Affirmed and Memorandum Opinion filed November 29, 2011.




                                        In The

                     Fourteenth Court of Appeals

                                 NO. 14-10-01143-CV


                      CHRISTOPHER MEULLION, Appellant

                                          V.

                            GREG GLADDEN, Appellee


                      On Appeal from the 152nd District Court
                               Harris County, Texas
                         Trial Court Cause No. 2006-41963


                  MEMORANDUM                       OPINION

      This appeal arises from the trial court‘s dismissal of inmate Christopher
Meullion‘s pro se and in forma pauperis suit against attorney Greg Gladden for alleged
fraud, breach of fiduciary duty, breach of contract, and a Deceptive Trade Practices Act
(DTPA) violation.     Meullion‘s claims relate to Gladden‘s preparation of a draft
application for writ of habeas corpus challenging Meullion‘s 1997 capital murder
conviction. We affirm.

                                    BACKGROUND

      Meullion was convicted in 1997 of capital murder and sentenced to life
imprisonment. Meullion filed a direct appeal, and this court affirmed his conviction in
Meullion v. State, No. 14-97-00993-CR, 1999 WL 1189219 (Tex. App.—Houston [14th
Dist.] Dec. 16, 1999, pet. ref‘d) (not designated for publication). The Court of Criminal
Appeals refused Meullion‘s petition for discretionary review in 2000.

         In 2003, Meullion‘s mother paid Gladden $10,000 to prepare Meullion‘s
application for writ of habeas corpus challenging the 1997 conviction. Meullion alleges
that Gladden promised to obtain habeas relief by proving that Meullion ―was not the
shooter‖ in the murder, and that one of Meullion‘s co-conspirators at the scene must have
committed the crime.            Meullion alleges that Gladden ultimately abandoned such an
argument, and that Gladden only raised issues in his draft application that already had
been considered and rejected on direct appeal. Gladden argues that he never promised to
obtain relief by proving that Meullion ―was not the shooter,‖ and asserts that such an
argument would not have entitled Meullion to relief because his conviction could be
upheld based on party liability.1 Gladden argues, and Meullion does not dispute, that
Gladden did not file the draft application pursuant to Meullion‘s wishes.

         Meullion sued Gladden, alleging that Gladden‘s promise to obtain relief by
proving that Meullion ―was not the shooter‖ was a misrepresentation used to fraudulently
obtain the $10,000 fee. Meullion also claims that Gladden‘s failure to make such an
argument in Meullion‘s application for writ of habeas corpus constituted a breach of
fiduciary duty and contract, as well as a DTPA violation.2 Meullion alleges that as a


         1
          Meullion alleges in his petition that Gladden should have known that the identity of the shooter
―would make no difference‖ because Meullion could be charged as a party to the murder. Meullion
alternatively alleges in his petition that he ―was never charged under law of parties‖ and that Gladden
should have made the promised argument because Meullion‘s conviction could not be upheld based on
party liability.
         2
          Meullion‘s petition also included a ―causes of action‖ paragraph that alleges violations of
professional conduct rules. Meullion does not contend on appeal that the alleged violations can serve as
the basis of claims for breach of fiduciary duty, breach of contract, and DTPA violations. Nor does he
argue on appeal that that the trial court erroneously dismissed his ―causes of action‖ predicated on these
alleged violations. See Tex. Disciplinary R. Prof‘l Conduct Preamble: Scope ¶ 15, reprinted in Tex. Gov‘t Code
Ann., tit. 2, subtit. G, app. A (Tex. State Bar R. art. X, § 9) (―Violation of a rule does not give rise to a cause of
action nor does it create any presumption that a legal duty to a client has been breached.‖).

                                                          2
result of Gladden‘s actions, Meullion ―does not have another $10,000 to pay another
attorney to assist him in obtaining his freedom.‖

       Gladden filed a motion to dismiss, arguing that Meullion‘s theories of recovery all
are essentially claims of professional negligence, which he argued ―are barred for lack of
causation.‖ Gladden more specifically argued at the hearing on his motion that under
Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995), and Nabors v. McColl, No. 05-
08-01491-CV, 2010 WL 255968 (Tex. App.—Dallas Jan. 25, 2010, pet. denied) (mem.
op.), Meullion‘s causes of action cannot be raised because the ―sole proximate cause‖ of
Meullion‘s injury is Meullion‘s criminal activity that resulted in his conviction. After
considering the pleadings and arguments of counsel, the trial court granted the motion to
dismiss all of Meullion‘s claims on October 27, 2010.

       Meullion appeals, arguing in two issues that the Peeler ―sole proximate cause bar‖
does not apply to his case because (1) the bar applies to actions against a defendant‘s trial
counsel or counsel on direct appeal, and Gladden was not ―connected to the conviction
nor was he the attorney on direct appeal‖; and (2) the bar applies only to professional
negligence claims, and Meullion does not raise, and none of his causes of action are
subsumed into, such a claim.

                                         ANALYSIS

I.     Standard of Review

       We review the trial court‘s order under standards applicable to a dismissal of
inmate litigation under Texas Civil Practice and Remedies Code Chapter 14. See TEX.
CIV. PRAC. & REM. CODE ANN. § 14.003(a) (West 2002). Chapter 14 applies ―only to a
suit brought by an inmate in a district, county, justice of the peace, or small claims court
in which an affidavit or unsworn declaration of inability to pay costs is filed by the
inmate.‖ Id. § 14.002(a) (West 2002). Meullion has made such a filing in this case.

       The trial court may dismiss an inmate‘s claim under Chapter 14, either before or
after service of process, if it finds the claim to be ―frivolous or malicious.‖ Id. §

                                             3
14.003(a)(2).   A claim is frivolous or malicious under Chapter 14 if, among other
reasons, it has no basis in law or fact. Id. §14.003(b)(2); Comeaux v. Tex. Dep’t of
Criminal Justice, 193 S.W.3d 83, 86 (Tex. App.—Houston [1st Dist.] 2006, pet. denied).
When an inmate‘s lawsuit is dismissed as frivolous for having no basis in law or in fact,
but no fact hearing is held, our review focuses on whether the inmate‘s lawsuit has an
arguable basis in law. Scott v. Gallagher, 209 S.W.3d 262, 266 (Tex. App.—Houston
[1st Dist.] 2006, no pet.). A claim has no arguable basis in law if it relies on an
―indisputably meritless legal theory.‖ Id.

       A trial court ordinarily has ―broad discretion‖ to dismiss an inmate‘s suit if it finds
the claim to be frivolous or malicious. Hickman v. Adams, 35 S.W.3d 120, 123 (Tex.
App.—Houston [14th Dist.] 2000, no pet.). However, we review de novo a trial court‘s
dismissal based on a conclusion that the claim has ―no arguable basis in law.‖ Moreland
v. Johnson, 95 S.W.3d 392, 394 (Tex. App.—Houston [1st Dist.] 2002, no pet.) (―[W]e
review, de novo, the legal question of whether the trial court properly concluded that
appellant had no arguable basis in law for maintaining his suit.‖); Retzlaff v. Tex. Dep’t of
Criminal Justice, 94 S.W.3d 650, 653 (Tex. App.—Houston [14th Dist.] 2002, pet.
denied) (noting that we review de novo issue of whether ―claim is legally cognizable,‖ as
is relevant to dismissal under Chapter 14). ―In conducting our review, we take as true the
allegations in an inmate‘s petition and review the types of relief and causes of action set
out therein to determine whether, as a matter of law, the petition stated a cause of action
that would authorize relief.‖ Hamilton v. Williams, 298 S.W.3d 334, 339 (Tex. App.—
Fort Worth 2009, pet. denied); see also Scott, 209 S.W.3d at 266–67.

       With these standards in mind, we turn to each of Meullion‘s issues.

II.    Representation in Connection with Application for Habeas Relief

       Meullion argues in his first issue that the trial court‘s dismissal order is error
because the Peeler ―sole proximate cause bar‖ applies to actions against a defendant‘s
trial counsel or counsel on direct appeal, and Gladden was not ―connected to the
conviction nor was he the attorney on direct appeal.‖

                                              4
       Under Peeler, a plaintiff who has not been exonerated of her crime cannot recover
from her defense attorney for certain legal malpractice claims because the plaintiff‘s own
conduct is the ―sole cause of the plaintiff‘s indictment and conviction.‖ Peeler, 909
S.W.2d at 497–98. Before Peeler‘s trial for a federal crime, her trial counsel failed to
inform her of an offer of transactional immunity made by the prosecution. Id. at 496.
Unaware of the offer, Peeler pleaded guilty and was convicted. Id. Peeler subsequently
filed a malpractice action against her trial counsel. Id. The Texas Supreme Court
affirmed the trial court‘s summary judgment in favor of trial counsel and stated that ―it is
the illegal conduct rather than the negligence of a convict‘s counsel that is the cause in
fact of injuries flowing from the conviction.‖ Id. at 498. The court held that Peeler‘s
claims for professional negligence and DTPA violations were barred as a matter of law
because Peeler had not been exonerated and therefore could not prove that trial counsel‘s
alleged malpractice ―in connection with [her] conviction‖ proximately caused her
injuries. Id. To allow such claims absent exoneration would ―impermissibly shift[]
responsibility for the crime away from the convict.‖ Id.

       Meullion argues that his claims are not precluded under Peeler because Gladden
was not ―connected to the conviction‖ as trial counsel, ―nor was he the attorney on direct
appeal.‖ The Ninth Court of Appeals considered and rejected an identical argument in
Falby v. Percely, No. 09-04-422-CV, 2005 WL 1038776, at *2 (Tex. App.—Beaumont
May 5, 2005, no pet.) (mem. op.). Inmate Falby argued that Peeler did not apply to bar
his civil claims against his attorney Percely because ―Percely did not represent him in the
criminal proceeding, and there is no claim for malpractice or a DTPA violation in relation
to that conviction.‖ Id. Falby argued that his suit was not ―a ‗calculated attack‘ on his
conviction,‖ and that ―[i]nstead, Falby maintains he is suing Percely for failing to file a
post-conviction [application for] writ [of habeas corpus], and Percely‘s inaction [in
failing to file the application as promised] is the ‗sole proximate and producing cause of
[Falby‘s] damages.‘‖ Id. The court held: ―[T]he gravamen of [Falby‘s] complaint is that
he has lost the ability to challenge his conviction through a federal post-conviction writ of


                                             5
habeas corpus because of Percely‘s negligence . . . . The habeas corpus application . . .
relates to and flows from the conviction.‖ Id.

        Other courts have similarly declined to distinguish between the application of
Peeler to suits against a convict‘s trial counsel, counsel on direct appeal, or counsel
retained in connection with seeking habeas or other post-conviction relief. See, e.g.,
Martin v. Sicola, No 03-09-00453-CV, 2010 WL 4909987, at *3 (Tex. App.—Austin
Dec. 1, 2010, no pet.) (mem. op.) (although Martin‘s appellate lawyer Sicola did not
―cause[] his indictment‖ but merely ―hindered his ability ‗to attack [his] conviction,‘‖ any
alleged malpractice in representing Martin on direct appeal ―relate[d] to and flow[ed]
from the conviction itself‖); Nabors, 2010 WL 255968, at *1–2 (holding that suit
regarding attorney‘s alleged negligence, which affected client‘s post-conviction relief
related to early release program, was barred by Peeler because client had not been
exonerated); Butler v. Mason, No. 11-05-00273-CV, 2006 WL 3747181, at *1–2 (Tex.
App.—Eastland Dec. 21, 2006, pet. denied) (per curiam) (applying Peeler to bar Butler‘s
claims because his own criminal actions, not attorney Mason‘s ―alleged misbehavior in
the handling of the applications for writs of habeas corpus,‖ were the cause of Butler‘s
injuries).

        We agree with and adopt the reasoning in Falby to conclude that Meullion‘s
claims concern the quality of legal counsel retained ―in connection with‖ Meullion‘s
conviction, and Meullion‘s illegal conduct is the only cause in fact of any injuries
―flowing from the conviction.‖ See Peeler, 909 S.W.2d at 498. We overrule Meullion‘s
first issue.

III.    “Subsumed” Claims

        Meullion argues in his second issue that the Peeler ―sole proximate cause bar‖
does not apply to his case because the bar applies only to professional negligence claims,
and Meullion does not raise, and none of his causes of action are subsumed into, such a




                                             6
claim.3

       Determining whether allegations against a lawyer—labeled as breach of fiduciary
duty, fraud, or some other cause of action—are actually claims for professional
negligence is a question of law to be determined by the court. Duerr v. Brown, 262
S.W.3d 63, 70 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Murphy v.
Gruber, 241 S.W.3d 689, 692 (Tex. App.—Dallas 2007, pet. denied), and Greathouse v.
McConnell, 982 S.W.2d 165, 172 (Tex. App.—Houston [14th Dist.] 1998, pet. denied)).
Parties are prohibited from fracturing a professional negligence claim into multiple
causes of action, but this prohibition does not necessarily foreclose the simultaneous
pursuit of a negligence-based malpractice claim and a separate breach of fiduciary duty
or fraud claim when there is a viable basis for doing so. Id. But to do so, ―the plaintiff
must do more than merely reassert the same claim . . . under an alternative label.‖ Id.
We are not bound by the labels the parties place on their claims. Murphy, 241 S.W.3d at
697.

       The central complaint in Meullion‘s petition is that Gladden promised to draft an
application that would obtain habeas relief for Meullion, but that he instead drafted an
application that Meullion alleges Gladden ―knew would fail.‖ This is essentially a claim
for professional negligence. See, e.g., Duerr, 262 S.W.3d at 74 (plaintiff did not ―state a
separate breach of fiduciary duty claim based on the failure to deliver a promised level of
recovery because that failure is attributed to mishandling of Duerr‘s claims within the
class settlement structure‖); Murphy, 241 S.W.3d at 692–93 (giving erroneous legal
opinion or advice, delaying or failing to handle a matter, or not using ordinary care in
preparing, managing, and prosecuting a case constitutes legal malpractice); Goffney v.
Rabson, 56 S.W.3d 186, 193–94 (Tex. App.—Houston [14th Dist.] 2001, pet. denied)
(allegations that attorney abandoned client at trial, did not properly prepare lawsuit for

       3
          Meullion actually argues that the alleged DTPA violation also cannot be subsumed into a claim
for professional negligence. Because Peeler directly applies to DTPA violations as well as to claims for
professional negligence, we only address Meullion‘s argument as it relates to his non-DTPA-related
claims. See Peeler, 909 S.W.2d at 498.

                                                   7
trial, and misled client into believing attorney was prepared for trial were claims for legal
malpractice). We conclude that Meullion‘s claims for alleged fraud, breach of fiduciary
duty, and breach of contract are merely relabeled claims for professional negligence
because they assail the adequacy of Gladden‘s performance in connection with the
preparation of the application for writ of habeas corpus. See Beck v. Law Offices of
Edwin J. (Ted) Terry, Jr., P.C., 284 S.W.3d 416, 428 (Tex. App.—Austin 2009, no pet.)
(―[A]s long as the crux of the complaint is that the plaintiff‘s attorney did not provide
adequate legal representation, the claim is one for professional negligence.‖); Duerr, 262
S.W.3d at 70.

        Accordingly, the trial court properly dismissed all of Meullion‘s claims against
Gladden under Chapter 14 because all the claims are barred as a matter of law under
Peeler. Scott, 209 S.W.3d at 266 (claim has no arguable basis in law under Chapter 14 if
it is an ―indisputably meritless legal theory‖). We overrule Meuillion‘s second issue.

                                       CONCLUSION

        Having overruled both Meullion‘s issues on appeal, we affirm the judgment of the
trial court.




                                          /s/       Sharon McCally
                                                    Justice



Panel consists of Justices Brown, Boyce, and McCally.




                                                8
