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CAUSE OF ACTION FOR LEGAL MALPRACTICE IN TEXAS
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, and (3) the breach proximately
caused the plaintiff's actual damages. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117
(Tex. 2004).
Generally, to recover on a legal malpractice claim, a plaintiff must prove 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. Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995). Thus, to prevail on her legal
malpractice claim, Orcutt must prove that she was damaged. See Peeler, 909 S.W.2d at 496. Uncertainty as
to the fact of legal damages is “fatal to recovery.” Spera v. Fleming, Hovenkamp & Grayson, P.C., 25 S.W.3d
863, 874 (Tex. App.—Houston [14th Dist.] 2000, no pet.) (quoting McKnight v. Hill & Hill Exterminators, Inc.,
689 S.W.2d 206, 207 (Tex.1985)); see also Sw. Battery Corp. v. Owen, 131 Tex. 423, 115 S.W.2d 1097, 1098-
99 (1938) (“[U]ncertainty as to the fact of legal damages is fatal to recovery, but uncertainty as to the amount
will not defeat recovery.”) Remote damages, or those damages that are purely conjectural, speculative, or
contingent, are too uncertain to be ascertained and cannot be recovered. See id; Westech Eng’g, Inc. v.
Clearwater Constructors, Inc., 835 S.W.2d 190, 205 (Tex. App.—Austin 1992, no writ).
To prevail on a claim for legal malpractice, a plaintiff must demonstrate 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) (quoting Peeler v.
Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995)). When the plaintiff alleges that a failure on the attorney's
part caused an adverse result in prior litigation, the plaintiff must produce evidence from which a jury may
reasonably infer that the attorney's conduct caused the damages alleged. Id. (citing Haynes & Boone v.
Bowser Bouldin, Ltd., 896 S.W.2d 179, 181 (Tex. 1995)). The trier of fact must have "some basis for
understanding the causal link between the attorney's negligence and the client's harm." Id. at 119. Breach of
the standard of care and causation are separate inquiries, "and an abundance of evidence as to one cannot
substitute for a deficiency of evidence as to the other." Id.
ATTORNEY MALPRACTICE -
CASE LAW SNIPPETS FROM HOUSTON COURTS OF APPEALS
Elements of legal malpractice claim - but-for element for suit based on prior suit
Source: Duerr v. Brown et al (Tex.App.- Houston [14th Dist.] July 3, 2008)(Boyce)
(legal malpractice, breach of fiduciary duty, BoFD, continuance)
A legal malpractice plaintiff must prove: (1) the attorney owed the plaintiff a duty of care; (2) the attorney
breached that duty; (3) the breach proximately caused the plaintiff's injuries; and (4) damage occurred. Farah
v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 670 (Tex. App.- Houston [1st Dist.] 1996, no writ). A legal
malpractice claim must be supported by expert testimony. See Alexander v. Turtur & Assocs., Inc., 146 S.W.
3d 113, 119-20 (Tex. 2004).
When the asserted legal malpractice involves the results of prior litigation, the plaintiff bears the additional
burden of proving that, "but for" the attorney's breach of duty, he would have prevailed on the underlying
cause of action and would have been entitled to judgment. See Greathouse, 982 S.W.2d at 172; Schlager v.
Clements, 939 S.W.2d 183, 186-87 (Tex. App.- Houston [14th Dist.] 1996, writ denied). This requirement is
known as the "suit within a suit" requirement. See Greathouse, 982 S.W.2d at 173.
*** To establish a viable legal malpractice claim, Duerr had to establish that he would have prevailed on the
allegedly mishandled claims. Lyon's affidavit did not establish this requirement. Aiken, 115 S.W.3d at 29;
Greathouse, 982 S.W.2d at 172. Therefore, Duerr's legal malpractice against Fleming would not have
survived Rule 166(a)(i) even if Lyon's affidavit had been considered.
Malpractice as negligence
A legal malpractice claim focuses on whether an attorney represented a client with the requisite level of skill,
while a breach of fiduciary duty claim encompasses whether an attorney obtained an improper benefit from the
representation. See Aiken v. Hancock, 115 S.W.3d 26, 28 (Tex. App.- San Antonio 2003, pet. denied).
Breach of fiduciary duty involves conduct including failure to disclose conflicts of interest; a failure to deliver
funds belonging to the client; placing personal interests ahead of a client's interests; misuse of client
confidences; taking advantage of the client' trust; engaging in self-dealing; and making material
misrepresentations. See Goffney, 56 S.W.3d at 193.
Source: Duerr v. Brown et al (Tex.App.- Houston [14th Dist.] July 3, 2008)(Boyce)
(legal malpractice, breach of fiduciary duty, BoFD, continuance)
Malpractice v. breach of fiduciary duty
Duerr's first theory is that Brown and Fleming breached their fiduciary duty to him because they promised him
a larger recovery net of attorney's fees than he ultimately received. Duerr alleges that the proper information
was not filed under the matrices governing additional compensation; items were filed incorrectly; improper
information was filed; and an administrative appeal from the denial of benefits was not pursued timely or to its
fullest extent. Duerr alleged that Brown and Fleming had opportunities to correct these asserted errors, and
"may have mitigated the negligence of all Defendants" had they done so.
These are allegations that Duerr's "attorney[s] did not exercise that degree of care, skill, or diligence as
attorneys of ordinary skill and knowledge commonly possess." See Deutsch, 97 S.W.3d at 189; see also
Murphy, 241 S.W.3d at 692-93 (giving erroneous legal opinion or advice, delaying or failing to handle a
matter, or not using ordinary care in preparing, managing, and prosecuting a case constitutes legal
malpractice); Goffney, 56 S.W.3d at 193 (allegations attorney abandoned client at trial, did not properly
prepare lawsuit for trial, and misled client into believing attorney was prepared for trial were claims for legal
malpractice). Because Duerr's first theory focuses on the quality of representation provided, it alleges legal
malpractice and nothing more. See Greathouse, 982 S.W.2d at 172 (when the crux of complaint is failure to
provide adequate legal representation, the claim asserts legal malpractice).
Decisions from the Houston Courts of Appeals in Legal Malpractice Cases
Duerr v. Brown et al (Tex.App.- Houston [14th Dist.] July 3, 2008)(Boyce)
(legal malpractice, breach of fiduciary duty, BoFD, claim splitting, expert testimony to prove malpractice,
failure to produce expert, continuance properly denied)
AFFIRMED: Opinion by Justice Boyce
Before Chief Justice Hedges, Justices Hudson and Boyce
14-07-00619-CV Scott Duerr and Kimberly Duerr v. Ron Brown, Aaron Dickey, Brown & Crouppen, P.C.,
George Fleming, Andres Pereira, and Fleming & Associates, L.L.P.
Appeal from 334th District Court of Harris County
Trial Court Judge: Sharon McCally
Trousdale v. Henry (Tex.App.- Houston [14th Dist.] June 24, 2008)(Fowler)
(legal malpractice, claim splitting, fractioning, applicable statute of limitations for negligence and breach of
fiduciary duty, tolling, discovery rule)
AFFIRMED IN PART; REVERSED & REMANDED IN PART: Opinion by Justice Fowler Before Justices Brock
Yates, Fowler and Guzman
14-06-00848-CV Lenieta Wylene Trousdale v. Annette M. Henry, R. Christopher Bell and Bell & Henry, L.L.P.
Appeal from 129th District Court of Harris County
Trial Court Judge: Samuel Grant Dorfman
Concurring and Dissenting Opinion by Justice Guzman (legal malpractice claims should not be
splintered into different causes of action).
Grider v. Mike O'Brien, PC (Tex.App.- Houston [1st Dist.] May 8, 2008)(Hanks)
(legal malpractice suit stemming from medical malpractice suit)
AFFIRM TC JUDGMENT: Opinion by Justice Hanks
Before Justices Taft, Nuchia and Hanks
01-07-00006-CV Rebecca Dunn Grider v. Mike O'Brien, P.C., O'Quinn & Laminack, and its Successor in
Interest, The O'Quinn Firm, John M. O'Quinn, and Kaiser & May, L.L.P.
Appeal from 127th District Court of Harris County
Trial Court Judge: Hon. Sharolyn P. Wood\
In re Michael Medina (Tex.App.- Houston [1st Dist.] Dec. 6, 2007)(Hanks)
(IME, mental injury, legal malpractice, multiple plaintiffs)
GRANT PETITION FOR WRIT OF MANDAMUS: Opinion by Justice Hanks
Before Justices Taft, Hanks and Higley
01-07-00747-CV In re Michael Medina, et al
Appeal from 212th District Court of Galveston County (Hon. Susan Elizabeth Criss)
McLendon v. Detoto (Tex.App.- Houston [14th Dist.] Jul. 3, 2007)(Hudson)(malpractice legal)
AFFIRMED: Opinion by Justice Hudson
Before Chief Justice Hedges, Justices Hudson and Guzman
14-06-00658-CV Robert McLendon v. Richard Gregory "Rick" Detoto
Appeal from 334th District Court of Harris County (no judge shown on docket)
Moser v. Junell (Tex.App.- Houston [1st Dist.] Feb. 1, 2007)(Bland)
(legal malpractice, limitations, equitable tolling)
REVERSE TC JUDGMENT AND REMAND CASE TO TC FOR FURTHER PROCEEDINGS:
Opinion by Justice Bland
Before Chief Justice Radack, Justices Alcala and Bland
01-04-00078-CV Moser, Independent Administrator for Estate of Whitsett v. Junell, Jr. and Andrews &
Kurth L.L.P.--Appeal from 151st District Court of Harris County
Trial Court Judge: Hon. Caroline E. Baker
NOTEWORTHY LEGAL MALPRACTICE ACTIONS FILED IN HARRIS COUNTY
Wife of R. Allen Stanford sues divorce lawyers for $200 million in damages along with fee forfeitures for
alleged legal malpractice in connection with an alleged oral settlement offer of $200 million. See Original
Petition in Cause No. 2009-61538 Susan Stanford v. Nancy Rommelmann dba The Law Offices of Nancy
Rommelmann, Pavlas, Brown & York, L.L.P. (attorney malpractice).
The lawsuit was assigned to the 333rd District Court, the Hon. Tad Halbach presiding.
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