      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-09-00685-CV




                                     Stephen Finley, Appellant

                                                  v.

      Corwin Ray Fargason and Harding, Bass, Fargason, Booth and St. Clair, LLP, a
                               Partnership, Appellees




     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 201ST JUDICIAL DISTRICT
     NO. D-1-GN-06-004564, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                                MEMORANDUM OPINION


                 Stephen Finley, appearing pro se, appeals from the trial court’s order granting

summary judgment in favor of appellees Corwin Ray Fargason and the law firm of Harding, Bass,

Fargason, Booth & St. Clair, L.L.P. (collectively, “Fargason”). Finley contends that the trial court

erred in granting summary judgment on his claim against Fargason for legal malpractice. We affirm

the order of the trial court.


                                          BACKGROUND

                 Finley retained Fargason to handle a suit to modify the custody arrangement set forth

in Finley’s final decree of divorce from his ex-wife, Beverly May.1 The divorce decree, dated


        1
            Fargason did not represent Finley in the original divorce proceedings.
August 21, 1998, appointed May sole managing conservator and Finley possessory conservator of

the couple’s two daughters. On October 5, 1999, Fargason filed a petition to modify the parent-child

relationship on Finley’s behalf, requesting that Finley be appointed sole managing conservator.

                In April 2001, May filed a motion requesting a transfer of venue from Lubbock

County to Travis County, asserting that she had moved to Austin with the children prior to Finley’s

filing of the petition to modify. The Lubbock County district court granted the motion and

transferred the case to Travis County.

                In July 2002, Fargason filed an agreed motion to withdraw as counsel, stating in the

motion that Finley wished to represent himself at trial. The trial court granted the motion by a

written order that included the following language: “The Court finds that STEPHEN G. FINLEY

wishes to represent himself, that the client consents and agrees to represent himself, and that the

withdrawal of RAY FARGASON is not sought for delay only.” Finley claims that he and Fargason

had reached an agreement to have Fargason withdraw as counsel during the discovery period and

then reappear as Finley’s counsel shortly before trial. Fargason disputes this assertion, and no

evidence of any such agreement appears in the record. In any event, Fargason did not reappear as

counsel prior to trial.

                Finley’s suit to modify proceeded to a bench trial in September 2002, with Finley

representing himself pro se. After hearing the evidence, the trial court entered a final order denying

Finley’s petition to modify. The trial court also granted in part a counter-petition filed by May,

increasing Finley’s monthly child support obligation from $485 to $585. The trial court assessed

costs and attorney’s fees against Finley in the amount of $47,250, ordering this amount to be treated

as unpaid and accrued child support.

                                                  2
               Finley then retained Fargason to represent him in post-judgment proceedings

regarding his suit to modify the parent-child relationship. Fargason filed a petition for writ of

mandamus on Finley’s behalf in this Court, seeking to overturn the portion of the trial court’s order

classifying the attorney’s fee award as child support. This Court denied Finley’s petition on the

ground that the issue could properly be raised on appeal from the final judgment. See In re Finley,

No. 03-03-00095-CV, 2003 Tex. App. LEXIS 2335, at *3 (Tex. App.—Austin Mar. 20, 2003, no

pet.) (mem. op.). Fargason then filed a direct appeal from the final judgment, complaining (1) that

the trial court erred in characterizing the attorney’s fee award as child support and (2) that the

transfer of venue from Lubbock County to Travis County was improper because May’s motion to

transfer was untimely filed. See Finley v. May, 154 S.W.3d 196, 197 (Tex. App.—Austin 2004, no

pet.). This Court sustained the first issue and modified the judgment to delete all characterizations

of the attorney’s fee award as child support. See id. at 197-98. The transfer of venue, however,

was affirmed due to Finley’s failure to object to the motion to transfer on timeliness grounds. See

id. at 199.

               In December 2006, Finley filed suit against Fargason, alleging negligence,

professional negligence, gross negligence, breach of implied and express warranties, and breach of

contract in connection with Fargason’s representation of Finley in the custody proceeding.2 In

support of his claims, Finley generally asserted that Fargason had failed to timely file motions and

had committed errors and omissions in connection with the issuance of citation and service of critical



        2
          Finley was represented by counsel at the time his original petition was filed in this case,
but his attorney passed away shortly thereafter. Finley represented himself pro se throughout the
remainder of the proceedings.

                                                  3
pleadings on the opposing party. Finley also generally alleged that Fargason had failed “to exercise

ordinary care, as a reasonably prudent attorney would have done under the same or similar

circumstances.”3

               In February 2009, the trial court entered an agreed docket control order, setting the

deadline for the designation of testifying experts as May 1, 2009. When no experts were designated

by that date, Fargason filed traditional and no-evidence motions for summary judgment, alleging,

among other things, that Finley’s negligence, gross negligence, and professional negligence claims

represented a single claim for legal malpractice, which failed as a matter of law in the absence of

expert testimony.4 Fargason also argued that Finley’s breach of warranty and breach of contract

claims failed as a matter of law because they were improperly fractured legal malpractice claims.

See Beck v. Law Offices of Edwin J. Terry, Jr., P.C., 284 S.W.3d 416, 426-27 (Tex. App.—Austin

2009, no pet.) (citing rule against “fracturing” legal malpractice claims into separate claims such as



       3
         In his summary-judgment responses, Finley abandoned his allegations regarding improper
issuance of citation or service of pleadings in favor of allegations that Fargason had (1) unreasonably
delayed filing the petition to modify, (2) abandoned Finley prior to trial, (3) failed to make certain
arguments on appeal, (4) failed to seek a reduction in Finley’s child support obligations,
(5) persuaded Finley to “give up” an owelty lien on the residence he had shared with May, and
(6) advised Finley not to file a legal malpractice claim against an attorney he had previously retained
in connection with the divorce proceeding. Because Fargason did not object to the addition of these
allegations and responded to many of them on the merits, they were tried by consent. See Via Net
v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006) (observing that when issue is raised for first time
in summary-judgment response, movant may “respond on the merits and try the issue by consent”);
see also Roark v. Stallworth Oil & Gas, Inc., 813 S.W.2d 492, 495 (Tex. 1991).
       4
          “Courts frequently use ‘legal malpractice’ and ‘professional negligence’ interchangeably
to refer to claims arising from an attorney’s allegedly inadequate legal representation, although
‘professional negligence’ might be a more precise term.” Beck v. Law Offices of Edwin J. Terry, Jr.,
P.C., 284 S.W.3d 416, 427 n.10 (Tex. App.—Austin 2009, no pet.). Because the parties use the term
“legal malpractice” to refer to the claim at issue in this appeal, we will do so as well.

                                                  4
ordinary negligence, breach of contract, or fraud).

               The trial court granted summary judgment in favor of Fargason and dismissed all of

Finley’s claims. Finley’s motion for new trial was overruled, and this appeal followed.


                                    STANDARD OF REVIEW

               Summary judgments are reviewed de novo. Valence Operating Co. v. Dorsett,

164 S.W.3d 656, 661 (Tex. 2005). To prevail on a motion for summary judgment, the movant must

show that there is no issue of material fact and that it is entitled to judgment as a matter of law. TX

Far West, Ltd. v. Texas Invs. Mgmt., Inc., 127 S.W.3d 295, 301 (Tex. App.—Austin 2004, no pet.).

Evidence favorable to the non-movant is taken as true and every reasonable inference must be

indulged in favor of the non-movant and any doubts resolved in its favor. Id.

               A no-evidence motion for summary judgment must be granted if the moving party

asserts that there is no evidence of one or more essential elements of a claim or defense on which

the non-movant would have the burden of proof at trial, and the nonmovant fails to produce more

than a scintilla of summary-judgment evidence raising a genuine issue of material fact on those

elements. Tex. R. Civ. P. 166a(i); Cox Tex. Newspapers, L.P. v. Penick, 219 S.W.3d 425, 432-33

(Tex. App.—Austin 2007, pet. denied).


                                           DISCUSSION

               Finley’s points of error on appeal can be summarized as a single issue arguing that

the trial court erred in granting summary judgment in favor of Fargason and dismissing his claim for




                                                  5
legal malpractice.5 To recover on a claim of legal malpractice, a plaintiff must prove that (1) the

attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately

caused the plaintiff’s injuries, and (4) damages occurred. See Peeler v. Hughes & Luce, 909 S.W.2d

494, 496 (Tex. 1995). In legal malpractice cases based on prior litigation, the plaintiff must establish

the element of proximate cause by proving that but for the attorney’s actions, he would

have prevailed on the underlying cause of action. See Zenith Star Ins. Co. v. Wilkerson, 150 S.W.3d

525, 533 (Tex. App.—Austin 2004, no pet.); see also Alexander v. Turtur & Assocs., 146 S.W.3d

113, 117 (Tex. 2004). The plaintiff’s burden in this regard is often referred to as the “suit within a

suit” requirement. Hoover v. Larkin, 196 S.W.3d 227, 231 (Tex. App.—Houston [1st Dist.] 2006,

pet. denied).

                Expert testimony “regarding the standard of skill and care ordinarily exercised by an

attorney” is generally required to establish that the attorney breached a duty to the plaintiff. Ersek

v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex. App.—Austin 2002, pet. denied). Expert

testimony is also required to establish causation when the causal link between the attorney’s

negligence and client’s harm is “beyond the jury’s common understanding.” Alexander, 146 S.W.3d

at 119-20; see also id. at 120 (holding that counsel’s alleged errors “were not so obviously tied to

the adverse result as to obviate the need for expert testimony”).

                It is undisputed that Finley presented no expert testimony in support of his legal

malpractice claim. He argues, however, that expert testimony is unnecessary because the elements




       5
          Finley appears to have conceded in his motion for new trial that his other causes of action
fail under the rule against fracturing legal malpractice claims. See id. at 426-27.

                                                   6
of breach and causation in this case are so obvious that they fall within the common understanding

of a lay juror. See id. at 120 (holding that “[i]n some cases the client’s testimony may provide”

causal link between attorney’s negligence and client’s harm, “but in others the connection may be

beyond the jury’s common understanding and require expert testimony”); Mazuca v. Schumann,

82 S.W.3d 90, 97 (Tex. App.—San Antonio 2002, pet. denied) (“Expert testimony [on element of

breach] is not required if the attorney’s lack of care and skill is so obvious that the trier of fact can

find negligence as a matter of common knowledge.”).6

                Assuming without deciding that any of Finley’s allegations constitute a breach of the

standard of care, our review of Finley’s contentions reflects that the causal link between his

allegations and any damages he may have suffered is not sufficiently obvious to render expert

testimony unnecessary. See Alexander, 146 S.W.3d at 120. Finley’s primary complaint appears to

be that Fargason unreasonably delayed filing the original petition to modify. However, expert

testimony would be necessary to a fact-finder’s evaluation of whether, in the absence of that delay,

Finley would have prevailed at trial. While Finley contends that the delay allowed May to obtain

a transfer of venue, this argument is unpersuasive absent expert testimony that he would have

prevailed at trial if venue had remained in Lubbock County. Similarly, Finley’s complaints related




        6
          This Court has recently declined the opportunity to adopt the Mazuca exception to the
requirement of expert testimony to establish breach of the standard of care. See Bagan v. Hays,
No. 03-08-00786-CV, 2010 Tex. App. LEXIS 6530, at *11 (Tex. App.—Austin Aug. 12, 2010, no
pet. h) (mem. op.) (stating that “[e]ven if this Court were to embrace the Mazuca exception—an
issue we need not decide—the exception would not apply here”). Here, as in Bagan, we need not
decide the issue, as Finley’s failure to present expert testimony on the element of causation is
dispositive. See Alexander v. Turtur & Assocs., 146 S.W.3d 113, 119 (Tex. 2004) (emphasizing that
“[b]reach of the standard of care and causation are separate inquiries”).

                                                   7
to Fargason’s withdrawal as counsel prior to trial requires expert testimony as to whether Finley

would have prevailed at trial if Fargason had not withdrawn. Finley also complains that Fargason

did not request a custody evaluation from the court or seek to hold May in contempt for violating

court orders, but as to both of these complaints, expert testimony would be necessary to establish that

(1) the court would have granted the request and (2) the granting of the request would have altered

the outcome of the trial in Finley’s favor. With respect to Finley’s claim that Fargason was negligent

in persuading him not to pursue a legal malpractice claim against his previous attorney, expert

testimony would be necessary to establish that Finley would have prevailed on the foregone

malpractice claim. Similarly, Finley’s assertion that Fargason was negligent in failing to seek a

reduction of his child support obligations requires expert testimony that such a request would have

been granted.

                Finley also claims that Fargason failed to notify May of a postponed deposition during

the modification proceeding, which then somehow caused Finley to “give up” an owelty lien on the

marital residence in order to spare Fargason from a publicized grievance. Without the benefit of

expert testimony, it is beyond a fact-finder’s common understanding how Fargason’s failure to notify

May of a deposition caused Finley to give up an owelty lien. Proximate cause requires proof of both

cause-in-fact and foreseeability. McClure v. Allied Stores of Tex., Inc., 608 S.W.2d 901, 903 (Tex.

1980). Setting aside the issue of cause-in-fact, Finley presents no evidence, expert or otherwise, that

a reasonable attorney should have foreseen the dangers that were allegedly created by Fargason’s




                                                  8
failure to notify May of a deposition.7 See Travis v. City of Mesquite, 830 S.W.2d 94, 98 (Tex. 1992)

(“‘Foreseeability’ means that the actor, as a person of ordinary intelligence, should have anticipated

the dangers that his negligent act created for others.”).

               In light of the foregoing, we hold that in the absence of expert testimony, Finley

cannot establish the element of proximate cause with respect to any of the allegations discussed

above. As for Finley’s remaining allegation of appellate malpractice, expert testimony on causation

is not necessarily required because in cases involving appellate malpractice, the element of causation

is not a question for the jury to determine, but a question of law. See Millhouse v. Wiesenthal,

775 S.W.2d 626, 628 (Tex. 1989). Finley’s appellate malpractice argument is primarily based on

the assertion that Fargason should have made a “fundamental error” argument on appeal with respect

to the untimely motion to transfer, as that issue had not been preserved for appellate review. See

Finley, 154 S.W.3d at 199; see also In re C.O.S., 988 S.W.2d 760, 763, 765 (Tex. 1999) (stating that

fundamental error, which can be raised for first time on appeal, exists “in those rare instances in

which the record shows the court lacked jurisdiction or that the public interest is directly and

adversely affected as that interest is declared in the statutes or the Constitution of Texas”). Finley

cannot prove the element of causation, however, because he cannot establish that he would have

prevailed if the “fundamental error” argument had been advanced on appeal. As previously stated,

fundamental error is limited to jurisdictional questions or matters directly and adversely affecting

the public interest. See C.O.S., 988 S.W.2d at 765. The granting of an untimely motion to transfer


       7
         Fargason strongly disputes Finley’s characterization of these and other events. In the
summary-judgment context, however, we must take all facts, evidence, and inferences in favor of
the non-movant. See Nixon v. Mr. Prop. Mgmt Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

                                                  9
venue does not fall into either category. See Newman v. King, 433 S.W.2d 420, 422 (Tex. 1968)

(explaining that fundamental-error review applies only to errors that “directly and adversely affect[]

the interest of the public generally,” as opposed to those affecting only “the particular litigants”).

While Finley also takes the position that Fargason should have made an “abuse of discretion”

argument on appeal, he presents no explanation as to what that argument would have entailed or how

the outcome of the appeal would have changed had the argument been advanced. To the extent

Finley also complains of Fargason’s actions in filing a mandamus proceeding, it is undisputed that

the unsuccessful mandamus petition had no adverse effect on Finley’s ability to present his claims

in the direct appeal. Accordingly, Finley cannot establish the element of causation with respect to

his allegation of appellate malpractice.

               Finley also contends that the trial court’s grant of summary judgment was premature

because the discovery period had not yet been completed. Finley filed this suit in December 2006.

Summary judgment was not granted until August 18, 2009. In the interim, Finley conducted

discovery by serving Fargason with requests for admissions, interrogatories, and requests for

production. By the May 1, 2009 deadline to designate testifying experts, well over two years after

suit was originally filed, Finley had not designated any expert witnesses. While Finley argues that

he was forced to delay completion of discovery because he needed time to find a new attorney, the

fact remains that he had already spent over two years searching for counsel at the time summary

judgment was granted. Under the circumstances present here, we cannot conclude that the trial court

prematurely granted summary judgment.

               Having found no error in the trial court’s grant of summary judgment, we overrule



                                                 10
Finley’s points of error on appeal.


                                      CONCLUSION

               We affirm the order granting summary judgment.




                                          __________________________________________

                                           Diane M. Henson, Justice

Before Justices Patterson, Pemberton and Henson

Affirmed

Filed: October 15, 2010




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