Robert B. Taylor v. Alonso, Cersonsky & Garcia, P.C., James A. Cersonsky, John Causey, and Hope and Causey, P.C. , 2012 Tex. App. LEXIS 7662 ( 2012 )

Opinion issued August 30, 2012.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-11-00078-CV
———————————
ROBERT B. TAYLOR, Appellant
V.
ALONSO, CERSONSKY & GARCIA, P.C., JAMES A. CERSONSKY,
JOHN CAUSEY, AND HOPE AND CAUSEY, P.C., Appellees
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2008-08861
OPINION
In this legal malpractice case, Robert B. Taylor appeals the trial court’s
rendition of summary judgment in favor of his former attorneys. Taylor was sued
in the underlying case for allegedly causing a car accident that left the passenger in
the other car in a permanent vegetative state. In the car accident case, Taylor
initially was represented by James A. Cersonsky and Alonso, Cersonsky & Garcia,
P.C. (Cersonsky). After Cersonsky withdrew from the representation, John Causey
and Hope and Causey, P.C. (Causey) took over Taylor’s representation.
Taylor ultimately paid $3 million in personal funds over his $250,000 policy
limit to settle the car accident suit. He then brought this suit against Cersonsky and
Causey, asserting claims for legal malpractice, gross negligence, and breach of
fiduciary duty. Cersonsky and Causey each moved for summary judgment. The
trial court granted the motions and rendered a take-nothing judgment. Taylor
appeals, arguing that the trial court erred in granting summary judgment because
he raised fact issues as to each of the essential elements of his claims. We
conclude that the trial court correctly granted summary judgment and, accordingly,
we affirm.
Background
The accident
In July 2005, Taylor, then seventy-eight years old, was involved in a head-
on collision on a two-lane road in Chambers County. Russell Fullen, a passenger
in the other car, suffered a severe brain injury and, as a result, fell into a permanent
vegetative state. Fullen, who was twenty-one years old at the time of the accident,
2
will require round-the-clock medical care for the rest of his life. It is estimated that
the cost of his medical care will approach $20 million.
The accident report completed by the Chambers County Sheriff’s Office
indicated that Taylor and Leach, the driver of the car in which Fullen rode, were
driving in opposite directions. Taylor attempted to turn left in front of Leach, who
swerved to his left to avoid Taylor. Taylor then swerved back into his lane of
traffic, striking Leach. The report concluded: “[Taylor] drove on the wrong side-
not passing, and [Leach] may have taken a faulty evasive action.” Taylor
ultimately was charged with a moving violation in connection with the accident.
Taylor’s insurer, Allstate Insurance Company, retained The ProNet Group to
investigate the accident. ProNet’s January 2006 accident reconstruction report
noted that Taylor claimed Leach caused the accident by driving erratically and
swerving into Taylor’s lane of traffic. Nevertheless, the report concluded that the
evidence, some of which was not conclusive, suggested that the accident did not
occur as Taylor had described. Rather, ProNet concluded that it was more likely
that the accident occurred as described in the police report. In February 2006,
Allstate informed Taylor that his potential liability exceeded his policy limits.
Fullen’s suit against Taylor
In February 2006, Fullen, through his family, sued Taylor. Allstate retained
Cersonsky to defend Taylor in the suit. Cersonsky communicated with Taylor and
3
Richard Baker, Taylor’s personal attorney, during Cersonsky’s representation of
Taylor. One of Taylor’s main objectives in the litigation was to prevent disclosure
of his personal financial information. To that end, Taylor, Baker, and Cersonsky
decided to file a special exception and motion for protection to prevent disclosure
of that information, which the Fullen family had requested in discovery. The trial
court ruled against Taylor on the motion for protection and ordered the financial
information produced. Taylor decided to appeal the decision. Cersonsky, who
does not handle appeals, told Allstate to transfer the matter to another attorney.
Cersonsky wrote Taylor and informed him that Allstate was assigning the case to
Causey, and Cersonsky withdrew. During Cersonsky’s five-month representation
of Taylor, no scheduling order or trial setting was in place, and no settlement offers
or demands were exchanged.
Following Cersonsky’s withdrawal in July 2006, Allstate hired Causey to
continue the representation of Taylor. While the case ultimately settled eighteen
months later, the settlement came after several developments—each unfavorable to
Taylor—came to pass:
• First, Fullen amended his petition to assert a fraudulent transfer claim
against Taylor, Taylor’s family members, Taylor’s family trust, and
others, after discovering that Taylor, after the accident, had transferred
certain significant assets in an apparent effort to avoid exposing his
substantial net worth to a potential judgment in Fullen’s favor. Fullen
4
also obtained a temporary restraining order and temporary injunction
prohibiting the transfer of certain assets until the case was resolved.1
• Second, the trial court denied Taylor’s motion for summary judgment on
Fullen’s gross negligence claim, leaving Taylor open to jury
consideration of exemplary damages.
• Third, more unfavorable evidence regarding fault came to light. An
accident reconstruction expert retained by Causey concluded that Taylor
was a cause of the accident. And an eyewitness to the accident testified
that the accident was Taylor’s fault because he crossed over into the lane
of oncoming traffic while attempting to turn left.
It was against this backdrop that the parties mediated the case, nine days
before the scheduled trial date in October 2007.2 At the mediation, Allstate
tendered policy limits of $250,000, and Taylor, who was accompanied by Causey
and two personal lawyers not retained by Allstate, agreed to pay $3 million to
settle all of the claims against Taylor, his family members, and related entities.
Taylor signed the written settlement agreement, as did Causey and Taylor’s
personal attorney, Baker.
Taylor’s suit against Cersonsky and Causey
In February 2008, Taylor sued Cersonsky, Causey, and Allstate. Taylor
alleged that Cersonsky and Causey committed legal malpractice by failing to
properly investigate and develop viable defenses to Fullen’s suit that could have
1
Causey did not handle this aspect of the litigation; it was handled by Nelson
Hensley, another personal attorney of Taylor.
2
Taylor had made a written $1 million settlement offer through his personal
attorney, Hensley, the month before the mediation.
5
resulted in a verdict in Taylor’s favor or significantly reduced the value of Fullen’s
claims. Although Taylor alleged various acts of malpractice, his primary
complaint was that his lawyers, who he claims were beholden to Allstate, failed to
investigate and pursue a defense based on the fact that Fullen failed to wear a seat
belt on the day of the accident. While Causey pleaded an affirmative defense
based on Fullen’s failure to wear a seat belt and later designated (after the expert
deadline) an expert to opine on whether Fullen would have avoided serious injury
had he worn a seat belt, Taylor complains that it was too little, too late.
With respect to the alleged breach of fiduciary duty, Taylor contended that
Cersonsky and Causey defended his case so as to further their own interests, and
Allstate’s interests, rather than Taylor’s.3 He contends that Cersonsky and Causey,
each of whom took the case for a flat fee, were motivated to save Allstate from
having to pay for an expensive defense, and did not act in Taylor’s best interest.
For example, he contends that a lawyer truly representing Taylor would have
immediately interviewed witnesses and that Cersonsky and Causey did not work
up the case soon enough because of the nature of their fee arrangement. Randy
3
Taylor also sued Allstate. He alleged Allstate (1) tortiously interfered with
Taylor’s relationships with Cersonsky and Causey, (2) breached its contract with
Taylor and (3) violated the DTPA and Insurance Code in handling his claim.
After the trial court granted Allstate’s motion for summary judgment, it severed
the claims against Allstate, and Taylor appealed. This court affirmed in part but
reversed and remanded Taylor’s DTPA and Insurance Code claims against
Allstate. See Taylor v. Allstate Ins. Co., 356 S.W.3d 92, 103 (Tex. App.—
Houston [1st Dist.] 2011, pet. denied).
6
Donato, Taylor’s legal expert, also asserts that Cersonsky and Causey improperly
failed to disclose to Taylor the nature of their fee arrangements with Allstate.
Cersonsky and Causey each filed traditional and no-evidence motions for
summary judgment on all of Taylor’s claims against them. Both argued that
Taylor had no evidence of causation or, in other words, that Taylor could not raise
a fact issue on the “suit within a suit” element of his legal malpractice claim.
Cersonsky additionally argued that his early withdrawal from the case broke the
chain of causation. In response, Taylor offered the affidavits of three experts: a
biomechanical engineering expert, John Lenox, who averred that Fullen would not
have sustained serious injury if he had been wearing his seat belt on the day of the
accident; an accident reconstruction expert, William Greenlees, who performed an
accident reconstruction analysis; and Donato, who opined that Cersonsky’s and
Causey’s breaches of the standard of care in their representation of Taylor caused
Taylor to suffer damages. Donato concluded: “Both Cersonsky and Causey failed
to adequately investigate and prepare the underlying defenses available to them
rising out of the accident facts. Had that work been performed properly, in my
opinion, the value of the case should have been reduced to within, Allstate’s policy
limits.” In other words, “had either of these lawyers, retained by Allstate
Insurance Company complied with the standard of care in timely locating and
retaining experts . . . it is more probable than not that a trial would have resulted in
7
a defense verdict and a pretrial settlement would have been accomplished for the
available policy limits or less.” The trial court granted the summary judgment
motions, and Taylor appealed, contending that it erred in doing so.
Standard of Review
We review a trial court’s summary judgment de novo. Travelers Ins. Co. v.
Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary
judgment without specifying the grounds for granting the motion, we must uphold
the trial court’s judgment if any one of the grounds is meritorious. Beverick v.
Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005,
pet. denied). The motion must state the specific grounds relied upon for summary
judgment. See TEX. R. CIV. P. 166a(c), (i); Timpte Indus., Inc. v. Gish, 286 S.W.3d
306, 310 (Tex. 2009). When reviewing a summary judgment motion, we must (1)
take as true all evidence favorable to the nonmovant and (2) indulge every
reasonable inference and resolve any doubts in the nonmovant’s favor. Valence
Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing Provident Life
& Accident Ins. Co. v. Knott, 128 S.W .3d 211, 215 (Tex. 2003)).
A party seeking summary judgment may combine in a single motion a
request for summary judgment under the no-evidence standard with a request
under the traditional summary judgment standard. Binur v. Jacobo, 135 S.W.3d
646, 650–51 (Tex. 2004). In a no-evidence motion for summary judgment, the
8
movant asserts that there is no evidence to support an essential element of the
nonmovant’s claim on which the nonmovant would have the burden of proof at
trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.
App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the
nonmovant to present evidence raising a genuine issue of material fact as to each
of the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d
572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.
In a traditional summary judgment motion, the movant has the burden to
show that no genuine issue of material fact exists and that the trial court should
grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick
v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999). A
defendant moving for traditional summary judgment must conclusively negate at
least one essential element of each of the plaintiff’s causes of action or
conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc.
v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).
Discussion
A. Legal malpractice claims
A legal malpractice action is based on negligence. Cunningham v. Hughes
& Luce, L.L.P., 312 S.W.3d 62, 67 (Tex. App.—El Paso 2010, no pet.) (citing
Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989)). A plaintiff bringing a
9
legal malpractice claim must show that “(1) the attorney owed the plaintiff a duty,
(2) the attorney breached that duty, (3) the breach proximately caused the
plaintiff’s injuries, and (4) damages occurred.” Grider v. Mike O’Brien, P.C., 260
S.W.3d 49, 55 (Tex. App—Houston [1st Dist.] 2008, pet. denied) (quoting
Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004)). If the
legal malpractice claim is based on the attorney’s acts during prior litigation, a
plaintiff must prove that, but for the attorney’s breach of duty, the plaintiff would
have been successful in the prior case. Id. (citing Greathouse v. McConnell, 982
S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)); see also
Heath v. Herron, 732 S.W.2d 748, 753 (Tex. App.—Houston [14th Dist.] 1987,
writ denied) (stating that defendant in underlying case claiming malpractice must
show a “meritorious defense,” that is, a defense “that, if proved, would cause a
different result upon retrial of the case”). This causation burden in this type of
legal malpractice claim has been called the “suit-within-a-suit” requirement. See
Greathouse, 982 S.W.2d 165 at 173. The “suit within a suit” causation
requirement applies both to claims for legal malpractice and claims for a former
attorney’s alleged breach of fiduciary duty when the damages sought are based on
the attorney’s wrongful conduct in prior litigation. See Finger v. Ray, 326 S.W.3d
285, 292 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Greathouse, 982 S.W.2d
165 at 173.
10
Generally, expert testimony is required to prove causation in a legal
malpractice suit. See Alexander, 146 S.W.3d at 119–20. Proximate cause has two
elements: cause in fact and foreseeability. W. Invs., Inc. v. Urena, 162 S.W.3d
547, 551 (Tex. 2005). “These elements cannot be established by mere conjecture,
guess, or speculation.” Id. (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907
S.W.2d 472, 477 (Tex. 1995)). The test for cause in fact is whether the act or
omission was a substantial factor in causing the injury without which the harm
would not have occurred. Id.
1. Taylor’s claims against Cersonsky
Cersonsky moved for summary judgment on all Taylor’s claims on the
ground that Cersonsky’s withdrawal, and Causey’s substitution, broke the chain of
causation. We agree that Taylor failed to raise a fact issue as to how Cersonsky’s
representation of Taylor caused Taylor’s alleged damages.
When an attorney withdraws from representing a client, and another attorney
agrees to represent the client, the first attorney does not cause the harm suffered by
the client if nothing the first attorney did or failed to do hampered the second
attorney’s representation. See Blake v. Lewis, 886 S.W.2d 404, 408 (Tex. App.—
Houston [1 Dist.] 1994, no writ); see also Medrano v. Reyes, 902 S.W.2d 176, 178
(Tex. App.—Eastland 1995, no writ) (holding, in legal malpractice suit for failure
to file action within limitations period, that firm should not be liable when it
11
withdrew twenty-one months before limitations period expired giving former client
sufficient time to employ other counsel). Here, Cersonsky represented Taylor for
approximately five months before withdrawing. At the time of his withdrawal in
July 2006, no trial date had been set and no scheduling order had been entered.
Causey took over the representation approximately eighteen months before the
eventual mediation and trial date. In his affidavit, Donato does not assert that
anything Cersonsky did in that five-month period hampered or interfered with
Causey’s later representation. Rather, he opines generally that both Cersonsky and
Causey should have begun their factual investigation of the case earlier than they
did, but nowhere explains how Cersonsky’s doing so would have yielded a better
outcome for Taylor. We hold that Taylor failed to raise a fact issue concerning the
element of causation on his malpractice claim against Cersonsky. See Blake, 886
S.W.2d at 408; Medrano, 902 S.W.2d at 178.
We overrule the portion of Taylor’s point of error with respect to the
summary judgment on Taylor’s malpractice claims against Cersonsky.4
2. Taylor’s claims against Causey
As part of his motion for summary judgment, Causey asserted that there was
no evidence of the element of causation. Taylor responded with summary
judgment evidence, including an affidavit from a legal expert, Randy Donato. In
4
In addition, the discussion below concerning the causation in the case against
Causey applies equally to causation in the case against Cersonsky.
12
his affidavit, Donato identifies a number of acts and omissions he contends amount
to malpractice by Causey. The alleged breaches of the standard of care include:
failing to interview the investigating officer and other witnesses early in the
representation; failing to raise and develop a defense based on Fullen’s failure to
wear a seat belt, specifically, failing to consult or retain appropriate experts
necessary to prove a seat belt defense; and generally carrying out the
representation in such a way to save Allstate money rather than pursuing Taylor’s
best interests. Donato avers that Causey “failed to defend in a reasonable manner
the ‘how this accident happened’ issues.”
Donato’s affidavit addresses the suit within a suit requirement by positing
how a hypothetical lawyer “uninfluenced by the fact he is being paid by an
insurance company, would have defended the underlying lawsuit.” He avers that,
properly handled, the seat belt defense “would have significantly reduced Mr.
Fullen’s claims and likely eliminated them altogether.” In other words, Donato
opines that if a lawyer acting in Taylor’s best interest had defended the case
properly, and if Taylor had proceeded to trial, the seat belt defense would have
been a viable defense and yielded an outcome in which Taylor’s liability would
have been less than the $3 million Taylor paid to settle the case. Donato accords
the seat belt defense such importance that he concludes that, if it had been properly
developed in this case, “the value of the case should have been reduced to within
13
Allstate’s policy limits.” In short, according to Donato, satisfactory counsel would
have saved Taylor from contributing a single dollar toward a settlement or
judgment.
An expert may not “simply . . . opine that the defendant’s negligence caused
the plaintiff’s injury.” Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010). An
expert must also “explain how and why the negligence caused the injury.” Id. In
other words, an expert must sufficiently link his conclusions to the facts. Earle v.
Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). The factfinder must have access to the
facts and data underlying an expert’s testimony in order “to accurately assess the
testimony’s worth.” In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440
(Tex. 2007). An opinion on causation stated without the underlying facts is
conclusory. See Jelinek, 328 S.W.3d at 536; Arkoma Basin Exploration Co., Inc.
v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008). A
conclusory opinion is not probative and will neither support nor defeat a summary
judgment. See City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009);
see also Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999) (“[I]t is the basis of the
witness’s opinion, and not the witness’s qualifications or his bare opinions alone,
that can settle an issue as a matter of law; a claim will not stand or fall on the mere
ipse dixit of a credentialed witness.”). An expert “cannot simply say, ‘Take my
word for it; I know . . . .’” Burrow, 997 S.W.2d at 236.
14
In Burrow, the Supreme Court of Texas examined an affidavit in a legal
malpractice case. Burrow, 997 S.W.2d at 235. Former clients sued their attorneys,
asserting that the attorneys had improperly settled their suits and allocated damages
among the clients. Id. at 232–33. The attorneys moved for and were granted
summary judgment by the trial court. Id. at 233. In support of their motion for
summary judgment, the attorneys included an affidavit from an expert who opined
that the attorneys’ actions did not cause the clients any damages. Id. at 235. The
expert stated there were several important considerations in considering the
reasonableness of the settlement amounts, he considered those factors, and he
concluded that the clients were all reasonably compensated and, therefore, had not
been harmed by the alleged malpractice. Id. The Supreme Court explained that
because the expert did not explain why the settlements were fair and reasonable for
each client, the affidavit was conclusory. Id. at 236.
We conclude that, like the deficient affidavit in Burrow, Donato’s affidavit
fails to sufficiently explain how Causey caused Taylor’s damages. More
specifically, it fails to explain the basis for Donato’s opinion that a lawyer properly
handling the case would have achieved the favorable outcome Donato posits. The
main flaw in Donato’s analysis is the causal leap it makes with respect to legal
rulings the trial court would have made regarding the seat belt defense had Taylor
15
proceeded to trial. The basis for these leaps is nowhere explained, but the
assumptions themselves are embedded in a key passage of Donato’s affidavit:
The most glaring failure I have found in failing to do that which a
lawyer exercising independent judgment would have done, is the
failure of [Cersonsky and Causey] to investigate the non-use of
seatbelt issues applicable specifically to Mr. Fullen. For years as a
defense attorney, I was frustrated by the fact that Texas Law did not
allow in front of juries the use or non-use of seatbelts. It is proven by
the statistics countless injuries and specifically head injuries are
avoided when occupants wear seatbelts.
In 2003, our Texas Legislature repealed sections 545.412d and
545.413[g] of the Texas Transportation Code. In repealing these
sections, the Legislature gave defense lawyers, a new and potentially
case winning defense if a Plaintiff was not wearing a seatbelt and if
his injury would have been prevented by the use of a seatbelt. The
way seat belt use is submitted in Texas, gives defense counsel
essentially two bites at the apple. A jury will be asked to assign fault
on a proportionate basis as between parties for causing the accident.
After the jury has answered that question, a seat belt inquiry question
is submitted which inquires essentially, as to how much of a,
Plaintiff’s injury would have been prevented had he been wearing a
seatbelt. Both fault and injury causation are used to establish if and
how a defendant may owe.
. . . . Competent Plaintiff counsel throughout the state of Texas for
years fought against the repeal of the provisions of the Transportation
Code making the use or non-use of seatbelts inadmissible. They did
so for a very good reason, and that is failing to wear seatbelts is and
will continue to be a devastating defense against their clients.
. . . . Accordingly, had either of these defense lawyers, retained by
Allstate Insurance Company complied with the standard of care in
timely locating and retaining experts . . . it is more probable than not
that a trial would have resulted in a defense verdict and pretrial
settlement would have been accomplished for the available insurance
policy limits or less.
16
(Emphasis added.) Before its repeal in 2003, Texas Transportation Code section
545.413(g) provided, “Use or nonuse of a safety belt is not admissible evidence in
a civil trial . . . .” Act of Apr. 21, 1995, 74th Leg., R.S., ch. 165, §1, sec.
545.413(g), 1995 Tex. Gen. Laws 1025, 1644, repealed by Act of June 1, 2003,
78th Leg., R.S., ch. 204, §8.01 2003 Tex. Gen. Laws 847, 863. Donato assumes
that, with the repeal of section 545.413(g), admissibility of an injured party’s
failure to wear a seat belt is a foregone conclusion. Donato likewise assumes that
the trial judge would have reduced Taylor’s liability by the percentage of the injury
that would have been avoided had Fullen worn a seat belt, as found by the jury.
But Donato nowhere explains the basis for either of these leaps. That likely
is because Texas law on these points is unsettled. See Trenado v. Cooper Tire &
Rubber Co., No. 4:08-cv-249 (S.D. Tex. Jan. 26, 2010) (noting absence of
authorities discussing issue of seat belt usage since repeal of section 545.413(g)).
Donato cited no authorities to support his view of how a trial court would rule on
these questions. And our own research revealed no Texas Supreme Court or Texas
appellate court cases discussing the significance or effect of the provision’s repeal.
Nor have we located Texas cases discussing whether or how an injured party’s
failure to wear a seat belt should be submitted to the jury. Indeed, the few federal
court opinions addressing these issues reached conclusions that conflict with
17
Donato’s assumptions about how the hypothetical Chambers County trial court
would have ruled.
One federal court concluded that the legislature’s repeal in 2003 of section
545.413(g) “does not indicate that [evidence of a party’s failure to wear a seat belt]
is now per se admissible.” Idar v. Cooper Tire & Rubber Co., C.A. No. C-10-217,
2011 WL 2412613, at * 9 (S.D. Tex. June 6, 2011); see also Trenado v. Cooper
Tire & Rubber Co., C.A. No. 4:08-cv-249 (S.D. Tex. Jan. 26, 2010) (noting that
the legislative intent was to change the admissibility of seat belt usage from a
substantive to a procedural issue and concluding that, while Texas law does not
preclude the admissibility of seat belt evidence, admissibility would be decided by
trial court according to evidentiary rules). This casts doubt on Donato’s
assumption that the fact that Fullen failed to wear a seat belt would be the deciding
factor in the jury’s deliberations had Taylor proceeded to trial.
The same can be said of Donato’s assumption that Taylor’s liability would
have been reduced due to Fullen’s failure to wear a seat belt. Trenado and Idar
each made two holdings that undercut Donato’s assumption on this point: (1) the
alleged failure of the injured person to wear a seat belt did not contribute to the
accident, and, under current Texas law, it should not give rise to a contributory
negligence defense, Idar, 2011 WL 2412613, at *11; Trenado, at *41–42, and (2)
the injured person’s failure to wear a seat belt did not constitute subsequent
18
negligence and therefore does not give rise to a defense of failure to mitigate
damages that would yield a reduction in recovery. Idar, 2011 WL 2412613, at 11–
12; Trenado, at 38–39.
Donato’s analysis nowhere explains the specific legal basis for his opinion
that earlier development of the seat belt defense by Causey probably would have
yielded a more favorable result at trial. Instead, his analysis leaps from the fact of
section 545.413(g)’s repeal to his conclusion that Taylor would have obtained a
better outcome at trial had he been properly represented, without ever addressing
the unsettled legal issues that the trial court would have confronted, or how or why
he believes that Taylor would have obtained favorable rulings on them—and
convinced a jury of their outcome-determinative nature—had Taylor proceeded to
trial. Donato’s failure to explain this analytical gap—together with the absence of
any authority to suggest that the trial would have unfolded in the manner Donato
suggests—lead us to conclude that Donato’s opinion is insufficient to raise a fact
issue on causation. Pollock, 284 S.W.3d at 818 (conclusory opinion is not
probative and will not defeat a summary judgment); Burrow, 997 S.W.2d at 235
(an expert’s opinion is conclusory and will not support summary judgment if it
does not contain the basis or reasoning for the opinion).
In addition, Donato does not address other significant legal and factual
hurdles Taylor faced in the underlying lawsuit. For example, Donato does not
19
address the undisputedly severe and tragic nature of Fullen’s injury or the
substantial estimated cost of his medical care needs and how these facts may have
influenced a jury. Additionally, Fullen had amended his petition to assert a
fraudulent transfer claim based on Taylor’s attempt to shield assets from a
judgment in Fullen’s favor. Taylor had also lost a summary judgment on Fullen’s
gross negligence claim, leaving the possibility of Taylor being liable for exemplary
damages at trial. Finally, the police report and both accident reconstruction expert
reports concluded that Taylor was a cause of the accident. Under the facts of this
case, we conclude that Donato’s affidavit is insufficient to raise a fact issue on
whether the alleged malpractice caused injury to Taylor because it does not show
that the results of a trial probably would have been better for Taylor. See Pollock,
284 S.W.3d at 818; Burrow, 997 S.W.2d at 235; see also Cooper v. Harris, 329
S.W.3d 898, 904 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (finding
expert testimony insufficient to support jury’s verdict on legal malpractice claim
because expert who testified that malpractice plaintiff would have recovered a
money judgment had his claims been prosecuted by a reasonably prudent attorney
did not “address the complicated factual and legal issues” in the underlying case);
Kemp v. Jensen, 329 S.W.3d 866, 871 (Tex. App.—Eastland 2010, pet. denied)
(affirming summary judgment on legal malpractice claim where expert opined that
malpractice plaintiff would have had a much better opportunity of obtaining a
20
favorable jury verdict but for the alleged malpractice, but did not explain the basis
of the statement).5 Accordingly, we hold that the trial court correctly granted
summary judgment on Taylor’s legal malpractice claims.
B. Gross negligence claims
Taylor pleaded that his lawyers’ acts and omissions rose to the level of gross
negligence. Texas law is well-settled that, in order to prevail on a claim for gross
negligence, a plaintiff must first show ordinary negligence. Doe v. Messina, 349
S.W.3d 797, 804 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (citing Sonic
Sys. Int’l, Inc. v. Croix, 278 S.W.3d 377, 395 (Tex. App.—Houston [14th Dist.]
2008, pet. denied)). Here, we have concluded that the summary judgment on the
negligence claims against Cersonsky and Causey was proper. Therefore, Taylor’s
gross negligence claims also fail. We hold that the trial court properly granted
summary judgment on Taylor’s gross negligence claims against Cersonsky and
Causey.
5
Donato’s affidavit can also be read to conclude that proper handling of the case
would have reduced the amount Taylor had to pay to settle the case, had he
decided not to proceed to trial. That theory is also insufficient to survive summary
judgment, because there is no evidence that Fullen’s representatives would have
accepted a settlement offer lower than $3 million. See Tolpo v. Decordova, 146
S.W.3d 678, 684 (Tex. App.—Beaumont 2004, no pet.) (affirming summary
judgment based on lack of fact issue on causation where there was no evidence
that other party in underlying suit would have entered into the contract had former
counsel proposed special provision, the omission of which was the basis of former
client’s malpractice claim).
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C. Breach of fiduciary duty claims
The parties dispute whether Taylor asserted only claims of legal malpractice
or whether he also stated a breach of fiduciary duty claim. Taylor contends that his
allegations about allegedly divided loyalties give rise to a breach of fiduciary duty
claim. Specifically, he claims Cersonsky and Causey breached their fiduciary
duties to Taylor by failing to disclose certain facts (the nature of their fee
arrangement with Allstate and the fact that Fullen’s medical lien could be waived)
and by acting in the interests of Allstate and themselves (by allegedly skimping on
Taylor’s defense in order to keep Allstate happy and thereby secure other work for
themselves in the future). The former lawyers argue that Taylor’s allegations are
nothing more than complaints about the adequacy of their representation and
therefore can only give rise to ordinary malpractice claims. See Greathouse, 982
S.W.2d at 172 (the test to determine whether a plaintiff asserts only malpractice
claims, generally, is whether the “crux” of each separate claim is that the lawyer
“did not provide adequate legal representation.”).
Our resolution of this case is based on Taylor’s failure to raise a fact issue
with respect to the suit within a suit causation element of his claims. This
causation is an element of a legal malpractice claim and a breach of fiduciary duty
22
claim for damages based on representation in underlying litigation.6 See Finger,
326 S.W.3d at 291–92 (former client asserting breach of fiduciary duty claim
based on representation in prior suit must prove “suit within a suit” causation);
Smith v. Aldridge, No. 14-11-00673-CV, 2012 WL 1071246, at *6 (Tex. App.—
Houston [14th Dist.] March 29, 2012, no pet.) (assuming malpractice plaintiff’s
allegations supported an independent action for breach of fiduciary duty, plaintiff
was required to prove “suit within a suit” to defeat summary judgment on that
claim). Because Taylor had the burden—but failed—to raise a fact issue on
causation, it is immaterial whether Taylor asserted only malpractice claims, on the
one hand, or whether he asserted both malpractice and breach of fiduciary duty
claims, on the other. Even if some of his allegations could form the basis for a
breach of fiduciary duty claim, Taylor’s failure to meet his burden with respect to
causation vitiates both. We express no opinion as to whether Taylor asserted
claims for breach of fiduciary duty as distinct from legal malpractice; rather, we
conclude that, even if he had, his failure to raise a fact issue on the element of
causation would render summary judgment proper on any such claim. See Finger,
326 S.W.3d at 291–92; Smith, 2012 WL 1071246, at *6.
6
We note that Taylor sought only actual and exemplary damages in this case. In
breach of fiduciary duty cases in which the former client seeks disgorgement of
fees paid to the attorney, the former client need not prove actual damages. Burrow
v. Arce, 997 S.W.2d 229, 240 (Tex. 1999). Because he did not seek disgorgement
of fees, Taylor was required to prove Causey and Cersonsky’s breach of fiduciary
duties caused his actual damages.
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Conclusion
We affirm the judgment of the trial court.
Rebeca Huddle
Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
24