                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-17-00335-CV

CARLTON E. BRANTNER,
                                                             Appellant
v.

GEORGE M. ROBINSON,
                                                             Appellee



                           From the 87th District Court
                             Freestone County, Texas
                           Trial Court No. CV-17-072-B


                          MEMORANDUM OPINION


      In this appeal, appellant, Carlton E. Brantner, advancing pro se, challenges the trial

court’s granting of a summary judgment in favor of appellee, George M. Robinson. In

what we construe as two issues, Brantner argues that the trial court erred by granting

summary judgment in favor of Robinson on limitations grounds as to claims Brantner

brought in his original petition. Brantner further asserts that the trial court erred by

failing to consider his remaining causes of action. We reverse and remand.
                                      I.     BACKGROUND

        As indicated in his original petition, Brantner’s claims all pertain to Robinson’s

actions as Brantner’s trial counsel in a criminal matter. Specifically, Brantner contends

that:

        On Feb. 9, 2015 George M. Robinson (hereinafter referred to as “Defendant”
        or “Robinson”) wrote a letter to Carlton E. Brantner “Petitioner” in regards
        to a plea agreement presented to petitioner by defendant and County
        Attorney Chris Martin on Jan. 22, 2015. Defendant recommended that
        petitioner accept the plea agreement as it was presented affording a chance
        for parole at (50%) or when half of sentence was complete. Petitioner
        accepted and signed the agreement based on the chance for parole and
        petitioner[‘]s concerns over the effectiveness of defendant in an actual trial.
        Defendant continues to explain that as he and County Attorney, in their
        discussion of the offer prior to presenting it to petitioner, understood the
        charge to provide parole. Apon [sic] further research, defendant admits
        that he and County Attorney had a misunderstanding of the law and
        through miscommunication, erroneously advised petitioner his chance for
        parole.

Apparently, a motion for new trial and an 11.07 writ were filed based on this purported

error on behalf of Brantner. However, according to Brantner, the motion for new trial

and 11.07 writ were denied.

        Thereafter, on March 2, 2017, Brantner filed his original petition in the trial court,

requesting the following:

        A declaration that the acts and omissions described herein violated
        Plaintiff’s [Brantner] rights under the Constitution and laws of the United
        States.

        A preliminary and permanent injuction [sic] ordering defendant; George
        Robinson to stop causing harm by slander, libel, or in any other form of
        retaliation.


Brantner v. Robinson                                                                      Page 2
               ...

       Compensatory damages in the amount of $15,000 for each act, violation, or
       omission as discribed [sic] herein and as follows.

               1. Damages for deficient performance as trial counsel, providing
                  erroneous advise [sic], and miscommunication leading to
                  ineffective assistance of counsel.

               2. Damages for deficient performance in filing the Motion for New
                  Trial in not utilizing all available argument in strategy for relief.

               3. Damages for deficient performance in keeping Plaintiff up to
                  date and current in regards to the Motion being overruled and
                  deadline on filing an appeal.

               4. For committing perjury on the Aug. 15, 2016 affidavit for falsely
                  stating as fact what evidence state had (videos from computer,
                  letters to victim), and what department investigated.

               5. For not reviewing the discovery and other available evidence, for
                  basing his affidavit to reflect that of County Attorney’s with the
                  intent to do harm.

               6. For violating Attorney-Client Priviledge [sic], and for stating as
                  fact an opinion on said affidavit in violation of the Rules of Texas
                  Jurisprudence Forms: Pleading and Practice Chapter 16.

       Robinson filed an answer, asserting special exceptions, a general denial, and the

affirmative defenses of statute of limitations and waiver. Robinson also filed a traditional

motion for summary judgment, arguing that Brantner did not plead any cognizable cause

of action other than claims of “Negligence-Legal Malpractice” and that the statute of

limitations had run by the time Brantner filed his March 2, 2017 original petition.




Brantner v. Robinson                                                                      Page 3
       After a hearing, the trial court granted summary judgment in favor of Robinson

on his affirmative defense of statute of limitations. Specifically, in its summary-judgment

order, the trial court stated:

       The Court finds Defendant is entitled to summary judgment as a matter of
       law because Plaintiff’s claims are solely for Negligence-Legal Malpractice.
       A two year statute of limitations period applies pursuant to
       TEX.CIV.PRAC. & REM.CODE ANN. §16.003(a). Plaintiff was aware of his
       injury on February 12, 2015 and further finds that Plaintiff’s petition was
       not filed until March 2, 2017, which time of filing was beyond the 2 year
       applicable limitations period for filing such a claim.

This appeal followed.

                                  II.     STANDARD OF REVIEW

       We review a trial court's decision to grant or deny a summary judgment de novo.

Tex. Mun. Power Agency v. Pub. Util. Comm'n of Tex., 253 S.W.3d 184, 192 (Tex. 2007);

Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). Our review is limited to

consideration of the evidence presented to the trial court. See Mann Frankfort Stein & Lipp

Advisors, Inc. v. Fielding, 289 S.W.3d 844, 848 (Tex. 2009); Mathis v. Restoration Builders, Inc.,

231 S.W.3d 47, 52 (Tex. App.—Houston [14th Dist.] 2007, no pet.). To prevail on a

traditional motion for summary judgment, the movant must show that no genuine issue

of material fact exists and that the movant is entitled to judgment as a matter of law. TEX.

R. CIV. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002). A defendant

moving for summary judgment must either: (1) disprove at least one element of the

plaintiff's cause of action; or (2) plead and conclusively establish each essential element



Brantner v. Robinson                                                                       Page 4
of an affirmative defense to rebut the plaintiff's cause. Cathey v. Booth, 900 S.W.2d 339,

341 (Tex. 1995). The movant must conclusively establish its right to judgment as a matter

of law. See MMP, Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986); see also Shah v. Moss, 67

S.W.3d 836, 842 (Tex. 2001) (noting that a defendant moving for summary judgment on a

statute of limitations affirmative defense must prove conclusively all elements of that

defense). A matter is conclusively established if reasonable people could not differ as to

the conclusion to be drawn from the evidence. See City of Keller v. Wilson, 168 S.W.3d 802,

816 (Tex. 2005).

       If the movant meets its burden, the burden then shifts to the non-movant to raise

a genuine issue of material fact precluding summary judgment. See Centeq Realty, Inc. v.

Siegler, 899 S.W.2d 195, 197 (Tex. 1995). The evidence raises a genuine issue of material

fact if reasonable and fair-minded jurors could differ in their conclusions in light of all of

the summary-judgment evidence. Goodyear Tire & Rubber Co. v. Mayes, 236 S.W.3d 754,

755 (Tex. 2007). We take as true all evidence favorable to the non-movant, and we indulge

every reasonable inference and resolve any doubt in the non-movant's favor. Dorsett, 164

S.W.3d at 661.

                 III.   BRANTNER’S NEGLIGENCE-LEGAL-MALPRACTICE CLAIMS

       In his first issue, Brantner complains that the trial court erred by granting

summary judgment as to his Negligence-Legal-Malpractice claims on the ground of

statute of limitations. We agree.



Brantner v. Robinson                                                                    Page 5
       In his original petition, Brantner asserted six claims against Robinson for deficient

performance as trial counsel, including Robinson’s purported misrepresentation

regarding the plea agreement and the possibility of parole and the handling of a

subsequent motion for new trial. Even construing Brantner’s pleadings liberally, these

claims sound in legal malpractice. See Stallworth v. Ayers, 510 S.W.3d 187, 190 (Tex.

App.—Houston [1st Dist.] 2016, no pet.) (“A cause of action that arises out of bad legal

advice or improper representation is legal malpractice.” (citations omitted)); see also

Murphy v. Gruber, 241 S.W.3d 689, 693 (Tex. App.—Dallas 2007, pet. denied)

(“Professional negligence, or the failure to exercise ordinary care, includes giving a client

bad legal advice or otherwise improperly representing the client. 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.” (internal

citations omitted)).

       In 1995, the Texas Supreme Court issued its opinion in Peeler v. Hughes & Luce, 909

S.W.2d 494 (Tex. 1995). In Peeler, a criminal defendant filed suit against her defense

attorney, alleging malpractice and other claims. Id. at 496. Citing primarily public-policy

concerns, the Peeler Court held that, as a matter of law, the criminal defendant’s own

conduct was the sole proximate cause of her indictment and conviction and,

consequently, her claimed damages. Id. at 495-96. As such, the Peeler Court concluded



Brantner v. Robinson                                                                   Page 6
that, absent exoneration on direct appeal or post-conviction relief, a criminal defendant

may not sue his or her attorney for malpractice. Id. at 497-98.

       Applying Peeler to the case at bar yields a finding that Brantner cannot pursue a

malpractice cause of action against Robinson, his trial counsel, unless and until he has

been exonerated on direct appeal or through post-conviction relief.        See id. at 498.

Therefore, because Brantner’s conviction has not been overturned, as a matter of law, he

cannot prove causation for any claim against Robinson, especially considering his

malpractice claims are not cognizable at this time. See id. at 495-98; see also Golden v.

McNeal, 78 S.W.3d 488, 492 (Tex. App.—Houston [14th Dist. 2002, pet. denied)

(“Furthermore, legal malpractice is essentially a claim for professional negligence. To

recover under malpractice, negligence, or the DTPA, a plaintiff must prove causation.”

(internal citation omitted)).

       Nevertheless, Robinson asserted a statute-of-limitations defense in his summary-

judgment motion, and the trial court granted Robinson summary judgment expressly on

Robinson’s statute-of-limitations defense.

       A statute of limitations is a procedural device operating as a defense to limit the

remedy available from an existing cause of action. Cadle Co. v. Wilson, 136 S.W.3d 345,

350 (Tex. App.—Austin 2004, no pet.). Generally, a cause of action accrues, and the

statute of limitations begins to run, when facts come into existence that authorize a

claimant to seek a judicial remedy. Exxon Corp. v. Emerald Oil & Gas Co., 348 S.W.3d 194,



Brantner v. Robinson                                                                Page 7
202 (Tex. 2011) (op. on reh'g) (citing Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d

211, 221 (Tex. 2003)); see Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d

507, 514 (Tex. 1998).

       In light of Peeler, Brantner was not authorized to file suit against Robinson until

his conviction is overturned—something that has not yet happened. See 909 S.W.2d at

497-98. Accordingly, Brantner’s cause of action has not yet accrued and, thus, cannot be

barred by the statute of limitations. See id.; Cooper v. Trent, 551 S.W.3d 325, 337 (Tex.

App.—Houston [14th Dist.] 2018, pet. denied) (“We conclude that the claims alleged by

Cooper, if true, would undermine the validity of her criminal conviction. Therefore, until

she has proved her conviction has been reversed, overturned, or invalidated in some

manner, her claims have no basis in law and were properly dismissed on Trent’s Rule 91a

motion.” (internal citations omitted)); see also Exxon Corp., 348 S.W.3d at 202; see Johnson

& Higgins of Tex., Inc., 962 S.W.2d at 514. Accordingly, we conclude that the trial court

erred in granting summary judgment in favor of Robinson on the basis of the statute of

limitations. See Tex. Mun. Power Agency, 253 S.W.3d at 192; Valence Operating Co., 164

S.W.3d at 661; see also Peeler, 909 S.W.2d at 495-98; Hughes, 821 S.W.2d at 157. We sustain

Brantner’s first issue.

                          IV.   BRANTNER’S PURPORTED OTHER CLAIMS

       Although he did not specifically allege any causes of action other than those

sounding in legal malpractice in his original petition, Brantner attempts to convert many



Brantner v. Robinson                                                                    Page 8
of his claims to causes of action for violations of the Texas Deceptive Trade Practices Act,

fraud, violations of the Texas Rules of Professional Conduct, slander, and breach of

fiduciary duty in his appellant’s brief and complains that the trial court did not consider

these claims. We construe this as his second issue.

       Earlier, we concluded that the claims contained in Brantner’s original petition

sound in legal malpractice. The anti-fracturing rule prevents plaintiffs from converting

what are actually professional-negligence claims against an attorney into other claims,

such as fraud, breach of contract, breach of fiduciary duty, or violations of the Texas

Deceptive Trade Practices Act. See Won Pak v. Harris, 313 S.W.3d 454, 457 (Tex. App.—

Dallas 2010, pet. denied) (citing Beck v. Law Offices of Edwin J. (Ted) Terry, Jr., P.C., 284

S.W.3d 416, 426-27 (Tex. App.—Austin 2009, no pet.)); Gruber, 241 S.W.3d at 693; see also

Echols v. Gulledge & Sons, LLC, No. 10-13-00419-CV, 2014 Tex. App. LEXIS 10190, at *12

(Tex. App.—Waco Sept. 11, 2014, pet. denied) (mem. op.). Because Brantner’s claims

sound in legal malpractice, and because the anti-fracturing rule prevents Brantner from

converting his legal-malpractice claims against his trial counsel into other claims, we

overrule Brantner’s second issue.

                                     V.     CONCLUSION

       Having sustained Brantner’s first issue, we reverse the judgment of the trial court

and remand for proceedings consistent with this opinion.




Brantner v. Robinson                                                                   Page 9
                                              JOHN E. NEILL
                                              Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
(Chief Justice Gray concurring)
Reversed and remanded
Opinion delivered and filed August 14, 2019
[CV06]




Brantner v. Robinson                                          Page 10
