Green v. McKay
2012 Tex. App. LEXIS 6397
| Tex. App. | 2012Background
- Green and Marilyn Green sued attorney Joe McKay for legal malpractice after the City of Dallas obtained a default judgment in an underlying code-violations suit.”
- McKay moved for traditional and no-evidence summary judgment on causation, damages, breach, gross negligence, and malice; the court granted summary judgment against appellants on causation and related claims.
- Underlying facts: Hill and Edwards bought properties from the Greens; Hill later filed Chapter 13, surrendering the properties to Greens; the City later sued for code violations naming Greens as owners; Greens did not answer and default judgment was entered against them.
- Vendor’s lien mechanics: under the deed of trust and warranty deed, Greens retained legal title (vendor’s lien) while Hill held equitable title, with bankruptcy plan surrender affecting title transfer dynamics.
- Court’s analysis treated causation as the “suit-within-a-suit” issue, requiring a meritorious defense in the underlying suit; the Greens’ expert did not establish that but-for causation could have changed the outcome; thus summary judgment on causation was proper.
- The court affirmatively noted that a motion for new trial would not have salvaged causation given the lack of a meritorious defense, and it did not reach some ancillary asserted issues.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation in fact (merits of underlying suit) | Green | McKay | No genuine issue; no meritorious defense established. |
| Expert causation evidence | Green | McKay | Expert failed to show but-for causation; summary judgment proper. |
| Unpleaded grounds and summary judgment evidence | Green | McKay | Overruled; grounds upheld. |
| Damages and ability to present damage evidence | Green | McKay | No reversible error; damages not shown. |
| Knowledge of underlying litigation for gross negligence/malice | Green | McKay | Material facts not in dispute; no basis to deny summary judgment. |
Key Cases Cited
- Swinehart v. Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., 48 S.W.3d 865 (Tex.App.-Houston [14th Dist.] 2001) (causation and expert testimony in legal malpractice)
- Heath v. Herron, 732 S.W.2d 748 (Tex.App.-Houston [14th Dist.] 1987) (suit-within-a-suit causation concept)
- Turtur & Assocs., Inc. v. 146 S.W.3d 117, 146 S.W.3d 117 (Tex. 2004) (expert causation requirement in legal malpractice)
- Greathouse v. McConnell, 982 S.W.2d 165 (Tex.App.-Houston [1st Dist.] 1998) (suit-within-a-suit causation and burden concepts)
- Flag-Redfern Oil v. Humble Exploration Co., 744 S.W.2d 6 (Tex.1987) (vendor’s lien, title and ownership concepts in real property)