Malpractice suit against Ford & Bergner dismissed

By Olivia Olsen | Aug 24, 2017

Ford Bergner malpractice lawsuit dismissed by Houston court

HOUSTON – A federal judge dismissed a malpractice suit Aug. 16 against attorney Don D. Ford and law firm Ford & Bergner LLP for lack of subject matter jurisdiction. 

The suit filed with the U.S. District Court of the Southern District of Texas stemmed from a case in which Ford & Bergner represented Juliette Fairley in an adult guardianship proceeding. Though her complaint against the law firm did not specify the case, Ford said in an email to The Record that he only represented Fairley to oppose her mother’s request for guardianship, refuting earlier claims by Fairley to The Record that she hired the firm to sue the nursing home where her father resides.

A guardianship case before the Bexar County Probate Court since 2011, in which Fairley is a party, shows that Ford Bergner LLP was assigned as attorney up until March of this year, when a request to withdraw was approved.

The Aug. 16 ruling also refutes earlier claims by Fairley that Ford & Bergner withheld files after she obtained new counsel.

Fairley had also made statements that Ford & Bergner mishandled her case when filing an appeal, citing the use of outdated real estate codes used by Ford & Bergner. Ford stated in an email to The Record that Fairley was not denied an appeal, that the court had simply ruled on the matter. Additionally, he said that the codes used were not outdated when they were submitted, but had changed between when the trial court ruled and when the appeal was filed.

In Ford & Bergner's motion to dismiss filed July 3, the firm further argued that Fairley's case was complicated due to her "poor procedural posture" in proceedings. As an example, the firm alleged that Fairley violated an earlier agreement with another party that both would drop competing guardianship applications, after which Fairley relocated her father from San Antonio to New York City without notifying the other party. In response, the party returned to court to re-assert guardianship. 

The firm also argued that a number of lawsuits filed at the local and county level were dismissed as meritless. The motion to dismiss states that Fairley's father's nursing home chose to refuse access to her because of "the poor relationship it enjoyed with Juliette, which was exacerbated after Juliette sued Lakeside for civil rights violations in February 2015."

In a countersuit, the firm sought more than $26,000 in unpaid legal fees from Fairley. Fairley dismissed the fees as "overcharging" in her previous statements to The Record. The Aug. 16 opinion did not directly address the countersuit.

Ultimately, the court wrote in its opinion that the damages sought by Fairley, whether through attorney's fees or implied damages, did not meet the $75,000 threshold necessary to be tried in federal court.

As a result, motions to dismiss for failure to state a claim, and a motion by Fairley to file an amicus brief in the case were denied as moot.

Don D. Ford was the only named attorney in the suit, along with the law firm itself; a previous Record article incorrectly identified Ford & Bergner attorney Richard Bergner as an additional named defendant.

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