REVERSE and REMAND and Opinion Filed August 31, 2022 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-20-00379-CV 

NEWSOM, TERRY & NEWSOM, LLP, AND 

STEVEN K. TERRY, Appellants 

V. 

HENRY S. MILLER COMMERCIAL COMPANY, Appellee 

On Appeal from the 134th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DC-09-01306-G 

MEMORANDUM OPINION 

Before Justices Reichek, Nowell, and Carlyle 

Opinion by Justice Reichek 

This is the second appeal following a jury trial in this suit for legal 

malpractice. Newsom, Terry & Newsom, LLP and Steven K. Terry (collectively 

“Terry”) challenge the trial court’s judgment in favor of Henry S. Miller Commercial 

Company (“HSM”) on the basis that, (1) the evidence is legally and factually 

insufficient to support the jury’s findings on breach of the standard of care, 

proximate cause, gross negligence, and damages, (2) the trial court erred in refusing 

to submit a jury charge question on the fault and proportionate responsibility of third 

parties, (3) the court’s judgment includes an impermissible double recovery of 
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interest, (4) the trial court erred in admitting unreliable expert testimony, (5) the 

award of exemplary damages is constitutionally excessive, (6) the jury charge 

includes instructions that inappropriately comment on the weight of the evidence, 

and (7) the judgment was based on a claim that was illegally assigned in whole or in 

part. We conclude the assignment issue was resolved in the previous appeal, and we 

decline to reconsider our holding. After reviewing the record, we further conclude 

the evidence is sufficient to support the jury’s findings. With respect to the jury 

charge, however, we conclude that one of the jury instructions constituted an 

impermissible comment on the weight of the evidence that was calculated to cause, 

and probably did cause, the rendition of an improper judgment. Accordingly, we 

reverse the trial court’s judgment and remand the cause for further proceedings 

consistent with this opinion. 

Background

 In 2004, HSM, a real estate broker, and its former employee, Steven Defterios, 

negotiated the purchase of nine commercial real estate properties on behalf of their 

client, James A. Flaven. The properties were owned by various partnerships and 

limited liability companies formed by Barry Nussbaum. Defterios told Nussbaum 

that Flaven was the beneficiary of a multimillion dollar trust fund and he wanted to 

use the money to invest in real estate. Flaven eventually put $500,000 in an escrow 

account and signed contracts to purchase the properties with an initial closing date 

of August 2004. 
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 The closing date was rescheduled multiple times, and Defterios told 

Nussbaum it appeared there were problems getting Flaven’s trust to release the 

money. According to Nussbaum, Defterios stated on many occasions that he had 

verified the existence of the funds and the closings were imminent. Over a year 

later, however, when the contracts still had not closed, Flaven disappeared. The 

properties at issue were either deeded to banks in lieu of foreclosure or sold for a 

loss. 

The companies that owned the properties sued HSM and Defterios for fraud 

and negligent misrepresentation (the “Underlying Suit”). Terry served as trial 

counsel for both defendants. Despite knowing from the beginning that Flaven could 

be held at least partly responsible for the property owners’ damages, Terry stated he 

actively chose not to pursue finding Flaven or involving him in the case because he 

suspected Flaven was a con man and he did not want to help the property owners 

develop facts showing that Defterios had lied. Shortly before trial, the property 

owners located Flaven’s brother who revealed that Flaven was a truck driver and not 

the beneficiary of a trust fund. Flaven himself was never found. 

After Flaven’s brother was deposed, Terry attempted to designate Flaven as a 

responsible third party (“RTP”). The motion to designate was filed twenty-four days 

before trial and asserted that Flaven was responsible for all or, alternatively, a 

proportionate part of the damages suffered by the property owners. The property 

owners objected that the motion to designate Flaven was untimely and Terry had no 
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valid reason for not designating him earlier. They further objected that HSM and 

Defterios had not pleaded sufficient facts to show a duty owed by Flaven to the 

property owners. The trial court denied the motion to designate Flaven without 

stating the reason for its ruling. 

The Underlying Suit was tried to a jury. During the course of trial, Defterios 

admitted he never verified Flaven had the money necessary to fund the purchases. 

At the close of evidence, Terry stipulated Defterios was acting within his agency 

relationship with HSM and that any findings against him would be binding on HSM. 

Terry stated the reason for the stipulation was that, although there was evidence 

showing Defterios was an independent contractor, HSM allowed Defterios to use the 

title of HSM vice-president on his email account, letterhead, and business cards. 

Based on a statutory provision that stated real estate brokers are responsible for the 

conduct of their salespersons, Terry believed HSM could not avoid liability for 

Defterios’s conduct, and he did not want the property owners to be able to argue 

Defterios’s title was another fraudulent misrepresentation. 

The jury ultimately found against HSM and Defterios and awarded the 

property owners over $12 million in damages. The trial court rendered judgment on 

the verdict and added prejudgment interest and costs to the final award. On appeal, 

this Court modified the judgment in minor respects, but otherwise affirmed. See 

Defterios v. Bayou Bend, Ltd., 350 S.W.3d 659 (Tex. App.—Dallas 2011, pet. 

denied). 
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 Following the verdict, HSM and Defterios filed this suit against Terry for 

malpractice. The allegations of negligence included that Terry failed to timely 

designate Flaven as an RTP and erred in stipulating HSM was responsible for 

Defterios’s conduct.1

 Diamond State Insurance Company, HSM’s insurance carrier, 

was also named as a defendant after it denied coverage for the judgment. The 

judgment creditors in the Underlying Suit filed an involuntary petition in bankruptcy 

against HSM which resulted in a reorganization plan approved by the bankruptcy 

court in July 2010. Under the plan, a portion of HSM’s claims against Terry and 

Diamond State was assigned to the judgment creditors. 

 HSM eventually settled with Diamond State before trial for $6 million. As a 

result, all of HSM’s and Defterios’s claims against Diamond State were nonsuited. 

Immediately before trial, Defterios also nonsuited his claims against Terry and was 

no longer a party to the suit. The case proceeded to trial solely on HSM’s 

malpractice claims against Terry. 

 After hearing the evidence, the trial court directed a verdict in favor of Terry 

on HSM’s claims for gross negligence. The jury then found that the combined 

negligence of Terry, HSM, and Defterios was the proximate cause of HSM’s injury. 

The jury apportioned responsibility as 50% to Terry, 40% to Defterios, and 10% to 

HSM. The jury further found that the amount by which the judgment rendered in 

1

 HSM additionally asserted that Terry was negligent in failing to offer expert testimony as to 

damages and in failing to advise HSM of the potential conflict of interest between it and Defterios. 
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the Underlying Suit exceeded the judgment that would have been rendered but for 

Terry’s negligence was $4,636,088. In the judgment, the trial court disregarded the 

jury’s findings regarding Defterios, applied the 10% responsibility found by the jury 

as to HSM, and concluded the $6 million credit from HSM’s settlement with 

Diamond State exceeded the amount of HSM’s recoverable damages. Accordingly, 

the trial court rendered judgment that HSM take nothing on its claims against Terry. 

HSM appealed the judgment to this Court. See Henry S. Miller Commercial 

Co. v. Newsom, Terry & Newsom, L.L.P., No. 05-14-01188-CV, 2016 WL 4821684 

(Tex. App.—Dallas Sept. 14, 2016, pet. denied) (mem. op.) (“HSM I”). Terry filed 

a cross appeal asserting, among other things, that the assignment of a part of HSM’s 

malpractice claims to its judgment creditors was illegal and barred any recovery. Id. 

at *2. We concluded that HSM’s right to bring its own cause of action for 

malpractice was not affected by the assignment and resolved the issue against Terry. 

Id. at *3. 

In addressing HSM’s appeal, we concluded the trial court properly directed a 

verdict in favor of Terry on HSM’s claim for gross negligence arising out of his 

stipulation that HSM was responsible for Defterios’s conduct. Id. at *5. We further 

held, however, that the trial court erred in directing a verdict for Terry on HSM’s 

claim for gross negligence arising out of Terry’s failure to timely designate Flaven 

as an RTP. Id. at *7. We reasoned that Terry could have designated Flaven earlier 

based solely on “the proposed transaction, its failure, and Flaven’s identity as the 
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defaulting buyer” without conceding that Flaven was a fraud or that Defterios had 

misrepresented Flaven’s wealth. Id. at *6. There was additional evidence showing 

Terry was aware of the extreme risks associated with not designating Flaven and that 

he chose not to do so despite those risks. Id. We recognized that Terry presented 

expert testimony supporting his concerns that designating Flaven earlier could have 

helped the property owners prove their case, and that his decision to wait to designate 

Flaven until after Flaven’s brother was deposed was justified. Id. at *7. But we 

concluded “the existence of controverting evidence is not the standard for 

determining whether a directed verdict was proper.” Id. We therefore reversed the 

trial court’s judgment and remanded the case for a new trial on both liability and 

damages. Id. at *8. 

On remand, HSM’s malpractice claims against Terry were, once again, tried 

to a jury. In support of their allegations of negligence, HSM presented the testimony 

of Marc Stanley, counsel for the property owners in the Underlying Suit, and Lewis 

Sifford, HSM’s legal expert. Stanley testified that Terry’s failure to designate 

Flaven as an RTP was a “break” for him in representing the property owners because 

he was afraid a jury would put most, if not all of the blame for the failed transactions 

on Flaven from whom the property owners would not be able to collect damages. 

He felt that Flaven would be seen as the “lead bad guy” who conned everyone, 

including HSM and Defterios. Stanley stated that all of his clients’ damages were 

ultimately caused by Flaven because of his failure to close on the purchase contracts. 
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Stanley acknowledged he needed proof that Flaven was a fraud to succeed on his 

claims against HSM and he stated the deposition of Flaven’s brother provided him 

with that proof. 

Sifford testified similarly. He stated that a reasonably prudent lawyer would 

have designated Flaven as an RTP earlier in the case because it was a “major avenue 

of defense.” He pointed to the fact that Terry identified Flaven as a responsible third 

party early in discovery and, in an email to Diamond State ten months before trial, 

Terry characterized Flaven as “the principal actor in the claim.” Sifford stated that 

juries tend to look for the “bad actor” in the case when determining fault. Here, 

Flaven was the initiator of all the bad acts and the reason the purchases did not close. 

Regardless of whether it was discovered that Flaven had no money, Sifford testified 

Terry could have placed the blame on Flaven for the property owners’ damages 

based solely on the fact that he breached the purchase contracts. 

Sifford stated Terry was negligent in not giving the jury the opportunity to 

apportion at least some of the liability for the property owners’ damages to Flaven. 

Sifford noted that, in the untimely motion to designate Flaven, Terry stated Flaven 

could be found responsible for all of the property owners’ damages. Terry made the 

same argument about Flaven’s responsibility to the jury in his closing argument in 

the Underlying Suit. Given that there was no dispute that Flaven was a con man, 

and there was no evidence that HSM was aware of Flaven’s fraud before he 
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disappeared, Sifford testified that a jury would likely have placed all of the liability 

on Flaven if he had been properly designated. 

In contrast, Terry and his legal expert, Rogge Dunn, testified there were valid 

reasons for not designating Flaven as an RTP sooner. Terry testified that if he had 

designated Flaven earlier in the case, they would have needed to pursue discovery 

to support the designation. Terry did not want to give the property owners evidence 

to show that Flaven did not have the money he claimed to have. According to Terry, 

this evidence would have simply helped the property owners prove that Defterios 

lied when he said he had verified the existence of Flaven’s funds. It was Defterios’s 

misrepresentation that formed the entire basis of the property owners’ claims. 

Dunn agreed with Terry, stating that, HSM’s best defense was that there was 

no evidence Defterios lied and, without Flaven in the case, there was no proof he 

was not the beneficiary of a large trust fund. He stated it was likely a jury would 

have believed the money existed based on Flaven’s ability to make a $500,000 

earnest money deposit. The fact that Flaven simply walked away from the deal 

would not, by itself, show that anyone committed fraud. In Dunn’s opinion, it was 

not until Flaven’s brother testified Flaven did not have the money he claimed to have 

that the purpose in not designating Flaven was removed. 

The charge submitted to the jury contained the following instruction on the 

designation of RTPs: 
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With respect to the designation of responsible third parties, 

the relevant portions of Section 33.004 of the Texas Civil 

Practice and Remedies Code provide as follows: 

(a) A defendant may seek to designate a person as a 

responsible third party by filing a motion for leave to designate 

that person as a responsible third party. The motion must be filed 

on or before the 60th day before the trial date unless the court 

finds good cause to allow the motion to be filed at a later date. 

* * * 

(f) A court shall grant leave to designate the named person 

as a responsible third party unless another party files an objection 

to the motion for leave on or before the 15th day after the date 

the motion is served. 

(g) If an objection to the motion for leave is timely filed, 

the court shall grant leave to designate the person as a responsible 

third party unless the objecting party establishes: 

(1) the defendant did not plead sufficient facts concerning 

the alleged responsibility of the person to satisfy the pleading 

requirement of the Texas Rules of Civil Procedure; and 

(2) after having been granted leave to replead, the 

defendant failed to plead sufficient facts concerning the alleged 

responsibility of the person to satisfy the pleading requirements 

of the Texas Rules of Civil Procedure. 

* * * 

(1) After adequate time for discovery, a party may move 

to strike the designation of a responsible third party on the 

ground that there is no evidence that the designated person is 

responsible for any portion of the claimant’s alleged injury or 

damage. The court shall grant the motion to strike unless a 

defendant produces sufficient evidence to raise a genuine issue 

of fact regarding the designated person’s responsibility for the 

claimant's injury or damage. 

Under this statute, a defendant is not required to provide 

evidence at the time of the filing of a motion for leave to 

designate a responsible third party, but the designation may be 

struck, by the Court, for lack of evidence after an adequate time 

for discovery has passed. 
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The designation of a responsible third party may be struck 

for lack of evidence after an adequate time for discovery has 

passed, as determined by the court. In resisting a motion to strike 

a designation of a responsible third party, the Terry Defendants 

would not have been required to prove the plaintiffs’ case that 

there was fraud in the underlying transaction. They could rely on 

evidence of the proposed transaction, its failure, and the identity 

of a responsible third party as the defaulting buyer in resisting a 

motion to strike a designation of a responsible third party. 

Terry objected to the last two paragraphs of the RTP instruction contending 

that, to the extent they merely repeated the statute, the repetition “constituted an 

impermissible comment by the Court on the weight of the evidence by drawing 

particular attention to sections of the statute that are already stated verbatim.” As 

for the last two sentences of the instruction, the lawyers objected that “to the extent 

that Plaintiff relies on [HSM I], that authority is irrelevant and was unavailable to 

Defendants at the time of the underlying trial, and does not save the added two 

paragraphs from being redundant, incorrect, an improper comment on the weight of 

the evidence, and unduly prejudicial.” The trial court overruled Terry’s objections. 

Unlike the charge in the first malpractice trial, the charge submitted to the jury 

in the second trial included only questions regarding Terry’s liability for HSM’s 

damages. Question No. 1 asked, 

 Did the negligence, if any, of the Terry Defendants proximately 

cause the injury complained of by Henry S. Miller in this lawsuit? 

The jury answered, “Yes.” 

Question No. 2 asked, 
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 What is the amount, if any, by which the judgment actually 

rendered in the Underlying lawsuit exceeded the judgment that would 

have been rendered but for the negligence you have found on the part 

of the Terry Defendants? 

The jury answered, “$13,626,997.” 

Question No. 3 asked, 

 Do you find by clear and convincing evidence that the harm to 

Henry S. Miller resulted from gross negligence by the Terry Defendants 

in not timely seeking to designate James Flaven a responsible third 

party? 

The jury answered, “Yes.” 

And, finally, Question No. 4 asked, 

 What sums of money, if any, should be assessed against the Terry 

Defendants and awarded to Henry S. Miller as exemplary damages for 

the conduct found in response to Question No. 1? 

In response to Question No. 4, the jury found Steven Terry liable for $6 million in 

exemplary damages and Newsom, Terry & Newsom, L.L.P. liable for $1 million in 

exemplary damages. 

 The issue of attorney’s fees damages arising from the property owners’ postjudgment collection efforts and the bankruptcy proceedings against HSM was 

presented to the trial court for resolution. The court signed a final judgment 

awarding HSM “$15,395,910.20 (representing $14,303,316.50 in actual damages, 

plus prejudgment interest of $3,444,575.25, both having been appropriately reduced 

by a settlement credit of $6,000,000), plus additional prejudgment interest at the rate 

of $1,635.60 per day from December 20, 2019, until the day before this judgment 
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was signed, [] $6,000,000 in exemplary damages against Defendant Steven K. Terry, 

and [] $1,000,000 in exemplary damages against Defendant Newsom, Terry & 

Newsom.” Terry timely brought this appeal. 

Analysis

I. Illegality of Assignment

 In his ninth issue, Terry contends the trial court erred in signing a judgment 

on the malpractice claim because the claim was illegally assigned to the judgment 

creditors in the Underlying Suit. In his briefing, Terry acknowledges this Court 

resolved this issue against him in our previous opinion in this case. See id. at *3. 

Terry states he has briefed the assignment issue “to provide the Court the opportunity 

to reconsider its holding in HSM I.” We decline to do so. Accordingly, we overrule 

Terry’s ninth issue. 

II. Sufficiency of the Evidence

In his second, third, and sixth issues, Terry contends the evidence presented 

at trial was legally and factually insufficient to support the jury’s findings on 

(1) breach of the standard of care, (2) proximate cause, and (3) gross negligence.2 In 

reviewing a legal sufficiency challenge to the evidence, we credit evidence that 

supports the verdict if a reasonable factfinder could have done so and disregard 

2

 Terry also challenges the sufficiency of the evidence supporting the amount of damages 

awarded by the jury. For the reasons discussed in section III below, it is unnecessary for us to 

address the sufficiency of the evidence supporting either the amount of damages or HSM’s claims 

of negligence other than Terry’s failure to timely designate Flaven as an RTP. 
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contrary evidence unless a reasonable factfinder could not have done so. Akin, 

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

106, 115 (Tex. 2009); City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). 

We consider all the evidence in the light most favorable to the prevailing party and 

indulge every reasonable inference in that party’s favor. St. Joseph Hosp. v. Wolff, 

94 S.W.3d 513, 520–21 (Tex. 2003). The evidence is legally sufficient if “more than 

a scintilla of evidence exists.” Browning–Ferris, Inc. v. Reyna, 865 S.W.2d 925, 

928 (Tex. 1993). More than a scintilla of evidence exists if the evidence furnishes 

some reasonable basis for differing conclusions by reasonable minds about a vital 

fact’s existence. Litton Loan Servicing, L.P. v. Manning, 366 S.W.3d 837, 840 (Tex. 

App.—Dallas 2012, pet. denied). The final test for legal sufficiency must always be 

whether the evidence at trial would enable reasonable and fair-minded people to 

reach the verdict under review. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 

770 (Tex. 2010). 

To evaluate a factual sufficiency challenge, we consider and weigh all the 

evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam). 

We can set aside a verdict only if the evidence is so weak or the finding is so against 

the great weight and preponderance of the evidence that it is clearly wrong and 

unjust. Id. We must not substitute our judgment for that of the factfinder and should 

remain cognizant that the factfinder is the sole judge of witness credibility. Golden 

Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). 
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“When a legal malpractice case arises from prior litigation, the plaintiff must 

prove that the client would have obtained a more favorable result in the underlying 

litigation had the attorney conformed to the proper standard of care.” Rogers v. 

Zanetti, 518 S.W.3d 394, 401 (Tex. 2017). The proper standard of care is whether 

the decision made by the attorney was an objective exercise of professional judgment 

that a reasonably prudent attorney could make in the same or similar circumstances, 

not whether the attorney subjectively believed his acts were done in good faith. 

Cosgrove v. Grimes, 774 S.W.2d 662, 665 (Tex. 1989). The failure to meet the 

proper standard of care 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). Expert testimony is required to show that 

tactical choices were unwise and the consequences of those choices. Id. at 119–20. 

Imprudent attorney actions that materially and unfavorably affect a client’s defense 

will support a malpractice claim. Rogers, 518 S.W.3d at 404. 

In this case, the evidence showed it was apparent early in the Underlying Suit 

that Flaven could be found at least partially, if not entirely, responsible for the 

damages suffered by the property owners. Terry disclosed Flaven as a potential RTP 

more than a year before trial, but chose not to designate him until after the deadline 

had passed. Without Flaven submitted to the jury as a potentially responsible party 

in the charge, there was no way for HSM to reduce its proportionate liability in the 

Underlying Suit. See HSM I, 2016 WL 4821684, at *5. 
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Terry argues that HSM’s assertion that he could have designated Flaven 

earlier is purely speculative. He points to the fact that the trial court did not state its 

reasoning when it denied Terry’s motion to designate Flaven. But, as we noted in 

HSM I, the trial court has little discretion regarding a timely-filed motion to 

designate an RTP. Id. The only two grounds asserted by the property owners in 

their objection to the designation were untimeliness and a lack of support in the 

pleadings. Had Terry designated Flaven earlier in the case, he would have had an 

opportunity to cure any deficiencies in the pleadings. 

Terry next argues that “in his judgment, designating Flaven earlier would have 

harmed HSM’s defense” because he was “concerned that, had Flaven been found, 

he would have helped prove [the property owner’s] case that Defterios was lying 

about Flaven’s financial resources.” While Terry may have believed his actions 

were in HSM’s best interests, the jury was free to accept the evidence presented by 

HSM that Terry’s decision to not designate Flaven earlier was negligent. This is 

particularly true since it was not necessary for Terry to find Flaven to designate him 

as an RTP. See id. at *6 (“Neither was it necessary to serve Flaven, join him in the 

lawsuit, or even determine his whereabouts in order to designate him as a responsible 

third party.”). Flaven’s proportionate liability could have been established through 

the contracts he signed and his failure to close. 

Finally, Terry argues there is insufficient evidence to show that his actions 

were the proximate cause of any damages. He contends that if the jury would have 
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found Flaven liable for all the property owner’s damages, as HSM contends, then 

“logic dictates” the jury would have found no negligence on the part of HSM 

regardless of whether Flaven was listed in the charge. But failing to name Flaven as 

a responsible third party necessarily skewed the proceedings and shifted the focus to 

HSM. See In re Greyhound Lines, Inc., No. 05-13-01646-CV, 2014 WL 1022329, 

at *4 (Tex. App.—Dallas Feb. 21, 2014, orig. proceeding) (mem. op.). The jury was 

presented with evidence of significant damages suffered by the property owners. 

And with Flaven not listed in the charge as a potentially responsible person, the jury 

could easily have decided to place the blame on HSM and Defterios as Flaven’s 

brokers in the transaction, rather than have the property owners recover nothing. 

Terry’s decision, therefore, materially and unfavorably affected HSM’s defense. See 

Rogers, 518 S.W.3d at 404. 

Terry also argues there is no evidence the jury would have found Flaven more 

than 50% responsible in the Underlying Suit. Thus, Terry contends there is no 

evidence that, but for his alleged negligence, HSM would not have been jointly and 

severally liable for the entire amount of the judgment under section 33.013(b)(1) of 

the Texas Civil Practice and Remedies Code. Terry does not explain why joint and 

several liability is not materially better than sole liability. Additionally, Terry does 

not address the fact that, in both his motion to designate Flaven and his closing 

argument to the jury in the Underlying Suit, Terry contended Flaven was responsible 

for most, if not all, of the property owners’ damages. HSM presented expert 
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testimony that juries tend to look for the “bad actor” when assigning liability. Given 

that Flaven was the reason the deals were made, the source of the alleged fraud, and 

the only person responsible for breaching the purchase contracts, we cannot 

conclude the evidence is insufficient to show that a jury would likely have found 

Flaven more than 50% liable for the property owners’ damages. 

With respect to the evidence of gross negligence, we previously held based on 

a substantially similar record that the evidence was legally sufficient to support a 

finding that Terry was grossly negligent. See HSM I, 2016 WL 4821684, at *7. 

After reviewing the record before us in this appeal, we conclude once again that the 

evidence is legally sufficient, and further conclude the jury’s finding that Terry was 

grossly negligent is not so against the great weight and preponderance of the 

evidence as to be clearly wrong and unjust. The record shows Terry was aware early 

in the case that HSM was facing significant exposure, yet he consciously chose not 

to designate a party he knew could bear a substantial portion of the responsibility. 

While Terry argues that gross negligence can never be based on an error in judgment, 

an attorney’s tactical decisions must be objectively reasonable. Cosgrove, 774 

S.W.2d at 665. HSM presented evidence that no reasonably prudent attorney would 

have waited until after the deadline had passed to designate Flaven as an RTP given 

the extreme risk that HSM could be found solely liable for the property owner’s 

damages. 
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In the alternative, Terry argues the allegedly negligent acts on which this suit 

was based were all committed by him alone and there is no evidence to support the 

jury’s finding of gross negligence against his law firm. Terry cites no authority in 

support of this argument. It is undisputed that, at all relevant times, Terry was a 

partner of Newsom, Terry & Newsom, LLP. A firm practicing as a limited liability 

partnership is liable for the malpractice of its partners. See David v. Howeth, No. 

02-20-00078-CV, 2020 WL 6165298, at *12 n.6 (Tex. App.—Fort Worth Oct. 22, 

2020, pet. denied) (mem. op.). 

Based on the foregoing, we conclude the evidence is legally and factually 

sufficient to support the jury’s findings as to breach of duty, proximate cause, and 

gross negligence. 

III. Jury Instruction on RTP Designation

 Although the evidence is sufficient to support the jury’s findings, we conclude 

the judgment must be reversed because the jury charge included an instruction that 

improperly suggested how the jury should resolve the issues of Terry’s negligence 

and gross negligence. Terry challenges the propriety of several portions of the 

charge in his eighth issue. Our analysis focuses on the last two sentences of the RTP 

instruction which read, 

In resisting a motion to strike a designation of a responsible third 

party, the Terry Defendants would not have been required to 

prove the plaintiffs’ case that there was fraud in the underlying 

transaction. They could rely on evidence of the proposed 

transaction, its failure, and the identity of a responsible third 
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party as the defaulting buyer in resisting a motion to strike a 

designation of a responsible third party. 

This portion of the instruction pulls language from our opinion in HSM I and 

imports it into the jury charge out of context. The original context was a discussion 

of whether there was sufficient evidence to support a finding that Terry was grossly 

negligent. See HSM I, 2016 WL 4821684, at *7. In concluding there was, we stated 

that Terry could have designated Flaven as an RTP earlier based on “the proposed 

transaction, its failure, and Flaven’s identity as the defaulting buyer.” Id. But we 

also observed there was evidence, including expert testimony, showing that a 

reasonably prudent lawyer would have waited until after Flaven’s brother was 

deposed, and Flaven’s fraud was revealed, to designate Flaven. Id. We concluded 

that, while the jury could have credited this testimony and found in favor of Terry, 

the existence of controverting evidence was not the standard for granting a directed 

verdict. Id. The conflicting evidence required the issue to be submitted to the jury. 

Id. 

 By instructing the jury that Terry would not have been required to “prove the 

plaintiffs’ case” to designate Flaven as an RTP, the charge suggested, if not overtly 

instructed the jury, that Terry’s reasoning for not designating Flaven earlier in the 

case was flawed. The charge made HSM’s theory of negligence the law of the case. 

A trial court’s charge may not comment on the evidence or the weight of the 

evidence in any manner. See TEX. R. CIV. P. 277. An impermissible comment on 

the weight of the evidence occurs when, after examining the entire charge, it is 
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determined that the judge assumed the truth of a material controverted fact or 

exaggerated, minimized, or withdrew some pertinent evidence from the jury’s 

consideration. Am. Bankers Ins. Co. v. Caruth, 786 S.W.2d 427, 434 (Tex. App.—

Dallas 1990, no writ). An instruction also will be held to be an improper comment 

on the weight of the evidence if it suggests to the jury the court’s opinion concerning 

the matter about which the jury is asked. Ferguson v. DRG/Colony N., Ltd., 764 

S.W.2d 874, 886 (Tex. App.—Austin 1989, writ denied). Instructing the jury on an 

issue that has previously been decided as a matter of law may constitute an unlawful 

comment on the weight of the evidence where the instruction was unnecessary to 

clarify the issues still to be decided by the jury. Mader v. Aetna Cas. & Sur. Co., 

683 S.W.2d 731, 733 (Tex. App.—Corpus Christi–Edinburg 1984, no writ). 

 The first portion of the RTP instruction sets forth the relevant provisions of 

section 33.004 of the civil practice and remedies code. This gave the jury all the law 

it needed on the requirements for designating responsible third parties and the level 

of proof necessary to resist a motion to strike. Including our discussion of the gross 

negligence evidence from HSM I added no clarity to the law to be applied, but rather 

served only to suggest that the jury should find Terry negligent. See In re 

Commitment of Shelton, No. 02-19-00033-CV, 2020 WL 1887722, at *12 n.7 (Tex. 

App.—Fort Worth April 16, 2020, no pet.) (mem. op. on reh’g) (instructions in jury 

charge should not advise jury that a fact issue has been conclusively established 

since instruction might unduly influence jury’s answers about other facts in the 
 –22– 

case); see also Bd. of Regents of N. Tex. State Univ. v. Denton Const. Co., 652 

S.W.2d 588, 594–95 (Tex. App.—Fort Worth 1983, writ ref’d n.r.e.) (instruction 

that tended to imply court thought law and facts were with appellee was erroneously 

prejudicial). A statement of law that encourages the jury to resolve a question a 

certain way, even if it is a correct statement of law, should not be in the jury charge. 

GTE Mobilnet v. Telecell Cellular, 955 S.W.2d 286, 292 (Tex. App.—Houston [1st 

Dist.] 1997, pet. denied). 

The issue of Terry’s tactical choices was a hotly contested issue at trial. An 

improper instruction is especially likely to cause an unfair trial when the evidence is 

sharply conflicting. Halmos v. Bombardier Aerospace Corp., 314 S.W.3d 606, 617–

618 (Tex. App.—Dallas 2010, no pet.). The reasoning behind Terry’s decision to 

not designate Flaven as an RTP earlier was the subject of extensive testimony, 

including expert testimony from both sides. Trial tactics is the type of issue that 

requires expert testimony. See Childs v. Crutchfield, No. 09-07-065 CV, 2007 WL 

5075982, at *6 (Tex. App.—Beaumont Sept. 13, 2008, pet. denied) (mem. op.). As 

such, any suggestion by the court that Terry should have made a different decision 

would likely sway a jury. By expanding the RTP instruction to specifically state 

what Terry could have done, the trial court necessarily implied what it believed Terry 

should have done. 

Reversal is required if an improper comment on the weight of the evidence is 

one that was calculated to cause and probably did cause the rendition of an improper 
 –23– 

judgment. Redwine v. AAA Ins., 852 S.W.2d 10, 14 (Tex. App.—Dallas 1993, no 

writ). In his closing argument at trial, HSM’s counsel spent a great deal of time on 

the RTP issue. On multiple occasions, he used the language in the charge to dispute 

Terry’s testimony regarding his choice of tactics in the Underlying Suit saying: 

Well, you guys are going to look in the charge. The charge 

literally says the fact that you can identify the person who is 

responsible for closing and he didn’t close is sufficient to file the 

responsible third-party. It’s in the charge. You guys will look at 

it. 

Why did I ask all my questions? Because I knew that was 

going in the charge, right? 

 . . . 

And what he’s going to tell you is he had to wait until he got 

Brian Flaven’s deposition to prove Flaven was a con man. And 

that - - you’re going to look at the charge, that is simply flat 

wrong. It’s just wrong. He did not have to wait until he got Brian 

Flaven’s deposition. 

Because of the inclusion of the language from our prior opinion in the jury charge, 

HSM’s counsel was able to argue the charge would instruct them that Terry’s 

strategy, and his defense to the negligence claim on the RTP issue, was invalid. 

In addition to counsel’s argument, the wording of the jury questions made the 

RTP issue the sole focus of the charge. Although Question No. 1 asked the jury 

about Terry’s negligence generally, Question No. 3 asked whether “the harm” to 

HSM resulted from Terry’s gross negligence in failing to timely designate Flaven as 

an RTP. By using the phrase “the harm,” the question asked whether all the harm 

suffered by HSM was caused by Terry’s untimely attempt to designate Flaven. 
 –24– 

Question No. 4 then asked the jury to determine what amount of exemplary damages 

should be assessed for the conduct found in response to Question No.1. Because a 

plaintiff can only recover exemplary damages for gross negligence, and the only act 

of negligence that was asserted as being grossly negligent was the failure to timely 

designate Flaven, the charge necessarily presumed the untimely RTP designation 

was the basis of the general negligence finding in Question No. 1. Accordingly, the 

improper RTP instruction impacted all of the jury’s responses and likely caused the 

rendition of an improper judgment. We sustain Terry’s eighth issue. 

We are cognizant of the fact that reversal in this case may require the parties 

to engage in a third trial on the merits. This result is compelled, however, by the 

trial court’s submission of a jury charge that was patently unfair to the defendants. 

Based on the foregoing, it is unnecessary for us to address the remainder of Terry’s 

issues. We reverse the trial court’s judgment in its entirety and remand the cause for 

further proceedings consistent with this opinion. 

 

 

Carlyle, J., dissenting. 

200379F.P05 

 

/Amanda L. Reichek/

AMANDA L. REICHEK 

JUSTICE 
 –25– 

S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

NEWSOM, TERRY & NEWSOM, 

LLP AND STEVEN K. TERRY, 

Appellants 

No. 05-20-00379-CV V. 

HENRY S. MILLER 

COMMERCIAL COMPANY, 

Appellee 

 On Appeal from the 134th Judicial 

District Court, Dallas County, Texas 

Trial Court Cause No. DC-09-01306-

G. 

Opinion delivered by Justice 

Reichek. Justices Nowell and Carlyle 

participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial 

court is REVERSED and this cause is REMANDED to the trial court for further 

proceedings consistent with this opinion. 

 It is ORDERED that each party bear its own costs of this appeal. 

Judgment entered August 31, 2022