                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-13-00359-CV


PHILIP GREGORY BYRD, LUCY                                        APPELLANTS
LEASING CO., LLC, AND PGB AIR,
INC.

                                       V.

PHILLIP GALYEN, P.C. D/B/A                                         APPELLEES
BAILEY & GALYEN ATTORNEYS
AT LAW AND R. KEITH SPENCER


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        FROM THE 342ND DISTRICT COURT OF TARRANT COUNTY

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                                  OPINION

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      In this appeal, we are asked to extend the sole-proximate-cause bar to

legal-malpractice claims arising in the context of a contempt order entered in a

civil case.   We decline to do so and reverse the trial court’s order granting

Appellees a partial summary judgment and remand the case to the trial court for

further proceedings.
                              I. BACKGROUND

     A. DIVORCE ACTION AND CONTEMPT ORDER FOR DISCOVERY VIOLATIONS

      In 2000, Appellant Philip Gregory Byrd retained Bourland, Wall & Wenzel,

P.C. (Bourland), to form Appellant PGB Air, Inc. (PGB), as a corporate entity and

to convert Appellant Lucy Leasing Co., LLC (Lucy Leasing), into a single-

member, limited-liability company with Byrd as the sole owner.      On April 24,

2006, Byrd retained Jerry Buckner to file a divorce action against Byrd’s wife,

Nancy Ann Simenstad. In November 2006, Simenstad served interrogatories

and requests for production on Byrd.       In December 2006, Appellee Phillip

Galyen, P.C., d/b/a/ Bailey & Galyen Attorneys at Law (Bailey & Galyen) bought

Buckner’s practice and assumed Byrd’s divorce action.

      On February 8, 2007, Simenstad filed a motion to compel discovery and

for sanctions based on Byrd’s failure to respond. On February 13, 2007, Bailey &

Galyen’s billing records show that interrogatory answers were prepared “based

on the information sent in by [Byrd].” Throughout March, April, and May 2007,

Bailey & Galyen continued to prepare, revise, and review the discovery

responses, and Byrd continued to provide “more” and “new” information. Byrd

signed interrogatory answers prepared by Bailey & Galyen on April 3, 2007;

however, Bailey & Galyen never served these answers on Simenstad. In June

2007, Appellee R. Keith Spencer, an attorney with Bailey & Galyen, assumed the

main responsibility for Byrd’s divorce action. The only discovery response ever



                                       2
filed by Bailey & Galyen to Simenstad’s discovery requests was a “supplemental”

response that provided “bank statements” on May 14, 2007.

      On September 11, 2007, the trial court ordered Byrd to respond to

Simenstad’s discovery requests no later than October 1, 2007, and to appear in

court at a later date “for the purposes of determining his compliance with this

order and for the imposition of all applicable sanctions.” At a subsequent hearing

on October 29, 2007, Byrd testified that he had provided some responsive

documents to Spencer but admitted that those documents had not been

produced to Simenstad during discovery. Byrd asserted that because he did not

have actual, physical possession of many of the requested documents,

Appellees told him that he did not have to produce them or try to obtain copies of

the documents. 1 Byrd also testified that he had withdrawn funds obtained from a

sale of community-property bank stock and made a capital contribution to Lucy

Leasing, which violated the trial court’s temporary orders. It was clear at the

hearing that Byrd was frequently evasive in answering questions and that the trial

court had lost patience with the continued noncompliance with the trial court’s

temporary and discovery orders. The trial court signed an “Interim Order” setting

a hearing for November 5, 2007 to (1) “[c]onsider the appropriate sanctions for

[Byrd’s] failure to comply with the discovery requested and ordered” and (2) allow

Byrd to show cause why he should not be held in contempt “for his failure to

      1
      Byrd did state that he was willing to execute the required waivers so that
Simenstad could obtain the requested records from the involved entities.

                                        3
comply with the court’s discovery and temporary orders with regard to alienating

or disposing of assets.”

      At the November 5 hearing, Spencer argued that Byrd “produced all of the

documents he has” and that Spencer “received a box that [Byrd] found . . . of

some envelopes and mailings and . . . a few receipts,” which were being copied

and inventoried to produce to Simenstad. Spencer also stated that Byrd had

asserted that “there are a quantity of documents that are in a filing cabinet . . . in

the marital residence . . . that [Byrd] does not have access to.”         Simenstad

strenuously disputed Spencer’s assertions that Byrd produced all he could and

pointed out that Byrd had misappropriated community assets by withdrawing the

funds from the stock sale. Simenstad specifically requested that Byrd be held in

contempt for violating the trial court’s orders compelling discovery:

            And it’s my estimation he’s earned a trip to jail, and he needs
      to spend some time in jail and think about the fact that this is not a
      game, and that he’s got to follow the rules, and he’s got to follow the
      Court’s order.

             Now, if 30 days in jail or so won’t do that, I don’t know what
      will. But my recommendation is he spends about a month in jail, and
      then let’s give him some time to try to follow the rules again. And if
      he doesn’t want to do that, let’s put him back in jail again.

             ....

             But Mr. Byrd is ultimately responsible for all of this. He’s the
      one who hasn’t complied. He hasn’t cooperated with this lawyer, he
      didn’t cooperate with the lawyer he had before. And [Simenstad] is
      absolutely at a loss to have a fair divorce trial until he’s brought to
      bear to produce these documents.



                                          4
      In a written order signed November 5, 2007, the trial court sanctioned Byrd

and struck his pleadings; prohibited him from “making any claim of separate

property,   economic    contribution,   reimbursement,    or   any   claim   for   a

disproportionate division of property in his favor”; and committed him to jail for

thirty days “for his failure to comply with the Court’s order [compelling discovery

responses].” See Tex. R. Civ. P. 215.1(d), 215.2(b).

      That same day, Spencer filed on Byrd’s behalf a notice of appeal,

appealing the trial court’s sanctions order. Three days later on November 8,

2007, Spencer filed on Byrd’s behalf a petition for writ of habeas corpus in this

court alleging illegal restraint. This court denied the habeas-corpus petition on

November 12, 2007. In re Byrd, No. 2-07-387-CV, 2007 WL 3408651, at *1 (Tex.

App.—Fort Worth Nov. 12, 2007, orig. proceeding) (mem. op.). See generally

Tex. Gov’t Code Ann. § 22.221(d) (West 2004) (granting courts of appeals

jurisdiction over habeas matters where contempt restraint arose from violation of

court order in a civil case). On November 29, 2007, the trial court modified the

sanctions order and suspended Byrd’s commitment “on the condition that he pay

. . . the sum of twenty thousand dollars for the benefit of [Simenstad] on or before

5:00 p.m. on November 30, 2007.”          Byrd timely paid the money and was

released.

      Also in November 2007, Simenstad added Lucy Leasing and PGB as

parties to the divorce action, and Bailey & Galyen and Spencer began



                                         5
representing Lucy Leasing and PGB. 2 On January 24, 2008, this court dismissed

Byrd’s appeal for want of jurisdiction because the sanctions order was not an

appealable order. Byrd v. Byrd, No. 2-07-404-CV, 2008 WL 204511, at *1 (Tex.

App.—Fort Worth Jan. 24, 2008, no pet.) (mem. op.). A final divorce decree was

entered on August 11, 2008. Byrd declared bankruptcy on January 27, 2010.

                       B. SUIT FOR LEGAL MALPRACTICE

      In August 2010, Byrd, Lucy Leasing, and PGB (collectively, Appellants)

filed a legal-malpractice suit against Bailey & Galyen, Spencer, Bourland, and

Buckner. 3 Bourland was dismissed as a defendant on November 9, 2012. On

June 25, 2013, Appellants filed an amended legal-malpractice petition raising

claims for negligence, breach of fiduciary duty, and fraud against Bailey &




      2
       Byrd, Lucy Leasing, and PGB allege that this change in representation
occurred after Bailey & Galyen and Spencer, while Byrd was in jail, misled
Bourland and informed Bourland that Byrd had hired them to replace Bourland.
      3
       Around this same time, Byrd filed suit against Simenstad and her divorce
attorneys raising claims essentially attacking their conduct during the divorce
proceedings. The trial court dismissed Byrd’s claims on summary judgment. On
appeal, this court affirmed the dismissal of Byrd’s claims for fraud, conspiracy,
conversion, defamation, and intentional infliction of emotional distress against
Simenstad; reversed the summary judgment as to Byrd’s claims against
Simenstad’s attorneys for fraud, conspiracy, and aiding and abetting; and
affirmed the remainder of the judgment. See Byrd v. Vick, Carney & Smith LLP,
409 S.W.3d 772, 782–83 (Tex. App.—Fort Worth 2013, pet. filed). After
Simenstad’s attorneys filed a petition for review in the Texas Supreme Court, the
supreme court requested a response, and the petition remains pending in that
court. See Tex. R. App. P. 53.3.

                                       6
Galyen, Spencer, and Bourland. 4      See generally Deutsch v. Hoover, Bax &

Slovacek, L.L.P., 97 S.W.3d 179, 184–85 n.1 (Tex. App.—Houston [14th Dist.]

2002, no pet.) (explaining legal-malpractice claim is raised through allegations of

negligence, fraud, breach of fiduciary duty, breach of contract, and the like in

order to seek redress for attorney’s actions or inactions during representation).

Appellants’ negligence claim against Bailey & Galyen and Spencer alleged the

following negligent acts occurred during the divorce proceeding:

      (1) failing to provide adequate legal representation to protect Byrd’s
      interests, including the failure to keep Byrd “apprised of the status of the
      case”;

      (2) failing to file responses to Simenstad’s discovery requests, “causing
      sanctions” against Byrd;

      (3) failing to request discovery from Simenstad, “resulting in sanctions”
      against Byrd;

      (4) failing to object or respond to Simenstad’s motion to compel and for
      sanctions, “causing . . . Byrd to be incarcerated and terminating his right to
      make a claim for separate property”;

      (5) “incorrectly drafting a Writ of Habeas Corpus and Notice of Appeal
      causing . . . Byrd’s prolonged incarceration”;


      4
        It appears the inclusion of Bourland as a defendant in the amended
petition was an error by Appellants because they continue to assert on appeal
that Bourland was dismissed as a defendant pursuant to settlement. But
Appellants raised a negligence claim against Bourland in their amended petition,
which was filed after the dismissal order. Because the trial court’s prior dismissal
was with prejudice, however, Appellants could not reassert their legal-
malpractice claims against Bourland. See De La Rosa v. Vasquez, 748 S.W.2d
23, 26 (Tex. App.—Amarillo 1988, no writ) (explaining effect of dismissal
pursuant to agreement of parties); Haliburton v. Riley, 589 S.W.2d 821, 822 (Tex.
Civ. App.—Waco 1979, no writ) (same); see also Tex. R. Civ. P. 162.

                                         7
      (6) falsely stating to Bourland that he no longer would represent Lucy
      Leasing and PGB;

      (7) interfering with Byrd’s “opportunity to consult” with Bourland;

      (8) failing to respond to Simenstand’s discovery requests;

      (9) encouraging Byrd to “restrain” Lucy Leasing and PGB;

      (10) failing to advise Byrd that Simenstad did not post a sufficient bond to
      justify a temporary restraining order against Lucy Leasing and PGB;

      (11) failing to challenge Simenstad’s “Motion for Ex Parte Relief” that
      sought to terminate Byrd’s visitation rights, which resulted in Byrd’s
      “inability to see his children until after the Final Divorce Decree was
      signed”; and

      (12) failing to object or respond to Simenstand’s failure to follow the trial
      court’s temporary orders.

Appellants further alleged that Appellees’ advice to Byrd regarding how the

proceeds from the bank-stock sale could be handled and their misstatements to

Bourland about their representation of Lucy Leasing and PGB amounted to a

breach of the fiduciary duty Appellees owed Appellants pursuant to the attorney-

client relationship and constituted a fraud.       Finally, Appellants sought the

equitable remedy of forfeiture of the attorneys’ fees. See Burrow v. Arce, 997

S.W.2d 229, 240 (Tex. 1999).

      Shortly before Appellants amended their petition, Appellees filed a no-

evidence motion for summary judgment contending, among other arguments,

that because Byrd had been convicted and incarcerated and had not been

exonerated, which was the sole proximate cause of any damages to Byrd, any

recovery by Appellants “for damages for legal malpractice arising from that

                                         8
conviction” was barred. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497–98

(Tex. 1995) (explaining sole-proximate-cause bar in context of criminal

conviction); see also Tex. R. Civ. P. 166a(i).       Appellees also raised a no-

evidence motion and a traditional motion for summary judgment, arguing their

right to judgment as a matter of law as to the merits of Appellants’ claims. See

Tex. R. Civ. P. 166a(c), (i).

      The trial court granted Appellees’ no-evidence motion “in part on

[Appellants’] defense of sole proximate cause” as stated in Peeler as to “all

damages alleged by [Appellants] to have been caused by Philip Byrd’s conviction

for criminal contempt.” The trial court specified that it was granting Appellees’

argument “as set forth in paragraph number 1, under the Grounds for No

Evidence Summary Judgment at page 4 of [Appellees’] Motion.”             Appellees’

paragraph 1 on page 4 of Appellees’ summary-judgment motion sought judgment

as a matter of law because “[t]here is no evidence that [Byrd] has been

exonerated on direct appeal, through post-conviction relief, or otherwise from his

conviction for criminal contempt, which is a necessary element of any claim for

damages for legal malpractice arising from that conviction.”

      The trial court did not rule on the remainder of Appellees’ summary-

judgment motions regarding Appellants’ claims seeking damages not arising from

the contempt order. Based on the parties’ agreement to an interlocutory appeal,

the trial court further permitted Appellants to immediately appeal the interlocutory

order. See Act of May 27, 2005, 79th Leg., R.S., ch. 1051, § 1, 2005 Tex. Gen.

                                         9
Laws 3512, 3512–13 (amended 2011 & 2013) (current version at Tex. Civ. Prac.

& Rem. Code Ann. § 51.014(d) (West Supp. 2013)); Tex. R. App. P. 28.2(a), 71

Tex. B.J. 676 (Tex. 2008) (current version at Tex. R. App. P. 28.3, which applies

only to appeals in cases filed in the trial court on or after Sept. 1, 2011).

                        C. AGREED INTERLOCUTORY APPEAL

      In an accelerated appeal from an interlocutory order, we may address only

those claims disposed of in the challenged interlocutory order and agreed upon

to be presented. See generally Tex. R. App. P. 28.2(c), 71 Tex. B.J. 676 (Tex.

2008) (requiring statement of issues presented in notice of appeal as prerequisite

to appellate jurisdiction over agreed appeal from interlocutory order). Here, no

party addresses which specific claims survived the trial court’s interlocutory

order, and the trial court’s order does not clearly delineate which claims were not

affected by its application of the sole-proximate-cause bar.

      During the summary-judgment hearing, the trial court indicated that all of

Appellants’ negligence claims would be barred under Peeler, and Appellants’

counsel averred that Appellants’ claims for breach of fiduciary duty and fraud

would not be affected by the application of Peeler. In their briefs on appeal,

Appellants and Appellees agree that Appellants’ claims for breach of fiduciary

duty and fraud were not addressed by the trial court’s interlocutory order because

those claims do not seek damages resulting from Byrd’s incarceration for

contempt. They further seem to agree, however, that all of Appellants’ legal-

malpractice claims grounded in negligence were dismissed by the trial court’s

                                          10
interlocutory order. Appellants’ notice of appeal states that the agreed appellate

issue is whether Peeler applies “to bar plaintiffs’ recovery of damages arising

from malpractice committed during a prior civil case.”

      It is clear that the trial court did not apply Peeler to bar Appellants’ claims

for breach of fiduciary duty or fraud. It appears that the trial court and the parties

believed that all of Appellants’ legal-malpractice claims grounded in negligence

were barred by Peeler. However, several of Appellants’ negligence allegations

do not allege damages “arising from” Byrd’s incarceration for contempt. Only

Appellants’ negligence allegations 2, 3, 4, 5 and 8 listed above led to or resulted

from the trial court’s contempt order for Byrd’s failure to respond to Simenstad’s

discovery requests. Appellants’ remaining negligence allegations are separate

and distinct from Appellees’ actions surrounding the contempt order. Therefore,

these claims would not be affected by Peeler, to the extent it applies, and were

not subject to the trial court’s interlocutory order.    For the remainder of this

opinion, any reference to “negligence claims” includes only those negligence

claims that alleged actions or inactions surrounding the remedial-contempt order,

including the attempted appeal and habeas-corpus action filed as a result of the

remedial-contempt order.

                                 II. DISCUSSION

      On appeal, Appellants raise a single issue: whether the trial court erred by

concluding that the sole-proximate-cause bar as announced in Peeler operated

to bar Appellants’ negligence claims.       Appellants argue that whether Peeler

                                         11
applies to bar legal-malpractice claims arising from a civil action is an issue of

first impression. See Dugger v. Arredondo, 408 S.W.3d 825, 833 (Tex. 2013)

(recognizing “we have not directly addressed” application of Peeler to “civil

defendants bringing legal malpractice actions”). Appellees assert that because

Byrd’s conduct was criminal, his legal-malpractice claims clearly are barred

under Peeler even though Bryd’s conduct arose in the context of a civil

proceeding. However, all parties agree that Peeler bars legal-malpractice suits

brought by a convicted criminal defendant absent exoneration.          Where the

parties differ is on the question of whether Byrd was criminally convicted such

that the sole-proximate-cause bar applies to foreclose Appellants’ negligence

claims against Appellees. Appellants argue Byrd was not criminally convicted as

contemplated by Peeler; Appellees argue Byrd was so convicted.

                           A. PEELER AND ITS PROGENY

      In Peeler, Carol Peeler was federally indicted with twenty-one criminal

offenses arising from an alleged scheme of planning illegal tax write-offs for

wealthy investors. 909 S.W.2d at 496. She subsequently entered into a plea-

bargain agreement under which she pleaded guilty to the felony offense of aiding

and assisting the filing of a false and fraudulent tax return, which was one of the

twenty-one indicted counts against her.      Id.; see 26 U.S.C.A. § 7206 (West

2011).   She was sentenced to five years’ probation; a $100,000 fine; and

$150,000 in restitution.   Peeler, 909 S.W.2d at 496.     What Peeler’s criminal

defense attorney failed to tell her was that the government previously had offered

                                        12
her absolute transactional immunity, insulating her from prosecution, in exchange

for her testimony against her colleagues. Id. Peeler brought a legal-malpractice

suit against her criminal defense attorney raising claims for negligence, violations

of the Deceptive Trade Practices Act, breach of contract, and breach of warranty.

Id.   The trial court granted Peeler’s criminal defense attorney’s summary-

judgment motion because Peeler’s own “illegal acts” in aiding and abetting the

filing of fraudulent tax returns were the sole proximate cause of her damages and

because she “did not seek to withdraw her [guilty] plea or set aside her

conviction.” Id. at 496, 498.

      The supreme court recognized that the sole-proximate-cause bar was an

issue of first impression:

      In the context of a criminal matter, we have not addressed whether
      the client’s criminal conduct is, as a matter of law, the sole proximate
      or producing cause of the client’s eventual conviction and damages,
      such that a legal malpractice claim may not be brought absent a
      showing that the plaintiff has been exonerated from the criminal
      conviction, either by direct appeal, post-conviction relief, or
      otherwise.

Id. at 496–97.     The supreme court recognized the important public policy

justifying the application of the sole-proximate-cause bar: allowing a convicted

criminal to take advantage of his own wrong would shock the public conscience,

foster disrespect for the courts, and discredit the administration of justice. Id. at

497 (quoting with approval State ex rel. O’Blennis v. Adolf, 691 S.W.2d 498, 504

(Mo. Ct. App. 1985)). Based on this public policy, the supreme court held that

“plaintiffs who have been convicted of a criminal offense may negate the sole

                                         13
proximate cause bar to their claim for legal malpractice in connection with that

conviction only if they have been exonerated on direct appeal, through post-

conviction relief, or otherwise.” Id. at 497–98. In short, “convicts may not shift

the consequences of their crime to a third party.” Id. at 498; see also Saks v.

Sawtelle, Goode, Davidson & Troilo, P.C., 880 S.W.2d 466, 469 (Tex. App.—San

Antonio 1994, writ denied) (“Can a client who contends that his willful criminal act

or criminal conviction [for bank fraud] directly resulted from his attorney’s

negligent services sue that attorney for legal malpractice?      We find that the

answer in Texas is no.”); Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d

441, 451 (Tex. App.—Houston [1st Dist.] 1993, no writ) (holding public policy

barred recovery when plaintiff was convicted of tax evasion, which was

“inextricably intertwined” with his legal-malpractice claims).

      After Peeler, the courts of appeals and the United States Court of Appeals

for the Fifth Circuit applied the sole-proximate-cause bar to foreclose legal-

malpractice suits filed by criminal defendants against “a convict’s trial counsel,

counsel on direct appeal, or counsel retained in connection with seeking habeas

or other post-conviction relief.” Meullion v. Gladden, No. 14-10-01143-CV, 2011

WL 5926676, at *4 (Tex. App.—Houston [14th Dist.] Nov. 29, 2011, no pet.)

(mem. op.); e.g., Huerta v. Shein, 498 F. App’x 422, 426–27 (5th Cir. 2012), cert.

denied, 133 S. Ct. 2027 (2013); Martin v. Sicola, No. 03-09-00453-CV, 2010 WL

4909987, at *2–3 (Tex. App.—Austin Dec. 1, 2010, no pet.) (mem. op.);

Poledore v. Fraley, No. 01-09-000658-CV, 2010 WL 3928516, at *3–5 (Tex.

                                         14
App.—Houston [1st Dist.] Oct. 7, 2010, pet. denied) (mem. op. on reh’g); Rogers

v. Harwell, No. 2-08-376-CV, 2009 WL 1506885, at *3 (Tex. App.—Fort Worth

May 28, 2009, pet. denied) (mem. op.); Martinez v. Alvarenga, No. 04-07-00283-

CV, 2008 WL 441806, at *1 (Tex. App.—San Antonio Feb. 20, 2008, no pet.)

(mem. op.); see also Golden v. McNeal, 78 S.W.3d 488, 492 (Tex. App.—

Houston [14th Dist.] 2002, pet. denied) (“The sole proximate cause of any

malpractice, negligence, or DTPA damages flowing from Golden’s conviction [for

aggravated sexual assault] was his own criminal conduct.”).       But the cases

applying Peeler uniformly arose from a plaintiff’s conviction under the penal code

or under a federal criminal statute and did not address the sole-proximate-cause

bar in the context of civil litigation. See also, e.g., Jones v. Sulla, No. 14-11-

00269-CV, 2012 WL 2048216, at *1, *3 (Tex. App.—Houston [14th Dist.] June 7,

2012, no pet.) (mem. op.) (holding legal-malpractice plaintiff convicted of theft

and felon in possession of a firearm could not maintain claim against criminal

defense attorney); Mendenhall v. Clark, No. 07-11-00213-CV, 2012 WL 512657,

at *1–3 (Tex. App.—Amarillo Feb. 16, 2012, pet. denied) (mem. op.) (holding

legal-malpractice plaintiff convicted of “felony offense” could not avoid sole-

proximate-cause bar to negligence claim against criminal defense attorney

because he produced no evidence of exoneration); Larson v. Hunt, No. 01-00-

01196-CV, 2002 WL 992410, at *1–2 (Tex. App.—Houston [1st Dist.] May 16,

2002, no pet.) (not designated for publication) (holding legal-malpractice

plaintiff’s claims for negligence and civil-rights violations against his criminal

                                       15
defense attorneys foreclosed by sole-proximate-cause bar because plaintiff not

exonerated of convictions for aggravated sexual assault of a child and indecency

with a child); cf. In re Hinterlong, 109 S.W.3d 611, 628–29 (Tex. App.—Fort

Worth 2003, orig. proceeding [mand. denied]) (op. on reh’g) (recognizing that

high-school student’s negligence, malicious-prosecution, and defamation claims

against school after student expelled for possession of alcohol on school

property not foreclosed by sole-proximate-cause bar because student acquitted

of criminal minor-in-possession charge). See generally 48 Robert P. Schuwerk &

Lillian B. Hardwick, Texas Practice Series:      Handbook of Texas Lawyer &

Judicial Ethics § 4:16 (2009) (“Peeler . . . remains an authoritative statement of

the law in Texas with respect to malpractice claims growing out of criminal

cases.”).   Thus, our question becomes whether the remedial-contempt order

against Byrd is tantamount to a criminal conviction thereby barring Appellants’

negligence claims under Peeler.

                   B. NATURE OF REMEDIAL-CONTEMPT ORDER

      The trial court issued the contempt order against Byrd as a mechanism to

enforce its prior discovery order. See Tex. R. Civ. P. 215.2(b)(6). Coercive or

civil contempt is used to encourage obedience to a previous order; remedial or

criminal contempt is available to punish those who disrespect a court’s order and

to deter others from engaging in disrespectful conduct. 5 Cadle Co. v. Lobingier,


      5
      Contempt is also categorized as direct (contempt occurring in the
presence of the court) or constructive (contempt occurring outside the court’s
                                       16
50 S.W.3d 662, 667 (Tex. App.—Fort Worth 2001, pets. denied) (en banc op. on

reh’g). See generally Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 849 (Tex.

1992) (stating three purposes of discovery sanctions). In a coercive-contempt

order, the court exerts its contempt power to persuade the contemnor to obey a

previous order and allows the contemnor to avoid punishment by obeying the

court’s order. Cadle Co., 50 S.W.3d at 667. With a remedial-contempt order, the

court punishes the contemnor for improper past acts, and no subsequent

voluntary compliance can enable the contemnor to avoid punishment. Id.

      If a remedial-contempt order imposes a fine of not more than $500 or

confinement in the county jail for not more than six months or both, the

punishment is characterized as “petty,” and the contemnor is not entitled to a

jury. Fahle v. Cornyn, 231 F.3d 193, 196 (5th Cir. 2000), cert. denied, 532 U.S.

1043 (2001); In re Newby, 370 S.W.3d 463, 466 (Tex. App.—Fort Worth 2012,

orig. proceeding); see also Tex. Gov’t Code Ann. § 21.002(b) (West 2004)

(providing maximum punishments allowed for contempt of a court). But even

with a remedial-contempt order imposing a petty punishment, the contemnor is

entitled to due process, which means no more than providing the contemnor

notice and a meaningful opportunity to be heard. See Fahle, 231 F.3d at 196; In

re Reece, 341 S.W.3d at 365; In re Miller, 584 S.W.2d 907, 908 (Tex. Civ. App.—

Dallas 1979, orig. proceeding); Ex parte Stanford, 557 S.W.2d 346, 348–49 (Tex.

presence). In re Reece, 341 S.W.3d 360, 365 (Tex. 2011) (orig. proceeding). It
is clear that the trial court’s contempt order was constructive.

                                      17
Civ. App.—Houston [14th Dist.] 1977, orig. proceeding). These requirements are

far less extensive than the protections provided a defendant held under a

criminal indictment. See, e.g., Stanford, 557 S.W.2d at 349. Indeed, Appellants

correctly point out that Byrd “was subject to no indictment or criminal

information,” “had no right to a jury,” “had no recourse to pardon or clemency,”

had no “right to bail,” and “had no right of appeal.”

      Importantly, when a remedial-contempt order is issued by a civil court for

the violation of a prior order, this court and the Texas Supreme Court, not the

Texas Court of Criminal Appeals, have jurisdiction over any resulting habeas-

corpus matter.    See Tex. Gov’t Code Ann. § 22.002(e) (West Supp. 2013),

§ 22.221(d) (West 2004); In re Reece, 341 S.W.3d at 371. Indeed, the Texas

Court of Criminal Appeals routinely defers to the Texas Supreme Court in

habeas-corpus matters if the challenged contempt order arises out of a civil

matter. In re Reece, 341 S.W.3d at 373.

                    C. APPLICATION TO LUCY LEASING AND PGB

      We first address Appellants’ argument that Lucy Leasing’s and PGB’s

negligence claims against Appellees cannot be barred by the remedial-contempt

order against Byrd:       “Obviously, neither Lucy [Leasing] nor PGB were

incarcerated, neither failed to respond to discovery, and neither was held in

contempt.”    Appellees respond that all damages arising from the remedial-

contempt order are barred by Peeler, “regardless of whether those damages

were allegedly sustained by Byrd or his companies.”

                                         18
         As stated above, one public policy underlying Peeler is directed toward

“preventing convicts from escaping the consequences of, or benefiting financially

from, their illegal acts.” 909 S.W.2d at 500. Here, Lucy Leasing and PGB were

not parties to the divorce action at the time the remedial-contempt order was

entered and had not been served with discovery requests.            In short, Lucy

Leasing and PGB were not participants in the “illegal acts” (i.e., the failure to

respond to Simenstad’s discovery requests) that led to the remedial-contempt

order.     Lucy Leasing and PGB were not cited for contempt and cannot be

considered “convicts.”       Because the public policies supporting the sole-

proximate-cause bar are not applicable to Lucy Leasing and PGB as non-parties

to the remedial-contempt order, Peeler does not operate to bar their negligence

claims against Appellees. Cf. Van Polen v. Wisch, 23 S.W.3d 510, 515–16 (Tex.

App.—Houston [1st Dist.] 2000, pet. denied) (holding convicted and non-

exonerated criminal could not sue criminal defense attorney for negligence or

breach of contract because all damages were caused by illegal conduct, but that

criminal’s parents raised genuine issue of material fact regarding whether

criminal defense attorney breached legal-services contract).

                              D. APPLICATION TO BYRD

         Byrd was not a “convict,” having been “convicted of a criminal offense” as

was the case in Peeler.       909 S.W.2d at 497–98.      Indeed, the “exoneration”

Peeler offers as an exception to the application of the sole-proximate-cause bar

is not available in the review of a contempt order issued in a civil case. The only

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relief from a remedial-contempt order issued by a civil court is a declaration that

the court’s prior order itself was void or that the contemnor did not receive due

process, not that the contemnor did not, in fact, violate the court’s prior order. Ex

parte Chambers, 898 S.W.2d 257, 259–60 (Tex. 1995) (orig. proceeding); Ex

parte Shaffer, 649 S.W.2d 300, 301–02 (Tex. 1983) (orig. proceeding); see also

In re Krueger, No. 03-12-00838-CV, 2013 WL 2157765, at *3 (Tex. App.—Austin

May 16, 2013, orig. proceeding) (mem. op.) (quoting Ex parte Gordon, 584

S.W.2d 686, 688 (Tex. 1979) (orig. proceeding), and noting that habeas corpus is

a collateral attack, which does not determine the guilt or innocence of the

relator). Thus, it would be a legal impossibility for a contemnor punished with a

remedial-contempt order from a civil court to show the exoneration contemplated

by Peeler.   This legal impossibility renders the public policies announced in

Peeler inapplicable to a remedial-contempt order arising in a civil case.

      Further, the nature of a remedial-contempt order entered in a civil action is

not of the same character as a criminal conviction such that Peeler would apply.

Other than the label “criminal” that routinely is applied to these types of contempt

orders, they are not the equivalent of criminal convictions. Indeed, the rights

provided to a contemnor are not as extensive or protective as those provided to a

defendant charged with a criminal offense. Similarly, any judicial conclusion that

a remedial-contempt order entered in a civil case was void must be sought from

either this court or the supreme court, not the court of criminal appeals.



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      Finally, it appears that Byrd later was able to purge himself of the contempt

portion of the trial court’s order. After Byrd paid Simenstad $20,000, the trial

court suspended Byrd’s confinement.        In short, the trial court’s order, while

originally remedial in nature, was later converted to a civil- or coercive-contempt

order by allowing Byrd to “carr[y] the keys of imprisonment in his own pocket,”

which would foreclose any argument that Peeler applied to bar Byrd’s

subsequent legal-malpractice claims. See Ex parte Busby, 921 S.W.2d at 389,

391 (Tex. App.—Austin 1996, pet. ref’d).

      For these reasons, we sustain Appellants’ sole issue.

                                III. CONCLUSION

      We conclude that an application of the narrow sole-proximate-cause bar to

legal-malpractice claims arising out of a civil remedial-contempt order would be

one step too far. The sole-proximate-cause bar applies in the context of legal-

malpractice claims brought by a convicted criminal defendant against his criminal

defense attorney, whether those actions occurred during the criminal trial, during

the appellate process after the criminal conviction, or during any post-conviction

relief efforts. The nature of a remedial-contempt order in a civil case differs from

a criminal conviction such that the policy considerations underlying the sole-

proximate-cause bar do not apply. Therefore, the sole-proximate-cause bar does

not foreclose Byrd’s legal-malpractice claims to the extent they allege damages

arising from Appellees’ actions leading to the civil remedial-contempt order. The

bar also cannot apply to Lucy Leasing and PGB, who were not parties to the

                                        21
remedial-contempt order. We reverse the trial court’s order granting Appellees a

partial summary judgment and remand to that court for further proceedings. See

Tex. R. App. P. 43.2(d).



                                                 /s/ Lee Gabriel
                                                 LEE GABRIEL
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; WALKER and GABRIEL, JJ.

DELIVERED: April 17, 2014




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