WILLIAM J. GONYEA, JR., Appellant
ORIAN SCOTT, Appellee
Appeal from the 152nd District Court Harris County, Texas
Trial Court Case No. 2014-51066
consists of Justices Jennings, Bland, and Brown.
case tests the bounds of the rule established in Peeler
v. Hughes & Luce, 909 S.W.2d 494 (Tex. 1995)
(plurality opinion), which limits the ability of plaintiffs
who have been convicted of criminal offenses to obtain legal
malpractice damages against their criminal-defense attorneys
based on claims of poor performance of legal representation.
Scott-who had been convicted of several criminal
offenses-hired attorney William Gonyea to file an application
for writ of habeas corpus on his behalf. Under the terms of
the contract for legal representation, Scott paid Gonyea a
$25, 000 fee and then, due to confusion over bank
authorizations, paid him $15, 000 more in
overpayments. Scott instructed Gonyea to return the $15,
000 overpayment; he did not.
three years had passed and Gonyea had neither filed the writ
nor returned the overpayment, Scott sued him, asserting two
causes of action. His first cause of action was for breach of
contract. He sought $25, 000 in restitution damages, which
was the full amount of the fee paid under the terms of the
contract. His second cause of action was for theft and sought
$15, 000 in damages, which was the amount of overpayment that
Gonyea never returned.
answering the lawsuit, Gonyea moved for summary judgment,
arguing that both of Scott's claims fail as a matter of
law. The trial court ruled against him and, after a bench
trial, entered judgment in Scott's favor on both claims
for the damages sought, plus reasonable and necessary
attorney's fees. Gonyea appeals, asserting that both
claims fail as a matter of law.
affirm the judgment as to the breach-of-contract claim,
holding that the public policies underlying the
Peeler doctrine do not support extending the
doctrine to restitution of monies paid for post-conviction
legal services that were never performed. We reverse and
render judgment in Gonyea's favor on the theft claim,
holding that the claim accrued more than two years before it
was asserted and that Scott failed to meet his burden to
prove that the discovery rule applied.
January 2010, Orion Scott hired a criminal-defense attorney,
William Gonyea, Jr., to conduct a legal investigation and
file a petition for writ of habeas corpus on Scott's
behalf to challenge six convictions that the Texas Court of
Criminal Appeals had affirmed three years earlier. Gonyea and
Scott entered into a written contract for legal
representation, and Scott paid Gonyea $25, 000 in legal fees
for the work detailed in the contract. Gonyea deposited the
$25, 000 into his operating account.
confusion over whether the bank would authorize a payment
from an inmate, Scott's sister-who held Scott's power
of attorney-caused a second payment of $25, 000 to be paid to
Gonyea for the habeas representation. Gonyea wrote to Scott
in March 2010 informing him that he had received two $25, 000
payments and stating, "I will wait for you to advise me
on what to do with the [second] $25, 000 check."
that month, Gonyea agreed to assist Scott on another legal
matter. He wrote to Scott that he agreed to "conduct an
investigation to determine the status of [Scott's] parole
and assist [Scott] in obtaining parole" and that his fee
for the additional representation would be $10, 000. In the
same letter, Gonyea stated that he still had Scott's
sister's check for $25, 000 (the overpayment for the
habeas representation) and offered to deposit the check into
his "client trust account" and then return the
remaining $15, 000 to Scott, either by sending Scott a check
or depositing the money directly into Scott's bank
several communications, in late-August 2010, Scott instructed
Gonyea to "deduct" the $10, 000 parole-work fee
from the overpayment and deposit the remainder into
Scott's bank account. Scott provided Gonyea with his bank
information, including his account number.
within days of receiving Scott's letter, Gonyea deposited
the full $25, 000 he received from Scott's sister into
his operating account-not his trust account. He did not
deposit any money into Scott's account or send him a
refund check for the overpayment.
years later, Gonyea still had not prepared the habeas writ or
returned the $15, 000 overpayment. Scott replaced Gonyea with
new counsel and filed suit against him, asserting claims for
breach of contract to recover the $25, 000 fee payment and
for theft to recover the $15, 000 overpayment.
moved for summary judgment on both of Scott's claims,
arguing that the Peeler doctrine prohibited
Scott's breach-of-contract claim and that the theft
statute of limitations barred Scott's theft claim.
See Peeler, 909 S.W.2d 494; see also Tex.
Civ. Prac. & Rem. Code § 134.001-.005 (theft
statute); id. § 16.003(a) (two-year statute of
limitations for theft claims). The trial court denied the
motion, and both claims proceeded to bench trial.
opening statement, Gonyea again urged that the
Peeler doctrine applied to Scott's
breach-of-contract claim, which he described as Scott
"essentially" contending that he was "not
happy with the way the lawyer performed under the
contract." According to Gonyea, Scott was "claiming
that he was dissatisfied with the time that it took and the
manner in which [Gonyea] conducted the Habeas investigation
and the time that it took for [Gonyea] to file a Habeas
Petition." And, further, that Scott simply was
"dissatisfied with the amount of correspondence that he
received during the course of the representation."
his opening statement, Scott disputed Gonyea's
characterization of his claim. His complaint was not that
Gonyea performed poorly, but that he failed to perform at
all. The contract specifically stated that Gonyea would
conduct an investigation, file an application for writ of
habeas corpus, and represent Scott in court. Scott argued
that Gonyea did none of these things.
testified that he was Scott's counsel for three years
before being replaced with new counsel. He agreed that Scott
retained him to investigate an application for a habeas writ
and then prepare and file the application. Gonyea testified
that he met with Scott once, read the legal opinion affirming
Scott's conviction, and performed initial legal research.
When questioned about his legal research, Gonyea conceded he
had no contemporaneous time records showing that he
researched the case. But he did reference legal-research
memoranda that were in his client file when he forwarded it
to Scott's new counsel. When questioned about those
memos, Gonyea testified that he could not specifically recall
much about them.
further cross-examination, Gonyea admitted that, during the
three years he represented Scott, he never interviewed
Scott's trial counsel, never interviewed Scott's
appellate counsel, never attempted to contact the police
officers who investigated or testified about the underlying
offenses, never interviewed any witness who testified at the
criminal prosecution, never prepared any drafts of an
application for habeas relief, and never even identified what
issues should be pursued. He also never filed an application
for the habeas writ, never requested an evidentiary hearing,
and never represented Scott in court. Gonyea also
acknowledged that he had promised to send Scott a
comprehensive status update over a year after he was hired,
but he never did that either.
the one-day trial, Scott moved to reopen the evidence. The
trial court granted the motion and received additional
evidence regarding the legal-research memoranda discussed
previously. The four research memos were admitted into
evidence. All of the memos had headers stating that they were
prepared by a law clerk for Gonyea for the Scott file. One of
the law-clerk authors testified that he did not prepare any
legal-research memos for Gonyea or for the Scott file. He
recognized the memos in evidence and testified that he had
prepared them for another law firm.
testified that, for a time, he had shared office space with
the other law firm. He conceded that the four legal memoranda
were addressed to him and referenced the Scott client file
only because he had accessed the other law firm's
computer server, replaced the other law firm attorney's
name and client name in the header of the memos with his name
and Scott's client name, printed the memos, and added
them to the Scott client file before forwarding that file to
Scott's new attorney. Gonyea denied that he did this to
create the appearance that legal work had been performed on
Scott's behalf during his representation when it had not.
lawyer with whom Gonyea shared office space also testified.
He testified that he did not give Gonyea permission to use
the memos as his own. Nor did he give Gonyea permission to
present his firm's legal work as Gonyea's own:
I did not give you permission to go into my server and pull
documents off of other cases, whether to use for your own
purposes or to pad a file to make it look like you did work
you didn't do to justify a fee you didn't earn. I
didn't give you that permission, you didn't ask. And
if you had access to those documents and took them without my
permission, shame on you.
trial court entered findings of fact and conclusions of law,
including that Scott paid Gonyea $25, 000 in legal fees under
a contract for legal representation; Scott hired Gonyea to
investigate and file a writ of habeas corpus on Scott's
behalf; Gonyea "did not conduct the investigation,
" "did not file a writ of habeas corpus, " and
"did not perform the services promised in the written
contract"; Scott's family inadvertently paid Gonyea
$25, 000 more for that same work; Scott and Gonyea agreed
that $10, 000 of the $25, 000 double-payment would be applied
toward additional representation; and Gonyea did not return
the remaining $15, 000 of the overpayment. The trial court
found that Gonyea breached the contract for legal
representation and violated the Texas Theft Liability Act,
and the court awarded Scott the full $25, 000 fee for legal
representation, $15, 000 in theft damages, and $76, 800 in
reasonable and necessary attorney's fees.
sought summary judgment on his affirmative defenses of the
Peeler doctrine and statute of limitations. The
applicability of the Peeler doctrine to negate
causation presents a question of law that we review de novo.
See In re Humphreys, 880 S.W.2d 402, 404 (Tex. 1994)
(stating that "questions of law are always subject to de
defendant moving for summary judgment on the affirmative
defense of limitations has the burden to conclusively
establish that defense. KPMG Peat Marwick v. Harrison
Cty. Housing Fin. Corp., 988 S.W.2d 746, 748 (Tex.
1999). The defendant must conclusively prove when the cause
of action accrued and negate the discovery rule, if it
applies and has been pleaded or otherwise raised, by proving
as a matter of law that there is no genuine issue of material