Robert Daugherty v. George Preston

• Court: Court of Appeals of Texas
• Decided: September 22, 2003
• Docket: 06-03-00022-CV
• Status: Published

Opinion

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

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No. 06-03-00022-CV ______________________________

ROBERT DAUGHERTY, Appellant

V.

GEORGE PRESTON, Appellee

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On Appeal from the 62nd Judicial District Court Lamar County, Texas Trial Court No. 70161

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Before Morriss, C.J., Ross and Carter, JJ. Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

Robert Daugherty sued his ex-wife's divorce attorney for legal malpractice, claiming he wrote the divorce decree to award property to his ex-wife that the judge had said at the hearing was to be preserved for Daugherty. Daugherty is presently in jail and is acting pro se. George Preston, the wife's retained counsel, appeared at what was effectively an uncontested hearing for divorce, and drafted the divorce decree. Daugherty is not appealing from the divorce decree, but from a summary judgment in favor of Preston in the malpractice lawsuit.

To prevail on a motion for summary judgment, a movant must establish that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c). The initial question in this case is whether Preston showed he was entitled to judgment because Daugherty could have no cause of action against him on the facts as pled. There are no facts at issue: Daugherty relies on the record from the underlying divorce proceeding and the judgment to show allegedly wrongful actions by Preston.

The question is whether Daugherty, who was not Preston's client, has a viable cause of action against him. The answer is he does not. Although this Court has recognized that, in certain restricted circumstances, an attorney may become subject to a negligent misrepresentation claim or a claim of fraud, ⁽¹⁾ the general rule is that a nonclient cannot sue a lawyer for malpractice, because the attorney owes the duty of care to his or her client, not to third parties who may have been damaged by any negligent representation of that client. Poth v. Small, Craig & Werkenthin, 967 S.W.2d 511 (Tex. App.-Austin 1998, pet. denied); Renfroe v. Jones & Assocs., 947 S.W.2d 285, 287 (Tex. App.-Fort Worth 1997, writ denied). Further, if an attorney's conduct violates his or her professional responsibility, the remedy is public, not private. Renfroe, 947 S.W.2d at 287.

Under this state of the record, we conclude Preston has shown himself entitled to judgment as a matter of law.

We affirm the summary judgment in favor of Preston.

Josh R. Morriss, III

Chief Justice

Date Submitted: September 19, 2003

Date Decided: September 22, 2003

1. Lesikar v. Rappeport, 33 S.W.3d 282 (Tex. App.-Texarkana 2000, pet. denied); F.E. Appling Interests v. McCamish, Martin, Brown & Loeffler, 953 S.W.2d 405 (Tex. App.-Texarkana 1997), aff'd, 991 S.W.2d 787 (Tex. 1999).

ggravated sexual assault on M.M. and sentenced to forty years' imprisonment (concurrent). In cause number 06-07-00005-CR, he was convicted of aggravated sexual assault on M.M. and sentenced to forty years' imprisonment (concurrent). In cause number 06-07-00006-CR, he was convicted for indecency with a child with J.H. and sentenced to twenty years' imprisonment (concurrent). In cause number 06-07-00007-CR, he was convicted of indecency with a child with J.H. and sentenced to twenty years' imprisonment (concurrent). In cause number 06-07-00008-CR, he was convicted of one count of indecency with a child with J.H. and sentenced to twenty years' imprisonment (concurrent), and one count of aggravated sexual assault on a child with J.H. and sentenced to forty years' imprisonment (consecutive to 0618762 (06-07-00004-CR)). In cause number 06-07-00009-CR, Mick was convicted of one count of aggravated sexual assault on J.H. and sentenced to forty years' imprisonment (concurrent), and one count of indecency with a child with J.H. and sentenced to twenty years' imprisonment (concurrent). In each conviction, the jury also assessed a $10,000.00 fine.

2. Mick does not present a Confrontation Clause issue--M.M. testified at the trial.