Arturo J. Velasquez v. Kerri K. Anderson--Appeal from 87th District Court of Freestone County

NO. 10-90-159-CV

IN THE

COURT OF APPEALS

FOR THE

TENTH DISTRICT OF TEXAS

AT WACO

* * * * * * * * * * * * *

ARTURO J. VELASQUEZ,

Appellant

v.

KERRI K. ANDERSON,

Appellee

* * * * * * * * * * * * *

From 87th Judicial District Court

Freestone County, Texas

Trial Court # 89-220-B

* * * * * * * * * * * * *

O P I N I O N

* * * * * * *

Arturo Velasquez, a prison inmate, alleges that the court erred in granting a summary judgment in favor of his former attorney and abused its discretion in ruling on pretrial discovery motions. Because we decide that the court correctly granted the attorney's motion for a summary judgment instead of Velasquez's motion for a summary judgment, we will affirm.

Velasquez retained Kerri Anderson to represent him in criminal cases involving possession of marihuana and failure to appear. The indictment charging him with possession of marihuana contained enhancement paragraphs alleging prior felony convictions, thereby charging him as an habitual criminal and exposing him to life in prison; the indictment charging him with failure to appear contained an enhancement paragraph alleging a prior federal felony conviction, thereby raising the offense to a higher degree carrying a penalty of two to twenty years in prison. After a plea bargain agreement, the state waived the enhancement paragraphs in the marihuana indictment, Velasquez plead guilty to each offense and true to the remaining enhancement, and the court sentenced him to fourteen years in prison. As part of the plea process, Velasquez signed a stipulation of evidence factually admitting each offense and a judicial confession of each offense. During the plea hearing, the court inquired about Anderson's representation of Velasquez:

The Court: Now, Ms. Kerri Anderson has represented you in this matter for some time. I would ask you: Are you satisfied with her representation of you?

[Velasquez]: Yes.

The Court: Do you feel like she's done a good job?

[Velasquez]: Yes.

In addition, in each case he signed a sworn statement in which he said that he was totally satisfied with the representation given him by his counsel and that his counsel was completely competent in every aspect of the representation.

After he was incarcerated, Velasquez filed suit against Anderson, alleging that she was negligent in representing him, violated the disciplinary rules by failing to exercise reasonable care and professional judgment and in divulging confidential communications from him, committed perjury in a post-conviction hearing, acted ineffectively as his counsel, and engaged in an unconscionable course of conduct throughout the period of representation. Anderson filed (1) an answer alleging a general denial, specific denials, and estoppel and (2) a counterclaim in which she alleged that the suit was frivolous, brought in bad faith, and an abuse of process and malicious prosecution. During discovery, Velasquez filed a "Motion for Court to Issue Order for Defendant to Comply with Plaintiff's Request to Discover and Produce and Answer Interrogatories" and a "Motion for Order Staying Further Proceedings until Required Response from Defendant to Interrogatories and Request for Production of Documents is Made." Velasquez and Anderson each filed motions for summary judgment. Anderson's motion was supported by a copy of the statement of facts from the plea hearing and included a request that the court take judicial notice of testimony given in the same court on the hearing of Velasquez's application for a writ of habeas corpus. Velasquez filed no summary judgment evidence. The court denied Velasquez's motion and, finding "that the summary judgment evidence presented establishes as a matter of law that [Anderson] effectively represented [Velasquez] in the course of criminal proceedings incident to his indictment as a habitual criminal in Freestone County, Texas," granted Anderson's motion.

Points three and four assert that the court erred in denying the motion to compel discovery and the motion to stay the proceedings. The record does not reflect that either of these motions was ever presented to the Court, that the court ever ruled on either motion, or that the court declined to rule on either motion. Because the record does not show what action, if any, the court took, nothing is presented for review. See Dodson v. Citizens State Bank of Dalhart, 701 S.W.2d 89, 95 (Tex.App. Amarillo 1986, writ ref'd n.r.e); Tex. R. App. P. 52(a). We overrule points three and four.

In points one and two, Velasquez complains that the court erred in granting Anderson's motion for a summary judgment because it was based on evidence which was "insufficient" or "inadmissible." The burden is on a defendant seeking a summary judgment to conclusively establish an affirmative defense or to conclusively negate one or more elements of the plaintiff's cause of action. Montgomery v. Kennedy, 669 S.W.2d 309, 310-11 (Tex. 1984); Gibbs v. General Motors Corporation, 450 S.W.2d 827, 828 (Tex. 1970). Therefore, to obtain a summary judgment without negating one or more of the elements of Valesquez's causes of action, Anderson was required to conclusively establish an affirmative defense. See id. We believe that she did so.

Judicial estoppel arises from statements made in a prior judicial proceeding by the party against whom the estoppel is invoked and inconsistent with his position in the present suit. Aetna Life Insurance Co. v. Wells, 557 S.W.2d 144, 147 (Tex.Civ.App. San Antonio 1977, writ ref'd n.r.e. 566 S.W.2d 900). In the plea hearing, Velasquez unequivocally took the position that he was satisfied with Anderson's representation in the criminal proceedings and that she had done a good job. He took that position in the former proceeding as a part of a plea bargain in which he obtained a substantial benefit the dismissal by the state of the enhancement paragraphs in the indictment for possession of marihuana. Having done so, he cannot now be heard to maintain a contrary position in the absence of proof that those averments were made inadvertently or by mistake, fraud, or duress. See Long v. Knox, 291 S.W.2d 292, 295 (Tex. 1956). Thus, we hold that Anderson established an affirmative defense as a matter of law because Velasquez was estopped from asserting that Anderson's representation damaged him. See Aetna, 557 S.W.2d at 147. We overrule points one and two.

We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed June 13, 1991

Do not publish