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Click here for the full text of this decision FACTS:Over four years, in connection with a federal grand jury summons and a divorce, Kent Brown went through three attorneys, one of whom used co-counsel. When he was not satisfied with the results of his divorce, Brown filed a legal malpractice action against the co-counsel firm. Brown filed his suit on July 2, 2002, under a Level 2 discovery plan. This meant that the discovery period began when Brown filed suit, and would have run until Aug. 19. Brown did not answer the discovery requests served on him until Oct. 29, 2002. In March 2003, the defendants filed no-evidence motions for summary judgment. In May 2003, Brown finally began discovery of his own. In response to the summary judgment motion, Brown presented the affidavit of his expert witness, Maridell Templeton, who said she thought the defendants had committed legal malpractice. Neither Templeton’s nor Brown’s own affidavit included papers from the underlying divorce. At the hearing on the summary judgment motion, Brown asked the court for leave to supplement the summary judgment evidence and for a modification of the discovery timetable. The trial court first granted summary judgment against Brown on June 5, then denied both of Brown’s motions on June 17. Brown appeals, raising several issues related to discovery and summary judgment. HOLDING:Affirmed. Ordinarily, under Texas Rule of Civil Procedure 166a(i), a no-evidence motion for summary judgment would not be permitted during the discovery period. When a party contends it has not had an adequate opportunity for discovery before a summary judgment hearing, it must file either an affidavit explaining the need for further discovery or a verified motion for continuance. Brown’s motion, which was titled “Motion for Enlargement of Time and Modification of Discovery Procedures,” did not request a continuance and it did not explain the need for further discovery. The trial court did not, therefore, abuse its discretion by hearing the no-evidence motions for summary judgment before the end of the discovery period or in determining there had been adequate time for discovery. Though Brown acknowledges that his answers were “technically due” on Aug. 19, 2002, he claims he filed his answers late because of a miscalculation of the dates he thought the discovery period started when he filed his first responses to written discovery instead of “the due date of the first response to written discovery,” citing T.R.Civ.P. 190.3(b)(1)(B)(ii). Though a court may modify a discovery control plan in the interest of justice, the court finds that the trial court did not abuse its discretion in holding that the interest of justice did not require modification; Brown never explained why he wanted more time. Brown complains on appeal that the trial court did not take judicial notice of the records related to Brown’s divorce proceeding in another court. Brown made no attempt to bring those records to court, however, until after the trial court was already considering the defendant’s motions for summary judgment. Unlike other cases where judicial notice was taking of other litigation, in this case, the records are not published anywhere � there’s no reference to a publication to make. The records, instead, must be secured from another court. Therefore, for Brown to have supplied the trial court with the necessary information from which to take judicial notice of the divorce records, Brown must have presented those records to the trial court, which he did not. The court then finds Templeton’s affidavit inadequate by being conclusory. Templeton’s affidavit makes many references to the divorce records, and she draws her conclusions about the defendants’ negligence in their representing of Brown, but records from that representation were not attached to her affidavit, filed with it, or otherwise included in the summary judgment evidence. Likewise, Templeton’s lack of specificity in the affidavit also leaves it conclusory. Her affidavit is not saved simply because it relies on Brown’s own affidavit, as that affidavit is also conclusory. It, too, makes statements about the defendants’ actions and inactions that cannot be substantiated for lack of the divorce records. As Brown’s only evidence to raise a fact question on whether the defendants breached their duty in representing him was Templeton’s affidavit, the court finds the trial court did not err in granting the defendants’ motion for summary judgment on that cause of action. OPINION:FitzGerald, J.; Morris, FitzGerald and Francis, JJ.

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