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. 5 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 6 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. 10 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. 11 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. 16 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