Law Funder, L.L.C. v. Sergio Munoz, Jr. ( 2019 )


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  •      Case: 18-40320   Document: 00514986560        Page: 1   Date Filed: 06/06/2019
    REVISED JUNE 6, 2019
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    United States Court of Appeals
    Fifth Circuit
    No. 18-40320
    FILED
    May 16, 2019
    Lyle W. Cayce
    THE LAW FUNDER, L.L.C.,                                             Clerk
    Plaintiff - Appellee
    v.
    SERGIO MUNOZ, JR.; LAW OFFICES OF SERGIO MUNOZ, JR. P.C., doing
    business as Munoz Law Firm,
    Defendants - Appellants
    Appeal from the United States District Court
    for the Southern District of Texas
    Before KING, SMITH, and WILLETT, Circuit Judges.
    PER CURIAM:
    The Law Funder, L.L.C., sued Sergio Munoz, Jr., and his law firm for
    legal malpractice. Finding a series of discovery violations and related
    malfeasance, the district court struck Munoz’s answer. Munoz did not move to
    replead, and the district court entered default judgment against him. The
    district court then held a bench trial on damages and awarded Law Funder
    nearly $3 million. Munoz appeals, challenging both the default judgment and
    the district court’s award. We AFFIRM the district court’s entry of default
    judgment against Munoz. But because we conclude the district court
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    No. 18-40320
    improperly calculated damages under Texas law, we VACATE the district
    court’s final judgment and REMAND for a new trial on damages.
    I.
    A.
    The Law Funder, L.L.C., (“Law Funder”) is a litigation-financing firm. It
    grants nonrecourse loans to plaintiffs and attorneys to cover the expenses of
    lawsuits in exchange for the rights to portions of the lawsuits’ eventual
    winnings. As relevant here, Law Funder held rights to portions of the proceeds
    of 21 lawsuits litigated by Servicios Legales de Mesoamerica S. de R.L.
    (“SLM”), a Mexican law firm. Seeking to protect its investments into SLM’s
    litigation, Law Funder intervened in a Texas state-court divorce proceeding
    involving Wilfrido Garcia, who had an ownership interest in SLM that became
    part of the marital estate.
    The state court ordered a number of law firms and attorneys to pay
    litigation debts owed to SLM. Only one attorney complied, so the state court
    appointed receivers to locate and collect the remainder of the debts owed to
    SLM. Several of SLM’s creditors intervened in the Garcia divorce and claimed
    entitlement to the funds the receivers collected, although testimony below
    established that Law Funder’s claim was the most substantial. Law Funder
    retained several attorneys, including defendants Sergio Munoz, Jr., and his
    law firm, Law Offices of Sergio Munoz, Jr., P.C., (collectively, “Munoz”) to help
    locate these funds and secure their ultimate disbursement to Law Funder.
    Unbeknownst to Law Funder, Munoz had a close professional
    relationship with Judge Jesus Contreras, who was presiding over the Garcia
    divorce: Munoz and Judge Contreras were coprincipals in a professional
    corporation, Contreras & Munoz, P.C. About a year after Law Funder retained
    Munoz, an intervenor in the Garcia divorce with a competing claim to the SLM
    receiver funds discovered this conflict and moved to disqualify Judge
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    Contreras. A different state-court judge heard the motion and ordered Judge
    Contreras disqualified. The state court subsequently voided all orders Judge
    Contreras had entered in the case, including the order appointing the
    receivers. At this point, Law Funder had expended almost $2 million in
    attorney fees and expenses trying to collect SLM’s debt. Left without enough
    funding to start over, Law Funder ceased pursuing its claims in the Garcia
    divorce.
    B.
    Invoking the district court’s diversity jurisdiction, Law Funder brought
    the present suit against Munoz for negligence, breach of fiduciary duty, and
    legal malpractice under Texas law. Munoz filed an answer, and the case
    proceeded to discovery. The district court later found Munoz committed a
    litany of discovery violations and other procedural transgressions. Because the
    district court had a front-row seat to the saga below, we quote its description
    of events at length:
    Plaintiff served Defendants with its first request for
    production on May 29, 2015. Due to Defendants’ failure to produce
    any documents, Plaintiff subsequently filed a motion to compel
    production. Thereafter, Defendants promised to act in good faith
    and turn over appropriate documentation. In light of this promise,
    Judge Randy Crane ordered Defendants “to produce any relevant,
    unprivileged documents in their possession as indicated in their
    objections and responses to Plaintiff’s first request for production
    within fourteen days of this order . . . .”
    Two months later, Plaintiff moved for sanctions on the
    ground that Defendants had not complied with this order. The
    Court subsequently permitted David Calvillo, then counsel of
    record, to withdraw but abated the case for 30 days to allow
    Defendants to obtain new counsel. Despite the fact that the
    abatement ended on May 12, 2016, no appearance was made by
    counsel at that time. The Court held a hearing on June 6, 2016 to
    discuss the pending motion for sanctions, but Defendants did not
    appear. Nevertheless, the Court ordered Defendants to produce
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    certain documents requested by Plaintiff in its first request for
    production, most notably certain electronic documents.
    Defendants, through their new counsel, subsequently requested an
    extension of time to comply with the production order, claiming
    that Counsel had just been retained. No other explanation was
    given for the request, thus the Court denied the request. The Court
    thereafter held a hearing on September 13, 2016 to discuss the
    status of the case but Defendants again failed to appear. The Court
    reset the hearing to October 18, 2016 at which time the Court was
    made aware that Defendants had never produced the electronic
    documents which the Court had ordered Defendants to produce.
    The Court ordered Defendants to tender the electronic documents
    to Plaintiff within three days of the October 1, 2016 status
    conference, or else it would consider sanctions upon Plaintiff’s
    motion.
    Plaintiff also served Defendants with its second request for
    production on September 8, 2016. Defendants never responded,
    and Plaintiff’s counsel raised this issue with the Court during the
    October 18, 2016 status conference. The Court ordered Defendants
    to respond to Plaintiff’s second request for production within three
    days of that hearing, and warned Defendants that failure to timely
    respond could result in sanctions. Exactly three days later, at
    12:40 P.M., Plaintiff filed its second motion for sanctions, stating
    that “Defendants have still not fully complied with the Court’s
    original order compelling the production of documents and had not
    responded to Plaintiff’s second request for production.” It is not
    entirely clear from the face of Plaintiff’s motion whether
    Defendants have yet tendered the electronic documents identified
    in Plaintiff’s first production request.
    The Court observes more generally that Defendants have
    materially impeded the discovery process and therefore resolution
    of this case. Defendants asserted perfunctory objections to many of
    Plaintiff’s requests for production and were uncooperative in
    scheduling depositions. The Court thus had to order Defendants to
    appear for their depositions. Also, Defendants failed to adequately
    respond to Plaintiff’s request for admissions, because they copied
    and pasted the same “vagueness” objection to twenty-nine of the
    thirty-six admissions requests. Defendants and Defendants’
    counsel have also failed to appear or have arrived late at three
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    hearings held specifically for the purpose of resolving discovery
    disputes. Plaintiff’s counsel also informs the Court that
    Defendants failed to “produce a single document” in response to
    Plaintiff’s subpoena duces tecum. In sum, this case was filed in
    federal court in December of 2014, and after almost two years,
    discovery has not been completed.
    (omission in original) (footnotes omitted).
    As alluded to in the above-quoted passage, Law Funder filed a second
    motion to sanction when Munoz failed to meet the district court’s deadline to
    comply with Law Funder’s second request for production. Law Funder
    represented in its motion that Munoz objected to sanctions, but Munoz failed
    to file an opposition. After noting Munoz’s litany of litigatory misbehavior and
    failure to oppose Law Funder’s motion, the district court determined a sanction
    was warranted under Federal Rule of Civil Procedure 37(b)(2)(A). The district
    court applied the four-factor test for weighing a sanction for failing to make a
    required evidentiary disclosure that we articulated in United States v. Garza,
    
    448 F.3d 294
    (5th Cir. 2006): “(1) the reasons why the disclosure was not made;
    (2) the amount of prejudice to the opposing party; (3) the feasibility of curing
    such prejudice with a continuance of the trial; and (4) any other relevant
    circumstances.” 
    Id. at 299-300.
    It concluded that the reason for Munoz’s
    disobedience was unclear, that the delay and expense caused by his violations
    prejudiced Law Funder, and that continuing the case would only exacerbate
    that prejudice. The district court further found all other relevant
    circumstances “weigh[ed] heavily in favor of sanctions.” Specifically, it noted
    that Munoz “is an attorney who should fully understand the need to comply
    with the Federal Rules of Civil Procedure and the need to cooperate in
    discovery” and that he had “unreasonably and systematically prolonged this
    case almost from inception.”
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    The district court then concluded that the most appropriate sanction was
    to strike Munoz’s pleadings. In reaching this conclusion, the district court cited
    the extent of Munoz’s violations and his attempts to systemically undermine
    discovery. It also observed that striking Munoz’s pleadings was particularly
    warranted because Munoz thwarted Law Funder’s attempts to gather evidence
    about his relationship with Judge Contreras, jeopardizing Law Funder’s
    ability to prove its claims.
    In striking Munoz’s pleadings, the district court did not say whether it
    would entertain a motion from Munoz to replead. Munoz filed no such motion.
    Law Funder then moved for default judgment against Munoz. Law Funder
    again indicated that Munoz opposed the motion, but Munoz again failed to
    respond. The district court instructed the clerk of the court to enter a default
    against     Munoz.      It    subsequently    examined      Law     Funder’s   pleadings,
    determined they sufficiently stated a legal-malpractice claim under Texas law,
    and entered a default judgment holding Munoz liable to Law Funder.
    C.
    Following Munoz’s default, the case proceeded to a bench trial on
    damages. Law Funder presented three witnesses: its managing member;
    Michael Smikun, Law Funder’s coordinating counsel in the Garcia divorce; 1
    and an attorney proffered as an expert on legal-malpractice damages. Law
    Funder’s expert testified that Law Funder’s damages totaled to $2,988,660.61.
    He reached this figure by combining the following:
    (1) $1,767,430 for the cost Law Funder incurred in the Garcia
    divorce (including reasonable and necessary attorney fees paid to
    Law Funder’s counsel), excluding payments to Munoz;
    1   Smikun is also counsel of record for Law Funder in this appeal.
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    (2) $1,200,000 that Law Funder would have collected if the
    receivership order was not vacated; and
    (3) $21,230.61 Law Funder paid to Munoz.
    Munoz did not present any witnesses.
    The district court entered final judgment in favor of Law Funder and
    awarded it $2,988,660.61—the same figure presented by Law Funder’s
    expert—without further explanation. Munoz then filed separate motions for a
    new trial and for relief from judgment. The district court denied both motions.
    Munoz appeals.
    II.
    We first consider Munoz’s argument that the district court improperly
    struck his pleadings. Rule 37(b)(2)(A) allows a district court to impose a
    sanction when a party fails to comply with a discovery order, and the court has
    broad discretion in fashioning its sanction when it does so. See Smith & Fuller,
    P.A. v. Cooper Tire & Rubber Co., 
    685 F.3d 486
    , 488 (5th Cir. 2012). We thus
    review a Rule 37(b)(2)(A) sanction for abuse of discretion. United States v.
    $49,000 Currency, 
    330 F.3d 371
    , 376 (5th Cir. 2003). We review the district
    court’s factual findings underpinning its sanction order for clear error. Positive
    Software Sols., Inc. v. New Century Mortg. Corp., 
    619 F.3d 458
    , 460 (5th Cir.
    2010).
    Our caselaw imposes a heighted standard for litigation-ending sanctions
    (sometimes called “death penalty” sanctions). For a lesser sanction, we broadly
    require the district court to determine the sanctions are “just” and “related to
    the particular ‘claim’ which was at issue in the order to provide discovery.”
    Compaq Comput. Corp. v. Ergonome Inc., 
    387 F.3d 403
    , 413 (5th Cir. 2004)
    (quoting Ins. Corp. of Ir. v. Compagnie des Bauxites de Guinee, 
    456 U.S. 694
    ,
    707 (1982)). But the district court must make four additional findings to impose
    a litigation-ending sanction: (1) the discovery violation was committed willfully
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    or in bad faith; (2) the client, rather than counsel, is responsible for the
    violation; (3) the violation “substantially prejudice[d] the opposing party”; and
    (4) a lesser sanction would not “substantially achieve the desired deterrent
    effect.” FDIC v. Conner, 
    20 F.3d 1376
    , 1380-81 (5th Cir. 1994).
    Munoz argues that the district court abused its discretion by striking his
    pleadings because it did not consider the four factors we articulated in Conner.
    But in failing to oppose Law Funder’s motion to sanction, Munoz has forfeited
    any argument that the district court’s sanction order was improper. See State
    Indus. Prods. Corp. v. Beta Tech. Inc., 
    575 F.3d 450
    , 456 (5th Cir. 2009) (“Under
    our general rule, arguments not raised before the district court are waived and
    will not be considered on appeal unless the party can demonstrate
    ‘extraordinary circumstances.’” (quoting N. Alamo Water Supply Corp. v. City
    of San Juan, 
    90 F.3d 910
    , 916 (5th Cir. 1996))); see also, e.g., Quest Med. v.
    Apprill, 
    90 F.3d 1080
    , 1088 (5th Cir. 1996) (“We are a court of errors, and will
    not consider matters raised for the first time on appeal, unless our failure to
    do so would result in manifest injustice.”). Munoz’s citation to Colonial Penn
    Insurance v. Market Planners Insurance Agency Inc., 
    157 F.3d 1032
    (5th Cir.
    1998), does not save him from the inevitable. In Colonial Penn, we held that a
    litigant need not specifically move under Federal Rule of Civil Procedure 50 to
    preserve a sufficiency-of-the-evidence argument following a bench trial (as a
    litigant would need to do following a jury trial). See 
    id. at 1036.
    Munoz cites to
    no authority suggesting we should except him from the normal rule that
    parties must raise any arguments below that they seek to press on appeal. 2
    2 Munoz does not argue that he preserved his Conner argument by raising it in his
    postjudgment motions, nor does he otherwise argue the district court erred in denying those
    motions. Cf. Williams v. Toyota Motor Eng’g & Mfg. N. Am., Inc., 470 F. App’x 309, 313 (5th
    Cir. 2012) (unpublished) (“Motions to reconsider ‘cannot be used to raise arguments which
    could, and should, have been made before the judgment issued.’” (quoting Rosenzweig v.
    Azurix Corp., 
    332 F.3d 854
    , 863 (5th Cir. 2003))).
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    We may reverse on a forfeited argument when the district court has
    committed plain error. See Crawford v. Falcon Drilling Co., 
    131 F.3d 1120
    ,
    1123 (5th Cir. 1997). Munoz makes no argument that the district court’s
    sanctions order amounted to plain error, and we conclude it did not. Even
    assuming the district court abused its discretion in failing to apply the Conner
    factors when weighing whether to strike Munoz’s pleadings, its error was not
    “clear or obvious.” Jimenez v. Wood County, 
    660 F.3d 841
    , 847 (5th Cir. 2011)
    (en banc) (quoting United States v. Ellis, 
    564 F.3d 370
    , 377-78 (5th Cir. 2009)).
    It might be an obvious abuse of discretion to fail to consider the Conner factors
    in assessing a litigation-ending sanction, but it was not obvious that the
    district court assessed a litigation-ending sanction in striking Munoz’s
    pleadings. As the district court noted, it did not grant default judgment in its
    sanctions order; it did so more than a month later in a separate order and upon
    Law Funder’s separate motion (which Munoz again failed to oppose). Even
    then, the district court did not grant the motion as a mere formality—it
    substantively analyzed Law Funder’s complaint to ensure default was
    warranted. Moreover, the record is silent as to whether the district court would
    have in the interim entertained a motion from Munoz to replead (perhaps after
    taking steps to remedy his violations). Although we need not resolve the issue
    here, we observe that the cases in which we have previously treated an order
    striking a defendant’s pleadings as a litigation-ending sanction have all
    suggested that it is either the simultaneous grant of default or the denial of a
    motion to replead that makes it a litigation-ending sanction. See Smith v. Legg
    (In re United Mkts. Int’l, Inc.), 
    24 F.3d 650
    , 654 (5th Cir. 1994) (“Striking a
    defendant’s answer and denying a request to replead is equally as harsh a
    sanction as dismissal of a plaintiff’s case with prejudice . . . .”); Pressey v.
    Patterson, 
    898 F.2d 1018
    , 1021 n.2 (5th Cir. 1990) (“[S]triking the pleadings of
    a defendant and rendering default judgment is equally as harsh a sanction as
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    dismissing the case of a plaintiff with prejudice.”). At best, our caselaw is
    unclear about whether an order striking a defendant’s pleadings, without
    more, is a litigation-ending sanction subject to Conner. Accordingly, the district
    court did not obviously abuse its discretion in failing to apply Conner.
    Furthermore, any error was not prejudicial to Munoz and thus may not
    be reversed on plain-error review. See 
    Crawford, 131 F.3d at 1125
    . Although
    the district court did not apply Conner, its various findings strongly suggest it
    would have reached the same result if it did. The district court explicitly found
    prejudice to Law Funder in its sanctions order, and it found in its order denying
    Munoz’s postjudgment motions that Munoz acted willfully and that lesser
    sanctions would not have sufficed. And although the district court did not
    explicitly find that Munoz was personally responsible, it implicitly found this
    factor, noting in its sanctions order that Munoz “is an attorney who should
    fully understand the need to comply with the Federal Rules of Civil Procedure
    and the need to cooperate in discovery.” In our review of the record, none of
    these findings is clearly erroneous. We affirm the district court’s order striking
    Munoz’s pleadings.
    III.
    We next consider Munoz’s challenge to the district court’s damages
    award. Munoz raises four issues that more or less state the same argument:
    the district erred in awarding Law Funder compensatory damages for attorney
    fees and costs that it would have incurred regardless of Munoz’s negligence.
    Reviewing the district court’s conclusions of law de novo and its findings of fact
    for clear error, see Grilletta v. Lexington Ins. Co., 
    558 F.3d 359
    , 364 (5th Cir.
    2009), we agree.
    The remedy for legal malpractice under Texas law is compensatory
    damages, the goal of which is to put the plaintiff “in a position substantially
    equivalent in a pecuniary way to that which he would have occupied had no
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    tort been committed.” Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev.
    & Research Corp., 
    299 S.W.3d 106
    , 122 (Tex. 2009) (quoting Restatement
    (Second) of Torts § 903 cmt. a (Am. Law Inst. 1977)). 3 Thus, a legal-malpractice
    plaintiff may recover as damages “attorney’s fees it paid for representation in
    the underlying suit, if it was the defendant attorney’s negligence that
    proximately caused the fees.” 
    Id. 4 In
    other words, Texas law does not allow a
    legal-malpractice plaintiff to recover attorney fees it would have incurred
    regardless of the defendant’s wrongdoing.
    Despite a good deal of arguing past one another, the parties appear to
    agree on this much. The question, therefore, is whether Munoz’s negligence
    proximately caused the attorney fees and costs Law Funder incurred while
    trying to collect SLM’s debts in the Garcia divorce. “Proximate cause has two
    elements: cause in fact and foreseeability.” 
    Id. We are
    concerned here only with
    cause in fact, which “must be established by proof that (1) the negligent act or
    omission was a substantial factor in bringing about the harm at issue, and (2)
    absent the negligent act or omission (‘but for’ the act or omission), the harm
    would not have occurred.” 
    Id. Law Funder’s
    claim to the attorney fees and costs it incurred in the
    Garcia divorce stumbles on cause in fact. We fail to understand Law Funder’s
    argument that it would not have incurred the contested fees and expenses but
    for Munoz’s negligence. If Munoz had disclosed his relationship with Judge
    Contreras when Law Funder first solicited Munoz’s services, then Law Funder
    in all likelihood would have found another attorney to take Munoz’s place and
    3  When hearing a case under diversity jurisdiction, we apply state substantive law.
    See, e.g., Block v. Tanenhaus, 
    867 F.3d 585
    , 589 (5th Cir. 2017). The parties here agree that
    Texas law applies to their dispute.
    4 To the extent Munoz argues that Texas law precludes Law Funder from recovering
    any attorney fees, regardless of whether his negligence proximately caused Law Funder to
    incur those fees, Akin Gump squarely forecloses this argument.
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    continued to litigate its claims in the Garcia divorce. And there is no indication
    it would have incurred less expense in doing so. Even more confounding is the
    district court’s apparent award of attorney fees and expenses Law Funder
    incurred before it retained Munoz: an effect cannot precede its cause.
    We recognize the possibility—though remote and not well-supported by
    the evidence—that if Munoz had properly disclosed his conflict, then instead
    of finding a different attorney, Law Funder might have at that time concluded
    that it could not afford to seek new counsel and abandoned its claims in the
    Garcia divorce. In this scenario, Law Funder would not have expended the
    attorney fees and costs it thereafter spent fruitlessly pursuing its claims, so
    Munoz’s negligence would have at least been a but-for cause of those damages.
    But if this were the case, then the district court’s judgment would be in error
    for awarding Law Funder money it expected to recover from the SLM receivers.
    In that scenario, having abandoned its claims, Law Funder would have
    collected nothing from the SLM receivers regardless of Munoz’s negligence.
    In sum, Munoz’s negligence might have cost Law Funder the $1,200,000
    it expected to recover from the SLM receivers, or it might have cost Law
    Funder whatever portion of $1,767,430 it incurred after Munoz’s negligence in
    fruitless pursuit of the SLM receiver funds. But we can envision no scenario in
    which Munoz’s negligence cost Law Funder both. The district court accordingly
    issued Law Funder a double recovery by awarding it the attorney fees it spent
    litigating its claim in the Garcia divorce and its expected return on that
    litigation. To the extent the district court concluded that Texas law allowed it
    to award the attorney fees and expenses Law Funder incurred in the Garcia
    divorce regardless of whether Munoz’s negligence proximately caused those
    fees and expenses, it erred as a matter of law. To the extent the district court
    found as a factual matter that Munoz’s negligence proximately caused Law
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    Funder to both incur attorney fees and costs litigating the Garcia divorce and
    lose its claims to the SLM receiver funds, the district court clearly erred.
    Law Funder also suggests that inquiry into whether Munoz’s negligence
    proximately caused its damages is improper because Munoz’s default judgment
    established proximate cause. We do not agree. A default judgment establishes
    the defendant’s liability but not the quantity of damages. United States ex rel.
    M-CO Constr., Inc. v. Shipco Gen., Inc., 
    814 F.2d 1011
    , 1014 (5th Cir. 1987).
    Thus, while the default judgment established that Munoz proximately caused
    Law Funder some harm, the district court must apply Texas law to determine
    the quantity of those damages. Cf. 
    id. at 1016
    (remanding defaulted contract
    claim for new damages calculation because default judgment established
    plaintiff performed but not whether plaintiff substantially performed, affecting
    particular damages plaintiff could recover under Texas law). And as already
    established, proximate cause is a necessary component of the damages
    calculation under Texas law. See Akin, 
    Gump, 299 S.W.3d at 122
    . The district
    court must therefore determine whether Munoz’s negligence proximately
    caused the specific damages Law Funder claims.
    We accordingly vacate the district court’s damages award. 5 On remand,
    the district court should allow Munoz to present evidence and conduct cross-
    examination relevant to whether his negligence proximately caused Law
    Funder’s claimed damages.
    As a final note, we provide two caveats to our above analysis. First, we
    do not foreclose the possibility that Munoz’s negligence proximately caused
    Law Funder to incur any attorney fees or costs in the Garcia litigation. If Law
    Funder spent money contesting the disqualification order, for example, then
    5Because we vacate the district court’s award, we have no occasion to consider
    Munoz’s arguments that the district court failed to make sufficient findings in support of the
    judgment and failed to provide adequate notice of the damages trial.
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    Munoz’s negligence was at least the factual cause of those damages because
    there would have been no motion to disqualify Judge Contreras but for Munoz’s
    undisclosed conflict. Second, our opinion should not be read to prevent Law
    Funder from recovering as a fee forfeiture the $21,230.61 it paid Munoz for his
    services in the Garcia divorce. Texas law authorizes fee forfeiture as
    independent damages for breach of fiduciary duty regardless of causation. See
    Liberty Mut. Ins. Co. v. Gardere & Wynne, L.L.P., 82 F. App’x 116, 120 (5th Cir.
    2003) (unpublished); Burrow v. Arce, 
    997 S.W.2d 229
    , 239-40 (Tex. 1999). Law
    Funder specifically requested fee forfeiture in its complaint, and its expert
    separately calculated these damages at trial. Munoz makes no argument on
    appeal that fee-forfeiture damages were otherwise improper.
    IV.
    We AFFIRM the district court’s entry of default judgment against
    Munoz, but we VACATE its damages award and REMAND for a new trial.
    Each party shall bear its own costs.
    14