White v. Bayless
32 S.W.3d 271
Tex. App.
2000
Check Treatment

OPINION

Opinion by:

TOM RICKHOFF, Justice.

This is аn appeal from a summary judgment rendered in favor of Anne H. Bayless and her attorneys, J. Anthony Guajardo, Sr. and Matthew S. Muller, against Gene White. We affirm the summary judgment because White has no cause of action against Bayless, Guajardo, and Muller for actions taken by Guajardo аnd Muller in the context of their representation of Bay-less.

FACTUAL BACKGROUND

In August 1993, Bayless proposed marriage to White, and he accepted. At the time, White was supervising the remodeling of a house, which was owned by the Estate of Lucille F. Grist (the Grist Estate). Bayless and White agreed to purchase the house from the Grist Estate, with Bayless providing the purchase money and additional funds to remodel the house. Bayless created the Sunrise Investment Trust with her as sole grantor, trustee, and beneficiary. Bayless gave $150,000 to the Trust, which in turn, purchased the house from the Grist Estate. White and the Trust entered into an agreement under which he would live in the house and supervise completion of the improvements. White was to receive an hourly rate for his services, a portion of which would be deducted for rent. White later became a grantor, trustee, and beneficiary of the Trust.

In February 1995, Bayless decided she did not want to marry White, and she wanted to terminate the Trust and all financial connections with him. When Bay-less and White were unable to reach an amicable agreement, Bayless retained Guajardo to sue White for breach of fiduciary duty, accounting of funds, and recovery of investments. Guajardo is licensed to practice law in Texas. On April 2,1998, Guajardo and Muller signed Bayless’s original petition. Muller’s license to practice law in Texas was suspended on September 18, 1997 and reinstated on April 28,1998.

WHITE’S CLAIMS AGAINST BAYLESS AND HER ATTORNEYS

White filed a counter-claim against Bay-less, and a cross-action against Guajardo and Muller. White contended Bayless entered into a conspiracy with Guajardo and Muller to defraud him of his property; and destroy him financially, physically, mentally, and emotionally to the рoint that he would be forced to cede control of the Trust’s assets or that he would succumb physically and die, thus passing full control of the Trust to Bayless. White claimed Bayless and her attorneys used her lawsuit to obtain extralegal orders purporting to bind White and harm him, and that Gua-jаrdo and Muller acted contrary to stipulated agreements, on an ex parte basis, and without authority. White alleged that Bayless and her attorneys’ actions were calculated to cause him financial injury, grave physical injuries, severe stress and mental anxiety, and emotional рain and suffering.

Bayless, Guajardo, and Muller jointly moved for summary judgment. The trial *274 court rendered summary judgment in their favor on the ground that no cause of action existed against them in favor of White.

SUMMARY JUDGMENT

STANDARD OF REVIEW

As movants for summary judgment, Bayless, Guajardo, and Muller had to negate the existence of genuine issues of material fact and establish their right to judgment as a matter of law. See Gibbs v. General Motors Corp., 450 S.W.2d 827, 828 (Tex.1970). Summary judgment is proper where the plaintiffs allegations cannot constitute a cause of action as a matter of law. See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex.1998).

A summary judgment should not be premised on ‍‌‌​​​​​‌‌‌​​​‌‌​‌​‌‌‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌​‌‌‌​​‌‌‌‍a pleading deficiency curable by amendment. In re B.I.V., 870 S.W.2d 12, 13 (Tex.1994). Accordingly, the special exceptions procedure, and not summary judgment, is the proper means to test the adequacy of the other parties’ pleadings. See Texas Dep’t of Corrections v. Herring, 513 S.W.2d 6, 9-10 (Tex.1974). 1 Generally, before a court may grant a “no cause of action” summary judgment, it must give the plaintiff an adequate opportunity to plead a viable cause of action. See Friesenhahn, 960 S.W.2d at 658; Massey v. Armco Steel Co., 652 S.W.2d 932, 934 (Tex.1983). However, if the plaintiffs petition affirmatively demonstrates that no cause of action exists or that the plaintiffs recovery is barred, no opportunity to amend is neсessary, and summary judgment or dismissal is proper. Peek v. Equipment Serv. Co., 779 S.W.2d 802, 805 (Tex.1989). When evaluating a summary judgment granted on the basis of deficient pleadings, we review the pleadings de novo, taking all allegations, facts, and inferences in the pleadings as true and viewing them in the light most favorable to the pleаder. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex.1994). We will affirm the summary judgment only if the pleadings are legally insufficient. Id.

Summary Judgment in Favor of Guajardo and Muller

Guajardo and Muller moved for summary judgment on the ground that White did not state a cause of action against them. They relied on cases standing for the proposition that there is no cause of action against opposing counsel for representing a client in a judicial proceeding. See Mitchell v. Chapman, 10 S.W.3d 810, 811 (Tex.App.-Dallas 2000, pet. den.); Bradt v. West, 892 S.W.2d 56, 71-72 (Tex.App.-Houston [1st Dist.] 1994, writ denied).

White argues that his causes of action for conspiracy to commit fraud and intentional infliction of emotional distress can be maintained against Guajardo and Muller. He relied оn cases standing for the proposition that an attorney is liable if he knowingly commits a fraudulent act or knowingly enters into a conspiracy to defraud a third person. See Poole v. Houston & T.C. Ry. Co., 58 Tex. 134, 137 (1882); Querner v. Rindfuss, 966 S.W.2d 661, 666 (Tex.App.-San Antonio 1998, pet. denied).

We therefore examine each of White’s claims in light of the actions shown to have been taken by Guajardo and Muller to determine whether they can be held *275 liable for such actions. If Guajardo and Muller actively engaged in fraudulent conduct in furtherance of some conspiracy or otherwise, they can be held hable. See Querner, 966 S.W.2d at 666. White claims Bayless and her attorneys obtainеd several orders in furtherance of ‍‌‌​​​​​‌‌‌​​​‌‌​‌​‌‌‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌​‌‌‌​​‌‌‌‍their conspiracy. Following is a list of those orders and White’s contentions:

1. “Temporary Restraining Order and Order Setting Hearing for Temporary Orders.” Although the order purports to be based on Bayless’s original petition, the petition does nоt contain the words “restraining order” and “injunction,” and the petition contains no pleading to support such an order and no prayer for such relief.
2. An “Agreement for Other,” which purports to provide for mutually temporary injunctions, but provides for nothing.
3. “Notice of Lis Pendens” rеferring to this suit. Under the heading “Kind of Proceeding,” assertions are made that are not related to the contents of the suit except for an alleged “breach of fiduciary duty,” and the assertions have nothing to do with a title to real estate.
4. A “Motion to Set” providing for a jury trial date 14 days from the date of setting in violation of Texas Rule of Civil Procedure 245.
5. An “Order for Issuance of a Writ of Sequestration” concerning two paintings contributed by White to the Trust and worth $250,000. The writ was issued after White had answered, but without notice to White or his attorney. The order providеd that Bayless post a sequestration bond of $1000, and her attorneys were approved as her sureties; but White was required to post a $250,000 bond and obtain a licensed and recognized public surety company.
6. Am “Application for Writ of Sequestration” of property ownеd by a trust not a party to the lawsuit, which called for seizure of all property on the premises of a corporation not a party to the lawsuit.
7. An “Order for the Issuance of Temporary Restraining Order” concerning property belonging to a trust not a party to the lawsuit.

As further evidence of the conspiracy, White alleged he filed for bankruptcy because of Bayless’s “relentless extrajudicial onslaught.” He contends Bayless and her attorneys filed numerous pleadings in state court despite the automatic stay; tried to evict him evеn though the bankruptcy court did not have jurisdiction over eviction matters; filed a false proof of claim in his bankruptcy proceeding; and used “scurrilous and intemperate language and pejorative statements.” White also contends Guajardo joined Muller in Muller’s practicing law despite having had his license suspended.

Texas law has long authorized attorneys to “practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves hable for damages.” See Kruegel v. Murphy, 126 S.W. 343, 345 (Tex.Civ.App.-Dallas 1910, writ ref'd). An attorney may assert any of his client’s ‍‌‌​​​​​‌‌‌​​​‌‌​‌​‌‌‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌​‌‌‌​​‌‌‌‍rights without being personally hable for damages to the opposing party. See Bradt, 892 S.W.2d at 76; Morris v. Bailey, 398 S.W.2d 946, 947 (Tex.Civ.App.-Austin 1966, writ ref'd n.r.e.). An attorney’s duties that arise from the attorney-chent relationship are owed only to the client, not to third persons, such as adversе parties. See Renfroe v. Jones & Assoc., 947 S.W.2d 285, 287 (Tex.App.-Fort Worth 1997, writ denied). They have not retained the attorney, the attorney has not rendered them any services, and no privity of contract exists between them and the attorney. Id. They have no right of action against the attorney for any injuries they suffer beсause of the attorney’s fault in *276 performing duties owed only to the client. Id.

Under Texas law, attorneys cannot be held hable for wrongful litigation conduct. See Bradt, 892 S.W.2d at 71-72. A contrary policy “would dilute the vigor with which Texas attorneys represent their clients” and “would not be in the best interests of justice.” Id. at 72. Any other rule would act as a severe and crippling deterrent to the ends of justice because a litigant might be denied a full development of his case if his attorney were subject to the threat of liability for defending his client’s position to the best and fullest extent allowed by law, and availing his client of ah rights to which he is entitled. See Morris, 398 S.W.2d at 947-48.

The principle that there is no cause of action against opposing counsel for representing a client in a judicial proceeding focuses on the kind of conduct engaged in, not on whether the conduct was meritorious in the context of thе underlying lawsuit. See Renfroe, 947 S.W.2d at 288; Bradt, 892 S.W.2d at 72. A disgruntled litigant has no right of recovery against the opposing attorney for that attorney’s having made certain motions in the underlying lawsuit, regardless of whether the motions were meritless or even frivolous, because making motions is conduct an attorney engages in as рart of the discharge of his duties in representing a party in a lawsuit. Id. Even when an attorney engages in wrongful conduct as part of the discharge of his duties in representing a party in a lawsuit, there is no cause of action to the party on the other side. Id. (noting that the law provides for the punishment of such acts, citing Tex.R. Crv. P. 13 (power to punish attorney for filing improper pleadings, motions, and “other papers”); ‍‌‌​​​​​‌‌‌​​​‌‌​‌​‌‌‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌​‌‌‌​​‌‌‌‍Tex.R. Crv. P. 215 (power to punish attorney for abusing discovery); Tex. Gov’t Code Ann. § 21.002 (Vernon 1988) (power to punish attorney for contempt of court)).

Here, each of the complained of actions by Guajardo and Muller involve a pleading filed with or orders obtained from a court. White does not assert he was unlawfully harmed by any single pleading or order; instead, he contends the pleadings and orders evidence a рattern of conspiracy to harm him. However, White’s claims against Guajardo and Muller arose from Guajardo and Muller’s actions taken as attorneys representing their client, Bay-less. The attorneys’ preparing and filing various pleadings with the trial court and the bankruptcy сourt were within the context of discharging their duties in representing their client. Guajardo and Muller owed no duty to White.

We hold that White does not have a cause of action against Guajardo and Muller because the relationship was adversarial and the attorneys owеd no legal duty to White. See Mitchell, 10 S.W.3d at 812 (no cause of action based on opposing attorney’s allegedly willfully withholding a document); Querner, 966 S.W.2d at 669 (no cause of action based on probate attorney’s signature on application for sale of real property and accounting); Renfroe, 947 S.W.2d at 288 (no cause of action against creditor’s attorney based on issuance of wrongful writ of garnishment); Bradt, 892 S.W.2d at 73 (no cause of action based on opposing attorney’s filing an allegedly meritless motion for contempt). Furthermore, White has no cause of action based on Mullеr’s practicing law while his license was suspended because White was not in privity with Muller. Even assuming Guajardo and Muller’s actions went beyond the bounds of ethical behavior, the remedy is public, not private. See Mitchell, 10 S.W.3d at 812; Renfroe, 947 S.W.2d at 287.

Even if White had been able to show some sort of tacit agreement betwеen Bayless, Guajardo, and Muller, White’s inability to articulate an actionable underlying tort claim is fatal to his conspiracy allegations. See, e.g., Hoggett v. Brown, 971 S.W.2d 472, 493 (Tex.App. *277 Houston [14th Dist.] 1997, pet. denied) (concluding there was no actionable conspiracy claim once court determined plaintiff cоuld not assert an actionable claim against defendants). We find there are no genuine issues of material fact, and Gua-jardo and Muller were entitled to judgment as a matter of law. Thus, the trial court properly rendered summary judgment in favor of Guajardo and Muller.

Summary Judgment in Favor of Bayless

Because White has no cause of action against Guajardo and Muller, he cannot maintain a conspiracy claim against Bay-less. See Tilton v. Marshall, 925 S.W.2d 672, 681 (Tex.1996) (defendant’s liability for conspiracy depends on participation in some underlying tort for which the plaintiff seeks to ‍‌‌​​​​​‌‌‌​​​‌‌​‌​‌‌‌​‌‌​‌​​‌‌​​‌‌​​‌‌‌​‌‌‌​​‌‌‌‍hold at least one of the named defendants liable). Therefore, the trial court properly rendered summary judgment in favor of Bayless.

CONCLUSION

For the reasons set forth above, we affirm the trial court’s judgment in favor of Bayless, Guajardo, and Muller.

Notes

1

. Bayless filed special exceptions, contending Whitе’s petition asserted no cognizable claim against her based on her attorneys’ actions. The trial court denied the special exceptions. Bayless, Guajardo, and Muller later sought summary judgment because no cause of action existed. White did not object, in thе trial court, to Bayless, Guajardo, and Muller’s reliance on the summary judgment procedure. Their reliance on the pleadings triggered a responsibility in White to request leave to amend, to the extent his pleading defects were curable by amendment. See Higbie Roth Constr. Co. v. Houston Shell & Concrete, 1 S.W.3d 808, 811 (Tex.App.-Houston [1st Dist.] 1999, рet. denied). White did not request an opportunity to amend his pleadings to state a cognizable cause of action, and he does not make this complaint on appeal. See id. (Hig-bie waived reliance on any complaint premised on absence of special exceptions because he did not request an opportunity to amend).