Opinion issued May 9, 2023
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-21-00720-CV
———————————
ARTIS CHARLES HARRELL, Appellant
V.
JEROME GODINICH, JR., Appellee
On Appeal from the 190th District Court
Harris County, Texas
Trial Court Case No. 2018-30856
MEMORANDUM OPINION
Appellant Artis Charles Harrell, acting pro se, sued the attorney who
represented him in a criminal proceeding, alleging legal malpractice and breach of
fiduciary duty. The trial court dismissed Harrell’s claims under Texas Rule of Civil
Procedure 91a. Because Harrell failed to preserve error, he waived his issues on
appeal, and we affirm the trial court’s judgment.
BACKGROUND
Harrell was charged with aggravated robbery in 2004. Jerome Godinich, Jr.
was appointed to represent Harrell in several pretrial hearings to suppress evidence.
Harrell was convicted and is currently incarcerated. Godinich’s conduct in the
suppression hearings forms the basis for Harrell’s complaints. Harrell alleges that
Godinich concealed documents relating to the criminal charge, failed to investigate
the facts of the case, ignored Harrell’s instructions, failed to raise affirmative
defenses, gave Harrell erroneous legal advice, withheld exculpatory evidence, and
refused to give Harrell his client file.
Based on these complaints, Harrell sued Godinich for attorney negligence—
also termed legal malpractice—and breach of fiduciary duty. Godinich moved to
dismiss Harrell’s claims under Texas Rule of Civil Procedure 91a as having no basis
in law or fact. The trial court held a hearing on the motion to dismiss, and about a
week later, signed a final, appealable judgment granting the motion to dismiss and
dismissing all of Harrell’s claims. Harrell now appeals.
DISCUSSION
In two issues, Harrell contends the trial court erred in dismissing his claims
under Rule 91a of the Texas Rules of Civil Procedure when that rule does not apply
2
to inmate litigation, and he contends Godinich waived any challenges to Harrell’s
claims on appeal by not contesting Harrell’s unsworn declaration.
Error Preservation
For error to be preserved for appellate review, the record must show that a
party made the request or complaint to the trial court in a timely manner, and that
the trial court either ruled on the request or refused to do so. TEX. R. APP. P. 33.1(a).
The request or complaint must make the trial court aware of the alleged error so that
the trial court has the opportunity to correct the problem before appeal. Burbage v.
Burbage, 447 S.W.3d 249, 257 (Tex. 2014); see also Mansions in the Forest, L.P. v.
Montgomery County, 365 S.W.3d 314, 317 (Tex. 2012) (per curiam) (discussing
reasons for error-preservation requirements). A party should not be allowed to ignore
an error at trial and then surprise his opponent on appeal by raising a complaint for
the first time. Mansions in the Forest, 365 S.W.3d at 317. When a party fails to
preserve error in the trial court, the issue is waived, and we may not consider that
issue on appeal. See TEX. R. APP. P. 33.1(a); e.g., Fed. Deposit Ins. Corp. v. Lenk,
361 S.W.3d 602, 604 (Tex. 2012).
Pro se litigants are held to the same standards as licensed attorneys and must
comply with applicable laws and rules of procedure. See Wheeler v. Green, 157
S.W.3d 439, 444 (Tex. 2005) (per curiam) (“[P]ro se litigants are not exempt from
the rules of procedure.”); Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85
3
(Tex. 1978) (“There cannot be two sets of procedural rules, one for litigants with
counsel and the other for litigants representing themselves.”). Like any attorney, a
pro se litigant may waive an issue on appeal by failing to raise the issue in the trial
court. E.g., Johnson v. Tex. Serenity Acad., Inc., No. 01-14-00438-CV, 2015 WL
1135947, at *3 (Tex. App.—Houston [1st Dist.] May 27, 2015, pet. denied) (mem.
op.) (declining to consider issue on appeal that pro se appellants had not raised in
trial court); Richardson v. Wells Fargo Bank, Nat’l Ass’n, No. 01-10-00931-CV,
2012 WL 1249476, at *1 (Tex. App.—Houston [1st Dist.] Apr. 12, 2012, no pet.)
(mem. op.) (declining to consider issue on appeal that pro se appellant untimely
raised after close of trial).
A. Dismissal under Rule 91a
In his first issue, Harrell argues that the trial court erred in dismissing his
claims under Rule 91a.
Rule 91a allows dismissal of a cause of action that has “no basis in law or
fact.” TEX. R. CIV. P. 91a.1. “A cause of action has no basis in law if the allegations,
taken as true, together with inferences reasonably drawn from them do not entitle
the claimant to the relief sought.” Id. “A cause of action has no basis in fact if no
reasonable person could believe the facts pleaded.” Id. With certain exceptions, a
court may not consider evidence in ruling on the Rule 91a motion. TEX. R. CIV.
P. 91a.6. Rule 91a does not apply to inmate litigation, which is any “case governed
4
by Chapter 14 of the Texas Civil Practice and Remedies Code.” TEX. R. CIV. P.
91a.1. We review de novo a trial court’s ruling on a 91a motion. See In re Farmers
Tex. Cnty. Mut. Ins. Co., 621 S.W.3d 261, 266 (Tex. 2021) (orig. proceeding).
Chapter 14 of the Texas Civil Practice and Remedies Code governs litigation
by an inmate—a person housed in a correctional facility—in which the inmate files
an affidavit or unsworn declaration of inability to pay costs. TEX. CIV. PRAC. & REM.
CODE §§ 14.001(3), 14.002(a). A court may dismiss without a hearing a claim under
Chapter 14 that is “frivolous or malicious,” considering whether the “claim has no
arguable basis in law or in fact,” among other factors. Id. § 14.003(a), (b)(2);
Jefferson v. Univ. of Tex. Med. Branch Hosp. at Galveston, No. 01-09-00062-CV,
2010 WL 987727, at *5 (Tex. App.—Houston [1st Dist.] Mar. 18, 2010, pet. denied)
(mem. op.). “A claim has no arguable basis in law if it is based on an indisputably
meritless legal theory.” Leachman v. Dretke, 261 S.W.3d 297, 304 (Tex. App.—Fort
Worth 2008, no pet.). We generally review dismissal of a claim under Chapter 14
for abuse of discretion, but the question of whether a claim has no arguable basis in
law or fact is a legal question that we review de novo. See DeHorney v. Talley, 630
S.W.3d 297, 301 (Tex. App.—El Paso 2021, no pet.).
Harrell asserts that the trial court erred in dismissing his claim under Rule 91a
because that rule does not apply to Chapter 14 litigation. He is correct both in that
Chapter 14 governs his case and that Rule 91a expressly does not apply to cases
5
governed by Chapter 14. See TEX. CIV. PRAC. & REM. CODE § 14.002(a); TEX. R.
CIV. P. 91a.1. However, the record does not show that Harrell ever raised this
argument before the trial court. See TEX. R. APP. P. 33.1(a). In his response to
Godinich’s motion to dismiss, he discussed the issue of when Godinich became
involved in the underlying criminal case but did not mention Chapter 14 or argue
that dismissal under Rule 91a would be improper. In his motion for new trial, he
argued the trial court erred in dismissing his claim for breach of fiduciary duty
because the Peeler doctrine1 does not bar fiduciary-duty claims, but he did not
mention Chapter 14 or argue that dismissal under Rule 91a was improper. Because
Harrell did not raise this issue in the trial court and preserve error for appeal, the
issue is waived.2 See id.; Lenk, 361 S.W.3d at 604; see also In re Interest of A.S.M.,
1
See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–98 (Tex. 1995) (convicted
criminal defendant cannot sue representing attorney for legal malpractice without
first establishing defendant has been exonerated because otherwise defendant’s own
conduct is sole cause of indictment and conviction).
2
While we cannot decide an issue that is not properly presented to us for review, we
note that both Rule 91a and Chapter 14 authorize dismissal of claims having no
basis in law, and both such dismissals would be reviewed de novo. Further, a claim
for legal malpractice based on the attorney’s representation of a defendant in a
criminal matter has no basis in law when the defendant has not been exonerated
because the Peeler doctrine forecloses such claims. See Stallworth v. Ayers, 510
S.W.3d 187, 194 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (affirming
dismissal under Rule 91a of defendant’s legal malpractice claims against attorney
who represented him in criminal proceeding because defendant had not been
exonerated and therefore, under Peeler doctrine, his claim had no basis in law).
Even improperly pled fiduciary-duty claims—claims that are properly characterized
as legal malpractice claims because they do not allege self-dealing but allege
substandard legal representation—are barred by the Peeler doctrine. See id. at 191,
6
650 S.W.3d 85, 89–92 (Tex. App.—El Paso 2021, no pet.) (concluding, based on
record, appellant did not show rendition of improper judgment where trial court
granted Rule 91a motion to dismiss in case under Family Code even though Rule
91a does not apply to Family Code cases). Therefore, we overrule Harrell’s first
issue.
B. Contesting Unsworn Declaration
Next, Harrell argues that because Godinich did not seek dismissal under
Chapter 14 and challenge his unsworn declarations, Godinich has waived any
challenges to Harrell’s claims.
For this argument, Harrell relies on Equitable General Insurance Co. of Texas
v. Yates, 684 S.W.2d 669 (Tex. 1984). In that case, the trial court conditioned the
granting of Yates’s motion for new trial on his payment of $500 in attorney’s fees
to opposing counsel. Yates, 684 S.W.2d at 670. Even though Yates filed an
unchallenged affidavit of inability to pay costs, the trial court denied the motion for
new trial and entered final judgment against Yates. Id. On appeal, in light of Texas
Rule of Civil Procedure 145, the Supreme Court determined the trial court erred in
imposing a mandatory condition on a litigant who undisputedly was unable to pay
194 (disregarding criminal defendant’s characterization of claim as breach of
fiduciary duty and recognizing that claim was for “bad legal advice or improper
representation,” which is legal-malpractice claim, and affirming dismissal of that
claim under Rule 91a based on Peeler doctrine).
7
court costs and attorney’s fees. Id. at 671; see TEX. R. CIV. P. 145 (payment of court
costs not required by litigant who properly files statement of inability to afford
payment of court costs). Here, the trial court dismissed Harrell’s claim under Rule
91a for having no basis in law or fact, not because of Harrell’s inability to pay costs.
Yates is inapplicable.3
But again, the record does not show that Harrell ever raised this argument
before the trial court. See TEX. R. APP. P. 33.1(a). Therefore, error was not preserved,
and the issue is waived. See id.; Lenk, 361 S.W.3d at 604. We overrule Harrell’s
second issue.
CONCLUSION
Harrell has waived his appellate issues by not preserving error. Therefore, we
affirm the trial court’s judgment. All pending motions are dismissed as moot.
Gordon Goodman
Justice
Panel consists of Chief Justice Adams and Justices Kelly and Goodman.
3
Further, the Supreme Court in Yates reversed the trial court’s judgment and
remanded the case for a new trial on the merits. Yates, 684 S.W.2d at 671 (affirming
court of appeals decision); Yates v. Equitable Gen. Ins. Co. of Tex., 672 S.W.2d 822,
824 (Tex. App.—Houston [1st Dist.] 1984), aff’d, 684 S.W.2d 669 (Tex. 1984)
(reversing trial court’s judgment and remanding for new trial). The Supreme Court
did not rule, as Harrell suggests, that the opposing party’s claims were waived for
failing to challenge the affidavit of inability to pay costs.
8