Joseph Pressil v. Jason A. Gibson, Jason A. Gibson, P.C. d/b/a The Gibson Law Firm, Clifford D. Peel, II, and Andrew C. Smith’s

In this legal malpractice case, appellant Joseph Pressil sued appellees Jason

A. Gibson, Clifford D. Peel, II, Andrew C. Smith, and Jason A. Gibson, P.C. d/b/a

The Gibson Law Firm (collectively, the “Gibson Parties”) for negligence, gross

negligence, and breach of fiduciary duty arising from the Gibson Parties’

representation of Pressil in a lawsuit. The trial court granted the Gibson Parties’

motion for summary judgment only as to Pressil’s negligence claims and severed

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Pressil’s remaining claims. Pressil challenges the trial court’s granting of summary

judgment in three issues: (1) whether the trial court erred in granting summary

judgment when the Gibson Parties did not submit expert testimony; (2) whether the

trial court erred in granting summary judgment on the ground that the defendant in

the underlying lawsuit did not owe Pressil a legal duty; and (3) whether the trial

court erred in granting summary judgment on the ground that, even if Pressil had

been represented by competent attorneys, Pressil’s claims in the underlying lawsuit

would have failed because Texas law does not recognize the particular damages

sought by Pressil related to the birth of a healthy child. We affirm.

Factual and Procedural Background

The material facts are not in dispute. This case stems from a lawsuit filed by

the Gibson Parties on behalf of Pressil against Advanced Fertility Center of Texas

and Omni-Med Laboratories, L.L.C. (collectively, the “Clinic”). In 2006, Pressil

and Anetria Burnette were involved in a sexual relationship. The couple used

condoms for birth control. Pressil later learned that Burnette had surreptitiously

collected samples of his sperm and taken them to the Clinic. Burnette apparently

told the Clinic that she was Pressil’s wife and that the couple needed help

conceiving a child. The Clinic successfully inseminated Burnette, and Burnette

eventually gave birth to healthy twin boys. According to Pressil, other than the

sexual intercourse, all of this occurred without his knowledge or consent.

Pressil hired the Gibson Parties and sued the Clinic for negligence,

conversion, violations of the Texas Theft Liability Act,1 and conspiracy

(hereinafter, the “Fertility Lawsuit”). Pressil sought damages for mental anguish,

loss of opportunity, loss of enjoyment of life, child support, the cost of raising two

children, lost earnings, and lost earning capacity. Pressil sought exemplary

1 See Tex. Civ. Prac. & Rem. Code Ann. §§ 134.001–.005 (West 2011 & Supp. 2014).

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damages as well. The Clinic moved to dismiss the Fertility Lawsuit on the ground

that Pressil’s claims were health care liability claims under chapter 74 of the Texas

Civil Practice and Remedies Code, and Pressil did not timely file the requisite

expert report. Pressil responded that chapter 74 did not apply because he was not a

claimant and his claims were not health care liability claims. The trial court

disagreed with Pressil and dismissed the Fertility Suit with prejudice. Pressil’s

lawyers did not appeal the dismissal.

After the Fertility Lawsuit was dismissed, Pressil sued the Gibson Parties for

legal malpractice. The legal malpractice suit alleged claims for negligence, gross

negligence, and breach of fiduciary duty. In his live petition, Pressil alleged the

Gibson Parties committed negligence by: (1) failing to diligently represent Pressil;

(2) failing to bring or preserve Pressil’s claims, rights and/or defenses; (3) failing

to protect Plaintiff’s interests; (4) failing to comply with chapter 74 of the Texas

Civil Practice and Remedies Code; and (5) failing to decline due to incompetence.

In the negligence portion of his petition against the Gibson Parties, Pressil claimed

that his medical malpractice claim against the Clinic would have been successful if

the Gibson Parties had obtained the requisite expert report. Alternatively, assuming

the Gibson Parties were correct in their assessment that the Fertility Lawsuit was

not a health care liability claim governed by chapter 74, Pressil alleged that an

appellate court would have reversed the dismissal and he would have been

successful in a suit against the Clinic for medical negligence. Pressil sought actual

damages in excess of one million dollars, exemplary damages, and damages for

emotional distress.

The Gibson Parties moved for traditional summary judgment on the

following grounds: (1) Pressil’s claims in the Fertility Lawsuit were barred by

limitations; (2) Pressil would not have been able to recover damages in the Fertility

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Lawsuit; (3) Pressil impermissibly fractured negligence claims into breach of

fiduciary duty claims; (4) Pressil could not prove the proximate cause element of

his breach of fiduciary duty claim; (5) Pressil’s allegation that the Gibson Parties

violated the Texas Disciplinary Rules of Professional Conduct was not a private

cause of action; and (6) Pressil did not assert any basis for recovering exemplary

damages.

The trial court denied the Gibson Parties’ first, third, fourth, fifth, and sixth

grounds for summary judgment. The trial court explicitly granted the motion for

summary judgment on two grounds. First, the trial court granted the motion as to

the Gibson Parties’ third ground, stating in its order that Texas law does not

recognize damages for the birth of healthy children. Second, the trial court granted

the motion on the ground that the Clinic did not owe Pressil a duty in tort.

Accordingly, the trial court concluded that even if the Gibson Parties had acted

competently, Pressil would not have been successful in the Fertility Lawsuit. In

effect, the trial court determined as a matter of law that Pressil had no viable claim

against the Clinic, and as a result, Pressil could not prove the causation element of

his malpractice suit. After granting summary judgment on Pressil’s negligence

claims, the trial court severed Pressil’s breach of fiduciary duty claim, rendering

the summary judgment final for jurisdictional purposes. Pressil timely appealed.

In three issues, Pressil asserts that the trial court erred in granting summary

judgment in favor of the Gibson Parties. Pressil first contends the trial court erred

because the Gibson Parties did not present expert testimony in support of their

motion for summary judgment. Next, Pressil contends the trial court erred in

concluding as a matter of law that the Clinic did not owe him a duty in tort.

Finally, Pressil contends the trial court erred in concluding that Texas does not

recognize damages for the birth of healthy children.

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Standard of review

We review a trial court’s granting of summary judgment de novo. Valence

Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). To prevail on a

traditional motion for summary judgment, the movant must show that no genuine

issue of material fact exists and that he is entitled to judgment as a matter of law.

Tex. R. Civ. P. 166a(c); Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d

211, 215–16 (Tex. 2003). When reviewing a traditional summary judgment granted

in favor of the defendant, we determine whether the defendant conclusively

disproved at least one element of the plaintiff’s claim or conclusively proved every

element of an affirmative defense. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420,

425 (Tex. 1997). A matter is conclusively established if reasonable people could

not differ as to the conclusion to be drawn from the evidence. Farmers Ins. Exch.

v. Rodriguez, 366 S.W.3d 216, 221 (Tex. App.—Houston [14th Dist.] 2012, pet.

denied). In deciding whether a disputed material fact issue exists precluding

summary judgment, we must take evidence favorable to the respondent as true, and

we must indulge every reasonable inference and resolve any doubts in favor of the

respondent. Sysco Food Servs., Inc. v. Trapnell, 890 S.W.2d 796, 800 (Tex. 1994).

When reviewing a summary judgment granted on specific grounds, we must

consider all the grounds expressly ruled on that are preserved for appellate review

and necessary for final disposition of the appeal. Cincinnati Life Ins. Co. v. Cates,

927 S.W.2d 623, 626 (Tex. 1996). In the interest of judicial economy, we also can

review other grounds for summary judgment that the trial court did not rule on but

are preserved for appellate review. Id. A summary judgment cannot, however, be

granted on a ground not presented in the motion for summary judgment. Dubose v.

Worker’s Med., P.A., 117 S.W.3d 916, 923 (Tex. App.—Houston [14th Dist.]

2003, no pet.).

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Analysis

A legal malpractice action is based on negligence. Green v. McKay, 376

S.W.3d 891, 898 (Tex. App.—Dallas 2012, pet. denied). “To prevail on a legal

malpractice claim, the plaintiff must prove the defendant owed the plaintiff a duty,

the defendant breached that duty, the breach proximately caused the plaintiff’s

injury, and the plaintiff suffered damages.” Akin, Gump, Strauss, Hauer & Feld,

L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009). To

establish proximate cause, a plaintiff must prove both foreseeability and cause in

fact. Ambrosio v. Carter’s Shooting Ctr., Inc., 20 S.W.3d 262, 265 (Tex. App.—

Houston [14th Dist.] 2000, pet. denied). To establish cause in fact when the legal

malpractice claim is based on the attorney’s acts during prior litigation, “a plaintiff

must prove that, but for the attorney’s breach of duty, the plaintiff would have been

successful in the prior case.” Taylor v. Alonso, Cersonsky & Garcia, P.C., 395

S.W.3d 178, 183 (Tex. App.—Houston [1st Dist.] 2012, no pet.). Courts often call

this the “suit-within-a-suit” requirement. Kelley & Witherspoon, LLP v. Hooper,

401 S.W.3d 841, 847 (Tex. App.—Dallas 2013, no pet.).

The Gibson Parties attacked only the causation element of Pressil’s legal

malpractice suit in their motion for summary judgment. Pressil alleged in his legal

malpractice petition that, but for the Gibson Parties’ negligence, he would have

been successful on the medical negligence claim asserted in the Fertility Lawsuit.

In their summary judgment motion, the Gibson Parties did not challenge the

conduct alleged to be negligent or the damages sought by Pressil in his legal

malpractice suit. Rather, the Gibson Parties asserted in their motion that, as a

matter of law, their allegedly negligent conduct did not proximately cause damage

to Pressil because Texas law does not recognize damages for the costs and

emotional suffering associated with raising an unwanted but healthy child.

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Essentially, the Gibson Parties argued in their motion that they were entitled to

judgment because Pressil could not, as a matter of law, establish the damages

element of any tort claim against the Clinic.

Turning to Pressil’s third issue, to prevail on the underlying negligence

claim, i.e., the suit within the suit, Pressil would have had to prove that he suffered

damages as a result of the Clinic’s breach of the standard of care. See Williams v.

Briscoe, 137 S.W.3d 120, 125 (Tex. App.—Houston [1st Dist.] 2004, no pet.).

Whether damages or particular remedies are available to a plaintiff is a question of

law. See Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999).

Accordingly, the issue here is strictly one of law: Did the trial court reach the

proper legal conclusion regarding whether Pressil could have established the

damages element of his claims in the Fertility Lawsuit? We conclude that it did.

Although the unique facts of the Fertility Lawsuit defy classification, the

case seems to fall into the subgroup of medical malpractice claims described as

wrongful pregnancy actions. In general, a wrongful pregnancy action is simply a

lawsuit brought by the parents of a healthy, but unexpected, unplanned, or

unwanted child against a medical provider for negligence leading to conception or

pregnancy. Flax v. McNew, 896 S.W.2d 839, 841 n.3 (Tex. App.—Waco 1995, no

writ). The claim usually arises after a negligently performed sterilization

procedure. Id.; see, e.g., Hays v. Hall, 488 S.W.2d 412, 413 (Tex. 1973)

(vasectomy); Santos v. Holzman, No. 13-02-00662-CV, 2005 WL 167309, at *1

(Tex. App.—Corpus Christi Jan. 27, 2005, pet. denied) (mem. op.) (vasectomy);

Crawford v. Kirk, 929 S.W.2d 633, 635 (Tex. App.—Texarkana 1996, writ denied)

(tubal ligation); Garwood v. Locke, 552 S.W.2d 892, 893 (Tex. Civ. App.—San

Antonio 1977, writ ref’d n.r.e.) (tubal ligation). Such claims have also been

predicated on the failure to properly diagnose a pregnancy or perform an abortion;

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negligence in the insertion or removal of an intrauterine birth-control device, or in

dispensing contraception prescriptions; or the failure of a contraceptive pill or a

condom. Michael A. Mogill, Misconceptions of the Law: Providing Full Recovery

for the Birth of the Unplanned Child, 1996 Utah L. Rev. 827, 830 (1996).

In describing this lawsuit, we acknowledge that the First Court of Appeals

has stated, “Texas does not recognize a cause of action for wrongful pregnancy.”

Zapata v. Rosenfeld, 811 S.W.2d 182, 184 (Tex. App.—Houston [1st Dist.] 1991,

writ denied). In our view, however, “wrongful pregnancy” generally is “merely a

descriptive label for a form of [medical] malpractice,” and Texas has long allowed

recovery for negligence by medical practitioners. Flax, 896 S.W.2d at 843; see

also Mogill, supra, at 828 (“While an action for wrongful pregnancy consists of

the parents’ claim for damages due to the birth of a healthy, unplanned child

because of another’s fault, it is generally viewed as a traditional case of medical

malpractice.”). Therefore, we agree that Texas does not recognize a unique cause

of action called “wrongful pregnancy”; rather, Texas recognizes the medical

malpractice claims many courts describe as “wrongful pregnancy” or “wrongful

conception” actions. See Flax, 896 S.W.2d at 841 n.3 (“wrongful pregnancy” is

sometimes called “wrongful conception”). The Fertility Lawsuit is just such a

claim: Pressil alleged that the Clinic’s alleged negligence—failing to investigate

and obtain consent from the unwitting sperm donor, Pressil—resulted in the

unexpected (at least by Pressil) birth of healthy twin boys.2 See Crawford, 929

S.W.2d at 635 n.1 (“The case here seems to fall into the ‘wrongful pregnancy’

category, though ‘unplanned,’ ‘unanticipated,’ or ‘undesired pregnancy’ may be a

more apt description of the factual circumstances shown by the record.”).

2 We do not opine on whether, under Texas law, Pressil would be considered the

children’s father. See Tex. Fam. Code Ann. §§ 160.102(6) (defining donor), 160.702 (donor is

not a parent of child conceived by means of assisted reproduction) (West 2014).

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The key issue in this case is not how we should label the cause of action but

rather what types of damages are available to a plaintiff who asserts such a claim.

As an initial matter, in Texas, a plaintiff cannot recover damages related to the

support and maintenance of a healthy child born as a result of the medical

provider’s negligence. Id. at 637; Flax, 896 S.W.2d at 841–42; Terrell v. Garcia,

496 S.W.2d 124, 128 (Tex. Civ. App.—San Antonio 1973, writ ref’d n.r.e.), cert.

denied, 415 U.S. 927 (1974). This is because the intangible benefits of parenthood

far outweigh the monetary burdens involved. Hickman v. Myers, 632 S.W.2d 869,

870 (Tex. App.—Fort Worth 1982, writ ref’d n.r.e.); Terrell, 496 S.W.2d at 128.

There is disagreement among Texas courts, however, as to what damages a

plaintiff can recover. In Flax, the plaintiff sued her doctor for medical negligence

resulting from a failed sterilization procedure. 896 S.W.2d at 840. The plaintiff

alleged that during her pregnancy and after childbirth she suffered from swelling,

nausea, fatigue, bladder-control problems, personality changes, scarring, physical

impairment, physical and mental pain and suffering, and detrimental effects to her

relationship with her husband. Id. at 841. The Flax court adopted a “limiteddamages

rule,” which would potentially allow the plaintiff to recover the following

damages: (1) expenses for the failed procedure and any corrective procedures; (2)

prenatal and postnatal expenses; (3) pain and suffering during pregnancy and

delivery; (4) loss of consortium; (5) emotional distress; (6) lost wages; (7) pain and

suffering associated with the corrective procedure; and (8) any permanent

impairment suffered by the parents as a result of the pregnancy, the delivery, or the

corrective procedure. Id. at 843, 845.

In Crawford, on the other hand, the Texarkana Court of Appeals further

limited the plaintiff’s recovery to the actual medical expenses incurred as a result

of the failed sterilization procedure. 929 S.W.2d at 637. In that case, a failed tubal

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ligation resulted in the birth of healthy twin girls. Id. at 635. The plaintiff-mother

sued her doctor and sought damages for all medical expenses associated with the

pregnancy, physical and mental pain and suffering, and the costs of raising the

twins. Id. The court of appeals reviewed extant case law and rejected the Flax

court’s limited-damages rule. Id. at 637. Citing Jacobs v. Theimer, 519 S.W.2d

846, 849–50 (Tex. 1975), the Crawford court reasoned that if the parents of an

impaired child could not recover mental anguish damages, then the parents of a

healthy child could not recover mental anguish damages. 929 S.W.2d at 637. The

Crawford court further reasoned that the San Antonio Court of Appeals’ holding in

Garwood only approved recovery of the medical expenses in a suit brought by the

parents of a healthy child. 929 S.W.2d at 637. The Crawford court concluded that

Flax’s expansion of the types of damages in a wrongful pregnancy suit

contradicted existing Texas authority. 929 S.W.2d at 637.

We agree with the Crawford court and reject Flax’s expansion of the types

of damages available in a so-called wrongful pregnancy action. We conclude that

the measure of damages available to plaintiffs in wrongful pregnancy cases is

limited to the medical expenses associated with the failed procedure that produced

the healthy but unwanted child. See Crawford, 929 S.W.2d at 637.

None of the damages sought by Pressil in the Fertility Lawsuit is recoverable

under Texas law. Pressil did not request damages for the medical expenses

associated with any medical procedure. Nor could he have; no medical procedure

was performed on him. Moreover, the medical procedure performed on Burnette

was apparently a rousing success, resulting in the birth of healthy twin boys. The

only damages Pressil sought in the Fertility Lawsuit were costs generally

associated with the support and maintenance of children, such as mental anguish,

loss of opportunity, loss of enjoyment of life, child support, the cost of raising two

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children, lost earnings, and lost earning capacity. Under prevailing Texas law, none

of these damages was recoverable. Therefore, the trial court properly granted the

Gibson Parties’ motion for summary judgment on the ground that the claims in the

Fertility Lawsuit would have failed as a matter of law because there were no

damages even if Pressil had been represented by a reasonably competent lawyer.

We overrule Pressil’s third issue.3

Because the trial court properly concluded that Pressil’s claims in the

Fertility Lawsuit would have failed as a matter of Texas law, we need not consider

the bulk of Pressil’s second issue—whether the trial court erred in concluding that

the Clinic did not owe Pressil a legal duty. See Tex. R. App. P. 47.1. However, in

connection with his second issue, Pressil contends that even if the Clinic had no

duty under a negligence theory, he would have prevailed in the Fertility Lawsuit on

the following alternative theories: (1) conversion, (2) fraud by nondisclosure, and

(3) intentional infliction of emotional distress.4 Regardless of what tort theory

competent counsel would have assigned to Pressil’s alleged claims, and regardless

of whether the underlying dismissal of Pressil’s claims as health care liability

claims was proper, at its core the Fertility Lawsuit remained a “wrongful

pregnancy”-related tort action. That is, the nature of Pressil’s alleged injuries

from the Clinic’s allegedly tortious conduct in inseminating Burnette using

Pressil’s sperm without his knowledge or consent remained the same—mental

anguish and economic harm in connection with the birth of healthy twin boys. See

Jim Walter Homes, Inc. v. Reed, 711 S.W.2d 617, 617–18 (Tex. 1986). As such,

Pressil was limited to damages recoverable within that context—namely, medical

3 Although we analogize Pressil’s claim in the Fertility Lawsuit to a wrongful pregnancy

action, we limit our holding to the unique facts of this case.

4 Pressil’s claim that he would have prevailed on a claim of intentional infliction of

emotional distress was not raised in the Fertility Lawsuit, in Pressil’s response to the Gibson

Parties’ motion for summary judgment, or in Pressil’s post-summary judgment letter brief.

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expenses relating to the wrongful procedure that produced the healthy but

unwanted children. See Crawford, 929 S.W.2d at 637. Therefore, under these

circumstances, none of Pressil’s alleged conversion, fraud by nondisclosure, or

IIED damages was recoverable as a matter of law. Accordingly, the trial court’s

granting of summary judgment on the damages ground also was proper with regard

to these alternative theories. See Coterill–Jenkins v. Tex. Med. Ass’n Health Care

Liability Claim Trust, 383 S.W.3d 581, 592 (Tex. App.—Houston [14th Dist.]

2012, pet. denied) (summary judgment appropriate where ground asserted in

motion conclusively negates common element or is broad enough to encompass

additional claims). We overrule this subissue. We now consider Pressil’s first

issue.

In his first issue, Pressil contends that the trial court erred in granting

summary judgment because the Gibson Parties did not present expert testimony on

the issue of proximate cause. Expert testimony is required in legal malpractice

cases when the causal link between the attorney’s negligence and the client’s harm

is beyond the trier of fact’s common understanding. See Cooper v. Harris, 329

S.W.3d 898, 901–02 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). An

expert cannot, however, testify on pure questions of law. Greenberg Traurig of

N.Y., P.C. v. Moody, 161 S.W.3d 56, 94 (Tex. App.—Houston [14th Dist.] 2004,

no pet.). As previously stated, the availability of damages or remedies in a

particular case is a question of law. See McKenzie, 997 S.W.2d at 280.

Consequently, any expert testimony on whether Texas law would afford Pressil a

remedy in the Fertility Lawsuit would have been inadmissible. See Tex. R. Evid.

704; see, e.g., Dickerson v. DeBarbieris, 964 S.W.2d 680, 690 (Tex. App.—

Houston [14th Dist.] 1998, no pet.) (trial court properly excluded expert testimony

interpreting legal effect of a document authorizing a condominium association to

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conduct a nonjudicial foreclosure). We therefore reject Pressil’s argument and

overrule his first issue.

The trial court properly granted summary judgment in favor of the Gibson

Parties. Even if he had been represented by competent counsel, Pressil would not

have been successful in the Fertility Lawsuit because the types of damages sought

by Pressil in the Fertility Lawsuit are not available under Texas law. We need not

consider Pressil’s second issue concerning the Clinic’s legal duty. Because the

question of whether Pressil could recover damages in the Fertility Lawsuit was

purely one of law, the Gibson Parties were not required to present an expert

witness to establish their right to summary judgment. Accordingly, we affirm the

trial court’s judgment.