concurring and dissenting.
I concur with the majority opinion in affirming the summary judgment as to appel-lees William Rork and McCamish & Martin, P.C. However, I respectfully dissent with the holding of the majority that reverses and remands the summary judgment as to appel-lees Lawrence Linnartz and Ingram, Lin-nartz & Reynolds, P.C., for the following reasons. For purposes of this opinion, I will hereafter address William Burnap as appellant, and Lawrence Linnartz and Ingram, Linnartz & Reynolds, P.C., as appellees.
SUMMARY JUDGMENTS
The standard of review in a summary judgment case is whether the movant met its burden for summary judgment by establishing there exists no genuine issue of material fact and that it is entitled to a judgment as a matter of law. Nixon v. Mr. Property Management Co., 690 S.W.2d 546, 548 (Tex.1985). When a trial court’s order granting summary judgment does not specify the ground relied *152on, we may affirm the judgment on appeal if any of the theories advanced are meritorious. Rogers v. Ricane Enters., Inc., 772 S.W.2d 76, 79 (Tex.1989).
LEGAL MALPRACTICE
A legal malpractice action in Texas is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex.1989). The elements of a legal malpractice claim are: (1) a duty, (2) a breach of duty, (3) the breach proximately caused the injury, and (4) resulting damages. Id. at 666. When a legal malpractice claim arises from prior litigation, the plaintiff has the burden to prove that but for the attorney’s negligence, he or she would be entitled to judgment, and to show what amount would have been recovered in the judgment. Jackson v. Urban, Coolidge, Pennington & Scott, 516 S.W.2d 948, 949 (Tex.App. — Houston [1st Dist.] 1974, writ ref'd n.r.e.); see MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31 (Tex.App. — Houston [14th Dist.] 1987, no writ). In Texas, a lawyer is held to the standard of care that would be exercised by a reasonably prudent attorney. Veschi v. Stevens, 861 S.W.2d 291, 292 (Tex.App.—San Antonio 1993, no writ). Therefore, expert testimony of an attorney is necessary to establish this standard of skill and care ordinarily exercised by an attorney. The plaintiff is then required to controvert the expert testimony with other expert testimony. Anderson v. Snider, 808 S.W.2d 54, 55 (Tex.1991). Generally, an attorney only owes a duty to a party in privity of contract with the attorney. Berry v. Dodson, Nunley & Taylor, P.C., 717 S.W.2d 716, 718 (Tex.App.—San Antonio 1986), judgm’t vacated by agr., 729 S.W.2d 690 (Tex.1987). Therefore, one who is not a client has no cause of action against an attorney for legal malpractice. Parker v. Carnahan, 772 S.W.2d 151, 156 (Tex.App.—Texarkana 1989, writ denied).
ADMISSIONS
An admission, also known as an extrajudicial admission or an admission against interest, is “ ‘any statement made or act done by one of the parties to any action or on his behalf which amounts to a prior acknowl-edgement by such party that one of the facts relevant to the issues is not as he now claims.’ ” Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 337 (Tex.1963) (quoting 2 MCCORMICK & RAY, TEXAS LAW OF EVIDENCE § 1121). This type of admission serves as a “two-pronged assault on the admitter’s case”: (1) “[a]s a true exception to the hearsay rule they prove the truth of the facts admitted,” and (2) “since by definition they are inconsistent with the ad-mitter’s testimony at trial, they tend to impeach his credibility.” Id.
JUDICIAL ADMISSIONS
On the other hand, “[a] judicial admission is: (1) a statement made during the course of a judicial proceeding, (2) that is contrary to an essential fact or defense asserted by the person giving the testimony, (3) that is deliberate, clear, and unequivocal, (4) that, if given conclusive effect, is consistent with public policy on which the rule is based, and (5) that is not destructive of the opposing party’s theory of recovery.” Catherman v. First State Bank, 796 S.W.2d 299, 302 (Tex.App.— Austin 1990, no writ). “In other words, the [judicial admission] must be one relating to a fact upon which a judgment in favor of the opposing party may be based.” United States Fidelity & Guar. Co. v. Carr, 242 S.W.2d 224, 229 (Tex.App.—San Antonio 1951, writ ref'd). “[Live] pleadings of a party are regarded as formal judicial admissions [and] any fact admitted is conclusively established in the ease without the introduction of the pleadings or presentation of other evidence.” Houston First Am. Sav. v. Musick, 650 S.W.2d 764, 767 (Tex.1983). The judicial admission doctrine is not limited in its application to oral testimony, but encompasses “any sworn statement — whether oral or written — made in the course of a judicial proceeding.” Miller v. Mac Gann, 842 S.W.2d 641, 641 (Tex.1992). “The vital feature of a judicial admission is its conclusiveness on the party making it. It not only relieves that party’s adversary from making proof of the fact admitted but also bars the party from disputing it.” Herschbach v. City of Corpus Christi, 883 S.W.2d 720, 733 (Tex.App.—Corpus Christi 1994, writ denied).
Among other things, the summary judgment evidence generally established that appellant never had a contract of employment with the appellees; that appellees deny representing appellant individually at any time; *153that appellees had nothing to do with the legal representation that resulted in the general partnership known as Kittie Partners 1984-1 (“KP 1984-1”); that appellees had nothing to do with the transaction that resulted in the original partners becoming personal guarantors of a $3.2 million note payable to First South Savings Association; that appellees had nothing to do with appellant later becoming a partner in KP 1984-1 in 1985;1 that in 1986, when partners Daniel Linnartz and Max Burleson decided to withdraw from the partnership, they complied with the partnership provisions for withdrawing and reached an agreement with the remaining partners; that Daniel Linnartz and Max Burleson contacted the appellee law firm of McCamish & Martin, P.C., to put the agreement in legal form; that although ap-pellee Lawrence Linnartz, brother of Daniel Linnartz, was a member of the McCamish & Martin law firm at the time, he made known his conflict of interest concern by refusing to participate in the legal representation; that as a result, appellee Rork, another member of the firm, assumed the legal representation and reduced the agreement of the partners to a Mutual Release and Indemnity Agreement which was signed by all the partners; that at that time and thereafter until 1988, the appellee firm of Ingram, Linnartz & Reynolds, P.C., did not exist; that appellant never had any direct contact with any of the appellees regarding legal representation either individually or as a partner or expart-ner; and that it is the legal representation surrounding the Mutual Release and Indemnity Agreement which is the center of this dispute.
Specifically, appellant’s pleadings reflect that his legal malpractice cause of action against all appellees is based solely on allegations that appellees breached a duty to him arising from the legal representation surrounding the Release and Indemnity Agreement. Appellant has never alleged that he individually or as a partner or expartner directly sought or obtained legal representation from any of the appellees. Indeed, the summary judgment evidence clearly reflects that, in fact, appellant never had any direct contact with any of the appellees regarding legal representation. The thrust of appellant’s allegations are that because he was a partner at one time in KP 1984-1, he was indirectly owed a duty by the appellees. In fact, appellant’s deposition reflects the following question and answer:
Q. Okay. Did Larry Linnartz ever represent you individually in any transaction? I’m talking about Willard Burnap, individually, not as a partner to Kittie?
A. As a partner he did. That’s all I can say.
On the other hand, the record reflects that appellees filed a plea in abatement contending that appellant was not entitled to recover in the capacity in which he sued (as a partner or expartner of KP 1984-1) because he had previously transferred all rights and liabilities back to the partnership by a bill of sale executed when he ceased to be a partner on January 1, 1988.2 In appellant’s sworn judicial pleadings responding to the plea of abatement, appellant states the following:
Contrary to the claims made by Defendants, the right to bring this lawsuit is not a partnership right and does not arise from partnership interests. The right to pursue this legal malpractice action arises out of the attorney-client relationship that existed between Willard Burnap and Defendant Larry Linnartz.
The record also reflects that appellant thereafter, in an open court plea in the abatement hearing, reiterated his judicial admission that his cause of action against appellees was not grounded on legal representation as a partner or expartner of KP 1984-1. Appellant’s open court judicial admission was so convincing that it caused the trial judge to enter an order on September 30, 1993, denying the plea in abatement, specifically “based upon Plaintiffs statements in open court that they were not seeking relief as a partner or ex-partner of the partnership known as KP 1984-1.”
*154-156Undoubtedly, the judicial admissions doctrine has been invoked here. Appellant’s pleadings, sworn response to the plea in abatement, deposition answers, and open court statements to the trial court during the plea in abatement hearing are judicial admissions because (1) they were “made during the course of a judicial proceeding,” (2) they were contrary to an essential fact asserted by the appellant, (3) they were “deliberate, clear, and unequivocal,” (4) the conclusive effect is consistent with public policy, Catherman, 796 S.W.2d at 302, and (5) they were judicial admissions relating to a fact upon which a summary judgment in favor of appel-lees may be based. United States Fidelity & Guar. Co., 242 S.W.2d at 229. Appellant’s pleadings, including his sworn response to the plea in abatement, were “live pleadings” of appellant which are “regarded as a formal judicial admission [and] any facts admitted [are] conclusively established in the case without the introduction of the pleadings or presentation of other evidence.” Houston First American Sav., 650 S.W.2d at 767. The judicial admissions clearly involved oral testimony in sworn deposition and before the trial court, and written sworn pleadings, all “made in the course of a judicial proceeding.” Miller, 842 S.W.2d at 641. Appellant’s judicial admissions concede that the only legal representation he can complain about existed as a result of his status as a partner or expartner of KP 1984-1. However, appellant’s judicial admissions also concede that he is not seeking any relief from damages resulting from any legal representation that existed as a result of his status as a partner or expartner of KP 1984-1.
Thus, by these judicial admissions, appellant established conclusively that the basis for the cause of action he has chosen to pursue against the appellees is without merit, and must fail by his own admissions. Therefore, appellees are entitled to summary judgment as a matter of law, since appellant’s judicial admissions not only relieved appel-lees from making proof of the fact admitted but also barred appellant from disputing them. Herschbach, 883 S.W.2d at 733.
Since this meritorious theory was properly advanced by appellees, the trial court correctly granted the summary judgment. Rogers, 772 S.W.2d at 79.
I would affirm the summary judgment.
. In fact, the evidence reflects that appellant became a partner in the partnership only because of the urgings of his son Walter, who convinced him of the tax advantages involved for appellant.
. This contention is uncontroverted.