Opinion
No. 05-06-00359-CV
Opinion Filed May 8, 2007.
On Appeal from the 44th Judicial District Court, Dallas County, Texas, Trial Court Cause No. 03-12776-B.
Before Justices O'NEILL, LANG-MIERS, and MAZZANT.
MEMORANDUM OPINION
Appellant Linda Sprowl, appearing pro se, appeals the trial court's order granting a no-evidence motion for summary judgment on her legal malpractice claim. In a single issue, she claims the trial court erred because she provided an expert affidavit to support her claim. Appellees contend Sprowl's expert affidavit was untimely filed; therefore, the trial court could not consider it and was left with no evidence of her malpractice claim. Alternatively, they allege her claim is barred by res judicata. The background of the case is well-known to the parties; therefore, we limit recitation of the facts. We issue this memorandum opinion because the law applied in the case is well-settled. Tex. R. App. P. 47.1. After considering Sprowl's arguments, we affirm the trial court's judgment.
Sprowl makes numerous other "objections" to the actions of the trial court's handling of this matter; however, because she has framed her issue and concisely stated in her summary of the argument that the issue is whether a no-evidence summary judgment should be granted when a respondent has evidence on file, we limit our opinion to determination of this issue. Tex. R. App. P. 38.1(e), (g).
Sprowl originally hired the law firm of Dooley Rucker, P.C. to pursue a libel/slander cause of action. Because of the attorneys' actions in the suit, Sprowl filed a legal malpractice claim against the firm, Marshal W. Dooley and Michael J. Scott. After an adequate time for discovery, appellees filed a joint no-evidence summary judgment motion on all claims. They specifically argued Sprowl failed to produce evidence they breached any duty or that such breach proximately caused her injuries. Sprowl filed a response, and appellees filed objections to her evidence.
Although Sprowl included claims under negligence, fraud, and DTPA theories, the crux of her complaint is for legal malpractice. See Kimleco Petroleum, Inc. v. Morrison Shelton, 91 S.W.3d 921, 924 (Tex.App.-Fort Worth 2002, pet. denied) (noting regardless of the theory a plaintiff pleads, as long as the crux of the complaint is that the plaintiff's attorney did not provide adequate legal representation, the claim is one for legal malpractice).
An associate judge considered the parties' arguments and objections. The associate judge sustained appellees' objections to Sprowl's evidence and granted the no-evidence summary judgment. Sprowl appealed the decision to the district court, which heard arguments on December 12, 2005. On December 15, 2005, Sprowl filed the expert affidavit of Charles McGarry to support her legal malpractice claims. On February 8, 2006, the trial court entered final judgment, upholding the associate judge's rulings. This appeal followed.
When a party moves for summary judgment under rule 166a(i), asserting that no evidence exists as to one or more elements of a claim on which the nonmovant would have the burden of proof at trial, the nonmovant must present enough evidence to raise a genuine issue of material fact on each of the challenged elements. Tex. R. Civ. P. 166a(i); Coats v. Ruiz, 198 S.W.3d 863, 878 (Tex.App.-Dallas 2006, no pet.). In determining whether the nonmovant has met her burden, we review the evidence in the light most favorable to the nonmovant and resolve all doubts in her favor. Coats, 198 S.W.3d at 878.
A no-evidence point will be sustained when (1) there is a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or evidence from giving 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 mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). Thus, a no-evidence summary judgment is improper if the respondent brings forth more than a scintilla of probative evidence to raise a genuine issue of material fact. Coats, 198 S.W.3d at 878.
To prevail on a legal malpractice claim, a plaintiff must show (1) the attorney owed the plaintiff a duty, (2) the attorney breached that duty, (3) the breach proximately caused the plaintiff's injuries, and (4) damages occurred. Alexander v. Turtur Assoc., Inc., 146 S.W.3d 113, 117 (Tex. 2004). Because a lawyer is held to the standard of care that would be exercised by a reasonably prudent attorney, expert testimony of an attorney is usually necessary to establish the standard of skill and care ordinarily exercised by an attorney. Zenith Star Ins. Co. v. Wilkerson, 150 S.W.3d 525, 530 (Tex.App.-Austin 2004, no pet.); Ersek v. Davis Davis, P.C., 69 S.W.3d 268, 271 (Tex.App.-Austin 2002, pet. denied). And when the causal link is beyond the jury's common understanding, expert testimony is also necessary. Alexander, 146 S.W.3d at 120.
Although the general rule requires expert testimony to establish the standard of care in a legal malpractice action, there is an exception to this general rule. James v. Mazuca Assoc. v. Schumann, 82 S.W.3d 90, 97 (Tex.App.-San Antonio 2002, pet. denied). Expert testimony is not required if the attorney's lack of care and skill is so obvious the trier of fact can find negligence as a matter of common knowledge. Id. Here, Sprowl needed expert testimony to establish the standard of care of a reasonably prudent attorney and to establish the causal link between any breach and her alleged injuries. She asserts generally in her summary judgment response appellees failed to diligently investigate and prosecute her underlying claim, failed to challenge a class action certification, failed to answer and respond to discovery, failed to file a stay of counterclaims, and failed to file a motion for contempt. Such actions or lack thereof are not so obvious that the trier of fact would find negligence as a matter of common knowledge. Cf. Schumann, 82 S.W.3d at 97 (noting missing the statute of limitations is a classic example of negligence that any layperson can understand). Thus, expert testimony was required to support her legal malpractice claim.
Sprowl recognized her need for expert testimony by filing the affidavit of Charles McGarry on December 15, 2005. She claims that although she filed the affidavit after the summary judgment hearing, the trial court should have considered it as proper evidence because she filed it prior to final judgment. Her argument is contrary to well-established law.
Summary judgment evidence may be filed late, but only with leave of court. Tex. R. Civ. P. 166a(c); Benchmark Bank v. Crowder, 919 S.W.2d 657, 663 (Tex. 1996). Therefore, a trial court may consider only the summary judgment evidence on file at the time of the summary judgment hearing or filed thereafter and before judgment with permission of the court. Basin Credit Consultants, Inc. v. Obregon, 2 S.W.3d 372, 374 (Tex.App.-San Antonio 1999, pet. denied) (holding no indication in record court granted leave of court for party to file affidavit two days after hearing; therefore, the court could not consider it as summary judgment evidence).
There is no order in this record granting Sprowl leave to file McGarry's affidavit late. As such, his affidavit was not properly before the trial court at the time of the summary judgment hearing. Accordingly, because the record contains no affirmative indication the trial court considered the late-filed affidavit, we must presume it did not consider it and we must likewise not consider it. See Neimes v. Ta, 985 S.W.2d 132, 138 (Tex.App.-San Antonio 1998, pet. dism'd by agr.). Because the trial court had no timely-filed expert affidavit before it, Sprowl failed to present any evidence of the standard of care or causal link between any alleged breach of duty and her damages. Thus, there is a complete absence of evidence of a vital fact of her malpractice claim. Chapman, 118 S.W.3d at 751. Therefore, the trial court properly granted appellees' no-evidence summary judgment motion. Because we have determined the trial court properly granted the no-evidence summary judgment motion, we need not consider appellees' res judicata argument.
Although Sprowl raises arguments regarding whether the trial court properly sustained certain objections to other summary judgment evidence she attached to her response, we need not consider these arguments. Even if we assumed the trial court improperly sustained the objections, she still provided no other expert testimony supporting her malpractice claim.
We overrule Sprowl's sole issue and affirm the trial court's judgment.