Martinez v. Leeds, No. 08-05-00240-CV, 2007 WL 778643 (Tex. App.--El Paso 2007).

Filing a legal malpractice claim pro se is not the best idea. Appellant, a pro se litigant, sought both media attention and judicial relief against an attorney appointed as guardian ad litem and counsel to her. Appellee was appointed attorney and guardian ad litem to Appellant in connection with an emergency removal petition filed against Appellant by the Texas Department of Protective and Regulatory Services on July 26, 2001. On November 13, 2001, Appellee filed a motion to withdraw as counsel of record, based on Appellant’s alleged refusal to follow his advice and insistence on involving the media. Appellee attached a letter from Appellant to the El Paso Times to his motion to withdraw, in which Appellant accused Appellee of being “inadequate and ineffectual.” The trial court granted Appellee’s motion.

On October 21, 2004, Appellant filed a suit against Appellant for legal malpractice, breach of contract, defamation, and violation of her constitutional rights. Appellant filed an answer on November 5, 2004, and then both a traditional and a no evidence summary judgment motion. Both motions were granted; Appellant appeals.

The Court held that it need only analyze the propriety of the no-evidence summary judgment rule, because if its standard was met, the more stringent standard of a traditional summary judgment motion would also be met.

“A no-evidence summary judgment under Rule 166a(i) is essentially a pretrial directed verdict, and we therefore apply the same legal sufficiency standard in reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict. The party moving for no-evidence summary judgment must assert that there is no evidence of one or more essential elements of a claim or defense on which the non-movant would the burden of proof at trial . The burden then shifts to the non-movant to produce evidence raising a fact issue on the challenged elements. To raise a genuine issue of material fact, the non-movant must set forth more than a scintilla of probative evidence as to an essential element of his claim or defense.”

The Court noted that Appellant did not provide any response to Appellee’s summary judgment motion, and therefore did not meet her burden to raise a genuine issue of material fact. Her brief and conclusory statements were unsupported by argument or citation to legal authority. Despite the allowance made because Appellant was not an attorney, nothing was provided for the court to review.

Next, the Court noted that Appellant argued that when the trial court granted summary judgment, she was denied her right to a jury trial. The court held that any constitutional challenges must be presented by motion, answer, or response to a motion for summary judgment, or they will not be considered. Regardless, the court noted that when there is no genuine issue of material fact, granting summary judgment does not violate a party’s constitutional right to a jury trial. Accordingly, the Court affirmed the trial court.