Opinion
NO. 01-10-00944-CV
03-01-2012
RAMESH K. WADHWA AND SARITA WADHWA, Appellants v. SHARI GOLDSBERRY AND LAIRD, HARRIS, GOLDSBERRY, TARLOW & VALDEZ, L.L.P., Appellees
On Appeal from the County Court at Law Number 1
Brazoria County, Texas
Trial Court Case No. CI042509
MEMORANDUM OPINION
Appellants, Ramesh K. Wadhwa and Sarita Wadhwa, appeal the trial court's grant of summary judgment disposing of all of their claims against appellees, Shari Goldsberry and the law firm Laird, Harris, Goldsberry, Tarlow & Valdez, L.L.P. (collectively, "Goldsberry"). In eight points of error, Wadhwa argues that the trial court erred in: (1) denying his motion to take judicial notice; (2) denying his motion to strike portions of Goldsberry's summary judgment evidence; (3) denying his motion to determine the sufficiency of Goldsberry's answers to certain requests for admission; (4) granting Goldsberry's motion to withdraw deemed admissions; (5) denying his motion for summary judgment on his claim for violations of the Texas Deceptive Trade Practices Act ("DTPA"); (6) denying his motion for summary judgment on his negligence claim; (7) sustaining Goldsberry's objections to portions of his affidavit filed in support of his response to Goldsberry's motion for summary judgment; and (8) granting Goldsberry's motion for summary judgment.
See TEX. BUS. & COM. CODE ANN. §§ 17.41-.63 (Vernon 2011 & Supp. 2011).
We affirm.
Background
Wadhwa is currently incarcerated for second-degree murder. In connection with this criminal conviction, Wadhwa retained an attorney, Walter Reaves, to pursue several writs of habeas corpus, which were denied in 2005.
In May 2007, Wadhwa sought advice from Goldsberry regarding a civil suit against Reaves in connection with Reaves' representation of Wadhwa in the habeas corpus proceeding. At this time, Goldsberry was a partner with the law firm Laird, Harris, Goldsberry, Tarlow & Valdez, L.L.P. ("the law firm"). Goldsberry responded in writing:
Wadhwa sought to file suit against Reaves for, among other claims, an alleged misrepresentation that Reaves was admitted to practice law in the relevant federal courts when, in fact, he was not. The federal court that denied Wadhwa's petition for writ of habeas corpus indicated that, in spite of that and other procedural deficiencies, it considered the merits of Wadhwa's claims based on his pro se filings.
I would be happy to assist you in attempting to collect your $14,000 from Mr. Reaves. Our biggest challenge here is that the statute of limitations in this case runs in July of 2007. That only gives us 6 weeks to file suit in the matter. I have enclosed a contract for your signature that represents a contingency fee agreement. Please act quickly and provide all documentation of the habeas case that you have. At least I would want a cause number.
Ramesh Wadhwa initialed and signed the contingent fee agreement. He also forwarded multiple documents regarding the habeas proceeding. Pursuant to the terms of the contingent fee agreement, Wadhwa was not required to pay, and Goldsberry did not collect, any money as a retainer or other compensation for Goldsberry's representation.
Goldsberry reviewed the documents relevant to Reaves' representation of Wadhwa and researched the applicable law. She determined that Wadhwa likely would not prevail in his claims against Reeves and, on May 30, 2007, sent the following letter on the law firm's letterhead:
I have concluded my initial investigation of your claim and I must inform you that we will not be able to proceed with the case. For a court to hear any claim against Mr. Reaves you must show that you would have been exonerated on direct appeal or other post-conviction relief. Peeler v. Hughes & Luce, 909 S.W.2d 494 at 497-98 (Tex. 1995). The reasoning being is the law assumes that your conviction was the cause for the federal court to deny your writ of habeas corpus and not any misrepresentations made by Mr. Reaves about his ability to practice law in federal court.Wadhwa proceeded to timely file his claims against Reaves pro se, and at the time this appeal was filed, those claims were still pending. However, he sent another letter to Goldsberry regarding his suit against Reaves, asking her to reconsider her decision not to represent him.
If I were to take your case I would have to assert, under threat of sanctions, that your claims are grounded in law or fact. See Tex. R. Civ. P. 13. Unfortunately, I cannot make such a claim given that the federal court did indeed consider your habeas writ and denied your relief. As you know, you are not barred from bringing a new writ of habeas corpus at any time and so you have suffered no damages as a result of Mr. Reaves misrepresentations. Per the firm's contract under section IX, I have completed my investigation of your claims and have determined that the claims have no merit under the law. Therefore, I am terminating our contract and will not be filing the petition.
Your statute of limitations will run in June 2007. It is imperative that should you intend to file the matter yourself, you do so before the running of the statute of limitations.
Section IX of the contingent fee agreement provided:
CLIENT is hereby specifically notified that ATTORNEY will investigate this matter to determine if a viable case exists. ATTORNEY will investigate the facts and the current state of the law and advise CLIENT further. If after a review of the investigation it is deemed in ATTORNEY's sole judgment that ATTORNEY does not desire to handle the case, upon written notice to CLIENT of ATTORNEY's intention to withdraw, ATTORNEY will not be responsible further to CLIENT in this matter. Should that occur, at that time CLIENT will be free to choose other counsel. Should that occur, ATTORNEY will hold a lien to the extent of the actual expenses incurred and will otherwise relinquish all interest for Attorney's fees back to CLIENT. . . .
On December 7, 2007, the law firm applied to amend its registration as a limited liability partnership by changing its name to "Laird Valdez, L.L.P." and changing the number of partners from six to four. Goldsberry remained a partner of the law firm at this time.
On December 12, 2007, Linda Woodard, a legal assistant at the law firm, sent Wadhwa a letter stating, "We have received your letters. However, I regret to inform you that due to our current case load, we will not be able to assist you." This letter was sent on letterhead listing the law firm's former name.
On April 15, 2008, the law firm applied to renew its registration as a limited liability partnership, again listing the name of the firm as Laird Valdez, L.L.P. and stating that the firm had four partners. The application was signed by Goldsberry as the general partner.
The law firm subsequently maintained its status a limited liability partnership by filing regular applications for renewal, although Goldsberry quit practicing with the law firm in 2008.
On May 26, 2009, Wadhwa filed suit against Goldsberry, alleging causes of action for violation of the DTPA by misrepresentation, breach of express warranties, intentional infliction of emotional distress, and negligence relating to the professional services she rendered in connection with his suit against Reaves. He stated that he "relied on the [misrepresentations in Goldsberry's May 30, 2007 letter] to [his] detriment and proceeded with the case in Pro Se fashion." He further alleged that, "[h]ad it not been for the above referenced misrepresentations, I would not have proceeded in a Pro Se fashion. I would have looked for a different attorney." He also argued that Goldsberry falsely claimed to be a partner in a limited liability partnership.
On October 15, 2009, Wadhwa moved for partial summary judgment on his negligence claim against Goldsberry. Goldsberry responded to this motion by arguing that all of Wadhwa's claims were actually claims for legal malpractice and that he failed to conclusively establish each element of his claim.
Wadhwa also filed multiple sets of requests for admissions. Due to a clerical error of Goldsberry's counsel, Goldsberry failed to timely respond to Wadhwa's second set of requests for admissions. Goldsberry's counsel moved to withdraw the deemed admissions and filed complete responses and objections to Wadhwa's second set of requests for admissions forty-five days after the response was originally due, which was several months before the close of the discovery period. The trial court granted Goldsberry's motion to withdraw the deemed admissions. Wadhwa also filed a motion to determine the sufficiency of Goldsberry's responses to all of his requests for admissions, which was denied by the trial court.
Wadhwa's second set of requests for admissions sought answers regarding the business form of the law firm, including whether it had filed an initial application for registration with the Secretary of State, whether it had filed various renewal applications, and whether it was a limited liability partnership or a general partnership. It also sought various admissions about Goldsberry's and the law firm's investigation into Wadhwa's claims.
Goldsberry moved for traditional and no-evidence summary judgment on all of Wadhwa's claims. She argued that she was "entitled to a take-nothing summary judgment" because (1) she "did not make any representations to Wadhwa that could be the basis of any of Wadhwa's purported claims against Goldsberry"; (2) she "caused no injury to Wadhwa"; (3) "Wadhwa failed to come forward with expert testimony to establish his negligence claims"; (4) Wadhwa's causes of action were "impermissibly fractured legal malpractice claims"; (5) her statements "were made during her provision of legal services based on her advice, skill, and judgment" and (6) "no evidence exists as to one or more of the elements of each of Wadhwa's purported causes of action."
Wadhwa subsequently moved for partial summary judgment on his negligence and DTPA claims against Goldsberry, and he included his own affidavit and that of his wife as summary judgment evidence. Goldsberry responded to this motion and objected to significant portions of Wadhwa's summary judgment evidence. Goldsberry objected to Sarita Wadhwa's affidavit on the basis that "the statements contained therein are conclusory, speculative, not based on personal knowledge, are based on hearsay, and lack the proper foundation because Mrs. Wadhwa did not hire or communicate firsthand with Goldsberry." Goldsberry also objected to large portions of Ramesh Wadhwa's affidavit on similar grounds and to other exhibits attached to the motion for summary judgment.
The trial court denied Wadhwa's motion for partial summary judgment on negligence and his motion for summary judgment under the DTPA.
Wadhwa then responded to Goldsberry's motion for summary judgment and requested that the trial court take judicial notice of facts regarding Reaves' representation of Wadhwa in the habeas proceedings. Wadhwa also moved to strike several of Goldsberry's summary judgment exhibits relating to Reaves' representation of Wadhwa and the habeas proceedings. The trial court denied Wadhwa's motion to strike and sustained Goldsberry's objections to Wadhwa's summary judgment evidence.
On August 4, 2010, the trial court granted Goldsberry's motion for summary judgment in its entirety and ordered that Wadhwa take nothing from Goldsberry and that all costs be taxed against Wadhwa. Wadhwa filed a motion for new trial and another motion to take judicial notice of his previous motion to take judicial notice. The trial court denied both motions.
Summary Judgments
In his fifth, sixth, and eighth points of error, Wadhwa argues that the trial court erred in denying his own motions for summary judgment on the issues of DTPA violations and negligence and in granting Goldsberry's summary judgment on all of his claims.
A. Standard of Review
We review the trial court's summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). When a party moves for both a traditional and a no-evidence summary judgment, we first review the trial court's summary judgment under the no-evidence standard of Texas Rule of Civil Procedure 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the no-evidence summary judgment was properly granted, we do not reach arguments under the traditional motion for summary judgment. Id.
To prevail on a no-evidence motion for summary judgment, the movant must establish that there is no evidence to support an essential element of the non-movant's claim. TEX. R. CIV. P. 166a(i); see Flameout Design & Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The burden then shifts to the non-movant to present evidence raising a genuine issue of material fact as to the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006). "The trial court must grant the motion unless the nonmovant produces more than a scintilla of evidence raising a genuine issue of material fact on the challenged elements." Flameout Design & Fabrication, 994 S.W.2d at 834.
To prevail on a traditional summary judgment motion, the movant has the burden of proving that it is entitled to judgment as a matter of law and that there are no genuine issues of material fact. TEX. R. CIV. P. 166a(c); Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). When, as here, the trial court's summary judgment order does not state the basis for the trial court's decision, we must uphold the order if any of the theories advanced in the motion are meritorious. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
When both parties move for summary judgment on the same issue, and the trial court grants one motion and denies the other, we consider the summary judgment evidence presented by both sides and determine all questions presented. Dorsett, 164 S.W.3d at 661. If we determine that the trial court erred, we render the judgment that the trial court should have rendered. Id.
B. Goldsberry's Summary Judgment Motion
In his eighth point of error, Wadhwa argues that the trial court erred in granting Goldsberry's motion for summary judgment disposing of all of his claims. He argues, in part, that Goldsberry's motion did not address all of his causes of action. Goldsberry argues that Wadhwa's causes of action were "impermissibly fractured legal malpractice claims" and that he was not entitled to recover for legal malpractice. Thus, we first address the nature of Wadhwa's claims and determine whether Goldsberry's motion for summary judgment addressed all of Wadhwa's causes of action.
1. Nature of Wadhwa's Claims
Legal malpractice is not the only cause of action under which a client can recover from his attorney. Goffney v. Rabson, 56 S.W.3d 186, 190 (Tex. App.— Houston [14th Dist.] 2001, pet. denied). For example, claims other than legal malpractice may be allowed "[w]hen the facts of a case support claims against a lawyer for something other than professional negligence." Murphy v. Gruber, 241 S.W.3d 689, 695 (Tex. App.—Dallas 2007, pet. denied).
However, plaintiffs may not "divide or fracture" legal malpractice claims into additional causes of action. Goffney, 56 S.W.3d at 190. "Generally, courts do not allow a case arising out of an attorney's alleged bad legal advice or improper representation to be split out into separate claims for negligence, breach of contract, or fraud, because the 'real issue remains one of whether the professional exercised that degree of care, skill, and diligence that professionals of ordinary skill and knowledge commonly possess and exercise.'" Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 924 (Tex. App.—Fort Worth 2002, pet. denied) (quoting Averitt v. PriceWaterhouseCoopers L.L.P., 89 S.W.3d 330, 333 (Tex. App.—Fort Worth 2002, no pet.)). Regardless of the theories a plaintiff pleads, the claim is one for legal malpractice when "the crux of the complaint is that the plaintiff's attorney did not provide adequate legal representation." Id.
(a) DTPA Claims
Wadhwa alleged violation of the DTPA by misrepresentation. Wadhwa specifically alleged that Goldsberry misrepresented to him that his claims were not meritorious and that she "claimed falsely 'LLP' when in fact she was not." He claims that her false representations about his case "induced [him] to assume a risk [he] would not have taken had the truth been known. [He] would have looked for a different attorney." He further alleges that her actions were unconscionable.
Regarding claims against professionals, the DTPA provides:
(c) Nothing in this subchapter shall apply to a claim for damages based on the rendering of a professional service, the essence of which is the providing of advice, judgment, opinion, or similar professional skill. This exemption does not apply to:TEX. BUS. & COM. CODE ANN. § 17.49(c) (Vernon 2011).(1) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion;
(2) a failure to disclose information in violation of Section
17.46(b)(24);
(3) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion;
(4) breach of an express warranty that cannot be characterized as advice, judgment, or opinion; or(5) a violation of Section 17.46(b)(26).
Thus, to the extent that Wadhwa is alleging that Goldsberry's statements in her May 30, 2007 letter and other correspondence were misrepresentations of his potential case against Reaves based on her advice, judgment, or opinion, those claims cannot be brought under the DTPA and are properly characterized as legal malpractice claims. See id.; Kimleco Petroleum, Inc., 91 S.W.3d at 924. Furthermore, Wadhwa does not allege any actions that could be characterized as unconscionable or deceptive conduct for the purpose of creating a separate cause of action under the DTPA arising out of Goldsberry's opinions and advice regarding his potential claims against Reaves. See Latham v. Castillo, 972 S.W.2d 66, 68-69 (Tex. 1998) (distinguishing between negligent conduct and deceptive conduct in determining whether claims against attorney constituted legal malpractice claims or separate claim under DTPA).
However, Wadhwa's claim that Goldsberry misrepresented that she was practicing law as part of a limited liability partnership can be characterized as "an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion," and, thus, can be brought as a DTPA claim. See TEX. BUS. & COM. CODE ANN. § 17.49(c)(1); see Latham, 972 S.W.2d at 68.
Thus, Wadhwa's claims of DTPA violations are properly characterized as legal malpractice claims, except for his claim that Goldsberry misrepresented the nature of her law practice.
(b) Remaining Claims
Wadhwa's remaining claims for breach of an express warranty, intentional infliction of emotional distress, and negligence are all essentially claims that Goldsberry "did not provide adequate legal representation." See Kimleco Petroleum, Inc., 91 S.W.3d at 924.
He alleged that Goldsberry made a "warranty . . . for the recovery of Wadhwa's $14,000 (i.e. assistance in such matter)," that she breached the warranty by refusing her assistance, and that he was injured as a result. He also alleged that Goldsberry's acts in the course of her representation of him were "intentional and/or reckless and her conduct [was] extreme and outrageous" and caused him "severe emotional distress." Finally, Wadhwa alleged that Goldsberry's actions in advising him about his potential case against Reaves were negligent and that she "breached her duty by misinforming that my causes of action had no merit." He further alleged that but for this breach, he would not "have litigated pro se and would have hired a different attorney."
All of these claims are based on the professional legal services Goldsberry provided to Wadhwa in investigating his potential claims and declining to represent him, and the underlying question is whether she "exercised that degree of care, skill, and diligence that professionals of ordinary skill and knowledge commonly possess and exercise." See id. Thus, these claims are properly characterized as legal malpractice claims.
Therefore, we conclude that all of Wadhwa's claims can properly be characterized as legal malpractice claims, except for the separate claim that Goldsberry committed a deceptive act by "claiming falsely 'LLP' when in fact she was not." Goldsberry's motion for summary judgment addressed both of these claims. We next determine whether the trial court properly granted Goldsberry's summary judgment on these two claims.
2. Summary Judgment on Legal Malpractice Claims
To recover on a claim of legal malpractice, a plaintiff must prove (1) the attorney owed the plaintiff a duty; (2) the attorney breached that duty; (3) the breach proximately caused the plaintiff's injuries; and (4) damages occurred. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004); Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995). An attorney owes a duty of care only to his or her client, not to third parties who may have been damaged by the attorney's negligent representation of the client. Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex. 1996).
The attorney-client relationship may be expressly created through a contract, or it may be implied from the actions of the parties. Bright v. Addison, 171 S.W.3d 588, 596 (Tex. App.—Dallas 2005, pet. denied); Honeycutt v. Billingsley, 992 S.W.2d 570, 581 (Tex. App.—Houston [1st Dist.] 1999, pet. denied). To establish an attorney-client relationship, the parties must explicitly or by their conduct manifest an intention to create it. Roberts v. Healey, 991 S.W.2d 873, 880 (Tex. App.—Houston [14th Dist.] 1999, pet. denied).
Here, the contingency fee contract signed and initialed by Wadhwa clearly stated that the contract was subject to Goldsberry's investigation of "the facts and the current state of the law." It stated, "If after a review of the investigation it is deemed in [Goldsberry's] sole judgment that [Goldsberry] does not desire to handle the case, upon written notice to [Wadhwa] of [Goldsberry's] intention to withdraw, [Goldsberry] will not be responsible further to [Wadhwa] in this matter." It is undisputed that Goldsberry completed this investigation and informed Wadhwa in a timely manner, in writing, of her intention not to represent him. It is undisputed that Goldsberry never collected any money from Wadhwa or undertook any legal work for Wadhwa beyond investigating his potential claims against Reaves.
Thus, Goldsberry declined to accept Wadhwa's case and no attorney-client relationship existed between Goldsberry and Wadhwa once she notified him of this fact in writing. Wadhwa cannot show that Goldsberry owed him any duty regarding his potential claims against Reaves.See Alexander, 146 S.W.3d at 117; Bright, 171 S.W.3d at 596; see also Flameout Design & Fabrication, 994 S.W.2d at 834 (stating that trial court must grant summary judgment unless nonmovant produces more than scintilla of evidence raising genuine issue of material fact).
An attorney may be held negligent for failing to advise a party that he is not representing the party. Burnap v. Linnartz, 914 S.W.2d 142, 148 (Tex. App.—San Antonio 1995, writ denied) (citing Kotzur v. Kelly, 791 S.W.2d 254, 258 (Tex. App.—Corpus Christi 1990, no writ) and Parker v. Carnahan, 772 S.W.2d 151, 157 (Tex. App.—Texarkana 1989, writ denied)). However, such negligence generally cannot be established in the absence of evidence that the attorney knew the party had assumed that the attorney was representing him in the matter. Id. at 148-49. It is undisputed that Goldsberry discharged her duty to inform Wadhwa that she would not represent him, and he affirmatively demonstrated that he understood that she was not representing him by sending her a letter asking her to reconsider that decision and by filing his case against Reaves pro se.
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Furthermore, there was no evidence of any attorney-client relationship between Sarita Wadhwa and Goldsberry. Thus, Sarita likewise cannot show that Goldsberry owed her any duty. See Barcelo, 923 S.W.2d at 577 (stating that attorney owes duty of care only to his or her client, not to third parties who may have been damaged by attorney's negligent representation of client).
The trial court properly granted summary judgment in favor of Goldsberry and the law firm on Wadhwa's legal malpractice claims.
3. Summary Judgment on DTPA Claim
To prevail on a DTPA claim, a plaintiff must prove that the defendant's misrepresentation was the producing cause of the plaintiff's injuries. TEX. BUS. & COM. CODE ANN. § 17.50(a) (Vernon 2011); Alexander, 146 S.W.3d at 117. Here, Wadhwa alleges that Goldsberry misrepresented that she was practicing law as a member of a limited liability partnership. However, he presented no evidence to support this allegation. Goldsberry provided evidence that, at all times relevant to this suit, she was a partner in the law firm and the firm was registered as a limited liability partnership, both before and after the firm amended its name. Thus, Wadhwa has failed to produce more than a scintilla of evidence on his claim that Goldsberry misrepresented the business form of her law practice, and the trial court properly granted summary judgment in favor of Goldsberry on this claim. See TEX. BUS. & COM. CODE ANN. § 17.50(a); Alexander, 146 S.W.3d at 117; Flameout Design & Fabrication, 994 S.W.2d at 834.
We overrule Wadhwa's eighth point of error.
C. Wadwha's Summary Judgment Motions
In his fifth and sixth points of error, Wadhwa argues that the trial court erred in denying his own motions for summary judgment on the issues of DTPA violations and negligence. Because we have already determined that the trial court properly granted summary judgment in favor of Goldsberry, we do not need to address these issues. See Dorsett, 164 S.W.3d at 661 (holding that when both parties move for summary judgment on same issue, and trial court grants one motion and denies other, we consider summary judgment evidence presented by both sides and determine all questions presented).
We overrule Wadhwa's fifth and sixth points of errors.
Remaining Evidentiary and Discovery Issues
In his first, second, third, fourth, and seventh points of error, Wadhwa argues that the trial court erred in denying his motion to take judicial notice, his motion to determine the sufficiency of Goldsberry's answers to certain requests for admissions, and his motion to strike Goldsberry's summary judgment evidence relating to Reaves' representation of Wadhwa. He also argues that the trial court erred in granting Goldsberry's motion to withdraw deemed admissions and her objections to portions of his summary judgment evidence. We have already determined that the trial court did not err in granting Goldsberry's motion for summary judgment. These remaining issues address evidence that is irrelevant to that determination, and, therefore, they are overruled.
We overrule Wadhwa's first, second, third, fourth, and seventh points of error.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Sharp.