzalez/the Law Office and Sloan’s injury four years later due to Turton’s theft. See Doe, 907 S.W.2d
at 481.


                                                     - 16 -
                                                                                      04-13-00239-CV


           As to breach of fiduciary duty, because an attorney’s standard of care in negligence cases

is often defined by the characteristics of the inherent fiduciary relationship between attorney and

client, “not every complaint that can be said to implicate a lawyer’s fiduciary duties is actionable

separately from a negligence claim.” Beck, 284 S.W.3d at 429 (citing Murphy, 241 S.W.3d at

696). An independently actionable breach of fiduciary duty claim is generally one that focuses on

whether an attorney obtained an improper benefit from representing the client, rather than whether

the attorney represented the client with the requisite level of skill and care. Murphy, 241 S.W.3d

at 693 (conduct amounting to breach of fiduciary conduct consists of an attorney pursuing his own

pecuniary interests over the client’s interests or obtaining an improper benefit based on his

representation of the client); Kimleco, 91 S.W.3d at 923 (essence of a breach of fiduciary duty

involves the “integrity and fidelity” of an attorney and occurs when the attorney obtains an

improper benefit from his representation of the client). Further, the mere fact that attorneys may

have an expectation of receiving fees from a client’s representation is a factor present in virtually

every attorney-client relationship, and thus does not itself convert a negligence claim into a breach

of fiduciary duty claim. Beck, 284 S.W.3d at 433. Here, Sloan’s breach of fiduciary duty

allegation against Gonzalez/the Law Office is again pled in terms of their failure “to make full

disclosure of all material facts” concerning Turton and his acceptance and retention of client funds,

alleging the same basic facts underlying her DTPA and negligence claims. Sloan has not pled an

independent basis for a breach of fiduciary duty action against Gonzalez and the Law Office. 9

Finally, Sloan’s cause of action for conversion is similarly based on the same underlying facts

based on Turton’s misapplication of her settlement funds and Gonzalez/the Law Office’s failure




9
    As noted, the jury did not award any damages for breach of fiduciary duty.

                                                         - 17 -
                                                                                      04-13-00239-CV


to safeguard her client funds; consequently, it cannot support an independent cause of action apart

from professional negligence.

       The gist of all of Sloan’s claims is that Gonzalez/the Law Office, as her attorneys, breached

their duty of ordinary care by failing to manage and safeguard Sloan’s settlement funds thereby

causing her injury. Her claim ultimately goes to the quality of legal services and therefore

constitutes a professional negligence claim which may not be fractured. We therefore sustain

Gonzalez/the Law Office’s Issue No. 5.

       Because the jury made an affirmative finding that Gonzalez and the Law Office were

negligent and awarded Sloan damages based on such negligence, we must next determine whether

the evidence supports a judgment based on Sloan’s professional negligence claim.

                                PROFESSIONAL NEGLIGENCE CLAIM

       With respect to the jury’s affirmative finding on Sloan’s negligence claim, Gonzalez and

the Law Office argue that: (i) there is legally and factually insufficient evidence that an attorney-

client relationship existed between Sloan and Gonzalez and his Law Office (Issue No. 4); (ii) there

is no evidence of proximate cause because Turton’s criminal conduct was unforeseeable (Issue

No. 3); and (iii) there is legally and factually insufficient evidence to support the award of actual

damages against Gonzalez and the Law Office (Issue No. 8).

       In conducting a legal sufficiency review, we credit the evidence that supports the finding

if reasonable jurors could have done so and disregard contrary evidence unless reasonable jurors

could not. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d

106, 115 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005) (legal sufficiency

challenge will be sustained when there is a complete absence of evidence of a vital fact or when

the evidence offered to prove a vital fact is no more than a scintilla). Evidence is “no more than a

scintilla” when it is “so weak as to do no more than create a mere surmise or suspicion that the fact
                                                - 18 -
                                                                                       04-13-00239-CV


exists.” Akin, Gump, 299 S.W.3d at 115 (quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598,

601 (Tex. 2004)). In reviewing for factual sufficiency, we consider and weigh all of the evidence

in support of and contrary to the verdict, and will set aside the verdict only if it is so contrary to

the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust. Cain v.

Bain, 709 S.W.2d 175, 176 (Tex. 1986). In making this review, we do not substitute our judgment

for that of the jury, as they are the sole judge of the credibility of the witnesses and the weight to

be given their testimony. City of Keller, 168 S.W.3d at 819, 821.

       Sloan pled that Gonzalez and the Law Office were negligent in several respects, including

by “allowing Eric Turton to have a place to practice law where he would foreseeably . . . misapply

client funds without adequate supervision and safeguards to prevent access to client property and

funds,” and “permitting Eric Turton to receive client funds, permitting Eric Turton to manage

funds without supervision, permitting Eric Turton to misapply funds.” Sloan also alleged that

Turton’s criminal actions were foreseeable to Gonzalez and the Law Office and that, but for their

negligent conduct, she would not have suffered the loss of her settlement money. In Question Nos.

16 and 18, the jury found that Gonzalez and the Law Office were negligent with respect to Sloan

because they failed to use ordinary care, “that is, failing to do that which an attorney of ordinary

prudence could have done under the same or similar circumstances or doing that which an attorney

of ordinary prudence would not have done under the same or similar circumstances.” The term

“ordinary care” was further defined as that degree of care that an attorney of ordinary prudence

could use under the same or similar circumstances. The jury found that the negligence of Gonzalez

and the Law Office, as well as Turton, proximately caused actual damages of $77,550 to Sloan.

“Proximate cause” was defined as a cause that was a substantial factor in bringing about an event

and without which the event would not have occurred. The jury was also instructed that, “[I]n

order to be a proximate cause, the act or omission complained of must be such that an attorney
                                                - 19 -
                                                                                                    04-13-00239-CV


using ordinary care would have foreseen that the event, or some similar event, might reasonably

result therefrom” and that there may be more than one proximate cause of an event. 10

           To prevail on a professional negligence, or legal malpractice, claim the plaintiff must

prove: (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach

proximately caused the plaintiff’s injury, and (4) the plaintiff suffered damages. Akin, Gump, 299

S.W.3d at 112. As discussed above, we have already determined that the evidence establishes that

an attorney-client relationship was formed between Sloan and Gonzalez and his Law Office, giving

rise to a duty of ordinary care. Cosgrove, 774 S.W.2d at 665; Beck, 284 S.W.3d at 426. Thus, we

overrule Gonzalez/the Law Office’s challenge to the legal and factual sufficiency of the evidence

to support the jury’s finding of an attorney-client relationship and the resulting duty of care.

Gonzalez and the Law Office do not challenge the sufficiency of the evidence to support the jury’s

finding that they breached the applicable standard of care.

           Causation — Foreseeability

           The causation element of a professional negligence claim is met when a jury is presented

with pleading and proof that establishes a direct causal link between the actions of the attorney,

the injury suffered, and the damages awarded. Haynes & Boone v. Bowser Bouldin, Ltd., 896

S.W.2d 179, 181 (Tex. 1995). Proximate cause consists of two elements — cause in fact and

foreseeability — neither of which can be established by mere conjecture, guess, or speculation.

Akin, Gump, 299 S.W.3d at 122; Doe, 907 S.W.2d at 477. Cause in fact is established by proof

that the negligent act or omission was a substantial factor in bringing about the injury and without

which the harm would not have occurred. Akin, Gump, 299 S.W.3d at 122; Marathon Corp. v.

Pitzner, 106 S.W.3d 724, 727 (Tex. 2003). The test for foreseeability is whether “the actor, as a



10
     The jury was asked to determine whether Sloan was also negligent and found that she was not negligent.

                                                         - 20 -
                                                                                     04-13-00239-CV


person of ordinary intelligence, should have anticipated the dangers that [his] negligent conduct

created for others.” Byrd, 891 S.W.2d at 701 (citing Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d

546, 550 (Tex. 1985)). Generally, a third party’s criminal conduct is a superseding cause which

relieves the negligent actor from liability. Byrd, 891 S.W.2d at 701; Nixon, 690 S.W.2d at 550.

However, the actor’s negligence will not be excused where the criminal conduct is a foreseeable

result of the actor’s negligence. Byrd, 891 S.W.2d at 701; Nixon, 690 S.W.2d at 550.

       We must therefore determine whether the evidence supports a finding that Turton’s theft

of Sloan’s settlement money was foreseeable to Gonzalez/the Law Office. Sloan argues that

Gonzalez’s knowledge of Turton’s prior misconduct and disciplinary history, as well as his

knowledge that Turton was using funds from his IOLTA trust account to pay the Law Office rent,

suffices to prove foreseeability. We agree. The record contains evidence of Turton’s substantial

disciplinary history beginning in 1993 and extending to 2002.         There were multiple client

grievances filed against Turton during that period leading to a public reprimand in 1993 for several

violations of the Disciplinary Rules, a 36-month suspension in November 1997 which was partially

probated, and a revocation of that probation in December 1998 which resulted in an active

suspension of 48 months ending in 2002. Turton’s professional misconduct mainly involved

various types of neglect, but two cases involved mishandling of client money or property — one

case involved Turton “losing” client property and the other involved Turton deducting unrelated

attorney’s fees owed in a family law matter from the client’s personal injury settlement, resulting

in Turton owing restitution in the amount of $1,600. Court documents admitted at trial showed

that Gonzalez represented Turton at his disciplinary proceedings in 1997 and 1998. In addition,

Turton testified that Gonzalez knew about all of his prior disciplinary problems because they

started working together and sharing office space in the 1990s. Turton also admitted writing rent

checks to Gonzalez/the Law Office out of his IOLTA account after Sloan’s settlement money was
                                               - 21 -
                                                                                    04-13-00239-CV


deposited in the account. Based on this evidence, the jury could have reasonably found that

Turton’s criminal conduct in misappropriating Sloan’s settlement funds beginning in 2008 and

continuing to 2010 was reasonably foreseeable to Gonzalez and the Law Office. Therefore,

because Turton’s misappropriation of client funds was a foreseeable result of Gonzalez’s own

failure to use ordinary care to protect Sloan’s settlement funds, Gonzalez’s own negligence is not

excused by Turton’s criminal conduct. See Nixon, 690 S.W.2d at 550; Byrd, 891 S.W.2d at 701.

       Damages

       Finally, Gonzalez/the Law Office argue there is insufficient evidence to support the jury’s

award of any actual damages to Sloan as a result of their breach of duty, arguing that “Gonzalez

did not steal Sloan’s money, Turton did.” This is the same argument we have already rejected

under causation. Not only does the evidence support a finding of foreseeability, the evidence also

shows that the negligent omissions by Gonzalez/the Law Office in failing to safeguard their

client’s settlement proceeds were a substantial factor in bringing about Sloan’s injury and without

which the loss of her settlement proceeds would not have occurred. See Akin, Gump, 299 S.W.3d

at 122; Marathon, 106 S.W.3d at 727. Gonzalez and the Law Office do not challenge the dollar

amount of damages proximately caused by their negligence as found by the jury in Question No.

18.

       We overrule all of Gonzalez/the Law Office’s issues challenging the jury’s negligence

finding and award of damages for professional negligence.

                                 APPLICABLE DAMAGES ISSUES

       In view of our disposition of the above issues, the only other issues raised by Gonzalez and

the Law Office that we must address are the following issues related to Sloan’s recovery.




                                               - 22 -
                                                                                        04-13-00239-CV


       Pre-Judgment and Post-Judgment Interest

       In Issue No. 11, Gonzalez and the Law Office assert that the trial court used the wrong rate

to calculate the pre-judgment and post-judgment interest, arguing the correct rate for both is 5%

instead of the 18% rate applied by the court. Under her negligence cause of action, Sloan pled for

the assessment of pre-judgment interest “as damages on the fiduciary funds for which the law

allows recovery at the highest rate allowed by law, 18%, as damages.” The parties agreed to

submit the issue of pre-judgment “interest as damages” to the trial court for determination. As

stated in the judgment, the trial court awarded Sloan “interest as damages at the statutory maximum

rate of nonusurious interest applicable on the date of this judgment provided in Tex. Fin. Code

§§ 303.009, 304.002, upon the sum of $75,000.00 which the Court finds to be misapplied fiduciary

property in light of the jury findings in Phase 1 (Liability) Question[] . . . 18 [Negligence] . . . and

in Phase 2 (exemplary) Questions 2 & 3.” See TEX. FIN. CODE ANN. §§ 303.009, 304.002 (West

Supp. 2014 & 2006). The court computed the interest at the rate of 18% as “simple interest,

annually, from 3/3/08 until the date of this judgment,” yielding $64,125 in pre-judgment interest

“as damages.” With respect to post-judgment interest, the trial court applied an 18% rate to the

total actual damages in the amount of $141,625 [$77,500 + $64,125], and applied a 5% rate to the

balance of the amounts awarded to Sloan pursuant to sections 304.003 and 304.006 of the Finance

Code. See TEX. FIN. CODE ANN. §§ 304.003, 304.006 (West 2006).

       Pre-judgment interest is a form of damages. Horizon/CMS Healthcare Corp. v. Auld, 34

S.W.3d 887, 898 (Tex. 2000). Traditionally, there have been two types of interest — “interest as

interest” and “interest as damages.” Cavnar v. Quality Control Parking, Inc., 696 S.W.2d 549,

551-52 (Tex. 1985). “Interest as interest” is compensation allowed by law or fixed by the parties

for the use or detention of money, while “interest as damages” is “compensation allowed by law

as additional damages for lost use of the money due as damages during the lapse of time between
                                                 - 23 -
                                                                                       04-13-00239-CV


the accrual of the claim and the date of judgment.” Id. at 552 (also noting the distinction no longer

carries much meaning); see also Brainard v. Trinity Universal Ins. Co., 216 S.W.3d 809, 816 (Tex.

2006). Pre-judgment interest is “interest as damages.” Johnson & Higgins of Tex., Inc. v. Kenneco

Energy, Inc., 962 S.W.2d 507, 528 (Tex. 1998); Aquila Sw. Pipeline, Inc. v. Harmony Exploration,

Inc., 48 S.W.3d 225, 242 (Tex. App.—San Antonio 2001, pet. denied) (noting that the award of

pre-judgment interest during periods of delay is generally left to the discretion of the trial court).

An award of pre-judgment interest may be based on either an enabling statute or general principles

of equity. Johnson & Higgins, 962 S.W.2d at 528 (citing Cavnar, 696 S.W.2d at 552).

       As to the court’s application of an 18% rate for calculating the pre-judgment interest “as

damages,” Sloan only cites a line of breach of fiduciary duty cases which authorize applying the

highest rate of interest allowed by law “to prevent the defendant from making a profit on funds

appropriated by him.” See Portwood v. Buckalew, 521 S.W.2d 904, 921 (Tex. Civ. App.—Tyler

1975, writ ref’d n.r.e.); see also Ward v. Maryland Cas. Co., 140 Tex. 124, 166 S.W.2d 117 (Tex.

Comm’n App. 1942, opinion adopted); Anderson v. Armstrong, 132 Tex. 122, 120 S.W.2d 444

(Tex. Comm’n App. 1938, opinion adopted). Sloan argues her attorney-client relationship with

Gonzalez and the Law Office gave rise to a fiduciary duty which was violated by the

misapplication of Sloan’s settlement funds. However, as discussed above, Sloan is not able to

recover under a breach of fiduciary duty theory because this is a professional negligence action

which may not be fractured; as noted, even though the jury found a breach, it did not award any

damages for breach of fiduciary duty. Sloan cites no other authority to support the trial court’s

application of an 18% rate for pre-judgment interest, and we have found none that applies in this

case. Under general Texas law, pre-judgment interest accrues at the same rate as post-judgment

interest and is computed as simple interest, regardless of whether it is based on a statute or equity.

Johnson & Higgins, 962 S.W.2d at 532-33; Arete Partners, L.P. v. Gunnerman, 643 F.3d 410,
                                                - 24 -
                                                                                       04-13-00239-CV


414-15 (5th Cir. 2011) (per curiam) (noting that Johnson & Higgins created a unified system for

the calculation of both statutory pre-judgment interest and common law pre-judgment interest).

       As to the post-judgment interest rate, we agree with Gonzalez and the Law Office that, as

a matter of law, the current rate is five percent. See TEX. FIN. CODE ANN. § 304.003(a), (c)

(providing in relevant part that the post-judgment interest rate is either “the prime rate as published

by the Board of Governors of the Federal Reserve System on the date of computation” or “five

percent a year if the prime rate as published by the Board of Governors . . . is less than five

percent”); see also Arete, 643 F.3d at 415. We may take judicial notice of the correct, published

interest rate in resolving an appeal. Office of Pub. Util. Counsel v. Pub. Util. Comm’n of Tex.,

878 S.W.2d 598, 600 (Tex. 1994). The applicable post-judgment interest rate on the date

the judgment was signed was 5% per annum.                        See Judgment Rate Summary,

http://www.occc.state.tx.us/pages/int_rates/Index.html (last visited 8/22/14).

       We therefore sustain Gonzalez/the Law Office’s issue and hold that the applicable rate is

five percent for both the pre-judgment and the post-judgment interest in this case. TEX. FIN. CODE

ANN. § 304.003(a), (c); Johnson & Higgins, 962 S.W.2d at 532-33.

       Constructive Trust

       Sloan pled for imposition of a constructive trust based on the misapplied funds, and the

trial court imposed a constructive trust on two bank accounts and proceeds from the sale of real

property held by Gonzalez and/or the Law Office. In Issue No. 15, Gonzalez and the Law Office

assert the trial court abused its discretion by imposing a constructive trust in the absence of a jury

finding that Gonzalez/the Law Office acted unconscionably. However, Gonzalez and the Law

Office cite us to no authority that a jury finding is required before a constructive trust may be

imposed. A constructive trust is an equitable remedy created by the courts to prevent unjust

enrichment. Baker Botts, L.L.P. v. Cailloux, 224 S.W.3d 723, 736 (Tex. App.—San Antonio 2007,
                                                 - 25 -
                                                                                      04-13-00239-CV


pet. denied) (internal citations omitted). “A constructive trust is a relationship with respect to

property, subjecting the person by whom the title to the property is held to an equitable duty to

convey it to another, on the ground that his acquisition or retention of the property is wrongful and

that he would be unjustly enriched if he were permitted to retain the property.” Id. (quoting Talley

v. Howsley, 142 Tex. 81, 176 S.W.2d 158, 160 (1943)). As an equitable remedy, the decision to

impose a constructive trust, along with its scope and application, is within the trial court’s

discretion. Id.; see Carr v. Weiss, 984 S.W.2d 753, 767 (Tex. App.—Amarillo 1999, pet. denied)

(suggesting a jury finding is not necessary to support imposition of a constructive trust).

       Further, even if we assume a jury finding is required for imposition of a constructive trust,

the jury in this case found in Question No. 23 that money which “in equity and good conscience”

belongs to Sloan is being held by Gonzalez and the Law Office in the amounts of $20,000 and

$77,500, respectively. In addition, in the second phase of trial, the jury found that Gonzalez and

the Law Office engaged in criminal conduct amounting to theft and intentional misapplication of

Sloan’s trust funds.    Therefore, we overrule Gonzalez/the Law Office’s challenge to the

constructive trust.

                                           CONCLUSION

       Based on the foregoing analysis, we reverse the judgment based on Sloan’s DTPA cause

of action and render judgment against Gonzalez and his Law Office for professional negligence

based on their percentages of proportionate responsibility found by the jury and award Sloan (1)

$77,500 in actual damages based on the jury’s findings in Question Nos. 16 and 18, (2) pre-

judgment interest on the actual damages at the rate of 5% per annum, (3) court costs through trial

of $7,830.76, and (4) post-judgment interest at the rate of 5% per annum. See TEX. CIV. PRAC. &




                                                - 26 -
                                                                           04-13-00239-CV


REM. CODE ANN. § 33.002(a)(1) (West 2008). Finally, we affirm the portion of the judgment

imposing the constructive trust.


                                             Rebeca C. Martinez, Justice




                                          - 27 -
