Appellate Lawyer of the Week: Houston Attorney Revives Legal Malpractice Case
By John Council
August 01, 2018 at 04:24 PM
Houston legal malpractice lawyer Lance Kassab says he’s a regular customer at Texas’ courts of appeal for one big reason: Trial court judges tend to toss his clients’ cases on summary judgment.
“We do a lot of appeals because we get poured out—a lot of judges don’t like legal malpractice,” Kassab said. “I just think as a general perception that judges will err on the side of lawyers, and I’m not saying that’s across the board.”
Kassab recently convinced Houston’s Fourteenth Court of Appeals that a trial court judge was wrong to dismiss a legal malpractice action against a Houston attorney who the suit claims failed to pay his client her share of a $1.1 million settlement.
The case, De Anda v. Webster, involves Houston attorney Jason C. Webster, who represented Andrina De Anda and Ricardo Garza, the husband she was divorcing, in a business dispute against a third party over the ownership of a company.
When the dispute settled at mediation, Webster paid Garza his portion of the proceeds but did not pay De Anda anything, the malpractice action claims. Instead, Webster allegedly notified Garza that De Anda had requested proceeds, and Garza later obtained a favorable ruling in a divorce court that he was entitled to the entire $1.1 million settlement, according to the decision.
Webster had prepared a waiver of conflict while representing De Anda and Garza in the business case because they were divorcing, the court said. The waiver noted that Webster “would not take sides” between the clients. And Webster also allegedly advised De Anda that she and Garza would split the $1.1 million, according to the decision.
De Anda later sued Webster in a Harris County state district court, alleging he committed legal malpractice, fraud and breach of fiduciary duties as her attorney.
Webster responded to the lawsuit by filing a plea to the jurisdiction challenging De Anda’s standing to sue him. However, trial court judge R.K. Sandill instructed Webster to refile the plea as a traditional summary judgment motion, which Webster did. And 83 days after the lawsuit was filed, and before Webster had answered De Anda’s discovery request, Sandill granted Webster’s summary judgment motion and dismissed De Anda’s claims with prejudice.
De Anda appealed the ruling to the Fourteenth Court on several issues, arguing, among other points, that the trial court abused its discretion by denying motions for discovery and for a continuance before tossing the case out on summary judgment.
The Fourteenth Court agreed that Sandill had dismissed the case on summary judgment prematurely.
“We conclude the trial court abused its discretion when it denied De Anda’s combined motions because De Anda established that the lawsuit had been pending for a very short time when the motion was filed, and that she had diligently pursued, but not received, discovery relevant to the issue of her damages in that time,” wrote Justice Brett Busby.
The Fourteenth Court ruled that Sandill also abused his discretion when he sustained Webster’s objections to two paragraphs in De Anda’s legal expert’s affidavit, which concluded that Webster’s breach of his duty of care was the proximate cause of De Anda’s injuries. Sandill concluded those two paragraphs were “conclusory, speculative, or lacking in foundation,” but the appeals court said De Anda’s legal expert, Kevin H. George, had provided a thorough summary of his credentials and legal experience, provided a list of case material he reviewed in preparation of his opinion, and included a multi-page summation of the facts underlying his opinion.
“We conclude that George provided a reliable foundation for his causation opinion and that the trial court abused its discretion when it sustained Webster’s lack of foundation objection,” Busby wrote, reversing Sandill’s judgment in the case and remanding it back to his court for further proceedings.
Kassab, who represents De Anda in the case, believes her legal malpractice case now has a chance to be heard on its merits in Sandill’s court because of the Fourteenth Court’s decision.
“From my perspective, the best part of the opinion is the stamp of approval for the expert’s report, because that essentially makes the case,” Kassab said. “They might pour it out on something else. But they can’t on proximate cause, which is one of the most difficult points to make in a legal malpractice case.”
Steven Aldous, a Dallas attorney who represents Webster, said his client is considering appealing the Fourteenth Court’s ruling. Aldous argues that De Anda does not have standing to sue Webster, and disagrees with the Fourteenth Court’s decision dismissing his client’s summary judgment motion before allowing for discovery.
“The Texas Supreme Court has said, when you have issues of standing, you’re supposed to resolve that before discovery occurs, and this court just threw that all out,” Aldous said.
Aldous also believes the Fourteenth Court was wrong to allow admission of portions of the legal expert report concluding that Webster’s conduct was the cause of De Anda’s injuries.
“The affidavit that he submitted made no reference to causation,” Aldous said of the expert report. “He doesn’t explain how someone can be harmed by a cause of action that they don’t own.”
Webster did not return a call for comment.