Robert B. Taylor v. Alonso, Cersonsky & Garcia, P.C., James A. Cersonsky, John Causey, and Hope and Causey, P.C.

Citations: 395 S.W.3d 178; 2012 WL 3773041; 2012 Tex. App. LEXIS 7662Docket: 01-11-00078-CV

Court: Court of Appeals of Texas; August 30, 2012; Texas; State Appellate Court

Original Court Document: View Document

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On August 30, 2012, the Texas Court of Appeals issued an opinion in case NO. 01-11-00078-CV, where Robert B. Taylor appealed a summary judgment rendered in favor of his former attorneys, James A. Cersonsky and John Causey, following a legal malpractice claim. Taylor was involved in a serious car accident in July 2005, resulting in a passenger, Russell Fullen, suffering a permanent vegetative state with estimated future medical costs of around $20 million. Taylor, who was 78 years old at the time, was charged with a moving violation related to the accident, as the accident report indicated he drove on the wrong side of the road.

Initially represented by Cersonsky and Alonso, Cersonsky, Garcia, P.C., Taylor later transitioned to representation by Causey and Hope and Causey, P.C. After paying $3 million to settle the lawsuit brought by Fullen’s family, exceeding his $250,000 insurance coverage, Taylor filed claims against his former attorneys for legal malpractice, gross negligence, and breach of fiduciary duty. Both attorneys moved for summary judgment, which the trial court granted, resulting in a take-nothing judgment against Taylor.

In his appeal, Taylor contended that the trial court erred by granting summary judgment, asserting that he had raised factual disputes regarding the essential elements of his claims. However, the appellate court affirmed the trial court’s decision, concluding that the summary judgment was correctly granted. The background highlighted that Allstate Insurance Company, Taylor’s insurer, had informed him of potential liability exceeding his policy limits and that Taylor had attempted, unsuccessfully, to protect his financial information during the litigation process initiated by Fullen's family.

Cersonsky, who does not manage appeals, directed Allstate to assign Taylor's case to another attorney, Causey, and withdrew after five months of representation, during which no trial schedule or settlement discussions occurred. Following Cersonsky's withdrawal in July 2006, Allstate engaged Causey, and the case ultimately settled eighteen months later after several developments unfavorable to Taylor. Fullen amended his petition to include a fraudulent transfer claim against Taylor and others, revealing that Taylor had transferred significant assets post-accident to shield them from potential judgment. Fullen secured a temporary restraining order to prevent asset transfers during litigation. The trial court denied Taylor's summary judgment motion regarding Fullen's gross negligence claim, leaving Taylor vulnerable to exemplary damages. Evidence surfaced indicating Taylor’s contributory fault in the accident, as shown by an accident reconstruction expert and an eyewitness testimony. Mediation occurred shortly before the trial, resulting in Allstate offering $250,000, while Taylor agreed to pay $3 million to settle all related claims. 

In February 2008, Taylor sued Cersonsky, Causey, and Allstate for legal malpractice, alleging that his attorneys failed to investigate defenses that could have benefitted him, particularly regarding Fullen's failure to wear a seat belt. Although Causey later raised this defense, Taylor argued it was insufficient due to late designation of an expert. Taylor claimed that Cersonsky and Causey prioritized their own and Allstate's interests over his, as they were incentivized by a flat fee structure, which hindered timely case development. Additionally, Taylor sued Allstate for tortious interference, breach of contract, and violations of the DTPA and Insurance Code. The trial court granted Allstate's summary judgment motion and severed the claims against it; Taylor appealed, and the court partially affirmed while reversing and remanding the DTPA and Insurance Code claims.

Donato, Taylor's legal expert, claims that Cersonsky and Causey failed to disclose their fee arrangements with Allstate, which constitutes improper conduct. Both Cersonsky and Causey filed motions for summary judgment on all of Taylor’s claims, arguing that Taylor lacked evidence of causation, specifically failing to establish the "suit within a suit" aspect of his legal malpractice claim. Cersonsky further contended that his early withdrawal from the case severed the chain of causation.

In response, Taylor presented affidavits from three experts: John Lenox, a biomechanical engineering expert, who testified that Fullen would not have suffered serious injuries had he been wearing a seatbelt; William Greenlees, an accident reconstruction expert; and Donato, who stated that both Cersonsky and Causey breached the standard of care, leading to Taylor’s damages. Donato asserted that their inadequate investigation and preparation regarding the accident resulted in a case valuation that could have been limited to Allstate's policy limits, suggesting a probable defense verdict and pretrial settlement had proper procedures been followed.

The trial court granted the summary judgment motions, prompting Taylor to appeal, arguing that the court erred in its decision. The standard of review for summary judgment is de novo, and if the court does not specify grounds, the judgment is upheld if any ground is valid. In summary judgment motions, the movant must specify the grounds, and the court must accept evidence favoring the nonmovant and resolve doubts in their favor.

Legal malpractice claims are based on negligence, requiring proof that the attorney owed a duty, breached that duty, and that the breach caused damages. For claims related to prior litigation, the plaintiff must demonstrate that success in that case would have occurred but for the attorney's breach.

Cersonsky's motion for summary judgment on Taylor's claims was granted on the basis that his withdrawal and Causey's subsequent representation severed the causation link to Taylor's alleged damages. The court found that Taylor did not demonstrate how Cersonsky’s actions during the five months of representation contributed to any harm, especially since there was no trial date set at the time of withdrawal, and Causey took over nearly eighteen months before mediation and trial. An affidavit by Donato did not establish that Cersonsky's involvement hampered Causey’s representation. 

In contrast, Taylor's claims against Causey involved allegations of malpractice, supported by Donato's affidavit, which outlined several alleged failures, including not interviewing key witnesses early and not developing a defense based on the lack of seat belt use. Donato argued that a competent attorney would have effectively pursued this defense, potentially reducing or eliminating Taylor’s liability, which he estimated could have kept the case within Allstate's policy limits and saved Taylor from any financial contribution to the settlement. However, the expert's assertions must connect causation of injury directly to the alleged negligence, requiring a detailed explanation of how the failures linked to Taylor's damages.

Access to the underlying facts and data of an expert's testimony is essential for accurately assessing its value. An opinion regarding causation without these underlying facts is considered conclusory and lacks probative value, meaning it cannot influence a summary judgment outcome. The legal standard emphasizes that the foundation of a witness's opinion is crucial, rather than the witness's qualifications or opinions alone. In the case of Burrow, the Supreme Court of Texas found that an expert's affidavit in a legal malpractice lawsuit was conclusory because it failed to explain the basis for the expert's conclusion that the clients had been reasonably compensated. Similarly, Donato's affidavit lacks sufficient explanation regarding how Causey caused Taylor’s damages, particularly failing to justify the assertion that a competent attorney would have achieved a better outcome concerning the seat belt defense. The affidavit assumes without explanation that the trial court would have made certain legal rulings regarding seat belt non-use, which are pivotal to the case. Historically, Texas law did not allow seat belt use to be presented to juries, but recent legislative changes have allowed this defense, giving defendants a strategic advantage in assessing liability and injury causation. Competent plaintiff attorneys have opposed this legislative change due to its potential negative impact on their clients. The text concludes that had the defense attorneys properly adhered to the standard of care by timely engaging experts, it is likely that a trial would have yielded a defense verdict or a favorable pretrial settlement for the insurance company.

Texas Transportation Code section 545.413(g), which prohibited the admissibility of seat belt use or nonuse as evidence in civil trials, was repealed in 2003. Donato presumes that this repeal automatically allows for the consideration of a plaintiff's failure to wear a seat belt in court, and that the trial judge would have reduced liability based on the jury's findings regarding the injuries that could have been mitigated by seat belt use. However, he fails to provide a legal basis or supporting authorities for these assumptions, reflecting the unsettled nature of Texas law on this issue. Research reveals no Texas Supreme Court or appellate decisions discussing the repeal's implications or how seat belt usage should be addressed in jury instructions. Federal court rulings, such as Trenado v. Cooper Tire, contradict Donato's assumptions, indicating that the repeal does not render seat belt evidence per se admissible and that an injured party's failure to wear a seat belt does not contribute to the accident or constitute a failure to mitigate damages. Donato's analysis lacks clarity on how these legal uncertainties would have affected trial outcomes, and he does not address critical factors such as the severity of the injuries, the substantial medical costs involved, the fraudulent transfer claim by Fullen against Taylor, the summary judgment loss on the gross negligence claim, or the police and expert findings attributing fault to Taylor. Consequently, Donato's affidavit fails to adequately demonstrate that the trial results would have likely favored Taylor, rendering it insufficient to establish a fact issue on causation related to alleged malpractice.

Taylor's gross negligence claims against Cersonsky and Causey were properly dismissed through summary judgment. The court noted a dispute regarding whether Taylor brought solely legal malpractice claims or also a breach of fiduciary duty claim. Taylor argued that his allegations of divided loyalties indicated a breach of fiduciary duty, citing the lawyers' failure to disclose their fee arrangement with Allstate and the potential waiver of Fullen's medical lien, as well as their alleged prioritization of Allstate's interests over his defense. The former lawyers contended that these allegations merely reflected dissatisfaction with their representation, qualifying only as malpractice claims. The court found that Taylor did not raise a factual issue regarding causation, which is essential for both legal malpractice and breach of fiduciary duty claims related to damages from underlying litigation. Since Taylor failed to establish this causation, it was irrelevant whether he claimed malpractice alone or both malpractice and breach of fiduciary duty. Consequently, any possible breach of fiduciary duty claims were also invalidated due to this failure. The trial court's judgment was affirmed.