COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS
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GEORGE HADDY, No. 08-12-00131-CV
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Appellant, Appeal from the
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v. 448th Judicial District Court
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JOHN W. CALDWELL, JR., of El Paso County, Texas
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Appellee. (TC# 2010-700)
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OPINION
Proceeding pro se, George Haddy appeals from the trial court’s order granting John W.
Caldwell, Jr.’s motion for summary judgment on no-evidence grounds and dismissing Haddy’s
legal-malpractice claim against Caldwell. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Haddy, and his then-wife Ana, hired Caldwell to pursue a medical-malpractice claim
against United States Army physicians for their treatment of Ana. Caldwell filed suit in federal
court, but the court granted summary judgment in favor of the defendant. Approximately two
years later, Haddy sued Caldwell for legal malpractice, alleging that Caldwell was negligent in
prosecuting the medical-malpractice claim because Caldwell failed to designate an expert and file
an expert report. Ana, who had divorced Haddy by then, was not a party to the suit.
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After filing an answer, Caldwell moved for summary judgment on no-evidence grounds.1
Caldwell asserted there was no evidence he and the physicians in the underlying suit were
negligent. Haddy filed a response to which he attached several exhibits, including his affidavit,
the federal court’s summary judgment, and emails authored by two physicians. Haddy contended
his affidavit, in combination with the federal court’s order, established the elements of his
malpractice claim against Caldwell and the emails constituted evidence he and Ana would have
been successful in the underlying medical-malpractice suit.
Caldwell filed a reply, arguing Haddy had not offered any competent summary-judgment
evidence. Specifically, Caldwell claimed Haddy failed to produce affidavits from qualified
medical and legal experts addressing certain essential elements of his respective causes of action.2
Caldwell also lodged specific objections to the evidence produced by Haddy.
Haddy responded by filing an amended affidavit and a report prepared by a medical
professional who opined that the physicians treating Ana breached the standard of care and injured
her. Haddy, however, never produced an affidavit from a legal expert. In its order granting
summary judgment, the trial court identified the lack of “competent summary judgment evidence
on the elements of standard of care and breach in the legal malpractice case” as one of its reasons
for doing so.
LEGAL MALPRACTICE
In his sole issue, Haddy argues the trial court erred when it granted Caldwell’s motion for
1
Caldwell also filed a motion to show authority, and later a motion to dismiss, in which he maintained that Haddy did
not have standing to pursue the legal-malpractice action against him because Haddy’s loss-of-consortium claim was a
derivative claim that required Ana to be joined as a party. Agreeing, the trial court dismissed Haddy’s suit with
prejudice. On appeal, we reversed and remanded, holding that Haddy had standing to maintain his suit against
Caldwell because Haddy’s loss-of-consortium claim was a separate and independent claim distinct from Ana’s claim.
Haddy v. Caldwell, 355 S.W.3d 247, 251-52 (Tex.App.--El Paso 2011, no pet.).
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Caldwell also claimed Haddy failed to produce evidence of “any injury to [him] for alleged loss of consortium.”
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summary judgment on no-evidence grounds because he produced evidence raising an issue of
material fact on each element of his legal-malpractice claim against Caldwell. We disagree.
Standard of Review
After an adequate time for discovery, a party may move for summary judgment on the
ground that no evidence exists to support one or more essential elements of a claim.
TEX.R.CIV.P. 166a(i) & cmts. The non-movant bears the burden to produce more than a scintilla
of evidence raising a genuine issue of material fact on the challenged elements. See id. More
than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable
and fair-minded people to differ in their conclusions.” Merrell Dow Pharmaceuticals, Inc. v.
Havner, 953 S.W.2d 706, 711 (Tex. 1997). If the non-movant fails to meet his burden, the trial
court must grant the motion for summary judgment. TEX.R.CIV.P. 166a(i). We review all of the
evidence in the light most favorable to the non-movant and disregard all contrary evidence and
inferences. Havner, 953 S.W.2d at 711.
Applicable Law
A legal-malpractice action requires proof of four elements: (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 & Assocs., Inc., 146 S.W.3d
113, 117 (Tex. 2004); Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995). If the
malpractice action arises from prior litigation, the plaintiff bears the additional burden of proving
that, “but for” the attorney’s breach of duty, the plaintiff would have prevailed on the underlying
cause of action and would have been entitled to judgment. Alexander, 146 S.W.3d at 118. To
discharge this burden, known as the “suit within a suit” requirement, the plaintiff must produce
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evidence explaining the legal significance of the attorney’s failure and the impact this had on the
underlying action. Alexander, 146 S.W.3d at 119-20; Cantu v. Horany, 195 S.W.3d 867, 873
(Tex.App.--Dallas 2006, no pet.). The plaintiff will not be successful in discharging this burden if
he fails to produce expert testimony regarding causation and the standard of skill and care
ordinarily exercised by an attorney. Alexander, 146 S.W.3d at 119-20; McInnis v. Mallia, 261
S.W.3d 197, 201 (Tex.App.--Houston [14th Dist.] 2008, no pet.); Cantu, 195 S.W.3d at 873; Ersek
v. Davis & Davis, P.C., 69 S.W.3d 268, 271 (Tex.App.--Austin 2002, pet. denied).
Discussion
Caldwell was entitled to summary judgment. Haddy offered no evidence from a legal
expert explaining how Caldwell breached the standard of care when he failed to designate an
expert and file an expert report and establishing that more likely than not Haddy and Ana would
have prevailed but for Caldwell’s performance. As established above, Haddy was required to
provide such expert testimony. See Alexander, 146 S.W.3d at 119-20; McInnis, 261 S.W.3d at
201; Cantu, 195 S.W.3d at 873; Ersek, 69 S.W.3d at 271. By failing to do so, Haddy did not
produce any evidence raising a genuine issue of material fact on the essential elements of his
legal-malpractice claim against Caldwell.
In his briefing, Haddy argues that, “[b]ecause [Caldwell’s] negligence is patently obvious
to any layperson . . .,” he was not required to provide testimony from a legal expert to show
Caldwell breached the standard of care.3 Even if Haddy were correct, he nonetheless fails to
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Haddy cites the following cases in support of his argument that he was not required to provide testimony from a legal
expert to show Caldwell breached the standard of care: (1) Millhouse v. Wiesenthal, 775 S.W.2d 626, 627 (Tex.
1989); (2) MND Drilling Corp. v. Lloyd, 866 S.W.2d 29 (Tex.App.--Houston [14th Dist.] 1987, no writ); (3) McClung
v. Johnson, 620 S.W.2d 644 (Tex.Civ.App.--Dallas 1981, writ ref’d n.r.e.), disapproved on other grounds by Willis v.
Maverick, 760 S.W.2d 642, 645 n.2 (Tex. 1988); (4) Schlosser v. Tropoli, 609 S.W.2d 255 (Tex.Civ.App.--Houston
[14th Dist.] 1980, writ ref’d n.r.e.); and (5) Rice v. Forestier, 415 S.W.2d 711 (Tex.Civ.App.--San Antonio 1967, writ
ref’d n.r.e.). However, none can be read to hold that expert testimony is not required to prove the element of breach in
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address why evidence from a legal expert was not required to show causation in this case, i.e., but
for Caldwell’s breach, he and Ana would have prevailed in the underlying medical-malpractice
suit.4 Without explicitly stating so, Haddy suggests causation is shown here by the same evidence
that establishes Caldwell’s breach of the standard of care. He is mistaken. First, “[b]reach of the
standard of care and causation are separate inquiries . . . and an abundance of evidence as to one
cannot substitute for a deficiency of evidence as to the other.” Alexander,146 S.W.3d at 119.
Second, and more important, it is not obvious that but for any errors made by Caldwell, Haddy and
Ana would have prevailed in their medical-malpractice suit so as to obviate the need for expert
testimony. See id. at 120. In other words, the leap from Caldwell’s failure to designate an expert
and file an expert report to Haddy’s and Ana’s successful recovery in their lawsuit is too great to
make logically, absent an explanation from a legal expert as to what other factors, if any, may or
may not have thwarted success.
Haddy also suggests that the medical opinions filed in response to Caldwell’s motion for
summary judgment are evidence, but for Caldwell’s breach, he and Ana would have prevailed in
the underlying suit. Again, he is mistaken. Putting aside the question whether these opinions are
competent summary-judgment evidence, they speak only to the standard of care, breach, and
causation concerning the Army physicians. By failing to address, much less demonstrate, the
causal link between Caldwell’s alleged negligence and the purported harm suffered by Haddy and
Ana, these opinions cannot be considered evidence that Haddy and Ana would have succeeded in
the underlying medical-malpractice action had Caldwell designated an expert and filed an expert
a legal-malpractice case arising from prior litigation.
4
In Alexander, the Texas Supreme Court made definite the need for expert testimony to prove causation in a
legal-malpractice claim alleging negligence in prior litigation.
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report. Accordingly, we conclude that the trial court did not err in granting Caldwell’s motion for
summary judgment on no-evidence grounds and dismissing Haddy’s legal-malpractice claim
against Caldwell.
Haddy’s sole issue is overruled.
CONCLUSION
The trial court’s judgment is affirmed.
May 8, 2013
YVONNE T. RODRIGUEZ, Justice
Before McClure, C.J., Rivera, and Rodriguez, JJ.
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George Haddy v. John W. Caldwell, Jr.
Combined Opinion