In The
Court of Appeals
Ninth District of Texas at Beaumont
NO. 09-26-00108-CV
ERIC SPRINGSTUN, Appellant
V.
BRADFORD ABRAMS, Appellee
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 24-12-20193
MEMORANDUM OPINION
Eric Springstun (“Springstun,” “Plaintiff,” or “Appellant”) appeals from the
trial court’s final judgment in favor of Bradford Abrams (“Abrams” or “Defendant”)
and dismissing Springstun’s claims against Abrams with prejudice.
Background
According to Springstun’s Second Amended Petition, the live petition at the
time the trial court granted Abrams’s no-evidence motion for summary judgment,
1
Abrams is an attorney who represented Springstun as his legal counsel in a civil suit
styled The Wharf at Clear Lake Slip Maintenance Association, Inc. v. Springstun,
Cause No. 23-07-10483-CV, in the 284th District Court of Montgomery County,
Texas (the “underlying litigation”). In the underlying litigation, Springstun initially
appeared pro se and filed his own pleadings and counterclaims. Springstun later
retained Abrams to be his attorney and Abrams then appeared as Plaintiff’s attorney
of record. After appearing, Abrams filed a motion to withdraw but remained on the
docket as counsel until the trial court finally granted the motion to withdraw five
months after the motion was filed. The underlying litigation ended in a judgment in
favor of The Wharf at Clear Lake.1
Springstun filed this case against Abrams, asserting claims for legal
malpractice, breach of fiduciary duty, professional negligence, intentional infliction
of emotional distress, and violations of the Texas Deceptive Trade Practices Act
(“DTPA”). Springstun alleged in his Second Amended Petition that
the Court [in the underlying action] continued to treat [Springstun] as
represented by counsel and refused to hear [Springstun]’s pro se
motions and filings because “you have an attorney.” During this same
general time frame, Wharf pursued dispositive motions and attorney’s
fees against [Springstun] in the Underlying Lawsuit. [Springstun]
contends that [Abrams] failed to take necessary actions to protect
[Springstun]’s interests during this critical period, disclosed privileged
1
Springstun filed an appeal in the underlying litigation, and this Court affirmed the trial court’s judgment. See Springstun v. The Wharf at Clear Lake Slip Maint. Ass’n, Inc., No. 09-24-00270-CV, 2025 Tex. App. LEXIS 6848 (Tex. App.— Beaumont Aug. 28, 2025, pet. denied).
2
communications to the Court, and left [Springstun] effectively
unrepresented while still listed as counsel of record, resulting in adverse
rulings and a fee judgment against [Springstun].
Abrams filed an answer, generally denying Springstun’s allegations and
pleading affirmative defenses, including that Springstun improperly fractured a
claim for legal malpractice.
On June 13, 2025, the trial court entered a Docket Control Order setting the
trial for March 16, 2026, and, among other things, setting the deadline for expert
witness designations for parties seeking affirmative relief for 150 days before trial
(October 17, 2025). The Docket Control Order provided that, “Experts not listed in
compliance with [the Expert Witness Designation] paragraph will not be permitted
to testify absent a showing of an exception under Rule 193.6.”
Abrams filed Defendant’s Motion for Partial Dismissal asking the court to
dismiss Springstun’s claims for negligence, breach of fiduciary duty, violations of
the DTPA, and intentional infliction of emotional distress under Rule 91a because
the anti-fracturing rule bars Springstun from fracturing his legal malpractice claim
into five different claims, and the only claim brought by Springstun permitted by
Texas law is a legal malpractice claim. Springstun filed a Response in Opposition to
Defendant’s Rule 91a Motion and a Supplemental Objection to Defendant’s Motion.
On July 27, 2025, the trial court granted Abrams’s Motion for Partial Dismissal,
dismissing Springstun’s negligence, breach of fiduciary duty, intentional infliction
3
of emotional distress, and DTPA claims against Abrams with prejudice, leaving only
the legal malpractice claim.
On November 10, 2025, Springstun filed a Motion for Clarification of
Scheduling Order and, in the Alternative, for Leave to Designate Limited-Scope
Expert (Affidavit-Only) (“Motion for Clarification”). In the motion, Springstun
requests a clarification of the trial court’s Docket Control Order “as it relates to
expert designations[,]” and “to the extent necessary, . . . leave to designate one
limited-scope expert (affidavit-only) on the attorney standard of care and causation.”
Springstun requests that he be allowed to “designate a limited-scope expert on
standard of care and causation consistent with TRCP 191.1 and 195.5, or, in the
alternative, leave under TRCP 193.6.”
On November 14, 2025, Abrams filed a no-evidence motion for summary
judgment as to Springstun’s legal malpractice claim and Abrams’s expert
designation. In his motion for summary judgment, Abrams argues that for
Springstun’s legal malpractice claim Appellant: has no evidence of a breach of any
duty by Abrams in handling the underlying litigation, has failed to produce expert
testimony regarding causation and has no evidence that any alleged breach by
Abrams proximately caused any damage to Appellant, and has no evidence of
damages that would have been recoverable in the underlying lawsuit. Attached to
Abrams’s expert designation is Abrams’s own affidavit.
4
On November 24, 2025, Springstun filed a notice designating Akiko Endo
as a testifying expert on attorney professional responsibility and the
standard of care for attorneys handling civil litigation matters like the
representation at issue in this legal malpractice case. She is expected to
testify about the applicable standard of care, how Defendant’s conduct
fell below that standard, and how those failures caused harm to
Plaintiff, including financial and procedural harm.
Springstun attached an Expert Declaration of Akiko Endo dated November 24, 2025.
On December 2, 2025, Springstun filed Plaintiff’s Emergency Verified
Motion for Continuance of Trial Setting and Deadline to Respond to Defendant’s
No-Evidence Motion for Summary Judgment and Request for ADA
Accommodations (“Emergency Verified Motion for Continuance”). Springstun
alleges that, “Because of serious ongoing mental-health issues, including a recent
emergency-room visit related to stress from multiple overlapping cases, he cannot
meaningfully prepare a response to [Abrams’s] No-Evidence MSJ or prepare for trial
by the current deadlines.” Springstun requested that the trial court extend his
deadline to respond to the motion for summary judgment for at least 90 days and
continue the March 16, 2026 trial setting by 90 to 120 days. Springstun also asked
that, due to his “documented mental-health limitations and recent emergency-room
care[,]” the trial court grant him reasonable accommodations under Title II of the
Americans with Disabilities Act such as scheduling accommodations, permission for
remote appearance when appropriate, and shorter hearings with breaks as needed. In
support, Springstun attached as exhibits: (1) a November 30, 2025 “After Visit
5
Summary” for Springstun’s visit to Memorial Hermann Hospital with the reason for
his visit completely redacted and instructing him to “[r]ead the attached information”
regarding “Chest Pain, Noncardiac[;]” and (2) an almost completely redacted record
for Springstun for Lone Star Family Health Center noting “None recorded[]” as
Springstun’s Chief Complaint and with the “Assessment/Plan” section and
appointment dates completely redacted.
On December 2, 2025, Springstun also filed a Supplement to Motion for
Clarification of Scheduling Order and, in the Alternative, for Leave to Designate
Limited-Scope Expert (“Supplement to Motion for Clarification”), wherein he
notified the trial court that he had now filed a formal expert designation and expert
declaration, and therein he argues that he filed his Motion for Clarification before
Defendant’s No-Evidence Motion for Summary Judgment and had asked in the
motion for clarification and “leave to designate a limited-scope expert on attorney
standard of care and causation.”
On December 3, 2025, Springstun filed Plaintiff’s Expert Witness
Designation and Second Supplemental Disclosures and he designated Akiko Endo
as a testifying expert and Springstun states that a copy of Endo’s expert declaration
as an expert report “has been, or will be, produced and/or filed and is incorporated
by reference as part of these disclosures [and] Plaintiff also intends to produce and/or
attach [Endo’s] current curriculum vitae[.]” Springstun states that
6
[t]o the extent this Expert Witness Designation and Second
Supplemental Disclosures are deemed untimely under the Court’s
Docket Control Order, Plaintiff respectfully requests leave and asks the
Court to find good cause and/or a lack of unfair surprise or prejudice
under Texas Rule of Civil Procedure 193.6. Defendant has long been on
notice that Plaintiff sought to designate a limited expert on attorney
professional responsibility and has now received Akiko Endo’s expert
declaration. Allowing this designation will not unfairly surprise or
prejudice Defendant and will permit the case to be decided on its merits.
On December 3, 2025, Springstun filed Plaintiff’s Motion for Leave to File
Late Response to Defendant’s No-Evidence Motion for Summary Judgment
(“Motion for Leave to File Late Response”) and Plaintiff’s Response to Defendant’s
No-Evidence Motion for Summary Judgment and, in the Alternative, Motion for
Continuance under Tex. R. Civ. P. 166a(g) (“Response”). Springstun requested
leave for the trial court to consider the Response filed fewer than seven days before
the hearing. According to Springstun, the delay in filing the Response was not
intentional or due to conscious indifference, the delay was due to him simultaneously
preparing for settings in this case and a recent medical emergency that required ER
treatment, and consideration of his Response will not unfairly surprise or prejudice
Abrams. In the alternative, Springstun sought a continuance under Rule 166a(g) and
Rule 251 for the trial court to “decide the motion on a complete record, including
Plaintiff’s expert evidence now on file.” In the Response, Springstun argues that he
has presented more than a scintilla of evidence on each challenged element of his
legal malpractice claim. As summary judgment evidence, Springstun attached the
7
following to his Response: Unsworn Declaration of Eric Springstun (Exhibit A);
Judgment and related Orders in the underlying litigation (Exhibit B); Selected
Pleadings and Order in the underlying litigation (Exhibit C); Excerpts from
reporter’s record in the underlying litigation (Exhibit D); Plaintiff’s Motion for
Clarification filed in this case (Exhibit E); Order denying Abrams’s traditional
motion for summary judgment in this case (Exhibit F); and Expert Declaration of
Akiko Endo (Exhibit G). Springstun argues in his Response that the “general rule”
that expert testimony is required on the applicable standard of care and as to
proximate causation in a legal malpractice claim “does not mean that the absence of
a designated expert at an intermediate stage of the case automatically entitles a
defendant to no-evidence summary judgment[,]” especially where the plaintiff’s
allegations include conduct within ordinary jurors’ understanding and where the
plaintiff “has already taken concrete steps to obtain and designate a limited expert
in a controlled, court-approved manner[.]”
On December 4, 2025, Abrams filed Defendant’s Reply to Plaintiff’s
Response to the No Evidence Motion for Summary Judgment (“Reply”). In his
Reply, Abrams states that had Springstun made a reasonable effort to confer
regarding the filing of a Motion to Late File a Response, Abrams’s attorney would
not have opposed a late-filed Response. However, Abrams argues that Springstun
has no evidence of breach and proximate cause because he lacks the required expert
8
testimony, and that Endo’s affidavit may not be relied upon without leave of the trial
court because Springstun did not timely designate Endo as an expert witness and has
not been granted leave for an untimely designation. Abrams argues that, even so,
Endo’s opinions on breach in the affidavit are conclusory and her opinions are not
reliable because she lacks the requisite experience in Texas courts to qualify as an
expert. As for Endo’s opinion on proximate cause, Abrams asserts it presents no
evidence that any alleged breach by Abrams proximately caused any damage to
Springstun. Abrams argues that, as to damages, Springstun failed to create a genuine
issue of material fact and that his “evidence consists of ipse dixit, which is not
enough to defeat Abrams’s no evidence motion for summary judgment.” Abrams
argues that Springstun is not entitled to a continuance because he could have hired
counsel or nonsuited some of his pro se cases. As for Springstun’s alleged health
issues, Abrams asserts that they are not supported by any evidence and do not justify
a continuance because the medical records Springstun filed are so heavily redacted
that they only show he visited the hospital on one day complaining of chest pain
(after his response to the motion for summary judgment was due).
On December 9, 2025, at 2:36 p.m., the trial court signed the following Order
Granting Defendant Bradford Abrams’s Motion for Summary Judgment:
Defendant Bradford Abrams’s Motion for Summary Judgment
(the “Motion”) was submitted to the Court for ruling on December 5,
2025. On December 3, 2025, Plaintiff filed his Motion for Leave to File
Late Response to Defendant’s No-Evidence Motion for Summary
9
Judgment (the “Motion for Leave”). In Defendant Bradford Abrams’s
Reply to Plaintiff’s Response to the No Evidence Motion for Summary
Judgment (the “Reply”), Defendant Abrams indicates that he is not
opposed to the Court granting leave to late file Plaintiff’s Response to
Defendant’s No-Evidence Motion for Summary Judgment and, in the
Alternative, Motion for Continuance Under Tex. R. Civ. P. 166a(g).
The Court having considered the Motion, Plaintiff’s Response to
Defendant’s No-Evidence Motion for Summary Judgment (the
“Response”), the Motion for Leave, and the Reply, is of the opinion
that the Motion for Leave should be and is therefore, GRANTED, and
Defendant’s No-Evidence Motion for Summary Judgment should be
and is therefore, GRANTED. IT IS, THEREFORE,
ORDERED that Plaintiff’s Motion for Leave to File Late
Response to Defendant’s No-Evidence Motion for Summary Judgment
is GRANTED. IT IS
FURTHER ORDERED that Defendant Abrams’s objection to
the affidavit of Akiko Endo as not being timely designated is
SUSTAINED.[fn] Accordingly, the Court did not consider the
Declaration of Akiko Endo in making its ruling. IT IS
FURTHER ORDERED that Defendant Bradford Abrams’s
Motion for Summary Judgment is GRANTED. IT IS
FURTHER ORDERED that Plaintiff Eric Springstun take
nothing on his claims against Defendant Bradford Abrams. This final
judgment disposes of all causes and claims of Plaintiff Eric Springstun
and is subject to appeal.
In the footnote, the trial court noted:
Pursuant to the Court’s Docket Control Order, dated June 13, 2025,
Plaintiff’s expert designation deadline was October 17, 2025. Plaintiff
first filed his expert designation on November 24, 2025. Plaintiff did
not seek leave to late file his expert designation. Accordingly, the
declaration of M[s]. Endo is subject to mandatory exclusion pursuant
to Texas Rule of Civil Procedure 193.6.
On December 10, 2025, Springstun filed Plaintiff’s Notice of Deemed
Admissions, arguing that he served Abrams with Plaintiff’s Supplemental Requests
for Admission on November 9, 2025 via the Texas eFile system and email in
10
accordance with the Texas Rules of Civil Procedure and providing notice that the
matters in Plaintiff’s Supplemental Requests for Admission are deemed admitted
because Abrams failed to serve timely written answers or objections to Plaintiff’s
Supplemental Requests for Admission. Springstun attached as an exhibit the
Certificate of Service reflecting service of Plaintiff’s Supplemental Requests for
Admission on Abrams on November 9, 2025.
On December 12, 2025, Springstun filed Plaintiff’s Motion for New Trial
(and, in the Alternative, Motion to Modify, Correct, or Reform Judgment) (“Motion
for New Trial”), arguing: his Response to Abrams’s summary judgment motion
presented more than a scintilla of evidence of the elements of duty, breach,
proximate cause, and damages; it was an abuse of discretion to refuse leave and to
grant summary judgment based solely on a missed response deadline; his late
response was not the result of any intent to disregard the trial court’s deadlines but
instead “was the result of accident, health-related limitations, and scheduling
difficulties[;]” his response was only “slightly late[]” and “any minimal prejudice
could have been cured by a brief continuance or adjustment to the submission
date[;]” because Springstun provided the trial court documentation of his
“disabilities and limitations,” the trial court was required under Title II of the
Americans with Disabilities Act to give Springstun “reasonable accommodations”
by “making reasonable modifications to . . . rigid scheduling or briefing deadlines,
11
when necessary to avoid discrimination on the basis of disability[;]” by granting
Springstun leave to consider his late-filed response but granting a take-nothing noevidence summary judgment, the trial court “effectively treated the original
technical deadline as more important than the merits of the malpractice claim, the
minimal prejudice to Defendant, and Plaintiff’s disability-related limitations[;]”
Springstun’s late-filed response did not inject new evidence at the last minute and
included materials within Abrams’s knowledge or control and Springstun had filed
a Motion for Clarification and Supplement to Motion for Clarification to request
leave to designate that expert and to make the declaration available to the trial court
in connection with the no-evidence motion; and because Springstun’s expert
designation was only approximately thirty-eight days after the deadline and Abrams
still had four months until trial, the trial court abused its discretion in refusing to
consider Springstun’s expert’s declaration. Springstun argues that a new trial was
warranted and that, at a minimum, the trial court should vacate the no-evidence
summary judgment and grant leave for Springstun’s response and evidence to be
considered as part of the summary judgment record and allow the case to proceed to
trial or be re-briefed on the merits. In his Motion for New Trial, Springstun concedes
that the trial court’s Docket Control Order signed June 13, 2025 required the parties
seeking affirmative relief to designate experts on October 17, 2025, 150 days before
12
the March 16, 2026 trial setting. The Motion for New Trial was overruled by
operation of law. See Tex. R. Civ. P. 329b(c). Springstun timely appealed.
Issues on Appeal
In issue one, Springstun argues the trial court erred in granting Abrams’s noevidence motion for summary judgment “under the then-applicable Texas Rule of
Civil Procedure 166a(i)” because Springstun produced more than a scintilla of
evidence on the challenged elements of breach of duty, proximate cause, and
damages. In issue two, Springstun contends that the trial court abused its discretion
under Texas Rule of Civil Procedure 193.6 by excluding or refusing to consider his
expert designation after Springstun requested clarification, leave, and alternative
continuance, and where the expert declaration directly addressed the challenged
legal-malpractice elements. In his third issue, Springstun argues the trial court
abused its discretion in not granting lesser relief than a no-evidence summary
judgment, such as leave, a continuance, or some other “just order under the thenapplicable Texas Rule of Civil Procedure 166a(f), or reasonable accommodation,
where Appellant sought relief before judgment and attempted to complete expert
designation before trial[.]” In his fourth issue, Springstun argues that the trial court
abused its discretion in failing to give effect to deemed admissions under Texas
Rules of Civil Procedure 198.2 and 198.3, or at minimum by refusing to grant a new
trial or modify the judgment after Springstun showed that the deemed admissions
13
conclusively established facts defeating no-evidence summary judgment. In issue
five, Springstun contends the trial court erred by dismissing Springstun’s “nonmalpractice” claims with prejudice under Texas Rule of Civil Procedure 91a because
those claims were based on independent duties, post-representation conduct, or
conduct outside the legal-malpractice standard.
Analysis
Striking of Springstun’s Expert Witness Declaration
We first address Springstun’s second issue, in which he argues that the trial
court abused its discretion under Texas Rule of Civil Procedure 193.6 by excluding
or refusing to consider his expert declaration after Springstun “requested
clarification, leave, and alternative continuance, and where the expert declaration
directly addressed the challenged legal-malpractice elements[.]” Springstun
contends that the trial court’s exclusion of Endo’s declaration under Rule 193.6 was
harmful because the declaration went directly to the grounds on which the trial court
granted no-evidence summary judgment and that excluding the declaration probably
caused the rendition of an improper judgment.
If a party fails to timely designate a witness, then testimony from that witness
will be excluded unless the trial court determines that the party seeking to introduce
the evidence establishes either (1) there was good cause for the failure; or (2) the
failure to designate the witness will neither unfairly surprise nor unfairly prejudice
14
the other parties. Tex. R. Civ. P. 193.6(a); Fort Brown Villas III Condo. Ass’n v.
Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009). The rule is mandatory, and the only
permissible sanction for a violation—exclusion of the testimony—is automatic,
unless the trial court finds good cause or lack of surprise or prejudice. Alvarado v.
Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992). The burden of establishing good
cause or lack of unfair surprise or unfair prejudice is on the party seeking to call the
witness. Tex. R. Civ. P. 193.6(b); Gillenwater, 285 S.W.3d at 881. A party who
relies on the good-cause exception must make a strict showing. Alvarado, 830
S.W.2d at 915 (interpreting similar predecessor to Rule 193.6). Good cause exists
when circumstances make timely disclosure or designation difficult or impossible.
Id.; Harris Cnty. v. Inter Nos, Ltd., 199 S.W.3d 363, 368 (Tex. App.—Houston [1st
Dist.] 2006, no pet.). Inadvertence of counsel, lack of surprise, and the uniqueness
or importance of the evidence at issue will not support a finding of good cause.
Alvarado, 830 S.W.2d at 915; Inter Nos, Ltd., 199 S.W.3d at 368. As to unfair
surprise and prejudice, the inquiry focuses on whether the particular evidence will
cause unfair surprise or prejudice, not whether the general issue or subject matter to
which the evidence relates will unfairly surprise or prejudice the other parties.
PopCap Games, Inc. v. MumboJumbo, LLC, 350 S.W.3d 699, 718 (Tex. App.—
Dallas 2011, pet. denied); Lopez v. La Madeleine of Tex., Inc., 200 S.W.3d 854, 862-63 (Tex. App.—Dallas 2006, no pet.). “The fact that a party needs an expert to
15
establish its cause of action does not establish that other parties will not be unfairly
surprised by the late designation of an expert.” PopCap Games, 350 S.W.3d at 718
(citing Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 272 (Tex. App.—Austin 2002,
pet. denied)). Nor does offering one’s opponents an opportunity to depose an
untimely designated expert establish that they will not be unfairly surprised or
prejudiced. Ersek, 69 S.W.3d at 272. A trial court’s decision to exclude an expert
who has not been properly designated to testify is reviewed for abuse of discretion.
Gillenwater, 285 S.W.3d at 881. The trial court’s discretion extends to deciding
whether the party has carried its burden to show good cause or lack of unfair surprise
or prejudice. Syrian Am. Oil Corp., S.A. v. Pecten Orient Co., 524 S.W.3d 350, 366
(Tex. App.—Houston [1st Dist.] 2017, no pet.). A finding of good cause or lack of
unfair surprise must be supported by the record. Tex. R. Civ. P. 193.6(b);
Gillenwater, 285 S.W.3d at 881; Alvarado, 830 S.W.2d at 913-14.
The purpose of Rule 193.6(a) is “to require complete responses to discovery
so as to promote responsible assessment of settlement and prevent trial by ambush.”
Alvarado, 830 S.W.2d at 914. Although exclusion of testimony is a harsh
consequence for failure to timely disclose or supplement, the good cause exception
allows the trial court to excuse the failure to comply in “difficult or impossible
circumstances.” Id.; Inter Nos, Ltd., 199 S.W.3d at 368.
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Springstun concedes that his designation of Akiko Endo was untimely, but
Springstun contends that the record shows there was no unfair surprise or unfair
prejudice, and Springstun was pro se during the proceedings, the expert testimony
was central to his case, he sought leave for the untimely designation before judgment
was entered, trial was months away, Abrams would have still had time to depose
Endo, and that less drastic remedies were available. In the trial court’s order granting
summary judgment, the trial court concluded that Endo’s declaration is subject to
mandatory exclusion pursuant to Texas Rule of Civil Procedure 193.6. Under Rule
193.6(a) and (b), Endo’s declaration must be excluded unless the trial court
determines that Springstun has established either (1) there was good cause for the
failure; or (2) the failure to designate the witness will neither unfairly surprise nor
unfairly prejudice the other parties. Tex. R. Civ. P. 193.6(a), (b); Gillenwater, 285
S.W.3d at 881. “The party seeking leave to introduce the evidence from an untimely
identified witness bears the burden of establishing, with support from the record,
good cause or lack of unfair surprise or prejudice to the other party.” Paschal v.
Engle, No. 03-16-00043-CV, 2016 Tex. App. LEXIS 9161, at **6-7 (Tex. App.—
Austin Aug. 23, 2016, no pet.) (mem. op.) (citing Tex. R. Civ. P. 193.6(b)). Even
assuming without deciding that Springstun’s Motion for Clarification, or
Springstun’s Supplement to Motion for Clarification, constitute a motion for leave
17
to allow Springstun’s untimely designation of Endo as an expert witness, 2 we
conclude that the trial court did not abuse its discretion because Springstun failed to
establish with support from the record good cause or a lack of unfair surprise or
prejudice to Abrams. Absent from both Springstun’s Motion for Clarification, and
Springstun’s Supplement to Motion for Clarification, is any assertion by Springstun
that there was good cause for his untimely designation of Endo as an expert witness.3
Springstun mentions in his Supplement to Motion for Clarification that Abrams
“may depose Akiko Endo within a reasonable time before trial if he chooses, thereby
eliminating any claim of surprise or prejudice.” In his reply brief on appeal,
Springstun argues that Abrams has failed to identify unfair surprise or incurable
unfair prejudice. As stated above, offering one’s opponents an opportunity to depose
an untimely designated expert does not establish that they will not be unfairly
surprised or prejudiced. See PopCap Games, 350 S.W.3d at 718; Ersek, 69 S.W.3d
2
Springstun’s Motion for Clarification was filed before Springstun filed his untimely designation of Akiko Endo as an expert witness. Springstun’s Supplement to Motion for Clarification was not filed with the untimely designation but was filed after Abrams filed his No-Evidence Motion for Summary Judgment.
3
As for Springstun waiting until he filed his Motion for New Trial to assert the existence of “good cause” for his untimely designation of Endo as an expert witness, that argument was not timely made in the trial court. See In re Commitment of Marks, 230 S.W.3d 241, 245-46 (Tex. App.—Beaumont 2007, no pet.) (trial court did not abuse its discretion in denying motion for new trial because appellant waited until he filed his motion for new trial to assert the existence of “good cause” under Rule 193.6).
18
at 272. And Abrams did not carry any burden to disprove the exceptions under Rule
193.6(b); instead, it was Springstun’s burden to establish, with support from the
record, good cause or lack of unfair surprise or prejudice to Abrams. See Paschal,
2016 Tex. App. LEXIS 9161, at **6-7 (citing Tex. R. Civ. P. 193.6(b)). As for
Springstun’s suggestion that his being pro-se during the proceedings is a factor to
consider in whether there was good cause for his untimely expert designation, “a pro
se litigant is held to the same standards as licensed attorneys and must comply with
applicable laws and rules of procedure.” See Sneed v. Stamat, No. 09-19-00379-CV,
2021 Tex. App. LEXIS 2155, at *3 (Tex. App.—Beaumont Mar. 18, 2021, no pet.)
(mem. op.) (citing Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex.
1978)).
Springstun filed a designation of Endo as an expert witness more than ten
months after his Second Amended Petition was filed,4 more than a month after the
docket control order’s deadline for designating experts, ten days after being served
with Abrams’s no-evidence motion for summary judgment, and less than four
months before trial. On this record, we cannot say the trial court abused its discretion
4
The appellate record does not include the filing of Springstun’s Original Petition. The earliest pleading Springstun included on appeal in his appendix in lieu of clerk’s record is a document he styled as “Notice of Legal Protections for SelfRepresented Litigants,” which was filed by Springstun on January 2, 2025. Notably, the case was already pending at that time, and the Original Petition was filed prior to that date.
19
in striking the expert designation. See Paschal, 2016 Tex. App. LEXIS 9161, at *7
(trial court did not abuse its discretion in failing to find good cause for failure to
timely designate expert witness when plaintiffs attempted to designate expert
witnesses ten months after suit was filed, four months after the deadline to designate
experts, and a little over a month before trial); Gillenwater, 285 S.W.3d at 882 (trial
court did not abuse its discretion in failing to find good cause and striking untimely
designated expert witness affidavit when plaintiff did not designate its expert until
three days before end of discovery and more than five months after expert
designation deadline); Ersek, 69 S.W.3d at 271 (trial court did not abuse its
discretion in failing to find good cause for failure to designate expert witness when
more than one year had lapsed since suit was filed).
Because there was no exception to Rule 193.6(a)’s exclusionary rule, the trial
court did not abuse its discretion in concluding that Endo’s declaration was subject
to mandatory exclusion pursuant to Rule 193.6(a). See Tex. R. Civ. P. 193.6(a); see
also, e.g., Jafar v. Mohammed, No. 14-14-00512-CV, 2016 Tex. App. LEXIS 3706,
at **7-9 (Tex. App.—Houston [14th Dist.] Apr. 12, 2016, no pet.) (mem. op.) (trial
court correctly granted the appellees’ motion to exclude because the appellants failed
to designate a witness as an expert by the deadline imposed by the docket control
order and failed to present evidence to establish good cause or lack of unfair surprise
or prejudice); Beam v. A.H. Chaney, Inc., 56 S.W.3d 920, 924 (Tex. App.—Fort
20
Worth 2001, pet denied) (concluding the trial court erred by admitting witness’s
testimony because party seeking to introduce testimony failed to adequately identify
witness in discovery responses and made no attempt to establish an exception to
automatic exclusion under Rule 193.6(a)). Additionally, because we have concluded
that the trial court did not abuse its discretion in excluding Endo’s declaration, we
need not address Springstun’s argument that the alleged error was harmful. See Tex.
R. App. P. 47.1. We overrule issue two.
Failure to Give Effect to Alleged Deemed Admissions
In his fourth issue, Springstun argues that the trial court abused its discretion
“by failing to give effect to [Abrams’s] deemed admissions or by refusing to correct
the judgment after they were raised[.]” According to Springstun, Abrams failed to
timely respond to Springstun’s supplemental requests for admissions resulting in
deemed admissions pursuant to Rule 198.2(c) of the Texas Rules of Civil Procedure
on the same issues challenged by Abrams’s no-evidence motion for summary
judgment, and Springstun argues that the trial court erred in failing to find that the
deemed admissions defeated Abrams’s no-evidence motion for summary judgment.
Springstun argues that he raised the deemed admissions when he filed a Notice of
Deemed Admissions and then filed his Motion for New Trial. We note that both of
these filings were made by Springstun after the trial court granted the motion for
summary judgment. He contends that the trial court abused its discretion in failing
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to grant a new trial, and in failing to modify the judgment or “reopen the
judgment[.]” Springstun acknowledges that his Notice of Deemed Admissions was
filed after the summary judgment order, but he contends that because the deemed
admissions were raised while the trial court retrained plenary power, the trial court
retained the authority to vacate, modify, correct, reform, or reconsider the judgment
before its plenary power expired.
Rule 198.1 of the Texas Rules of Civil Procedure entitles a litigant to serve
requests for admissions on another party in a civil action. See Tex. R. Civ. P. 198.1.
If a response to the request is not timely served on the requesting party, the request
is considered admitted without the necessity of a court order. Tex. R. Civ. P.
198.2(c). Springstun argues in his Notice of Deemed Admissions that Abrams failed
to respond to Plaintiff’s Supplemental Requests for Admission that were served on
Abrams on November 9, 2025.
Pursuant to Rule 198.2(a), Abrams had until the end of December 9, 2025, to
timely serve Springstun with a response to the request. See Tex. R. Civ. P. 198.2(a).
That said, the trial court signed its Final Judgment at 2:36 p.m. on December 9, 2025,
before the end of the deadline in question, thereby mooting Abrams’s obligation to
serve a response to Springstun’s supplemental requests for admissions. See generally
Goffney v. O’Quinn, No. 01-02-00192-CV, 2004 Tex. App. LEXIS 9593, at *47
(Tex. App.—Houston [1st Dist.] Oct. 28, 2004, no pet.) (mem. op.) (motion to
22
compel discovery responses became moot once the trial court rendered summary
judgment). We overrule issue four.
The Trial Court’s Granting of Summary Judgment
In his first issue, Springstun argues that the trial court erred by granting
Abrams’s no-evidence motion for summary judgment because Springstun contends
that he produced more than a scintilla of evidence on the challenged elements of
breach of duty, proximate cause, and damages. To prevail on a legal malpractice
claim, a plaintiff must prove: (1) the attorney owed the plaintiff a duty; (2) the
attorney breached that duty; and (3) the breach proximately caused damage to the
plaintiff. Rogers v. Zanetti, 518 S.W.3d 394, 400 (Tex. 2017). We review grants of
summary judgment de novo. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481
(Tex. 2015). We take as true all evidence favorable to the non-movant, indulge every
reasonable inference in favor of the non-movant, and resolve any doubts in the nonmovant’s favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex.
2005). A no-evidence motion for summary judgment is essentially a pretrial motion
for directed verdict, which we review for legal sufficiency. King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 750-51 (Tex. 2003). After there has been adequate time
for discovery, a party may file a motion for summary judgment asserting there is no
evidence of one or more essential elements of a claim or defense on which the other
party bears the burden of proof. See Tex. R. Civ. P. 166a(i). “The motion must state
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the elements as to which there is no evidence.” Id. “Once such a motion is filed, the
burden shifts to the nonmoving party to present evidence raising an issue of material
fact as to the elements specified in the motion.” Mack Trucks, Inc. v. Tamez, 206
S.W.3d 572, 582 (Tex. 2006). A trial court must grant a no-evidence motion for
summary judgment unless the nonmovant produces more than a scintilla of evidence
raising a genuine issue of material fact as to the challenged elements. Tex. R. Civ.
P. 166a(i); Mack Trucks, 206 S.W.3d at 582; Wal-Mart Stores, Inc. v. Rodriguez, 92
S.W.3d 502, 506 (Tex. 2002). If the evidence rises to a level that would allow
reasonable and fair-minded people to differ in their conclusions, then more than a
scintilla of probative evidence exists. King Ranch, 118 S.W.3d at 751. “‘The
evidence does not create an issue of material fact if it is ‘so weak as to do no more
than create a mere surmise or suspicion’ that the fact exists.’” First United
Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017)
(quoting Kia Motors Corp. v. Ruiz, 432 S.W.3d 865, 875 (Tex. 2014)).
We have already determined that the trial court did not abuse its discretion in
excluding the declaration of Endo, Springstun’s expert witness. Without this
evidence, Springstun cannot defeat Abrams’s no-evidence summary judgment on
Springstun’s legal malpractice claim. See In re Blackstone Claim Servs., Inc., No.
09-25-00185-CV, 2026 Tex. App. LEXIS 6425, at *19 (Tex. App.—Beaumont July
9, 2026, orig. proceeding) (mem. op.) (a legal malpractice claim in Texas ordinarily
24
requires expert testimony of an attorney to establish the standard of care and
causation) (citing Alexander v. Turtur & Assocs., Inc., 146 S.W.3d 113, 119-20 (Tex.
2004); Hall v. Rutherford, 911 S.W.2d 422, 424 (Tex. App.—San Antonio 1995,
writ denied)); Childs v. Crutchfield, Decordova & Chauveaux, P.C., No. 09-07-065-CV, 2008 Tex. App. LEXIS 2540, at *18 (Tex. App.—Beaumont April 10, 2008,
pet. denied) (mem. op.) (when a legal malpractice claim arises from prior litigation,
a plaintiff must prove that, but for the attorney’s breach of duty, the plaintiff would
have prevailed in the underlying case; the wisdom of tactical decisions made during
litigation are generally matters for which expert testimony is required to supply the
causal link); see also McInnis v. Mallia, 261 S.W.3d 197, 201 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (In a legal malpractice case in Texas, a plaintiff is required
to present expert testimony regarding the standard of skill and care ordinarily
exercised by an attorney.); Ersek, 69 S.W.3d at 271 (same). We conclude that the
trial court did not err in granting Abrams’s no-evidence motion for summary
judgment on Springstun’s legal malpractice claim. We overrule issue one.
The Trial Court’s Refusal to Grant Lesser Relief
Before Entering Summary Judgment
In his third issue, Springstun argues that the trial court abused its discretion in
granting Abrams’s no-evidence motion for summary judgment “in light of
[Springstun]’s pending requests for lesser relief, the central importance of the
excluded expert evidence, and the case-ending effect of the ruling.” Springstun
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maintains in his appellate brief that he asked, as alternative relief, that he be allowed
leave to file late summary-judgment materials based on the record’s showing of good
cause and no undue prejudice, and that the then-applicable Texas Rule of Civil
Procedure 166a(f) authorized a continuance, and that the trial court should have
considered his request for medical and reasonable accommodation. Springstun’s
Emergency Verified Motion for Continuance of Trial Setting and Deadline to
Respond to Defendant’s No-Evidence Motion for Summary Judgment and Request
for ADA Accommodations was filed on December 2, 2025, and he stated in that
pleading that he needed an extension of time to respond to the motion for summary
judgment “[b]ecause of serious ongoing mental-health issues, including a recent
emergency-room visit related to stress from multiple overlapping cases[.]” On
appeal Springstun again argues that his medical and accommodation concerns
should have been considered by the trial court in deciding whether to “grant
reasonable flexibility, continue the submission, or allow supplementation instead of
entering summary judgment.” Springstun alleges that the trial court’s refusal to grant
lesser relief was harmful because it probably caused the rendition of an improper
judgment.
We review the trial court’s denial of a motion for continuance for an abuse of
discretion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). In deciding whether
a trial court abused its discretion by denying a motion for continuance, we examine
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various factors such as the length of time the case and motion for summary judgment
have been on file, the materiality and purpose of any discovery that the party is
seeking, and whether the party seeking the continuance has exercised due diligence.
See Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004); Cypress
Creek EMS v. Dolcefino, 548 S.W.3d 673, 687 (Tex. App.—Houston [1st Dist.]
2018, pet. denied); Cooper v. Circle Ten Council Boy Scouts of Am., 254 S.W.3d
689, 696 (Tex. App.—Dallas 2008, no pet.); see also Mitchell v. City of Dallas, No.
05-18-01208-CV, 2019 Tex. App. LEXIS 10090, at **5-6 (Tex. App—Dallas Nov.
20, 2019, no pet.) (mem. op.) (examining these same factors in determining whether
a trial court abused its discretion in denying a motion for continuance under Rule
193.6(c)); Barr v. AAA Tex., LLC, 167 S.W.3d 32, 38 (Tex. App.—Waco 2005, no
pet.) (same).
Rule 193.6(c) provides that, “Even if the party seeking to introduce the
evidence or call the witness fails to carry the burden under [Rule 193.6] paragraph
(b), the court may grant a continuance or temporarily postpone the trial to allow a
response to be made, amended, or supplemented, and to allow opposing parties to
conduct discovery regarding any new information presented by that response.” Tex.
R. Civ. P. 193.6(c) (emphasis added); Snider v. Stanley, 44 S.W.3d 713, 718 (Tex.
App.—Beaumont 2001, pet. denied). “The rule does not, however, dispense with the
general requirement that a motion for continuance must be supported by an affidavit
27
demonstrating sufficient cause.” Saum v. Am. Express Nat’l Bank, No. 02-19-00415-CV, 2021 Tex. App. LEXIS 2071, at *32 (Tex. App.—Fort Worth Mar. 18, 2021,
pet. denied) (mem. op.) (citing Tex. R. Civ. P. 251) (no continuance shall be granted
“except for sufficient cause supported by affidavit”)).
Here, Abrams filed his motion for summary judgment more than six months
after Springstun filed his Second Amended Petition. Abrams served Springstun a
Notice of Submission, notifying Springstun that Abrams’s no-evidence motion for
summary judgment was set for December 5, 2025. Generally, it is not an abuse of
discretion to deny a motion for continuance if a party has received the twenty-one
days’ notice required by the then-applicable Texas Rule of Civil Procedure 166a(c).
Springstun’s Emergency Verified Motion for Continuance, as well as Plaintiff’s
Response to Defendant’s No-Evidence Motion for Summary Judgment and, in the
Alternative, Motion for Continuance under Tex. R. Civ. P. 166a(g), are silent as to
how long the case had been on file and what, if any, due diligence Springstun had
exercised to respond to the motion for summary judgment or obtain evidence since
the case had been on file. In general, a litigant is not entitled to a continuance if he
fails to diligently use the rules of civil procedure for discovery purposes prior to
filing a motion for continuance. See D.R. Horton-Tex., Ltd. v. Savannah Props.
Assocs., L.P., 416 S.W.3d 217, 223 (Tex. App.—Fort Worth 2013, no pet.) (citing
State v. Wood Oil Distrib., Inc., 751 S.W.2d 863, 865 (Tex. 1998)); Stierwalt v. FFE
28
Transp. Servs. Inc., 499 S.W.3d 181, 189 (Tex. App.—El Paso 2016, no pet.). Also,
the trial court could have reviewed the exhibits Springstun attached to his
Emergency Verified Motion for Continuance and reasonably determined that
Springstun’s purported “medical and accommodation concerns” did not constitute
sufficient cause to grant a continuance. We overrule issue three.
Trial Court’s Dismissal of Claims under Rule 91a
In his fifth issue, Springstun argues that the trial court erred by dismissing his
“non-malpractice” claims under Texas Rule of Civil Procedure 91a. Specifically,
Springstun asserts that rule 91a “d[oes] not authorize dismissal with prejudice of all
non-malpractice claims where the live pleading alleged at least some conduct that
could fall outside ordinary negligent legal representation.” Springstun maintains that
the dismissal of his claims under Rule 91a was too broad and that “the trial court
should not have permanently barred claims based on independent duties, postrepresentation conduct, misuse or disclosure of confidential information, affirmative
misrepresentations, or conduct outside ordinary legal judgment.” Springstun alleges
that this Court should reverse or modify the partial dismissal order and remand for
further proceedings.
Rule 91a.1 authorizes dismissal of a cause of action “if the allegations, taken
as true, together with inferences reasonably drawn from them, do not entitle the
claimant to the relief sought[]” or “if no reasonable person could believe the facts
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pleaded.” Tex. R. Civ. P. 91a.1. A nonmovant may respond to a motion to dismiss
in part by amending his pleading. See id. 91a.5(b). “[T]he court may not consider
evidence in ruling on the motion and must decide the motion based solely on the
pleading of the cause of action, together with any pleading exhibits permitted by
Rule 59.” Id. 91a.6. The “hearing” on the motion to dismiss is not required to be an
oral hearing. Id. To survive a Rule 91a motion, a plaintiff’s pleadings must include
the “essential factual allegations supporting [the] claims,” and those allegations
“must be sufficient to support a judgment if ultimately proven.” In re First Rsrv.
Mgmt., L.P., 671 S.W.3d 653, 662 (Tex. 2023) (citation omitted). We review Rule
91a dismissal orders de novo. See City of Dallas v. Sanchez, 494 S.W.3d 722, 724
(Tex. 2016).
Under the anti-fracturing rule, plaintiffs in professional negligence cases may
not convert “what are really negligence claims” into other claims such as fraud,
breach of contract, or breach of fiduciary duty in order to gain a litigation advantage.
Pitts v. Rivas, 709 S.W.3d 517, 523 (Tex. 2025). We look not only to the labels
chosen by the plaintiff, but also we consider the gravamen of the facts alleged. Id. at
525. Under the anti-fracturing rule, if the crux or gravamen of the plaintiff’s claim
is a complaint about the nature and quality of professional services provided by the
defendant, then the claim will be treated as one for professional negligence even if
the petition attempts to repackage the allegations under the banner of additional
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claims. Id. at 524. “In other words, . . . if ‘the real issue’ is that the professional failed
to exercise the degree of care, skill, or diligence that professionals of ordinary skill
and knowledge would exercise, the anti-fracturing rule requires the claim to be
litigated as one for professional negligence, and the plaintiff may not re-label the
allegations under a different claim to obtain a litigation advantage.” Id.
Springstun’s Second Amended Petition alleges, in pertinent part:
[] Breach of Fiduciary Duty
Defendant owed Plaintiff fiduciary duties arising from the attorney–
client relationship, including duties of loyalty, confidentiality, candor,
and zealous representation. These duties are reinforced by the Texas
Disciplinary Rules of Professional Conduct, including Rule 1.03
(communication) and Rule 1.05 (confidentiality).
Defendant breached these duties in multiple ways, including the
unauthorized disclosure of privileged communications without
Plaintiff’s consent. Under Texas Rule of Evidence 503(b), attorney–
client communications are privileged and may not be disclosed unless
waived by the client. Defendant’s actions violated this rule and Rule
1.05, which mandates that attorneys safeguard client confidentiality.
Additionally, Defendant referred to Plaintiff’s legal position as
“repugnant” in court filings, displaying bias and a lack of professional
loyalty. Defendant further prioritized his withdrawal from
representation over the timely and effective management of Plaintiff’s
case, causing further harm.
These breaches irreparably damaged the attorney–client relationship,
undermined Plaintiff’s legal standing, and contributed to procedural
disadvantages and adverse rulings in related litigation.
[] Professional Negligence (Attorney Negligence)
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Defendant owed Plaintiff a duty to exercise the ordinary care, skill, and diligence commonly possessed and exercised by attorneys under
similar circumstances. This duty arises under Texas common law and
is reinforced by Texas Disciplinary Rule of Professional Conduct
1.01, which requires attorneys to provide competent representation.
Defendant breached this duty by failing to meet critical case deadlines, disregarding motions requiring timely responses, and failing to
communicate or act on Plaintiff’s behalf. Notably, Texas Rule of Civil Procedure 166a requires proper and timely responses to motions for
summary judgment. Defendant’s failure to respond to such motions led to adverse rulings against Plaintiff, undermining his claims and causing procedural prejudice.
Additionally, Defendant failed to file essential motions needed to
advance Plaintiff’s counterclaims and ignored repeated requests for
updates. This negligence contributed to missed legal opportunities and unnecessary litigation burdens.
As a direct and proximate result of Defendant’s conduct, Plaintiff
suffered financial harm, procedural disadvantage, and emotional
distress.
[] Intentional Infliction of Emotional Distress
Defendant’s conduct toward Plaintiff was extreme and outrageous and
exceeded all bounds of decency in the context of a professional legal relationship. Rather than properly withdrawing, Defendant effectively abandoned Plaintiff during active litigation while remaining attorney of record, blocking communication and refusing to take any action on
Plaintiff’s behalf.
This abandonment occurred during a critical phase in the case, leaving Plaintiff unaware of upcoming deadlines, unable to respond to motions, and completely unrepresented. Defendant’s conduct violated the Texas Disciplinary Rules of Professional Conduct, including Rule 1.03
(requiring attorney-client communication) and Rule 1.15 (requiring
attorneys to protect the client’s interests upon withdrawal).
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Additionally, Defendant disclosed confidential attorney–client
communications, compounding the harm and further compromising
Plaintiff’s legal position.
As a direct result, Plaintiff was forced to suddenly take on complex litigation pro se, without legal guidance, while under pressure to meet court-imposed deadlines. Plaintiff, who was new to litigation, was left with no realistic option to secure alternate counsel due to financial constraints and reliance on LegalShield services. This created an
overwhelming burden, resulting in substantial emotional distress,
including persistent anxiety, sleeplessness, and physical exhaustion from extensive self-study of the law, conducted out of necessity and under duress.
As a further consequence of Defendant’s conduct, Plaintiff has been
unable to work or generate income since the abandonment occurred.
The necessity of representing himself pro se, including preparing for hearings, filing court documents, and now managing appellate
litigation, has consumed his time and energy. Plaintiff has had no
realistic ability to seek or maintain employment due to the
overwhelming demands of self-representation and the ongoing
emotional strain caused by Defendant’s actions.
Plaintiff’s claim for Intentional Infliction of Emotional Distress is based on conduct that exceeds mere professional negligence. Defendant knowingly and repeatedly ignored Plaintiff’s urgent legal needs during time-sensitive litigation, refused all communication for extended
periods, and submitted harmful court filings accusing Plaintiff of being “repugnant,” “disrespectful,” and mentally unstable—statements which were false, unprovoked, and served no legitimate legal purpose. These acts were not merely negligent but were designed to cause harm,
humiliation, and emotional breakdown.
[] Violations of the Texas Deceptive Trade Practices Act (DTPA)
Plaintiff brings this Deceptive Trade Practices Act (DTPA) cause of
action based not on the quality or substance of legal services rendered, but rather on material misrepresentations made by Defendant in the
course of selling and securing Plaintiff’s business. These
33
misrepresentations include falsely claiming that legal services under the
LegalShield plan would be timely, competent, and fully covered, and
then failing to deliver those promised services after accepting payment.
In Latham v. Castillo, 972 S.W.2d 66 (Tex. 1998), the Texas Supreme
Court held that an attorney may be liable under the DTPA for
misrepresentations of material fact that are not advice, judgment, or
opinion—even when related to legal services—if the misstatements are
inducements to the transaction itself. Plaintiff’s DTPA claims fall
squarely within this category and are thus distinct from Plaintiff’s legal
malpractice claims.
Defendant Bradford Abrams violated provisions of the Texas
Deceptive Trade Practices–Consumer Protection Act (“DTPA”),
codified at Tex. Bus. & Com. Code § 17.41 et seq., through acts and
omissions that misled Plaintiff and caused compensable harm.
Plaintiff was a paying subscriber of the LegalShield plan and retained
Defendant as legal counsel through that plan. Defendant
misrepresented his qualifications and failed to provide legal services in
accordance with the promised scope and professional obligations.
Despite payment, Plaintiff received delayed responses, missed
deadlines, and no itemized explanation of fees, constituting deceptive
trade practices and unconscionable conduct under the Act.
Furthermore, Defendant billed for services not rendered, failed to
explain fees in violation of Texas Disciplinary Rule of Professional
Conduct 1.04, and demonstrated conduct so one-sided as to be
unconscionable. These acts fall squarely within the definitions of
misrepresentation and unconscionability under Tex. Bus. & Com. Code
§§ 17.46(b)(5), (24), and § 17.45(5). Plaintiff is entitled to damages for
these statutory violations and reserves the right to pursue remedies
under the DTPA following proper compliance with notice
requirements.
On this record, we conclude that based on the gravamen of the allegations
made in Springstun’s Second Amended Petition, Springstun’s claims against
Abrams for negligence, breach of fiduciary duty, intentional infliction of emotional
34
distress, and violations of the DTPA all arise out of Abrams’s alleged failure to
exercise the degree of care, skill, or diligence that professionals of ordinary skill and
knowledge would exercise. See Pitts, 709 S.W.3d at 524. Springstun’s claims against
Abrams for negligence, breach of fiduciary duty, intentional infliction of emotional
distress, and violations of the DTPA allege complaints that Abrams did not provide
Springstun with adequate representation in the underlying litigation, and these
claims are therefore nothing more than a recasting of professional negligence claims.
See id.; see also Caldarera v. Crowl, No. 09-25-00347-CV, 2026 Tex. App. LEXIS
5900, at **20-22, 24 (Tex. App.—Beaumont June 25, 2026, no pet.) (mem. op.).
The trial court did not err in granting Abrams’s Motion for Partial Dismissal under
Rule 91a. See Tex. R. Civ. P. 91a.1. We overrule issue five.
Having overruled Springstun’s issues, we affirm the trial court’s judgment.
AFFIRMED.
LEANNE JOHNSON
Justice
Submitted on August 11, 2026
Opinion Delivered October 8, 2026
Before Golemon, C.J., Johnson and Wright, JJ.
35