Opinion
No. 05-14-01235-CV
05-10-2016
DAVID ALAN SHEPHERD, Appellant v. LAWRENCE MITCHELL, Appellee
On Appeal from the 134th Judicial District Court Dallas County, Texas
Trial Court Cause No. DC-10-07702
MEMORANDUM OPINION
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Schenck
Appellant David Alan Shepherd ("Shepherd"), an inmate appearing pro se, sued his former attorney, appellee Lawrence Mitchell ("Mitchell"), for professional negligence in connection with applications for writ of habeas corpus following his convictions for two criminal offenses. Mitchell filed a motion for traditional-summary judgment on the ground that Shepherd cannot prove that Mitchell's negligence caused any of the injuries flowing from Shepherd's convictions. The trial court granted Mitchell's motion. On appeal, Shepherd argues the trial court erred in granting Mitchell's motion and in not striking Mitchell's supporting affidavit. In a supplemental brief, Shepherd added a complaint about the trial court's refusal to issue findings-of-fact and conclusions-of-law. Mitchell did not file an appellee's brief in this appeal. For the following reasons, we affirm the trial court's judgment. Because the dispositive issues in this case are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.
BACKGROUND
In 2000, Shepherd was convicted of aggravated kidnapping and aggravated sexual assault. His convictions were affirmed on appeal. Mitchell did not represent Shepherd at trial or on appeal in those cases. Rather, Shepherd's family hired Mitchell in 2001 to research and file applications for writ of habeas corpus on behalf of Shepherd. Shepherd's family paid Mitchell $10,000 for these services. Shepherd sued Mitchell claiming he committed malpractice by failing to file the applications for writ of habeas corpus, by failing to keep him informed of the status of the matter, and by refusing to return his file and the fee paid to him, thereby depriving him of the ability to hire another lawyer.
Mitchell filed a motion for summary judgment relying upon the Peeler case as the sole ground for summary judgment. See Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995). In Peeler, the supreme court held that "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. at 498. In his initial response to Mitchell's motion, Shepherd represented that all he was seeking by way of his suit was the return of his trial records and the fee his family paid Mitchell. Shepherd indicated that the fee was returned to him pursuant to a restitution order entered against Mitchell in a State Bar of Texas disciplinary action. After considering the pleadings, the affidavits presented by both parties, and the arguments of Mitchell's counsel and Shepherd himself, the trial court granted the motion.
DISCUSSION
A. Application of Peeler
In his first issue, Shepherd argues that the Peeler "sole proximate cause bar" does not apply to his case because his lawsuit against Mitchell is independent of his criminal cases. Other Texas appellate courts have considered and rejected similar, if not identical, arguments. See Meullion v. Gladden, No. 14-10-01143-CV, 2011 WL 5926676, at *2 (Tex. App.—Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.) (rejecting Meullion's argument his claims against Gladden were not precluded under Peeler because Gladden was not "connected to the conviction" as trial counsel, "nor was he the attorney on direct appeal."); Butler v. Mason, No. 11-05-00273-CV, 2006 WL 3747181, at *1-2 (Tex. App.—Eastland Dec. 21, 2006, pet. denied) (per curiam) (rejecting Butler's argument that it was Mason's alleged misbehavior in the handling of the applications for writs of habeas corpus that resulted in his injuries and that, therefore, the trial court abused its discretion when it relied on the bar stated in the Peeler case); Falby v. Percely, No. 09-04-00422-CV, 2005 WL 1038776 at *2 (Tex. App.—Beaumont May 5, 2005, no pet.) (mem.op.) (rejecting Falby's argument that Peeler did not apply to bar his civil claims against his attorney percely because he was suing percely for failing to file a post-conviction application for writ of habeas corpus, not in connection with his conviction).
This case is most similar to the Meullion case. In that case, Meullion brought claims against an attorney retained to draft a post-conviction petition for writ of habeas corpus that was not filed, in which Meullion alleged that the attorney wrongfully obtained a $10,000 fee from him, thus depriving him of the financial resources to retain another attorney to seek habeas relief. See Meullion, 2011 WL 5926676, at *2-4. The Meullion court determined the Peeler doctrine applied to Meullion's claim for damages for conduct alleged to have occurred after the criminal conviction and that did not directly result from the conviction. See id. The Butler and Falby courts likewise applied the Peeler doctrine to claims involving post-conviction applications for writ of habeas corpus, finding they relate to and flow from the convictions. Butler, 2006 WL 3747181, at *2; Falby, 2005 WL 1038776 at *2.
We agree with and adopt the reasoning in Meullion, Butler, and Falby, and conclude Peeler applies in this case and bars Shepherd's malpractice claim against Mitchell.
Next, Shepherd argues that Peeler's holding applies only to cases in which the convicted person pled guilty. We disagree. Although Peeler did involve a guilty plea, the holding in that case is not limited to guilty pleas. Owens v. Harmon, 28 S.W.3d 177, 179 (Tex. App.—Texarkana 2000, pet. denied). The opinion makes clear that a person convicted of a crime cannot pursue a malpractice claim against his attorney unless he has established his innocence by direct appeal, post-conviction relief, or other legal proceedings. Peeler, 909 S.W.2d 494.
Shepherd also urges that a balancing of policy interests would preclude summary judgment because a fact question would naturally exist. The Peeler court balanced the interests and decided to side with the majority of courts and hold that plaintiffs who have been convicted of a criminal offense may negate the sole proximate cause bar to their claim for legal malpractice only if they have been exonerated on direct appeal, through post-conviction relief, or otherwise. Id. at 497-98. No further balancing of interests remains for this Court to consider.
Because we agree with the trial court that this case is controlled by Peeler and because Shepherd failed to show that he had been exonerated of the crimes for which he was convicted, the trial court's conclusion that Shepherd could not pursue his professional malpractice claims against his former attorney was legally sound. See Owens, 28 S.W.3d at 179 (affirming grant of summary judgment to former attorney where convicted criminal plaintiff failed to prove exoneration as required by Peeler). Accordingly, we overrule Shepherd's first issue.
B. Summary Judgment Grounds
In his second issue, Shepherd argues the trial court erred in granting Mitchell's summary judgment on a ground not presented in the motion, specifically damages. Under Texas Rule of Civil Procedure 166a, a motion for summary judgment must "state the specific grounds therefor," and the trial court is to render judgment if "the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response." TEX. R. CIV. P. 116a(c); Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993). A motion for summary judgment "must stand or fall on the grounds expressly presented in the motion." McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 341 (Tex. 1993). Put another way, "a summary judgment cannot be sustained on a ground not specifically set forth in the motion." Rutherford v. Whataburger, Inc., 601 S.W.2d 441, 443 (Tex. Civ. App.—Dallas 1980, writ ref'd n.r.e.).
Mitchell moved for traditional-summary judgment on the basis that Shepherd could not prove the causation element required in a claim for legal malpractice because he was not exonerated of the underlying criminal convictions. The trial court's summary judgment order grants the motion due to the lack of a genuine issue of any material fact. This declaration does not contain a specific basis for the granting of the motion and constitutes a grant on any and all grounds asserted. The fact that the summary judgment order goes on to state the trial court "further finds that the claims of [Shepherd], as filed, herein, are founded in negligence and that [Shepherd] can show no damages in law upon said claims . . . therefore, that [Mitchell] is entitled to a take nothing judgment as a matter of law," does not limit the basis for granting summary judgment to a lack of damages. The term "further" means in addition. WEBSTER THIRD NEW INTERNATIONAL DICTIONARY 924 (1981). Therefore, the additional finding concerning a lack of damages is expansive rather than restrictive. The trial court's judgment is broad enough to cover the causation basis asserted by Mitchell as the ground for summary judgment. We overrule Shepherd's second issue.
C. Affidavit Based on Personal Knowledge
In his third issue, Shepherd argues the trial court should have stricken Mitchell's affidavit because the affidavit does not contain an averment that its contents are based upon personal knowledge. Assuming, without deciding, Shepherd preserved this complaint for appeal, we note that an affidavit does not need to specifically state that it is made on personal knowledge if the statements in the affidavit show the affiant was speaking from personal knowledge. Grand Prairie Indep. Sch. Dist. v. Vaughan, 792 S.W.2d 944, 945 (Tex. 1990). Indeed, the affiant's declaration of personal knowledge does not establish that fact. Ellis v. Renaissance on Turtle Creek Condo Ass'n, Inc., 426 S.W.3d 842, 853 (Tex. App.—Dallas 2014, pet. denied). We conclude Mitchell's affidavit was made on personal knowledge. Mitchell stated that "[He] was retained by David Shepherd to represent him in his attempt to file post conviction applications for Writ of Habeas Corpus challenging [Shepherd's] conviction for two felony offenses: Aggravated Kidnapping and Aggravated Sexual Assault." Having been hired by Shepherd to file post-conviction applications for writ of habeas corpus, Mitchell gained personal knowledge of Shepherd's convictions, and the status of same, as well as the status of Shepherd's incarcerations. Therefore, Mitchell's statements "Mr. Shepherd was convicted and sentenced for each offense. Mr. Shepherd's appeal in each case was affirmed. He has not been granted relief from his convictions by post conviction action or by any other remedy. Mr. Shepherd has never been exonerated from either conviction. Mr. Shepherd is currently incarcerated in the Institutional Division of the Texas Department of Criminal Justice" are based upon his personal knowledge gained through his representation of Shepherd.
Shepherd also argues Mitchell's affidavit is not clear, positive, direct, credible, free from contradiction, and susceptible of being readily controverted. Objections that statements of an interested witness are not clear, positive, direct, credible, and free from contradiction are defects of form, which may not be raised for the first time on appeal. Choctaw Props., LLC. v. Aledo Indep. Sch. Dist., 127 S.W.3d 235, 241 (Tex. App.—Waco 2003, no pet.). Shepherd did not raise these objections in the trial court. Therefore, he cannot raise them on appeal. See DMC Valley Ranch, L.L.C. v. HPSC, Inc., 315 S.W.3d 898, 905 (Tex. App.—Dallas 2010, no pet.).
Shepherd finally argues Mitchell's affidavit is conclusory. Statements in an affidavit amount to defects of substance, which may be raised for the first time on appeal. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.—Dallas 2004, pet. denied). "A conclusory statement is one that does not provide the underlying facts to support the conclusion." Id. at 751 (quoting Choctaw Props., 127 S.W.3d at 242). The only statement in Mitchell's affidavit than can be construed to be a conclusion is his statement that "Since no issues were available, no writs were filed." This statement does not impact the granting of summary judgment on causation grounds.
Because Mitchell's affidavit was made on personal knowledge, because Shepherd failed to preserve his complaint that the affidavit is not clear, positive, direct credible, free from contradiction, and susceptible of being readily controverted, and because Shepherd's objection concerning Mitchell's conclusory statement does not impact the summary judgment, we overrule Shepherd's third issue.
D. Findings-of-Fact and Conclusions-of-Law
In his supplemental brief, Shepherd argues the trial court should not have refused his request for findings-of-fact and conclusions-of-law. According to Rules 296 and 297 of the Texas Rules of Civil Procedure, a trial judge must prepare findings-of-fact in cases tried in the district court without a jury. See TEX. R. CIV. P. 296, 297. When a trial court grants summary judgment relief, however, findings-of-fact are not appropriate because the summary judgment proceeding has not been "tried" within the meaning of rule 296. See IKB Indus. (Nigeria) Ltd. v. Pro-Line Corp., 938 S.W.2d 440, 441 (Tex. 1997). Indeed, findings-of-fact and conclusion-of-law have no place in a summary judgment proceeding. Linwood v. NCNB Texas, 885 S.W.2d 102, 103 (Tex. 1994). Consequently, the trial court did not err in refusing to issue findings-of-fact and conclusions-of-law. We overrule Shepherd's issue concerning same.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 141235F.P05
JUDGMENT
On Appeal from the 134th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DC-10-07702.
Opinion delivered by Justice Schenck. Justices Bridges, and Lang-Miers participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee LAWRENCE MITCHELL recover his costs of appeal from appellant DAVID ALAN SHEPHERD. Judgment entered this 10th day of May, 2016.