John Charles Ulrickson v. Kelcie A. Hibbs, Individually, and Loe, Warren, Rosenfield, Kaitcer & Hibbs, P.C.

Citation: Not availableDocket: 02-02-00161-CV

Court: Court of Appeals of Texas; November 5, 2003; Texas; State Appellate Court

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In **John Charles Ulrickson v. Kelcie A. Hibbs, Individually, and Loe, Warren, Rosenfield, Kaitcer. Hibbs, P.C.**, the Court of Appeals for the Second District of Texas addressed a legal malpractice case involving Appellant John Charles Ulrickson and Appellees, including attorney Kelcie A. Hibbs. Ulrickson alleged legal malpractice, breach of fiduciary duty, and violations of the Texas Deceptive Trade Practices Act (DTPA) related to Appellees' representation in guardianship and probate matters concerning his mother, Varina Ulrickson. 

Key facts include Varina's ownership of two properties: the Forest Park Property and the Peach Street Property. A warranty deed for the Forest Park Property was executed in favor of Ulrickson with a life estate reserved for Varina, who later suffered strokes prompting Ulrickson to seek guardianship. Documents prepared by Appellees for the guardianship included the Forest Park Property but omitted the Peach Street Property. After Varina's death, Appellees filed various inventories and accounts that continued to exclude the Peach Street Property.

After a series of legal proceedings, including a dispute between Ulrickson and his brother regarding the estate, Ulrickson initiated this lawsuit in February 2001. The trial court granted summary judgment in favor of Appellees on all claims, citing affirmative defenses and lack of evidence for negligence and gross negligence claims. The Court of Appeals affirmed part of the trial court’s judgment but reversed and remanded part of it for further proceedings.

The trial court granted summary judgment on all claims, with the appellant conceding correctness regarding the breach of implied warranty and fraudulent lien claims, leaving the DTPA claims, breach of fiduciary duty, negligence, and gross negligence claims contested. The appellant argues that the appellees' motion is a traditional summary judgment motion, which the appellees affirm. The standards for granting summary judgment require the movant to demonstrate the absence of genuine material fact issues and entitlement to judgment as a matter of law. A defendant can secure summary judgment if they show that a plaintiff cannot establish at least one element of their claim. Once the defendant provides adequate evidence, the burden shifts to the plaintiff to present evidence raising a genuine issue of material fact. Summary judgment is also valid if the defendant conclusively proves all elements of an affirmative defense. If a trial court does not specify the grounds for its summary judgment, it is affirmed on appeal if any theory presented is valid, and the motion must clearly state its specific grounds.

Regarding the DTPA claims, the court affirmed the trial court's summary judgment, concluding that the claims were either barred by the two-year statute of limitations or not cognizable. Under Texas Business and Commerce Code § 17.565, DTPA claims must be filed within two years of the deceptive act's occurrence or discovery. The appellant's claims related to events before September 1, 1995, are barred by this limitation, while those after that date are deemed non-cognizable. The appellant's affidavit indicated he could not have discovered the alleged deceptive practices prior to June 16, 1999, and he did not file suit until February 12, 2001.

Section 17.49(c) of the DTPA exempts claims for damages arising from the provision of professional services, specifically those involving advice, judgment, or opinion. This exemption, however, does not extend to: 1) express misrepresentations of material fact; 2) failures to disclose information as per Section 17.46(b)(24); 3) unconscionable actions that do not qualify as advice, judgment, or opinion; 4) breaches of express warranty not categorized as such; or 5) violations of Section 17.46(b)(26). The section applies to causes of action accruing after September 1, 1995. The Appellant's claims, which include violations of Sections 17.46(a) and 17.46(b)(2), (3), (5), (6), and (7), do not fall under the exemption, and thus are not cognizable under the DTPA. As a result, the trial court's summary judgment favoring the Appellees was appropriate, leading to the overruling of the Appellant's fourth issue.

In "Count One: Negligence and Breach of Fiduciary Duty," the Appellant alleges multiple failures by the Appellees, including the failure to file required accountings, properly research legal implications of property, and timely communicate with the Appellant. While acknowledging the fiduciary duty of attorneys, the court distinguishes between breach of fiduciary duty and legal malpractice. Breach of fiduciary duty is concerned with an attorney obtaining improper benefits while representing a client, whereas legal malpractice focuses on the adequacy of representation and involves negligence. Legal malpractice claims arise from an attorney's failure to exercise ordinary care, such as providing erroneous advice or failing to act on a client's instructions.

Courts typically do not permit claims stemming from an attorney's alleged poor legal advice or representation to be categorized separately as negligence, breach of contract, or fraud. The central issue revolves around whether the attorney exercised the requisite care and skill expected in the profession. If the essence of the complaint is inadequate legal representation, it is classified as legal malpractice. 

In this case, the claims in Count I were determined to be legal malpractice, rather than breach of fiduciary duty, and were examined alongside gross negligence claims in Count II. The Appellant contended that the Appellees improperly received summary judgment due to a lack of proof concerning breach of duty or causation, which the Appellees argued was mischaracterized, asserting that no annual accounting was required for either the guardianship or probate estate. 

The Appellees supported their summary judgment motion with an expert affidavit from Donald J. Pierson, II, who is a licensed CPA and attorney with extensive experience in estate planning and probate law. Pierson opined that Appellees had no obligation to file an annual accounting for the guardianship estate, as it existed for less than a year when the ward passed, and that an independent executor is not mandated to file an annual accounting unless ordered by the court. 

Pierson concluded that Appellees did not exhibit negligence in managing the guardianship and probate matters, nor did the Appellant suffer damages. Since expert testimony is generally necessary to establish the standard of care in legal malpractice claims, and the Appellant failed to produce a countering expert affidavit, the Appellees' motion effectively negated at least one element of the Appellant's claims. Consequently, the trial court's summary judgment in favor of the Appellees on those claims was upheld, leading to the overruling of the Appellant's related issues.

Appellant's argument regarding the lack of no-evidence grounds in the remaining legal malpractice claims is valid, as Appellees did not include these failures in their summary judgment motion. Consequently, the trial court could not have legitimately granted summary judgment based on those grounds. As a result, the court's decision on the remaining malpractice claims is upheld. 

Regarding the claims related to the Forest Park Property, the trial court appropriately granted summary judgment based on the affirmative defense of judicial estoppel. This principle prevents a party from contradicting previous sworn statements made in prior litigation, ensuring the integrity of the judicial process. Appellant previously claimed the Forest Park Property belonged to his mother in various court documents filed during guardianship and probate proceedings, contradicting his current assertion that the property is his. He swore under oath in multiple instances, including an affidavit and various applications, affirming that the property belonged to his mother. Judicial estoppel bars Appellant from now asserting ownership of the property after having previously asserted it belonged to Varina.

Appellees were granted summary judgment regarding claims related to the Forest Park Property, leading to the overruling of Appellant’s fourth issue without consideration of other related issues. Open legal malpractice claims against Appellees include failure to investigate guardianship and probate matters, failure to disclose the Peach Tree Property, failure to forward complete legal files to Appellant’s new counsel, failure to file inventories and make final distributions, and improper billing for uncompleted work. Appellees' summary judgment motions primarily argued statute of limitations and release. 

The two-year statute of limitations for legal malpractice claims begins when the claimant can seek a judicial remedy, with the discovery rule applying—meaning the limitations period starts when the client discovers or should have discovered the facts of the case. The statute of limitations is tolled until all appeals related to the underlying claim are resolved. In this case, the underlying suit was settled on March 13, 1999, and Appellant timely filed the lawsuit on February 12, 2001, indicating he acted within the limitations period.

Appellees also claimed that Appellant was barred from pursuing his claims due to a release he signed, stating he released all claims against parties involved in the Guardianship Estate. However, the burden of proving the release's fairness lies with the law firm, which must disclose all material facts to the client—given the fiduciary nature of the attorney-client relationship. Appellees failed to provide evidence that they informed Appellant of all material facts regarding the release or demonstrated that it was fair and reasonable. Consequently, the court erred in granting summary judgment based on this release.

The trial court's judgments regarding Appellant's negligence and gross negligence claims related to the Forest Park Property and DTPA claims were affirmed, indicating that Appellant takes nothing from those claims.

Appellees failed to adequately allege Appellant's lack of evidence as a basis for summary judgment on claims aside from accounting claims. The court also rejected Appellees' asserted grounds for summary judgment related to release and limitations. Consequently, the trial court’s judgment is reversed in part and the case is remanded to address the following claims: (1) failure to investigate and lawfully manage the guardianship and probate estates, including failure to communicate with Appellant; (2) improper disclosure of the Peach Tree Property in the required documentation; (3) failure to send complete legal files to Appellant’s new attorney in a timely manner; (4) failure to file necessary inventories and distribute the remaining estate; and (5) billing for uncompleted or unfiled work. A concurring opinion highlighted that the uncontroverted evidence showed that Appellees' conduct met the standard of care, but emphasized that summary judgment cannot be upheld on grounds not presented in the original motion. The court reiterated that they lack authority to affirm the summary judgment based on unraised theories despite the potential for a just outcome.