Opinion issued November 2, 2017




                                     In The

                              Court of Appeals
                                     For The

                          First District of Texas
                            ————————————
                              NO. 01-16-00292-CV
                           ———————————
                   WILLIAM J. GONYEA, JR., Appellant
                                        V.
                           ORIAN SCOTT, Appellee


                   On Appeal from the 152nd District Court
                            Harris County, Texas
                      Trial Court Case No. 2014-51066


                                  OPINION

      This case tests the bounds of the rule established in Peeler v. Hughes &

Luce, 909 S.W.2d 494 (Tex. 1995) (plurality opinion), which limits the ability of

plaintiffs who have been convicted of criminal offenses to obtain legal malpractice
damages against their criminal-defense attorneys based on claims of poor

performance of legal representation.

      Orion Scott—who had been convicted of several criminal offenses—hired

attorney William Gonyea to file an application for writ of habeas corpus on his

behalf. Under the terms of the contract for legal representation, Scott paid Gonyea

a $25,000 fee and then, due to confusion over bank authorizations, paid him

$15,000 more in overpayments.1 Scott instructed Gonyea to return the $15,000

overpayment; he did not.

      When three years had passed and Gonyea had neither filed the writ nor

returned the overpayment, Scott sued him, asserting two causes of action. His first

cause of action was for breach of contract. He sought $25,000 in restitution

damages, which was the full amount of the fee paid under the terms of the contract.

His second cause of action was for theft and sought $15,000 in damages, which

was the amount of overpayment that Gonyea never returned.

      After answering the lawsuit, Gonyea moved for summary judgment, arguing

that both of Scott’s claims fail as a matter of law. The trial court ruled against him

and, after a bench trial, entered judgment in Scott’s favor on both claims for the

damages sought, plus reasonable and necessary attorney’s fees. Gonyea appeals,

asserting that both claims fail as a matter of law.

1
      Originally, the overpayment was $25,000, but $10,000 of that was applied to
      additional representation, leaving the amount of overpayment at $15,000.
                                           2
      We affirm the judgment as to the breach-of-contract claim, holding that the

public policies underlying the Peeler doctrine do not support extending the

doctrine to restitution of monies paid for post-conviction legal services that were

never performed. We reverse and render judgment in Gonyea’s favor on the theft

claim, holding that the claim accrued more than two years before it was asserted

and that Scott failed to meet his burden to prove that the discovery rule applied.

                                    Background

      In January 2010, Orion Scott hired a criminal-defense attorney, William

Gonyea, Jr., to conduct a legal investigation and file a petition for writ of habeas

corpus on Scott’s behalf to challenge six convictions that the Texas Court of

Criminal Appeals had affirmed three years earlier. Gonyea and Scott entered into a

written contract for legal representation, and Scott paid Gonyea $25,000 in legal

fees for the work detailed in the contract. Gonyea deposited the $25,000 into his

operating account.

      Due to confusion over whether the bank would authorize a payment from an

inmate, Scott’s sister—who held Scott’s power of attorney—caused a second

payment of $25,000 to be paid to Gonyea for the habeas representation. Gonyea

wrote to Scott in March 2010 informing him that he had received two $25,000

payments and stating, “I will wait for you to advise me on what to do with the

[second] $25,000 check.”


                                          3
      Later that month, Gonyea agreed to assist Scott on another legal matter. He

wrote to Scott that he agreed to “conduct an investigation to determine the status of

[Scott’s] parole and assist [Scott] in obtaining parole” and that his fee for the

additional representation would be $10,000. In the same letter, Gonyea stated that

he still had Scott’s sister’s check for $25,000 (the overpayment for the habeas

representation) and offered to deposit the check into his “client trust account” and

then return the remaining $15,000 to Scott, either by sending Scott a check or

depositing the money directly into Scott’s bank account.

      After several communications, in late-August 2010, Scott instructed Gonyea

to “deduct” the $10,000 parole-work fee from the overpayment and deposit the

remainder into Scott’s bank account. Scott provided Gonyea with his bank

information, including his account number.

      Nevertheless, within days of receiving Scott’s letter, Gonyea deposited the

full $25,000 he received from Scott’s sister into his operating account—not his

trust account.2 He did not deposit any money into Scott’s account or send him a

refund check for the overpayment.




2
      None of the $50,000 was deposited into a client trust account. All of it was
      deposited into Gonyea’s operating account.

                                         4
      Three years later, Gonyea still had not prepared the habeas writ or returned

the $15,000 overpayment.3 Scott replaced Gonyea with new counsel and filed suit

against him, asserting claims for breach of contract to recover the $25,000 fee

payment and for theft to recover the $15,000 overpayment.

      Gonyea moved for summary judgment on both of Scott’s claims, arguing

that the Peeler doctrine prohibited Scott’s breach-of-contract claim and that the

theft statute of limitations barred Scott’s theft claim. See Peeler, 909 S.W.2d 494;

see also TEX. CIV. PRAC. & REM. CODE § 134.001–.005 (theft statute); id.

§ 16.003(a) (two-year statute of limitations for theft claims). The trial court denied

the motion, and both claims proceeded to bench trial.

      During opening statement, Gonyea again urged that the Peeler doctrine

applied to Scott’s breach-of-contract claim, which he described as Scott

“essentially” contending that he was “not happy with the way the lawyer

performed under the contract.” According to Gonyea, Scott was “claiming that he

was dissatisfied with the time that it took and the manner in which [Gonyea]

conducted the Habeas investigation and the time that it took for [Gonyea] to file a

Habeas Petition.” And, further, that Scott simply was “dissatisfied with the amount

of correspondence that he received during the course of the representation.”

3
      Gonyea testified that his failure to return the $15,000 was the result of an
      “accounting error,” which he discovered after Scott sued him. Even after
      discovering the error, Gonyea failed to return the money.

                                          5
        During his opening statement, Scott disputed Gonyea’s characterization of

his claim. His complaint was not that Gonyea performed poorly, but that he failed

to perform at all. The contract specifically stated that Gonyea would conduct an

investigation, file an application for writ of habeas corpus, and represent Scott in

court. Scott argued that Gonyea did none of these things.

        Gonyea testified that he was Scott’s counsel for three years before being

replaced with new counsel. He agreed that Scott retained him to investigate an

application for a habeas writ and then prepare and file the application. Gonyea

testified that he met with Scott once, read the legal opinion affirming Scott’s

conviction, and performed initial legal research. When questioned about his legal

research, Gonyea conceded he had no contemporaneous time records showing that

he researched the case. But he did reference legal-research memoranda that were in

his client file when he forwarded it to Scott’s new counsel. When questioned about

those memos, Gonyea testified that he could not specifically recall much about

them.

        On further cross-examination, Gonyea admitted that, during the three years

he represented Scott, he never interviewed Scott’s trial counsel, never interviewed

Scott’s appellate counsel, never attempted to contact the police officers who

investigated or testified about the underlying offenses, never interviewed any

witness who testified at the criminal prosecution, never prepared any drafts of an


                                         6
application for habeas relief, and never even identified what issues should be

pursued. He also never filed an application for the habeas writ, never requested an

evidentiary hearing, and never represented Scott in court. Gonyea also

acknowledged that he had promised to send Scott a comprehensive status update

over a year after he was hired, but he never did that either.

      After the one-day trial, Scott moved to reopen the evidence. The trial court

granted the motion and received additional evidence regarding the legal-research

memoranda discussed previously. The four research memos were admitted into

evidence. All of the memos had headers stating that they were prepared by a law

clerk for Gonyea for the Scott file. One of the law-clerk authors testified that he

did not prepare any legal-research memos for Gonyea or for the Scott file. He

recognized the memos in evidence and testified that he had prepared them for

another law firm.

      Gonyea testified that, for a time, he had shared office space with the other

law firm. He conceded that the four legal memoranda were addressed to him and

referenced the Scott client file only because he had accessed the other law firm’s

computer server, replaced the other law firm attorney’s name and client name in

the header of the memos with his name and Scott’s client name, printed the

memos, and added them to the Scott client file before forwarding that file to




                                           7
Scott’s new attorney.4 Gonyea denied that he did this to create the appearance that

legal work had been performed on Scott’s behalf during his representation when it

had not.

      The lawyer with whom Gonyea shared office space also testified. He

testified that he did not give Gonyea permission to use the memos as his own. Nor

did he give Gonyea permission to present his firm’s legal work as Gonyea’s own:

      I did not give you permission to go into my server and pull documents
      off of other cases, whether to use for your own purposes or to pad a
      file to make it look like you did work you didn’t do to justify a fee
      you didn’t earn. I didn’t give you that permission, you didn’t ask. And
      if you had access to those documents and took them without my
      permission, shame on you.

      The trial court entered findings of fact and conclusions of law, including that

Scott paid Gonyea $25,000 in legal fees under a contract for legal representation;

Scott hired Gonyea to investigate and file a writ of habeas corpus on Scott’s

behalf; Gonyea “did not conduct the investigation,” “did not file a writ of habeas

corpus,” and “did not perform the services promised in the written contract”;

Scott’s family inadvertently paid Gonyea $25,000 more for that same work; Scott

and Gonyea agreed that $10,000 of the $25,000 double-payment would be applied


4
      Gonyea agreed that Scott’s new counsel requested the client file in December
      2012 but that he did not send it to her with these memos inside until March 2013.
      Gonyea further agreed that it was not until January 2015—after he had been sued
      for breach of contract and theft—that he forwarded to Scott’s new counsel a few
      pages of handwritten notes that discussed Scott’s case and listed a few case
      citations.
                                          8
toward additional representation; and Gonyea did not return the remaining $15,000

of the overpayment. The trial court found that Gonyea breached the contract for

legal representation and violated the Texas Theft Liability Act, and the court

awarded Scott the full $25,000 fee for legal representation, $15,000 in theft

damages, and $76,800 in reasonable and necessary attorney’s fees.

      Gonyea appealed.

                                Standards of Review

      Gonyea sought summary judgment on his affirmative defenses of the Peeler

doctrine and statute of limitations. The applicability of the Peeler doctrine to

negate causation presents a question of law that we review de novo. See In re

Humphreys, 880 S.W.2d 402, 404 (Tex. 1994) (stating that “questions of law are

always subject to de novo review”).

      A defendant moving for summary judgment on the affirmative defense of

limitations has the burden to conclusively establish that defense. KPMG Peat

Marwick v. Harrison Cty. Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex. 1999).

The defendant must conclusively prove when the cause of action accrued and

negate the discovery rule, if it applies and has been pleaded or otherwise raised, by

proving as a matter of law that there is no genuine issue of material fact about

when the plaintiff discovered, or in the exercise of reasonable diligence, should

have discovered the nature of its injury. Id.


                                           9
         Findings of fact in a bench trial have the same force and dignity as a jury’s

verdict. Leax v. Leax, 305 S.W.3d 22, 28 (Tex. App.—Houston [1st Dist.] 2009,

pet. denied). “When the appellate record includes the reporter’s record, the trial

court’s factual findings, whether express or implied, are not conclusive and may be

challenged for legal and factual sufficiency of the evidence supporting them.”

Hertz Equip. Rental Corp. v. Barousse, 365 S.W.3d 46, 53 (Tex. App.—Houston

[1st Dist.] 2011, pet. denied). We review the trial court’s findings of fact for legal

and factual sufficiency using the same standards we apply in reviewing the

evidentiary sufficiency of the jury findings. Vannerson v. Vannerson, 857 S.W.2d

659, 667 (Tex. App.—Houston [1st Dist.] 1993, writ denied). We review a trial

court’s conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand, 83

S.W.3d 789, 794 (Tex. 2002).

         When the trial court acts as factfinder, it determines the credibility of the

witnesses and the weight to be given their testimony. HTS Servs., Inc. v. Hallwood

Realty Ptrs., L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no

pet.).

                                     Peeler Doctrine

         In his first issue, Gonyea argues that Scott’s breach-of-contract claim fails as

a matter of law under the Peeler doctrine.




                                            10
A.    Peeler and its progeny

       Public policy requires that a person convicted of a criminal offense not be

permitted to profit from his criminal conduct by obtaining a money damages award

against his criminal-defense lawyer for legal malpractice that allegedly contributed

to the client’s incarceration. Peeler, 909 S.W.2d at 498. This is achieved through a

rule of law—the Peeler doctrine—that provides that the sole proximate and

producing cause of the indictment and conviction on a criminal defendant is, as a

matter of law, the individual’s own criminal conduct, unless the criminal defendant

has been exonerated on direct appeal, through post-conviction relief, or otherwise.5

Id. at 497–98; see Douglas v. Delp, 987 S.W.2d 879, 884 n.1 (Tex. 1999) (citing

Peeler for statement of law that “plaintiffs convicted of a crime may maintain legal

malpractice claims in connection with that conviction ‘only if they have been

exonerated on direct appeal, through post-conviction relief, or otherwise.’”).



5
      The plaintiff in Peeler sued her attorney for failing to inform her, before she
      pleaded guilty to a crime, that the prosecutors had offered her full transactional
      immunity. Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995). She
      asserted several causes of action but, on appeal, the issues were narrowed to two:
      legal malpractice and DTPA violations. Her attorney moved for summary
      judgment, arguing that Peeler’s own criminal conduct was the sole proximate or
      producing cause of her damages. Id. The trial court granted the motion, the
      intermediate appellate court affirmed, and the Texas Supreme Court again
      affirmed. Id. at 500. The Court explicitly stated that it resolved the issue based on
      public-policy considerations. Id. at 495, 497, 498, 500. Its ruling that her criminal
      conduct was the sole cause of her injury as a matter of law prevented Peeler, who
      had not been exonerated, from establishing causation on her negligence and DTPA
      actions against her former attorney. Id. at 498.
                                           11
      There are four public policies furthered by this rule, according to the Court

in Peeler:

          prohibiting a convict from profiting financially from illegal conduct;

          preventing a convict from obtaining a monetary recovery that would
           impermissibly shift responsibility for the crime away from the convict
           to a third party;

          preventing the diminishment of consequences of criminal conduct for
           the convict; and

          preventing the pursuit of legal remedies that would undermine the
           criminal justice system.

Id. at 497–98. The Texas Supreme Court balanced these public policies against the

interest in “holding defense attorneys responsible for their professional negligence”

and held that, on balance, public policy supported the rule announced. Id. at 500.

      Since Peeler, the doctrine has been applied in numerous legal malpractice

suits. See, e.g., McLendon v. Detoto, No. 14-06-00658-CV, 2007 WL 1892312, at

*1 (Tex. App.—Houston [14th Dist.] July 3, 2007, pet. denied) (mem. op.)

(applying Peeler to claims for negligent performance of legal services); Golden v.

McNeal, 78 S.W.3d 488, 494 (Tex. App.—Houston [14th Dist.] 2002, pet. denied)

(same); Larson v. Hunt, No. 01-00-01196-CV, 2002 WL 992410, at *3 (Tex.

App.—Houston [1st Dist.] May 16, 2002, no pet.) (not designated for publication)

(same); Johnson v. Odom, 949 S.W.2d 392, 394 (Tex. App.—Houston [14th Dist.]

1997, pet. denied) (same).


                                         12
      The Texas Supreme Court has not expanded the rule beyond the malpractice

context. See Futch v. Baker Botts, LLP, 435 S.W.3d 383, 391 (Tex. App.—

Houston [14th Dist.] 2014, no pet.) (noting lack of subsequent analysis of doctrine

by Texas Supreme Court in nearly 20 years since Peeler decision). But

intermediate appellate courts have.

      The Fourteenth Court of Appeals is the intermediate appellate court that has

written most extensively on Peeler and has noted its own history of “expansive

interpretation” of the doctrine. See Futch, 435 S.W.3d at 391. It has expanded

Peeler to claims of poor-quality legal representation cast as causes of action other

than legal malpractice.6 Id. (discussing expansion); see, e.g., id. at 392 (applying

Peeler to claim for fee forfeiture based on inadequate representation); Wooley v.

Schaffer, 447 S.W.3d 71, 74, 76–78 (Tex. App.—Houston [14th Dist.] 2014, pet.

denied) (applying Peeler to claims of legal malpractice, breach of contract, and

DTPA violations based on attorney filing application for writ of habeas corpus that

included arguments different than those client believed to be most meritorious);

Meullion v. Gladden, No. 14-10-01143-CV, 2011 WL 5926676, at *4–5 (Tex.


6
      The Fourteenth Court of Appeals has also extended Peeler to apply to assertions
      of poor-quality legal representation at the pre- and post-trial stages of
      representation. See McLendon v. Detoto, No. 14-06-00658-CV, 2007 WL
      1892312, at *1–2 (Tex. App.–Houston [14th Dist.] July 3, 2007, pet. denied)
      (mem. op.) (pre-trial representation); Meullion v. Gladden, No. 14-10-01143-CV,
      2011 WL 5926676, at *3–4 (Tex. App.–Houston [14th Dist.] Nov. 29, 2011, no
      pet.) (mem. op.) (post-conviction representation).
                                         13
App.—Houston [14th Dist.] 2011, no pet.) (mem. op.) (applying Peeler to claims

of fraud, breach of fiduciary duty, breach of contract, and DTPA violations based

on “the quality of legal counsel” after concluding that all were, in effect, claims of

professional negligence concerning the application for writ of habeas corpus filed

by attorney on client’s behalf);

      This Court has expanded Peeler similarly, applying it to claims of poor-

quality legal representation cast as other causes of action. See Stallworth v. Ayers,

510 S.W.3d 187, 191 (Tex. App.—Houston [1st Dist.] 2016, no pet.) (holding that

client complaining about quality of representation is in essence asserting legal

malpractice claim to which Peeler applies, even if claims are cast as other causes

of action); Van Polen v. Wisch, 23 S.W.3d 510, 515 (Tex. App.—Houston [1st

Dist.] 2000, pet. denied) (applying Peeler to breach-of-contract claim based on

attorney’s representation through portion of proceeding but not all of it).

      Thus, Peeler and its progeny prohibit a criminal defendant who is asserting

claims based on poor-quality legal representation from establishing the causation

necessary to recover money damages from his attorney. Peeler, 909 S.W.2d at

497–98; Futch, 435 S.W.3d at 391.

B.    The parties’ arguments on whether Peeler applies

      Gonyea argues that the Peeler doctrine applies here because Scott’s breach-

of-contract claim is “based upon his assertion that [Gonyea] failed to adequately


                                          14
represent him and discharge his legal duties.” In other words, he argues that the

breach-of-contract claim is merely a recast legal malpractice claim that Peeler

prohibits.

      Scott responds that his complaint is not that the legal services he received

fell below a subjective or objective standard of care or contributed to his

conviction, but that, instead, he received no representation. He argues that Gonyea

did nothing in furtherance of his habeas writ. And he argues that public policy

cannot support foreclosing a client’s suit against his attorney who entered into a

contract for legal representation, accepted a fee to perform specific legal work, and

then did nothing that advanced the legal representation.

C.    Sufficient evidence supports finding that Gonyea “did not perform the
      services promised in the written contract”

      Gonyea argues that this case does not concern an attorney who performed no

work for his client. According to Gonyea, after being paid a flat fee, he engaged in

the initial case-familiarity steps common to habeas representation: he interviewed

his client once, read the underlying opinion affirming conviction and briefs, and

performed some initial legal research. But there was no corroborating evidence that

Gonyea interviewed Scott or read any case materials. And Scott presented

evidence calling into question the veracity of Gonyea’s testimony that he had done

any of this work. Gonyea ultimately admitted that the legal research memos he

forwarded to replacement counsel as part of his client file had been altered—by

                                         15
him—in a manner that suggested they were prepared at his instruction and for

Scott’s benefit when they were already-written research memos prepared for

another law firm representing another client.

       In a bench trial, the trial court, as factfinder, is the sole judge of the

credibility of the witnesses; therefore, it was within the trial court’s sole province

to evaluate conflicting evidence and make credibility determinations. See HTS

Servs., Inc., 190 S.W.3d at 111; Olanipekun v. Omokaro, No. 01-13-00888-CV,

2014 WL 5410058, *4 (Tex. App.—Houston [1st Dist.] Oct. 23, 2014, no pet.).

The only evidence suggesting that Gonyea performed any legal work in

furtherance of his representation of Scott—during his representation of Scott—was

Gonyea’s testimony. The revelation that Gonyea altered legal research memos in

his client file in a way that would buttress his assertion that he added value to

Scott’s case was directly relevant to Gonyea’s credibility as a witness. His inability

to provide time records to support his contention that he performed legal research

during the representation7 or otherwise developed the case further affected his

credibility.




7
       Gonyea’s handwritten notes were not produced until January 2015, after Gonyea
       had been sued for breach of contract and theft. The only evidence that the notes
       were prepared during the representation was Gonyea’s testimony.
                                          16
      The evidence is sufficient to support the trial court’s finding that Gonyea

“did not conduct the investigation,” “did not file a writ of habeas corpus,” and “did

not perform the services promised in the written contract.”

D.    Peeler does not extend to these facts

      The trial court found that Gonyea did not perform any services specified in

the contract for legal representation. Instead, there was affirmative evidence

indicating that Gonyea falsified memos in a manner to suggest legal analysis had

been performed for Scott’s benefit when it had not. The trial court’s findings and

trial evidence distinguish this case from earlier cases in which the Peeler doctrine

was applied to disallow damages claims by convicts against their defense counsel.

      Gonyea argues that the Dallas Court of Appeals applied Peeler even when

an attorney has done nothing, citing Shepherd v. Mitchell, No. 05-14-01235-CV,

2016 WL 2753914 (Tex. App.—Dallas May 10, 2016, no pet.) (mem. op.), but that

case did not involve claims for restitution. There, an attorney was hired to prepare

an application for writ of habeas corpus. He neither prepared the application nor

returned the fee. But the client received a refund of the fee as a result of a

restitution order from the State Bar of Texas. Id. at *1. He also had sued the

attorney for legal malpractice. Id. The attorney moved for summary judgment on

the Peeler doctrine, and the trial court granted the motion. The appellate court

affirmed, holding that the doctrine applied to the legal malpractice claim. Id. at *3.


                                          17
       Shepherd is distinguishable. First, the client’s suit was for professional

negligence, not breach of contract. Second, the client was not suing for contract

damages or fee recovery: he had already received restitution. Id. Here, Scott is

suing for breach of contract and seeking recovery of the legal fees he paid Gonyea

for services never performed.

       None of the public policies identified in Peeler support extending the

doctrine to foreclose a paying client’s ability to sue for recovery of restitution

damages when he contracts with a criminal-defense attorney to perform specific

work and the attorney fails to provide that representation. Such a suit would not

result in financial profit to the client. It would not shift responsibility for the crime

away from the client or diminish the consequences of the client’s acts. Nor would

it undermine our criminal-justice system. If anything, requiring some evidence of

active representation to invoke Peeler defensively recognizes that the

constitutional right to assistance of counsel is foundational to our criminal-justice

system. See U.S. CONST. amend. VI (right to counsel); cf. Strickland v.

Washington, 466 U.S. 668, 685 (1984) (“The Sixth Amendment . . . envisions

counsel’s playing a role that is critical to the ability of the adversarial system to

produce just results. An accused is entitled to be assisted by an attorney . . . who

plays the role necessary to ensure that the trial is fair.”).




                                            18
         Permitting a criminal-defense attorney to charge a criminal defendant a legal

fee to provide contractually detailed legal representation, do none of those acts of

representation or any other underlying act that involves applying legal analysis to

the client’s case, yet keep the fee does not further the public policies identified in

Peeler. To hold otherwise might create a disincentive to diligent representation of

criminal defendants. We conclude that the Peeler doctrine does not extend to these

facts.

         We overrule Gonyea’s first issue.

                         Statute of Limitations on Theft Claim

         In his second issue, Gonyea contends that the statute of limitations ran on

Scott’s theft claim and that Scott could not invoke the discovery rule because he

presented no evidence to support applying it.

         We first review the timeline of events:

         February 5, 2010      Scott notes in a letter that his sister will send
                               payment on his behalf

         March 8, 2010         Gonyea deposits Scott’s check into his operating
                               account

         March 10–12, 2010 Scott states in letter to Gonyea that he confirmed that
                           his bank did send fee from his checking account,
                           even though no one thought the bank would follow
                           his instructions. Gonyea states in letter that he
                           received the fee payment from Scott and a second
                           fee payment from Scott’s sister and asks Scott what
                           to do with second check from sister


                                             19
      March 26, 2010       Gonyea writes to Scott offering to deposit $25,000
                           check from sister into “client trust account” and send
                           from that account a check for $15,000 to Scott or
                           deposit that amount directly into Scott’s account

      August 24, 2010      Gonyea asks Scott again whether to deposit the
                           $25,000 check from sister into trust account and
                           refund difference
      Late-August 2010     Scott replies to Gonyea (on Gonyea’s August 24
                           letter) with instructions for Gonyea to deduct his
                           $10,000 parole-related fee from the sister’s double-
                           payment and return the $15,000 balance

      August 30, 2010      Gonyea deposits the $25,000 check from the sister
                           into his operating account
                           — two and one-half years pass—
      January 16, 2013     Scott terminates the representation

      August 28, 2014      Scott’s new counsel sends Gonyea a letter requesting
                           an accounting; Gonyea does not respond

      September 8, 2014    Scott files suit against Gonyea
      October 21, 2014     Scott adds theft claim to petition

      The Texas Theft Liability Act permits a civil claim for damages against a

party who commits theft, which is “unlawfully appropriating property or

unlawfully obtaining services” in violation of various named sections of Chapter

31 of the Penal Code. See TEX. CIV. PRAC. & REM. CODE § 134.001–.005; Cluck v.

Mecom, 401 S.W.3d 110, 117 (Tex. App.—Houston [14th Dist.] 2011, pet.

denied). A two-year statute of limitations applies. See TEX. CIV. PRAC. & REM.

CODE § 16.003(a). The defendant has the burden to plead, prove, and secure

                                       20
findings to sustain the limitations affirmative defense. See Woods v. William M.

Mercer, Inc., 769 S.W.2d 515, 517 (Tex. 1988); see also TEX. R. CIV. P. 94 (statute

of limitations is affirmative defense). In response, a plaintiff may raise the

discovery rule and, if it applies to the claim asserted, may seek to have his failure

to file suit within the normal limitations period excused. Woods, 769 S.W.2d at

517. A plaintiff seeking to benefit from the discovery rule bears the burden to

plead, prove, and secure favorable findings to establish the excuse. See id. at 518.

      Gonyea pleaded statute of limitations on Scott’s theft claim. Scott pleaded

the discovery rule.

      The trial evidence included Gonyea’s testimony that he realized, upon

receipt, that the second check for $25,000 was an erroneous overpayment. He

reached an agreement with Scott to perform additional work for a $10,000 flat fee

and was aware that the remaining $15,000 belonged to Scott and should be

returned. He testified that his intent was to deposit the entire $25,000 of the second

check into a trust account and, from that account, return $15,000 to Scott. As he

explained,

      The reason why I—at that time—thought it would be proper to
      deposit into my trust account is because the additional $15,000 did not
      belong to me. And, so, I didn’t think it would be proper to deposit the
      entire thing into my operating account where there were funds that
      didn’t belong to me. So, I would have deposited the entire $25,000
      into my trust account, deducted my fee and then sent it him back.



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      The information Gonyea conveyed to Scott at the time was that the full

amount of the check would be deposited into Gonyea’s trust account and $15,000

would be forwarded to him from the trust account. Gonyea wrote to Scott, “I still

have the check for $25,000, if you would like to hire me [for the additional

representation at $10,000], I can deposit it in my client trust account and send a

check to you, or your bank for deposit into your account, for $15,000.” Scott

responded with a letter in late-August 2010 with instructions for Gonyea to deduct

his fee and deposit the balance into Scott’s bank account. There is no evidence that

Scott ever followed up with Gonyea regarding his August 2010 request for Gonyea

to return the money.

      Rule 1.14 of the Disciplinary Rules of Professional Conduct require an

attorney to “hold funds and other property belonging in whole or in part to clients

or third persons that are in a lawyer’s possession in connection with a

representation separate from the lawyer's own property.” TEX. DISCIPLINARY R.

PROF. CONDUCT 1.14(a), reprinted in TEX. GOV’T CODE, tit. 2, subtit. G, app. A–1.

The lawyer must maintain such funds “in a separate account, designated as a ‘trust’

or ‘escrow’ account . . . .” Id. Despite Gonyea’s representation in the letter that the

$25,000 would be deposited into his trust account, Gonyea deposited the money

into his operating account on August 30, 2010.




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      The August 30, 2010 date of deposit marked the date that the theft claim

accrued. See Agar Corp. v. Electro Circuits Int’l, LLC, No. 14-15-00134-CV, 2016

WL 7436811, at *5 (Tex. App.—Houston [14th Dist.] Dec. 22, 2016, no pet. h.)

(“A claim generally accrues when a wrongful act causes injury.”). Scott did not

assert his theft cause of action within two years of that date. Accordingly, the claim

expired unless the discovery rule applies. See Computer Assocs. Int’l, Inc. v. Altai,

Inc., 918 S.W.2d 453, 455 (Tex. 1996) (“The discovery rule exception defers

accrual of a cause of action until the plaintiff knew or, exercising reasonable

diligence, should have known of the facts giving rise to the cause of action.”).

      The discovery rule provides a “very limited exception to statutes of

limitations.” Id. Generally, the rule has been applied in cases in which “the nature

of the injury incurred is inherently undiscoverable” and “the evidence of injury is

objectively verifiable.” Id. at 456. This limits application to circumstances in

which “it is difficult for the injured party to learn of the negligent act or omission.”

Id. (quoting Willis v. Maverick, 760 S.W.2d 642, 645 (Tex. 1988)).

      Scott argues that the discovery rule applies. According to Scott, Gonyea’s

letter stated that the double-payment would be placed into a trust account, and

Scott could not have known that Gonyea actually placed the money in an

unauthorized operating account. Scott argues that the discovery rule should prevent

the claim from expiring until Scott discovered that the funds were wrongly


                                          23
deposited into Gonyea’s operating account instead of a trust account, where they

should have been deposited for his benefit under the rules governing attorneys. See

TEX. DISCIPLINARY R. PROF. CONDUCT 1.14(a); cf. Cluck v. Comm’n for Lawyer

Discipline, 214 S.W.3d 736, 739–40 (Tex. App.—Austin 2007, no pet.) (holding

that attorney violated Rule 1.14 by depositing legal fee in operating account

instead of trust account because payment was prepayment for services to be

rendered, not retainer to secure lawyer’s availability and compensate for lost

opportunities and, thus, had to be held in separate trust account).

      Even assuming the discovery rule applies, Scott did not meet his burden to

establish that he did not or could not have discovered that Gonyea failed to return

his money. See Computer Assocs. Int’l, 918 S.W.2d at 455 (“The discovery rule

exception defers accrual . . . until the plaintiff knew or, exercising reasonable

diligence, should have known of the facts giving rise to the cause of action.”).

First, Scott instructed Gonyea to return $15,000 to him more than two years before

he filed suit for theft of the money. Second, Scott did not testify at trial; therefore,

he offered no evidence concerning what he knew about the handling of the fee and

when he knew it. Third, the evidence establishes that Scott was able to

communicate effectively from jail with his bank to have the initial $25,000 fee

paid to Gonyea. Scott thus could communicate with his bank to stay informed of

the status of his account to determine whether the refund was received. Without


                                          24
any testimony from Scott explaining why he was unable to determine that the

money had not been returned as he instructed, we conclude that Scott failed to

meet his burden to avail himself of the discovery rule. See Woods, 769 S.W.2d at

518 (“The party seeking to benefit from the discovery rule must also bear the

burden of proving and securing favorable findings thereon . . . [because that party]

will generally have greater access to the facts necessary to establish that it falls

within the rule.”).

      We sustain Gonyea’s second issue.

                                    Conclusion

      We affirm the portion of the judgment awarding Scott damages on the

breach-of-contract claim, reverse the portion of the judgment finding Gonyea liable

for theft damages, render judgment in Gonyea’s favor on the theft claim, and

affirm the remainder of the judgment.




                                             Harvey Brown
                                             Justice

Panel consists of Justices Jennings, Bland, and Brown.




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