Jeffrey Lewis Wolfson v. W. V. Dunnam, Jr., Esquire--Appeal from 74th District Court of McLennan County

IN THE

TENTH COURT OF APPEALS

No. 10-94-266-CV

JEFFREY LEWIS WOLFSON,

Appellant

v.

W.V. DUNNAM, JR., ESQUIRE,

Appellee

From the 74th District Court

McLennan County, Texas

Trial Court # 93-2851-3

O P I N I O N

Jeffrey Wolfson appeals from a summary judgment that he take nothing in his legal-malpractice suit against W.V. Dunnam, Jr., the attorney who represented him in a federal drug trial. Wolfson received a fifty-one month prison sentence and a $5,000 fine, followed by five years of supervised release, for conspiracy to manufacture "ecstasy," a controlled substance. His sentence was affirmed on appeal. We will affirm the summary judgment.

Wolfson generally asserted in his pleading that Dunnam failed to timely interview not only him but key prosecution witnesses in advance of trial, failed to discover evidence or call witnesses that would have established the defense of entrapment, failed to call character witnesses, and failed to have a sufficient command of the facts to properly represent him at trial. Wolfson's complaint, essentially, is that his attorney's substandard performance failed to properly present and prove his defense of entrapment, which resulted in his wrongful conviction. Wolfson based his malpractice suit on allegations of negligence, breach of contract, and deceptive trade practices.

Dunnam moved for a summary judgment supported by his own affidavit and affidavits from the assistant U.S. attorney who tried Wolfson's drug case and another lawyer experienced in criminal defense. Wolfson supported his written response with affidavits from three attorneys, as well as from persons who claimed to be familiar with Dunnam's allegedly substandard representation and from potential witnesses who were not called to testify. He contends on appeal that genuine fact issues preclude the granting of a summary judgment. We review the summary judgment under the well-settled rules in Nixon v. Mr. Property Management, 690 S.W.2d 546, 548-49 (Tex. 1985).

CAUSATION

Dunnam moved for a summary judgment on the ground that Wolfson's conviction, which has never been set aside, conclusively established his guilt and that no act or omission on Dunnam's part could have caused Wolfson's damages. In other words, Wolfson's own criminal conduct was the sole cause of his damages as a matter of law. Wolfson attacks this ground in point two.

Public policy precludes the recovery of damages, either directly or indirectly, by a plaintiff who "requires aid from an illegal transaction, or is under the necessity of showing or in any manner depending upon an illegal act to which he is a party." Gulf, C. & S. F. Ry. Co. v. Johnson, 71 Tex. 619, 9 S.W. 602, 603 (1888). Thus, public policy precludes a convicted criminal from recovering damages in a legal-malpractice claim against the attorney who represented him in the criminal proceeding. Saks v. Sawtelle, Goode, 880 S.W.2d 466, 469 (Tex. App. San Antonio 1994, writ denied); Peeler v. Hughes & Luce, 868 S.W.2d 823, 831-32 (Tex. App. Dallas 1993, writ granted); Dover v. Baker, Brown, Sharman & Parker, 859 S.W.2d 441, 450-51 (Tex. App. Houston [1st Dist.] 1993, no writ).

Wolfson's own guilt, as long as it remains unexpunged, is the sole cause of any damages that may have resulted from his conviction, and no act or omission on Dunnam's part can be a cause-in-fact of those damages. See Peeler, 868 S.W.2d at 830. Under the circumstances, essential elements of Wolfson's actions for negligence and deceptive trade practices proximate cause and producing cause are conclusively negated by his guilt. See id.

BREACH OF CONTRACT

Wolfson also pled that Dunnam's allegedly substandard performance breached the employment contract under which Dunnam agreed to represent him in the criminal proceeding. He sued to recover the $15,000 he had paid Dunnam under the contract and, in addition, sought a recovery of the same type of damages he had alleged in connection with the negligence action, including loss of past and future earnings, and mental anguish.

Public policy conclusively bars Wolfson from recovering the same damages he sought in a negligence action in the guise of a breach-of-contract action. See id. at 831-32. To hold otherwise would allow him to avoid the strictures of public policy by merely changing the name of his cause of action. See Johnson, 9 S.W. at 603. Thus, as a matter of law, public policy bars the recovery of damages for lost earnings and mental anguish in the contract action.

Without expressly using the terms "rescission and restitution," Wolfson did plead for a recovery of the $15,000 he had paid Dunnam under the contract. There is no inequity in granting rescission and restitution when a contract remains wholly executory i.e., while the contract remains yet to be fully completed or performed. McDaniel v. Pettigrew, 536 S.W.2d 611, 617 (Tex. Civ. App. Dallas 1976, writ ref'd n.r.e.). However, once the contract passes the point of being wholly executory, the injured party no longer has the right of rescission but is relegated to a suit for damages for its breach. Id.

The summary judgment evidence conclusively establishes that the contract for legal services had been performed, although a dispute remains over its performance. Thus, the contract is no longer wholly executory and, for that reason, rescission and restitution is no longer available to Wolfson as a matter of law. See id.

Because public policy bars recovery of any damages for breach, and because equity bars any claim for rescission and restitution, Wolfson is likewise conclusively precluded from recovering in an action for breach of contract. Point two is overruled.

We do not reach Wolfson's remaining points and affirm the summary judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed July 19, 1995

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