law-malpractice-legal | professional liability | standard of care, misconduct, neglect, negligence, gross negligence,
negligence per se | suit within suit element | medical malpractice case law | client grievances | attorney-client
disputes and litigation | grievance process | excessive attorney's fees | charging an unsconscionable fee |
Legal Malpractice Cases Decided by the Texas Supreme Court
Smith v. O'Donnell, No. 07-0697 (Tex. Jun. 26, 2009)(O'Neill)(PROBATE LAW: legal malpractice suit by executor
of estate against decedent's attorney, non-estate planning context, gross negligence, malice standard)
PAUL H. SMITH, ET AL. v. THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN DENNEY; from
Bexar County; 4th district (04-04-00108-CV, 234 SW3d 135, 07-25-07) 2 petitions
The Court affirms the court of appeals' judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Brister, Justice Medina,
and Justice Johnson joined. [pdf - 11 pgs]
Justice Willett delivered a dissenting opinion, in which Justice Wainwright joined. [pdf]
(Justice Hecht and Justice Green not sitting)
Court of Appeals Cases involving Legal Malpractice Claims in which the Supreme Court
Denied Review
09-0718
R.W. ROGERS, SR. v. LAYNE HARWELL AND NELDA HARRIS; from Tarrant County; 2nd district (02-08-00376-
CV, ___ SW3d ___, 05-28-09, pet denied Oct 2009) (prisoner's malpractice suit against criminal defense
attorney properly dismissed)
08-0546
MARK SWANK AND JAMES J. MCCOY, JR., INDIVIDUALLY AND IN THEIR DERIVATIVE CAPACITY ON BEHALF
OF APPLIED MARINE PROPULSION SERVICES, INC. v. LLOYD R. CUNNINGHAM, MARTI L. BATSON,
CUNNINGHAM & ASSOCIATES, P.C., KEVIN J. MCEVILY, RICHARD L. FLOWERS, JR., MCEVILY & FLOWERS,
JOHN L. VERNER, AUBREY CALVIN, THE CALVIN LAW FIRM, MICHAEL MALONE AND BATTLE FOWLER, L.L.
P.; from Harris County; 11th district (11‑06‑00172‑CV, 258 SW3d 647, 03-27-08)(legal malpractice, breaches of
fiduciary duties, conspiracy, conversion, and fraud)
For the reasons set forth above, the trial court properly granted summary judgment to appellees on the following
grounds: (1) that Swank and McCoy lack standing to assert their claims; (2) that Swank's and McCoy's causation
and damages theories are fatally speculative; and (3) that Swank and McCoy are not entitled to fee
disgorgement. Because summary judgment was proper on these grounds, we need not address the merits of the
other summary judgment grounds advanced by appellees. We overrule Swank's and McCoy's appellate issues.
Legal Malpractice
To prevail on a legal malpractice claim, a plaintiff 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.” Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004); Greathouse v. McConnell, 982
S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied). If a legal malpractice case arises from prior
litigation, a plaintiff must prove that, but for the attorney’s breach of his duty, the plaintiff would have prevailed in
the underlying case. Greathouse, 982 S.W.2d at 172. Cases often refer to this causation aspect of the plaintiff’s
burden as the “suit-within-a-suit” requirement. See id. at 173. In general, one proves causation in a legal
malpractice suit by expert testimony. See Alexander, 146 S.W.3d at 119–20.
The determination of proximate cause is usually a question of fact. See El Chico Corp. v. Poole, 732 S.W.2d 306,
313–14 (Tex. 1987). This is true in legal malpractice actions as well. In cases of appellate legal malpractice,
however, the determination of causation requires determining whether the appeal in the underlying action would
have been successful. Id. The plaintiff must show that but for the attorney’s negligence the client would have
prevailed on appeal. See Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex. Civ. App.—
Houston [1st Dist.] 1974, writ ref’d n.r.e.). The rationale for requiring this determination is that, if the appeal would
not have succeeded and the trial court judgment would have been affirmed, the attorney’s negligence could not
have caused the plaintiff any damage. Id. On the other hand, if the appeal would have succeeded in reversing
the trial court’s judgment and obtaining a more favorable result, then the plaintiff sustained damage because of
the attorney’s negligence. Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex. 1989). In cases involving
appellate legal malpractice, the question of whether an appeal would have been successful depends on an
analysis of the law and the procedural rules. As the Millhouse court noted, because this requires a review of the
trial record and the briefs in order to determine whether the trial court committed reversible error, “a judge is
clearly in a better position” to do this than is a jury. Id. at 628. Therefore, where the issue of causation hinges on
the possible outcome of an appeal, the question of causation is to be resolved by the court as a question of law.
Id.; Klein v. Reynolds, Cunningham, Peterson & Cordell, 923 S.W.2d 45, 47 (Tex. App.—Houston [1st Dist.] 1995,
no writ).
08-0499
REBECCA DUNN GRIDER v. MIKE O'BRIEN, P.C., O'QUINN & LAMINACK, AND ITS SUCCESSORS IN INTEREST,
THE O'QUINN FIRM, JOHN M. O'QUINN, AND KAISER & MAY, L.L.P.; from Harris County; 1st district
(01-07-00006-CV, ___ SW3d ___, 05-08-08)(legal malpractice suit stemming from medical malpractice suit)
Grider contends that the Corpus Christi Court of Appeals’ opinion shows what the outcome of the appeal at the
intermediate level would have been—reverse and render in part and remand in part. The law firms argue,
however, that, because the Corpus Christi Court of Appeals lacked jurisdiction to hear the appeal, its opinion is
void and “should be regarded as if it never existed.” We agree with the law firms. See Cleveland v. Ward, 285 S.
W. 1063, 1071 (Tex. 1926) (judgment that is later reversed by higher court is null and void); Hudson v. Winn, 859
S.W.2d 504, 506 (Tex. App.—Houston [1st Dist.] 1993, writ denied) (when court lacks jurisdiction, any action
taken by court is void and should be regarded as if it never existed). The law firms further contend that the trial
court in the appellate legal malpractice case was required to review the entire record in the underlying case “in
order broadly to determine whether the trial court [in the medical malpractice case] committed reversible error.”
They assert that the trial court in the appellate legal malpractice case can, as the “sole and final arbiter of all
appellate issues, decide the issue of causation as a matter of law.” Again, we agree.