Reversed and Rendered and Opinion filed November 3, 2015.

In The

Fourteenth Court of Appeals

NO. 14-14-00798-CV

DERRICK M. SAULSBERRY, Appellant

V.

WENDY ROSS, INDIVIDUALLY AND ON BEHALF OF TEXAS SPRAYON BEDLINERS L.L.C., Appellee

On Appeal from the 333rd District Court

Harris County, Texas

Trial Court Cause No. 2010-61337

O P I N I O N

In this appeal from the judgment rendered after a bench trial in a legalmalpractice case, the appellant attorney Derrick M. Saulsberry argues, inter alia, 

that the evidence is legally insufficient to support the finding that he had a 

continuing attorney–client relationship with appellee Wendy Ross or to support the 

damage award of $63,483.81. We conclude that the evidence supports the finding 

that Saulsberry was Ross’s attorney at all relevant times, but that the evidence is 
2

legally insufficient to support an award of damages. After severing from the case 

those portions of the judgment that were not challenged on appeal, we reverse the 

judgment in Ross’s favor and render judgment that Ross take nothing.

I. FACTUAL AND PROCEDURAL BACKGROUND

When an attorney has been successfully sued for professional negligence in 

connection with litigation, the appeal generally requires discussion both of the 

malpractice case and of the underlying case in which the malpractice allegedly 

occurred.1 Here, however, we must discuss three underlying cases. We summarize 

the evidence in accordance with the applicable standard of review.2

A. The Original Suit

At one time, Wendy Ross and Larry Young worked for TOFF Custom 

Sprayed On Liners, Inc. (“TOFF”), a company that sold and applied spray-on

truck-bed liners. After leaving TOFF’s employ, Ross worked for a competitor, 

then started a similar business in which she employed Young. Ross operated the 

business as a sole proprietorship under an assumed name. 

TOFF sued Ross and Young, alleging that Young violated a non-compete 

agreement and that Ross appropriated TOFF’s funds and infringed upon its 

trademark. Ross retained Saulsberry to defend both herself and Young. The 

parties ultimately settled their differences, agreeing that (1) Ross and Young would 

purchase a total of twelve sets of chemicals from TOFF over a period of one year;

(2) the parties would approve an agreed judgment in TOFF’s favor for $15,000;

and (3) TOFF would not attempt to execute on the judgment against Ross and 

 

1

See, e.g., Schlager v. Clements, 939 S.W.2d 183, 186–87 (Tex. App.—Houston [14th 

Dist.] 1996, writ denied) (“To prevail in a legal malpractice action, a plaintiff must prove ‘a suit 

within a suit’ by demonstrating that he would have prevailed in the underlying action but for his 

attorney's negligence.”). 

2

See Section II, infra.
3

Young for so long as they complied with the settlement agreement. The parties 

also agreed that “[a]ll notices, requests, demands and other communications under 

this [Settlement] Agreement or any instrument contemplated hereby” would be 

mailed or personally delivered “to the address of the counsel for [the] respective 

parties.” As Ross and Young’s attorney, Saulsberry approved the agreed 

judgment, which incorporated these terms. 

Three months after the trial court signed the final judgment in the original 

suit, Ross went to a second attorney, Mark Morasch, to form the limited-liability 

company Texas Spray-On Bedliners, L.L.C. (“Spray-On Bedliners”). There is no 

evidence that she informed Saulsberry of the new company’s existence.

B. The Alleged Malpractice and the Breach-of-Contract Suit

Ross and Young did not purchase twelve sets of chemicals from TOFF as 

required by the settlement agreement, and Ross admitted in the trial of this case 

case that she breached the agreement. On September 11, 2008, TOFF’s attorney 

Alan Magenheim wrote to Saulsberry, informing him that only six of the promised 

twelve sets of chemicals had been purchased, and stating that TOFF intended both 

to sue for breach of contract and to execute on the judgment unless Ross paid 

TOFF more than $18,000 within six days. Later that month, Magenheim wrote to 

Saulsberry again and extended the deadline for payment to September 26, 2008.

Ross admitted at trial that Saulsberry called her at the end of September or 

the first of October and told her that TOFF was threatening to sue her. Ross 

testified that when she spoke with Saulsberry, she told him that she had purchased 

six sets of chemicals and asked if she should buy another set. According to Ross, 

Saulsberry said he would speak with TOFF’s attorney and get back to her, but 

Saulsberry never called Ross backed. She testified that, based on her conversation 

with Saulsberry, she believed she had no further obligation to TOFF. 
4

On October 7, 2008, Magenheim wrote to Saulsberry that TOFF had sued 

Ross for breach of contract. In the same correspondence Magenheim enclosed

post-judgment discovery in which TOFF sought to identify Ross’s means of 

satisfying the judgment in the original suit. At the same time, Magenheim sent 

Saulsberry a courtesy copy of the notice of intent to execute, which also had been 

filed that day. Saulsberry did not send Ross any of this material; he did not tell 

Ross that TOFF had filed a new breach-of-contract suit against her; and he did not 

tell Ross or opposing counsel that he, Saulsberry, no longer represented Ross. 

One week after the suit was filed, Ross purchased the additional set of 

chemicals that she had discussed with Saulsberry. About a month later, 

Magenheim wrote Saulsberry that TOFF was “not willing to compromise” in 

enforcing the agreed final judgment in the original suit.

On December 3, 2008, Ross was served with process in TOFF’s new breachof-contract action, but she testified that she was unconcerned because she assumed 

everything was okay. She left for a short vacation without reading the papers.

C. The Property Seizure and the Suit for Injunctive Relief3

On December 8, 2008, constables seized personal property from Spray-On 

Bedliners’ place of business, with proceeds from the sale to be applied to the 

agreed judgment from TOFF’s original suit. An employee of Spray-On Bedliners 

telephoned Ross about the seizure, and Ross called Saulsberry. Once again 

Saulsberry told Ross that he would call her back after speaking with TOFF’s 

attorney, and once again he failed to do so. 

Ross returned to Houston and arranged for Morasch, the attorney who had 

 

3 We refer to this as the “suit for injunctive relief” because the record before us shows the 

relief that Ross and Spray-On Bedliners sought in that action, but does not show the causes of 

action asserted, if any.
5

set up Spray-On Bedliners, to represent her and the company. Four days later, 

Morasch, acting on behalf of Ross and Spray-On Bedliners, filed a separate action

against TOFF to obtain a temporary restraining order and an injunction to prevent 

the sale of the seized property. TOFF agreed to return three pieces of equipment 

and to allow Ross to recover personal papers that had been among the seized 

property; Ross agreed that the remainder of the seized property could be sold. 

At Morasch’s request, the trial court consolidated all of the cases between 

TOFF and Ross. Nearly a year after the TOFF filed its breach-of-contract action, it 

reached a “walk-away” agreement with Ross and Spray-On Bedliners in which the 

parties released their claims and counter-claims against one another without further 

payment, with each party bearing its own costs.

D. The Malpractice Suit

Ross and Spray-On Bedliners sued Saulsberry for legal malpractice, and 

maintained at trial that Saulsberry breached the standard of care by failing either to 

forward TOFF’s post-judgment discovery requests to Ross or to provide written 

notice to Ross and opposing counsel that he was terminating his representation.4 

Morasch testified without objection that TOFF’s attorney “communicated with me 

that he would not have filed for the writ of execution had he known there was no 

money left.” Thus, according to Ross, TOFF would not have seized the personal 

property at Spray-On Bedliners’ place of business but for Saulsberry’s failure to 

 

4

The malpractice suit was styled, “Wendy Ross, individually and on behalf of Texas 

Spray-On Bedliners, L.L.C. v. Derrick M. Saulsberry,” and on appeal, Saulsberry repeated that 

style, reversing only the order of the parties to reflect that he is the appellant. Despite the style 

of the case, Ross and Spray-On Bedliners are separate parties, and this is accurately reflected in 

the judgment, in the findings of fact and conclusions of law, and in the body of the parties’ 

pleadings. See also TEX. BUS. ORGS. CODE ANN. § 101.113 (West 2012) (“A member of a 

limited liability company may be named as a party in an action by or against the limited liability 

company only if the action is brought to enforce the member’s right against or liability to the 

company.”). 
6

respond to the post-judgment discovery. Saulsberry counterclaimed for the fees 

Ross owed him for representing her in TOFF’s original suit.

The trial court found that Saulsberry was not liable to Spray-On Bedliners, 

but held him liable to Ross in the amount of $63,483.81, representing the value of 

the seized property, the expenses paid or incurred to operate Spray-On Bedliners 

after the seizure, and all of the fees Morasch charged for representing both Ross 

and Spray-On Bedliners. After offsetting this amount by $10,162.70, representing 

the amount of Saulsberry’s unpaid legal fees and his costs of collection, the trial 

court rendered judgment in Ross’s favor for $53,321.11. Only the portion of the 

judgment in Ross’s favor has been challenged on appeal.

II. STANDARD OF REVIEW

Saulsberry presents us with six issues and many subsidiary arguments that 

are not reflected in his statement of the issues, but we need address only his 

dispositive legal-insufficiency arguments.

Where, as here, a case is tried without a jury and the trial court issues 

findings of fact, the reviewing court is bound by any unchallenged factual finding 

unless the evidence is legally insufficient to support it. See Tenaska Energy, Inc. v. 

Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex. 2014) (citing 

McGalliard v. Kuhlmann, 722 S.W.2d 694, 696–97 (Tex. 1986)). If at least one of 

the elements of a ground of recovery or defense has been included in the findings, 

any omitted unrequested elements that are supported by the evidence are supplied 

by a presumption in support of the judgment. TEX. R. CIV. P. 299. 

When reviewing the sufficiency of the evidence to support the trial court’s 

express or implied findings, we apply the same standards of review that apply to a 

jury’s verdict. See MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 
7

660, 663 n.3 (Tex. 2009) (citing Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex.

1994)). To analyze the legal sufficiency of the evidence, we review the record in 

the light most favorable to the challenged finding, crediting favorable evidence if a 

reasonable factfinder could and disregarding contrary evidence unless a reasonable 

factfinder could not. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.

2005). Evidence is legally sufficient if it “rises to a level that would enable 

reasonable and fair-minded people to differ in their conclusions.” Ford Motor Co. 

v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Merrell Dow Pharm., Inc. 

v. Havner, 953 S.W.2d 706, 711 (Tex. 1997)). The evidence is legally insufficient 

to support the finding only if (a) there is a complete absence of evidence of a vital 

fact, (b) the court is barred by rules of law or evidence from giving weight to the 

only evidence offered to prove a vital fact, (c) the evidence offered to prove a vital 

fact is no more than a mere scintilla, or (d) the evidence conclusively establishes 

the opposite of the vital fact. City of Keller, 168 S.W.3d at 810. Because it is the 

factfinder’s responsibility to weigh credibility and resolve conflicts in the 

evidence, we will defer to those determinations so long as they are reasonable. See

id. at 820. On the other hand, reasonable factfinders “are not free to believe 

testimony that is conclusively negated by undisputed facts” and “cannot disregard 

undisputed evidence that allows of only one logical inference.” Id. at 820, 814.

III. THE EXISTENCE OF AN ATTORNEY–CLIENT RELATIONSHIP

Because it is a threshold issue, we begin with Saulsberry’s contention that 

his attorney–client relationship with Ross ended when judgment was entered in the 

original suit, and that there is legally insufficient evidence that he and Ross later 

established a new attorney–client relationship A plaintiff asserting a legalmalpractice claim bears the burden to establish that (a) the defendant owed the 

plaintiff a duty, (b) the defendant breached the duty, (c) the breach proximately 
8

caused the plaintiff’s injury, and (d) the plaintiff sustained damages. See Akin, 

Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 

106, 112 (Tex. 2009). If an attorney–client relationship exists, then the attorney 

has a duty to the client to act with the care expected of a reasonably prudent 

attorney. See Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 

416, 426 (Tex. App.—Austin 2009, no pet.). Thus, the threshold issue in this case 

is whether Saulsberry and Ross had an attorney–client relationship giving rise to 

such a duty. 

According to Saulsberry, we must reverse the judgment in Ross’s favor 

because the trial court’s legal-malpractice finding is based on events that occurred 

after Saulsberry and Ross’s attorney–client relationship ended. Saulsberry begins 

with the proposition that, absent a contrary agreement, “an attorney–client

relationship generally terminates upon the completion of the purpose of the 

employment.” Stephenson v. LeBoeuf, 16 S.W.3d 829, 837 (Tex. App.—Houston 

[14th Dist.] 2000, pet. denied) (op. on reh’g). According to Saulsberry, he agreed 

to represent Ross when she was originally sued by TOFF, so his representation 

ended upon the entry of final judgment in that case. Saulsberry contends there is 

insufficient evidence that the attorney–client relationship was renewed, because 

Ross neither alleged nor offered evidence of “a new written agreement concerning 

representation in post-judgment matters.” He therefore concludes that he cannot 

be liable to Ross for legal malpractice based on conduct that occurred after 

judgment was entered in the original TOFF suit because he was no longer her 

attorney after that date.5But see Hamilton v. Hamilton, 225 S.W. 69, 70 (Tex. Civ. 

 

5 Ross argues in her responsive brief that Saulsberry also was negligent in representing 

her in TOFF’s original action, but the trial court made no such finding. It instead found that 

Saulsberry failed to use ordinary care in representing Ross “in the collection matter made the 

basis of this suit.” The trial court explained that “[t]he matter made the basis of this suit 

concerns the attempted collection of a prior judgment and settlement agreement.” 
9

App.—Austin 1920, writ dism’d w.o.j.) (stating that an attorney’s representation 

generally ends upon entry of final judgment, but adding that “[i]t may also be 

stated, as a general proposition, that the authority of an attorney to represent his 

client continues as to all matters regarding the enforcement of the judgment”). 

Saulsberry’s reliance on the absence of a written contract is misplaced: an 

attorney–client relationship is not dependent on the existence of a written contract, 

but may be implied by the parties’ objective words and actions. See Tanox, Inc. v. 

Akin, Gump, Strauss, Hauer & Feld, L.L.P., 105 S.W.3d 244, 254 (Tex. App.—

Houston [14th Dist.] 2003, pet. denied) (op. on reh’g). Saulsberry never had a 

written agreement with Ross expressly addressing the scope or duration of his 

representation—even during the time he admittedly represented her in the original 

TOFF suit—but there is ample evidence that he continued to represent her until she 

hired Morasch after the writ of execution was served. 

To begin with, both the judgment and the settlement agreement in the 

original TOFF suit contemplated Saulsberry’s continuing attorney–client

relationship with Ross. In the judgment, the trial court awarded TOFF $15,000, 

but ordered that “[TOFF] shall not make any attempt to execute on this judgment, 

unless or until, a sworn Affidavit is presented, with prior written notice to counsel 

for Defendants[,] to the Court . . . representing that the Defendants have failed to 

abide by” the settlement agreement.6 The settlement agreement also provided that 

“[a]ll notices, requests, demands and other communications under this Agreement 

or any instrument contemplated hereby shall be in writing and shall be personally 

delivered or mailed . . . to the address of the counsel for respective parties 

hereto . . . .”

7

 The judgment and the settlement agreement each incorporated the 

 

6

Emphasis added.

7

Emphasis added.
10

other’s terms, and acting as Ross and Young’s attorney, Saulsberry signed the 

judgment under the line, “Approved and Entry Requested.”8

Saulsberry contends that these documents required him merely to act as a 

sort of registered agent for the receipt of notices concerning any alleged breach of 

the settlement agreement. The documents, however, do not require 

communications to be sent to an “agent” or even to “Derrick M. Saulsberry”; they 

require communications to be sent to “counsel,” and Saulsberry admits that he 

never informed TOFF’s attorney that he no longer represented Ross. Although it is 

appropriate to communicate with a represented party through counsel,9the 

settlement agreement and judgment address the transmittal of post-judgment 

communications, so if Saulsberry’s representation was to end when judgment was 

rendered, then there is no apparent reason why such post-judgment 

communications should not have been sent directly to Ross. Moreover, even if the 

settlement agreement and the agreed judgment did not require Saulsberry to 

continue acting as Ross’s attorney, we still would be left with the question of 

whether he in fact did so. 

To answer that question, we look to the parties’ objective words and actions 

and determine whether their conduct is that of an attorney and client or is instead, 

as Saulsberry contends, analogous to that of a registered agent and principal. 

Saulsberry’s expert Ron Rainey testified that such an agent is required only to 

forward material to the principal or to notify the principal that material was 

received, but has no obligation to communicate with the sender. Rainey further 

explained that in contrast to such an agent, an attorney offers advice or guidance. 

 

8

Full capitalization has been changed to initial capitals.

9

See TEX. DISCIPLINARY RULES PROF’L CONDUCT R. 4.02(a), reprinted in TEX. GOV’T 

CODE ANN., tit. 2, subtit. G, app. A (West 2013) (TEX. STATE BAR R. art. X, § 9).
11

He stated that an attorney is not required to send a client a copy of every document 

received from opposing counsel, but instead could telephone the client to explain 

the document. 

Regardless of Saulsberry’s subjective belief that he no longer represented 

Ross, his objective conduct was that of Ross’s attorney. Saulsberry testified that 

when he received the notice, he called TOFF’s attorney “to inquire as to why 

[opposing counsel] felt that Ms. Ross and Mr. Young were in violation of the 

settlement agreement and what they needed to do to comply.” Although 

Saulsberry did not send Ross any of the material received from opposing counsel, 

he telephoned her and said that TOFF had threatened to execute on the judgment. 

Saulsberry further testified that when he spoke with Ross, “she asked me what 

should she do. And I said, ‘You need to comply with the terms of the settlement 

agreement. You comply with the terms of the settlement agreement, everything 

will be fine.” Ross remembers the conversation differently. She testified that 

when Saulsberry told her of TOFF’s threat to execute on the judgment, she 

suggested to Saulsberry that TOFF might be satisfied if she purchased another set 

of chemicals. According to Ross, Saulsberry told her to purchase the additional set 

of chemicals, and that he would contact TOFF’s attorney and call her back. 

Although Saulsberry denied ever discussing a compromise offer with Ross or 

opposing counsel, TOFF’s attorney recalled being asked whether TOFF would be 

satisfied if Ross purchased one more set of chemicals. The documentary evidence

further shows that one week after Ross purchased the additional chemicals, 

TOFF’s attorney wrote to Saulsberry that TOFF was not willing to compromise. 

Finally, Saulsberry’s own expert conceded at trial that even if the settlement 

agreement only required Saulsberry to act as “a conduit to provide notice,” 

Saulsberry nevertheless continued to act as Ross’s attorney by speaking with 
12

opposing counsel on her behalf and by offering Ross advice.

The evidence shows that this attorney–client relationship ended after 

property was seized at Spray-On Bedliners’ place of business on December 8, 

2008. Both Saulsberry and Ross testified that they last spoke when Ross called 

Saulsberry to say that constables were seizing equipment at her place of business. 

Saulsberry did not assist her, and from that date forward, attorney Mark Morasch 

represented both Ross and Spray-On Bedliners in their litigation with TOFF.

Because the foregoing evidence is legally sufficient to establish that 

Saulsberry represented Ross from the time of TOFF’s first demand letter until the 

writ of execution was served, we overrule this issue.

IV. DAMAGES

During their attorney–client relationship, Saulsberry owed Ross a duty to act 

as a reasonably prudent attorney could do in the same or similar circumstances 

based on the information that Saulsberry had at the time of the alleged malpractice. 

See Cosgrove v. Grimes, 774 S.W.2d 662, 664–65 (Tex. 1989) (op. on reh’g); 

Swinehart v. Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., 48 S.W.3d 865, 

874 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). On appeal, Saulsberry 

does not dispute that if he had a continuing attorney–client relationship with Ross, 

then he breached this duty. He instead challenges the sufficiency of the evidence 

to support the remaining elements of Ross’s legal-malpractice claim. He argues 

that there is no evidence that his negligence proximately caused Ross’s claimed 

damages. Regarding the amounts awarded for the value of the seized property, 

Saulsberry additionally argues that there is no evidence of the correct measure of 

damages. We conclude that each of these arguments is in some measure correct, 

and taken together, they eliminate all of the damages awarded. Specifically, these 

points eliminate the trial court’s award to Ross of $63,483.81, which is the sum of 
13

(a) $38,850.00 for the attorney’s fees incurred, but not yet paid, for Morasch’s 

representation of both Ross and Spray-On Bedliners;10 and (b) $24,633.81, 

representing the sum of (i) the expenses to operate Spray-On Bedliners after the 

seizure, and (ii) the value of the seized property that was sold. 

A. Proximate Cause

Proximate cause consists of cause in fact and foreseeability. Akin, Gump, 

299 S.W.3d at 122 (citing IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. 

Mason, 143 S.W.3d 794, 798 (Tex. 2004)). To establish the cause-in-fact element, 

a plaintiff must prove that (1) the defendant’s negligent act or omission was a 

substantial factor in bringing about the harm at issue, and (2) the harm would not 

have occurred but for that act or omission. See id. Neither of these components 

can be established by conjecture, guess, or speculation. See id. If the causal link 

between an attorney’s negligence and the client’s harm is beyond a jury’s common 

understanding, then proximate cause must be proved through expert testimony

about what the attorney should have done. See Alexander v. Turtur & Assocs., 146 

S.W.3d 113, 119–20 (Tex. 2004). The expert testimony must tie “the specific 

conduct that is in issue” to the client’s adverse result. See id. at 119 (quoting 5 

RONALD E. MALLEN & JEFFREY M. SMITH, LEGAL MALPRACTICE § 33.17 at 138–39 

(5th ed. 2000)). 

Our first task, then, is to identify the specific conduct that Ross claims 

harmed her. Morasch testified that under the applicable standard of care, an 

 

10 The Texas Supreme Court has held that a successful legal-malpractice claimant may 

recover as damages those attorney’s fees that were both proximately caused by the malpractice 

and actually paid. See Akin, Gump, 299 S.W.3d at 122. The court expressly declined to state 

whether the result would be the same if the fees incurred had not been paid. Id. at 111, n.3. 

Because Saulsberry challenges the award of attorney’s fees on different grounds, we assume for 

the purposes of this opinion that if an attorney’s professional negligence proximately caused a 

client to incur attorney’s fees in an underlying suit, the fees incurred are recoverable as damages 

even if the client has not yet paid them. 
14

attorney who terminates his representation of a client must (1) notify both the 

client and opposing counsel of that fact in writing, (2) allow the client sufficient 

time to obtain other representation, and (3) continue to represent the client in the 

interim. Saulsberry admits that he did not notify Ross in writing that he was 

terminating his representation. 

Morasch further testified that while Saulsberry continued to represent Ross, 

he was required to forward to Ross the communications and discovery requests he 

received from TOFF’s attorney. Saulsberry’s own expert also testified that if the 

attorney receives discovery requests for a client to answer, then the attorney must 

send the client a copy of the requests. There also is evidence in the record that 

TOFF’s post-judgment discovery requests were hand-delivered to Saulsberry on 

October 7, 2008, and it is undisputed that Saulsberry neither responded to the 

requests nor sent copies to Ross.11 Ross therefore contends that Saulsberry 

deprived her of the opportunity to answer the discovery by failing either to act on 

the discovery requests or to terminate his representation in writing so that Ross 

could obtain other counsel to do so. 

In questions posed to witnesses and in argument to the trial court, Ross’s 

trial counsel implied that Saulsberry committed other unnamed omissions. For 

example, when questioning Saulsberry’s expert, Ross’s counsel suggested that 

Saulsberry did not “take any other steps to create a position which would leverage 

[TOFF’s attorney] to back off.” In closing argument, Ross’s counsel asserted, 

“You push back in litigation. You create settlement positions. It happens all the 

time. And then you put your client in a different situation. [Saulsberry] didn’t 

 

11 TOFF’s attorney testified that a copy of the petition and the discovery requests were 

hand-delivered to Saulsberry. Saulsberry admits receiving the cover letter that accompanied 

them, but denies that the discovery requests and petition were enclosed. Because a reasonable 

factfinder could credit the evidence that this material was delivered, we presume that the trial 

court did so.
15

have to do all that, but he had to give somebody else the opportunity to do it if he 

wasn’t going to . . . .”12 These references suggest a reason why an attorney might 

want to take additional actions, but there is no expert testimony about what those 

additional acts would be or whether the failure to perform them would breach the 

standard of care. These elements must be proved; a trial court cannot draw on its 

own knowledge about the practice of law to fill in these evidentiary gaps. See 

Primis Corp. v. Milledge, No. 14-08-00753-CV, 2010 WL 2103936, at *3 n.1

(Tex. App.—Houston [14th Dist.] May 27, 2010, no pet.) (mem. op.) (explaining 

that even though a trial judge may be able to evaluate whether an attorney’s 

conduct breached the standard of care or caused damages, a trial judge’s private 

thoughts are not evidence; thus, if such matters would be outside the common 

understanding of a jury, then expert testimony is required even if the factfinder is 

the trial court). Consequently, the only specific conduct that Ross identified and

tried to causally link to a cognizable injury was Saulsberry’s failure either to 

forward TOFF’s discovery requests to Ross or to provide written notice that he was 

terminating his attorney–client relationship so that Ross could hire another attorney 

to assist her in responding to the discovery.13 For the reasons discussed below, we 

conclude there is legally insufficient evidence that this conduct proximately caused 

Ross to incur personal responsibility for Spray-On Bedliners’ attorney’s fees and 

 

12 But cf. Wohlstein v. Aliezer, 321 S.W.3d 765, 774 (Tex. App.—Houston [14th Dist.] 

2010, no pet.) (“Texas law does not currently recognize ‘lost bargaining leverage,’ by itself, as a 

legally compensable injury.”).

13 Although Ross also asserted that Saulsberry negligently represented her in TOFF’s 

original suit, the trial court’s only finding of professional negligence is limited to Saulsberry’s 

representation of Ross during TOFF’s attempt to collect the original judgment. That period 

began when TOFF sent a demand letter to Saulsberry on September 11, 2008, and ended when 

Morasch replaced Saulsberry as Ross’s attorney on December 8, 2008. We therefore do not 

discuss the sufficiency of any evidence that Saulsberry negligently represented Ross in TOFF’s 

original suit, because we could not affirm or reverse the judgment on that basis. See TEX. R. CIV. 

P. 299. 
16

business expenses. Regarding Ross’s own attorney’s fees, we conclude there is no 

evidence that, but for Saulsberry’s negligence, she would not have incurred the 

same amount of fees.

1. There is no evidence that Saulsberry proximately caused Ross to 

incur personal responsibility for Spray-On Bedliners’ attorney’s 

fees.14

Although the trial court found that Spray-On Bedliners was not Saulsberry’s 

client and rendered a take-nothing judgment on the company’s claims against him, 

the court nevertheless awarded Ross all of the attorneys’ fees that Morasch billed 

for representing both her and the company. But, a member or manager of a 

limited-liability company is legally distinct from the company itself. See Geis v. 

Colina Del Rio, LP, 362 S.W.3d 100, 109 (Tex. App.—San Antonio 2011, pet. 

denied). Absent an agreement to the contrary, a member or manager of a limitedliability company is not liable for the company’s obligations. See TEX. BUS. ORGS.

CODE ANN. § 101.114 (West 2012) (“Except as and to the extent the company 

agreement specifically provides otherwise, a member or manager is not liable for a 

debt, obligation, or liability of a limited liability company, including a debt, 

obligation, or liability under a judgment, decree, or order of a court.”); ACS 

Partners, LLC v. Gross, No. 01-11-00245-CV, 2012 WL 1655547, at *3 (Tex. 

App.—Houston [1st Dist.] May 4, 2012, no pet.) (mem. op.) (“[T]here is a 

presumption of legal separateness between a limited liability company and its 

managers.”); McCarthy v. Wani Venture, A.S., 251 S.W.3d 573, 590 (Tex. App.—

Houston [1st Dist.] 2007, pet. denied) (“Generally, members are not individually 

liable for the debts of the LLC.”).

 

14 Ross’s only evidence of attorney’s fees does not distinguish between amounts incurred 

for Spray-On Bedliners’ legal representation and amounts incurred for Ross’s representation. 

We nevertheless discuss them separately because we have slightly different reasons for 

concluding that the evidence for each is legally insufficient. 
17

The fees incurred for legal work on claims by or against Spray-On Bedliners 

are a company obligation for which Ross had no individual liability unless she 

chose to accept it. If Ross is now obligated to pay the company’s attorney’s fees, it 

is not because Saulsberry proximately caused her to incur them; it is because Ross 

agreed to assume personal responsibility for the company’s obligation. Given the 

unchallenged finding that Saulsberry is not liable to Spray-On Bedliners, the 

evidence is legally insufficient to support Ross’s recovery of attorney’s fees for 

work performed on the company’s claims and defenses.

2. There is no evidence that Saulsberry proximately caused Ross to 

incur personal responsibility for Spray-On Bedliners’ post-seizure 

business expenses. 

Just as Ross is not entitled to recover Spray-On Bedliners’ legal expenses, 

she also is not entitled to recover the company’s business expenses. To clarify 

which expenses these are, we must break down the damages award into its 

component parts. 

Ross requested $38,850.00 for the attorney’s fees billed by Morasch and 

$24,633.81 as compensation for the losses and expenses described in a specific 

exhibit, Plaintiff’s Exhibit 1-U. That exhibit consists of two tables followed by 

several pages of receipts and invoices. The first table is labeled, “Replacement 

Items,” and the second is labeled “Seized Property – Sold at Auction.” Ross 

sought compensation of $10,892.69 for the expenses listed in the “Replacement 

Items” table, and $13,741.12 for the value of the property shown in the “Seized 

Property” table, and the trial court awarded the full amount requested. The present

discussion concerns only the first table, “Replacement Items.”

Although one might assume from the titles of the two tables that 

“Replacement Items” summarizes the expenses incurred to replace the seized 

property that was sold at auction, this is incorrect. Most of the entries in the 
18

“Replacement Items” table do not correspond to property that was seized and sold; 

some of the “items” are not even property, but instead are fees paid for services

Ross explained that the entries in the “Replacement Items” table are the expenses 

paid or incurred to operate Spray-On Bedliners after the property seizure on 

December 8, 2008. Although Ross and her trial counsel seldom acknowledged a 

distinction between Ross and the company, it is clear from the references to 

“business,” “customers,” and having trucks “sprayed” that the “Replacement 

Items” in Plaintiff’s Exhibit 1-U were Spray-On Bedliners’ business expenses:

Q: As a result of the seizure of your property on December 8th, 

2007, how did you, if at all, did you continue to conduct 

business that month?

A: The following day I had one [customer’s] truck. I went down 

the street to a place that does the same thing. I do business with 

-- business with dealerships. So I went and picked up my 

customer’s truck. Had it sprayed and brought it back to my 

customer.

Q: Did you have to make any expenditures to purchase new 

equipment?

A: The following day, I went to the truck store, the company I 

went to work for, and he helped me out and sprayed my trucks 

for me; and then I bought a quick liner gun and started doing it 

that way.

Q: I’m going to ask you to look at what’s been marked as 

Plaintiff’s Exhibit 1-U.

A: Okay.

Q: Is that affidavit [sic] to you put in connection with pleadings 

filed on your behalf of Mr. Morasch after he became 

involved?15

A: Yes.

Q: What are those records of?

 

15 Plaintiff’s Exhibit 1-U does not contain an affidavit.
19

A: The items that I had to re-purchase or things that I had to get.

In accordance with this testimony, the entries in the “Replacement Items” 

table of the exhibit include the amount paid on the day after the seizure to have 

another company spray a “Customer Truck,” and the amounts paid two days after 

the seizure to have multiple trucks sprayed and to purchase a “Qwik Liner Gun.” 

When these expenses were incurred, Ross was no longer operating a sole 

proprietorship in the business of selling and applying spray-on truck-bed liners; 

however, Spray-On Bedliners, Ross’s limited-liability company, was in that 

business. Thus, the expenses to “continue to conduct” such a business were SprayOn Bedliners’ expenses, not damages personally sustained by Ross. Just as with 

Spray-On Bedliners’ legal expenses, Ross incurred these expenses, if any, only 

because she chose to assume personal responsibility for the company’s expenses, 

not because Saulsberry proximately caused her to incur them.

16

 In light of the trial 

court’s unchallenged finding that Saulsberry is not liable to Spray-On Bedliners, 

the company cannot recover its business expenses from him, and there is no basis 

for permitting Ross to do so. 

Having eliminated the amounts awarded to Ross for Spray-On Bedliners’ 

legal and business expenses, we turn now to the amounts awarded for Ross’s own 

attorney’s fees.

3. There is legally insufficient evidence that, but for Saulsberry’s 

negligence, Ross would not have incurred the same amount of 

attorney’s fees that Morasch charged for representing her.

To prove that Saulsberry proximately caused her to incur the attorney’s fees 

 

16 The record does not show the extent to which these expenses were paid or incurred by 

Ross, by Spray-On Bedliners, or by someone else. For example, the invoice supporting one 

entry shows that the purchaser was “Whitney Smith,” who paid in cash, and the receipt 

supporting another entry identifies the purchaser as “249 Auto Trim.” Neither name appears 

elsewhere in the record.
20

she sought, Ross was required to introduce expert testimony to (a) identify what a 

reasonably prudent attorney would have done if the attorney had possessed the 

same knowledge that Saulsberry possessed at the time of the alleged malpractice, 

and (b) provide a causal link between that specific conduct—Saulsberry’s inaction 

upon receiving TOFF’s discovery requests—and the adverse result she obtained. 

See Alexander, 146 S.W.3d at 119–20. Ross does not complain that the walk-away 

agreement she ultimately reached with TOFF was an adverse result proximately 

caused by Saulsberry. It instead appears to be her position that, but for 

Saulsberry’s negligence, she could have achieved the same walk-away settlement 

agreement without incurring attorney’s fees. The record, however, contains legally 

insufficient evidence on which a reasonable factfinder could reach such a 

conclusion. 

Morasch’s expert testimony linking Saulsberry’s negligence to the attorney’s 

fees Ross sought as damages is as follows:

Q. In any event, what is your opinion regarding the effect of Mr. 

Saulsberry’s failure to communicate with [Ross] and 

abandonment of her without giving her an opportunity to come 

in and take steps to forestall the foreclosure?

A. The post-judgment discovery answer. The conclusion of the 

litigation in this case was based on the fact that after I filed a 

summary judgment motion or after I counterclaim[ed] and filed 

a motion for summary judgment, my negotiations with Mr. 

Magenheim were that everybody walks away. And he was–

bases that on the fact or he communicated with me that he 

would not have filed for the writ of execution had he known 

there was no money left.

. . . .

Q: As a result of that abandonment, what damages were caused in 

this case to be suffered by Wendy Ross and/or her company?
21

A: She had her property seized to retrieve some [sic] and also to 

replace property. She incurred legal expenses with me to 

defend in that action, as well as the breach of contract action.

. . . .

Q: Is this invoice a correct representation of the time you spent in 

the matter and calculated at the rate of billing that you indicated 

would be in effect with Ms. Ross?

A. Yes.

The invoice shows that Morasch billed Ross $38,850.00 for the 111 hours of work 

he performed while representing both her and Spray-On Bedliners. 

Although Ross sought and was awarded this entire amount, there is no 

expert testimony that, but for Saulsberry’s negligence, Ross would not have 

incurred fees for her legal representation. There also is no expert testimony about 

the amount, reasonableness, or necessity of the attorney’s fees that Ross actually 

incurred for her own legal representation after Saulsberry’s malpractice, and there 

is no expert testimony comparing the fees actually incurred with the fees that Ross 

would have incurred if Saulsberry had acted as a reasonably prudent attorney. In 

the absence of expert testimony explaining the causal link between Saulsberry’s 

negligence and the attorney’s fees Ross sought to recover, the assertion that such a 

link exists is legally insufficient as a matter of law. See Earle v. Ratliff, 998 

S.W.2d 882, 890 (Tex. 1999) (“An expert’s simple ipse dixit is insufficient to 

establish a matter; rather, the expert must explain the basis of his statements to link 

his conclusions to the facts.”).

Morasch did not explain his conclusion that Saulsberry’s malpractice 

proximately caused Ross to incur attorney’s fees, but as we have seen, he 

attempted to imply causation through his testimony about remarks made by

TOFF’s attorney Magenheim during the settlement negotiations that culminated in 
22

a walk-away agreement. Morasch elaborated on that discussion as follows:

Q. Did you ever have a discussion with [Magenheim] about why 

he had executed on the judgment?

A. Yes. He said he executed on the judgment because he could get 

no response from Mr. Saulsberry’s office.

. . . .

Q. You also said something about Mr. Magenheim saying that but 

for getting a response from Mr. Saulsberry. What response was 

he looking for?

A. A response to the post-judgment discovery.

Q. He was just looking for a response to that discovery?

A. That’s what he indicated to me, yes.

. . . .

Q: You’re not saying answers to that discovery will stop the 

seizure?

A: That’s what Mr. Magenheim told me when we decided 

everybody would walk away, because there’s nothing for his 

client to get if they pursued litigation.

. . . .

Q. And so do you have an opinion as to whether or not had the 

discovery answers been served within 30 days, that would have 

taken the execution that finally occurred on December 8th off 

track?

A. For one thing, during the settlements or ultimate settlement of 

the lawsuit, based on the answers that I served on Mr. 

Magenheim, he said he would not go forward with it.

Morasch’s testimony about this conversation was admitted without 

objection, and unobjected-to hearsay “may not be denied probative value merely 

because it is hearsay.” TEX. R. EVID. 802. In accordance with the standard of 

review, we presume that the trial court found this evidence credible. Nevertheless, 

when reviewing the legal sufficiency of the evidence, we do not “ignore fatal gaps 
23

in an expert’s analysis or assertions that are simply incorrect.” Volkswagen of Am., 

Inc. v. Ramirez, 159 S.W.3d 897, 912 (Tex. 2004). This evidence suffers from 

both defects.

A reasonable factfinder could not infer that Ross would not have incurred 

attorney’s fees but for Saulsberry’s failure to respond to TOFF’s discovery

requests, because on the same day that TOFF served the requests, it also filed both 

its notice of intent to execute and its separate breach-of-contract suit. There is no 

evidence that a reasonably prudent attorney could have decided to take no 

responsive action at all; to the contrary, Ross’s legal-malpractice claim against 

Saulsberry is based on precisely such inaction. Thus, even in the absence of any 

professional negligence, Ross still would have incurred legal fees for an attorney to 

“take steps to forestall” the execution, to respond to discovery, and to represent her 

in the breach-of-contract suit. There is no evidence that the fees to represent her 

would have been any less.17

The evidence also falls short in other ways. For example, Morasch testified 

that Magenheim’s statements were based on the discovery responses that Ross 

made in February 2009. According to Morasch, those discovery responses showed 

that Ross had no money, but the responses themselves are not in the record. 

Morasch admits that he does not know whether Ross had the money to purchase 

six additional sets of chemicals during the period from September to December 

2008. We therefore do not know the extent to which the discovery responses 

would have been different if they had been answered earlier. 

Even if a reasonable factfinder could infer that Ross’s answers would have 

 

17 On this record, even the amount actually incurred for Ross’s legal representation is not 

known. There is no testimony on the subject, and the only documentary evidence fails to 

distinguish between Morasch’s fees for representing Ross and for representing Spray-On 

Bedliners. 
24

been the same if made three months earlier, a more serious problem remains. 

Despite Morasch’s testimony that TOFF decided to walk away from its claims 

based on Ross’s discovery responses, no reasonable factfinder could infer that 

Ross’s attorney’s fees would have been less if she had answered the discovery 

sooner. This is so because, notwithstanding opposing counsel’s statements during 

settlement negotiations, the undisputed fact is that TOFF did not walk away when 

it received discovery responses showing that Ross had no money.18 The parties 

instead continued to litigate their respective claims against one another for more 

than seven months, and throughout that time, Ross continued to incur attorney’s 

fees. Although there is no expert testimony to reconcile the statements of TOFF’s 

attorney with TOFF’s actions, the resolution of this incongruity is dictated by the 

standard of review, under which factfinders “are not free to believe testimony that 

is conclusively negated by undisputed facts.” See City of Keller, 168 S.W.3d at 

820.

For all of these reasons, we conclude that the evidence is legally insufficient 

to support Ross’s recovery of attorney’s fees.

B. Fair Market Value 

The remaining damage component is the amount awarded as compensation 

for the value of the property that was seized and sold at auction. Saulsberry argues 

that there is no evidence of the property’s fair market value, which is the proper 

measure of damages. Whether the trial court applied the proper measure of 

 

18 Cf. McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 

794 (Tex. 1999) (“Generally, courts have acknowledged that a third party’s reliance on an 

attorney’s representation is not justified when the representation takes place in an adversarial 

context.”); Valls v. Johanson & Fairless, L.L.P., 314 S.W.3d 624, 635 (Tex. App.—Houston 

[14th Dist.] 2010, no pet.) (“Courts have repeatedly held a party may not justifiably rely on 

statements made by opposing counsel during settlement negotiations.”)
25

damages is a question of law, which we review de novo. Allied Vista, Inc. v. Holt, 

987 S.W.2d 138, 141 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). 

We agree that fair market value is the proper measure of damages for the 

loss of personal property. See City of Tyler v. Likes, 962 S.W.2d 489, 496–97 

(Tex. 1997); Int’l–Great N. R.R. Co. v. Casey, 46 S.W.2d 669, 670 (Tex. Comm’n 

App. 1932, holding approved). We also agree that there is no evidence of the fair 

market value of the seized property. Indeed, no witness even used the word 

“value.” Ross instead relied entirely on the previously discussed exhibit,

Plaintiff’s Exhibit 1-U, which contains the table, “Seized Property – Sold at 

Auction.” The table consists of three columns which are labeled “Qty,” “Item,” 

and “Value.” There is no evidence in the record to explain what “Value” was 

intended to represent, how it was measured, or whether the determination of an 

item’s value was made by a person qualified to do so. 

In her response brief, Ross does not dispute that fair market value is the 

correct measure of damages. She instead argues that “[t]here was record evidence 

from which the trial court could discern the market value of that property and to 

measure [her] loss by reference to what she had to pay to replace her property and 

by what [TOFF] received from its forced sale.” We need not address whether this 

would have been an appropriate method to determine fair market value, because 

the record does not support Ross’s suggestion that it was employed here.19 

 

19 If lost personal property has no ascertainable market value, a plaintiff may rely on the 

property’s replacement cost as an alternative measure of damages. See Casey, 46 S.W.2d at 670. 

First, however, the plaintiff must meet its burden to establish that an alternative measure of 

damages is appropriate. See Wise Elec. Coop., Inc. v. Am. Hat Co., No. 02-13-00439-CV, 2015 

WL 5460543, at *18, *21 (Tex. App.—Fort Worth Sept. 17, 2015, no. pet. h.) (stating the rule 

and holding that the plaintiff met its burden to establish that there was no market value for its 

damaged property, and thus, replacement value was the proper measure of damages). Ross, 

however, has never argued or attempted to establish that the property at issue had no 

ascertainable market value. See Enzo Invs., L.P. v. White, No. 14-13-00509-CV, 2015 WL 

3524461, at *10 (Tex. App.—Houston [14th Dist.] June 4, 2015, pet. denied) (sub. op.) (holding 
26

Contrary to her assertions, there is no evidence of the amount that TOFF received 

from the sale of property, and no evidence that many pieces of property were 

replaced. Despite the absence of such evidence, the trial court awarded damages 

that include as compensation for property loss the amount identified in Ross’s 

exhibit simply as “value.” Such unexplained assertions about the property’s 

“value” are legally insufficient as a matter of law. See Natural Gas Pipeline Co. of 

Am. v. Justiss, 397 S.W.3d 150, 159 (Tex. 2012) (“[P]roperty valuations may not 

be based solely on a property owner’s ipse dixit.”); Redman Homes, Inc. v. Ivy, 920 

S.W.2d 664, 669 (Tex. 1996) (explaining that a property owner’s testimony about 

the property’s market value “is probative if it is based on the owner’s estimate of 

market value and not some intrinsic or other value such as replacement cost”

(citing Porras v. Craig, 675 S.W.2d 503, 504 (Tex. 1984))).

Ross also asserts that the trial court had discretion to award damages “within 

the range of evidence” introduced at trial. See Gulf States Utils. Co. v. Low, 79 

S.W.3d 561, 566 (Tex. 2002). Although the principle on which Ross relies is 

correct, it cannot be applied if the plaintiff “offered no evidence to furnish a range 

within which a [factfinder] could exercise its discretion to award damages in the 

first place.” Id. at 567. Here, there is no such evidence.

V. CONCLUSION

The evidence supports the trial court’s finding that Saulsberry and Ross had 

an attorney–client relationship at all relevant times, and Saulsberry does not 

challenge the finding that he breached the duty that an attorney owes to a client. 

The evidence nevertheless is legally insufficient to support Ross’s recovery of

 

that plaintiff who failed to present evidence of the property’s fair market value at the relevant 

time was not entitled to alternative relief because he also failed to present evidence that the 

property had no ascertainable market value).
27

another party’s attorney’s fees and business expenses. The evidence also is legally 

insufficient to support an implied finding that, but for Saulsberry’s professional 

negligence, Ross would not have incurred attorney’s fees or would have incurred a 

lesser amount. Finally, the bare assertion of the “value” of the property that was 

seized and sold at auction is legally insufficient to support an award of damages. 

We accordingly sever the portions of the judgment that were not challenged 

on appeal,20 reverse the remainder of the judgment in Ross’s favor; and render 

judgment that Ross take nothing.

/s/ Tracy Christopher

Justice

Panel consists of Justices Christopher, Brown, and Wise.

 

20 Specifically, we sever the portions of the judgment (a) ordering that Spray-On 

Bedliners take nothing by its claims against Saulsberry; (b) holding Ross liable to Saulsberry for 

a total of $10,162.70; and (c) ruling that post-judgment interest will accrue at the rate of 5% per 

annum from September 2, 2014 until paid.