       TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                          NO. 03-12-00005-CV



                                       LeAnn Randall, Appellant

                                                    v.

                        Goodall & Davison, P.C. and J. Mark Avery, Appellees


               FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
               NO. 09-0430-CP4-C, HONORABLE JOHN MCMASTER, JUDGE PRESIDING



                                MEMORANDUM OPINION


                    This appeal concerns litigation that arose after a widowed wife, appellant

LeAnn Randall, discovered that her late husband, Dr. Bob Randall, had left her less of an inheritance

than she claims he promised her. Alleging that she had been tortiously deprived of her interest in

community property that Bob had transferred to an irrevocable trust benefitting his children from

a prior marriage, LeAnn sued not only Bob’s estate but several individuals and entities who

had provided estate-planning services to the couple or Bob prior to Bob’s death.1 The defendants

included an attorney—appellee J. Mark Avery—and Avery’s law firm at the time—appellee Goodall

& Davison, P.C.—from whom she sought recovery of damages under theories of professional

negligence and breach of fiduciary duties.




           1
               Because the couple shared a common surname, we refer to them by their first names for
clarity.
               Avery and Goodall & Davison each moved for summary judgment asserting

limitations and no evidence of causation. Subsequently, after LeAnn filed a response to their

motions, appellees each moved to strike expert affidavit testimony on which she relied for

proof of causation. The trial court struck the material part of the expert’s affidavit and then granted

appellees’ summary-judgment motions without stating the grounds on which it relied.

               Following a severance that made these rulings final, LeAnn brought this appeal,

challenging the trial court’s evidentiary ruling and each of the grounds on which it could have relied

in rendering summary judgment. We will affirm the judgment in part, reverse in part, and remand.


                                         BACKGROUND

               The underlying events center on a succession of family tragedies—a spouse’s terminal

illness, the marital difficulties that can arise amid such trauma, and litigation between family

members.2 LeAnn, a master’s-degreed dietician who then worked at the Scott & White Clinic, and

Bob, a doctor there, were married in July 2004. While this was LeAnn’s first marriage, Bob was a

widower—his first wife had died of cancer about six months before Bob began dating LeAnn—and

he had two teenaged children from his prior marriage.

               In mid-2005, Bob was diagnosed with cancer. Despite surgery and chemotherapy,

Bob’s cancer eventually spread and worsened to the extent that, in September 2006, the couple began

meeting with a financial planner, Sarah Buenger of Briand Financial Services, Inc., to discuss estate

planning in anticipation of Bob’s eventual death from the disease. Subsequently, Avery, an attorney


       2
         We take the foregoing facts from the summary-judgment record, viewed in the light most
favorable to the non-movant, LeAnn. See Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661
(Tex. 2005).

                                                  2
at Goodall & Davison, was hired to provide legal services in connection with the estate planning.

An engagement letter, subsequent billing statements, and other correspondence reflected that, at least

in the inception of the relationship, Avery was providing legal services jointly to Bob and LeAnn.

               Bob and LeAnn, along with Buenger, met with Avery in person on October 27, 2006.

At this juncture, Bob and LeAnn shared the overarching objective that the combined value of

their two estates would be divided in three roughly equal shares among Bob’s two children

and LeAnn following Bob’s death. The value of the couple’s combined estate was approximately

between $4 and $5 million, and consisted chiefly of investment and retirement accounts in Bob’s

name and life insurance, assets that would pass by beneficiary designation rather than by will.

During their October 27 meeting and at various times afterward, Avery advised the couple (although

communicating chiefly with Bob and Buenger rather than LeAnn) regarding strategies for achieving

the intended three-way division while minimizing tax liability. A further objective was to remedy

perceived past errors in the administration of an irrevocable life insurance trust (ILIT) that

Bob and his first wife had established in 1999 for the benefit of their two children. An ILIT, simply

described, provides a potential means of avoiding estate taxes by transferring ownership of a life

insurance policy to the trust so the policy proceeds are not included in the decedent’s estate.

               As one component of the strategies or plan, Avery drafted a will for Bob that divided

his personal and household effects to LeAnn and Bob’s children in three equal shares and directed

the executor to divide the residue among the three in a manner that, to the extent reasonably possible,

would achieve an equal three-way division of the total value of the couple’s combined estates,

counting not only the assets passing through the will itself but also any non-probate assets and any

community property. Bob also named LeAnn as the sole primary beneficiary of certain non-probate

                                                  3
assets he held, including a Scott & White retirement plan and a Scott & White 403(b) savings plan.

Conversely, Avery, as well as Buenger and other Briand employees, advised or assisted the couple

in transferring a $1.75 million term life insurance policy on Bob’s life—formerly a community

asset, with LeAnn named as the sole primary beneficiary—out of the couple’s estates to the ILIT

benefitting Bob’s children, and changing the policy’s beneficiary to the ILIT’s trustee. To facilitate

the transfer, Avery prepared a form “Partition Agreement (Life Insurance)” for Bob and LeAnn

to execute in agreement that the life insurance policy was Bob’s separate property. Avery similarly

prepared a form “Partition Agreement (Cash)” for the couple to execute in the event Bob gifted funds

originating in a community account to the trust.

               On February 13, 2007, Bob and LeAnn returned to Avery’s office to sign several

documents Avery had prepared for them. Bob signed his will, and he and LeAnn executed the form

“Partition Agreement (Life Insurance),” agreeing that the $1.75 million life insurance policy was

Bob’s separate property. With Buenger’s assistance, the policy beneficiary was changed to the ILIT

and policy ownership was likewise transferred to the trust. A few weeks thereafter, on March 1,

2007, LeAnn and Bob utilized the “Partition Agreement (Cash)” form in agreeing that $26,400 in

a Bank of America account was Bob’s separate property. This amount was ultimately transferred

to the ILIT trustee, evidently in anticipation that a portion would be used to pay annual premiums

on the $1.75 million life insurance policy.

               In the meantime, according to LeAnn, the couple had been experiencing marital

difficulties centering, at least in part, on religious differences.3 Their difficulties were intensified


       3
         LeAnn averred that Bob was Mormon, while she came from a Catholic background.
Although she had converted to Mormonism prior to the couple’s marriage, LeAnn testified that she

                                                   4
by the stress of Bob’s illness and the family’s move to a new home, and worsened to the point that,

in September 2007, LeAnn moved out of the family’s new home and began living with her parents.

The couple reconciled to the extent that, in October 2007, LeAnn moved back into the home. Not

long thereafter, according to LeAnn, Bob presented her with a copy of a divorce petition that he

claimed to have filed against her. However, while the couple would temporarily separate once more

during the spring of 2008, they ultimately did not divorce.

               LeAnn would later insist that she remained with Bob despite the couple’s problems,

caring for Bob and helping with such tasks as driving him to his doctor’s appointments, out of

love and in the belief that Bob likewise loved her, was committed to their marriage, and would be

leaving her the promised one-third share of the couple’s total wealth after he died. In fact, as early

as May 2007, as the couple’s marital relationship continued to deteriorate, Bob had contacted Avery

and begun discussing changes to his estate plan to reduce the share LeAnn received. Ultimately,

around the time of the couple’s first separation, Bob directed Avery to draft a revised will that left

LeAnn nothing. Avery did so, and Bob signed the new will on September 28, 2007. Neither Bob

nor Avery advised LeAnn that Bob was seeking to depart from the couple’s original estate plan or

had revised his will.

               Additionally, with some guidance from Avery and Buenger, Bob changed the

designations of beneficiary on various of his retirement and investment accounts to substitute

his children’s ILIT as sole primary beneficiary in lieu of LeAnn. At least in some instances, Bob


began to have deepening “doubts” about Mormon teachings and ultimately refused, during the fall of
2006, and to Bob’s great displeasure, to be “sealed” in marriage with him. There was also evidence
that the couple’s conflicts became increasingly problematic after Bob discovered that LeAnn had
been surreptitiously attending Catholic mass.

                                                  5
obtained the consent of LeAnn to make the change—notwithstanding their ongoing marital

difficulties.4 Similarly, in April 2008, at or around the time of the couple’s second separation, Bob

obtained LeAnn’s signature on a second cash partition agreement similar to the first, agreeing that

an additional amount of $26,400 in a Bank of America account was Bob’s separate property.

                LeAnn would later claim that she had signed these documents and the earlier partition

agreements without reading them, and that she had little understanding of the relevant financial

concepts or “legal jargon” in any event. She insisted that she had simply signed whatever Bob had

asked her to sign in relation to estate-planning matters because she “trusted [her] husband” and

understood that she was merely continuing to effectuate the couple’s original plan under which she

would receive a one-third share of the total wealth.

                Bob died on July 7, 2009. Approximately a week after the funeral service, LeAnn

discovered Bob’s revised will and that it devised no property to her. Around the same time, LeAnn

claimed, she learned that while Bob had left her an Allianz annuity, she was no longer a beneficiary

of the $1.75 million life insurance policy or Bob’s Scott & White retirement benefits.

                On July 6, 2010—about a year after Bob’s death and her discovery of its economic

implications for her—LeAnn filed suit against the executor of Bob’s estate; Avery and Goodall &

Davison; and the trustees of the ILIT and two additional trusts through which Bob’s children

were to inherit under his will. Through subsequent amendments, LeAnn also joined Buenger and

Briand as defendants. In her live pleadings,5 LeAnn complained that her late husband, assisted by


       4
         For example, LeAnn’s notarized signature, dated October 8, 2007, appears on forms
changing the beneficiary of Bob’s Scott & White retirement plan and 403(b) savings plan.
       5
           Her fifth amended petition.

                                                  6
Avery, Goodall & Davison, Buenger, and Briand, had acted tortiously in causing the loss of her

interest in community property that Bob transferred to the irrevocable trust that benefitted Bob’s

children—specifically, the $1.75 million life insurance policy, the two $26,400 cash payments, and

Bob’s retirement accounts, which she asserted to be community property. She sought damages from

each of these defendants in “an amount not to exceed $1,572,339.70,” which she asserted was the

value of the share in community property that she had lost.6

               With respect to the appellees in this case, LeAnn alleged that Avery (and, through

respondeat superior, Goodall & Davison) were liable to her for negligence in preparing and advising

her to sign the partition agreements as a means of accomplishing their intended three-way division

of value instead of devising some “alternative planning idea that would not have caused [LeAnn] to

give up her community property rights.”7 LeAnn further pled that Avery (and Goodall & Davison)

had breached “fiduciary duties” in failing to advise LeAnn to secure separate counsel who would

more aggressively advocate her interests, in preparing Bob’s revised will and failing to inform

LeAnn of it, and in “failing to inform” LeAnn that she was “irrevocably giving up rights to [Bob’s]

retirement plans” by consenting to changes in beneficiaries and their impact. LeAnn additionally




       6
          Thus, as she emphasizes on appeal, LeAnn has not sought to recover the value of the
inheritance that Bob allegedly promised her, per se, but instead the value of her interest in
community property that she claims to have lost through the defendants’ wrongful actions.

          In addition to seeking these damages from Bob’s estate, appellees, Buenger, and Briand,
LeAnn also sought punitive damages from Bob’s estate and a constructive trust on the estate and the
children’s trusts.
       7
         LeAnn does not purport to assert any direct theory of liability against Goodall & Davison,
only respondeat superior based on Avery’s alleged acts or omissions.

                                                7
invoked the discovery rule, pleading that she had not known and had no reason to know of Avery’s

alleged breaches until her discovery of the true amount of her inheritance in July 2009.

               Avery and Goodall & Davison each filed summary-judgment motions that combined

a no-evidence ground challenging the causation elements of LeAnn’s claims and a traditional

ground purporting to establish that LeAnn’s negligence claims were barred by the two-year statute

of limitations. Additionally, Avery, but not Goodall & Davison, asserted a no-evidence ground

asserting that any evidence LeAnn might adduce in support of her claims would sound in negligence

rather than breach of fiduciary duty, revealing her “breach-of-fiduciary-duty” claims to be merely

improperly “fractured” negligence claims.8

               LeAnn filed essentially identical responses to the two summary-judgment motions,

attaching evidence that included affidavits from herself and an expert, estate planning attorney

Michael J. Cenatiempo, who purported to give opinions in support of her liability theories. Both

Avery and Goodall & Davison filed objections to Cenatiempo’s affidavit, each asserting, in material

part, that his testimony regarding causation was “conclusory” (i.e., lacking an adequate underlying

basis) and, thus, inadmissible and incompetent.

               Following a hearing, the trial court sustained appellees’ material objections to

Cenatiempo’s testimony and excluded the challenged testimony. The court then granted both of their

summary-judgment motions without stating the specific grounds on which it relied. On the agreed



       8
          Goodall & Davison also asserted a no-evidence ground challenging the duty element of a
negligence theory that LeAnn had pled as of the time of the motion, but subsequently non-suited
by omission from her subsequent amended pleadings. LeAnn and Goodall & Davison agree that
this negligence theory and corresponding summary-judgment ground were not addressed in the
trial court’s judgment and are not at issue on appeal.

                                                  8
motions of Avery and Goodall & Davison, the trial court severed LeAnn’s claims against them into

a separate suit, making the court’s rulings final. This appeal followed.


                                            ANALYSIS

               With new counsel on appeal, LeAnn challenges the trial court’s judgment in

five issues.9 In her first two issues, LeAnn argues that the trial court erred to the extent it granted

summary judgment based on the two-year statute of limitations applicable to negligence claims. In

her third issue, urged in the event we reject her first two, LeAnn challenges Avery’s “fracturing”

ground, arguing that the trial court erred to the extent it granted Avery’s summary-judgment motion

on the basis that its breach-of-fiduciary-duty claims all sound only in negligence and are thus subject

to the two-year rather than four-year limitations period.

               LeAnn’s remaining issues address appellees’ no-evidence summary-judgment

grounds challenging her proof of causation. In her fourth issue, LeAnn urges that even if

Cenatiempo’s expert testimony is excluded, she presented evidence of causation sufficient to

overcome summary judgment and that expert testimony was neither required nor necessary to

meet her burden. In her fifth and final issue, LeAnn argues that the trial court abused its discretion

in excluding Cenatiempo’s testimony.


Standard of review

               We review the trial court’s summary judgment rulings de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accident Ins. Co. v. Knott,


       9
           In what she styles as a sixth issue, LeAnn merely emphasizes that she non-suited the
negligence theory that was the subject of Goodall & Davison’s no-duty ground and that this issue
is not before us. See supra note 8.

                                                  9
128 S.W.3d 211, 215 (Tex. 2003). Summary judgment is proper when there are no disputed issues

of material fact and the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c);

Knott, 128 S.W.3d at 215-16. When reviewing a summary judgment, we take as true all evidence

favorable to the non-movant, and we indulge every reasonable inference and resolve any doubt in the

non-movant’s favor. Valence Operating Co., 164 S.W.3d at 661; Knott, 128 S.W.3d at 215. Where,

as here, the trial court does not specify its basis for granting summary judgment, the judgment must

be affirmed if any of the grounds asserted in the motion has merit. See Star-Telegram, Inc. v. Doe,

915 S.W.2d 471, 473 (Tex. 1995).

               As previously indicated, appellees relied on both “traditional” and no-evidence

grounds for summary judgment. Under the traditional summary-judgment standard, the movant has

the initial burden of conclusively negating at least one essential element of a claim or defense on

which the non-movant has the burden of proof or conclusively establishing each element of a claim

or defense on which the movants have the burden of proof. See Tex. R. Civ. P. 166a(c); Science

Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997). Once the movant has done so, and

only if it does, the burden shifts to the non-movant to produce evidence creating a genuine issue of

material fact as to the challenged element or elements in order to defeat the summary judgment. See

Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996).

               Under the no-evidence summary-judgment standard, by contrast, a movant may

challenge whether there is legally sufficient evidence of one or more essential elements of a claim or

defense on which the adverse party would have the burden of proof at trial. Tex. R. Civ. P. 166a(i);

see Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). In response, the

non-movant has the burden of presenting summary-judgment evidence raising a genuine issue

                                                 10
of material fact as to the challenged element or elements. Tex. R. Civ. P. 166a(i); Ford Motor Co.

v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence summary judgment will be sustained

when: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by rules of

law or of evidence from giving weight to the only evidence offered to prove a vital fact; (3) the

evidence offered to prove a vital fact is no more than a scintilla; or (4) the evidence conclusively

establishes the opposite of a vital fact. City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005);

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). More than a scintilla of supporting

evidence exists if the evidence would allow reasonable and fair-minded people to differ in

their conclusions. King Ranch, 118 S.W.3d at 751. “Less than a scintilla of evidence exists when

the evidence is ‘so weak as to do no more than create a mere surmise or suspicion’ of a fact.” Id.

(quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).


Causation

               Appellees’ summary-judgment motions each asserted no-evidence grounds

challenging the causation element of LeAnn’s claims against them, specifically whether there is

evidence of causation in fact. To overcome these grounds, LeAnn had the burden to present legally

sufficient evidence that an alleged act or omission by Avery that is a basis for her claims was, in

reasonable probability, a “substantial factor” in causing her injury—the loss of her community-

property interests in the $1.75 million life insurance policy, the two $26,400 payments, and Bob’s

retirement benefits—and that “but for” such act or omission, LeAnn would not have been harmed.

See, e.g., Ford Motor Co. v. Ledesma, 242 S.W.3d 32, 45–46 (Tex. 2007). And it is not enough for




                                                 11
LeAnn to show merely that Avery’s actions furnished the condition that made her injury possible.

See IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 799 (Tex. 2003).

               Because the ramifications of a particular act or omission by a lawyer are frequently

beyond the common understanding of lay jurors, proof of the requisite causal linkage to injury

often requires expert testimony. See Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119–20

(Tex. 2004). For example, expert testimony is held to be necessary to establish a causal link between

a lawyer’s acts or omissions in the preparation or prosecution of a lawsuit and an adverse ultimate

outcome in the suit—the so-called “case within a case”—because answering that question requires

specialized knowledge of a tribunal’s likely actions in light of the governing law and procedural

rules. See, e.g., id.; Cantu v. Horany, 195 S.W.3d 867, 873–74 (Tex. App.—Dallas 2006, no pet.).

However, expert testimony on causation may not be required when “the clients themselves,” as

opposed to a tribunal or other third party, “were the key decisionmakers, relying upon their attorney’s

advice with unfortunate consequences.” Alexander, 146 S.W.3d at 119. For example, in certain

cases where a former client has sought damages arising from his entry into an injurious transaction

in reliance on a lawyer’s allegedly deficient advice, the former client has been deemed

competent to testify as to his reliance on the advice and the adverse effects of the transaction. See

Delp v. Douglas, 948 S.W.2d 483, 495–96 (Tex. App.—Fort Worth 1997), rev’d on other grounds,

987 S.W.2d 879 (Tex. 1999); Connolly v. Smith, No. 03-03-00575-CV, 2004 WL 1898220, at *5–6

(Tex. App.—Austin Aug. 26, 2004, pet. denied) (mem. op.).

               On appeal, LeAnn argues that she presented evidence of three ways in which Avery’s

alleged acts or omissions were the cause in fact of her losing her community-property interests in

these assets. Relatedly, in her fourth issue, she contends that these causal linkages are within the

                                                  12
common understanding of lay jurors, such that she was not required to present expert testimony to

explain them. Nor, LeAnn insists, did she need such testimony because she had “abundant” evidence

of causation in the form of lay testimony, including her own affidavit, and documentary evidence.

In the alternative, in her fifth issue, LeAnn asserts that the trial court abused its discretion in

excluding Cenatiempo’s expert opinions on causation.

                The first of the three causal linkages, LeAnn asserts, is evidence that Avery’s “breach

of fiduciary duty” in helping Bob revise his will to exclude her caused her to lose the value she was

to receive under the original estate plan in exchange for having signed away her community-property

interests in the $1.75 million life-insurance policy and two $26,400 payments. In essence, LeAnn

urges that Avery is the but-for cause of the financial impact of Bob’s revised will on her because the

lawyer did not simply decline the representation.

                The chief impediment to this theory of causation, as appellees correctly observe,

is that Bob had the absolute right to change his will as he saw fit, whether the changes were drafted

by Avery or someone else, and regardless of any contrary wishes of LeAnn or anyone else. See

Tex. Prob. Code §§ 57, 58 (“Every person competent to make a last will and testament may thereby

devise and bequeath all the estate, right, title, and interest in property the person has at the time of

the person’s death, subject to the limitations prescribed by law.”); Pool v. Diana, No. 03-08-00363-

CV, 2010 WL 1170234, at *7 (Tex. App.—Austin Mar. 24, 2010, pet. denied) (mem. op.) (noting

that testator can “dispose of his property in any manner he chooses” (citing In re Estate of Morris,

577 S.W.2d 748, 755 (Tex. Civ. App.—Amarillo 1979, writ ref’d n.r.e.) (“Neither courts, juries,

relatives nor friends of a testator may say how property should be passed by a will or rewrite a will

because they do not like the distribution of the property.”))). In light of that principle, the effect of

                                                   13
any alternative conduct by Avery, and more particularly whether it would have ultimately prevented

Bob from executing a will excluding LeAnn, would turn on a succession of contingencies that the

summary-judgment evidence does not come close to addressing. LeAnn did not address these

contingencies in her affidavit and, in fact, she acknowledged during her deposition that “honestly,

I don’t know” when asked whether her financial situation would have been any different had Bob

hired a lawyer other than Avery to revise his will. As for Cenatiempo, to the extent his testimony

is considered, he seems to complain only that Avery’s assistance in drafting the revised will led

ultimately to its admission to probate, but never attempts to explain why or how Avery would have

prevented that outcome by declining the representation. In short, LeAnn presents no more than

“mere conjecture, guess, or speculation” that Bob would not have executed a will excluding LeAnn

if only Avery had declined to assist him. See Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue,

271 S.W.3d 238, 246 (Tex. 2008) (noting that “proximate cause cannot be satisfied by mere

conjecture, guess, or speculation”); see also City of Keller, 168 S.W.3d at 813–14 (discussing the

equal-inference rule).10

                The second causal linkage, according to LeAnn, is evidence that Avery’s “breach of

fiduciary duties” in failing to disclose to her his “conflict of interest” and Bob’s efforts to deny her

anticipated inheritance caused her damages by preventing her from more vigorously protecting her

rights. In other words, LeAnn argues that the summary-judgment evidence raises a fact issue as to

whether (1) she would have taken alternative action in defense of her rights had Avery disclosed

these matters to her; and (2) that action would have prevented her injury. But LeAnn’s testimony


       10
          The same analysis would apply to the extent LeAnn is similarly arguing that Avery caused
her injury by advising or assisting Bob in changing the beneficiaries on his retirement accounts.

                                                  14
regarding what she would have done differently with the additional information is limited to the

following statement:


       Had I known the extent of [Bob’s] actions to deprive me not only of the one-third of
       the estate he had promised I would have received at his death but of my own
       property, I would have sought the advice and assistance of an attorney to represent
       me in the divorce Bob had filed.


LeAnn does not attempt to explain why or how litigating the divorce Bob filed during the fall

of 2007 would have yielded a better financial outcome for her—and only an expert would have

been qualified to do so. See Alexander, 146 S.W.3d at 120 (holding expert testimony necessary to

establish causation in claim that attorney’s negligence caused loss in underlying trial); see also

Finley v. Fargason, No. 03-09-00685-CV, 2010 WL 4053711, at *3 (Tex. App.—Austin Oct. 15,

2010, no pet.) (mem. op.) (expert testimony necessary to establish appellant would have prevailed

at trial in suit to modify parent-child relationship but for his attorney’s alleged professional

negligence). Yet Cenatiempo does not present any opinions regarding the outcome of divorce

litigation if LeAnn had pursued it. Once again, LeAnn can offer no more than speculation and

surmise of a causal linkage between her damages and Avery’s alleged conduct.

               The third and final causal linkage, LeAnn urges, is established by evidence that her

losses of her community-property interests in the $1.75 million life insurance policy and two $26,400

cash payments were directly attributable to the very estate plan that Avery advised her and Bob

to implement. LeAnn alleged that Avery breached the duty of care in devising an estate plan that

required her to transfer these interests to Bob’s sole control while securing her only an expectation

of inheriting under Bob’s will and beneficiary-designated retirement plans in return. LeAnn


                                                 15
insists that she presented summary-judgment evidence that she relied on this plan in executing

the three partition agreements, and that the partition agreements in themselves were her injury. She

adds that the nature of this causal connection was within the competence of lay jurors. See Delp,

948 S.W.2d at 495; Connolly, 2004 WL 1898220, at *5. We agree that LeAnn has, in these ways,

raised a fact issue regarding her third theory of causation. Assuming that Avery acted negligently

in devising an estate plan that entailed LeAnn’s signing away of her interests in the $1.75 million

life insurance policy and two $26,400 cash payments (which is undisputed for purposes of appellees’

summary-judgment motions), LeAnn presented evidence—including her affidavit, her deposition

and those of Avery and Buenger, and the documents reflecting the development and implementation

of the estate plan—that she relied on Avery’s advice in signing the partition agreements that effected

her injury, and this evidence was competent to prove those facts. See Delp, 948 S.W.2d at 496;

Connolly, 2004 WL 1898220, at *6.

               In urging us instead to affirm summary judgment as to LeAnn’s negligence claims,

Avery argues that LeAnn failed to present any evidence that Avery, as opposed to Bob, had anything

to do with her signing the three partition agreements. While there is some summary-judgment

evidence that might support such an inference, at least with respect to the cash partition agreements,

LeAnn testified that she signed each of these documents in reliance on the estate plan Avery advised

her to pursue, and we must credit her testimony and draw reasonable inferences in her favor instead.

See Valence Operating Co., 164 S.W.3d at 661. Avery similarly insists that there is no evidence that

the life insurance policy or subsequent cash payments were, in fact, community property, but the

summary-judgment record included written or e-mail communications among Avery, Buenger, and

the couple evidencing their recognition that both sets of assets were community assets.

                                                 16
               Finally, Goodall & Davison insists that LeAnn failed to respond altogether to its no-

evidence ground challenging the causation element of her negligence claim, effectively

conceding that ground by default. The gravamen of Goodall & Davison’s argument is that while

LeAnn attached evidence relevant to causation to her summary-judgment response, she presented

her arguments discussing that evidence within a section of her response that is preceded by a

heading that references her “breach-of-fiduciary-duty” claims and not her negligence claim. We

reject such a formalistic view of LeAnn’s summary-judgment response and conclude that she

responded to Goodall & Davison’s no-evidence ground with respect to both her breach-of-fiduciary-

duty claims and her negligence claims. See Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193,

206–08 (Tex. 2002).

               In sum, although the trial court properly granted summary judgment as to LeAnn’s

“breach-of-fiduciary-duty” claims based on appellees’ no-evidence grounds challenging the

causation element, it erred to the extent it relied on that ground in granting summary judgment as

to LeAnn’s negligence claims. To this extent, we sustain LeAnn’s fourth issue.


Limitations

               In addition to relying on their no-evidence grounds challenging the causation elements

of each of LeAnn’s claims, appellees both sought summary judgment on the ground that LeAnn’s

negligence claims are barred by the applicable two-year statute of limitations. See Tex. Civ. Prac.

& Rem. Code § 16.003(a); Apex Towing Co. v. Tolin, 41 S.W.3d 118, 120 (Tex. 2001). As the

movants seeking summary judgment on an affirmative defense, appellees bore the burden of

conclusively establishing each of its elements, which meant that they had to conclusively establish


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when LeAnn’s negligence claims accrued and that this occurred more than two years before

LeAnn filed suit in July 2010. See Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842, 846

(Tex. 2005). A cause of action normally accrues when a defendant’s alleged wrongdoing causes

some legal injury. See Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006) (per curiam).

However, LeAnn pled the discovery rule, which, if applicable, would toll accrual until the point in

time when she either knew or should have known the nature of her injury. See Apex Towing Co.,

41 S.W.3d at 121 (citing Willis v. Maverick, 760 S.W.2d 642, 646 (Tex. 1988)). Although appellees

suggest otherwise, where, as here, a plaintiff pleads the discovery rule, the defendant bears

the summary-judgment burden of negating its application. See Via Net, 211 S.W.3d at 313; Burns

v. Thomas, 786 S.W.2d 266, 267 (Tex. 1990); cf. In re Estate of Matejek, 960 S.W.2d 650, 651

(Tex. 1997) (per curiam) (party seeking summary judgment on limitations not required to negate

discovery rule when nonmovant has not pled or otherwise raised it). Assuming the discovery rule

is properly applicable to the case, the movant must negate the existence of a genuine issue of

material fact as to when the plaintiff discovered or should have discovered the nature of the injury.

See Burns, 786 S.W.2d at 267.

               In seeking summary judgment based on limitations, appellees relied solely on the

assertion that LeAnn’s negligence claims had accrued when she executed each of the three partition

agreements that constituted her injury from Avery’s alleged negligence—in February 2007,

March 2007, and April 2008, respectively, each of which occurred more than two years before

LeAnn filed suit in July 2010. But neither appellee mentioned the discovery rule in its summary-

judgment motion or purported to present evidence that would negate its application. Emphasizing

these omissions, LeAnn urges in her second issue that the district court erred in granting summary

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judgment on limitations where she had properly raised the discovery rule but appellees’ motions

do not even mention it. Similarly, in her first issue, LeAnn asserts that appellees failed to negate

the existence of fact issues regarding when she discovered or should have discovered the nature

of her injuries.

                   In addition to erroneously suggesting that they did not bear the summary-judgment

burden to negate the discovery rule, appellees contend that the discovery rule is inapplicable here

because LeAnn’s injuries were not inherently undiscoverable. They reason that LeAnn’s injuries

from Avery’s alleged negligence in devising the estate plan were readily apparent from the face of

the partition agreements themselves. However, “[t]his legal question is decided on a categorical

rather than case-specific basis; the focus is on whether a type of injury rather than a particular injury

was discoverable.” Via Net, 211 S.W.3d at 314 (emphasis in original). And the Texas Supreme

Court has long held that the discovery rule applies to claims for professional negligence by lawyers.

See Apex Towing Co., 41 S.W.3d at 120–21 (citing Willis, 760 S.W.2d at 646); see also Connolly,

2004 WL 1898220, at *2. The rationale for the discovery rule’s application is “based in part on

the special relationship between attorney and client and on the difficulty posed for a client in

determining whether or when malpractice may have occurred.” Apex Towing Co., 41 S.W.3d at 121

(citing Willis, 760 S.W.2d at 645). Consequently, appellees bore the burden of negating the

discovery rule by conclusively establishing that LeAnn discovered or should have discovered her

injuries more than two years before she filed suit.

                   Although appellees urge that the summary-judgment evidence ultimately met this

burden, we are compelled to agree with LeAnn that we must reverse because neither appellee

presented a challenge to the discovery rule as a ground in the summary-judgment motion. See

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Tex. R. Civ. P. 166a(c); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993).

To this extent, we sustain LeAnn’s second issue, and do not reach her first. We likewise need not

reach LeAnn’s third issue concerning Goodall & Davison’s “fracturing” ground, which she presents

in the alternative to her limitations issues, and that our holdings regarding causation have rendered

moot in any event.


                                         CONCLUSION

               We affirm the trial court’s summary judgment as to all of LeAnn’s claims except for

her negligence claims—i.e., her claims predicated on Avery’s alleged negligence in purportedly

causing her to sign away her community interests in the $1.75 million life insurance policy and the

two $26,400 cash payments—and remand them to the trial court for further proceedings.




                                              __________________________________________

                                              Bob Pemberton, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed in part; Reversed and Remanded in part

Filed: July 2, 2013




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