                                                                                       ACCEPTED
                                                                                   06-15-00017-CV
                                                                        SIXTH COURT OF APPEALS
                                                                              TEXARKANA, TEXAS
                                                                              8/7/2015 12:40:12 PM
                                                                                  DEBBIE AUTREY
                                                                                            CLERK

                         NO. 06-15-00017-CV

                           IN THE                   FILED IN
                                             6th COURT OF APPEALS
         SIXTH DISTRICT OF TEXAS COURT OF APPEALS
                                               TEXARKANA, TEXAS
                      AT TEXARKANA           8/7/2015 12:40:12 PM
                                                            DEBBIE AUTREY
                 BILLY FITTS and FREIDA FITTS,                 Clerk
                           Appellants,
                               v.
MELISSA RICHARDS-SMITH, THE LAW FIRM OF GILLIAM & SMITH, LLP,
            E. TODD TRACY and THE TRACY LAW FIRM,
                           Appellees.

    On Appeal from the 71st District Court of Harrison County, Texas,
       Cause No. 14-0150, The Honorable Brad Morin, Presiding


 APPELLEES’ BRIEF OF E. TODD TRACY AND THE TRACY FIRM


                           RESPECTFULLY SUBMITTED,

                           /s/ Bruce A. Campbell
                           /S/ Lindsay McNutt
                           BRUCE A. CAMPBELL
                           TEXAS BAR NO. 03694500
                           LINDSAY MCNUTT
                           TEXAS BAR NO. 24058823
                           CAMPBELL & ASSOCIATES LAW FIRM, P.C.
                           4201 Spring Valley Rd., Suite 1250
                           Dallas, Texas 75244
                           Telephone: (972) 277-8585
                           Facsimile: (972) 277-8586
                           Email: bcampell@cllegal.com
                           Email: lmcnutt@cllegal.com

                           ATTORNEYS FOR APPELLEES
                           E. TODD TRACY AND THE TRACY FIRM
                       TABLE OF CONTENTS
Index of Authorities……………………………………………………………....iv

Statement on Oral Argument……………………………………………………vi

Statement on Citations to the Clerk’s Record………………………………….vi

Statement of Facts………………………………………………………………...1

Summary of the Argument…………………………………………………..…...8

Argument…………………………………………………………………………..9

      I.    Summary Judgment Should Be Affirmed Based on Appellants’
            Failure to Adequately Brief the Issues……………………………..9

            A. Appellants Waived their Complaints by Failing to Adequately
               Brief the Issues on Appeal………………………………………...9

            B. Summary Judgment Must be Affirmed Based on Appellants’
               Failure to Challenge a Ground Upon Which the Trial Court
               Granted Summary Judgment……………………………………..10

      II.   REPLY TO ISSUE 1: Summary Judgment was Proper because
            the Kemper Release—Which Appellants signed behind their
            counsel’s back and without their knowledge—extinguished
            Appellants’ ability to recover anything from George Fitts’
            umbrella policy with RLI………………………………………….14

            A. Contrary to Appellants’ argument, the unambiguous release
               of all claims against George Fitts released both of George
               Fitts’ insurers, Kemper and RLI………………………................18

            B. Appellants Argument, raised for the First Time on Appeal,
               that the Trial Court Should Not Have Granted Summary
               Judgment so Appellants Could Assert Claims against
               Non-party Kemper, is not only Nonsensical but Has Been
               Waived………….. ………………………………………………22




Appellees’ Brief of E. Todd Tracy and The Tracy Firm                     ii
             C. Contrary to Appellants’ Argument, it was Undisputed
                There was No Conflict of Interest………………………………..22

      III.   REPLY TO ISSUE 2: The Trial Court Properly Granted
             Summary Judgment because the Kemper Release negated
             the Causation Element of Appellants’ Legal Malpractice
             Claim……………………………………………………………..…27

      IV.    REPLY TO ISSUES 3 AND 4: The Trial Court Properly
             Granted Summary Judgment because the Kemper Release
             negated the Damages/Injury Element of Appellants’ Legal
             Malpractice and Breach of Fiduciary Duty Claims……………...34

Prayer…………………………………………………………………………….36

Certificate of Compliance……………………………………………………….38

Certificate of Service…………………………………………………………….39




Appellees’ Brief of E. Todd Tracy and The Tracy Firm                iii
                                      INDEX OF AUTHORITIES


CASES                                                                                                           Page

Angus Chemical Co. v. IMC Fertilizer, Inc., 939 S.W.2d 138 (Tex. 1997)………17
American Nat. Fire Ins. Co. v. Hammer Trucking, Inc., 2006 WL 3247906
        (Tex.App.—Fort Worth 2006, pet. denied)(mem.op.)………… ….10-11, 21
Barker v. Roelke, 105 S.W.3d 75 (Tex.App.—Eastland 2003, pet. denied)….18, 19
Baty v. Protech Insurance Agency, 63 S.W.3d 841 (Tex.App.—Houston
       [14th Dist.] 2002, no. pet.)……………………………………………..16, 20
Bergthold v. Winstead Sechrest & Minick, P.C., 2009 WL 226026
       (Tex.App.—Fort Worth 2008, no pet.)…………………………………25-26
Brown v. Holman, 335 S.W.3d 792 (Tex.App.—Amarillo 2011, no pet.)……30, 31
Carr v. Brasher, 776 S.W.2d 567 (Tex.1989)…………………………………….10
Cosgrove v. Grimes, 774 S.W.2d 662 (Tex. 1989)……………………….25, 27, 34
David J. Sacks, P.C. v. Haden, 266 S.W.3d 447 (Tex. 2008)…………………….14
Deer Creek Ltd. v. N. Am. Mortg. Co., 792 S.W.2d 198
       (Tex.App.—Dallas 1990, no writ)…………………………………………15
Dresser Industries, Inc. v. Page Petroleum, Inc., 853 S.W.2d 505
       (Tex. 1993)....................................................................................................14
Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex. 1984)………………..15, 16
Emscor Mfg., Inc. v. Alliance Ins. Group, 879 S.W.2d 894 (Tex. App.—
       Houston [14th Dist.] 1994, writ denied)…………………………………...11
Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455 (Tex.1997)…………….13
Haygood v. Hawkeye Ins. Services, Inc., 2012 WL 1883811
       (Tex.App.—Tyler 2012, no pet.) (mem.op.)……………………………….12
Hamlin v. Gutermuth, 909 S.W.2d 114 (Tex.Civ.App. [14th Dist.]
       Houston, 1995)…………………………………………………......28, 29, 33
In re ADA, 287 S.W.3d 382 (Tex.App.—Texarkana
        2009, no pet.)………………………………………………..9, 21, 22, 33, 34
J.E.M. v. Fid. & Cas. Co. of New York, 928 S.W.2d 668 (Tex. App.—
       Houston [1st Dist.] 1996, no writ)………………………………………….13
Judwin Props., Inc. v. Griggs & Harrison, P.C., 981 S.W.2d 868
       (Tex.App.—Houston [1st Dist.] 1998, pet. denied per curiam,
       11 S.W.3d 188 (Tex. 2000)………………………………………………...25
Keck, Mahin & Cate v. Nat’l Union Fire Co., 20 S.W.3d 692 (Tex.2000)……….16
Kuemmel v. Vradenburg, 239 S.W.2d 869 (Tex. 1951)………………………32, 33
Lowe v. Safeco Ins. Co., 2003 WL 21731306 (Tex. App.—
       Dallas 2003, pet. denied)…………………………………………………...17


Appellees’ Brief of E. Todd Tracy and The Tracy Firm                                                                 iv
Mid-Continent Casualty Co. v. Castagna, 410 S.W.3d 445
      (Tex.App.—Dallas 2013, no pet.)………………………………………….12
Morris v. Allstate, 523 S.W. 299 (Tex. Civ. App.-Texarkana 1975, no writ)…….17
Ohio Cas. Ins. Co. v. Time Warner Entertainment Co., L.P., 244 S.W.3d 885
      (Tex.App.—Dallas 2008, pet. denied)……………………………………..12
Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995)………………………27-28
Pool v. Durish, 848 S. W.2d 722 (Tex.App.—Austin 1992, writ denied)………..17
Rodgers v. Weatherspoon, 141 S.W.3d 342 (Tex.App.—Dallas 2004, no pet.)….29
Schomburg v. TRW Vehicle Safety Systems, Inc., 242 S.W.3d 911(Tex.
      App.—Dallas 2008, no pet.)………………………………..14, 15, 16, 17, 19
Star-Telegram, Inc. v. Doe, 915 S.W.2d 471 (Tex. 1995)……………………10, 14
Texas Gas Exploration Corp. v. Fluor Corp., 828 S.W.2d 28
      (Tex. App.—Texarkana 1991, writ denied)………………………………..13
Union Indem Ins. Co. of New York v. Certain Underwriters at Lloyd's,
      614 F.Supp. 1015 (S.D. Tex. 1985)………………………………………..11
Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154 (1951)………………..14
Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931 (Tex. 1991)………………16
Weaver v. Sw. Nat’l Bank, 813 S.W.2d 481 (Tex. 1991)(per curiam)……………..9

STATUTES

Tex. Civ. Prac. & Rem. Code § 16.003……………………………………….24, 28

RULES

Tex. R. App. P. 33.1(a)……………………………………………………..9-10, 22
Tex. R. App. P. 38.1 (i)…………………………………………….9, 21, 22, 33, 34

OTHER AUTHORITIES

Texas Ethics Op. 624 (Tex. Prof. Eth. Comm. 2013), 2013 WL 1776543….……25




Appellees’ Brief of E. Todd Tracy and The Tracy Firm                         v
                     STATEMENT ON ORAL ARGUMENT

      Pursuant to Texas Rule of Appellate Procedure 39.1, Appellees E. Todd

Tracy and The Tracy Firm (hereafter collectively referred to as the “Tracy

Appellees”) note that oral argument is unnecessary because the briefing adequately

presents the facts and legal arguments to the Court, and the dispositive issues have

been decided and can be issued in a memorandum opinion. Oral argument is also

unnecessary because the summary judgment being appealed was decided by the

trial court by written submission, and all issues and complaints must be contained

in the clerk’s record.

      However, if the Court were to grant oral argument, the Tracy Appellees

assert their right to argue in oral argument pursuant to Texas Rule of Appellate

Procedure 39.7.

        STATEMENT ON CITATIONS TO THE CLERK’S RECORD

      The clerk’s record was filed with this Court on April 8, 2015 and is

referenced in this brief as (CR). The second supplemental clerk’s record was filed

with this Court on April 22 and is referenced in this brief as (CR 2d Supp.). The

fourth supplemental clerk’s record was filed with this Court on June 17 at 4:05:10

p.m. and is referenced in this brief as (CR 4th Supp.). The sixth supplemental

clerk’s record was filed with this Court on August 6 and is referenced in this brief

as (CR 6th Supp.).



Appellees’ Brief of E. Todd Tracy and The Tracy Firm                              vi
                           STATEMENT OF FACTS

      On November 6, 2009, Appellant Billy Fitts was travelling with his brothers,

William and George Fitts, in George’s 2007 Lexus. (CR 4th Supp. 5). The Lexus

struck a pickup truck that had stopped to make a left turn, killing George and

injuring Billy and William. (CR 4th Supp. 5).

      George Fitts had a primary automobile insurance policy with Kemper that

had per person bodily injury limits of $250,000. (CR 2d Supp. 14; CR 4th Supp.

5). George Fitts also had an umbrella policy with RLI with a limit of $5 million.

(CR 2d Supp. 51; CR 4th Supp. 5).1

      Appellant Freida Fitts and her employer, Red River Member Insurance, were

the agents of record for both policies. (CR 4th Supp. 5).    Mrs. Fitts did not read

either policy. CR 4th Supp. 5). However, Mrs. Fitts did review the declarations

pages from both policies to make sure they showed the correct coverage limits.

(CR 4th Supp. 5-6).


1
  In the Underlying Lawsuit, the umbrella policy provided George and Mary Fitts
with an additional $5 million to cover any amount that George and Mary became
legally liable to pay because of the automobile accident. (CR 2d Supp. 71). RLI’s
$5 million coverage became available only after two conditions were met. (CR 6th
Supp. 10-11). First, the value of the claim had to exceed the limits of Kemper’s
policy. (CR 6th Supp. 10-11). Second, George and Mary Fitts had to remain
legally liable for the event that caused the claim. (CR 6th Supp. 10-12). Plaintiffs’
undisclosed actions eliminated George and Mary Fitts’ legal liability for the
accident and terminated RLI’s obligation to cover Plaintiffs’ claim. (CR 6th Supp.
10-12).

Appellees Brief of E. Todd Tracy and The Tracy Firm                                1
      Almost immediately after the accident and before hiring the Tracy

Appellees, Appellants opened a claim with Kemper. (CR 2d Supp. 86-90; CR 4th

Supp. 6).   By December 4, 2009, Appellants began sending Kemper medical

invoices for reimbursement. (CR 2d Supp. 103-109). On December 23, 2009,

Appellant Freida Fitts opened a claim with George Fitts’ umbrella carrier RLI. (CR

2d Supp. 113-114; CR 4th Supp. 6). Mrs. Fitts began forwarding documentation

to RLI on December 30, 2009. (CR 2d Supp. 116; CR 4th Supp. 6). Mrs. Fitts

continued communicating with Kemper and RLI in January 2010. (CR 2d Supp.

125-126; CR 4th Supp. 6).

      On February 9, 2010, George Fitts’ estate; his wife and adult children;

William Fitts and his wife Phyllis; and Appellants Billy and Freida Fitts hired

Appellee Gillam & Smith to pursue a product’s liability claim against Toyota and

any parts makers arising out of a defect in George’s Lexus; i.e., the Underlying

Lawsuit. (CR 2d Supp. 128-138; CR 4th Supp. 6).             Plaintiffs both signed

contingent fee contracts with Gillam & Smith. (CR 2d Supp. 128-138; CR 4th

Supp. 6).    Per the fee agreement, Gillam & Smith associated with the Tracy

Appellees to help prosecute the Underlying Lawsuit. (CR 4th Supp. 6). The fee

agreements, among other things, provided that the clients would “[…] have

authority to accept or reject any final settlement amount after receiving the advice

of our attorneys” ¶ 5. (CR 2d Supp. 128-138; CR 4th Supp. 6-7).


Appellees Brief of E. Todd Tracy and The Tracy Firm                               2
      Within days of hiring the Tracy Appellees, Appellant Billy Fitts filled out a

client information form, but did not disclose that they had been in constant

communication with George’s insurers for three months. (CR 2d Supp. 140-153;

CR 4th Supp. 7, 61). In the intake form, Mr. Fitts blamed the accident on sudden

acceleration. (CR 2d Supp. 151-152; CR 4th Supp. 7).

      It is undisputed that Appellant Mr. Fitts never told Appellant Mrs. Fitts that

he believed George’s driving caused the accident; nor did Mrs. Fitts ever hear him

blame George for causing the accident. (CR 4th Supp. 7, 34-35). When deposed in

this lawsuit, Appellant Mrs. Fitts still believed that the “car speeded up” was the

cause of the underlying accident. (CR 4th Supp. 7, 34-35). Until February 2012,

Appellant Mr. Fitts also believed that a defect in George Fitts’ car caused the

accident. (CR 18, CR 4th Supp. 7, 34-35, 49-51, 59-60). After February 2012,

Mr. Fitts never told anyone that he blamed George for causing the accident. (CR

18, CR 4th Supp. 7, 49). When deposed in this lawsuit, Appellant Mr. Fitts

admitted he still has no evidence that George Fitts actually caused the underling

car accident. (CR 4th Supp. 7, 49).

      Based on the information actually provided by Appellants, the Tracy

Appellees commenced working on developing a product’s liability case against

Toyota. (CR 4th Supp. 7). On March 18, 2010, the Tracy Appellees prepared a




Appellees Brief of E. Todd Tracy and The Tracy Firm                               3
product’s liability petition and filed it in Harrison County on Appellants’ behalves.

(CR 2d Supp. 168-187; CR 4th Supp. 7).

      Seven days after filing suit against Toyota, on March 26, 2010, Appellants

received an offer of settlement and a release from Kemper, George Fitts’ primary

insurance carrier, for a claim Appellants had filed on their own, without the

knowledge, counsel or advice of their lawyers. (CR 2d Supp. 8-9; CR 4th Supp.

8).

       The operative language of the Kemper release stated that in exchange for

payment of $250,000, Appellants:

             “release, acquit and forever discharge George Fitts, Mary
             Fitts and Trinity Universal Insurance Company of and
             from and all actions, causes of action, claims or demands
             for damages, costs, loss of use, loss of service, expenses,
             compensation, consequential damage or any other thing
             whatsoever on account of, or in any way growing out of,
             and all known and unknown personal injuries and death
             and property damage resulting or to result from an
             occurrence or accident that happened on or about the 6th
             day of November, 2009, at or near Highway 79 Hearne,
             Texas.”

(CR, 2d Supp. 8-9; CR 4th Supp. 8).      Appellants admit that they read Kemper’s

release before they signed it on March 29, 2010. (CR 4th Supp. 8, 29-30).

       It is undisputed that Appellants did not notify the Tracy Appellees of

Kemper’s settlement offer.      (CR 4th Supp. 8-9, 31-33, 36-38, 44, 55-58).

Appellants admit they did not disclose or seek Appellees’ legal advice regarding


Appellees Brief of E. Todd Tracy and The Tracy Firm                                4
the release. (CR 4th Supp. 8-9, 31-33, 36-38, 44, 55-58).      On July 14, 2014,

Appellant Freida Fitts admitted to Kemper that the reason she did not tell

Appellees about the Kemper settlement was because Appellee Smith “would get

half of their settlement.” (CR 2d Supp. 202-203; CR 4th Supp. 10).     Appellants

did not tell the Tracy Appellees that they signed the Kemper release, nor did

Appellants provide the Tracy Appellees with a copy of the Kemper release. (CR

4th Supp. 8-10, 31-33, 36-38, 44, 55-58).

      After signing the Kemper release, Appellant Freida Fitts informed the excess

carrier RLI that Appellants had settled with Kemper. (CR 2d Supp. 191-193; CR

4th Supp. 9). Not surprisingly, RLI asked for a copy of the Kemper release—in

which Appellants released, acquitted and forever discharged all actions, causes of

action, claims or demands for damages against George Fitts arising from the

automobile accident. (CR 2d Supp. 191-193; CR 4th Supp. 9). RLI received a

copy of the release on August 12, 2010. (CR 2d Supp. 191-193; CR 4th Supp. 9).

Appellants failed to advise the Tracy Appellees that the Kemper release existed or

was forwarded to RLI. (CR 4th Supp. 9, 31-33, 36-38, 44, 55-58).

      After Kemper resolved all claims within its policy limits, Kemper closed its

file. (CR 4th Supp. 10). RLI properly closed its file too. (CR 2d Supp. 197; CR

4th Supp. 10).    Appellees were not sent a copy of the Kemper release until

October 13, 2010. (CR 4th Supp. 10).


Appellees Brief of E. Todd Tracy and The Tracy Firm                             5
      In this lawsuit, Appellants’ claims focus exclusively on their alleged lost

opportunity to sue George Fitts and recover against his $5 million umbrella policy

with RLI. (CR 12-17; CR 4th Supp. 9-10). However, once Appellants signed the

Kemper release, the Tracy Appellees were completely barred from suing George

Fitts and recovering against his umbrella policy with RLI, since Appellants had

already released such a claim. (CR 2d Supp. 8-9; CR 4th Supp. 13-14).          In

response to Tracy Appellees summary judgment, Appellants admitted that they

could not sue RLI, the insured, directly; Appellants admitted that their claims in

the underlying lawsuit were only against George Fitts—although Appellants

released any and all future claims against George Fitts. (CR 224).

      The Tracy Appellees moved for summary judgment: (1) on the affirmative

defense of release, because the Kemper release forever extinguished all claims

Appellants allegedly had against George Fitts and his insurers; (2) that it was

undisputed no conflict of interest existed between Appellants and the other

underlying plaintiffs, negating Appellants’ breach of fiduciary claim; (3) that

Appellants’ own act of releasing any and all claims against George Fitts was the

sole proximate cause of Appellants alleged injuries, which negated the causation

element of Appellants’ legal malpractice claim and (4) that it was undisputed

Appellants could not prove any funds were collectible from RLI, which negated




Appellees Brief of E. Todd Tracy and The Tracy Firm                             6
the damage and injury elements of Appellants’ legal malpractice and breach of

fiduciary duty claims. (CR 4th Supp. 12-19).

        On December 1, 2014, the trial court granted the Tracy Appellees’ motion

for summary judgment and dismissed all of Appellants’ claims with prejudice. (CR

281).




Appellees Brief of E. Todd Tracy and The Tracy Firm                           7
                       SUMMARY OF THE ARGUMENT

      The trial court properly granted the Tracy Appellees’ Traditional Motion for

Summary Judgment – Release on several grounds. First, the Tracy Appellees

properly presented undisputed evidence to support their affirmative defense of

release. Second, it was undisputed that no conflict of interest existed between

Appellants and the other underlying plaintiffs, negating Appellants’ breach of

fiduciary claim. Third, Appellants’ own, unilateral act of releasing any and all

claims against George Fitts was the sole proximate cause of Appellants’ alleged

damages, which negated the causation element of Appellants’ legal malpractice

claim. Fourth, it was undisputed that Appellants could not prove any funds were

collectible from RLI, which negated the damage and injury elements of

Appellants’ legal malpractice and breach of fiduciary duty claims. The trial court

properly ordered that all of Appellants’ claims were dismissed with prejudice.

      Appellants also waived their issues on appeal by failing to cite to evidence in

the record, cite to authorities, or precisely present their arguments with analysis of

any errors allegedly committed by the trial court. Appellants also failed to bring

forward and challenge on appeal that the Kemper release barred Appellants’

underlying claims based on the unambiguous language of the RLI umbrella policy.

Appellants’ failure to bring forward this issue warrants affirmance of summary

judgment for the Tracy Appellees.



Appellees Brief of E. Todd Tracy and The Tracy Firm                                 8
                                      ARGUMENT

   I.      SUMMARY JUDGMENT SHOULD BE AFFIRMED BASED ON
           APPELLANTS’ FAILURE TO ADEQUATLY BRIEF THE ISSUES

           A. APPELLANTS WAIVED THEIR COMPLAINTS BY FAILING                        TO
              ADEQUATELY BRIEF THE ISSUES ON APPEAL

        An appellate brief must contain all issues relied upon, argument and

authorities under each issue, and all facts relied upon with references to the record.

See Tex. R. App. P. 38.1(i)(requiring both citation to authority and substantive

analysis in regard to an issue in the appellant’s brief); see Weaver v. Sw. Nat’l

Bank, 813 S.W.2d 481, 481 (Tex. 1991)(per curiam). The failure to adequately

brief an issue results in its waiver on appeal. See In re ADA, 287 S.W.3d 382, 390

(Tex.App.—Texarkana 2009, no pet.).

        Throughout the Argument section of their brief, Appellants failed to cite to

evidence in the record, failed to cite to authorities, and failed to specifically

identify and analyze any errors allegedly committed by the trial court. See Brief of

Appellants, pp. 16-48. Many of Appellants’ statements in their brief were not

presented to the trial court and are not contained in the clerk’s record. See Brief of

Appellants, pp. 16-48. As such, Appellants’ waived their issues on appeal. See In

re ADA, 287 S.W.3d at 390 (the failure to adequately brief an issue results in its

waiver on appeal); see Tex. R. App. P. 33.1(a)(as a prerequisite to presenting a




Appellees Brief of E. Todd Tracy and The Tracy Firm                                 9
complaint for appellate review, the record must show that the complaint was made

to the trial court).

             B.   SUMMARY JUDGMENT MUST BE AFFIRMED BASED ON
                  APPELLANTS’ FAILURE TO CHALLENGE A GROUND UPON WHICH
                  THE TRIAL COURT GRANTED SUMMARY JUDGMENT

       The trial court did not specify the grounds upon which it granted the Tracy

Appellees motion for summary judgment. (CR 281). When a trial court's order

granting summary judgment does not specify the ground(s) upon which it relied for

its ruling, summary judgment will be affirmed on appeal if any of the theories

advanced are meritorious. Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 473 (Tex.

1995) (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex.1989)). The appellate

court must affirm the summary judgment if any one of the movant's theories has

merit. Id.

       Tracy Appellees advanced several arguments to the trial court in support of

their motion for summary judgment. (CR 4th Supp. 12-16). One argument made

by the Tracy Appellees was that the Kemper release for policy limits of $250,000,

and not one dollar more, prevented the excess policy with RLI from being

triggered based on the unambiguous language of the RLI umbrella policy (CR 4th

Supp. 12-16; CR 6th Supp. 6-12); see American Nat. Fire Ins. Co. v. Hammer

Trucking, Inc., No. 2-04-327-CV, 2006 WL 3247906 at *3 (Tex.App.—Fort Worth

Nov. 9, 2006, pet. denied) (mem.op.)(if a settlement agreement forever discharges


Appellees Brief of E. Todd Tracy and The Tracy Firm                            10
any and all claims a party has against an insured in exchange for the underlying

carrier’s policy limits and not one dollar more, then the excess carrier’s duty to

indemnify and pay is never triggered). 2

      The Tracy Appellees argued that, based on the language in the RLI policy, it

was undisputed that the Kemper release eliminated Appellants’ ability to establish

proximate cause, to prove Appellants were harmed, and to provide evidence that

their alleged damages were collectible. (CR 4th Supp. 12-16, CR 6th Supp. 6-12).

      The insuring language of George Fitts’ RLI umbrella policy states that:

                   We will pay an amount for which anyone covered by this
                   policy becomes legally liable for Injury due to an
                   Occurrence which takes place during the Policy Period
                   and in the Policy Territory. This insurance applies:

                   a. As excess insurance over and above the greater of (1)
                      the Minimum Limit of Coverage as stated in the
                      Declarations which is required to be provided by the
                      Basic Policies…




2
  Primary insurance coverage is insurance coverage whereby, under the terms of
the policy, liability attaches immediately upon the happening of the occurrence that
gives rise to the liability. Emscor Mfg., Inc. v. Alliance Ins. Group, 879 S.W.2d
894, 903 (Tex. App.—Houston [14th Dist.] 1994, writ denied) (citing Union Indem
Ins. Co. of New York v. Certain Underwriters at Lloyd's, 614 F.Supp. 1015, 1017
(S.D. Tex. 1985). An excess or umbrella policy, on the other hand, is one that
provides that the insurer is liable for the excess above and beyond that which may
be collected on primary insurance. Id. In a situation where there is primary and
excess insurance coverage, the limits of the primary insurance must be exhausted
before excess insurance is implicated. Id.

Appellees Brief of E. Todd Tracy and The Tracy Firm                              11
(CR 2d Supp. 71) 3 Substituting into RLI’s insuring language the definitions from

RLI (see footnote two below), the following insuring statement results:

                   RLI will pay an amount which George Fitts becomes
                   obligated to pay by judgment or by settlement agreement
                   for Billy Fitts’ bodily harm due to the November 6, 2009
                   automobile accident […].
                   This insurance applies as excess insurance over and
                   above the greater of the $250,000 Limit of Coverage as
                   stated in the Declarations which is required to be
                   provided by Kemper…


(CR 6th Supp. 9-11).

      In either the policy’s actual language or in the translated language above,

RLI’s obligations become clear—RLI would pay for Billy Fitts’ bodily harm

3
  RLI defined “Injury” to mean bodily injury, which means “bodily harm, sickness
or disease (including required care, loss of services, and death) to others.” (CR 2d
Supp. 69). RLI defined “Occurrence” to mean “an accident, including continuous
or repeated exposure to the same general harmful conditions, that results in Bodily
Injury or Property Damage.” (CR 2d Supp. 69). RLI defined “Basic Policies” to
mean the policies included in the Declarations that provided primary liability
coverage for the Minimum Limit of Coverage listed. (CR 2d Supp. 69). As the
named insured on the RLI policy, George Fitts is “covered by this policy” for the
vehicle he owned that was involved in the November 6, 2009 accident. (CR 2d
Supp. 67, 70).     RLI did not define “legally liable,” but Texas courts interpreting
similar language in umbrella policies have held that a covered person becomes
legally liable to pay an amount “only after an insured’s legal responsibility for
covered damages has been established by judgment or settlement.” Ohio Cas. Ins.
Co. v. Time Warner Entertainment Co., L.P., 244 S.W.3d 885, 890 (Tex.App.—
Dallas 2008, pet. denied); see also Mid-Continent Cas. Co. v. Castagna, 410
S.W.3d 445, 448 fn.1 (Tex.App.—Dallas 2013, no. pet.); Haygood v. Hawkeye Ins.
Services, Inc., No. 12-11-00262CV, 2012 WL 1883811 at *2 (Tex.App.—Tyler
May 23, 2012, no pet.) (mem.op.) (insured’s obligation to pay must be established
by judgment after trial or by written settlement agreement).

Appellees Brief of E. Todd Tracy and The Tracy Firm                               12
related to the November 6, 2009 accident once there is a judgment or settlement

agreement, and RLI would only pay the amount of the judgment or settlement

agreement that exceeds Kemper’s $250,000. (CR 6th Supp. 11). To get to RLI’s

policy, Appellants needed a Kemper settlement agreement that required George

Fitts to pay more than $250,000. (CR 6th Supp. 11). Appellants did not have this.

(CR 2d Supp. 8-9; CR 6th Supp. 11). Instead, Appellants signed a settlement

agreement with Kemper that clearly stated that Appellants were forever

discharging any and all claims they had against George Fitts for exactly $250,000.

(CR 2d Supp. 8-9; CR 6th Supp. 11).

      As a matter of law, the trial court properly interpreted that Appellants’

release with Kemper for $250,000, and not one dollar more, prevented the RLI

policy from being triggered based on the language in the RLI umbrella policy. See

Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex.1997)(It is well

established that the interpretation of an unambiguous contract or insurance policy

is a question of law for a court); see also Texas Gas Exploration Corp. v. Fluor

Corp., 828 S.W.2d 28, 33 (Tex. App.—Texarkana 1991, writ denied). Further,

courts routinely determine insurance coverage questions as a matter of law. J.E.M.

v. Fid. & Cas. Co. of New York, 928 S.W.2d 668, 676 (Tex. App.—Houston [1st

Dist.] 1996, no writ) (no further discovery was necessary because the terms of the

policy and the pleadings alone defined the insurer's duty to defend).         An


Appellees Brief of E. Todd Tracy and The Tracy Firm                            13
unambiguous contract will be enforced as written and parol evidence will not be

received. David J. Sacks, P.C. v. Haden, 266 S.W.3d 447, 450 (Tex. 2008)(citing

Universal C.I.T. Credit Corp. v. Daniel, 243 S.W.2d 154, 157 (1951)).

      Appellants failed to bring forward and challenge on appeal that the Kemper

release also barred Appellants’ underlying claims based on the unambiguous

language of the RLI umbrella policy. See Brief of Appellants (no discussion or

analysis of the language in RLI’s umbrella policy barring Appellants’ claims).

Appellants’ failure to bring forward this issue warrants affirmance of summary

judgment for the Tracy Appellees. See Star-Telegram, Inc. v. Doe, 915 S.W.2d at

473 (the granting of summary judgment will be affirmed on appeal if any of the

theories advanced are meritorious).

REPLY TO ISSUE 1: Summary Judgment was proper because the Kemper
Release—which Appellants signed behind their counsel’s back and without
their knowledge—extinguished Appellants’ ability to recover anything from
George Fitts’ umbrella policy with RLI.

      A release of claims surrenders legal rights or obligations between the parties

to an agreement and operates to extinguish the claim or cause of action as

effectively as would a prior judgment between the parties. See Dresser Industries,

Inc. v. Page Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993).

      The Tracy Appellees agree with Appellants that a valid release is a complete

bar to any later action based on the matters covered by the release. See Schomburg



Appellees Brief of E. Todd Tracy and The Tracy Firm                              14
v. TRW Vehicle Safety Systems, Inc., 242 S.W.3d 911, 913 (Tex.App.—Dallas

2008, no pet.)(citing Deer Creek Ltd. v. N. Am. Mortg. Co., 792 S.W.2d 198, 201

(Tex.App.—Dallas 1990, no writ); see Brief of Appellants, p. 15. The Tracy

Appellees agree that a release applies to a party that is either specifically identified

in the release or described with reasonable particularity. See Schomburg, 242

S.W.3d at 913 (citing Cessna Aircraft Co., 665 S.W.2d 414, 419 (Tex. 1984); see

Brief of Appellants, p. 15; see also Deer Creek Ltd., 792 S.W.2d at 201 (a release,

valid on its face until set aside, is a complete bar to any later action based on

matters covered in the release).

      Here, the trial court properly granted the Tracy Appellees summary

judgment because the plain language of the Kemper release is absolute and

unyielding that, in exchange for $250,000, Appellants forever discharged George

Fitts from “all actions, causes of action, claims or demands for damages, costs, loss

of use, loss of service, expenses, compensation, consequential damage or any other

thing whatsoever on account of, or in any way growing out of, and all known and

unknown personal injuries and death and property damage resulting or to result

from” any other thing whatsoever on account of, or in any way growing out of the

November 6, 2009 accident on Highway 79 in Hearne, Texas. (CR 281, CR 2d

Supp. 8-9).




Appellees Brief of E. Todd Tracy and The Tracy Firm                                  15
      Appellants’ argument that the Kemper release had to specifically name and

release RLI is inaccurate. See Brief of Appellants, p. 17-19. The protection in a

release applies to the alleged tortfeasor. See Schomburg, 242 S.W.3d at 914 (a

“tortfeasor can claim the protection of a release only if the release refers to him by

name or with such descriptive particularity that his identify or his connection with

the tortious event is not in doubt.”)(quoting Duncan v. Cessna Aircraft Co., 665

S.W.2d 414, 419 (Tex. 1984)). Further, a release must only mention the claim to

be released, but it is not necessary for the parties to anticipate and identify every

potential cause of action relating to the subject matter of the release. See Baty v.

Protech Insurance Agency, 63 S.W.3d 841, 848 (Tex.App.—Houston [14th Dist.]

2002, no. pet.)(citing Victoria Bank & Trust Co. v. Brady, 811 S.W.2d 931, 938

(Tex. 1991); Keck, Mahin & Cate v. Nat’l Union Fire Co., 20 S.W.3d 692, 698

(Tex.2000)).

      A valid release may encompass unknown claims and damages that develop

in the future. Keck, 20 S.W.3d at 698; see also Schomburg, 242 S.W.3d at 914, 915

(release of “all claims, actions, demands and causes of action owned or held by

[the Schomburgs]…that arise from, result from, or in any way relate to the accident

in question that occurred on or about November 17, 2003 in Dallas County”

sufficient to release company, not named in release, that supplied parts to GM for




Appellees Brief of E. Todd Tracy and The Tracy Firm                                16
the manufacture of the vehicle that was alleged not to be crashworthy in

subsequent lawsuits).

      Here, Appellants specifically released claims against George Fitts, the

alleged tortfeasor. (CR 2d Supp. 8-9). By releasing any and all claims against

George Fitts, Appellants were barred from asserting claims against George Fitts’

excess insurance carrier. See Pool v. Durish, 848 S. W.2d 722, 723 (Tex.App.—

Austin 1992, writ denied); 4 see also Schomburg, 242 S.W.3d at 914. Appellants

were also barred from asserting additional claims for any personal injuries, death

and property damage against any other persons or companies since those matters

were sufficiently mentioned in the release. (CR 2d Supp. 8-9); see Schomburg,

242 S.W.3d at 914, 915.

      Appellants admitted to the trial court in paragraph 30 of their summary

judgment response that they could not directly sue RLI, but instead their claims

were against the insured George Fitts. (CR 224). However, Appellants released all

claims that could be asserted against George Fitts. (CR 2d Supp. 8-9). Appellants

4
  A party who releases an insured from liability retains no cause of action against
the insurer. Pool, 848 S. W.2d at 723; Angus Chemical Co. v. IMC Fertilizer, Inc.,
939 S.W.2d 138 (Tex. 1997)(affirming summary judgment and holding that
plaintiff could not sue insurers for liability for which insured had been released;
release precluded prerequisite determination of insured's liability); Lowe v. Safeco
Ins. Co., 2003 WL 21731306 (Tex. App.-Dallas 2003, pet. denied) (holding third
party cannot sue an insurance company in Texas); see Morris v. Allstate, 523 S.W.
299 (Tex. Civ. App.-Texarkana 1975, no writ) (tort claimant has no direct cause of
action against the tortfeasors liability carrier unless the tortfeasor is liable to the
claimant).

Appellees Brief of E. Todd Tracy and The Tracy Firm                                 17
own admission that they could not recover anything from RLI—unless they could

sue George Fitts, the same person Appellants released any and all claims against—

is dispositive and outcome determinative. (CR 224; CR 2d Supp. 8-9).

      Since Appellants were barred from suing George Fitts based on their own

release with Kemper, the Tracy Appellees were equally barred and cannot be liable

for not doing what Appellants themselves were prohibited from doing. (CR 2d

Supp. 8-9; CR 4th Supp. 12-14). The trial court properly granted summary

judgment because Appellants cannot establish that the Tracy Appellees caused

them any harm by failing to pursue a claim that the Appellants had already

released in full. (CR 281; CR 2d Supp. 8-9; CR 4th Supp. 12-14)

      A.     Contrary to Appellants’ argument, the unambiguous release of all
             claims against George Fitts released both of George Fitts’ insurers,
             Kemper and RLI.

      Appellants’ argument that a full release of all claims under a primary policy

allows additional recovery under an umbrella policy is inaccurate, and the case

cited by Appellants, Barker v. Roelke, 105 S.W.3d 75 (Tex.App.—Eastland 2003,

pet. denied), does not hold as such. Brief of Appellants, pp. 17-18. 5




5
 Appellants also argue on appeal, without citing to any authority, that the
“execution of separate releases under both the primary automobile policy and the
umbrella policy is standard industry practice.” See Brief of Appellants, p. 18.
Appellants argued before the trial court that Barker v. Roelke supported this
argument. (CR 224). Barker does not hold as such.

Appellees Brief of E. Todd Tracy and The Tracy Firm                             18
      In Barker, the defendant’s daughter was killed in an automobile accident.

Barker, 105 S.W.3d at 70. The defendant settled and executed two written

settlement agreements releasing the Roelkes and their insurers from claims arising

from an automobile accident—one agreement was with the primary insurer for

policy limits of $100,000, and the second agreement was with the excess carrier for

$400,000. Id. at 80-81. The defendant’s ex-wife subsequently settled all of her

claims against the Roelkes, their attorneys and their insurers for $5.5 million. Id.

at 81. The defendant attempted to rescind his settlement agreements, but the trial

court enforced the releases and granted summary judgment on all claims. Id. at 82.

The court of appeals affirmed. Id. at 88. There is no language in Barker that two

releases must be executed. There is also no language or analysis in Barker that an

excess carrier must execute its own release.6 Appellants’ argument that Barker

holds as such is without merit. See Brief of Appellants, pp. 17-18.




6
 As the Tracy Appellants have already presented to this Court, the doctrine of
release does not require the party claiming that the plaintiff’s claims are barred to
have been specifically mentioned in the release. See, e.g., Schomburg, 242 S.W.3d
at 914, 915 (release of “all claims, actions, demands and causes of action owned or
held by [the Schomburgs]…that arise from, result from, or in any way relate to the
accident in question that occurred on or about November 17, 2003 in Dallas
County” sufficient to release company, not named in release, that supplied parts to
GM for the manufacture of the vehicle that was alleged not to be crashworthy in
subsequent lawsuits). Barker also held that State Farm Fire & Casualty Company
was released from liability, even though it was not specifically named or identified
in the release itself. See Barker, 105 S.W.3d at 88.

Appellees Brief of E. Todd Tracy and The Tracy Firm                               19
      Appellants also misstate the holding of Baty v. Protech Insurance Agency,

63 S.W.3d 841 (Tex.App.—Houston [14th Dist.] 2001, no pet.). See Brief of

Appellants, pp. 19. In Baty, BAI brought suit against two former company officers

and those officers’ new insurance agency, based on a non-compete and/or non-

solicitation agreement between the parties. Baty, 63 S.W.3d at 846.      The parties

settled that first lawsuit, and BAI released claims related to the non-compete and/or

non-solicitation agreement between the parties. Id. at 849.     BAI then filed suit

again, asserting tort claims. Id.   The defendants moved for summary judgment

which the trial court granted. Id. The court of appeals reversed on the issue of

release, finding that BAI’s release was not broadly drafted but expressly restricted

to only release contract claims arising from the prior non-compete and/or non-

solicitation agreement between the parties. Id. at 849-50.

      The Baty decision does not apply to this case because—unlike BAI’s limited

release of claims related to a specific non-compete and non-solicitation

agreement—the Kemper release executed by Appellants was a broad form release

of any and all claims, whether known or unknown, related to the November 6,

2009 car accident. (CR 2d Supp. 8-9). As Baty instructs, courts will not hesitate to

find that claims were released in a broad form general release of all claims. Baty,

63 S.W.3d at 849.




Appellees Brief of E. Todd Tracy and The Tracy Firm                               20
       Similarly, Appellants’ unsubstantiated “public policy” argument that a

claimant will not be able to settle with a primary carrier prior to setting with the

excess carrier is without merit. See Brief of Appellants, pp. 19-20.      Appellants

could have chosen not to release “any and all claims” against George Fitts.

Appellants could have also chosen to settle above Kemper’s $250,000 policy limits

to trigger the excess policy. See American Nat. Fire Ins. Co., 2006 WL 3247906 at

*3. Instead, Appellants executed a broad general release of any and all claims for

exactly $250,000. (CR 2d Supp. 8-9).

       Appellants executed the broad, general release of any and all claims behind

their counsel’s back, in order to avoid paying attorney’s fees from the settlement.

(CR 2d Supp. 8-9; CR 4th Supp. 31-33, 36-38, 44, 55-58). By signing the Kemper

release without the advice of Appellees, Appellants solely caused their own

injuries, if any. (CR 4th Supp. 15). Appellants’ unsupported argument that this

case will change an insurance company’s settlement of claims or deserves court

interference based on “public policy” arguments is meritless. See Brief of

Appellants, pp. 19-20.

       Appellants waived the remainder of their arguments in this section by failing

to include citations to the record or cite to authorities in their brief. See Brief of

Appellants, pp. 17-20; see Tex. R. App. P. 38.1(i); see In re ADA, 287 S.W.3d at

390.


Appellees Brief of E. Todd Tracy and The Tracy Firm                                21
       B. Appellants Argument, Raised for the First Time on Appeal, that the
          Trial Court Should Not have Granted Summary Judgment so
          Appellants Could Assert Claims against non-party Kemper, is not only
          Nonsensical but has been Waived.

       For the first time on appeal, Appellants attempt to argue that Appellants

could have rescinded the Kemper release on the basis of mutual mistake or

fraudulent inducement. See Brief of Appellants, pp. 21-27.        Appellants failed to

raise any of these arguments before the trial court. (CR 216-239). Not only were

these claims not raised by Appellants in response to the Tracy Appellees motion

for summary judgment, these new allegations against non-party Kemper were not

contained in Appellants’ petition. (CR 12-17). Appellants attempt to invent new

claims against non-party Kemper on appeal are impermissible and have been

waived. See Tex. R. App. P. 33.1(a).

       Appellants’ arguments were also waived in this section because their brief

fails to include appropriate citations to authorities and to the record to support their

contentions. See Tex. R. App. P. 38.1(i); see In re ADA, 287 S.W.3d at 390.

       C. Contrary to Appellants’ Argument, it is Undisputed There Was No
          Conflict of Interest

       Appellants waived their arguments in this section by failing to include

citations to the record or cite to any authorities in their brief.        See Brief of

Appellants, pp. 27-33; see Tex. R. App. P. 38.1(i); see In re ADA, 287 S.W.3d at

390.    Several of Appellants “statements” in their brief regarding the alleged


Appellees Brief of E. Todd Tracy and The Tracy Firm                                  22
conflict of interest were not before the trial court and are not contained in the

record. See, e.g., Brief of Appellants, pp. 28-29; (CR 227-233).

      However, even if the Court were to consider Appellants’ argument,

summary judgment was proper. (CR 281).            In their petition, the Appellants

complained that the Tracy Appellees had an undisclosed conflict of interest in

representing both George Fitts’ estate and Appellants in their claims against the

Toyota, the automobile manufacturer of George Fitts’ Lexus. (CR 14, 16).        The

Appellants also alleged that the Tracy Appellees breached their fiduciary duties

when they informed Appellants that bringing a claim against George Fitts’ estate

would harm their claim against Toyota. (CR 16). According to Appellants, this

conflict injured them because it prevented the Tracy Appellees from pursuing

claims against George Fitts. (CR 16).

      Tracy Appellees moved for summary judgment as it was undisputed there

was no conflict of interest between George Fitts’ estate and Appellants. (CR 4th

Supp. 17-19). At all times from February 9, 2009, when Appellants hired the

Tracy Appellees, until February 2012, the Appellants blamed the car—not George

Fitts—for the automobile accident. (CR 18, CR 4th Supp. 34-35, 49-51, 59-60).

      Appellant Billy Fitts provided the uncontroverted fact that the car caused the

accident in his February 2010 client intake form with the Tracey Appellees. (CR

2d Supp. 140, 151-152; CR 4th Supp. 61). Appellant Billy Fitts verified this


Appellees Brief of E. Todd Tracy and The Tracy Firm                              23
uncontroverted fact in his underlying lawsuit interrogatory responses. (CR 4th

Supp. 62).   Mr. Fitts also testified under oath and penalty of perjury to this

uncontroverted fact in his underlying lawsuit deposition. (CR 4th Supp. 49-51).

These were the facts the Tracy Appellees had when they determined that there was

no claim against George Fitts and thus, no conflict between their clients. (CR 6th

Supp. 14-15).

      Limitations ran to sue George Fitts on November 6, 2011, two years after the

car accident. See Tex. Civ. Prac. & Rem. Code § 16.003. During this time, it is

undisputed that Appellants still blamed only the car—not George Fitts—for the

accident. (CR 18; CR 4th Supp. 34-35, 49-51, 59-60; 6th Supp. 14). Because the

Tracy Appellees proved there was no alleged conflict of interest based on these

fundamental, uncontested, uncontroverted facts, the trial court properly granted

summary judgment. (CR 281; CR 4th Supp. 17-19; CR 6th Supp. 14-15).

      Appellants’ case is premised on the theoretical assumption that Appellees

should have known that Billy Fitts’ intake form, verified interrogatories, and sworn

testimony were wrong. (CR 6th Supp. 14). According to Appellants’ allegations,

the lawyers should have known that Billy Fitts really did, deep down inside, blame

his brother George for the accident and they should have acted accordingly; i.e.,

investigate George Fitts’ liability and counsel them about the conflicts of interest

this investigation would create. (CR 6th Supp. 14). From Appellants’ perspective,


Appellees Brief of E. Todd Tracy and The Tracy Firm                              24
the lawyers should have ignored everything Billy Fitts actually told them, under

oath and otherwise, about the cause of the accident and should have pursued a

lawsuit against George Fitts. (CR 6th Supp. 14-15).

      In Texas, an attorney can only evaluate possible claims and potential

conflicts using the information the client provides. See Cosgrove v. Grimes, 774

S.W.2d 662, 664 (Tex. 1989)(must evaluate lawyer’s conduct based on the

information the attorney has at the time); Texas Ethics Opinion 624 (if in the early

stages of representation a lawyer reasonably believes that there is no significant

likelihood of the possibility of a future conflict developing, then there is no Rule

1.06(b)(2) conflict). Appellants have cited no authority for the breathtaking

proposition that a lawyer must ignore their client and be clairvoyant. (CR 6th

Supp. 15).

      Appellants’ citation in their brief to the disciplinary rules does not create an

independent claim in Texas or in any way dispute all uncontroverted evidence that

no conflict of interest existed. See Judwin Props., Inc. v. Griggs & Harrison, P.C.,

981 S.W.2d 868, 870 (Tex.App.—Houston [1st Dist.] 1998, pet. denied per

curiam, 11 S.W.3d 188 (Tex. 2000)(preamble to Texas Disciplinary Rules of

Professional Conduct provides that a violation of the disciplinary rules does not

create civil liability); see also Bergthold v. Winstead Sechrest & Minick, P.C.,




Appellees Brief of E. Todd Tracy and The Tracy Firm                                25
2009 WL 226026, at *5, no. 5 (Tex.App.—Fort Worth 2008, no pet.)(“A private

cause of does not exist for violation of the disciplinary rules”).

      Tracy Appellees also moved for summary judgment that the Kemper release

created an absolute bar against the Tracy Appellees from bringing future claims

against George Fitts, which negated the damage and injury elements of Appellants’

legal malpractice and breach of fiduciary claims. (CR 4th Supp.15-19).

      By releasing their claims against George and Mary Fitts, Appellants created

an absolute bar against the Tracy Appellees from bringing future claims against

George Fitts. (CR 2d Supp. 8-9; CR 4th Supp. 13-14). According to the plain

language of the Kemper release, Appellants had forever discharged George and

Mary Fitts from any further obligation to pay Appellants for anything related to the

November 6, 2009 accident. (CR 2d Supp. 8-9).          Appellants signed the Kemper

release, without the knowledge or counsel of the Tracey Appellees, just eight days

after the Tracy Appellees had filed an original petition in Harrison County against

Toyota for a defect in the car. (CR 2d Supp. 8-9; CR 2d Supp. 168-187; CR 4th

Supp. 31-33, 36-38, 44, 55-58).

      Whatever recommendations the Tracy Appellees might have proposed as the

Underlying Lawsuit developed vis-à-vis George’s estate were permanently

foreclosed once Appellants signed the Kemper release. (CR 2d Supp. 8-9; CR 4th

Supp. 16). Appellants own acts made it impossible for the Tracy Appellees to take


Appellees Brief of E. Todd Tracy and The Tracy Firm                              26
the actions Appellants complain of in this lawsuit. (CR 2d Supp. 8-9; CR 4th

Supp. 16).

      Moreover, because of the Kemper release, had the Tracy Appellees sued

George Fitts, Plaintiffs would have been in exactly the same position back then

that they are in today – $250,000 in their pocket from Kemper’s policy and facing

a summary judgment (filed by George’s lawyers) arguing release. (CR 2d Supp. 8-

9; CR 4th Supp. 16).   Thus, Appellants are in no different position today, which is

the quintessential definition of a party that has not suffered any harm. (CR 2d

Supp. 8-9; CR 4th Supp. 16). As such, the trial court properly granted summary

judgment on Appellants’ claims. (CR 281).

REPLY TO ISSUE 2: The Trial Court Properly Granted Summary Judgment
because the Kemper Release Negated the Causation Element of Appellants’
Legal Malpractice Claim.

      Tracy Appellees moved for summary judgment that the Appellants own

conduct in executing the Kemper release was the sole proximate cause of

Appellants’ alleged claim. (CR 4th Supp. 15-17).

      In a legal malpractice case, the plaintiff must prove that the defendant’s

breach of duty proximately caused the plaintiff’s injury and that damages occurred.

See Cosgrove v. Grimes, 774 S.W.2d 662, 665(Tex.1989).             Texas has long

recognized that the client’s own conduct can be the sole proximate cause and can

break any causal link that might otherwise exist. Peeler v. Hughes & Luce, 909


Appellees Brief of E. Todd Tracy and The Tracy Firm                              27
S.W.2d 494, 498(Tex. 1995)(client at no time asserted she did not commit the acts

which formed the basis of the matters charged, and therefore her acts were the sole

proximate cause).

      Appellees complain that the Tracy Appellees prevented them from pursuing

negligence claims against George Fitts’ umbrella insurance policy with RLI. (CR

14-16; CR 4th Supp. 12). The Tracy Appellees had until November 6, 2011 to

bring such a claim. (CR 4th Supp. 12); (CR 217)(accident occurred November 6,

2009); see Tex. Civ. Prac. & Rem. Code § 16.003 (two year statute of limitations).

      However, without asking the Tracy Appellees for legal advice, without

informing the Tracy Appellees that they had received a settlement offer from

Kemper, and without providing the Tracy Appellees with a copy of the Kemper

release, Appellants signed the Kemper release on March 26, 2010. (CR 2d Supp. 8-

9; CR 4th Supp. 8-9, 15, 31-33, 36-38, 44, 55-58). By signing that release,

Appellants own actions barred Appellants from pursuing claims against George

Fitts and receiving any funds from RLI. (CR 2d Supp. 8-9; CR 4th Supp. 15).

Appellants proximately caused the loss complained of in their negligence claim.

(CR 2d Supp. 8-9; CR 4th Supp. 16-17)

      In support of summary judgment, Tracy Appellees cited the trial court to and

Hamlin v. Gutermuth, 909 S.W.2d 114 (Tex.Civ.App. [14th Dist.] Houston, 1995).




Appellees Brief of E. Todd Tracy and The Tracy Firm                             28
(CR 4th Supp. 16). 7 In Hamlin, the clients negotiated a side letter to a business

transaction. Hamlin, 909 S.W.2d at 115. The lawyer did not participate in, or know

of the existence of the negotiations, of the side letter or know of its preparation. Id.

The clients did not even apprise the lawyer of the side letters existence, although

the side letter and other papers were delivered to the lawyer for his safe keeping.

Id. In affirming summary judgment on causation in favor of the lawyer defendant,

the Court pointed out that the clients did not consult with the lawyer Defendants

concerning the side letter. Id. at 116-17. The court found there was no evidence

that the client’s injuries were caused by the lawyers’ actions or failure to act. Id. at

117.    Instead, the court found there was no causal relationship between the

damages sued for, the actions of the lawyers and the alleged injury suffered by the

client. Id.

        Here, as in Hamlin, Appellants did not disclose their efforts to obtain a

settlement with Kemper and RLI that had been going on for months at the time of


7
  The Tracy Appellees also cited the court to Rodgers v. Weatherspoon, 141
S.W.3d 342 (Tex.App.—Dallas 2004). (CR 4th Supp. 15). In Rodgers, a
represented party filed pro se motions and personally visited the court. Rodgers,
141 S.W.3d at 343. During one of his visits to the court, the plaintiff was arrested
because the trial judge determined that his bail was not sufficient. Id. The plaintiff
claimed that the court clerk told him that if his attorney would come to the court,
the plaintiff would be released to his attorney and would not have to go to jail. Id.
After spending six days in jail, the client sued his lawyer for malpractice. Id. at
343-44. Summary judgment was affirmed for the lawyer because it was the trial
judge’s decision to hold the client’s bond insufficient that caused the alleged
injury, not the lawyer’s conduct. Id. at 346.

Appellees Brief of E. Todd Tracy and The Tracy Firm                                  29
the retention of the Tracy Appellees. (CR 2d Supp. 140-153; CR 4th Supp. 7, 61).

Appellants did not disclose the offer of settlement from Kemper at the time it was

made forty-five days after the signing of the fee agreement and after a lawsuit had

been filed against Toyota in Harrison County. (CR 2d Supp. 8-9, 140-153; 168-

187; CR 4th Supp. 7-10, 31-33, 36-38, 44, 55-58, 61).

       Instead, by signing the release behind the backs of the Tracy Appellees,

Appellants settled and released not only the claim that could be asserted against

George Fitts, but also the claim that could be asserted through George Fitts with

RLI.   (CR 2d Supp. 8-9).     Instead of consulting with the lawyer Appellees,

Appellants sought to hide the settlement from the lawyers for another six months

before finally admitting that they had settled with Kemper. (CR 4th Supp. 8-10,

31-33, 36-38, 44, 55-58). The Appellants deprived the Appellees of the ability to

advise them regarding Kemper’s release and the effect the release would have on

their lawsuit. (CR 4th Supp. 8-10, 31-33, 36-38, 44, 55-58). It is clear that they

hid their negotiations with Kemper and the release in order to beat the Appellees

out of their fee. (CR 2d Supp. 202-203; CR 4th Supp. 10).

       In their brief, Appellants cite to Brown v. Holman, 335 S.W.3d 792

(Tex.App.—Amarillo 2011, no pet.) for the proposition that sole cause is an

inferential rebuttal defense, and the defense must do more than simply raise an




Appellees Brief of E. Todd Tracy and The Tracy Firm                             30
alternative theory of causation but instead conclusively disprove the plaintiff’s

allegations. Brief of Appellants, p. 34.

      Brown actually supports the trial court’s summary judgment for the Tracy

Appellees. In Brown, an employer instructed his employee, Brown, to clean out a

storage building surrounded by a three-rail fence made of two-inch pipes. Brown,

335 S.W.3d at 794. The employer instructed employee Brown to park his pickup

truck behind the fence. Id. Brown was injured while attempting to climb the fence

while holding a sixty-pound clay mold. Id. Summary judgment was affirmed for

the employer—finding Brown was the sole proximate cause of his own injuries—

because Brown alone chose to scale the fence while carrying the clay mold, the

injury would not have occurred but for Brown’s decision, and a person of ordinary

prudence would have anticipated the danger of slipping while scaling the pipe

fence with a heavy object. Id. at 796-97.

      Here, just as in Brown, Appellants were the sole proximate cause of their

own injuries. Appellants signed a release of any and all claims against George

Fitts without the advice or knowledge of the Tracy Appellees. (CR 2d Supp. 8-9;

CR 4th Supp. 8-9, 31-33, 36-38, 44, 55-58). The release that Appellants signed

released any and all future claims against George Fitts. (CR 2d Supp. 8-9).

Appellants have admitted that Appellants’ only access to RLI’s excess policy was

by suing the insured, George Fitts—the same person Appellants released all future


Appellees Brief of E. Todd Tracy and The Tracy Firm                           31
claims against. (CR 224). Appellants chose to sign the release on their own,

behind their counsel’s back. (CR 4th Supp. 8-9, 17, 31-33, 36-38, 44, 55-58).

Appellants’ alleged injury would not have occurred but for Appellants’ decision to

release George Fitts of any future liability. (CR 4th Supp. 17). The trial court

correctly decided that a person of ordinary prudence would not have behaved as

Appellants. (CR 281). The trial court correctly decided that a person of ordinary

prudence would have anticipated the danger of signing a release of any and all

claims against George Fitts—based on the plain language of the release executed

by Appellants. (CR 281; CR 2d Supp. 8-9). The trial court correctly decided that

the release Appellants signed, behind their counsel’s back and without the advice

of counsel, was the sole proximate cause of Appellants alleged injuries. (CR 4th

Supp. 17). The trial court properly dismissed Appellants’ claims against the Tracy

Appellees. (CR 281).

      In their brief, Appellants also cite to Kuemmel v. Vradenburg, 239 S.W.2d

869 (Tex. 1951) for the proposition that a person owing a duty must have had no

opportunity to resolve the alleged actions to be the sole proximate cause. Brief of

Appellants, p. 34. Kuemmel does not state or hold as such. Kuemmel does not

apply to this case because the Tracy Appellees are not attempting to impute the




Appellees Brief of E. Todd Tracy and The Tracy Firm                             32
Appellants’ actions to another.8       To be clear, the Appellants own actions in

signing the Kemper release are the sole proximate cause of Appellants alleged

injuries. (CR 2d Supp. 15-17).

      Furthermore, this Court should affirm summary judgment because

Appellants waived their arguments in this section by failing to include citations to

the record or cite to any authorities in their brief. 9 See Brief of Appellants, pp. 33-

36; see Tex. R. App. P. 38.1(i); see In re ADA, 287 S.W.3d at 390. Several of

Appellants “statements” in their brief regarding the alleged “facts” are not

contained in the record. See, e.g., Brief of Appellants, p. 35.




8
  In Kuemmel, a three year old boy was injured at a hot-rod event when a racing car
left the track, crashed through a protective barrier, and struck the child. Kuemmel,
239 S.W.2d at 870. The jury found that the defendant was negligent because the
barrier fence was not reasonably strong enough and did not conform with barriers
customarily used at hot-rod races. Id. at 871. On appeal, the defendant urged that
the parents’ negligence was the sole proximate cause of the child’s injury. Id. at
873. The Texas Supreme Court rejected the defendant’s argument because the law
forbade imputing a parent’s negligence to a child. Id. The Supreme Court held that
even if the parents were negligent by positioning the child next to the barrier, the
parents’ negligence could not be imputed to the child to find that the child was the
sole proximate cause of his own injuries. Id. at 873-74.
9
  Appellants argued before the trial court that the sole-proximate cause in legal
malpractice claims had only been applied in the context of underlying criminal
matters. (CR 226). Appellants waived this argument by failing to include it in their
brief. See Tex. R. App. P. 38.1(i). Tracy Appellees also disproved this argument
by citing to Hamlin v. Gutermuth, 909 S.W.2d 114 (Tex.Civ.App. [14th Dist.]
Houston, 1995) in their motion for summary judgment. (CR 198).

Appellees Brief of E. Todd Tracy and The Tracy Firm                                  33
REPLY TO ISSUES 3 & 4: The Trial Court Properly Granted Summary
Judgment because the Kemper Release Negated the Damages/Injury Elements
of Appellants’ Legal Malpractice and Breach of Fiduciary Duty Claims

       Appellants waived their arguments in this section by failing to include

citations to the record or cite to any authorities in their brief.     See Brief of

Appellants, pp. 33-36; see Tex. R. App. P. 38.1(i); see In re ADA, 287 S.W.3d at

390.   However, even if the Court were to consider Appellants’ arguments,

summary judgment was properly granted.10

       Appellants asserted that the Tracy Appellees’ alleged legal malpractice and

breach of fiduciary duty injured Appellants because they could not recover against

RLI’s umbrella policy. (CR 15-16). When the claim is that lawyers improperly

represented plaintiffs in another case, the plaintiffs must prove and obtain findings

as to the amount of damages that would have been recoverable and collectible in

the other case had been properly prosecuted. (CR 4th Supp. 17); see Cosgrove v.

Grimes, 774 S.W.2d 662, 666 (Tex. 1989).

       The Tracy Appellees moved for summary judgment because it was

undisputed that Appellants own release of all claims against George Fitts proved

that Appellants could not have recovered or collected anything from RLI in the


10
   Tracy Appellees moved for summary judgment on the damages element of
Appellants’ legal malpractice claim and breach of fiduciary duty claim in one
section of their motion. (CR 4th Supp. 17-19). Tracy Appellees respond to
Appellants issues numbered 3 and 4 together, to refrain from duplicating
arguments and authorities to Appellants’ issues 3 & 4.

Appellees Brief of E. Todd Tracy and The Tracy Firm                               34
underlying lawsuit. (CR 4th Supp. 18).    The release of any and all claims against

George Fitts released the potential to recover anything from RLI. (CR 2d Supp. 8-

9; CR 4th Supp. 17-19)      Appellants even admitted this to the trial court in

paragraph 30 of their summary judgment response. (CR 224).

      By releasing their claims against George and Mary Fitts, Appellants created

an absolute bar against the Tracy Appellees from bringing future claims against

George Fitts. (CR 4th Supp. 17-19). According to the plain language of the

Kemper release, Appellants had forever discharged George and Mary Fitts from

any further obligation to pay Appellants for anything related to the November 6,

2009 accident. (CR 2d Supp. 8-9). Appellants signed the Kemper release, without

the knowledge or counsel of the Tracey Appellees, just eight days after the Tracy

Appellees had filed an original petition in Harrison County against Toyota for a

defect in the car. (CR 4th Supp. 19, 31-33, 36-38, 44, 55-58).

      Whatever recommendations the Tracy Appellees might have proposed as the

Underlying Lawsuit developed vis-à-vis George’s estate were permanently

foreclosed once Appellants signed the Kemper release. (CR 4th Supp. 19).

Appellants own acts made it impossible for the Tracy Appellees to take the actions

Appellants complain of in this lawsuit. (CR 4th Supp. 19).

      Moreover, because of the Kemper release, had the Tracy Appellees sued

George Fitts, Plaintiffs would have been in exactly the same position back then


Appellees Brief of E. Todd Tracy and The Tracy Firm                             35
that they are in today – $250,000 in their pocket from Kemper’s policy and facing

a summary judgment (filed by George’s lawyers) arguing release. (CR 4th Supp.

19). Thus, Appellants are in no different position today, which is the quintessential

definition of a party that has not suffered any harm. (CR 4th Supp. 19). As such,

the trial court properly granted summary judgment and dismissed all of Appellants’

claims with prejudice. (CR 281).

                                      PRAYER

      For all of the above cited reasons, the Appellants have failed to present a

basis to set aside the trial court’s summary judgment. The trial court properly

granted E. Todd Tracy and The Tracy Firm’s traditional motion for summary

judgment, and the order dismissing all of Appellants’ claims with prejudice should

be affirmed. Likewise, Appellants have waived any issues on appeal by failing to

comply with their briefing requirements before this Court and failing to challenge a

ground upon which the trial court granted summary judgment.

      For the reasons stated in this brief, Appellees E. Todd Tracy and The Tracy

Firm ask the Court to:

      (i)    dismiss this appeal for Appellants’ failure to comply with their

             briefing requirements;

      (ii)   dismiss this appeal for Appellants’ failure to challenge a ground upon

             which the trial court granted summary judgment; and


Appellees Brief of E. Todd Tracy and The Tracy Firm                               36
      (iii)   affirm the trial court’s December 1, 2014 order granting E. Todd

              Tracy and The Tracy Firm’s Traditional Motion for Summary

              Judgment – Release and dismissing all of Appellants’ claims with

              prejudice.

                                Respectfully Submitted,

                                /s/ Bruce A. Campbell
                                /s/ Lindsay McNutt
                                BRUCE A. CAMPBELL
                                TEXAS BAR NO. 03694500
                                LINDSAY MCNUTT
                                TEXAS BAR NO. 24058823
                                CAMPBELL & ASSOCIATES LAW FIRM, P.C.
                                4201 Spring Valley Rd., Suite 1250
                                Dallas, Texas 75244
                                Telephone: (972) 277-8585
                                Facsimile: (972) 277-8586
                                Email: bcampell@cllegal.com
                                Email: lmcnutt@cllegal.com

                                ATTORNEYS FOR APPELLEES
                                E. TODD TRACY and THE TRACY FIRM




Appellees Brief of E. Todd Tracy and The Tracy Firm                        37
                      CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4(i), the enclosed brief of

the Tracy Appellees uses a size 14-point font and contains approximately 9,081

words, which is less than the total words of 15,000 permitted by the rule. Counsel

relies on the word count of the computer program used to prepare this brief.

                                      _/s/ Lindsay McNutt _________________
                                      On Behalf of Campbell &Associates Law
                                      Firm, P.C.




Appellees Brief of E. Todd Tracy and The Tracy Firm                            38
                           CERTIFICATE OF SERVICE
      The undersigned hereby certifies that a true and correct copy of this
document was served pursuant to the Texas Rules of Civil Procedure on August 7,
2015, as follows:

Lindsey Rames                                    Certified mail, return receipt requested
RAMES LAW FIRM                                   Personal delivery / Hand Delivery
Attorney for Plaintiffs                          Private delivery / FedEx
5661 Mariner Drive                               Facsimile transfer
Dallas, Texas 75237                              First Class Mail
Attorneys for Appellants                         E-filing
Carter Hampton                                   Certified mail, return receipt requested
Hampton & Associates                             Personal delivery / Hand Delivery
Attorney for Plaintiffs                          Private delivery / FedEx
1000 Houston Street                              Facsimile transfer
Fort Worth, Texas 76102                          First Class Mail
Attorneys for Appellants                         E-filing
Wade Crosnoe
Shawn Phelan                                     Certified mail, return receipt requested
THOMPSON COE                                     Personal delivery / Hand Delivery
700 North Pearl Street, Suite 2500               Private delivery / FedEx
Dallas, Texas 75201                              Facsimile transfer
Attorneys for Smith Appellees                    First Class Mail
                                                 E-filing

                                     _/s/ Lindsay McNutt _________________
                                     On Behalf of Campbell &Associates Law
                                     Firm, P.C.




Appellees Brief of E. Todd Tracy and The Tracy Firm                            39
