Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. D-1-GN-14-001213, HONORABLE KARIN CRUMP, JUDGE PRESIDING
Justices Puryear, Goodwin, and Bourland
Olson Bourland, Justice
James Hansen sued appellees Lonnie Roach and Bemis, Roach
& Reed (collectively, "Roach") for legal
malpractice, alleging that Roach failed to timely file an
appeal from a trial court's ruling in Hansen's suit
against an insurance company. After a bench trial, the trial
court ruled in Roach's favor and ordered that Hansen take
nothing. Hansen appeals from the trial court's judgment.
We will affirm.
is a former neurosurgeon. On June 5, 2010, he suffered a severe
injury while mountain biking that rendered him disabled and
unable to return to work. Before June 5, 2010, Hansen
practiced neurosurgery through his professional association,
Austin Neurosurgical & Spine Institute, P.A.
("Austin Neurosurgical"). Hansen was the only
member and director of Austin Neurosurgical.
Hansen's injury, he had obtained two types of
disability-insurance policies issued by The Northwestern
Mutual Life Insurance Company. One type of policy was a
disability-income policy, which replaces lost income
resulting from disability. The other type was an
overhead-expense policy that provides coverage for overhead
expenses to allow the continuing operation of the
insured's business if the insured person becomes
disabled. After his injury, Hansen submitted claims
for benefits under both types of policies. Northwestern
Mutual began paying Hansen monthly benefits under his
disability-income policies but denied his claim for benefits
under the overhead-expense policy. In November 2010,
Northwestern Mutual informed Hansen in a letter that it was
denying benefits under this policy because it had determined
that "the operation of the business has ended." The
The business or professional practice that Dr. Hansen was
engaged in at the time his disability started was that of
neurosurgery. Dr. Hansen admits that he was the
practice. Because he was a solo practitioner and he cannot
perform the duties of his practice, there is no practice.
Without a practice, the operation of the business (as that
term is defined by the policy) has ended.
retained Roach as his attorney and filed suit against
Northwestern Mutual in December 2010, seeking to recover
benefits under the overhead-expense policy. The case was
tried to the bench on stipulated facts, which included the
following, among others:
• Northwestern Mutual determined that Hansen "met
the definition of Total Disability under both the Disability
Income and Overhead Expense Policies from June 5, 2010"
through the time of the stipulation.
• Hansen had not returned to his practice, treated
patients, or performed surgeries after his injury on June 5,
• Austin Neurosurgical had not provided any medical
services to patients after Hansen's injury on June 5,
• Hansen and Austin Neurosurgical had not employed any
other neurosurgeons after the date of Hansen's injury to
continue the operation of his business.
• No other neurosurgeons were practicing with Austin
Neurosurgical before or after the date of Hansen's
• Hansen terminated his medical-malpractice insurance
coverage in October 2010.
• Hansen surrendered his Texas medical license on April
• In answer to a question about when he "closed
[his] practice" in a March 2011 deposition, Hansen
testified, "[k]ind of officially about a month after my
injury, so it would have been early July last year."
• Hansen testified in a June 2011 deposition that he had
closed his office, that he did not have any employees, and
that he had sent letters to all of his patients advising ...