GAIA Environmental, Inc. and AXL Industries, L.L.C. v. James B. Galbraith and McLeod, Alexander, Powel & Apffel, P.C.
451 S.W.3d 398
Tex. App.2014Background
- Gaia Environmental (Gaia) had a Master Site Services (Land Farm) contract with BP that included indemnity obligations; a Gaia employee died on BP property and BP retained attorney James Galbraith and law firm MAPA to defend BP in the wrongful-death suit.
- Gaia was separately defended by its own counsel (Phillip Sharp); Gaia lacked required liability insurance so BP defended itself in the underlying litigation and ultimately settled.
- During discovery, BP’s corporate witness said the deceased was working under the Land Farm contract; Gaia owner Bill Householder’s deposition conflicted, stating the work was out of scope and BP controlled the work.
- Sharp testified Galbraith called him and said BP was upset about Householder’s testimony, asked Sharp to review it with Householder, and warned that BP would not renew Gaia’s contracts if Householder did not change his testimony; Householder did not change his testimony and BP did not renew the contracts.
- Gaia and AXL sued BP, Galbraith, and MAPA asserting tortious-interference, civil-conspiracy, and aiding-and-abetting claims; Galbraith/MAPA moved for summary judgment asserting attorney-immunity (among other defenses); the trial court granted summary judgment and this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does attorney immunity bar Gaia/AXL's claims against opposing counsel? | Immunity does not apply if counsel committed a crime (witness tampering). | Attorney immunity shields conduct undertaken in representation of a client. | Held: Yes — immunity applies; summary judgment affirmed. |
| Did plaintiffs raise a fact issue that the conduct was not part of Galbraith/MAPA’s representation? | Sharp and deposition excerpts create fact question that Galbraith directly attempted to coerce Householder. | The communications were between opposing counsel about discovery and client defenses, thus within representation. | Held: No genuine fact issue; conduct occurred in course of representation. |
| Did plaintiffs plead facts sufficient to invoke the criminal witness-tampering exception (intend to induce witness to "testify falsely")? | “Change his testimony” equates to coercing Householder to lie, satisfying the statute. | Petition lacks an allegation that counsel intended Householder to give intentionally untrue testimony. | Held: Petition insufficient; allegation of changing testimony does not equate to "testify falsely." |
| Are plaintiffs’ claims barred for lack of privity? | Privity does not bar tortious-interference and related claims against counsel. | Claims are barred by lack of privity to assert duties against opposing counsel. | Held: Court did not reach privity issue because immunity disposed of the case. |
Key Cases Cited
- Mann Frankfort Stein & Lipp Advisors, Inc. v. Fielding, 289 S.W.3d 844 (Tex. 2009) (summary-judgment standard and review)
- McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787 (Tex. 1999) (attorney duties and liability to nonclients)
- Bradt v. West, 892 S.W.2d 56 (Tex. App.—Houston [1st Dist.] 1994) (policy rationale for attorney immunity)
- Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429 (Tex. App.—Houston [14th Dist.] 2000) (conduct-type inquiry for immunity and exceptions)
- Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398 (Tex. App.—Houston [1st Dist.] 2005) (limits to immunity where attorney’s conduct is foreign to duties)
- Rawhide Mesa-Partners, Ltd. v. Brown McCarroll, L.L.P., 344 S.W.3d 56 (Tex. App.—Eastland 2011) (criminal conduct can pierce attorney immunity)