NO. 07-11-00213-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
FEBRUARY 16, 2012
CRAIG E. MENDENHALL, APPELLANT
v.
WARREN CLARK, APPELLEE
FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;
NO. 98,261-A; HONORABLE DAN L. SCHAAP, JUDGE
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
MEMORANDUM OPINION
Appellant, Craig E. Mendenhall, appeals the granting of a summary judgment in
favor of appellee, Warren L. Clark. Mendenhall contends that the trial court erred in
granting Clark’s no-evidence motion for summary judgment. Mendenhall also contends
the trial court committed reversible error by allowing Clark to “advance affirmative
defenses for the first time in a no-evidence motion for summary judgment.” We affirm
the judgment of the trial court.
Factual and Procedural Background
Mendenhall was convicted of a felony offense and the conviction became final in
2002. Subsequent to the conviction becoming final, Mendenhall engaged Clark to
investigate and file a post-conviction writ of habeas corpus. Clark filed the writ in
January 2003. The writ was denied by the Texas Court of Criminal Appeals in March
2003. In late 2009 or early 2010,1 Mendenhall filed suit against Clark alleging three
causes of action. Clark filed a general denial. Mendenhall then filed amended
pleadings that eventually resulted in his second amended original petition being the
operative pleading at the time Clark filed his motion for summary judgment.
Mendenhall’s second amended original petition alleged three counts. The first
two counts alleged fraud by nondisclosure. The third count alleged breach of fiduciary
duty. After a proper time for discovery, Clark filed a no-evidence motion for summary
judgment.
In the summary judgment motion, Clark contended that, despite how the counts
in the amended petition were styled, Mendenhall’s action was a suit for legal
malpractice. Further, Clark’s no-evidence motion for summary judgment sets forth that,
since Mendenhall has produced no evidence of exoneration or actual innocence, he
1
Mendenhall’s original petition is not included in the record before us; however,
Clark’s original answer was filed on January 21, 2010.
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cannot recover in a criminal case for legal malpractice. The trial court agreed with Clark
and granted Clark’s no-evidence motion for summary judgment.2
Mendenhall perfected his appeal and brings forth five issues. The first four
issues deal with the correctness of the trial court’s granting of the no-evidence motion
for summary judgment. The last issue deals with an alleged error by the trial court in
allowing Clark to present an affirmative defense without a sworn answer. We overrule
all of Mendenhall’s contentions and affirm the trial court’s action.
No-evidence Motion for Summary Judgment
Standard of Review
We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). In so doing, we examine the entire summary judgment
record in the light most favorable to the nonmovant, indulging every reasonable
inference and resolving any doubts against the motion. Yancy v. United Surgical
Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007); City of Keller v. Wilson, 168
S.W.3d 802, 824-25 (Tex. 2005).
When a movant files a no-evidence motion in proper form under Rule of Civil
Procedure 166a(i), the burden shifts to the nonmovant to defeat the motion by
presenting evidence that raises an issue of material fact regarding the elements
challenged by the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.
2
Mendenhall had a traditional motion for summary judgment which the trial court
denied in the same order that granted Clark’s motion. Mendenhall has not appealed
that denial.
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2006). In other words, the nonmovant must respond to a no-evidence motion by
presenting more than a scintilla of probative evidence on each challenged element.
King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); DR Partners v. Floyd,
228 S.W.3d 493, 497 (Tex.App.--Texarkana 2007, pet. denied). More than a scintilla of
evidence exists when the evidence “rises to a level that would enable reasonable and
fair-minded people to differ in their conclusions.” Merrell Dow Pharms, Inc. v. Havner,
953 S.W.2d 706, 711 (Tex. 1997).
Analysis
We begin our analysis by inspecting Mendenhall’s amended original petition. As
stated above, Mendenhall’s live pleading attempted to plead a cause of action for non-
disclosure of information, which Mendenhall claimed was fraudulent and a breach of
fiduciary duty. However, when the pleading is examined in detail, it is apparent that the
non-disclosure counts are nothing more or less than contentions that Clark failed to
exercise reasonable professional skill and diligence in advising Mendenhall regarding
Mendenhall’s writ of habeas corpus. See Greathouse v. McConnell, 982 S.W.2d 165,
172 (Tex.App.—Houston [1st Dist.] 1998, pet. denied) (allegations of negligence, breach
of fiduciary duty, breach of good faith and fair dealing were all means to the end of
alleging a complaint for legal malpractice). Further, the pleading alleging breach of
fiduciary duty sets forth nothing more than the duty an attorney owes to his client to
represent him properly. Nowhere in this pleading does Mendenhall allege that Clark
obtained any improper benefit by representing Mendenhall. See Aiken v. Hancock, 115
S.W.3d 26, 28 (Tex.App.—San Antonio 2003, pet. denied) (distinguishing between
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breach of fiduciary duty claims and legal malpractice claims). Rather, Mendenhall is
again complaining about the failure of Clark to present a certain legal argument
because Clark failed to identify the argument when presenting the writ of habeas
corpus. This is a claim for legal malpractice.
No matter how a plaintiff may try to circumvent the elements of a legal
malpractice claim, if the theory of recovery against an attorney sounds in tort, Texas
courts are going to treat it as a legal malpractice claim. See Aiken, 115 S.W.3d at 28
(plaintiff’s are not allowed to fracture legal malpractice claims); see also Greathouse,
982 S.W.2d at 172 (allegations of negligence, breach of fiduciary duty, breach of good
faith and fair dealing were all means to the end of alleging a complaint for legal
malpractice). Therefore, our review of Mendenhall’s live pleading leads us to conclude
that he has alleged a single cause of action for legal malpractice.
The elements of a legal malpractice claim are 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 occured. See Belt v. Oppenheimer, Blend, Harrison
& Tate, Inc., 192 S.W.3d 780, 783 (Tex. 2006); Peeler v. Hughes & Luce, 909 S.W.2d
494, 496 (Tex. 1995). It was the element of proximate cause at which Clark’s no-
evidence motion for summary judgment was directed.
The Texas Supreme Court has held that, as a matter of public policy and as a
matter of law, the criminal client’s own conduct is the sole proximate cause of the
client’s conviction and damages. See Peeler, 909 S.W.2d at 497-98. Further, plaintiffs
who have been convicted of a criminal offense may negate the sole proximate cause
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bar only if they have been exonerated on direct appeal, through post-conviction relief, or
otherwise. Id.
The record in this case reveals that Mendenhall was not able to produce even a
scintilla of evidence regarding exoneration. Therefore, as a matter of law, he has not
been able to sustain one of the elements of his cause of action. Belt, 192 S.W.3d at
783. Accordingly, the trial court did not err in granting Clark’s no-evidence motion for
summary judgment. Mendenhall’s first four issues are overruled.
Lack of Sworn Pleading
Because of our holding that Mendenhall’s claims were for legal malpractice and
that causation is one of the elements of a legal malpractice claim, we do not need to
address Mendenhall’s fifth issue as presented. Rather than an affirmative defense, that
requires a sworn pleading, the bar to recovery present in this matter is the lack of any
evidence of causation. Peeler, 909 S.W.2d at 497-98. Mendenhall’s fifth issue is
overruled.
Conclusion
Having overruled all of Mendenhall’s issues, we affirm the judgment of the trial
court granting Clark’s no-evidence motion for summary judgment.
Mackey K. Hancock
Justice
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