Affirmed and Majority and Dissenting Opinions filed March 31, 2011.
In The
Fourteenth Court of Appeals
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NO. 14-09-01073-CV
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Robin Singh D/B/A Testmasters, Appellant
V.
Duane Morris, L.L.P. and Richard T. Redano, Appellees
On Appeal from the 164th District Court
Harris County, Texas
Trial Court Cause No. 2008-49090
DISSENTING OPINION
Appellant Robin Singh has standing to seek damages allegedly caused by the negligence of his former attorneys, appellees Richard Redano and Duane Morris, L.L.P. (hereinafter collectively the “Attorneys”), and the trial court has subject-matter jurisdiction over these claims. Because this court reaches the opposite conclusion, I respectfully dissent.
Singh retained Redano, then a partner in Duane Morris, L.L.P., to represent him in trademark-infringement litigation. Singh claims that the case was lost due to the Attorneys’ negligence. After the actions and omissions alleged to constitute negligence occurred, Singh incorporated his business as Robin Singh Educational Services, Inc. (“Singh Services”). Following this incorporation on January 1, 2003, Singh filed suit against the Attorneys to recover the damages he claims to have suffered as a result of their alleged negligence. Singh alleges that the Attorneys’ negligence severely damaged his business and that he “has suffered and continues to suffer damages in the form of lost revenue and profits associated with consumers being confused out of taking his TESTMASTERS course.” Singh also alleges that, as sole shareholder of Singh Services, a subchapter S corporation, all lost profits of Singh Services are losses suffered directly by Singh individually. Singh did not limit the damages alleged in his petition to losses incurred by Singh Services or to losses incurred after Singh Services’s incorporation.
Today’s decision is premised on the majority’s conclusions that (1) all of Singh’s alleged damages are based on losses incurred by Singh Services and (2) Singh cannot recover in his individual capacity based on alleged damages to Singh Services. If the majority’s conclusions were correct, then Singh’s negligence claims would fail on the merits. But these conclusions do not support the majority’s determination that Singh has no standing to assert his negligence claims. See Heartland Holdings, Inc. v. U.S. Trust Co. of Tex. N.A., 316 S.W.3d 1, 7 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Ashford Partners, Ltd. v. ECO Res., Inc., No. 01-09-00809-CV, 2010 WL 2991118, at *3 (Tex. App.—Houston [1st Dist.] Jul. 29, 2010, pet. filed) (mem. op.). If Singh lacked standing to seek recovery of the alleged negligence damages, then the trial court would lack subject-matter jurisdiction over Singh’s claims. See Heartland Holdings, Inc., 316 S.W.3d at 7; Ashford Partners, Ltd., 2010 WL 2991118, at *3. But any inability of Singh to recover damages incurred by Singh Services would go to the merits of Singh’s claims rather than to the trial court’s jurisdiction. See Heartland Holdings, Inc., 316 S.W.3d at 7; Ashford Partners, Ltd., 2010 WL 2991118, at *3. For this reason, this court should not dispose of this case on jurisdictional grounds.
The majority cites an opinion of the Supreme Court of Texas for the proposition that the sole shareholder of a corporation “has no standing” to recover personally for damages incurred by the corporation; but, in the cited case the high court never uses the word “standing” and does not conclude that the trial court lacked jurisdiction. See Wingate v. Hajdik, 795 S.W.2d 717, 719 (Tex. 1990). Instead, the high court states that the shareholder “cannot recover damages personally for a wrong done solely to the corporation” and that the shareholder has “no separate and independent right of action.” Id. By treating this issue as one of standing and jurisdiction, the majority misses the mark and reaches the wrong conclusion.
Singh does not seek to recover personally for wrongs done to Singh Services; rather, Singh seeks to recover for wrongs he claims to have suffered at the hands of the Attorneys, whose negligence he alleges caused him to suffer the damages. Singh asserts no claims for or on behalf of Singh Services, nor does Singh seek to recover damages that flowed from a wrong done to the corporation. Singh, not Singh Services, was the client. If Singh Services had been the client, any claims for injury to the corporation would be vested in Singh Services, as distinguished from Singh. But a claimed injury to the corporation is not the scenario under review. This key distinction is fundamental to the proper resolution of the issue the court decides today.
The majority makes a jurisdictional disposition based on a merits analysis. The former is improper and the latter is premature. To succeed on a claim in his individual capacity to recover damages he claims to have suffered as a result of the Attorneys’ alleged negligence, Singh must discharge the burden to prove his damages. But whatever problems Singh might encounter in proving his damages, they are not jurisdictional.
This court errs in overruling Singh’s first issue and in failing to address the remaining issues. The trial court erred when it granted summary judgment based on lack of standing. This court errs in concluding that Singh does not have standing to recover any of the damages he seeks and in disposing of the entire case on this basis.
/s/ Kem Thompson Frost
Justice
Panel consists of Justices Anderson, Frost, and Brown. (Anderson, J., majority).