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Blake v. Nickerson

December 7, 2007


On Appeal from the Sixth Judicial District Court Lamar County, Texas Trial Court No. 76072.

The opinion of the court was delivered by: Chief Justice Morriss

Before Morriss, C.J., Carter and Moseley, JJ.


Can an individual recover from his former criminal trial attorney for alleged legal malpractice occurring some sixteen years after the trial court had severed the attorney-client relationship and appointed a different attorney to assist in post-conviction matters? The trial court answered the question with a resounding "no" in granting the attorney a summary judgment. We agree.

James Ray Blake sued his former criminal defense counsel, Jesse L. Nickerson, for legal malpractice and sought $3,000,000.00 in damages (exclusive of costs). In the late 1970s, Nickerson was appointed Blake's trial counsel in State v. Blake, cause number 7816, in the Sixth Judicial District Court, in Lamar County, Texas, wherein Blake was found guilty of burglary of a habitation (with intent to rape) and sentenced to life imprisonment. See Blake v. State, 622 S.W.2d 135 (Tex. Crim. App. 1981) (summarily affirming Blake's conviction for burglary of habitation). The jury apparently returned the adverse verdict in early 1978. The record before us in this malpractice suit shows that, at about the same time, the trial court relieved Nickerson as Blake's attorney and appointed new counsel to represent Blake on appeal.

In September 2005, Blake filed an application for post-conviction DNA testing. See Tex. Code Crim. Proc. Ann. art. 64.01, et. seq. (Vernon 2006). That motion was denied by the trial court on the basis that all evidence related to Blake's conviction had been destroyed in 1994. We subsequently affirmed that denial. See Blake v. State, 208 S.W.3d 693 (Tex. App.--Texarkana 2006, no pet.).

Blake's current lawsuit, filed in March 2007, asserts Nickerson committed legal malpractice in 1994 by failing to inform Blake of the State's intent to destroy any potential DNA evidence related to Blake's underlying criminal conviction. Nickerson entered an appearance and filed a general denial to Blake's accusations. Thereafter, Nickerson moved for summary judgment on the basis that Nickerson's attorney-client relationship with Blake was severed by a specific trial court order in February 1978. Nickerson additionally alleged the statute of limitations had long ago expired on any potential claim by Blake. The trial court granted summary judgment in Nickerson's favor. Blake now appeals that judgment.

Blake contends on appeal that the trial court erred by awarding summary judgment to Nickerson. We review a trial court's award of summary judgment under a de novo standard of review. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). "When reviewing a summary judgment, we take as true all evidence favorable to the non-movant, and we indulge every reasonable inference and resolve any doubts in the non-movant's favor." Id. (citing Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911 (Tex. 1997)). Our rules of civil procedure require the moving party to demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Knott, 128 S.W.3d at 215-16.

The entire record before the trial court at the time it awarded summary judgment included three things: (1) Blake's pleadings, (2) Nickerson's pleadings, and (3) Nickerson's affidavit regarding the severance of his professional relationship with Blake in 1978 after the trial court appointed replacement counsel to represent Blake in post-conviction matters. Blake submitted no evidence in support of his opposition to Nickerson's motion for summary judgment.

Currently, Article 38.43 of the Texas Code of Criminal Procedure requires the State to preserve certain evidence known to contain biological material that, if subjected to scientific testing, might confirm or exclude the identity of the person suspected of committing a crime. Tex. Code Crim. Proc. Ann. art. 38.43 (Vernon Supp. 2007). A search of this statute's legislative history reveals that it was previously located in Article 38.39 and that the law was first effective in 2001. See Act of Mar. 22, 2001, 77th Leg., R.S., ch. 2, § 1 (amended 2005) (current version at Tex. Code Crim. Proc. Ann. art. 38.43). Under the current version of this law, the State may not destroy such evidence unless it first "notifies the defendant, the last attorney of record for the defendant, and the convicting court of the decision to destroy the evidence and a written objection is not received by the attorney, clerk, or officer from the defendant, attorney of record, or court before the 91st day after" the date on which the State's representative receives proof of that notice's receipt. Tex. Code Crim. Proc. Ann. art. 38.43.

But, we emphasize, this law did not exist before 2001. Thus, in 1994, when the State destroyed the evidence in question, the State had no obligation to provide Blake, his former trial counsel, or his appellate counsel with advance notice of any plan to destroy evidence relating to a case for which Blake had been convicted some sixteen years earlier. In the absence of any statutory duty of the State to warn anyone of the State's intent to destroy evidence in 1994, the trial court could have had no basis to speculate, in the absence of any summary-judgment evidence to the contrary, that any advance notice regarding the plan to destroy evidence was given to Nickerson, who had also been relieved of his duties some sixteen years earlier. Blake brought forth no summary-judgment evidence that Nickerson had actual or constructive notice of the planned destruction of evidence.

We find no authority, and have been provided none, suggesting that there was any duty by Nickerson to notify Blake in 1994. Not even our rules of professional conduct would suggest that Nickerson had a duty to warn Blake about post-conviction matters long after their attorney-client relationship had expired. See, e.g., Tex. Disciplinary R. Prof'l Conduct 1.03, reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005) (Tex. State Bar R. art. X, § 9) (duty to keep client reasonably informed about status of matter). Additionally, our rules of professional conduct expressly state that a lawyer's representation of a client ends when the lawyer is discharged, with or without good cause. Tex. Disciplinary R. Prof'l Conduct 1.15(a), reprinted in Tex. Gov't Code Ann., tit. 2, subtit. G app. A (Vernon 2005).

The only evidence before the trial court at the time it granted Nickerson's motion for summary judgment indisputably indicated the trial court terminated Nickerson's representation of Blake in February 1978. Stated differently, Nickerson was off the case. Nickerson had no duty to represent Blake's interest after the severance of their relationship in 1978. Blake cannot return nearly thirty years later and unilaterally change the trial court's order appointing different post-conviction counsel so that Blake can then sue his trial attorney for some claimed malpractice that allegedly occurred long after his trial attorney was dismissed from the case.

The trial court's summary judgment must be affirmed for another independent reason-- Nickerson's limitations defense. The evidence destruction in 1994 came some thirteen years before Blake's suit against Nickerson. The statute of limitations on such a claim expired long ago. One might suggest that Blake could not have discovered the destruction until his 2005 motion for DNA testing. But Blake did not plead the discovery rule in this case. A motion for summary judgment based on limitations is not required to negate the discovery rule unless the claimant pleads the discovery rule. Via Net v. TIG Ins. Co., 211 S.W.3d 310, 313 (Tex. 2006); see In re ...

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