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Busby v. Harvey

Court of Appeals of Texas, Second District, Fort Worth

July 27, 2017

JEFFREY D. BUSBY, ANDREA BUSBY, AND BUSBY QUARTER HORSE, L.L.C. APPELLANTS
v.
JOSH HARVEY, DVM, AND OUTLAW EQUINE, L.L.C. APPELLEES

         FROM THE 271ST DISTRICT COURT OF WISE COUNTY TRIAL COURT NO. CV14-01-002

          PANEL: LIVINGSTON, C.J.; GABRIEL and PITTMAN, JJ.

          OPINION

          TERRIE LIVINGSTON CHIEF JUSTICE

         The 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.

         Background Facts

         Appellants 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.

         Attorney 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, [1] but Chamblee refused to do so.

         In the 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.

         In 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.

         After holding a hearing, without making explicit findings, the trial court denied appellants' motion to disqualify Chamblee.

         Following the trial court's decision concerning disqualification, the parties presented evidence and arguments to a jury.[2] 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.

         The Trial Court's Decision on Disqualification

         In one 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."

         We 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.").

         Disqualification 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)).[3] "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).

         At the 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 . . . .

         Also during that hearing, Chamblee told the court about the reason for his contact with Busby.[4] 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 ...


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