O’Donnell v. Smith, 234 S.W.3d 135 (Tex. App.—San Antonio 2007), aff'd, 286 S.W.3d 417 (Tex. 2009).
Executor sued Decedent’s former Attorneys for malpractice in advising
Decedent in his capacity as the executor of his wife’s estate. The lower
court ruled in favor of Attorneys basing its judgment on the fact that
Decedent’s executor and the estate lacked privity of contract with
Attorneys. The Supreme Court of Texas granted a petition for review
without reference to the merits, vacated the lower court’s judgment, and
remanded so the lower court could take into account the holding in Belt
v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780 (Tex.
2006).
The court began its analysis by holding that Belt was not limited to
estate planning malpractice actions. Accordingly, the court explained
that Executor stepped into Decedent’s shoes and could bring whatever
malpractice action Decedent could have brought while alive, even if it
did not involve the planning of Decedent’s estate. The court relied on
language in the Belt decision which provided that “legal malpractice
claims alleging pure economic loss survive in favor of a deceased
client’s estate.” The court then examined the evidence and concluded
that although there was no evidence that Attorneys acted with malice or
breached fiduciary duties, there was a triable issue as to what damages
were attributable to Attorneys’ acts. The court remanded the case to the
trial court to determine whether Attorneys’ acts amount to malpractice.
Moral: A decedent’s claim for legal malpractice, regardless of whether
it involves the planning of the decedent’s estate or some other legal
matter, survives and thus may be brought by the decedent’s personal
representative.