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 
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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 
3

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 
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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 
15

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.