Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 181st District Court Randall County, Texas
Trial Court No. 69, 573-B, Honorable Edward Lee Self,
CAMPBELL and PARKER and HATCH,  JJ.
T. CAMPBELL JUSTICE
T. Spriggs and his son Levi L. Spriggs, both Texas attorneys,
appeal an adverse money judgment rendered in favor of
appellee Albenita Gonzales. Levi Spriggs also appeals a
pre-trial order of sanctions imposed by the regional
presiding judge. We will affirm the trial court's
judgment and the order of the regional presiding judge.
the death of appellee Albenita Gonzales's husband, a
property dispute arose between Mrs. Gonzales and her
mother-in-law Dorothy Gonzales. Dorothy Gonzales filed suit
against Mrs. Gonzales, who retained Ronald Spriggs to
represent her in the dispute. Ronald Spriggs had represented
Mrs. Gonzales also in the probate of her husband's
Gonzales's attorney, Ronald Spriggs failed to appear for
a mediation session and ultimately did not appear for trial.
He later testified that at the time of trial he was
representing another client in a federal court trial. He did
not seek a continuance of the state court trial and in his
absence a post-answer default judgment for Dorothy Gonzales
in the amount of $452, 000 was taken. A few days after the
default judgment against his client was signed, Ronald
Spriggs transferred the building housing his law office to
his son Levi Spriggs. Ronald Spriggs timely filed a motion
for new trial but it was overruled by operation of law. A
notice of appeal was filed but the filing fee was not paid,
and for that reason the appeal was dismissed. A motion for
rehearing was overruled.
Gonzales obtained new counsel who sought a bill of review.
During that proceeding Dorothy Gonzales and Mrs. Gonzales
settled their dispute, reducing Mrs. Gonzales's liability
to approximately $133, 000.
Gonzales's behalf, her new counsel then brought suit
against Ronald Spriggs for legal malpractice. After the judge
of the trial court recused himself, the case was assigned to
a retired judge. Ronald Spriggs responded to Mrs.
Gonzales's malpractice claim with a counterclaim against
Mrs. Gonzales and a third-party cross-claim against her
lawyer, alleging intentional infliction of emotional
distress. The counterclaim and cross-claim were subsequently
dismissed on motions under Rule 91a.
Gonzales later amended her petition to allege Ronald Spriggs
fraudulently transferred his law-office building to Levi
Spriggs. Levi Spriggs was joined as a defendant to the suit.
Levi Spriggs attempted to challenge the assigned retired
judge but his request for relief was denied by the regional
presiding judge. After an evidentiary hearing, the regional
presiding judge rendered an order sanctioning Levi Spriggs
under Rule 18a(h).
of Mrs. Gonzales's suit against Ronald Spriggs and Levi
Spriggs was by jury. After four days the jury found the
transfer of the Spriggs law-office building was not
fraudulent. On the malpractice claim, it found for Mrs.
Gonzales against Ronald Spriggs and awarded compensatory
damages of $131, 250. In a bifurcated hearing, it awarded
exemplary damages against Ronald Spriggs in the amount of
$13, 000. In a post-trial hearing on Mrs. Gonzales's
motion for sanctions, and on the trial court's own
motion, the court imposed monetary sanctions against Ronald
Spriggs and Levi Spriggs pursuant to Rule 13 and the trial
court's inherent power. Ronald Spriggs and Levi Spriggs
each filed a notice of appeal.
discussion of the issues presented by Ronald Spriggs and Levi
Spriggs, we will group the issues into three categories:
first, Ronald Spriggs' complaint of charge error; second,
Ronald Spriggs' challenge of the trial court's
rulings on his objections to three of Mrs. Gonzales's
experts; and finally, the sanctions levied in pretrial and
post-trial hearings against Levi Spriggs and in a post-trial
hearing against Ronald Spriggs.
Spriggs broadly argues the trial court erred by failing to
submit a jury charge containing suit-within-a-suit
instructions and questions. A more succinct statement later
in his argument clarifies his complaint: "[B]y refusing
to submit the suit-within-a-suit question, the incorrect jury
charge causes direct harm by imposing damage questions
without requisite liability questions." His argument
refers to a jury question Ronald Spriggs proposed, which
read, "would [Mrs. Gonzales] have won the underlying
review claims of charge error for an abuse of discretion.
Columbia Rio Grande Healthcare, L.P. v. Hawley, 284
S.W.3d 851, 856 (Tex. 2009). A trial court abuses its
discretion when it acts without reference to any guiding
rules and principles. Concept Gen. Contracting, Inc. v.
Asbestos Maint. Servs., Inc., 346 S.W.3d 172 (Tex. App.-
Amarillo 2011, pet. denied) (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). A
trial court is required to give "such instructions and
definitions as shall be proper to enable the jury to render a
verdict." Tex.R.Civ.P. 277.
prove a legal malpractice claim, a former client must show
(1) the existence of a duty of care owed to the client, (2)
that the duty was breached, and (3) that the breach
proximately caused damage to the client. Starwood Mgmt.,
LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (per
curiam) (citing Stanfield v. Neubaum, 494 S.W.3d 90,
96 (Tex. 2016)). Ronald Spriggs is correct in his assertion
that the "suit-within-a-suit" analysis was
applicable to Mrs. Gonzales's claim that his negligence
was responsible for the damages she suffered from the outcome
of Dorothy Gonzales's suit against her. See Rogers v.
Zanetti, 518 S.W.3d 394, 401 (Tex. 2017) ("When a
legal-malpractice case arises from prior litigation, the
plaintiff must prove that the client would have obtained a
more favorable result in the underlying litigation had the
attorney conformed to the proper standard of care").
court's charge incorporated the requirement that the jury
take into account the "more favorable result" that
hypothetically would have been obtained had Ronald
Spriggs' representation conformed to the proper standard
of care. See Zanetti, 518 S.W.3d at 401. The
court's damage question required the jury to state in
dollars and cents "[t]he difference, if any, between the
result obtained for [Mrs. Gonzales] by [Ronald Spriggs] and
the result that would have been obtained with a competent
attorney." See Elizondo v. Krist, 415 S.W.3d
259, 263 (Tex. 2013) (describing standard for
legal-malpractice damages as "the difference between the
result obtained for the client and the result that would have
been obtained with competent counsel"); Comm. on Pattern
Jury Charges, State Bar of Texas, Texas Pattern Jury Charges:
Malpractice, Premises & Products (2016) PJC 61.5 (comment
providing in legal malpractice case plaintiff must
effectively "try two suits in one-a 'suit within a
suit'"); 84.4 (sample instruction "C," for
case involving increase in damages assessed against
malpractice plaintiff in underlying litigation, "the
increase in damages assessed against Paul Payne in
the original suit brought by Tom Taylor caused by
the failure of Andy Attorney to properly defend the
lawsuit") (italics in original).
its charge to the jury incorporated the suit-within-a-suit
principle, the trial court did not abuse its discretion by
refusing Ronald Spriggs' requested question asking the
jury to determine whether Mrs. Gonzales "would . . .
have won the underlying case." See Tex. R. Civ.
P. 278 ("A judgment shall not be reversed because of the
failure to submit other and various phases or different
shades of the same question"); Dallas Area Rapid
Transit v. Agent Systems, Inc., No. 02-12-00517-CV, 2014
Tex.App. LEXIS 12797, at *9-10 (Tex. App.-Fort Worth Nov. 26,
2015, pet. denied) (mem. op.) ("Because the submitted
question does not differ in substance from appellants'
requested instruction, but merely in wording, the trial court
did not err"). Ronald Spriggs' charge-error issue is
of Mrs. Gonzales's Expert Witnesses
Spriggs argues the trial court abused its discretion by
overruling objections to the testimony of three of Mrs.
Gonzales's expert witnesses, licensed real estate
salesperson Gabe Irving, law professor Larry Spain, and
attorney Edward Norfleet.
review a trial court's decision to admit or exclude
expert evidence under the abuse of discretion standard.
Exxon Pipeline Co. v. Zwahr, 88 S.W.3d 623, 629
(Tex. 2002). However, even if a trial court abuses its
discretion by improperly admitting evidence, reversal is
warranted only if the error probably caused the rendition of
an improper judgment. Id.; Tex.R.App.P. 44.1(a)
(error is reversible if it probably caused the rendition of
an improper judgment).
expert's testimony is admissible if the expert is
qualified to testify about "scientific, technical, or
other specialized knowledge" and the testimony is
relevant and based on a reliable foundation. See
Tex. R. Evid. 702; TXI Transp. Co. v. Hughes, 306
S.W.3d 230, 234 (Tex. 2010); Zwahr, 88 S.W.3d at
628; Gammill v. Jack Williams Chevrolet, Inc., 972
S.W.2d 713, 720 (Tex. 1998) (citing E.I. du Pont de
Nemours & Co. v. Robinson, 923 S.W.2d 549, 556 (Tex.
reliability requirement focuses on the principles, research,
and methodology underlying an expert's conclusions."
Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 254
(Tex. 2004); Williams v. Crawford, No.
03-16-00696-CV, 2018 Tex.App. LEXIS 1641, at *8 (Tex.
App.-Austin Mar. 2, 2018 n. pet. h.) (mem. op.). The
reliability analysis does not require the court to determine
the correctness of an expert's conclusions but
"whether the analysis used to reach those conclusions is
reliable." Zwahr, 88 S.W.3d at 629. An
expert's testimony is unreliable if based on unreliable
data or if the expert applies a flawed methodology to draw
conclusions from the underlying data. E.I. DuPont de
Nemours & Co. v. Hood, No. 05-16-00609-CV, 2018
Tex.App. LEXIS 3228, at *8 (Tex. App.-Dallas May 8, 2018, n.
pet. h.) (citing Merrell Dow Pharms., Inc. v.
Havner, 953 S.W.2d 714 (Tex. 1997)). In
Robinson the court identified six non-exclusive
factors for consideration in deciding the reliability of
proffered expert testimony. 923 S.W.2d at 557. But these
factors are not always useful. Cooper Tire & Rubber
Co. v. Mendez, 204 S.W.3d 797, 800 (Tex. 2006)
(automobile accident case). When the subject matter requires
an expert to rely on experience, knowledge, and training
rather than a certain methodology to reach a conclusion, a
court makes the reliability assessment by determining whether
there is "too great an analytical gap between the data
and the opinion proffered." Mack Trucks, Inc. v.
Tamez, 206 S.W.3d 572, 578 (Tex. 2006) (citing
Gammill, 972 S.W.2d at 726); Crawford, 2018
Tex.App. LEXIS 1641, at *9. Regardless, "there must be
some basis for the opinion offered to show its
reliability." Gammill, 972 S.W.2d at 726.
"'An expert's bare opinion will not suffice'
and is unreliable if 'based solely upon his subjective
interpretation of the facts.'" Ford Motor Co. v.
Ledesma, 242 S.W.3d 32, 39 (Tex. 2007) (quoting
Volkswagen of America, Inc. v. Ramirez, 159 S.W.3d
897, 906 (Tex. 2004)). "[A] claim will not stand or fall
on the mere ipse dixit of a credentialed
witness." Burrow v. Arce, 997 S.W.2d 229, 235
(Tex. 1999). "Expert testimony fails if there is simply
too great an analytical gap between the data and the opinion
offered." Elizondo, 415 S.W.3d at 264 (internal
quotation marks and citation omitted) (legal malpractice
determine whether an expert is sufficiently qualified, the
trial court must "ensure that those who purport to be
experts truly have expertise concerning the actual subject
about which they are offering an opinion."
Gammill, 972 S.W.2d at 719 (quoting Broders v.
Heise, 924 S.W.2d 148, 152 (Tex. 1996)).
issue in the case was the value of a caliche pit owned by a
corporation of which Dorothy Gonzales and Mrs. Gonzales were
the shareholders. Mrs. Gonzales presented Gabe Irving as an
expert on real property valuation. The evidence showed Irving
holds a marketing degree and is a licensed real estate
salesperson with some seventeen years' experience in real
estate transactions. It appears he based his qualification to
render a valuation opinion on his experience rendering such
opinions in the course of his work. Levi Spriggs filed a
motion to exclude Irving's testimony on the grounds he
was not sufficiently qualified to render a valuation opinion;
both Levi Spriggs and Ronald Spriggs also argued to the trial
court that the methodology Irving employed to reach his
valuation opinion did not lead to a reliable opinion. The
centerpiece of the defendants' methodology challenge
seems to be ...