A Texas Court of Appeals has affirmed a lower court’s grant of the defendants’ summary judgment motion in a legal malpractice action brought by a mushroom distributor, finding that he failed to prove lost profits as to his negligence claim and filed his breach of fiduciary duty claim too late under the applicable statute of limitations. Thomas v. Carnahan Thomas, LLP, No. 05-11-01615-CV (Tex. Ct. App., 5th Dist., decided February 5, 2014). The defendants represented mushroom distributor Stuart Thomas and provided legal advice as to one of the ongoing disputes he had with the company that produced the mushrooms he distributed. Among other matters, the attorneys told Thomas he could violate non-compete agreements in his distribution and employment contracts and also unsuccessfully represented him in handling his declaratory judgment action as to the non-compete agreements.
The court agreed with the attorneys that Thomas had no evidence of lost profits because his claims were based in part on gross revenues and periods of net losses in his operations, and were further unsupported by evidence such as tax returns or balance sheets. Thomas also failed to provide “reason- ably certain evidence” that he could have operated in other markets and what his profits would have been had he done so. As to the breach of fiduciary duty claim first asserted in the third amended petition, the court refused to find that it related back to the originally filed complaint because Thomas (i) made it clear that the claim was unrelated to the malpractice allegations in the original complaint, (ii) failed to raise “a genuine issue of material fact regarding whether the statute of limitations was deferred by the continuing tort doctrine,” and (iii) “failed to raise a fact issue that the Attorneys concealed his cause of action.”