The intricacies of claim splitting and summary judgment procedure prevented a lawyer, who had won the case in which he defended the client, from using the victory as a complete defense in the client’s subsequent legal malpractice action. In a procedural misstep in Archer v. Medical Protective Co., No. 07-05-0258-CV, 2006 Tex. App. Lexis 6114 (Tex. App.–Amarillo July 13, 2006), the motion for summary judgment addressed the breach of fiduciary claims against the lawyer only by reclassifying them as legal malpractice claims under the anti-fracturing rule and then attacking the legal malpractice claims. When the court of appeals disagreed that the breach of fiduciary duty claims could entirely be reclassified as legal malpractice claims, there were no separate grounds attacking the breach of fiduciary duty claims and, therefore, the court of appeals had to reverse the summary judgment on those claims and return them to the trial court.

Grace Emily Archer, M.D., was insured by Medical Protective Company (MPC). Archer was sued by one of her patients for medical malpractice. Prior to trial, the patient supposedly offered to settle the litigation for a sum within policy limits. MPC allegedly refused to settle. Thereafter, a jury found Archer had committed malpractice and awarded damages exceeding her policy limits. The trial court entered judgment upon the verdict, which judgment Archer appealed. Eventually, the Amarillo Court of Appeals reversed the judgment and rendered its own judgment absolving Archer of liability. See Archer v. Warren, 118 S.W.3d 779 (Tex. App. – Amarillo 2003, no pet.). Thereafter, Archer sued both MPC, her trial counsel (Charles Moss), and counsel's law firm (Peterson, Farris, Moss, Pruitt & Parker, P.C.) to recover for damages purportedly relating to their failure to settle the underlying medical malpractice cause before trial. After the trial court granted the summary judgment motions of MPC, Moss and his law firm, Archer appealed.

Archer contended that the trial court erred in entering summary judgment for her trial counsel and his firm (collectively referred to as Moss). Archer asserted three causes of action against Moss: legal malpractice, breach of fiduciary duty, and breach of the duty to act in good faith and deal fairly. The claims were based upon counsel's (1) neglecting a legal matter, (2) failing to "carry out completely the obligations . . . owed to Archer, including but not limited to failing to adequately evaluate the case and . . . communicate to Archer the same information . . . communicated to" MPC, and (3) failing to "represent Archer's interests notwithstanding the interests of [MPC] in a situation in which the representation of Archer was adversely limited by [counsel's] own interests in keeping the business and favor of" MPC.

In addressing each of the aforementioned allegations in the summary judgment motion, Moss accused Archer of simply splitting one claim into the three different causes of action. Her sole complaint, in his view, was nothing more than a claim for legal malpractice. This theme framed the parameters of his motion for summary judgment (as well as his appellate brief wherein he posited that her "claims for breach of fiduciary duty are in reality nothing more than claims for legal negligence that Archer should not be permitted to fracture"). In other words, the grounds alleged in the summary judgment motion referred to the malpractice action, as opposed to the choses sounding in breached fiduciary duty. Additionally, those grounds were limitations, the lack of causation, and the effect of the prior decision reversing and rendering judgment in the underlying suit between Archer and her patient.

Unfortunately for the lawyer, the Court of Appeals disagreed on the threshold step of reclassifying all of the breach of fiduciary duty claims as legal malpractice claims:

[O]ur interpretation of the record and Archer's pleadings differs from that of Moss. We agree that under Texas law, a plaintiff cannot fracture a legal malpractice claim into multiple causes of action. Aiken v. Hancock, 115 S.W.3d 26, 28 (Tex. App.–San Antonio 2003, pet. denied). We also acknowledge that the allegations of misdoing in Archer's live pleading were somewhat spartan. Nonetheless, they easily can be divided into two categories. The first concerns the quality of Moss' performance, e.g., his neglecting matters, mis-evaluating the case, and omitting to communicate with his client. So concerned, they can be viewed as claims involving legal malpractice. See id. at 28 (noting that the thrust of a legal malpractice claim involves the adequacy of counsel's representation). The second concerns a matter of divided loyalties, e.g., the pursuit of his own pecuniary interests over the interests of his client. So focused, they can be viewed as claims involving breached fiduciary duties. See Aiken v. Hancock, 115 S.W.3d at 28 (noting that claims of breached fiduciary duties involve conflicts of interest, self-dealing, the use of confidential information, among other things). Given that her allegations can be so classified, we cannot say that she impermissibly fractured one malpractice claim into multiple causes of action.

Next, with regard to the malpractice claims, the court affirmed the summary judgment in favor of the lawyer, finding the claims barred by the fact that the client won the lawsuit:

Moss attempted to defeat [the legal malpractice claims] via summary judgment by alleging that they were negated by the reversal and rendition of the judgment in the underlying suit between Archer and her patient. So too did he contend that limitations, the lack of a sufficient causal relationship, and the want of any "reasonable possibility of recovery under any state law claims" also defeated her causes of action. Also alleged was that our reversal and rendition of the underlying judgment established that Moss "conformed to the standards set by the legal profession."

Now, in granting summary judgment, the trial court specified no particular ground upon which it relied. Thus, it was incumbent upon Archer to illustrate why none supported the trial court's decision. Pruett v. City of Amarillo, 947 S.W.2d 718, 720 (Tex. App.–Amarillo 1997, writ denied). Thus, for instance, she was obligated, on appeal, to show why our reversal of the underlying judgment did not establish that Moss' conduct conformed to the performance standards required of lawyers as a matter of law. Instead of doing so, however, Archer simply stated, in her appellate brief, that Moss was obligated to offer evidence illustrating that he complied with pertinent legal standards and did not do so. Why our opinion reversing the underlying judgment, which opinion Moss attached to his summary judgment motion, was not that evidence went unexplained. Nor did she explain why that opinion and its effect failed to establish, as a matter of law, that Moss complied with the legal standards governing his performance. And, in failing in those respects, Archer did not negate the ground as basis for entering summary judgment upon her malpractice claims. In short, Archer failed to carry her burden of proof on appeal viz. her allegation that the trial court erred in denying her malpractice claim.

The lawyer did not fare so well on the breach of fiduciary duty claims because the motion for summary judgment had failed to also attack them on their merits, as opposed to simply attempting to reclassify them as legal malpractice claims:

Left, however, are the claims founded upon Moss' purported divided loyalties. Furthermore, none of his summary judgment grounds can be read as attacking them. Again, as evinced by his summary judgment motion and accompanying brief, each one was directed against Archer's legal malpractice claim, as opposed to her claims sounding in breached fiduciary duties. So, because (1) we have held the allegations in Archer's live pleading to fall within the realm of different causes of action, and (2) the grounds uttered for summary judgment pertained simply to Archer's claims for malpractice, the trial court erred in granting judgment upon those causes sounding in theories other than legal malpractice.

Accordingly, we reverse that portion of the summary judgment wherein the trial court ordered that Archer take nothing upon her claim that Moss supposedly breached fiduciary duties owed her due to his pursuit of his own pecuniary interest and remand that allegation and cause of action to the trial court. In doing so, the court makes no comment as to the viability of Archer's claim. In all other respects, the summary judgment is affirmed.