Texas Causes of Action & Affirmative Defenses

Texas Causes of Action & Affirmative Defenses

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Tuesday, April 21, 2015

Suit-within-Suit Requirement in Legal Malpractice Case (2015)


To establish causation 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.); see MND Drilling Corp. v. Lloyd, 866 S.W.2d 29, 31-32 (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 and that the suit would have been successful but for the attorney's negligence).

This burden is often referred to as the "suit within a suit" requirement. Greathouse v. McConnell, 982 S.W.2d 165, 173 (Tex. App.-Houston [1st Dist.] 1998, pet. denied).

SOURCE: DALLAS COURT OF APPEALS - No. 05-13-00541-CV - 1/7/2015