In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

_______________________________

06-20-00005-CV

_______________________________

WHITE ROCK EXPLORATION, INC., AND 

RICHARD L. CLAY, INDIVIDUALLY, Appellants

V.

FREEMAN MILLS, P.C., JASON R. MILLS, INDIVIDUALLY, 

VANCE P. FREEMAN, INDIVIDUALLY,

AND GRAHAM K. SIMMS, INDIVIDUALLY, Appellees

On Appeal from the 241st District Court

Smith County, Texas

Trial Court No. 17-2914-C

Before Morriss, C.J., Burgess and Stevens, JJ.

Opinion by Justice Stevens
2

O P I N I O N

White Rock Exploration, Inc., and Richard L. Clay1sued Freeman Mills, P.C., Jason R. 

Mills, Vance P. Freeman, and Graham K. Simms2for legal malpractice, alleging claims of 

negligence and negligent misrepresentation. The trial court granted Freeman Mills’ no-evidence 

motion for summary judgment. 

On appeal, White Rock contends that the no-evidence motion was not sufficiently specific 

and that the trial court erred by granting the motion and entering judgment against it on all claims. 

We find that (1) the no-evidence motion for summary judgment was sufficiently specific and 

(2) the trial court did not err in granting summary judgment. As a result, we affirm the trial court’s 

no-evidence summary judgment. 

I. Background

A. Factual Background

White Rock Exploration, Inc., is an oil and gas operating company run by its president and 

majority shareholder, Clay. In December 2013 and January 2014, White Rock contracted with 

Palestine Water Well Service, Inc. (Palestine), to drill an exploratory well in Limestone County. 

Jere Alan Pritchett, Palestine’s president, served as tool pusher and driller on the project. White 

Rock determined that Palestine did not have the equipment, personnel, or expertise to drill the well 

in a workman-like manner and that Pritchett had misrepresented Palestine’s capabilities when 

1Unless otherwise expressly stated, we refer to White Rock Exploration, Inc., and Richard L. Clay collectively as 

“White Rock.”

2Unless otherwise expressly stated, we refer to the appellees collectively as “Freeman Mills.” 
3

seeking the contract to drill the well. On January 6, 2014, when Clay was visiting with Pritchett 

about the project, Pritchett allegedly assaulted Clay in Pritchett’s travel trailer at the well site and 

then falsely informed the Limestone County Sheriff that Clay had attacked Pritchett with a knife. 

While awaiting the arrival of the sheriff’s deputies, Pritchett allegedly staged a scene in his travel 

trailer to support the false accusation. Clay was later arrested and charged with aggravated assault 

with a deadly weapon. 

Clay claimed that, on his own behalf and on behalf of White Rock, he consulted with 

Freeman Mills regarding possible legal action against Palestine and Pritchett and that Freeman 

Mills erroneously informed him that the statute of limitations for malicious prosecution and slander 

against Pritchett was two years. Freeman Mills allegedly advised Clay to first sue Palestine and 

to delay in filing suit on his individual claims against Pritchett. Clay, in alleged reliance on that

advice, instructed Freeman Mills to first pursue White Rock’s claims against Palestine, to seek an 

early settlement, and to postpone pursuing his individual claims until the claims against Palestine 

were resolved. 

Freeman Mills thereafter filed suit on behalf of White Rock against Palestine in the 241st 

Judicial District Court of Smith County.3 In April 2015, White Rock and Palestine mediated their 

dispute, but failed to settle the case. Following the mediation, Freeman Mills presented White 

Rock with a fee invoice in the amount of $51,158.25. Clay stated that Freeman Mills advised him, 

in October 2015, to settle White Rock’s claims against Palestine through a mutual release with no 

3Originally appealed to the Twelfth Court of Appeals in Tyler, this case was transferred to this Court by the Texas 

Supreme Court pursuant to its docket equalization efforts. See TEX. GOV’T CODE ANN. § 73.001. We are unaware of 

any conflict between precedent of the Twelfth Court of Appeals and that of this Court on any relevant issue. See TEX. 

R. APP. P. 41.3.
4

payment by either party. Clay settled the lawsuit against Palestine in alleged reliance on Freeman 

Mills’s representation that the statute of limitations on Clay’s malicious prosecution and slander 

claims was two years. Meanwhile, the criminal matter against Clay was “no billed” by the 

Limestone County Grand Jury, and Pritchett was indicted for tampering with or fabricating 

physical evidence. On December 30, 2015, Clay discovered that the statute of limitations for 

malicious prosecution and slander was one year and had passed. 

B. Procedural Background and Summary Judgment Evidence

In December 2017, White Rock and Clay sued Freeman Mills, alleging, among other 

things, that Freeman Mills (1) permitted the statute of limitations to run on Clay’s claims of 

malicious prosecution and slander; (2) made only a cursory effort to seek a settlement with 

Palestine nine months after the lawsuit was filed, despite Clay’s repeated direction to seek an early 

settlement; (3) presented White Rock with an invoice for legal services totaling $51,158.25 twelve 

days following the April 2015 mediation between White Rock and Palestine, thereby negatively 

impacting White Rock’s ability to evaluate settlement options; and (4) advised White Rock to 

settle its claims against Palestine for a mutual release and then proceed with the claims against 

Pritchett, thereby causing White Rock to settle when it otherwise would not have done so. White 

Rock’s suit against Freeman Mills also alleged that these actions amounted to negligence and 

negligent misrepresentation and that it was entitled to attorney fees and exemplary damages. 

On January 4, 2019, Freeman Mills filed its no-evidence motion for summary judgment. 

The summary judgment motion stated that, although White Rock appeared to claim “that 

Defendants negligently advised it to settle and that, but for this negligent advice, White Rock 
5

would have won at trial,” it had no evidence that the “advice was negligent, that White Rock would 

have won at trial, or what White Rock’s recovery would have been.” Freeman Mills also claimed 

that it never represented Clay, and while Clay appeared to claim that, “but for negligent 

misrepresentations made by [Freeman Mills], he would have timely filed a lawsuit,” he had no 

evidence “that he would have won that lawsuit or of what his recovery would have been.” The 

motion alleged that White Rock and Clay had the “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.” The motion asserted that Clay had no evidence on each element 

of his negligence claim and that White Rock had no evidence of causation or damages for its claim. 

Finally, the motion alleged that there was no evidence of gross negligence. The trial court set the 

no-evidence motion for summary judgment for a hearing on March 7, 2019. 

On January 22, 2019, White Rock filed its response to the no-evidence motion for summary 

judgment, which discussed the underlying case and alleged, among other things, that Freeman 

Mills failed to inform Clay that it would not pursue his individual claims. The response also 

alleged that, based on Pritchett’s false accusation against Clay, Clay was arrested and charged with 

assault. 

On February 14, 2019, White Rock filed an amended response in opposition to the noevidence motion for summary judgment. This response alleged that, on June 18, 2014, the “Grand 

Jury no-billed Clay and . . . indicted Pritchett for . . . tampering with or fabricating physical 

evidence.” On February 28, 2019, White Rock filed its second amended response in opposition to 

summary judgment, and on November 5, 2019, White Rock filed its third amended response. 
6

Exhibits to White Rock’s responses to the summary judgment motion included Clay’s 

affidavit and unsworn declaration,4in which he testified that Freeman Mills advised him on his 

personal claims against Pritchett and billed for a meeting with him on June 17, 2014, in which they 

discussed strategy for adding his personal claims against Pritchett. Freeman Mills never presented 

Clay with a letter of non-representation and further advised Clay on two separate occasions that 

the statute of limitations for malicious prosecution and defamation was two years. The most recent 

of those representations happened on October 19, 2015, at a meeting in which Freeman Mills 

advised Clay to settle the Palestine lawsuit for a mutual release with no payment by either party. 

Freeman Mills represented to Clay that the statute of limitations for malicious prosecution and 

slander was two years and reassured Clay that he could still file suit against Pritchett because the 

statute on these claims had not yet run. Clay relied on that advice and instructed Freeman Mills to 

make sure that the wording of the settlement agreement did not release his malicious prosecution 

or defamation claims. Freeman Mills told Clay that it would file suit on his behalf when he was 

ready. Clay discussed the ongoing criminal charges against him with Freeman Mills and only did 

so based on his attorney-client relationship with Freeman Mills. 

When, on December 30, 2015, Clay discovered that the statute of limitations on his 

personal claims was actually one year, he emailed Freeman Mills stating that he was going to file 

4The unsworn declaration was an exhibit to White Rock’s third amended response to the no-evidence summary 

judgment motion and complies with Section 132.001 of the Texas Civil Practice and Remedies Code. See TEX. CIV.

PRAC. & REM. CODE ANN. § 132.001 (stating that, subject to certain exceptions, unsworn declaration may be used in 

lieu of affidavit).
7

suit before the two-year limitation period they had discussed was up.5 At the time of the settlement, 

Clay believed that he could still seek recovery through other causes of action, when in reality,

5Clay’s affidavit and unsworn declaration are long and include these statements:

• Clay stated that Freeman Mills did not inform him that, in order to recover exemplary damages for 

slander, he would be required to request a correction, clarification, or retraction of the defamatory 

statements within ninety days after learning of their publication. 

• White Rock had an oral contract with Palestine, that Palestine breached the contract by failing to 

drill the Gates #1 well in a good and workmanlike manner—describing evidence in support of that 

contention—and in support of his contention that Palestine committed fraud and violations of the 

Texas Deceptive Trade Practices Act. Clay concluded that White Rock suffered damages in excess 

of $100,000.00. 

• An attorney-client relationship existed between Freeman Mills and White Rock. 

• Pritchett made statements that White Rock’s president committed a crime of moral turpitude and 

that it refused to pay Palestine, resulting in financial harm to White Rock. 

• Freeman Mills advised White Rock that it would be important to file suit against Palestine first. In 

March 2014, White Rock directed Freeman Mills to file suit but to immediately seek to start 

settlement discussions. Those discussions did not begin until nine months later. At that time, 

opposing counsel was not aware that Pritchett had been charged with filing a false report. In 

December 2014, Freeman Mills advised opposing counsel of Pritchett’s indictment, and did not 

follow up with settlement discussions for another two months. That consisted of an exchange of 

emails for which White Rock was billed for eighteen minutes. Freeman Mills spent a total of fortyeight minutes seeking to initiate settlement talks in the first year of litigation. 

• Twelve days after mediation on April 9, 2015, White Rock received an invoice from Freeman Mills 

in the amount of $51,158.25. This lack of information at the mediation negatively impacted White 

Rock’s ability to evaluate settlement options. 

• But for Freeman Mills’s error regarding the statute of limitations, White Rock would not have 

agreed to the settlement. 

• White Rock was forever denied the opportunity to seek damages from Pritchett or PWWS for 

business defamation or business disparagement. 

• If Freeman Mills had pursued early settlement as directed, settlement would have been reached 

earlier and at a substantially lower cost. 

• If Freeman Mills would not have given White Rock erroneous advice when the lawsuit was settled, 

White Rock would have continued to trial and would have had the opportunity to obtain a judgment 

against Palestine. 
8

those claims were already barred. In an email dated January 4[, 2016], Gus Clardy, an attorney 

with Freeman Mills, stated, “[I]t looks like [Clay’s] claims for malicious prosecution and slander 

are both out.” (Second alteration in original).

As to the underlying claims against Pritchett, Clay testified that Pritchett assaulted him on 

January 6, 2014, in Pritchett’s trailer at the well site. According to Clay, Pritchett then staged a 

scene in the trailer to support his accusation to law enforcement officers that Clay attacked him 

with a knife. As a result, Clay was arrested and charged with aggravated assault with a deadly 

weapon. On June 18, 2014, the grand jury no-billed the charges against Clay, and Pritchett was 

subsequently indicted for tampering with or fabricating physical evidence. Clay stated that he 

expended more than $25,000.00 in legal fees and for a bail bond as part of the aggravated assault 

charge and paid more than $2,000.00 in medical expenses for treatment of physical injuries 

sustained in the altercation. He testified that he suffered from depression, anxiety attacks, sleep 

deprivation, severe mood swings, and cold sweats as a result of the false accusations of criminal 

misconduct. Consequently, he was treated by a psychiatrist and was prescribed antidepressants. 

Clay testified that Pritchett published the false statements of assault in his incident report 

to the Limestone County Sheriff’s Department and published them to other people and businesses 

in the oil industry. These false accusations caused Clay distress, and certain non-operators in the 

drilling of the well refused to pay White Rock, citing Pritchett’s accusations. 

White Rock produced other evidence in response to the summary judgment motion in the 

form of the affidavit of Todd Lessert, the attorney who represented Clay after his arrest for 

aggravated assault with a deadly weapon following the altercation with Pritchett. Lessert testified 
9

that the criminal charges stemmed from Pritchett’s false report to the Limestone County Sheriff’s 

Office and his fabrication of physical evidence in the form of a blood-smeared knife. 

Lessert also testified that the evidence indicated that Pritchett attacked Clay, leading to a 

brief altercation in which no weapons were involved. Pritchett contacted the sheriff’s office and 

reported that Clay attacked him with a knife and staged a scene to support his allegations, including 

the placement of a knife with blood on the blade on the floor beneath the dining table. Clay was 

arrested and charged with aggravated assault with a deadly weapon. Pritchett was on record 

describing the incident five times, and each story varied dramatically. 

The investigation also revealed that Clay was excluded from contributing any DNA to the 

knife while Pritchett’s DNA was on the knife blade and handle. The knife was a National Wild 

Turkey Federation knife, and Pritchett was a member of that organization. On June 18, 2014, a 

Limestone County grand jury returned a no-bill of Clay and indicted Pritchett under cause number 

13354-A for tampering with/fabricating physical evidence with intent to impair. On February 16, 

2016, the 77th Judicial District Court of Limestone County entered an order of expunction in 

Clay’s favor. Lessert stated that Clay was extremely distressed over the possibility of being 

convicted of the criminal charges. 

Because Clay told him that Freeman Mills was representing him personally in a possible 

civil action against Pritchett and Palestine, Lessert agreed to meet with Freeman Mills. At the 

meeting in Freeman Mills’s office, Lessert spoke with Mills and Simms, along with Clay, about 

the defense of the criminal case. Lessert testified that, at the meeting, he was told that Freeman 

Mills would file suit against Pritchett and Palestine for Clay’s personal claims once White Rock’s 
10

suit was concluded. Lessert testified that it was clear to him that Mills and Simms were acting as 

Clay’s attorneys as they provided him legal advice. The content of the discussion about Clay’s 

claims indicated to Lessert that Mills and Simms had previously discussed these claims with Clay. 

Lessert would not have agreed to communicate with Freeman Mills about the ongoing criminal 

matter and would have instructed Clay not to speak with Freeman Mills further about the matter 

but for this attorney-client relationship. 

Other evidence attached to White Rock’s summary judgment responses included:

• An email from Simms to Mills stating that the petition should be amended to add 

Pritchett as “piercing the corporate veil” and that Pritchett should not be added 

based on any other cause of action because they “should have been aware of those 

causes of action before 2/14/15, which was the joinder deadline.” 

• A Freeman Mills billing statement that indicated that Mills had engaged in email 

discussions with the client “regarding counsel for defamation claim and procedure 

for agreeing to transfer case to Limestone or Anderson County.” A separate June 

17, 2014, entry indicated that Mills had a conference with Clay “about the criminal 

case and strategy for adding his personal claims against Jere Pritchett.” 

• An indictment bearing the June 18, 2014, file mark of the Limestone County 

District Clerk in cause number 13354-A stating that, on January 6, 2014, Pritchett, 

knowing that an offense had been committed, intentionally or knowingly destroyed 

or concealed a knife—an item of evidence—with the intent to impair its availability 

as evidence in any subsequent investigation or official proceeding related to the 

offense. 

• The affidavit of Darren J. Pratka, a petroleum landman who performed work on 

behalf of White Rock. Pratka, who was present at meetings with Clay and Freeman 

Mills, testified that Freeman Mills advised Clay of claims against Palestine and 

Pritchett, including defamation and making false felony accusations against Clay.

Freeman Mills advised Clay to pursue the White Rock claims first and to later 

pursue his personal claims against Pritchett, on which they advised Clay. Freeman 

Mills expressed no concern that delaying action on Clay’s personal claims would 

jeopardize those claims. 
11

• The affidavit of Shelly R. Dean, an employee of White Rock, who recounted her 

conversation with Chad Thornton of Kenner Well Service in March 2014 in which 

Thornton told Dean that “the word on the street was” that White Rock did not pay 

its drilling contractor and which recounted the story of the altercation between Clay 

and Pritchett, including a claim that Clay tried to slash Pritchett’s throat with a 

knife. Dean also stated that Clay believed Freeman Mills was representing him on 

his personal claims and that he was humiliated by the criminal allegations and 

experienced extreme stress as a result. 

• An October 24, 2014, email from Clay to Simms advising Simms that Pritchett had 

been indicted on tampering with physical evidence and inquiring how that would 

“play into all this.” 

• A December 30, 2015, email from Clay to Mills and Simms stating that he had read 

Section 16.002 of the Civil Practice and Remedies Code and asking that they 

“confirm or correct” his understanding that “the primary personal claims that [he]

may have had against Jere Pritchett (malicious prosecution and slander) have a oneyear limitation period.” Clay explained that he “was about to take action to file suit 

before the two-year limitation period [they had] discussed was up” and asked for a 

response as soon as possible. 

• A January 5, 2016, email from Mills to Clay forwarding an email from another 

Freeman Mills lawyer concluding that the statute of limitations for malicious 

prosecution had run. 

• Excerpts from Pritchett’s February 13, 2015, deposition in which Pritchett testified 

that Clay attacked him with a knife, but the knife fell out of Clay’s hand. Pritchett 

did not seek medical attention. He asked law enforcement to arrest Clay. 

• The expert affidavit of attorney Michael D. West. 

On December 5, 2019, the trial court granted Freeman Mills’s no-evidence motion for 

summary judgment based on “the motion, the response[s], all relevant filings, the arguments of 

counsel, the admissible evidence, and the relevant authorities.” 
12

II. Standard of Review

We review the trial court’s decision to grant summary judgment de novo. Merriman v. 

XTO Energy, Inc., 407 S.W.3d 244, 248 (Tex. 2013). A party without the burden of proof may, 

after adequate time for discovery, move for summary judgment on the basis that there is no 

evidence of one or more essential elements of a claim or defense. TEX. R. CIV. P. 166a(i); MJS & 

Assocs., LLC v. Master, 501 S.W.3d 751, 756 (Tex. App.—Tyler 2016, pet. denied). “No-evidence 

summary judgments are reviewed under the same legal sufficiency standard as directed verdicts.” 

Merriman, 407 S.W.3d at 248 (citing King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 750 (Tex. 

2003)). 

“Under this standard, evidence is considered in the light most favorable to the nonmovant, 

crediting evidence a reasonable jury could credit and disregarding contrary evidence and 

inferences unless a reasonable jury could not.” Id. (citing Goodyear Tire & Rubber Co. v. Mayes, 

236 S.W.3d 754, 756 (Tex. 2007)). “Once a no evidence motion has been filed in accordance with 

Rule 166a(i), the burden shifts to the nonmovant to bring forth evidence that raises a fact issue on 

the challenged element[s].” MJS, 501 S.W.3d at 756 (citing Mack Trucks, Inc. v. Tamez, 206 

S.W.3d 572, 582 (Tex. 2006)). 

“A no evidence motion is properly granted if the nonmovant fails to bring forth more than 

a scintilla of probative evidence to raise a genuine issue of material fact as to an essential element 

of the nonmovant’s claim on which the nonmovant would have the burden of proof at trial.” 

Neurodiagnostic Tex. L.L.C., v. Peirce, 506 S.W.3d 153, 162 (Tex. App.—Tyler 2016, no pet.) 

(citing King Ranch, Inc., 118 S.W.3d at 751). “If the evidence supporting a finding rises to a level 
13

that would enable reasonable, fair minded persons to differ in their conclusions, then more than a 

scintilla of evidence exists.” Id. “Less than a scintilla of evidence exists when the evidence is ‘so 

weak as to do no more than create a mere surmise or suspicion’ of a fact.” King Ranch, Inc. v. 

Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 

63 (Tex. 1983)).

III. Analysis

A. The No-Evidence Motion for Summary Judgment Was Sufficiently Specific

White Rock initially complains that the summary judgment motion failed to meet Rule 

166a(i)’s specificity requirement and was therefore insufficient to support summary judgment as 

a matter of law. 

A no-evidence motion for summary judgment “must be specific in challenging the 

evidentiary support for an element of a claim or defense; conclusory motions or general no 

evidence challenges to an opponent’s case are not authorized.” Neurodiagnostic Tex. L.L.C., 506 

S.W.3d at 175 (citing Holloway v. Tex. Elec. Util. Const., Ltd., 282 S.W.3d 207, 213 (Tex. App.—

Tyler 2009, no pet.)); see TEX. R. CIV. P. 166a, cmt. The Rule provides,

After adequate time for discovery, a party without presenting summary judgment 

evidence may move for summary judgment on the ground that there is no evidence 

of one or more essential elements of a claim or defense on which an adverse party 

would have the burden of proof at trial. The motion must state the elements as to 

which there is no evidence. The court must grant the motion unless the respondent 

produces summary judgment evidence raising a genuine issue of material fact.

TEX. R. CIV. P. 166a(i). “The underlying purpose of this requirement ‘is to provide the opposing 

party with adequate information for opposing the motion, and to define the issues for the purpose 

of summary judgment.’” Timpte Indus., Inc. v. Gish, 286 S.W.3d 306, 311 (Tex. 2009) (quoting 
14

Westchester Fire Ins. Co. v. Alvarez, 576 S.W.2d 771, 772 (Tex. 1978)). This is analogous to the 

“fair notice” pleading requirements in Rules 45 and 47 of the Texas Rules of Civil Procedure.6 Id.

Freeman Mills’s motion for no-evidence summary judgment included six paragraphs 

attacking the lack of evidence for the elements of the claims asserted by White Rock and by Clay.7 

6Rule 45(b) states that “an allegation . . . shall not be grounds for an objection when fair notice to the opponent is 

given by the allegations as a whole.” TEX. R. CIV. P. 45(b). Rule 47(a) requires that “[a]n original pleading which 

sets forth a claim for relief . . . shall contain . . . a short statement of the cause of action sufficient to give fair notice 

of the claim involved.” TEX. R. CIV. P. 47(a). 

7Paragraph A alleged that White Rock had no evidence on three elements of its negligence claim. Freeman Mills 

specifically alleged,

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. 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. 

To discharge this burden, known as the “suit within a suit” requirement, the plaintiff must produce 

evidence explaining the legal significance of the attorney’s failure and the impact this had on the 

underlying actions. In other words, White Rock must put forth evidence on each element of the 

claims it alleges that it would have won. White Rock has no evidence on any of those claims. 

White Rock has no evidence that Defendants breached any duty that they allegedly owed 

to it. White Rock has no evidence of causation. White Rock has no evidence on each element of 

its claims from the previous lawsuit. And White Rock has no evidence of damages.

(Footnotes omitted).

Paragraph B alleged that Clay had no evidence on each element of his negligence claim. Freeman Mills specifically 

alleged, “A legal-malpractice action require[s] either 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. Clay has no evidence on each of these elements.” (Footnote omitted).

Paragraph C alleged that White Rock had no evidence of causation or damages for its negligent misrepresentation 

claim. Freeman Mills specifically alleged,

“Negligent misrepresentation requires that: (1) the speaker make a representation in the

course of its business or in a transaction in which it had a pecuniary interest; (2) the representation 

was false and offered as business guidance; (3) the speaker did not exercise reasonable care or 

competence in obtaining or communicating the information; and (4) another party suffers pecuniary 

loss by justifiably relying on the representation.” Further, “to prevail on a claim for negligent 

misrepresentation,” the plaintiff must prove that the defendant’s “misrepresentation was a proximate 

cause of their damages.”
15

The motion stated the elements of each claim and then stated the specific elements being 

challenged. Based on its thorough responses to the challenged elements, it is apparent that White 

Rock understood Freeman Mills’s motion. 

White Rock relies on Bever Properties, L.L.C. v. Jerry Huffman Custom Builder, L.L.C., 

355 S.W.3d 878 (Tex. App.—Dallas 2011, no pet.), in support of its position that the summary 

White Rock has no evidence that any alleged misrepresentation caused it to suffer a 

pecuniary loss, nor does it have any evidence of the amount of the pecuniary loss. Moreover, it has 

no evidence that it would have won its claims in the previous lawsuit. 

(Footnotes omitted).

Paragraph D alleged that Clay had no evidence of causation or damages for his negligent misrepresentation claim. 

Freeman Mills specifically alleged the elements of negligent representation and no proof that the defendant’s 

misrepresentation proximately caused the plaintiff’s damages. Freeman Mills concluded,

Clay has no evidence that any alleged misrepresentation caused him to suffer a pecuniary 

loss, nor does he have any evidence of the amount of the pecuniary loss. Moreover, because Clay’s

negligent misrepresentation claim concerns a missed statute of limitations, Clay must prove that he 

would have won the underlying claims. He has no evidence that he would have won had he filed 

his lawsuit. 

(Footnote omitted).

Paragraph E alleged that Plaintiffs had no evidence of gross negligence. Freeman Mills specifically alleged,

Exemplary damages can be awarded if the plaintiff shows that its injury was the result of

fraud, gross negligence, malice, or certain statutory violations.” Here, Plaintiffs have alleged gross 

negligence. 

“Gross negligence” means an act or omission: (A) which when viewed objectively from 

the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, 

considering the probability and magnitude of the potential harm to others; and (B) of which the actor 

has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious 

indifference to the rights, safety, or welfare of others.” And “extreme degree of risk” means not a 

remote possibility of injury or even a high probability of minor harm, but rather the likelihood of a 

substantial injury to the plaintiff. A substantial injury or harm is a harm such as death, grievous 

physical injury, or financial ruin. 

Plaintiffs have no evidence for each element of gross negligence. 

(Footnotes omitted). 
16

judgment motion was not sufficiently specific. But in that case, the appellees’ no-evidence motion 

did not expressly identify the specific elements of appellants’ claims that lacked supporting 

evidence. Id. at 888. That is not the case here. 

We conclude that the motion was sufficient to comply with Rule 166a(i) and to provide 

White Rock with adequate information to oppose the motion and to “define the issues for the 

purpose of summary judgment.” Timpte Indus., Inc., 286 S.W.3d at 311.

B. Because White Rock Failed to Present Expert Testimony on the Element of 

Causation, Summary Judgment Was Proper

1. Expert Testimony Was Required to Prove Causation

A legal malpractice claim is based on negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 

664 (Tex. 1989). For that reason, “the former client must show (1) the existence of a duty of care 

owed to the client, (2) that the duty was breached, and (3) that the breach proximately caused 

damage to the client.” Starwood Mgmt., LLC by and through Gonzalez v. Swaim, 530 S.W.3d 673, 

678 (Tex. 2017) (per curiam) (citing Stanfield v. Neubaum, 494 S.W.3d 90, 96 (Tex. 2016)). 

White Rock alleged that Freeman Mills owed a duty to White Rock to “provide counsel 

. . . within the applicable standard of care in handling the lawsuit between White Rock and 

[Palestine]” and that Freeman Mills breached its duty (1) in failing to pursue settlement discussions 

with Palestine as directed by White Rock, (2) in failing to provide pre-suit notice to Palestine for 

White Rock’s breach of contract and Texas Deceptive Trade Practices Act claims, and (3) in failing 

to timely provide White Rock with accurate invoices for legal services. White Rock also alleged 

that each of these negligent acts proximately caused its damages and that Freeman Mills’s error 

regarding the statute of limitations for malicious prosecution and slander constituted negligence 
17

and negligence per se. The negligent misrepresentation claim essentially alleged that Freeman 

Mills’s reckless representation that the statute of limitations for malicious prosecution and slander 

was two years—which White Rock justifiably relied on—prevented White Rock from timely filing 

and recovering on those claims. 

“It is the former client’s burden to prove proximate cause, which includes cause in fact.” 

Swaim, 530 S.W.3d at 678 (citing Rogers v. Zanetti, 518 S.W.3d 394, 402 (Tex. 2017)). “[P]roof 

of causation requires evidence of all of the elements of the underlying claim” when the legalmalpractice plaintiff was the plaintiff in the underlying case. Kelley & Witherspoon, LLP v. 

Hooper, 401 S.W.3d 841, 847 (Tex. App.—Dallas 2013, no pet.). “Generally, in a legal 

malpractice case, expert witness testimony is required to rebut a defendant’s motion for summary 

judgment challenging the causation element.” Swaim, 530 S.W.3d at 679; see Rogers v. Zanetti, 

518 S.W.3d 394, 405 (Tex. 2017) (allegations involving valuation of underlying claim require 

need for expert rebuttal testimony); Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119 

(Tex. 2004) (“Proof of causation of injury often requires expert testimony concerning what the 

attorney should have done under the circumstances” or to explain the causal link.) (quoting 

5 Mallen & Smith § 33.17 at 138–39)). “Causation must be proved, and conjecture, guess, or 

speculation will not suffice as that proof.” Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l 

Dev. & Research Corp., 299 S.W.3d 106, 122 (Tex. 2009). To defeat the summary judgment 

motion, the “expert affidavit must be probative and raise a fact issue.” Swaim, 530 S.W.3d at 679. 

Generally, a plaintiff who fails to produce expert testimony regarding causation will not be 

successful in discharging this burden. Alexander, 146 S.W.3d at 119–20. 
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“Whether a negligent lawyer’s conduct is the cause in fact of the client’s claimed injury 

requires an examination of the hypothetical alternative: What should have happened if the lawyer 

had not been negligent?” Rogers, 518 S.W.3d at 404. As the court explained in Rogers, 

malpractice claims can “involve imprudent attorney actions that materially and unfavorably affect 

the value of the client’s underlying claim or defense” and, therefore, “do not always depend on 

ultimate victories.” Id. Consequently, “the measure of damages [is] ‘the difference between the 

result obtained for the client and the result that would have been obtained with competent 

counsel.’” Id. (citing Elizondo v. Krist, 415 S.W.3d 259, 263 (Tex. 2013)). Here, the issue of 

whether White Rock would have obtained a different result via settlement or what the outcome of 

the unasserted claims might have been is “beyond the ken of most jurors.” Id. White Rock does 

not dispute the necessity of producing expert testimony on causation. 

2. Because West’s Affidavit Was Conclusory, It Was no Evidence of 

Causation

“In order to be competent summary-judgment evidence, an expert’s opinion must have a 

‘demonstrable and reasoned basis on which to evaluate his opinion.’” Rogers, 518 S.W.3d at 405 

(quoting Elizondo, 415 S.W.3d at 265). “This basis must come in the form of an answer to the 

question ‘Why’: Why did the expert reach that particular opinion?” Id. (citing Burrow v. Arce, 

997 S.W.2d 229, 236 (Tex. 1999)). Therefore, an affidavit that does not provide the underlying 

facts to support its conclusion is conclusory. In re Cauley, 437 S.W.3d 650, 656 (Tex. App.—

Tyler 2014, orig. proceeding). Further, “conclusory statements made by an expert witness are 

insufficient to support summary judgment.” Burrow v. Arce, 997 S.W.2d 229, 235 (Tex. 1999) 

(quoting Anderson v. Snider, 808 S.W.2d 54, 55 (Tex. 1991) (per curiam)). This is so because 
19

conclusory affidavits “are not credible, nor susceptible to being readily controverted.” Ryland 

Grp., Inc. v. Hood, 924 S.W.2d 120, 122 (Tex. 1996) (per curiam); see Valerus Compression Servs.

v. Gregg Cty. Appraisal Dist., 457 S.W.3d 520, 530 (Tex. App.—Tyler 2015, no pet.).8 With these 

precepts in mind, we must determine whether White Rock’s response included competent evidence 

sufficient to raise a genuine fact issue on the element of causation, i.e., what would have happened 

in the Palestine lawsuit and on the unasserted malicious prosecution and slander claims with 

competent counsel?

Because the competency of West’s testimony9is central to this appeal, we reproduce the 

substantive paragraphs of his affidavit below:

3. In the above-styled case, I have reviewed Plaintiffs’ Original Petition; 

Defendants’ Answer; Defendants’ . . . No-Evidence Motion for Summary 

Judgment; and Plaintiffs’ Amended Response to Defendants’ No-Evidence 

Motion for Summary Judgment, including the exhibits thereto.

4. My opinions in this affidavit are based on 27 years of legal experience, 

experience with claims and lawsuits involving attorneys and legal 

malpractice, my education, and training.

5. It is my opinion that Defendants Freeman Mills, P.C., Jason R. Mills, Vance 

P. Freeman, and Graham K. Simms (hereinafter collectively “Defendants”) 

did have an attorney-client relationship with both White Rock Explorations, 

Inc. and Richard Clay (hereinafter collectively “Plaintiffs”).

6. As their attorneys, Defendants owed a duty to Plaintiffs. That duty includes 

a fiduciary duty and the duty to act as a reasonably prudent lawyer would 

under the same or similar circumstances.

8Defects in the substance of a summary judgment affidavit may be addressed for the first time on appeal. Am. Idol 

Gen., LP v. Pither Plumbing Co., No. 12-14-00134-CV, 2015 WL 1951579, at *2 (Tex. App.—Tyler, Apr. 30, 2015, 

no pet.) (mem. op.). An affidavit that is conclusory is substantively defective. In re E. Tex. Oilfield Prod. Servs., Inc.,

No. 12-20-00077-CV, 2020 WL 1697428, at *3 (Tex. App.—Tyler Apr. 8, 2020, orig. proceeding) (mem. op.). 

9West, an attorney licensed with the Texas Supreme Court since 1992, testified that he practices general civil litigation 

and has primarily represented parties in commercial and civil litigation matters, including legal malpractice cases. 
20

7. Defendants breached the duties which they owed to Plaintiffs by, among 

other things, those listed in Plaintiffs’ Amended Response to Defendants 

No-Evidence Motion for Summary Judgment, failing to properly pursue the 

Plaintiffs’ claims against Palestine Water Well Services, Inc. and Jere 

Pritchett, failing to preserve the statute of limitations on Richard Clay’s 

claims against Jere Pritchett, and by inaccurately informing Plaintiffs of the 

proper statute of limitations on Plaintiffs’ claims.

8. Defendants’ negligence proximately caused (“but for”) Plaintiffs’ damages 

that they suffered and complain of.

9. Defendants were grossly negligent in their legal representation of Plaintiffs. 

Defendants’ actions and inactions involved an extreme degree of risk and 

conscious indifference to the rights of Plaintiffs.

10. Defendants also made negligent misrepresentations in their legal 

representation of Plaintiffs. Defendants’ representations were false and 

offered as business guidance to Plaintiffs. Defendants did not exercise 

reasonable care or competence in communication [sic] the information to 

Plaintiffs. Plaintiffs, especially Richard Clay, justifiably relied on 

Defendants’ misrepresentations. Plaintiffs suffered pecuniary loss by 

justifiably relying on Defendants’ misrepresentations. Defendants’ 

misrepresentations were the proximate cause of Plaintiffs’ damages.

West’s testimony includes three statements regarding causation: (1) “Defendant’s 

negligence proximately caused (“but for”) Plaintiffs’ damages that they suffered and complain of,” 

(2) “Plaintiffs suffered pecuniary loss by justifiably relying on Defendants’ misrepresentations,” 

and, (3) “Defendants’ misrepresentations were the proximate cause of Plaintiffs’ damages.” 

Freeman Mills contends that these statements are conclusory because they do not explain 

the basis of West’s opinion that Freeman Mills’s actions proximately caused damage to White 

Rock or Clay. But White Rock points to West’s statement that his opinions were made after 

reviewing White Rock’s original petition, Freeman Mills’s answer, Freeman Mills’s motion for 

summary judgment, and each of White Rock’s responses to the summary judgment motion, 
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including all attached exhibits. White Rock points out that these exhibits—as detailed above—

include pertinent factual information on each of the elements of the underlying claims and 

concludes that, when this information is accounted for, West’s affidavit is not conclusory. We 

disagree.

The Texas Supreme Court disapproved of this reasoning in Burrow, a legal malpractice 

case stemming from the representation of plaintiffs in a class-action lawsuit that ended in 

settlement. Burrow, 997 S.W.2d at 235–36. The defendants’ expert submitted an affidavit which 

stated that he had reviewed all the relevant facts and concluded that the settlements were fair and 

reasonable. Id. Although the court recognized that the attorney’s training and experience qualified 

him to offer opinions on the fairness of the settlements, he was not permitted to simply say, “Take 

my word for it, I know: the settlements were fair and reasonable.” Id. at 236. Instead, the opinions 

required a reasoned basis. The affidavit, said the court, was “nothing more than a sworn denial of 

plaintiff’s claims.” Id. at 235.

Likewise, West’s affidavit does not explain why, in the absence of negligence, a better 

settlement would have been achieved in the underlying lawsuit, why White Rock would have 

prevailed in the underlying lawsuit, or what the outcome of Clay’s personal claims would have 

been in the absence of negligence. West’s affidavit does not answer the question of what should 

have happened in the Palestine lawsuit and on the unasserted malicious prosecution and slander 

claims in the absence of negligence. See Rogers, 518 S.W.3d at 404. Thus, these statements are 

conclusory. Id. at 405; Jelinek v. Casas, 328 S.W.3d 526, 536 (Tex. 2010) (“It is not enough for 

an expert simply to opine that the defendant’s [wrongful act] caused the plaintiff’s injury.”). 
22

Because these statements are conclusory, they are no evidence of causation. See Burrow, 997 

S.W.2d at 235; Valerus Compression Servs., 457 S.W.3d at 530.

In the absence of expert testimony on the causation element of White Rock’s negligence 

and negligent misrepresentation claims, summary judgment was proper.10

IV. Conclusion

We affirm the trial court’s no-evidence summary judgment. 

Scott E. Stevens

Justice

Date Submitted: July 3, 2020

Date Decided: August 5, 2020

10Because we conclude that White Rock’s summary judgment response did not provide expert testimony on the 

element of causation on its negligence and negligent misrepresentation claims, we need not address the issues of 

whether the summary judgment response raised a fact issue on the elements of duty and breach of duty. Likewise, we 

need not address Freeman Mills’s claim that White Rock’s brief did not adequately address the issue of whether 

hypothetical damages flowing from the “case within a case” were collectible. This is part and parcel of the causation 

element.