What “appears” to an expert to be an “inescapable conclusion” is not so apparent to a court. In Tummel & Casso v. Snyder, the lawyers sued to recover fees and the client counterclaimed for legal malpractice. The clients then filed a “traditional” motion for partial summary judgment, alleging that the lawyers had committed legal malpractice in connection with their representation of the clients in two legal matters. Specifically, the clients alleged that appellants committed malpractice by pursuing (on the clients’ behalf) the enforcement of a non-compete agreement against Dr. Michael Sweeney (“the Sweeney litigation”), despite the absence of any chance of successful enforcement because there was no written agreement. Secondly, the clients alleged that the lawyers committed malpractice by filing a lawsuit to protect Dr. Snyder’s right to continue practicing at a surgery center, despite the absence of any chance of success because Dr. Snyder had failed to exhaust his administrative remedies. In support of their motion, the clients attached numerous documents, including copies of the unsigned non-compete agreement.

The trial court entered summary judgment against the lawyers on the legal malpractice claims. They appealed. The Corpus Christi Court of Appeals reversed, finding the affidavit of the clients’ legal malpractice expert to be conclusory and, thus, insufficient to support summary judgment against the lawyers:

In their motion, appellees contend that appellants committed malpractice by seeking to enforce a non-compete agreement against Sweeney even though they knew there was no written agreement. The motion asserts that appellants failed to discharge their “duty to explain the applicable law, explain any potential defenses or impediments to the goal sought, and allow [appellees] the opportunity to make a reasoned decision about initiating and/or continuing to pursue litigation.” It also asserts that appellants “induced” appellees into signing promissory notes for legal invoices and that appellees “believe” appellants were using the notes and invoices as collateral for a line of credit through appellants’ bank.

Appellees’ summary judgment evidence includes the affidavits of (1) William Snyder, (2) Patricia Snyder, (3) Reynaldo Ortiz, appellees’ counsel, and (4) Steven L. Lee, an attorney and appellees’ expert. The summary judgment evidence also includes various documents attached to the affidavits.

William Snyder’s affidavit states that when he initially met with Tummel to discuss the Sweeney matter, he gave him copies of a non-compete agreement that had been discussed with Sweeney, but made it clear that the agreements had never been signed. Snyder states that he “incurred thousands of dollars in legal fees to advance a claim that apparently had no hope of prevailing.” He further states that Tummel “required” that he and Patricia sign promissory notes for the legal fees incurred. A copy of the unsigned “employment agreement” was also provided as summary judgment evidence.

Patricia Snyder’s affidavit also states that Tummel was told that an agreement had been discussed with Sweeney but that no signed written agreement existed. She stated that Tummel insisted he could enforce the non-compete agreement against Sweeney despite the absence of a written agreement.

Attached to Reynaldo Ortiz’s affidavit is an excerpt from Tummel’s responses to appellees’ interrogatories. In the responses, Tummel asserts that although appellees did not provide him a copy of the written agreement with Sweeney, they represented to him that Sweeney had agreed in writing to certain “non-compete” provisions in the agreement.

Steven L. Lee’s affidavit states that Tummel had a duty to inform his clients (appellees) that without a written agreement, enforcement of an oral covenant-not-to-compete was “highly unlikely under the existing law.” He states that the Tummel defendants were stuck on the “fixed notion” of enforcing an oral contract, and that there was an appearance of an “absence of attention to finding the appropriate vehicle” to pursue appellees’ goals. He also states that

the evidence gives every appearance that the Tummel Defendants sacrificed their fiduciary duties of utmost fairness, candor, rendition of independent legal advice and judgment, and placing paramount the clients’ interest in order to provide financial benefit to themselves. Bluntly stated, it appears that the Tummel Defendants identified a client with a legal problem and deep pockets and proceeded to bill that client with great vigor, based more on the lawyers’ financial needs than the client’s legal needs.

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As I am unaware of any evidence that Dr. Snyder or an agent was ever presented with information concerning potential downside risks and the attendant costs of certain of the services. I am also unaware of any evidence that Dr. Snyder turned the Tummel Defendants loose with instructions to “spare no expenses” or to “vigorously pursue this even though it is a long shot,” without regard to costs or ultimate outcome. When this is coupled with the unusual financial arrangement of securing each invoice with a promissory note and using the notes and/or receivables to maintain a line of credit at a bank, the inescapable conclusion is that the Tummel Defendants breached their fiduciary duties.

Appellants contend that appellees’ summary judgment evidence is inadequate to establish causation as a matter of law. In their brief, appellees assert that “[t]he proximate cause of [their] damages is therefore the fact that by not disclosing the vast remoteness of success the Appellants continued to bill for a claim destined to fail.” We agree with appellants that appellees’ summary judgment evidence is insufficient to establish their right to judgment as a matter of law. See Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991).

An affidavit that merely contains an expert’s conclusory statements is insufficient to support or defeat summary judgment. See Ryland Group, Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996). This is true because such statements are not credible or susceptible to being readily controverted. See id. An expert’s affidavit supporting a motion for summary judgment must be clear, positive, direct, otherwise credible, free from contradictions and inconsistencies, and readily controvertible. See Tex. R. Civ. P. 166a(c). Here, Lee’s affidavit asserts the “appearance” of an absence of attention by appellants to finding an appropriate legal strategy for accomplishing their clients’ goals and a “strong appearance” that appellants’ “judgment was impaired by their own financial interests.” After reviewing Lee’s affidavit, we conclude it contains no more than conclusory statements that are insufficient to support summary judgment. See Hood, 924 S.W.2d at 122.