Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:The appellees represented appellant, Larry J. Allbritton, and Doug Barnette, in a breach of contract suit against their employer. In preparation for the trial, the appellees instructed Allbritton and Barnette to calculate their own damages. Barnette has a financial background. Allbritton’s background is in theology. At trial, Allbritton and Barnette each testified as to his damages. The jury found that their employer had breached Allbritton’s and Barnette’s contracts. Although the jury awarded in excess of $4 million in damages to Barnette, it awarded zero damages to Allbritton. Allbritton filed a legal malpractice suit against his attorneys. He claimed appellees failed to properly prepare the case for the presentation of damages. Allbritton claimed appellees were negligent in failing to hire an expert on damages because Allbritton had no financial background or knowledge of the method for calculating damages. Appellees filed a traditional and no-evidence motion for summary judgment. Appellees alleged there was no evidence that their alleged negligence was the proximate cause of Allbritton’s alleged damages. In response, Allbritton submitted the affidavits of Michael Jones, an attorney, and Sam Rhodes, a certified public accountant. The trial court granted the appellees’ motion to strike the two affidavits as conclusory and granted their motion for summary judgment. HOLDING:Reversed and remanded. The appellees moved for summary judgment on the ground that Allbritton had no evidence that their alleged negligence was the proximate cause of his injuries. Allbritton’s response to the motion for summary judgment included the affidavits of Jones and Rhodes. According to the court of appeals’ opinion, Jones and Rhodes stated in their affidavits that the appellees’ negligence was the proximate cause of Allbritton’s injuries. The appellees moved to strike the affidavits on the ground that they were conclusory. The trial court agreed and struck the statements regarding proximate cause from both affidavits. In his affidavit, Jones listed the documents he reviewed, including the reporter’s record in the underlying suit and the depositions with exhibits from the present suit. According to the court of appeals’ opinion, Jones alleged that the appellees were negligent in failing to hire an expert to testify as to Allbritton’s damages. The court concluded that Jones’ affidavit was not conclusory. He provided a reasoned basis for his opinion and listed the documents reviewed in forming his opinion, the court stated, and he explained why an expert was needed on the issue of Allbritton’s damages. Rhodes provided a reasoned basis for his conclusion that appellees’ alleged negligence was the proximate cause of Allbritton’s damages, the court stated. Rhodes prepared a report calculating Allbritton’s damages. He explained the errors Allbritton made in calculating his own damages. The court concluded the trial court abused its discretion in striking the affidavits of Jones and Rhodes as summary judgment evidence. The affidavits raise a question of fact on proximate cause, the court stated. OPINION:Carolyn Wright, J.; Wright, FitzGerald and Lang-Miers, JJ.

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 3 articles* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.