Guaranty Bank, Mt. Pleasant, Texas/Turtur & Associates Inc./Mario Turtur Steve Turtur & Turner Associates v. William R. Senior

• Court: Court of Appeals of Texas
• Decided: September 12, 2002
• Docket: 01-96-01595-CV
• Status: Published

Opinion

In The

Court of Appeals

For The

First District of Texas

____________

NO. 01-96-01595-CV

TURTUR & ASSOCIATES INC.,

MARIO TURTUR, and STEVE TURTUR, Appellants

V.

TOM ALEXANDER, Individually, and

ALEXANDER & McEVILY, Appellees

On Appeal from the 125th District Court

Harris County, Texas

Consolidated Trial Court Cause Nos. 88-10732 and 89-050768

OPINION DISSENTING FROM OVERRULING OF MOTION FOR REHEARING EN BANC REVIEW

The Panel Opinion recognized the rule that expert testimony is necessary to prove the element of causation in a legal malpractice case, but claimed an exception exists where the causal relationship between the attorney's negligence and the client's loss is so obvious that lay persons are competent to resolve the issue. As a threshold issue, I question whether such an exception exists. The only authorities cited for such an exception were a Texas Court of Appeals decision reversed on other grounds and a Fifth Circuit Court of Appeals decision.

Even if such an exception existed, however, the Panel Opinion did not set out any evidence that the federal bankruptcy judge would have made a different decision if a different lawyer had been trying the lawsuit and additional evidence had been submitted. Thus, I am perplexed how a jury of lay persons could be expected to make that decision without expert help.

The Panel Opinion is lengthy, and it presents a great deal of evidence about what evidence should have been presented by whom, and even expert evidence regarding appellees' negligence. I do not see a single shred of evidence, however, that a different decision would have been made by the federal bankruptcy judge in the face of the evidence appellants claim should have been introduced by Tom Alexander, himself. Accordingly, I respectfully dissent from the en banc decision to deny motion for rehearing.

Tim Taft

Justice

A majority of the justices of the Court vote to overrule the motion for rehearing en banc.

Justice Taft dissents from the overruling of the motions for rehearing en banc.

Justice Radack joins Justice Taft's opinion dissenting from the overruling of the en banc rehearing.

Justices Jennings and Keyes not participating.

Publish. Tex. R. App. P. 47.4.