Myrtis Alexander v. Louise Benjamin Malek

• Court: Court of Appeals of Texas
• Decided: March 6, 2008
• Docket: 01-06-01156-CV
• Status: Published

Opinion

Opinion Issued March 6, 2008

Opinion Issued March 6, 2008

In The

Court of Appeals

For The

First District of Texas

NO. 01-06-01156-CV

MYRTIS ALEXANDER, Appellant

V.

LOUISE BENJAMIN MALEK, Appellee

On Appeal from County Civil Court No. 2

Harris County, Texas

Trial Court Cause No. 867829

MEMORANDUM OPINION

          Myrtis Alexander appeals a summary judgment in favor of Louise Malek, the opposing counsel in an underlying personal injury suit, for misrepresentation.  We affirm.

Background

          Alexander was involved in a motor vehicle accident with Yinsuo Zhao in 2001, and subsequently sued him and his insurance company for personal injuries.  Alexander represented herself pro se; Malek represented Zhao, the defendant in the underlying case.  The trial court originally set the case for the week of September 27, 2004, with a pre-trial conference scheduled for September 24.  At the pre-trial conference, the trial court told the parties that it was available for a bench trial that week, but not a jury trial.  Alexander requested a continuance until October 11, which the trial court granted.  Alexander and Malek met outside the courtroom to discuss waiving a jury trial.  Alexander alleges that Malek persuaded her to agree to waive her right to a jury trial by assuring her that if she was not satisfied with the trial court’s decision, she could return on October 11 for a jury trial.  Alexander also alleges that Malek told her that if Alexander changed her mind over the weekend, she could call Malek, and they would wait until October 11 to try the case.  Malek denies misleading Alexander.  The parties returned to the courtroom, and Alexander informed the judge that she agreed to waive a jury trial.

On the day of the bench trial, Alexander stated that she was not prepared to present her case.  Alexander contends that she left messages for Malek and the court administrator, informing them that she had changed her mind and wished to wait until October 11 to present her case.  The trial court, however, required Alexander to abide by her agreement to have a bench trial that day, and found in favor of Malek’s client. 

Alexander then brought this suit against Malek, alleging that Malek had made negligent and fraudulent misrepresentations to her and had submitted false evidence to the court, namely a photograph, which caused Alexander to lose her personal injury suit. Alexander asserts that she would have been prepared for trial but for Malek’s misrepresentations.  The trial court granted summary judgment in favor of Malek.

Discussion

Standard of Review

Malek moved for summary judgment against Alexander under both traditional and no-evidence grounds.  See Tex. R. Civ. P. 166a(c), (i).  The traditional standard for summary judgment requires a movant to show that no genuine issue of material fact exists and that the trial court should grant judgment as a matter of law.  Tex. R. Civ. P. 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).  We view all evidence in a light favorable to the nonmovant and indulge every reasonable inference in the nonmovant’s favor.  Provident Life & Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003).  When a defendant moves for summary judgment, it must either: (1) disprove at least one element of the plaintiff’s cause of action; or (2) plead and conclusively establish each essential element of its affirmative defense, thereby rebutting the plaintiff’s cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Farah v. Mafrige & Kormanik P.C., 927 S.W.2d 663, 670 (Tex. App.—Houston [1st Dist.] 1996, no writ).  We review a no-evidence summary judgment de novo by construing the record in the light most favorable to the nonmovant and disregarding all contrary evidence and inferences.  Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).  A nonmovant meets its burden and defeats a no-evidence motion by bringing forth more than a scintilla of probative evidence that raises a genuine issue of material fact.  See Tex. R. Civ. P. 166a(i); Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., 29 S.W.3d 282, 284 (Tex. App.—Houston [14th Dist.] 2000, no pet.).  When, as here, the trial court’s order does not specify the grounds for granting summary judgment, we affirm if any of the grounds raised by the movant is meritorious.  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872 (Tex. 2000); Oliphint v. Richards, 167 S.W.3d 513, 516 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).

Negligent or Fraudulent Misrepresentation

Alexander contends that Malek negligently or fraudulently misrepresented material facts concerning their upcoming trial, which caused Alexander to lose her case.  In support of her fraud claim, Alexander also asserts that Malek introduced false evidence when she submitted photographs that depicted Alexander’s vehicle from an accident other than the one for which Alexander filed suit.

To prevail on a cause of action for negligent misrepresentation, Alexander must prove that: (1) the representation was made by Malek in the course of her business or in a transaction in which she had a pecuniary interest; (2) Malek supplied “false information” for the guidance of others in their business; (3) Malek did not exercise reasonable care or competence in obtaining or communicating the information; and (4) Alexander suffered pecuniary loss by justifiably relying on the representation.  See Federal Land Bank Ass’n of Tyler v. Sloane, 825 S.W.2d 439, 442 (Tex. 1991) (citing Restatement (Second) of Torts § 552).  Reliance must be reasonable to be justified.  American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 436 (Tex. 1997). 

To prevail on a cause of action for fraud, a party must offer proof of “a material misrepresentation, which was false, and which was either known to be false when made or was asserted without knowledge of its truth, which was intended to be acted upon, which was relied upon, and which caused injury.” Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 225 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (quoting Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 47 (Tex. 1998)).  As in a negligent misrepresentation case, a party asserting a cause of action for fraud must prove that it “actually and justifiably relied” on the alleged misrepresentation and thereby suffered injury.  Butler, 137 S.W.3d at 225 (citing Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 577 (Tex. 2001)).

Here, Alexander fails to raise a fact issue as to the element of reliance.  Malek had no attorney-client relationship with Alexander.  Quite the opposite, they were adversaries in the underlying suit.  An attorney can be liable to a non-party for misrepresentations, despite an absence of privity, but only in limited circumstances.   McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 792–93 (Tex. 1999).  To determine whether a non-client justifiably relied on a material fact, one “must consider the nature of the relationship between the attorney, client, and non-client.”  Id. at 794; see Kastner v. Jenkens & Gilchrist, P.C., 231 S.W.3d 571, 578 (Tex. App.—Dallas 2007, no pet.) (“A non-client cannot rely on an attorney’s representations unless the attorney invites that reliance.”).   Reliance is generally not justified when the representation takes place in an adversarial context.  Id.  Thus, an attorney’s conduct is not independently actionable by an opposing party to the suit if the conduct is part of the discharge of the lawyer’s duties in representing his or her client.  Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398, 405–06 (Tex. App.—Houston [1st Dist.] 2005, pet. denied); Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 441 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).  An attorney is not, however, shielded from liability when his actions constitute a fraudulent act outside the scope of his client’s legal representation.  Alpert, 178 S.W.3d at 406.

Here, Malek and Alexander agree that the alleged misrepresentation took place in an adversarial setting.  Alexander asserts, however, that we should not apply the general rule that reliance is not justified in an adversarial setting, because unlike in McCamish and Chapman, she represented herself pro se.  Because of this, Alexander contends, she was more likely to rely on opposing counsel’s statements than the plaintiffs in those cases.  Pro se litigants, however, are held to the same standard as licensed attorneys.  Kanow v. Brownshadel, 691 S.W.2d 804, 806 (Tex. App.—Houston (1st Dist.) 1985, no writ); Hope’s Fin. Mgmt v. Chase Manhattan Mortg. Corp., 172 S.W.3d 105, 107 (Tex. App.—Dallas 2005, pet. denied).  Alexander did not avail herself of the opportunity to discuss the ramifications of waiving her right to a jury trial with the trial court.  Even assuming that Alexander’s allegations are true and Malek invited reliance, Alexander affirmed before the trial court her agreement to a bench trial without verifying whether Malek had told her the truth.  Such reliance on opposing counsel’s statements is not justifiable or reasonable.  See Atlantic Lloyds Ins. Co. v. Butler, 137 S.W.3d 199, 226 (Tex. App.—Houston [1st Dist.] 2004, pet. denied) (reliance is not reasonable when based on opponent’s obvious lie or misrepresentation that, with reasonable diligence, could easily have been refuted). 

Alexander’s false evidence claim does not lend support to a finding of fraudulent misrepresentation, because Alexander’s reliance on the photograph is also unjustified.  The photograph depicted Alexander’s own vehicle; therefore, Alexander would have been in a better position than opposing counsel to know if the photograph was actually from the wrong accident.  In addition, Alexander did not present any evidence that the photograph was false or that Malek knew it was false and intended Alexander to rely on it.  We therefore hold that the summary judgment evidence did not raise a material fact question as to whether Alexander justifiably or reasonably relied upon any alleged misrepresentation made by Malek.  Accordingly, the trial court properly granted summary judgment in favor of Malek.

Conclusion

          We affirm the judgment of the trial court.

                                                          Jane Bland

                                                          Justice

Panel consists of Chief Justice Radack and Justices Jennings and Bland.