dissenting.
Because the burden of proof in the context of these traditional motions for summary judgment has been improperly placed upon Stephen and Elliot Kemp, I would grant the motion for rehearing, reverse the summary judgments of the trial court, and remand the case for trial.
The trial court did not grant no-evidence motions for summary judgment; it granted traditional motions for summary judgment. We review a trial court’s summary judgment de novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003). A trial court must grant a traditional motion for summary judgment if the moving party establishes that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex.1991). In order for a defendant to be entitled to summary judgment, it must either disprove an element of each cause of action or establish an affirmative defense as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex.1997). Once the movant establishes a right to summary judgment, the nonmovant must come forward with evidence or law that precludes summary judgment. City of Houston v. Clear Creek Basin Auth, 589 S.W.2d 671, 678-79 (Tex.1979).
When reviewing a traditional summary judgment, the appellate court considers all the evidence and takes as true evidence favorable to the nonmovant. Am. Tobacco Co., 951 S.W.2d at 425; Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548^49 (Tex.1985). The appellate court “must consider whether reasonable and fair-minded jurors could differ in their conclusions in light of all of the evidence presented” and may not ignore “undisputed evidence in the record that cannot be disregarded.” Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754, 755, 757 (Tex. 2007). An appellate court must consider all the evidence in the light most favorable to the nonmovant and determine whether the movant proved that there were no genuine issues of material fact and that the movant was entitled to judgment as a matter of law. Nixon, 690 S.W.2d 546. In so doing, we must indulge all reasonable inferences in favor of the nonmovant. Id.
Unlike those cases that involve a traditional motion for summary judgment, in a no-evidence summary judgment context, the movant does not bear the burden of establishing each element of his claim or defense. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 833 (TexApp.-Dallas 2000, no pet.). The nonmovant assumes the burden to present enough evidence to raise a genuine issue of material fact showing that he is entitled to a trial. Id. A trial court must grant a motion for no-evidence summary judgment unless the nonmovant produces more than a scintilla of evidence that raises a genuine issue of material fact on the challenged elements. Tex.R. Civ. P. 166a(i); Gen. Mills, 12 S.W.3d at 832-33. An appellate court must determine whether the nonmovant produced any evidence of probative force to raise a fact issue on the material questions presented. Id. at 833.
The majority discusses the failure of the Kemps to present any evidence of “the significance of the excluded evidence or why its exclusion altered the outcome” of the underlying case. It also discusses the Kemps’ failure to “explain the significance of this excluded evidence or its impact on the trial, and ... produce testimony that *874but for its exclusion the jury would have returned a different verdict.” In its discussion of those failures, the majority cites Cantu v. Horany, 195 S.W.3d 867 (Tex.App.-Dallas 2006, no pet.). Cantu was a no-evidence summary judgment and is in-apposite here.
Because this case is one in which we are reviewing rulings on traditional motions for summary judgment, as opposed to no-evidence motions for summary judgment, the Kemps as nonmovants had no burden to come forward with any evidence unless and until the movants, appellees, either conclusively proved any defenses they might have had or conclusively disproved an element of each of the Kemps’ causes of action. Walker v. Harris, 924 S.W.2d 375, 377 (Tex.1996). It is only after the movant has produced evidence that entitles it to summary judgment that the burden shifts to the nonmovant to present evidence that creates a fact issue. Id. Before they may ultimately recover on their negligence claims, the Kemps will have the burden to prove the existence of a legal duty, a breach of that duty, proximate causation, and damages. They may or may not be able to do that, but I do not believe that they are required to do so in a traditional summary judgment context.
To the contrary, it was incumbent upon appellees, as movants, to conclusively disprove at least one of the elements of the Kemps’ negligence cause of action.- Appel-lees focused on the proximate cause element of the Kemps’ cause of action. At trial, the Kemps would be required to prove that appellees acts or omissions were a substantial factor in bringing about an injury that would not have occurred otherwise. Hall v. Stephenson, 919 S.W.2d 454, 456 (Tex.App.-Fort Worth 1996, writ denied). Conversely, in the context of these traditional motions for summary judgment, appellees are required to prove that no acts or omissions of appel-lees were a substantial factor in bringing about the injury that would not have occurred otherwise. Appellees attempted to make that proof by relying upon the jury verdict. As the Kemps argue, the jury verdict does little, if anything, more than show that the Kemps lost. This proof was not such that appellees met their burden to conclusively disprove an element of the Kemps’ negligence cause of action.
Furthermore, as earlier stated, under the standard of review in traditional summary judgments, we are to consider all evidence in the light most favorable to the Kemps as nonmovants. We are also to indulge all reasonable inferences in their favor. The jury instruction limiting damages to those that occurred prior to July 16, 2001, should not have been placed within the negligence issue. Almost all of the damages in the case against Subsurface Exploration, the ultimate defendant in the underlying lawsuit, occurred prior to that date. Because it was placed within the negligence issue, the jury verdict could mean that Subsurface Exploration was never negligent. However, I believe that it is also reasonable to infer that the jury could have found that Subsurface was negligent, but the time constraints imposed in the damage instruction prevented the jury from finding that Subsurface was negligent. Because we are to indulge that reasonable inference in favor of the Kemps, I would therefore hold, for this additional reason, that appellees did not conclusively disprove an element of the negligence cause of action. The Kemps were not required to come forward with any evidence in response to the traditional motions for summary judgment.
In their motion for rehearing, the Kemps draw our attention to that portion of their original petition in which they allege that appellee Saringer was negligent *875for failing to preserve their claims against Jensen under the Deceptive Trade Practices Act and for failing to advise them of their claims against Jensen. This negligence allegation was not addressed in ap-pellees’ motions for summary judgment, and the trial court should not have granted summary judgment on that cause of action.
I would hold that the trial court erred when it granted the traditional motions for summary judgment on the negligence cause of action.
The trial court also granted appellees’ traditional motions for summary judgment upon the Kemps’ breach of fiduciary duty claims. As stated before, unless and until appellees, as movants, conclusively negated an element of this cause of action, the Kemps were under no obligation to come forward with any evidence in response to the motion. I agree that a breach of fiduciary duty claim involves an attorney’s integrity and fidelity, and the focus in such claims is upon whether the attorney obtained an improper benefit from representing the client. Gibson v. Ellis, 126 S.W.3d 324, 330 (TexApp.-Dallas 2004, no pet.). I believe that the majority correctly says that an attorney breaches his fiduciary duty when he benefits improperly from the attorney-client relationship by, among other things, subordinating his client’s interest to his own, retaining the client’s funds, engaging in self-dealing, improperly using client confidences, failing to disclose conflicts of interest, or making representations to achieve those ends. Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex.App.-Houston [14th Dist.] 2001, pet. denied).
I also agree that a professional negligence claim, as opposed to a breach of fiduciary duty claim, arises when an attorney provides improper representation by giving erroneous legal opinions or advice; by delaying or failing to handle a matter entrusted to him; or by not using ordinary care in preparing, managing, or prosecuting a case. Murphy v. Gruber, 241 S.W.3d 689, 693 (Tex.App.-Dallas 2007, pet. denied). The Kemps alleged those types of claims in the negligence cause of action in their petition.
However, the Kemps did not allege those types of claims in their breach of fiduciary duty cause of action. In their breach of fiduciary duty claims, the Kemps alleged that Jensen failed to disclose the true reason for withdrawing from the case. Also, the Kemps sought recovery of damages against Jensen under the Deceptive Trade Practices Act. Perhaps the Kemps could have been more specific in their claims against Jensen in this portion of their petition. However, unless the petition affirmatively demonstrates that no cause of action exists or that recovery is barred, the trial court must give the plaintiff an opportunity to amend before it grants a motion to dismiss or a motion for summary judgment. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46, 54-55 (Tex.2003); Peek v. Equip. Serv. Co. of San Antonio, 779 S.W.2d 802, 805 (Tex.1989).
In the Kemps’ negligence cause of action, they allege improper representation for failing to sue the right entity and the resultant effects of that. In the breach of fiduciary duty claim, the Kemps complain of Jensen’s failure to disclose that information. The difference in the two claims is the difference between negligent conduct and deceptive conduct. “To recast this claim as one for legal malpractice is to ignore this distinction.” Latham v. Castillo, 972 S.W.2d 66, 69 (Tex.1998). Therefore, there is no fracturing of a negligence claim. I would grant the motion for rehearing on the breach of fiduciary duty claim against Jensen and remand to the trial court for it to consider whether the Kemps should be required to amend this *876portion of their petition and, if so, to allow them an opportunity to amend.
For all of the foregoing reasons, I respectfully dissent.