Deana Pollard Sacks v. Brian Weil Zimmerman and Andrew Todd McKinney, IV, 401 S.W.3d 336

Background

Sacks challenged trial court summary judgments in favor of Zimmerman and McKinney, who represented the Houstonian defendants in the underlying suit.
Sacks alleged Zimmerman and McKinney improperly sought or obtained her medical records, constituting invasion of privacy and triggering HIPAA/HITECH concerns.
Zimmerman and McKinney asserted litigation privilege/qualified immunity, arguing their conduct occurred in representation of clients and within discovery in the underlying case.
The trial court granted take-nothing summary judgments against Sacks and severed those claims from the Houstonian suit, making the judgment final and appealable.
Sacks argued the trial court erred in allowing summary judgment instead of entertaining special exceptions, and in denying discovery-related relief.
The appellate court affirmed, holding Zimmerman and McKinney were entitled to qualified immunity; the alleged privacy invasion did not fall within the excluded fraudulent or malicious conduct.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Zimmerman and McKinney were immunized from suit	Sacks contends they violated privacy by improper discovery.	Zimmerman and McKinney rely on litigation privilege/qualified immunity for conduct in representing clients.	Yes, they were protected by qualified immunity.
Whether the trial court properly granted summary judgment	Sacks argues discovery issues and continuances were mishandled; the court misapplied grounds.	The summary judgments were proper based on immunity and lack of viable privacy claim.	Summary judgment affirmed.
Whether alleged privacy conduct falls within fraudulent or malicious acts excusing immunity	Sacks asserts privacy-related conduct is outside attorney duties and actionable.	The conduct is within discovery in litigation; not shown as fraudulent/malicious outside duties.	No; invasion of privacy not proven as fraudulent/malicious outside duties, immunity applies.

Key Cases Cited

Poole v. Houston & T.C. Ry., 58 Tex. 134 (1882) (attorneys not liable for fraudulent acts in representing clients)
Toles v. Toles, 113 S.W.3d 899 (Tex. App.—Dallas 2003) (attorney not immune from liability for conspiracy/fraud by nonclients)
Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429 (Tex. App.—Houston [14th Dist.] 2000) (summary judgment with reliance on affirmative defenses when grounds exist)
Bradt v. West, 892 S.W.2d 56 (Tex. 1995) (attorney duties and representation limit liability for legitimate defenses)
White v. Bayless, 32 S.W.3d 271 (Tex. App.—San Antonio 2000) (attorneys not liable for wrongful litigation conduct that serves client interests)
Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468 (Tex. App.—Houston [1st Dist.] 1985) (limits of attorney immunity in transactions involving fraud claims)
Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398 (Tex. App.—Houston [1st Dist.] 2005) (immunity generally applies even if conduct wrongful in underlying case)
Huffine v. Tomball Hosp. Auth., 979 S.W.2d 795 (Tex. App.—Houston [14th Dist.] 1998) (summary judgment not on pleadings when an affirmative defense exists)
Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997) (standard for granting summary judgment on an affirmative defense)
Centennial Ins. Co. v. Commercial Union Ins. Cos., 803 S.W.2d 479 (Tex. App.—Houston [14th Dist.] 1991) (protective features of special exceptions not required where summary judgment established lack of viable claim)