Opinion issued August 30, 2012.

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-11-00078-CV

———————————

ROBERT B. TAYLOR, Appellant

V.

ALONSO, CERSONSKY & GARCIA, P.C., JAMES A. CERSONSKY, 

JOHN CAUSEY, AND HOPE AND CAUSEY, P.C., Appellees

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2008-08861

O P I N I O N

In this legal malpractice case, Robert B. Taylor appeals the trial court’s 

rendition of summary judgment in favor of his former attorneys. Taylor was sued 
2

in the underlying case for allegedly causing a car accident that left the passenger in 

the other car in a permanent vegetative state. In the car accident case, Taylor 

initially was represented by James A. Cersonsky and Alonso, Cersonsky & Garcia, 

P.C. (Cersonsky). After Cersonsky withdrew from the representation, John Causey 

and Hope and Causey, P.C. (Causey) took over Taylor’s representation. 

Taylor ultimately paid $3 million in personal funds over his $250,000 policy 

limit to settle the car accident suit. He then brought this suit against Cersonsky and 

Causey, asserting claims for legal malpractice, gross negligence, and breach of 

fiduciary duty. Cersonsky and Causey each moved for summary judgment. The 

trial court granted the motions and rendered a take-nothing judgment. Taylor 

appeals, arguing that the trial court erred in granting summary judgment because 

he raised fact issues as to each of the essential elements of his claims. We 

conclude that the trial court correctly granted summary judgment and, accordingly, 

we affirm. 

Background

The accident

In July 2005, Taylor, then seventy-eight years old, was involved in a headon collision on a two-lane road in Chambers County. Russell Fullen, a passenger 

in the other car, suffered a severe brain injury and, as a result, fell into a permanent 

vegetative state. Fullen, who was twenty-one years old at the time of the accident, 
3

will require round-the-clock medical care for the rest of his life. It is estimated that 

the cost of his medical care will approach $20 million.

The accident report completed by the Chambers County Sheriff’s Office 

indicated that Taylor and Leach, the driver of the car in which Fullen rode, were 

driving in opposite directions. Taylor attempted to turn left in front of Leach, who 

swerved to his left to avoid Taylor. Taylor then swerved back into his lane of 

traffic, striking Leach. The report concluded: “[Taylor] drove on the wrong sidenot passing, and [Leach] may have taken a faulty evasive action.” Taylor 

ultimately was charged with a moving violation in connection with the accident.

Taylor’s insurer, Allstate Insurance Company, retained The ProNet Group to 

investigate the accident. ProNet’s January 2006 accident reconstruction report 

noted that Taylor claimed Leach caused the accident by driving erratically and 

swerving into Taylor’s lane of traffic. Nevertheless, the report concluded that the 

evidence, some of which was not conclusive, suggested that the accident did not 

occur as Taylor had described. Rather, ProNet concluded that it was more likely 

that the accident occurred as described in the police report. In February 2006, 

Allstate informed Taylor that his potential liability exceeded his policy limits. 

Fullen’s suit against Taylor

In February 2006, Fullen, through his family, sued Taylor. Allstate retained

Cersonsky to defend Taylor in the suit. Cersonsky communicated with Taylor and 
4

Richard Baker, Taylor’s personal attorney, during Cersonsky’s representation of 

Taylor. One of Taylor’s main objectives in the litigation was to prevent disclosure 

of his personal financial information. To that end, Taylor, Baker, and Cersonsky 

decided to file a special exception and motion for protection to prevent disclosure 

of that information, which the Fullen family had requested in discovery. The trial 

court ruled against Taylor on the motion for protection and ordered the financial 

information produced. Taylor decided to appeal the decision. Cersonsky, who 

does not handle appeals, told Allstate to transfer the matter to another attorney. 

Cersonsky wrote Taylor and informed him that Allstate was assigning the case to 

Causey, and Cersonsky withdrew. During Cersonsky’s five-month representation 

of Taylor, no scheduling order or trial setting was in place, and no settlement offers 

or demands were exchanged. 

Following Cersonsky’s withdrawal in July 2006, Allstate hired Causey to 

continue the representation of Taylor. While the case ultimately settled eighteen 

months later, the settlement came after several developments—each unfavorable to 

Taylor—came to pass:

• First, Fullen amended his petition to assert a fraudulent transfer claim 

against Taylor, Taylor’s family members, Taylor’s family trust, and 

others, after discovering that Taylor, after the accident, had transferred 

certain significant assets in an apparent effort to avoid exposing his 

substantial net worth to a potential judgment in Fullen’s favor. Fullen 
5

also obtained a temporary restraining order and temporary injunction 

prohibiting the transfer of certain assets until the case was resolved.1 

• Second, the trial court denied Taylor’s motion for summary judgment on 

Fullen’s gross negligence claim, leaving Taylor open to jury 

consideration of exemplary damages. 

• Third, more unfavorable evidence regarding fault came to light. An 

accident reconstruction expert retained by Causey concluded that Taylor 

was a cause of the accident. And an eyewitness to the accident testified 

that the accident was Taylor’s fault because he crossed over into the lane 

of oncoming traffic while attempting to turn left. 

It was against this backdrop that the parties mediated the case, nine days 

before the scheduled trial date in October 2007.2 At the mediation, Allstate 

tendered policy limits of $250,000, and Taylor, who was accompanied by Causey 

and two personal lawyers not retained by Allstate, agreed to pay $3 million to 

settle all of the claims against Taylor, his family members, and related entities. 

Taylor signed the written settlement agreement, as did Causey and Taylor’s 

personal attorney, Baker.

Taylor’s suit against Cersonsky and Causey

In February 2008, Taylor sued Cersonsky, Causey, and Allstate. Taylor 

alleged that Cersonsky and Causey committed legal malpractice by failing to 

properly investigate and develop viable defenses to Fullen’s suit that could have 

 

1 Causey did not handle this aspect of the litigation; it was handled by Nelson 

Hensley, another personal attorney of Taylor.

2

Taylor had made a written $1 million settlement offer through his personal 

attorney, Hensley, the month before the mediation. 
6

resulted in a verdict in Taylor’s favor or significantly reduced the value of Fullen’s 

claims. Although Taylor alleged various acts of malpractice, his primary 

complaint was that his lawyers, who he claims were beholden to Allstate, failed to 

investigate and pursue a defense based on the fact that Fullen failed to wear a seat 

belt on the day of the accident. While Causey pleaded an affirmative defense 

based on Fullen’s failure to wear a seat belt and later designated (after the expert 

deadline) an expert to opine on whether Fullen would have avoided serious injury 

had he worn a seat belt, Taylor complains that it was too little, too late. 

With respect to the alleged breach of fiduciary duty, Taylor contended that 

Cersonsky and Causey defended his case so as to further their own interests, and 

Allstate’s interests, rather than Taylor’s.3 He contends that Cersonsky and Causey, 

each of whom took the case for a flat fee, were motivated to save Allstate from 

having to pay for an expensive defense, and did not act in Taylor’s best interest. 

For example, he contends that a lawyer truly representing Taylor would have 

immediately interviewed witnesses and that Cersonsky and Causey did not work 

up the case soon enough because of the nature of their fee arrangement. Randy 

 

3

Taylor also sued Allstate. He alleged Allstate (1) tortiously interfered with 

Taylor’s relationships with Cersonsky and Causey, (2) breached its contract with 

Taylor and (3) violated the DTPA and Insurance Code in handling his claim. 

After the trial court granted Allstate’s motion for summary judgment, it severed 

the claims against Allstate, and Taylor appealed. This court affirmed in part but 

reversed and remanded Taylor’s DTPA and Insurance Code claims against 

Allstate. See Taylor v. Allstate Ins. Co., 356 S.W.3d 92, 103 (Tex. App.—

Houston [1st Dist.] 2011, pet. denied).
7

Donato, Taylor’s legal expert, also asserts that Cersonsky and Causey improperly 

failed to disclose to Taylor the nature of their fee arrangements with Allstate.

Cersonsky and Causey each filed traditional and no-evidence motions for 

summary judgment on all of Taylor’s claims against them. Both argued that 

Taylor had no evidence of causation or, in other words, that Taylor could not raise 

a fact issue on the “suit within a suit” element of his legal malpractice claim. 

Cersonsky additionally argued that his early withdrawal from the case broke the 

chain of causation. In response, Taylor offered the affidavits of three experts: a 

biomechanical engineering expert, John Lenox, who averred that Fullen would not 

have sustained serious injury if he had been wearing his seat belt on the day of the 

accident; an accident reconstruction expert, William Greenlees, who performed an 

accident reconstruction analysis; and Donato, who opined that Cersonsky’s and 

Causey’s breaches of the standard of care in their representation of Taylor caused 

Taylor to suffer damages. Donato concluded: “Both Cersonsky and Causey failed 

to adequately investigate and prepare the underlying defenses available to them 

rising out of the accident facts. Had that work been performed properly, in my 

opinion, the value of the case should have been reduced to within, Allstate’s policy 

limits.” In other words, “had either of these lawyers, retained by Allstate 

Insurance Company complied with the standard of care in timely locating and 

retaining experts . . . it is more probable than not that a trial would have resulted in 
8

a defense verdict and a pretrial settlement would have been accomplished for the 

available policy limits or less.” The trial court granted the summary judgment 

motions, and Taylor appealed, contending that it erred in doing so. 

Standard of Review

We review a trial court’s summary judgment de novo. Travelers Ins. Co. v. 

Joachim, 315 S.W.3d 860, 862 (Tex. 2010). If a trial court grants summary 

judgment without specifying the grounds for granting the motion, we must uphold 

the trial court’s judgment if any one of the grounds is meritorious. Beverick v. 

Koch Power, Inc., 186 S.W.3d 145, 148 (Tex. App.—Houston [1st Dist.] 2005, 

pet. denied). The motion must state the specific grounds relied upon for summary 

judgment. See TEX. R. CIV. P. 166a(c), (i); Timpte Indus., Inc. v. Gish, 286 S.W.3d 

306, 310 (Tex. 2009). When reviewing a summary judgment motion, we must (1) 

take as true all evidence favorable to the nonmovant and (2) indulge every 

reasonable inference and resolve any doubts in the nonmovant’s favor. Valence 

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005) (citing Provident Life 

& Accident Ins. Co. v. Knott, 128 S.W .3d 211, 215 (Tex. 2003)).

A party seeking summary judgment may combine in a single motion a 

request for summary judgment under the no-evidence standard with a request 

under the traditional summary judgment standard. Binur v. Jacobo, 135 S.W.3d 

646, 650–51 (Tex. 2004). In a no-evidence motion for summary judgment, the 
9

movant asserts that there is no evidence to support an essential element of the 

nonmovant’s claim on which the nonmovant would have the burden of proof at 

trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the 

nonmovant to present evidence raising a genuine issue of material fact as to each 

of the elements specified in the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 

572, 582 (Tex. 2006); Hahn, 321 S.W.3d at 524.

In a traditional summary judgment motion, the movant has the burden to 

show that no genuine issue of material fact exists and that the trial court should 

grant judgment as a matter of law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick 

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

defendant moving for traditional summary judgment must conclusively negate at 

least one essential element of each of the plaintiff’s causes of action or 

conclusively establish each element of an affirmative defense. Sci. Spectrum, Inc. 

v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997).

Discussion

A. Legal malpractice claims

A legal malpractice action is based on negligence. Cunningham v. Hughes 

& Luce, L.L.P., 312 S.W.3d 62, 67 (Tex. App.—El Paso 2010, no pet.) (citing 

Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989)). A plaintiff bringing a 
10

legal malpractice claim must show 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.” Grider v. Mike O’Brien, P.C., 260 

S.W.3d 49, 55 (Tex. App—Houston [1st Dist.] 2008, pet. denied) (quoting 

Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 117 (Tex. 2004)). If the 

legal malpractice claim is based on the attorney’s acts during prior litigation, a 

plaintiff must prove that, but for the attorney’s breach of duty, the plaintiff would 

have been successful in the prior case. Id. (citing Greathouse v. McConnell, 982 

S.W.2d 165, 172 (Tex. App.—Houston [1st Dist.] 1998, pet. denied)); see also

Heath v. Herron, 732 S.W.2d 748, 753 (Tex. App.—Houston [14th Dist.] 1987, 

writ denied) (stating that defendant in underlying case claiming malpractice must 

show a “meritorious defense,” that is, a defense “that, if proved, would cause a 

different result upon retrial of the case”). This causation burden in this type of 

legal malpractice claim has been called the “suit-within-a-suit” requirement. See 

Greathouse, 982 S.W.2d 165 at 173. The “suit within a suit” causation 

requirement applies both to claims for legal malpractice and claims for a former 

attorney’s alleged breach of fiduciary duty when the damages sought are based on 

the attorney’s wrongful conduct in prior litigation. See Finger v. Ray, 326 S.W.3d 

285, 292 (Tex. App.—Houston [1st Dist.] 2010, no pet.); Greathouse, 982 S.W.2d 

165 at 173. 
11

Generally, expert testimony is required to prove causation in a legal 

malpractice suit. See Alexander, 146 S.W.3d at 119–20. Proximate cause has two 

elements: cause in fact and foreseeability. W. Invs., Inc. v. Urena, 162 S.W.3d 

547, 551 (Tex. 2005). “These elements cannot be established by mere conjecture, 

guess, or speculation.” Id. (quoting Doe v. Boys Clubs of Greater Dallas, Inc., 907 

S.W.2d 472, 477 (Tex. 1995)). The test for cause in fact is whether the act or 

omission was a substantial factor in causing the injury without which the harm 

would not have occurred. Id.

1. Taylor’s claims against Cersonsky

Cersonsky moved for summary judgment on all Taylor’s claims on the 

ground that Cersonsky’s withdrawal, and Causey’s substitution, broke the chain of 

causation. We agree that Taylor failed to raise a fact issue as to how Cersonsky’s 

representation of Taylor caused Taylor’s alleged damages.

When an attorney withdraws from representing a client, and another attorney 

agrees to represent the client, the first attorney does not cause the harm suffered by 

the client if nothing the first attorney did or failed to do hampered the second 

attorney’s representation. See Blake v. Lewis, 886 S.W.2d 404, 408 (Tex. App.—

Houston [1 Dist.] 1994, no writ); see also Medrano v. Reyes, 902 S.W.2d 176, 178 

(Tex. App.—Eastland 1995, no writ) (holding, in legal malpractice suit for failure 

to file action within limitations period, that firm should not be liable when it 
12

withdrew twenty-one months before limitations period expired giving former client 

sufficient time to employ other counsel). Here, Cersonsky represented Taylor for 

approximately five months before withdrawing. At the time of his withdrawal in 

July 2006, no trial date had been set and no scheduling order had been entered. 

Causey took over the representation approximately eighteen months before the 

eventual mediation and trial date. In his affidavit, Donato does not assert that 

anything Cersonsky did in that five-month period hampered or interfered with 

Causey’s later representation. Rather, he opines generally that both Cersonsky and 

Causey should have begun their factual investigation of the case earlier than they 

did, but nowhere explains how Cersonsky’s doing so would have yielded a better 

outcome for Taylor. We hold that Taylor failed to raise a fact issue concerning the 

element of causation on his malpractice claim against Cersonsky. See Blake, 886 

S.W.2d at 408; Medrano, 902 S.W.2d at 178. 

We overrule the portion of Taylor’s point of error with respect to the 

summary judgment on Taylor’s malpractice claims against Cersonsky.4

2. Taylor’s claims against Causey

As part of his motion for summary judgment, Causey asserted that there was 

no evidence of the element of causation. Taylor responded with summary

judgment evidence, including an affidavit from a legal expert, Randy Donato. In 

 

4

In addition, the discussion below concerning the causation in the case against 

Causey applies equally to causation in the case against Cersonsky.
13

his affidavit, Donato identifies a number of acts and omissions he contends amount 

to malpractice by Causey. The alleged breaches of the standard of care include: 

failing to interview the investigating officer and other witnesses early in the 

representation; failing to raise and develop a defense based on Fullen’s failure to 

wear a seat belt, specifically, failing to consult or retain appropriate experts 

necessary to prove a seat belt defense; and generally carrying out the 

representation in such a way to save Allstate money rather than pursuing Taylor’s 

best interests. Donato avers that Causey “failed to defend in a reasonable manner 

the ‘how this accident happened’ issues.”

Donato’s affidavit addresses the suit within a suit requirement by positing 

how a hypothetical lawyer “uninfluenced by the fact he is being paid by an 

insurance company, would have defended the underlying lawsuit.” He avers that, 

properly handled, the seat belt defense “would have significantly reduced Mr. 

Fullen’s claims and likely eliminated them altogether.” In other words, Donato 

opines that if a lawyer acting in Taylor’s best interest had defended the case 

properly, and if Taylor had proceeded to trial, the seat belt defense would have 

been a viable defense and yielded an outcome in which Taylor’s liability would 

have been less than the $3 million Taylor paid to settle the case. Donato accords 

the seat belt defense such importance that he concludes that, if it had been properly 

developed in this case, “the value of the case should have been reduced to within 
14

Allstate’s policy limits.” In short, according to Donato, satisfactory counsel would 

have saved Taylor from contributing a single dollar toward a settlement or 

judgment.

An expert may not “simply . . . opine that the defendant’s negligence caused 

the plaintiff’s injury.” Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010). An 

expert must also “explain how and why the negligence caused the injury.” Id. In

other words, an expert must sufficiently link his conclusions to the facts. Earle v. 

Ratliff, 998 S.W.2d 882, 890 (Tex. 1999). The factfinder must have access to the 

facts and data underlying an expert’s testimony in order “to accurately assess the 

testimony’s worth.” In re Christus Spohn Hosp. Kleberg, 222 S.W.3d 434, 440 

(Tex. 2007). An opinion on causation stated without the underlying facts is 

conclusory. See Jelinek, 328 S.W.3d at 536; Arkoma Basin Exploration Co., Inc. 

v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 n.32 (Tex. 2008). A 

conclusory opinion is not probative and will neither support nor defeat a summary 

judgment. See City of San Antonio v. Pollock, 284 S.W.3d 809, 818 (Tex. 2009); 

see also Burrow v. Arce, 997 S.W.2d 229, 235 (Tex.1999) (“[I]t is the basis of the 

witness’s opinion, and not the witness’s qualifications or his bare opinions alone, 

that can settle an issue as a matter of law; a claim will not stand or fall on the mere 

ipse dixit of a credentialed witness.”). An expert “cannot simply say, ‘Take my 

word for it; I know . . . .’” Burrow, 997 S.W.2d at 236.
15

In Burrow, the Supreme Court of Texas examined an affidavit in a legal 

malpractice case. Burrow, 997 S.W.2d at 235. Former clients sued their attorneys, 

asserting that the attorneys had improperly settled their suits and allocated damages 

among the clients. Id. at 232–33. The attorneys moved for and were granted 

summary judgment by the trial court. Id. at 233. In support of their motion for 

summary judgment, the attorneys included an affidavit from an expert who opined 

that the attorneys’ actions did not cause the clients any damages. Id. at 235. The 

expert stated there were several important considerations in considering the 

reasonableness of the settlement amounts, he considered those factors, and he 

concluded that the clients were all reasonably compensated and, therefore, had not 

been harmed by the alleged malpractice. Id. The Supreme Court explained that 

because the expert did not explain why the settlements were fair and reasonable for 

each client, the affidavit was conclusory. Id. at 236.

We conclude that, like the deficient affidavit in Burrow, Donato’s affidavit 

fails to sufficiently explain how Causey caused Taylor’s damages. More 

specifically, it fails to explain the basis for Donato’s opinion that a lawyer properly 

handling the case would have achieved the favorable outcome Donato posits. The 

main flaw in Donato’s analysis is the causal leap it makes with respect to legal 

rulings the trial court would have made regarding the seat belt defense had Taylor 
16

proceeded to trial. The basis for these leaps is nowhere explained, but the 

assumptions themselves are embedded in a key passage of Donato’s affidavit:

The most glaring failure I have found in failing to do that which a 

lawyer exercising independent judgment would have done, is the 

failure of [Cersonsky and Causey] to investigate the non-use of 

seatbelt issues applicable specifically to Mr. Fullen. For years as a 

defense attorney, I was frustrated by the fact that Texas Law did not 

allow in front of juries the use or non-use of seatbelts. It is proven by 

the statistics countless injuries and specifically head injuries are 

avoided when occupants wear seatbelts. 

In 2003, our Texas Legislature repealed sections 545.412d and 

545.413[g] of the Texas Transportation Code. In repealing these 

sections, the Legislature gave defense lawyers, a new and potentially 

case winning defense if a Plaintiff was not wearing a seatbelt and if 

his injury would have been prevented by the use of a seatbelt. The 

way seat belt use is submitted in Texas, gives defense counsel 

essentially two bites at the apple. A jury will be asked to assign fault 

on a proportionate basis as between parties for causing the accident. 

After the jury has answered that question, a seat belt inquiry question 

is submitted which inquires essentially, as to how much of a, 

Plaintiff’s injury would have been prevented had he been wearing a 

seatbelt. Both fault and injury causation are used to establish if and 

how a defendant may owe.

. . . . Competent Plaintiff counsel throughout the state of Texas for 

years fought against the repeal of the provisions of the Transportation 

Code making the use or non-use of seatbelts inadmissible. They did 

so for a very good reason, and that is failing to wear seatbelts is and 

will continue to be a devastating defense against their clients. 

. . . . Accordingly, had either of these defense lawyers, retained by 

Allstate Insurance Company complied with the standard of care in 

timely locating and retaining experts . . . it is more probable than not 

that a trial would have resulted in a defense verdict and pretrial 

settlement would have been accomplished for the available insurance 

policy limits or less.
17

(Emphasis added.) Before its repeal in 2003, Texas Transportation Code section 

545.413(g) provided, “Use or nonuse of a safety belt is not admissible evidence in 

a civil trial . . . .” Act of Apr. 21, 1995, 74th Leg., R.S., ch. 165, §1, sec. 

545.413(g), 1995 Tex. Gen. Laws 1025, 1644, repealed by Act of June 1, 2003, 

78th Leg., R.S., ch. 204, §8.01 2003 Tex. Gen. Laws 847, 863. Donato assumes 

that, with the repeal of section 545.413(g), admissibility of an injured party’s 

failure to wear a seat belt is a foregone conclusion. Donato likewise assumes that 

the trial judge would have reduced Taylor’s liability by the percentage of the injury 

that would have been avoided had Fullen worn a seat belt, as found by the jury. 

But Donato nowhere explains the basis for either of these leaps. That likely 

is because Texas law on these points is unsettled. See Trenado v. Cooper Tire & 

Rubber Co., No. 4:08-cv-249 (S.D. Tex. Jan. 26, 2010) (noting absence of 

authorities discussing issue of seat belt usage since repeal of section 545.413(g)). 

Donato cited no authorities to support his view of how a trial court would rule on 

these questions. And our own research revealed no Texas Supreme Court or Texas 

appellate court cases discussing the significance or effect of the provision’s repeal. 

Nor have we located Texas cases discussing whether or how an injured party’s 

failure to wear a seat belt should be submitted to the jury. Indeed, the few federal 

court opinions addressing these issues reached conclusions that conflict with 
18

Donato’s assumptions about how the hypothetical Chambers County trial court 

would have ruled. 

One federal court concluded that the legislature’s repeal in 2003 of section 

545.413(g) “does not indicate that [evidence of a party’s failure to wear a seat belt] 

is now per se admissible.” Idar v. Cooper Tire & Rubber Co., C.A. No. C-10-217, 

2011 WL 2412613, at * 9 (S.D. Tex. June 6, 2011); see also Trenado v. Cooper 

Tire & Rubber Co., C.A. No. 4:08-cv-249 (S.D. Tex. Jan. 26, 2010) (noting that 

the legislative intent was to change the admissibility of seat belt usage from a 

substantive to a procedural issue and concluding that, while Texas law does not 

preclude the admissibility of seat belt evidence, admissibility would be decided by 

trial court according to evidentiary rules). This casts doubt on Donato’s 

assumption that the fact that Fullen failed to wear a seat belt would be the deciding 

factor in the jury’s deliberations had Taylor proceeded to trial. 

The same can be said of Donato’s assumption that Taylor’s liability would 

have been reduced due to Fullen’s failure to wear a seat belt. Trenado and Idar 

each made two holdings that undercut Donato’s assumption on this point: (1) the 

alleged failure of the injured person to wear a seat belt did not contribute to the 

accident, and, under current Texas law, it should not give rise to a contributory 

negligence defense, Idar, 2011 WL 2412613, at *11; Trenado, at *41–42, and (2) 

the injured person’s failure to wear a seat belt did not constitute subsequent 
19

negligence and therefore does not give rise to a defense of failure to mitigate 

damages that would yield a reduction in recovery. Idar, 2011 WL 2412613, at 11–

12; Trenado, at 38–39. 

Donato’s analysis nowhere explains the specific legal basis for his opinion 

that earlier development of the seat belt defense by Causey probably would have 

yielded a more favorable result at trial. Instead, his analysis leaps from the fact of 

section 545.413(g)’s repeal to his conclusion that Taylor would have obtained a 

better outcome at trial had he been properly represented, without ever addressing 

the unsettled legal issues that the trial court would have confronted, or how or why 

he believes that Taylor would have obtained favorable rulings on them—and 

convinced a jury of their outcome-determinative nature—had Taylor proceeded to 

trial. Donato’s failure to explain this analytical gap—together with the absence of 

any authority to suggest that the trial would have unfolded in the manner Donato 

suggests—lead us to conclude that Donato’s opinion is insufficient to raise a fact 

issue on causation. Pollock, 284 S.W.3d at 818 (conclusory opinion is not 

probative and will not defeat a summary judgment); Burrow, 997 S.W.2d at 235 

(an expert’s opinion is conclusory and will not support summary judgment if it 

does not contain the basis or reasoning for the opinion).

In addition, Donato does not address other significant legal and factual 

hurdles Taylor faced in the underlying lawsuit. For example, Donato does not 
20

address the undisputedly severe and tragic nature of Fullen’s injury or the 

substantial estimated cost of his medical care needs and how these facts may have 

influenced a jury. Additionally, Fullen had amended his petition to assert a 

fraudulent transfer claim based on Taylor’s attempt to shield assets from a 

judgment in Fullen’s favor. Taylor had also lost a summary judgment on Fullen’s 

gross negligence claim, leaving the possibility of Taylor being liable for exemplary 

damages at trial. Finally, the police report and both accident reconstruction expert 

reports concluded that Taylor was a cause of the accident. Under the facts of this 

case, we conclude that Donato’s affidavit is insufficient to raise a fact issue on 

whether the alleged malpractice caused injury to Taylor because it does not show 

that the results of a trial probably would have been better for Taylor. See Pollock, 

284 S.W.3d at 818; Burrow, 997 S.W.2d at 235; see also Cooper v. Harris, 329 

S.W.3d 898, 904 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (finding 

expert testimony insufficient to support jury’s verdict on legal malpractice claim 

because expert who testified that malpractice plaintiff would have recovered a 

money judgment had his claims been prosecuted by a reasonably prudent attorney 

did not “address the complicated factual and legal issues” in the underlying case); 

Kemp v. Jensen, 329 S.W.3d 866, 871 (Tex. App.—Eastland 2010, pet. denied)

(affirming summary judgment on legal malpractice claim where expert opined that 

malpractice plaintiff would have had a much better opportunity of obtaining a 
21

favorable jury verdict but for the alleged malpractice, but did not explain the basis 

of the statement).5 Accordingly, we hold that the trial court correctly granted 

summary judgment on Taylor’s legal malpractice claims.

B. Gross negligence claims

Taylor pleaded that his lawyers’ acts and omissions rose to the level of gross 

negligence. Texas law is well-settled that, in order to prevail on a claim for gross 

negligence, a plaintiff must first show ordinary negligence. Doe v. Messina, 349 

S.W.3d 797, 804 (Tex. App.—Houston [14th Dist.] 2011, pet. denied) (citing Sonic 

Sys. Int’l, Inc. v. Croix, 278 S.W.3d 377, 395 (Tex. App.—Houston [14th Dist.] 

2008, pet. denied)). Here, we have concluded that the summary judgment on the 

negligence claims against Cersonsky and Causey was proper. Therefore, Taylor’s 

gross negligence claims also fail. We hold that the trial court properly granted 

summary judgment on Taylor’s gross negligence claims against Cersonsky and 

Causey.

 

5 Donato’s affidavit can also be read to conclude that proper handling of the case 

would have reduced the amount Taylor had to pay to settle the case, had he 

decided not to proceed to trial. That theory is also insufficient to survive summary 

judgment, because there is no evidence that Fullen’s representatives would have 

accepted a settlement offer lower than $3 million. See Tolpo v. Decordova, 146 

S.W.3d 678, 684 (Tex. App.—Beaumont 2004, no pet.) (affirming summary 

judgment based on lack of fact issue on causation where there was no evidence 

that other party in underlying suit would have entered into the contract had former 

counsel proposed special provision, the omission of which was the basis of former 

client’s malpractice claim).
22

C. Breach of fiduciary duty claims

The parties dispute whether Taylor asserted only claims of legal malpractice 

or whether he also stated a breach of fiduciary duty claim. Taylor contends that his 

allegations about allegedly divided loyalties give rise to a breach of fiduciary duty 

claim. Specifically, he claims Cersonsky and Causey breached their fiduciary 

duties to Taylor by failing to disclose certain facts (the nature of their fee 

arrangement with Allstate and the fact that Fullen’s medical lien could be waived) 

and by acting in the interests of Allstate and themselves (by allegedly skimping on 

Taylor’s defense in order to keep Allstate happy and thereby secure other work for 

themselves in the future). The former lawyers argue that Taylor’s allegations are 

nothing more than complaints about the adequacy of their representation and 

therefore can only give rise to ordinary malpractice claims. See Greathouse, 982 

S.W.2d at 172 (the test to determine whether a plaintiff asserts only malpractice 

claims, generally, is whether the “crux” of each separate claim is that the lawyer 

“did not provide adequate legal representation.”). 

Our resolution of this case is based on Taylor’s failure to raise a fact issue 

with respect to the suit within a suit causation element of his claims. This 

causation is an element of a legal malpractice claim and a breach of fiduciary duty 
23

claim for damages based on representation in underlying litigation.6See Finger, 

326 S.W.3d at 291–92 (former client asserting breach of fiduciary duty claim 

based on representation in prior suit must prove “suit within a suit” causation); 

Smith v. Aldridge, No. 14-11-00673-CV, 2012 WL 1071246, at *6 (Tex. App.—

Houston [14th Dist.] March 29, 2012, no pet.) (assuming malpractice plaintiff’s 

allegations supported an independent action for breach of fiduciary duty, plaintiff 

was required to prove “suit within a suit” to defeat summary judgment on that 

claim). Because Taylor had the burden—but failed—to raise a fact issue on 

causation, it is immaterial whether Taylor asserted only malpractice claims, on the 

one hand, or whether he asserted both malpractice and breach of fiduciary duty 

claims, on the other. Even if some of his allegations could form the basis for a 

breach of fiduciary duty claim, Taylor’s failure to meet his burden with respect to 

causation vitiates both. We express no opinion as to whether Taylor asserted 

claims for breach of fiduciary duty as distinct from legal malpractice; rather, we 

conclude that, even if he had, his failure to raise a fact issue on the element of 

causation would render summary judgment proper on any such claim. See Finger, 

326 S.W.3d at 291–92; Smith, 2012 WL 1071246, at *6.

 

6 We note that Taylor sought only actual and exemplary damages in this case. In 

breach of fiduciary duty cases in which the former client seeks disgorgement of 

fees paid to the attorney, the former client need not prove actual damages. Burrow 

v. Arce, 997 S.W.2d 229, 240 (Tex. 1999). Because he did not seek disgorgement 

of fees, Taylor was required to prove Causey and Cersonsky’s breach of fiduciary 

duties caused his actual damages.
24

Conclusion

We affirm the judgment of the trial court.

Rebeca Huddle

Justice 

Panel consists of Chief Justice Radack and Justices Bland and Huddle.