Affirmed in Part, Reversed and Remanded in Part, and Majority and
Dissenting Opinions filed April 9, 2015.




                                     In The

                    Fourteenth Court of Appeals

                             NO. 14-13-00943-CV

        JON T. NEUBAUM AND BARBARA NEUBAUM, Appellants
                                       V.

       BRENTON M. STANFIELD, THOMAS P. STONE, STONE &
      ASSOCIATES, LLP, & JIMMY VAN KNIGHTON, II, Appellees

                   On Appeal from the 284th District Court
                         Montgomery County, Texas
                   Trial Court Cause No. 12-04-03663-CV

                  DISSENTING                  OPINION


      The majority holds that by failing to submit expert testimony on causation,
the Stone Parties did not conclusively negate the causation element of the
Neubaums’ legal malpractice claim. Because causation in this case is within a
jury’s common understanding and the record conclusively demonstrates that
judicial error, a new and independent cause, caused the Neubaums’ alleged harm, I
would affirm the summary judgment. Accordingly, I dissent.

       This case presents two issues. The first is whether judicial error can operate
as a new and independent cause in a legal malpractice suit. The second is whether
an attorney-defendant claiming judicial error as a means to negate the causation
element must present expert testimony when the judicial error is apparent on the
face of the record. 1

       As grounds for its traditional summary judgment, the Stone Parties asserted
that, as a matter of law, their allegedly actionable conduct did not proximately
cause any damage to the Neubaums, and that the Stone Parties cannot be held
liable for an error committed by the trial court in the Usury Lawsuit. Essentially,
the Stone Parties contend that the trial court’s error in the Usury Lawsuit was a
new and independent cause of the Neubaums’ alleged harm.

       A new and independent cause is not an affirmative defense but a component
of the proximate cause issue. Columbia Rio Grande Healthcare, L.P. v. Hawley,
284 S.W.3d 851, 856 (Tex. 2009); see also Comm. on Pattern Jury Charges, State
Bar of Tex., Tex. Pattern Jury Charges: General Negligence & Intentional Torts
PJC 3.1 (2012). “A new and independent cause of an occurrence is the act or
       1
           Even if expert testimony were required in this case, the Neubaums waived the
deficiency by failing to expressly object to the lack of expert testimony in their written answer to
the Stone Parties’ motion. McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex.
1993) (“[I]ssues a non-movant contends avoid the movant’s entitlement to summary judgment
must be expressly presented by written answer to the motion or by other written response to the
motion and are not expressly presented by mere reference to summary judgment evidence.”
(emphasis added)); see Tex. R. Civ. P. 166a(c). Additionally, despite the fact that neither party
raised the lack-of-expert-testimony issue below or on appeal, the majority has reversed the
summary judgment after determining on its own motion that expert testimony is required.
However, courts of appeals cannot on their own motion raise grounds to reverse a summary
judgment that were not briefed or argued in the appeal. Wells Fargo Bank, N.A. v. Murphy, —
S.W.3d —, No. 13-0236, 2015 WL 500636, at *2 (Tex. Feb. 6, 2015) (citing San Jacinto River
Auth. v. Duke, 783 S.W.2d 209, 209 (Tex. 1990)). In essence, by failing to raise the issue in the
trial court and on appeal, the Neubaums have conceded that expert testimony was not required. It
is not this court’s duty to make the Neubaums’ arguments for them.

                                                 2
omission of a separate and independent agent, not reasonably foreseeable, that
destroys the causal connection, if any, between the act or omission inquired about
and the occurrence in question.” Hawley, 284 S.W.3d at 856. “A new and
independent cause alters the natural sequence of events, produces results that
would not otherwise have occurred, is an act or omission not brought into
operation by the original wrongful act of the defendant, and operates entirely
independently of the defendant’s allegedly negligent act or omission.” Id. at 857.

       There is no binding Texas precedent directly addressing the question of
whether judicial error constitutes a new and independent cause in the legal
malpractice context.2 Cases from other jurisdictions, however, indicate that a
judicial error can be a new and independent cause as long as the attorney preserved
the error by making the necessary legal arguments and the attorney’s negligence
did not contribute to the judicial error such that the judicial error could have been
reasonably anticipated. See Crestwood Cove Apts. Bus. Trust v. Turner, 164 P.3d
1247, 1255-56 (Utah 2007); Huang v. Brenson, 7 N.E.3d 729, 737 (Ill. Ct. App.
2014); see Lombardo v. Huysentruyt, 110 Cal. Rptr. 2d 691, 702 (Cal. Ct. App.
2001); Simko v. Blake, 506 N.W.2d 258, 260 (Mich. Ct. App. 1993), aff’d, 532
N.W.2d 842 (Mich. 1995). These courts reason that a lawyer should not be subject
to liability every time a judge erroneously rules against the lawyer’s client. Turner,

       2
          The idea of a judicial-error “defense” is not completely foreign in Texas. In Vitale v.
Keim, No. 01-95-00401-CV, 1997 WL 549186 (Tex. App.—Houston [1st Dist.] Aug. 29, 1997,
pet. denied) (not designated for publication), the First Court of Appeals considered the issue of
whether judicial error was the sole proximate cause of a plaintiff’s harm. The defendant-
attorneys argued that a bankruptcy judge misapplied the Bankruptcy Code and that the
bankruptcy judge’s decision would have been corrected on appeal. The court first assumed that
Texas courts would recognize the “sole cause defense of judicial error” in a malpractice suit. But
because Fifth Circuit opinions on the issue indicated that the law was not settled, the court
concluded that the bankruptcy judge’s decision would not necessarily have been reversed.
Therefore, the defendant-attorneys did not conclusively prove that judicial error was the
proximate cause of the plaintiff’s harm. Id. at *6–*8. Here, in contrast, a court of appeals
actually did reverse the trial court on the issue raised by the defendant law firm.

                                                3
164 P.3d at 1256. Otherwise, lawyers would become guarantors of correct judicial
decision-making and would be forced to burden an already overburdened legal
system with inordinate quantities of additional motions and evidence that, in most
cases, will prove superfluous. Id.; Simko v. Blake, 532 N.W.2d 842, 847 (Mich.
1995).

      Here, the relevant evidence is undisputed. The Stone Parties represented the
Neubaums, the defendants in the Usury Lawsuit. The Stone Parties objected to the
sufficiency of the evidence regarding an issue on which the plaintiff in the Usury
Lawsuit bore the burden of proof—i.e., the existence of an agency relationship
between the Neubaums and Buddy March, one of the Neubaums’ business
associates. The trial court overruled the objection. The Stone Parties lodged the
same objection in a motion for new trial. The trial court overruled the objection
again. A court of appeals reversed the trial court on the same issue raised at trial by
the Stone Parties. Neubaum v. Buck Glove Co., 302 S.W.3d 912, 920 (Tex. App.—
Beaumont 2009, pet. denied).

      Nothing in the record indicates that the Stone Parties’ negligence contributed
to the judicial error such that the error was foreseeable. The alleged acts of
negligence committed by the Stone Parties were not related to and did not
contribute to the trial court’s error in the Usury Lawsuit. For example, the Stone
Parties’ alleged failure to submit the usury-cure letter into evidence was unrelated
to the issue of whether March was the Neubaums’ agent. The Stone Parties’
alleged failure to conduct discovery in a timely manner was also unrelated to the
issue of whether March was the Neubaums’ agent. None of the negligent acts
alleged to have been committed by appellees bears any relationship to the question
of whether March was the Neubaums’ agent. Moreover, the plaintiffs in the Usury
Lawsuit had the burden of proving the agency relationship. The Neubaums (and

                                          4
      Turning to the second issue, the Stone Parties did not have to present expert
testimony on causation. Expert testimony is not required when causation is within
the jury’s common understanding. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d
113, 119 (Tex. 2004). Expert testimony is generally required in matters concerning
the attorney’s exercise of judgment. Such matters may include which witnesses to
call, what testimony to obtain, or when to cross-examine. Id. The wisdom and
consequences of these tactical choices are generally beyond the ken of most jurors.
Id. Additionally, expert testimony is usually required when the underlying
litigation encompasses complex legal concepts or medical malpractice. See, e.g.,
Kelley & Witherspoon, LLP v. Hooper, 401 S.W.3d 841, 849–50 (Tex. App.—
Dallas 2013, no pet.) (expert testimony is required in legal malpractice suit when
proving the underlying medical malpractice case would require expert testimony);
F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221 (Tex. App.—Eastland 2005,
no pet.) (expert testimony is required in legal malpractice suit when the underlying
case involves the effect of a bankruptcy filing on the malpractice plaintiff’s
claims).

      Some cases, however, do not require expert testimony. For instance, expert
testimony on causation is not required when the attorney allows the statute of
limitations to run on a client’s claim. James V. Mazuca & Assocs. v. Schumann, 82
S.W.3d 90, 97 (Tex. App.—San Antonio 2002, pet. denied) (en banc). This is
because the attorney’s error is “readily apparent from the face of the record.” E.g.,
Bagan v. Hays, No. 03-08-00786-CV, 2010 WL 3190525, at *4 (Tex. App.—
Austin Aug. 12, 2010, no pet.) (mem. op.) (declining to extend Mazuca to
determination of whether an attorney’s drafting of a provision in a divorce decree
constituted negligence). Similarly, in personal-injury cases, expert testimony on
causation is not required when the evidence establishes a sequence of events


                                         6
      Turning to the second issue, the Stone Parties did not have to present expert
testimony on causation. Expert testimony is not required when causation is within
the jury’s common understanding. Alexander v. Turtur & Assocs., Inc., 146 S.W.3d
113, 119 (Tex. 2004). Expert testimony is generally required in matters concerning
the attorney’s exercise of judgment. Such matters may include which witnesses to
call, what testimony to obtain, or when to cross-examine. Id. The wisdom and
consequences of these tactical choices are generally beyond the ken of most jurors.
Id. Additionally, expert testimony is usually required when the underlying
litigation encompasses complex legal concepts or medical malpractice. See, e.g.,
Kelley & Witherspoon, LLP v. Hooper, 401 S.W.3d 841, 849–50 (Tex. App.—
Dallas 2013, no pet.) (expert testimony is required in legal malpractice suit when
proving the underlying medical malpractice case would require expert testimony);
F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221 (Tex. App.—Eastland 2005,
no pet.) (expert testimony is required in legal malpractice suit when the underlying
case involves the effect of a bankruptcy filing on the malpractice plaintiff’s
claims).

      Some cases, however, do not require expert testimony. For instance, expert
testimony on causation is not required when the attorney allows the statute of
limitations to run on a client’s claim. James V. Mazuca & Assocs. v. Schumann, 82
S.W.3d 90, 97 (Tex. App.—San Antonio 2002, pet. denied) (en banc). This is
because the attorney’s error is “readily apparent from the face of the record.” E.g.,
Bagan v. Hays, No. 03-08-00786-CV, 2010 WL 3190525, at *4 (Tex. App.—
Austin Aug. 12, 2010, no pet.) (mem. op.) (declining to extend Mazuca to
determination of whether an attorney’s drafting of a provision in a divorce decree
constituted negligence). Similarly, in personal-injury cases, expert testimony on
causation is not required when the evidence establishes a sequence of events


                                         6
providing a strong, logically traceable connection between the triggering event and
the plaintiff’s resulting condition. Guevara v. Ferrer, 247 S.W.3d 662, 667 (Tex.
2007).

       This case falls into the category of cases that do not require expert testimony
on causation. The record here demonstrates: (1) the Stone Parties argued at trial
and in a motion for new trial that the evidence was insufficient to prove agency; (2)
the trial judge rejected the Stone Parties’ arguments; and (3) the court of appeals
reversed the Neubaums’ case on the ground that the evidence was insufficient to
prove agency. The trial judge’s error is readily apparent from the face of the
record. The facts establish a logical sequence of events connecting the trial judge’s
error and the Neubaums’ resulting condition. Therefore, the Stone Parties were not
required to present expert testimony to satisfy their summary-judgment burden. 3

       Judicial error was a new and independent cause absolving the Stone Parties
of liability. Expert testimony on causation was not required because the judicial
error was readily apparent on the face of the record. I dissent.



                                            /s/       Marc W. Brown
                                                      Justice

Panel consists of Chief Justice Frost and Justices Donovan and Brown. (Frost, C.J.,
majority)

       3
          As a practical matter, it is hard to imagine who the Stone Parties could offer as an
expert since it is not their burden to prove causation but rather the existence of a new and
independent cause. The trial judge in the Usury Lawsuit could not testify. See Alexander, 146
S.W.3d at 119 (“[T]he decisionmaker here was the bankruptcy judge, who quite properly was not
asked to, and did not, testify as to how he might have ruled if the case had been presented
differently.”). Nor could a sitting judge. Joachim v. Chambers, 815 S.W.2d 234, 239-40 (Tex.
1991) (malpractice case; sitting judge cannot testify regarding trial judge’s error in underlying
litigation). And, given that the trial judge’s error is obvious from the record, what would an
expert say?

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