Alpert v. Crain, Caton & James, P.C

In Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398 (Tex. App.--Houston 1st Dist. 2005, pet. denied), Crain represented Alpert's former attorney, Riley. Alpert sued Crain, alleging a cause of action for aiding and abetting a breach of fiduciary duty. Id. Crain filed special exceptions, arguing that Alpert failed to state a cause of action against it. Id. at 404. The trial court granted the special exception and dismissed the lawsuit. Id. at 402. The First Court held: "Absent any allegation that Crain Caton committed an independent tortious act or misrepresentation, we decline Alpert's invitation to expand Texas law to allow a non-client to bring a cause of action for "aiding and abetting" a breach of fiduciary duty, based upon the rendition of legal advice to an alleged tortfeasor client." Id. at 407. The Court dismissed the plaintiffs case on special exceptions in January 2004. In February 2004, the defendant moved for sanctions under Chapter 10 of the Texas Civil Practice and Remedies Code and Rule 13 of the Texas Rule of Civil Procedure. Id. at 408. The court granted the sanctions in April 2004. Id. On appeal, the plaintiff challenged the award of sanctions, arguing that the trial court had been without plenary power to assess sanctions. Id. at 409. The Court of appeals rejected the plaintiff's argument, finding that the defendant's motion for sanctions qualified as an appropriate motion to change an existing judgment and therefore had extended the time period of the court's plenary power. Id. at 410. In sum, the plaintiff's case was dismissed after the defendant specially excepted to the plaintiff's petition for failure to plead a cause of action recognized under Texas law. Id. at 402. The plaintiff refused to amend, and the trial court dismissed. Id. The Court affirmed the trial court's dismissal, noting that the facts the plaintiff alleged in his petition "to support his claim of aiding and abetting a breach of fiduciary duty occurred during defendant's representation of defendant's client." Id. at 407. The plaintiff did not allege the defendant "committed any acts or misrepresentation, independent of its representation of its client, upon which he justifiably relied." Id.