Thomas R. McBride v. Timothy Mahler

CV2-228 IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS, AT AUSTIN NO. 3-92-228-CV THOMAS R. MCBRIDE, APPELLANT vs. TIMOTHY MAHLER, APPELLEE FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT NO. 131,946-C, HONORABLE D. V. HAMMOND, JUDGE PRESIDING PER CURIAM Thomas McBride (1) appeals from the trial court's take-nothing judgment against him in his action for legal malpractice against Timothy Mahler, who represented him in a criminal prosecution. The judgment (1) granted appellee's motion for summary judgment and (2) found appellant's suit frivolous under Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West Supp. 1993). Appellant brings four points of error. The first three points complain of the trial court's errors in granting summary judgment for appellee. (2) The fourth point complains that the trial court abused its discretion in finding appellant's cause frivolous under section 13.001. We will overrule all points of error and affirm the trial court's judgment. Procedural History This malpractice lawsuit arises from appellee's representation of appellant in a criminal prosecution that resulted in appellant's conviction and incarceration. Appellant claims appellee's conduct at the criminal trial damaged him through a denial of his rights to a fair trial and proper appellate review due to numerous instances of failing to object or to raise the proper ground for an objection, as well as numerous errors in the questioning, or lack thereof, of several witnesses. Appellant appealed his conviction to this Court, represented by different attorneys than appellee. This Court, in affirming appellant's conviction, overruled a point of error alleging ineffective assistance of counsel. See Thomas Ritchie McBride v. State, No. 3-84-215-CR (Tex. App.--Austin May 8, 1985, no pet.) (not designated for publication). (3) Appellee first moved for summary judgment based on the statute of limitations and lodged special exceptions against appellant's pleadings. The special exceptions were granted, and appellee apparently withdrew this motion for summary judgment. (4) Appellant amended his pleadings. Appellee then moved for summary judgment, alleging, among other things, that the previous litigation of the ineffective assistance of counsel issue barred a subsequent relitigation of that issue brought as a malpractice claim. Appellee also moved to strike certain portions of appellant's pleadings on the basis that the pleadings had not been adequately amended in response to the granted special exceptions. Appellant filed a response to the motion for summary judgment and a motion for summary judgment. Collateral Estoppel In point of error three, appellant complains of the trial court's error in granting summary judgment. The standard of review for a summary judgment is: 1. The movant has the burden of showing there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. 2. In deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the non-movant will be taken as true. 3. Every reasonable inference must be indulged in favor of the non-movant and doubts resolved in his favor. Nixon v. Mr. Property Mgt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). One ground urged in appellee's motion for summary judgment was that appellant's claim of ineffective assistance of counsel, previously urged in his appeal from his criminal conviction, bars his later re-litigation of that issue as a malpractice claim. We agree. In general, res judicata, or claim preclusion, often is said not to apply between criminal and civil cases. See generally 48 Tex. Jur. 3d Judgments § 371 (1986). For example, an acquittal for the criminal offense of possession of alcoholic beverages in a dry area for the purpose of sale has been held not to bar a subsequent civil proceeding to forfeit the beverages. State v. Benavidez, 365 S.W.2d 638, 640 (Tex. 1963). Collateral estoppel, or issue preclusion, however, can bar relitigation in a civil case of an issue litigated in a criminal case. For example, Francis v. Marshall, 841 S.W.2d 51 (Tex. App.--Houston [14th Dist.] 1992, no writ), was a civil case to determine the recipient of life insurance proceeds as between the husband, who was the primary beneficiary of his wife's policy, and the secondary beneficiary. The court held that the husband's conviction for murder collaterally estopped him from raising the issue whether he willfully caused the decedent's death for purposes of determining whether he was prohibited from collecting life insurance benefits under the probate code. Id. at 54. In general, if a former client, on appeal, unsuccessfully challenged the effectiveness of trial counsel's representation in criminal proceedings, the ex-client will typically precluded from maintaining a civil malpractice action. Gregory G. Sarno, Legal Malpractice in Defense of Criminal Prosecution, 4 A.L.R.5th 273, § 2[a], at 293; § 3[c] (cases collected) (1992). In Garcia v. Ray, 556 S.W.2d 870 (Tex. Civ. App.--Corpus Christi 1977, writ dism'd w.o.j.), the court held that a previous determination that counsel was not ineffective barred relitigation of that claim in a civil action. In McCormick v. Texas Commerce Bank, National Ass'n, 751 S.W.2d 887 (Tex. App.--Houston [14th Dist.] 1988, writ denied), cert. denied, 491 U.S. 910 (1989), the court held that findings of a criminal judgment were conclusive under the doctrine of collateral estoppel and not rebuttable. Following the admission of defendant's prior conviction in a subsequent civil proceeding arising out of the same check kiting scheme, defendant was not entitled to explain mitigating circumstances respecting the prior conviction, including a claim of ineffective assistance of counsel. Id. at 889-90; see also Zeidwig v. Ward, 548 So.2d 209, 214 (Fla. 1989) (defendant who unsuccessfully advanced ineffective assistance claim in prior postconviction proceeding collaterally estopped from raising same claim in legal malpractice action against former attorney; court noted incongruity of allowing imprisonment of a defendant for a criminal offense after a judicial determination that he has failed in attacking his conviction because of ineffective assistance, then allowing damages in a civil suit because he was improperly imprisoned due to ineffective assistance); Knoblauch v. Kenyon, 415 N.W.2d 286, 289 (Mich. Ct. App. 1987). We agree with the above cases. In our case, all of appellant's claims in his civil malpractice suit arise out of counsel's representation in a criminal matter in which effective assistance of counsel has already been litigated. We overrule point three. Summary Judgment Proof In point of error two, appellant contends that appellee's motion for summary judgment was defective because he failed to specify where the proof he relied on was shown in the instruments on file. Appellant relies on several cases dealing with the need to refer to summary judgment evidence in the motion or response. Kotzur v. Kelly, 791 S.W.2d 254, 255-56 (Tex. App.--Corpus Christi 1990, no writ); Taylor v. Taylor, 747 S.W.2d 940, 946 (Tex. App.--Amarillo 1988, writ denied); Nicholson v. Naficy, 747 S.W.2d 3, 4-5 n.1 (Tex. App.--Houston [1st Dist.] 1987, no writ). Appellant has read the cases too broadly, however, as he apparently construes them to impose a requirement similar to that of Tex. R. App. P. 74(d) that requires the brief to include specific page references to the record. Further, appellant's motion was not based on specific instances from the record of the criminal trial, but rather on the existence of a trial in which the issue of ineffective assistance already had been litigated. We overrule point of error two. In point of error one, appellant contends that there was no proper summary judgment proof before the court because appellee failed to properly authenticate instruments he sought to attach to his motion as evidence. Appellant relies on Kotzur, 791 S.W.2d at 256, and Deerfield Land Joint Venture v. Southern Union Realty Co., 758 S.W.2d 608 (Tex. App.--Dallas 1988, no writ). However, appellee was not relying on documents attached to his motion that would need authentication in the way that depositions or deposition extracts do. He was not attempting to introduce expert testimony by way of affidavit. Rather, appellee was relying on the principle that after an opportunity to amend defective pleadings has been given, summary judgment "on the pleadings" may then be proper. See Texas Dept. of Corrections v. Herring, 513 S.W.2d 6 (Tex. 1974); see generally 3 Diane M. Allen, et al., Texas Civil Practice, § 18.14[b], at 474-75 (rev. ed. 1992). Appellant had an opportunity to amend his pleadings in response to special exceptions. In his motion appellee urged that appellant's pleadings showed the existence of a barrier to recovery. We overrule point of error one. Dismissal under Section 13.001 In point of error four, appellant contends that the trial court abused its discretion in finding (5) his cause "frivolous." Tex. Civ. Prac. & Rem. Code Ann. § 13.001 (West Supp. 1993). This section provides special procedures for dismissing suits filed in forma pauperis. The concern with in forma pauperis proceedings is to balance access to courts regardless of ability to pay with the problems generated by litigants against whom the usual economic constraints against frivolous or harassing litigation may not be effective. Neitzke v. Williams, 490 U.S. 319, 324 (1989). This concern is particularly strong in suits by prisoners. Spellmon v. Sweeney, 819 S.W.2d 206, 209 (Tex. App.--Waco 1991, no writ). We review such a finding on an abuse of discretion standard. Id. at 211. An appellate court may reverse a trial court for abuse of discretion only if, after searching the record, it is clear that the decision was arbitrary and unreasonable. Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987). Although section 13.001(b) sets out three factors to consider before dismissing an appeal as frivolous, the Texas Supreme Court has suggested that the proper factor to consider is whether the case has no arguable basis in law or fact. (6) Johnson v. Lynaugh, 796 S.W.2d 705 (Tex. 1990) (denying writ in 766 S.W.2d 393 (Tex. App.--Tyler 1989)). In this cause, the trial court would have had at least one reason to dismiss the cause under section 13.001(b)(2): collateral estoppel. Even if the issue had not been raised on summary judgment, the court could have considered all of the material in front of it and concluded that appellant had no basis in law for his suit because of collateral estoppel. We overrule point of error four. We affirm the judgment of the trial court. [Before Chief Justice Carroll, Justices Aboussie and Jones] Affirmed Filed: August 25, 1993 [Do Not Publish] 1. 1 Appellant Thomas McBride represented himself in the trial court in his civil cause for malpractice and represents himself on appeal. Appellee Timothy Mahler represented himself at trial and on appeal. He did not file an appellee's brief. 2. 2 Point one contends that appellee failed to properly authenticate documents he sought to attach to his motion as competent summary judgment evidence; thus, no summary judgment evidence was before the court. Point two contends that the appellee failed to specify where the proof he relied on was shown in the instruments on file. Point three contends that the trial court erred in its findings that plaintiff's pleadings are not sufficient to support a judgment, fail to state a cause of action, are affirmatively negated by his factual pleadings, and are irrefutably proven to be false as alleged in defendant's motion. 3. 3 This opinion is not cited as precedential authority, Tex. R. App. P. 90(i), but because McBride is bound by this court's judgment in that cause. See Bullock v. Sage Energy Co., 728 S.W.2d 465, 468-69 (Tex. App.--Austin 1987, writ ref'd n.r.e.). 4. 4 There are two motions for summary judgment by appellee in the transcript. The second motion for summary judgment in the transcript simply says "Motion for Summary Judgment." It is not titled "Second" or "Amended." It makes no reference to limitations. Appellant's brief states that appellee withdrew the first motion. See Tex. R. App. P. 74(f). 5. 5 The judgment was a take-nothing summary judgment rather than a dismissal. We assume the finding that the action was "frivolous" was entered so that, in the event that this Court did not affirm the summary judgment it could reform the judgment to reflect a dismissal. See Tex. R. App. P. 80(b)(2). 6. 6 The three factors set out in section 13.001(b) to determine whether an action is frivolous or malicious are whether: (1) the realistic chance of success is slight; (2) the claim has no arguable basis in law or in fact; or (3) it is clear that the party cannot prove a set of facts in support of the claims. Tex. Civ. Prac. & Rem. Code Ann. § 13.001(b) (West Supp. 1993). Section 13.001 basically codifies various factors the federal courts have looked to in interpreting the comparable federal in forma pauperis statute, 28 U.S.C. § 1915 (1988). Johnson v. Lynaugh, 766 S.W.2d 393, 394 (Tex. App.--Tyler 1989), writ denied per curiam, 796 S.W.2d 705 (Tex. 1990).