NO. 05-0072
IN THE SUPREME COURT OF TEXAS
THOMAS O’DONNELL, EXECUTOR OF THE ESTATE OF CORWIN D. DENNEY, Petitioner, V. PAUL H. SMITH, ET AL., Respondents.
On Appeal From the 288 Judicial District Court, Bexar County, Texas Trial Court Cause No. 2002-CI-00925
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REPLY IN SUPPORT OF PETITION FOR REVIEW
Vincent L. Marable III PAUL WEBB, P.C. 221 N. Houston Street Wharton, Texas 77488 Telephone: (979) 532-5331 Telecopier: (979) 532-2902
Brett Wagner Mark W. Long Larry J. Doherty DOHERTY!LONG!WAGNER, L.L.P. 13810 Champion Forest Drive Suite 225 Houston, Texas 77069 Telephone: (281) 583-7755 Telecopier: (281) 583-2093
ATTORNEYS FOR PETITIONER THOMAS O’DONNELL, EXECUTOR OF THE ESTATE OF CORWIN D. DENNEY
ADVISORY TO COURT OF PENDING SUPREME COURT PROCEEDING ON RELATED ISSUE
This petition for review arises from a legal malpractice claim asserted by the estate representative (Thomas O’Donnell) of a deceased client (Corwin D. Denney). The Fourth Court of Appeals held that the estate representative lacked privity with the client’s attorneys because the legal malpractice cause of action did not accrue during the client’s lifetime. See Tab “A” to appendix to the previously filed petition for review. The Fourth Court of Appeals affirmed a take-nothing summary judgment against the estate representative relying, in part, on the Court of Appeals’ prior legal malpractice decision in Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 141 S.W.3d 706, 708 (Tex. App.–San Antonio 2004, pet. filed - briefing on the merits ordered 12-17-2004). The Court of Appeals’ decision in Belt is included under Tab “F” to the appendix to the petition for review filed by Mr. O’Donnell on January 28, 2005. The Belt petition for review was docketed in the Supreme Court as Case Number 04-0681 and is a legal malpractice proceeding which involves identical privity and accrual issues with respect to a claim by an estate representative of deceased client against the client’s attorneys. Briefing on the merits was ordered by this Court in Belt on December 17, 2004. Petitioners filed their brief on the merits on January 18, 2005. A response brief on the merits was filed on February 7, 2005.
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TABLE OF CONTENTS
ADVISORY TO COURT OF PENDING SUPREME COURT PROCEEDING ON RELATED ISSUE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii INDEX OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii 1. Corwin D. Denney hired Respondent Cox & Smith to perform legal services following the death of Mr. Denney’s wife, Des Cygne Gilcrease Phillips. Cox & Smith provided legal advice to Mr. Denney in his capacity as the executor of the estate of Des Cygne Gilcrease Phillips and as trustee of a trust established by the will of Des Cygne Gilcrease Phillips. Based on the advice of Cox & Smith, Mr. Denney mischaracterized marital property and failed to properly fund the trust. After Mr. Denney died, beneficiaries of the trust asserted claims that Mr. Denney had engaged in misconduct as both executor and trustee. Thomas O’Donnell, as executor of the estate of Corwin D. Denney, paid approximately $12.9 million from Mr. Denney’s estate to settle the claims of misconduct. Thomas O’Donnell sued Cox & Smith for legal malpractice in connection with Cox & Smith’s legal representation of Mr. Denney. The Fourth Court of Appeals, relying on the wrongful death and survival statutes and its prior legal malpractice opinion in Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., held that (a) Mr. Denney suffered no legal injury during his lifetime, (b) no cause of action for legal malpractice accrued to Mr. Denney during his lifetime, (c) Mr. O’Donnell, as representative of Mr. Denney’s estate, lacked privity with Cox & Smith and (4) the Court of Appeals did not need to reach the issue of survivability of legal malpractice claims. This petition for review presents the following subissues: . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii a. Should the estate of a deceased client have standing to sue the client’s lawyers where the legal malpractice of the lawyers causes the
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estate to expend funds or deplete estate property as a result of such malpractice? . . . . . . . . . . . . . . . . . . vii b. Should lawyers be absolved of all liability for their legal malpractice in representing a client who subsequently dies simply because the actual expenditure of funds or depletion of estate property occurs after the client’s death and not during the client’s lifetime? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii Did Cox & Smith’s legal malpractice cause legal injury to Corwin D. Denney during his lifetime and did a cause of action for legal malpractice accrue to Corwin D. Denney during his lifetime? . . . . . . . . . . . . . . . . . . . . vii Does Corwin D. Denney’s cause of action against Cox & Smith for legal malpractice survive to Thomas O’Donnell, as the executor of Mr. Denney’s estate? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii
c.
d.
RECORD AND PARTY REFERENCES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . viii REPLY IN SUPPORT OF PETITION FOR REVIEW OF THOMAS O’DONNELL, EXECUTOR OF THE ESTATE OF CORWIN D. DENNEY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 INTRODUCTION AND OVERVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 THE FOURTH COURT OF APPEALS DID NOT DECIDE THE MERITS OF THE MALPRACTICE ALLEGATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 THIS CASE IS NOT CONTROLLED BY BARCELO V. ELLIOTT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 THIS IS NOT A PERSONAL INJURY/WRONGFUL DEATH CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 THE OUT-OF-STATE AUTHORITIES DO NOT SUPPORT COX & SMITH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 THERE IS NO STATUTE OF LIMITATIONS ISSUE IN THIS PROCEEDING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 CONCLUSION AND PRAYER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
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CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
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INDEX OF AUTHORITIES
CASES:
Barcelo v. Elliott, 923 S.W.2d 575 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 141 S.W.3d 706 (Tex. App.–San Antonio 2004, pet. filed briefing on the merits ordered 12-17-2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i, ii, vii
Deeb v. Johnson, 566 N.Y.S. 2d 688 (App. Div. 3d 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 7
McDonald v. Pettus, 988 S.W.2d 9 (Ark. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7
Russell v. Ingersoll-Rand Co., 841 S.W.2d 343 (Tex. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Traver v. State Farm Mut. Auto. Ins., 930 S.W.2d 862 (Tex. App.–Fort Worth 1996), rev 'd on other grounds, 980 S.W.2d 625 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Upton County, Texas v. Brown, 960 S.W.2d 808 (Tex. App.–El Paso 1997, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
RULES AND STATUTES:
Ark. Code Ann. § 16-114-303 (Supp. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
McKinney’s EPTL 11-3.1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
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McKinney’s EPTL 11-3.2(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Tex. R. App. P. 53.7(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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ISSUES PRESENTED
1.
Corwin D. Denney hired Respondent Cox & Smith to perform legal services following the death of Mr. Denney’s wife, Des Cygne Gilcrease Phillips. Cox & Smith provided legal advice to Mr. Denney in his capacity as the executor of the estate of Des Cygne Gilcrease Phillips and as trustee of a trust established by the will of Des Cygne Gilcrease Phillips. Based on the advice of Cox & Smith, Mr. Denney mischaracterized marital property and failed to properly fund the trust. After Mr. Denney died, beneficiaries of the trust asserted claims that Mr. Denney had engaged in misconduct as both executor and trustee. Thomas O’Donnell, as executor of the estate of Corwin D. Denney, paid approximately $12.9 million from Mr. Denney’s estate to settle the claims of misconduct. Thomas O’Donnell sued Cox & Smith for legal malpractice in connection with Cox & Smith’s legal representation of Mr. Denney. The Fourth Court of Appeals, relying on the wrongful death and survival statutes and its prior legal malpractice opinion in Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., held that (a) Mr. Denney suffered no legal injury during his lifetime, (b) no cause of action for legal malpractice accrued to Mr. Denney during his lifetime, (c) Mr. O’Donnell, as representative of Mr. Denney’s estate, lacked privity with Cox & Smith and (4) the Court of Appeals did not need to reach the issue of survivability of legal malpractice claims. This petition for review presents the following subissues: a. Should the estate of a deceased client have standing to sue the client’s lawyers where the legal malpractice of the lawyers causes the estate to expend funds or deplete estate property as a result of such malpractice? Should lawyers be absolved of all liability for their legal malpractice in representing a client who subsequently dies simply because the actual expenditure of funds or depletion of estate property occurs after the client’s death and not during the client’s lifetime? Did Cox & Smith’s legal malpractice cause legal injury to Corwin D. Denney during his lifetime and did a cause of action for legal malpractice accrue to Corwin D. Denney during his lifetime? Does Corwin D. Denney’s cause of action against Cox & Smith for legal malpractice survive to Thomas O’Donnell, as the executor of Mr. Denney’s estate?
b.
c.
d.
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RECORD AND PARTY REFERENCES
There is no reporter’s record in this matter. The clerk's record is 7 volumes. References to the clerk's record in the Reply in Support of Petition for Review are shown as ("____ CR ____") with the volume and page number in parenthesis. Respondents are referred to in the Reply in Support of Petition for Review collectively as “Cox & Smith,” unless a more specific reference is used.
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TO THE HONORABLE SUPREME COURT OF TEXAS:
Pursuant to Tex. R. App. P. 53.7(e), Petitioner Thomas O’Donnell, Executor of the Estate of Corwin D. Denney files this Reply in Support of Petition for Review requesting that this Court reverse the decision of the Fourth Court of Appeals which affirmed a summary judgment in favor of Respondents Cox & Smith and that this Court remand this case to the Court of Appeals for further proceedings. INTRODUCTION AND OVERVIEW The response to Mr. O’Donnell’s petition for review filed by Cox & Smith demonstrates in a very clear fashion why this Court should order briefing on the merits, grant the petition for review and address the important issues raised by this case. The majority of the response filed by Cox & Smith advocates a “public policy” argument that the privity rule should bar Mr. O’Donnell’s claims in this case. To the extent that Mr. O’Donnell’s claims are going to be disposed on the basis of “public policy,” this Court should make that determination after full and thorough briefing on the merits of the causes of action presented against Cox & Smith. Much of the argument made by Cox & Smith focuses on the length of time between the end of its services in representing Corwin D. Denney in his capacity as the executor of the estate of Des Cygne Gilcrease Phillips and as trustee of her trust and the subsequent settlement of claims made against the estate of Corwin D. Denney. The Fourth Court of Appeals’ opinion which affirmed the summary judgment against Mr. O’Donnell had nothing to do with the length of time between the end of Cox & Smith’s legal representation and the settlement made by Mr. O’Donnell on behalf of Mr. Denney’s estate. The significant event according to the Fourth Court of Appeals was Mr. Denney’s death, which the Court of Appeals held cutoff any malpractice cause of action against Cox & Smith. Under the
Fourth Court of Appeals’ reasoning, if Mr. Denney had passed away within a month after the services rendered by Cox & Smith, his estate would still lack privity to assert a legal malpractice cause of action against Cox & Smith. This Court needs to address the privity argument and the flawed reasoning of the Fourth Court of Appeals which exculpates a lawyer from liability for malpractice based solely on the death of the client. THE FOURTH COURT OF APPEALS DID NOT DECIDE THE MERITS OF THE MALPRACTICE ALLEGATIONS The Fourth Court of Appeals decided this case solely on the issue of privity and did not reach any of the other numerous summary judgment arguments raised by Cox & Smith. Despite the fact that the only issue addressed by the Fourth Court of Appeals was that of privity, Cox & Smith argues in its Statement of Facts the merits of the malpractice allegations made by Mr. O’Donnell. Mr. O’Donnell presented compelling summary
judgment evidence from two legal malpractice experts that Cox & Smith was negligent in its representation of Mr. Denney as the executor of his wife’s estate and as trustee of the trust established by her will. Mr. O’Donnell’s malpractice expert testified that Mr. Denney should have been given advice by Cox & Smith that: a) Significant additional facts and information would be necessary to establish that the Gilcrease Oil interests and the Automation stock acquired after 1962 were separate property; A suit for declaratory judgment establishing the separate nature of the Gilcrease Oil interests and the Automation stock would be necessary; Nondisclosure of the existence of community interests in the Gilcrease Oil interests and the Automation stock in the 706 Return for Des Cygne’s estate, without significant additional facts and information, and/or a declaratory judgment to properly establish their character, would be a material misstatement and improper; Cox & Smith should not have agreed to submit the 706 Return
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b)
c)
d)
for Des Cygne’s estate without significant additional facts and information, and/or a declaratory judgment to properly establish the separate character of the Gilcrease Oil interests and the Automation stock acquired after 1962; e) On the date of death of Des Cygne, the Automation stock acquired by Mr. Denney in 1962 and before the death of Des Cygne in 1968 and the Gilcrease Oil interests acquired by Mr. Denney in 1962 were community property and should not be treated as Mr. Denney’s separate property; and The Automation stock and the Gilcrease Oil Interests acquired by Mr. Denney during his marriage to Des Cygne should have been used to fund the trust created by Des Cygne’s will.
f)
(7 CR 1919-1920; 6 CR 1732-1735) The merits of the legal malpractice claims are not currently before this Court and Cox & Smith’s attempt to litigate such issues demonstrates the weakness of its privity arguments. In addition, Cox & Smith suggests that the settlement by Mr. O’Donnell on behalf of Mr. Denney’s estate was “too quick” and unreasonable. Mr. O’Donnell presented uncontroverted summary judgment evidence that the settlement was reasonable, was made a result of the legal malpractice committed by Cox & Smith, and was made due to the potential of much larger damages due to the mischaracterization of the marital estate in reliance on Cox & Smith’s advice. The beneficiaries sought $24,500,000 to $25,500,000 in damages from Mr. Denney’s estate. (6 CR 1757; 7 CR 2058-2060) Mr. O’Donnell hired the Los Angeles office of Gibson, Dunn & Crutcher to defend the estate. Due to the potential exposure under California law as it relates to fiduciaries, Mr. O’Donnell, on recommendation of Gibson, Dunn & Crutcher, settled with the beneficiaries for $12,900,000. (6 CR 1725-1726, 1727-1728, 1731; 7 CR 1925-1926) THIS CASE IS NOT CONTROLLED BY BARCELO V. ELLIOTT The attempts by Cox & Smith to advocate adoption of a bright line privity rule similar
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to that adopted by this Court in Barcelo v. Elliott, 923 S.W.2d 575, 577-79 (Tex. 1996), fall apart once the arguments are closely analyzed. This Court adopted a bright line privity rule in Barcelo to insure that attorneys would zealously represent their clients without the threat of suit from third parties compromising that representation. Id. at 578-79. This Court’s concern with limiting the attorney’s duty to the testator, rather than expansion of the duty to the testator and various beneficiaries is not implicated in this case. The legal
malpractice claim asserted by Mr. Denney’s estate is based on advice given to Mr. Denney who was clearly Cox & Smith’s client. There is no difference between this suit brought by Mr. O’Donnell, after Mr. Denney’s death and as Mr. Denney’s estate representative, and a suit that Mr. Denney could have brought during his lifetime. The claims asserted on behalf of the estate of Mr. Denney do not threaten an attorney’s zealous representation of his client like the expansive third-party beneficiary arguments made in Barcelo. THIS IS NOT A PERSONAL INJURY/WRONGFUL DEATH CASE As it did in the trial court and Court of Appeals, on page 8 of its response to the petition for review, Cox & Smith cites to the decisions in Upton County, Texas v. Brown, 960 S.W.2d 808, 816 (Tex. App.–El Paso 1997, no writ), and Russell v. Ingersoll-Rand Co., 841 S.W.2d 343, 345 (Tex. 1992). As emphasized by Mr. O’Donnell in his petition for review this case involves a claim of legal malpractice – a common law cause of action. It is not a statutory wrongful death claim like those asserted in Upton County, Texas v. Brown and Russell v. Ingersoll-Rand Co. Accrual principles relating to such statutory wrongful death claims have no application to this case for the reasons discussed by the Second Court of Appeals in Traver v. State Farm Mut. Auto Ins., 930 S.W.2d 862, 867 (Tex. App.–Fort Worth 1996), rev’d on o. g. 980 S.W.2d 625 (Tex. 1998), and discussed on
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pages 9-10 of the petition for review. THE OUT-OF-STATE AUTHORITIES DO NOT SUPPORT COX & SMITH In footnote 4 on page 6 of its response, Cox & Smith falsely claims that “Arlitt and Belt are also consistent with cases from other states, which likewise distinguish between a decedent and his estate, and likewise draw bright-line privity requirements where legal malpractice claims are concerned.” Cox & Smith cites to two cases – McDonald v. Pettus, 988 S.W.2d 9, 15 (Ark. 1999) and Deeb v. Johnson, 566 N.Y.S. 2d 688, 689 (App. Div. 3d 1991). McDonald v. Pettus is an Arkansas case, which state, unlike Texas, has an express lawyer immunity statute – Ark. Code Ann. § 16-114-303 (Supp. 1997) – which precludes claims for civil damages against attorneys by parties not in privity with the attorneys. 988 S.W.2d at 12. In discussing this statute, the Arkansas Supreme Court stated as follows: We are equally unpersuaded by the children’s citations to cases from other jurisdictions because Arkansas has a specific statute, which we have narrowly interpreted to require direct privity. How other jurisdictions have interpreted their immunity statutes that may or may not be similar to our statute is simply irrelevant. For these reasons, we reject the children’s indirect-privity argument and hold that under the lawyer-immunity statute, Ark. Code Ann. § 16-22-310, a plaintiff must be in direct privity with the attorney or entity being sued for legal malpractice. Id. at 13. In McDonald, although the Arkansas Supreme Court rejected the children’s malpractice claims on the basis of lack of privity, the Court found privity with respect to the tort and breach of contract claims asserted against the attorneys by the personal representative of the deceased and the estate. Id. at 14-15. As with the claims brought by the children, we must first decide if the personal representatives have satisfied the privity requirement contained in section 16-22-310. In their brief, the appellees contend that the personal
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representatives brought their tort and breach-of-contract claims on behalf of the estate, and not on behalf of the decedent. Admittedly, the appellant’s brief is somewhat unclear on this matter. However, during oral arguments the appellants clarified that the personal representatives were bringing the tort and breach-of-contract actions on behalf of the decedent, James McDonald, because the estate “stood in the shoes” of the decedent after his death. In other words, the estate became the decedent posthumously. In fact, during oral argument the appellees conceded that the estate would have every cause of action for negligence or breach of contract against Mr. Pettus that the decedent would have had. In this case, there is no question that there was direct privity of contract between Mr. Pettus and the decedent, James McDonald. Because the estate is merely standing in Mr. McDonald’s shoes in order to bring the claim on his behalf, we hold that the privity requirement of 16-22-310 has been satisfied. Id. Tort claims under Arkansas law brought on behalf of a decedent are statutory and the statute requires that the decedent suffer damages prior to his death. Id. at 15. The Arkansas Supreme Court held that with respect to the tort claims, even though the personal representative could establish privity with the attorney, the tort claims had to be dismissed because there was no pre-death injury since decedent’s will could not have possibly taken effect until after this death. Id. However, the Supreme Court allowed the breach of contract claim to proceed, in part, on public policy grounds, because, otherwise, attorneys would be immunized from all malpractice actions arising from will preparations. Unlike a tort claim brought under the survival statute, a breach-of-contract claim brought under the probate code does not require either a pre-death breach or pre-death damages. Hence, the personal representatives may bring on the decedent’s behalf a breach-of-contract claim even though the breach and the resulting damages did not occur until after the decedent’s death. If we held otherwise, a promissor would no longer be obligated to perform under a contract after the promissee’s death. Likewise, attorneys would be immunized from all malpractice claims arising from will preparations because the heirs would not have standing to bring the claim, and the personal representatives could not bring the claim on the decedent’s behalf because there would have been no pre-death breach or injury. Neither the language of the lawyer-immunity statute nor the probate code indicates that
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the General Assembly intended such a harsh result. Id. at 16-17. Unlike Arkansas, legal malpractice claims asserted under Texas law are not statutory claims and are not subject to any requirements of pre-death damage imposed by survival statutes as more fully explained on pages 9-10 of the petition for review. Under Texas law, legal malpractice claims are common law claims and are not subject to the requirements imposed by survival statutes such as applied in McDonald v Pettus. The language that Cox & Smith relies upon from Deeb v. Johnson, also involves an analysis of New York survival statutes – McKinney’s EPTL 11-3.1 and 11-3.2(b) – which require damages prior to the death of the decedent. 566 N.Y. S.2d at 689. This decision has no application to legal malpractice claims asserted under Texas law, which are controlled by the common law, not survival statutes, as explained on pages 9-10 of the petition for review. THERE IS NO STATUTE OF LIMITATIONS ISSUE IN THIS PROCEEDING On pages 12 through 15 of its response to petition for review, Cox & Smith makes two (2) statute of limitations arguments. The first argument is actually expressed as a statute of limitations argument. It appears on pages 12 through 13 of the response. The second statute of limitations argument is a disguised one. Cox & Smith argues in the guise of a privity argument, that it is simply improper to allow claims against an attorney 30 years after the advice was given. None of the statute of limitations arguments are properly before this Court. The reason is that Cox & Smith did not timely file a motion for summary judgment on the basis of statute of limitations in the trial court. Cox & Smith filed a statute of limitations argument 4 days before the hearing on the parties’ cross-motions for summary judgment. (3 CR 647-662) The district court expressly refused to permit Cox &
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Smith leave to assert the summary judgment on the basis of statute of limitations. (3 CR 675-76) Cox & Smith did not appeal the trial court’s ruling denying its motion for leave to file or assert a cross-point in the Court of Appeals on the basis of statute of limitations. It preserved nothing for review in the Court of Appeals and cannot resurrect such abandoned issues before this Court. The statute of limitations issue is separate and distinct from the privity/accrual issues which form the basis of the Fourth Court of Appeals dismissal of Mr. O’Donnell’s claims. The statute of limitations defense, which has not been addressed by the trial court or the Court of Appeals, cannot serve as grounds for affirmence of the privity/accrual resolution made the basis of the Fourth Court of Appeals’ decision. CONCLUSION AND PRAYER The bad advice from Cox & Smith to Mr. Denney regarding mischaracterization of property and, thus, underfunding of the trust, resulted in legal injury and created a risk of harm to Mr. Denney’s interests at the time he relied on and acted on the advice during his lifetime. For such reason, Mr. Denney’s causes of action against Cox & Smith accrued in his lifetime and are actionable by Mr. O’Donnell, as his executor. Even if this Court concludes that the legal malpractice claims did not cause legal injury to Mr. Denney during his lifetime, the advice of Cox & Smith caused injury and damage to Mr. Denney’s estate and resulted in the depletion of Mr. Denney’s estate by $12.9 million. This Court should hold, as a matter of public policy, that Mr. O’Donnell, as the representative of Mr. Denney’s estate, has standing and is in privity with Cox & Smith for purposes of asserting legal malpractice claims arising from Cox & Smith’s representation of Mr. Denney. Petitioner requests that this Court order briefing on the merits, grant this petition for review, reverse the decision of the Court of Appeals, and remand this case to the Court of
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Appeals for further proceedings.
Respectfully submitted, DOHERTY!LONG!WAGNER, L.L.P.
BRETT WAGNER State Bar No. 20654270 MARK W. LONG State Bar No. 12521950 LARRY J. DOHERTY State Bar No. 05950000 13810 Champion Forest Drive Suite 225 Houston, Texas 77069 Telephone: (281) 583-7755 Telecopier: (281) 583-2093
PAUL WEBB, P.C.
______________________________________ VINCENT L. MARABLE III State Bar No. 12961600 221 N. Houston Street Wharton, Texas 77488 Telephone: (979) 532-5331 Telecopier: (979) 532-2902
ATTORNEYS FOR PETITIONER THOMAS O’DONNELL, EXECUTOR OF THE ESTATE OF CORWIN D. DENNEY
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CERTIFICATE OF SERVICE I hereby certify that on the 9th day of March, 2005, the foregoing document has been served by sending a true and correct copy thereof via the method of transmittal designated to the following counsel of record:
Casey L. Dobson R. Paige Arnette Jane M.N. Webre Scott, Douglass, & McConnico, L.L.P. 600 Congress Avenue Suite 1500 Austin, Texas 78701
VIA CERTIFIED MAIL RRR # 7004 2510 0006 7689 4898
______________________________________ VINCENT L. MARABLE III
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