NO FRACTURING? NO PROBLEM. BUT A WORD OF WARNING FOR LEGAL MALPRACTICE EXPERT WITNESSES.

Ashton v. KoonsFuller, P.C.
Dallas Court of Appeals, No. 05-16-00130-CV (May 10, 2017)
Justices Francis, Fillmore, and Stoddart (Opinion, linked here)

Ken Carroll

KoonsFuller represented Ashton in her divorce, but withdrew during the process. After the divorce was finalized, Ashton sued KoonsFuller for negligence, breach of fiduciary duty, and fraud, attacking the firm’s approach to various matters and the fees it charged along the way. KoonsFuller secured a no-evidence summary judgment against Ashton’s fraud and breach-of-fiduciary-duty claims, and the Dallas Court of Appeals affirmed. But there were some twists along the way.

First, when the trial court granted judgment against Ashton’s fraud and fiduciary-duty claims, it denied summary judgment on her negligence claim. But she nonsuited it nonetheless. We don’t know why.

Second, KoonsFuller’s “primary argument” on appeal was predictable: dismissal of the fraud and fiduciary-duty claims was appropriate because they violated the “anti-fracturing” rule in legal malpractice cases. But under Rule 166a, summary judgment can only be granted—or affirmed—on a ground specified in the motion. KoonsFuller had not raised fracturing as a ground for its summary judgment motion; it didn’t articulate the argument until its reply brief below (again, we don’t know why). So, the Court of Appeals held the anti-fracturing rule could not be considered on appeal, to support the summary judgment.

Finally, although the trial court had overruled KoonsFuller’s objections to Ashton’s summary judgment evidence, the Court of Appeals disagreed, and with apparently devastating effect. Ashton had tendered the affidavit of an expert witness, as well as excerpts from his deposition, to challenge KoonsFuller’s billings and several of the firm’s practices and decisions during the divorce proceeding. As described and quoted in the opinion, the affidavit was hardly terse or cryptic. And no defects in the witness’s experience or expertise were noted. Nevertheless, the Court found the testimony to be “conclusory and … not adequate summary-judgment evidence.” The recurring theme in this determination was the Court’s condemnation of the expert’s testimony that fees or practices were unreasonable, but his failure to articulate the other side of the coin, i.e., what “would have been reasonable.” The holding here at least implies that, to fend off a no-evidence summary judgment—much less, carry the burden of proof at trial—a plaintiff’s qualified legal malpractice expert witness must not only opine about shortcomings of the defendant attorney’s conduct, but must also explain what the proper course of conduct would have been.