1/15/2016 2:11:46 PM
Chris Daniel - District Clerk Harris County
Envelope No. 8642521
By: Kenya Kossie
Filed: 1/15/2016 1:29:22 PM

CAUSE NO. 2015-03744
SUSANA KNIGHT

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v.

HARRIS COUNTY, TEXAS
333RD JUDICIAL DISTRICT

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PAUL NUGENT

IN THE DISTRICT COURT OF

DEFENDANT PAUL NUGENT’S
MOTION FOR SUMMARY JUDGMENT
To The Judge:

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This motion is filed as a no evidence motion for summary judgment under TRCP 166a(i).

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I.

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Defendant requests that the Court take judicial notice of its file.

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THE BACKGROUND FACTS
Knight first sued Nugent in Fort Bend County, Texas, but dismissed her claims
just prior to a summary judgment hearing.

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Knight was engaged in extremely contentious, complex and protracted divorce
litigation, which included various business entities joined as third-party
defendants, a companion mandamus proceeding, and interlocutory appeals to the
14th Court of Appeals. The case was active in the 434th Court for over four and a
half years and the voluminous case file has 365 docket entries.

3.

Knight cycled through multiple attorneys during her divorce proceedings. She
initially hired Dennis Kelly, quickly became dissatisfied with him, and he
withdrew. Plaintiff then hired James P. Smith and Marty Carden. Smith and
Carden performed substantial legal services on Plaintiff’s behalf, but she was still
not content and complained. Smith withdrew and Carden also filed a Motion For
Withdrawal stating he “is unable to communicate effectively with Susana Nery
Knight in a manner consistent with good attorney-client relations.” Carden
ultimately remained as counsel, however, and Plaintiff hired Paul Nugent and
Steven Rocket Rosen to assist Carden. Plaintiff also hired Pamela George to
assist with the appellate issues. Plaintiff then hired David Chaumette, discharged
Pamela George, and, shortly thereafter, abruptly discharged Nugent and Rosen.
Plaintiff next discharged Chaumette and hired Joan Jenkins.

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1.

4.

Knight eventually settled her divorce case and an agreed decree was entered on or
about June 24, 2014.

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Knight hired eight different attorneys and has sued three of the eight attorneys,
making various claims seeking the return of all legal fees paid to those attorneys.
II.
NO EVIDENCE MOTION

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A. Summary
Paul Nugent was one of Plaintiff’s attorneys, from November of 2011 through August of
2012, in the underlying divorce case. Plaintiff sued Paul Nugent for (1) negligence, (2) breach of

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contract, and (3) breach of fiduciary duty -- seeking fee forfeiture and punitive damages. There

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is no dispute that Plaintiff settled her underlying divorce case with different counsel of record.

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In support of this motion, Nugent shows that there is no evidence of the required

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elements to prove any of the following claims asserted by Knight:

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(1) that Paul Nugent was negligent in his representation of Plaintiff, or that he committed

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any act of legal malpractice;

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(2) that Paul Nugent breached his contract with Plaintiff;

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(3) that Paul Nugent breached his fiduciary duty to Plaintiff, or

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(4) that his fee agreement with Knight was unconscionable.

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Based on the foregoing, Paul Nugent is entitled to summary judgment, under TRCP

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166a(i), on all cause of action asserted by Plaintiff as set forth below.

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B. Argument and Authority
1. Negligence (or legal malpractice)
A claim for “negligence” in representing a client sounds in legal malpractice only. 1
Plaintiff must proved that Paul Nugent failed to exercise “that degree of care, skill and diligence

1 Isaacs v. Schleier, 356 S.W.3d 548, 556 (Tex. App.—Texarkana 2011, pet. denied).

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 that professionals of ordinary skill and knowledge commonly possess and exercise” 2 in
representing Plaintiff in the underlying divorce case. Even if Plaintiff could prove that there was
a breach of the standard of care owed to her, “[t]o prevail on a legal malpractice claim, the

suffered damages.” 3

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plaintiff must prove … the breach proximately caused the plaintiff's injury, and the plaintiff

“Breach of the standard of care and causation are separate inquiries, and an abundance of
evidence as to one cannot substitute for a deficiency of evidence as to the other.” 4 “Thus, even

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when negligence is admitted, causation is not presumed.” 5

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“The general measure of damages in a legal malpractice case is the difference between

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the amount the plaintiff probably would have recovered in the absence of malpractice, and the

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amount recovered,” though in some cases “the measure of damages may be generalized to the

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but for the attorney's negligence.” 6

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difference between the result obtained for the client and the result that would have been obtained

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Plaintiff failed to even assert that she settled her divorce case for less money because of

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Nugent’s alleged negligence or malpractice. Even if she had, Plaintiff has presented no evidence

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of either damages or causation. As such, her negligence / malpractice claim fails as a matter of

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law.

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Plaintiff claims Nugent was negligent because:
1. Allegation: Nugent did not obtain necessary valuations of the marital estate.
2 Id.

3 Thompson & Knight LLP v. Patriot Exploration, LLC, 444 S.W.3d 157, 163 (Tex. App. Dallas 2014, no pet.)
(citing Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex.
2009); Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995)).
4 Thompson & Knight LLP, 444 S.W.3d at 163 (citing Alexander v. Turtur & Associates, Inc., 146 S.W.3d 113, 119
(Tex. 2004)).
5 Thompson & Knight LLP, 444 S.W.3d at 163 (citing Haynes & Boone v. Bowser Bouldin Ltd., 896 S.W.2d 179,
181-82 (Tex. 1995), abrogated on other grounds by Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45-46 (Tex.
2007)).
6 Thompson & Knight LLP, 444 S.W.3d at 163.

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 Response: There is no evidence that such evaluations were not properly obtained in
this case. Again, there is no evidence that this alleged failure was the proximate
cause of damages. Knight has not asserted that she settled her divorce case for less
money because of this allegation, nor has she produced any evidence of such an
assertion.

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2. Allegation: Nugent did not advise Knight that a third party action against The Knight
Corp was not necessary.

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Response: There is no evidence that Nugent was even the attorney of record who
brought The Knight Corp. into the divorce case, as a third party. There is no evidence
that after the trial court denied the Knight Corp.’s Special Appearance, that a
reasonably prudent lawyer, taking over the case (post Special Appearance), would
have asked the trial Court to reverse its own decision to maintain jurisdiction over
The Knight Corp. Finally, there is also no evidence that adding the Knight Corp to
the divorce action was the proximate cause of damages to Knight. Again, Knight
does not assert that she settled her divorce case for less money because of this
allegation, nor has she produced any evidence of such an assertion.

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3. Allegation: Nugent failed to advise Knight that Texas Courts rarely uphold general
jurisdiction in Texas.

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Response: This allegation is just a rephrasing of the Allegation #2 above. There is
no evidence that Nugent was the attorney of record who brought The Knight Corp.
into the divorce case, as a third party. There is no evidence that after the trial court
denied the Knight Corp.’s Special Appearance, that a reasonably prudent lawyer,
taking over the case post Special Appearance, would have told his client that 1.) both
the trial court and prior counsel had erred in adding or permitting a third party
Defendant; and that 2.) the proper procedure was to ask the trial Court to reverse its
own decision to maintain jurisdiction over The Knight Corp. while the appeal of the
Special Appearance was pending. Finally, there is also no evidence that Nugent’s
alleged failure to advise Knight regarding how Texas appellate courts might rule on
jurisdictional issues related to special appearances, was the proximate cause of
damages to Knight. Once more, Knight does not assert that she settled her divorce
case for less money because of this allegation, nor does she provide any evidence to
prove this contention.
In summary, there is no evidence of the following elements necessary to establish a cause
of action for negligence or legal malpractice -- that Paul Nugent breached his duty to Knight or
failed to exercise “that degree of care, skill and diligence that professionals or ordinary skill and
knowledge commonly possess and exercise” in representing Plaintiff in the underlying divorce.

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 Moreover, there is no evidence that any alleged breach of duty by Paul Nugent was the
proximate cause of any damages to Plaintiff. There is no evidence that there is a difference
between the amount Plaintiff probably would have recovered in the absence of malpractice, and
the amount actually recovered, nor is there any evidence as to the difference between the result

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obtained for Plaintiff and the result that would have been obtained but for Defendant’s alleged
negligence.

Paul Nugent is therefore entitled to summary judgment on Plaintiff’s cause of action for

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negligence or legal malpractice, on each of the independent aforementioned grounds.

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2. Breach of Contract

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Texas law does not permit a Plaintiff to fracture or divide her legal malpractice claims

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into additional causes of action, and, therefore, a legal malpractice claim cannot be relabeled or

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split into a claim for breach of contract. 7 Simply put, Plaintiff is prohibited from asserting a

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claim for breach of contract based upon Nugent’s performance as a lawyer as a matter of law. It

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is simply an improper and invalid legal theory in this case.

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Just as with her negligence/malpractice claims, Plaintiff failed to assert that she settled

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her claims for less money, due to any alleged breach of contract. Even if she had alleged such

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damages, Plaintiff has put forth no evidence of such. “Damages to the claimant resulting from

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the alleged breach is one of the essential elements of a breach-of-contract claim,” and Plaintiff

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cannot succeed without such evidence.” 8
As such, there is no evidence that Paul Nugent breached the terms of the parties’ contract,
no evidence that said breach caused damages to Knight, and no evidence of the measure of such

7 Isaacs v. Schleier, 356 S.W.3d at 556.
8 Garza v. Lone Star Nat'l Bank, 2012 Tex. App. LEXIS 9585, 8 (Tex. App.—Corpus Christi 2012, no pet.); see also WTG Gas
Processing, L.P. v. ConocoPhillips Co., 309 S.W.3d 635, 643 (Tex. App.—Houston [14th Dist.] 2010, pet. denied); B.Z.B., Inc.
v. Clark, No. 14-11-00056-CV, 2012 Tex. App. LEXIS 853, 2012 WL 353783, 2 (Tex. App.—Houston [14th Dist.] 2012, no
pet.) (mem. op.).

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 damages. With no evidence of any of the essential elements, Nugent would be entitled to
summary judgment on Plaintiff’s breach of contract claim, even if Plaintiff were allowed to
assert it in complete opposition to the no-fracturing rule.
3. Breach of Fiduciary Duty

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The focus of a breach of fiduciary duty claim against a lawyer is whether the attorney
obtained an improper benefit from representing a client, through self dealing or taking advantage
of the client’s trust. 9 In this case, Plaintiff pleads that Nugent breached his fiduciary duty by

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traditional legal work necessary to conclude the divorce.”

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charging and exhausting a $100,000.00 retainer while “performing little or no meaningful

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A party asserting that a contract is unconscionable bears the burden of proof. 10 Whether

In order to prove unconscionability, Plaintiff must prove that the circumstances

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law. 11

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a contract is unconscionable or contrary to public policy at the time it is formed is a question of

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surrounding formation or fairness must be “sufficiently shocking or gross” before the court will

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intercede. 12

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There is no evidence that in this case that (1) Nugent breached his fiduciary duty to

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Knight, (2) that Nugent was not qualified to aptly handle the underlying divorce case, or (3) that

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the fee charged by Nugent was sufficiently shocking or gross under the existing circumstances.

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There is no evidence that Nugent performed little or no meaningful legal work, under all relevant
circumstances, in the underlying divorce representation. Knight’s conclusory allegations, are not
evidence in and of themselves, and have no legal significance.

9 Id., at 559.
10 Royston, Rayzor, Vickery & Williams, L.L.P. v. Lopez, 2013 Tex. App. LEXIS 7843, 15 (Tex. App. Corpus Christi 2013, pet
filed.).
11 Hoover Slovacek LLP v. Walton, 206 S.W.3d 557, 562 (Tex. 2006); Royston, Rayzor, Vickery & Williams, L.L.P., at 34; see
also Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 136 (Tex. App.—Waco 2005, pet. denied).
12 Royston, Rayzor, Vickery & Williams, L.L.P., at 34; see LeBlanc v. Lange, 365 S.W.3d 70, 88 (Tex. App.—Houston [1st Dist.]
2011, no pet.).

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 There is no evidence of the required element of self-dealing or taking advantage of the
client’s trust in order to support a claim for breach of fiduciary duty. The mere fact that a
renowned and highly sought after trial attorney charged a significant fee to represent a client is
not on its face self-dealing nor does it constitute evidence of taking advantage of a client’s trust.

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Knight contends that the fee was unconscionable and unreasonable because of her
allegation that Nugent had no expertise in handing family law cases at the time he accepted
employment. Her allegation is sophistry. The fact that Nugent practices primarily criminal law is

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meaningless rhetoric -- because it has no legal significance regarding the issue of whether

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Nugent breached his duty to Plaintiff by accepting the case and charging her accordingly. If that

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were true, the general practitioner would no longer exist.

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There is also no evidence that Nugent’s decision to support the trial court’s judgment in

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favor of Plaintiff, against the Knight Companies, was motivated by his own self-interest or that

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his fees were unreasonable, considering his trial experience. There is no evidence that Nugent

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subordinated Plaintiff’s interest to his own, retained the client’s funds, engaged in self-dealing,

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improperly used client confidences, failed to disclose conflicts of interest, or made any

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misrepresentations to achieve these ends or any other.

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Because there is no evidence of any of the aforementioned elements of breach of

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fiduciary duty, and there is no evidence that the fee was unconscionable, Paul Nugent is entitled
to summary judgment under 166a (i) on this claim as well.
4. Punitive Damages
Plaintiff cannot prevail on any cause of action pled, and because there is no evidence that
Defendant acted wantonly or maliciously, Defendant is also entitled to summary judgment on
Plaintiff’s claim for punitive damages. No legal theory asserted by Plaintiff supports a claim for

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 punitive damages.
5. Attorney’s fees and Fee forfeiture
Attorney’s fees are not recoverable in a cause of action for negligence 13 (i.e. malpractice)
or for breach of fiduciary duty. 14 Because there is also no cause of action for breach of contract,

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under the no-fracturing rule, 15 and because there is no evidence supporting breach of contract,
Plaintiff cannot recover her attorney’s fees in this case.

Furthermore, fee forfeiture is a remedy and not a cause of action. Because Nugent is

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entitled to summary judgment on all claims asserted by Knight, Nugent is entitled to summary

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judgment on the claim for fee forfeiture.

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CONCLUSION

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Based on the foregoing, Defendant Paul Nugent is entitled to summary judgment, against

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Plaintiff, on all causes of Plaintiff’s claims, under Tex. R. Civ. Pro. TRCP 166a (i).

RESPECTFULLY SUBMITTED,
/s/ Lawrence Rothenberg
LAWRENCE ROTHENBERG
TBA#: 17316500
9525 Katy Freeway, Suite 300
Houston, Texas 77024
Tel:
(713) 784-1491
Fax:
(713) 465-2224
Email: rothenber2@gmail.com
Attorney for DEFENDANT
PAUL NUGENT

13 Ford Motor Co. v. Garcia, 363 S.W.3d 573, 577 (Tex. 2012).
14 McCullough v. Scarbrough, Medlin & Assocs., 435 S.W.3d 871, 918(Tex. App.—Dallas 2014, pet. denied)
15 Isaacs v. Schleier, 356 S.W.3d at 556.

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 CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing instrument was sent to all
counsel of record by facsimile transmission or by E-service in full compliance with Rule 21a of

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the TRCP on January 15, 2016.

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/s/ Lawrence Rothenberg
LAWRENCE ROTHENBERG

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