Larson, Paul v. Bob Hunt ( 2002 )

Opinion issued May 16, 2002

In The

Court of Appeals

For The

First District of Texas  

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NO. 01-00-01196-CV

____________

PAUL ALLAN LARSON, Appellant

V.

BOB HUNT, LORRAINE PARKER,

JOSEPH C. MAGLIOLO, JR., THE HONORABLE TED POE,

RAY HARDY, DONALD FLINTOFT,

COURT REPORTER FOR PETITIONER'S HEARINGS,

UNKNOWN ARRESTING OFFICERS OF THE HOUSTON POLICE DEPARTMENT, &

ALL OTHER UNKNOWN CO-CONSPIRATORS, Appellees

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On Appeal from the 270th District Court

Harris County, Texas

Trial Court Cause No. 88-44659

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O P I N I O N

Appellant, Paul Allan Larson, entered pleas of no contest to two counts of aggravated sexual assault of a child and pleaded guilty to one count of indecency with a child. He then filed this civil action against his two court-appointed attorneys, two assistant district attorneys, the district clerk, and the district judge alleging malicious prosecution. ⁽¹⁾   The trial court, in this civil action, granted summary judgments for the district judge, the two assistant district attorneys, the district clerk, and one of the court-appointed attorneys. The trial court entered a directed verdict for Bob Hunt, Larson's second appointed attorney and appellee herein. Larson raises four issues in this appeal. We affirm.

Facts

In 1986, Larson was charged in three separate indictments with two counts of aggravated sexual assault of a child and one count of indecency with a child. After Larson entered pleas of no contest in the two cases of aggravated sexual assault and a guilty plea in the indecency with a child case, the trial court found him guilty of all three offenses. On appeal, his convictions were affirmed. Larson v. State, 759 S.W.2d 457, 459 (Tex. App.--Houston [14th Dist.] 1988, pet. ref'd), cert. denied, 490 U.S. 1008, 109 S. Ct. 1646 (1989).  

In 1988, Larson, representing himself pro se, filed suit against the following parties: Bob Hunt, Donald Flintoft (Larson's first appointed attorney), Lorraine Parker and Joseph C. Magliolo, Jr. (Harris County Assistant District Attorneys), Ray Hardy (a former Harris County District Clerk), the Honorable Ted Poe (the trial judge who issued the search warrant in Larson's criminal proceedings), "the court reporter for [Larson's] hearings," and "unknown officers" of the Houston Police Department who arrested Larson and executed the search warrant for Larson's house.

Larson alleged the defendants had maliciously prosecuted him. Parker and Magliolo moved for summary judgment which was granted.

Larson filed and amended petition, alleging Hunt and Flintoft, his court-appointed attorneys, were negligent in their representation of him. He also alleged all of the remaining defendants violated his federal and state constitutional rights. Larson specifically alleged the following: (1) his rights under Eighth Amendment ⁽²⁾ of the United States Constitution and article 1, section 13 of the Texas Constitution ⁽³⁾ were violated when Houston Police officers verbally and physically abused him and he was held under excessive bail; (2) he was denied his right to a speedy trial; (3) Hunt and Magliolo attempted to coerce Larson into making self-incriminating statements instead of asserting his rights under the Fifth Amendment ⁽⁴⁾ of the United States Constitution and article I, section 10 of the Texas Constitution; and (4) the court reporter and the court clerk falsified records of Larson's criminal proceedings.

Judge Poe and Hardy moved for summary judgment, and the trial court granted their motions. At trial, only Larson's remaining claims against Hunt were tried. After all of the evidence was heard, Hunt moved for a directed verdict, and the trial court granted Hunt's motion.

Motion to Abate

Larson requests that we abate this appeal because he is appealing the dismissal of his petition for writ of habeas corpus to the Fifth Circuit Court of Appeals. See 28 U.S.C.S. § 2254 (Law. Co-op. 1992 & Supp. 2001). He argues that if he prevails on his claims, his convictions will be overturned, and any legal bar to his claims for legal malpractice claims will no longer exist. Larson provides no authority requiring an abatement, and we know of none. ⁽⁵⁾   We decline to abate his appeal on these grounds.  

Larson also argues we should abate his appeal until the record can be supplemented with the records of the underlying criminal cases, all post-conviction proceedings related to the underlying offenses, and "Larson's attempt to get the [trial] court to issue a scire facias once [he] learned of [Flintoft's] death." In this Court's Order of August 9, 2001, we ordered this case to be heard and Larson's objections to the record be taken with the case. We will consider the necessity of supplementation in addressing Larson's points of error.

Directed Verdict

In his first point of error, Larson argues the trial court abused its discretion in granting a directed verdict for Hunt because, although Larson could not recover on his claims of malicious prosecution, he presented evidence of negligence and civil rights violations at trial.

     A court may instruct a verdict if no evidence of probative force raises a fact issue on the material questions in the suit. Prudential Ins. Co. of Am. v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000). A directed verdict for a defendant may be proper in two situations. Id. First, a court may direct a verdict when a plaintiff fails to present evidence raising a fact issue essential to the plaintiff's right of recovery. Id. Second, a trial court may direct a verdict for the defendant if the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff's cause of action. Id. We review the grant of a directed verdict in the light most favorable to the party against whom the verdict was rendered and disregard all contrary evidence and inferences. Qantel Bus. Sys., Inc. v. Custom Controls, 761 S.W.2d 302, 303 (Tex. 1988); Smith v. Radam, Inc., 51 S.W.3d 413, 417 (Tex. App.--Houston [1st Dist.] 2001, no pet.).

   To recover on a claim of legal malpractice, a plaintiff must prove 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 resulted. Van Polen v. Wisch, 23 S.W.3d 510, 515 (Tex. App.--Houston [1st Dist.] 2000, pet. denied). Where the plaintiff has been convicted of a criminal offense, the plaintiff "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." Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex. 1995) (plurality opinion) (emphasis added); Van Polen, 23 S.W.3d at 515. At trial, Larson admitted that his convictions had not been overturned. Larson does not challenge that fact on appeal. Because uncontroverted evidence shows Larson cannot legally maintain a claim for legal malpractice, we conclude the trial court did not err in granting Hunt's motion for a directed verdict on Larson's negligence claims. See Prudential, 29 S.W.3d at 77.  

Larson's petition also alleged Hunt violated his civil rights. Of the numerous allegations made by Larson, only two involve Hunt. Larson alleged (1) he was denied the right to a speedy trial because Hunt acquiesced to continuances in his criminal proceedings, and (2) Hunt and Magliolo attempted to coerce Larson to make self-incriminating statements instead of asserting his rights under the Fifth Amendment and article I, section 10 of the Texas Constitution.

Larson fails to cite to any evidence to support his claim that Hunt and Magliolo coerced him into making incriminating statements, other than Hunt's recommendation that he enter into a plea bargain agreement with the State. Therefore, Larson presents no proof to support his allegation of coercion.  

Larson cites Moreno v. State, 860 S.W.2d 612, 614 (Tex. App.--Corpus Christi 1993, pet. ref'd), for the argument that a criminal action delayed by continuances may implicate a defendant's constitutional rights to a speedy trial. However, he cites no authority that any such violation will support a civil suit for damages, like this one, and we know of none.   We overrule Larson's first point of error.

Motions for Summary Judgment In his third point of error, Larson argues the trial court "abused its discretion" in granting summary judgments for Parker, Magliolo, Judge Poe, and Hardy. We review each in turn.  

   A traditional summary judgment under Texas Rule of Civil Procedure 166a(c) is proper only when the movant establishes there is no genuine issue of material fact, and that the movant is entitled to judgment as a matter of law. Van Polen, 23 S.W.3d at 514. In reviewing the rendition of summary judgment, we assume all evidence favorable to the non-movant is true and we indulge every reasonable doubt in the non-movant's favor. Id. A defendant is entitled to summary judgment based on an affirmative defense if he or she proves all elements of the affirmative defense as a matter of law, such that there is no genuine issue of material fact. Id. Once the defendant produces evidence entitling him or her to summary judgment, the plaintiff must present evidence raising a fact issue. Id.

Parker and Magliolo

   Parker and Magliolo moved for summary judgment on the grounds that Larson could not recover, as a matter of law, on his claim for malicious prosecution because his convictions were valid, and because Parker and Magliolo were entitled to absolute prosecutorial immunity. The trial court granted Parker's and Magliolo's motion. Because the trial court granted the motion before Larson amended his petition to include his allegations of civil rights violations, we consider only whether summary judgment was proper as to Larson's claim for malicious prosecution. Larson concedes, and we conclude, his convictions bar his claim of malicious prosecution. See Peeler, 909 S.W.2d at 497-98; see also Van Polen, 23 S.W.3d at 515.  

  Judge Poe  

Judge Poe moved for summary judgment based on the affirmative defense of absolute judicial immunity, and the trial court granted his motion. Absolute judicial immunity provides judges with immunity from liability for judicial acts, no matter how erroneous or how evil the motive, unless the act performed was in clear absence of all jurisdiction. City of Houston v. Swindall, 960 S.W.2d 413, 417 (Tex. App.--Houston [1st Dist.] 1998, no pet.). On appeal, Larson does not cite to any legal authority concerning Judge Poe's motion for summary judgment. See Tex. R. App. P. 38.1(h); Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000).

   We conclude the trial court did not err in granting Judge Poe's motion for summary judgment. See Swindall, 960 S.W.2d at 417.

Hardy

   Larson alleged in his amended petition that Hardy falsified records by making notations in the record and violating the orders of the court. In his motion for summary judgment, Hardy argued he and the Harris County District Clerk's Office complied with all statutory obligations and judicial orders in providing Larson with records he requested. Larson did not respond to Hardy's motion. Because Larson did not present any evidence to refute Hardy's motion, he did not raise a fact issue as to his claims asserted against Hardy. See Van Polen, 23 S.W.3d at 514. We conclude that the trial court did not err in granting summary judgment for Hardy.

     We overrule Larson's third point of error.

      Supplementation of the Record

     In his second and fourth points of error, Larson argues he was entitled to supplementation of the record upon his request and he was denied his rights because portions of the clerk's record and the reporter's record were withheld from him. Larson argues that the record of this appeal should be supplemented with the records of his three criminal cases, their respective direct appeals and petitions for writs of habeas corpus, missing documents "too numerous to list," and portions of the record showing Larson's attempts to get the trial court to issue a scire facias.

     We have already addressed Larson's complaints about supplementation as to all claims, except those against Flintoft or Flintoft's estate. Before trial, Larson filed a notice with the clerk's office that suggested Flintoft was deceased and requested a scire facias be issued. Rule 152 states that, when a plaintiff makes such a request, the clerk shall issue a scire facias. Tex. R. Civ. P. 152. In its final judgment, the trial court stated that it accepted Larson's stipulation that Flintoft was deceased, found that no scire facias had been issued, and the court, therefore, lacked jurisdiction over the representative of Flintoft's estate or his heir(s). Although the trial court should have issued a scire facias, Larson was not harmed because he was not entitled to any relief from Flintoft or Flintoft's estate based on his claims that Flintoft refused to represent Larson by withdrawing from the case. Larson did not allege any facts which would show that he was harmed by Flintoft's withdrawal as his attorney or that Flintoft violated his civil rights. Therefore, we consider only Larson's claims of negligence. As with Larson's claims against Hunt for legal malpractice, Larson's convictions are a legal bar to those claims. Peeler, 909 S.W.2d at 497-98; Van Polen, 23 S.W.3d at 515.

   We overrule Larson's second and fourth points of error.

    Conclusion  

The judgment of the trial court is affirmed.

Jackson B. Smith, Jr.

Justice

Panel consists of Justices Cohen, Nuchia, and Smith. ⁽⁶⁾  

Do not publish. Tex. R. App. P. 47.

1.

The record does not show, nor does Larson allege, that the court reporter or the unknown police officer were ever served. We, therefore, do not consider them as parties to this appeal.

2.

U.S. Const. amend. VIII.

3.

Tex. Const. art. I, § 13.

4.

U.S. Const. amend. V.

5.

Larson has not furnished this Court with any proof of the existence of a habeas corpus proceeding. However, this is immaterial in view of our holding.

6.

The Honorable Jackson B. Smith, Jr., retired Justice, Court of Appeals, First District of Texas at Houston, participating by assignment.