Sprowl v. Dooley, No. 05-06-00359-CV (Tex. App.–Dallas May 8, 2007) (not designated for publication). Ruling on Summary Judgment.

If you plan to prosecute a legal malpractice action, it helps if you file your expert’s affidavit on time when opposing a no-evidence summary judgment motion.

Background

The appellant, Linda Sprowl, sought reversal of a lower court’s ruling, which granted the attorneys’ motion for summary judgment on her legal malpractice claim. Sprowl’s expert affidavit was not filed in a timely manner. She further argued that her claim was not barred by res judicata.

Sprowl had hired the law firm of Dooley & Rucker to pursue a defamation case; she later filing a malpractice claim against the law firm of Marshal Dooley and Michael Scott for negligence, fraud, and violations of the Texas Deceptive Trade Practices Act (DTPA).

The defendants moved for summary judgment. Sprowl failed to timely file an expert’s affidavit addressing the standard of care of a reasonably prudent attorney and the alleged causal link between any breach of the duties by her attorney and her claimed injuries. The associate judge granted the summary judgment.

Sprowl appealed the decision to the district court, which heard arguments on December 12, 2005. Three days later, Sprowl filed an expert affidavit of Charles McGarry to support her legal malpractice claims. In February 2006, the district court entered a final judgment, which affirmed the associate judge’s ruling.

Timely summary judgment evidence lacking

The court of appeals affirmed the trial court's judgment in favor of Sprowl’s former lawyers and the law firm that had previously represented her.

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).

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.

The court of appeals noted that Sprowl recognized her need for expert testimony by filing the affidavit of Charles McGarry on December 15, 2005. Sprowl argued on appeal 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. The court of appeals found her argument was 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 the defendants' no-evidence summary judgment motion.