Richard A. Dunsmore v. James J. Hanley ( 2016 )

Affirmed and Memorandum Opinion filed August 25, 2016.
In The
Fourteenth Court of Appeals
NO. 14-15-00321-CV
RICHARD A. DUNSMORE, Appellant
V.
JAMES J. HANLEY, Appellee
On Appeal from the 412th District Court
Brazoria County, Texas
Trial Court Cause No. 79144-I
MEMORANDUM OPINION
Appellant Richard A. Dunsmore, an inmate incarcerated in the Texas
Department of Criminal Justice, challenges the trial court’s dismissal of his legal
malpractice action against appellee James J. Hanley, his former lawyer. We affirm.
FACTUAL AND BACKGROUND
In October 2014, Dunsmore filed suit against Hanley, an attorney who
represented Dunsmore in at least one criminal matter in 2008.1 In his “Brief
Statement of Cause of Action for Damages and Injunctive Relief,” Dunsmore
claimed that Hanley violated various ethical rules and caused him monetary
damages. He also alleged that Hanley “allowed [Dunsmore] to be TORTURED
while a Pre-Trial Detainee under his representation.”
Hanley filed a Motion to Dismiss pursuant to Rule 91a of the Texas Rules of
Civil Procedure. In his motion, Hanley argued that Dunsmore’s suit was barred by
the two-year statute of limitations for negligence actions. Hanley also claimed that
Dunsmore had not proven he had been exonerated, a prerequisite to filing a
malpractice action against one’s criminal attorney. See Peeler v. Hughes & Luce,
909 S.W.2d 494 (Tex. 1995). Following a telephonic hearing, the trial court
granted Hanley’s motion. During the hearing, the trial court also denied
Dunsmore’s request to have an attorney appointed.2 Dunsmore appeals.
ISSUES AND ANALYSIS
Dunsmore’s discernable issues on appeal appear to be twofold: (1) he was
entitled to have a lawyer appointed to represent him in this malpractice case; and
1
In July 2008, Dunsmore pleaded guilty to sexual assault and attempted sexual assault.
See Dunsmore v. State, Nos. 01-10-00981-CR & 01-10-00982-CR, 2012 WL 1249418, at *1
(Tex. App.—Houston [1st Dist.] Apr. 12, 2012, pet. ref’d). Dunsmore received 10 years’
deferred-adjudication community supervision for each offense. Id. In 2010, the trial court
adjudicated guilt and assessed punishment at seven years’ confinement. Id. Dunsmore appealed
his conviction, but his appeal was dismissed for want of jurisdiction. Id. at *2.
Hanley testified that although he represented Dunsmore in one motion to adjudicate,
Dunsmore was represented by separate counsel in a subsequent motion to adjudicate. Hanley did
not represent Dunsmore on appeal.
2
It is not clear from the record whether Dunsmore sought appointment of an attorney or
an attorney ad litem.
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(2) notwithstanding Peeler, a viable claim against Hanley remains for his failure
“to INVESTIGATE and PREVENT [Dunsmore] FROM BEING PRE-TRIAL
PUNISHED.”
I. No Constitutional Right to Counsel in a Civil Case
Dunsmore first contends that the trial court erred by refusing to appoint
counsel in this case. While a district judge has the discretion to appoint counsel for
an indigent party in a civil case, Tex. Gov’t Code § 24.016, the Texas Supreme
Court has never recognized a right to counsel in civil cases. See Travelers Indem.
Co. of Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996); see also Harris v.
Civil Serv. Comm’n for Mun. Employees of the City of Houston, 803 S.W.2d 729,
731 (Tex. App.—Houston [14th Dist.] 1990, no pet.) (“Neither the Texas nor
United States Constitution guarantees a right to counsel in a civil suit”). The
Mayfield court noted, however, that “in some exceptional cases, the public and
private interests at stake are such that the administration of justice may best be
served by appointing a lawyer to represent an indigent civil litigant.” 923 S.W.2d
at 594. Dunsmore has afforded us no argument supporting a determination that his
case represents such an exception. We therefore overrule Dunsmore’s first issue.
II. Peeler Bars all Claims against Hanley
In his second issue, Dunsmore contends that he has an actionable claim
against Hanley for legal malpractice. In his brief, Dunsmore acknowledges the
supreme court’s holding in Peeler, but he argues that Peeler “should be examined
on a Case by Case Basis” and that “there are PLENTY of Non Peeler Barred
DAMAGES that should have been allowed to Proceed to Trial.”
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
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plaintiff’s own conduct is the “sole cause of [the appellant’s] indictment and her
conviction.” See 909 S.W.2d at 495. 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 grant of summary
judgment in favor of trial counsel, stating that “it is the illegal conduct rather than
the negligence of a convict’s counsel that is the cause in fact of any 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; therefore, she 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.
In a series of opinions, this court has adopted and applied an expansive
interpretation of the doctrine articulated in Peeler. See Futch v. Baker Botts, LLP,
435 S.W.3d 383, 391 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (collecting
cases). For example, this court has extended the Peeler doctrine to a non-
attorney—an investigator who assisted in the plaintiff’s defense of the criminal
charge. See Golden v. McNeal, 78 S.W.3d 488, 491–92 (Tex. App.—Houston
[14th Dist.] 2002, pet. denied). We have also concluded that the Peeler doctrine
applies to claims based on conduct alleged to have occurred after the criminal
conviction and that did not directly result from the conviction. See 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.).
More applicable here, this court has held that the Peeler doctrine applies to
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negligence claims in which the claimant was seeking damages based upon a
criminal defense attorney’s alleged negligence in pre-trial matters that did not
directly relate to the conviction, such as counsel’s alleged negligence in failing to
obtain a pre-trial bond reduction and failing to obtain release for the accused from
administrative segregation. 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.). We rejected the plaintiff’s argument that the Peeler doctrine did not
apply because he was complaining of pre-trial matters. See id. at *2. This court
held that, under Peeler, the plaintiff’s conviction was the sole proximate cause of
the plaintiff’s injuries, whether those injuries occurred pre-trial or during trial. Id.
To the extent Dunsmore contends that his claims are not barred by Peeler
because he is complaining of pre-trial matters—Hanley’s alleged failure to
investigate and prevent pre-trial punishment—we reject his argument. This court
has already held that Peeler extends to pre-trial conduct. See id. Dunsmore has not
presented any evidence that he has been exonerated. Thus, Dunsmore’s conviction
is the sole proximate cause of his injuries. See Peeler, 909 S.W.2d at 497–98;
Golden, 78 S.W.3d at 492. We overrule Dunsmore’s second issue.
III. Motion Carried with the Case
Dunsmore also filed an “Omnibus Motion to Reverse and Remand These
Cases Back to Trial Court,” which we have carried with the case to disposition. In
his motion, Dunsmore appears to request that we reverse and remand this and other
cause numbers not before us in this appeal, because the trial court erroneously
concluded that Dunsmore was not indigent. Having determined that the trial judge
properly granted Hanley’s motion to dismiss in this case, we deny Dunsmore’s
motion.
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CONCLUSION
We affirm the judgment of the trial court.
/s/ Ken Wise
Justice
Panel consists of Justices Busby, Donovan, and Wise.
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