Opinion issued November 21, 2013




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-11-00293-CV
                           ———————————
                   KAREN KRISTINE SILVIO, Appellant
                                       V.
            JASON B. OSTROM AND NICOLE SAIN, Appellees


            On Appeal from the County Civil Court at Law No. 2
                          Harris County, Texas
                       Trial Court Case No. 937164


                 DISSENTING MEMORANDUM OPINION

      I respectfully dissent. I disagree with the majority’s application of the

standard of review of a summary judgment in a legal malpractice suit, and I would
not subject the appellees to a meritless trial on Silvio’s grievance when she is

unable even to identify a single act of malpractice that caused her harm.

      This suit was brought by appellees, Jason Ostrom and Nicole Sain, to collect

attorney’s fees from appellant, Karen Kristine Silvio. Silvio filed a counterclaim

for legal malpractice. Ostrom and Sain filed a traditional motion for summary

judgment alleging that Silvio could not prove the element of proximate cause on

her malpractice claim. The trial court granted the motion. Ostrom and Sain then

nonsuited their original claims for breach of contract and suit on a sworn account

so that only Silvio’s appeal of her malpractice claim was left. The majority

reverses the summary judgment granted to Ostrom and Sain on Silvio’s

malpractice claim and remands that claim for trial.

      Proof that Ostrom and Sain’s malpractice proximately caused her to lose the

underlying suit is an essential element of Silvio’s malpractice claim. In that suit,

Silvio’s siblings sued her in probate court on two deeds allegedly conveying their

interest and their deceased mother’s interest in their mother’s house to Silvio. The

summary judgment record conclusively demonstrates that Silvio lost the

underlying case because of her own acts and that her loss was not proximately

caused by malpractice on the part of Ostrom and Sain. Indeed, Silvio has failed

even to allege a causal connection between any specific act of malpractice and the

result in the underlying case, much less to present proof sufficient to raise a


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material fact issue as to whether any act or acts of Ostrom and Sain’s proximately

caused her any harm. Therefore, I would affirm the summary judgment.

                                      Background

      As the majority acknowledges, Silvio’s siblings sued her in probate court to

set aside two general warranty deeds Silvio had obtained—one from her siblings

and one from her mother, the deceased—each purportedly conveying their interest

in the mother’s home to Silvio. Silvio’s siblings claimed that the deed bearing

their signatures was notarized and delivered without their consent, that the deed

bearing their mother’s signature was forged, and that neither deed was supported

by consideration. Silvio hired Ostrom and Sain in an attempt to establish the

binding nature of the deeds. The record reflects that they did legal research,

interviewed witnesses, took depositions, and hired a handwriting expert in pursuit

of Silvio’s interests. They then filed a motion for summary judgment on her

behalf, seeking to establish that a deed signed by a grantor does not have to be

notarized to convey an interest in property. However, her siblings raised a fact

issue as to delivery of the deed, and the trial court denied the motion. Ostrom and

Sain then urged Silvio to settle the case following court-ordered mediation, but she

refused. When they advised her that they believed settlement was in her best

interest, setting out their reasons in detail and attaching correspondence from the

adverse parties detailing the weaknesses in her claim, she demanded that they take


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no further action on the case and terminated the representation. Ostrom and Sain

moved to withdraw as counsel, advising Silvio of her right to object. Silvio did not

object.

      Subsequently, Silvio was represented in the probate case by two separate

attorneys, each of whose representations of her terminated prior to trial.1 Silvio

ultimately decided to represent herself pro se. The trial court entered a declaratory

judgment against her, finding that both deeds lacked consideration and that the

siblings did not deliver to Silvio the deed purportedly conveying their interest in

the property. On appeal, however, a panel of this Court reversed the judgment

against her as to the deed signed by her mother, holding that no consideration was

needed and that the deed was valid. Silvio v. Boggan, No. 01-10-00081-CV, 2012

WL 524420, at *3–4 (Tex. App.—Houston [1st Dist.] Feb. 16, 2012, pet. denied)

(mem. op.).

      Ostrom and Sain subsequently filed suit against Silvio for unpaid attorney’s

fees, alleging breach of contract and suit on a sworn account.          Silvio filed

numerous counterclaims. Ostrom and Sain filed a traditional motion for summary

judgment on Silvio’s claims against them, alleging that all of her causes of action

amounted to a single claim for legal malpractice and alleging that Silvio could not


1
      Ostrom and Sain state that Silvio subsequently sued one of these attorneys,
      making essentially the same allegations against him that she has made against
      them.
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show that any act or omission by them caused her any injury, as no act or omission

by them could have impacted whether her siblings delivered a deed to her or

whether the deeds to her from her siblings and her mother were supported by

consideration. The trial court granted Ostrom and Sain’s motion. Ostrom and Sain

then nonsuited their claims for breach of contract and suit on a sworn account.

      Silvio appeals the rendition of summary judgment against her.2 In her brief

on appeal, she alleges “newly discovered evidence.” Specifically, she alleges that

when she reviewed the records in the underlying probate case she discovered an

“original answer” filed by the attorney representing the notary public who

notarized the deed from her mother that stated, “The Plaintiff’s claims are barred

by the applicable [statute] of limitations.” She claims that Ostrom and Sain did not

include this document, which is not part of the summary judgment record, after she

requested her file in its entirety. She further complains that she turned over to

Ostrom and Sain “a folder labeled, ‘last Will and Testament of Joseph E. Silvio,’”

her father, which, she states, “contained our Father[’]s Last Will and Testament
2
      Silvio’s brief contains no citations to the record and, although she cites to legal authority,
      her legal argument is rambling and disjointed. It is thus at least arguable that she has
      failed to adequately brief her malpractice claim. See TEX. R. APP. P. 38.1(i): see, e.g.,
      Dove v. Graham, 358 S.W.3d 681, 685 (Tex. App.—San Antonio 2011, pet. denied)
      (court would not consider client’s claim challenging propriety of order granting
      attorneys’ motion to sever her claim for legal malpractice where she did not support
      claim with clear and concise argument or with citations to authorities or record in support
      of her claim); see also Wheeler v. Green, 157 S.W.3d 439, 444 (Tex. 2005) (per curiam)
      (holding that “pro se litigants are not exempt from the rules of procedure”); Godfrey v.
      Sec. Serv. Fed. Credit Union, 356 S.W.3d 720, 723 (Tex. App.—El Paso 2011, no pet.)
      (holding same and noting that allowing otherwise “could give a pro se litigant an unfair
      advantage over litigants represented by counsel”).
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and other necessary documents that would have completed the probate of his will.”

And she complains that she also made Ostrom and Sain aware of a “nasty” letter

that was e-mailed to her by one of her siblings “at her then place of employment,

which would reveal that they had received her certified letters, (that she was

instructed to send by her then Attorney), that the furniture, car and jewelry all

belonged to her and that Mother signed her Deed” and that she turned this letter

over to Ostrom and Sain.       That letter, likewise, is not part of the summary

judgment record.

      Silvio complains that all of this is new evidence and that it demonstrates that

Ostrom and Sain “failed to plead the [statute] of limitations as an affirmative

defense and, therefore, the limitation is waived as a defense leaving [Silvio] to go

[through] court hearings and trial for 6 years, unnecessarily.”           She further

complains that Ostrom and Sain “failed to bring forward evidence pertaining to the

recorded Deeds of the property and failed to show evidence from the emailed letter

as proof that her siblings were well aware that the [Decedent] had signed a Deed to

[Silvio] and as a result that it is mentioned that [she] owned the furniture, jewelry,

car etc. that there would have been no reason for [her] to forge a signature, fraud a

[sic] title or be labeled as ‘thief’ of any kind.” No evidence to substantiate Silvio’s

claims was before the trial court as part of the summary judgment evidence.




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      In addition, Silvio admits that she introduced no expert evidence as to her

claims. She also claims that she was prejudiced by Ostrom and Sain’s nonsuit of

their contract claims because it has prevented her from bringing her legal

malpractice suit.

      The majority reverses and remands Silvio’s malpractice case for trial. I

would affirm.

                                  Summary Judgment

A.    Standard of Review

      A defendant who moves for summary judgment must either (1) disprove at

least one element of each of the plaintiff’s causes of action or (2) conclusively

establish each essential element of any affirmative defense, thereby rebutting the

plaintiff’s causes of action. Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995)

(per curiam). To prevail on a traditional summary judgment motion, the movant

must establish that there is no issue of material fact and that it is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c); SAS Inst. Inc. v. Breitenfeld,

167 S.W.3d 840, 841 (Tex. 2005) (per curiam). There is no genuine issue of

material fact and a matter is conclusively proven when reasonable people could not

differ in their conclusions. City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex.

2005). A defendant who conclusively negates at least one element of an opposing

party’s claim is entitled to summary judgment on that claim.           IHS Cedars


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Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004).

If the movant establishes a right to summary judgment, the burden shifts to the

nonmovant to raise a genuine issue of material fact to defeat summary judgment.

Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995); Jane Doe 1 v.

Pilgrim Rest Baptist Church, 248 S.W.3d 831, 834 (Tex. App.—Dallas 2008, pet.

denied).

      In reviewing a summary judgment, we take as true all evidence favorable to

the nonmovant, and we make all reasonable inferences in the nonmovant’s favor.

Sudan v. Sudan, 199 S.W.3d 291, 292 (Tex. 2006) (per curiam); KPMG Peat

Marwick v. Harrison Cnty. Hous. Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).

Because summary judgment is a question of law, we review a trial court’s

summary judgment decision de novo. Mann Frankfort Stein & Lipp Advisors, Inc.

v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009). “We affirm a traditional summary

judgment if the evidence submitted in support of the motion and any response

shows that no genuine issue of material fact exists and that the moving party is

entitled to judgment as a matter of law.” Jane Doe 1, 248 S.W.3d at 834.

B.    Legal Malpractice

      Ostrom and Sain alleged in their summary judgment motion that Silvio

could not prove that any act of malpractice by them proximately caused damage to

her and that they were therefore entitled to summary judgment on that claim. In


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her first issue, Silvio argues that summary judgment should not have been entered

against her on her malpractice claim.

      “Legal malpractice may include an attorney’s failure to exercise ordinary

care in preparing, managing, and presenting litigation.” Alexander v. Turtur &

Assocs., Inc., 146 S.W.3d 113, 119 (Tex. 2004). When, as here, a plaintiff’s

alternative causes of action are essentially means to an end to achieve one

complaint of legal malpractice, the causes of action are bundled together as one

legal malpractice cause of action. See Klein v. Reynolds, Cunningham, Peterson &

Cordell, 923 S.W.2d 45, 49 (Tex. App.—Houston [1st Dist.] 1995, no writ). I

agree with the majority that, although Silvio asserted a number of counterclaims

against Ostrom and Sain, her claims amount to a single claim of legal malpractice.

      Complaints about an attorney’s care, skill, or diligence in representation of a

client implicate the duty of ordinary care and sound in negligence. Rangel v.

Lapin, 177 S.W.3d 17, 22–24 (Tex. App.—Houston [1st Dist.] 2005, pet. denied);

Humphreys v. Delcourt, No. 01-09-00025-CV, 2009 WL 5174245, at *5 (Tex.

App.—Houston [1st Dist.] Dec. 31, 2009, no pet.) (mem. op.). The elements of

legal malpractice are: (1) a legal duty owed by the attorney to the plaintiff;

(2) breach of that duty; and (3) damages (4) proximately caused by the breach.

Alexander, 146 S.W.3d at 117; Rangel, 177 S.W.3d at 22. If a legal malpractice

claim arises from prior litigation, the plaintiff must prove that “but for” the


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attorney’s breach of his duty, the plaintiff would have prevailed in the underlying

case.     Rangel, 177 S.W.3d at 22.          This is called the “suit-within-a-suit”

requirement. Id.

        When the plaintiff alleges that some failure on the attorney’s part caused an

adverse result in prior litigation, she must produce evidence from which a jury

might reasonably infer that the attorney’s conduct caused the damages alleged.

Alexander, 146 S.W.3d at 117. Breach of the standard of care and causation are

two separate inquiries, so that, even when negligence is admitted, causation is not

presumed. Id. at 119. Moreover, the trier of fact must have some basis for

understanding the causal link between the attorney’s negligence and the harm

allegedly suffered by the plaintiff.      Id.   If the issue is beyond the common

understanding of a jury, expert testimony regarding causation is required. Id.;

Rangel, 177 S.W.3d at 22.        Specifically, the “wisdom and consequences” of

making tactical decisions, such as which witnesses to call, what testimony to

obtain, or when to cross-examine, are almost invariably matters of judgment, so

that expert testimony is required to establish causation. Alexander, 146 S.W.3d at

119–20.

        Here, Ostrom and Sain argued that they “were involved in the beginning of

[Silvio’s] suit, and put her in a good position to settle the case for less than the cost

of litigating it fully.” They asserted that Silvio “chose not to take that settlement


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offer, and at trial lost because there was no consideration for either of the deeds,

and no delivery for one of the deeds.” They further argued:

      The injury that [Silvio] suffered was the loss of her case; no act or
      omission by [Ostrom and Sain] could have changed the fact that she
      did not pay consideration to her siblings or mother, nor could it have
      changed the fact that she could not establish delivery of the deed
      signed by her siblings. In the same vein, [Ostrom and Sain] could not
      have anticipated that anything they did, or did not do, would impact
      the facts supporting [Silvio’s] siblings’ suit against her.

      Ostrom and Sain’s evidence in support of their arguments at the trial court

level included their detailed invoices showing services rendered to Silvio,

including performing legal research, interviewing witnesses, taking depositions,

hiring a handwriting expert, filing a motion for summary judgment on her behalf,

and attending mediation.      The summary judgment evidence also included an

affidavit from Ostrom regarding the fees incurred and Silvio’s failure to pay, which

caused harm to the firm. Ostrom also averred that his firm was not representing

Silvio at the time of the trial in the underlying case. Ostrom and Sain also

attached, as summary judgment evidence, the declaratory judgment entered by the

trial court in the underlying litigation declaring (1) that there was no delivery of the

deed from her siblings to Silvio and (2) that there was no consideration to support

either the deed from her siblings or the deed from her mother.

      Ostrom and Sain point to the trial court’s declaratory judgment declaring

that Silvio’s own actions and those of her siblings caused her loss as a matter of


                                          11
law. Specifically, her siblings failed to deliver the deed to her, and she paid no

consideration for either deed.    The record also reflects that Ostrom and Sain

attempted to establish delivery of the deed to support Silvio’s claims and that they

attempted to obtain evidence showing she had not forged the deed from her

mother. Silvio fails to allege anything else that they could have done to protect her

interests, and the record reflects that they did much more, including urging her to

settle her claims once the weaknesses in her claims had been exposed.

      This evidence established Ostrom and Sain’s entitlement to judgment as a

matter of law on Silvio’s legal malpractice claim, based on their contention that

she could not prove that any act of malpractice on their part proximately caused

her to lose the underlying case. See SAS Inst., 167 S.W.3d at 841 (holding that

summary judgment movant must prove that no genuine issue of material fact exists

to prevail on motion); IHS Cedars Treatment Ctr., 143 S.W.3d at 798 (defendant

who conclusively negates at least one element of opposing party’s claim is entitled

to summary judgment on that claim). The burden then shifted to Silvio to raise a

material fact issue as to causation to defeat summary judgment. Centeq Realty,

Inc., 899 S.W.2d at 197; Jane Doe 1, 248 S.W.3d at 834.

      Silvio produced absolutely no argument, no authority, and no evidence to

raise a material fact issue on the element of proximate cause, on which Ostrom and

Sain’s motion for summary judgment on her malpractice claim was based. She


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merely recited a list of unrelated “facts” she claimed to have discovered and

alleged that these would have changed the outcome of her case. She failed to point

to a single act of malpractice committed by Ostrom and Sain, other than to allege

that they had the “newly discovered” documents in their possession, including the

document she claims to have found by combing the probate court’s records and

which, like the other documents, she fails to tie to any breach of duty by Ostrom

and Sain.

      Silvio’s only other complaint, besides her allegation of newly discovered

evidence, is that she lost her case below and was thereby harmed. She fails to tie

the cause for her loss in the underlying case in any way to Ostrom and Sain—her

initial attorneys, who were then followed by two other attorneys before she took

over her representation herself.

      Even if, for some reason, negligence on Ostrom and Sain’s part is assumed,

Silvio has produced absolutely no evidence—or even made any argument—from

which a jury might reasonably infer that Ostrom and Sain’s conduct proximately

caused the damages alleged by Silvio, which, on appeal, appear to be the loss of a

car, furniture, and jewelry that were not at issue in the underlying litigation; the

loss of her claim to the interest in her mother’s house that she contended her

siblings deeded over to her, but which the trial court found had failed to be

delivered to her; and the loss of her mother’s interest in the house, which she was


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ultimately awarded on appeal to this Court. See Alexander, 146 S.W.3d at 117.

There is no proof whatsoever—much less proof sufficient to raise a genuine issue

of material fact—that “but for” specified breaches of their duty by Ostrom and

Sain, Silvio would have prevailed on the only claim on which she ultimately lost in

the trial court—her claim that she was entitled to the deed to her siblings’ share of

their mother’s house. See Rangel, 177 S.W.3d at 22.

      Finally, even though Silvio complains about the strategies of Ostrom and

Sain, she admits that she produced no expert evidence to support her claims that

their actions fell below the ordinary standard of professional care or proximately

caused her loss, and she has produced no other evidence that they did. Yet, if the

issue is beyond the common understanding of a jury, as legal malpractice issues

ordinarily are, expert testimony regarding causation is required. See Alexander,

146 S.W.3d at 119–20; Rangel, 177 S.W.3d at 22. Moreover, the “wisdom and

consequences” of making tactical decisions are almost invariably matters on which

expert testimony is required to establish causation, and these are precisely the type

of decisions Silvio questions. Alexander, 146 S.W.3d at 119–20.

      Ostrom and Sain have produced evidence from which a jury could

reasonably infer that they did not cause Silvio’s alleged injuries.       Silvio has

presented no evidence sufficient to raise a genuine issue of material fact as to her

legal malpractice claim in general or the causation element of that claim in


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particular.    Therefore, I agree with the trial court that Ostrom and Sain

conclusively disproved Silvio’s malpractice claim as a matter of law and that she

failed to produce even a scintilla of evidence to rebut their proof. Ostrom and Sain

have, therefore, proved their entitlement to summary judgment. I would overrule

Silvio’s first issue.

                                          Nonsuit

       In her second issue, Silvio alleges that she was prejudiced and could not

bring her malpractice action because Ostrom and Sain nonsuited their claims for

breach of contract and suit on a sworn account. First, Silvio has, in fact, ably

challenged the summary judgment on her claim to the satisfaction of the majority

of this panel, and she has obtained the holding of the majority that she is entitled to

go to trial on her malpractice claim. So her argument as to her inability to pursue

her claim because of Ostrom and Sain’s nonsuit fails. See CTL/Thompson Tex.,

LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 300 (Tex. 2013) (per

curiam) (requiring that non-suit must not prejudice right of adverse party to be

heard on pending counterclaim for affirmative relief). Second, it is inconceivable

to me that Silvio has been prejudiced in any other way by Ostrom and Sain’s

attempt to end this litigation by sacrificing the attorney’s fees they have sworn she

owes them. I would, therefore, overrule Silvio’s second issue.




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                                    Conclusion

      I would affirm the trial court’s summary judgment in favor of Ostrom and

Sain on Silvio’s legal malpractice claim.




                                                 Evelyn V. Keyes
                                                 Justice


Panel consists of Justices Keyes, Higley, and Massengale.

Justice Keyes, dissenting.




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