
                              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).
      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 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."


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

                                        Per Curiam
