Christopher Lynn Garner v. Lori K. Redmond ( 2004 )

Garner v. Redmond

  NUMBER 13-02-00658-CV

  COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG  

CHRISTOPHER LYNN GARNER,                                                Appellant,

v.

LORI K. REDMOND,                                                                      Appellee.  

On appeal from the 24th District Court of DeWitt County, Texas.  

  MEMORANDUM OPINION  

Before Justices Hinojosa, Yañez, and Garza

Memorandum Opinion by Justice Hinojosa

          Appellant, Christopher Lynn Garner, appeals from the trial court’s order denying his motion for summary judgment and granting the motion for summary judgment of appellee, Lori Redmond. We affirm.

A. Factual Background

          As this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. Tex. R. App. P. 47.4.

          In 1994, appellant was charged with three counts of aggravated robbery. Pursuant to a plea bargain agreement, he pleaded nolo contendere to the lesser-included offense of robbery. The agreement provided for no affirmative finding of a deadly weapon. In accordance with the plea agreement, appellant’s punishment was assessed at three concurrent fifteen-year sentences in the Institutional Division of the Texas Department of Criminal Justice.

          In 1998, appellant contacted appellee. Appellant asked appellee to represent him before the Texas Board of Pardons and Paroles at a scheduled parole review hearing in February 1999. Appellee agreed to represent appellant and did so at the hearing, the outcome of which was unfavorable to appellant. Appellant subsequently requested that appellee represent him at a second hearing in December 2000, and appellee did so with similar results.

          After the first denial of appellant’s parole, appellee advised appellant by letter dated July 13, 1999, that appellant was “doing time for a ‘3G’ offense whether [he] like[d] it or not!” Appellee followed this letter with correspondence explaining that “the parole board can and will consider everything.” Appellant then filed an application for writ of habeas corpus with the court of criminal appeals because he believed the trial court had signed an incorrect sentence. Because the trial court’s written order found appellant guilty of the offense of robbery and did not contain an affirmative finding of the use of a weapon, the court of criminal appeals denied the application.

          Appellant then sued appellee for legal malpractice. Appellant alleged that appellee was guilty of malpractice because she had told appellant in her July 13, 1999 letter, that he was incarcerated for a 3g offense. Appellant claimed that this “advice” forced him to file the application for writ of habeas corpus in the court of criminal appeals.

          Appellee moved for summary judgment on the ground that appellant could not establish causation as a matter of law. Appellant filed a motion for summary judgment, asserting legal malpractice as a matter of law. The trial court granted appellee’s motion and denied appellant’s motion. This appeal ensued.

B. Sole Proximate Cause Bar

          In his first issue, appellant contends the trial court erred in applying the sole proximate cause bar established in Peeler v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995) (plurality opinion), as a basis for granting summary judgment in appellee’s favor.

          We review the trial court’s granting of a motion for summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.–Corpus Christi 2003, no pet.). In a traditional motion for summary judgment, the movant has the burden of showing that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985); see Tex. R. Civ. P. 166a(c). In deciding whether there is a disputed material fact issue precluding summary judgment, all evidence favorable to the nonmovant will be taken as true, and all reasonable inferences made and all doubts resolved in the nonmovant’s favor. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).

          When both sides move for summary judgment and the trial court grants one motion and denies the other, we review both motions for summary judgment, determine all questions presented to the trial court, and render the judgment that the trial court should have rendered. Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562, 566 (Tex. 2001). Each party must carry his burden of establishing that he is entitled to judgment as a matter of law and neither may prevail because of the failure of the other to discharge his burden. See Grain Dealers Mut. Ins. Co. v. McKee, 943 S.W.2d 455, 458 (Tex. 1997); Buccaneer’s Cove, Inc. v. Mainland Bank, 831 S.W.2d 582, 583 (Tex. App.–Corpus Christi 1992, no writ).

          Here, the trial court granted appellee’s motion for summary judgment in accordance with the supreme court’s holding in Peeler. The trial court’s summary judgment order expressly provided, “A legal malpractice claim may not be maintained by a Criminal Defendant against his attorney absent a showing that he has been exonerated from the criminal conviction.” Thus, we limit our review to this ground. State Farm Fire & Cas. Co. v. S.S., 858 S.W.2d 374, 380 (Tex. 1993); Pena v. State Farm Lloyds, 980 S.W.2d 949, 953 (Tex. App.–Corpus Christi 1998, no pet.).

          In the Peeler case, the plaintiff pleaded guilty to a federal crime pursuant to a plea agreement. Peeler, 909 S.W.2d at 496. She then sued her defense attorney for legal malpractice because the attorney had not told her the prosecutor had offered her absolute transactional immunity before she pleaded guilty. Id. The Texas Supreme Court held that “as a matter of law, 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, unless the conviction has been overturned.” Id. at 498. The court reasoned that as a matter of public policy in this State, “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. at 497-98. Thus, because the plaintiff had not been exonerated, the court held as a matter of law that her illegal acts remained the sole proximate and producing causes of her indictment and conviction. Id. at 498.

          In the instant case, appellant asserts that Peeler does not apply because he is not a criminal defendant bringing suit against his defense attorney. Appellant argues that as a “convict client,” he formed an attorney-client relationship with a “non-defense lawyer.” This relationship was completely unrelated to his conviction since he hired appellee to represent him before the parole board.

          However, appellant does not complain of appellee’s performance before the parole board. Instead, appellant contends he suffered damages as a result of appellee’s negligence in representing to him that he was incarcerated for a “3g offense.” Appellant argues that this representation forced him to file the application for writ of habeas corpus to correct a perceived error in his sentence. Appellant claims appellee’s negligence harmed him because he is now unable to file additional applications for writ of habeas corpus to challenge his conviction.

          We first note that appellant has never asserted he is not guilty of the offense for which he was convicted. Further, appellant has not been exonerated from his conviction on direct appeal, through post-conviction relief, or otherwise. Rather, the gravamen of appellant’s claim is that because of appellee’s negligence, he has lost the ability to challenge his conviction through post-conviction relief.

          As the nature of appellant’s complained-of injury relates to his conviction, we are constrained by the holding in Peeler that “as a matter of law, 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, unless the conviction has been overturned.” Id. (emphasis added); see, e.g., Barnum v. Munson, Munson, Pierce & Cardwell, P.C., 998 S.W.2d 284, 286 (Tex. App.–Dallas 1999, pet. denied) (applying Peeler to bar malpractice suit against attorneys hired to represent defendant on appeal). We adhere to the public policy principle emphasized in Peeler that “convicts may not shift the consequences of their crime to a third party.” Peeler, 909 S.W.2d at 498; see, e.g., Golden v. McNeal, 78 S.W.3d 488, 492 (Tex. App.–Houston [14th Dist.] 2002, pet. denied) (applying principle to bar action against investigator). We construe appellant’s argument as an attempt to do just that.

          Therefore, on these facts, we conclude that because appellant’s damages were suffered by reason of his own illegal conduct and he has not been exonerated from his criminal conviction, he is barred from maintaining legal malpractice claims related to his conviction as a matter of public policy. See Peeler, 909 S.W.2d at 497-98. Accordingly, the trial court did not err in granting summary judgment on this ground. Appellant’s first issue is overruled.

          In view of our disposition of appellant’s first issue, it is not necessary to address his remaining issue. See Tex. R. App. P. 47.1.

          We affirm the trial court’s order granting appellee’s motion for summary judgment.

                                                                           FEDERICO G. HINOJOSA

                                                                           Justice

Dissenting Opinion by Justice Linda Reyna Yañez.

Memorandum Opinion delivered and filed this the

5th day of August, 2004.