legal malpractice claim in Texas

2017Discussing the elements of a legal malpractice claim, the Texas Supreme Court recently restated that “[b]reach and causation are entirely distinct such that ‘an abundance of evidence as to one cannot substitute for a deficiency of evidence as to the other.’ ” Rogers, 518 S.W.3d at 406 (citing Alexander v. Turtur & Assoc.'s Inc., 146 S.W.3d 113, 119 (Tex. 2004)).

2017The first line states, “Border Demolition has no expert testifying that Ernesto Pineda committed legal malpractice.” Then, the second line describes that expert testimony is generally needed to support a legal malpractice claim with citation to two cases provided, Alexander v. Turtur & Assoc., Inc., 146 S.W.3d 113 (Tex. 2004) and Hall v. Rutherford, 911 S.W.2d 422 (Tex.App.—San Antonio 1995, writ denied).

2021The plurality explained that “allowing civil recovery for convicts impermissibly shifts responsibility for the crime away from the convict[]” and that allowing a convicted criminal to recover damages through a legal-malpractice claim would allow that criminal “to profit by his own fraud, or take advantage of his own wrong, or to found [a] claim upon his iniquity, or to acquire property by his own crime.” Id. at 497-498 (quoting State ex. rel.

2020And as the plurality also noted, permitting a convicted criminal to recover damages through a legal-malpractice claim would allow that criminal “to profit by his own fraud, or to take advantage of his own wrong, or to found a claim upon his iniquity, or to acquire property by his own crime.” Id. at 497 (quoting State ex rel.

2026Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989).

2014(Ted) Terry, Jr., P.C., 284 S.W.3d 416, 426 (Tex. App.—Austin 2009, no pet.) (citing Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989)); see Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62, 67 (Tex. App.—El Paso 2010, no pet.) (noting that a legal malpractice claim is based on negligence).

2024See Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (DTPA claim alleging “a gross disparity between the value of legal services received and the consideration paid” was properly characterized as a legal malpractice claim).

2014Legal malpractice and the underlying contract suit 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); see also Greathouse v. McConnell, 982 S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).

2016Discussion To prevail on a legal malpractice claim, “the plaintiff must prove the defendant owed the plaintiff a duty, the' defendant breached that duty, the breach proximately caused the plaintiffs injury, and the plaintiff suffered damages.” Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex.2009).' 3 A defendant may obtain summary judgment by negating one of these elements or conclusively proving all of the elements of an affirmative defense.

2016“To prevail on a legal malpractice claim, the plaintiff must prove the defendant owed the plaintiff a duty, the defendant breached that duty, the breach proximately caused the plaintiffs injury, and the plaintiff suffered damages,” Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009).

2024See Goffney v. Rabson, 56 S.W.3d 186, 190 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (attorney’s failure to render agreed upon services in a contract provide for a legal malpractice claim since it is a failure to properly exercise the “degree of care, skill, and diligence as lawyers of ordinary skill and knowledge commonly possess and exercise”).

2017Willis, 760 S.W.2d at 644 ; see also Goffney, 56 S.W.3d at 190 (attorney’s failure to render agreed upon services in a contract provide for a legal malpractice claim since it is a failure to properly exercise the “degree of care, skill, and diligence as lawyers of ordinary skill and knowledge commonly possess and exercise”).

2017Willis, 760 S.W.2d at 644 ; see also Goffney, 56 S.W.3d at 190 (attorney’s failure to render agreed upon services in a contract provide for a legal malpractice claim since it is a failure to properly exercise the “degree of care, skill, and diligence as lawyers of ordinary skill and knowledge commonly possess and exercise”).

2010In Willis , the supreme court held that a legal malpractice claim was in the nature of a tort for limitations purposes. 760 S.W.2d at 644 .

2026“To prove a legal-malpractice claim, the client must establish that: (1) the lawyer owed a duty of care to the client; (2) the lawyer breached that duty; and (3) the lawyer’s breach proximately caused damage to the client.” Rogers v. Zanetti, 518 S.W.3d 394, 400 (Tex. 2017).

2024“To prove a legal- malpractice claim, the client must establish that: (1) the lawyer owed a duty of care to the client; (2) the lawyer breached that duty; and (3) the lawyer’s breach proximately caused damage to the 14 client.” Rogers v. Zanetti, 518 S.W.3d 394, 400 (Tex. 2017).

2020As a sister court has explained, “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 Duerr, 262 S.W.3d at 71 (citing Aiken, 115 S.W.3d at 28 ).

2006See id. at 28 (noting that the thrust of a legal malpractice claim involves the adequacy of counsel’s representation).

2010See Coronado Paint Co., Inc. v. Global Drywall Sys., Inc., 47 S.W.3d 28, 31 (Tex.App.-Corpus Christi 2001, pet. denied); see also Gandy, 925 S.W.2d at 714 (an assignment of a cause of action that works to collude against an insurance carrier); Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 318 (Tex.App.San Antonio 1994, writ ref'd) (an assignment of a legal malpractice claim); Elbaor *213 v. Smith, 845 S.W.2d 240, 250 (Tex.1992) (an assignment that creates a Mary Carter agreement); International Proteins Corp. v. Ralston-Purina Co., 744 S.W.2d 932, 934 (Tex.1988) (an assignment of the plaint

2010See Coronado Paint Co., Inc. v. Global Drywall Sys., Inc., 47 S.W.3d 28, 31 (Tex.App.--Corpus Christi 2001, pet. denied); see also Gandy, 925 S.W.2d at 714 (an assignment of a cause of action that works to collude against an insurance carrier); Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 318 (Tex.App.--San Antonio 1994, writ ref’d)(an assignment of a legal malpractice claim); Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex. 1992)(an assignment that creates a Mary Carter agreement); International Proteins Corp. v. Ralston-Purina Co., 744 S.W.2d 932, 934 (Tex. 1988)(an assignment of the -9- plain

2009The court of appeals reversed the summary judgment on the legal malpractice claim based on our holding in Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780 (Tex.2006). 234 S.W.3d 135, 138 .

2009In Belt, we considered whether the execu-trixes’ legal malpractice claim was survivable. 192 S.W.3d at 784 .

2023In Hughes, we recognized the running of limitations for a legal-malpractice claim is tolled until “all appeals on the underlying claim are exhausted or the litigation is otherwise finally concluded.” Zive, 644 S.W.3d at 175 (emphasis omitted) (quoting Apex Towing Co. v. Tolin, 41 S.W.3d 118, 119 (Tex. 2001)).

2017The Hughes rule tolls the statute of limitations of a legal malpractice claim “until all appeals on the underlying claim are exhausted or the litigation is otherwise finally concluded.” Apex Towing v. Tolin, 41 S.W.3d 118, 121 (Tex. 2001).

2020Analysis To establish a legal-malpractice claim, a client must establish that: (1) the lawyer owed him a duty of care; (2) the lawyer breached the duty; and (3) the lawyer’s breach proximately caused the client damages. 8 Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017); Rogers v. Zanetti, 518 S.W.3d 394, 400 (Tex. 2017); Stanfield v. Neubaum, 494 S.W.3d 90, 96 (Tex. 2016).

2019Limitations and malpractice claims “To prevail on a legal malpractice claim, the plaintiff must prove the defendant owed the plaintiff a duty, the defendant breached that duty, the breach proximately caused the plaintiff’s injury, and the plaintiff suffered damages.”30 An action against an attorney for legal malpractice is governed by the two-year statute of limitations. 31 Unless some doctrine applies to toll limitations, limitations begins to run on the plaintiff’s cause of action when a wrongful act causes the plaintiff a 30 Stanfield v. Neubaum, 494 S.W.3d 90, 96 (Tex. 2016) (cleaned up).

2021The reason for tolling the statute of limitations in a Hughes-type legal-malpractice case is to prevent a client from having to argue in her underlying lawsuit that her attorney did not err or that the attorney’s error did not impact the outcome of the lawsuit, while arguing at the same time in her legal-malpractice suit that her attorney did err and the error harmed her underlying suit.26 See id. at 155–57; see also Apex Towing Co. v. Tolin, 41 S.W.3d 26 To prove a legal-malpractice claim, the plaintiff must establish that: (1) the attorney owed the plaintiff a duty, (2) the attorney breached

2020In the attorney-malpractice context, however, this Court held in Hughes v. Mahaney & Higgins that the statute of limitations on a legal malpractice claim is tolled “until all appeals on the underlying claim are exhausted.” 821 S.W.2d 154, 157 (Tex. 1991).

2015To establish causation where a legal malpractice claim arises from a prior suit, the plaintiff must establish that but for her attorney’s negligence, “she would be entitled to judgment.” Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62, 67 (Tex. App.—El Paso 2010, no pet.); see MND Drilling Corp. v. Lloyd, 866 S.W.2d 29 , 31–32 (Tex. App.—Houston [14th Dist.] 1987, no writ) (attorney’s failure to respond to summary judgment motion alone not enough to support legal malpractice claim; plaintiff must also show suit would have survived summary judgment and that the suit would have been successfu

2014To establish proximate cause where a legal malpractice claim arises from a prior suit, the plaintiff must establish that but for her attorney’s negligence, “she would be entitled to judgment.” Cunningham v. Hughes & Luce, L.L.P., 312 S.W.3d 62, 67 (Tex.App.-El Paso 2010, no pet.); MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31 (Tex.App.-Houston [14th Dist.] 1987, no writ) (attorney’s failure to respond to summary judgment motion alone not enough to support legal malpractice claim; plaintiff must also show suit would have survived summary judgment but for the attorney’s negligence).

2010Determining Which Legal Theories Burnett Asserted Against Sharp Identifying the legal theories Burnett pleaded is made more difficult by his appellate brief's nonspecific references to a "legal malpractice claim." Burnett contends on appeal that he has asserted a non-frivolous claim for "legal malpractice." He asserts that "[a]ll of the elements for a legal malpractice claim [were] presented in appellant's petition." Burnett does not refer in his brief to causes of action for "breach of fiduciary duty," "deception," or "negligence," which are the labels he used in his petition. *606 This court

2010(Ted) Terry, Jr., P.C., 284 S.W.3d 416 , 427 n. 10 (Tex.App.-Austin 2009, no pet.). "[W]hen cases refer to `legal malpractice' or `a legal malpractice claim,' often they are referring to a negligence claim in which the issue is whether the attorney exercised that degree of care, skill, and diligence as attorneys of ordinary skill and knowledge commonly possess and exercise." Deutsch, 97 S.W.3d at 184 n. 1. (citing Goffney v. Rabson, 56 S.W.3d 186, 190 (Tex.App.-Houston [14th Dist.] 2001, pet. denied)); see also Duerr v. Brown, 262 S.W.3d 63, 69-70 (Tex.App.-Houston [14th Dist.] 2008, no pet.).

2016“To prevail on a legal malpractice claim, the plaintiff must prove the defendant owed the plaintiff a duty, the defendant breached that duty, the breach proximately caused the plaintiff’s injury, and the plaintiff suffered damages.” Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009) (citing Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995)); Mackie v. McKenzie, 900 S.W.2d 445, 448 (Tex. App.—Texarkana 1995, writ denied).

2016When an attorney is sued on the ground that he missed the statute of limitations, thereby causing his client to lose his cause of action, the client must “prove that his suit would have been successful but for the negligence of his attorney and to show what amount 17 would have been collectible had he recovered the judgment.” Mackie, 900 S.W.2d at 448–49; see also Cosgrove v. Grimes, 774 S.W.2d 662 , 665–66 (Tex. 1989).10 Thus, the harm or injury for which recovery of damages is sought in a legal malpractice suit involving a missed statute of limitations is the loss of a cause of action.

2010See Coronado Paint Co., Inc. v. Global Drywall Sys., Inc., 47 S.W.3d 28, 31 (Tex.App.-Corpus Christi 2001, pet. denied); see also Gandy, 925 S.W.2d at 714 (an assignment of a cause of action that works to collude against an insurance carrier); Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 318 (Tex.App.San Antonio 1994, writ ref'd) (an assignment of a legal malpractice claim); Elbaor *213 v. Smith, 845 S.W.2d 240, 250 (Tex.1992) (an assignment that creates a Mary Carter agreement); International Proteins Corp. v. Ralston-Purina Co., 744 S.W.2d 932, 934 (Tex.1988) (an assignment of the plaint

2010See Coronado Paint Co., Inc. v. Global Drywall Sys., Inc., 47 S.W.3d 28, 31 (Tex.App.--Corpus Christi 2001, pet. denied); see also Gandy, 925 S.W.2d at 714 (an assignment of a cause of action that works to collude against an insurance carrier); Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 318 (Tex.App.--San Antonio 1994, writ ref’d)(an assignment of a legal malpractice claim); Elbaor v. Smith, 845 S.W.2d 240, 250 (Tex. 1992)(an assignment that creates a Mary Carter agreement); International Proteins Corp. v. Ralston-Purina Co., 744 S.W.2d 932, 934 (Tex. 1988)(an assignment of the -9- plain

2009See, e.g., Goffney, 56 S.W.3d at 190 ; Sledge v. Alsup, 759 S.W.2d 1, 2 (Tex.App.-El Paso 1988, no writ).

2009See, e.g. , Goffney , 56 S.W.3d at 190 ; Sledge v. Alsup , 759 S.W.2d 1, 2 (Tex. App.--El Paso 1988, no writ).

2004Id.; Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex.Civ.App.-Houston [1st Dist.] 1974, writ refd n.r.e.).

2004Id. ; Jackson v. Urban, Coolidge, Pennington & Scott , 516 S.W.2d 948, 949 (Tex. Civ.

2025A legal-malpractice claim “arise[s] from an attorney’s alleged failure to exercise ordinary care.” Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d 921, 923 (Tex. App.—Fort Worth 2002, pet. denied).

2025“The focus of breach of fiduciary duty is whether an attorney obtained an improper benefit from representing a client, while the focus of a legal malpractice claim is whether an attorney adequately represented a client.” Kimleco, 91 S.W.3d at 923 .

2005The other two cases relied upon by the Godt court cite Willis as authority for the proposition that a legal malpractice action is a claim for “personal injury.” See Sample v. Freeman, 873 S.W.2d 470, 476-77 (Tex.App.-Beaumont 1994, writ denied) (holding an award for pre-judgment interest in a legal malpractice case is appropriate because a legal malpractice action is a personal injury claim); Estate of Degley v. Vega, 797 S.W.2d 299, 302-03 (Tex.App.-Corpus Christi 1990, no writ) (classifying a legal malpractice claim as a claim for personal injury for statute of limitations purposes).

2005The other two cases relied upon by the Godt court cite Willis as authority for the proposition that a legal malpractice action is a claim for "personal injury." See Sample v. Freeman, 873 S.W.2d 470, 476-77 (Tex.App.-Beaumont 1994, writ denied) (holding an award for pre-judgment interest in a legal malpractice case is appropriate because a legal malpractice action is a personal injury claim); Estate of Degley v. Vega, 797 S.W.2d 299, 302-03 (Tex.App.-Corpus Christi 1990, no writ) (classifying a legal malpractice claim as a claim for personal injury for statute of limitations purposes).

2016Specifically, if the legal malpractice claim 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.” Grider v. Mike O’Brien, P.C., 260 S.W.3d 49, 55 (Tex. App.-Houston [1st Dist.] 2008, pet. denied).

2014A plaintiff bringing a legal malpractice claim must show that “(1) the attorney owed the plaintiff a duty, 13 (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)).

2011See Haas v. George, 71 S.W.3d 904, 910 (TexApp.-Texarkana 2002, no pet.) (emphasizing that breach of contract action arose out of same facts as legal malpractice claim); Cuyler v. Minns, 60 S.W.3d 209, 216 (Tex.App.-Houston [14th Dist.] 2001, pet. denied) (concluding breach of contract claim that was an impermissible fracturing of a legal malpractice claim); Mullin, 168 S.W.3d at 290 n. 1 (claim was actually a claim for professional negligence where focus of clients’ allegations was negligent drafting or review of documents and failure to timely inform clients of defects in documents).

2011See Haas v. George, 71 S.W.3d 904, 910 (Tex. App.—Texarkana 2002, no pet.) (emphasizing that breach of contract action arose out of same facts as legal malpractice claim); Cuyler v. Minns, 60 S.W.3d 209, 216 (Tex. App.—Houston [14th Dist.] 2001, pet. denied) (concluding breach of contract claim that was an impermissible fracturing of a legal malpractice claim); Mullin, 168 S.W.3d at 290 n.1 (claim was actually a claim for professional negligence where focus of clients‘ allegations was negligent drafting or review of documents and failure to timely inform clients of defects in documents).

2017The first line states, “Border Demolition has no expert testifying that Ernesto Pineda committed legal malpractice.” Then, the second line describes that expert testimony is generally needed to support a legal malpractice claim with citation to two cases provided, Alexander v. Turtur & Assoc., Inc., 146 S.W.3d 113 (Tex. 2004) and Hall v. Rutherford, 911 S.W.2d 422 (Tex.App.—San Antonio 1995, writ denied).

2017The first line states, “Border Demolition has no expert testifying that Ernesto Pineda committed legal malpractice.” Then, the second line describes that expert testimony is generally needed to support a legal malpractice claim with citation to two cases provided, Alexander v. Turtur & Assoc., Inc., 146 S.W.3d 113 (Tex. 2004) and Hall v. Rutherford, 911 S.W.2d 422 (Tex.App.—San Antonio 1995, writ denied).

2019In Godt we held that the patient’s legal malpractice claim constituted a personal injury claim under section 171.002 of the Texas Civil Practice and Remedies Code. 28 S.W.3d at 738–39.

2005Compare Miller v. Brewer, 118 S.W.3d 896, 899 (Tex.App.Amarillo 2003, no pet.) (holding a legal malpractice suit stemming from employment discrimination is not a claim for personal injury), and In re Hartigan, 107 S.W.3d 684, 690-91 (Tex.App.-San Antonio 2003, pet. denied) (holding a legal malpractice claim is not a claim for personal injury), with In re Godt, 28 S.W.3d 732, 738-39 (Tex.App.-Corpus Christi 2000, no pet.) (holding a legal malpractice claim is a personal injury action for all purposes).

2024Co. v. Newsom, Terry & Newsom, L.L.P., No. 05-14-01188-CV, 2016 WL 4821684 , at *3 (Tex. App.—Dallas Sept. 14, 2016, pet. denied). 3 See Mallios, 11 S.W.3d at 170 (Hecht, J., concurring) (“[A]n assignment of an interest in a legal malpractice claim is contrary to public policy if the assignee takes the interest purely as an investment unrelated to any other transaction and acquires not merely a financial interest in the outcome but a significant right of control over the prosecution of the claim”). 4 684 S.W.3d at 514. 5 See Guevara v. Ferrer, 247 S.W.3d 662, 669-670 (Tex. 2007) (holding that

2024CODE § 2.02(b). 42 See Mallios, 11 S.W.3d at 161 (Hecht, J., concurring). 43 Id. at 170 (Hecht, J., concurring). 44 Id. at 159 . 45 Id. at 163 (Hecht, J., concurring). 17 client’s surrogate, such as a bankruptcy trustee, and we have allowed equitable subrogation in certain circumstances. 4645 The concurring Justices would have held that “an assignment of an interest in a legal malpractice claim is contrary to public policy if the assignee takes the interest purely as an investment unrelated to any other transaction and acquires not merely a financial interest in the outcome but a significant r

2020As a sister court has explained, “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 Duerr, 262 S.W.3d at 71 (citing Aiken, 115 S.W.3d at 28 ).

2013“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.” Duerr v. Brown, 262 S.W.3d 63, 71 (Tex. App.—Houston [14th Dist.] 10 2008, no pet.).

2020See Gulf Coast, 821 S.W.2d at 160 ; Nowak v. Pellis, 248 S.W.3d 736 , 740–41 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (applying the Hughes rule to toll limitations until all litigation ended on the underlying medical malpractice claim, including the dismissal of a separate bill of review suit against one of the defendants); see also Skelton v. Gray, No. 18-0386, 2020 WL 868122 , at *4-5 (Tex. February 21, 3 The only case Graves cites in his appellate brief is Hughes v. Mahaney & Higgins, 821 S.W.2d 154 (Tex. 1991). - 10 - 04-18-00771-CV 2020) (holding the limitations period for a legal ma

2017See Willis v. Maverick, 760 S.W.2d 642, 646 (Tex. 1998); Nowak v. Pellis, 248 S.W.3d 736, 739 (Tex. App.—Houston [1st Dist.] 2007, no pet.). b.

2002However, to recast a “DTPA claim as merely a legal malpractice claim would subvert the Legislature’s clear purpose in enacting the DTPA — to deter deceptive business practices.” Id.

2001Appling Interests, 991 S.W.2d 787, 792 (Tex.1999) (“an attorney can be subject to a negligent misrepresentation claim in a case in which she is not subject to a legal malpractice claim”); Latham v. Castillo, 972 S.W.2d 66, 68 (Tex.1998) (“Attorneys can be found to have engaged in unconscionable conduct by the way they represent their clients.”).