Court of Appeals of Texas, Second District, Fort Worth
JEFFREY D. BUSBY, ANDREA BUSBY, AND BUSBY QUARTER HORSE, L.L.C. APPELLANTS
JOSH HARVEY, DVM, AND OUTLAW EQUINE, L.L.C. APPELLEES
THE 271ST DISTRICT COURT OF WISE COUNTY TRIAL COURT NO.
LIVINGSTON, C.J.; GABRIEL and PITTMAN, JJ.
LIVINGSTON CHIEF JUSTICE
resolution of this appeal hinges on whether a trial court
abused its discretion by overruling a motion to disqualify
counsel. Appellants Jeffrey D. Busby, Andrea Busby, and Busby
Quarter Horse, L.L.C. appeal the trial court's
take-nothing judgment in favor of appellees Josh Harvey, DVM
(Dr. Harvey) and Outlaw Equine, L.L.C. Because we conclude
that the trial court did not abuse its discretion by denying
appellants' motion to disqualify appellees' counsel,
we affirm the trial court's judgment.
own a barrel-racing horse colloquially known as Daisy. They
took Daisy to Dr. Harvey for a routine exam, and he treated
Daisy for conditions on her legs. According to appellants,
Dr. Harvey's treatment started a course of events that
resulted in severe injuries to one of Daisy's legs.
Appellants allege that the injuries destroyed Daisy's
racing career and significantly reduced her breeding value.
Based on these facts, in 2013, appellants brought claims
against appellees for negligence, gross negligence,
veterinary malpractice, and breach of contract.
William H. Chamblee appeared in the case to represent
appellees. Appellants filed a motion to disqualify Chamblee.
In that motion, appellants alleged that before appearing as
appellees' counsel, Chamblee had obtained confidential
information about the case from appellants. Specifically,
appellants contended that when they were in the process of
seeking an expert witness to testify in support of their
claims, Jeffrey Busby contacted Chamblee, and Busby spoke
with Chamblee and exchanged text messages with him. According
to appellants, Chamblee recommended a specific expert-Dr.
Craig Roberts-to Busby, appellants retained Dr. Roberts, and
Chamblee appeared as appellees' counsel weeks later.
Through their counsel, appellants then sent a letter to
Chamblee to remind him of Busby's conversations with him
and to ask him to withdraw from appellees'
representation,  but Chamblee refused to do so.
motion to disqualify, appellants argued in part,
While Mr. Busby did not retain Mr. Chamblee as an attorney,
Mr. Busby unquestionably shared sensitive information about
his case in the course of his conversations with Mr.
Chamblee, and relied on Mr. Chamblee's professional
advice and services. Mr. Chamblee failed to ever advise
[Busby] that he represented [appellees'] insurance
company in the course of their conversations or that he might
become adverse to [appellants].
. . . .
[Appellants] are now in the untenable position of having
shared confidential information with an attorney, only to
have that attorney use that information against [appellants].
Worse, [appellants] have designated an expert upon Mr.
Chamblee's advice, who Mr. Chamblee used/uses and who
will have an unfair advantage in dealing with
[appellants'] expert as a result. The timing of Mr.
Chamblee's appearance in this case is also particularly
troubling to [appellants] mere weeks after [appellants]
submitted their expert designations and reports.
appellees' response to appellants' motion to
disqualify, appellees contended in part,
[Appellants] have not and will not suffer any prejudice as a
result of the retention of defense counsel. Defense counsel
has no unfair advantage and is not aware of any of
[appellants'] counsel's strategy, work product, or
discussions with their clients or experts. [Appellants']
apparent displeasure with [appellees'] retained defense
counsel is insufficient to show actual prejudice.
holding a hearing, without making explicit findings, the
trial court denied appellants' motion to disqualify
the trial court's decision concerning disqualification,
the parties presented evidence and arguments to a
jury. The jury found that no negligence of Dr.
Harvey proximately caused an injury to Daisy. In accordance
with this verdict, the trial court signed a take-nothing
judgment on appellants' claims against appellees.
Appellants brought this appeal.
Trial Court's Decision on Disqualification
issue on appeal, appellants contend that the trial court
abused its discretion by denying their motion to disqualify
Chamblee. They argue that Jeff Busby told Chamblee
confidential information about the case and that at trial,
Chamblee "repeatedly attacked the expert he recommended
. . . based on the confidential information Chamblee
previously received from [a]ppellants." Appellees
contend that Chamblee's "casual" and
non-confidential conversation with Busby that was untethered
to the rendition of legal services and concerned only
appellants' desire to obtain an expert witness was
insufficient to require Chamblee's disqualification after
he later became appellees' counsel. Appellees also assert
that appellants "suffered no harm from [the trial
court's disqualification ruling] when the only harm
alleged was [Chamblee's] purported emphasis of the fact
that the expert was from Florida-a fact that
[a]ppellants' counsel elicited from the expert."
review a trial court's denial of a motion to disqualify
counsel for an abuse of discretion. See Metro. Life Ins.
Co. v. Syntek Fin. Corp., 881 S.W.2d 319, 321 (Tex.
1994); Smith v. Abbott, 311 S.W.3d 62, 73 (Tex.
App.-Austin 2010, pet. denied) (op. on reh'g). A trial
court abuses its discretion if the court acts without
reference to any guiding rules or principles, that is, if the
act is arbitrary or unreasonable. Savering v. City of
Mansfield, 505 S.W.3d 33, 39 (Tex. App.-Fort Worth 2016,
no pet.) (en banc op. on reh'g). An abuse of discretion
does not occur when the trial court bases its decision on
conflicting evidence and some evidence of substantive and
probative character supports the decision. H.E.B., L.L.C.
v. Ardinger, 369 S.W.3d 496, 520 (Tex. App.-Fort Worth
2012, no pet.); see also Holmes v. GMAC, Inc., 458
S.W.3d 85, 96 (Tex. App.-El Paso 2014, no pet.) ("When
reviewing a trial court's decision under this standard,
we must view the evidence in the light most favorable to the
trial court's ruling and indulge every presumption in its
favor."); Pollard v. Merkel, 114 S.W.3d 695,
697-98 (Tex. App.-Dallas 2003, pet. denied) ("When we
consider factual issues or matters committed to the trial
court's discretion, we may not substitute our judgment
for that of the trial court.").
of counsel is a severe remedy. See In re RSR Corp.,
475 S.W.3d 775, 778 (Tex. 2015) (orig. proceeding). The party
moving to disqualify another party's attorney generally
bears the burden of proving that the alleged conflict will
cause the moving party to suffer actual prejudice. See In
re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex. 2002)
(orig. proceeding) (op. on reh'g) (explaining that
"[e]ven if a lawyer violates a disciplinary rule, the
party requesting disqualification must demonstrate that the
opposing lawyer's conduct caused actual prejudice that
requires disqualification"); In re Meador, 968
S.W.2d 346, 350 (Tex. 1998) (orig. proceeding); see also
In re Bahn, 13 S.W.3d 865, 873 (Tex. App.-Fort Worth
2000, orig. proceeding) ("The courts must adhere to an
exacting standard when considering motions to disqualify so
as to discourage their use as a dilatory trial tactic. In
order to prevent such misuse[, ] . . . the trial court should
require the party seeking disqualification to demonstrate
actual prejudice to itself resulting from the opposing
lawyer's service . . . ." (citation
omitted)). "The movant has the burden of proof
on a disqualification motion. To prevent the abusive filing
of such a motion for tactical reasons, the court must
carefully evaluate the motion and record to determine if
disqualification is warranted." In re Tex. Windstorm
Ins. Ass'n, 417 S.W.3d 119, 129 (Tex. App.- Houston
[1st Dist.] 2013, orig. proceeding) (citation omitted).
beginning of the hearing on appellants' disqualification
motion, appellants' counsel stated that when Jeff Busby
spoke with Chamblee, Busby
was looking not only to seek legal advice regarding the
expert, he was also interested in the possibility of
expanding the legal team to include an attorney or attorneys
who had . . . local practice experience before the Court.
He spoke with Mr. Chamblee. Mr. Chamblee . . . recommended an
expert witness to take on the issues that Mr. Busby discussed
with Mr. Chamblee. That expert was retained, and only after
that expert was retained and his expert report was filed did
we receive a motion to substitute counsel seeing Mr. Chamblee
coming in as the counsel for [appellees].
. . . .
. . . [T]he . . . problem, of course, is this sharing of
confidential information, relying on it, hiring the expert
that was recommended based on the facts given to the counsel
only to have that very counsel come in and appear on behalf
of [appellees] after the expert report was sent out. Mr.
Chamblee represented that this was the expert, quote, we use.
He apparently[, ] or his firm[, ] knows the expert, may have
inside information about him. There's a Pandora's box
of issues that could come up with defense counsel being on
the other side of this particular expert . . . .
during that hearing, Chamblee told the court about the reason
for his contact with Busby. He explained that he practices
equine law and that a mutual friend of his and Busby's
referred Busby to him for assistance in locating an expert
witness. Chamblee said that the mutual friend informed him
that Busby was already represented and had already filed suit