Appeal from County Court at Law No. 3 Galveston County, Texas
Trial Court Case No. CV0072910
consists of Chief Justice Radack and Justices Brown and
MEMORANDUM OPINION 
Russell Lloyd Justice
Donald and Doris Young, appeal the trial court's order
granting summary judgment in favor of appellees, Dwayne R.
Day, P.C., and Dwayne R. Day (collectively "Day"),
on the Youngs' claims of professional negligence, breach
of contract, negligent misrepresentation, fraud, breach of
fiduciary duty, violations of the Deceptive Trade Practices
Act ("DTPA"), and declaratory relief. In two
issues, the Youngs contend that the trial court (1) erred in
granting summary judgment in favor of Day and (2) abused its
discretion in failing to rule on their discovery motions
prior to granting summary judgment. We affirm in part and
reverse and remand in part.
2009, Day represented the Youngs in a personal injury lawsuit
against Don Clapsaddle ("Clapsaddle lawsuit")
stemming from injuries Donald sustained after he was struck
by Clapsaddle's car while walking in a post office
parking lot in August 2007. Lawrence Tylka, the Youngs'
previous attorney, intervened in the Clapsaddle lawsuit
seeking to recover unpaid fees and expenses,  and Chris Di
Ferrante, a judgment creditor, filed a motion for turnover
order in the suit, seeking to collect on two previously
obtained judgments against the Youngs.
case proceeded to trial on September 7, 2010. The jury found
Donald solely responsible for the accident, and the trial
court rendered a take-nothing judgment against the Youngs on
February 1, 2011. The Fourteenth Court of Appeals affirmed.
See Young v. Clapsaddle, No. 14-11-00396-CV, 2012 WL
2160249 (Tex. App.-Houston [14th Dist.] June 14, 2012, no
pet.) (mem. op.).
October 8, 2014, the Youngs filed suit against Day, asserting
claims for legal malpractice and breach of contract arising
from the Clapsaddle lawsuit. On March 6, 2015, Day filed an
answer and special exceptions. On April 17, 2015, Day filed
an amended answer and special exceptions to which he attached
as an exhibit a document entitled "Power of Attorney and
Contingent Fee Contract" purportedly entered into by the
Youngs and Day.
21, 2015, the Youngs filed their first amended petition
alleging that Day had (1) failed to call certain witnesses at
trial; (2) allowed Clapsaddle to present his witnesses by
deposition rather than in person; and (3) insisted that the
Youngs settle the lawsuit for any amount. They also alleged
that he entered into an oral agreement to represent Donald in
a lawsuit against Clear Lake Rehabilitation Hospital
("CLRH") for an injury Donald allegedly sustained
while being treated for his accident-related injuries. They
assert that Day did not follow through on the alleged oral
contract and caused them to miss the deadline to sue the
hospital. They further alleged that Day falsely advised them
that they had to go to trial because there was no settlement
offer. In April 2015, Day produced two pdf files which appear
to be a contingency fee contract executed by the parties and
a refusal in writing of a $200, 000 settlement offer from
Clapsaddle, both of which had apparently been signed by the
Youngs. The Youngs allege that they never signed a contract
with Day, and that Day never told them that he had received a
$200, 000 settlement offer from Clapsaddle. Claiming that
these are "fraudulently generated documents, " the
Youngs added claims for negligent misrepresentation, fraud,
breach of fiduciary duty, and declaratory judgment.
October 28, 2015, Day filed a traditional motion for summary
judgment. In the motion, Day alleged that (1) the Young's
non-negligence claims were barred by the rule against
fracturing a professional negligence claim; (2) their
negligence claims were barred by the applicable statute of
limitations; (3) their claims for professional negligence,
breach of fiduciary duty, and negligent misrepresentation
claims failed because the Youngs did not designate an expert
to testify with regard to the appropriate standard of care,
breach, and causation; (4) the Youngs' claim against Day
with regard to CLRH failed because Day never agreed to
represent the Youngs against CLRH; and (5) their declaratory
judgment action failed because they signed a contingency fee
November 13, 2015, the Youngs filed their summary judgment
response, a supplemental amended original petition adding a
claim for DTPA violations, and various other motions. Day
filed a reply to the Youngs' summary judgment response.
January 5, 2016, the trial court held a summary judgment
hearing. On February 1, 2016, the trial court signed an order
granting Day's motion for summary judgment. On March 2,
2016, the Youngs filed a motion for new trial which the trial
court denied on March 21, 2016. This appeal followed.
their first issue, the Youngs contend that the trial court
erred in granting summary judgment on their claims.
Standard of Review
review a trial court's decision to grant a motion for
summary judgment de novo. Valence Operating Co. v.
Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Under the
traditional summary judgment standard, the movant has the
burden to show that no genuine issues of material fact exist
and that it is entitled to judgment as a matter of law.
Tex.R.Civ.P. 166a(c); Mann Frankfort Stein &
Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848
(Tex. 2009); Nixon v. Mr. Prop. Mgmt. Co., 690
S.W.2d 546, 548 (Tex. 1985). A defendant moving for
traditional summary judgment 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 an affirmative defense to rebut the plaintiff's case.
Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911
(Tex. 1997). A matter is conclusively established if
reasonable people could not differ as to the conclusion to be
drawn from the evidence. See City of Keller v.
Wilson, 168 S.W.3d 802, 816 (Tex. 2005). In our review,
we take the non-movant's competent evidence as true,
indulge every reasonable inference in favor of the
non-movant, and resolve all doubts in favor of the
non-movant. Diversicare Gen. Partner, Inc. v. Rubio,
185 S.W.3d 842, 846 (Tex. 2005).
as here, a trial court's order granting summary judgment
does not specify the ground relied upon, the court must
affirm the summary judgment if any of the summary judgment
grounds is meritorious. See FM Props. Operating Co. v.
City of Austin, 22 S.W.3d 868, 872 (Tex. 2000). Because
the trial court in this case did not specify the ground upon
which it relied for its ruling, we will affirm if any theory
advanced by Day in his summary judgment motion is
meritorious. See Joe v. Two Thirty Nine Joint
Venture, 145 S.W.3d 150, 157 (Tex. 2004).
support of their argument that the trial court erred in
granting summary judgment, the Youngs contend that (1) their
claims for breach of fiduciary duty, fraud, and DTPA
violations are not barred by the anti-fracturing rule; (2)
the discovery rule and the doctrine of fraudulent concealment
applied to toll the statute of limitations on their claims;
(3) Day did not seek dismissal of their DTPA claim and
therefore summary judgment on this claim was improper; and
(4) their claim related to Day's alleged failure to file
suit against CLRH was improperly dismissed.
1. Anti-Fracturing Rule
rule against fracturing claims 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,
anti-fracturing rule to apply, however, the gravamen of a
client's complaints must focus on the quality or adequacy
of the attorney's representation. Murphy v.
Gruber, 241 S.W.3d 689, 692-93 (Tex. App.-Dallas 2007,
pet. denied). "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." Deutsch v. Hoover, Bax &
Slovacek, L.L.P, 97 S.W.3d 179, 189 (Tex. App.-Houston
[14th Dist.] 2002, no pet.). If, however, the client's
complaint is more appropriately classified as another claim,
for example, fraud, DTPA, breach of fiduciary duty, or breach
of contract, then the client can assert a claim other than
negligence. Id. In particular, claims of breach of
fiduciary duty against an attorney focus on whether the
attorney obtained an improper benefit from representing the
client. 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.
determining whether an allegation states a claim for
negligence or some other cause of action, the court is not
bound by the parties' own characterization of the
pleadings. Haase v. Abraham, Watkins, Nichols, Sorrels,
Agosto & Friend, LLP., 404 S.W.3d 75, 82 (Tex.
App.-Houston [14th Dist.] 2013, no pet.). 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. Murphy, 241 S.W.3d at 692.
appeal, the Youngs contend that that they have asserted
proper breach of fiduciary duty, fraud, and DTPA claims that
are distinct from their negligence claim. They argue that
while it is true that they originally only pleaded claims for
negligence and breach of contract, Day's production of
the fraudulently generated fee contract and settlement memo
"changed the 'gist' of the claims
dramatically." They argue that upon production of those
documents that they never signed, "[t]hey amended their
pleadings to include fraud, breach of fiduciary duty, and
DTPA violations, all based on the fraudulent, and extremely
negligent act of failing to convey a critical settlement
offer to plaintiffs on the eve of trial."
Breach of Fiduciary Duty
their summary judgment response, the Youngs alleged that Day
breached his fiduciary duty "by promising to sue [CLRH]
with no intention of doing so and refusing to settle the
Clapsaddle suit . . . because Day wanted Di Ferrante
paid" and the Youngs would not agree to pay Di Ferrante
out of their settlement funds. They further stated that
"when Day is deposed, [the Youngs] intend to attempt to
determine i[f] Day obtained a benefit from Di Ferrante as Day
violated attorney-client privilege to disclose confidential
communications between [the Youngs] and Day and confidential
settlement offers from [Clapsaddle's attorney] to
negotiate with Di Ferrante."
allegations do not give rise to a separate breach of
fiduciary duty claim. The Youngs' mere assertion that
they "intend to attempt to determine if Day obtained a
benefit" does not raise a fact issue as to whether Day
received an improper benefit, an element of the claim of
breach of fiduciary duty. Id. at 693 (noting that
claims of breach of fiduciary duty against attorney focus on
whether attorney obtained improper benefit from representing
client and involve integrity and fidelity of attorney);
Beck, 284 S.W.3d at 429. Speculative and conclusory
statements are insufficient to raise an issue to defeat
summary judgment. See Brown v. Aztec Rig Equip.,
Inc., 921 S.W.2d 835, 846 (Tex. App.-Houston [14th
Dist.] 1996, writ denied); Gibson v. Methodist, 822
S.W.2d 95, 100 (Tex. App.-Houston [1st Dist.] 1991, writ
denied). Absent an allegation that Day actually received an
improper benefit, the Youngs' assertions that Day
promised to sue CLRH when he had no intention of doing so,
refused to settle the Clapsaddle lawsuit, and disclosed
confidential communications do not state a claim for breach
of fiduciary duty. See Kemp v. Jensen, 329 S.W.3d
866, 872 (Tex. App.-Eastland 2010, pet. denied) (concluding
that, absent allegation that attorney had received improper
benefit, plaintiffs' contention that attorney had engaged
in deceptive conduct by failing to disclose to plaintiffs
that he had sued wrong entity stated claim for professional
negligence 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 agreed with opposing counsel to modify
settlement agreement without client's knowledge or
consent after representation did not constitute breach of
fiduciary duty but was legal malpractice claim); Judwin
Props., Inc. v. Griggs & Harrison, 911 S.W.2d 498,
506 (Tex. App.-Houston [1st Dist.] 1995, no writ) (finding no
evidence to indicate unfairness or deception in
attorneys' use of confidential information to support
claim for breach of fiduciary duty, but instead found
allegation of improper disclosure of confidential information
was merely claim for legal malpractice).
Youngs rely on the same alleged misconduct discussed above as
the basis for their fraud claim. In their summary judgment
response, they argued that a genuine issue of material fact
existed as to whether Day promised to sue CLRH and either
decided not to sue without informing the Youngs or never
intended to bring suit. Allegations concerning an
attorney's delay or failure to handle a matter entrusted
to the attorney give rise to a claim for professional
negligence. See Murphy, 241 S.W.3d at 698-99.
Despite the Youngs' claim of Day's intentional
misrepresentation, this is a claim for professional
negligence. Samson v. Ghadially, No. 14-12-00522-CV,
2013 WL 4477863, at *4 (Tex. App.-Houston [14th Dist.] Aug.
20, 2013, no pet.) (mem. op.) (concluding plaintiff's
claims that attorney told him that he would prosecute medical
malpractice claim, and later avoided contact with plaintiff,
did not file lawsuit, and dismissed plaintiff as client
shortly before expiration of limitations period stated claim
for professional negligence); Meullion v. Gladden,
No. 14-10-01143-CV, 2011 WL 5926676, at *4 ...