Zena James v. Amy K. Witherite and Eberstein & Witherite, LLP

AFFIRMED; Opinion Filed November 9, 2018.

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-17-00799-CV

ZENA JAMES, Appellant
V.
AMY K. WITHERITE AND EBERSTEIN & WITHERITE, LLP, Appellees

On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-15-09989

MEMORANDUM OPINION
Before Justices Lang, Fillmore, and Schenck
Opinion by Justice Lang

Appellant Zena James filed this lawsuit against appellees Amy K. Witherite and the law

firm of Eberstein & Witherite, LLP, alleging legal malpractice, fraud, negligent misrepresentation,

and violation of the Texas Deceptive Trade Practices Act (“DTPA”). See TEX. BUS. & COM. CODE

ANN. §§ 17.41–.63 (West 2011 & Supp. 2017). Appellees filed a combined traditional and no-

evidence motion for summary judgment, which was granted by the trial court.

In three issues on appeal, James contends the trial court erred by denying her motion for

leave to file an amended pleading, granting appellees’ motion for summary judgment, and allowing

her motion for new trial to be denied by operation of law. We decide James’s three issues against

her. The trial court’s judgment is affirmed.
 I. FACTUAL AND PROCEDURAL CONTEXT

This lawsuit was filed on August 28, 2015. In her live pleading at the time of the judgment

complained of, James stated that on approximately April 16, 2010, she was shopping at a Whole

Foods Market in Dallas, Texas. According to James, (1) a bottle of mineral water she had placed

into her shopping basket “exploded,” resulting in glass and water “all over the floor”; (2) she

slipped on the water and suffered “extensive injuries and damages”; (3) appellees filed an October

20, 2011 lawsuit on her behalf (“the Lawsuit”) against La Galvanina Spa (“Spa” or “La

Galvanina”), which was the vendor of the mineral water, and multiple entities affiliated with

Whole Foods Market, Inc. (“Whole Foods”); (4) the claims in the Lawsuit consisted of a products

liability claim against Spa and negligence and premises liability claims against Whole Foods; and

(5) in August 2013, the Lawsuit was resolved “for a seriously deficient amount during mediation.”

In her legal malpractice claim against appellees in this case, James alleged that she

“suffered damages because she would have received a greater amount of damages in the Lawsuit

but for the Defendants’ gross negligence” in not filing a response to a motion for summary

judgment filed by Whole Foods on June 21, 2013, “not appearing for the MSJ hearing” on that

motion, “not properly pleading a premises liability cause of action” against Whole Foods, and

“fail[ing] to plead a cause of action for general negligence against Whole Foods and assert the

doctrine of res ipso loquitur.” According to James, that alleged breach of the standard of care

“proximately caused injury to Ms. James, which resulted in the following damages: the court

granted Whole Foods’s MSJ, which declared that James take nothing against Whole Foods.” Also,

James alleged (1) sometime prior to the August 2013 mediation, “Defendants indicated to the

Plaintiff that a case against SPA was not possible because SPA did not have a place of business in

Texas; therefore, Plaintiff lacked personal jurisdiction over SPA”; (2) “[h]owever, the actual

situation was that Defendants . . . had failed to respond to SPA’s motion for summary judgment

–2–
and later counseled settlement for a seriously deficient amount during mediation in order to avoid

Ms. James’ discovery of the truth”; and (3) “Defendants’ breach of the standard of care

proximately caused injury to Ms. James, which resulted in the following damages: Ms. James

settled for a deficiently lower amount based on Defendants’ improper legal advice regarding

jurisdictional issues against SPA in Texas, failure to plead a cause of action for general negligence

against SPA, [and] failure to serve SPA with discovery that would have aided in developing

potential issues with the bottle.”

In her DTPA claim, James asserted (1) “instead of telling the Plaintiff what actually

occurred [respecting Whole Foods’s June 21, 2013 motion for summary judgment], the Defendants

unconscionably and intentionally misrepresented to the Plaintiff that the [trial judge] granted

Whole Foods’s motion solely because Whole Foods argued it was an innocent retailer”;

(2) “Defendants knowingly and intentionally misrepresented the reason for the dismissal of the

lawsuit against Whole Foods because Defendants knew they failed to file a response or appear in

court on Whole Foods’s motion for summary judgment”; (3) “Defendants knowingly and

intentionally misrepresented to Plaintiff the reason the Lawsuit could not go forward against SPA”;

and (4) those actions “cannot be characterized as advice, judgment, or opinion.”

As to fraud, James contended (1) Defendants’ representation to Plaintiff that Whole Foods

was dismissed from the Lawsuit “based on innocent retailer issues” was “a false statement of fact”

because “Defendants knew that Whole Foods was dismissed from the case due to the Defendants

not filing a response or appearing for Whole Foods’ MSJ hearing”; (2) that representation “was

material because it caused Plaintiff to settle for a seriously deficient amount during mediation with

SPA due to the fact that SPA was the only remaining party sued by the Plaintiff in the Lawsuit”;

(3) “Defendants’ statement to Plaintiff regarding the jurisdiction over SPA was false and/or made

recklessly, as a positive assertion, and without knowledge of its truth”; and (4) that representation

–3–
“was material because it caused Plaintiff to settle for a seriously deficient amount during

mediation.”

Further, in her claim for negligent misrepresentation, James contended (1) the above-

described representation respecting Whole Foods constituted a “failure to disclose information

when Defendants had a duty to do so”; (2) the above-described representation respecting Spa

constituted a “misstatement of fact and/or opinion”; and (3) “Defendants did not use reasonable

care in communicating the information.”

Appellees filed a general denial answer and asserted various affirmative defenses and other

defensive matters. Specifically, appellees asserted in part (1) “Plaintiff’s [DTPA], fraud, and

negligent misrepresentation claims are barred as improperly fractured claims for legal

malpractice,” and (2) “Plaintiff’s claims are barred in whole or in part because she cannot show

that she would have prevailed in her suit against Whole Foods and La Galvanina Spa had she gone

to trial, and therefore cannot show that she has suffered harm by the settlement of her claims in

the underlying lawsuit.”

Trial in this case was set for April 10, 2017. Also, the parties and the trial court signed a

January 15, 2016 “Discovery Control Plan” that stated in part, “No additional parties may be joined

more than twelve (12) months after the commencement of this case except on motion for leave

showing good cause.”

On February 28, 2017, James filed a “Motion for Leave to File Amended Pleading Adding

Defendant.” Therein, James requested leave to amend her pleading “to join a new party, namely

Mr. Brian Eberstein as a Defendant, whose involvement and participation in the fraud has been

discovered and confirmed throughout Plaintiff’s utilization of the discovery process during the

oral deposition of Ms. Witherite, which only occurred on February 22, 2017.” James asserted that

–4–
her motion for leave to amend should be granted because “Defendants cannot show surprise and

cannot show prejudice” and this case “is not an expedited action.”

On March 7, 2017, appellees filed a “Motion for Traditional and No-Evidence Summary

Judgment.” In that motion, appellees stated in part,

Ultimately, James’s accident at Whole Foods could not be established as the cause
of her alleged injuries and medical conditions, most of which she demonstrably had
before the incident, or were degenerative conditions. Despite the weaknesses of her
case, Defendants obtained for James a generous settlement offer. Against the
strong and repeated advice of her counsel, James rejected that offer. A few weeks
before trial, at a mediation, James eventually settled with Whole Foods and La
Galvanina Spa for a lesser amount. She then brought this lawsuit claiming her
recovery was insufficient and alleging that her former lawyers had committed
malpractice.

Appellees sought (1) traditional summary judgment on James’ claims for DTPA violations, fraud,

and negligent misrepresentation “because they are improperly fractured legal malpractice claims

that should be dismissed under the Texas anti-fracturing rule” and (2) no-evidence summary

judgment on James’ legal malpractice claim “because . . . James has no evidence of the elements

of her claims against the defendants in the underlying lawsuit, Whole Foods and La Galvanina, as

necessary to establish suit-within-a-suit proximate causation for legal malpractice.” The evidence

attached to that motion consisted of James’s live petition described above, a March 7, 2017

affidavit of Witherite1, and excerpts from a January 25, 2017 deposition of James.

1
In her affidavit, Witherite stated in part as follows:
7. In March 2013, La Galvanina made a settlement offer of $225,000 to Zena James to resolve the case against all parties,
including Whole Foods. La Galvanina made the settlement offer again by letter dated June 19, 2013. Against my advice, Ms.
James rejected the settlement offer.

8. While the Underlying Lawsuit was pending, Ms. James underwent treatment for her back and neck pain. Ms. James saw
Paul Salinas, M.D., a neurosurgeon at Frisco Spine in the Dallas area. Dr. Salinas diagnosed Ms. James with degenerative
disc disease of the C-spine and L-spine. Dr. Salinas also noted a syrinx, a fluid-filled cavity that develops in the spinal cord,
in the thoracic cord. In May 2011, Dr. Salinas performed an ACDF (anterior cervical discectomy and fusion) on Ms. James.
In his records, Dr. Salinas did not link the syrinx, or any other medical condition, with the fall at Whole Foods.

9. In late 2012, Ms. James went to see a syrinx specialist, Dr, Ryan Trombly, at the University of Miami Hospital in Miami,
Florida. Dr. Trombly reported that Ms. James’ syrinx was “very small”, had not “grown significantly”, and “appear[ed] to
be relatively benign.” Dr. Trombly also reported that the syrinx was not causing spinal cord compression and her physical
exam was normal. Dr. Trombly recommended continuing pain treatment with her Texas doctors and a follow-up MRI in a
year. Dr. Trombly also did not link the syrinx with the fall at the Whole Foods grocery in his records.

–5–
 Additionally, appellees filed a March 23, 2017 response to James’s motion for leave to

amend her pleading. Therein, appellees asserted in part,

Pursuant to the [trial court’s] Discovery Control Plan, which was agreed to and
signed by counsel for the parties, the deadline for amended pleadings asserting new
causes of action or defenses expired on December 12, 2016, and the deadline for
all other amended pleadings passed on February 24, 2017. The Discovery Control
Plan states that no additional parties may be joined more than 12 months after
commencement of the case (deadline of August 28, 2016) except on motion for
leave showing good cause. . . .
James missed the deadlines for amended pleadings and additional parties by
several months. And she cannot show (nor does she even argue) good cause for the
late amendment.

(emphasis original). Attached to appellees’ response to James’s motion to amend her pleading

were excerpts from James’s January 25, 2017 deposition described above, in which James testified

in part that, prior to mediation in the Lawsuit, (1) “they both pulled me—Brian and Amy pulled

me into a room and said, Hey, we have bad news. We got word this morning the judge is throwing

out your case,” and (2) at that point, both Eberstein and Witherite described to James the purported

developments and options in the Lawsuit.

On March 27, 2017, James filed (1) approximately 280 pages of medical records from

several providers specializing in spine treatment and (2) several affidavits authenticating those

records. Additionally, James filed a March 29, 2017 response to appellees’ motion for summary

judgment in which she argued in part that her claims “are not impermissibly fractured” because

10. After Zena James’ deposition was taken in the Underlying Lawsuit, in July 2013, Whole Foods and La Galvanina both
filed motions for summary judgment. La Galvanina filled a No-Evidence Motion for Summary Judgment, asserting that Ms.
James had no evidence to support her manufacturing defect claim, her marketing defect claim, or her design defect claim for
her products liability case. Whole Foods filed a Traditional and No-Evidence Motion for Summary Judgment, seeking a
complete dismissal of Ms. James’ negligence and premises liability claims.

11. Due to a miscommunication, my firm missed the July 18, 2013 hearing on Whole Foods’ Motion for Summary Judgment.
Based upon my conversations with counsel, I believed the Whole Foods hearing was being moved to a later date along with
La Galvanina’s Motion for Summary Judgment. The court initially granted Whole Foods’ Motion for Summary Judgment.
On July 24, 2013, E&W filed, on behalf of Ms. James, Plaintiffs Motion to Set Aside Summary Judgment in favor of
Defendant Whole Foods and Motion for New Trial. During a telephonic hearing on August 12, 2013, the court granted
Plaintiffs’ Motion to Set Aside. Both motions for summary judgment were then set for hearing in September.

12. On August 28, 2013, the parties to the Underlying Lawsuit went to mediation. The parties settled at mediation, with La
Galvanina agreeing to pay James $50,000 in exchange for releases of both defendants and a dismissal with prejudice of all
claims. On or about September 19, 2013, the parties signed a formal Settlement Agreement. After paying medical liens,
James received a net amount of approximately $49,000 in the settlement.

–6–
“the set of facts relevant to the Legal Malpractice cause of action are independent of the set of

facts supporting the [DTPA] claim and common-law fraud claim.” Specifically, James contended

“[t]he crux of Plaintiff’s Legal Malpractice claim is that the Defendants failed to properly manage

Ms. James’ litigation in the underlying case; gave erroneous legal opinions or advice; failed to

give advice, opinions, or relevant information when legally obligated to do so,” whereas “[t]he

core of Plaintiff’s DTPA and common law fraud claims are specific to the cover-up engaged in by

the Defendants, i.e. the misrepresentations and unconscionable actions on August 28, 2012,

regarding James’ personal jurisdiction over SPA and the status of Whole Foods in the Underlying

Case.” Further, James asserted she “suffered injuries to her neck and spine as a result of the Whole

Foods incident” and “has Medical Records on file with the Court that will prove the injuries to Ms.

James’ neck and spine were a direct result of the Whole Foods Incident.” The evidence attached

to James’s response to appellees’ summary judgment motion included, among other things, a

March 29, 2017 affidavit of James.2

Appellees filed a reply to James’s summary judgment response in which they asserted in

part,

James has a complex medical history with incidents and surgeries both before and
after the Whole Foods incident, including a 2001/2002 Lupus diagnosis, a 2002 on-
the-job injury followed by three back surgeries in 2004–2006, and hit-and-run car
accidents in 2006 and again in 2012 for which James filed claims for her injuries.
To separate her medical conditions and treatment allegedly related to the fall at
Whole Foods from her conditions and treatment a result of these other incidents,
James needs expert testimony. Further, to connect the 2010 Whole Foods incident
with her medical conditions, pain, and treatment seven years later, James needs
expert testimony. . . . Spine and neck pain and related surgeries are the kind of
medical conditions that are not within the common knowledge and experience of

2
In her affidavit, James testified in part,

11. As a result of the Whole Foods Incident, I suffered injuries to my neck and spine. These issues have required me to have
surgery and will continue to require me to have surgery in the future. In addition, due to the neck and spine injuries, I am
unable to do household chores or enjoy the hobbies I participated in prior to the Whole Foods Incident, being mountain
biking, painting, and interior design. I am also unable to travel to see family overseas.
....
14. My overall health has suffered from chronic pain and chronic stress related to the Whole Foods Incident, which has
forever changed my life.
–7–
 jurors, and thus require expert testimony to establish causation. James has failed to
present medical expert testimony on any of these issues.

Additionally, appellees contended (1) “[e]ven if the [trial court] were to find that this case presents

the limited circumstances where James could prove causation for her medical conditions,

treatment, and expenses without expert evidence, James has not presented the basic proof of her

conditions, the sequence of events, or temporal proximity between the Whole Foods incident and

her medical conditions and treatment to establish causation” and (2) “[a] review of the medical

records on the file with the Court (which are not part of the summary judgment record) will reveal

that no doctor linked the fall at Whole Foods to any medical condition of James, and James’ current

doctors are not recommending further surgery.”

In an order dated March 29, 2017, the trial court denied James’s motion for leave to file an

amended pleading. Further, following a hearing on appellees’ summary judgment motion, the trial

court signed an April 11, 2017 order granting that motion without stating the basis for that ruling.

James filed a motion for new trial in which she restated her arguments described above

and, additionally, stated in part (1) “[t]he [trial court] erred by granting Defendants’ MSJ because

there are disputed fact issues about whether Plaintiff’s causes of action . . . are subject to Texas’

Anti-Fracturing Rule, which must be submitted to the jury,” and (2) “Plaintiff has on file with the

Court, Medical Affidavits and Billing Records, which coupled with the experts listed by the

Plaintiff, are sufficient to prove damages suffered by the Plaintiff.” James’s motion for new trial

was denied by operation of law. This appeal timely followed.

II. DENIAL OF MOTION FOR LEAVE TO AMEND PLEADING

A. Standard of Review

We review a trial court’s decision respecting whether to grant leave to file an amended

pleading for abuse of discretion. See, e.g., Hardin v. Hardin, 597 S.W.2d 347, 349–50 (Tex. 1980);

Strange v. HRsmart, Inc., 400 S.W.3d 125, 131 (Tex. App.—Dallas 2013, no pet.). Likewise, we
–8–
review a trial court’s enforcement of its scheduling order for an abuse of discretion. Bagwell v.

Ridge at Alta Vista Inv. I, LLC, 440 S.W.3d 287, 292 (Tex. App.—Dallas 2014, pet. denied); Gunn

v. Fuqua, 397 S.W.3d 358, 377 (Tex. App.—Dallas 2013, pet. denied). An abuse of discretion

occurs when the trial court acts in an unreasonable and arbitrary manner or when it acts without

reference to any guiding rules or principles. Gunn, 397 S.W.3d at 377.

B. Applicable Law

Pursuant to Texas Rule of Civil Procedure 63, parties generally may amend their pleadings

at any time prior to seven days before trial unless the amended pleadings operate as a surprise to

the opposing party. TEX. R. CIV. P. 63. However, the deadline imposed by rule 63 for filing an

amended petition may be altered by the trial court in a scheduling order issued pursuant to rule

166. See TEX. R. CIV. P. 166. Rule 166 states in part that if a trial court issues a pretrial order that

“recites . . . the amendments allowed to the pleadings, . . . and the agreements made by the parties,”

“such order when issued shall control the subsequent course of the action, unless modified at the

trial to prevent manifest injustice.” Id.

C. Application of Law to Facts

In her first issue, James contends the trial court abused its discretion when it denied her

motion for leave to amend her pleading. Specifically, according to James, (1) “[t]he trial court

should have permitted Appellant to amend her petition to add Mr. Eberstein because during the

discovery process, Appellant determined that Mr. Eberstein was present and made false

representations and committed unconscionable acts or courses of action in conversations with the

Appellant”; (2) “due to the fact that the Appellees cannot show surprise and cannot show prejudice,

the Appellant’s Motion for Leave should have been granted by the trial court”; and (3) “Appellant

–9–
showed good cause based on these facts, that the trial court should have permitted Appellant’s

Fourth Amended Petition.”3

Appellees respond that the trial court did not abuse its discretion by denying James’s

motion for leave to file an amended pleading because James “failed to show good cause for the

amendment.” Specifically, appellees assert in part (1) “James’s position that she only learned of

Eberstein’s involvement and participation in the alleged fraud during the February 22, 2017

deposition of Amy Witherite is without support”; (2) “James herself testified during her January

25, 2017 deposition in this case that Brian Eberstein met with her and counseled her before

mediation”; and (3) “James failed to make any argument of good cause in the trial court.”

As described above, the record shows the “Discovery Control Plan” signed by the parties

stated in part, “No additional parties may be joined more than twelve (12) months after the

commencement of this case except on motion for leave showing good cause.” That order

“control[led] the subsequent course of the action.” TEX. R. CIV. P. 166. Accordingly, James was

required to show “good cause” for joining an additional party more than twelve months after this

case was filed. In support of her assertion that she “showed good cause,” James cites generally to

her motion for leave to amend her pleadings. However, that motion does not mention or describe

any “good cause” for allowing leave to amend. Further, (1) although James stated in that motion

that “[Eberstein’s] involvement and participation in the fraud has been discovered and confirmed

throughout Plaintiff’s utilization of the discovery process during the oral deposition of Ms.

Witherite, which only occurred on February 22, 2017,” James did not cite or describe any evidence

to support that assertion, and (2) James did not describe or address how that assertion is consistent

with her testimony in her January 25, 2017 deposition that Eberstein met with her and counseled

3
Additionally, James contends in her brief in this Court that appellees “failed to . . . show the amendment removed the suit from the expedited-
actions process in Texas Rule of Civil Procedure 169.” James’s appellate brief does not contain any argument or citation to authority or to the
record respecting that contention. We conclude that contention presents nothing for this Court’s review. See TEX. R. APP. P. 38.1(i).

–10–
her before mediation in the Lawsuit. On this record, we conclude the trial court did not abuse its

discretion by concluding James did not establish good cause for amending her petition to join an

additional party. See Gunn, 397 S.W.3d at 377; see also Duchene v. Hernandez, 535 S.W.3d 251,

256–57 (Tex. App.—El Paso 2017, no pet.) (even if trial court could have considered counsel’s

unsworn statements in making its determination of whether party established “good cause” for

granting leave to file late summary judgment response, trial court did not abuse its discretion in

refusing to find that counsel’s bare assertions of calendaring errors and other “mistakes” were

sufficient to establish good cause, where counsel provided no explanation respecting those errors).

We decide against James on her first issue.

III. SUMMARY JUDGMENT

A. Standard of Review

We review a trial court’s granting of summary judgment de novo. First United Pentecostal

Church of Beaumont v. Parker, 514 S.W.3d 214, 219 (Tex. 2017) (citing Cantey Hanger, LLP v.

Byrd, 467 S.W.3d 477, 481 (Tex. 2015)). In our review we take as true all evidence favorable to

the non-movant, indulge every reasonable inference in favor of the non-movant, and resolve any

doubts in the non-movant’s favor. Id. (citing Valence Operating Co. v. Dorsett, 164 S.W.3d 656,

661 (Tex. 2005)).

To defeat a no-evidence motion for summary judgment, the non-movant must produce

evidence raising a genuine issue of material fact as to the challenged elements. Id. at 220 (citing

Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004)). A genuine issue of material fact

exists if the evidence “rises to a level that would enable reasonable and fair-minded people to differ

in their conclusions.” Id. (citing Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.

1997)). The evidence does not create an issue of material fact if it is “so weak as to do no more

than create a mere surmise or suspicion” that the fact exists. Id. (quoting Ridgway, 135 S.W.3d at

–11–
601). A party moving for traditional summary judgment meets its burden by proving that there is

no genuine issue of material fact and it is entitled to judgment as a matter of law. Id. (citing TEX.

R. CIV. P. 166a(c)).

B. Analysis

In her second issue, James contends the trial court erred when it granted appellees’ motion

for summary judgment because (1) “there are disputed fact issues about whether [James’s] causes

of action . . . are subject to Texas’ Anti-Fracturing Rule”; (2) there are disputed fact issues

respecting James’s DTPA and fraud causes of action “in regard to Appellees’ misrepresentations

to [James] regarding the status of Whole Foods as a viable Defendant and SPA as a viable

Defendant”; and (3) James “provided summary-judgment evidence that raised a fact issue on

Appellees’ challenges to [James’s] causes of action for Legal Malpractice.”

1. Anti-Fracturing Rule

The anti-fracturing rule prevents a plaintiff from converting what are actually professional

negligence claims against an attorney into other claims such as fraud or violations of the DTPA.

See Won Pak v. Harris, 313 S.W.3d 454, 457 (Tex. App.—Dallas 2010, pet. denied). For the anti-

fracturing rule to apply, the gravamen of the plaintiff’s complaints must focus on the quality or

adequacy of the attorney’s representation. Id. (citing Murphy v. Gruber, 241 S.W.3d 689, 692

(Tex. App.—Dallas 2007, pet. denied)). Professional negligence, or the failure to exercise ordinary

care, includes giving a client bad legal advice or otherwise improperly representing the client.

Murphy, 241 S.W.3d at 692–93 (citing Newton v. Meade, 143 S.W.3d 571, 574 (Tex. App.—

Dallas 2004, no pet.)). “For example, an attorney can commit legal malpractice by giving an

erroneous legal opinion or erroneous advice, by failing to give any advice or opinion when legally

obliged to do so, by disobeying a client’s lawful instruction, by taking an action when not

instructed by the client to do so, by delaying or failing to handle a matter entrusted to the attorney’s

–12–
care by the client, or by not using an attorney’s ordinary care in preparing, managing, and

presenting litigation that affects the client’s interests.” Isaacs v. Schleier, 356 S.W.3d 548, 559

(Tex. App.—Texarkana 2011, pet. denied) (citing Kimleco Petroleum, Inc. v. Morrison & Shelton,

91 S.W.3d 921, 923–24 (Tex. App.—Fort Worth 2003, pet. denied)); accord Murphy, 241 S.W.3d

at 693. In determining the applicability of the anti-fracturing rule, “we are not bound by the labels

the parties place on their claims.” Murphy, 241 S.W.3d at 697. Further, whether certain allegations

asserted against an attorney are actually claims for professional negligence is a question of law to

be determined by the court and is reviewed de novo. Id. at 692.

In the case before us, James contends “the set of facts relevant to the Legal Malpractice

cause of action are independent of the set of facts supporting the DTPA claim and common-law

fraud claim.”4 Specifically, according to James,

The crux of [James’s] Legal Malpractice claim is that the Appellees failed to
properly manage [James’s] litigation in the Underlying Case; failed to plead the
case correctly; gave erroneous legal opinions or advice; failed to give advice,
opinions, or relevant information when legally obligated to do so. The gravamen of
[James’s] DTPA and common-law fraud claims is specific to the
misrepresentations made in the cover-up engaged in by the Appellees, i.e. the
explicit misrepresentations and unconscionable actions taken by them on and
before August 28, 2012, regarding [James’s] lack of personal jurisdiction over SPA,
and the status of Whole Foods as not a viable defendant in the Underlying Case,
neither of which were true as a matter of fact at the time the misrepresentations
were made.

(citations to record omitted).

Appellees argue James’s DTPA and fraud claims were barred by the anti-fracturing rule as

a matter of law. Specifically, appellees assert in part (1) “for all her claims, James makes similar

allegations based on alleged settlement advice and claims the same damages—‘Ms. James settled

for a deficiently lower amount based on Defendants’ improper legal advice . . . ,’” and (2) “James’s

4
In her brief in this Court, James does not specifically challenge the applicability of the anti-fracturing rule to her negligent misrepresentation
claim, nor does she include any argument or citation to authority respecting that rule’s applicability to that claim. Therefore, the applicability of the
anti-fracturing rule to James’s negligent misrepresentation claim is not presented for this Court’s review. See TEX. R. APP. P. 38.1(i).
–13–
true complaint related to Witherite’s jurisdictional analysis and settlement advice lies in the quality

and adequacy of Witherite and E&W’s legal representation of James.”

As described above, the record shows each of James’s allegations in question complains

about one or more of the following: “giving an erroneous legal opinion or erroneous advice,”

“failing to give any advice or opinion when legally obliged to do so,” “delaying or failing to handle

a matter entrusted to the attorney’s care by the client,” and “not using an attorney’s ordinary care

in preparing, managing, and presenting litigation that affects the client’s interests.” See Isaacs, 356

S.W.3d at 559. On this record, we conclude James’s fraud and DTPA claims were barred by the

anti-fracturing rule. See J.A. Green Dev. Corp. v. Grant Thornton, LLP, No. 05-15-0029-CV, 2016

WL 3547964, at *8 (Tex. App.—Dallas June 28, 2016, pet. denied) (mem. op.) (where essence of

plaintiff’s complaint was that attorney’s advice was wrong and incomplete, plaintiff’s allegations

focused on adequacy of representation and constituted professional negligence claim); see also

Murphy, 241 S.W.3d at 698–99 (where essence of pleaded allegations was attorney’s failure to

properly advise, inform, and communicate with client about case, allegations asserted claims of

professional negligence); Archer v. Med. Protective Co., 197 S.W.3d 422, 427 (Tex. App.—

Amarillo 2006, pet. denied) (claims that lawyer neglected matters, mis-evaluated case, and failed

to communicate with client alleged professional negligence). Accordingly, the trial court did not

err by granting appellees’ motion for summary judgment as to those claims. See First United

Pentecostal Church of Beaumont, 514 S.W.3d at 220.

2. Legal Malpractice

To prevail on a claim for legal malpractice, “the client must establish that (1) the lawyer

owed a duty of care to the client; (2) the lawyer breached that duty; and (3) the lawyer’s breach

proximately caused damage to the client.” Rogers v. Zanetti, 518 S.W.3d 394, 400 (Tex. 2017).

Specifically, when a plaintiff alleges that some failure on his attorney’s part caused an adverse

–14–
result in prior litigation, he must prove that but for his attorney’s negligence, he would have

prevailed in the underlying case. Green v. McKay, 376 S.W.3d 891, 898 (Tex. App.—Dallas 2012,

pet. denied). Proof of cause in fact “involves a comparison of two cases—the case containing

imprudent attorney conduct and the case the plaintiff claims should have unfolded with competent

representation.” Rogers, 518 S.W.3d at 407. “This re-creation is typically referred to as the ‘case-

within-a-case’ or ‘suit-within-a-suit’ and is the accepted and traditional means of resolving the

issues involved in the underlying proceeding in a legal malpractice action.” Id. at 401. The

applicable test is “but-for” causation. Id. at 412. “If the plaintiff would have needed medical-expert

testimony to prevail in the underlying suit, then the same kind of testimony is required to prove

the case within a case in the legal-malpractice suit.” Kelley & Witherspoon, LLP v. Hooper, 401

S.W.3d 841, 849 (Tex. App.—Dallas 2013, no pet.). Although causation is typically a question of

fact, it may be determined as a matter of law when reasonable minds could not arrive at a different

conclusion. Rogers, 518 S.W.3d at 412.

“[N]on-expert evidence alone is sufficient to support a finding of causation in limited

circumstances where both the occurrence and conditions complained of are such that the general

experience and common sense of laypersons are sufficient to evaluate the conditions and whether

they were probably caused by the occurrence.” Guevara v. Ferrer, 247 S.W.3d 662, 668 (Tex.

2007); see id. at 667 (“if [plaintiff] had been pulled from a damaged automobile with overt injuries

such as broken bones or lacerations, and undisputed evidence which reasonable jurors could not

disbelieve showed that he did not have such injuries before the accident, then the physical

conditions and causal relationship between the accident and the conditions would ordinarily be

within the general experience and common knowledge of laypersons”). However, “[t]he general

rule has long been that expert testimony is necessary to establish causation as to medical conditions

outside the common knowledge and experience of jurors.” Id. at 665. Specifically, “[e]xpert

–15–
testimony is required to establish aggravation of a preexisting medical condition.” State Office of

Risk Mgmt. v. Adkins, 347 S.W.3d 394, 401 (Tex. App. Dallas, 2011, no pet.). Further, “[w]e

cannot conclude that laypersons have the knowledge to understand the intricacies involved in

diagnosing a back injury without some guidance from a medical expert.” Id.; see also Diez v.

Alaska Structures, Inc., 455 S.W.3d 737, 743 (Tex. App.—El Paso 2015, no pet.) (plaintiff’s own

lay witness testimony that he fell, experienced sore neck, and later had neck surgery merely raised

suspicion that event caused his neck injury and was not legally sufficient to support a finding of

causation); Benham v. Lynch, No. 04-09-00606-CV, 2011 WL 381665, at *3 (Tex. App.—San

Antonio Feb. 2, 2011, no pet.) (mem. op.) (“necessity for neck surgery and its cause is generally

not within the experience of the ordinary layperson”). Additionally, medical problems suffered

months or years after an incident are generally “remote” and cannot be causally connected to the

incident without medical-expert testimony. See Kelley & Witherspoon, 401 S.W.3d at 850–51.

In the case before us, James argues the trial court erred by granting appellees’ no-evidence

motion for summary judgment as to her legal malpractice claim because she provided summary-

judgment evidence to raise a fact issue on each challenged element of that claim. Specifically, as

to damages, James contends, “Appellant has on file with the Court, Medical Affidavits and Billing

Records, which coupled with the experts listed by the Appellant, are sufficient to prove damages

suffered by the Appellant.” Also, James asserts in her reply brief in this Court that appellees’

contention that she has no medical testimony to support her injuries is “incorrect” because she

“filed numerous medical records affidavits and designated medical experts to testify regarding the

injuries suffered by [her] as a result of the fall at Whole Foods.”

Appellees respond in part that James could not satisfy the “suit-within-a-suit proximate

causation element of her legal malpractice claim” because she “has no evidence, expert testimony

–16–
or otherwise, to link any of her medical conditions, treatment, or expenses to the fall at Whole

Foods.” Specifically, appellees assert in part,

James has a complex medical history with incidents and surgeries both before and
after the Whole Foods incident, including a 2001/2002 Lupus diagnosis, a 2002 on-
the-job injury followed by three back surgeries in 2004-2006, and hit-and-run car
accidents in 2006 and again in 2012 for which James filed claims for her injuries.
To separate her medical conditions and treatment allegedly related to the fall at
Whole Foods from her conditions and treatment a result of these other incidents,
James needs expert testimony. Further, to connect the 2010 Whole Foods incident
with her medical conditions, pain, and treatment seven years later, James needs
expert testimony. . . . Spine and neck pain and related surgeries are the kind of
medical conditions that are not within the common knowledge and experience of
jurors, and thus require expert testimony to establish causation.

(citation to record omitted). Further, appellees contend (1) “a review of the medical records on file

with the trial court, but which were not part of the summary judgment record such that they could

not be considered by the trial court for purposes of deciding the motion, show that no doctor linked

the fall at Whole Foods to any medical condition of James, and James’s current doctors are not

recommending further surgery,” and (2) James’s testimony respecting causation in her March 29,

2017 affidavit “was nothing but conclusory statements and incompetent lay testimony due to lack

of qualification as a medical expert.”

As described above, the underlying Lawsuit included claims for products liability,

negligence, and premises liability. The elements of each of those claims included damages caused

by the alleged improper acts or omissions. See Gharda USA, Inc. v. Control Solutions, Inc., 464

S.W.3d 338, 352 (Tex. 2015) (elements of negligence claim are existence of legal duty, breach of

that duty, and damages proximately caused by that breach); CMH Homes, Inc. v. Daenen, 15

S.W.3d 97, 99–100 (Tex. 2000) (elements of premises liability claim alleged by invitee are actual

or constructive knowledge of condition on premises, unreasonable risk of harm posed by condition,

failure to exercise reasonable care to reduce or eliminate risk, and injuries proximately caused by

failure to exercise reasonable care); TEX. CIV. PRAC. & REM. CODE ANN. § 82.005 (West 2011) (in

–17–
products liability claim in which claimant alleges design defect, plaintiff must prove by

preponderance of evidence that “there was a safer alternative design” and “the defect was a

producing cause of the personal injury . . . for which the claimant seeks recovery”). Therefore,

causation was an element of James’s “suit-within-a-suit” burden respecting each of her claims in

the underlying Lawsuit. See Green, 376 S.W.3d at 898.

Additionally, the record shows (1) James claimed injury to her neck and spine; (2) James

had pre-existing medical conditions at the time of the Whole Foods incident in question and has

suffered an automobile accident since that time; and (3) the medical records filed by James pertain

to treatment for conditions she suffered months and years after the incident in question. On this

record, we conclude medical-expert testimony was required to prove causation respecting James’s

claims in the underlying Lawsuit and therefore was necessary to satisfy her suit-within-a-suit

burden as to her legal malpractice claim. See Kelley & Witherspoon, 401 S.W.3d at 849; see also

Adkins, 347 S.W.3d at 401; Diez, 455 S.W.3d at 743; Benham, 2011 WL 381665, at *3.

Further, even assuming without deciding that the “medical affidavits and billing records”

filed by James and her list of “designated medical experts” were properly before the trial court as

summary judgment evidence, nothing in those documents demonstrates that any physician has

opined or stated that her medical conditions were caused by the Whole Foods incident in question.

Accordingly, on this record, we conclude James did not meet her suit-within-a-suit burden to

produce evidence respecting causation. See Rogers, 518 S.W.3d at 412. Therefore, the trial court

properly granted appellees’ no-evidence motion for summary judgment on James’s legal

malpractice claim. See id.

We decide against James on her second issue.

–18–
 IV. MOTION FOR NEW TRIAL

A. Standard of Review

We review the denial of a motion for new trial for an abuse of discretion. Waffle House,

Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010). Under this standard, we may not overrule the

trial court’s decision unless the trial court acted unreasonably or in an arbitrary manner, without

reference to guiding rules or principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex.

1991).

B. Analysis

In her third issue, James contends the trial court erred by allowing her motion for new trial

to be denied by operation of law because she “presented evidence that showed genuine issues of

material facts existed as to each cause of action alleged by [James] against Appellees in relation

to the Underlying Case.” Specifically, James asserts she “incorporates by reference all preceding

facts set forth” in her appellate brief and “directs the Court’s attention to the arguments outlined

in detail above, and urges the Court that for the same reasons, the trial court erred in denying [her

motion for new trial].”

Because James relies solely on the same arguments already described above, we need not

address those arguments in detail. Based on the analysis and conclusions described above, we

conclude the trial court did not abuse its discretion by denying James’s motion for new trial.

We decide James’s third issue against her.

V. CONCLUSION

We decide against James on her three issues. The trial court’s judgment is affirmed.

/Douglas S. Lang/
DOUGLAS S. LANG
JUSTICE
170799F.P05

–19–
 Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT

ZENA JAMES, Appellant On Appeal from the 160th Judicial District
Court, Dallas County, Texas
No. 05-17-00799-CV V. Trial Court Cause No. DC-15-09989.
Opinion delivered by Justice Lang, Justices
AMY K. WITHERITE AND EBERSTEIN Fillmore and Schenck participating.
& WITHERITE, LLP, Appellees

In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

It is ORDERED that appellees AMY K. WITHERITE AND EBERSTEIN &
WITHERITE, LLP recover their costs of this appeal from appellant ZENA JAMES.

Judgment entered this 9th day of November, 2018.

–20–