William Carl Wooley v. Randy Schaffer

MAJORITY OPINION

In four issues, pro se inmate William Carl Wooley complains that the trial court dismissed his civil lawsuit against his former attorney Randy Schaffer, whom Woo-ley retained to seek habeas relief on his behalf. Concluding that Wooley’s causes of action have no basis in law or fact because Wooley has not been exonerated from his criminal convictions, we affirm.

Background1

Wooley was convicted of aggravated sexual assault and related offenses. His con*73victions were affirmed on appeal, and he subsequently filed pro se habeas corpus applications in district court in Tarrant County, Texas. He alleged, as relevant here, ineffective assistance of trial counsel in failing to file a motion to suppress video evidence that had been stolen by Wooley’s son and given to the police. Thereafter, Wooley’s brother signed an agreement with Schaffer,2 who agreed to conduct an investigation “to determine whether there is any basis to file an application for a writ of habeas corpus to challenge ... Wooley’s convictions” in exchange for a fee of $10,000.

After conducting the investigation, Schaffer advised Wooley by letter that he could file applications for a writ of habeas corpus to assert ineffective assistance of trial counsel on two bases: (1) that trial counsel should have moved to suppress the videos if Wooley’s son had not intended to give them to the police at the time he stole them, as they would therefore be inadmissible; and (2) that trial counsel should not have presented testimony from Wooley’s psychologist because it was “extremely prejudicial” to Wooley. Schaffer informed Wooley that he would charge a fee of $25,000 plus expenses to argue both issues or a fee of $15,000 plus expenses to argue only the second issue.3 Wooley responded by letter that trying to prove his son did not intend to turn over the videos to authorities would be “a waste of time and money,”4 and Wooley authorized Schaffer only to raise the second issue.

Wooley’s brother, as guarantor, signed a “Professional Services Contract” with the Law Office of Randy Schaffer, P.C., in which he agreed to pay $15,000, plus the $10,000 investigation fee already paid. The firm agreed to file habeas applications on Wooley’s behalf. It is undisputed that Schaffer filed applications raising the issue regarding trial counsel’s effectiveness in presenting the psychologist’s testimony, a brief, and proposed findings of fact and-conclusions of law as a supplement to Woo-ley’s pro se applications already pending raising the issue regarding suppression of the videos.5

Schaffer argued the case before a special master, who filed findings of fact and conclusions of law. in the district court recommending denial of the habeas applications. The district court approved the special master’s findings of fact and conclusions of law, and the Court of Criminal Appeals denied relief. Two months later, Wooley allegedly informed Schaffer for the first time that Wooley wanted Schaffer to raise the issue regarding suppression of the videos. Subsequently, Wooley allegedly demanded a return of $20,000 of Schaf-fer’s fee. When Schaffer refused to return the sum, Wooley initiated the underlying lawsuit.

Wooley included various allegations in his original petition related to Schaffer’s purported (1) failure to investigate the ille*74gal search issue or include it in the habeas applications that Schaffer filed, (2) failure to provide accounts of how Wooley’s funds were expended, (3) overcharging Wooley and refusing to refund fees paid by him, (4) using fees paid by Wooley for purposes other than seeking habeas relief for Woo-ley, and (5) knowingly presenting unmeri-torious claims. Wooley alleged Schaffer’s acts constituted “deceptive practices and unethical conduct,” “negligence or incompetence” and obstructed Wooley’s “First and Fourteenth Amendment rights and statutory rights.” Schaffer simultaneously filed special exceptions to Wooley’s petition and a motion to dismiss the lawsuit under Texas Rule of Civil Procedure 91a. Wooley filed objections to the special exceptions and the motion to dismiss thirty days later but did not amend his petition. The trial court did not rule on the special exceptions but granted the motion to dismiss five days later.

Discussion

Wooley complains in four issues that the trial court erred in granting Schaffer’s motion to dismiss under Rule 91a because (1) Wooley brought causes of action against Schaffer for legal malpractice, breach of contract, and violations of the Texas Deceptive Trade Practices Act6 (DTPA) and Wooley’s constitutional rights; (2) Wooley filed suit within the applicable two-year statute of limitations; and (3) files and records for this case are missing from the Harris County District Clerk’s office.7

Rule 91a allows a party to move to dismiss a cause of action on the ground that it has no basis in law or in fact. See Tex.R. Civ. P. 91 a.l. As specified in the rule: “A cause of action has no basis in law if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. A cause of action has no basis in fact if no reasonable person could believe the facts pleaded.” Id. A motion to dismiss must identify each cause of action to which it is addressed and must state specifically the reasons the cause of action has no basis in law, no basis in fact, or both. Tex.R. Civ. P. 91 a.2. The trial court may not consider evidence in ruling on the motion and must decide the motion based solely on the pleading of the cause of action, together with any exhibits permitted by Rule 59.8 Tex.R. Civ. P. 91a.6.

I. We review the trial court’s ruling on a Rule 91a motion to dismiss de novo, construing the pleadings liberally in favor of the plaintiff, looking to the pleader’s intent, and accepting as true the factual allegations in the pleadings.

We must decide as a matter of first impression in this court what standard of review to apply to a trial court’s ruling on a motion to dismiss under Rule 91a.9 We generally review a trial court’s *75ruling on a motion to dismiss in other contexts for abuse of discretion; however, we review the trial court’s ruling on a question of law de novo. See, e.g., Nexion Health at Beechnut, Inc. v. Paul, 335 S.W.3d 716, 718 (Tex.App.-Houston [14th Dist.] 2011, no pet.) (applying de novo standard to review motion to dismiss in healthcare liability case when issue was whether service had been effected properly); Singleton v. Casteel, 267 S.W.3d 547, 550 (Tex.App.-Houston [14th Dist.] 2008, pet. denied) (applying de novo standard to review motion to dismiss to determine whether official immunity applied under Texas Tort Claims Act); Harris Cnty. Hosp. Dist. v. Textac Partners I, 257 S.W.3d 303, 315 (Tex.App.-Houston [14th Dist.] 2008, no pet.) (applying summary judgment standard to review motion to dismiss that addressed claims on merits). While we acknowledge that the determination of whether a cause of action has a basis in law is, on its face, a question of law, see GoDaddy, 429 S.W.3d at 754, the language of Rule 91a is less clear as to the determination of whether a cause of action has a basis in fact — in which case “no reasonable person could have believed the facts pleaded” — -is a question of law. Tex.R. Civ. P. 91a.l.

Although we acknowledge that Rule 91a motions to dismiss are unique, we find them to be analogous to pleas to the jurisdiction, which require a court to determine whether the pleader has alleged facts demonstrating jurisdiction. See Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 225-26 (Tex.2004). In that context, we construe the pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept as true the factual allegations in the pleadings to determine if the pleader has alleged facts that affirmatively demonstrate the trial court’s jurisdiction over a claim. Id. at 226. Even though we are construing the jurisdictional facts alleged in the petition, whether a pleader has alleged facts that demonstrate jurisdiction is a question of law that we review de novo. Id. This determination is consistent with the requirement in Rule 91 a to take the allegations, together with any reasonable inferences “as true.” See Tex.R. Civ. P. 91a.l.

Rule 91a also requires the court to determine whether a “reasonable person could believe the facts pleaded” to determine whether a pleading has a basis in fact. Tex.R. Civ. P. 91a.l. This language is similar to a legal sufficiency challenge, in which we ask whether the evidence at trial would enable reasonable people to reach the verdict under review. See City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). Even though we construe the factual evidence presented at trial, the determination of legal sufficiency is a question of law we review de novo. See id. at 822, 827.

Federal courts also apply a de novo standard of review to a trial court’s ruling on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6).10 In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir.2007). Rule 91a has unique *76language allowing dismissal of causes of action with no basis in law or fact. Tex.R. Civ. P. 91a. However, Federal Rule of Civil Procedure 12(b)(6) similarly allows dismissal if a plaintiff fails “to state a claim upon which relief can be granted”; therefore, we find case law interpreting Rule 12(b)(6) instructive. Fed.R.Civ.P. 12(b)(6); see also GoDaddy, 429 S.W.3d at 754.

For a complaint to survive a Federal Rule 12(b)(6) motion to dismiss, it must contain “enough facts to state a claim to relief that is plausible on its face.” 11 GoDaddy, 429 S.W.Sd at 754 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Facial plausibility requires facts that allow the court “to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). Essentially, under the federal rules, the complaint is liberally construed in favor of the plaintiff, and all well-pleaded facts are taken as true. Id. (citing Ashcroft, 556 U.S. at 678-79, 129 S.Ct. 1937 and Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)). But “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (quoting Ashcroft, 556 U.S. at 678, 129 S.Ct. 1937). Likewise, in determining whether the trial court erred in denying a defendant’s motion to dismiss, federal courts take all of the plaintiffs allegations as true. Id. (citing Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Federal Rule 12(b)(6) dismissal is appropriate if the court determines beyond doubt that the plaintiff can prove no set of facts to support a claim that would entitle him to relief. Id. (citing Scanlan v. Tex. A & M Univ., 343 F.3d 533, 536 (5th Cir.2003)).

We conclude that both determinations of whether a cause of action has any basis in law and in fact are legal questions that we review de novo, based on the allegations of the live petition and any attachments thereto. In conducting our review, similar to the analogous situations discussed above, we must construe the pleadings liberally in favor of the plaintiff, look to the pleader’s intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact. In doing so, we apply the fair notice pleading standard applicable in Texas to determine whether the allegations of the petition are sufficient to allege a cause of action. See Roark v. Allen, 633 S.W.2d 804, 810 (Tex.1982) (“A petition is sufficient if it gives fair and adequate notice of the facts upon which the pleader bases his claim.”); see also Bart Turner & Assocs. v. Krenke, No. 3:13-CV-2921-L, 2014 WL 1315896, at *5 (N.D.Tex. Mar. 31, 2014) (applying Texas’s fair notice pleading standard to determine whether to grant motion to dismiss under Rule 91a). Applying these standards, we turn to the issues raised on appeal by Wooley.

II. Wooley’s causes of action have no basis in law or fact under the Peeler doctrine.

In his first two issues, Wooley argues that he asserted valid causes of action for legal malpractice, breach of contract, and violations of the DTPA and Wooley’s constitutional rights. In the motion to dismiss, Schaffer asserted “Woo-*77ley’s claims are difficult -to understand, [but] he appears to allege that Schaffer was negligent, committed legal malpractice or fraud, and violated [Wooley’s] constitutional rights in failing to raise the illegal search issue.”12 Schaffer argues Wooley’s causes of action are “frivolous” because Wooley has not been exonerated from his convictions. See Peeler v. Hughes & Luce, 909 S.W.2d 494, 497-98 (Tex.1995) (plurality op.). Wooley, whose petition indicates he is a convicted felon who has not been exonerated,13 argues that his causes of action are viable because they were brought against counsel retained to draft applications for writ of habeas corpus, as distinguished from the trial counsel defendant in the Peeler case.

In that case, Peeler pleaded guilty to a federal crime and received a sentence pursuant to a plea agreement. Id. at 496. She later was told that the United States attorney had made an offer to her trial counsel of absolute transactional immunity in exchange for her testimony that was not communicated to her. Id. She sued her attorney and his law firm seeking damages based on claims for alleged DTPA violations, legal malpractice, breach of contract, and breach of warranty. Id. The trial court granted summary judgment in favor of the defendants on the basis that Peeler had not been exonerated and that her criminal conduct was the sole cause of her alleged damages. Id. The court of appeals and subsequently the Texas Supreme Court affirmed. Id.

A four-justice plurality concluded that under Texas public policy, a criminal defendant’s own conduct is the sole cause of any damages flowing from her indictment and conviction, unless the conviction has been overturned.14 Id. at 497-98. Consequently, the court held that Peeler’s claims for malpractice and violations of the DTPA failed as a matter of law because Peeler had not been exonerated by direct appeal, post-conviction relief, or otherwise.15 Id. The supreme court has not granted review in a case involving this doctrine since the Peeler decision. Futch v. Baker Botts, LLP, 435 S.W.3d 383, 391-92 (TexApp.-Houston [14th Dist.] 2014, no. pet. h.). However, in a series of opinions, this court has adopted and applied an ex*78pansive interpretation of the doctrine articulated in Peeler. Id16

We have applied the Peeler doctrine to claims for breaches of contract and fiduciary duty and a request for fee forfeiture. See id. (citing Johnson v. Odom, 949 S.W.2d 392, 393-94 (Tex.App.-Houston [14th Dist.] 1997, pet. denied)). We have also applied the doctrine to all claims connected to the conviction. Id. (citing McLendon v. Detoto, No. 14-06-00658-CV, 2007 WL 1892312, at *1-2 (Tex.App.-Houston [14th Dist.] July 3, 2007, pet. denied) (mem. op.)). Moreover, we have applied the doctrine to a claim against an attorney retained to draft a postconviction petition for writ of habeas corpus that was not filed. Id. (citing Meullion v. Gladden, No. 14-10-01143-CV, 2011 WL 5926676, at *3-4 (Tex.App.-Houston [14th Dist.] Nov. 29, 2011, no pet.) (mem. op.)). Accordingly, Wooley’s argument that the Peeler doctrine does not apply to counsel retained to seek habeas relief is without merit. See Meullion, 2011 WL 5926676, at *3-4.

Assuming for purposes of argument that Wooley’s petition gives fair notice that he alleged all of the above causes of action— legal malpractice, breach of contract, and violations of the DTPA and Wooley’s constitutional rights17 — we conclude they are barred as a matter of law under this court’s expansive interpretation of the Peeler doctrine. Accordingly, these causes of action have no basis in law or fact, and the trial court did not err in granting the Rule 91a motion to dismiss.

We overrule Wooley’s first and second issues. Because we conclude that Woo-ley’s causes of action have no basis in law or fact under the Peeler doctrine, we need not address Wooley’s third and fourth issues asserting that his lawsuit was filed within the applicable statutes of limitation and that files and records were missing from the clerk’s office.

We affirm the judgment of the trial court.

FROST, C.J., Concurring.