James O. Rogers, William M. Burmeister, Conservative Care, Inc. and Care Affiliates, Inc. v. Victor B. Zanetti, Charles L. Perry and Andrews Kurth, Llp, 518 S.W.3d 394

Background

Rogers invested in Accent Home Health after signing an investment agreement drafted by Zanetti; Rogers controlled funds and later diverted money and failed to provide promised capital. Founders sued Rogers and obtained a jury verdict for fraud; the investment agreement was declared void. The Alexander judgment was affirmed on appeal.
Rogers later sued his former defense lawyer Perry, the drafting lawyer Zanetti, and their firm for legal malpractice, alleging conflicts of interest, failure to join responsible third parties, failure to communicate a settlement offer, failure to designate a rebuttal damages expert, and discovery misconduct.
Defendants moved for summary judgment asserting, among other grounds, no evidence of causation; the trial court granted summary judgment without specifying grounds and the court of appeals affirmed.
Texas Supreme Court assumed duty and breach for purposes of appeal and focused solely on whether Rogers produced competent summary-judgment evidence raising a genuine fact issue on causation (the proximate-cause/but-for requirement in malpractice suits arising from prior litigation).
The Court held Rogers failed to present competent causation evidence: drafting errors and failure to join third parties were foreclosed by the antecedent fraud finding in Alexander; expert opinions offered to show that a rebuttal damages expert or notice of settlement would likely have produced a better outcome were conclusory, speculative, or contradicted by the appellate record; no evidence showed Rogers could have or would have settled for $450,000.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether drafting errors by Zanetti or failure to join Zanetti/firm as responsible third parties caused Rogers' loss	Zanetti's transactional malpractice and failure to join third parties were substantial causes of Rogers' damages; a relaxed "substantial factor" test should apply	Fraud finding in Alexander voided the agreement, so antecedent fraud, not drafting, caused the loss; traditional but-for causation applies	Held for defendants: antecedent fraud made drafting/joining claims causally irrelevant; traditional but-for causation controls
Whether failure to designate a rebuttal damages expert caused excessive verdict	A rebuttal expert would have reduced the damages award	Expert opinions offered are conclusory/speculative; appellate record confirms sufficient evidence supported the verdict	Held for defendants: plaintiff failed to produce competent expert causation evidence showing verdict would likely have been different
Whether failure to communicate a $450,000 settlement offer caused the adverse judgment	Rogers would have tried to settle and avoided the judgment if informed	No evidence Rogers could have paid or that Alexanders would accept $450,000 or any lesser amount	Held for defendants: no evidence settlement would have occurred; causation not shown
Standard for causation in litigation-based malpractice (case-within-a-case)	Rogers urged a relaxed "substantial factor" standard for transactional malpractice	Defendants argued traditional case-within-a-case but-for causation applies	Held: traditional suit-within-a-suit/but-for causation governs; exceptions limited and not shown here

Key Cases Cited

Stanfield v. Neubaum, 494 S.W.3d 90 (Tex. 2016) (elements of legal malpractice include duty, breach, and proximate cause)
Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113 (Tex. 2004) (discussing suit-within-a-suit and need for expert testimony on causation in certain litigation-mistake contexts)
Elizondo v. Krist, 415 S.W.3d 259 (Tex. 2013) (when malpractice concerns settlement valuation, suit-within-a-suit may not be required; measure of damages explained)
Keck, Mahin & Cate v. Nat'l Union Fire Ins. Co., 20 S.W.3d 692 (Tex. 2000) (malpractice plaintiff must show mishandling caused an excessive judgment or settlement; proof of the case’s "true value")
Doe v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472 (Tex. 1995) (cause-in-fact requires negligent act be a substantial factor bringing about injury)
Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996) (incompetent opinion testimony is not evidence)
Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) (conclusory expert testimony insufficient to create fact issue)
City of San Antonio v. Pollock, 284 S.W.3d 809 (Tex. 2009) (an expert’s basis must on its face support the opinion; bare opinions are insufficient)
Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) (plaintiff must prove causation by a preponderance; more likely than not standard)