Scotty Lynn TAYLOR, Plaintiff-Appellant, v. Matt KEIL; John C. Goodson; The Law Firm of Keil & Goodson, Defendants-Appellees, 169 F. App'x 218

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 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 plaintiffs injuries, and (4) damages occurred.” Peeler v. Hughes & 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 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. 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.