An intermediate court of appeals cited the lack of available jury trials during the pandemic and the resulting backlog in reinstating a lawyer’s 2016 malpractice claim against her criminal defense lawyer. A Kerr County trial court had dismissed the case for want of prosecution.
The Fourth Court of Appeals panel decision discusses the lack of available jury trials along with several prior appeals brought by Utopia attorney Patricia Skelton. Skelton sued Guy James Gray of Kerrville after her 2007 conviction of forging a will was vacated by the court of appeals in 2014 on ineffective assistance grounds.
It’s the latest twist in a long-running dispute that included a previous appeal before the Texas Supreme Court. That appeal resulted in a 2020 ruling that one legal expert predicted would increase the exposure of defense lawyers to malpractice claims.
In the latest appeal, the San Antonio-based court Nov. 2 said that the lack of available jury trials during Covid and previous appeals filed by Skelton on both her conviction and the malpractice case made District Judge Albert D. Pattillo III’s dismissal of her lawsuit wrong.
Skelton said the parties wanted to resolve the case before a jury but juries were not available for civil trials due to the pandemic. Gray argued that Skelton did not offer evidence that the case could not be heard by a jury due to the court’s pandemic-related backlog.
In the opinion, Justice Beth Watkins quotes the trial judge at the April 2021 dismissal hearing saying that the parties’ chances of having a jury available for a civil trial in the next year were slim because criminal cases would take precedence. The judge had told Skelton to consider a bench trial or mediation.
“Here, Skelton explained how COVID-19 affected her case – she could not obtain a jury trial. Gray makes much of Skelton’s failure to present evidence that she could not obtain a jury setting, but the trial court expressed its own awareness on the record of the fact that juries likely would not be available for civil trials, even the following year,” said Watkins.
“Examining the entire record, and in light of the history of this dispute – including four appeals to this court, two appeals to the Texas Court of Criminal Appeals, and one appeal to the Texas Supreme Court – we conclude the trials court’s decision was arbitrary, unreasonable, and without reference to guiding principles.”
Skelton was represented by Ryan C. Reed, Leslie Sara Hyman and Anna K. MacFarlane of San Antonio’s Pulman, Cappuccio & Pullen. Gray is represented by D. Todd Smith and Kimberly G. Bueno of Butler Snow in Austin.
Skelton was charged with forging a deceased client’s will by copying her client’s signature from a flood-damaged document onto a digital copy of the will and convicted in 2007. After a probate court found the will that Skelton filed was valid, she filed an application for a writ of habeas corpus in the trial court. It was denied but in 2014 the San Antonio Court of Appeals granted Skelton habeas relief on ineffective assistance grounds and vacated her conviction.
Skelton sued Gray, and Gray prevailed at the trial court on his motion to dismiss under the Peeler doctrine, which provides that convicted individuals may not sue their criminal defense attorneys for malpractice unless they have been exonerated. The court of appeals reversed the dismissal and remanded the case to the trial court. That decision was upheld in 2020 by the Texas Supreme Court, which concluded that Peeler doctrine did not bar Skelton’s malpractice claim but that she must prove her innocence in the malpractice suit.
The Supreme Court also ruled that her lawsuit was not barred by the two-year statute of limitations because she was waiting for prosecutors to decide whether she would be retried.
After the ruling, the case remained inactive for a year until the trial court notified the parties of its intent to dismiss the case for want of prosecution.
The case number is 04-22-00007-CV.