William Rowland Edwards, Jr. v. Pamela Dunlop-Gates, Individually and Thompson, Coe, Cousins & Irons, LLP, a Limited Liability Corporation and Byron L. Woolley, Individual

COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

§
WILLIAM ROWLAND EDWARDS, JR.,
§
Appellant, No. 08-09-00040-CV
§
v. Appeal from
§
PAMELA DUNLOP-GATES, 116th District Court
INDIVIDUALLY AND THOMPSON, §
COE, COUSINS & IRONS, LLP, of Dallas County, Texas
A LIMITED LIABILITY §
CORPORATION AND (TC # 04-09759)
BYRON L. WOOLLEY, INDIVIDUAL, §

Appellees. §

OPINION

William Rowland Edwards, Jr. appeals from a summary judgment entered in favor of the

defendants in this legal malpractice action. For the reasons that follow, we reverse and remand for

a trial on the merits.

FACTUAL BACKGROUND

Edwards filed suit against Pamela Dunlop-Gates, Gerrit M. Pronske, and Thompson, Coe,

Cousins, & Irons, LLP alleging claims of legal malpractice. Because the facts which give rise to

Edwards claims are entangled and somewhat complex, it is necessary to provide a more detailed

summary. A review of the record in the light most favorable to Edwards discloses the following

facts.

In April 1999, Edwards became a creditor in a bankruptcy proceeding involving Dr. William

Scott Blessing, his wife Lisa, and his professional medical association (MDPA). Edwards filed a

proof of claim seeking payment of debts from a series of financial dealings. At that time, Lionel
Smith served as an officer and director of Medifund Management Corp. (Management), a company

that provided billing services for doctors. He also served as president and one of three stockholders

in Medifund Financial Corp. (Financial). According to Edwards’ pleadings, Smith was also, “a key

person involved in all aspects” of MDPA’s financial affairs. MDPA was a client of Medifund

Management.

Financial loaned money to MDPA and later placed a lien on its accounts receivable. When

Smith wanted to refinance the debt in December 1998, he approached Edwards with a business

proposition by which Edwards would acquire Financial’s loan to MDPA. By April 1999, the

Blessings and MDPA had defaulted and Edwards made demand for payment. When the Blessings

and MDPA filed for bankruptcy, they also filed an adversary proceeding naming Edwards as

defendant.

The Adversary Proceeding, The Smith Suit & The Settlement Agreement

Edwards hired Pronske, a bankruptcy specialist with the firm of Thompson Coe, to represent

him in the adversary proceeding. The Blessings alleged claims against Edwards for fraud, breach

of fiduciary duty, and breach of contract. Without Edwards’ consent and despite repeated

complaints, Pronske delegated a substantial amount of the case load to Gates. Despite many

assurances to the contrary, only Gates appeared on Edwards’ behalf at the hearing.

During this same time period, Edwards was engaged in litigation with Lionel Smith, whom

he claimed defrauded him into entering business dealings with the Blessings and the Medifund

entities. According to Edwards’ pleadings, Smith made numerous material misrepresentations

regarding the personal and professional financial condition of the Blessings and MDPA which

induced him to enter the agreement. In this lawsuit, Edwards was represented by Marshall Searcy,

an attorney with the firm of Kelly, Hart, & Hallman, PC.
 At a hearing in the adversary proceeding on August 30, 2000, the parties announced a

settlement. In addition to an agreement between Edwards and the Debtors, Smith's attorney

announced that Smith would also be a party to the settlement. The terms were then read into the

record.1 The adversary proceeding was administratively closed on September 7, 2000. The Smith

litigation was then dismissed by Searcy and Smith's counsel according to an agreed order of

dismissal dated October 24, 2000.

The First Trust Suit

About a year after the settlement, a group of creditors who were successors in interest to the

Financial note2 demanded Edwards pay the debt, contending that the settlement reached in the

adversary proceeding did not release Financial’s claims against Edwards. On October 17, 2001, the

Moon Brothers sued Edwards claiming breach of a commercial financing agreement. First Trust

Corp. TTEE FBO v. Edwards, 172 S.W.3d 230, 232 (Tex.App.--Dallas 2005, pet. denied). Edwards

was represented in the First Trust Suit by Searcy. It is undisputed that Thompson Coe was not

involved in his defense.3 Edwards initially prevailed, but the Dallas Court of Appeals reversed and

remanded, ruling in part that Edwards received a release from Smith individually but not from

Medifund Financal. First Trust, 172 S.W.3d at 232. The court then concluded that:

[O]n this record, as to the first issue, the settlement agreement in question does not,
as a matter of law, release and discharge Edwards from the claims of MFC on which
First Trust brings suit. . . . as to the second issue, that [sic] there is no evidence
establishing that MFC authorized anyone to grant a release of its claims against

1
Edwards specifically told Gates during the recitation of the agreement that the settlement must include a
release from all obligations Edwards owed to Financial.

2
These creditors are collectively referred to as the “Moon Brothers.”

3
According to Edwards, he first approached Pronske and Thompson Coe for representation since they had been
instructed to, and to Edward’s belief, had obtained a release from the obligation. They refused to defend Edwards and
disavowed any knowledge of a release.
 Edwards.

First Trust, 172 S.W.3d at 232. During the re-trial, Edwards elected to settle the suit.

The Current Malpractice Suit & Summary Judgment

On September 21, 2004, Edwards filed this suit alleging claims of legal malpractice. His

pleadings alleged negligence on behalf of Thompson Coe in: (1) failing to obtain a valid release of

the Financial debt obligations owed by Edwards and/or failing to inform Edwards that a valid release

was not possible; (2) negligent supervision by Pronske; (3) violations of the Deceptive Trade

Practices Act by Thompson Coe and Pronske; and (4) breach of fiduciary duty as to Pronske. All

that remains are the negligence claims.4

On October 2, 2008, Appellees filed both traditional and no-evidence motions for summary

judgment. The traditional motion alleged that all claims were barred by the applicable statutes of

limitations. The trial court granted summary judgment and this appeal ensues. In two issues,

Edwards attacks the validity of the summary judgment.

STANDARD OF REVIEW

The purpose of summary judgment is to permit a trial court to promptly dispose of

unmeritorious claims or untenable defenses. City of Houston v. Clear Creek Basin Authority, 589

S.W.2d 671, 678 n.5 (Tex. 1979). Summary judgment is proper if the defendant disproves at least

4
Texas courts do not generally allow what are truly negligence claims to be fractured into claims for fraud,
breach of contract, breach of fiduciary duty, or violation of the DTPA because, “the real issue remains one of whether
the professional exercised that degree of care, skill, and diligence that professionals of ordinary skill and knowledge
commonly possess and exercise.” Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W .3d 921, 924 (Tex.App.--Fort
W orth 2002, pet. denied), citing Averitt v. PriceWaterhouseCoopers, LLP., 89 S.W .3d 330, 333 (Tex.App.--Fort W orth
2002, no pet.). The rule serves to prevent legal-malpractice plaintiffs from 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. See Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W .3d 179, 189 (Tex.App.--Houston [14th
Dist.] 2002, no pet.). Edwards makes no effort to distinguish his breach of fiduciary duty claim from his professional
negligence claim. He relies on the same conduct for both. Similarly, his DTPA claims constitute claims for legal
malpractice which do not amount to self-dealing, deception, or express representations sufficient to support a separate
cause of action. See, e.g., Newton v. Meade, 143 S.W .3d 571, 574 (Tex.App.--Dallas 2004, no pet.)(explaining that a
cause of action claiming bad legal advice or improper representation is one for legal malpractice).
one element of the plaintiff’s claims, or, alternatively, conclusively establishes each element of an

affirmative defense. Velsicol Chemical Corp. v. Winograd, 956 S.W.2d 529, 530 (Tex. 1997).

We review the grant or denial of a traditional motion for summary judgment de novo.5

Valence Operating Company v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Texas Integrated

Conveyor Systems, Inc. v. Innovative Conveyor Concepts, Inc., 300 S.W.3d 348, 365 (Tex.App.--

Dallas 2009, pet. denied); Garner v. Fidelity Bank, N.A., 244 S.W.3d 855, 860 (Tex.App.--Dallas

2008, no pet.). To prevail on a motion for summary judgment, the movant must show there is no

genuine issue of material fact and the movant is entitled to judgment as a matter of law.

TEX .R.CIV .P. 166a(c); Provident Life and Acc. Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex.

2003); Nixon v. Mr. Property Management Company, Inc., 690 S.W.2d 546, 548 (Tex. 1985); Texas

Integrated Conveyor Systems, Inc., 300 S.W.3d at 365; Garner, 244 S.W.3d at 860.

In reviewing a trial court’s decision to grant summary judgment, we resolve all doubts against

the movant and view the evidence in the light most favorable to the non-movant. See Shah v. Moss,

67 S.W.3d 836, 842 (Tex. 2001); Tranter v. Duemling, 129 S.W.3d 257, 260 (Tex.App.--El Paso

2004, no pet.). When a trial court’s summary judgment order does not state the specific grounds for

its ruling, we must affirm the judgment if any of the theories advanced by Appellee’s motion are

meritorious. Western Investments, Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005); Texas Integrated

Conveyor Systems, Inc., 300 S.W.3d at 365; First Union Nat. Bank v. Richmont Capital Partners

I, L.P., 168 S.W.3d 917, 923 (Tex.App.--Dallas 2005, no pet.).

We begin with Issue Two, which broadly asserts that summary judgment was improper.

Issue Two is comprised of two separate, more specific inquiries: (1) whether the two-year statute

5
This case was transferred from our sister court in Dallas, therefore we decide this case in accordance with the
precedent of that court. T EX .R.A PP .P. 41.3.
of limitations for legal malpractice bars recovery, or whether some discovery rule and/or tolling

doctrine applies to extend the limitations period; and (2) whether the trial court erred in granting

summary judgment because Edwards raised material fact issues his professional negligence claim.

STATUTE OF LIMITATIONS

Appellees sought summary judgment in part based on their claim that suit was barred by

limitations. Under Texas law, the statute of limitations in legal malpractice claims is two years.

TEX .CIV .PRAC.&REM .CODE ANN . § 16.003(a)(West Supp. 2010); Parsons v. Turley, 109 S.W.3d

804, 807-08 (Tex.App.--Dallas 2003, pet. denied). The limitations periods begins to run at the time

a cause of action accrues, that is when the plaintiff suffers a legal injury. Murphy v. Campbell, 964

S.W.2d 265, 270 (Tex. 1997).

A plaintiff suffers a “legal injury”when facts come into play which would authorize him to

seek a judicial remedy. Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001). Once a

claimant learns of a wrongful injury, the statute of limitations begins to run even if the claimant does

not yet know “the specific cause of the injury; the party responsible for it; the full extent of it; or the

chances of avoiding it.” PPG Industries, Inc. v. JMB/Houston Centers. Partners Ltd. Partnership,

146 S.W.3d 79, 93-94 (Tex. 2004); Velsicol Chemical Corp. v. Winograd, 956 S.W.2d 529, 531

(Tex. 1997). A legal malpractice claim founded upon faulty advice accrues when the advice is taken.

Woolley v. Clifford Chance Rogers & Wells, L.L.P., No. 3:01-CV-2185, 2004 WL 57215, *5 (N.D.

Tex. Jan. 5, 2004).

When the defendant bases a summary judgment motion on the statute of limitations, he must

conclusively prove each element of that affirmative defense as a matter of law. KPMG Peat

Marwick v. Harrison County Housing Finance Corp., 988 S.W.2d 746, 748 (Tex. 1999); Shah, 67

S.W.3d at 842. Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 121 (Tex. 1996).
 The acts which form the basis of Edwards’ claims occurred on or before September 7, 2000,

when the settlement agreement became final. He filed suit on September 21, 2004, more than four

years later. Unless the discovery rule or a tolling principle applies to extend the statute of limitations

period, Edwards’ claims are barred by limitations.

The Discovery Rule

Generally speaking, most claims are barred two years after accrual, whether or not the

plaintiff has discovered the injury or the extent of his damages. See TEX .CIV .PRAC.&REM .CODE

ANN . § 16.003(a); Apex Towing, 41 S.W.3d at 120; S.V. v. R.V., 933 S.W.2d 1, 4 (Tex. 1996).

However, Texas applies the discovery rule to legal malpractice claims. Woolley, 2004 WL 57215

at *5; Apex Towing, 41 S.W.3d at 120-21. The discovery rule is an exception to the legal injury rule

whereby a cause of action does not accrue until the plaintiff knew, or in the exercise of reasonable

diligence, should have known of the wrongfully caused injury. See KPMG Peat Marwick, 988 at

749; Murphy, 964 S.W.2d at 270. The discovery rule applies in cases of fraud, fraudulent

concealment, and otherwise where the nature of the injury is inherently undiscoverable and the

evidence of injury is objectively verifiable. Murphy, 964 S.W.2d at 270. An injury is inherently

undiscoverable if it is by nature unlikely to be discovered within the prescribed limitations period.

See id. Where, as here, a defendant moves for summary judgment on the affirmative defense of

limitations and the plaintiff pleads the discovery rule, the defendant must also negate the application

of the discovery rule. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999).

The reasoning behind the discovery rule’s application in legal malpractice claims has been

well articulated by the Dallas Court of Appeals:

[I]t is unrealistic to expect a lay client to have the legal acumen to perceive the
negligence of his attorney in giving faulty [legal] advice, and because the injury
flowing from faulty [legal] advice is objectively verifiable.
Murphy v. Mullin, Hoard & Brown, L.L.P., 168 S.W.3d 288, 291 (Tex.App.--Dallas 2005, no pet.).

Accordingly, such a claim does not accrue until the client discovers, or should have discovered

through the exercise of reasonable care and diligence, facts establishing the elements of his cause

of action. Moreno v. Sterling Drug, Inc., 787 S.W.2d 348, 351 (Tex. 1990).

Edwards argues that his cause of action did not accrue until either the court of appeals

determined the release was ineffective [August 23, 2005] or he paid to settle the First Trust Suit [on

or about October 1, 2007]. He contends that since he filed suit on September 21, 2004, the summary

judgment evidence raises a fact issue as to when the claim accrued. But the Moon Brothers filed

suit against Edwards on October 17, 2001 which should have alerted Edwards to the injury. See

Woolley, 2004 WL 57215 at *5 (holding that defendant met its burden of proof showing the

discovery rule was insufficient to avoid the defense of limitations where initiation of a lawsuit

occurred more than two years prior to plaintiff filing suit; initiation of that lawsuit constituted an

opposing party taking a formal position that might have alerted Woolley to the injury caused by the

alleged malpractice); see also Murphy, 964 S.W.2d at 272 (holding that where accountant

malpractice created liability for unpaid taxes, discovery took place no later than when the Internal

Revenue Service issued a deficiency notice because it was at that time that the government took a

formal position opposing the parties’ interest). In fact, in his own affidavit, Edwards admitted that

he was sued by First Trust on October 17, 2001. He also attested:

15. After the prove up in the Adversary on August 30, 2000, I spoke with Moon who
told me he had reviewed the transcript of the Adversary and did not think it released
the [Financial] claim against me; however, I had sent the transcript of the Adversary
prove up to my other attorneys who reviewed it and reported to me that they thought
it sufficient to release me from the [Financial] claim.

16. I was served with process in the First Trust suit and forwarded it to attorney
Marshall Searcy. Mr. Searcy had reviewed the transcript of the Adversary and he
told me I had a viable defense of release based on that transcript. He included the
 affirmative defense of release in my answer.

By his own admission, Edwards was aware at least of the potential injury on or before October 2001,

more than two years before bringing suit. See Murphy, 964 S.W.2d at 270. Thereafter, the statute

of limitations clock ran, whether or not Edwards yet knew: (1) the specific cause of the injury; (2)

the party responsible for it; (3) the full extent of it; or (4) the chances of avoiding it. Because

October 2001 is more than two years before Edwards brought suit, Appellees met their burden of

demonstrating that the discovery rule, in and of itself, is insufficient to avoid the defense of

limitations. Unless a tolling provision applies, the statute of limitations ran as a matter of law on

October 17, 2003, approximately eleven months before Edwards brought suit.

Application of the Hughes Tolling Principle

Texas follows the “Hughes rule” initially articulated in Hughes v. Mahaney & Higgins, 821

S.W.2d 154 (Tex. 1991). There, the Texas Supreme Court announced a tolling doctrine which is

applicable in situations where a lawyer commits malpractice in litigation of a claim or defense.

Hughes, 821 S.W.2d at 156-57. The Hughes doctrine provides that when an attorney commits

malpractice in prosecuting or defending against any claim that results in litigation, the statute of

limitations is tolled until all appeals on the underlying claim are exhausted. Id. The tolling rule

applies where the client has an accrued claim and the attorney commits malpractice either before

litigation commences, after litigation has commenced, or in the course of prosecuting or defending

against the claim in a non-litigation setting. Id.

The Texas Supreme Court later expanded on Hughes to include situations where the lawyer’s

underlying malpractice occurred in a non-litigation setting. Gulf Coast Investments Corp. v. Brown,

821 S.W.2d 159, 159-60 (Tex. 1991). In Gulf Coast, the defendant represented the plaintiff in a

non-judicial foreclosure action. Gulf Coast Investments Corp., 821 S.W.2d at 160. After a judicial
sale, the party foreclosed upon filed a wrongful foreclosure suit against Gulf Coast, alleging

improper notice of the impending sale. Id. While the plaintiff filed the malpractice action only

seven months after judgment was rendered against Gulf Coast, the claim was filed more than two

years after institution of the wrongful foreclosure action. Id. The trial court granted the defendant’s

motion for summary judgment, concluding that plaintiff should have been aware of its attorney’s

malpractice at the time the wrongful foreclosure suit was filed. The court of appeals affirmed. Id.

at 160.

The Texas Supreme Court reversed, observing that when an attorney commits malpractice

in connection with the prosecution or defense of a claim that results in litigation, Hughes tolls any

malpractice claim against that attorney “until all appeals on the underlying claim are exhausted.”

Gulf Coast Investments Corp., 821 S.W.2d at 160. The court concluded that there was no reason

why the rule “should not apply when the attorney’s malpractice results, not in an appeal on the

underlying claim, but in . . . [a separate] action by a third-party against the client.” Id. at 160. This

is necessary “because the viability of the second [malpractice] cause of action depends on the

outcome of the first.” Id. quoting Hughes, 821 S.W.2d 157.

In Apex Towing Co., the plaintiffs alleged the defendants had committed malpractice in the

underlying dispute by failing to file a limitation of liability action. That failure, together with other

related errors, left Apex Towing subject to liabilities in excess of the value of their vessel, which

supposedly could have been avoided had counsel handled the matter properly. Apex Towing, 41

S.W.3d at 119. The trial judge entered judgment against Apex Towing for damages on August 31,

1994. Id. Plaintiffs discharged counsel on January 27, 1995, but they did not file suit against them

until February 19, 1997. Id. Although the plaintiffs argued that the statute of limitations was tolled

until the underlying dispute was finally resolved, the court of appeals disagreed. Id. It concluded
that since the lawyer had been discharged more than two years prior to filing suit, the claims against

those attorneys were barred. Id. The Supreme Court reversed and reaffirmed the Hughes rule:

When an attorney commits malpractice in the prosecution or defense of a claim that
results in litigation, the statute of limitations on a malpractice claim against that
attorney is tolled until all appeals on the underlying claim are exhausted or the
litigation is otherwise finally concluded.

Apex Towing, 41 S.W.3d at 119. The court reiterated that continued representation is not a

requirement of the rule. Id. Hiring new counsel would not necessarily eliminate the problem of a

client having to adopt inconsistent positions in the underlying case and the malpractice case. Lower

courts were instructed to follow “a categorical approach” to employing the Hughes tolling principles

rather than a case-by-case analysis:

[W]ithout re-examining whether the policy reasons behind the tolling rule apply in
each legal-malpractice case matching the Hughes paradigm, courts should simply
apply the Hughes tolling rule to the category of legal-malpractice cases encompassed
within its definition.

Apex Towing, 41 S.W.3d at 122. The question before us, then, is whether Edwards’ claims fall

within the framework of Hughes. We conclude that they do.

Edwards alleged Thompson Coe committed malpractice in either failing to obtain an a release

of his obligations to Financial or failing to inform him that the agreement did not operate as release.

Edwards successfully pursued this theory in the trial court. Claims by the Moon Brothers were not

legally viable until the court of appeals reversed the lower court. Although Thompson Coe allegedly

committed malpractice in the adversary proceeding and the First Trust suit was a later-filed separate

action, Edwards would have prevailed had Thompson Coe obtained the release as Edwards

instructed – the release he thought he had obtained. We conclude that the Hughes tolling principle

applies to toll the statute of limitations from the October 17, 2001 discovery date until the Dallas

Court of Appeals issued its decision against Edwards in 2005. Summary judgment on limitations
grounds was improper.

GENUINE ISSUES OF MATERIAL FACT

Thompson Coe represented Edwards: (1) in his claims against Debtors and in his defense

against the Debtors’ claims in the adversary proceeding; and (2) in negotiating and achieving the

settlement of the Smith litigation. Edwards claims that the firm committed malpractice by failing

to inform him he would not be released from the Financial debt and by failing to procure an effective

release. In his view, this caused an indivisible, single injury, i.e., the loss of his intended benefit in

settling.

Legal malpractice cases in Texas are based on negligence. Barcelo v. Elliott, 923 S.W.2d

575, 579 (Tex. 1996); Gallagher v. Wilson, No. 2-09-376-CV, 2010 WL 3377787 (Tex.App.--Fort

Worth Aug. 26, 2010, no pet.)(mem. op.); Delp v. Douglas, 948 S.W.2d 483, 495 (Tex.App.--Fort

Worth 1997), rev’d in part on other grounds, 987 S.W.2d 879 (Tex. 1999). To prevail on a legal

malpractice claim, a plaintiff must show that: (1) the attorney owed the plaintiff a duty; (2) the

attorney breached that duty; (3) the breach proximately caused the plaintiff’s injuries; and (4)

damages occurred. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004), citing

Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995).

A plaintiff must generally present expert testimony to establish the breach and causation

elements. Alexander, 146 S.W.3d at 117, 119-20. Breach of the standard of care and causation are

separate inquiries, and an abundance of evidence as to one cannot substitute for a deficiency of

evidence as to the other. Id. at 119.

Attorneys are held to the standard of care that a reasonably prudent attorney would exercise,

and expert testimony is typically needed to demonstrate that standard of skill and noncompliance

with that standard. Longaker v. Evans, 32 S.W.3d 725, 735 (Tex.App.--San Antonio 2000, pet.
withdrawn)(en banc op. on reh’g); Jatoi v. Decker, Jones, McMackin, Hall & Bates, 955 S.W.2d

430, 434 (Tex.App.--Fort Worth 1997, writ denied); Hall v. Rutherford, 911 S.W.2d 422, 424

(Tex.App.--San Antonio 1995, writ denied).

[A]n attorney can commit legal malpractice by giving an erroneous legal opinion or
erroneous advice, by failing to give any advice or opinion when legally obliged to do
so, by disobeying a client’s lawful instruction, by taking an action when not
instructed by the client to do so, by delaying or failing to handle a matter entrusted
to the attorney’s care by the client, or by not using an attorney’s ordinary care in
preparing, managing, and presenting litigation that affects the client’s interests.

Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 923-24 (Tex.App.--Fort Worth

2002, pet. denied), citing Zidell v. Bird, 692 S.W.2d 550, 553 (Tex.App.--Austin 1985, no writ).

Expert testimony is not required if the attorney’s lack of care and skill is so obvious that the trier of

fact can find negligence as a matter of common knowledge. James V. Mazuca and Assocs. v.

Schumann, 82 S.W.3d 90, 97 (Tex.App.--San Antonio 2002, pet. denied). The most common

example is one in which an attorney allows the statute of limitations to run on a client’s claim. Id.

Edwards claims that he informed Gates he would settle the adversary proceeding only if he obtained

a release of the Medifund Financial claim, giving him a contractual defense if sued on that claim.

To prevail on an action for legal malpractice, the plaintiff must prove the attorney’s act or omission

proximately caused the plaintiff’s injury. See Alexander, 146 S.W.3d at 117. To show proximate

cause a plaintiff must prove both cause-in-fact and foreseeability. See id.; Rodriguez v. Klein, 960

S.W.2d 179, 184 (Tex.App.--Corpus Christi 1997, no pet.).

Appellees motion for summary judgment alleged that Edwards’ claims failed as a matter of

law because: (1) Edwards did not suffer damages by settling the adversary proceeding; and (2) the

actions of third parties destroyed the causal link between Appellees’ alleged conduct and Edwards’

alleged injury.
 As for the damages argument, Appellees claimed that Edwards’ recovery exceed the amount

sought in his proof of claim. But Edwards has raised a fact issue as to the amount of damages

incurred as a result of the First Trust litigation. Attorney fees are not normally recoverable as actual

damages, but there are two situations where they may be considered actual damages; in a legal

malpractice case, the plaintiff’s damages may include the attorney fees paid to the defendant-attorney

in the underlying case, and when the defendant’s tort requires a party to protect its own interests by

bringing or defending an action against a third party, the plaintiff may recover from the defendant

the attorney fees incurred in the action against the third party. RAS Group, Inc. v. Rent-A-Center

East, Inc., ---- S.W.3d ----, 2010 WL 4400511, *8 (Tex.App.--Dallas, Nov. 08, 2010 no pet. h.).

Edwards likewise raises a fact issue with respect to causation. Appellees maintain that since

Searcy represented Edwards in the Smith lawsuit, their conduct is excused by the acts of a third party

which breaks the causal link necessary for Edwards to prevail. Yet the Smith suit was settled as part

of the bankruptcy adversary proceeding, with Gates clearly negotiating a release. Not only did

Edwards believed he had obtained a release, Gates believed it herself. We conclude that Edwards

raises genuine issues of material fact which preclude summary judgment. We sustain Issue Two.

Because of our resolution if Issue Two, we need not address Issue One. We reverse and remand the

judgment for trial on the merits.

April 28, 2011
ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, and Rivera, JJ.