James O. Rogers, William M. Burmeister, Conservative Care, Inc. and Care Affiliates, Inc. v. Victor B. Zanetti, Charles L. Perry and Andrews Kurth, Llp

IN THE SUPREME COURT OF TEXAS

444444444444

NO . 15-0557

444444444444

JAMES O. ROGERS, WILLIAM A. BURMEISTER, CONSERVATIVE CARE, INC. AND

CARE AFFILIATES, INC., PETITIONERS,

v.

VICTOR B. ZANETTI, CHARLES L. PERRY AND ANDREWS KURTH, LLP,

RESPONDENTS

4444444444444444444444444444444444444444444444444444

ON PETITION FOR REVIEW FROM THE

COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS

4444444444444444444444444444444444444444444444444444

Argued January 11, 2017

JUSTICE DEVINE delivered the opinion of the Court.

JUSTICE GUZMAN did not participate in the decision.

This appeal concerns a summary judgment in a legal-malpractice action. The court of

appeals affirmed the summary judgment in the defendant attorneys’ favor, concluding that no

summary-judgment evidence existed to raise a fact issue as to causation, an essential element of the

clients’ malpractice claim. ___ S.W.3d ___ (Tex. App.—Dallas 2015) (mem. op.). We agree and

affirm.

I. Background

The underlying malpractice action arises out of a failed investment by James Rogers in a

home-healthcare company. The company was initially funded by its founding members: Daniel

Alexander; his wife, Leslie Alexander; and Judith Pucci. After creating a limited liability company

and obtaining the necessary licenses, the founding members began operations as Accent Home

Health in 2002. By the end of the year, Accent was making a profit and came to Rogers’ attention.

Rogers contacted Accent’s founders, expressing an interest in their business. Rogers

represented himself to be the owner of outpatient clinics with substantial contacts in the medical

community. He also represented himself as an active investor with substantial resources and an

interest in helping Accent grow its business. He told the founders that his background and

connections would greatly enhance Accent’s potential and that he and his other companies could

provide administrative services to the growing company. Probably of most significance to the

founders, Rogers represented that he had money to commit to Accent’s expansion. Rogers offered

to provide his services and a financial commitment of $250,000 in return for a majority interest in

Accent’s future business. The founders eventually agreed to these terms, and Rogers had his

attorney, Victor Zanetti, draft an investment agreement.

Rogers obtained the founders’ signatures to the agreement and thereafter gained access to

Accent’s financial accounts. At about this same time, Rogers introduced Accent’s founders to

William Burmeister, a certified public accountant and the chief financial officer of Rogers’ other

healthcare entities. Burmeister subsequently assumed control of Accent’s receivables and other

financial matters, freeing the founders to devote their full time and attention to expanding the

business’s healthcare services.

Rogers, however, did not follow through with his financial commitment to the business but

instead began to draw on Accent’s accounts. After he transferred substantial sums from Accent’s

2

bank to another bank account that only Rogers controlled, the founders became concerned. They

demanded access to the accounts in Burmeister’s hands and to the new bank account established by

Rogers. After obtaining additional information about Rogers’ activities, including his failure to

financially support the business as promised, the founders hired an attorney and filed suit. The

lawsuit named Rogers and Burmeister as defendants and asserted claims of fraud, conversion and

civil theft, civil conspiracy, and breach of fiduciary duty. The founders further sought a declaratory

judgment that the investment agreement with Rogers was void, or alternatively that Rogers had

breached the agreement. Two of Rogers’ companies that received some of Accent’s funds were also

joined as defendants.

After Rogers was sued, he asked his attorney, Zanetti, for a trial-attorney recommendation.

Zanetti recommended Charles Perry, and Rogers hired Perry to defend the Alexander case. Zanetti

knew Perry well because they practiced law together at the Andrews Kurth law firm. At some point

before trial, Andrews Kurth recommended that Rogers find new defense counsel, which he did.

A jury trial ensued. The jury found Rogers had defrauded Accent’s founders and that

Burmeister and Rogers’ two companies had knowingly participated. The trial court rendered

judgment on the verdict, awarding the damages found by the jury. In its final judgment, the trial

court also declared the investment agreement void because it was procured by fraud, was

unconscionable, and lacked consideration. The court of appeals thereafter affirmed the trial court’s

judgment in Rogers v. Alexander, 244 S.W.3d 370 (Tex. App.—Dallas 2007, pet. denied) (the

“Alexander case”).

3

Several years later, Rogers and the other defendants in the Alexander case (hereafter referred

to as “Rogers”)1 sued their former defense attorney, Perry; the attorney who drafted the investment

agreement, Zanetti; and the law firm at which they both practiced. Rogers alleged in the malpractice

suit that Perry should not have accepted employment as his defense counsel because Perry’s existing

relationship with Zanetti and their law firm, Andrews Kurth, created a conflict of interest. Rogers

further contended that the conflict caused Perry not to designate Zanetti and Andrews Kurth as

responsible third parties in the Alexander case, demonstrating that Perry was more interested in

protecting his associate, Zanetti, from the consequences of the negligently drafted investment

agreement than he was in defending Rogers. And although Perry withdrew from the defense before

the case was tried, Rogers complained that Perry’s negligence had already compromised his defense

by that time. Rogers submits that Perry’s negligence during the Alexander case included Perry’s

failure to advise Rogers of a settlement offer that might have ended the litigation, Perry’s failure to

designate a rebuttal expert on Accent’s value that led to an excessive damages award, and Perry’s

engagement in discovery misconduct that prejudiced Rogers’ defense. Rogers also alleged breach

of fiduciary duty and sought disgorgement of the fees paid to his attorneys.

Rogers’ former lawyers answered and moved for summary judgment. They argued, among

other grounds, that there was no evidence of causation, that the fraud finding in Alexander and

collateral-estoppel principles barred Rogers’ malpractice claim as did the statute of limitations, and

that Rogers’ fiduciary-breach claims were merely restated negligence claims. After Rogers’ response

1

Rogers’ co-plaintiff and petitioner, W illiam Burmeister, died after the filing of the petition for review in this

Court.

4

and a hearing on the motion, the trial court rendered summary judgment for the lawyers without

specifying the grounds. Rogers appealed, and the court of appeals affirmed. See ___ S.W.3d at ___,

___.

II. The Court of Appeals’ Decision

The court of appeals identified the principal appellate issue as whether Rogers, in responding

to the lawyers’ no-evidence motion, raised a genuine fact issue on the causation element of his

malpractice claim. Id. Holding that Rogers failed to raise such a fact issue, the court affirmed the

summary judgment. See ___ S.W.3d at ___. In making that determination, the court analyzed

Rogers’ causation evidence in the context of his various negligence complaints. Rogers alleged that

(1) Zanetti’s negligence in drafting the investment agreement caused the adverse Alexander

judgment, id. at ___; (2) Perry’s failure to raise a proportionate-responsibility defense caused

Rogers’ injury, id. at ___; (3) Perry’s failure to communicate a settlement offer caused Rogers’

injury, id. at ___; (4) Perry’s failure to designate a damages expert to rebut the Alexanders’ damages

model caused Rogers’ injury, id. at ___; and (5) Perry’s misconduct during discovery caused Rogers

to lose the Alexander case, id. at ___.

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. Stanfield v. Neubaum, 494 S.W.3d 90, 96 (Tex. 2016). A lawyer can

be negligent and yet cause no harm. And, if the breach of a duty of care does not cause harm, no

valid claim for legal-malpractice exists. See, e.g., Alexander v. Turtur & Assocs., Inc., 146 S.W.3d

113, 119 (Tex. 2004) (noting that “an abundance of evidence as to [breach] cannot substitute for a

5

deficiency of evidence as to [causation]”). In brief, that is the court of appeals’ holding in this case:

Rogers failed to raise a fact issue about whether the lawyers’ claimed negligence caused his injury.

The parties do not argue about duty or breach here, and thus we assume for purposes of this

appeal that the lawyers’ alleged conduct fell below the standard of care. The issue is simply whether

Rogers’ summary-judgment evidence raised a material fact issue as to causation. ___ S.W.3d at ___.

And although causation is typically a question of fact, it may be determined as a matter of law when

reasonable minds could not arrive at a different conclusion. Mo. Pac. R.R. Co. v. Am. Statesman,

552 S.W.2d 99, 105 (Tex. 1977); Green v. McKay, 376 S.W.3d 891, 898 (Tex. App.—Dallas 2012,

pet. denied).

III. The Legal-Malpractice Claims

When a legal-malpractice case arises from prior litigation, the plaintiff must prove that the

client would have obtained a more favorable result in the underlying litigation had the attorney

conformed to the proper standard of care. Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013). “The

traditional means of resolving what should have happened is to recreate the underlying case.” 4

RONALD E. MALLEN , LEGAL MALPRACTICE § 33:7 at 673 (2017). This re-creation is typically

referred to as the “case-within-a-case” or “suit-within-a-suit” and “is the accepted and traditional

means of resolving the issues involved in the underlying proceeding in a legal malpractice action.”

Id. at § 37.87 at 1695. Where the injury claimed does not depend on the merits of the underlying

action, however, the case-within-a-case methodology does not apply. See id. (listing examples such

as a lawyer’s misappropriation or misallocation of settlement proceeds); see also Elizondo, 415

6

S.W.3d at 270 (concluding that “‘suit within a suit’ analysis is not required in a [malpractice] case”

alleging negligent settlement).

Rogers’ primary argument here is that we should not apply this standard because it is

generally unfair and specifically inappropriate for most of his malpractice claims. Rogers narrows

those claims in this Court to four allegations of negligence, arguing that our traditional case-within-

a-case methodology should not apply to (1) Zanetti’s drafting errors in the investment agreement,

(2) Perry’s failure to join Zanetti and his law firm as responsible third-parties in the Alexander

litigation, (3) Perry’s failure to designate an expert to rebut the Alexanders’ valuation of Accent, and

(4) Perry’s failure to communicate a settlement opportunity in the Alexander litigation. Rogers

asserts that each of these errors contributed to his damages and that the court of appeals erred in

holding otherwise. We consider Rogers’ arguments in the context of his various malpractice

complaints.

A.

Did either negligence in drafting the investment agreement or the failure to raise

a proportionate-responsibility defense cause Rogers’ harm?

Because the findings in the Alexander case are material to both of these complaints, we

consider them together. In Alexander, the jury determined that Rogers defrauded Accent’s founders,

and the trial court rendered judgment on the jury’s verdict. The court of appeals thereafter affirmed,

concluding that the “case involved a course of fraud that led up to a void investment agreement.”

Alexander, 244 S.W.3d at 390. In their motion for summary judgment, the lawyers argued that

Alexander’s fraud finding conclusively negated the element of proximate causation in these

malpractice claims.

7

Rogers argues, however, that Zanetti’s drafting error was transactional malpractice that

contributed to his ultimate loss and was, at least in part, a cause of his ultimate damages. Rogers

argues further that this transactional malpractice requires a separate causation analysis that should

be measured under a more relaxed “substantial factor” test. Although Rogers does not otherwise

explain his preferred test, he concludes that, under this relaxed standard, evidence of causation exists

irrespective of the fraud findings in Alexander.

Citing our summary-judgment rule, the defendant lawyers respond that Rogers’ argument for

a new causation standard should “not be considered as grounds for reversal” here because it was not

raised below. See TEX . R. CIV . P. 166a(c) (“Issues not expressly presented to the trial court by

written motion, answer or other response shall not be considered on appeal as grounds for reversal.”).

But the lawyers also contend that Rogers cannot prevail even under his proposed new test because

Zanetti’s alleged drafting errors did not in fact cause him any harm. The lawyers submit that the

judgment in Alexander, which held that Rogers’ antecedent fraud voided the investment agreement,

makes it impossible for Rogers to establish that the drafting of the investment agreement—whether

negligent or not—was a cause in fact of Rogers’ damages.

As in other negligence cases, a legal-malpractice plaintiff must prove that his or her lawyer’s

negligence was the proximate cause of cognizable damage. Stanfield, 494 S.W.3d at 97; see also

1 MALLEN § 8:20 at 1029 (“The principles and proof of causation in a legal malpractice action do

not differ from those governing an ordinary negligence case.”). The components of proximate cause

consist of cause in fact and foreseeability. Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev.

& Research Corp., 299 S.W.3d 106, 122 (Tex. 2009). Cause in fact (sometimes referred to as

8

substantial factor) requires a showing that the act or omission was a substantial factor in bringing

about the injury and without which harm would not have occurred. HMC Hotel Props. II Ltd. P’ship

v. Keystone-Tex. Prop. Holding Corp., 439 S.W.3d 910, 913 (Tex. 2014); see also Transcon. Ins.

Co. v. Crump, 330 S.W.3d 211, 222 (Tex. 2010) (describing the elements of proximate cause as

“cause in fact (or substantial factor) and foreseeability”). “Substantial” here is used in its popular

sense “to denote that the defendant’s conduct has such an effect in producing the harm as to lead

reasonable men to regard it as a cause.” Lear Siegler, Inc. v. Perez, 819 S.W.2d 470, 472 (Tex.

1991) (citing RESTATEMENT (SECOND ) OF TORTS § 431, cmt. a (1965)). On the other hand,

foreseeability or legal cause addresses the proper scope of a defendant's legal responsibility for

negligent conduct that in fact caused harm. The legal-cause component asks whether the harm

incurred should have been anticipated and whether policy considerations should limit the

consequences of a defendant’s conduct. 1 MALLEN § 8:20 at 1035.

Rogers’ argument here is that our traditional formulation of the cause-in-fact component is

inappropriate for his particular malpractice claim. In his merits briefing, he asserts: “The

transactional malpractice (Zanetti’s drafting errors) and the litigation malpractice (Perry’s litigation

mistakes) are different claims that turn on different facts and, consequently, require a separate

causation analysis.” Beyond that, he does not elaborate on the standard’s contours other than to

conclude we “should apply the ‘substantial factor’ test.” But, of course, we do that as a part of any

proximate-cause analysis because our cause-in-fact standard already incorporates the substantial-

factor test.

9

As we have stated: “The test for cause in fact is whether the negligent act or omission was

a substantial factor in bringing about injury, without which the harm would not have occurred.” Doe

v. Boys Clubs of Greater Dallas, Inc., 907 S.W.2d 472, 477 (Tex. 1995) (internal quotations

omitted). Thus, our cause-in-fact standard requires not only that the act or omission be a substantial

factor but also that it be a but-for cause of the injury or occurrence. Presumably then, Rogers would

have us adopt a more nebulous cause-in-fact standard here, one untethered from but-for causation.

But we have previously described a cause-in-fact definition that omits the but-for component as

“incomplete.” Crump, 330 S.W.3d at 223 (quoting Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 46

(Tex. 2007). After all, “[c]ause in fact is essentially but-for causation.” Ryder Integrated Logistics,

Inc. v. Fayette Cty., 453 S.W.3d 922, 929 (Tex. 2015) (per curiam). And, as one authority has

observed, “[r]equiring the plaintiff to prove cause in fact by the but-for test is almost always the right

approach.” David W. Robertson, The Common Sense of Cause in Fact, 75 TEX . L. REV . 1765, 1776

(1997).

According to Professor Robertson, the term “substantial factor” has come to have a number

of different jurisprudential meanings, most of which provide a poor substitute for but-for causation.

He submits that the test is useful apart from but-for causation in only a limited category of cases

involving concurrent causation. See id. (describing “a limited category of cases in which two causes

concur to bring about an event, and either cause, operating alone, would have brought about the

event absent the other cause”) (internal quotations & citations omitted); see also RESTATEMENT

(SECOND ) OF TORTS § 432(2) (1965) (stating the same rule). Professor Robertson concludes that

“[t]he only ‘combined active conduct’ cases in which the substantial factor test is needed are those

10

in which the defendant’s conduct was by itself sufficient to accomplish the harm but did not seem

to be a but-for cause of the harm because it was fortuitously joined by the causal conduct of another

that was also by itself sufficient to accomplish the harm.” Robertson, supra at 1778. Applying this

rationale, we have, on occasion, applied the substantial-factor test without requiring proof of but-for

causation. See, e.g., Bostic v. Ga.-Pac. Corp., 439 S.W.3d 332, 344–45 (Tex. 2014) (concluding that

plaintiffs in multiple-exposure asbestos cases need not prove but-for causation because “‘application

of the but-for rule would allow each defendant to escape responsibility because the conduct of one

or more others would have been sufficient to produce the same result’”) (quoting W. PAGE KEETON

ET AL., PROSSER AND KEETON ON THE LAW OF TORTS § 41 (5th ed. 1984).

Rogers has variously argued in the court of appeals and in this Court that Zanetti’s drafting

error was the cause in fact of the fraud finding against him in Alexander and the cause in fact of his

lost “investment” in Accent. Neither formulation appears to bring the matter within the narrow

group of cases identified by Professor Robertson because the alleged drafting error is not a

concurrent cause. Before Zanetti’s alleged drafting errors, Rogers had already committed fraud

sufficient to render the agreement unenforceable regardless of its language. Rogers’ malpractice

claim, alleging the negligent failure to join Zanetti and his law firm as responsible third parties,

similarly fails because Rogers’ antecedent fraud supports the liability ultimately imposed and

likewise renders this malpractice allegation causally irrelevant. We accordingly conclude that the

court of appeals did not err in applying our traditional cause-in-fact standard to Rogers’ malpractice

claim.

11

B.

Did the failure to designate a damages expert to rebut the Alexanders’ valuation

of Accent cause Rogers’ harm?

At the Alexander trial, Accent’s value bore a close relation to the jury’s calculation of

damages. The jury heard valuation testimony from one witness: Pavi Athickal, the Alexander

plaintiffs’ damages expert. Athickal calculated the value of Accent to be $2,493,611.68 and testified

that the figure represented the proper amount of out-of-pocket damages. Perry did not timely

designate a rebuttal expert before withdrawing from the case, and thus no similar expert was

available to refute Athickal’s testimony at trial. In reaching its verdict, the jury trisected Athickal’s

figure and awarded each of the three Alexander plaintiffs $831,203.89 in out-of-pocket damages.

Rogers claims Perry’s failure to designate an expert to rebut the “grossly inflated valuation of

Accent” was malpractice that caused him to suffer an unreasonably high verdict.

Whether a negligent lawyer’s conduct is the cause in fact of the client’s claimed injury

requires an examination of the hypothetical alternative: What should have happened if the lawyer

had not been negligent? The inquiry does not differ markedly from other tort cases; although, the

suit-within-a-suit analysis can add to its complexity. The lawyers suggest that suit-within-a-suit

causation requires proof that the client would have won the underlying trial absent his lawyer’s

negligence, but that is not always the client’s case. Certainly, when the client alleges that his

lawyer’s negligence caused him to lose his case, we require proof that “but for the attorney’s breach

of duty, [the malpractice plaintiff] would have prevailed on the underlying cause of action and would

12

have been entitled to judgment.” Stanfield, 494 S.W.3d at 96 n.3 (explaining what the suit-within-a-

suit test “usually” requires) (internal quotations & citations omitted).

But malpractice claims do not always depend on ultimate victories. They can also involve

imprudent attorney actions that materially and unfavorably affect the value of the client’s underlying

claim or defense. For example, in one case an excess insurer alleged that attorneys mishandled the

defense, resulting in an unreasonably inflated settlement. Keck, Mahin & Cate v. Nat’l Union Fire

Ins. Co. of Pittsburgh, Pa., 20 S.W.3d 692, 695–96 (Tex. 2000). We said that “[e]ven if [the excess

insurer] can prove that its settlement was excessive, it must also prove that [the defendants]

mishandled the defense and that a judgment for [the underlying plaintiff] in excess of the case’s true

value would have resulted from [the defendants’] malpractice.” Id. at 703 (footnote omitted). And

we defined the case’s “true value” as “the recovery [the underlying plaintiff] would have obtained

following a trial in which [the underlying defendant] had a reasonably competent, malpractice free

defense.” Id. at 703 n.5. In a more recent malpractice case involving an attorney’s settlement

valuation of the client’s underlying case, we stated the measure of damages as “the difference

between the result obtained for the client and the result that would have been obtained with

competent counsel.” Elizondo, 415 S.W.3d at 263.

In every case, the plaintiff must supply a causal link between the attorney’s alleged

negligence and the client’s damages. Any variation in how we articulate the suit-within-a-suit

standard is but a reflection of the plaintiff’s pleadings; different cases involve different injuries and

different causal links. Consequently, to the extent the lawyers argue that we always require a

hypothetical showing of ultimate victory, they are mistaken.

13

Rogers’ allegations here involve valuation of the underlying claim in Alexander and the need

for expert rebuttal testimony. He does not allege that the existence of a rebuttal expert would have

resulted in an award of no damages (an outright trial victory) but rather that a properly designated

expert would have resulted in a smaller award of damages (a trial loss, but a more palatable one).

Rogers’ burden then was to offer some competent evidence that the allegedly inflated verdict was

more likely than not caused by the lack of a rebuttal expert.

Turtur hints at what the causation evidence should look like in this type of case. 146 S.W.3d

at 117. There the plaintiffs alleged that several lawyers caused an adverse verdict by mishandling

litigation in bankruptcy court. Id. at 116–17. Among the claimed acts of malpractice were the

failure to call certain witnesses, the failure to read relevant testimony into the record, and the

assignment of the case to an inexperienced attorney. Id. at 118. These mistakes, the plaintiffs

claimed, led the bankruptcy judge to reach a result the judge would not have otherwise reached had

the lawyers performed competently. Id. We determined the Turtur plaintiffs needed expert

testimony to satisfy the causation requirement. Id. at 120. We imposed that requirement because

“the wisdom and consequences of [those] kind of tactical choices made during litigation are

generally matters beyond the ken of most jurors,” and “when the causal link is beyond the jury’s

common understanding, expert testimony is necessary.” Id. 119–20 (citations omitted).

Similarly, the malpractice claim here implicates the hypothetical effect of evidence on a

decisionmaker, and Rogers does not argue about the need for expert causation testimony. In fact,

he submits that he offered testimony to the trial court from four experts. The lawyers respond that

all of this testimony is either pertinent to elements besides causation, conclusory, or not expert

14

testimony at all. In short, they conclude the summary judgment was proper because no competent

evidence of causation exists. See Leitch v. Hornsby, 935 S.W.2d 114, 119 (Tex. 1996)

(“Incompetent opinion testimony is not evidence, and a finding supported only by such testimony

cannot survive a no evidence challenge.”). The court of appeals agreed and affirmed. ___ S.W.3d

at ____.

We have long held that “conclusory statements made by an expert witness are insufficient

to support summary judgment.” Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999) (quoting

Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (per curiam)). In order to be competent

summary-judgment evidence, an expert’s opinion must have a “demonstrable and reasoned basis on

which to evaluate his opinion.” Elizondo, 415 S.W.3d at 265. This basis must come in the form of

an answer to the question “Why”: Why did the expert reach that particular opinion? See Burrow, 997

S.W.2d at 236 (finding that an expert’s basis was missing because “he [did] not explain why the

settlements were fair and reasonable for each of the Clients”).

But not any explanation will suffice. “When an expert's opinion is based on assumed facts

that vary materially from the actual, undisputed facts, the opinion is without probative value and

cannot support a verdict or judgment.” Burroughs Wellcome Co. v. Crye, 907 S.W.2d 497, 499

(Tex. 1995). And “[e]ven when some basis is offered for an opinion, if that basis does not, on its

face, support the opinion, the opinion is still conclusory.” City of San Antonio v. Pollock, 284

S.W.3d 809, 817 (Tex. 2009). With these principles in mind, we—like the court of

appeals—evaluate each expert’s testimony in turn.

15

1. Allen Hahn

In response to the lawyers’ motion for summary judgment, Rogers offered the testimony of

Allen Hahn. Hahn, a retained business-valuation expert, opined that the fair market value of Accent

was $395,000—a substantially smaller figure than Athickal’s valuation of $2,493,611.68.

To avoid summary judgment Rogers needed to show that (1) alternative expert valuation

testimony was available and (2) the testimony would have probably altered the verdict. See Keck,

20 S.W.3d at 703. Hahn’s testimony is some evidence of the former, but not the latter. The latter

is, after all, a purely trial-based question in the ambit of legal experts, and Hahn does not profess to

be such an expert. In fact, Hahn disclaimed any opinion on causation. Hahn’s testimony, though

perhaps a piece of the puzzle, simply does not provide the necessary causal link.

2. Lewis Sifford

Rogers also attached excerpts from the deposition of Lewis Sifford, a litigation expert.

Sifford gave his opinion about various aspects of the lawyers’ conduct leading up to trial. Sifford

testified that failure to designate a rebuttal damages expert can be “a high risk endeavor” but that he

had “seen that done.” He explained further that the lack of a rebuttal expert “gave the jury no

alternatives in reference to damages and apparently the lawyers that tried the case, at least Mr.

Marketos, thought that was a significant contributing factor in the result.”

This testimony, though given by a credentialed expert, again constitutes no evidence of

causation. Sifford’s testimony about the objective riskiness of failing to designate is not probative

of the cause-in-fact requirement. Instead, the risk associated with a trial tactic speaks to what a

16

reasonably prudent lawyer would do under similar circumstances—i.e., the breach-of-duty element2

of a malpractice action. See Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989) (explaining that

a malpractice “instruction to the jury should clearly set out the standard for negligence in terms

which encompass the attorney's reasonableness in choosing one course of action over another”).

Breach 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.” Turtur & Assoc.’s, 146 S.W.3d at 119.

Whether or not it was reasonable for Perry to conduct the litigation as he did is immaterial to the

separate question of what a reasonable jury would have done with the competing evidence had Perry

conducted the litigation differently. See id.

The statement from Sifford’s deposition that addresses a causal link—“apparently the lawyers

that tried the case, at least Mr. Marketos, thought that [the failure to designate a rebuttal expert] was

a significant contributing factor in the result”—is likewise insufficient to avoid summary judgment

for two reasons. First, and most fundamentally, relaying the opinion of another witness without

providing any basis for the borrowed conclusion is itself no evidence. See Pollock, 284 S.W.3d at

816 (“Bare, baseless opinions will not support a judgment even if there is no objection to their

admission in evidence.”). Said differently, repeating another’s ipse dixit does not make it any less

of an ipse dixit. And second, the standard for causation here is cause-in-fact, or but-for causation,

not “significant contributing factor.” Ante at ____. Sifford’s testimony is no evidence that the

2

Again, the lawyers did not challenge the breach element in their motion for summary judgment.

17

verdict would have likely been different but for the absence of a competing expert’s testimony.

3. Peter Marketos

Next, Rogers offers the opinion of the Alexander plaintiffs’ trial attorney, Peter Marketos.

When asked whether Perry’s failure to designate a rebuttal expert harmed Rogers, Marketos testified

“I know that it did” and that the failure to designate was “a significant contributing factor to the

jury’s verdict.” Marketos gave the following explanation for his opinion:

Because subsequent to the trial I was contacted by an attorney who was on the jury

. . . and he divulged the entire thought-process that the jury went through, and he told

me that at one point, the foreman had asked, are we awarding too much damages?

And the gentleman . . . had spent a lot of time going through alternative damages that

were significantly lower, but that the jury concluded that they had no competing

evidence with Mr. Athickal's testimony, and so they accepted—ultimately agreed to

accept Mr. Athickal's testimony to the penny.

This relayed juror communication is the sole basis for Marketos’ causation opinion.3 Therefore,

whether Marketos’ opinion is conclusory hinges on the sufficiency of this proffered basis. See

Elizondo, 415 S.W.3d at 265.

As stated above, an expert must explain why he or she reaches a certain conclusion. Burrow,

997 S.W.2d at 236. The requisite why depends, naturally, on the nature of the opinion given. Here,

Marketos opined that Perry’s failure to designate a rebuttal expert caused the sizeable verdict. That

3

The lawyers contend that this juror story is inadmissible double hearsay and that Rogers waived reliance on

the story because he did not quote specifically the relevant excerpt in his summary-judgment response. Rogers responds

that any hearsay objection was waived because the lawyers failed to object to the testimony during summary-judgment

proceedings and that Rogers sufficiently called the trial court’s attention to the juror story by citing (albeit not by

quoting) the relevant portion of the attached deposition. Because we conclude the juror story is an insufficient basis for

Marketos’ causation opinion we need not reach these matters. Nor do we address whether a juror’s testimony about his

or her mental processes could ever be competent evidence in a subsequent malpractice case.

18

sounds simple enough. But the causal chain—and thus the necessary corroboration—requires more

than that.

The proximate-cause element of a legal-malpractice case requires proof of a cause in fact:

proof that, but for the attorney’s alleged mistake, the claimed harm would not have occurred. See

Akin, Gump, Strauss, Hauer & Feld, 299 S.W.3d at 122. As a matter of necessity, every trial-

malpractice action therefore involves a comparison of two cases—the case containing imprudent

attorney conduct and the case the plaintiff claims should have unfolded with competent

representation. Stanfield, 494 S.W.3d at 96 n.3 (referring to this exercise as the suit-within-a-suit

requirement). The first case actually occurred, and its result is beyond question. The other case is,

of course, a hypothetical one with a hypothetical result. Gunn v. Minton, 133 S. Ct. 1059, 1067

(2013) (recognizing the hypothetical nature of a legal-malpractice claim). Crucial to Rogers’

complaint, when the alleged mistake involves omitted evidence, the hypothetical, mistake-free case

must necessarily be one that includes the relevant evidence. See David A. Fischer, Causation in Fact

in Omission Cases, 1992 UTAH L. REV . 1335, 1341 (1992) (explaining that proof of cause in fact in

“[o]mission cases require[s] an additional inquiry by hypothesizing the occurrence of a fictitious

act”). And as a consequence, evidence of causation must show that the result in the hypothetical case

would, more likely than not, be different than the result in the actually litigated case because of the

additional evidence.

Taking the foregoing into consideration, Marketos’ opinion must be that a trial containing

a hypothetical rebuttal expert would have resulted in a lesser verdict than the one the Alexander jury

returned. And for Marketos’ opinion to be competent evidence, his basis must explain why that

19

disparity would exist. Elizondo, 415 S.W.3d at 265. Assuming without deciding that the

secondhand juror testimony is competent evidence, the juror’s story provides some insight. The

testimony explains that the juror and the jury foreman (two of twelve4) had questions about

Athickal’s valuation, were concerned that they might be awarding “too much damages,” explored

alternative, lower figures, and recognized the absence of any other testimony in reaching their

verdict. This commentary no doubt informs Marketos’ opinion with respect to the mental processes

of several jurors in reaching the Alexander verdict.

But, as outlined above, an adequate basis for a causation opinion in this case requires a

comparison—a consideration of the Alexander result on the one hand and the hypothetical clash of

experts on the other. A juror’s (eventually abandoned) reservations about testimony in the actual

case is no support for an opinion that a reasonable jury would have credited the testimony of a

competing expert (like Hahn) had it been given the chance. Marketos’ unnamed juror did not specify

what the jury would have done had Perry designated someone like Hahn. And though the juror

expressed a desire to have the opportunity to consider competing testimony, he made no credibility

comparison between Athickal and any given rebuttal expert. Nor could he; the Alexander jury never

heard nor considered testimony from any such expert. Absent a comparison between the real and

the hypothetical, Marketos is left to speculate on causation.

4

There is inherent difficulty with using the testimony of a single juror to speak for all twelve. A former justice

and chief justice of this Court has written on the subject. See Jack Pope, The Mental Operations of Jurors, 40 T EX . L.

R EV . 849, 853 (1962). Justice Pope remarked that the practice of relying on a single juror’s testimony “gives to the

secret thought of one the power to disturb the expressed conclusions of twelve”—a disconcerting possibility to say the

least. Id. (citing Perry v. Bailey, 12 Kan. 539, 545 (1874)).

20

Ultimately, “[e]ven when some basis is offered for an opinion, if that basis does not, on its

face, support the opinion, the opinion is still conclusory.” Pollock, 284 S.W.3d at 817. This is such

a case. Marketos’ juror story, while peeking inside the jury room and highlighting a juror’s

subjective considerations, provides no predictive aspect to Marketos’ opinion and no basis to

evaluate the relative probabilities at play. Marketos’ opinion is thus conclusory and incompetent

summary-judgment evidence. Leitch, 935 S.W.2d at 119.

4. Christopher Kalis

Finally, Rogers relies on the affidavit of Christopher Kalis, one of the defense lawyers who

represented Burmeister in the Alexander trial.5 Kalis’s affidavit states, in relevant part, that,

It is my opinion that the applicable standard of care . . . required the designation of

a qualified expert on damages . . . who could truthfully opine that [the Alexander]

Plaintiffs[’] damage claims in that cause were overly aggressive, unreasonable, and

bore no reasonable relationship to the facts of that case. It is my understanding that

the damage expert designated in this case has opined that the entire value of the

company at issue in Cause No. 03-07498, at the time in issue therein, was

$395,000.00.

...

Based on the recited factors, it is my professional opinion that the jury awarded an

amount of damages that were not supported by the evidence, but which could not be

controverted by the Defendants because Mr. Perry failed to designate a competent

expert to controvert Plaintiffs[’] damage evidence, upon which the jury could

consider in reaching its verdict in that cause.

...

It is my professional opinion, as based on all the above-described factors, and my

representation of Mr. Burmeister at the trial of Cause No. 03-04798 that Mr. Perry's

5

The trial court struck Kalis’ affidavit after the lawyers objected, and we assume, without deciding, that the trial

court erred in this regard.

21

breach of the above-described standard of care owed to Mr. Burmeister was the

proximate cause of the jury’s verdict, including the huge damages found to be due

from Defendants in that action, and the ensuing judgment against Mr. Burmeister and

Mr. Rogers.

Kalis’ affidavit contains several clear, unequivocal statements of the necessary causation opinion:

“the proximate cause of the enormous verdict and the ensuing judgment was Mr. Perry's failure to

designate a controverting damages expert.” But does the affidavit supply an adequate basis? Kalis

provides some explication in support of his conclusion. He says that his opinion is based on (1) his

“representation of Mr. Burmeister at the [Alexander] trial” and (2) “all of the above-described

factors.” Yet, ultimately, Kalis’ explanation does not remove his causation opinion from the realm

of conclusory expert testimony.

First, Kalis’ service as a defense attorney in the underlying trial is an insufficient basis for

his legal conclusion. Without question, Kalis’ trial experience makes him familiar with the

circumstances of the Alexander trial. His experience might even make him more credible than most

to speak about this particular case. But the assurance of familiarity and credibility is not a

“demonstrable and reasoned basis” upon which to evaluate Kalis’ opinion. Elizondo, 415 S.W.3d

at 265. An ipse dixit is still an ipse dixit even if offered by the most trustworthy of sources. See id.

at 264 (explaining that an expert’s opinion is conclusory if he or she “simply say[s], ‘Take my word

for it, I know’”).

An expert’s familiarity with the facts is not alone a satisfactory basis for his or her opinion.

For example, in Anderson v. Snider, a legal-malpractice defendant attached his own affidavit to a

motion for traditional summary judgment. 808 S.W.2d 54, 54 (Tex. 1991) (per curiam). The

22

lawyer’s affidavit included a prefatory statement that the affiant had “reviewed the Plaintiff’s

Original Petition, [the affiant’s] file and the relevant and material documents filed with the Court.”

Id. Despite the affiant’s familiarity with the case, we found the opinion conclusory. See id. at 55.

The affiant simply did not provide “the legal basis or reasoning for [his] opinion,” and thus his

affidavit was incompetent summary-judgment evidence. Id. We said the same in Burrow under

similar circumstances. See 997 S.W.2d at 235 (holding that an expert’s opinion lacked an adequate

basis even though the affidavit recited the expert’s familiarity with the case). Like the experts in

those cases, Kalis’ familiarity with the Alexander trial fails to serve as an adequate basis for his

causation opinion.

Nor do Kalis’ other relied-upon “factors” render his opinion competent evidence. In relevant

part, Kalis explained that Athickal’s valuation was overly aggressive, unreasonable, and bore no

reasonable relationship to the facts of that case,” and the jury awarded an amount of damages that

were not supported by the evidence, but which could not be controverted by the Defendants because

Mr. Perry failed to designate a competent expert to controvert Plaintiffs[’] damage evidence.”

However, not all explanations are satisfactory. For example, “[w]hen an expert's opinion is based

on assumed facts that vary materially from the actual, undisputed facts, the opinion is without

probative value and cannot support a verdict or judgment.” Burroughs Wellcome, 907 S.W.2d at

499.

In part, Kalis’ opinion falls victim to this deficiency. He first explained that “the jury

awarded an amount of damages that were not supported by the evidence.” In other words, Kalis

opines that the Alexander jury awarded damages based on legally insufficient evidence. Yet this

23

basis is irrefutably false. Kalis served as appellate counsel following the Alexander trial;

consequently, he is well aware of the court of appeals’ holding that legally sufficient evidence

existed to support the jury’s verdict. See Alexander, 244 S.W.3d at 388 (“[S]ufficient evidence

supported the jury’s award of damages for Rogers’ and Burmeister’s fraud, and Athickal presented

competent testimony concerning the amount of damages.”). Put differently, the Alexander jury was,

as a matter of law, reasonable in awarding the damages they awarded based on the testimony they

heard. See id. This basis for Kalis’ opinion is thus in fatal tension with that undisputed fact and

cannot support a competent opinion. See Burroughs Wellcome, 907 S.W.2d at 499.

The remainder of Kalis’ explanation—that Athickal’s testimony could not be controverted

by the Defendants because Mr. Perry failed to designate a competent expert to controvert Plaintiffs[’]

damage evidence”—fails in the same manner as Marketos’ proffered explanation. A losing client

can often point to omitted, controverting evidence that the jury could have considered. But such an

omission is only causative of a client’s damages when the controverting evidence, had it been

presented, would have probably changed the result. Kalis’ explanation, like Marketos’ juror story,

contains no predictive factual basis about what a reasonable jury would do with competing evidence

and is therefore insufficient to support a competent opinion. Neither Kalis nor Marketos make the

necessary connection.

In summary, because Rogers needed competent expert testimony on causation to withstand

summary judgment, and because he offered none, we conclude that the court of appeals did not err

in affirming the trial court’s summary judgment with respect to Perry’s failure to designate a rebuttal

expert.

24

C.

Did the failure to communicate a settlement offer in the Alexander litigation

cause Rogers’ harm?

Accent’s founders offered to settle the Alexander litigation and transfer full ownership of the

business to Rogers for $450,000. The summary-judgment record includes the affidavit of the

Alexanders’ attorney who averred that he sent this settlement demand soon after filing suit but got

no response. The Alexanders’ attorney further stated that the demand was a “starting point,” but he

could not recall how much less he was authorized to accept. Rogers avers that he was never advised

of the settlement offer. His affidavit provides further, “Had I known that I could have settled the

case with the Alexanders and Pucci and received control of Accent for $450,000, I would have

instructed my attorneys to negotiate the best possible resolution and release without incurring the

time or expense of litigation.”

Rogers argues here that, had he known of the offer, he might have settled the case and

avoided the adverse judgment in Alexander. He contends further that evidence of the offer’s

existence and his willingness to explore settlement was sufficient to raise a fact issue and defeat the

summary judgment rendered below.

The lawyers assume for the sake of argument that Rogers was not advised of the settlement

offer and that they thereby breached their duty of care. Even so, they submit, the summary-judgment

evidence fails to raise a fact issue as to causation because no evidence exists that the case would have

settled on those terms or any others.

25

The court of appeals agreed, noting that “Rogers testified only that he would have tried to

settle the case had he known about the settlement offer.” ___ S.W.3d at ___. The court noted

further the absence of any evidence that Rogers could have paid either the $450,000 actually

demanded or any lesser sum that the Alexanders would have accepted. Id. We agree that Rogers’

evidence about the settlement offer fails to raise a genuine issue of material fact on causation. The

summary-judgment record contains no evidence that Rogers would have settled the Alexander case

for $450,000.

III. Conclusion

“Legal malpractice litigation is a land of second chances.” 4 MALLEN § 37:1 at 1446. But

that second chance is typically measured by comparing what actually happened in prior litigation

with a hypothetical alternative of what should have happened. Whether a negligent lawyer’s conduct

is the cause in fact of the client’s claimed injury requires an examination of the hypothetical

alternative: What should have happened if the lawyer had not been negligent? Texas follows the

“accepted and traditional means of resolving the[se] issues” by typically employing the case-within-

a-case or suit-within-a-suit analysis. 4 MALLEN § 37:87 at 1695; see also State Farm Fire & Cas.

Co. v. Gandy, 925 S.W.2d 696, 708 (Tex. 1996) (“a legal malpractice case requires a ‘suit within a

suit’”) (quoting Zuniga v. Groce, Locke & Hebdon, 878 S.W.2d 313, 318 (Tex. App.—San Antonio

1994, writ ref’d); Green, 376 S.W.3d at 897 (referencing the “causation aspect of the plaintiff’s

burden as the ‘suit-within-a-suit’ requirement”).

The plaintiff has the burden of presenting evidence that establishes with reasonable

probability that cause in fact exists. Jelinek v. Casas, 328 S.W.3d 526, 533 (Tex. 2010) (“meaning

26

simply that it is more likely than not”) (internal quotations omitted). A plaintiff need not prove

causation with absolute certainty, but the evidence must establish causation beyond mere possibility

or speculation. HMC Hotel Props., 439 S.W.3d at 913. When the merits of the underlying case are

relevant to the claimed injury, the suit-within-a-suit requirement avoids speculation about the

hypothetical alternative and provides a structure for re-creating the underlying case. But when the

legal-malpractice claim does not implicate the merits of the underlying case, the suit-within-a-suit

comparison is unnecessary. See, e.g., Elizondo, 415 S.W.3d at 270 (noting that “a ‘suit within a suit”

analysis is not required in a [settlement] case like this one”). The causation test under either

scenario, however, is but-for causation, and the court of appeals therefore did not err in applying that

standard to Rogers’ malpractice allegations. Moreover, the court did not err in affirming the

summary judgment because Rogers’ summary-judgment evidence fails to raise a material fact issue

as to the causation element of Rogers’ negligence claims.

The court of appeals’ judgment is accordingly affirmed.

_____________________________

John P. Devine

Justice

Opinion Delivered: April 28, 2017

27