This page has some points of Texas law that seem to arise often in legal malpractice suits.

These state research link pages are used by us as research portals for our own research on legal, insurance, or ethics matters.  They may be helpful to you, so we leave them on the public portion of the site.

But --- periodically, we clean off everything on a state research page, and rebuild the page only as we do research in that state.  This means  sometimes you will not find any entry portals on a particular page of a state research page.

We also keep, here, at the top of this page, a few notes on handy sources.

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Summary Judgement. A party moving for summary judgment has the burden of proving there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Nixon v. Mr. Property Mgmt., 690 S.W.2d 546, 548 (Tex. 1985); Farah v. Mafrige & Kormanik, 927 S.W.2d 663, 670 (Tex. App.-Houston [1st Dist.] 1996, no writ). When deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. Nixon, 690 S.W.2d. at 548-49. Every reasonable inference must be indulged in favor of the non-movant and any doubts resolved in its favor. Nixon, 690 S.W.2d at 548-49. When a defendant moves for summary judgment, it must either: (1) disprove at least one element of the plaintiff's cause of action; or (2) plead and conclusively establish each essential element of its affirmative defense, thereby rebutting the plaintiff's cause of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995); Farah, 927 S.W.2d at 670. 

Privity Requirement. Texas does not recognize a cause of action for legal malpractice by a party not in privity with the allegedly offending attorney. Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex. 1996); Thompson v. Vinson & Elkins, 859 S.W.2d 617, 621 (Tex. App.-Houston [1st Dist.] 1993, writ denied). In such cases, the courts have found no reason for an exception to the requirement of privity, and have held an attorney owes no duty to third parties who are not his clients, even when the third party is damaged by the attorney's negligent representation of the client. Barcelo, 923 S.W.2d at 577. This ensures that attorneys may, in all cases, zealously represent their clients without the threat of suit from third parties compromising that representation. Id. at 578- 79.

See Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., No. 14-00-00765-CV (Tex.App. Dist.14 08/29/2002) which states:

The attorney-client relationship is a contractual relationship whereby an attorney agrees to render professional services for a client. Mellon Serv. Co. v. Touche Ross & Co., 17 S.W.3d 432, 437 (Tex. App.CHouston [1st Dist.] 2000, no pet.). The relationship may be expressly created by contract, or it may be implied from the actions of the parties. Sutton v. Estate of McCormick, 47 S.W.3d 179, 182 (Tex. App.CCorpus Christi 2001, no pet.); Vinson & Elkins v. Moran, 946 S.W.2d 381, 405 (Tex. App.CHouston [14th Dist.] 1997, writ dism'd by agr.). The determination of whether there is a meeting of the minds must be based on objective standards of what the parties did and said and not on their alleged subjective states of mind. Terrell v. State, 891 S.W.2d 307, 313 (Tex. App.CEl Paso 1994, pet. ref'd). A question of fact exists when the evidence does not conclusively establish the existence of an attorney-client relationship. Sutton, 47 S.W.3d at 182; Kanow v. Brownshadel, 691 S.W.2d 804, 805-06 (Tex. App.CHouston [1st Dist.] 1985, no writ).

Fiduciary Relationship. See Tanox, Inc. v. Akin, Gump, Strauss, Hauer & Feld, L.L.P., No. 14-00-00765-CV (Tex.App. Dist.14 08/29/2002) which states:

A fiduciary relationship exists between attorneys and clients as a matter of law. Arce v. Burrow, 958 S.W.2d 239, 246 (Tex. App.CHouston [14th Dist.] 1997) (op. on reh'g), aff'd as modified, 997 S.W.2d 229 (Tex. 1999). The term fiduciary ">refers to integrity and fidelity.'" Id. (quoting Kinsbach Tool Co. v. Corbett-Wallace Corp., 138 Tex. 565, 160 S.W.2d 509, 512 (1942)). Therefore, the attorney-client relationship is one of "most abundant good faith," requiring absolute perfect candor, openness and honesty, and the absence of any concealment or deception. Perez v. Kirk & Carrigan, 822 S.W.2d 261, 265 (Tex. App.CCorpus Christi 1991, writ denied) (citing Hefner v. State, 735 S.W.2d 608, 624 (Tex. App.CDallas 1987, pet. ref'd)).

LIABILITY THEORIES

In Texas, generally causes of action (claims for relief) in legal malpractice cases are limited to the theory of legal malpractice (negligence).  Usually, breach of fiduciary duty,  bad faith, warranty breach, et cetra are not allowed, on the reasoning that they all have at bottom the claim of legal malpractice. 

Fiduciary Duty in Forming Attorney Client Relationship. However, a claim can be made for unfairness in forming the original attorney-client contract, as distinguished from how the contract was performed.  The attorney-client relationship is highly fiduciary in nature. Judwin Properties v. Griggs & Harrison, 911 S.W.2d 498, 506 (Tex. App.-Houston [1st Dist.] 1995, no writ). This relationship carries the utmost good faith. Id. A cause of action for breach of fiduciary duty in Texas refers to unfairness in the contract, and the burden of showing fairness is on the attorney. Id. Unless the client raises the issue of unfairness or inequitable conduct, however, the presumption of unfairness will not arise. Daugherty v. Ray, No. 01-00-00311-CV (Tex.App. Dist.1 04/04/2002) 2002.TX.0002045 <http://www.versuslaw.com>

Deceptive Trade Practices Act.  Ordinarily the Texas courts do not allow legal malpractice claims to be brought under other theories, such as breach of contract.  However the case of Latham v. Castillo, 972 SW2d 66 (TX 1998) has this to say [at page 69):

Latham argues, however, that the Castillos' DTPA claim is essentially a dressed-up legal malpractice claim. Therefore, he asserts, the Castillos must prove that they would have won the medical malpractice case for Kay's death in order to recover. Because they did not present any evidence on this, Latham argues, the Castillos cannot recover. We disagree.

The legislative intent in enacting the DTPA was to provide plaintiffs a remedy where the common law fails. See Woo v. Great Southwestern Acceptance Corp., 565 S.W.2d 290, 298 (Tex.Civ.App.--Waco 1978, writ ref'd n.r.e.). Section 17.43 states that the remedies provided by the Act "are in addition to any other procedures or remedies provided for in any other law." TEX. BUS. & COM.CODE § 17.43 (emphasis added). Moreover, the Legislature mandates that the DTPA is to be "liberally construed and applied to promote its underlying purposes." Id. § 17.44. Recasting the Castillos' DTPA claim as merely a legal malpractice claim would subvert the Legislature's clear purpose in enacting the DTPA--to deter deceptive business practices.

If the Castillos had only alleged that Latham negligently failed to timely file their claim, their claim would properly be one for legal malpractice. However, the Castillos alleged and presented some evidence that Latham affirmatively misrepresented to them that he had filed and was actively prosecuting their claim. It is the difference between negligent conduct and deceptive conduct. To recast this claim as one for legal malpractice is to ignore this distinction. The Legislature enacted the DTPA to curtail this type of deceptive conduct. Thus, the DTPA does not require and the Castillos need not prove the "suit within a suit" element when suing an attorney under the DTPA. The Castillos have presented some evidence of unconscionable action.

It is not enough that the Castillos merely prove an unconscionable action or course of action by Latham, however. Latham's unconscionable action must have been the producing cause of actual damages. TEX. BUS. & COM.CODE § 17.50(a). Latham argues that the Castillos cannot recover mental anguish damages under the DTPA without first proving an economic injury. We disagree.

Section 17.50(a) of the DTPA, as it appeared when this suit was filed, indicated that "[a] consumer may maintain an action where any of the following constitute a producing cause of actual damages. " TEX. BUS. & COM.CODE § 17.50(a) (emphasis added). 3 We have stated that the term "actual damages," as used in the DTPA, means those recoverable at common law. Brown v. American Transfer & Storage Co., 601 S.W.2d 931, 939 (Tex.1980). It is axiomatic that mental anguish damages are actual damages recoverable at common law for "some common law torts ..., and by analogy for knowing violations of certain statutes such as the Deceptive Trade Practices Act." City of Tyler v. Likes, 962 S.W.2d 489, 495 (Tex.1997) (citations omitted). Therefore, the Castillos do not have to first prove that they have suffered economic damages in order to recover mental anguish damages. The Castillos have satisfied their burden on the damages element of a DTPA cause of action if they have presented some evidence of mental anguish.

In Parkway Co. v. Woodruff, 901 S.W.2d 434 (Tex.1995), we established the evidentiary requirements for recovery of mental anguish damages. To survive a legal sufficiency challenge, plaintiffs must present "direct evidence of the nature, duration, and severity of their mental anguish, thus establishing a substantial disruption in the plaintiffs' daily routine." Id. at 444. If there is no direct evidence, the Court will apply "traditional 'no evidence' standards to determine whether the record reveals any evidence of 'a high degree of mental pain and distress' that is 'more than mere worry, anxiety, vexation, embarrassment, or anger' to support any award of damages." Id. (citation omitted).

However, this case must be taken with a grain of salt, in view of later pronouncements by the Court on the subject of putting legal malpractice claims into other formats.  

INSURANCE COMPANIES ATTORNEYS DEFENDING INSUREDS

Employer's Cas. Co. v. Tilley, 496 SW 2d 552 (TX 1973)., see also State Farm Mut. Auto. Ins. Co. V. Travers, 980 SW 2d 625 (TX 1996)establishes in Texas that insurance defense attorneys owe an unqualified duty of loyalty to the insured as their only client.

FEE FORFEITURE

Fee forfeiture: the Texas Supreme Court has held that if attorney breaches a fiduciary duty to client, client may seek forfeiture of attorney's fee. No actual damages to client required, jury resolves any actual disputes, but court (sitting in equity) decides actual amount of forfeiture, if any.  Burrow v. Arce, 997 S.W.2d 229 (Tex. 1999).
 

EXPERT MUST MAKE INDEPENDENT EXAMINATION

Bell v. Phillips, No. 14-00-01189-CV (Tex.App. Dist.14 04/18/2002) says, in part:

[44] An expert's deposition opposing a motion for summary judgment must present probative evidence of the facts at issue; an expert deposition or affidavit that gives no basis for its opinions is conclusory and not sufficient to raise fact issues. See Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999); Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). Similarly, if an expert's opinion is based on facts that are materially different from those in evidence, the opinion is not evidence. General Motors Corp. v. Sanchez, 997 S.W.2d 584, 596 (Tex. 1999). To offer an expert opinion: (1) the witness must be qualified; (2) the proposed testimony must be scientific, technical, or consist of other specialized knowledge; and (3) the testimony must assist the trier of fact in understanding the evidence or determining a fact at issue. See TEX. R. CIV. P. 702; E.I. du Pont de Nemours and Co., Inc. v. Robinson, 923 S.W.2d 549, 552 (Tex. 1995).

[45] To negate the causation and damages elements of Wanda's claims, Phillips asserts: * * * *[46] (1) Wanda's expert testimony was not based on underlying facts, and thus is insufficient as a matter of law;. . . . .. Wanda primarily relies on the depositions of her husband, Robert, and of her expert, attorney John Gladney, which she contends are sufficient to raise a fact issue.

[47] John Gladney's Deposition Testimony. [48] Gladney testified that Phillips breached the standard of care because "a reasonable and prudent attorney would have filed a new and separate lawsuit on Wanda's behalf as soon as she obtained standing to sue." Gladney stated that Phillips fell below this standard of care by waiting so long to pursue her claim that he had to file a bill of review on her behalf instead of a new lawsuit (when the claim in intervention was not successful), * * * *

[50] * * * *, Gladney's expert opinions are unsupported. Gladney testified that he had read the underlying court of appeals opinion, some interrogatories, and the contingency fee agreement between Phillips and Wanda, and that he relied primarily on information he had received from Wanda. Gladney did not review any of the pleadings, correspondence, deposition transcripts, motions, or any expert reports in the underlying litigation nor did he meet with Phillips. Gladney performed no independent investigation as to whether Wanda even had a valid claim against BMC. In fact, Gladney conceded that if it turned out Wanda's claim was not valid, then she would have suffered no damages.

[51] An expert may rely on inadmissible facts or data in forming an opinion if they are of the type reasonably relied on by other experts to make opinions or draw inferences. TEX. R. CIV. P. 703; Baylor Medical Plaza Servs. Corp. v. Kidd, 834 S.W.2d 69, 76 (Tex. App.--Texarkana 1992, writ denied). Therefore, Gladney's reliance upon hearsay does not necessarily render his opinions incompetent if hearsay is the type of evidence relied upon by attorneys in forming opinions or inferences. See General Electric Co. v. Kunze, 747 S.W.2d 826, 831-32 (Tex. App.--Waco 1987, writ denied). An expert witness testifying on the subject of the proper standard of legal care and alleged legal malpractice would not rely solely on the factual assertions of an interested party in forming an opinion. See Hall v. Rutherford, 911 S.W.2d 422, 426 (Tex. App.--San Antonio 1999, pet. denied.). Because Gladney relied primarily on Wanda's factual assertions without further exploration of the evidentiary and procedural background of the case, we conclude his testimony failed to raise any fact issues regarding the specific instances of malpractice alleged.

SUIT WITHIN SUIT

Bell v. Phillips, No. 14-00-01189-CV (Tex.App. Dist.14 04/18/2002) says, in part:

[52] Furthermore, Gladney failed to show that the underlying suit against BMC would have been successful but for the alleged negligence of Phillips. Thus, his testimony does not raise any genuine issues of material fact concerning either causation or damages. See Sipes v. Petry & Stewart, 812 S.W.2d 428, 431 (Tex. App.--San Antonio 1991, no writ) (holding in malpractice action, non-movant is required to raise a fact issue as to the producing cause of damages to defeat summary judgment, once movant has complied with its burden).

* * * * *

[66] In Texas, uncertainty as to the fact of legal damages is "fatal to recovery." McKnight v. Hill & Hill Exterminators, Inc., 689 S.W.2d 206, 207 (Tex. 1985). Because Robert's deposition testimony failed to show causation or damages, it failed to raise genuine issues of material fact on either causation or damages. See Sipes, 812 S.W.2d at 431. Phillips met his burden of establishing that Wanda suffered no damages as a result any alleged malfeasance on his part. Because Wanda failed to create a genuine issue of material fact, Phillips was entitled to summary judgment as a matter of law. We overrule Wanda's first and fourth issues.

As noted in the above Bell case, to prevail on any of legal malpractice claims, claimant must prove that he was damaged. While uncertainty as to the amount of damages is not fatal to recovery, lack of evidence or uncertainty as to the fact of damages is. Damages must be ascertainable in some manner other than by mere speculation or conjecture, and by reference to some fairly definite standard, established experience, or direct inference from known facts. Vanasek v Underkofler, 50 S.W.3d 1 (Tex.App.-Dallas 1999)

PROXIMATE CAUSE

The two elements of proximate cause are cause in fact and foreseeability. Nixon v. Mr. Property Management Co., Inc., 690 S.W.2d 546, 549 (Tex.1985). The determination of proximate cause in legal malpractice cases is usually a question of fact for the jury. Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex.1989); 7 Rhodes, 848 S.W.2d at 841.   But in determining proximate cause, the jury may need expert legal testimony.  See Onwuteaka v. Gill, 908 S.W.2d 276, 281 (Tex.App.--Houston [1st Dist.] 1995, no writ) (holding that breach of the standard of care and proximate cause must be proven by expert testimony in legal malpractice cases). In 948 S.W.2d 483 Delp v. Douglas, (Tex.App.-Fort Worth 1997) the court adopted the rule that "Expert testimony may not be appropriate or necessary ... in every legal malpractice case, particularly where the causal relationship between the attorney's legal malpractice and the client's loss is so obvious that the trier of fact can resolve the issue as a matter of common knowledge." 

Bell v. Phillips, No. 14-00-01189-CV (Tex.App. Dist.14 04/18/2002) says, in part:

[42] To recover on a legal malpractice claim, a plaintiff must show:(1) the defendant owed the plaintiff a duty; (2) the defendant breached that duty; (3) that breach proximately caused the plaintiff's injury; and (4) the plaintiff sustained damages. Cosgrove, 774 S.W.2d at 665. Texas law holds a lawyer to the standard of care exercised by a reasonably prudent attorney. Id. at 664. When a client asserts her attorney caused her to lose a cause of action, she must prove that, but for the attorney's negligence, the suit would have been successful. See Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex. 1989) (finding that in cases of appellate malpractice, the element of causation requires the plaintiff to prove that, but for the attorney's negligence, the client would have prevailed on the appeal of the underlying action). This is so because, if the underlying action would not have been successful, the attorney's negligence could not have caused the plaintiff any damage. Id.

* * * * When the determination of proximate cause is "not one that lay people would ordinarily be competent to make," it must be established by expert testimony. See Lenger v. Physician's Gen. Hosp., Inc., 455 S.W.2d 703, 708 (Tex. 1970).