author: Opinion By Justice MYERS.

text:
    Dell Edward JAMES, Appellant, v. COMMISSION FOR LAWYER DISCIPLINE, Appellee.
    No. 05-05-01585-CV.
    Court of Appeals of Texas, Dallas.
    April 5, 2010.

      Dell Edward James, Frisco, TX, pro se.
    Susan Morgan Farris, Office of the Chief Disciplinary Counsel, William Scott Hastings, Locke, Liddell & Sapp, L.L.P., John Chapman, Dallas, TX, Linda A. Acevedo, Office of the Chief Disciplinary Counsel, Austin, TX, for Appellee.
    Before Justices O’NEILL, LANG, and MYERS.
   OPINION

Opinion By Justice MYERS.

This is an appeal from a disciplinary proceeding in which the trial court found that appellant, Dell Edward James, violated the Texas Rules of Professional Conduct. After a two-day bench trial, the court entered a judgment of public reprimand and restitution. In three issues, appellant argues there is legally and factually insufficient evidence to support the judgment and that the trial court abused its discretion by denying appellant’s special exceptions to the Commission for Lawyer Discipline’s (Commission’s) pleadings, ordering appellant to make restitution, and awarding the Commission attorney’s fees. We affirm the trial court’s judgment.

BACKGROUND AND PROCEDURAL HlSTORY

Appellant is a partner with the law firm of Carmody and James, P.C., which was employed by Barbara Churchman (Churchman) to handle a civil matter arising out of the sale of real estate. In March 1999, Churchman received a letter from her neighborhood architectural control committee (the committee) informing her that she needed to move her motor home, which had been parked in her driveway, because it violated neighborhood deed restrictions. In her trial testimony, Churchman claimed she was unaware of these deed restrictions because they were not provided to her when she closed on her house. In May 1999, she sought out appellant for legal advice. Churchman testified that she showed the committee’s letter to appellant, and that he told her he would respond to the letter and try to “work something out” with the committee. Nothing, however, was “worked out” with the committee.

On June 26, 2000, appellant sent a demand letter to Louise Conover, the previous owner of Churchman’s house, claiming Conover had misrepresented to Churchman that motor homes could be parked on the property. Appellant demanded damages and threatened to sue if the matter was not resolved. He did not send a copy of this letter to Churchman, according to her testimony. In a letter to appellant dated August 29, 2000, Thomas Stauch, counsel for Conover, responded to appellant’s letter by stating what he believed were the weaknesses in appellant’s position. Among other things, Stauch asserted that “your allegation that Ms. Conover took advantage of your client’s ‘lack of knowledge, ability, experience or capacity to a grossly unfair degree’ is simply ludicrous.” Stauch also threatened to bring a counterclaim and a motion for sanctions against Churchman if the matter was not dropped. Appellant did not send a copy of this letter to Churchman and he did not, according to Churchman’s testimony, advise her that opposing counsel was threatening sanctions and a counterclaim. On February 28, 2001, appellant filed suit against Conover and other parties in the 211th Judicial District Court of Denton County, Texas. Churchman testified that appellant never sent her a copy of the petition.

On May 17, 2001, Stauch responded to the original petition in a letter to appellant that reiterated his position that he considered the claims against Conover to be frivolous. Stauch also threatened that if Conover was not dismissed from the lawsuit within ten days, he would file a counterclaim against Churchman and a motion for sanctions against her, appellant, and appellant’s law firm. As before, according to Churchman’s testimony, appellant did not send her a copy of the letter and he did not inform her of its contents, including the threat of a counterclaim and sanctions.

Three months later, on August 17th, Conover’s attorney filed an amended answer and counterclaim against Churchman. Four days after that, he filed a motion for sanctions against Churchman, appellant, and appellant’s law firm. Among other things, both motions sought attorney’s fees for the costs of defending against Churchman’s lawsuit. Churchman testified that appellant did not provide her with a copy of Conover’s amended answer and counterclaim or motion for sanctions, and he did not inform her of their contents or tell her the documents had been filed. She also claimed he never discussed their possible ramifications with her, including the fact that she could be held liable to Conover for damages and sanctions.

Around this same time, appellant delegated responsibility for Churchman’s case to another attorney in his firm, Laura Yates. Yates testified that she had been employed by appellant’s firm for “maybe a month” when appellant asked her to “take over handling that file.” She recalled that she took over the case sometime in August 2001, and that the case file was returned to appellant in 2002. During that time, according to her testimony, Yates was the primary attorney on the case. As the primary attorney, Yates consulted with Churchman regarding discovery responses and helped her to prepare for her deposition. Prior to the deposition, Yates reviewed the “most recent” petition with her and “went over her discovery responses.” Yates testified that she did not send Churchman a copy of the original petition “because by the time I took over the file the petition had already been filed and the case had been ongoing for some time.”

Yates stated that most of her communications with Churchman occurred via telephone, and that she spoke to Churchman on the telephone “multiple times.” Yates would usually call Churchman at one of her two business locations because Churchman was rarely at home. Although Yates sometimes had trouble contacting Churchman, she usually returned Yates’s telephone calls within a couple of days. Yates maintained that she kept Chureh-man “reasonably informed” about the pleadings that were filed in the case.

When asked at trial whether he acted in a “supervisory capacity” towards Yates, appellant stated he “was not Ms. Yate’s [sic] supervising attorney.” Churchman claimed she knew nothing of the reassignment and that she did not even know Yates was working on her case until Yates called her shortly before her deposition to tell her that appellant “couldn’t be at the deposition” and that Yates “was standing in for him.” As far as Churchman was aware, appellant was her “main attorney.”

On September 26, 2001, Conover’s attorney filed a second amended answer and counterclaim. Churchman testified she was not provided with a copy of this pleading or informed of its contents. By November 2001 Stauch had made, according to his trial testimony, “[m]any” verbal demands on appellant or the associates of his law firm to dismiss Conover from the lawsuit, none of which were heeded. On November 8th, he sent the following letter to Laura Yates:

I have repeatedly asked for your cooperation in obtaining a dismissal for my client. If there was any doubt about whether the filing of suit against my client was done in bad faith and in violation of Texas Rule of Civil Procedure 13 and Chapter 10 of the Texas Civil Practice and Remedies Code, Ms. Churchman’s deposition removed that doubt. If I do not receive a notice of nonsuit of your client’s claims agáinst Ms. Conover by November 15, 2001, I intend to file a motion for summary judgment and, when granted, I will pursue every penny expended in attorneys’ fees and expenses on behalf of Ms. Conover against your client and your law firm in accordance with the Rules.
This charade has gone on long enough and its [sic] time to do the right thing. Please dismiss your client’s claims against Ms. Conover immediately.

Churchman testified that she was never provided with a copy of this letter or advised of its contents.

On January 24, 2002, Conover moved for summary judgment as to Churchman’s claims against her. As before, according to Churchman’s testimony, she was not provided with a copy or this motion, advised of its contents, or counseled regarding the possible effects if the motion was granted. On March 15th, the court granted Conover’s motion for summary judgment and dismissed Churchman’s claims against her. Churchman testified she was not provided with a copy of the order or advised of its contents. Three days later, Stauch sent a letter to appellant’s law firm enclosing a copy of the summary judgment order and stating that he was “conferring with my client regarding” the motion for sanctions and the counterclaim. Churchman claimed she was not provided with a copy of this letter or advised of its contents.

On May 13th, Conover filed an amended motion for sanctions against Churchman, appellant, and appellant’s law firm. The motion sought attorney’s fees in the amount of $21,189.91. On that same day, Conover moved for summary judgment on her counterclaim against Churchman. The summary judgment motion asked for $21,189.21 in attorneys’ fees and expenses. Churchman testified that she was not provided with a copy of either motion or informed of their contents.

When no response to the motion for summary judgment was filed, the court entered a June 20, 2002 order granting Conover’s motion and awarding her a judgment against Churchman for $21,189.91. It was at this point, according to appellant’s testimony, that he “came back into the case” and filed, on July 19th, a combined motion for the court to reconsider the award of attorney’s fees and for new trial, which was denied. Churchman testified that appellant never provided her with a copy of the court’s summary judgment order or advised her of its contents or its consequences.

On July 8th, eighteen days after the summary judgment order was signed, Jennifer Gray, an attorney at appellant’s firm, wrote, at appellant’s request, a letter to Churchman explaining that the court had granted Conover’s motion for summary judgment. Gray noted the effect of the court’s ruling was that Churchman had been ordered to pay “approximately $21,189.91 for Ms. Conover’s attorney’s fees.” This letter, however, did not have the correct zip code for Churchman’s mailing address, and Churchman testified that she never received it. Gray noted that, both before and after sending the July 8th letter, she repeatedly attempted to contact Churchman by telephone and Churchman did not return any of her calls.

On August 13th, according to Gray’s testimony, Churchman called her to ask for “a complete copy of her file” so that it could be “reviewed by another attorney.” During this telephone conversation, Gray recalled that she briefly explained to Churchman “the things we really have to get taken care of’ and that time was “of the essence.” Gray also learned that Churchman had not received a copy of the motion to reconsider because the office did not have her correct mailing address. Although Churchman never mentioned the July 8th letter during the telephone call, Gray nonetheless believed, based on that conversation, that Churchman had received the letter despite the incorrect mailing address. After speaking to Churchman, Gray wrote a letter to Churchman enclosing copies of the motion to reconsider and the court’s order granting Con-over’s motion for summary judgment. After mailing this letter, Gray continued to call Churchman but she did not return any of her telephone calls.

At Gray’s request, a paralegal in appellant’s firm mailed Churchman a copy of the first amended motion to reconsider the award of attorney’s fees and first amended motion for new trial, which was filed on October 9, 2002. So far as Gray was aware, Churchman did not respond to the letter, which was mailed on October 7th, or return any of her telephone calls. From August 14th to mid-February of 2003, Gray estimated that she may have called Churchman as many as thirty times, and “possibly” as many as fifty times, but “never heard back from her and never spoke to her.”

Churchman insisted that she was never contacted by Gray and that she did not “even know who Jenny Gray is.” Churchman also testified that she did not recall receiving any messages from appellant that she did not respond to, and appellant knew her cellular telephone number of eleven years as well as her fax number. Churchman remembered calling appellant’s office to ask for a copy of her file, but believed she spoke to a receptionist because “[tjhat’s the only person you could get through to.”

Churchman asserted that she first learned through a friend that she had “lost” the case, and she contacted appellant in June or July of 2002 to find out what was “going on.” During this telephone conversation, appellant told her to calm down and explained that the judge was angry with him because he was “a small town judge” and appellant was “a big town attorney.” Appellant did not explain what had happened, but he promised Churchman he was “going to take care of it.” He also told her that if she did not “hear from [him], [then] it’s been taken care of.” This was appellant’s last conversation with Churchman, according to her testimony.

After the court granted Conover’s motion for summary judgment, Stauch repeatedly called appellant in an effort to settle the case. According to Stauch, appellant did not respond to his telephone calls. Churchman likewise testified that she was never told about the settlement inquiries. On September 12, 2002, the court granted Conover’s motion for sanctions. The order held appellant’s law firm jointly and severally liable with Churchman to Conover “for the first $8,686.12 of the $21,189.91 judgment previously granted in favor” of Conover. As before, according to Churchman, appellant did not provide her with a copy of the order or advise her of its contents.

In a September 13th letter to appellant, Stauch noted the court’s orders granting sanctions and denying the motion to reconsider. He also stated:

The Court denied your Motion when you failed to appear yesterday for the hearing that was requested by you, or someone in your office. Despite receiving no notice of the hearing from you, I was advised of the hearing when my paralegal called to inquire as to the status of my proposed order granting sanctions. The person in your office responsible for scheduling the hearing apparently called the Court’s coordinator on August 12 (when she advised the hearing was scheduled) and then neglected to advise you of the hearing, and certainly failed to provide me with notice of same.

Stauch indicated he was “still open to receiving a proposal of resolution of these issues, but the time for making such a proposal is running out.” Appellant did not respond to this letter. According to Churchman, he did not provide her with a copy or advise her of the contents. Churchman testified that, at this point, she did not even know Stauch was offering to settle the case.

On December 20, 2002, Stauch sent appellant a copy of the final judgment to appellant for his approval. Gray responded in a January 7, 2003 letter that the final judgment was acceptable. Appellant did not provide Churchman, according to her testimony, with a copy of either the letter or the final judgment nor did he inform her of their contents.

On February 13th, the court entered a final judgment of $21,189.91 against Churchman. She testified that appellant never provided her with a copy of the final judgment and he did not advise her of its contents. On that same day, Stauch sent a letter to appellant enclosing a copy of the final judgment and noting the court had authorized an additional award of $10,000 in attorney’s fees in the event of an appeal. Stauch stated that “[i]f your client would like to discuss a reasonable settlement of a $21,000 judgment in lieu of the very real risk of being stuck with a $31,000 judgment, please let me hear from you.”

Appellant, however, did not respond to this letter nor did he provide a copy of the letter to Churchman or inform her of its contents, according to testimony provided by Churchman and Stauch. Stauch testified that he called appellant several more times and left messages on appellant’s telephone voice mail inviting him to enter into settlement negotiations, and warning appellant that he would proceed with a writ of execution if appellant did not respond. Appellant did not respond to these inquiries and he never told Churchman, according to her testimony, about the telephone calls from Stauch. On August 22, 2003, a writ of execution was issued to enforce the judgment against Churchman.

Four days later, on August 26, 2003, at approximately 9:00 p.m., a constable arrived at Churchman’s home to execute the judgment. Angry and confused, and not knowing how to contact appellant after business hours, Churchman frantically telephoned Kimberly Killebrew, another lawyer whom she knew, and asked if she knew appellant’s cellular telephone number. After providing appellant’s cellular number, Killebrew briefly explained the legal process to Churchman, including what a writ of execution was and why the constable was at her home. Churchman claimed she telephoned appellant in an effort to find out what was going on, but could not reach him.

On the following day, Killebrew went down to the courthouse on Churchman’s behalf to find out what had happened in her case. Killebrew checked out the court’s case file and discovered that Churchman had been sanctioned by the court and a motion for summary judgment had been granted against her, and that her claims against Conover had been denied. While Killebrew examined the case file at the courthouse, Churchman testified that she continued to call appellant, but he did not return her telephone calls. Frustrated, Churchman eventually went down to appellant’s office, retrieved her file, and reviewed it with Killebrew at Killebrew’s office. It was at this point, according to Churchman’s testimony, that she discovered what had happened in the case and saw letters, pleadings, and orders that were never provided or explained to her. Kille-brew testified that when she reviewed the file that Churchman had retrieved from appellant’s office, she found “very little correspondence between Ms. Churchman and [appellant] or the attorneys in his office,” except for “a copy of one or two letters from [appellant’s] office to Ms. Churchman.”

Churchman subsequently paid $22,433.24 to satisfy the judgment against her. In September 2003, she filed a complaint against appellant with the Office of the Chief Disciplinary Counsel for the State Bar of Texas.

Appellant’s Testimony

Appellant testified that he was licensed to practice law in 1997. He testified that he knew Churchman because she was the manager of the “executive suite” where his law offices were located, and that they “talked as personal friends all the time” because Churchman’s office was “around the corner” from appellant’s office. He also testified that, shortly after being notified by Churchman of the March 1999 letter she received from the committee demanding removal of the RV parked in her driveway, he discussed with her the original purchase of the property, her requests for information regarding the various covenants and deed restrictions on the property, options for resolving the matter without litigation, and the possibility of building a garage on her property to house the RV. Before filing suit, they also discussed possible causes of action and who should be sued. Appellant noted, for example, that Churchman wanted to sue Conover, the seller, but did not want to file suit against Judy West, her real estate agent.

As a result of these discussions, the demand letters were sent to Conover and the other defendants shortly before suit was filed. Appellant noted that he consulted and advised Churchman regarding a settlement that was successfully negotiated with Commonwealth Land and Title Company (Commonwealth), one of the defendants in the case. Appellant testified that he assigned the case to Laura Yates sometime around May 17, 2001, when Conover filed her answer. Appellant stated that he and Churchman continued to have “contact off and on ... for a while” after he assigned the case to Yates. Appellant also testified that, from the time Yates took over the case as primary attorney until the court granted summary judgment, Churchman “never complained” and that “[s]he never said she didn’t get anything” nor did she request any information. During the time his law firm represented her, appellant contended he received no letters or written correspondence from Churchman other than a September 3, 2003 letter demanding payment of $31,493.54. According to appellant, “[t]he only time [Churchman] ever made an allegation she didn’t know [what was going on] was when she sent” him the “demand letter.” Appellant pointed out that his home telephone number was listed and that, furthermore, Churchman knew his cellular telephone number and “[a]ny time [she] called I took her call.” Appellant asserted he had no reason to believe Yates was not communicating with Churchman and, based on his knowledge and review of the case, Yates kept Churchman reasonably informed concerning the status of the case.

After the trial court granted Conover’s motion for summary judgment, appellant became “personally reinvolved” in the case and filed the motion to reconsider. Appellant recalled attending a hearing that was held on either June 20 or June 27, after which the court ordered sanctions against Churchman, appellant, and appellant’s law firm, jointly and severally, for filing a frivolous lawsuit. After the trial court signed the sanctions order, appellant claimed he told Jennifer Gray to contact Churchman, “tell her what had happened,” and “find out what she wants to do.” Appellant testified that Gray attempted to call Churchman but she “wouldn’t take her [telephone] calls.” Gray later asked appellant to call Churchman. Appellant contended he personally made ten or fifteen telephone calls to Churchman and she did not respond to any of them. He also acknowledged, however, that he did not send Chui’chman any follow-up correspondence asking her to contact him, although he noted that other attorneys in his firm had done so.

Appellant testified that he believed he lacked the authority to dismiss the lawsuit against Conover on his own and Churchman never told him to dismiss the lawsuit nor did she authorize a dismissal. He contended that Stauch never made a monetary settlement offer to him and Churchman did not give him authority to make a settlement offer to Stauch. Appellant also testified at trial, in contrast to his deposition testimony, that he sent Churchman a copy of the pleadings, discussed the counterclaim with her, and sent her a copy of the final judgment.

Procedural History

On November 2, 2004, the Commission filed an original disciplinary petition and request for disclosure against appellant in the 296th Judicial District Court of Collin County. The Commission brought three claims against appellant based on violations of rules 1.03(a), 1.03(b), and 1.06(b)(1) of the Texas Disciplinary Rules of Professional Conduct (TDRPC). See Tex. Disciplinary R. Prof’l Conduct 1.03, 1.06, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar. R. art. X, § 9). On May 18, 2005, the Commission filed a first amended petition adding a claim that appellant violated TDRPC rule 1.02(a)(2). See Tex. Disciplinary R. Prof’l Conduct 1.02. On July 15, 2005, appellant moved for summary judgment on all four claims. On August 11, 2005, appellant withdrew the summary judgment motion as to the claims he violated rules 1.03(a) and 1.03(b). On that same day, the district court granted summary judgment for appellant on the claim he violated rule 1.06(b)(1), and deferred ruling on the claim he violated rule 1.02(a)(2).

On August 22 and 23, 2005, the district court held a bench trial on the remaining three claims. The court found that appellant violated TDRPC rules 1.03(a) and 1.03(b) but did not violate rule 1.02(a)(2). The court’s findings noted, among other things, that Yates had never filed a formal appearance in the case and that “as a practical matter from the evidence that there was no express authority from Ms. Churchman that the case be assigned to some other attorney....” The.court also found that the conduct that formed the basis for the rules violations did not occur between August 2001 and April 2002, when Yates “primarily handle[d] matters,” and that appellant violated the TDRPC in his handling of Churchman’s case as to Con-over, but not as to other parties. In particular, the court found that Churchman “was reasonably informed pertaining to Commonwealth negotiations, settlement offers, counteroffers and ultimate settlement of that claim.”

The court then held an evidentiary hearing regarding the sanctions to be imposed. At the conclusion of that hearing, the court ordered the following sanctions: (1) public reprimand; (2) restitution to Churchman in the amount of $14,488.24; and (3) attorney’s fees and costs to the Commission of $16,522.28. On October 5, 2005, appellant filed a motion for new trial, which was denied on November 16, 2005, after which he perfected this appeal.

Discussion

Special Exceptions

In his first issue, appellant argues the trial court abused its discretion by (1) denying appellant’s special exceptions to the Commission’s pleadings and (2) finding the evidence was sufficient to hold that appellant violated rules 1.03(a) and 1.03(b) of the TDRPC.

Beginning with appellant’s first contention, the issue is whether the Commission’s first amended disciplinary petition provided appellant fair notice of what conduct was at issue or what relief was being sought. Appellant suggests the Commission used “vague and generic pleadings” that were “unclear” and “ambiguous.” He argues the petition never specifically stated what matters he “failed to inform [Churchman] of, what matters [appellant] failed to explain to [Churchman], or what time period was in question.” He also argues the Commission should have been required to specifically plead “what damages were being sought.”

Standard of Review

We review a trial court’s ruling on special exceptions for an abuse of discretion. Bader v. Cox, 701 S.W.2d 677, 686 (Tex.App.-Dallas 1985, writ ref'd n.r.e.); Johnson v. Davis, 178 S.W.3d 230, 242 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). A trial court abuses its discretion when it acts without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985). In making this determination, we review the pleadings and construe the petition liberally, accepting as true all the factual allegations set forth. Aranda v. Ins. Co. of N. Am., 748 S.W.2d 210, 213 (Tex.1988).

Applicable Law

A pleading’s purpose is to give fair notice of a party’s claims and the relief sought. WorldPeace v. Comm’n for Lawyer Discipline, 183 S.W.3d 451, 457 (Tex.App.-Houston [14th Dist.] 2005, pet. denied). “In defining fair notice and in measuring the adequacy of a pleading against that standard, Texas courts consistently indicate that to force a party to plead his entire case, with exactness, is not concordant with the spirit of the Rules governing pleading.” Rodriguez v. Yenawine, 556 S.W.2d 410, 414 (Tex.Civ.App.-Austin 1977, no writ). “Fair notice under the rules is met if an opposing attorney can ascertain the nature and basic issue of the controversy from the pleadings.” Hays County v. Hays County Water Planning P’ship, 69 S.W.3d 253, 258 (Tex.App.-Austin 2002, no pet.); see also Bader, 701 S.W.2d at 677 (“The function of a pleading is to define the issues at trial, not to state evidence.”).

As noted in the Commission’s brief, the Texas Rules of Disciplinary Procedure (TRDP) provide the pleading requirements for a disciplinary petition. Specifically, rule 3.01 provides the following three requirements: (1) A description of the acts and conduct that gave rise to the alleged professional misconduct in detail sufficient to give fair notice to respondent of the claims made; (2) a listing of the specific rules of the TDRPC allegedly violated by the acts or conduct, or other grounds for seeking sanctions; and (3) a demand for judgment that the respondent be disciplined as warranted by the facts and for any other appropriate relief. See Tex.R. Disciplinary P. 3.01D, E, and F, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A-l (Vernon Supp. 1997).

Analysis

Here, the Commission’s first amended petition provided notice that the nature and basic issue of controversy in this case were that appellant had “failed to keep Churchman reasonably informed about the status of the lawsuit and failed to comply with Churchman’s proper requests for information.” More specifically, the petition alleged: (1) “[Appellant] failed to adequately prepare Churchman for her deposition, and subsequently failed to explain the consequences of Churchman’s testimony”; (2) “[Appellant] failed to notify Churchman that a judgment had been taken against her”; (3) “[Appellant] failed to confer with complainant before agreeing to [an] offer [of settlement]” and signing off on the final judgment in the case; (4) “[Appellant] failed to notify Churchman of ... offers” to settle the case after the final judgment had been entered; ■ and (5) “[P]rior to filing suit, [appellant] did not discuss with Churchman the possibility of participating in mediation with the seller.” Moreover, insofar as the “time period ... in question” is concerned, the petition stated that it concerned acts beginning “in or about May 1999, [when] Barbara Churchman ... employed Respondent to represent her,” and ended sometime after final judgment “was signed on February 13, 2003,” when a writ of execution was served on Churchman. The petition, in other words, described the acts and conduct that gave rise to the alleged professional misconduct. See id. '3.01D. It stated the specific disciplinary rules that were allegedly violated by appellant. See id. 3.01E. It also requested “judgment that Respondent be disciplined, as the facts shall warrant; and that Petitioner have such other relief to which entitled, including direct expenses, costs of Court and reasonable attorney’s fees and legal assistant fees.” See id. 3.01F. The Commission was not required to allege in the petition every single instance in which appellant failed to communicate with Churchman; the concept of fair notice pleading simply does not require such a level of specificity. See Rodriguez, 556 S.W.2d at 414.

Turning to the question of whether the petition provided fair notice of the damages that were sought, we note it alleged that the case concerned appellant’s misconduct in the handling of Churchman’s case, and that this misconduct resulted in Churchman being subjected to a judgment in excess of $21,000. Further, the commission requested “judgment that [appellant] be disciplined, as the facts shall warrant; and that [the Commission] have such other relief to which entitled.” Appellant admits that restitution is a sanction that is specifically authorized by the rules of disciplinary procedure. See Tex.R. Disciplinary P. 1.06Y (stating that the term “sanction” may include, among other things, restitution and payment of reasonable attorney’s fees and all direct expenses associated with the proceedings). That appellant would be required to make restitution if the Commission prevailed on its claims was a foreseeable consequence of the allegations and relief requested in the first amended petition. See Rivero v. Blue Keel Funding, L.L.C., 127 S.W.3d 421, 424-25 (Tex.App.-Dallas 2004, no pet.) (pleading supported judgment and provided fair notice of claim against party even though it did not include specific prayer for the relief granted).

Appellant suggests that the court could impose restitution only if a request for restitution was properly before the court. He cites no authority for this argument, however, nor are we aware of any legal authority preventing a court from imposing the sanction of restitution unless the Commission explicitly requested it in its pleadings. According to the rules of disciplinary procedure, the only pleading requirement for requesting sanctions is that the disciplinary petition must contain “[a] demand for judgment that the Respondent be disciplined as warranted by the facts and for any other appropriate relief.” See Tex.R. Disciplinary P. 3.01F. After a lawyer is found to have engaged in misconduct by the court, the determination of the appropriate sanction is left to the court’s discretion. See id. 3.09 (if the court finds the respondent’s conduct violated the rules of professional conduct, “the court shall determine the appropriate Sanction or Sanctions to be imposed.”). We find nothing in the rules or case law cited by appellant to suggest that a court’s ability to impose the sanction of restitution should depend on whether the Commission explicitly asked for restitution in its pleadings. Accordingly, we conclude the district court did not abuse its discretion by denying appellant’s special exceptions to the Commission’s pleadings, and we overrule part (1) of appellant’s first issue.

Sufficiency of the Evidence

Turning to the second part of appellant’s issue, he claims the trial court abused its discretion by finding the evidence was sufficient to conclude appellant violated TDRPC rules 1.03(a) and 1.03(b).

Standards of Review

In a disciplinary action against an attorney, the Commission must prove its allegations by a preponderance of the evidence. Tex.R. Disciplinary P. 3.08C; see Curtis v. Comm’n for Lawyer Discipline, 20 S.W.3d 227, 230 (Tex.App.-Houston [14th Dist.] 2000, no pet.).

“The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In reviewing a judgment for legal sufficiency, the court “must view the evidence in the light most favorable to the verdict, crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not.” Id,, at 807.

“When challenging the factual sufficiency of the evidence supporting an adverse finding upon which the appealing party did not have the burden of proof, the appellant must demonstrate there is insufficient evidence to support the adverse finding.” McIntyre v. Comm’n for Lawyer Discipline, 169 S.W.3d 803, 806 (Tex.App.-Dallas 2005, no pet.). In conducting a factual sufficiency review, “we consider and weigh all the evidence in support of and contrary to the finding, and will set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.” Id.

In making this review, we are not a fact finder. Id. We do not pass upon the credibility of the witnesses or substitute our judgment for that of the fact finder, even if a different answer could be reached upon review of the evidence. Id. The amount of evidence necessary to affirm a judgment is far less than that necessary to reverse a judgment. Id.

Applicable Law

Rule 1.03(a) of the TDRPC provides that “[a] lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.” Tex. Disciplinary R. Prof’l Conduct 1.03(a). Rule 1.03(b) provides that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” Id. 1.03(b). “The client should have sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pm-sued....” Id. 1.03 cmt. 1. “In litigation a lawyer should explain the general strategy and prospects of success and ordinarily should consult the client on tactics that might injure or coerce others.” Id. 1.03 cmt. 2. “Comment 2 to Rule 1.03 illustrates that it is not the quantity, but the quality and content of the communications that shows compliance with Rule 1.03.” Eureste v. Comm’n for Lawyer Discipline, 76 S.W.3d 184, 200 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

Legal Sufficiency Analysis

Appellant argues the evidence presented by the Commission did no more than “create mere surmise or suspicion” that he violated rules 1.03(a) and 1.03(b). He contends Churchman “did no more than to say she was not aware of matters regarding her case,” and she “never specified what matters she was not aware of.”

According to the record, Churchman testified that appellant never told her about Conover’s counterclaim or motion for sanctions, or explained their significance. She testified that appellant did not inform her that the district court had granted Conover’s motion for summary judgment on the counterclaim or Con-over’s motion for sanctions. Churchman also testified that appellant never told her that a final judgment had been entered against her. In addition, she testified that appellant never told her about any of the multiple invitations from Stauch to settle the case, even those that occurred after final judgment had been entered against her. Testimony presented by appellant often contradicted testimony from Churchman, Killebrew, and Stauch. But the district court was free to believe the Commission’s evidence instead of the evidence presented by appellant, and we are not in a position to second-guess those credibility determinations. Accordingly, we conclude the evidence is legally sufficient to support the judgment.

Factual Sufficiency Analysis

Appellant argues that the verdict was clearly wrong and manifestly unjust because “ample evidence was presented at trial to demonstrate communications with [Churchman] in accordance with Rules 1.03(a) and 1.03(b).” He also contends Churchman’s testimony was vague and elusive, inconsistent, contradicted by testimony from appellant’s witnesses, and that Churchman was motivated by personal animus because appellant refused- her demand that he pay her “over $31,000 to avoid having a grievance filed against him.”

We conclude there is factually sufficient evidence in this record to show that appellant violated rules 1.03(a) and 1.03(b) by failing to keep Churchman reasonably informed regarding the counterclaim, the sanctions, or the invitations from Stauch to settle the underlying litigation. Appellant refers to conversations that he and associates in his firm allegedly had with Churchman, and contends these communications show he kept her reasonably informed regarding the status of the case and that he explained relevant matters to her. However, “[i]t is not the quantity but the quality and content of the communications that shows compliance with Rule 1.03.” Eu-reste, 76 S.W.3d at 200. The Commission correctly points out that many of the communications with Churchman that are cited in appellant’s brief are not dispositive because they either occurred outside of the time frame noted by the trial court or had nothing to do with the alleged violations of rule 1.03. Appellant, for example, calls our attention to his extensive communications with Churchman regarding the settlement with Commonwealth, but appellant was not found to have violated rules 1.03(a) and 1.03(b) regarding that part of the underlying litigation.

Appellant’s reliance on his testimony as well as testimony from Yates and Gray, two lawyers in his firm, does not alter our conclusion that the judgment is supported by factually sufficient evidence. Appellant calls our attention to his testimony that he repeatedly attempted to call Churchman and that he believed Yates and Gray were communicating with her regarding developments in the case. Appellant also relies on testimony from Yates, who stated that she kept Churchman reasonably informed, and testimony from Gray, who contended she was unable to speak with Churchman regarding the underlying litigation because Churchman repeatedly refused to return her telephone calls. But appellant acknowledged that he was not directly involved in Churchman’s case for an extended period of time, and that he was not Yates’s supervising attorney. Moreover, there is no evidence showing that Churchman authorized áppellant to assign the case to Yates, who never filed a formal appearance in the case, or that Churchman was aware of the delegation of her case’s responsibilities to Yates. As for Gray, Churchman testified that she had never talked to her and that she did not “even know who Jenny Gray is.” The Commission, on the other hand, presented testimony that Churchman was not kept reasonably informed about the counterclaim, the sanctions, and the many invitations from Stauch to settle the underlying litigation. It was the role of the fact finder to resolve such conflicts and inconsistencies in the testimony of the witnesses. We therefore conclude the evidence is factually sufficient to support the judgment, and we overrule part (2) of appellant’s first issue.

Restitution

In his second issue, appellant argues the trial court abused its discretion by awarding restitution to Churchman because the Commission did not request restitution or any other form of relief for Churchman in its pleadings.

Applicable Law

A judgment must conform to the pleadings in the case. Tex.R.Civ. P. 301; Cunningham v. Parkdale Bank, 660 S.W.2d 810, 812 (Tex.1983). “In determining whether [a] judgment conform[s] to the pleadings, an appellate court should view the pleadings as a whole. A prayer for general relief will support any relief raised by the evidence and consistent with the allegations in the petition.” Raymond v. Raymond, 190 S.W.3d 77, 83 (Tex.App.Houston [1st Dist.] 2005, no pet.) (citing Khalaf v. Williams, 814 S.W.2d 854, 858 (Tex.App.-Houston [1st Dist.] 1991, no writ)). “[0]nly relief consistent with the causes of action contained in the petition may be granted under a general prayer for relief.” Khalaf, 814 S.W.2d at 858.

Analysis

The Commission’s first amended petition prayed for “judgment that Respondent be disciplined, as the facts shall warrant; and that Petitioner have such other relief to which entitled.” This prayer for relief is consistent with the judgment ordering appellant to make restitution because restitution is a sanction that is specifically authorized by the TRDP. See Tex.R. Disciplinary P. 1.06Y. In addition, the first amended petition alleged that the basis for the case against appellant was his failure to communicate and explain the legal proceedings to Churchman, and that this failure to communicate and explain resulted in a $21,189.91 judgment being entered against her. We conclude that the judgment imposing restitution conformed to the petition. We therefore overrule appellant’s second issue.

Attorney’s Fees

In his third and final issue, appellant claims the trial court abused its discretion by awarding the Commission attorney’s fees because it did not segregate the attorney’s fees among the various claims in the case, despite appellant’s request that it do so.

Standard of Review and Applicable Laiv

Rule 1.06Y of the TRDP allows a district court to award attorney’s fees as a sanction. See Tex.R. Disciplinary P. 1.06Y. We review the sanctions imposed on an attorney for professional misconduct for abuse of discretion. McIntyre, 169 S.W.3d at 807.

Generally, the party seeking to recover attorney’s fees carries the burden of proof. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex.1991). A court may award those fees that are “reasonable and necessary” for the prosecution of the suit. Id. “In order to show the reasonableness and necessity of attorney’s fees, the plaintiff is required to show that the fees were incurred while suing the defendant sought to be charged with the fees on a claim which allows recovery of such fees.” Id. However,

A recognized exception to this duty to segregate arises when the attorney’s fees rendered are in connection with claims arising out of the same transaction and are so interrelated that their ‘prosecution or defense entails proof or denial of essentially the same facts.’

Id. at 11. “Therefore, when the causes of action involved in the suit are dependent upon the same set of facts or circumstances and thus are ‘intertwined to the point of being inseparable,’ the party suing for attorney’s fees may recover the entire amount covering all claims.” Id.

The Texas Supreme Court’s decision in Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex.2006), partially modified the holding in Stewart Title. In Tony Gullo, the court was faced with the issue of whether fees incurred on a fraud claim should have been segregated from fees incurred on breach of contract and DTPA claims. The court concluded that attorney’s fees on the fraud claim were not authorized by either statute or contract and were unrecoverable, while the fees incurred on the contract claim and DTPA claim were recoverable. See id. at 310-11. Having concluded that the fees incurred on the fraud claim were unrecoverable, the court then determined that those fees should have been segregated out and that it was possible for the plaintiffs attorneys to identify fees incurred on each asserted claim. Id. at 313. In so concluding, the court modified its holding in Stewart Title to the extent that

if any attorney’s fees relate solely to a claim for which such fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees. Intertwined facts do not make tort fees recoverable; it is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated.

Id. at 313-14.

Analysis

In this case, the Commission initially brought four claims against appellant and prevailed on two of them. During the evidentiary hearing concerning sanctions, the Commission requested $19,511.75 in attorney’s fees and was awarded $12,400.

Appellant contends the Commission should have been required to segregate the attorney’s fees regarding the two claims on which it did not prevail because “each of the four alleged rule violations are distinguishable causes of action with separate, often disparate, elements.” In a case such as this one, however, where attorney’s fees are recoverable on all of the claims brought by the Commission, see Tex.R. DISCIPLINARY P. 1.06Y, the issue is whether those claims are dependent upon the same set of facts or circumstances, not whether they have similar or disparate elements. See Stewart, 822 S.W.2d at 11.

As noted previously, appellant was found to have violated rules 1.03(a) and 1.03(b) of the TDRPC for failing to keep Churchman reasonably informed regarding the sanctions order, the counterclaim, and the overtures from Stauch to settle the underlying litigation. Appellant’s handling of the sanctions and the overtures from Stauch likewise provided the factual basis for the other two claims against appellant, which were that he violated rules 1.02(a)(2) and 1.06(b)(1) of the TDRPC. In alleging that appellant violated rule 1.02(a)(2), which obligates a lawyer to communicate any settlement offer to a client in a civil case, the Commission relied on the fact that Stauch made a number of overtures to appellant regarding settlement of the underlying litigation, appellant never responded, and he never informed Churchman about the invitations to settle. In alleging that appellant violated rule 1.06(b)(1), which concerns conflicts between the interests of a client and the lawyer’s own interests, the Commission relied on the fact that appellant never told Churchman about the sanctions order and that he negotiated to have the sanctions against his law firm waived if he withdrew his motion for new trial. Therefore, all of the Commission’s claims were based on the same operative facts or circumstances, and, accordingly, the trial court did not abuse its discretion in awarding attorney’s fees. We overrule appellant’s third issue.

We affirm the trial court’s judgment.

      . .At the time of trial, Yates was married and went by the name Laura Schmidt.

      . The letter also advised:
      At this time, you have two options. First, we can represent you and appeal this ruling. We believe there is merit in appealing the Court’s ruling. If you want to proceed with an appeal, you must contact us immediately and pay a retainer of $5,000.00. As a second option, we can begin negotiations with Ms. Conover's attorneys and try to negotiate down the judgment. Deadlines are approaching. We need a response from you by Monday, July 17th.
      On July 9, 2002, Gray wrote to Stauch that [pjursuant to our telephone conversation of this date, please be advised you [sic] that this office is in the processing [sic] of contacting our client, Barbara Churchman, to advise her of the Judgment for attorney's fees, which the Judge recently awarded. As deadlines are approaching, we will contact you as soon as we hear from our client about how we plan to proceed.

      . Gray testified that the incorrect mailing address was due to either an “office error or a miscommunication on what [Churchman's] zip code was.”

      . Appellant argues rule 47 of the Texas Rules of Civil Procedure controls the contents of a disciplinary petition, but TRDP rule 3.08B provides that the rules of civil procedure apply to disciplinary actions, except as varied by the rules of disciplinary procedure. See Tex.R. Disciplinary P. 3.08B.

      . Appellant relies on McAnelly v. Brady Medical Clinic, P.A., No. 03-04-00095-CV, 2004 WL 2556634 (Tex.App.-Austin Nov. 12, 2004, no pet.), to support his assertion that attorney's fees should be segregated if the claims involve separate elements. However, this reliance is misplaced. The court in McAnelly was clear that segregation was required in that case because the facts offered to establish the plaintiff's quantum meruit claim differed "substantially” from the facts offered to establish his contract and promissory estoppel claims. Id. at *4.

      . Rule 1.02(a)(2) provides that a "lawyer shall abide by a client’s decisions ... [about] whether to accept an offer of settlement of a matter.” Tex. Disciplinary R. Prof’l Conduct 1.02(a)(2). "[A] lawyer is obligated to communicate any settlement offer to the client in a civil case.” Id. 1.02 cmt. 2. In addition, "La] lawyer should consult with the client concerning any such proposal, and generally it is for the client to decide whether or not to accept it.” Id. 1.02 cmt. 3

      .Rule 1.06(b)(1) prohibits a lawyer from representing a person if the representation of that person involves a substantially related matter in which that person’s interests are materially and directly adverse to the interests of the lawyer or the lawyer’s firm. Tex. Disciplinary R. Prof'l Conduct 1.06(b)(1).


source: Caselaw Access Project

author: Opinion by Justice BENAVIDES.

license: Public Domain

text:
    Christine FRANKS, Appellant, v. John Leslie ROADES, Appellee.
    No. 13-08-00439-CV.
    Court of Appeals of Texas, Corpus Christi-Edinburg.
    April 15, 2010.

      Jason Brower, Don D. Ford, III, Ford & Mathiason, Houston, for Appellant.
    Billy Shepherd, Allison Stanish Miller, Cruse, Scott, Henderson <& Allen, Houston, for Appellee.
    Walter James Kronzer III, Houston, for Real Party in Interest, Carol Thompson.
    Before Justices YÁÑEZ, RODRIGUEZ, and BENAVIDES.
   OPINION

Opinion by Justice BENAVIDES.

Christine Franks, appellant, appeals from a summary judgment granted in favor of John Leslie Roades, appellee. Franks asserts that fact issues exist regarding whether Roades breached his fiduciary duty to her and whether Roades acted negligently. We affirm.

I. Background

Roades, an attorney in Wharton, Texas, began representing Franks in 1999 when he prepared a durable power of attorney, appointing Michael Franks (“Michael”), her son, as her attorney-in-fact. In July 2001, Franks changed the power of attorney to appoint Carol Thompson (“Thompson”), her daughter, as her attorney-in-fact. Franks also granted Thompson signing authority on her checking account.

Franks’s mental condition deteriorated over time to the point where she was unable to handle her affairs, and Thompson would help her with various activities, including writing checks to pay bills, dressing, going grocery shopping and to doctors’ appointments, and taking her medication. In January 2003, Franks was diagnosed as having “severe and global cognitive dysfunction” and was informed that she should have “complete supervision in tasks that require memory such as medication management and meal management.” Franks also had a history of “mini strokes” and nighttime hallucinations, and it was recommended that she have 24-hour care. Thompson hired “sitters” for Franks to help with meal preparation and other household duties, along with taking her shopping. Thompson paid the sitters out of Franks’s funds.

Throughout this time, Michael continually disagreed with the diagnoses, encouraged Franks to not take her medication, and even threatened Thompson and her family. Because of the difficulties with Michael and Franks’s deteriorating condition, Thompson visited Roades on multiple occasions, seeking his help in discerning the best ways to resolve the family disputes regarding Franks’s care and the management of Franks’s funds. Roades discussed various options with Thompson, including guardianships and estate plans, and referred Thompson to an estate planning and elder law attorney in Austin who he hoped could devise an estate plan that would placate Michael. Roades continually encouraged Thompson to try to work things out with Michael.

After being unable to reach an agreement with Michael and due to Franks’s continual decline, acting within her powers under the durable power of attorney as Franks’s attorney-in-fact, Thompson decided to file an application for guardianship of Franks. To do so, Thompson retained Roades to file the application and paid Roades $5,000 from Franks’s funds.

On June 24, 2003, Roades filed the application for guardianship. Roades believed that the guardianship was necessary to protect Franks and considered himself obligated under rule 1.02(g) of the disciplinary rules of professional conduct to file the application. See Tex. Disciplinary R. Prof’l Conduct 1.02(g), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (“A lawyer shall take reasonable action to secure the appointment of a guardian ... for ... a client whenever the lawyer reasonably believes that the client lacks legal competence and that such action should be taken to protect the client.”).

That same day, Franks and Michael appeared in Roades’s office because Michael wanted Roades to change Franks’s power of attorney and appoint him her attorney-in-fact. Roades informed Michael that he could not represent Michael and that Michael should seek another attorney. Pursuant to a prior instruction from Franks, Roades was not to discuss any of her legal matters with Michael or in Michael’s presence; therefore, Roades did not mention the filing of the guardianship application with either Franks or Michael at that meeting. Roades also believed that Franks was not competent to change her power of attorney at that time. Roades knew of Michael’s previous threats against Thompson and believed him to have a “volatile nature,” so he said as little as possible during the meeting in order to hasten Michael’s departure.

Michael contested the guardianship. Upon Michael’s application, a statutory probate judge was appointed. Pursuant to the probate code, the probate judge appointed an attorney ad litem to represent Franks and appointed a temporary guardian of Franks’s person. See Tex. Prob. Code Ann. § 646(a) (Vernon Supp.2009) (“In a proceeding under this chapter for the appointment of a guardian, the court shall appoint an attorney ad litem to represent the interests of the proposed ward.”). Franks also had a privately-retained attorney to represent her during the guardianship proceedings. The trial court ordered an independent medical and psychological evaluation of Franks, and the court-appointed physician concluded that Franks was incapacitated and recommended the appointment of a guardian of Franks’s person and estate. Franks’s attorney ad li-tem moved to disqualify Roades from representing Thompson, asserting that Roades had a conflict of interest due to his prior legal work for Franks. The attorney ad litem alleged that, even though Thompson used Franks’s power of attorney to retain Roades to file the guardianship, in fact, Roades was representing Thompson in the guardianship proceedings. On September 29, 2003, the trial court denied the motion.

On December 30, 2003, the parties filed a binding mediated settlement agreement wherein the parties agreed to: (1) dismiss the guardianship application; (2) “pursue the viability” of creating a trust to manage Franks’s estate; (3) grant the temporary guardian the power to manage Franks’s home assistant from January 2004 to June 2004; (4) have the home assistant work specified hours in Franks’s home; (5) alternate visitation with Franks between Michael and Thompson; (6) make certain repairs to Franks’s home; (7) make no expenditures from Franks’s funds except those “regular and ordinary expenditures as agreed upon by Christine Franks”; (8) prohibit Michael from moving into Franks’s home or relocating Franks from January 2004 to June 2004; and (9) pay out of Franks’s estate the professional fees for the attorney ad litem, the temporary guardian, Thompson’s attorney’s fees, Franks’s attorney’s fees, and the mediator’s fees. The fees amounted to more than $120,000, including $38,000 in attorney’s fees for Roades. Franks, Michael, Thompson, their attorneys, and Roades all signed the agreement. Franks, Michael, and Thompson signed agreeing as to substance; and the attorneys, including Roades, signed agreeing as to form only. Roades then non-suited the guardianship proceeding.

On June 22, 2005, asserting negligence, breach of fiduciary duty, gross negligence, conversion, fraud, and deceptive trade practices, Franks sued Roades and Thompson. On February 15, 2008, Roades filed both a traditional and no-evidence motion for summary judgment. See Tex.R. Civ. P. 166a. On April 4, 2008, Franks responded to Roades’s motion for summary judgment. On April 11, 2008, without stating the grounds, the trial court entered summary judgment on Roades’s motion. This appeal ensued.

II. Standard of Review

Whether the motion for summary judgment was brought on no-evidence or traditional grounds determines our standard of review. See Tex.R. Civ. P. 166a(c), (i); see also Ortega v. City Nat’l Bank, 97 S.W.3d 765, 771 (Tex.App.-Corpus Christi 2003, no pet.). A no-evidence summary judgment equates to a pre-trial directed verdict, so we apply the same legal sufficiency standard of review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.2006); Ortega, 97 S.W.3d at 772.

We review de novo the trial court’s granting of a traditional motion for summary judgment. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex.2003); Branton v. Wood, 100 S.W.3d 645, 646 (Tex.App.-Corpus Christi 2003, no pet.). We must determine whether the movant met its burden to establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex.R. Civ. P. 166a(c); see Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex.2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex.1979). In a traditional summary judgment, the movant bears the burden of proof, and all doubts about the existence of a genuine issue of material fact are resolved against the mov-ant. See Sw. Elec. Power Co., 73 S.W.3d at 215. We take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant’s favor. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.2005).

We affirm a traditional summary judgment only if the record establishes that the movant has negated at least one essential element of the plaintiffs causes of action or has conclusively proved its defense as a matter of law. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex.2004); see Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.1997); Clear Creek Basin Auth., 589 S.W.2d at 678. When reasonable people could not differ as to the conclusion to be drawn from the evidence, the matter is conclusively established. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.2005). Once the movant has produced sufficient evidence to establish its right to summary judgment, the burden to produce competent controverting evidence raising a fact issue with regard to the challenged element shifts to the non-movant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex.1999); see Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex.1995). When the trial court’s judgment does not specify which of several proposed grounds was dispositive, we affirm on any ground offered that has merit and was preserved for review. See Joe v. Two Thirty Nine J.V., 145 S.W.3d 150, 157 (Tex.2004).

III. Analysis

On appeal, Franks contends that Roades was not entitled to summary judgment because: (1) he offered no expert rebuttal testimony to refute Franks’s expert; (2) a fact issue exists on Franks’s breach of fiduciary duty claim; and (3) a fact issue exists on Franks’s negligence claim. Roades argues, in part, that Franks’s claims are all based on the assertion that he improperly sought the guardianship and that he is entitled to summary judgment because, as a matter of law, he had a duty under the disciplinary rules of professional conduct to seek the guardianship. See Tex. Disciplinary R. Prof’l Conduct 1.02(g); In re E.L.T., 93 S.W.3d 372, 376 (Tex.App.-Houston [14th Dist.] 2002, no pet.). Whether Roades had such a duty is a question of law, which is inappropriate for a no-evidence summary judgment. In re Estate of Allen, 301 S.W.3d 923, 929-30 (Tex.App.-Tyler 2009, pet. filed) (stating that because construction of an unambiguous will is a question of law, it cannot be the subject of a no-evidence motion for summary judgment) (citing Harrill v. A.J. Wrecker Service, Inc., 27 S.W.3d 191, 194 (Tex.App.-Dallas 2000, pet. dism’d w.o.j.) (noting that a movant may not move for no-evidence summary judgment on its own affirmative defense)); see Judge David Hittner & Lynne Libera-to, Summary Judgments in Texas: State and Federal Practice, 46 Hous. L.Rev. 1379, 1388-89 (2010). But see Cone v. Fagadau Energy Corp., 68 S.W.3d 147, 156 n. 4 (Tex.App.-Eastland 2001, pet. denied) (declaring that a movant may move for no-evidence summary judgment on a question-of-law issue on which it does not bear the burden of proof). Therefore, we will consider whether Roades was entitled to traditional summary judgment.

A. Franks’s Expert

Franks first asserts that because Roades did not offer expert testimony to refute Franks’s own expert, Roades was not entitled to summary judgment. Roades contends that Franks’s expert im-permissibly offered testimony on a question of law, or, in the alternative, that Franks’s expert’s opinion was conclusory and therefore no evidence of negligence or breach of fiduciary duty. We agree with Roades that Franks’s expert’s affidavit was conclusory and is therefore not proper summary judgment evidence.

In her response to Roades’s motion for summary judgment, Franks attached the affidavit of Darlene Payne Smith, an expert in guardianship law. Regarding Roades’s negligence and breach of fiduciary duty, Smith stated:

Breach of fiduciary duty: In this case, breach of fiduciary duty is an issue because John Roades personally benefitted at the expense of his client, Christine Franks. Specifically, it is my opinion that Mr. Roades should not have undertaken the representation of the agent when Mrs. Franks had appeared at his office for counseling. He has no letter terminating the relationship. By taking the case on behalf of the agent, he caused the expenditure and waste of Christine Franks’fs] funds when he was personally paid approximately $38,000 in attorney’s fees while obtaining no benefit to Christine Franks. Further, he made no objection to the fees of any of the other lawyers in the case and Mrs. Franks paid $126,000 to obtain no benefit.
Negligence: It is my opinion that John Roades was negligent. Because he brought the guardianship proceeding for a person who was either competent ... or incompetent and he dismissed the case with no benefit or protection for Christine Franks, he is on the horns of a dilemma. Either Christine Franks, from John Roades’[s] perspective, required a guardianship or she did not. To wrongfully bring a guardianship proceeding would obviously be a breach of duty owed to a client[,] and John Roades claims not to have done so. Under the facts claimed by John Roades, he believed Christine Franks required a guardianship based upon personal observations. He filed the application for guardianship, gained medical evidence supporting his position through an Independent Medical Evaluation conducted by the [cjourt, obtained no controverting medical evidence, and yet he consented to dismiss the application. He did so at the great expense of approximately $126,000 in attorneys’ fees and costs. In contrast, he must believe Mrs. Franks competent since he relies on her testimony years later as competent testimony to release him from liability for negligence. In summary, it was a failure of the ordinary standard of care owed by this attorney to his only client, Christine Franks, to have allowed the guardianship proceeding which he wrongfully initiated to end without trial on the merits unless there was real benefit to Christine Franks, which he admits there was not, and to allow the expenditure of almost $126,000 of her estate which significantly depleted its value. A reasonably prudent attorney would have acted to benefit Christine Franks either by not filing the application for guardianship or by referring the case and letting another attorney for agent [sic] have a proper guardianship established after the filing, or conduct a trial on the merits. These opinions are expressed by me to be more likely than not.

Roades first attacks Smith’s affidavit asserting that, as an expert, she was not permitted to opine on the “purely legal matter! ]” of “whether Roades was obligated to seek the guardianship of [Franks].” See Greenberg Traurig of New York, P.C. v. Moody, 161 S.W.3d 56, 94-95 (Tex.App.Houston [14th Dist.] 2004, no pet.). However, because Smith did not offer an opinion on Roades’s obligations under the disciplinary rules, we conclude that she did not impermissibly opine on the relevant question of law.

Roades further argues that Smith’s affidavit was conclusory. “ ‘A conclusory statement is one that does not provide the underlying facts to support the conclusion.’ ” Brown v. Brown, 145 S.W.3d 745, 751 (Tex.App.-Dallas 2004, pet. denied) (quoting Choctaw Props., L.L.C. v. Aledo I.S.D., 127 S.W.3d 235, 242 (Tex.App.-Waco 2003, no pet.)). “An affidavit that merely contains an expert’s concluso-ry statements is insufficient to support or defeat summary judgment. This is trae because such statements are not credible or susceptible to being readily controverted.” See also Tummel & Casso v. Snyder, No. 13-04-223-CV, 2007 WL 474313, at *5 (Tex.App.-Corpus Christi Feb. 15, 2007, pet. denied) (mem.op.) (citing Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex.1996)). “An expert’s opinion can defeat a claim as a matter of law, ... [b]ut it is the basis of the witness’s opinion, and not the witness’s qualifications or his bare opinions alone, that can settle an issue as a matter of law....” Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999). The expert attorney must do more than merely state his opinion and then conclude that the standard of care has not been met. See id. at 236; see also Am. Commc’n, Inc. v. Henkel, No. 13-98-539-CV, 2000 WL 35729387, at *2 (Tex.App.-Corpus Christi 2000 Aug. 31, 2000, no pet.) (not designated for publication). “The expert must state the basis for his opinion; in other words, the expert must explain why he reached his conclusions. An affidavit that fails to explain the legal basis or reasoning supporting the expert’s opinion is concluso-ry.” See also Henkel, 2000 WL 35729387 at *2 (citing Burrow, 997 S.W.2d at 236; Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991)).

Smith offers no legal basis for her conclusion that Roades “wrongfully initiated” the guardianship proceedings. Under the disciplinary rules of professional conduct, an attorney has a duty to reasonably attempt to secure a guardian for a client who he believes is not competent and that such action is necessary to protect her interests. Tex. Disciplinary R. Prof’l Conduct 1.02(g); In re E.L.T., 93 S.W.3d at 376. Smith does not explain the legal basis for her conclusion that “wrongfully bring[ing] a guardianship proceeding would obviously be a breach of [a] duty owed to a client.” Nowhere does she cite the appropriate legal standard for evaluating an attorney’s negligence, and she does not explain what duty Roades owed Franks. See Alvarado v. Old Republic Ins. Co., 951 S.W.2d 254, 263 (Tex.App.-Corpus Christi 1997, no writ) (noting, in an insurance bad faith case, that, among other things, failing to cite the legal standard for demonstrating bad faith makes an expert’s affidavit con-clusory); see also Cosgrove v. Grimes, 774 S.W.2d 662, 664-65 (Tex.1989) (stating that, in Texas, legal malpractice is based on negligence, that “[a] lawyer in Texas is held to the standard of care which would be exercised by a reasonably prudent attorney!,]” and that “[t]he standard is an objective exercise of professional judgment....”). Smith also fails to demonstrate how Roades’s negligence, if any, actually damaged Franks. She merely states that approximately $126,000 in attorneys’ fees and costs were expended. We conclude that Smith’s affidavit is con-clusory as to her assertion that Roades was negligent and is therefore not competent summary judgment evidence.

Additionally, Smith states that her conclusion that Roades breached his fiduciary duty to Franks is based on Roades’s improper representation of Franks’s attorney-in-fact, Thompson, in the guardianship proceedings. We note initially that Smith contradicts herself in her discussion about Roades’s alleged negligence in that she states that Franks was Roades’s “only client.” Additionally, Smith’s affidavit is conclusory because it fails to state the standard by which Roades’s fiduciary duty is measured, “The focus of breach of fiduciary duty is whether an attorney obtained an improper benefit from representing a client....” Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 923 (Tex.App.-Fort Worth 2002, pet. denied) (emphasis added). “Integrity and fidelity” are the cornerstones of an attorney’s fiduciary duty. Id. “A breach of fiduciary duty occurs when an attorney benefits improperly from the attorney-client relationship by, among other things, subordinating his client’s interests to his own, retaining the client’s funds, using the client’s confidences improperly, taking advantage of the client’s trust, engaging in self-dealing, or making misrepresentations.” Id. (citing Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex.App.Houston [14th Dist.] 2001, pet. denied)).

Smith does not explain how Roades’s purported representation of Thompson, as Franks’s attorney-in-fact, placed him in a position of representing two different parties. The undisputed evidence reveals that Thompson, acting under Franks’s power of attorney, paid Roades a retainer to file the guardianship application, which sought to have Thompson appointed Franks’s guardian. Smith does not indicate how such an action caused Franks and Thompson to become adverse parties, and she does not state how Roades was representing anyone other than Franks through the person Franks appointed to handle matters on her behalf. See Tex. Prob.Code Ann. § 642(b)(1) (Vernon 2003) (noting that a person with an interest adverse to the proposed ward cannot file an application to create a guardianship for the proposed ward); Sassen v. Tanglegrove Townhouse Condo. Ass’n, 877 S.W.2d 489, 492 (Tex.App.-Texarkana 1994, writ denied) (demonstrating that “the appointment of an attorney-in-fact creates an agency relationship^” which “creates a fiduciary relationship as a matter of law”).

Smith further states that Roades “personally benefitted” while obtaining “no benefit to Christine Franks” and that by not objecting to the other expended fees, Roades caused Franks to pay $126,000 for which she received no benefit. Smith does not clarify how Franks received “no benefit” from Roades’s action, see Cosgrove, 774 5.W.2d at 665 (“Attorneys cannot be held strictly liable for all of their clients’ unfulfilled expectations.”), and “personally” benefitting from representing a client cannot be the sole measure for breach of fiduciary claims because attorneys generally expect to be paid for their work. Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 563 (Tex.2006) (recognizing that an attorney “like any other professional, expects timely compensation for work performed and results obtained”). We conclude that Smith’s affidavit is eonclusory and is no evidence of breach of fiduciary duty; therefore, Roades was not required to eon-tradict this testimony with an expert of his own. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991) (per curiam). Franks’s first issue is overruled.

B. Breach of Fiduciary Duty

In her second issue, Franks asserts that summary judgment was improper because fact issues remain regarding Roades’s alleged breach of fiduciary duty. See Beck v. Law Ofcs. Of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 429 (Tex.App.-Austin 2009, no pet.) (noting that a “breach-of-fiduciary-duty claim focuses on ‘whether an attorney obtained an improper benefit from representing the client’”) (quoting Murphy v. Gruber, 241 S.W.3d 689, 693 (Tex.App.-Dallas 2007, pet. denied)). A breach of fiduciary duty by a lawyer “ ‘most often involves the attorney’s failure to disclose conflicts of interest, failure to deliver funds belonging to the client, placing personal interests over the client’s interests, improper use of client confidences, taking advantage of the client’s trust, engaging in self-dealing, and making misrepresentations.’” Id. (quoting Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex.App.-Dallas 2004, no pet.)). Specifically, Franks contends that Roades breached his duties of loyalty and full disclosure. See Montgomery v. Kennedy, 669 S.W.2d 309, 313 (Tex.1984) (detailing a fiduciary’s duty of full disclosure); Slay v. Burnett Trust, 143 Tex. 621, 639-40, 187 S.W.2d 377, 387-88 (Tex.1945) (discussing a fiduciary’s duty of loyalty).

1. Duty of Loyalty

Franks contends that Roades breached his duty of loyalty to her by continuing to pursue the guardianship over her objection and the objections of both her attorney ad litem and her privately-retained counsel. Additionally, Franks asserts that Roades breached his duty of loyalty by representing Thompson in the guardianship proceedings, which amounted to advocating “a position for another (Thompson) that was directly adverse to the position advocated by his former client [Franks], her attorney ad litem, and her privately-retained counsel.”

The uncontroverted evidence shows that, at the time Roades filed the guardianship application, he had received and read doctors’ reports from a psychologist and a psychiatrist who evaluated Franks during early 2003. Sue Williams, Ph.D., a psychologist, examined Franks and concluded that her “neuropsychological test results reflect severe and global cognitive dysfunction.” Regarding Franks’s competency, Williams stated that Franks “is showing such profound deficits in her reasoning, new learning, and retention that she is currently not competent to make decisions with regard to finances and self care and should have complete supervision in tasks that require memory such as medication management and meal management.” Deena M. Ghandi, M.D., a psychiatrist, evaluated Franks and noted that she “[h]as a significant memory deficit that would impair her ability to handle her own finances.” In Dr. Ghandi’s opinion, Franks “will need a legal guardian for long[-]term issues such as medical care and medical decision[-]making as well as financial assistance and living situations.”

Other than referencing Roades’s motion for summary judgment and his affidavit attached in support of his motion, Franks does not direct us to any evidence that her privately-retained counsel contested the guardianship. Moreover, Roades’s motion and affidavit merely state that Franks hired her own attorney, which is not evidence that Franks or her privately-retained counsel opposed the guardianship. Nowhere does the record indicate that Franks objected to the guardianship, except the court filings made by her court-appointed attorney ad litem, who, Franks asserts, “must necessarily file a general denial and force the guardianship applicant to prove all elements necessary to obtain the guardianship.” Citing Cahill v. Lyda, 826 S.W.2d 932 (Tex.1992) and Estate of Tartt v. Harpold, 531 S.W.2d 696 (Tex.Civ.App.-Houston [14th Dist.] 1975, writ ref'd n.r.e.), Franks argues that this is true because “in every guardianship case, the [attorney [a]d [l]item is required from the outset to seek to deny the Application for Guardianship” regardless of whether he “actually believes his client is incapacitated.”

Franks stated in her deposition testimony that Roades had always done a good job for her, that he did not make any misrepresentations to her, that he did not fail to disclose any information he should have disclosed to her, that he did not take advantage of her, that he did not make any guarantees or warranties to her, that he did not damage her in any way, and that none of his “alleged improper actions cost” her any money. Franks did not remember the guardianship application being filed or that any doctors had ever declared her to be incompetent.

When Roades filed the guardianship application, he believed, and the undisputed facts support, that Franks was incapacitated and in need of a guardian. While Franks asserts at various times that she was his “client” and also his “former client,” and no termination of the attorney-client relationship appears in the record, at the time Roades filed the application and throughout the whole process, Roades maintains that he was Franks’s attorney. In fact, Franks acknowledges as much in her brief to this Court. Thus, when Roades filed the application, he was acting under the disciplinary rules, which required him to seek the guardianship. See Tex. Disciplinary R. Prof’l Conduct 1.02(g); In re E.L.T., 93 S.W.3d at 376. A failure to follow the disciplinary rules cannot give rise to civil liability, see Dardas v. Fleming, Hovenkamp & Grayson, P.C., 194 S.W.3d 603, 613 (Tex.App.-Houston [14th Dist.] 2006, pet. denied); we cannot therefore conclude that following the disciplinary rules may form the basis for civil liability.

Guardianships are not inherently adversarial proceedings; thus, the applicant is not automatically adverse to the ward. See Tex. Prob.Code Ann. § 642(b)(1). The trial court denied Franks’s motion to disqualify Roades, in which she asserted this same conflict-of-interest theory, and she does not challenge the trial court’s ruling on appeal. Additionally, Franks makes no claim that Thompson was either disqualified from serving as her guardian or that Thompson had an interest adverse to Franks. See Tex. Prob.Code Ann. § 642(a) (noting that any person may bring an application for the appointment of a guardian, so long as the applicant does not have an interest adverse to the ward); In re Guardianship of Miller, 299 S.W.3d 179, 189 (Tex.App.-Dallas 2009, no pet.) (“The probate code does not define an interest adverse to the interest of a ward or proposed ward under section 642.”); see also Tex. Prob.Code Ann. § 681 (Vernon Supp.2009) (delineating the factors that disqualify a person to serve as a guardian); see also Betts v. Brown,, No. 14-99-00619-CV, 2001 WL 40337, at *4 (Tex.App.-Houston [14th Dist.] 2001, no pet.) (not designated for publication) (analogizing section 642 with standing to contest a will and concluding that “an interest is adverse to an interest of a proposed ward under section 642 when that interest does not promote the well-being of the ward”).

We conclude that, as a matter of law and based on the undisputed evidence, Roades reasonably believed that Franks was incompetent and that a guardianship should be pursued to protect her interests. See Tex. Disciplinary R. Prof’l Conduct 1.02(g); see also id. Terminology (defining “reasonable belief’ to mean that “the lawyer believes the matter in question and that the circumstances are such that the belief is reasonable”). Franks does not cite any authority indicating that, under the rule 1.02(g) duty, the attorney cannot file an application for guardianship on behalf of the person the client has already empowered with the ability to act on her behalf, and we are not aware of any. Thus, Roades did not breach his duty of loyalty to Franks by filing the application seeking to have the trial court appoint Thompson as guardian. Because Roades acted properly under the duty imposed by the disciplinary rules, we cannot conclude that he breached a duty of loyalty to her under these circumstances.

2. Duty of Full Disclosure

Franks argues that Roades breached his duty of full disclosure by failing to discuss the guardianship application with her. Roades contends, in the alternative, that Franks waived this argument due to insufficient briefing, see Tex. R.App. P. 38.1(i), and that he acted properly under his attorney-client relationship with Franks. We disagree that Franks waived this argument; however, we agree with Roades that he fulfilled his duties under the attorney-client relationship.

Rule 38.1(i) requires the appellant to provide “a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record.” Id. Franks cites the controlling case law relating to a duty of full disclosure and provides examples with citations to the record of facts she contends reveal Roades’s breach. Therefore, Franks did not waive the issue.

A fiduciary has “a duty of full disclosure of all material facts known to [him] that might affect [his client’s] rights.” Montgomery v. Kennedy, 669 S.W.2d 309, 313 (Tex.1984) (citing Tex. Bank & Trust Co. v. Moore, 595 S.W.2d 502, 508-09 (Tex.1980); Baird v. Mills, 119 S.W.2d 889, 892 (Tex.Civ.App.-Austin 1938, writ ref'd)). A fiduciary relationship exists between an attorney and his client as a matter of law. Goffney v. Rabson, 56 S.W.3d 186, 193 (Tex.App.-Houston [14th Dist.] 2001, pet. denied). The disciplinary rules recognize that, in some situations, an attorney’s communication with his client will be hampered by the client’s particular situation. See Tex. Disciplinary R. Prof’l Conduct 1.03 cmt. 3, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (“Ordinarily, the information to be provided is that appropriate for a client who is a comprehending and responsible adult. However, fully informing the client according to this standard may be impractical, as for example, where the client is a child or suffers from mental disability....”). Additionally, “a lawyer should seek to maintain reasonable communication with a client under a disability, insofar as possible. When a lawyer reasonably believes a client suffers a mental disability or is not legally competent, it may not be possible to maintain the usual attorney-client relationship.” Id. 1.03 cmt. 5.

Roades stated in his affidavit in support of his motion for summary judgment that in July 2001, Franks had instructed him to “not discuss her affairs with Michael.” When Michael and Franks visited his office in June 2004, Roades was still acting under this instruction from Franks. He also reasonably believed that Franks was not competent to handle her legal affairs, as evidenced by the medical evaluations and his interaction with Thompson and Franks during the preceding years. Franks does not direct this Court to any case law demonstrating that an attorney’s duty of full disclosure remains even when the attorney reasonably believes the client is not legally competent, giving rise to his duty under the disciplinary rules to seek a guardianship, and we are not aware of any such precedent. Because Roades acted pursuant to Franks’s instructions and under the guidance of the disciplinary rules, we conclude that Roades did not breach his duty of full disclosure to Franks.

Franks also asserts that Roades was operating under a misinterpretation of the law regarding an attorney’s duty to an incapacitated client. Stating that Roades was an “inexperienced attorney who attempted] to dabble in guardianship law[,]” Franks claims that “no competent attorney would interpret the phrase ‘take reasonable action to secure the appointment of a guardian,’ to mean that such attorney is free to abandon his client and represent another client in such a proceeding.” Appellant’s Brief at 15-16. (Emphasis in original). See id. 1.02(g). To support this allegation, Franks cites rule 1.02(a), which states in relevant part, “[s]ubjeet to paragraphs (b), (c), (d), and (e), (f), and (g), a lawyer shall abide by a client’s decisions: (1) concerning the objectives and general methods of representation....” Id. 1.02(a). Franks further argues that when these rules are put “in context, it is clear that the attorney’s duty is to his client, even if he believes such client to be incapacitated.” Appellant’s Brief at 16. (Emphasis in original). Without citing authority, Franks states that the attorney for a proposed ward may only contest the guardianship and that no other option is available to him. The plain text of rule 1.02 indicates otherwise. See Tex. DisciplinaRY R. Prof’l Conduct 1.02

The “subject to” language indicates that the general rule cited by Franks actually gives way to the specific language under which Roades acted in this case. See generally EOG Resources, Inc. v. Hanson Production Co., 94 S.W.3d 697, 702 n. 2 (Tex.App.-San Antonio 2002, no pet.) (noting that the “ordinary sense” of “‘subject to’ means ‘subservient to’ or ‘subordinate to’ or ‘limited by’ ”); Fazekas v. Univ. of Houston, 565 S.W.2d 299, 307 (Tex.Civ.App.-Houston [1st Dist.] 1978, writ ref'd n.r.e.) (same). While generally an attorney has a duty to follow his client’s decisions, when the attorney “reasonably believes that the client lacks legal competence and that ... action should be taken to protect the client[,]” the “lawyer shall take reasonable action to secure the appointment of a guardian or other legal representative for, or seek other protective orders with respect to” his client. Tex. Disciplinary R. Prof’l Conduct 1.03(a), (g). When the attorney reasonably believes his client is incompetent, as Roades did here, then he has a special duty under subsection (g) that limits his duty under subsection (a). Id. Therefore, Roades was not acting under a “misinterpretation of the law”; he was doing exactly what rule 1.02(g) required him to do. Id. at 1.02(g). Instead of abandoning his client as Franks suggests Roades did, Roades acted under the disciplinary rules and in his client’s best interest when he believed that she was incompetent.

Because Roades did not breach his fiduciary duty while fulfilling his duty under disciplinary rule 1.02(g), we overrule Franks’s second issue on appeal. See id.; In re E.L.T., 93 S.W.3d at 376.

C. Negligence

In her third issue, Franks contends that a fact issue remains regarding whether Roades was negligent. The basis of her negligence claim is that Roades, while representing Franks, filed the guardianship application on behalf of Thompson. Franks asserts that a reasonably prudent attorney would have either not filed the guardianship application or would have referred Thompson to a different attorney. Franks does not address, with citations to precedent, how Roades’s fulfilling his duty under the disciplinary rules to seek the guardianship for her was unreasonable. See Tex. Disciplinary R. Prof’l Conduct 1.02(g); In re E.L.T., 93 S.W.3d at 376. Thus, under the facts of this case, we cannot determine that it is unreasonable for an attorney to follow the mandates of the disciplinary rules, which establish minimum standards that, when not met, subject the lawyer to disciplinary action. See Tex. Disciplinary R. Prof’l Conduct Preamble ¶ 7 reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G app. A (Vernon 2005); Anderson Producing Inc. v. Koch Oil Co., 929 S.W.2d 416, 421 (Tex.1996).

As previously discussed, Roades reasonably believed Franks to be incompetent and that a guardianship was necessary to protect her interests, which led to his duty under rule 1.02(g) to seek to secure such a guardianship for her. See Tex. Disciplinary R. Prof’l Conduct 1.02(g). Franks argues, essentially, that Roades should have ignored the standards for serving an incompetent client, imposed on him by the disciplinary rules. Franks does not, however, cite any authority stating that an attorney may do so, and we are not aware of any. Again, without citing authority applicable to Roades, Franks contends that Roades’s only option as Franks’s attorney was to contest the guardianship. As mentioned, we cannot find such authority and decline to impose such a duty on attorneys when that duty would be in direct contradiction to rule 1.02(g)’s duty. See id.

Therefore, having already determined that, as a matter of law, Roades acted properly under the duty imposed on him by the disciplinary rules, we conclude that no fact issue exists regarding whether Roades failed to act as a reasonably prudent attorney. See Cosgrove, 774 S.W.2d at 664-665 (setting forth the standard of care in legal malpractice cases). Franks’s third issue is overruled.

IV. Conclusion

Having overruled Franks’s appellate issues, we affirm the summary judgment.

      . On February 14, 2008, Thompson was non-suited; thus, she is not a party to this appeal.

      . Roades also challenged, in his no-evidence motion for summary judgment, Franks’s causes of action for gross negligence, fraud, conversion, conspiracy, and deceptive trade practices. In her response to Roades's no-evidence motion for summary judgment and in her brief to this Court, Franks does not argue that she presented legally sufficient evidence to support these causes of action. Therefore, Franks has waived any appellate challenge to Roades’s no-evidence motion for summary judgment on these claims. See Tex.R. Civ P. 166a(c) (“Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); see also TexR.App. P. 33.1; Travis v. City of Mesquite, 830 S.W.2d 94, 100 (Tex. 1992).

      . In the trial court, Roades objected in writing to Franks’s basing any of her claims on her allegation that Roades improperly non-suited the guardianship. The trial court granted the objection, and on appeal, Franks does not challenge that ruling. Therefore, we will not consider the portions of Franks’s arguments that are based on Roades's conduct in filing the non-suit. See Tex.R.App. P. 38.1 (i); see also Moe v. Option One Mortg. Corp., No. 14-07-00550-CV, 2009 WL 136892, at *4 (Tex.App.-Houston [14th Dist.] Jan. 20, 2009, no pet.).

      . In the trial court, Roades objected to Franks’s expert's affidavit contending that it was conclusory. Roades did not obtain a ruling on his objections to the affidavit; however, because a conclusory affidavit is a substantive defect as opposed to a defect of form, on appeal, we can determine whether the affidavit is conclusory. See Green v. Indus. Specialty Contractors, Inc., 1 S.W.3d 126, 130 (Tex.App.-Houston [14th Dist.] 1999, no pet.) (citing City of Wilmer v. Laidlaw Waste Sys., Inc., 890 S.W.2d 459, 467 (Tex.App.-Dallas 1994), aff'd on other grounds, 904 S.W.2d 656, 660-61 (Tex.1995)); see also Friedrichs v. Coastal Ref. and Mktg., Inc., No. 13-01-647-CV, 2003 WL 21025884, at *1 (Tex.App.-Corpus Christi May 8, 2003, no pet.).

      . According to Franks, the attorneys' fees and costs break down as follows: $38,000 to Roades; $9,404 to the temporary guardian; $5,502.68 to the attorney ad litem; $900 to the mediator; $3,105 to the court-appointed psychiatrist; $33,000 to Franks's attorney; $31,000 lo Michael's attorney (who is now representing Franks in this appeal); and $5,000 to Kalyn Lathon, whose role Franks does not identify. The record does not contain any indication that any of the parties objected to these payments.

      . Franks attaches the labels "duty of loyalty” and "duty of full disclosure” to her breach of fiduciary claim for the first time on appeal. However, the substance of her appellate arguments under these headings demonstrates that these are the same arguments she made in the trial court in support of her breach of fiduciary duty claim. Thus, she has not waived these arguments on appeal. See Tex.R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.”); see also In re Hidalgo, 279 S.W.3d 456, 460 (Tex.App.-Dallas 2009, pet. filed) (citing Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex.1999); Doctor v. Pardue, 186 S.W.3d 4, 16 (Tex.App.-Houston [1st Dist.] 2005, pet. denied)).

      . Franks appears to contend that Roades's reliance on her deposition is misplaced because Roades had previously alleged that Franks was incapacitated. Of course, Roades is entitled to rely on Franks's statements in the present law suit because, among other reasons, if Franks were not presently competent, she would not have had capacity to file the suit. See Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 849 (Tex.2005) (noting that incompetent individuals do not have capacity to sue).

      . In a prior section in her brief, Franks does cite authority for her claim that an attorney ad litem must oppose the guardianship. However, such precedent is inapplicable to Roades because he was not acting as Franks's atlor-ney ad litem. As the record clearly indicates, the trial court appointed a different attorney to serve as Franks’s attorney ad litem, and as Franks herself notes, the attorney ad litem did contest the guardianship.