Texas Judiciary Online - HTML Opinion

MEMORANDUM=20 OPINION

=20 Myrtis Alexander appeals a summary judgment in favor of Louise = Malek, the=20 opposing counsel in an underlying personal injury suit, for=20 misrepresentation. We affirm.

Background

=20 Alexander was involved in a motor vehicle accident with Yinsuo = Zhao in=20 2001, and subsequently sued him and his insurance company for = personal=20 injuries. Alexander represented herself pro se; Malek = represented=20 Zhao, the defendant in the underlying case. The trial court=20 originally set the case for the week of September 27, 2004, with a = pre-trial conference scheduled for September 24. At the = pre-trial=20 conference, the trial court told the parties that it was available = for a=20 bench trial that week, but not a jury trial. Alexander = requested a=20 continuance until October 11, which the trial court granted. = Alexander and Malek met outside the courtroom to discuss waiving a = jury=20 trial. Alexander alleges that Malek persuaded her to agree = to waive=20 her right to a jury trial by assuring her that if she was not = satisfied=20 with the trial court=92s decision, she could return on October 11 = for a jury=20 trial. Alexander also alleges that Malek told her that if = Alexander=20 changed her mind over the weekend, she could call Malek, and they = would=20 wait until October 11 to try the case. Malek denies = misleading=20 Alexander. The parties returned to the courtroom, and = Alexander=20 informed the judge that she agreed to waive a jury = trial.

On the day of the = bench trial,=20 Alexander stated that she was not prepared to present her = case. =20 Alexander contends that she left messages for Malek and the court=20 administrator, informing them that she had changed her mind and = wished to=20 wait until October 11 to present her case. The trial court, = however,=20 required Alexander to abide by her agreement to have a bench trial = that=20 day, and found in favor of Malek=92s client.

Alexander then = brought this=20 suit against Malek, alleging that Malek had made negligent and = fraudulent=20 misrepresentations to her and had submitted false evidence to the = court,=20 namely a photograph, which caused Alexander to lose her personal = injury=20 suit. Alexander asserts that she would have been prepared for = trial but=20 for Malek=92s misrepresentations. The trial court granted = summary=20 judgment in favor of Malek.

Discussion

Standard of=20 Review

Malek = moved for=20 summary judgment against Alexander under both traditional and = no-evidence=20 grounds. See Tex. R.=20 Civ. P. 166a(c), (i). The traditional standard for = summary=20 judgment requires a movant to show that no genuine issue of = material fact=20 exists and that the trial court should grant judgment as a matter = of=20 law. Tex. R. Civ. = P.=20 166a(c); KPMG Peat Marwick v. Harrison County Hous. Fin. = Corp., 988 S.W.2d 746, 748 (Tex. 1999). We view all = evidence in=20 a light favorable to the nonmovant and indulge every reasonable = inference=20 in the nonmovant=92s favor. Provident Life & Accid. = Ins. Co. v.=20 Knott, 128 S.W.3d 211, 215 (Tex. 2003). When a defendant = moves=20 for summary judgment, it must either: (1) disprove at least one = element of=20 the plaintiff=92s cause of action; or (2) plead and conclusively = establish=20 each essential element of its affirmative defense, thereby = rebutting the=20 plaintiff=92s cause of action. Cathey v. Booth, 900 S.W.2d = 339, 341=20 (Tex. 1995); Farah v. Mafrige & Kormanik P.C., 927 = S.W.2d 663,=20 670 (Tex. App.=97Houston [1st Dist.] 1996, no writ). We = review a=20 no-evidence summary judgment de novo by construing the record in = the light=20 most favorable to the nonmovant and disregarding all contrary = evidence and=20 inferences. Merrell Dow Pharms., Inc. v. Havner, 953 = S.W.2d=20 706, 711 (Tex. 1997). A nonmovant meets its burden and = defeats a=20 no-evidence motion by bringing forth more than a scintilla of = probative=20 evidence that raises a genuine issue of material fact. = See=20 Tex. R. Civ. P. = 166a(i);=20 Coastal Conduit & Ditching, Inc. v. Noram Energy Corp., = 29=20 S.W.3d 282, 284 (Tex. App.=97Houston [14th Dist.] 2000, no = pet.). =20 When, as here, the trial court=92s order does not specify the = grounds for=20 granting summary judgment, we affirm if any of the grounds raised = by the=20 movant is meritorious. FM Props. Operating Co. v. City of = Austin, 22 S.W.3d 868, 872 (Tex. 2000); Oliphint v. = Richards,=20 167 S.W.3d 513, 516 (Tex. App.=97Houston [14th Dist.] 2005, pet.=20 denied).

Negligent or = Fraudulent=20 Misrepresentation

Alexander contends = that Malek=20 negligently or fraudulently misrepresented material facts = concerning their=20 upcoming trial, which caused Alexander to lose her case. In = support=20 of her fraud claim, Alexander also asserts that Malek introduced = false=20 evidence when she submitted photographs that depicted = Alexander=92s vehicle=20 from an accident other than the one for which Alexander filed=20 suit.

To=20 prevail on a cause of action for negligent = misrepresentation,=20 Alexander must prove that: (1) the representation was made by = Malek in the=20 course of her business or in a transaction in which she had a = pecuniary=20 interest; (2) Malek supplied =93false information=94 for the = guidance of=20 others in their business; (3) Malek did not exercise reasonable = care or=20 competence in obtaining or communicating the information; and (4)=20 Alexander suffered pecuniary loss by justifiably relying on the=20 representation. See Federal Land Bank = Ass=92n of=20 Tyler v. Sloane, 825 S.W.2d 439, 442 = (Tex.=20 1991) (citing Restatement (Second)=20 of Torts =A7 552). Reliance must be reasonable to be=20 justified. American Tobacco Co., Inc. v. Grinnell, = 951 S.W.2d=20 420, 436 (Tex. 1997).

To=20 prevail on a cause of action for fraud, a party must offer proof = of =93a=20 material misrepresentation, which was false, and which was either = known to=20 be false when made or was asserted without knowledge of its truth, = which=20 was intended to be acted upon, which was relied upon, and = which=20 caused injury.=94 Atlantic Lloyds Ins. Co. v. Butler, 137 = S.W.3d 199,=20 225 (Tex. App.=97Houston [1st Dist.] 2004, pet. denied) (quoting = Formosa=20 Plastics Corp. USA v. Presidio Eng=92rs & Contractors, = Inc., 960=20 S.W.2d 41, 47 (Tex. 1998)). As in a negligent = misrepresentation=20 case, a party asserting a cause of action for fraud must prove = that it=20 =93actually and justifiably relied=94 on the alleged = misrepresentation=20 and thereby suffered injury. Butler, 137 S.W.3d at = 225=20 (citing Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. = Co., 51=20 S.W.3d 573, 577 (Tex. 2001)).

Here, Alexander fails = to raise=20 a fact issue as to the element of reliance. Malek had no=20 attorney-client relationship with Alexander. Quite the = opposite,=20 they were adversaries in the underlying suit. An attorney = can be=20 liable to a non-party for misrepresentations, despite an absence = of=20 privity, but only in limited circumstances. = McCamish,=20 Martin, Brown & Loeffler v. F.E. Appling Interests, 991 = S.W.2d=20 787, 792=9693 (Tex. 1999). To determine whether a non-client = justifiably relied on a material fact, one =93must consider the = nature of=20 the relationship between the attorney, client, and = non-client.=94 =20 Id. at 794; see Kastner v. Jenkens & Gilchrist, = P.C.,=20 231 S.W.3d 571, 578 (Tex. App.=97Dallas 2007, no pet.) (=93A = non-client cannot=20 rely on an attorney=92s representations unless the attorney = invites that=20 reliance.=94). Reliance is generally not justified = when the=20 representation takes place in an adversarial context. =20 Id. Thus, an attorney=92s conduct is not = independently=20 actionable by an opposing party to the suit if the conduct is part = of the=20 discharge of the lawyer=92s duties in representing his or her = client.=20 Alpert v. Crain, Caton & James, P.C., 178 S.W.3d = 398,=20 405=9606 (Tex. App.=97Houston [1st Dist.] 2005, pet. denied); = Chapman=20 Children=92s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d = 429, 441=20 (Tex. App.=97Houston [14th Dist.] 2000, pet. denied). An = attorney is=20 not, however, shielded from liability when his actions = constitute a = fraudulent act=20 outside the scope of his client=92s legal representation. =20 Alpert, 178 S.W.3d at 406.

Here, Malek and = Alexander agree=20 that the alleged misrepresentation took place in an adversarial=20 setting. Alexander asserts, however, that we should not = apply the=20 general rule that reliance is not justified in an adversarial = setting,=20 because unlike in McCamish and Chapman, she = represented=20 herself pro se. Because of this, Alexander contends, she was = more=20 likely to rely on opposing counsel=92s statements than the = plaintiffs in=20 those cases. Pro se litigants, however, are held to the same = standard as licensed attorneys. Kanow v. Brownshadel, = 691=20 S.W.2d 804, 806 (Tex. App.=97Houston (1st Dist.) 1985, no writ); = Hope=92s=20 Fin. Mgmt v. Chase Manhattan Mortg. Corp., 172 S.W.3d 105, 107 = (Tex.=20 App.=97Dallas 2005, pet. denied). Alexander did not avail = herself of=20 the opportunity to discuss the ramifications of waiving her right = to a=20 jury trial with the trial court. Even assuming that = Alexander=92s=20 allegations are true and Malek invited reliance, Alexander = affirmed before=20 the trial court her agreement to a bench trial without verifying = whether=20 Malek had told her the truth. Such reliance on opposing = counsel=92s=20 statements is not justifiable or reasonable. See Atlantic = Lloyds=20 Ins. Co. v. Butler, 137 S.W.3d 199, 226 (Tex. App.=97Houston = [1st Dist.]=20 2004, pet. denied) (reliance is not reasonable when based on = opponent=92s=20 obvious lie or misrepresentation that, with reasonable diligence, = could=20 easily have been refuted).

Alexander=92s false = evidence=20 claim does not lend support to a finding of fraudulent = misrepresentation,=20 because Alexander=92s reliance on the photograph is also = unjustified. =20 The photograph depicted Alexander=92s own vehicle; therefore, = Alexander=20 would have been in a better position than opposing counsel to know = if the=20 photograph was actually from the wrong accident. In = addition,=20 Alexander did not present any evidence that the photograph was = false or=20 that Malek knew it was false and intended Alexander to rely on = it. =20 We therefore hold that the summary judgment evidence did not raise = a=20 material fact question as to whether Alexander justifiably or = reasonably=20 relied upon any alleged misrepresentation made by Malek. =20 Accordingly, the trial court properly granted summary judgment in = favor of=20 Malek.

Conclusion

=20 We affirm the judgment of the trial court.

=20

&= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 Jane Bland

&= nbsp; &n= bsp; &nb= sp; &nbs= p; =20 Justice

Panel consists of = Chief Justice=20 Radack and Justices Jennings and Bland.