                                                                                  ACCEPTED
                                                                              06-15-00017-CV
                                                                   SIXTH COURT OF APPEALS
                                                                         TEXARKANA, TEXAS
                                                                         9/8/2015 11:39:55 PM
                                                                             DEBBIE AUTREY
                                                                                       CLERK

                          No. 06-15-00017-CV

               IN THE COURT OF APPEALS FOR THE            FILED IN
                                                   6th COURT OF APPEALS
                    SIXTH DISTRICT OF TEXAS          TEXARKANA, TEXAS
                         AT TEXARKANA              9/9/2015 9:22:00 AM
__________________________________________________________________
                                                       DEBBIE AUTREY
                                                           Clerk

                  BILLY FITTS and FREIDA FITTS,
                             Appellants,
                                 v.
 MELISSA RICHARDS-SMITH, THE LAW FIRM OF GILLAM & SMITH,
    LLP, E. TODD TRACY, and THE TRACY FIRM, Attorneys at Law,
                             Appellees.
__________________________________________________________________

      On Appeal from the 71st District Court of Harrison County, Texas
                      Trial Court Cause No. 14-0150
____________________________________________________________________

                   REPLY BRIEF OF APPELLANTS



                            LINDSEY M. RAMES
                            State Bar No. 24072295
                            RAMES LAW FIRM, P.C.
                            5661 Mariner Drive
                            Dallas, TX 75237
                            Telephone: 214.884.8860
                            Facsimile: 888.482.8894
                            lindsey@rameslawfirm.com

                            CARTER L. HAMPTON
                            State Bar No. 08872100
                            HAMPTON & ASSOCIATES, P.C.
                            1000 Houston Street, Fourth Floor
                            Fort Worth, TX 76102
                            Telephone: 817.877.4202
                            Facsimile: 817.877.4204
                            clhampton@hamptonlawonline.com

                                  1
                                        TABLE OF CONTENTS

TABLE OF CONTENTS .......................................................................................... 2
INDEX OF AUTHORITIES ..................................................................................... 3
ARGUMENT ............................................................................................................ 4
A. Appellants Did Not Waive Their Appellate Arguments.................................... 4
B. Appellees’ Breach of Fiduciary Duty Owed To Appellants
   Supports a Separate Cause of Action................................................................. 6
C. Causation and Damages. .................................................................................. 15
CERTIFICATE OF COMPLIANCE ...................................................................... 21
CERTIFICATE OF SERVICE ................................................................................ 21




                                                          2
         INDEX OF AUTHORITIES

Cases
Aiken v. Hancock, 115 S.W.3d 26
  (Tex. App.—San Antonio 2003, pet. denied) ..................................................... 14
Archer v. Medical Protective Company of Fort Wayne, Indiana,
  197 S.W.3d 422 (Tex. App.—Amarillo 2006 pet. denied) ................................. 14
D’andrea v. Epstein, 2013 Tex. App. LEXIS 13523
  (Tex. App.—Houston [14th Dist.] 2003, pet. denied) ........................................... 8
Dyer v. Shafer, Gilliland, Davis, McCollum & Ashley, Inc.,
  779 S.W.2d 474 (Tex. App.--El Paso 1989, writ denied) ..................................... 6
Frazin v. Haynes & Boone, LLP (In re Frazin),
  2008 Bankr. LEXIS 2373 (Bankr. N.D. Tex. Sept. 23, 2008) .............................. 7
El Paso Natural Gas v. Minco Oil & Gas, Inc., 8 S.W.3d 309 (Tex.1999) ............. 4
G.T. Leach Builders, LLC v. Sapphire V.P., 458 S.W.3d 502 (Tex. 2015).............. 5
Hubacek v. Ennis State Bank, 317 S.W.2d 30 (1958) ............................................ 17
Perry v. Cohen, 272 S.W.3d 585 (Tex. 2008) .......................................................... 4
Plexchem Int'l, Inc. v. Harris Cnty. Appraisal Dist.,
  922 S.W.2d 930 (Tex. 1996) ................................................................................. 5
Sacks v. Haden, 266 S.W.3d 447 (Tex. 2008) ........................................................ 16
Sealed Party v. Sealed Party,
  2006 WL 1207732 (S.D. Tex. May 4, 2006) ........................................................ 6
Two Thirty Nine Joint Venture v. Joe, 60 S.W.3d 896, 905 (Tex. App.--Dallas
  2001), rev'd in part on other grounds, 145 S.W.3d 150 (Tex. 2004) ................... 6
Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997) ................................................... 4

Rules
Tex. Disciplinary R. Prof'l Conduct ............................................................... 7, 8, 13
Tex. R. App. P. 38.1(f) ............................................................................................. 5

Miscellaneous
30 S.C. L. REV. 281 (1979) The Code of Professional Responsibility as a Measure
  of Attorney Liability in Civil Litigation................................................................. 8
109 Harv. L. Rev. 1102 (1996) The Evidentiary Use of the Ethics Codes in Legal
  Malpractice: Erasing a Double Standard ............................................................. 8
Restatement (Third) of Law Governing Lawyers § 52 (2000) ................................. 7
Tex. Comm. on Prof. Ethics, Op. 624 (February 2013) ......................................... 11




                                                          3
                        APPELLANTS’ REPLY BRIEF

                                  ARGUMENT

A.    Appellants Did Not Waive Their Appellate Arguments.

      Appellees broadly argue that Appellants waived most, if not all, of the

arguments they bring on appeal due to inadequate briefing. Appellees fail to

identify any particular statement of fact or legal argument that does not reference

the record or legal precedent. Such broad assertions of waiver by the Appellees

should not bar this Court from reaching the merits of this appeal and deciding

whether summary judgment was proper.

      “[A]ppellate briefs are to be construed reasonably, yet liberally, so that the

right to appellate review is not lost by waiver.” Perry v. Cohen, 272 S.W.3d 585,

587 (Tex. 2008) (citing El Paso Natural Gas v. Minco Oil & Gas, Inc., 8 S.W.3d

309, 316 (Tex.1999)). “[A]ppellate courts should reach the merits of an appeal

whenever reasonably possible.” Perry, 272 S.W.3d at 587 (citing Verburgt v.

Dorner, 959 S.W.2d 615, 616 (Tex. 1997)). In their brief, Appellants cite to 30-

plus Texas cases, five Texas statutes, multiple legal treatises and Texas

Commission on Professional Ethics Opinions. Every key fact in Appellants’

Statement of Facts cites to the Clerk’s Record. Construing Appellants’ Brief

reasonably and liberally, Appellants have not waived any argument raised on

appeal for inadequate briefing.


                                         4
      Additionally, Appellants have not waived any of the specific arguments they

bring on appeal, including their rescission argument. In Perry v. Cohen, the Texas

Supreme Court recently held that an appellate brief did not waive argument

regarding enforcement of an arbitration clause when the brief’s broad assertions

were arguably sufficient to encompass all supporting arguments, including the

argument that a contractual deadline barred an arbitration demand was " clearly

arbitrable.” G.T. Leach Builders, LLC v. Sapphire V.P., 458 S.W.3d 502 (Tex.

2015) (citing Plexchem Int'l, Inc. v. Harris Cnty. Appraisal Dist., 922 S.W.2d 930,

930-31 (Tex. 1996) (holding that the assertion in the court of appeals that "[t]he

trial court erred by granting...summary judgment" was "sufficient to preserve error

and to allow argument as to all possible grounds upon which summary judgment

should have been denied"); see also Tex. R. App. P. 38.1(f) ("The statement of an

issue or point [in an appellate brief] will be treated as covering every subsidiary

question that is fairly included."). Appellants’ argument that they could have

possibly rescinded the Kemper Release, if it did in fact release the RLI Umbrella

Policy, is one of the possible grounds upon which summary judgment should have

been denied. It is also covered under the umbrella argument that the Kemper

Release did not extinguish Appellants’ claims under the RLI Umbrella Policy.

      Furthermore, in the trial court and in their Brief, Appellants produced

evidence and arguments showing the following—Appellees knew Kemper was


                                        5
investigating liability for the car wreck (CR 3: 583); Kemper placed liability on

George Fitts, not the Toyota vehicle (CR 3: 583); Kemper tendered the policy

limits under the Kemper Primary Policy to Appellants (Appellants’ Brief, App. tab

3); Appellants intended to pursue the RLI Umbrella Policy; and RLI was handling

a claim under the RLI Umbrella Policy (CR 3:399-402). Based on those facts, and

other, Appellants argued that Appellees were negligent, that the Kemper Release

did not extinguish Appellants’ claims under the RLI Umbrella Policy, and that

Appellees breached their fiduciary duty owed to Appellants. As such, Appellants

have preserved all of these issues, and any sub-issues, for appeal.

B.    Appellees’ Breach of Fiduciary Duty Owed To Appellants Supports a
      Separate Cause of Action.

      In their motion for summary judgment, Tracy Appellees never argued that

Appellants’ breach of fiduciary claim against them constituted impermissible

fracturing. Tracy Appellees also do not raise that argument on appeal. Instead,

Tracy Appellees argue that a violation of the Texas Disciplinary Rules of

Professional Conduct (“TDRPC”) does not create an independent cause of action

against an attorney. Tracy Appellees’ argument is only partially-correct. Whiel the

TDRPBA does not create an independent cause of action, it is admissible as

evidence of the standards of conduct owed by attorneys:

      The Preamble to the Rules states that they do not define standards of
      civil liability for lawyers, Preamble to the Rules § 15, and several
      cases have so held. See, e.g., 7 v. Shafer, Gilliland, Davis, McCollum

                                          6
      & Ashley, Inc., 779 S.W.2d 474, 479 (Tex. App.—El Paso 1989)
      ("[V]iolation of state bar rules does not create a private cause of
      action.") (cited in The Relationship Between the Texas Disciplinary
      Rules of Professional Conduct and Legal Malpractice, 43 Baylor L.
      Rev. 115, 116 (1991)). Nevertheless, Texas courts have used the
      Rules as standards for conduct in malpractice and breach of fiduciary
      duty cases. Sealed Party v. Sealed Party, No. CIV.A.H-04-2229, 2006
      U.S. Dist. LEXIS 28392, 2006 WL 1207732 (S.D. Tex. May 4, 2006)
      (stating that Texas Disciplinary Rules "may be considered evidence
      and significantly inform the analysis of the scope of fiduciary duties
      between attorneys and their clients"); Two Thirty Nine Joint Venture
      v. Joe, 60 S.W.3d 896, 905 (Tex. App.--Dallas 2001), rev'd in part on
      other grounds, 145 S.W.3d 150 (Tex. 2004) (stating that a trier of fact
      can use disciplinary rules as evidence of violation of an existing duty
      of care for claims of legal malpractice or breach of fiduciary duty)
      (citing Restatement (Third) of Law Governing Lawyers § 52(2)
      (2000) ("Proof of a violation of a rule or statute regulating the conduct
      of lawyers...(c) may be considered by a trier of fact as an aid in
      understanding and applying the standard of...§ 49 [breach of fiduciary
      duty].")

     Frazin v. Haynes & Boone, LLP (In re Frazin), 2008 Bankr. LEXIS 2373,
198-199 (Bankr. N.D. Tex. Sept. 23, 2008).

      Use of the TDRPC in analyzing breaches of fiduciary duty involving

conflicts of interest has been specifically discussed in Two Thirty Nine Joint

Venture v. Joe:

      Here, [Two Thirty Nine Joint Venture] and its expert used the Texas
      Disciplinary Rules of Professional Conduct to demonstrate the
      standard of care and duties of an attorney to avoid conflicts and keep
      the client informed. The preamble of the Disciplinary Rules states that
      HN11
           the rules are not to define the standards of civil liability. TEX.
      DISCIPLINARY R. PROF'L CONDUCT preamble P 15, reprinted in
      TEX. GOV'T CODE ANN., tit. 2, subtit. G app. A (Vernon 1998)
      (TEX. STATE BAR R. art. X, § 9) ("Violation of a rule does not give
      rise to a private cause of action nor does it create any presumption that
      a legal duty to a client has been breached."). However, the preamble

                                         7
      does not comment on and is not inconsistent with the use of the rules
      as evidence of a violation of an existing duty of care, as provided for
      by the Restatement (Third) of the Law Governing Lawyers. See
      RESTATEMENT (THIRD) OF THE LAW GOVERNING
      LAWYERS § 52(2) & cmt. (f) (2000). Section 52(2) provides that a
      rule or statute regulating the conduct of lawyers does not give rise to
      an implied cause of action for professional negligence or breach of
      fiduciary duty, but it may be considered by a trier of fact in
      understanding and applying the standard of care for malpractice or
      determining a breach of fiduciary duty. Id. § 52(2). This provision
      reflects a common-sense approach to using the rules of conduct in a
      malpractice or breach of fiduciary duty action. A standard of care in a
      professional negligence suit does and should reflect work custom.
      Note, The Evidentiary Use of the Ethics Codes in Legal Malpractice:
      Erasing a Double Standard, 109 Harv. L. Rev. 1102, 1118 (1996)
      (citing Charles W. Wolfram, The Code of Professional Responsibility
      as a Measure of Attorney Liability in Civil Litigation, 30 S.C. L. REV.
      281, 294 (1979)). Lawyers have established codes of conduct to
      reflect a professional consensus that no attorney shall fall below. Id.;
      see TEX. DISCIPLINARY R. PROF'L CONDUCT preamble P 7.
      Barring the use of the code and denying that the code is relevant to the
      duties a lawyer has to his client is not logical and would require the
      re-creation of a standard of care without reference to verifiable or pre-
      existing rules of conduct. Note, supra, at 1119. Therefore, the trier of
      fact may consider the construction of a relevant rule of professional
      conduct that is designed for the protection of persons in the position of
      the claimant as evidence of the standard of care and breach of the
      standard. RESTATEMENT (THIRD) OF THE LAW GOVERNING
      LAWYERS § 52, cmt. (f).

      Two Thirty Nine Joint Venture v. Joe, 60 S.W.3d 896, 905 (Tex. App.—
Dallas 2001), rev'd in part on other grounds, 145 S.W.3d 150 (Tex. 2004).

      Appellants do not rely upon the TDRPC to establish an independent cause of

action against Appellees for breach of fiduciary duty, nor do they need to as Texas

common law already allows clients to pursue counsel for both negligence and

breach of fiduciary duty. D’andrea v. Epstein, 2013 Tex. App. LEXIS 13523 (Tex.

                                         8
App.—Houston [14th Dist.] 2003, pet. denied) (A lawyer who represents clients

that are adverse to one another, and provides any advice on the matter that works

to harm one client and benefit the other client, may be held liable for both legal

malpractice and a breach of fiduciary duty).

      As addressed in Appellants’ Brief and in response to Appellees’ motions for

summary judgment, Appellants’ claim for breach of fiduciary duty is distinct from

the allegations that Appellees were generally negligent in their handling of

Appellants’ case. Appellees were aware that one set of their clients had opposing

claims against another set of their clients. Smith Appellees even told Appellants

that their claims against George Fitts could hurt the Toyota Litigation. (CR 3:585).

      Appellees further try to argue that no conflict of interest existed because

Appellants always said the car was at fault, and not George Fitts. In support of

their argument, the Tracy Appellees argue that Billy Fitts said the car actually

caused the accident. However, a closer review of the record shows that Billy Fitts

said that the car suddenly accelerated. Nowhere does the record show where

Appellees discussed possible sources of liability with Billy Fitts. It is important to

note that Appellees never even informed Appellants of the possible case they had

against George Fitts’ estate. In arguing that Billy Fitts had the duty to inform

Appellees of the case against George, Appellees are trying to cast their own duties

as lawyers onto the shoulders of their clients.


                                          9
      Besides, Appellees cannot reasonably expect Billy Fitts to say that George

Fitts caused the accident during the Toyota Litigation, especially while being

deposed by Toyota or after Appellees. No, just because Appellees failed to raise

that argument on their clients’ behalf during their legal representation, does not

mean the clients were required to raise it on their own accord during the Toyota

Litigation. Appellees do not get to shift their responsibility to adequately

investigation their clients’ claims onto the shoulders of their clients. The entire

problem still comes back to Appellees never explaining the issue to Appellants.

      Importantly, Appellees have never argued or provided evidence that

Appellants and/or the estate of George Fitts consented to the conflict of interest

that existed between them. Instead, Appellees merely argue that no conflict of

interest existed between Appellants and Appellees’ other clients. Such statement

itself is an admission of the failure to both identify and address the glaring conflict

of interest. Appellees argue there was no conflict because Appellants did not

verbally accuse George Fitts of being at fault for the car wreck during the Toyota

Litigation. However, that means that if Appellants did blame George Fitts for the

car wreck or if George Fitts was at fault for the accident, then there would be a

conflict of interest. Even Smith Appellees admitted as much during the Toyota

Litigation. (CR 3:585).




                                          10
      As Appellants argued in their response to summary judgment and in their

appellate brief, Appellees were aware that Kemper was investigating liability for

the car wreck, that Kemper had tendered its policy limits to Appellants, and that

Appellants wanted to pursue the RLI Umbrella Policy. As such, Appellees had all

the information necessary to conclude that Appellants wanted to pursue a claim

under George Fitts’ insurance policies, and ultimately a claim against George Fitts.

That is the conflict of interest. Just because Appellants stated the car that George

Fitts was driving suddenly accelerated, does not eradicate the conflict of interest

nor Appellees’ fiduciary duty to the Fitts family members to address and resolve

the conflict.

      Smith Appellees cite to Tex. Comm. on Prof. Ethics, Op. 624 (February

2013) in support of their argument that if a lawyer reasonably believe there is no

significant likelihood of a future conflict developing, then there is no 1.06(b)(2)

conflict. Opinion 624 is irrelevant in this case and deals with criminal defense

attorneys who also serve as their clients’ bail bondsmen. Citing to Opinion 599 and

Rule 1.08(a), the Texas Commission on Professional Ethics held that a lawyer is

not precluded from serving as the client’s bail bondsmen. The Commission

specifically said “Under Rule 1.06(b)(2), the answer depends upon whether, at the

outset of the representation, the lawyer’s representation of the client “reasonably

appears” to be “adversely limited” by the lawyer’s interest arising from his role as


                                        11
bail bondsman.” If the client could not receive a better deal than a “no contest” or

“guilty” plea, then it is not a conflict for a lawyer to put in the engagement letter

that the attorney is authorized to make such a plea. (“If the lawyer reasonably

believes that there is no significant likelihood that the client will have an

opportunity to defend the case, then a conflict would not exist. But if, at the early

stage of the lawyer’s engagement, it would be unreasonable to assume that a

defense will likely be unavailable to the client, then a conflict of interest within the

meaning of Rule 1.06(b)(2) would exist.”) Opinion 624 concluded “If the lawyer

also acts as the client’s bail bondsman, the lawyer may represent the client under

such an engagement agreement only if the lawyer reasonably believes that there is

no significant likelihood that the client will have an opportunity to defend the

case.” However, Opinion 624 specifically goes on to say:

      Although Rule 1.06(c) generally allows representation to continue if
      the client consents, subparagraph (1) of Rule 1.06(c) permits the
      representation to continue with client consent only when “the lawyer
      reasonably believes the representation of each client will not be
      materially affected...” If the lawyer concluded at the outset of the
      representation that a reasonable possibility exists for the client to
      defend the case successfully, then the lawyer could not reasonably
      believe that the representation of the client will not be materially
      affected. Thus, if a conflict of interest under Rule 1.06 exists, the
      client’s consent could not remedy the conflict and Rule 1.06 would
      prohibit the lawyer’s representation of the client while the lawyer acts
      as the client’s bail bondsman in the matter.

      Even if Opinion 624 arguably applied here, Appellees’ joint representation

of both Appellants and George Fitts’ estate could only continue with the clients’

                                          12
informed consent and if Appellees believed the representation of each client would

not be materially affected. Appellants produced summary judgment evidence

proving that Appellees’ representation of Appellants was materially affected and

that Appellants never consented to the conflict of interest, much less informed of it.

      Furthermore, simply because a conflict of interest did not exist when

representation was initiated, does not mean there can never become an

impermissible conflict of interest. Such an argument directly conflicts with Tex.

Disciplinary R. Prof. Conduct 1.06(e):

      If a lawyer has accepted representation in violation of this Rule, or if
      multiple representation properly accepted becomes improper under
      this Rule, the lawyer shall promptly withdraw from one or more
      representations to the extent necessary for any remaining
      representation not to be in violation of these Rules.

      Opinion 624 involved a lawyer’s interest in the client’s case being directly

adverse to his own. In this case, it was the conflict between co-clients with claims

against each other. And even if Opinion 624 arguable applies to this case, it is still

not enough to let Appellees off the hook. Appellees possessed a copy of the Texas

Peace Officer Crash Report before filing the Toyota Litigation placing some

element of liability on George Fitts. Appellees were also aware that Kemper placed

fault on George Fitts and not on the Toyota that George Fitts was driving. All of

this was very early in Appellees’ legal representation of Appellants. So even if

Opinion 624 arguably applies in this case, it was still very early in the Toyota


                                         13
Litigation—early enough to determine that a current or potential conflict of interest

existed and thus required informed consent only if the continued representation did

not materially affect the client.

      Claims of breached fiduciary duties involve conflicts of interest.v. Medical

Protective Company of Fort Wayne, Indiana, 197 S.W.3d 422 (Tex. App.—

Amarillo 2006). Appellees cite to Archer for the argument that Appellants’ breach

of fiduciary duty claim constitutes impermissible fracturing. However, Archer

actually confirms that Appellants’ breach of fiduciary claim was permissibly

fractured, and the trial court erred in dismissing the separate claim against

Appellees. Citing to Aiken v. Hancock, Archer holds that “conflicts of interest,

self-dealing, the use of confidential information, among other things” may be

classified as claims of breached fiduciary duties and that it is permissible to

fracture one malpractice claim into multiple causes of action. Archer, 197 S.W.3d

at 428 (citing Aiken v. Hancock, 115 S.W.3d 26, 28 (Tex. App.—San Antonio

2003, pet. denied).

      Appellants agree with Appellees that an attorney need not be clairvoyant.

However, Appellees did not require superhuman powers when they reviewed the

Texas Peace Officer Crash Report placing fault on one of their clients for the

damages to their other clients. (CR 1:45). Nor did Appellees need special powers




                                         14
when Appellants told them Kemper tendered its policy limits and that RLI had a

pending claim under the RLI Umbrella Policy.

      While an attorney has the responsibility to listen to his client, an attorney

still has the duty to investigate possible sources of liability to recover his

client’s damages. For example, if a client tells his lawyer that he was involved in a

three-car accident and the client thinks that only one of the other cars caused the

accident, the lawyer still has a duty to investigate the liability of the third-vehicle.

Clients do not possess the legal understanding possessed by lawyers and it would

be nonsensical to place sole responsibility for the investigation of liability and

defenses upon a client, who may not have more than a high-school education. If

clients are responsible to determine liability in litigation and establish their claims

and defense, why do we need attorneys?

C.    Causation and Damages.

      Appellees argue that since the Kemper Release extinguished Appellants’

claims under the RLI Umbrella Policy, the Kemper Release negates both the

causation and damages elements of Appellants’ causes of action against Appellees.

Tracy Appellees allege that Appellants were the sole proximate cause of their own

damages when the executed the Kemper Release. Smith Appellees does not argue a

sole proximate cause defense, but argue in essence that Appellants caused their




                                          15
own damages when the executed the Kemper Release since the Kemper Release

left Appellants with no other source of recovery for their injuries.

      However, both arguments still require Appellants to prove the Kemper

Release extinguished all of Appellants’ claims and ability to recover under the RLI

Umbrella Policy. In an attempt to do so, Appellees argue the Kemper Release

included any and all claims Appellants possessed under George Fitts’ RLI

Umbrella Policy, even though the Kemper Release specifically only referenced the

Kemper insurance company.

      Appellees reference the parol evidence rule to exclude any evidence

showing that the Kemper Release did not bar Appellants’ claims under the RLI

Umbrella Policy; though at the same time including terms not specifically

mentioned in the Kemper Release—namely the RLI insurance company. Appellees

attempt to use the parol evidence rule as both a shield and a sword in this case.

      Appellees cite to Sacks v. Haden for the proposition that the Kemper Release

is an unambiguous contract for which parol evidence cannot be received. However,

nowhere in the Kemper Release does it state that it releases Appellants’ claims

under the RLI Umbrella Policy. For Appellees’ affirmative defense of release to be

successful, Appellees rely on RLI’s statement that the Kemper Release

extinguished Appellants’ claims under the RLI Umbrella Policy based on the

language including George Fitts. However, Sacks references the collateral and


                                          16
consistent exception to the parol evidence rule to find that parol evidence can be

used to demonstrate a prior or contemporaneous agreement that is both collateral

and consistent with a binding agreement, and that does not vary or contradict the

agreement’s express or implied terms or obligations. Sacks v. Haden, 266 S.W.3d

447, 451 (Tex. 2008) citing Hubacek v. Ennis State Bank, 317 S.W.2d 30, 31

(1958).

      As argued in response to Appellees’ motions for summary judgment,

Appellants produced the e-mail Kemper sent to Appellants along with the Kemper

Release stating specifically that the Kemper Release “pertains only to this

[Kemper] insurance policy and the settlement of this [Kemper] claim will have no

affect on any claims you make against the excess insurance carrier.” (Appellants’

Brief, App. tab 4). This statement was contemporaneous with the submission of the

Kemper Release. It does not contradict or conflict with the express or implied

terms or obligations of the Kemper Release since it does not release any of

Appellants’ claims against the excess carrier, RLI. As stated in Appellants’ Brief, it

would be improper for the court in this case to rewrite the terms of the Kemper

Release to include Appellants’ claims under the RLI Umbrella Policy when those

claims were not included Kemper Release language.

      Furthermore, Appellees’ own argument that the Kemper Release was

unambiguously clear so as to release all of Appellants’ claims under the RLI


                                         17
Umbrella Policy only reinforces Appellees’ negligence. Early in the Toyota

Litigation, and long before the statute of limitations ran for Appellants to pursue

the RLI Umbrella Policy, Appellees possessed a copy of the Kemper Release and

were aware that Appellants were pursuing a claim with RLI. Even with this

knowledge, Appellees now argue that the Kemper Release unambiguously and

immediately released all of Appellants’ claims against George Fitts under the RLI

Policy. Yet, Appellees never told Appellants as such. If it is the case, then are

Appellees not negligent in failing to advise their clients accordingly while they still

had time to file a lawsuit to preserve the statute of limitations?

      Appellees repeatedly attempt to shift the summary judgment burdens onto

the shoulders of the Appellants in this case. Appellees moved for summary

judgment on the theory of release, arguing that the Kemper Release negated both

the causation and damages elements of Appellants causes of action. It is thus

Appellees’ responsibility to prove that no question of fact exists as to those

elements. Appellees. It is Appellees’ responsibility to prove that no fact issue

exists as to whether the Kemper Release unambiguously, completely, and

permanently extinguished Appellants’ claims to pursue the RLI Umbrella Policy.

Appellants produced summary judgment evidence showing that such a fact issue

exists, whether it be through the language of the release, the contemporaneous e-

mail from Kemper to Appellants to support Appellants argument that the Kemper


                                           18
Release did not extinguish the claim under the RLI Umbrella Policy, or

Appellants’ alternative claim for rescission if Kemper’s e-mail was false. It is also

Appellees’ responsibility to show that no fact issue exists as to whether the

Kemper Release negates the causation and damages elements of Appellants’

claims. Taking a step back to review the facts, it is important to remember RLI also

told Appellants they denied the claim because the statute of limitations had lapsed.

RLI’s denial due to the lapsed statute of limitations is enough to create a fact issue

defeating summary judgment on the causation and damages portions of Appellees’

motions for summary judgment since Appellees solely argued the causation and

damages elements based on the Kemper Release.

      Appellees attempt to portray Appellants as greedy clients who went behind

the backs of their lawyers to conceal their negotiation and settlement with Kemper.

Yet, Appellees fail to acknowledge they knew of both the Kemper and RLI

insurance policies; that Kemper had placed liability on George Fitts; that Appellees

were fully aware of the Kemper settlement; that Appellants wanted to pursue a

claim under the RLI Umbrella Policy; and that Appellants had valid claims against

George Fitts. Despite knowing all this, Appellees now argue the Kemper Release

immediately and permanently extinguished Appellants’ claims upon execution of

the release. Appellees had a copy of the executed Kemper Release, but did not say

anything to Appellants. Appellees did not disclose their conflict of interest in


                                         19
representing both the Appellants and George Fitts’ estate. Appellees couldn’t,

because it would hurt the Toyota Litigation and the claims of the rest of their

clients. It was not the Appellants who sougth to conceal their actions from

Appellees; it was Appellees who attempted to conceal their actions from

Appellants.

      In conclusion, Appellants’ execution of the Kemper Release did not

extinguish Appellants’ claims under the RLI Umbrella Policy and did not

extinguish Appellees’ duty to Appellants as their lawyers. Appellants produced

evidence creating a fact issue as to Appellees’ negligence by allowing the statute of

limitations to lapse for the Appellants to pursue the RLI Umbrella Policy.

Appellants also produced evidence creating a fact issue as to conflict of interest

that existed between Appellants and Appellees’ other clients supporting a separate

breach of fiduciary duty claim against Appellees.

                                       PRAYER

      For the reasons set forth above, and in Appellants’ main brief, Appellants

pray this Court resolve Appellants’ issues in their favor, reverse the trial court’s

summary judgments, and remand the case for further proceedings. Appellants

further pray that they be awarded their costs of court on appeal, and receive such

other or further relief to which they are justly entitled.




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                                   Respectfully submitted,


                                   /s/ Lindsey M. Rames
                                   LINDSEY M. RAMES
                                   State Bar No. 24072295
                                   RAMES LAW FIRM, P.C.
                                   Texas Bar No. 24072295
                                   5661 Mariner Drive
                                   Dallas, TX 75237
                                   Telephone: 214.884.8860
                                   Facsimile: 888.482.8894
                                   Email: lindsey@rameslawfirm.com

                                   CARTER L. HAMPTON
                                   State Bar No. 08872100
                                   HAMPTON & ASSOCIATES, P.C.
                                   1000 Houston Street, Fourth Floor
                                   Fort Worth, TX 76102
                                   Telephone: 817.877.4202
                                   Facsimile: 817.877.4204
                                   Email: clhampton@hamptonlawonline.com

                                   ATTORNEYS FOR APPELLANTS



                    CERTIFICATE OF COMPLIANCE

     I, Lindsey M. Rames, the undersigned attorney, do hereby certify that the
foregoing REPLY BRIEF OF APPELLANTS contains 4,351 words, according to
the word count of the computer program used to prepare it and uses a 14-point
typeface for all text in compliance with Tex. R. App. P. 9.4(i).


                                       /s/ Lindsey M. Rames
                                       LINDSEY M. RAMES




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                       CERTIFICATE OF SERVICE

     I, Lindsey M. Rames, the undersigned attorney, do hereby certify that the
foregoing REPLY BRIEF OF APPELLANTS was served upon counsel for
Appellees in the manner set forth below.

                                       Via eService on September 8, 2015 to:

                                       Wade C. Crosnoe
                                       Thompson Coe
                                       701 Brazos, Suite 1500
                                       Austin, Texas 78701
                                       Attorney for Appellees Melissa Richards-
                                       Smith and Law Firm of Gillam & Smith,
                                       LLP

                                       Bruce A. Campbell
                                       Campbell & Chadwick
                                       4201 Spring Valley Road, Suite 1250
                                       Dallas, TX 75244
                                       Attorney for Appellees E. Todd Tracy
                                       and The Tracy Firm, Attorneys at Law


                                       /s/ Lindsey M. Rames
                                       LINDSEY M. RAMES




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