Herbert N. Lackshin v. Chris A. Spofford and Chris A. Spofford, P.C.

Affirmed and Memorandum Opinion filed September 7, 2004 Affirmed and Memorandum Opinion filed September 7, 2004. In The Fourteenth Court of Appeals ____________ NO. 14-03-00977-CV ____________ HERBERT N. LACKSHIN, Appellant V. CHRIS A. SPOFFORD AND CHRIS A. SPOFFORD, P.C., Appellees ____________________________________________________________ On Appeal from the 308th District Court Harris County, Texas Trial Court Cause No. 02-02466 ____________________________________________________________ M E M O R A N D U M   O P I N I O N This is an attorney-immunity case in which appellant Herbert N. Lackshin asserts that the trial court erred in dismissing his fraud, conspiracy to defraud, and conversion claims against appellees Chris A. Spofford and Chris A. Spofford, P.C. based on Spofford=s alleged immunity, as a lawyer, arising from the legal representation of Lackshin=s former wife in the couple=s divorce. Because we conclude that Lackshin=s claims do not fall within an exception to the attorney immunity doctrine, we affirm the trial court=s judgment. I. Factual and Procedural Background On January 18, 2002, appellant Herbert N. Lackshin (AHerbert@) and his wife, Pataricia Kay Lackshin (APataricia@) had been separated for several months and Patricia was aware that Herbert intended to filed a petition for divorce in the near future. On that date, Pataricia met with attorney Chris A. Spofford.[1] Pataricia retained Spofford as counsel for the anticipated divorce proceeding. She signed a contract with Spofford regarding his professional services as her attorney. This contract provided for a $40,000 retainer. Pataricia presented Spofford with nine credit cards on which she had joint signature authority with Herbert. Pataricia told Spofford she was concerned that the credit lines on these cards had been cancelled or soon would be cancelled. According to Spofford=s testimony, A[Pataricia] therefore authorized me to charge each card to it=s [sic] limit to assure sufficient money for her representation in her divorce. It was also agreed that certain moneys would be refunded to her as necessary which she could hold for future fees.@ After determining that the nine credit cards had not been cancelled, Spofford charged a total amount of $68,408 to Chris A. Spofford, P.C. According to Spofford=s testimony, Spofford later credited two of the cards in the total amount of $6,462. Spofford also admits that he Arefunded@ a total of $11,000 to Pataricia. On or about January 22, 2002, Herbert filed a divorce action against Pataricia. In June of 2002, Pataricia terminated Spofford as her attorney. On December 13, 2002, the trial court signed a final divorce decree. According to Herbert, this final divorce decree ordered him to pay $32,346 of the Spofford credit-card charges. Herbert filed this lawsuit against Spofford asserting the following factual allegations:[2] ! On or about January 18, 2002, without Herbert=s knowledge and consent and notwithstanding the fact that the agreed retainer was only $40,000, Spofford submitted to nine credit-card companies charges for legal fees totaling $68,408, charging to the available credit limit on each card. ! On January 18, 2002, Spofford paid Pataricia $1,000 in cash from monies received from these credit-card charges. ! On January 25, 2002, Spofford cancelled the charges on a credit card so Pataricia could have a credit card with available credit to use. ! Spofford later paid Pataricia an additional $10,000 in cash out of the proceeds from the credit-card charges. ! Spofford=s true intent was to use the credit-card collections as a Abank@ for Pataricia during the divorce. ! As a result, Herbert sustained damages to his credit rating and is now obligated to pay the credit-card companies in excess of $30,000. Herbert asserted a fraud claim against Spofford based on Spofford=s allegedly false and fictitious legal fee charges against Herbert=s credit-card accounts substantially in excess of the retainer agreement. Herbert also asserted that a substantial portion of these legal-fee charges were not made for goods and services as represented by Spofford. Additionally, Herbert alleged Spofford conspired with Pataricia to perpetuate a fraud by creating fictitious legal-fee charges which were charged against Herbert=s credit-card accounts for the benefit of Spofford, so that Spofford could act as Pataricia=s bank during the divorce action. Herbert also alleged Spofford converted his funds by charging his credit cards for legal fee charges in excess of Spofford=s retainer agreement. Spofford filed a traditional motion for summary judgment. In this motion, the only ground for relief that Spofford asserted was absolute immunity from suit because, when Spofford engaged in the allegedly actionable conduct, Spofford was allegedly representing Pataricia in a matter in which Herbert was the opposing party. On April 11, 2003, the trial court granted Spofford=s motion for summary judgment. Herbert timely filed a notice of appeal, although the notice incorrectly states that the trial court signed its judgment on April 10, 2003. II. Issue Presented On appeal, Herbert asserts the trial court erred in granting Spofford=s motion for summary judgment. III. Standard of Review Summary judgment is appropriate when all elements of an affirmative defense are established as a matter of law. See Science Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). In reviewing the trial court=s summary judgment, we take all evidence favorable to Herbert as true, and indulge every reasonable inference in his favor. Id. IV. Analysis A. Does this court lack appellate jurisdiction based on an incorrect date in Herbert=s notice of appeal? As a threshold matter, Spofford asserts that we lack appellate jurisdiction because the notices of appeal filed by Herbert state the trial court judgment was signed on April 10, 2003, when it actually was signed on April 11, 2003. The only authority Spofford cites for this argument is the part of the rules of appellate procedure that requires the notice of appeal to state the date of the judgment from which the appeal is taken. See Tex. R. App. P. 25.1 (d)(2). We conclude that Herbert=s error as to the date of the trial court=s judgment does not deprive this court of appellate jurisdiction. See Noorian v. McCandless, 37 S.W.3d 170, 173 (Tex. App.CHouston [1st Dist.] 2001, pet. denied) (holding that notice of appeal=s erroneous statement of the final judgment=s date does not deprive the appellate court of jurisdiction); Griggs v. Wood, 2001 WL 987906, at *1 (Tex. App.CHouston [14th Dist.] Aug. 30, 2001, no pet.) (not designated for publication) (holding that notice of appeal=s failure to state the final judgment=s date does not deprive the appellate court of jurisdiction). B. Did the trial court err in granting summary judgment based on Spofford=s claim of attorney immunity from suit? The only ground in Spofford=s motion and the ground specified in the trial court=s judgment is that Spofford has attorney immunity from suit because, when Spofford engaged in the allegedly actionable conduct, Spofford was allegedly providing legal representation to Pataricia in a matter in which Herbert was the opposing party. Though attorneys owe no general negligence duty to opposing parties,[3] they are still subject to liability to nonclients, including opposing parties, based on their fraudulent or malicious conduct, even if the attorneys= conduct was in the course of representing their client. Poole v. Houston & T.C. Ry., 58 Tex. 134, 137 (Tex. 1882) (holding that attorneys acting on behalf of their clients are not shielded from liability for their fraudulent conduct because fraudulent acts are Aentirely foreign to the duties of an attorney@); Toles v. Toles, 113 S.W.3d 899, 911B12 (Tex. App.CDallas 2003, no pet.) (holding that attorney who represented former husband in divorce action was not immune from claim of former wife alleging attorney aided and abetted a breach of fiduciary duty); Querner v. Rindfuss, 966 S.W.2d 661, 666-670 (Tex. App.CSan Antonio 1998, pet. denied) (finding attorney in probate litigation was not immune from liability for alleged conspiracy to engage in fraud); Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.CHouston [1st Dist.] 1985, no writ) (holding that attorney may be liable to opposing party in a transaction for conspiracy to defraud the opposing party because attorney immunity does not apply to attorney=s allegedly fraudulent or malicious conduct). Courts of appeals have differed in how they treat assertions of attorney immunity and alleged exceptions to this doctrine. If defendants prove as a matter of law that their allegedly actionable conduct was undertaken in the representation of a third-party client, then they have shown their entitlement to summary judgment on all claims, except for alleged torts based on fraudulent or malicious conduct. See Toles, 113 S.W.3d at 911B12; Mendoza v. Fleming, 41 S.W.3d 781, 787 (Tex. App.CCorpus Christi 2001, no pet.); Chapman Children=s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 441B42 (Tex. App.CHouston [14th Dist.] 2000, pet. denied). However, courts of appeals differ as to how they handle the assertion by plaintiffs of an exception to attorney immunity. The Dallas Court of Appeals has indicated that, if the only ground for summary judgment is attorney immunity, then all that the plaintiffs need to do to fall within an exception is to allege a claim that purports to be an intentional tort based on fraudulent or malicious conduct. See Toles, 113 S.W.3d at 911B13. If plaintiffs purport to allege these claims, then, under this approach, the trial court should deny a motion for summary judgment based on attorney immunity as to these claims, and if the defendant believes that these alleged claims are deficient, the defendant should assert a motion for summary judgment attacking the merits of these claims. See Toles, 113 S.W.3d at 911B12. The Corpus Christi Court of Appeals has held that part of the defendant=s burden in moving for summary judgment in reliance on attorney immunity is to conclusively prove that the attorney=s alleged wrongful conduct does not fall within an exception to attorney immunity. Mendoza, 41 S.W.3d at 787. On the other hand, once a defendant has filed a motion for summary judgment asserting immunity and proving as a matter of law that the allegedly actionable conduct was undertaken in the legal representation of a third-party client, this court has required the plaintiff to either raise a fact issue as to whether that conduct was undertaken in the representation of a third-party client or plead sufficient facts to show that the plaintiff asserts one or more claims that fall within an exception to attorney immunity. See Chapman Children=s Trust, 32 S.W.3d at 441B42. Therefore, under this court=s precedent, we must determine (1) if the summary-judgment evidence conclusively proves that Spofford=s allegedly actionable conduct occurred during his legal representation of Pataricia; and (2) if so, whether Herbert alleged sufficient facts in his petition to show that Spofford committed fraud C the exception asserted by Herbert. 1. Did the summary-judgment evidence conclusively prove that Spofford=s allegedly actionable conduct occurred during the legal representation of Pataricia? On appeal, Herbert asserts that Spofford=s actions were outside the scope of his legal representation of Pataricia because the divorce action had not yet been filed when Spofford made these charges on Pataricia and Herbert=s credit cards. Herbert also asserts that, rather than acting as her attorney, Spofford was allegedly acting as Pataricia=s bank when he made these charges in excess of the agreed retainer amount and when he refunded $11,000 of these charges to Patarcia. The material facts are not disputed. On January 18, 2002, Pataricia was aware that Herbert intended to file a petition for divorce in the near future, and she retained Spofford as her counsel, entering into a written agreement that provided for a $40,000 retainer. Pataricia had signature authority and the right to use the nine credit cards in question when she authorized Spofford to charge $68,408 on these credit cards. Four days later, Herbert filed the anticipated divorce suit against Pataricia, and Spofford represented her in that legal proceeding until June of 2002. Spofford refunded $11,000 to Pataricia at her request. Although the actions of Spofford did not take place in a courtroom, Spofford was charging a client for a retainer and refunding part of that retainer to his client. In making fee arrangements and collecting and charging fees to clients, attorneys are conducting activities regarding the representation of their client, during which they owe their clients duties. See Piro v. Sarofim, 80 S.W.2d 717, 718B19 (Tex. App.CHouston [1st Dist.] 2002, no pet.) (stating that, before parties settled, court of appeals had affirmed three-million dollar judgment against divorce attorneys based on their breaching their fiduciary duty to client by charging excessive fees); Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 22 (Tex. App.CTyler 2000, pet. denied) (affirming finding that divorce attorneys breached their fiduciary duty to client by manner in which attorneys handled billing and fee arrangements). We conclude that, under the undisputed summary-judgment evidence, Spofford took these actions as part of his legal representation of Pataricia in regards to the impending or pending divorce action. 2. Did Herbert allege sufficient facts in his petition to show that Spofford committed fraud? Taking all of the factual allegations in Herbert=s petition as true, we must next decide if Herbert alleged sufficient facts to show that Spofford committed fraud or conspired to defraud Herbert. See Chapman Children=s Trust, 32 S.W.3d at 441B42. We conclude that Herbert has not alleged such facts to show that he is under the fraud exception to the attorney immunity doctrine. It is undisputed that Pataricia had the legal authority to charge $68,408 to the nine credit cards in question and that she consented to Spofford charging this total amount. Herbert has not asserted that he relied on any alleged misrepresentation of Spofford to his detriment. Though Herbert was not aware of the credit-card charges at the time they were incurred, he disputed the charges after receiving the bills. Because Patricia had properly incurred these charges, Herbert=s dispute was unsuccessful. Herbert seems to argue that Spofford=s actions were fraudulent because Spofford charged more than the $40,000 initial retainer provided for in his contract with Pataricia. However, because Pataricia agreed to Spofford=s actions, she effectively agreed to increase the retainer amount to $68,408. This does not make Spofford=s charges fraudulent as to Herbert. Herbert also indicates that the refund of $11,000 shows fraud. However, even if we presume that Spofford and Pataricia agreed in advance that Spofford would refund $11,000, Herbert has still not alleged detrimental reliance on an intentional misrepresentation by Spofford. Furthermore, the trial court in the divorce decree reduced the amount of the charges that Herbert had to pay by $29,600, significantly more than this $11,000. In sum, we conclude that Herbert has not pleaded sufficient facts to place his claims within an exception to the attorney immunity doctrine on which Spofford sought summary judgment. See Chapman Children=s Trust, 32 S.W.3d at 441B42. V. Conclusion Spofford moved for summary judgment asserting the affirmative defense of attorney immunity. The summary-judgment evidence conclusively proved that Spofford=s allegedly actionable conduct occurred during his legal representation of a client (Pataricia). Because Herbert did not allege sufficient facts to show that Spofford=s alleged conduct falls within an exception to this affirmative defense, the trial court did not err in granting summary judgment. Accordingly, we overrule Herbert=s sole issue on appeal and affirm the trial court=s judgment. /s/ Kem Thompson Frost Justice Judgment rendered and Memorandum Opinion filed September 7, 2004. Panel consists of Justices Edelman, Frost, and Seymore. [1] For ease of reference, appellees Chris A. Spofford and Chris A. Spofford, P.C. are sometimes referred to herein collectively as ASpofford.@ [2] In prior petitions, Herbert asserted additional claims against Spofford for rescission, unjust enrichment, negligence, and forfeiture. However, Herbert removed these claims from his Third Amended Petition, and he currently asserts only claims for fraud, conspiracy to defraud, and conversion. [3] Despite the absence of a general negligence duty as to nonclients, attorneys may be liable to nonclients for negligent misrepresentation. See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791B94 (Tex. 1999).