Skelton v. Gray, 04-16-00828-CV
| Decision Date | 14 March 2018 |
| Docket Number | No. 04-16-00828-CV,04-16-00828-CV |
| Citation | 547 S.W.3d 272 |
| Parties | Patricia SKELTON, Appellant v. Guy James GRAY, Appellee |
| Court | Texas Court of Appeals |
APPELLANT ATTORNEY: Leslie Sara Hyman, Ryan Christopher Reed, Matthew McGowan, Pulman, Cappuccio, Pullen, Benson & Jones, LLP, 2161 NW Military Highway, Suite 400, San Antonio, TX 78213-1844.
APPELLEE ATTORNEY: Jane M.N. Webre, Kimberly Bueno, Scott, Douglass & McConnico, LLP, 303 Colorado Street, Suite 2400, Austin, TX 78701-2589.
Sitting: Marialyn Barnard, Justice, Rebeca C. Martinez, Justice, Irene Rios, Justice
Opinion by: Rebeca C. Martinez, Justice
Patricia Skelton sued her criminal defense attorney Guy James Gray for legal malpractice and breach of fiduciary duty. The trial court dismissed her claims pursuant to Rule 91a of the Texas Rules of Civil Procedure. We affirm the portion of the trial court’s judgment dismissing Skelton’s breach of fiduciary duty claim. We reverse the portion of the judgment dismissing Skelton’s legal malpractice claim and remand the cause for further proceedings.
Skelton, an attorney, was charged with forging the will of her deceased client. The charge stemmed from a will she prepared for Ysidro Canales in May or June of 2002. Although the will was executed in Skelton’s office, the original will remained in Canales’s possession. When Canales died in May 2003, the original will could not be located. Skelton found a copy of the executed will in her office, but due to a flood, it was water-damaged. The will Skelton had prepared for Canales was still among the documents in her computer, so Skelton printed a clean copy. Because the newly printed copy of the will lacked signatures,1 Skelton physically cut the signatures off the water-damaged copy of the will and pasted them onto the printed copy. Skelton made a copy of the newly created document and filed it as a copy of Canales’s will in the probate court. In September 2003, Skelton’s secretary contacted law enforcement and informed them that she suspected Skelton had created a false will for Canales. On November 15, 2004, Skelton was charged by indictment with forging Canales’s will.
Gray represented Skelton in the December 2007 criminal trial. Skelton was ultimately convicted of forgery. The trial court sentenced her to a suspended one-year term of imprisonment and placed her on community supervision for two years. Thereafter, Gray’s representation of Skelton ended, and she hired new counsel to represent her on direct appeal. On appeal, Skelton argued that the jury charge improperly allowed conviction for a theory not included in the indictment and that Gray rendered ineffective assistance. This court affirmed the trial court’s judgment in an opinion dated June 9, 2010. See Skelton v. State , No. 04-08-00720-CR, 2010 WL 2298859 (Tex. App.—San Antonio June 9, 2010, pet. ref'd) ().
While her direct appeal was pending, a civil trial was held in the will contest between some of Canales’s relatives. The jury found that (1) Canales executed a valid will; (2) Skelton did not act with the intent to defraud or harm another when she physically altered the will; and (3) the will submitted to probate was an accurate copy of Canales’s will. Based on the jury’s verdict, a judgment was rendered on March 17, 2009 ordering that the will contestants take nothing.
More than two years later, on September 26, 2011, Skelton filed an application for a writ of habeas corpus, "claiming that she is actually innocent, she was denied a fair trial due to prosecutorial misconduct, and she received ineffective assistance of counsel." Ex parte Skelton , 434 S.W.3d 709, 715 (Tex. App.—San Antonio 2014, pet. ref'd). Her actual innocence claim was based on the new evidence of the conflicting verdicts between the criminal and will contest trials. Id. at 733. This court rejected Skelton’s prosecutorial misconduct and actual innocence claims, but granted habeas relief based on ineffective assistance of counsel. Id. at 733-34. Thus, this court vacated the judgment of the trial court in the criminal case and remanded the case for a new trial. Id. at 734. Instead of retrying Skelton on the forgery charge, the State dismissed the forgery charge on February 6, 2015.
On May 27, 2016, Skelton filed suit against Gray for legal malpractice and breach of fiduciary duty. In response, Gray filed a Rule 91a motion to dismiss, arguing 1) Skelton’s legal malpractice claim was "barred by the Peeler2 doctrine because she has not been exonerated from the underlying criminal conviction;" and 2) the statute of limitations barred her claims for both legal malpractice and breach of fiduciary duty.
The trial court granted the Rule 91a motion to dismiss in Gray’s favor, finding the legal malpractice claim failed for lack of exoneration and the breach of fiduciary duty claim was barred by limitations. This appeal ensued.
On appeal, Skelton presents the following issues:
Rule 91a allows a party, with exceptions not applicable here, to "move to dismiss a cause of action on the grounds that it has no basis in law or fact." TEX. R. CIV. P. 91a.1. "A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." Id.
We review the merits of a Rule 91a motion de novo, because the availability of a remedy under the facts alleged is a question of law. City of Dallas v. Sanchez , 494 S.W.3d 722, 724-25 (Tex. 2016) (per curiam) (citing Wooley v. Schaffer , 447 S.W.3d 71, 75-76 (Tex. App.—Houston [14th Dist.] 2014, pet. denied) ). We apply the fair-notice pleading standard to determine whether the allegations of the petition are sufficient to allege a cause of action. Wooley , 447 S.W.3d at 76 ; Yeske v. Piazza Del Arte, Inc. , 513 S.W.3d 652, 661 (Tex. App.—Houston [14th Dist.] 2016, no pet.). Except as required to determine an award of attorney’s fees under Rule 91a.7, "the court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any pleading exhibits permitted by Rule 59." TEX. R. CIV. P. 91a.6; Holland v. Davis , No. 05-15-01173-CV, 2016 WL 3547982, at *1 (Tex. App.—Dallas June 28, 2016, pet. denied) (mem. op.).
Skelton alleged that Gray breached his duty to her by: 1) failing to object when the State improperly tried her criminal case on a theory of forgery not alleged in the indictment; 2) failing to object when the prosecutor improperly made repeated references to her post-Miranda invocation of her Fifth Amendment right to silence and her Sixth Amendment right to counsel; 3) failing to object to the State’s failure to designate Ranger Coy Smith as an expert and failing to object to Smith’s "expert" opinion that she forged a document; 4) failing to object to the prosecutor’s improper use of unproduced casino records as well as Irene Canales’s testimony based on those records; and 5) failing to object to numerous improper jury arguments made by the State.
Skelton alleged that Gray breached his fiduciary duty to her by requiring her to pay for office supplies and technology equipment that he acquired with her funds, but did not use for her benefit.
Gray moved to dismiss Skelton’s malpractice claim under Rule 91a, arguing that because she had not been exonerated and had not fulfilled the innocence requirement of Peeler ,3 her malpractice claim had no basis in law. In addition, Gray argued that the statute of limitations barred Skelton’s claims for both malpractice and breach of fiduciary duty. The trial court granted the Rule 91a motion to dismiss in Gray’s favor, finding the legal malpractice claim failed for lack of exoneration under Peeler and the breach of fiduciary duty claim was barred by limitations.
To recover on a claim for legal malpractice, the plaintiff must establish: (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. Joe v. Two Thirty Nine Joint Venture , 145 S.W.3d 150, 159 (Tex. 2004) ; Peeler v. Hughes & Luce , 909 S.W.2d 494, 496 (Tex. 1995). In Peeler , the Texas Supreme Court considered whether a convict can sue her criminal defense attorney for legal malpractice. A four-justice plurality concluded that under Texas public policy, a criminal defendant’s own conduct is the sole cause of any damages flowing from her indictment and conviction, unless the conviction has been overturned. Peeler , 909 S.W.2d at 497-98. Thus, the court held that "plaintiffs who have been convicted of a criminal offense may negate the sole proximate cause bar to their claim for legal malpractice in connection with that conviction only if they have been exonerated on direct appeal, through post-conviction relief, or otherwise." Id.
In the matter before us, the trial court granted the Rule 91a motion pursuant to the Peeler doctrine, ruling that Skelton’s malpractice claim was barred due to her "failure to show that she has been exonerated of the offense." Skelton argues that the trial court erred, as a threshold matter, by applying Peeler , which is distinguishable and inapplicable. She con...
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