Opinion
No. 04-07-00283-CV
Delivered and Filed: February 20, 2008.
Appealed from the 224th Judicial District Court, Bexar County, Texas, Trial Court No. 06-CI-07237, Honorable Karen Pozza, Judge Presiding.
The Honorable Gloria Saldana is the presiding judge of the 224th Judicial District Court, Bexar County, Texas. The Honorable Karen Pozza signed the order granting summary judgment.
AFFIRMED.
Sitting: KAREN ANGELINI, Justice, REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice.
MEMORANDUM OPINION
Remigio A. Martinez III appeals the trial court's order granting Selena M. Alvarenga's traditional and no-evidence motion for summary judgment. We affirm the trial court's judgment.
Discussion
Martinez brought this suit against Alvarenga for legal malpractice, complaining of Alvarenga's representation of him in a criminal prosecution. In that prosecution, Martinez entered a plea of nolo contendere to a charge of arson, was found guilty, and was sentenced to thirty-five years imprisonment.
In response to Martinez's civil suit, Alvarenga filed both a traditional and no-evidence motion for summary judgment. Alvarenga's motion was based on the holding in Peeler v. Hughes Luce, 909 S.W.2d 494 (Tex. 1995). In that case, the Texas Supreme 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. at 497.
Permitting a convicted criminal to pursue a legal malpractice claim without requiring proof of innocence would allow the criminal to profit by his own fraud, or to take advantage of his own wrong, or to found a claim upon his iniquity, or to acquire property by his own crime. As such, it is against public policy for the suit to continue in that it would indeed shock the public conscience, engender disrespect for courts and generally discredit the administration of justice.
Id. (quotations omitted). Thus, the supreme court held that "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. Here, it is undisputed that Martinez has not been exonerated. Therefore, the trial court did not err in granting Alvarenga's motion and entering a take nothing judgment in favor of Alvarenga.
On appeal, Martinez does not address the Peeler case in his opening brief; however, in his reply to Alvarenga's brief he argues that his case is distinguishable from Peeler because, unlike the accused in Peeler, he did not plead guilty. Whether the accused pled guilty, however, is not determinative; the supreme court in Peeler did not base its decision on Peeler's plea of guilty but instead on the public policy considerations at stake. Guevara v. Perez, No. 08-01-00279-CV, 2002 WL 313193, at *4 (Tex.App.-El Paso 2002, no pet.) (not designated for publication); see also Owens v. Harmon, 28 S.W.3d 177, 179 (Tex.App.-Texarkana 2000, pet. denied) (recognizing that the holding in Peeler is not limited to guilty pleas).
Accordingly, we affirm the trial court's granting of Alvarenga's motion for summary judgment.