Victor Antony Charles v. Cheryl Harris Diggs

Reversed and Remanded and Memorandum Opinion filed October 29, 2020.

In The

Fourteenth Court of Appeals

NO. 14-19-00725-CV

VICTOR ANTHONY CHARLES, Appellant

V.

CHERYL HARRIS DIGGS, Appellee

On Appeal from the 234th District Court
Harris County, Texas
Trial Court Cause No. 2019-08158

MEMORANDUM OPINION

In this legal-malpractice case, the trial court granted the defendant attorney
summary judgment on the grounds of res judicata and collateral estoppel. These
grounds were supported only by evidence that the client’s grievance against the
attorney was dismissed by the State Bar’s Office of the Chief Disciplinary Counsel,
and the dismissal was affirmed by the Board of Disciplinary Appeals; however, the
disciplinary rules do not set the standard for civil liability, and the client’s civil claim
is based in part on circumstances that arose after the client filed his grievance. We
accordingly reverse the judgment in the attorney’s favor and remand the cause for
further proceedings consistent with this opinion.

I. BACKGROUND

Attorney Cheryl Harris Diggs was appointed in May 2017 to defend Victor
Anthony Charles against the charge of aggravated assault of a family member.
Charles repeatedly informed Diggs in May, June, July, and August that he had not
been given a probable-cause hearing within forty-eight hours as required. In August,
he additionally told Diggs that the complaining witness had recanted. Despite these
communications, Diggs allegedly misrepresented to the trial court at a subsequent
hearing that she had not heard from Charles since his arrest, and she failed to address
the delayed probable-cause hearing or the complaining witness’s recantation. In
January 2018, Charles himself emailed the assistant district attorney and asked for
the charges to be dismissed. Because Diggs continued in her failure to seek
dismissal, Charles retained his own counsel, Rubin Cartwright and Eddrea
McKnight.

Charles filed a grievance against Diggs on April 18, 2018, and in May 2018,
the Office of the Chief Disciplinary Counsel of the State Bar of Texas categorized
the grievance as “an inquiry” and dismissed it.1 Charles appealed the ruling, which
was affirmed by the Board of Disciplinary Appeals in June 2018.

Meanwhile, the State first postponed Charles’s criminal trial, then dismissed
the felony charges and refiled the charges as a misdemeanor. In October 2018, the
trial court dismissed the charges altogether.

1
See TEX. GOV’T CODE ANN. § 81.074(1) (“The chief disciplinary counsel
shall . . . dismiss a grievance classified as an inquiry . . . .”).

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 Charles then sued Diggs for legal malpractice and breach of fiduciary duty.
According to Charles, Diggs’s failure to review the entire case file and act on the
information he provided caused Charles’s needless incarceration from May 2017 to
October 2018.

Diggs moved for traditional summary judgment on the grounds of res judicata
and collateral estoppel, arguing that the dismissal of Charles’s professional
grievance against Diggs barred his civil claims. Charles responded that his civil
claims were not barred because the felony charge against him was still pending when
he filed a grievance, whereas his civil complaints are based on the subsequent
dismissal of all charges against him.2

The trial court granted Diggs’s motion without stating the grounds and denied
Charles’s motion for new trial. He now seeks reversal of the judgment on the ground,
among others, that he did not and could not have presented in the disciplinary
proceeding the facts and matters at issue in his civil suit because those facts and
issues did not exist when he filed the grievance.

II. STANDARD OF REVIEW

We review a summary judgment de novo. Trial v. Dragon, 593 S.W.3d 313,
316 (Tex. 2019) (citing Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289
S.W.3d 844, 848 (Tex. 2009)). A party seeking traditional summary judgment bears
the burden to prove that there is no genuine issue of material fact and that it is entitled
to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Mann Frankfort, 289 S.W.3d

2
Cf. Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–98 (Tex. 1995) (plurality op.)
(“[P]laintiffs who have been convicted of a criminal offense may negate the sole proximate cause
bar to their claim for legal malpractice in connection with that conviction only if they have been
exonerated on direct appeal, through post-conviction relief, or otherwise.”); Johnson v. Odom, 949
S.W.2d 392, 393 (Tex. App.—Houston [14th Dist.] 1997, pet. denied) (applying Peeler to client’s
claims against attorney for legal malpractice, breach of fiduciary duty, breach of contract, and
violations of the Texas Deceptive Trade Practices Act).

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at 848. To determine if the movant met this burden, we consider the evidence in the
light most favorable to the non-movant, indulging every reasonable inference in
favor of the non-movant, and resolving any doubts against the motion. City of Keller
v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

III. ANALYSIS

A party relying on the affirmative defense of collateral estoppel must prove
that (1) the facts sought to be litigated in the second action were fully and fairly
litigated in the first action; (2) those facts were essential to the judgment in the first
action; and (3) the parties were cast as adversaries in the first action. See Sysco Food
Servs., Inc. v. Trapnell, 890 S.W.2d 796, 801 (Tex. 1994). A party relying on the
affirmative defense of res judicata must prove (1) a prior final determination on the
merits by a court of competent jurisdiction; (2) identity of parties or those in privity
with them; and (3) a second action based on the same claims as were or could have
been raised in the first action. Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862
(Tex. 2010).

A simple review of his pleadings shows that Charles is correct in arguing that
his civil suit relies in large part on the dismissal of the charges against him, and
because that occurred only after he filed his grievance, those facts, and the issues
they inform, were not, and could not have been, litigated as part of the grievance.

Although Charles established that the facts and issues in his civil suit had not
yet arisen when he filed his grievance, and they accordingly were not, and could not
have been, litigated in those proceedings, we should not be understood to hold that
Charles was required to make such a showing. Because we treat appellate issues “as
covering every subsidiary question that is fairly included,”3 we feel bound to point

3
TEX. R. APP. P. 38.1(f).

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out that the summary-judgment motion itself failed to set forth legally cognizable
grounds, because the Texas Rules of Disciplinary Procedure have always provided,
as a matter of law, that “[n]either the Complainant nor the Respondent is affected by
the doctrines of res judicata or estoppel by judgment from any Disciplinary Action.”4
Moreover, the dismissal of a grievance does not preclude the complaining witness
from bringing a legal-malpractice or breach-of-fiduciary-duty claim against the
attorney for the additional reason that no such claims could have been brought before
a tribunal that has jurisdiction only over disciplinary and disability determinations
and not over claims of civil liability.5 Further still, the Texas Disciplinary Rules of
Professional Conduct “do not undertake to define standards of civil liability of
lawyers for professional conduct.”6

Because Diggs failed to conclusively establish that Charles’s civil claims are
barred by res judicata or collateral estoppel, we sustain the sole issue presented.

IV. CONCLUSION

For the foregoing reasons, we reverse the judgment and remand the case for
further proceedings consistent with this opinion.

4
Rule 15.03, Amendments to the Texas Rules of Disciplinary Procedure, Misc. Docket No.
9209, at 47 (Tex. Dec. 29, 2003), available at
https://www.txcourts.gov/All_Archived_Documents/SupremeCourt/AdministrativeOrders/miscd
ocket/03/03920900.pdf (formerly numbered as TEX. RULES DISCIPLINARY P. R. 15.05; currently
renumbered as TEX. RULES DISCIPLINARY P. R. 17.03, reprinted in TEX. GOV’T CODE ANN., tit. 2,
subtit. G, app. A-1).
5
See, e.g., TEX. STATE BAR R. art. II, § 3, reprinted in TEX. GOV’T CODE ANN., tit. 2, subtit.
G, app. A; TEX. GOV’T CODE ANN. § 81.071; see also Campbell v. Mabry, 457 S.W.3d 173, 175–
77 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (res judicata does not apply where the first
tribunal lacked jurisdiction over the claims raised in the second action); Rodriguez v. Womack, No.
14-10-01213-CV, 2012 WL 19659, at *1 (Tex. App.—Houston [14th Dist.] Jan. 5, 2012, pet.
denied) (mem. op.) (same).
6
TEX. DISCIPLINARY RULES PROF’L CONDUCT Preamble: Scope, § 15, reprinted in TEX.
GOV’T CODE ANN., tit. 2, subtit. G, app. A, (TEX. STATE BAR R. art. X, § 9).

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 /s/ Tracy Christopher
Justice

Panel consists of Justices Christopher, Jewell, and Zimmerer.

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