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COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

GEORGE HADDY,

 Appellant,

v.

JOHN W. CALDWELL, JR.,

 Appellee. 

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No. 08-12-00131-CV

Appeal from the

448th Judicial District Court

of El Paso County, Texas 

(TC# 2010-700) 

O P I N I O N

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.

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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.).

2 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 

 

3 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.

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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.