                                 COURT OF APPEALS
                              EIGHTH DISTRICT OF TEXAS
                                   EL PASO, TEXAS


                                                 §
 MARIA SALDANA-FOUNTAIN,                                      No. 08-12-00322-CV
                                                 §
                     Appellant,                                 Appeal from the
                                                 §
 v.                                                           384th District Court
                                                 §
 CHAVEZ LAW FIRM, ENRIQUE                                   of El Paso County, Texas
 CHAVEZ, JR., AND CHAVEZ LAW,                    §
 P.C.,                                                         (TC# 2011-2939)
                                                 §
                     Appellees.
                                        OPINION

       In this case, we must determine whether a legal malpractice claimant who alleges her

attorney failed to file an employment discrimination lawsuit within the statute of limitations

period can survive summary judgment absent expert testimony speaking to the viability of her

original underlying claim. We hold she cannot.

                                      BACKGROUND

                                       Factual History

       This case arises out of an underlying racial discrimination claim pro se Appellant Maria

Saldana-Fountain wished to prosecute against her former employer, William Beaumont Army
Medical Center (“the Hospital”).1 Appellant alleged that she hired an attorney to help her file a

complaint with the Equal Employment Opportunity Commission (“EEOC”). While her EEOC

complaint was pending, the attorney died. The EEOC subsequently ended its investigation and

issued her a right-to-sue letter. Appellant then sought out the legal services of Appellees Enrique

Chavez, Jr., the Chavez Law Firm, and Chavez Law, P.C. (individually and collectively

“Chavez”) to proceed with a lawsuit against the Hospital. Neither side disputes that the statute

of limitations for Appellant’s federal discrimination claims expired on January 3, 2011. The

evidence is also undisputed that on November 23, 2010, Appellant approached Chavez about

filing an employment discrimination lawsuit against the Hospital in federal court.                             What

happened following this meeting is in dispute.

         Appellant alleged she entered into a legal services contract with Chavez on November 23.

Appellant further alleged that when she contacted Chavez on January 3, 2011, the day the statute

of limitation expired, his employees assured her the case had been filed. It is undisputed that

Chavez never filed Appellant’s case in federal court. Chavez contended that a letter in the

summary judgment record dated November 24, 2010, the day after the initial consultation, shows

that he never formed an attorney-client relationship with Appellant. The letter states that Chavez

declined to take the case and that Appellant should consult with other attorneys if she wished to

pursue her claim. Appellant claims this letter was backdated and that she actually received the

letter on March 24, 2011, following the expiration of the statute of limitations.

                                               Procedural History


1
  In her brief, Appellant made numerous factual allegations about matters that do not appear in the record and
attempted to present documents to this Court which were not presented to the trial court below. Chavez moved to
strike large parts of Appellant’s brief and an attached appendix on this basis. In deciding this appeal, we reviewed
only that evidence which properly appeared in the record. As such, we deny Chavez’s motion to strike as moot.
Appellant’s motion in opposition to Chavez’s motion to strike is also denied as moot.


                                                          2
         Prior to the deadline set by the agreed discovery order, Appellant did not provide any

expert affidavits in support of her legal malpractice claim or her employment discrimination

claim. Chavez filed a hybrid motion for summary judgment on two grounds. First, Chavez

contended that Appellant failed to provide any expert evidence on each element of her legal

malpractice and breach of fiduciary duty claims. Second, Chavez alternatively argued that he

prevailed under the traditional standard because Appellant failed to raise material fact issues on

those same elements through the use of expert testimony. The trial court granted Chavez’s

motion without specifying the grounds underpinning its judgment.

         This appeal followed.

                                                 DISCUSSION

         The ultimate question presented here is whether Appellant can maintain her legal

malpractice suit against Chavez absent expert testimony. Appellant lodges two multifarious

complaints in her brief. We begin by addressing Issue Two, in which Appellant raises numerous

objections to the trial court’s continuance and discovery rulings.2 Challenges to those rulings are

outside the scope of this appeal, which deals only with the trial court’s ruling on summary

judgment disposing of all claims. See Capitol Indem. Corp. v. Kirby Rest. Equip. & Chem.

Supply Co., Inc., 170 S.W.3d 144, 146 (Tex.App.--San Antonio 2005, pet. denied)(scope of

summary judgment review limited to issues presented in written motion).                          Further, we are

without jurisdiction to entertain interlocutory appeals of the trial court’s discovery rulings absent

statutory authorization.         See TEX.CIV.PRAC. & REM.CODE ANN. § 51.014 (West Supp.

2014)(interlocutory appeal statute). Issue Two is overruled.

2
 Appellant also purports to raise constitutional arguments in Issue Two, and frames Sub-Issues A and C in terms of
“due process.” However, our review of her brief shows that Appellant spends those sub-issues reiterating the
summary judgment points she makes in Issue One. As such, we read these sub-issues as subsumed by Issue One
and decline to address them separately, since duplicative discussion of these points is unnecessary to the resolution
of this appeal. See TEX.R.APP.P. 47.1.

                                                         3
       We next turn to Appellant’s remaining point. In Issue One, Appellant contends that

under the “common knowledge doctrine,” she was not required to submit expert testimony

because a layperson can understand that failing to file suit within the statute of limitations would

constitute negligence. Assuming without deciding that expert testimony was unnecessary to

establish the standard of care because “[m]issing the statute of limitations is a classic example of

negligence that any layperson can understand[,]” James V. Mazuca & Assocs. v. Schumann, 82

S.W.3d 90, 97 (Tex.App.--San Antonio 2002, pet. denied), we nevertheless conclude that the law

required Appellant to provide expert testimony on the viability of her employment claim—her

“case within a case”—in order to establish causation, i.e., that but for her attorney’s negligence,

she would be entitled to judgment.

                            Standard of Review and Applicable Law

       We review summary judgment grants de novo. Merriman v. XTO Energy, Inc., 407

S.W.3d 244, 248 (Tex. 2013). When a party moves for hybrid summary judgment, we generally

address the no-evidence grounds first before turning, if necessary, to the traditional grounds. Id.

       “A no-evidence summary judgment motion under Rule 166a(i) is essentially a motion for

a pretrial directed verdict; it requires the nonmoving party to present evidence raising a genuine

issue of material fact supporting each element contested in the motion.” Timpte Indus., Inc. v.

Gish, 286 S.W.3d 306, 310 (Tex. 2009). “When reviewing a no-evidence summary judgment,

we review the evidence presented by the motion and response in the light most favorable to the

party against whom the summary judgment was rendered, crediting evidence favorable to that

party if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors

could not.”    Id. [Internal quotations marks omitted].      General or conclusory no-evidence

challenges are prohibited; a movant must identify specific elements on which the non-movant



                                                 4
failed to provide evidence. Id. On traditional summary judgment review, we determine whether

the movant has established that no genuine issue of material fact exists and that he is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c). If so, the movant is entitled to summary

judgment. Id.

       The fundamental elements of a legal malpractice claim are no different than those of a

standard negligence claim. A plaintiff must establish that “the defendant owed the plaintiff a

duty, the defendant breached that duty, the breach proximately caused the plaintiff’s injury, and

the plaintiff suffered damages.” Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l Dev. &

Research Corp., 299 S.W.3d 106, 112 (Tex. 2009).            “Breach 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. Thus, even when negligence is admitted, causation is not

presumed.” Thompson & Knight, L.L.P. v. Patriot Exploration, L.L.C., No. 05-13-00104-CV,

2014 WL 4072120, at *4 (Tex.App.--Dallas Aug. 19, 2014, no pet.). To establish proximate

cause where a legal malpractice claim arises from a prior suit, the plaintiff must establish that but

for her attorney’s negligence, “she would be entitled to judgment.” Cunningham v. Hughes &

Luce, L.L.P., 312 S.W.3d 62, 67 (Tex.App.--El Paso 2010, no pet.); MND Drilling Corp. v.

Lloyd, 866 S.W.2d 29, 31 (Tex.App.--Houston [14th Dist.] 1987, no writ)(attorney’s failure to

respond to summary judgment motion alone not enough to support legal malpractice claim;

plaintiff must also show suit would have survived summary judgment but for the attorney’s

negligence). This burden is often referred to as the “suit within a suit” requirement. See

Greathouse v. McConnell, 982 S.W.2d 165, 173 (Tex.App.--Houston [1st Dist.] 1998, pet.

denied).

                                             Analysis



                                                 5
       When the trial court does not specify upon which grounds its judgment rests, we may

uphold the judgment on any correct legal theory passed on below. Provident Life & Accident

Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003). Appellant maintains that she did not need to

provide expert testimony because missing the statute of limitations is negligence that is obvious

to even laypeople unversed in law. Language out of the San Antonio Court of Appeals appears

to support her contention. See Mazuca, 82 S.W.3d at 97 (calling an attorney’s failure to file a

case within the statute of limitations period a “classic example of negligence” that would not

require expert testimony).    We need not decide whether Appellant’s legal assessment on

negligence is correct if she failed to bring forth any competent evidence on the issue of

causation. See Haddy v. Caldwell, 403 S.W.3d 544, 546-47 (Tex.App.--El Paso 2013, pet.

denied). Here, we find no evidence to support the merits of her “suit within a suit.”

       We note that expert testimony does not appear to be an absolute prerequisite to

establishing causation in a legal malpractice suit. In discussing causation, the Texas Supreme

Court in Alexander v. Turtur & Assocs., Inc., stated that “[i]n some cases the client’s testimony

may provide this link, but in others the connection may be beyond the jury’s common

understanding and require expert testimony.” 146 S.W.3d 113, 119 (Tex. 2004). Nevertheless,

if this case had gone to trial, the jury would have had no way of determining whether Appellant’s

underlying employment discrimination suit was meritorious absent expert testimony, since

federal employment law is not common knowledge among most jurors. As such, Appellant’s

failure to designate any expert witnesses who could speak to the merits of her underlying claim

by the discovery deadline is fatal to her claim. No competent record evidence exists to raise a

genuine issue of material fact on causation, and rendition of summary judgment on no-evidence

grounds was proper.



                                                 6
                           “Fracturing” A Legal Malpractice Claim?

       Appellant also maintains that she should have survived summary judgment because she

did not need to provide expert testimony in support of her second claim against Chavez: breach

of fiduciary duty.    Chavez counters that Appellant’s breach of fiduciary duty claim was

improperly “fractured” from the legal malpractice claim, and that she did not in fact present a

separate cause of action for fiduciary breach, but rather only raised additional negligence

allegations subsumed within her legal malpractice cause of action. As such, her “claim” for

breach of fiduciary duty rises and falls in tandem with her malpractice claim. We agree.

       A plaintiff is not limited to suing an attorney only for professional negligence. Deutsch

v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 189 (Tex.App.--Houston [14th Dist.] 2002,

no pet.). However, “[t]he rule against dividing or fracturing a negligence claim prevents legal-

malpractice plaintiffs from opportunistically transforming a claim that sounds only in negligence

into other claims.” Id. We look to the substance of the claim and not its title in determining

whether a plaintiff has presented a separate claim, or merely recast and repeated a negligence

claim. Id. “If the gist of a client’s complaint is that the attorney did not exercise that degree of

care, skill, or diligence as attorneys of ordinary skill and knowledge commonly possess, then that

complaint should be pursued as a negligence claim, rather than some other claim.” Id. “If,

however, the client’s complaint is more appropriately classified as another claim, for example,

fraud, DTPA, breach of fiduciary duty, or breach of contract, then the client can assert a claim

other than negligence.” Id.

       Here, the substance of Appellant’s allegations in her live pleading make clear that she

sought to hold Chavez liable for professional negligence. She alleged six specific acts as proof

both of Chavez’s negligence and his breach of fiduciary duty. She also never specifically alleges



                                                 7
how Chavez breached his fiduciary duty to her beyond performing negligently. The “gist” of her

breach of fiduciary duty claim is that Chavez failed to use the ordinary care and skill required of

an attorney. The substance of that allegation presents nothing beyond a standard professional

negligence claim, the merits of which we dealt with above. No-evidence summary judgment was

proper.

          Issue One is overruled. The trial court’s judgment is affirmed.


                                               YVONNE T. RODRIGUEZ, Justice
November 25, 2014

Before McClure, C.J., Rivera, and Rodriguez, JJ.
Rivera, J., not participating




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