Dennis James Poledore, Jr. v. Frank Jerome Fraley

• Court: Court of Appeals of Texas
• Decided: October 7, 2010
• Docket: 01-09-00658-CV
• Status: Published

Opinion

Opinion issued October 7, 2010.

In The

Court of Appeals

For The

First District of Texas

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NO. 01-09-00658-CV

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Dennis James Poledore, Jr., Appellant

V.

Frank Jerome Fraley, Appellee

On Appeal from the 268th District Court

Fort Bend County, Texas

Trial Court Case No. 06DCV153748

MEMORANDUM OPINION ON REHEARING

Dennis Poledore, an inmate in the Texas Department of Corrections—Institutional Division, filed a civil suit against Frank Fraley, the court-appointed attorney who represented him in his criminal case, raising various tort claims and alleging that Fraley had committed forgery by amending a waiver of arraignment document that Poledore had previously signed.  Fraley moved for summary judgment on no-evidence grounds, contending that he did not breach any duty and, alternatively, any breach did not cause Poledore any damages.  The trial court granted Fraley’s motion and denied Poledore’s cross-motion.  On appeal, Poledore contends that (1) the trial court erred in denying his cross-motion for summary judgment and granting Fraley’s motion for summary judgment; (2) the trial court erred in failing to grant Poledore’s request for jury trial and make findings of fact and conclusions of law; and (3) the denial of his motion to recuse the trial judge was an abuse of discretion.  We grant rehearing, withdraw our opinion and judgment dated August 12, 2010, and issue this opinion in its stead to clarify our ruling on issues Fraley raises in his motion for rehearing.  Our disposition of the case is unchanged. We hold that the trial court correctly granted summary judgment in favor of Fraley and that Poledore’s failure to procure a recording of the telephonic hearing on the motion to recuse the trial judge precludes appellate review of the recusal order.  We therefore affirm.

Background

Underlying criminal proceedings

In his first appearance before the trial court in the underlying criminal cases, Poledore asked for appointment of counsel.  The trial court appointed Fraley to defend Poledore.  In connection with the proceedings, Fraley had Poledore sign a form entitled “Waiver of Arraignment.”  In the form, dated November 15, 2005, Poledore confirmed that (1) he is the person charged; (2) he waives any statutory time allowed between service of the indictment and his arraignment; (3) he waives the right to be formally arraigned; and (4) he enters a plea of not guilty to the offenses charged. 

The State later issued two sets of reindictments—the first to include enhancement paragraphs, and the second to correct a date in the first enhancement paragraph.  The original indictments consisted of cause numbers 42537, 42538, and 42572.  The first reindictments added the following to each charge: 

And it is further presented in and to said Court that, prior to the commission of the aforesaid offense (hereafter styled the primary offense), on the 19th day of August, 1984, in cause number F84-76850-TK in the Criminal District Court 4 of Dallas County, Texas, the defendant was convicted of the felony of Aggravated Robbery;

And it is further presented in and to said Court that, prior to the commission of the primary offense, and after the conviction in cause number F84-76850-TK was final, the defendant committed the felony of Aggravated Robbery and was convicted on the 13th day of December, 1988, in cause number 513861 in the 174th District Court of Harris County, Texas.

These first reindictments consisted of cause numbers 42537A, 42538A, and 42572A.  After the State filed those charges, Poledore executed an affidavit acknowledging them and confirming that he already had Fraley as his appointed counsel. 

The second set of reindictments corrected the date listed in the first enhancement paragraph from “the 19th day of August, 1984” to “the 4th day of December, 1984.”  They consisted of cause numbers 42537B, 42538B, and 42572B (the “B” reindictments).  Before Fraley filed Poledore’s signed waiver of arraignment form with the court, he added the letter “B” following the original indictment cause numbers listed at the top of the form.

          During the State’s case-in-chief, Fraley presented the following oral motion:

FRALEY:             Judge, on behalf of the defendant, Mr. Dennis Poledore, he’s asking that this charge be dismissed based on the fact that there was a reindictment in the case, and he was never arraigned on a new reindictment.  The original was one set of numbers, and there was one with sub-A and sub-B.  He has never waived his right to arraignment.  He felt because he was never arraigned under B, the charges being brought forward need to be dismissed.  

THE STATE:       I believe he was arraigned, and he pled in open court.

FRALEY:             Under the rules, that is saying that—that’s not the same thing.  Basically, what was read yesterday in regards to the indictment was just to let the defendant know what charges were brought against him and to enter his plea, where an arraignment has to do with identifying the defendant and also getting his plea. . . .

. . . .

THE STATE:       I have a document filed in the case, waiver of arraignment, in all three cases.

FRALEY:             That’s before the reindictments.  That was just for—

THE COURT:      Well, this is for B.  This is for the second reindictment in all three cases, and, of course, not only your name is on there, but the defendant’s name is on there.

In Poledore’s presence, Fraley informed the court that he altered the waiver of arraignment form to apply it to the “B” reindictments after Poledore signed the form.  Fraley noted Poledore’s concern to the court, which was that he could have six charges pending against him rather than three.  The trial court stated, “That’s a matter of formality, and it would not be grounds for stopping the trial or dismissing the charges.”  Poledore did not object to Fraley’s alteration of the form or attempt to withdraw the waiver of arraignment.  The trial court denied the motion to dismiss the charges.

          The trial resulted in Poledore’s conviction on all three charges.  On direct appeal, this court affirmed the convictions.  See Poledore v. State, Nos. 01-06-00948-CR, 01-06-00998-CR, and 01-06-00999-CR, 2008 WL 2466209 (Tex. App.—Houston [1st Dist.] June 19, 2008).  The Court of Criminal Appeals denied Poledore’s petitions for discretionary review on November 5, 2008. 

Poledore’s civil case against Fraley

Poledore filed a civil suit against Fraley, the court-appointed attorney who represented him in his criminal case, alleging that Fraley had (1) committed forgery by amending a waiver of arraignment document that Poledore had previously signed, and (2) failed to hire a private investigator to work on Poledore’s case.  Poledore’s petition alleged that it was a “Tort Civil Action at Law for Damages” and that jurisdiction was “invoked by the Texas Tort Claims Act.”  The trial court granted Fraley’s first motion for no-evidence summary judgment on the ground that he was not an “employee” under the Tort Claims Act, but our court reversed the summary judgment and remanded the case to the trial court.  Poledore v. Fraley, No. 01-07-00583-CV, 2008 WL 2465792 (Tex. App.—Houston [1st Dist.] June 19, 2008).  After remand, Fraley moved for summary judgment a second time, contending that had no evidence that Fraley breached his duty of care or that any breach of that duty caused Poledore any damages.  Poledore filed an amended supplemental petition and a cross-motion for summary judgment on the issue of liability.  The trial court granted Fraley’s motion and denied Poledore’s cross-motion, and Poledore timely appealed.

Discussion

I.       Propriety of Summary Judgment

A.      Standard of review

To prevail on a no-evidence summary judgment motion, a movant must allege that there is no evidence of an essential element of the adverse party’s cause of action.  Tex. R. Civ. P. 166a(i); Fort Worth Osteopathic Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004).  We review a no-evidence summary judgment under the same legal sufficiency standard used to review a directed verdict.  Boaz v. Boaz, 221 S.W.3d 126, 130 (Tex. App.—Houston [1st Dist.] 2006, no pet.).  Although the non-movant need not marshal its proof, it must present evidence that raises a genuine issue of material fact on each of the challenged elements.  Tex. R. Civ. P. 166a(i); Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004).  A no-evidence summary judgment motion may not properly be granted if the non-movant brings forth more than a scintilla of evidence to raise a genuine issue of material fact on the challenged elements.  See Ridgway, 135 S.W.3d at 600.  More than a scintilla of evidence exists when the evidence “rises to a level that would enable reasonable and fair-minded people to differ in their conclusions.”  Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex. 1997) (quoting Burroughs Wellcome v. Crye, 907 S.W.2d 497, 499 (Tex. 1995)).  When reviewing cross-motions for summary judgment, we consider both motions and render the judgment that the trial court should have rendered.  Coastal Liquids Transp., L.P. v. Harris County Appraisal Dist., 46 S.W.3d 880, 884 (Tex. 2001).

          B.      Legal malpractice claims

Poledore complains that the trial court erred in granting summary judgment in favor of Fraley on his claims for forgery and fraudulent conduct.  Whether Poledore’s allegations, labeled as forgery, fraud, breach of fiduciary duty, negligence, or some other cause of action, are actually claims for professional negligence is a question of law to be determined by the court.  See, e.g., Greathouse v. McConnell, 982 S.W.2d 165, 171 (Tex. App.—Houston [1st Dist.] 1998, pet. denied) (stating court had to decide precise nature of claims alleged before considering grounds asserted in summary judgment motion).  We review this issue de novo.  See Barber v. Colo. Indep. Sch. Dist., 901 S.W.2d 447, 450 (Tex. 1995). 

Poledore’s complaints about Fraley stem from Fraley’s alteration of the signed original waiver of arraignment form to apply it to the “B” indictments.  The facts underlying Poledore’s legal claims show that Poledore assented to waiving the arraignment by signing the original form, and did not protest to Fraley or the trial court when Fraley explained that he altered the form.  The record reflects, moreover, that Poledore was in fact arraigned.  Poledore contends, however, that his lack of consent to waive arraignment on the “B” indictments would have forced the State to prosecute the charges on the original indictments, which did not contain the enhancement paragraphs and thus would have subjected him to a lesser sentence.  Poledore’s other complaints—including those made in his amended supplemental petition filed after Fraley moved for summary judgment—all relate to what he perceives as Fraley’s wrongful handling of his duties to defend Poledore in the criminal case.  

Texas courts do not allow plaintiffs to convert what are really negligence claims into claims for fraud, breach of contract, breach of fiduciary duty, or violation of the DTPA.  See, e.g., Rangel v. Lapin, 177 S.W.3d 17, 24 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (concluding claims for DTPA violations and breach of contract were actually claim for legal malpractice because crux of claims was lawyers did not provide adequate legal representation); Murphy v. Mullin, Hoard & Brown, L.L.P., 168 S.W.3d 288, 290 n.1 (Tex. App.—Dallas 2005, no pet.), (holding that client’s allegations that attorney was negligent in drafting or reviewing documents and failed to timely inform clients of defects in documents was not claim for breach of fiduciary duty, but actually for professional negligence); see also Gibson v. Ellis, 126 S.W.3d 324, 330 (Tex. App.—Dallas 2004, no pet.) (concluding that, even if lawyer gave incorrect explanations for deductions from settlement in personal injury lawsuit, no conclusive evidence indicated that lawyer knew of falsity or that explanations were made for purpose of subordinating client's interest).  Claims resting on allegations of an attorney’s erroneous legal opinion or legal advice, delay or neglect in handling a matter entrusted to the attorney’s care, or failing to use ordinary care in preparing, managing, and prosecuting a case constitute professional negligence, not fraud, breach of contract, or breach of fiduciary duty.  Murphy v. Gruber, 241 S.W.3d 689, 693 (Tex. App.—Dallas 2007, pet. denied).

Poledore’s claims here sound in negligence—that his attorney should not have added the “B” cause numbers at the top of his waiver of arraignment because it was not a sound trial strategy.  The claim does not sound in fraud because the attorney disclosed his actions to Poledore, and to the court, in Poledore’s presence.  See 7979 Airport Garage, L.L.C. v. Dollar Rent A Car Sys., Inc., 245 S.W.3d 488, 507 n.27 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (to prove fraud by nondisclosure, plaintiff must show that person with duty to disclose deliberately failed to disclose material facts); see also Bradford v. Vento, 48 S.W.3d 749, 754–55 (Tex. 2001).  We therefore construe Poledore’s claims as a single claim for legal malpractice.  Generally, to recover on a claim of legal malpractice, a plaintiff must prove: (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.  Trousdale v. Henry, 261 S.W.3d 221, 227–28 (Tex. App.—Houston [14th Dist.] 2008, pet. denied); Farah v. Mafrige & Kormanik, P.C., 927 S.W.2d 663, 670 (Tex. App.—Houston [1st Dist.] 1996, no writ); see McMahan v. Greenwood, 108 S.W.3d 467, 495 (Tex. App.—Houston [14th Dist.] 2003, pet. denied) (citing Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex.1995)).  Attorneys may also be held liable for a breach of fiduciary duty, but such a claim requires allegations of self-dealing, deception, or misrepresentations that go beyond the mere negligence allegations in a malpractice action.  Trousdale, 261 S.W.3d at 227 (citing Goffney, 56 S.W.3d at 193–94). In addition the waiver’s execution date of November 15, 2005 plainly shows that the waiver related back to the initial indictments.  Fraley objected and moved to dismiss the charges, but the trial court overruled it. 

Summary judgment on proximate cause in a legal malpractice action is warranted if the attorney’s act or omission was not the cause of any damages to the client.  Swinehart v. Stubbeman, McRae, Sealy, Laughlin & Browder, Inc., 48 S.W.3d 865, 875 (Tex. App.—Houston [14th Dist.] 2001, pet. denied).  In Peeler v. Hughes & Luce, the Texas Supreme Court identified a variation of this no-causation rule for legal malpractice claims arising out of criminal prosecutions.  See 909 S.W.2d 494, 497 (Tex. 1995).  The Court noted that “nearly every court that has addressed the question of whether a convict may sue his or her attorney holds that, for reasons of public policy, the criminal conduct is the only cause of any injury suffered as a result of conviction.”  Id.  Consequently, legal malpractice claims brought by a convicted criminal defendant against his defense counsel—like Poledore’s claims here—fail as a matter of law, unless an appellate court first reverses the conviction.  Id. 

On appeal, we affirmed Poledore’s convictions, and the Court of Criminal Appeals refused his petition for discretionary review.  This result dictates that Poledore’s legal malpractice claims fail as a matter of law and makes it unnecessary to reach his remaining issues concerning the alleged acts giving rise to those claims.  We therefore hold that the trial court correctly granted summary judgment in favor of Fraley and denied Poledore’s cross-motion for summary judgment on his legal malpractice claims.

C.      Effect of summary judgment other issues

Poledore also complains that the trial court disregarded his request for a jury trial.  Because we have held that the trial court correctly granted summary judgment, Poledore’s request for jury trial is moot.  The trial court correctly disposed of the issues as a matter of law, so no fact finder was required.  The trial court likewise did not err in failing to issue findings of fact and conclusions of law.  In IKB Industries (Nigeria) Ltd. v. Pro-Line Corp., the Texas Supreme Court explained:

[F]or summary judgment to be rendered, there cannot be a genuine issue as to any material fact, and the legal grounds are limited to those stated in the motion and response.  In other words, if summary judgment is proper, there are no facts to find, and the legal conclusions have already been stated in the motion and response.   

938 S.W.2d 440, 441 (Tex. 1997) (internal quotation and citations omitted); see also Tex. R. Civ. P. 296 (requiring trial court to issue findings of fact and conclusions of law on parties’ request after bench trial); Linwood v. NCNB Tex., 885 S.W.2d 102, 103 (Tex. 1994) (noting findings of fact and conclusions of law have “no place” in summary judgment proceeding).

II.      Motion to recuse trial judge

Poledore also appeals the denial of his motion to recuse the trial judge.  A telephonic evidentiary hearing was held before Judge John Board of the 181st Judicial District Court on Poledore’s motion to recuse, and Judge Board denied the motion.  A court reporter was not present to record the hearing.  Without a record of the proceedings, we cannot review the order for abuse of discretion, and nothing is presented for review.  See Tex. R. Civ. P. 18a(f); In re M.C.M., 57 S.W.3d 27, 33 (Tex. App.—Houston [1st Dist.] 2001, pet. denied); Birnbaum v. Law Offices of G. David Westfall, P.C., 120 S.W.3d 470, 476 (Tex. App.—Dallas 2003, pet. denied). 

Conclusion

          We hold that the trial court correctly granted summary judgment in favor of Fraley on Poledore’s legal malpractice claims and that Poledore’s failure to procure a record of the hearing on his motion to recuse the trial judge renders the denial of that motion unreviewable.  We therefore affirm.

                                                                   Jane Bland

                                                                    Justice

Panel consists of Chief Justice Radack and Justices Bland and Sharp.