Rollo v. Escobedo ( 2022 )

Case: 22-50026 Document: 00516567790 Page: 1 Date Filed: 12/06/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 6, 2022
No. 22-50026
Lyle W. Cayce
Clerk
Robert Rollo,
Plaintiff—Appellant,
versus
George P. Escobedo; Carabin & Shaw, P.C.; Carabin
Shaw,
Defendants—Appellees.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 5:17-cv-645
Before Wiener, Higginson, and Wilson, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant, Robert Rollo, appeals the district court’s
summary judgment for Defendants-Appellees regarding his claims for legal
malpractice and breach of fiduciary duty against his former attorney, George
Escobedo, and, vicariously, against a law firm, Carabin & Shaw P.C. We
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-50026
affirm the judgment of the district court essentially for the reasons stated in
its thorough, well-reasoned opinion.
Rollo suffered a workplace injury while working for a U.S. defense
contractor in Iraq on January 29, 2005. Escobedo represented Rollo for his
workers compensation claim—from 2006 until the U.S. Department of
Labor (DOL) issued an order approving the agreed-upon settlement in
November 2013. Believing that he could have won a larger sum of money had
he proceeded to trial (and won), Rollo filed a “Petition to Set Aside as
Inadequate,” which challenged the settlement, in February 2017. The DOL
denied Rollo relief.
Rollo then filed this legal malpractice action in July 2017. 1 Escobedo
moved for summary judgment because, among other things, Rollo failed to
designate a legal expert by the deadline, as generally required for legal
malpractice claims in Texas. Likewise, Carabin & Shaw moved for summary
judgment on Rollo’s claim of vicarious liability. Rollo countered with his own
motion for summary judgment, arguing that expert testimony for breach and
causation was unnecessary because Escobedo’s breach and causation would
be “self-evident” to any juror and because he would be “indisputably
entitled” to receive more compensation than that obtained via the
settlement. The district court granted Escobedo’s motion for summary
judgment because Rollo “failed to designate an expert to establish the
standard of care (duty), breach, and causation.” Because Rollo’s underlying
claims against Escobedo failed, precluding vicarious liability, the court also
granted Carabin & Shaw’s motion for summary judgment. Rollo timely
1
Rollo initially filed suit in New York almost a year earlier, but the action was
dismissed for lack of personal jurisdiction. Rollo v. Escobedo, et al., No. 16-cv-6923, 2017
WL 2600107 (S.D.N.Y. June 15, 2017).
2
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No. 22-50026
appealed. After review of the briefs and record, we conclude that the district
court carefully considered the case and committed no reversible error.
First, “[i]n Texas, a legal malpractice claim sounds in tort and is
evaluated based on negligence principles.” Streber v. Hunter, 221 F.3d 701,
722 (5th Cir. 2000). To prevail on his claim, Rollo was required to show that
(1) Escobedo owed Rollo a duty, (2) a breach of the duty (3) which
proximately caused Rollo’s injuries, and (4) damages. See id.; see also
Alexander v. Turtur & Associates, Inc., 146 S.W.3d 113, 117 (Tex. 2004). “In
most legal malpractice cases, expert testimony is necessary to establish the
standard of care since only an attorney can competently testify to whether
the defendant comported to the prevailing legal standard.” Geiserman v.
MacDonald, 893 F.2d 787, 793 (5th Cir. 1990) (quotation and citation
omitted). Expert testimony is unnecessary only “[i]n instances of egregious
negligence that are obvious to a lay person or established as a matter of law.”
Id. at 794 (using an attorney who failed to tell his client to answer properly
served interrogatories as an example). We agree with the district court that
“this is not such an instance.” Rollo’s claim therefore required expert
testimony to establish the elements of legal malpractice.
Second, we agree that Rollo’s breach of fiduciary duty claim is
prohibited, as it is “substantively indistinguishable” from his legal
malpractice claim. “Texas law does not permit a plaintiff to fracture legal
malpractice claims into separate claims.” See O’Donnell v. Smith, 234
S.W.3d 135, 146 (Tex. App.—San Antonio 2007), aff’d, 288 S.W.3d 417(Tex. 2009).
Finally, we agree that Rollo’s vicarious liability claim against Carabin
& Shaw cannot survive summary judgment because it is dependent on his
failed claims against Escobedo. See G & H Towing Co. v. Magee, 347 S.W.3d
3
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No. 22-50026
293, 298 (Tex. 2011) (per curiam) (holding that a company “cannot have
vicarious liability” because “its agent did not commit the tort”).
AFFIRMED.
4