Roy E. Addicks, Jr. v. John A. Sickel and Barry E. Bilger ( 2009 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-261-CV
ROY E. ADDICKS, JR. APPELLANT
V.
JOHN A. SICKEL AND BARRY APPELLEES
E. BILGER
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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
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MEMORANDUM OPINION 1
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I. INTRODUCTION
This is Appellant Roy E. Addicks, Jr.’s 2 second appeal in this legal
malpractice case. Addicks sued Appellees John A. Sickel and Barry E. Bilger,
attorneys whom he had hired to handle his divorce and to file a lawsuit against
a bank. In the first appeal, we affirmed the trial court’s judgment for Appellees
in part, but reversed the trial court’s judgment in part and remanded for the trial
1
 See Tex. R. App. P. 47.4.
2
 Addicks is an inmate who is proceeding pro se in this appeal.
court to apply a four-year statute of limitations to Addicks’s breach of contract
claim. On remand, the trial court granted summary judgment for Appellees on
this claim. In four issues on appeal, Addicks asserts that error occurred (1)
when his motion to recuse the trial judge was denied, (2) when he was denied
a Level 3 discovery control plan, (3) when the trial court and this court denied
his motions for appointment of counsel, and (4) when the trial court failed to
hold a trial on the merits. We will affirm.
II. F ACTUAL AND P ROCEDURAL B ACKGROUND
A. The Underlying Lawsuit 3
In 1993 while Addicks was in prison, he received $186,633.12 in
settlement of a personal injury claim. Addicks’s wife filed for divorce, and
Addicks hired Sickel to handle his divorce and signed a contract to that effect.
During discovery in the divorce suit, Addicks learned that his wife had
spent all of his settlement money while he was in prison after a bank, Texas
National Bank, N.A., allegedly erroneously turned the money over to her.
Addicks decided to file a counter-petition for divorce in an effort to recoup his
money from his wife and from those who had benefitted from the misspent
3
 The facts in this section are taken from the “Factual Background” set
forth in our opinion of March 31, 2005. Addicks v. Sickel, No. 02-03-00218-
CV, 2005 WL 737419, at *1 (Tex. App.—Fort Worth Mar. 31, 2005, no pet.).
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monies. Addicks claimed that after a year of litigation, Sickle had not served
the parties in the divorce from whom he was seeking to recoup his money.
Recognizing that Addicks might have a right of recovery against the bank,
Sickle referred Addicks to attorney Barry E. Bilger to pursue that claim. Bilger
filed suit, and in 1996, the case was mediated; both Sickel and Bilger attended
the mediation with Addicks. Eventually, Addicks accepted a $70,000
settlement offer from the bank. Addicks asserted that his acceptance of this
settlement offer was predicated on Sickel’s promise to forego collection of the
$7,000 that Addicks owed him for attorney’s fees in the divorce case and to
finalize the divorce proceedings without further charge. Sickel contended that
he agreed not to charge Addicks any further fees if the divorce suit settled
(which it did not) and that, in any event, Addicks was still responsible for
paying costs.
The relationship between Addicks and Sickel deteriorated, and in
December 1997, Addicks sent Sickel a letter discharging him. Sickel
subsequently filed a motion to withdraw from the divorce case, and that motion
was granted by the trial court. Sickel mailed a copy of the motion to Addicks,
who remained imprisoned. Nine days later, in response to a letter from
Addicks, Sickel wrote Addicks telling him that he was no longer interested in
continuing his representation of Addicks in the divorce. Nonetheless, Addicks
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filed a letter with the court opposing Sickel’s motion to withdraw, which had
been granted about forty-five days earlier. A year later, in December 1998,
Addicks’s divorce case was dismissed for want of prosecution. Addicks alleged
that he learned of the dismissal in December 1999.
Based on these facts, Addicks sued Sickel and Bilger in March 2001 for
breach of contract and legal malpractice. In February 2003, the trial court
signed an order granting a partial summary judgment for Sickel and Bilger on all
claims except the issue of breach of the alleged oral agreement between the
parties at the mediation. The case proceeded to a bench trial, and the trial
court signed a final judgment that Addicks take nothing and awarding
attorney’s fees to Sickel and Bilger in the amount of $12,000 and $17,500,
respectively.
B. The First Appeal
In his first appeal, Addicks challenged the take-nothing judgment entered
against him. Addicks, 2005 WL 737419, at *1. We sustained one of
Addicks’s issues, holding that the four-year statute of limitations applied to
Addicks’s breach of contract claims, not the two-year statute of limitations.
Id. at *2. Accordingly, we reversed the trial court’s judgment in part and
remanded Addicks’s breach of contract claims to the trial court for application
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of the correct statute of limitations. We affirmed the remainder of the trial
court’s judgment. Id. at *5.
C. Proceedings in the Trial Court on Remand
On remand, the trial court requested briefing from the parties on (1)
whether it should consider additional evidence on the breach of contract claims
or simply review the evidence from the prior trial and apply the four-year statute
of limitations and (2) the application of the four-year statute of limitations to the
present facts. All parties filed trial briefs. The trial court thereafter concluded
that there was nothing in our prior opinion that would prevent it from reviewing
the record before it and the evidence offered at trial and then applying the four-
year statute of limitations to the issue of the alleged breach of contract;
therefore, it dispensed with any evidentiary proceedings. The trial court then
found that Addicks had failed to prove his allegations of breach of contract
against Bilger and Sickel by a preponderance of the evidence, denied all relief
requested by Addicks, and granted summary judgment in favor of Appellees.
This appeal followed.
III. N O A BUSE OF D ISCRETION IN D ENIAL OF M OTION TO R ECUSE
In his first issue in this appeal, Addicks argues that his motion to recuse
the trial judge was erroneously denied. Addicks argues that Judge Roy T.
Sparkman exhibited personal or official bias or prejudice against him because
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he is an inmate, because he is incarcerated for aggravated sexual assault,
because Judge Sparkman exhibited extreme partiality during the first case, and
because Addicks filed a complaint against Judge Sparkman with the Texas
Commission on Judicial Conduct for allegedly violating the judicial canons.
We review the denial of a motion to recuse under an abuse of discretion
standard on appeal. See Tex. R. Civ. P. 18a(f). The Texas Supreme Court has
stated,
‘[J]udicial rulings alone almost never constitute a valid basis for a
bias or partiality motion,’ and opinions the judge forms during a trial
do not necessitate recusal ‘unless they display a deep-seated
favoritism or antagonism that would make fair judgment impossible.
Thus, judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.’
Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240–41 (Tex. 2001) (quoting
Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157 (1994)).
“A judge’s ordinary efforts at courtroom administration—even a stern and short-
tempered judge’s ordinary efforts at courtroom administration—remain
immune.” Id. (quoting Liteky, 510 U.S. at 556, 114 S. Ct. at 1157).
Addicks’s motion for recusal was premised on the following argument:
4. During the first “case set on the merits”, the very same
presiding Judge did in fact exhibit extreme partiality, personal bias,
and other adverse factors against this plaintiff; in favor of the two
defendants who are both licensed attorneys and plaintiff [is] an
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incarcerated inmate with two life-sentences for aggravated sexual
assault.
5. Plaintiff did in fact file a complaint against Honorable Judge Roy
T. Sparkman, with the State Commission on Judicial Conduct
which will weigh against plaintiff.
Visiting Judge Roger Towery heard Addicks’s recusal motion. At the hearing,
Addicks testified that he had filed a recusal motion because he had received
defective notice of the original trial setting, because Judge Sparkman was not
fair in adjudicating Addicks’s rights at that trial, and because he did not believe
that he would receive a fair and impartial trial in front of Judge Sparkman
because of his status as an inmate. On cross-examination, Addicks admitted
that any judge who dealt with him would be dealing with him as an inmate
because he is serving two life sentences. Addicks also admitted that he had
already raised his defective notice point in this court in his prior appeal and that
this court had overruled it. At the conclusion of the hearing, Judge Towery
stated,
I don’t see anything in the testimony or -- there are general
allegations, but there’s no specific testimony that would indicate
bias or prejudice on the part of Judge Sparkman, and I don’t find
any basis for disqualification or recusal, and I’m going to deny your
Motion for Recusal of Trial Judge.
After reviewing the record before us, we hold that Judge Towery did not
abuse his discretion by denying Addicks’s recusal motion. See Trahan v. Lone
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Star Title Co. of El Paso, 247 S.W.3d 269, 277 (Tex. App.—El Paso 2007, pet.
denied) (holding no abuse of discretion existed in denying motion to recuse on
the basis of impartiality or personal bias and prejudice when there was an
implicit finding that the trial judge did not display a high degree of favoritism);
In re Robinson, No. 12-00-00354-CV, 2002 WL 335281, at *6 (Tex.
App.—Tyler Feb. 28, 2002, no pet.) (not designated for publication) (holding
that visiting judge did not abuse her discretion by denying motion to recuse
when general allegations of bias were not supported by record). We overrule
Addicks’s first issue.
IV. N O A BUSE OF D ISCRETION BY F AILING
TO O RDER L EVEL 3 D ISCOVERY C ONTROL P LAN
In his second issue, Addicks argues that the trial court erred by denying
his motion for a Level 3 discovery control plan. Addicks complains that he
“was denied his right to have all necessary documents, evidence, etc.” But,
discovery was completed and a trial was conducted in 2003. Addicks then
appealed, and this court issued its opinion on March 31, 2005, remanding for
the application of the four-year statute of limitations to Addicks’s breach of
contract claims. Approximately two years later, on May 25, 2007, the trial
court issued an order setting the case for a non-jury trial on August 13, 2007.
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It was not until after this order was issued that Addicks filed his motion for a
Level 3 discovery control plan.
In his motion, Addicks argued that prison officials had forced him to
discard his legal paperwork; he requested that he be permitted “to perform the
whole range of discovery in which to prepare for trial.” Appellees responded
that there were other methods available to Addicks that would be far less
burdensome on Appellees and that Addicks had not indicated that he had
attempted to pursue any other less burdensome avenue of obtaining the sought-
after discovery. Addicks then moved for a continuance alleging that he had not
received adequate supplies, law library access, or time for discovery. 4 On the
date that trial was scheduled, the trial court held a hearing on Addicks’s motion
for continuance.
Addicks was present at the hearing on his motion for continuance, and
the trial court allowed Addicks to testify and to cross-examine Appellees.
Addicks admitted that between March 2005, when this court’s opinion issued,
and July 2007, he had not done anything to prepare for trial. When the trial
court attempted to pin down Addicks on what discovery remained to be done,
Addicks said that he did not “know the specifics” and later said, “Well,
4
 Addicks did not serve his motion for continuance on Appellees.
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anything related to the statute of limitations . . . . [A]ny documents or records
that would establish -- you know, help me to establish the statute of
limitations.”
At the conclusion of this hearing, the trial court requested the previously
mentioned briefing on (1) whether it should consider additional evidence on the
breach of contract claims or simply review the evidence from the prior trial and
(2) applying the four-year statute of limitations and on the application of the
four-year statute of limitations to the present facts. The trial court also ordered
the Texas Department of Corrections–Institutional Division not to destroy
Addicks’s legal documents and ordered the district clerk to provide Addicks
with documents from the 2003 trial.
Addicks subsequently filed several motions for extensions of time and a
motion for copies of court-filed documents and discovery. On September 26,
2007, the trial court granted Addicks until December 21, 2007 to obtain any
documents that he needed and to file a brief to respond to the trial court’s
request for briefing on the issue of whether a trial was needed on the remanded
issue. The trial court also specified that Addicks was free to request
documents directly from the district clerk but would be required to make
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satisfactory arrangements for payment. 5 Addicks ultimately filed his trial brief
on January 7, 2008, continuing to argue that he did not have all the necessary
documents. 6
As evidenced by the sequence of events set forth above, all discovery
had been completed prior to the 2003 hearing, four years before Addicks filed
his motion for a Level 3 discovery control plan. Although Addicks complains
that the prison officials destroyed all of his legal paperwork while his appeal
was pending, it was not incumbent upon the trial court or Appellees to recreate
that paperwork for him. Instead, as pointed out in the trial court’s order
granting an extension, Addicks had the ability to request all court-filed
documents directly from the district clerk, 7 but he mistakenly kept propounding
discovery requests on the trial court until after the date of the trial setting. The
5
 The trial court’s order makes it sound like Addicks must pay for
copies, but there are references in the record to the fact that he is indigent.
Ultimately, this makes no difference because the same order also states that
there is no proof that Addicks requested any documents from the district clerk.
6
 Although the record before us contains at least one letter from
Addicks to the district clerk relating to his change of address, the record before
us does not, however, contain any requests for discovery from Addicks to the
district clerk between the trial court’s September 26, 2007 order and the date
that Addicks filed his trial brief.
7
 Although not the normal practice, Sickel testified that all discovery for
this case was filed with the district clerk.
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trial court attempted to work with Addicks by granting him extensions of time
to gather whatever evidence he felt was necessary to make his argument.
After reviewing the record as a whole, we cannot say that the trial court
abused its discretion by not ordering a Level 3 discovery control plan. There is
nothing in Addicks’s appellate brief to show how a Level 3 discovery control
plan would have provided Addicks with any information not available to him
from the discovery on file with the district clerk’s office. Moreover, Addicks
admits that he did not pursue any discovery at all during the two-year delay
between the issuance of this court’s opinion and the trial court’s order setting
the case for a trial on the remanded issue. Cf. Allen v. United of Omaha Life
Ins. Co., 236 S.W.3d 315, 327 (Tex. App.—Fort Worth 2007, pet. denied)
(holding that trial court did not abuse its discretion by granting motions for
summary judgment without first entering a level 3 discovery control order). We
overrule Addicks’s second issue.
V. N OT E NTITLED TO A PPOINTED C OUNSEL
In his third issue, Addicks argues that the trial court and this court both
erred by denying his motions for appointment of counsel. Addicks argues that
because he is indigent and because this is allegedly a complex suit, both the
trial court and this court should have appointed counsel to represent him.
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We review a trial court’s failure to appoint trial counsel in a civil case for
an abuse of discretion. See Tex. Gov’t Code Ann. § 24.016 (Vernon 2004);
Gibson v. Tolbert, 102 S.W.3d 710, 712–13 (Tex. 2003). A civil litigant has
no general constitutional right to appointed counsel. 8 See Sandoval v. Rattikin,
395 S.W.2d 889, 893–94 (Tex. Civ. App.—Corpus Christi 1965, writ ref’d
n.r.e.), cert. denied, 385 U.S. 901 (1966). “[I]n 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.” Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 594
(Tex. 1996). Whether exceptional circumstances warranting the appointment
of counsel exist is determined on a case-by-case basis. Gibson, 102 S.W.3d
at 713.
We cannot conclude that this breach of contract case presents
exceptional circumstances that require the appointment of counsel. See Teague
v. Holiday Inn Express, No. 03-00-00519-CV, 2001 WL 391551, at *2 (Tex.
App.—Austin Apr. 19, 2001, pet. denied) (stating that appellant made no
8
 Cases involving juvenile delinquency, termination of parental rights,
and court-ordered mental health services are exceptions to this general rule. See
Tex. Fam. Code Ann. §§ 51.10, 107.013 (Vernon Supp. 2009); Tex. Health &
Safety Code Ann. § 574.003 (Vernon 2003). None of the exceptions apply
here.
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showing that his breach of contract case against motel was the exceptional
case that would justify the appointment of counsel), cert. denied, 535 U.S.
1061 (2002). Thus, we hold that neither the trial court, nor this court, abused
its discretion by failing to make such an appointment. We therefore overrule
Addicks’s third issue.
VI. T RIAL C OURT N OT R EQUIRED TO C ONDUCT A N EW T RIAL
In his fourth issue, Addicks argues that the trial court erred by not holding
a trial on the merits of the remanded issue. Although Addicks’s trial brief
argues that the trial court should hear additional evidence because he was “ill
prepared” for the 2003 trial—an issue disposed of in the prior appeal and which
was not before the trial court on remand, Addicks himself admitted during the
hearing on his motion for continuance that he had assumed that the trial court
would rule on the remanded issue without him present.
Our judgment dated March 31, 2005 states that “[w]e reverse that
portion of the trial court’s judgment ordering that Addicks take nothing by his
breach of contract claims and remand for further proceedings consistent with
this opinion.” The conclusion in the opinion dated March 31, 2005 states, “We
reverse the trial court’s judgment in part and remand for the application of the
correct statute of limitations to the breach of contract causes of action in the
original divorce and bank cases, as those have been denominated in this
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opinion.” Addicks, 2005 WL 737419, at *5. Nothing in our opinion or
judgment reverses and remands “for a new trial.” Id.; cf. Acord v. Gen. Motors
Corp., 669 S.W.2d 111, 117 (Tex. 1984) (remanding “for the purpose of a
new trial”). Because our prior opinion did not require the trial court to conduct
a trial on the remanded issue, we hold that the trial court did not abuse its
discretion by failing to hold a trial and by deciding the remanded issue on the
record before it. We overrule Addicks’s fourth issue.
VII. C ONCLUSION
Having overruled Addicks’s four issues, we affirm the trial court’s
judgment.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MCCOY, JJ.
DELIVERED: December 10, 2009
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