Opinion issued October 11, 2012

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-10-00952-CV

———————————

STEVEN D. CATHCART, Appellant

V.

ROBERT R. SCOTT, Appellee

On Appeal from the 61st District Court

Harris County, Texas

Trial Court Case No. 0860427

MEMORANDUM OPINION

Appellant Stephen Duane Cathcart appeals the trial court’s summary 

judgment in favor of appellee Robert Scott on Cathcart’s legal-malpractice claim 
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against Scott related to Scott’s representation of Cathcart in a prior criminal 

proceeding. We affirm. 

A. The Criminal Proceedings

Cathcart was charged with aggravated robbery as a habitual offender, which 

carries a potential sentence of 25 to 99 years. Scott was appointed to defend 

Cathcart. Scott negotiated a plea agreement in which the State reduced the charge 

to second-degree felony robbery. Cathcart then pleaded guilty and received a 

sentence of 12 years’ confinement. In that plea agreement, Cathcart “signed a 

stipulation of evidence” and expressly “waive[d] any right of appeal which I may 

have should the court accept the foregoing plea bargain.” Cathcart v. State, No. 

01-07-01026-CR, 2008 WL 5178908, at *1 (Tex. App.—Houston [1st Dist.] Dec. 

11, 2008, pet ref’d). 

Cathcart appealed his conviction resulting from the guilty plea to this Court. 

We determined that we lacked jurisdiction and dismissed the appeal based on 

Cathcart’s waiver of his appellate rights as part of the plea agreement with the 

State. Id. Cathcart then filed a writ of habeas corpus arguing that “he received 

ineffective assistance of counsel, that his plea was involuntary, and that his plea 

was ‘unlawfully induced.’” Ex Parte Cathcart, No. WR-32594-04, 2010 WL 

1910305, at *1 (Tex. Crim. App. May 12, 2010). The trial court “signed findings 

of fact and conclusions of law recommending that relief be denied.” Id. The Court 
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of Criminal Appeals “undert[ook] an independent review of all the evidence in the 

record” and “agree[d] that relief should be denied.” Id. 

B. The Underlying Proceedings

Cathcart then filed the underlying civil suit against Scott alleging that he was 

damaged by Scott’s refusal to withdraw as Cathcart’s criminal defense attorney 

when Cathcart requested he do so. 

Scott moved for summary judgment twice, contending that he breached no 

duty to Cathcart. After his first motion was denied, Scott added evidentiary 

support to his motion. He cited the statute requiring appointed counsel to 

“represent the defendant until charges are dismissed, the defendant is acquitted, 

appeals are exhausted, or the attorney is permitted or ordered by the court to 

withdraw as counsel for the defendant after a finding of good cause is entered on 

the record.” TEX. CODE CRIM. PROC. ANN. art. 26.04(j)(2) (Vernon Supp. 2011). In 

support of his factual assertion that, despite Cathcart’s dissatisfaction with him, the 

trial judge “denied Mr. Cathcart’s request to fire Mr. Scott and had Mr. Scott 

continue to work on Mr. Cathcart’s case,” he attached an affidavit from the trial 

court judge that presided over the criminal proceedings. That affidavit confirmed 

that Scott was not permitted to withdraw as Cathcart’s counsel.

In response, Cathcart argued that the trial judge’s affidavit is not sufficient to 

support Scott’s summary judgment because he was not given the opportunity to 
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cross-examine judge. He also reiterated the view that his guilt or innocence was 

irrelevant to causation in his malpractice claim because he was complaining about 

Scott’s failure to withdraw pre-trial. 

On September 30, 2010, the trial court signed a final summary judgment in 

Scott’s favor, and Cathcart brought this appeal. 

STANDARD OF REVIEW

A traditional summary judgment is proper when a movant establishes there 

is no genuine issue of material fact and is entitled to judgment as a matter of law. 

TEX. R. CIV. P. 166a(c); Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 

644 (Tex. 1995). A defendant is entitled to summary judgment if the evidence 

disproves as a matter of law at least one element of each of the plaintiff's causes of 

action or if it conclusively establishes all elements of an affirmative defense. 

Johnson, 891 S.W.2d at 644.

When reviewing summary judgment, all evidence favorable to the nonmovant is taken as true and the trial court’s summary judgment is reviewed de 

novo. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

ISSUES ON APPEAL

Cathcart raises three points of error on appeal: 

(1) “Appellee’s Amended Motion for Summary Judgment was untimely 

filed” 
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(2) “The Appellant asserts the concepts of collateral estoppels, law of 

case, and/or stare decisis”; and 

(3) “Genuine issues of fact exist in this case, therefore summary judgment 

was improper.” 

DISCUSSION

Timeliness of Summary Judgment

In Cathcart’s first issue, he complains that the Scott’s First Amended Motion 

for Summary Judgment was untimely filed because it was filed a year after the trial 

court signed an order denying Scott’s original motion for summary judgment. He 

cites Texas Rules of Civil Procedure 166a(c)’s admonishment that a “trial court 

cannot grant a motion to amend the pleading once the court renders judgment,” and 

that the record here does not indicate whether the trial court granted leave to file an 

amendment. See Automaker Inc. v. C.C.R.T. Co., 976 S.W.2d 744, 746 (Tex. 

App.—Houston [1st Dist.] 1998, no pet.). 

A final judgment was not rendered when the trial court denied Scott’s 

original motion for summary judgment, and Scott’s second motion for summary 

judgment was not an amended pleading after the trial court rendered judgment, but 

rather another motion for summary judgment with supporting affidavits. Scott 

gave adequate notice of the hearing date of this summary judgment motion, and no 
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rule requires leave to file successive summary judgment motions.1 Cathcart thus 

has not established that Scott’s second summary judgment motion was untimely. 

We overrule Cathcart’s first issue. 

Collateral Estoppel Claim

In Cathcart’s second issue, he contends that the concepts of collateral 

estoppel, law of the case, or stare decisis precluded the trial court granting Scott’s 

second summary-judgment motion. The crux of Cathcart’s argument appears to be 

that because the “trial court rejected his argument in the original motion for 

summary judgment,” it was improper for the court to grant later grant summary 

judgment on the same ground. Scott responds that these concepts do not render the 

trial court’s order erroneous. 

The denial of a summary judgment is interlocutory in nature and not a final 

judgment; therefore, “a motion for summary judgment may be reurged in the 

district court after its denial.” McCartney v. May, 50 S.W.3d 599, 604 (Tex. 

App.—Amarillo 2001, no pet.) (citing Vills. of Greenbriar v. Torres, 874 S.W.2d 

 

1 Although it was labeled an “amended” motion for summary judgment, Scott’s 

earlier motion had been denied, rendering the second filed motion a successive one. 

Surgitek, Bristol–Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex.1999) (“[W]e look to 

the substance of a motion to determine the relief sought, not merely to its title.”); see also

In re Bokeloh, 21 S.W.3d 784, 789 (Tex. App.—Houston [14th Dist.] 2000, no pet.) 

(“[W]e recognize that the substance of a motion, not its title, determines the relief 

sought.”).
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259, 262 (Tex. App.—Houston [1st Dist.] 1994, writ denied)). Additionally, 

“Texas Rules of Civil Procedure 166a does not limit the number of times a motion 

for summary judgment may be filed.” McCartney, 50 S.W.3d at 604. Because the 

denial of a summary judgment is not a final judgment, the concepts of collateral 

estoppel, law of the case, and stare decisis do not apply here to prohibit the trial 

court from granting a second motion for summary judgment on a ground rejected 

earlier. We overrule Cathcart’s second issue. 

Legal Malpractice Claim

In his third issue, Cathcart complains that the trial court erred by granting 

summary judgment on the merits because fact issues exist. Specifically, Cathcart 

contends Scott breached a fiduciary duty owed to Cathcart and that Scott was 

negligent. Scott responds that these claims essentially amount to a claim for legal 

malpractice, which he defeated as a matter of law. 

In Poledore v. Fraley, an inmate filed a civil suit against his court-appointed 

attorney who represented him in his criminal case and raised various claims, 

including breach of fiduciary duty and negligence. No. 01-09-000658-CV, 2010 

WL 3928516, at *3 (Tex. App.—Houston [1st Dist.] Oct. 7, 2010, pet. denied). 

This Court in Poledore determined that the appellant’s claims were actually claims 

for professional negligence. Id. “Claims resting on allegations of an attorney’s 

erroneous legal opinion or legal advice, delay or neglect in handling a matter 
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entrusted to the attorney’s care, or failing to use ordinary care in preparing, 

managing, and prosecuting a case constitute professional negligence, not fraud, 

breach of contract, or breach of fiduciary duty.” Id. at *4. 

Similar to Poledore, Cathcart is essentially asserting a legal malpractice 

claim because his claims of negligence and breach of fiduciary duty allegedly 

arises from “bad legal advice or improper representation.” Greathouse v. 

McConnell, 982 S.W.2d 165, 172 (Tex. App—Houston [1st Dist.] 1998, pet. 

denied). We thus examine whether a fact issue exists for Cathcart’s claim under 

the elements of legal malpractice. 

To recover on a legal malpractice claim, the plaintiff must prove (1) the 

attorney owed a duty to the plaintiff; (2) attorney breached that duty; (3) the breach 

proximately caused plaintiff’s injuries; and (4) damages occurred. Peeler v. 

Hughes & Luce, 909 S.W.2d 494, 496 (Tex. 1995). Cathcart contends that Scott 

had a duty to withdraw from the case when Cathcart chose to terminate their legal 

relationship, and that he breached this duty when he did not withdraw.

An appointed attorney should “represent the defendant until the charges are 

dismissed, the defendant is acquitted, appeals are exhausted, or the attorney is 

permitted or ordered by the court to withdraw as counsel for the defendant after a 

finding of good cause is entered on the record. . . .” TEX. CRIM. PROC. CODE ANN.

art. 26.04(j)(2). Additionally, the trial court “has discretion to determine whether 
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counsel should be allowed to withdraw from case,” and it has no duty to search for 

counsel that is agreeable to the defendant. King v. State, 29 S.W.3d 556, 566 (Tex. 

Crim. App. 2000). Moreover, “personality conflicts and disagreements concerning 

trial strategy are typically not valid grounds for withdrawal.” Id. 

Here, Cathcart requested that the trail court order Scott to withdraw from the 

case and Cathcart claims that Scott had the duty to withdraw; however, it was up to 

the trial court to determine whether Scott could withdraw from the case. See id. 

The trial court refused to allow Scott to withdraw, as she saw no legal reason to do 

so. The trial court’s decision was consistent with the Court of Criminal Appeals’ 

recognition that such tension is not considered to be “good cause” for termination. 

See King, 29 S.W.3d at 566. 

As a matter of law, Scott did not breach any duty to withdraw from the case 

because Scott made it known to the trial judge that he wished to withdraw, but the 

trial judge refused to allow him to do so. Scott’s failure to withdraw pre-trial, 

therefore, was not legal malpractice. 

Cathcart further contends that, because no hearing regarding withdrawal of 

counsel was held nor any of the proceedings recorded, a fact issue exists that

precludes summary judgment. No formal hearing or record is required, however,

when an attorney requests to withdraw from a case. TEX. R. CIV. P. 10. 
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Additionally, Cathcart argues he is entitled to cross-examine the criminal 

trial court judge because there was no hearing regarding withdrawal of counsel in 

the record, and the trial court’s affidavit is contradicted. Cathcart did not respond 

with any evidence contradicting the averments in the criminal trial judge’s 

affidavit; therefore, summary judgment could properly be granted on that 

uncontradicted evidence.2 We overrule Cathcart’s third issue.

CONCLUSION

We hold that Scott’s First Amended Motion for Summary Judgment was 

timely filed and that the trial court correctly granted summary judgment in favor of 

Scott on Cathcart’s legal-malpractice claim. We affirm the trial court’s judgment.

Sherry Radack

Chief Justice 

Panel consists of Chief Justice Radack and Justices Bland and Huddle.

 

2 Because summary judgment was properly granted on the ground that Scott did not 

refuse to withdraw when requested by Cathcart, we need not reach Scott’s 

argument that the court’s summary judgment could also be affirmed on the 

alternative ground that the causation element of Cathcart’s malpractice claim is 

defeated as a matter of law because Cathcart “has not been exonerated on direct 

appeal, through post-conviction relief, or otherwise.” Peeler, 909 S.W.2d at 497–

98.