Aguirre, Sr., Armando, Armando Aguirre, Jr., Hilda Aguirre, Alberto Aguirre and Lou Ann Aguirre v. Reyna, Jr., Ezequiel, ELR Enterprises, Inc., Richard S. Talbert, and Talbert & McDaniel

NUMBER 13-99-795-CV and 13-00-123-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI – EDINBURG ARMANDO AGUIRRE, SR., ARMANDO AGUIRRE, JR. Appellants, HILDA AGUIRRE, ALBERTO AGUIRRE, AND LOU ANN AGUIRRE v. EZEQUIEL REYNA JR., ELR ENTERPRISES, INC., RICHARD S. TALBERT, AND TALBERT AND MCDANIEL, Appellees. On appeal from the 275th District Court of Hidalgo County, Texas. MEMORANDUM OPINION Before Chief Justice Valdez and Justices Rodriguez and Dorsey Opinion by Chief Justice Valdez Armando Aguirre, Sr., Armando Aguirre, Jr. and wife Hilda Aguirre, and Alberto Aguirre and wife Lou Ann Aguirre brought suit against Richard S. Talbert, Talbert & McDaniel, Ezequiel Reyna, Jr., Cottonfields, Ltd., and ELR Enterprises, Inc., for fraud, negligence, gross negligence, malpractice, breach of fiduciary duty, civil conspiracy, fraud in a real estate transaction, negligent misrepresentation, and trespass. The trial court granted take-nothing summary judgments in favor of these defendants, and this appeal ensued. We affirm. Background This is a memorandum opinion. See Tex. R. App. P. 47.4. The parties are familiar with the factual and procedural underpinnings to this appeal; therefore, we will only briefly discuss the factual and procedural background to this appeal as necessary to advise the parties of our decision and the basic reasons for the decision. See id. The underlying case concerns the purchase of real estate by an attorney, Ezequiel Reyna, and his corporations, Cottonfields, Ltd., and ELR Enterprises, Inc., from a former client, Armando Aguirre, Sr. Richard Talbert, of the firm Talbert & McDaniel, represented both Reyna and Aguirre, Sr. in the transaction. According to Aguirre, Sr., Reyna coerced and pressured him into selling the property at an unfair value by falsely representing that the property would be confiscated by the IRS, DEA, or by local taxing districts. Aguirre, Sr. further alleges that attorney Talbert failed to properly advise him regarding the circumstances of the sale, the price, or the amount of realty being sold. Aguirre, Sr.’s sons and daughters-in-law, Armando Aguirre, Jr. and wife Hilda Aguirre, and Alberto Aguirre and wife Lou Ann Aguirre, also brought suit against these defendants. They claimed ownership of tracts of the real estate at issue by virtue of parol gifts from Aguirre, Sr. Talbert and Talbert & McDaniel (collectively “Talbert”) moved for summary judgment on traditional and no-evidence grounds, as did Ezequiel Reyna, Jr., Cottonfields, Ltd., and ELR Enterprises, Inc. (collectively “Reyna”). In separate orders, the trial court granted these motions for summary judgment without specifying the bases for its rulings. Standard of Review In a traditional summary judgment, the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997). In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the nonmovant will be taken as true. Id. Every reasonable inference must be indulged in favor of the nonmovant, and any doubts must be resolved in favor of the nonmovant. Id. In contrast, in a no-evidence motion for summary judgment, the non-movant must bring forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Zapata v. The Children’s Clinic, 997 S.W.2d 745, 747 (Tex. App.–Corpus Christi 1999, no pet.). Claims of Armando Aguirre, Jr., Hilda Aguirre, and Lou Ann Aguirre Talbert moved for summary judgment against Armando Aguirre, Jr., Hilda Aguirre, and Lou Ann Aguirre on several bases. Talbert argued, inter alia, that these plaintiffs had no interest in the land, that their claims were barred by the statute of frauds, and that Talbert had no notice of any of their claims. Talbert thus argued that these appellants lacked standing to pursue claims regarding the land. Reyna alleged in his motion for summary judgment that these plaintiffs had no legal, equitable, or justiciable interest in the land. According to Reyna, these plaintiffs’ equitable titles fail as a matter of law. In their response to these motions, these plaintiffs argued that they were the owners of equitable title to the property by virtue of a parol gift to them by Aguirre, Sr., and their actual possession of the realty. We disagree. First, the statute of frauds applies to a conveyance of land. Tex. Bus. & Com. Code Ann. § 26.01(b)(4) (Vernon 2002); Republic Nat’l Bank of Dallas v. Stetson, 390 S.W.2d 257, 262 (Tex. 1965) (holding parol gift of land violated statute of frauds). Second, plaintiffs who are claiming an equitable title assume the burden of proving that the subsequent purchaser of the legal title was not a bona fide purchaser. Westland Oil Dev. Corp. v. Gulf Oil Corp., 637 S.W.2d 903, 907 (Tex. 1982). Therefore, plaintiffs were required to raise a fact issue regarding whether Reyna and Talbert were on notice of their equitable title claims to the property in question. Id. Plaintiffs failed to carry this burden. The summary judgment evidence included an affidavit executed by Aguirre, Sr., in which he testified that there were no outstanding tenancies or leases affecting the property, and no sales contracts, contracts for deed, or other agreements of any kind affecting the property, except as specifically identified by contract. He further stated that there were no contracts or claims that could be asserted against the property. In their response to the motions for summary judgment, the plaintiffs argued and presented evidence that Aguirre, Sr. gave them tracts of the land at issue, that they possessed these portions of the property, and that they made valuable improvements to the property. Specifically, they built or improved homes on the property and lived there. The law is clear that one purchasing land may be charged with constructive notice of an occupant’s claims if the purchaser has a duty to ascertain the rights of a third-party possessor. Madison v. Gordon, 39 S.W.3d 604, 606 (Tex. 2001) (per curiam). However, the duty to ascertain the rights of third-party possessors arises only if the possession is “visible, open, exclusive, and unequivocal.” Id. Plaintiffs’ possession of the property at issue does not satisfy these requirements. Given that these individuals were residing on the property as members of the seller’s family, their possession was neither exclusive nor unequivocal. Id.; see Strong v. Strong, 128 Tex. 470, 98 S.W.2d 346, 350 (Tex. 1936) (holding claimant residing as member of the record title owner’s family was not open or exclusive possession). We conclude that the plaintiffs have failed to present evidence creating an issue of material fact to support their claims to equitable title to the property. Talbert further moved for summary judgment on grounds that he did not owe these plaintiffs a duty. According to Talbert, “a lawyer’s professional duty generally does not extend to persons whom the lawyer did not represent, even if the [lawyer’s] work was intended to benefit them.” See Barcelo v. Elliott, 923 S.W.2d 575, 579 (Tex. 1996). While we agree with this proposition as a general rule, the law is clear that this rule has a myriad of exceptions. See, e.g., McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 793-94 (Tex. 1999) (nonclient can sue attorney for negligent misrepresentation); McKnight v. Riddle & Brown, 877 S.W.2d 59, 61 (Tex. App.–Tyler 1994, writ denied) (nonclient can sue attorney for fraud); Burnap v. Linnartz, 914 S.W.2d 142, 148 (Tex. App.–San Antonio 1995, no writ) (nonclient can sue attorney for negligent failure to advise the party that attorney is not representing them). However, we need not further discuss these exceptions herein. These plaintiffs produced no summary judgment evidence whatsoever that Talbert was their attorney, or that they believed he was acting as their attorney, or that he made any representations to them, or that they relied on any representations that he may have made. We conclude that the trial court properly granted summary judgment against Armando Aguirre, Jr., Hilda Aguirre, and Lou Ann Aguirre in favor of appellees. Claims of Armando Aguirre, Sr. In his motion for summary judgment, Talbert argued that his duties to Aguirre, Sr. were limited by the scope of a dual representation agreement entered with Aguirre, Sr. and Reyna. According to Talbert, he fulfilled his duties to Aguirre pursuant to the agreement by effectuating a marketable conveyance of the property at issue. The dual representation agreement provides, in part: I am pleased that each of you are considering employing our firm in connection with the above transaction. Although it is not common for a lawyer to represent two (or more) parties in a transaction, a dual representation is permitted by professional ethics guidelines as long as two conditions are met. First, the lawyer must conclude, after a good-faith self-evaluation, that he can adequately represent the interests of each client. The multiple representation should not adversely affect the lawyer’s independent professional judgment on behalf of any client. Second, all clients must consent to the dual representation after full disclosure by the lawyer. In this transaction I have concluded that the first condition has been satisfied because I do believe that I can provide competent services to each of you (although I hope you will understand that we must reserve the right to withdraw from this dual representation if later events cause me in good faith to reach a different conclusion). This letter is intended to satisfy the second condition, that of disclosure and consent. Accordingly, I will confirm some of the possible effects that dual representation may have on you. Conflicts of Interest. If I determine that, because of differences between the parties, I can no longer represent each of you impartially I will inform you of the conflict, and I must then withdraw from representation. If this occurs, I will no longer be able to represent any party to the dispute . . . Scope of Employment. I am being hired solely to advise you on and document this real estate transaction. As part of this multiple representation, I am not responsible for and will not advise you on other transactions, nor will I give either of you any kind of tax advice with respect to this transaction. The letter further expressly addressed Talbert’s role in exercising professional judgment in representing the parties’ “sometimes competing interests,” and stated that although Talbert would “try to act as fairly as possible in judgment-call matters, it is certainly possible that one of you may not concur with my judgment.” The letter concludes that: Of course, I would have declined the dual representation before now - and thus would not even be giving you this disclosure if I had not already concluded that I can adequately represent both of you in this transaction; however, I also understand that you may feel differently. Therefore, I would appreciate your giving careful thought to the matters discussed in this letter. Aguirre accepted the terms of representation and signed the dual representation letter. See Tex. Disciplinary R. Prof’l Conduct 1.06(c), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon Supp. 2003). We conclude that the trial court properly granted Talbert’s motion for summary judgment against Aguirre, Sr. Reyna contends that he is entitled to summary judgment because (1) he did not owe a fiduciary duty to Aguirre, Sr., (2) any statements that he made were not a proximate cause of Aguirre, Sr.’s damages, if any, (3) Aguirre, Sr. suffered no damages, (4) Aguirre, Sr. cannot show any negligent acts on the part of the corporate defendants, (5) there is no evidence of damages to Aguirre, Sr.’s water well, (6) Aguirre, Sr. cannot show that the land at issue was undervalued, and (7) Aguirre, Sr. was fully aware of the terms of the transaction, including the scope of the land subject to sale and the price to be paid. Taking as true all evidence favorable to Aguirre, Sr. and indulging all reasonable inferences in his favor, we conclude that Aguirre, Sr. has not presented more than a scintilla of evidence, nor has he raised genuine issues of material fact sufficient to avoid summary judgment in favor of Reyna. The summary judgment evidence fails to show that Reyna made any misrepresentations to Aguirre, Sr., fails to show that any such representations were the proximate cause of any of the alleged damages, and fails to show that the subject property was undervalued or that Aguirre, Sr. otherwise suffered any damages. We conclude that the trial court properly granted Reyna’s motion for summary judgment against Aguirre, Sr. Conclusion The summary judgments are affirmed. Rogelio Valdez, Chief Justice Retired Justice Dorsey not participating. Opinion delivered and filed this 8th day of January, 2004.