Appellate court affirms dismissal of woman's malpractice claims against law firm Walker Bright

By Sandra Lane | Aug 6, 2018

HOUSTON – The 14th Court of Appeals affirmed the 53rd District Court’s judgment in dismissing a legal malpractice suit filed by a widow who had retained a law firm to represent her.

Lou Anne Perkins alleged that the firm of Walker Bright had been negligent because the firm failed to timely file her lawsuit within the statute of limitations.

In affirming the 53rd District Court of Travis County's ruling, Justice Kevin Jewell wrote in the court's July 24 opinion that “Appellees filed a combined traditional and no-evidence motion for summary judgment, which the trial court granted. Concluding that the trial court properly granted appellees’ no-evidence motion, we affirm the trial court’s judgment, dismissing all of Perkins’s claims against appellees. 

"We further conclude that she failed to produce any evidence supporting an essential element of her legal malpractice claim,” the opinion states.

In response to Perkins’ lawsuit, Walker Bright filed a combined traditional and no-evidence motion for summary judgment. According to opinion, the law firm argued that the statute of limitations for Perkins’ health care liability claim had expired before Perkins and Walker Bright entered into an attorney-client relationship.

As stated in the court’s opinion, the reason for Perkins seeking legal representation was that she claimed Apria Healthcare had allegedly provided faulty oxygen tanks to her late husband, Warner W. Perkins, which resulted in his death. Walker Bright filed suit against Apria on Oct. 7, 2010, and Apria moved for summary judgment, saying that Perkins’ claim was subject to a two-year statute of limitations.

Apria stated that the last date the company had delivered oxygen to Warner was Sept. 26, 2008. He was hospitalized on Oct. 3, 2008, and died on Oct. 16, 2008. Perkins contacted the Walker Bright firm on Sept. 27, 2010. Her fraud claim accused the law firm of making one or more false material representations concerning their ability to pursue a claim against Apria.

In discussing his reasons for upholding the trial court’s decision, Jewel pointed out that in her petition, Perkins asserted claims for legal malpractice, breach of fiduciary duty, breach of contract, unjust enrichment and fraud. In response, Walker Bright stated that Perkins’ only potentially viable cause of action based on the facts pleaded is one for legal malpractice. 

The judge agreed and said, “...All other claims are not actionable because they violate Texas’s prohibition against fracturing in the legal malpractice context. Texas law does not permit a plaintiff to divide or 'fracture' a legal malpractice claim into additional causes of action that do not sound in negligence.” 

He also said that these claims should be pursued only as a professional negligence claim. 

“For these reasons, we conclude that the trial court did not err in granting summary judgment in appellees’ favor... Having reached this conclusion, we need not address whether the trial court properly granted summary judgment on appellees’ contention that Perkins’s Apria claim was barred by limitations before their representation began. We overrule all of Perkins’s issues on appeal. We affirm the trial court’s judgment,” the opinion states.

Justice Martha Hill Jamison and Justice Ken Wise concurred.

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