Appeals court agrees Dugas owed no duty to Dutton's client

David Yates Jun. 18, 2008, 9:23am


A battle royal between two lawyers ended with a victory for a Beaumont attorney when the Texas Ninth District Court of Appeals upheld a lower court's ruling in favor of Clay Dugas.

Houston attorney Harold Dutton had appealed Jefferson County 60th District Judge Gary Sanderson's declaratory judgment that Dugas and his firm owed no duty to a client of Dutton's. However on June 12 the appeals court upheld Sanderson's in favor of Dugas in an opinion authored by Justice Hollis Horton.

The case began when Elizabeth Roberts hired Dugas & Associates to handle a survival claim after the death of her brother, Vincent Lazard. Roberts represented to Dugas that she was "the proper party" to bring suit and that she would undertake the steps required to be appointed as the personal representative of her brother's estate. She also represented to Dugas that no administration of Lazard's estate was pending.

"Based upon its relationship with (Roberts), Dugas & Associates filed a healthcare liability suit against (Lazard's) healthcare providers on behalf of his estate," Justice Horton writes.

However Dugas then learned that prior to filing the suit, Patricia Covington had been appointed as executor of Lazard's estate and that Covington had hired Harold Dutton to prosecute healthcare liability claims.

Dugas then filed suit against Dutton, stating that he was "surprised to learn Patricia Covington had been appointed executor" of Lazard's estate.

Dutton first contacted Dugas & Associates to represent Covington in August 2002. Dugas & Associates filed an amended petition in October 2002 naming Covington as Lazard's appointed personal representative. Roberts was never named a co-executor of Lazard's estate, according to court documents.

Because Roberts did not have standing to represent Lazard's estate, the estate's claims against his healthcare providers were barred. In addition, the claims of Lazard's estate, which Covington first asserted in October 2002, were barred by limitations.

After the courts resolved the limitations issue against Covington, Dutton sent Dugas & Associates notice of a legal malpractice claim. Dugas & Associates then filed a declaratory judgment action seeking a declaration that it owed no duty to Covington to pursue claims against Lazzard's healthcare providers prior to the time Dutton requested Dugas & Associates do so on Covington 's behalf in August 2002, the opinion stated.

Dugas' petition for declaratory judgment named both Dutton and Covington as defendants. Soon after, Judge Sanderson granted Dugas & Associates' motion and entered a judgment stating that the firm "owed no duty to Patricia Covington before Aug. 2, 2002," stated court documents and the opinion.

"The trial court addressed Dugas & Associates' lack of duty to (Covington); it did not address whether Dutton also became the firm's client," Horton wrote.

"Under the Rules of Appellate Procedure, Dutton can appeal the declaratory judgment because any party 'who seeks to alter the trial court's judgment' can file a notice of appeal in which the appellate court's jurisdiction is invoked 'over all parties to the trial court's judgment.' Tex. R. App. P. 25.1(b), (c)."

In his appeal, Dutton argued that Dugas & Associates' duty to Covington arose because the firm undertook the task of representing Lazard's estate before limitations expired. Dutton asserts that the legal malpractice claim is the estate's, which is the entity in whose name Dugas & Associates asserted a claim, and not Covington 's individually.

Dutton concluded that Dugas & Associates should not be "absolved of liability for its legal malpractice in failing to properly pursue the wrongful death claims accruing to the Estate of Vincent Lazard on the basis of a lack of privity of contract between" Covington and the law firm, the opinion stated.

"An attorney owes a legal duty only to his client and not to third parties that the attorney's actions may have damaged," Justice Horton wrote.

"Generally, only the appointed personal representative may bring survival claims on behalf of an estate. Under the circumstances presented here, we find no error in the trial court's judgment declaring that Dugas & Associates owed no duty to (Covington) before Aug. 2, 2002. We overrule Dutton's sole issue on appeal and affirm the trial court's judgment."

Appeals case No. NO. 09-07-363 CV
Trial case No. B170-607

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