The Malpractice Suit Would Ultimately be Non-Suited, But that Left Daniel with a $65k Attorney Fee Bill which He Has Been Litigating Since Ramos’ “Bad Advice”
OCT 17, 2021
“Daniel spoke to Ramos more than several times about how to respond to Garrett’s motion for fees for frivolous filing of a modification lawsuit. Daniel relied on Ramos, a board- certified family law practitioner and a former Associate Judge of the 308th Judicial District Court, to adequately and properly advise him of how to proceed. Unfortunately, however, the advice Ramos gave to Daniel was deficient.”
PLAINTIFF DAVID PATRICK DANIEL, JR.’S ORIGINAL PETITION
Plaintiff David Patrick Daniel, Jr. (“Daniel” or “Plaintiff”) hereby files this Original Petition against Defendants Ricardo L. Ramos, PLLC and Ricardo L. Ramos (“Ramos” or “Defendants”), as follows:
I.
Discovery Control Plan
1. Pursuant to Texas Rule of Civil Procedure 190.4, Daniel respectfully requests Level 3 discovery. Daniel also requests that the Court enter a scheduling order that includes a discovery deadline date and a deadline for designation of experts. The amount of damages sought in this case exceeds $100,000; consequently, this case is not subject to Texas Rule of Civil Procedure 169. This case is not an Expedited Action.
II.
Jurisdiction and Venue
2. This case is brought pursuant to Texas state law. Additionally, the amount in controversy exceeds the minimum jurisdictional limits of the Court. Daniel seeks damages exceeding $100,000. The Court has subject matter jurisdiction over this lawsuit.
3. The Court has personal jurisdiction over each defendant because the actions and omissions described in this pleading occurred in the State of Texas, each defendant does and has done business in the State of Texas, each defendant is a resident and a citizen of the State of Texas, and each defendant has committed tortious conduct, in whole or in part, in the State of Texas. Further, each defendant has minimum contacts with the State of Texas during the time period described in this pleading.
4. Venue is proper in Harris County, Texas because all of the actions and omissions giving rise to Daniel’s claims occurred in Harris County, Texas.1 Alternatively, venue is proper in Harris County, Texas because Defendants reside in Harris County, Texas.2
III.
Parties
5. Daniel is an individual who resides in Harris County, Texas.
6. Defendant Ricardo L. Ramos, PLLC is a Professional Limited Liability Corporation practicing law and doing business in the States of Texas, and may be served with process on the registered agent for service, Ricardo L. Ramos, at Ricardo L. Ramos, PLLC, 440 Louisiana Street, #1450, Houston, Texas 77002, or wherever he may be found.
7. Defendant Ricardo L. Ramos is an attorney practicing law and doing business in the State of Texas, who can be served at his place of business located at 440 Louisiana Street, #1450, Houston, Texas 77002, or wherever he may be found.
1 See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a)(1).
2 See TEX. CIV. PRAC. & REM. CODE ANN. § 15.002(a)(2).
IV.
Facts
8 Daniel was previously married to Jennifer Leigh Garrett (“Garrett”). She filed for divorce in November 2013.3 On September 4, 2014, a Final Decree of Divorce was entered. As part of that decree, Garrett was given primary conservatorship over minor child L.D., the only child from their marriage.
9 Daniel retained Ramos to represent him in a modification proceeding. Ramos then filed an Emergency Petition to Modify Parent-Child Relationship on Daniel’s The modification lawsuit has been litigated over the past two years. On April 10, 2017, Garrett filed a Motion for Fees for Frivolous Filing of a Modification Suit:
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10. Garrett asserted that Daniel “produced no meaningful evidence to support his claim that primary conservatorship of the child should be modified ”5
11. Daniel spoke to Ramos more than several times about how to respond to Garrett’s motion for fees for frivolous filing of a modification lawsuit. Daniel relied on Ramos, a board- certified family law practitioner and a former Associate Judge of the 308th Judicial District Court, to adequately and properly advise him of how to proceed. Unfortunately, however, the advice Ramos gave to Daniel was deficient.
12. Ramos advised Daniel that if the modification lawsuit was non-suited, Garrett’s motion for fees for frivolous filing of a modification lawsuit would become moot. Acting on Ramos’ advice, and placing his trust and faith in Ramos, Daniel authorized him to non-suit the modification lawsuit. Ramos then filed a notice of nonsuit in late April 2017:
3 See In re Daniel, Cause No. 2013-71645; In the 308th Judicial District Court of Harris County, Texas.
4 Exhibit 1: Respondent’s Motion for Fees for Frivolous Filing of a Modification Suit at pp. 1-2.
5 Exhibit 1 at p. 1 (emphasis added).
13. The advice that Ramos gave Daniel is wrong. Texas Rule of Civil Procedure 162 provides that the plaintiff’s non-suit “shall have no effect on any motion for sanctions, attorney’s
6 Exhibit 2: Notice of Nonsuit at pp. 1-2.
fees or other costs, pending at the time of dismissal . . . .”7 So although the non-suit extinguished Daniel’s affirmative claims in the modification lawsuit, Garrett’s motion for fees for frivolous filing of a modification lawsuit remained.8
Had Daniel known that a non-suit in no way affected Garrett’s motion, he never would have authorized Ramos to file the notice of non-suit; indeed, he would have continued prosecuting the modification lawsuit.
14. Ramos filed a motion to reinstate Daniel’s modification lawsuit. Ramos’ motion, however, was unaccompanied by any legal authorities or evidence.
And in any event, it was futile. Texas courts generally hold that once a party requests a non-suit, that party cannot withdraw it.9 Consistent with Texas law, the Court denied Ramos’ doomed attempt to resuscitate the modification lawsuit.
15. Ultimately, the Court heard argument on Garrett’s motion for fees for frivolous filing of a modification lawsuit. Ramos, however, filed no response on Daniel’s behalf. Nor did he offer any evidence in opposition to Garrett’s motion.10 Nor did he offer any substantive arguments at the May 3, 2017 hearing on Garrett’s motion.11
As a direct and proximate result of Ramos’ conduct, the Court granted Garrett’s request for fees for filing a frivolous pleading:
7 TEX. R. CIV. P. 162 (emphasis added); see, e.g., Villafani v. Trejo, 251 S.W.3d 466, 469 (Tex. 2008) (“Although a plaintiff decides which of its claims to pursue or abandon, that decision does not control the fate of a non-moving party’s independent claims for affirmative relief.” (citation omitted)); Alan Reuber Chevrolet, Inc. v. Grady Chevrolet, Ltd., 287 S.W.3d 877, 887 (Tex. App.—Dallas 2009, no pet.) (“[A] plaintiff’s nonsuit cannot extinguish a defendant’s counterclaim for costs and attorney’s fees.” (citations omitted)); Dean Foods Co. v. Anderson, 178 S.W.3d 449, 453 (Tex. App.—Amarillo 2005, pet. denied) (“A request for attorney’s fees is a claim for affirmative relief.”).
8 Villafani, 251 S.W.3d at 469. Counsel for Garrett cited Villafani extensively at the May 3, 2017 hearing on Garrett’s motion. And with good reason—the case is directly on point.
9 Rogers v. Clinton, 794 S.W.2d 9, 11 (Tex. 1990) (“[A] plaintiff’s right to nonsuit of its own action exists at the moment a motion is filed ”); Shadowbrook Apts. v. Abu-Ahmad, 783 S.W.2d 210, 211 (Tex. 1990) (per curiam) (“[T]he granting of a nonsuit is merely ministerial…….. ”); Greenberg v. Brookshire, 640 S.W.2d 870, 871 (Tex. 1982) (per curiam) (orig. proceeding) (“The granting of a non-suit is merely a ministerial act. A plaintiff’s right thereto exists from the moment a written motion is filed ”); Trigg v. Moore, 335 S.W.3d 243, 245 (Tex. App.—Amarillo 2010, pet. denied) (“It has long been the law that a motion for nonsuit is effective the moment it is filed………. At that instant, the action is extinguished. . . .” (citations omitted)).
10 Exhibit 3: Excerpts from the May 3, 2017 hearing at 1-14.
11 Exhibit 3 at 11-12.
16. The Court ordered Daniel ordered to pay Garrett attorneys’ fees totaling$64,545.45.13
17. It is unknown the totality of attorneys’ fees paid to Ramos or the amount remaining the trust account because Ramos has refused to provide an accounting to his client. Daniel seeks return of all fees paid to Ramos in their totality.
18. Ramos’ actions and inactions have resulted in Daniel facing an adverse final judgment. Moreover, as a result of Ramos’ negligence, a Court has found that Daniel filed a frivolous lawsuit, a finding that will be used as evidence against Daniel in future proceedings involving the custody of minor child L.D. Put simply, Ramos’ two acts of malpractice have damaged Daniel irrevocably.
19. On June 1, 2017, Daniel informed Ramos he had been terminated as counsel.
12 Exhibit 4: Final Judgment in Suit Affecting Parent Child Relationship at p. 1.
13 Exhibit 4 at p. 2.
V.
Claims
Count One—Negligence
20. Daniel incorporates by reference all preceding paragraphs as if fully set forth
herein.
21. At all relevant times, Ramos was a licensed attorney practicing law within the State of Texas. At all relevant times, Ramos had an attorney-client relationship with Daniel. Specifically, starting in April 2016, Ramos represented Daniel in the modification lawsuit.
22. Daniel entrusted Ramos to handle his legal matters; specifically, representation of him in the modification lawsuit.
23. At all relevant times, Ramos was practicing law within the State of Texas and was held to the duty of any reasonably competent attorney within the State of Texas. Further, Ramos was under a duty to exercise reasonable care in his representation of Daniel.
24. Ramos’ breach of the duty owed to Daniel constitutes negligence, which proximately caused Daniel to incur damages in an amount exceeding the minimum jurisdictional limits of this Court. Ramos’ negligence includes, but is not limited to, the following:
a. Incorrectly advising Daniel that the filing of the non-suit in the modification lawsuit would terminate Garrett’s motion for fees for frivolous filing of a modification lawsuit;
b. Failing to file a written response to Garrett’s motion for fees for frivolous filing of a modification lawsuit;
c. Failing to timely respond to Garrett’s motion for fees for frivolous filing of a modification lawsuit;
d. Failing to offer any evidence to the Court in opposition to Garrett’s motion for fees for frivolous filing of a modification lawsuit;
e. Failing to competently argue in opposition to Garrett’s motion for fees for frivolous filing of a modification lawsuit;
e. Failing to take adequate actions to protect Daniel’s interest in the modification lawsuit;
f. Failing to keep Daniel informed of issues related to Daniel’s case;
g. Failing to communicate with Daniel regarding the handling of the modification lawsuit;
h. Allowing a final judgment to be entered against Daniel;
i. Failing to assert all grounds in opposition to Garrett’s motion for fees for frivolous filing of a modification lawsuit;
j. Failing to zealously represent Daniel in the modification lawsuit;
k. Breaching the standard of care for an attorney representing Daniel in the same or similar circumstances.
25. Each of these actions and/or omissions constitutes negligence, and each was a proximate cause of damage to Daniel. Nothing Daniel did or failed to do in any way caused or contributed to cause the injuries and damages identified herein.
26. Daniel is entitled to recover the following damages proximately caused by Ramos’ negligence:
a. The full amount of the Final Judgment in Suit Affecting Parent Child Relationship in the modification lawsuit, entered on May 23, 2017;
b. Any and all attorneys’ fees Daniel paid to Ramos to handle the modification lawsuit, due to the unconscionability of the fees compared with the services rendered. Daniel seeks forfeiture of all fees paid to Ramos;
c. All costs of court.
Count Two—Gross Negligence
27. Daniel incorporates by reference all preceding paragraphs as if fully set forth
herein.
28. The danger to Daniel resulting from all of Ramos’ actions and inactions— particularly his advice to file a notice of non-suit and not inform Daniel that the frivolous fee motion would remain pending—constitute gross negligence under Texas law. Moreover, Ramos’ conduct in failing to file a written response to or to context the frivolous fee motion in the modification lawsuit constitutes absolute indifference to the danger that this conduct posed to Daniel.
29. Accordingly, Ramos was grossly negligent in his representation of Daniel and Daniel is entitled to exemplary and/or punitive damages pursuant to section 41.003 of the Texas Civil Practice and Remedies Code.
Count Three—Breach Of Fiduciary Duty
30. Daniel incorporates by reference all preceding paragraphs as if fully set forth
herein.
31. As previously noted, an attorney-client relationship existed between Daniel and Ramos regarding the modification lawsuit. Accordingly, Ramos owed Daniel fiduciary duties as a matter of law, including, but not limited to, the following:
a. Duty to act with loyalty and with the utmost good faith;
b. Duty to act with absolute candor and honesty;
c. Duty to act without any concealment, fraud, or deception;
d. Duty of fair, honest dealing;
e. Duty to act with the utmost integrity;
f. Duty to place the client’s interests above the interests of the attorney;
g. Duty of full disclosure;
h. Duty to represent the client with complete, undivided loyalty; and
i. Duty to fully disclose to the client all material facts concerning the scope, duration, and outcome of the representation.
32. Ramos breached the fiduciary duties owed to Daniel through the following actions and omissions, among others:
a. Failing to advise Daniel that he had not prepared a written response to the frivolous fee motion;
b. Failing to adequately inform Daniel of the hearing on the frivolous fee motion;
c. Failing to inform Daniel that the Court had granted the frivolous fee motion;
d. Failing to inform Daniel that an adverse final judgment had been entered in the modification lawsuit;
e. Failing to respond to Daniel’s multiple requests for information concerning the modification lawsuit;
f. Failing to provide Daniel with a copy of his file;
g. Failing to provide Daniel with copies of all payments made by Daniel to Ramos;
h. Failing to provide Daniel with the trust balance;
i. Failing to fully disclose to Daniel the outcome of all motions and proceedings in the modification lawsuit.
33. As a result of Ramos’ multiple breaches of fiduciary duty, Daniel has been damaged because the Court has entered an adverse judgment in the modification lawsuit and ordered Daniel to pay attorneys’ fees to Garrett totaling $64,545.45. Further, the Court found that Daniel filed a frivolous modification lawsuit.
34. Daniel seeks complete forfeiture of all fees Ramos has received from his representation of Daniel. Further, Daniel seeks forfeiture of all expenses.
Count Four—Breach Of Contract
35. Daniel incorporates by reference all preceding paragraphs as if fully set forth
herein.
36. A valid, enforceable contract existed between Daniel and Ramos. Specifically, in return for payment of fees, Ramos agreed to represent Daniel in the modification lawsuit. Daniel performed all obligations to Ramos by paying Ramos timely for legal services provided. Ramos, however, breached that contract by failing to adequately and properly represent Daniel’s interests in that proceedings. Further, in failing to adequately advise Daniel concerning the effect of the non-suit and in failing to properly oppose the frivolous fee motion in the modification lawsuit, Ramos breached the terms of his contract with Daniel.
37. As a direct and proximate result of Ramos’ contractual breaches, Daniel has incurred the following damages, among others:
a. Humiliation;
b. Shame;
c. Embarrassment;
d. Despair;
e. Mental distress, worry, and anxiety;
f. Emotional trauma and insecurity;
g. Loss of enjoyment of life and inconvenience;
h. Loss of reputation;
i. All attorneys’ fees paid to Ramos;
j. Any debts/judgments arising or incurred as a result of the modification lawsuit;
k. Punitive and exemplary damages;
l. Attorneys’ fees;14
m. All fees Daniel had to pay to the guardian ad litem;
n. Legal interest from the date of judicial demand; and
o. All costs of court and expenses incurred in the prosecution of this litigation.
VI.
Jury Demand
38. Daniel has requested a jury trial and concurrently tendered the appropriate fee.
VII.
Request for Disclosure
39. Daniel requests that Ramos provide the information and materials described in Texas Rule of Civil Procedure 194.2.
VIII.
Conclusion and Prayer
40. WHEREFORE, PREMISES CONSIDERED, Daniel prays that citation and notice issue in accordance with the law and that upon final trial or hearing, he receive judgment against Defendants, including actual damages, exemplary damages, pre-judgment and post-judgment interest at the maximum interest rate allowed by law, attorneys’ fees, statutory damages, court costs, and all other and further relief, general or special, at law or in equity, to which Daniel may show himself justly entitled.
41. Daniel reserves the right to amend this Original Petition as necessary and as discovery progresses.
14 TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8).
Respectfully submitted:
David Patrick Daniel, Jr.
State Bar No. 24089305
DANIEL & ASSOCIATES, LLC
2409 Commerce Street
Houston, Texas 77003
Telephone: (713) 589-3539
Facsimile: (713) 481-9884
patrick@dpdlawfirm.com
DAVID PATRICK DANIEL, JR.,
PRO SE
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