Brown v. Green (Tex.App.- Houston [14th Dist.] Sep. 1, 2009)(Hedges)
(legal malpractice, breach of fiduciary duty)
AFFIRMED: Opinion by Chief Justice Hedges
Before Chief Justice Hedges, Justices Brock Yates and Frost
14-08-00592-CV Willard E. Brown III v. George Maynard Green and Sheehy, Lovelace & Mayfield, P.C.
Appeal from 74th District Court of McLennan County (name of judge not shown on docket)
O P I N I O N
Pursuant to section 73.001 of the Texas Government Code, the Texas Supreme Court has transferred this
cause from the Tenth Court of Appeals to the Fourteenth Court of Appeals. Tex. Gov't Code Ann. § 73.001.
In this cause, Willard E. Brown III appeals from a grant of summary judgment favoring appellees, attorney
George Maynard Green and the law firm of Sheehy, Lovelace & Mayfield, P.C. Brown sued appellees
alleging breach of fiduciary duty and professional malpractice. The trial court granted summary judgment on
both traditional and no-evidence grounds against each of these causes of action. In four issues on appeal,
Brown attacks the trial court's grant of (1) a traditional summary judgment against the breach of fiduciary duty
cause of action; (2) a no-evidence summary judgment against that cause of action; (3) a traditional summary
judgment against the malpractice cause of action; and (4) a no-evidence summary judgment against that
cause of action. We affirm.
Brown asserts that appellees provided him with legal advice and services over a twelve-year period
beginning in 1987. Brown further alleges that in 2002, appellees began representing his now former wife in
divorce proceedings and other lawsuits against Brown, utilizing confidential information gained during the
prior relationship with Brown. Although Brown maintains that a continuous, albeit often informal, attorney-
client relationship existed from 1987 to 1999, he emphasizes certain matters as the basis for his claim that
appellees breached their fiduciary duty to him by using his own confidential information against him. Included
among these matters are (1) involvement of Brown and appellees in events related to a limited partnership;
(2) the handling of “family resources," including management of trust accounts, mineral assets, and of
separate and community property; and (3) issues surrounding the Bolton Foundation, a charitable foundation
formed by the father of Brown's ex-wife, Catherine Bolton. Brown additionally contends that appellees
breached their fiduciary duty by violating an attorney's duties of loyalty and candor to a client and engaging
in various inappropriate conduct, described in detail below. Brown further contends that appellees committed
malpractice by manufacturing evidence and by filing suit against Brown.
As stated above, appellees brought traditional and no-evidence grounds for summary judgment on both
Brown's breach of fiduciary duty and malpractice causes of action. The trial court granted summary
judgment without specifying the basis therefore. Accordingly, if we find that the judgment is supported by the
no-evidence grounds, we need not consider the traditional grounds raised. Because, in this opinion, we
indeed find that judgment was properly granted on the no-evidence grounds, we will consider only the
evidence Brown produced in response to the no-evidence motion. See City of Keller v. Wilson, 168 S.W.3d
802, 825 (Tex. 2005) (explaining that the rule governing no-evidence summary judgments does not permit
evidence to be filed in support of such a motion; thus, consideration is limited to the evidence contrary to the
B. Brown's Affidavit 
In his affidavit attached to his response, Brown stated that he first met Green in 1987 at a meeting of
investors in an “oil and gas limited partnership . . . EPC 1980-1." Green, an attorney with Sheehy, Lovelace
& Mayfield, P.C., was then representing another investor. At the meeting, certain minority interest owners
expressed concern with the management of the partnership by the general partner. Green spoke at this
meeting and subsequent meetings, and eventually, Brown contacted Green personally and offered to head
up an effort to resolve the minority group's differences with the general partner. Brown says that he shared
specifics with Green about his investment in EPC 1980-1. As the effort progressed, Brown wrote letters to
other limited partners which Green reviewed for liability purposes. Green further advised Brown regarding
obtaining indemnity forms from the other partners. In January 1989, the general partner filed a declaratory
judgment action against the limited partners. The limited partners hired a different law firm than Sheehy,
Lovelace & Mayfield, but Brown averred that Green “typically attended" status meetings on the litigation.
Brown further asserted that he consulted with Green regarding the terms of service for the other law firm and
that Green agreed Brown could continue to seek his advice regarding any potential liability Brown might have
in the matter. According to Brown, he and Green discussed the status of the case “[f]rom time to time." The
case settled in 1990. While considering the feasibility of forming a new general partner for EPC 1980-1,
Brown told Green that “the vast majority" of the assets owned by Brown and his wife were in his wife's name
and that most of his income derived from EPC 1980-1. He states that Green advised him to take
compensation, in the event he managed the new general partner, in the form of reimbursements and perks
rather than salary. Brown used a firm other than Sheehy, Lovelace & Mayfield to form the new general
In his affidavit, Brown further states that “[w]hen personal matters involving my family arose, . . . I sought
advice from [Green]." He and Green “enjoyed a friendly relationship," and Green rarely billed him.
In 1996, Brown recommended to his wife's half-sister, Margie Clifton, that Green draft a new will for her.
Afterwards, Clifton fell into a dispute regarding management of certain trusts of which she was a beneficiary.
Brown again urged Clifton to consult Green, and Green filed suit on Clifton's behalf against her son. Brown
maintains that during this time, he “repeatedly voiced [his] concerns" to Green about the potential for his
being sued for advising Clifton. According to Brown, Green “agreed that he would serve as [Brown's]
attorney in any matters relating to the Clifton lawsuit." Although Brown told Green to bill him, Green insisted
that Clifton would not want Brown to incur any expenses for having advised her. Brown says that during this
litigation, he shared confidential information with Green regarding various disputes involving his wife's family.
He gave Green “a great deal of financial information" regarding his wife's trusts, which were similar to
Clifton's. When Brown was noticed for deposition in the litigation, Green originally agreed to represent him
and even filed a motion to quash on Brown's behalf. Green subsequently told Brown that he could not
represent him at the deposition; however, Green did coordinate to some extent with the counsel hired to
represent Brown. Brown further maintains that he was very involved in Clifton's prosecution of the lawsuit
and that his agreement with Green was that Green had represented him in the past and could represent him
in the future but could not represent him at the deposition. According to Brown, Clifton was represented in
the matter by Sheehy, Lovelace & Mayfield until 1999.
Green filed a divorce petition on Bolton's behalf in January 2002. One issue that arose during the divorce
proceedings involved control of the Bolton Foundation, a charitable foundation created by Bolton's father. At
that time, Bolton, Brown, and Brown's sister were the three foundation directors. According to Brown, Bolton
asked him and his sister to resign, but they refused. When Green attempted to change the foundation's
address, Brown told him that he could not act without board authorization. At one point, Brown's sister
received a letter from Green stating that Bolton had discovered a resignation letter from the sister and had
accepted it. Brown states that he knew that (1) no such letter had been submitted, (2) Bolton could not
accept a director's resignation without board approval, and (3) the resignation was a “bogus document."
In April 2002, Green filed a lawsuit on behalf of the foundation, seeking removal of Brown and his sister from
the board. Brown contends that the filing of the lawsuit caused him to hire an attorney and incur legal costs.
In June 2002, after Brown filed a motion to disqualify Green in the divorce action, Green withdrew as counsel
in that case and in the Bolton Foundation lawsuit. The Bolton Foundation lawsuit was subsequently
nonsuited on June 24, 2002. Charles Hodges, an attorney not associated with appellees, replaced Green as
Bolton's attorney in the divorce action, and John Cullar, also not associated with appellees, replaced Green
in the Bolton Foundation lawsuit, filing new pleadings. Brown then filed a second motion to disqualify Green
in the divorce action, alleging that Green was sharing confidential information with Hodges.
C. Divorce Attorney's Affidavit
In his affidavit, Mark Morris, Brown's attorney in the divorce action, averred that when he viewed certain
documents made available but not produced in the case, he discovered, among other things, the following:
(1) an “engagement letter" from Green to Bolton in which Green allegedly stated that the divorce would be
filed in a particular judge's court because of the firm's “special relationship with that Court"; (2) a handwritten
note from Bolton to her subsequent attorney, Hodges, to the effect that a tax attorney was advising her to
claim EPC 1980-1 as her separate property because her assets had benefitted the community to such an
extent that Brown was able to invest in that company in his own name; (3) a letter from Bolton to Hodges
asking whether Hodges would be disqualified for the same reason Green was, i.e., possession of Brown's
confidential information; and (4) a letter from Hodges to Bolton suggesting that he could no longer represent
her due to “competency issues" and that she should seek psychiatric treatment.
D. Other Evidence
Other evidence attached to Brown's summary judgment response includes: (1) a pair of hearing transcripts
relating to a motion to compel in the Bolton Foundation case in which the trial judge held that the attorney-
client privilege between Green and Bolton had been waived for certain documents and that the divorce and
the Bolton Foundation cases were “inextricably intertwined"; (2) legal bills from appellees to Brown relating to
various matters; (3) bills from various other attorneys who have represented either Brown or Bolton; (4)
correspondence between Brown and appellees; (5) Brown's motion to disqualify counsel in the divorce action
and the associated hearing transcript; and (6) pleadings and other filings relating to the divorce and the
Bolton Foundation litigation. In his briefing, Brown additionally references the fact that at some point he
was sued over his involvement in distributions to his wife from trusts of which she was a beneficiary. He terms
this lawsuit the “Bank of America litigation." However, there is scant evidence attached to his summary
judgment response regarding the existence of such a lawsuit and nothing to indicate any specifics regarding
claims or defenses therein.
II. Breach of Fiduciary Duty
In his first two issues, Brown contends that the trial court erred in granting, respectively, appellees' traditional
and no-evidence motions for summary judgment on Brown's breach of fiduciary duty cause of action.
We begin by examining the ruling on the no-evidence motion.
A. Standards and Elements
In a no‑evidence summary judgment motion, the movant contends that there is no evidence of one or more
essential elements of the non-movant's cause of action. Tex. R. Civ. P. 166a(i). A no-evidence motion must
be granted unless the non-movant produces competent evidence raising a genuine issue of material fact. Id;
Hamilton v. Wilson, 249 S.W.3d 425, 426 (Tex. 2008) (per curiam). In reviewing a no‑evidence summary
judgment, we examine the record for evidence that would enable reasonable and fair‑minded jurors to differ
in their conclusions. Hamilton, 249 S.W.3d at 426. We utilize a de novo standard of review. Merrell Dow
Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997). Other than arguing that the grounds presented
in the motion were insufficient to support summary judgment, the nonmovant may not urge any issues on
appeal not raised in the trial court. See City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678-79
(Tex. 1979); Bynum v. Prudential Residential Servs., L.P., 129 S.W.3d 781, 791 (Tex. App.-Houston [1st
Dist.] 2004, no pet.); Franco v. Slavonic Mut. Fire Ins. Ass'n, 154 S.W.3d 777, 785-86 (Tex. App.-Houston
[14th Dist.] 2004, no pet.); see also Tex. R. App. P. 33.1(a).
In order to prevail on a breach of fiduciary duty claim, a plaintiff must prove: (1) the existence of a fiduciary
relationship between the plaintiff and the defendant, (2) a breach by the defendant of his or her fiduciary
duty to the plaintiff, and (3) an injury to the plaintiff or benefit to the defendant as a result of the breach.
Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.-Houston [14th Dist.] 2008, pet. denied). An attorney can
breach his or her fiduciary duty to a client by, among other things, failing to disclose a conflict of interest,
failing to deliver the client's funds, placing his or her personal interests over those of the client, misusing
client confidences, taking advantage of the client's trust, self‑dealing, and making misrepresentations. See
Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex. App.-Houston [14th Dist.] 2001, pet. denied).
In their no-evidence motion, appellees acknowledged that they had, however briefly, represented Brown in
the past, and, thus, to some extent, owed him a fiduciary duty. They further contended, however, that Brown
could produce no evidence on the other elements, specifically that (1) there was a substantial relationship
between the former representation and the actions of which Brown complains in the present lawsuit; (2)
Brown divulged confidential information to appellees during the period of representation; (3) appellees
breached their fiduciary duty to Brown by subsequently using or disclosing his confidential information; (4)
appellees thereby caused harm to Brown; and (5) Brown in fact suffered any damages. The trial court
granted the motion without specifying the basis therefor.
B. Existence of Duty
As mentioned, at least to some extent, appellees acknowledge the existence of a fiduciary duty because they
have represented Brown in the past. See Meyer v. Cathey, 167 S.W.3d 327, 330 (Tex. 2005) (explaining
that an attorney-client relationship gives rise to a fiduciary duty as a matter of law). Indeed, Brown's affidavit
and other summary judgment evidence establishes that Green and Sheehy, Lovelace & Mayfield provided
legal representation or advice to Brown on several occasions. Consequently, we turn to the question of
whether Brown has presented competent evidence raising a genuine issue of material fact as to whether
appellees breached their fiduciary duty to Brown.
Brown asserts the following categories of arguments regarding breach of a fiduciary duty in his briefing and
his response to the motion for summary judgment: (1) revelation or misuse of confidential information, (2)
breaches of a fiduciary's duties of loyalty and candor, and (3) various types of inappropriate conduct.
We will discuss each category in turn.
1. Confidential Information
Brown's primary breach of fiduciary duty argument appears to be that he relayed confidential information to
Green, who then either revealed that information or misused that information against Brown in the various
litigations: the divorce, the Bolton Foundation litigation, and the Bank of America litigation. Brown
acknowledges that when a client alleges breach of a fiduciary duty based on inappropriate use or disclosure
of confidential information, the client must establish actual misuse or disclosure and not merely a genuine
threat of misuse or disclosure. See City of Garland v. Booth, 895 S.W.2d 766, 772-73 (Tex. App.-Dallas
1995, writ denied); Capital City Church of Christ v. Novak, No. 03-04-00750-CV, 2007 WL 1501095, at *3-4
(Tex. App.-Austin May 23, 2007, no pet.) (mem. op.). In his discussion of the law relating to the breach
element, however, Brown further states that “[i]n order to show a breach . . . there must be evidence of a
'substantial relationship' between the prior representation and the current case," citing Capital City Church.
This statement is a misreading of Capital City Church and the cases relied upon therein.
The plaintiff/former client in Capital City Church argued that a particular presumption applicable to attorney
disqualification was also applicable to raising a fact issue on a breach of fiduciary duty by an attorney. 2007
WL 1501095, at *2-3. Specifically, a former client may attempt to disqualify his or her former attorney by
showing that a “substantial relationship" exists between the prior representation and the current case. Id. at
*3. When such a relationship exists - involving specific similarities in factual issues and liability issues or
strategies - it is presumed that the former client revealed confidences to the attorney that would be at risk of
revelation in the subsequent case. Id. at *3-4. Although the attorney would not be presumed to have
revealed the confidences, the attorney should still be disqualified because of an appearance of impropriety.
Id. at *3. The Austin Court of Appeals rejected the plaintiff's argument that proof of a “substantial
relationship" could be used to establish a presumption of breach of a fiduciary duty, holding instead that the
former client must produce evidence of an actual disclosure of confidences. Id. at *3-4. (citing Booth, 895 S.
W.2d at 773, and Reppert v. Hooks, No. 07-97-0302-CV, 1998 WL 548784, at *28-29 (Tex. App.-Amarillo
Aug. 28, 1998, pet. denied)). While a substantial relationship between prior representation and a
subsequent case could be relevant in determining whether the attorney breached a fiduciary duty, such a
relationship is neither sufficient nor necessary to raise a fact issue as to breach. Id. at *4. Accordingly, to
show breach based on misuse or disclosure of confidential information, Brown was required to produce
evidence of actual misuse or disclosure but was not required to establish a substantial relationship between
representations. See Booth, 895 S.W.2d at 772-73; Capital City Church, 2007 WL 1501095, at *3-4.
In his brief, Brown makes the following arguments regarding Green's misuse or revelation of confidential
information: (1) financial matters disclosed to Green in confidence, including those relating to separate
property and income, subsequently became issues in the divorce proceedings; (2) the relative weakness of
Brown's financial position compared to that of Bolton was revealed to Green in confidence and subsequently
exploited in “multifarious" litigations; (3) facts concerning dissension in Bolton's family that Brown revealed to
Green were subsequently used against Brown in the Bolton Foundation lawsuit; (4) information imparted to
Green regarding Brown's role in Bolton's trust distributions was subsequently used in the Bank of America
lawsuit; and (5) information concerning Bolton's alleged mental health problems was exploited by Green to
a.) Financial Matters as Issues in Divorce
Appellant first argues that financial matters he discussed with Green became issues in the divorce
proceedings. We begin by examining the evidence Brown produced regarding the types of financial
information he passed to Green. In his affidavit, Brown states that he told Green the amount of his initial
investment in EPC 1980-1, the percentage ownership in the partnership this gave him, and that it
represented a “very significant" investment for him.
Brown states that Green advised him from time-to-time regarding the restructuring of EPC 1980-1 and
Brown's potential liability for involvement therein. Brown told Green that most of his family's assets were in
his wife's name. Brown further states that during the course of the Clifton litigation, he [Brown] “divulged a
great deal of financial information" to Green relating to the trusts for which Bolton and her sister, Clifton, were
beneficiaries. Brown also cites to the inventories filed by Bolton and himself in the divorce. Both parties
listed EPC 1980-1 as community property, thus making valuation of the asset an apparent issue in the
divorce. In Brown's testimony at a hearing on a motion to disqualify Bolton's subsequent attorney in the
divorce proceedings (Hodges), Brown stated generally that he imparted information to Green believing it to
be confidential. That information included matters at issue in the divorce, such as the value of EPC 1980-1.
Brown also compiled confidential information on Bolton's and Clifton's trusts for use in the Clifton litigation.
 On appeal, Brown specifically alleges that Green (1) gained information regarding Brown's investment in
EPC 1980-1 and gave advice on matters that “may" have affected the value of that investment; (2) had
preexisting knowledge of the trusts of which Bolton was a beneficiary; and (3) was aware of “separate
property and . . . income matters" that were disputed in the divorce and made community property claims on
certain assets in the divorce based on his prior knowledge of those assets.
Regarding EPC 1980-1, assuming that the value of EPC 1980-1 was an issue in the divorce, Brown fails to
explain, much less prove, how Green supposedly used Brown's confidential information. In other words,
Brown does not go beyond claiming that Green had the confidential information and that value of the
partnership was at issue in the divorce. He seems to argue that there was a substantial relationship between
the prior representation concerning EPC 1980-1 and issues in the divorce, and that such relationship
constitutes evidence of Green's breach of his fiduciary duty. This argument is expressly refuted by the cases
Brown himself relies upon in his briefing. See Booth, 895 S.W.2d at 772-73 (holding that when a client
alleges breach of a fiduciary duty based on disclosure of confidential information, the client must establish
actual disclosure and not merely a genuine threat of disclosure); Capital City Church, 2007 WL 1501095, at
*3-4 (holding that substantial relationship between prior representation and subsequent case did not,
standing alone, raise fact issue on breach of fiduciary duty). While the record demonstrates that the value of
EPC 1980-1 may have been an issue in the divorce, there is no indication that the issue was contentious or
even that the parties disagreed on the value, much less that Green used any confidential information in his
representation of Bolton in the divorce action.
Regarding the information Brown allegedly gave Green relating to Bolton's and Clifton's trusts, Brown offers
no explanation as to how this information was used in the divorce. The few documents concerning the
divorce proceedings in the record do not reveal any issues concerning the trusts or the information in
question. In her inventory, Bolton listed the trusts under “Assets Held for the Benefit of Catherine Ross
Bolton Brown as a Beneficiary." Brown appears to have not listed the trusts in his inventory, and there is no
indication that he disagreed with her characterization of her trusts or made any claim against them in the
divorce. Consequently, there is no evidence that any confidential information Green possessed regarding
the trusts was disclosed or misused in the divorce.
The remainder of Brown's claims and statements pertaining to the use of confidential information in the
divorce proceedings are too general and conclusory in nature to support a claim of breach of fiduciary duty.
See Brownlee v. Brownlee, 665 S.W.2d 111, 112 (Tex. 1984) (holding statements in affidavit were insufficient
to raise fact issue and “should have gone further and specified factual matters such as the time, place, and
exact nature of the alleged [occurrence]"); Wright v. Greenberg, 2 S.W.3d 666, 675 (Tex. App.-Houston [14th
Dist.] 1999, pet. denied) (holding statements in affidavit were insufficient to raise fact issue as they consisted
of “conclusory statements . . . in general terms"). While Brown states that Green was aware of “separate
property and . . . income matters" that became issues in the divorce and that Green made community
property claims on certain assets based on his prior knowledge of those assets, at no point does Brown
specify what these alleged claims, matters, or assets were. Brown also claims to have told Green in
confidence that most of his family's assets were in his wife's name, but he does not explain or provide proof
or examples of how Green used or disclosed this information in the divorce. Brown has produced no
evidence supporting the conclusion that Green actually used any confidential information regarding specific
matters in the divorce proceedings.
b.) Relative Weakness of Financial Position
Next, Brown argues that Green misused his knowledge of the relative weakness of Brown's financial position,
compared to that of his wife, by filing multiple lawsuits (the divorce, the Bolton Foundation litigation, and the
Bank of America litigation) as part of a “grand design" to “wear [him] down financially and emotionally." In
support of this contention, Brown cites his affidavit statement that he disclosed to Green that “as to the
assets owned by [Brown] and [Bolton], the vast majority of them were in her name" and that Bolton “had a
substantial income from trusts and properties inherited through her family relative to [his] income which was
primarily from EPC 1980-1." Elsewhere in the affidavit, Brown complains that the Bolton Foundation lawsuit
caused him to incur “financial expenditure . . . during an otherwise expensive . . . divorce" and that “the Bank
of America lawsuit . . . caused [him] to have to hire attorneys."
Even taking as true that Brown told Green in confidence about the discrepancy in Brown's and Bolton's
financial conditions, there is no evidence, only conjecture, that Green used this information and filed the
referenced cases in a “grand design" to “wear [Brown] down financially and emotionally." See generally
Mattly v. Spiegel, Inc., 19 S.W.3d 890, 896 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (holding that
pleadings are presumed to be filed in good faith and not for purposes of harassment and burden is on party
Brown does not support this claim in the reviewable, non-stricken portions of his affidavit, and he has not
cited to or produced other evidence supporting this assertion. Moreover, regarding the three lawsuits in
question: (1) Brown does not suggest that Bolton would not have filed for divorce without Green as her
attorney (indeed she had previously filed and nonsuited a divorce action with a different attorney and
subsequently pursued the action with a third attorney); (2) Brown points to no part of the divorce proceedings
demonstrating Green's alleged attempt to exploit Bolton's economic advantage; (3) Brown repeatedly asserts
in his affidavit and argument that the Bolton Foundation litigation was an attempt to have him removed from
the board of directors of Bolton's family foundation, thus refuting to some degree the notion that is was for
the purpose of wearing him down financially; and (4) Brown has failed to produce evidence tying Green to the
Bank of America litigation, which was filed by an attorney not associated with appellees. Brown's contention
that Green misued confidences by exploiting his relatively weak financial position is without support in the
c.) Family Dissension
Brown further contends that Green used information Brown imparted regarding dissension in Bolton's family
in order to sue Brown in the Bolton Foundation case. Brown says that Green “chose to orchestrate the
matter in the context of a family dispute." In support of these contentions, Brown cites to his affidavit and to
the original petition Green filed in the Bolton Foundation litigation. The pleading is evidence only that such a
lawsuit was filed and that certain allegations were made therein; it does not by itself establish that any
confidential information was revealed by Brown or misused or disclosed by Green. See generally Laidlaw
Waste Systems (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) (holding that pleadings
generally do not constitute competent summary judgment evidence). In the section of his affidavit Brown
cites, he states simply that “[d]uring the course of [the Clifton litigation] I shared with [Green] confidential
information regarding areas of dispute between Willard and various members of [Bolton's] family." It is not
clear from the context who the “Willard" mentioned is; it could be Brown himself or another person named
Willard. Regardless, nothing in this statement suggests that Green used the referenced confidential
information in the subsequent Bolton Foundation lawsuit.
It appears that Brown is arguing in his briefing that the mere fact that (1) Brown gave confidential information
regarding family dissension to Green, and (2) Green filed a lawsuit regarding the Bolton Foundation, means
that Green must have used the confidential information in filing the lawsuit. However, this conclusion does
not logically flow from the evidence or arguments provided. The original petition in the Bolton Foundation
lawsuit mentions “irreconcilable differences" between Brown and Bolton (apparently referencing the divorce
action), but makes no reference to any dissension within Bolton's family or between Bolton's family and
Brown. Indeed, Bolton has provided no evidence that any alleged family dissension played a role in the
Bolton Foundation lawsuit. Accordingly, Brown's assertion that Green used confidential information
regarding family dissension in pursuing the Bolton Foundation lawsuit is without support in the record.
d.) Role in Trust Distributions
Next, Brown asserts that Green improperly used information Brown provided regarding Brown's role in
Bolton's trust distributions in the Bank of America lawsuit. He contends that although Green did not file the
Bank of America lawsuit himself, he visited with the filing attorney not long before the petition was filed. In
support of this contention, he cites to time records attached to his motion for rehearing, which as discussed
above, we are not able to consider in this appeal. Although in his affidavit, Brown asserts that he
revealed information regarding Bolton's trusts, he does not state therein that this information was used
against him in the Bank of America litigation. Our review of the record has not revealed any evidentiary
support for Brown's contention regarding the Bank of America litigation.
e.) Bolton's Mental Condition
Lastly, Brown contends that Green exploited knowledge of Bolton's mental condition for his own benefit. In
support of this contention, Brown initially cites to a nonexistent portion of the record.  He subsequently
cites to portions of his affidavit, but nothing in the reviewable portions of the affidavit addresses his wife's
mental state or any information regarding this subject that Brown may have mentioned to Green. Brown does
not cite any evidence in the record, and our review has not uncovered any, lending support to his
contentions that (1) he disclosed to Green confidential information about Bolton's mental state, and (2)
Green used that information for his own benefit or to harm Brown. The mental condition confidential
information argument is without support in the record, just as are his other arguments regarding appellees'
alleged breach of fiduciary duty by misusing or revealing confidential information.
2. Reply Brief: Loyalty & Candor
In his reply brief, Brown argues that Green breached his fiduciary duty simply by filing the divorce action and
the Bolton Foundation case and by assisting in the Bank of America litigation. Brown labels this section of
the brief “Breach of Fiduciary Duty: Loyalty." In a section of the reply brief labeled “Breach of Fiduciary
Duty: Candor," Brown argues that Green breached his fiduciary duty in directing Bolton to falsify the
resignation letter of Brown's sister from the Bolton Foundation board of directors.
Brown, however, did not make any arguments based on duties of loyalty or candor in either his trial court
summary judgment response or in his original appellate briefing. Brown may not raise them for the first
time in an appellate reply brief. See Clear Creek Basin Auth., 589 S.W.2d at 678-79; Swaab v. Swaab, 282 S.
W.3d 519, 527 n.10 (Tex. App.-Houston [14th Dist.] 2008, pet. dism'd w.o.j.); Bynum, 129 S.W.3d at 791; see
also Tex. R. App. P. 33.1(a), 38.3.
Moreover, Brown predicates his breach of loyalty argument on the premise that the attorney-client
relationship between Brown and Green had not ended by the time the divorce action was filed. He also
appears to predicate the breach of candor argument on the premise that the attorney-client relationship had
not ended by the time the resignation was allegedly falsified.
Brown specifically argues that “Appellees have not produced any termination letter or other evidence that the
attorney-client relationship between Appellant and Appellees was terminated prior to the filing of the divorce
action." However, because this is an appeal from a no-evidence summary judgment, the burden was on
Brown, not appellees, to produce some evidence that the relationship existed at the relevant time period.
See Tex. R. Civ. P. 166a(i); Hamilton, 249 S.W.3d at 426. To the contrary, Brown himself acknowledged in
his response to the motion for summary judgment that the attorney-client relationship between him and
appellees had ended by 1999, at the conclusion of their involvement in the Clifton litigation. Having asserted
in the trial court that the attorney-client relationship ended well before the other litigations were filed (in 2002)
and before the alleged falsification of the resignation letter (also in 2002), Brown is estopped from arguing
otherwise on appeal. Cf. Keith v. Keith, 221 S.W.3d 156, 172 (Tex. App.-Houston [1st Dist.] 2006, no pet.)
(holding party was estopped from arguing on appeal that no evidence supported court's holding when party
expressly refuted such contention in the trial court). For the foregoing reasons, we reject Brown's breach of
loyalty and candor arguments.
3. Various Nefarious Conduct
Brown further makes various assertions of inappropriate conduct by Green and others, including “blackmail,
the peddling of judicial influence, and suggestions of judicial impartiality [sic]." He alleges that Green (1)
“went beyond the bounds of representation into the realm of being an actor"; (2) continued assisting Bolton
even after officially withdrawing from representation; (3) manufactured evidence in the Bolton Foundation
case; and (4) filed suit for an entity (the Bolton Foundation) that he did not legally represent. However,
Brown neither explains how any of these generalized complaints of wrongdoing resulted in a breach of a
fiduciary duty owed him, nor cites authority suggesting that such conduct constituted a breach of duty under
the circumstances of this case.
We decline to make Brown's argument for him. See Robertson v. Sw. Bell Yellow Pages, Inc., 190 S.W.3d
899, 903 (Tex. App.-Dallas 2006, no pet.) (declining to address issue where party failed to discuss any of the
factors deemed relevant to resolution of the issue); Rudisill v. Arnold White & Durkee, P.C., 148 S.W.3d 556,
562 n.8 & n.10 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (pointing out that appellants emphasized
certain facts but failed to offer any explanation or authority as to how those facts related to the grant of
summary judgment against them); Wilson & Wilson Tax Servs., Inc. v. Mohammed, 131 S.W.3d 231, 242
(Tex. App.-Houston [14th Dist.] 2004, no pet.) (“[W]e will not speculate as to the arguments that could have
been brought, or attempt to make those arguments for them.").
The trial court properly granted appellees' no-evidence motion for summary judgment against Brown's
breach of fiduciary duty cause of action. Accordingly, we overrule appellant's second issue. Because
the no-evidence summary judgment was properly granted, we also summarily overrule appellant's first issue,
challenging the traditional summary judgment on this cause of action.
In his third and fourth issues, Brown contends that the trial court erred in granting, respectively, appellees'
traditional and no-evidence motions for summary judgment on Brown's malpractice cause of action.
We will again first address the no-evidence motion.
To prevail on a legal malpractice claim, a plaintiff must show that (1) the attorney owed the plaintiff a duty, (2)
the attorney breached that duty, and (3) the breach proximately caused the plaintiff's actual damages.
Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004).
In their no-evidence motion, appellees asserted that Brown could produce no evidence on any of the
elements of malpractice.
In his response to the motions for summary judgment, Brown argued that (1) appellees owed him a duty in his
capacity as a director of the Bolton Foundation (the Bolton Foundation being appellees' client in the Bolton
Foundation case); (2) appellees breached that duty by manufacturing or altering evidence (the alleged
resignation letter from Brown's sister) and filing suit against him; and (3) such breach caused Brown to
expend time and money defending the frivolous lawsuit. Brown, however, did not file the present lawsuit in
his capacity as a director of the Bolton Foundation. Nowhere in his petition does he mention suing in his
capacity as a director. He identifies himself only as an individual in the petition and clearly makes claims
solely in his individual capacity. Brown offers no explanation or authority for how he could sue appellees for
malpractice in his individual capacity when he acknowledges that he was not an individual client of appellees
during the time of the Bolton Foundation litigation.
An attorney only owes a duty of care to his clients and not to third parties, even if they may have been
damaged by the attorney's representation of the client. Barcelo v. Elliott, 923 S.W.2d 575, 577-78 (Tex.
1996); Stancu v. Stalcup, 127 S.W.3d 429, 432 (Tex. App.-Dallas 2004, no pet.); see also Swank v.
Cunningham, 258 S.W.3d 647, 661-62 (Tex. App.-Eastland 2008, pet. denied) (holding that former corporate
officers and shareholders could not maintain legal malpractice action in their individual capacities against law
firm that represented corporation). Accordingly, the trial court did not err in holding that Brown produced no
evidence to establish the duty element of a professional malpractice cause of action.
We overrule Brown's fourth issue. Because we uphold the grant of no-evidence summary judgment against
this cause, we need not consider the grant of traditional summary judgment. Consequently, we summarily
overrule Brown's third issue.
We affirm the trial court's judgment.
/s/ Adele Hedges
Panel consists of Chief Justice Hedges and Justices Yates and Frost.
 Brown apparently asserted other causes of action below but does not complain on appeal regarding any
trial court action on these other causes. Accordingly, we do not address any other causes of action in this
 It is not clear from the record whether Brown's ex-wife has reverted to using her maiden name or
continues to use her married name. For ease of reference in this opinion, we shall refer to her by her
maiden name “Bolton," which she apparently used as a middle name even while married.
 Appellees suggest that because Brown styled his response specifically as a response to appellees' no-
evidence motion, the judgment should be summarily affirmed because Brown failed to challenge the
traditional grounds offered for summary judgment. However, the substance of Brown's response addresses
both no-evidence and traditional grounds raised by appellees, and we will not read the title of Brown's
pleading as controlling over its substance. Cf. Thomas v. Long, 207 S.W.3d 334, 339 (Tex. 2006)
(considering substance of motion despite title used).
 There is some confusion among the parties as to whether we should consider Brown's deposition in
regards to the no-evidence motion. Appellees filed separately a no-evidence motion and a traditional
motion. As befitting a no-evidence motion, appellees did not file any supporting materials with that motion.
Appellees filed substantial documentation with their traditional motion, including Brown's deposition. In his
combined response to the summary judgment motions, Brown referenced his affidavit and other materials
attached to the response but neither generally referenced nor attached his deposition. However, in his initial
appellate brief, Brown cited copiously to his deposition, relying more often on statements in the deposition
than on statements in the affidavit. Subsequently, after appellees questioned such reliance in their brief, in
his reply brief, Brown disclaimed any reliance on his deposition in the trial court or on appeal.
Rule 166a(i), governing no-evidence motions for summary judgment, states that “[t]he court must grant the
motion unless the respondent produces summary judgment evidence raising a genuine issue of material
fact." Tex. R. Civ. P. 166a(i) (emphasis added); see also City of Keller, 168 S.W.3d at 825 (explaining that
Rule 166a(i) does not permit evidence to be filed in support of a no-evidence motion; thus, consideration is
limited to the evidence contrary to the motion); Goss v. Houston Cmty. Newspapers, 252 S.W.3d 652, 654
(Tex. App.-Houston [14th Dist.] 2008, no pet.) (“If the movant has identified specific elements he claims lack
evidence, we must then determine de novo whether the non‑movant has produced more than a scintilla of
probative evidence to raise a genuine issue of material fact."). It is not incumbent upon a trial court or an
appellate court to search exhibits attached to other motions for evidence which might raise a material issue of
fact. See, e.g., Bynum v. Prudential Residential Servs., L.P., 129 S.W.3d 781, 791 (Tex. App.-Houston [1st
Dist.] 2004, no pet.) (refusing to consider affidavit attached to motion for continuance in evaluating no-
evidence summary judgment); Hight v. Dublin Veterinary Clinic, 22 S.W.3d 614, 619 (Tex. App.-Eastland
2000, pet. denied) (refusing to consider evidence attached to motion when considering no-evidence
summary judgment). Because Brown did not attach or specifically cite to his deposition in his response to the
no-evidence motion and, in fact, specifically denies any reliance thereon in his reply brief, we will not consider
Brown's deposition in reviewing the grant of no-evidence summary judgment. Instead, we confine our review
to the evidence Brown produced in response to the no-evidence motion.
 This discussion of Brown's affidavit omits sections stricken by the court in response to appellees'
objections. Brown does not complain on appeal about the trial court's grant of these objections.
 Brown alleged that in 2002, Green instructed Bolton to “manufacture a resignation" by taking a 1990
resignation letter from Brown's sister and marking that it was accepted.
 Although appellees made objections to portions of Morris's affidavit, which were similar to objections the
trial court granted in regard to Brown's affidavit, appellees apparently failed to obtain a ruling on those
 In his briefing, Brown additionally cites to evidence he attached to his motion for new trial. Because there
is no indication in the record that the trial court accepted or considered this late-filed evidence, we will not
consider it in resolving this appeal. See Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996)
(holding that where nothing in the record indicates leave of court for late filing of a summary judgment
response, appellate court should presume the trial court did not consider the late‑filed evidence); Auten v. DJ
Clark, Inc., 209 S.W.3d 695, 702 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (considering evidence
attached to motion for new trial because it was apparent trial court had done so); Stephens v. Dolcefino, 126
S.W.3d 120, 133‑34 (Tex. App.-Houston [1st Dist.] 2003) (same), pet. denied, 181 S.W.3d 741 (Tex. 2006).
 Brown acknowledged in his affidavit that the information regarding investment amounts in the partnership
was publicly available.
 Brown also makes arguments based upon, and cites extensively to, his deposition testimony as well as
exhibits attached to his motion for new trial. However, as discussed in detail above, Brown may not rely on
these documents in challenging the no-evidence summary judgment.
 Brown does not contest that Bolton herself would also have been privy to knowledge of their differing
financial conditions as would any attorney Bolton hired to represent her in the divorce.
 None of the statements in the affidavit pertaining to the Bolton Foundation litigation suggest that Green
used any confidential information in that lawsuit.
 See n.8 supra.
 Specifically, Brown cites to AC.R. V. 3, pp. 60-61," which based on the form of citation he used, appears
to be a citation to pages 60 and 61 of volume 3 of the clerk's record. No such page exists in that volume.
Neither pages 60-61 of volume 1, nor pages 660-61, 760-61, 860-61, or 960-61 of volume 3, provide any
support for Brown's contention.
 Brown does not provide any citations to authority regarding the duties of loyalty and candor, although
courts have used these terms in describing the duties engendered by a fiduciary relationship. See, e.g.,
Lesikar v. Rappeport, 33 S.W.3d 282, 296-97 (Tex. App.-Texarkana 2000, pet. denied) (citing Montgomery v.
Kennedy, 669 S.W.2d 309, 313 (Tex.1984), and Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 388
 To the extent Brown intended to argue that duties of loyalty and candor continued after termination of
the relationship, he failed to specifically articulate such an argument or cite any authority in support.
 In his reply brief, Brown additionally cites Rules 1.05 and 1.09 of the Texas Disciplinary Rules of
Professional Conduct as establishing attorney duties that Green breached. Tex. Disciplinary R. Prof'l
Conduct 1.05, 1.09, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005 & Supp. 2009)
(Tex. State Bar R. art. X, § 9). However, as discussed above, a party generally may not raise issues for the
first time in an appellate reply brief. See Clear Creek Basin Auth., 589 S.W.2d at 678-79; Swaab, 282 S.W.
3d at 527 n.10; Bynum, 129 S.W.3d at 791; see also Tex. R. App. P. 33.1(a), 38.3. Furthermore, Brown's
contention that these rules establish standards by which an attorney's liability may be judged is refuted by
the preamble to the State Bar Rules, which states:
These rules do not undertake to define standards of civil liability of lawyers for professional conduct.
Violation of the Texas Disciplinary Rules of Professional Conduct does not give rise to a private cause of
action nor does it create any presumption that a legal duty to a client has been breached. . . . Accordingly,
nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the
extra‑disciplinary consequences of violating such a duty.
Tex. Disciplinary R. Prof'l Conduct preamble & 15. A claim that a lawyer has violated a rule of professional
conduct should be raised in a disciplinary proceeding. McGuire, Craddock, Strother & Hale, P.C. v.
Transcon. Realty Investors, Inc., 251 S.W.3d 890, 896 (Tex. App.-Dallas 2008, pet. denied). Brown cites no
authority, and we are aware of none, holding an attorney liable solely based on violations of the disciplinary
 Brown has asserted that appellees last represented him in 1999; the Bolton Foundation case was filed