Opinion issued December 6, 2016
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00012-CV
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BRYAN STALLWORTH, Appellant
V.
RANDALL AYERS, Appellee
On Appeal from the 157th District Court
Harris County, Texas
Trial Court Case No. 2015-53403
OPINION
Appellant, Bryan Stallworth, sued his former appointed criminal counsel,
appellee Randall Ayers, for breach of contract, breach of fiduciary duty, gross
negligence, and violations of the Deceptive Trade Practices Act (“DTPA”) arising
from his conviction in a criminal case. Ayers moved for dismissal under Texas Rule
of Civil Procedure 91a, arguing that Stallworth’s suit had no basis in law. The trial
court granted the motion and dismissed the case. In two issues, Stallworth argues
that Ayers breached his employment contract with Stallworth and breached his
fiduciary duties to Stallworth.
We affirm.
Background
In 2013, the State charged Stallworth with the offense of assault on a family
member, second offense, by impeding breathing.1 The criminal court appointed
Ayers to represent Stallworth. Stallworth was ultimately convicted of that offense.
In September 2015, Stallworth, acting pro se, filed a civil suit against Ayers,
alleging negligence in his representation of Stallworth during the criminal
proceedings. Specifically, Stallworth alleged that he gave Ayers an affidavit from
the complainant in the criminal case in which she recanted her allegations against
Stallworth, but Ayers failed to inform the criminal court of this affidavit. Stallworth
alleged that he faxed a copy of the complainant’s affidavit to the criminal court.
Stallworth also alleged that Ayers was negligent by “not confronting the State of the
improper complaint under [Code of Criminal Procedure article] 15.05(2).” See TEX.
CODE CRIM. PROC. ANN. art. 15.05(2) (West 2016) (requiring criminal complaint to
1
See TEX. PENAL CODE ANN. § 22.01(b–1) (West Supp. 2016).
2
“show that the accused has committed some offense against the laws of the State,
either directly or that the affiant has good reason to believe, and does believe, that
the accused has committed such offense”). Stallworth’s original petition indicated
that he was incarcerated at the time of filing. Stallworth did not allege that he had
been exonerated—on direct appeal, by habeas corpus relief, or by some other
method—of the assault offense.
Ayers moved to dismiss Stallworth’s claims under Texas Rule of Civil
Procedure 91a. Ayers argued that, even taking all of Stallworth’s allegations as true,
Stallworth’s claim had no basis in law. Ayers cited the Texas Supreme Court’s
decision in Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995), for the
proposition that a plaintiff may not maintain a legal malpractice cause of action
against his former criminal attorney unless the plaintiff has been exonerated on direct
appeal, by habeas corpus, or through some other post-conviction relief. Ayers
argued that Stallworth’s petition demonstrated that he was incarcerated and that he
had not been exonerated. He contended that “Stallworth’s incarceration is due to his
criminal conduct and not anything Ayers allegedly did or did not do,” and thus
Stallworth could not establish the proximate cause element of his negligence claim.
Ayers requested that the trial court dismiss Stallworth’s suit and award Ayers his
attorney’s fees and costs.
3
Stallworth then amended his petition and asserted claims for breach of
contract, breach of fiduciary duty, gross negligence, and violation of the DTPA.
Stallworth again alleged that Ayers failed to inform the criminal court of the
complainant’s affidavit and failed to challenge the sufficiency of the complaint, and
he also made several other allegations of deficient performance, including that Ayers
failed to request medical records and failed to move for a speedy trial. Stallworth
alleged that he did not commit any criminal act, that he had a right to sue Ayers even
if he had not been exonerated, and that he would not be incarcerated but for Ayers’
breach of his employment contract. Stallworth attached the complainant’s affidavit,
as well as a letter that he faxed to the criminal court along with the affidavit.
The trial court granted Ayers’ Rule 91a motion and dismissed all of
Stallworth’s claims with prejudice. The trial court also ordered that Ayers recover
$1,000 in attorney’s fees. This appeal followed.
Dismissal Under Rule 91a
In his first issue, Stallworth contends that the trial court should not have
dismissed his breach of contract claim because Ayers was “bound by contract with
[Stallworth] during court proceedings.” In his second issue, Stallworth contends that
Ayers breached his fiduciary duties and is liable to Stallworth in both contract and
tort. We consider these issues together.
4
A. Standard of Review
Rule 91a provides that “a party may move to dismiss a cause of action on the
grounds that it 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 plaintiff to the relief sought. Id. This
Court has noted that a cause of action has no basis in law under Rule 91a in at least
two situations: (1) the petition alleges too few facts to demonstrate a viable, legally
cognizable right to relief; and (2) the petition alleges additional facts that, if true, bar
recovery. Guillory v. Seaton, LLC, 470 S.W.3d 237, 240 (Tex. App.—Houston [1st
Dist.] 2015, pet. denied). The trial court must determine the motion “based solely
on the pleading of the cause of action, together with any pleading exhibits permitted
by” the rules of civil procedure. TEX. R. CIV. P. 91a.6; Dailey v. Thorpe, 445 S.W.3d
785, 788 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
We review a trial court’s ruling dismissing a case under Rule 91a de novo.
Walker v. Owens, 492 S.W.3d 787, 789 (Tex. App.—Houston [1st Dist.] 2016, no
pet.). We construe the pleadings liberally in favor of the plaintiff, look to the
plaintiff’s intent, and accept as true the factual allegations in the pleadings to
determine if the cause of action has a basis in law or fact. Wooley v. Schaffer, 447
S.W.3d 71, 76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
5
B. Whether Trial Court Properly Dismissed Stallworth’s Claims
As an initial matter, we must determine the nature of Stallworth’s claims. On
appeal, Stallworth complains that the trial court erred in dismissing his causes of
action for breach of contract and breach of fiduciary duty against Ayers, his former
appointed criminal counsel. He therefore argues that his claims against Ayers sound
in both contract and tort. Ayers, however, argues that Stallworth’s breach of contract
and breach of fiduciary duty claims both complain about the quality of his legal work
and are therefore actually legal malpractice claims.
Texas law does not permit a client to divide or fracture his legal malpractice
claims into additional causes of action. Goffney v. Rabson, 56 S.W.3d 186, 190
(Tex. App.—Houston [14th Dist.] 2001, pet. denied). When deciding whether an
allegation states a claim for negligence or for another cause of action, we are not
bound by the party’s characterization of the pleadings. Haase v. Abraham, Watkins,
Nichols, Sorrels, Agosto & Friend, LLP, 404 S.W.3d 75, 82 (Tex. App.—Houston
[14th Dist.] 2013, no pet.). “If the gist of a client’s complaint is that the attorney did
not exercise that degree of care, skill, or diligence as attorneys of ordinary skill and
knowledge commonly possess, then that complaint should be pursued as a
negligence claim, rather than some other claim.” Futch v. Baker Botts, LLP, 435
S.W.3d 383, 387 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A cause of action
that arises out of bad legal advice or improper representation is legal malpractice.
6
Rangel v. Lapin, 177 S.W.3d 17, 24 (Tex. App.—Houston [1st Dist.] 2005, pet.
denied); see also Murphy v. Gruber, 241 S.W.3d 689, 693 (Tex. App.—Dallas 2007,
pet. denied) (“For example, a lawyer can commit professional negligence by giving
an erroneous legal opinion or erroneous advice, by delaying or failing to handle a
matter entrusted to the lawyer’s care, or by not using a lawyer’s ordinary care in
preparing, managing, and prosecuting a case.”).
In his amended complaint, Stallworth asserted claims for breach of contract,
breach of fiduciary duty, gross negligence, and DTPA violations against Ayers.2
Stallworth alleged that he gave Ayers a copy of an affidavit by the complainant in
which she recanted the allegations against Stallworth, but Ayers did not investigate
the affidavit or inform the criminal court of this affidavit. Stallworth alleged that
Ayers did not request photographs or medical records, that he did not move for a
speedy trial, that Ayers was “‘milking the system’ for financial gain,” that Ayers
told him to plead guilty or he would receive “25 years to life” as punishment, that
Ayers did not challenge the sufficiency of the charging instrument, that he was
improperly sentenced for a second degree felony instead of a third degree felony,
and that he was innocent of the charged offense. Stallworth also alleged that “he
2
We note that in his original petition, Stallworth asserted only a negligence cause of
action against Ayers.
7
would not be incarcerated if [Ayers] did not [b]reach the [c]ontract that bound
[Ayers] to his duties.” Stallworth did not specify the damages that he sought.
Although Stallworth asserted separate claims for breach of contract and
breach of fiduciary duty, the essence of Stallworth’s claims is that Ayers failed to
provide adequate legal representation to him during the course of the criminal
proceedings against him and as a result, he was improperly convicted.3 Stallworth
specifically argues in his appellate brief that Ayers breached his contract with
Stallworth by failing to comply with “the oath taken to represent all clients to the
best of [Ayers’] ability” and that if Ayers had not breached his contract with
Stallworth, Stallworth would not have been convicted. Stallworth’s claims focus on
actions that Ayers allegedly failed to take which, he contends, resulted in his criminal
conviction. Despite labeling his claims as claims for breach of contract and breach
of fiduciary duty, Stallworth’s claims are a “‘means to an end’ to complain of legal
malpractice.” See Rangel, 177 S.W.3d at 24; see also Haase, 404 S.W.3d at 82
3
A claim for breach of fiduciary duty by a lawyer “involves the ‘integrity and fidelity’
of an attorney and focuses on whether an attorney obtained an improper benefit from
representing the client.” Murphy v. Gruber, 241 S.W.3d 689, 693 (Tex. App.—
Dallas 2007, pet. denied) (quoting Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex.
App.—Dallas 2004, no pet.)). “An attorney breaches his fiduciary duty when he
benefits improperly from the attorney-client relationship by, among other things,
subordinating his client’s interest to his own, retaining the client’s funds, engaging
in self-dealing, improperly using client confidences, failing to disclose conflicts of
interest, or making misrepresentations to achieve these ends.” Id. (quoting Gibson,
126 S.W.3d at 330). Stallworth alleged no facts to support his contention that Ayers
breached the fiduciary duties that he owed to Stallworth.
8
(“The rule against fracturing provides that a claimant for legal malpractice may not
opportunistically transform a claim sounding in negligence into separate non-
negligence causes of action.”). We therefore agree with Ayers that Stallworth’s
separate claims are actually legal malpractice claims.
Having determined that Stallworth’s claims are, in reality, legal malpractice
claims, we now turn to whether the trial court correctly determined that Stallworth’s
claims have no basis in law under Rule 91a. “To prevail on a legal malpractice
claim, the plaintiff must prove the defendant owed the plaintiff a duty, the defendant
breached that duty, the breach proximately caused the plaintiff’s injury, and the
plaintiff suffered damages.” Akin, Gump, Strauss, Hauer & Feld, L.L.P. v. Nat’l
Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009). When the plaintiff
alleges that a failure on the attorney’s part caused an adverse result in prior litigation,
“the plaintiff must produce evidence from which a jury may reasonably infer that
the attorney’s conduct caused the damages alleged.” Alexander v. Turtur & Assocs.,
Inc., 146 S.W.3d 113, 117 (Tex. 2004). Specifically, if the legal malpractice claim
arises from prior litigation, “a plaintiff must prove that, but for the attorney’s breach
of his duty, the plaintiff would have prevailed in the underlying case.” Grider v.
Mike O’Brien, P.C., 260 S.W.3d 49, 55 (Tex. App.—Houston [1st Dist.] 2008, pet.
denied).
9
In Peeler v. Hughes & Luce, the Texas Supreme Court addressed whether a
plaintiff who had been convicted of a crime could sue her former attorney in the
criminal matter. 909 S.W.2d at 495. After a lengthy investigation, Peeler faced
twenty-one counts of various federal fraud charges. Id. at 496. Peeler pleaded guilty
to one count, and the United States dropped the remaining charges against her. Id.
Peeler later sued her former attorneys for DTPA violations, legal malpractice, breach
of contract, and breach of warranty after she learned that during the investigation,
the United States attorney had offered her full transactional immunity but her
attorney did not communicate this offer to her. Id. Hughes & Luce moved for
summary judgment on her claims, arguing that Peeler’s own criminal conduct was
the sole proximate cause of her damages. Id. The trial court rendered summary
judgment in favor of Hughes & Luce. Id.
A four-justice plurality of the Texas Supreme Court4 held that “plaintiffs 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
4
In addition to the four justices who joined the plurality opinion, Justice Hightower
concurred in the result but wrote separately to address the conduct of Peeler’s former
attorneys. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 500 (Tex. 1995)
(Hightower, J., concurring). Justice Hightower stated, “Even though the Court
concludes that Peeler’s own conduct is the sole proximate or producing cause of her
indictment and conviction, the holding today should not be perceived as condoning
the alleged conduct of Hughes & Luce and Jordan which, if true, is reprehensible
and unconscionable.” Id. (emphasis in original). Justice Hightower did not, as
Stallworth contends, dissent in part or join the dissenting opinion.
10
have been exonerated on direct appeal, through post-conviction relief, or otherwise.”
Id. at 497–98 (emphasis added). The court stated:
While we agree with the other state courts that public policy prohibits
convicts from profiting from their illegal conduct, we also believe that
allowing civil recovery for convicts impermissibly shifts responsibility
for the crime away from the convict. This opportunity to shift much, if
not all, of the punishment assessed against convicts for their criminal
acts to their former attorneys, drastically diminishes the consequences
of the convicts’ criminal conduct and seriously undermines our system
of criminal justice.
Id. at 498. The court noted that both a negligence cause of action and a cause of
action for DTPA violations require the plaintiff to prove causation—proximate cause
for negligence and producing cause for DTPA violations—and “cause in fact” is an
element of both tests of causation. Id. The court stated, “We therefore hold that, as
a matter of law, it is the illegal conduct rather than the negligence of a convict’s
counsel that is the cause in fact of any injuries flowing from the conviction, unless
the conviction has been overturned.” Id. The court concluded that because Peeler
had not been exonerated, “her illegal acts remain the sole proximate and producing
causes of her indictment and conviction as a matter of law.” Id.
In his appellate brief, Stallworth cites language from Peeler suggesting that
“an official government document” demonstrating his innocence is enough to
overcome the sole-proximate-cause bar and that a formal exoneration is not
necessary. This language can be found in Chief Justice Phillips’s dissenting opinion
in Peeler, not in the plurality opinion, and thus is not binding authority. In Peeler,
11
the summary judgment proof included an affidavit from the prosecuting attorney
describing the offer of transactional immunity communicated to Peeler’s attorney.
Id. In Chief Justice Phillips’s opinion, in light of this affidavit, Peeler did not need
to establish that she had been exonerated “in order to prove with a high degree of
certainty that her attorneys’ conduct resulted in her indictment and conviction.” Id.
at 501 (Phillips, C.J., dissenting). Chief Justice Phillips advocated for a slightly
relaxed version of the plurality’s holding and stated,
Summary judgment still would be proper for a convicted criminal’s
former attorney, however, unless the plaintiff can provide testimony
from a current or former prosecutor, an official government document,
or some other evidence that meets this stringent burden, together with
further proof that the offer would have made a difference but for the
attorney’s conduct.
Id. at 502 (emphasis added).
Stallworth argues that the “official government document” in this case is the
fax cover letter and the letter that he sent to the criminal court along with the
complainant’s affidavit recanting the allegations against Stallworth. We first note
that reliance upon an official government document in the absence of a formal
exoneration was not the standard adopted by a majority of the Texas Supreme Court
in Peeler, and therefore it is not the standard that we apply in this case. Peeler
requires a plaintiff to demonstrate that he has been “exonerated on direct appeal,
through post-conviction relief, or otherwise” to negate the sole proximate cause bar
on a legal malpractice claim. Id. at 498 (plurality opinion). Stallworth’s pleadings
12
demonstrate that he has not been exonerated for the underlying offense. Second, the
documents that Stallworth attempts to rely on to show his innocence are (1) a cover
letter showing that he successfully faxed a document to the criminal court; (2) a letter
from Stallworth to the criminal court in which he explains that he faxed the
complainant’s affidavit; and (3) the complainant’s affidavit. These documents were
all generated by Stallworth or the complainant, not by the criminal court. None of
these documents are “official government” documents of the type contemplated by
Chief Justice Phillips’s dissent in Peeler.
The Texas Supreme Court has not revisited the substance of its holding in
Peeler. The Fourteenth Court of Appeals has stated that it applies an “expansive
interpretation of the doctrine articulated in Peeler,” noting that it has applied Peeler
to claims of legal malpractice, breach of contract, breach of fiduciary duty, and
requests for fee forfeiture. Wooley, 447 S.W.3d at 77–78; Futch, 435 S.W.3d at 391
(noting that court had previously held that “the Peeler doctrine applies to claims
based on allegedly actionable conduct connected with the conviction”). In Wooley,
the Fourteenth Court applied Peeler in the context of reviewing a Rule 91a dismissal
order and held that because Wooley’s causes of actions were “barred as a matter of
law under this court’s expansive interpretation of the Peeler doctrine,” the causes of
action had no basis in law or fact, and the trial court did not err in granting the Rule
91a motion to dismiss. 447 S.W.3d at 78.
13
Here, the criminal court appointed Ayers to defend Stallworth against an
assault charge. Stallworth was convicted of this offense and received a prison
sentence. Stallworth’s original petition and his amended petition indicated that he
was incarcerated at the time of filing both petitions.5 In his amended petition, filed
after Ayers moved to dismiss the case pursuant to Rule 91a, Stallworth
acknowledged that he had not been exonerated, stating, “Plaintiff claims that he does
have the right to sue the defendant for the claims stated above [breach of contract,
breach of fiduciary duty, gross negligence, and DTPA violations] even if he is not
exonerated.” Because Stallworth has not been exonerated for the underlying
offense—whether on direct appeal, by habeas corpus relief, or otherwise—his
criminal conduct is the cause in fact of his conviction, and his claims against Ayers
are barred as a matter of law under Peeler. See 909 S.W.2d at 498; Wooley, 447
S.W.3d at 78. As a result, Stallworth’s claims against Ayers have no basis in law.
See TEX. R. CIV. P. 91a.1; Wooley, 447 S.W.3d at 78. We therefore hold that the
trial court did not err in granting Ayers’ motion to dismiss and dismissing
Stallworth’s claims.
We overrule Stallworth’s first and second issues.
5
In his reply brief, Stallworth informed this Court that he has been released from
confinement for the underlying offense.
14
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Higley, and Lloyd.
15