Articles Posted in Professional Malpractice & Ethics

by
The trial court did not abuse its discretion by denying Defendant’s motion to dismiss based on the sufficiency of a certificate of merit supplied by Plaintiff. Plaintiff, a water supply corporation, contracted with Defendant to provide engineering design and project supervision services for a new water treatment plant. After the project was substantially completed, Plaintiff sued Defendant and others involved in the contract, attributing poor water quality issues to the plant’s design and construction. To comply with the certificate-of-merit statute, Plaintiff filed the affidavit of a licensed professional with its original petition. In this interlocutory appeal, Defendant argued that the trial court erred in not dismissing Plaintiff’s complaint because the certificate of merit’s author was unqualified and the affidavit failed to provide the factual basis required by Tex. Civ. Prac. & Rem. Code 150.002. The Supreme Court affirmed. View "Melden & Hunt, Inc. v. East Rio Hondo Water Supply Corp." on Justia Law

by
Plaintiffs sued their former attorneys and the law firm at which they practiced alleging legal malpractice arising from prior litigation. The trial court granted summary judgment in Defendants’ favor without specifying the grounds. The court of appeals affirmed the summary judgment, concluding that no summary judgment evidence existed to raise a material fact issue as to causation, an essential element of a legal malpractice claim. The Supreme Court affirmed, holding (1) the court of appeals did not err in applying the but-for causation test to Plaintiffs’ malpractice claims; and (2) summary judgment was properly granted because the evidence failed to raise a material fact issue as to the causation element of Plaintiffs’ negligence claims. View "Rogers v. Zanetti" on Justia Law

by
Tex. Civ. Prac. Rem. Code 150.002 provides that if an expert affidavit in a lawsuit or arbitration for damages arising out of the provision of professional services by licensed or registered professionals is not filed in accordance with the statute, the trial court shall dismiss the claim, and the dismissal may be with prejudice. The Supreme Court held that the statute affords trial courts discretion to dismiss either with or without prejudice. In this case, the statute required dismissal of the amended petition against Defendant. The trial court dismissed the claims without prejudice, but the court of appeals dismissed them with prejudice because, while the amended petition was accompanied by an expert affidavit, an expert affidavit was not filed with the original petition. The Court held that the trial court did not abuse its discretion by dismissing the claims with prejudice, as the record did not conclusively demonstrate that Plaintiff’s claims lacked merit or that the trial court’s decision violated any guiding rules and principles and therefore was an abuse of discretion. View "Pedernal Energy, LLC v. Bruington" on Justia Law

by
Landowner hired Architects to design a commercial retail project and oversee construction. Landowner subsequently sued, alleging breach of contract and negligence in the project’s design and negligence. With its original petition, Landowner filed a third-party licensed architect’s affidavit stating his professional opinion about Architects’ work. Architects filed a motion to dismiss, arguing that the affidavit did not meet the requirements for a certificate of merit under Tex. Civ. Prac. & Rem. Code 150.002(a)-(b). The trial court denied the motion to dismiss. The court of appeals affirmed the order denying dismissal of the negligence claim but reversed the order as to the contract claim, concluding that the affidavit at issue was deficient as to that claim. Architects appealed. The Supreme Court reversed, holding that neither the affidavit nor the record confirmed that the affiant possessed the requisite knowledge to issue the certificate of merit, and therefore, the certificate was not sufficient for Landowner’s negligence claim to proceed. View "Levinson Alcoser Associates, L.P. v. El Pistolon II, Ltd." on Justia Law

by
Jeanne Ransom sued dentist Jeanine Eaton, alleging that Eaton extracted two teeth in addition to the nine agreed on in a treatment plan. Ransom served Eaton with the required pre-suit notice and included an export report, but Ransom never re-served the expert report after filing suit. After the passage of 120 days, Eaton moved to dismiss Ransom’s suit on the grounds that Ransom failed to serve her with an expert report within the 120-day deadline set forth in the Texas Medical Liability Act (TMLA). The trial court granted the motion to dismiss. The court of appeals affirmed. While Ransom’s petition for review was pending, the Supreme Court decided Hebner v. Reddy. The Supreme Court reversed in the instant case, holding (1) the holding in Hebner compelled the conclusion that Ransom satisfied the TMLA’s expert-report service requirement when she served Eaton with a report concurrent with pre-suit notice; and (2) Eaton waived any objection to the sufficiency of Ransom’s expert report by failing to raise any objection within twenty-one days after filing her original answer. View "Ransom v. Eaton" on Justia Law

by
When Plaintiffs were sued, they hired Attorneys to represent them. During trial, the trial judge erred, and the error required a costly appeal to correct. Plaintiffs later sued Attorney for legal malpractice claiming that the court’s error would have been immaterial and a favorable judgment would have been rendered if Attorneys had presented additional evidence and arguments. The trial court granted summary judgment in favor of the Attorneys, concluding that the trial court’s error was the sole cause of Plaintiffs’ injury because the Attorneys pursued a winning strategy and did not contribute to the judicial error. The court of appeals reversed without addressing whether judicial error can constitute a superseding cause that negates proximate cause. The Supreme Court reversed, holding that, as a matter of law, any unrelated negligence by the trial attorneys was too attenuated from the remedial appellate attorney fees to be a proximate cause of those expenses. View "Stanfield v. Neubaum" on Justia Law

by
Dr. Lozano treated Andrade during her pregnancy and delivered her daughter at Women’s Hospital at Renaissance in Edinburg. The delivery was complicated by the baby’s shoulder dystocia, and Dr. Lozano allegedly engaged in excessive twisting. Andrade sued Lozano, alleging that his negligence caused the child permanent injury, including nerve damage and permanent paralysis of one arm. Andrade later added Renaissance, a limited partnership that owned and operated the Hospital, and RGV, Renaissance’s general partner. Lozano, an independent contractor with admitting privileges at the Hospital, was a limited partner in Renaissance. The Andrades settled with Lozano and nonsuited their claims against Renaissance. RGV moved for summary judgment, arguing that they were not liable for Lozano’s conduct because he was not acting within the scope of the partnership or with partnership authority when providing obstetrical care to Andrade, Tex. Bus. Org. Code 152.303. The trial court denied the motion. The Supreme Court of Texas reversed. The ordinary course of the partnership’s business does not include a doctor’s medical treatment of a patient and that the doctor was not acting with the authority of the partnership in treating the patient; the partnership cannot be liable for the doctor’s medical negligence. View "Doctor Hosp. at Renaissance, Ltd. v. Andrade" on Justia Law

by
In 2004, Linegar, an Australian, formed KeyOvation, which eventually merged with Saflink and became IdentiPHI, in which Linegar was a major stockholder. DLA Piper law firm represented Saflink in the merger. Following the merger, DLA Piper represented IdentiPHI as corporate counsel. During the merger, IdentiPHI needed a short-term loan. Linegar then served as Chairman, Director, and majority shareholder of Zaychan, the corporate trustee of the Linegar Fund, an Australian self-managed retirement trust with Linegar and his ex-wife as the sole beneficiaries. Linegar arranged for the Fund to lend IdentiPHI $1.67million. DLA Piper represented IdentiPHI in the transaction and worked directly with Linegar. IdentiPHI executed a promissory note to Zaychan, which was accepted by Linegar as Chairman and Director, and which granted Zaychan a security interest in IdentiPHI’s assets. The note was payable by June 29, 2008. Timely payment was essential for the Fund's compliance with Australian law. When it became apparent that IdentiPHI was going to default, Linegar took several actions, but ultimately the debt was subject to challenge under 11 U.S.C. 547(b) because the security interest had not been perfected. KeyOvation, the holder of the assigned note, settled its claim for $150,000, which it paid to Linegar. Linegar, Zaychan, and KeyOvation sued DLA Piper for legal malpractice, negligent misrepresentation, breach of fiduciary duty, breach of contract, unjust enrichment, and deceptive trade practices. They claimed that the firm gave assurances that the lien would be perfected. Linegar’s individual claims resulted in an award of $1,293,606. The court of appeals reversed. The Supreme Court of Texas reversed, holding that Linegar, as an individual, had standing. View "Linegar v. DLA Piper LLP" on Justia Law

by
A baby died after being delivered by emergency caesarean section. About six months before actually filing suit, the plaintiffs voluntarily served an expert report concurrently with a pre-suit notice letter. After filing suit, the plaintiffs attempted to serve the same previously served expert report on the defendant but mistakenly served another report— from the same expert but addressing a different patient, doctor, and claim. The defendant made no objection, but waited for passage of the 120-day deadline before moving to dismiss under the Texas Medical Liability Act (Act), Tex. Civ. Prac. & Remedy Code 74.051, which requires claimants pursuing a healthcare liability claim to serve an expert report on each party no later than the 120th day after filing an original petition. The trial court denied that motion. The court of appeals reversed, holding that the plaintiffs failed to timely serve a qualifying expert report. The Supreme Court reversed, reinstating denial of defendants’ motion. Nothing in the Act compels the conclusion that a plaintiff cannot satisfy the expert-report requirement through pre-suit service of an otherwise satisfactory expert report. Moreover, the court of appeals’ conclusion frustrates the Act’s purpose, which is to eliminate frivolous healthcare liability​ claims, not potentially meritorious ones. View "Hebner v. Reddy" on Justia Law

by
Plaintiff sued Defendants, attorneys Eric Turton and Oscar Gonzalez and the Law Office of Oscar C. Gonzalez, alleging that they misappropriated $75,000 in trust funds that Turton received after settling a case on Plaintiff’s behalf. The jury found that all three defendants were engaged in a joint enterprise and a joint venture with respect to Plaintiff’s case and committed various torts in relation to Plaintiff. In response to a proportionate-responsibility question, the jury assigned forty percent to Turton, thirty percent to Gonzalez, and thirty percent to the Law Office. The trial court entered judgment holding all three defendants jointly and severally liable for actual damages, pre-judgment interest, additional Texas Deceptive Trade Practices and Consumer Protection Act damages, and attorney’s fees. Gonzalez and the Law Office appealed. The court of appeals concluded that Plaintiff could only recover for professional negligence, which amounted to $77,500 in actual damages. The court’s opinion did not address the jury’s proportionate-responsibility findings but nonetheless applied those findings in its judgment, ordering Gonzalez and the Law Firm to each pay Sloan $23,250. The Supreme Court reversed, holding that the court of appeals erred by failing to address the sufficiency of the evidence of a joint enterprise or joint venture or the legal implications of those findings. Remanded. View "Sloan v. Law Office of Oscar C. Gonzalez, Inc." on Justia Law