Robert B. TAYLOR, Appellant v. ALONSO, CERSONSKY & GARCIA, P.C., James A. Cersonsky, John Causey, and Hope and Causey, P.C., Appellees.
No. 01-11-00078-CV
Court of Appeals of Texas, Houston (1st Dist.)
Aug. 30, 2012
356 S.W.3d 92
Allison Standish Miller, William A. Scheel, Billy Shepherd, Shepherd, Scott, Clawater & Houston, L.L.P., Alan N. Magenheim, Magenheim & Associates, William Book, Tekell, Book, Allen & Morris LLP, Houston, TX, for Appellees.
OPINION
REBECA HUDDLE, Justice.
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, 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 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
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 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 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 affir-
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 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 seri-ous 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 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
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 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
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.
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 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.
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 [1st 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 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 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 com-
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.
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 be-
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 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.
(Emphasis added.) Before its repeal in 2003,
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
One federal court concluded that the legislature‘s repeal in 2003 of
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 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
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.
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
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 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.
Conclusion
We affirm the judgment of the trial court.