Taylor v. Keil, et al

* Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
United States Court of Appeals
Fifth Circuit
F I L E D
February 23, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-41651
Summary Calendar
SCOTTY LYNN TAYLOR,
Plaintiff-Appellant,
versus
MATT KEIL; JOHN C. GOODSON; THE LAW FIRM
OF KEIL & GOODSON,
Defendants-Appellees.
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Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 5:03-CV-37
--------------------
Before JOLLY, DAVIS, and OWEN, Circuit Judges.
PER CURIAM:*
Scotty Lynn Taylor, Texas prisoner # 817710, appeals the
magistrate judge’s grant of summary judgment in favor of the
appellees in this legal malpractice action brought pursuant to
diversity jurisdiction. At issue is the defendants’
representation of Taylor in connection with a solicitation-of-
capital-murder charge that was dismissed in exchange for Taylor’s
agreement to a civil forfeiture of property seized during a prior
drug offense. Taylor argues that he introduced “a substantial

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No. 04-41651
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amount of evidence” which created genuine issues with regard to
the issues of causation and injury. He also argues that a jury
should have been allowed to resolve various factual issues,
including his motive in agreeing to the civil forfeiture and the
appellees’ motives in securing the dismissal of the solicitation
charge.
This court reviews a grant of summary judgment de novo,
applying the same standards as the district court. Cates v.
Creamer, 431 F.3d 456, 460 (5th Cir. 2005). A motion for summary
judgment will be granted “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law.” FED. R. CIV. P. 56(c).
An attorney malpractice action in Texas is based on
negligence. Cosgrove v. Grimes, 774 S.W.2d 662, 664 (Tex. 1989).
A plaintiff asserting attorney malpractice must establish that
“(1) the attorney owed the plaintiff a duty, (2) the attorney
breached that duty, (3) the breach proximately caused the
plaintiff’s injuries, and (4) damages occurred.” Peeler v. Hugh
& Luce, 909 S.W.2d 494, 496 (Tex. 1995). In order to show
causation, the plaintiff must, in essence, “prove ‘a suit within
a suit’ by demonstrating that he would have prevailed in the
underlying action but for his attorney’s negligence.” Schlager

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v. Clements, 939 S.W.2d 183, 186-87 (Tex. App.—Houston [14th
Dist.] 1996, writ denied).
Taylor cannot show that the defendants proximately caused
him harm in connection with the solicitation proceeding because
the charge was dismissed with prejudice. See id. Accordingly,
Taylor’s averments regarding the motives and intent of the
parties do not undermine the magistrate judge’s grant of summary
judgment. The magistrate judge’s grant of the defendants’ motion
for summary judgment is affirmed. See Cates, 431 F.3d at 460;
Rule 56(c).
AFFIRMED.

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