Opinion issued December 6, 2016




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-16-00012-CV
                          ———————————
                     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.




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