Opinion issued October 11, 2012




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                          ————————————
                             NO. 01-10-00952-CV
                          ———————————
                    STEVEN D. CATHCART, Appellant
                                      V.
                        ROBERT R. SCOTT, Appellee



                   On Appeal from the 61st District Court
                           Harris County, Texas
                       Trial Court Case No. 0860427



                        MEMORANDUM OPINION

      Appellant Stephen Duane Cathcart appeals the trial court’s summary

judgment in favor of appellee Robert Scott on Cathcart’s legal-malpractice claim
against Scott related to Scott’s representation of Cathcart in a prior criminal

proceeding. We affirm.

      A. The Criminal Proceedings

      Cathcart was charged with aggravated robbery as a habitual offender, which

carries a potential sentence of 25 to 99 years. Scott was appointed to defend

Cathcart. Scott negotiated a plea agreement in which the State reduced the charge

to second-degree felony robbery. Cathcart then pleaded guilty and received a

sentence of 12 years’ confinement. In that plea agreement, Cathcart “signed a

stipulation of evidence” and expressly “waive[d] any right of appeal which I may

have should the court accept the foregoing plea bargain.” Cathcart v. State, No.

01-07-01026-CR, 2008 WL 5178908, at *1 (Tex. App.—Houston [1st Dist.] Dec.

11, 2008, pet ref’d).

      Cathcart appealed his conviction resulting from the guilty plea to this Court.

We determined that we lacked jurisdiction and dismissed the appeal based on

Cathcart’s waiver of his appellate rights as part of the plea agreement with the

State. Id. Cathcart then filed a writ of habeas corpus arguing that “he received

ineffective assistance of counsel, that his plea was involuntary, and that his plea

was ‘unlawfully induced.’” Ex Parte Cathcart, No. WR-32594-04, 2010 WL

1910305, at *1 (Tex. Crim. App. May 12, 2010). The trial court “signed findings

of fact and conclusions of law recommending that relief be denied.” Id. The Court

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of Criminal Appeals “undert[ook] an independent review of all the evidence in the

record” and “agree[d] that relief should be denied.” Id.

      B. The Underlying Proceedings

      Cathcart then filed the underlying civil suit against Scott alleging that he was

damaged by Scott’s refusal to withdraw as Cathcart’s criminal defense attorney

when Cathcart requested he do so.

      Scott moved for summary judgment twice, contending that he breached no

duty to Cathcart.    After his first motion was denied, Scott added evidentiary

support to his motion.      He cited the statute requiring appointed counsel to

“represent the defendant until charges are dismissed, the defendant is acquitted,

appeals are exhausted, or the attorney is permitted or ordered by the court to

withdraw as counsel for the defendant after a finding of good cause is entered on

the record.” TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (Vernon Supp. 2011). In

support of his factual assertion that, despite Cathcart’s dissatisfaction with him, the

trial judge “denied Mr. Cathcart’s request to fire Mr. Scott and had Mr. Scott

continue to work on Mr. Cathcart’s case,” he attached an affidavit from the trial

court judge that presided over the criminal proceedings. That affidavit confirmed

that Scott was not permitted to withdraw as Cathcart’s counsel.

      In response, Cathcart argued that the trial judge’s affidavit is not sufficient to

support Scott’s summary judgment because he was not given the opportunity to

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cross-examine judge. He also reiterated the view that his guilt or innocence was

irrelevant to causation in his malpractice claim because he was complaining about

Scott’s failure to withdraw pre-trial.

      On September 30, 2010, the trial court signed a final summary judgment in

Scott’s favor, and Cathcart brought this appeal.

                            STANDARD OF REVIEW

      A traditional summary judgment is proper when a movant establishes there

is no genuine issue of material fact and is entitled to judgment as a matter of law.

TEX. R. CIV. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640,

644 (Tex. 1995). A defendant is entitled to summary judgment if the evidence

disproves as a matter of law at least one element of each of the plaintiff's causes of

action or if it conclusively establishes all elements of an affirmative defense.

Johnson, 891 S.W.2d at 644.

      When reviewing summary judgment, all evidence favorable to the non-

movant is taken as true and the trial court’s summary judgment is reviewed de

novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

                               ISSUES ON APPEAL

      Cathcart raises three points of error on appeal:

      (1)    “Appellee’s Amended Motion for Summary Judgment was untimely
             filed”



                                          4
      (2)    “The Appellant asserts the concepts of collateral estoppels, law of
             case, and/or stare decisis”; and

      (3)    “Genuine issues of fact exist in this case, therefore summary judgment
             was improper.”

                                   DISCUSSION

Timeliness of Summary Judgment

      In Cathcart’s first issue, he complains that the Scott’s First Amended Motion

for Summary Judgment was untimely filed because it was filed a year after the trial

court signed an order denying Scott’s original motion for summary judgment. He

cites Texas Rules of Civil Procedure 166a(c)’s admonishment that a “trial court

cannot grant a motion to amend the pleading once the court renders judgment,” and

that the record here does not indicate whether the trial court granted leave to file an

amendment. See Automaker Inc. v. C.C.R.T. Co., 976 S.W.2d 744, 746 (Tex.

App.—Houston [1st Dist.] 1998, no pet.).

      A final judgment was not rendered when the trial court denied Scott’s

original motion for summary judgment, and Scott’s second motion for summary

judgment was not an amended pleading after the trial court rendered judgment, but

rather another motion for summary judgment with supporting affidavits. Scott

gave adequate notice of the hearing date of this summary judgment motion, and no




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rule requires leave to file successive summary judgment motions.1 Cathcart thus

has not established that Scott’s second summary judgment motion was untimely.

We overrule Cathcart’s first issue.

Collateral Estoppel Claim

       In Cathcart’s second issue, he contends that the concepts of collateral

estoppel, law of the case, or stare decisis precluded the trial court granting Scott’s

second summary-judgment motion. The crux of Cathcart’s argument appears to be

that because the “trial court rejected his argument in the original motion for

summary judgment,” it was improper for the court to grant later grant summary

judgment on the same ground. Scott responds that these concepts do not render the

trial court’s order erroneous.

       The denial of a summary judgment is interlocutory in nature and not a final

judgment; therefore, “a motion for summary judgment may be reurged in the

district court after its denial.” McCartney v. May, 50 S.W.3d 599, 604 (Tex.

App.—Amarillo 2001, no pet.) (citing Vills. of Greenbriar v. Torres, 874 S.W.2d


1
       Although it was labeled an “amended” motion for summary judgment, Scott’s
earlier motion had been denied, rendering the second filed motion a successive one.
Surgitek, Bristol–Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex.1999) (“[W]e look to
the substance of a motion to determine the relief sought, not merely to its title.”); see also
In re Bokeloh, 21 S.W.3d 784, 789 (Tex. App.—Houston [14th Dist.] 2000, no pet.)
(“[W]e recognize that the substance of a motion, not its title, determines the relief
sought.”).


                                              6
259, 262 (Tex. App.—Houston [1st Dist.] 1994, writ denied)).           Additionally,

“Texas Rules of Civil Procedure 166a does not limit the number of times a motion

for summary judgment may be filed.” McCartney, 50 S.W.3d at 604. Because the

denial of a summary judgment is not a final judgment, the concepts of collateral

estoppel, law of the case, and stare decisis do not apply here to prohibit the trial

court from granting a second motion for summary judgment on a ground rejected

earlier. We overrule Cathcart’s second issue.

Legal Malpractice Claim

      In his third issue, Cathcart complains that the trial court erred by granting

summary judgment on the merits because fact issues exist. Specifically, Cathcart

contends Scott breached a fiduciary duty owed to Cathcart and that Scott was

negligent. Scott responds that these claims essentially amount to a claim for legal

malpractice, which he defeated as a matter of law.

      In Poledore v. Fraley, an inmate filed a civil suit against his court-appointed

attorney who represented him in his criminal case and raised various claims,

including breach of fiduciary duty and negligence. No. 01-09-000658-CV, 2010

WL 3928516, at *3 (Tex. App.—Houston [1st Dist.] Oct. 7, 2010, pet. denied).

This Court in Poledore determined that the appellant’s claims were actually claims

for professional negligence. Id. “Claims resting on allegations of an attorney’s

erroneous legal opinion or legal advice, delay or neglect in handling a matter

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entrusted to the attorney’s care, or failing to use ordinary care in preparing,

managing, and prosecuting a case constitute professional negligence, not fraud,

breach of contract, or breach of fiduciary duty.” Id. at *4.

      Similar to Poledore, Cathcart is essentially asserting a legal malpractice

claim because his claims of negligence and breach of fiduciary duty allegedly

arises from “bad legal advice or improper representation.” Greathouse v.

McConnell, 982 S.W.2d 165, 172 (Tex. App—Houston [1st Dist.] 1998, pet.

denied). We thus examine whether a fact issue exists for Cathcart’s claim under

the elements of legal malpractice.

      To recover on a legal malpractice claim, the plaintiff must prove (1) the

attorney owed a duty to the plaintiff; (2) attorney breached that duty; (3) the breach

proximately caused plaintiff’s injuries; and (4) damages occurred. Peeler v.

Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995). Cathcart contends that Scott

had a duty to withdraw from the case when Cathcart chose to terminate their legal

relationship, and that he breached this duty when he did not withdraw.

      An appointed attorney should “represent the defendant until the charges are

dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is

permitted or ordered by the court to withdraw as counsel for the defendant after a

finding of good cause is entered on the record. . . .” TEX. CRIM. PROC. CODE ANN.

art. 26.04(j)(2). Additionally, the trial court “has discretion to determine whether

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counsel should be allowed to withdraw from case,” and it has no duty to search for

counsel that is agreeable to the defendant. King v. State, 29 S.W.3d 556, 566 (Tex.

Crim. App. 2000). Moreover, “personality conflicts and disagreements concerning

trial strategy are typically not valid grounds for withdrawal.” Id.

      Here, Cathcart requested that the trail court order Scott to withdraw from the

case and Cathcart claims that Scott had the duty to withdraw; however, it was up to

the trial court to determine whether Scott could withdraw from the case. See id.

The trial court refused to allow Scott to withdraw, as she saw no legal reason to do

so. The trial court’s decision was consistent with the Court of Criminal Appeals’

recognition that such tension is not considered to be “good cause” for termination.

See King, 29 S.W.3d at 566.

      As a matter of law, Scott did not breach any duty to withdraw from the case

because Scott made it known to the trial judge that he wished to withdraw, but the

trial judge refused to allow him to do so. Scott’s failure to withdraw pre-trial,

therefore, was not legal malpractice.

      Cathcart further contends that, because no hearing regarding withdrawal of

counsel was held nor any of the proceedings recorded, a fact issue exists that

precludes summary judgment. No formal hearing or record is required, however,

when an attorney requests to withdraw from a case. TEX. R. CIV. P. 10.




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      Additionally, Cathcart argues he is entitled to cross-examine the criminal

trial court judge because there was no hearing regarding withdrawal of counsel in

the record, and the trial court’s affidavit is contradicted. Cathcart did not respond

with any evidence contradicting the averments in the criminal trial judge’s

affidavit; therefore, summary judgment could properly be granted on that

uncontradicted evidence.2 We overrule Cathcart’s third issue.

                                  CONCLUSION

      We hold that Scott’s First Amended Motion for Summary Judgment was

timely filed and that the trial court correctly granted summary judgment in favor of

Scott on Cathcart’s legal-malpractice claim. We affirm the trial court’s judgment.




                                              Sherry Radack
                                              Chief Justice

Panel consists of Chief Justice Radack and Justices Bland and Huddle.



2
      Because summary judgment was properly granted on the ground that Scott did not
      refuse to withdraw when requested by Cathcart, we need not reach Scott’s
      argument that the court’s summary judgment could also be affirmed on the
      alternative ground that the causation element of Cathcart’s malpractice claim is
      defeated as a matter of law because Cathcart “has not been exonerated on direct
      appeal, through post-conviction relief, or otherwise.” Peeler, 909 S.W.2d at 497–
      98.
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