Starwood Management, LLC by and Through Norma Gonzalez v. Don Swaim and Rose Walker, L.L.P.
530 S.W.3d 673
| Tex. | 2017Background
- Norma Gonzalez owned Starwood Management, which had a 1982 Gulfstream registered under an employee manager; the DEA seized the aircraft under statutes restricting non‑U.S. citizen ownership/control.
- Chartis (Starwood’s insurer) retained Rose Walker attorney Don Swaim to recover the airplane; Swaim filed suit but failed to file the required 30‑day verified notice with DEA Forfeiture Counsel, producing dismissal of the suit.
- Swaim also pursued administrative remission/mitigation; Gonzalez initially invoked the Fifth, was subpoenaed, later refused to waive the Fifth when DEA insisted, and the DEA denied remission and reconsideration—Starwood lost the aircraft.
- Chartis separately retained attorney George Crow for six other DEA seizures; Crow complied with notice requirements and recovered five of the six aircraft (three for nominal payments, two without conditions) without subpoenaing Gonzalez.
- Starwood sued Swaim for legal malpractice and breach of fiduciary duty, alleging Swaim’s failure to file the DEA notice proximately caused the forfeiture; Crow and another lawyer submitted affidavits opining causation.
- The trial court struck the affidavits as conclusory and granted summary judgment for Swaim; the court of appeals affirmed. The Supreme Court of Texas granted review and reversed, holding Crow’s affidavit was not conclusory and remanding for further proceedings.
Issues
| Issue | Starwood's Argument | Swaim's Argument | Held |
|---|---|---|---|
| Whether Crow’s expert affidavit on causation is conclusory and therefore incompetent summary‑judgment evidence | Crow’s affidavit shows methodology and demonstrable bases (six similar seizures, five recoveries when notice filed) linking omission to loss; so it raises fact issue on but‑for causation | Affidavit is ipse dixit/conclusory because it lacks case‑by‑case factual comparison, fails to address Gonzalez’s refusal to testify, and ignores other possible legal impediments | Affidavit is not conclusory: it explains why (linking facts relied on to opinion), cites demonstrable comparator outcomes, and is sufficient to defeat summary judgment; remand for further proceedings |
| Whether the breach of fiduciary duty claim should be dismissed under the anti‑fracturing rule (i.e., is it merely a re‑labelled malpractice claim) | Starwood treated breach as separate theory of recovery | Swaim argued fiduciary claim duplicates malpractice and is barred | Court of appeals dismissed fiduciary claim as duplicative; Supreme Court reversed only on affidavit issue and remanded for the court of appeals to consider issues it did not reach (including any remaining defenses) |
Key Cases Cited
- Elizondo v. Krist, 415 S.W.3d 259 (Tex. 2013) (expert affidavit must provide demonstrable and reasoned basis; warns against conclusory opinions)
- Rogers v. Zanetti, 518 S.W.3d 394 (Tex. 2017) (requirement that expert affidavits answer “why” by linking relied‑on facts to opinion in malpractice cause‑in‑fact analysis)
- Jelinek v. Casas, 328 S.W.3d 526 (Tex. 2010) (expert must explain how and why negligence caused injury)
- Ryland Group v. Hood, 924 S.W.2d 120 (Tex. 1996) (conclusory affidavits are not probative in summary judgment context)
- Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999) (discusses adequacy of expert reasoning in attorney‑malpractice contexts)
- Gammill v. Jack Williams Chevrolet, 927 S.W.2d 713 (Tex. 1996) (analytical gap doctrine: too great a gap between data and opinion renders expert testimony inadmissible)
- Stanfield v. Neubaum, 494 S.W.3d 90 (Tex. 2016) (elements of legal malpractice: duty, breach, proximate cause)
- Mid‑Century Ins. Co. v. Ademaj, 243 S.W.3d 618 (Tex. 2007) (de novo review of summary judgment)
- National Liability & Fire Ins. v. Allen, 15 S.W.3d 525 (Tex. 2000) (trial court’s exclusion of evidence reviewed for abuse of discretion)
- Timpte Industries, Inc. v. Gish, 286 S.W.3d 306 (Tex. 2009) (no‑evidence summary judgment review limited to evidence presented by motion and response)
- Ford Motor Co. v. Ledesma, 242 S.W.3d 32 (Tex. 2007) (omissions in experts’ consideration of facts go to weight, not admissibility)
- Allbritton v. Gillespie, Rozen, Tanner & Watsky, P.C., 180 S.W.3d 889 (Tex. App.—Dallas 2005, pet. denied) (trial court abused discretion by striking affidavit that listed documents reviewed and provided reasoned basis)