                                  NO. 07-12-0018-CV

                            IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                    AT AMARILLO

                                       PANEL B

                                OCTOBER 15, 2012
                          _____________________________

                            WILLIAM M. WESTMORELAND,

                                                                 Appellant
                                            v.

                JOSEPH A. TURNER, P.C., JOSEPH A. TURNER AND
                           CHRISTOPHER M. PERRI,

                                                                 Appellees
                          _____________________________

             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

             NO. 99,678-A; HONORABLE DAN L. SCHAAP, PRESIDING
                        _____________________________

                               Memorandum Opinion
                          _____________________________

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

      William M. Westmoreland (Westmoreland) appeals from a take-nothing summary

judgment granted in favor of Joseph A. Turner, P.C., Joseph A. Turner, and Christopher

M. Perri (collectively Turner) with respect to Westmoreland’s claims of legal malpractice

against Turner. He contends the trial court 1) used an improper standard of review for

his legal malpractice claims, 2) used an improper standard of review for his breach of
fiduciary duty claims, and 3) erred in dismissing his lawsuit.   We modify the judgment

and affirm it as modified.

       We review a no-evidence motion for summary judgment under the standard

discussed in Kimber v. Sideris, 8 S.W.3d 672, 675-76 (Tex. App.–Amarillo 1999, no

pet.). To prevail on a claim of legal malpractice, the plaintiff must prove 1) the attorney

owed the plaintiff a duty, 2) the attorney breached that duty, 3) the breach proximately

caused the plaintiff’s injuries, and 4) damages occurred. Akin, Gump, Strauss, Hauer &

Feld, L.L.P. v. Nat’l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009).

Westmoreland was convicted of murder in 2003. His claims of malpractice, which were

filed in 2011, relate to the filing of post-conviction writs of habeas corpus in state and

federal court. Summary judgment was sought and granted on the basis there was no

evidence of any damages proximately caused by Turner’s actions.

       Standard of Review for Legal Malpractice

       The Texas Supreme Court has held that, as a matter of law, the sole proximate

cause of any injuries flowing from a conviction is the criminal conduct itself rather than

any negligence of counsel relating to that conviction. Peeler v. Luce, 909 S.W.2d 494,

498 (Tex. 1995).    Therefore, to be able to proceed on such a claim, the plaintiff must

show that he has been exonerated on direct appeal, through post-conviction relief, or in

some other manner. Id. at 497-98. Although the plaintiff in Peeler had raised claims of

malpractice with respect to her original trial, the same is true with respect to malpractice

claims regarding post-conviction matters. See Mendenhall v. Clark, No. 07-11-00213-

CV, 2012 Tex. App. LEXIS 1213, at *6-7 (Tex. App.–Amarillo February 16, 2012, pet.

denied) (mem. op.) (involving a post-conviction writ of habeas corpus).



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      Westmoreland argues that we should apply the standard of review discussed in

Millhouse v. Wiesenthal, 775 S.W.2d 626 (Tex. 1989), i.e., the plaintiff must show that

but for the attorney’s negligence, he would have prevailed on appeal.         Id. at 627.

However, Millhouse did not involve an underlying criminal conviction and was decided

prior to the Court’s ruling in Peeler. Because Westmoreland does not even deny his

guilt much less show that he has been exonerated in a judicial proceeding, summary

judgment was proper.

      Breach of Fiduciary Duty

      Westmoreland alleged claims of “breach of fiduciary duty” based on the following

misrepresentations:

      1. [Turner] misrepresented to Mr. Westmoreland that he could get past
      the time-bar by alleging, to the court, the negligence of Allen Boswell’s
      (attorney) loss of the trial record for a three (3) month period.

      2. Misrepresentation by alleging that mishandling of the state application
      by the state court could start another one-year period on a new claim and
      get him past the time-bar.

      3. Counsel misrepresented, to Mr. Westmoreland, that his ineffectiveness
      in miscalculating the one-year statute of limitations would allow him to
      pursue, pro se, a request for authorization from the Fifth Circuit Court of
      Appeals to toll the statute of limitations. Counsel drafted the claim and
      sent it to Mr. Westmoreland. The claim was filed pro se and denied.

Whether allegations labeled as breach of fiduciary duty, fraud, or some other cause are

actually claims for professional negligence is a question of law. Duerr v. Brown, 262

S.W.2d 63, 70 (Tex. App.–Houston [14th Dist.] 2008, no pet.). As long as the crux of the

complaint is inadequate legal representation, it is a claim for legal malpractice. Kimleco

Petroleum, Inc. v. Morrison, 91 S.W.3d 921, 924 (Tex. App.–Fort Worth 2003, pet.

denied).   The focus of a claim for breach of fiduciary duty is whether the attorney



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obtained an improper benefit from the representation as opposed to a failure to provide

adequate representation.       McGuire, Craddock, Strother & Hale, P.C. v. Transcont.

Realty Investors, Inc., 251 S.W.3d 890, 894 (Tex. App.–Dallas 2008, pet. denied);

Kimleco Petroleum, Inc. v. Morrison & Shelton, 91 S.W.3d at 923. When a party is

guilty of giving an erroneous legal opinion or bad advice, it constitutes malpractice.

Zidell v. Bird, 692 S.W.2d 550, 553 (Tex. App.–Austin 1985, no writ). We construe

Westmoreland’s allegations to fall within the latter category and to be subject to the

same proximate cause issues addressed under the first issue. Simply put, summary

judgment was also warranted on his claims of breached fiduciary duty.

       Dismissal

       Finally, Westmoreland argues that a dismissal is improper in a summary

judgment proceeding. The trial court’s order decreed that Westmoreland “take nothing

by his suit . . ., [and] that all claims asserted by Plaintiff . . . are dismissed with prejudice

. . . .” Several courts have held that a take-nothing summary judgment should not recite

that the lawsuit is dismissed. Settle v. George, No. 02-11-00444-CV, 2012 Tex. App.

LEXIS 5831, at *12 (Tex. App.–Fort Worth July 19, 2012, no pet.) (mem. op.); Mayo v.

Suemaur Exploration & Production LLC, No. 14-07-00491-CV, 2008 Tex. App. LEXIS

7164, at *8-9 (Tex. App.–Houston [14th Dist.] August 26, 2008, no pet.) (mem. op.);

Martinez v. Southern Pac. Transp., Co., 951 S.W.2d 824, 830 (Tex. App.–San Antonio

1997, no writ). Accordingly, we modify the judgment to substitute the word “denied” for

“dismissed.”




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The judgment is modified as stated above and in all other respects affirmed.



                                        Per Curiam




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