                                    NO. 07-11-00213-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                        PANEL A

                                    FEBRUARY 16, 2012


                         CRAIG E. MENDENHALL, APPELLANT

                                            v.

                              WARREN CLARK, APPELLEE


             FROM THE 47TH DISTRICT COURT OF POTTER COUNTY;

                 NO. 98,261-A; HONORABLE DAN L. SCHAAP, JUDGE


Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                   MEMORANDUM OPINION

       Appellant, Craig E. Mendenhall, appeals the granting of a summary judgment in

favor of appellee, Warren L. Clark. Mendenhall contends that the trial court erred in

granting Clark’s no-evidence motion for summary judgment. Mendenhall also contends

the trial court committed reversible error by allowing Clark to “advance affirmative

defenses for the first time in a no-evidence motion for summary judgment.” We affirm

the judgment of the trial court.
                            Factual and Procedural Background


        Mendenhall was convicted of a felony offense and the conviction became final in

2002.       Subsequent to the conviction becoming final, Mendenhall engaged Clark to

investigate and file a post-conviction writ of habeas corpus.     Clark filed the writ in

January 2003. The writ was denied by the Texas Court of Criminal Appeals in March

2003. In late 2009 or early 2010,1 Mendenhall filed suit against Clark alleging three

causes of action.      Clark filed a general denial.   Mendenhall then filed amended

pleadings that eventually resulted in his second amended original petition being the

operative pleading at the time Clark filed his motion for summary judgment.


        Mendenhall’s second amended original petition alleged three counts. The first

two counts alleged fraud by nondisclosure. The third count alleged breach of fiduciary

duty. After a proper time for discovery, Clark filed a no-evidence motion for summary

judgment.


        In the summary judgment motion, Clark contended that, despite how the counts

in the amended petition were styled, Mendenhall’s action was a suit for legal

malpractice. Further, Clark’s no-evidence motion for summary judgment sets forth that,

since Mendenhall has produced no evidence of exoneration or actual innocence, he




        1
         Mendenhall’s original petition is not included in the record before us; however,
Clark’s original answer was filed on January 21, 2010.
                                            2
cannot recover in a criminal case for legal malpractice. The trial court agreed with Clark

and granted Clark’s no-evidence motion for summary judgment.2


       Mendenhall perfected his appeal and brings forth five issues.        The first four

issues deal with the correctness of the trial court’s granting of the no-evidence motion

for summary judgment. The last issue deals with an alleged error by the trial court in

allowing Clark to present an affirmative defense without a sworn answer. We overrule

all of Mendenhall’s contentions and affirm the trial court’s action.


                       No-evidence Motion for Summary Judgment


Standard of Review


       We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164

S.W.3d 656, 661 (Tex. 2005). In so doing, we examine the entire summary judgment

record in the light most favorable to the nonmovant, indulging every reasonable

inference and resolving any doubts against the motion.           Yancy v. United Surgical

Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007); City of Keller v. Wilson, 168

S.W.3d 802, 824-25 (Tex. 2005).


       When a movant files a no-evidence motion in proper form under Rule of Civil

Procedure 166a(i), the burden shifts to the nonmovant to defeat the motion by

presenting evidence that raises an issue of material fact regarding the elements

challenged by the motion. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.


       2
        Mendenhall had a traditional motion for summary judgment which the trial court
denied in the same order that granted Clark’s motion. Mendenhall has not appealed
that denial.
                                              3
2006).     In other words, the nonmovant must respond to a no-evidence motion by

presenting more than a scintilla of probative evidence on each challenged element.

King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); DR Partners v. Floyd,

228 S.W.3d 493, 497 (Tex.App.--Texarkana 2007, pet. denied). More than a scintilla of

evidence exists when the evidence “rises to a level that would enable reasonable and

fair-minded people to differ in their conclusions.” Merrell Dow Pharms, Inc. v. Havner,

953 S.W.2d 706, 711 (Tex. 1997).


Analysis


         We begin our analysis by inspecting Mendenhall’s amended original petition. As

stated above, Mendenhall’s live pleading attempted to plead a cause of action for non-

disclosure of information, which Mendenhall claimed was fraudulent and a breach of

fiduciary duty. However, when the pleading is examined in detail, it is apparent that the

non-disclosure counts are nothing more or less than contentions that Clark failed to

exercise reasonable professional skill and diligence in advising Mendenhall regarding

Mendenhall’s writ of habeas corpus. See Greathouse v. McConnell, 982 S.W.2d 165,

172 (Tex.App.—Houston [1st Dist.] 1998, pet. denied) (allegations of negligence, breach

of fiduciary duty, breach of good faith and fair dealing were all means to the end of

alleging a complaint for legal malpractice). Further, the pleading alleging breach of

fiduciary duty sets forth nothing more than the duty an attorney owes to his client to

represent him properly. Nowhere in this pleading does Mendenhall allege that Clark

obtained any improper benefit by representing Mendenhall. See Aiken v. Hancock, 115

S.W.3d 26, 28 (Tex.App.—San Antonio 2003, pet. denied) (distinguishing between

                                            4
breach of fiduciary duty claims and legal malpractice claims). Rather, Mendenhall is

again complaining about the failure of Clark to present a certain legal argument

because Clark failed to identify the argument when presenting the writ of habeas

corpus. This is a claim for legal malpractice.


       No matter how a plaintiff may try to circumvent the elements of a legal

malpractice claim, if the theory of recovery against an attorney sounds in tort, Texas

courts are going to treat it as a legal malpractice claim. See Aiken, 115 S.W.3d at 28

(plaintiff’s are not allowed to fracture legal malpractice claims); see also Greathouse,

982 S.W.2d at 172 (allegations of negligence, breach of fiduciary duty, breach of good

faith and fair dealing were all means to the end of alleging a complaint for legal

malpractice). Therefore, our review of Mendenhall’s live pleading leads us to conclude

that he has alleged a single cause of action for legal malpractice.


       The elements of a legal malpractice claim are that: 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 occured. See Belt v. Oppenheimer, Blend, Harrison

& Tate, Inc., 192 S.W.3d 780, 783 (Tex. 2006); Peeler v. Hughes & Luce, 909 S.W.2d

494, 496 (Tex. 1995). It was the element of proximate cause at which Clark’s no-

evidence motion for summary judgment was directed.


       The Texas Supreme Court has held that, as a matter of public policy and as a

matter of law, the criminal client’s own conduct is the sole proximate cause of the

client’s conviction and damages. See Peeler, 909 S.W.2d at 497-98. Further, plaintiffs

who have been convicted of a criminal offense may negate the sole proximate cause

                                             5
bar only if they have been exonerated on direct appeal, through post-conviction relief, or

otherwise. Id.


      The record in this case reveals that Mendenhall was not able to produce even a

scintilla of evidence regarding exoneration. Therefore, as a matter of law, he has not

been able to sustain one of the elements of his cause of action. Belt, 192 S.W.3d at

783. Accordingly, the trial court did not err in granting Clark’s no-evidence motion for

summary judgment. Mendenhall’s first four issues are overruled.


                                Lack of Sworn Pleading


      Because of our holding that Mendenhall’s claims were for legal malpractice and

that causation is one of the elements of a legal malpractice claim, we do not need to

address Mendenhall’s fifth issue as presented. Rather than an affirmative defense, that

requires a sworn pleading, the bar to recovery present in this matter is the lack of any

evidence of causation.    Peeler, 909 S.W.2d at 497-98.       Mendenhall’s fifth issue is

overruled.


                                       Conclusion


      Having overruled all of Mendenhall’s issues, we affirm the judgment of the trial

court granting Clark’s no-evidence motion for summary judgment.




                                                       Mackey K. Hancock
                                                            Justice




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