Opinion
No. 01-02-00328-CV.
Opinion issued February 20, 2003.
Appeal from the 165th District Court, Harris County, Texas, Trial Court Cause No. 2000-27212.
Panel consists of Chief Justice Radack and Justices Nuchia and Hanks.
MEMORANDUM OPINION
Appellants, Shannon Taylor and William H. Taylor, Jr., sued appellees, Gordon E. Davenport, Jr., Charles M. Jordan, and I. Nelson Heggen, for legal malpractice after the Fourteenth Court of Appeals affirmed the summary judgment granted in favor of the defendants in the Taylors' underlying medical malpractice lawsuit. The trial court granted appellees' motions for summary judgment. We affirm.
BACKGROUND
In December 1994, Davenport, on behalf of the Taylors, sued Shannon Taylor's dentist and the manufacturer of dental implants for injuries allegedly resulting from an implant to treat Shannon Taylor for temporomandibular joint disorder. The record reflects that, on September 16, 1996, Davenport timely filed a designation of two expert witnesses. In January 1997, the dentist filed a motion for summary judgment, and Davenport filed a response. On February 27, 1997, the trial court granted Davenport's motion to withdraw as counsel for Taylor. The motion to withdraw, which was served on the Taylors, stated that the hearing on the motion for summary judgment would be on May 16, 1997.
In March 1997, the manufacturer filed a motion for summary judgment, and the Taylors filed a pro se response on May 8, 1997. The Taylors retained Jordan and Heggen to represent them in the case, and Jordan and Heggen appeared at the May 16 hearing on the motions for summary judgment. The trial court granted the Taylors 30 days in which to designate an expert and respond to the motions. No expert was designated within that time period, and, at a hearing on July 15, 1997, the trial court granted both defendants' motions for summary judgment. Jordan and Heggen notified the Taylors of the court's ruling and filed a motion to withdraw, which was granted by the trial court without objection by the Taylors. The Taylors filed a pro se motion for new trial, which was overruled by the trial court. On appeal, the Fourteenth Court of Appeals affirmed the judgment. The Taylors then filed this lawsuit.
Appellees each filed a motion for summary judgment that included, as a ground for summary judgment, the assertion that there was no evidence to support the element of causation in the Taylors' cause of action. The Taylors' response stated, "The affidavits attached to this Response raise material fact issues upon the elements of Plaintiffs' causes of action, specifically breach of fiduciary duties, proximate cause and damages." The affidavits of Shannon Taylor and William Ryan, the Taylors' appellate attorney in the underlying case, were attached as exhibits to the response. The trial court denied the motions for summary judgment.
Almost a year later, Davenport filed a second motion for summary judgment. Jordan and Heggen filed motions adopting this second motion. The Taylors' response again asserted that the attached affidavits of Shannon Taylor and Ryan and the attached deposition testimony of Shannon Taylor raised material fact issues on causation. The trial court denied this second motion for summary judgment. Appellees then took Ryan's sworn statement in which he recanted his affidavit.
Appellees filed a joint motion to reconsider their first no-evidence motions for summary judgment. The record does not contain a response to this motion by the Taylors. The trial court granted the no-evidence motions, and the Taylors bring this appeal.
DISCUSSION
On appeal, the Taylors contend that (1) the affidavits of Shannon Taylor and Ryan were evidence that an act, omission, and breach of fiduciary duty was a proximate cause of damages and (2) subsequent sworn statements of the Taylors' designated experts were insufficient to defeat appellants' evidence establishing an issue of material fact. We follow the usual standard of review for a no-evidence summary judgment. Flameout Design Fabrication, Inc. v. Pennzoil Caspian Corp., 994 S.W.2d 830, 834 (Tex. App.-Houston [1st Dist.] 1999, no pet.).
In a professional malpractice case, both the breach of the standard of care and proximate cause must be proven by expert testimony. Onwuteaka v. Gill, 908 S.W.2d 276, 281 (Tex. App.-Houston [1st Dist.] 1995, no writ). In the present case, the no-evidence challenge was to proximate cause. Neither Shannon Taylor nor Ryan was qualified as an expert. Therefore, their affidavits were not competent summary judgment evidence on the issue of causation. Accordingly, we overrule the Taylors' first issue and need not reach their second issue.
We affirm the judgment.