Ronald Rogers, Individually and as to the Estate of Louise Rogers v. Ted L. Walker
09-15-00489-CV
| Tex. App. | Aug 3, 2017Background
- Louise Rogers died in 2004; a will prepared in 1996 named Ronald Rogers (appellant) as executor. A different heir, Gayle Creel, contested and was initially appointed executor; this Court later reversed and remanded, concluding Rogers was entitled to letters testamentary.
- Rogers sued Creel and Ted L. Walker (appellee, attorney for Creel) alleging fraud, constructive fraud, conspiracy, breach of fiduciary duty, conversion, securing execution by deception, and related claims based on actions during the probate dispute.
- Walker asserted attorney-immunity as an affirmative defense and moved for summary judgment, attaching three affidavits describing his representation and conduct in the probate litigation.
- The trial court granted Walker’s summary-judgment motion on attorney-immunity grounds, severed and dismissed claims against Walker with prejudice, and Rogers appealed.
- The court of appeals reviewed de novo and framed the central question as whether Walker’s alleged wrongful acts were within the scope of his representation so as to be protected by attorney immunity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether alleged misconduct by Walker is outside attorney-immunity protection | Rogers: Walker’s administration and alleged concealment/self-dealing are not the kind of conduct protected by Cantey Hanger; affidavits are untrustworthy | Walker: Conduct was within scope of representing Creel in contested probate; Cantey Hanger bars suit by non-client | Held: Walker established immunity; conduct was the kind of representation protected by attorney-immunity and summary judgment was proper |
| Admissibility/weight of Walker’s affidavits | Rogers: Walker is an untrustworthy affiant; affidavits are conclusory and should not support summary judgment | Walker: Affidavits satisfy Rule 166a(c) and mirror those in Cantey Hanger, conclusively showing scope of representation | Held: Affidavits sufficient under Rule 166a(c); uncontroverted testimony established entitlement to judgment as a matter of law |
Key Cases Cited
- Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477 (Tex. 2015) (establishes that attorney immunity protects conduct that is the kind of activity an attorney performs in representing a client, even if wrongful)
- Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211 (Tex. 2003) (standard of review for traditional summary judgment)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (evidence and inference rules on reviewing summary judgment)
- Nixon v. Mr. Property Management Co., 690 S.W.2d 546 (Tex. 1985) (summary-judgment burden and construing evidence in favor of nonmovant)