Eric Springstun v. Bradford Abrams

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 no- evidence 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 no- evidence 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 then- applicable 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 “non- malpractice” 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. 16  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 Self- Represented 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 21 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 non- movant’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 23 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