Mary F Masterson v. Open Pines Condominium Owners Association
CourtTexas Court of Appeals, 1st District (Houston)
Date FiledOctober 30, 2026
Docket01-23-00793-CV
StatusPublished
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Full Opinion
Opinion issued October 30, 2026
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-23-00793-CV
———————————
MARY F. MASTERSON, Appellant
V.
OPEN PINES CONDOMINIUM OWNERS ASSOCIATION, Appellee
On Appeal from the 152nd District Court
Harris County, Texas
Trial Court Case No. 2015-38597
MEMORANDUM OPINION
This appeal stems from a lawsuit between an attorney and her former client.
The attorney sued the former client for breach of contract. The former client
counterclaimed for legal malpractice. At trial, the jury found that the former client
breached the contract and awarded the attorney actual damages—but zero dollars in
attorney’s fees. And the jury found that the attorney was negligent and attributed
50% fault to both the attorney and former client.
The attorney appealed, challenging the jury’s zero-dollar attorney’s fees
award and the jury’s legal malpractice findings. We reverse and remand in part and
reverse and render in part.
Background
In 2013, Mary F. Masterson, an attorney, entered into an attorney-client
contract with Open Pines Condominium Owners Association. Pursuant to that
contract, Masterson agreed to represent Open Pines regarding collections against
various property owners. Sheryl Evans signed the contract in her capacity as
president of Open Pines.
The following year, pursuant to the contract, Masterson filed suit on behalf of
Open Pines against Ramesh Kapur for his nonpayment of HOA fees. On July 1,
2014, Kapur filed his counterclaims against Open Pines and included third-party
claims against Evans.1 Masterson and Evans communicated regarding Kapur’s
claims, but, according to Evans, she did not realize until several months later that
Kapur had named her individually as a third-party defendant. At that time—March
1
Kapur alleged claims against Open Pines and Evans for declaratory judgment,
breach of contract, conversion, promissory estoppel, and money had and received.
2
2015—Evans, on behalf of Open Pines, notified Travelers Insurance2 of the Kapur
lawsuit and submitted a claim for coverage under Open Pines’s Community
Association Management Liability Coverage Policy with Travelers.
Travelers denied coverage, stating that Open Pines failed to provide timely
notice of the claim, as required by the policy.
After Travelers denied coverage for the Kapur lawsuit, Open Pines fired
Masterson. Then, because they “had to pay for [their] own representation,” Open
Pines and Evans hired Nina Tran to represent them in the Kapur lawsuit. Tran was
able to resolve the Kapur lawsuit “[v]ery successfully.”
After Masterson was fired, Open Pines received an invoice from Masterson
for approximately $11,000 in outstanding fees for her work on the Kapur lawsuit.
Because Masterson “did not do her job properly,” Evans did not feel that Open Pines
should have to pay the outstanding fees.
Thereafter, Masterson3 sued Open Pines for breach of contract. And Open
Pines counterclaimed against Masterson for legal malpractice.4
2
Open Pines submitted a claim through Ted W. Allen & Associates, its insurance
agent, who then forwarded the claim to Travelers.
3
Masterson represented herself in the trial court and on appeal.
4
Open Pines also included a counterclaim for breach of fiduciary duty. Evans
intervened and brought her own claims against Masterson for legal malpractice and
breach of fiduciary duty. The trial court granted Masterson’s partial motions for
summary judgment dismissing Open Pines’s counterclaim for breach of fiduciary
duty and Evans’s claims in her individual capacity, as opposed to her official
3
At trial, the jury found that Open Pines failed to comply with the attorney-
client contract and awarded Masterson $11,761.57 in damages. But, when asked
“[w]hat is a reasonable fee for the necessary services of Mary F. Masterson as
attorney representing herself for the claim of breach of contract in this lawsuit, stated
in dollars and cents,” the jury answered zero for all categories.
The jury also found that the negligence of both Masterson and Open Pines
“proximately cause[d] Open Pines . . . to lose insurance coverage for the Kapur
counterclaims” and attributed 50% fault to each. The jury found that the amount of
damages that would reasonably compensate Open Pines for this loss was $43,000,
which represented “Nina Tran’s attorney’s fees for the Kapur case.” The jury
awarded zero damages to Evans.
Masterson moved for a judgment notwithstanding the verdict (JNOV) and to
disregard the jury’s findings with respect to zero attorney’s fees on Masterson’s
breach of contract claim and causation and damages on Open Pines’s legal
malpractice claim. The trial court denied Masterson’s motion and entered a final
judgment awarding Masterson $11,761.57 in damages and awarding Open Pines
$21,500 in damages.
capacity as president of Open Pines, for breach of fiduciary duty and legal
malpractice.
4
JNOV
On appeal, Masterson raises two issues challenging the trial court’s denial of
her motion for JNOV. First, she contends that the trial court erred in overruling her
JNOV motion because she is entitled to attorney’s fees as a matter of law. Second,
she contends that the trial court erred in overruling her JNOV motion because,
among other things, there was no evidence that her alleged negligence caused Open
Pines damages.5
A. Standard of Review
A trial court may disregard a jury verdict and render a JNOV if no evidence
supports the jury finding on an issue necessary to liability or if a directed verdict
would have been proper. See TEX. R. CIV. P. 301; Tiller v. McLure, 121 S.W.3d 709,
713 (Tex. 2003). A directed verdict is proper (1) when the evidence conclusively
establishes the movant’s right to judgment or negates the opponent’s right or (2)
when the evidence is insufficient to raise a material fact issue. Prudential Ins. Co. of
Am. v. Fin. Rev. Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).
In other words, we apply the standards for a legal sufficiency review. See City
of Keller v. Wilson, 168 S.W.3d 802, 823 (Tex. 2005) (“[T]he test for legal
sufficiency should be the same for summary judgments, directed verdicts, judgments
notwithstanding the verdict, and appellate no-evidence review.”). A legal
5
Open Pines did not file a brief in this appeal.
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sufficiency challenge must be sustained when: (1) there is complete absence of a
vital fact; (2) the rules of law or evidence preclude according weight to the only
evidence offered to prove a vital fact; (3) the evidence offered to prove a vital fact
is no more than a scintilla; and (4) the evidence conclusively establishes the opposite
of a vital fact. Id. at 810.
We sustain a “no evidence” point if there is no more than a scintilla of
evidence to support the finding. See Merrell Dow Pharms., Inc. v. Havner, 953
S.W.2d 706, 711 (Tex. 1997). More than a scintilla of evidence exists if the evidence
“rises to a level that would enable reasonable and fair-minded people to differ in
their conclusions.” Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004)
(quoting Havner, 953 S.W.2d at 711). But when the evidence offered to prove a
vital fact is so weak as to do no more than create a mere surmise or suspicion of the
fact’s existence, then “the evidence is no more than a scintilla and, in legal effect, is
no evidence.” Id. (citation omitted).
B. Attorney’s Fees for Masterson’s Breach of Contract Claim
Masterson argues that the trial court erred in refusing to disregard the jury’s
finding of zero attorney’s fees and denying her motion for JNOV. She contends that
because the contract provided for recovery of attorney’s fees, and she was successful
on her breach of contract claim, an award of attorney’s fees was mandatory.
Although Open Pines did not file a brief on appeal, it argued in response to
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Masterson’s JNOV that the jury determines whether attorney’s fees are reasonable
and necessary and, here, “they clearly determined to the contrary.”
Masterson prevailed on her breach of contract claim against Open Pines, and
the jury awarded her $11,761.57 in damages. But despite awarding Masterson these
damages, the jury awarded her no attorney’s fees and the trial court signed a
judgment in conformance with that verdict.
The contract here specifically authorized the prevailing party to recover
attorney’s fees in the event a party sought to enforce the contract: “In the event that
any party brings suit to enforce the payment or performance under this contract, the
prevailing party shall be entitled to recover of the other party reasonable attorney’s
fees expended in the prevailing party’s behalf, including attorney’s fees for
[Masterson] representing herself.”
Additionally, attorney’s fees are statutorily recoverable by the prevailing
party in a breach of contract claim. See TEX. CIV. PRAC. & REM. CODE §
38.001(b)(8). If the prevailing party proves attorney’s fees, the jury does not have
the discretion to deny an award of attorney’s fees. See Bocquet v. Herring, 972
S.W.2d 19, 20 (Tex. 1998) (“Statutes providing that a party ‘may recover,’ ‘shall be
awarded,’ or ‘is entitled to’ attorney fees are not discretionary.”). The jury may
make a finding of zero attorney’s fees only when the evidence did not establish that
attorney services were provided or the value of those services, or the evidence
7
showed affirmatively that no attorney services were needed or the services provided
were of no value. See Midland W. Bldg. L.L.C. v. First Serv. Air Conditioning
Contractors, Inc., 300 S.W.3d 738, 739 (Tex. 2009); Cale’s Clean Scene Carwash,
Inc. v. Hubbard, 76 S.W.3d 784, 787 (Tex. App.—Houston [14th Dist.] 2002, no
pet.).
Here, Masterson testified that she represented Open Pines in the lawsuit
against Kapur and that Open Pines still owed her $11,761.57 for her services. She
testified that she was seeking her attorney’s fees for filing her suit for breach of
contract to recover those outstanding fees. She testified that her hourly rate was
$175, which is lower than the rates of other attorneys in similar cases. And the total
attorney’s fees she had incurred through trial was $67,000.
Masterson also testified that she performed legal research, drafted pleadings,
engaged in discovery and motion practice, and prepared for trial. She introduced
invoices detailing the work she performed on this case since filing her petition
through trial. She also testified that although her claim for breach of contract was
not overly complex, the case was made more difficult by the legal malpractice
counterclaim. Finally, she testified that reasonable and necessary attorney’s fees on
appeal were $20,000 for an appeal to the court of appeals, $5,000 for filing a petition
for review to the supreme court, and $10,000 for preparing a brief on the merits if
the supreme court granted the petition for review.
8
Open Pines did not present any evidence that no attorney’s services were
needed or that the services Masterson provided in representing herself on her breach
of contract claim had no value. See Cale’s Clean Scene Carwash, 76 S.W.3d at 787.
Based on the above, it is undeniable that some amount of attorney services
was necessary, and thus some amount of fees was reasonable, for Masterson to
successfully represent herself in this case. If the amount Masterson requested at trial
was not reasonable, the appropriate response to the jury question would have been
to enter an amount that was reasonable, not a zero response indicating that no amount
was reasonable. See id. Thus, because Masterson offered some evidence of her
attorney’s fees and the value thereof, we hold that the jury’s award of zero was
improper. See Midland W. Bldg., 300 S.W.3d at 739.
But we cannot award an amount of attorney’s fees as a matter of law.6
Masterson’s testimony is clear that some of the fees she incurred were related to
defending against Open Pines’s legal malpractice counterclaim. See id. (holding that
attorney’s fees could not be awarded as matter of law because attorney admitted that
some of fees involved claims against other parties).
However, she did not distinguish between what fees were incurred for the
prosecution of her breach of contract claim as opposed to those incurred for
6
Nor does Masterson request that we do so. In her prayer for relief, she requests that
we “remand this case to the trial court for proceedings awarding [her] attorney’s
fees.”
9
defending against the counterclaim. Nor did she testify that she otherwise
segregated her recoverable fees for her breach of contract claim from those that are
not recoverable. And the invoices Masterson submitted likewise do not segregate
the fees by recoverable and nonrecoverable claims. See Tony Gullo Motors I, LP v.
Chapa, 212 S.W.3d 299, 313–14 (Tex. 2006) (holding that party must segregate its
attorney’s fees for recoverable and non-recoverable claims).
Accordingly, we hold that the evidence is insufficient for us to arrive at an
amount of attorney’s fees as a matter of law. See Midland W. Bldg., 300 S.W.3d at
739. Consequently, we remand this case to the trial court for a new trial on attorney’s
fees. See id.
We sustain Masterson’s first issue.
C. Causation Element of Open Pines’s Legal Malpractice Claim
Masterson next argues that the trial court erred in denying her JNOV because
there was legally insufficient evidence of the causation element of Open Pines’s
legal malpractice claim. Specifically, she contends that there is no evidence that
Travelers would have provided insurance coverage for Kapur’s counterclaims and,
thus, no evidence that her alleged negligence caused Open Pines’s damages. We
agree.
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Applicable Law
To prove a legal-malpractice claim, 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). A lawyer can be negligent and yet cause no harm. Id.
And, if the breach of a duty of care does not cause harm, no valid claim for legal-
malpractice exists. Id.
As in other negligence cases, a legal-malpractice plaintiff must prove that his
or her lawyer’s negligence was the proximate cause of cognizable damage. Id. at
402. The components of proximate cause consist of cause in fact and foreseeability.
Id. Cause in fact requires a showing that the act or omission was a substantial factor
in bringing about the injury and without which harm would not have occurred. Id.
On the other hand, foreseeability or legal cause addresses the proper scope of a
defendant’s legal responsibility for negligent conduct that in fact caused harm. Id.
The test for cause in fact is whether the negligent act or omission was a
substantial factor in bringing about injury, without which the harm would not have
occurred. Id. at 403. Thus, the cause-in-fact standard requires not only that the act
or omission be a substantial factor but also that it be a but-for cause of the injury or
occurrence. Id.
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As our supreme court has explained, “Whether a negligent lawyer’s conduct
is the cause in fact of the client’s claimed injury requires an examination of the
hypothetical alternative: What should have happened if the lawyer had not been
negligent?” Id. at 404. Thus, in every case, the plaintiff must supply a causal link
between the attorney’s alleged negligence and the client’s damages. Id. “Any
variation in how we articulate the suit-within-a-suit standard is but a reflection of
the plaintiff’s pleadings; different cases involve different injuries and different
causal links.” Id.
Analysis
Here, Open Pines alleged that Masterson’s failure to inform Evans of Kapur’s
claims caused a delay in reporting those claims to Travelers. According to Open
Pines, this delay ultimately caused it to lose insurance coverage for the Kapur lawsuit
and resulted in it having to pay for the costs of an attorney to defend against Kapur’s
claims.
Open Pines’s burden, therefore, was to offer some competent evidence that
the attorney’s fees paid to Tran were more likely than not caused by Masterson’s
failure to inform Evans of Kapur’s claims. To do so, Open Pines would necessarily
have to show that, had Masterson not been negligent, Travelers would not have
12
denied coverage for Kapur’s claims, and Open Pines would not have had to pay out-
of-pocket to defend against Kapur’s claims.7 See id. at 403.
But there is no evidence that Travelers would have covered Kapur’s claims
even if it had been timely notified of the lawsuit. Here, the only policy entered into
evidence was a Wrap Community Association Management Liability Coverage
Policy, which was introduced as part of Masterson’s Exhibit 6, consisting of business
records from Travelers.
Tran, who testified as an expert for Open Pines on causation, admitted that
she was not sure if she had seen the policy in Exhibit 6, but that she had seen
something similar, “a Director and Officer’s Policy and Errors and Omissions Policy
for the coverage period when the claims made by Kapur were made in the underlying
lawsuit.” But to the extent that was a separate policy from the policy in Exhibit 6,
no such policy was entered into evidence at trial. And neither Tran, nor any other
witness, testified that the policy admitted in Exhibit 6 was the applicable policy.
7
To the extent that Masterson argues that Open Pines was required to prove that, but
for Masterson’s negligence, it would have prevailed in the Kapur lawsuit, we
disagree. The issue in this case is not whether, but for Masterson’s negligence, Open
Pines would have prevailed in the lawsuit, but rather whether it would have incurred
fees in defending against Kapur’s claims. See Rogers v. Zanetti, 518 S.W.3d 394,
404–05 (Tex. 2017) (noting that “malpractice claims do not always depend on
ultimate victories,” and rejecting lawyers’ argument that “we always require a
hypothetical showing of ultimate victory”).
13
Moreover, the Community Association Management Liability Coverage
Policy introduced at trial provided that Travelers would pay on behalf of “the Insured
Persons,” which includes employees or members of the board of directors of Open
Pines, “Loss” for “Directors and Officers Wrongful Acts.” “Loss” is defined to
include “Defense Expenses,” which in turn is defined to include “reasonable and
necessary legal fees and expenses incurred by the Company or the Insured . . . in the
investigation, defense, settlement and appeal of a Claim.” And “Directors and
Officers Wrongful Acts” is defined as:
1. any actual or alleged act, error, omission, misstatement,
misleading statement or breach of duty or neglect by . . . or any
matter asserted against, an Insured Person in his or her capacity
as such;
2. any actual or alleged act, error, omission, misstatement,
misleading statement or breach of duty or neglect by . . . the
Insured Organization; or
3. any matter asserted against an Insured Person solely by reason of
his or her status as such.
But the policy also sets forth a number of conditions to coverage, as well as
17 exclusions applicable to all Loss and 3 exclusions applicable to Loss other than
Defense Expenses.
Sean Halbruner, Traveler’s insurance adjuster, stated in the denial letter sent
to Open Pines that because the lack of timely notice “resolve[d] the issue of
coverage[,]” he had not undertaken an exhaustive review of all coverage issues.
Accordingly, Travelers “reserve[d] the right to deny or disclaim coverage on
14
additional grounds and to raise additional defenses . . . including . . . policy language,
applicability of other exclusions, and failure to comply with conditions precedent.”
And Halbruner’s claim notes reflected that he was considering potential
exclusions that could be applicable, including a breach of contract exclusion and an
unjust enrichment exclusion. Tran admitted that Kapur’s breach of contract claim
would not be covered, but she conclusorily asserted that the conversion claim would
be because it was a “Negligence claim.” She based this conclusion on her “20 years
of experience representing condominium associations,” because “it’s always
covered when there’s a tort claim.” She testified that as long as “there is a term or a
set of facts that might lead to coverage, they are supposed to cover it.”
But Tran provided no explanation for why Travelers necessarily would have
treated Kapur’s conversion claim as a covered negligence claim. And she admitted
that she did not know what Halbruner would have done had Open Pines timely
notified Travelers of Kapur’s claims, and that she received nothing from either
Travelers or Open Pines’s insurance agent to indicate that coverage would not have
been denied had it been timely notified. And neither Halbruner nor anyone else from
Travelers testified at trial.
Moreover, Tran’s testimony on this subject is particularly insufficient due to
her lack of insurance adjusting experience. Tran testified that she never worked for
an insurance company, never worked as an adjuster for an insurance company, never
15
received any formal training as an insurance adjuster, and never been to any claims
adjusting classes.
Based on the above, we conclude that there was no evidence of what decision
Travelers would have made even if it had been timely notified of Kapur’s claims.
Tran’s testimony that these claims would be covered is no more than surmise or
suspicion and amounts to no evidence. Ford Motor Co., 135 S.W.3d at 601.
Without that, there was no evidence that Masterson’s negligence was a
substantial factor in bringing about Open Pines’s injury and without which harm
would not have occurred. See Rogers, 518 S.W.3d at 402. Accordingly, we hold
that legally insufficient evidence supports the jury’s finding that Masterson’s
negligence “proximately cause[d] Open Pines Condominium Owners Association to
lose insurance coverage for the Kapur counterclaims” and that the trial court erred
in denying Masterson’s JNOV on Open Pines’s legal malpractice claim.
We sustain Masterson’s second issue.
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Conclusion
We reverse and remand to the trial court for a new trial on attorney’s fees for
Masterson’s breach of contract claim. We reverse and render judgment that Open
Pines take nothing on the legal malpractice claim against Masterson.
Terry Adams
Chief Justice
Panel consists of Chief Justice Adams and Justices Rivas-Molloy and Johnson.
17