Derrick M. Saulsberry v. Wendy Ross, Individually and on Behalf of Texas Spray-On Bedliners L.L.C.
2015 Tex. App. LEXIS 11282
| Tex. App. | 2015Background
- Wendy Ross (later formed Texas Spray-On Bedliners, LLC) and Larry Young settled a suit with TOFF; agreed judgment required purchase of 12 chemical sets and that post-judgment communications be sent to counsel. Saulsberry was Ross’s counsel and approved the agreed judgment.
- Ross breached the settlement by buying only six sets. TOFF sent post-judgment discovery and a notice of intent to execute to Saulsberry; Saulsberry did not forward discovery or notify Ross in writing that he was terminating representation.
- TOFF filed a breach-of-contract suit and later executed a writ; constables seized property from Spray-On Bedliners’ business on December 8, 2008. Ross then retained Mark Morasch, who obtained injunctive relief and litigated to a walk-away settlement with TOFF.
- Ross sued Saulsberry for legal malpractice, alleging his failure to forward discovery or notify termination proximately caused seizure-related losses, business expenses, and attorney’s fees. Trial court found Saulsberry liable to Ross and awarded $63,483.81 (offset to $53,321.11).
- On appeal Saulsberry challenged (inter alia) existence of a continuing attorney–client relationship and sufficiency of evidence for damages and proximate cause. The court held the evidence supported an attorney–client relationship through December 8, 2008, but reversed as to damages for legal insufficiency.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence/duration of attorney–client relationship | Ross: Saulsberry remained her attorney for post-judgment collection matters and took actions (accepted judgment terms, spoke with TOFF’s counsel, advised Ross) showing continued representation. | Saulsberry: Representation ended at entry of final judgment; no new written agreement for post-judgment matters so no duty after judgment. | Court: Overruled — objective conduct (judgment terms, counsel-to-counsel communications, advice to Ross) supported continued attorney–client relationship until Dec. 8, 2008. |
| Breach of standard of care | Ross: Saulsberry breached by failing to forward post-judgment discovery or give written notice of termination. | Saulsberry: Disputed scope/duty; argued at most acted as conduit and did not owe broader duties. | Court: Found breach (not challenged on appeal). |
| Proximate cause for attorney’s fees (including company’s fees) | Ross: Saulsberry’s inaction caused litigation, seizure, and attorney’s fees; had Saulsberry acted, fees would not have been incurred. | Saulsberry: No causal link; company expenses are corporate obligations, and fees would have been incurred anyway due to separate breach suit and execution. | Court: Reversed — insufficient evidence that Saulsberry proximately caused Ross to incur (a) Spray‑On Bedliners’ attorney’s fees or business expenses, and (b) Ross’s own attorney’s fees (no expert causal link). |
| Measure and proof of value for seized property | Ross: Exhibit listed item "Value" and trial court could infer fair market value or replacement cost. | Saulsberry: No evidence of fair market value or method; bare "value" entries are ipse dixit. | Court: Reversed — no admissible evidence of fair market value; unexplained "value" figures legally insufficient. |
Key Cases Cited
- Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, 437 S.W.3d 518 (Tex. 2014) (unchallenged findings bind appellate court)
- McGalliard v. Kuhlmann, 722 S.W.2d 694 (Tex. 1986) (same principle on findings)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal-sufficiency review standards)
- Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106 (Tex. 2009) (elements of legal-malpractice claim; proximate cause requires cause in fact and foreseeability)
- Alexander v. Turtur & Assocs., 146 S.W.3d 113 (Tex. 2004) (expert testimony required when causal link is beyond common understanding)
- Natural Gas Pipeline Co. of Am. v. Justiss, 397 S.W.3d 150 (Tex. 2012) (owner’s unsupported valuation is legally insufficient)