Roger K. Parsons, Individually and as Independent Administrator for the Estate of Esther Ann Kartsotis Parsons v. Michael Kevin Queenan and the Queenan Law Firm

• Court: Court of Appeals of Texas
• Decided: January 23, 2017
• Docket: 05-15-01375-CV
• Status: Published

Opinion

Affirmed and Opinion Filed January 23, 2017

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-15-01375-CV

ROGER K. PARSONS, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR FOR THE ESTATE OF ESTHER ANN KARTSOTIS PARSONS, Appellant V. MICHAEL KEVIN QUEENAN AND THE QUEENAN LAW FIRM, Appellees

On Appeal from the 160th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-15-00971

MEMORANDUM OPINION Before Justices Francis, Fillmore, and Stoddart Opinion by Justice Francis Roger K. Parsons, individually and as independent administrator for the estate of his

wife, Esther Ann Kartsotis Parsons, appeals the trial court’s summary judgment disposing of his

negligence, breach of fiduciary duty, and fraud claims against appellees Michael Kevin Queenan

and the Queenan Law Firm. In two issues, Parsons contends the trial court erred by granting

Queenan’s summary judgment on anti-fracturing and statute of limitations grounds. We affirm.

This is the third malpractice lawsuit brought by Parsons against lawyers who have

represented him since the death of his wife in a plane crash more than two decades ago. In 1991,

Parsons retained Windle Turley and Windle Turley, P.C. to represent him in wrongful death and

survival actions in connection with his wife’s death. A federal jury awarded Parsons $4.75

million in actual damages and also made predicate gross negligence findings, but the judge set aside the gross negligence findings on legal sufficiency grounds. See Parsons v. E.I. Du Pont De

Nemours, 91 F.3d 139 (5th Cir. 1996) (per curiam) (not designated for publication). Parsons

appealed to the Fifth Circuit Court of Appeals, which affirmed the decision. Id.

More than two years later, Parsons retained attorneys Robert Greenberg and Robert

Motsenbocker to sue Turley for legal malpractice, alleging among other things that Turley had

negligently failed to use and discover evidence of the pilot’s alcohol problem. See Parsons v.

Turley, 109 S.W.3d 804, 808 (Tex. App.—Dallas 2003, pet. denied). Turley moved for

summary judgment on the ground he was not served with citation prior to the time the statute of

limitations expired. The trial court granted summary judgment for Turley, and this Court

affirmed the summary judgment. Id. at 808–10.

Parsons then sued Greenberg and Motsenbocker for malpractice for their representation

in the Turley litigation. In addition to disgorgement of fees, Parsons sought as actual damages

the “lost punitive damages” from the underlying wrongful death suit. One year into the suit,

Parsons’s attorneys withdrew and Parsons hired Queenan to replace them. Queenan represented

Parsons for about twenty months. During that time, the trial court granted a partial summary

judgment on lost punitive damages and, according to Parsons, later “expanded the effect” of that

ruling to limit him to a refund of fees. Shortly after, Parsons wanted to add the law firm Baron &

Budd and the estate of Fred Baron as defendants in the suit because Baron had recommended

Greenberg to Parsons. On December 22, 2008, Parsons, acting pro se, filed an amended petition

adding the Baron defendants. Seven weeks later, the trial court granted Queenan’s motion to

withdraw as Parsons’s attorney. The order recites that Parsons agreed to Queenan’s withdrawal

from the lawsuit.

Once Queenan withdrew, Parsons was unable to find new counsel and represented

himself. The trial was held about eight months later. Parsons obtained a negligence finding

–2– against Greenberg, but the jury did not award any damages. Parsons appealed, and the Fort

Worth Court of Appeals affirmed the judgment. Parsons v. Greenberg, No. 02-10-00131-CV,

2012 WL 310505, at *1 (Tex. App.—Fort Worth Feb. 2, 2012, pet. denied) (mem. op.). Parsons

appealed to the Texas Supreme Court, which denied his petition for review on October 19, 2012

and denied his motion for rehearing on December 7, 2012.

After Parsons’s appeal in the Greenberg suit became final, Parsons filed a Texas Rule of

Civil Procedure 202 petition seeking Queenan’s deposition and certain categories of documents

from Queenan. The trial court denied Parsons’s request, and fourteen months later, on January

27, 2015, he filed this suit against Queenan. The petition alleged claims for fraud, breach of

fiduciary duty, professional negligence, gross negligence, and violations of the Deceptive Trade

Practices Act. In addition, the petition alleged the statute of limitations was tolled until the final

appeal in the Greenberg case.

After filing an answer to the lawsuit, Queenan moved for traditional summary judgment

on two grounds. First, Queenan argued the legal malpractice suit is time-barred because under

the Hughes1 tolling doctrine, the two-year statute of limitations was tolled until December 7,

2012, the date the supreme court denied Parsons’s motion for rehearing in the Greenberg lawsuit,

and Parsons did not file this suit until more than two years later, on January 27, 2015. Second,

Queenan argued the fraud, breach of fiduciary duty, and DTPA claims were impermissible

attempts to “fracture” his legal malpractice claim. Alternatively, he argued that even if these

claims are not fractured malpractice claims, they are nevertheless time-barred.

In response, Parsons argued his negligence claim was timely filed within two years of the

issuance of the mandate, which he contended was the proper date for tolling purposes. Further,

he asserted that even if the negligence claim is time-barred, his fraud and breach of fiduciary

1 Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1992).

–3– duty claims are governed by a four-year statute of limitations and are not time-barred once the

tolling doctrine is applied. Finally, he argued his fraud and breach of fiduciary duty claims were

not fractured malpractice claims and withdrew his DTPA claim.

The trial court granted Queenan’s motion for summary judgment and dismissed all of

Parsons’s claims with prejudice. Parsons filed a motion for new trial, which was overruled by

operation of law. This appeal followed.

In his first issue, Parsons contends the trial court erred by granting summary judgment on

his fraud and breach of fiduciary duty claims based on the anti-fracturing rule.

The anti-fracturing rule prevents plaintiffs from converting what are actually professional

negligence claims against an attorney into other claims such as fraud, breach of contract, breach

of fiduciary duty, or DTPA violations. Won Pak v. Harris, 313 S.W.3d 454, 457 (Tex. App.—

Dallas 2010, pet. denied). The rule prevents legal malpractice plaintiffs from “opportunistically

transforming a claim that sounds only in negligence into other claims” to avail themselves of

longer limitations periods, less onerous proof requirements, or other tactical advantages. Beck v.

Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 427 (Tex. App.—Austin 2009,

no pet.).

For the anti-fracturing rule to apply, however, the gravamen of Parsons’s complaints

must focus on the quality or adequacy of the attorney’s representation. See Won Pak, 313

S.W.3d at 457. In other words, if the gist of a client’s complaint is that the attorney did not

exercise that degree of care, skill, or diligence as attorneys of ordinary skill and knowledge

commonly possess, then that complaint should be pursued as a negligence claim rather than

some other claim. Futch v. Baker Botts, LLP, 435 S.W.3d 383, 387 (Tex. App.—Houston [14th

Dist.] 2014, no pet.). In contrast, claims of breach of fiduciary duty against an attorney focus on

whether the attorney obtained an improper benefit from representing the client and involve the

–4– integrity and fidelity of the attorney. Won Pak, 313 S.W.3d at 457. Merely characterizing

conduct as a “misrepresentation” or “conflict of interest” does not necessarily transform what is

really a professional negligence claim into a fraud or breach of fiduciary duty claim. Id.

Even if a complaint implicates a lawyer’s fiduciary duties, it does not necessarily follow

that such a complaint is actionable apart from a negligence claim. Won Pak, 313 S.W.3d at 458.

In fact, the standard of care in attorney negligence cases often refers to and is defined by the

characteristics inherent in the fiduciary duty between the lawyer and the client. Id. Breach of

fiduciary duty by an attorney most often involves the attorney’s failure to disclose conflicts of

interest, failure to deliver funds belonging to the client, placing personal interests over the

client’s interests, improper use of client confidences, taking advantage of the client’s trust,

engaging in self-dealing, and making misrepresentations. Goffney v. Rabson, 56 S.W.3d 186,

193 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). Whether certain allegations asserted

against an attorney and labeled as breach of fiduciary duty or fraud are actually claims for

professional negligence is a question of law to be determined by the court. Id.

Parsons argues he alleged a proper fraud claim based on the following allegations in his

original petition. Parsons claims that in conversations leading to Queenan’s hire, Queenan told

him he knew a judge who was friends with the presiding judge in the case and, through that

friendship, Queenan “would be able to learn what the presiding judge was thinking about

Parsons’s case.” He alleged the statement was false, that “[a]t no time, did Queenan’s

relationship with retired judges work to Parsons’s advantage,” and Queenan was “unethical” for

making the statement.

Additionally, he alleged Queenan stated he would develop Parsons’s fraud claim against

Greenberg and Motsenbocker by “deposing witnesses” relevant to those allegations, including

Greenberg and Motsenbocker. Parsons maintained this statement was also false. Further, he

–5– stated that when the insurer failed to send a representative to a noticed deposition, Queenan

dropped the matter and also “caved” when the defendants failed to provide documentation of

their previous insurance companies.

These allegations do not give rise to a separate fraud cause of action. The gist of the first

allegation is that Queenan contemplated, but did not successfully pursue, indirect ex parte

communication with the trial judge concerning the case. Although an attorney’s representation

of a client should never include improper ex parte communication with a trial judge, this

allegation focuses upon the quality or adequacy of the attorney’s representation. The second

statement simply alleges that Parsons failed to take some actions he argued were necessary to his

case. This second allegation is a complaint that Queenan did not exercise the degree of care or

skill that attorneys of ordinary skill and knowledge commonly possess. As such, these

allegations are negligence claims.

Following his cause of action for fraud, Parsons alleged in his petition that Queenan

owed him a fiduciary duty with regard to Queenan’s “billing practices” and the manner in which

he withdrew from the case and breached that duty. He sought damages and a forfeiture of a

portion of the expenses and fees collected by Queenan.

Beginning with the “billing” complaint, Parsons alleged Queenan billed him “about

$800,000 and did little work on the practical aspects” of his case. In his brief, he explains the

primary reason for Queenan’s hire was to recover “lost punitive damages,” and once the trial

court granted summary judgment on that issue, “the justification for Queenan’s exorbitant hourly

fee went with them.” He asserts Queenan owed a fiduciary duty to “advise him that he was

throwing good money after bad, or to develop other, potential avenues for obtaining relief,” but

instead Queenan “continued to milk Parsons for all he was worth without doing anything to try to

salvage his case.”

–6– We conclude the gist of this allegation concerns the quality of Queenan’s representation,

specifically, his failure to properly advise Parsons and to develop and pursue a better trial

strategy, which are claims of negligence. See Murphy v. Gruber, 241 S.W.3d 689, 698–99 (Tex.

App.—Dallas 2007, pet. denied). Although he complains the “justification” for Queenan’s

“exorbitant hourly fee” disappeared once summary judgment was granted on lost punitive

damages, Parsons does not allege he was billed for work never performed or that Queenan

charged a fee that exceeded the amount agreed upon. See id. at 699 (concluding allegation that

lawyers “chos[e] their own interest in obtaining a multimillion dollar fee” in case does not,

without more, allege type of dishonesty or intentional deception to support breach of fiduciary

duty claim).

Parsons also alleged Queenan breached his fiduciary duty in the manner of his

withdrawal from the case. He suggested a “cooperative effort” existed to force Queenan to

withdraw from his case, “by creating a personal interest for Queenan that conflicted with his

fiduciary duty to Parsons” and Queenan “bowed” to this effort. Specifically, Parsons alleged that

during Queenan’s representation of him, Queenan hired attorney William Cobb to defend

Queenan in an unrelated legal malpractice action. Parsons stated that suit was filed on January 8,

2008. Thirteen months later, Cobb appeared in Parsons’s malpractice lawsuit on behalf of

Baron and Budd after Parsons, acting pro se and while Queenan was still his counsel, amended

the petition to add the firm as a defendant. Five days later, the trial court signed an order

granting Queenan leave to withdraw. Parsons alleged Cobb came in before the hearing and

shook hands with Queenan, and the two “acted as though this was the first time they’d met.”

Further, Parsons asserted Cobb continued to represent Queenan in the malpractice action and

settled the case two weeks before Parsons “was forced to represent himself (pro se) against

Greenberg and Motsenbocker.” In his petition, Parsons alleged Queenan owed him a duty “not

–7– to let Cobb’s work as Queenan’s attorney affect Queenan, when Cobb appeared on the other side

in Parson’s case.” Rather, Parsons asserted Queenan should have fired Cobb rather than

“withdrawing and leaving Parsons pro se.”

While Parsons suggests Queenan put his own personal interest over Parsons’s interests,

he does not brief how Cobb’s representation of Queenan (in an unrelated matter) and Baron and

Budd (in the Greenberg malpractice action) created a conflict of interest for Queenan in his

representation of Parsons. And he did not allege Queenan pursued his own pecuniary interests or

otherwise obtained an improper benefit by withdrawing from the case or failing to disclose that

Cobb was his lawyer. Instead, the gist of Parsons’s complaint is that Queenan abandoned him

and he could not find another lawyer to represent him at trial eight months later. In fact,

Parsons’s petition specifically complained that Queenan “[f]ailed to represent Parsons’s interest

adequately and competently by withdrawing before Parsons could secure alternate

representation.”

We conclude this allegation challenges the degree of care Queenan owed to Parsons at

the time he decided to withdraw from the case as well as his duty to fully inform Parsons of the

circumstances of the withdrawal and any resulting consequences, which is more properly

characterized as a malpractice claim. See Goffney, 56 S.W.3d at 193–94 (claim that attorney

abandoned client at trial, failed to prepare adequately for trial, and misled client into believing

case was properly prepared for trial constituted claim for malpractice rather than breach of

fiduciary duty); West v. Hubble, No. 05-06-01683-CV, 2008 WL 2941854, at *2 (Tex. App.—

Dallas Aug. 1, 2008, pet. denied) (mem. op.) (claims that attorney, among other things,

abandoned client on eve of trial after failing to timely designate expert, withdrew from

representing client after client would not consent to increase in contingent fee percentage,” and

agreed with opposing counsel to modify settlement agreement (to client’s benefit) without

–8– client’s knowledge or consent after representation did not constitute breach of fiduciary duty but

were legal malpractice claims). Moreover, to the extent any conflict was created by Cobb’s

representation of Queenan and Baron and Budd, it was cured by Queenan’s withdrawal, which

the record undisputedly shows was agreed to by Parsons. It is not “the type of dishonesty or

intentional deception” that will support a breach of fiduciary duty claim. See Murphy, 241

S.W.3d at 699.

In summary, we conclude the allegations supporting Parsons’s claims for fraud and

breach of fiduciary duty sound in professional negligence because the essence of the allegations

focuses on the quality or adequacy of Queenan’s representation. Accordingly, the trial court did

not err in concluding these claims constituted impermissible “fractured” malpractice claims. We

overrule the first issue.

In his second issue, Parsons argues the trial court erred by granting summary judgment

on the basis that his legal malpractice claim was barred by the statute of limitations. He argues

the statute of limitations was tolled until the mandate issued on January 31, 2013, under the rule

established in Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991) and Apex Towing Co.

v. Tolin, 41 S.W.3d 118, 118–19 (Tex. 2001). Because he filed suit on January 27, 2015, he

argues it was not time-barred. In contrast, Queenan asserts the statute of limitations was tolled

until the supreme court denied Parsons’s motion for rehearing on December 7, 2012, and

Parsons’s suit was filed more than two years from that date, making it untimely.

The legal malpractice claims presented in this case are governed by the two-year statute

of limitations. See TEX. CIV. PRAC. & REM. CODE ANN. § 16.003(a) (West Supp. 2016); Willis v.

Maverick, 760 S.W.2d 642, 644 (Tex. 1988). Limitations generally begins to run when the cause

of action accrues, which means when facts have come into existence that authorize a claimant to

seek a judicial remedy. Apex, 41 S.W.3d at 120. In cases where the discovery rule applies,

–9– limitations does not begin to run until the client discovers or should have discovered through the

exercise of reasonable diligence the facts establishing the elements of a cause of action. Id.

In Hughes, the Texas Supreme Court established a tolling rule for the statute of

limitations in legal malpractice cases: “[W]hen an attorney commits malpractice in the

prosecution or defense of a claim that results in litigation, the statute of limitations on the

malpractice claim against the attorney is tolled until all appeals on the underlying claim are

exhausted.” Hughes, 821 S.W.2d at 157. The court held the tolling ended “when we overruled

the Hughes’s motion for rehearing because the last action of right that they could take and did

take on the underlying case was concluded on that date.” Id. at 158 n.6. In accordance with

Hughes, we likewise conclude limitations in this case was tolled until December 7, 2012, the

date the supreme court overruled Parsons’s motion for rehearing. Consequently, Parsons’s suit,

filed more than two years later, was time-barred.

In reaching this conclusion, we reject Parsons’s argument that the mandate should control

the date tolling ended because that date would be the “best, bright line” rule. He argues Apex

Towing crafted an “additional reference date”––when litigation is “otherwise finally concluded”–

– which supports using the date of the mandate in this case. We cannot agree. In Apex Towing,

the court applied the Hughes rule and determined the underlying case was not concluded until

the court of appeals dismissed Apex’s appeal, which was after the parties settled the case. Apex

Towing, 41 S.W.3d at 123. Nothing in the opinion suggests that limitations is tolled from the

date of the mandate. We overrule the second issue.

–10– We affirm the trial court’s order granting Queenan’s summary judgment and dismissing

Parsons’s claims.

/Molly Francis/ MOLLY FRANCIS JUSTICE

151375F.P05

–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

ROGER K. PARSONS, INDIVIDUALLY On Appeal from the 160th Judicial District AND AS INDEPENDENT Court, Dallas County, Texas ADMINISTRATOR FOR THE ESTATE Trial Court Cause No. DC-15-00971. OF ESTHER ANN KARTSOTIS Opinion delivered by Justice Francis; PARSONS, Appellant Justices Fillmore and Stoddart participating.

No. 05-15-01375-CV V.

MICHAEL KEVIN QUEENAN AND THE QUEENAN LAW FIRM, Appellees

In accordance with this Court’s opinion of this date, the trial court’s Order Granting Defendants’ Motion for Summary Judgment is AFFIRMED.

It is ORDERED that appellees MICHAEL KEVIN QUEENAN AND THE QUEENAN LAW FIRM recover their costs of this appeal from appellant ROGER K. PARSONS, INDIVIDUALLY AND AS INDEPENDENT ADMINISTRATOR FOR THE ESTATE OF ESTHER ANN KARTSOTIS PARSONS.

Judgment entered January 23, 2017.

–12–