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Rogers v. Walker

Court of Appeals of Texas, Ninth District, Beaumont

August 3, 2017

TED L. WALKER, Appellee

          Submitted on September 22, 2016

         On Appeal from the 1st District Court Jasper County, Texas Trial Cause No. 30253-B

          Before Kreger, Horton, and Johnson, JJ.


          LEANNE JOHNSON Justice

         Ronald Rogers (Appellant or Rogers), individually and as Executor of the Estate of Louise Rogers, appeals the trial court's summary judgment in favor of Ted L. Walker (Appellee or Walker). We affirm the trial court's judgment.


         In 1996, Ted G. Walker, Appellee's father, prepared a will for Louise Rogers (Louise) and Louise died in 2004 and her will was filed for probate.[1] Rogers v. Walker, No. 13-12-00048-CV, 2013 Tex.App. LEXIS 6452, at *1 (Tex. App.- Corpus Christi May 23, 2013, pet. denied) (mem. op.). Louise's will named Rogers, her stepson, as the executor of her estate. Id. Gayle Creel, Louise's biological son, retained Appellee to file an opposition to appointment of Rogers as executor, application for appointment of dependent administrator, and application for letters of administration with will annexed. Id. at **1-2. After a hearing, the trial court found Rogers unqualified to serve as executor and issued an order appointing Creel to be the executor of Louise's estate. Rogers v. Creel, No. 09-06-012-CV, 2006 Tex.App. LEXIS 5415, at *1 (Tex. App.-Beaumont June 15, 2006, no pet.) (mem. op.). This Court subsequently concluded that Rogers was not disqualified to serve as executor of Louise's estate, that the trial court had no discretion to refuse to issue letters testamentary to Rogers, and that the trial court abused its discretion by denying Rogers's application for probate of the will and issuance of letters testamentary. Id. at **4-5. This Court reversed the trial court's order and remanded the case for further proceedings. See id. at *5.

          Thereafter, Rogers filed the underlying suit against Creel and Walker for their alleged actions during the pendency of the probate appeal. In his Fourth Amended Original Petition ("the petition"), Rogers alleged causes of action for fraud, constructive fraud, conspiracy to commit fraud, breach and conspiracy to breach fiduciary duties, aiding and abetting breach of fiduciary duty, conversion, conspiracy to commit conversion, securing execution of a document by deception, breach of contract, and a declaratory judgment against Walker and Creel.[2] According to the petition, "[t]hrough a series of fraudulent and tortious actions by Creel and Ted L. Walker, Louise Rogers' Estate funds were misappropriated, her house and land [were] repossessed, and the Estate was left deeply in debt." The petition also asserted that Louise's four sons were rightful heirs who received nothing instead of equal shares of her estate. The petition alleged that Creel and Walker conspired to defraud Louise's estate, introduced unsubstantiated claims, and worked together to replace Louise's choice of executor with Creel. The petition included allegations that Walker (1) objected to Rogers as executor even though there was no legitimate basis for the objection; (2) participated in fraudulent and tortious acts when he had Creel promise to post a statutorily required bond, but then worked to have estate funds placed in Creel's hands without bond; (3) misrepresented to the trial court that there was no objection to Creel's "bogus claims" and hid them from the other heirs; (4) ensured beneficiaries received no notice of Creel's self-dealing; (5) secured execution of documents by deception; (6) helped Creel obtain the estate funds without bond; (7) ensured Creel's activities could be committed by subterfuge by withholding required legal notifications; (8) repeatedly failed to serve Rogers and other beneficiaries with probate filings; (9) improperly disposed of administration documents in his possession; and (10) conspired with Creel to convert estate property.

         Walker filed his Fifth Amended Original Answer and Cross-Claim wherein he asserted numerous affirmative defenses, including attorney immunity, and specifically as follows:

Defendant is not liable to the Plaintiff for actions taken in the course and scope of his representation of Creel in the probate proceeding. Defendant was retained to represent Creel in the probate proceeding and all conduct of Defendant complained of by Plaintiff Rogers involved litigation and was part of the discharge of Walker's duties to Defendant Creel, as his client.

         Walker filed a motion for summary judgment on the basis that the Texas Supreme Court's opinion in Cantey Hanger "is dispositive of all of Plaintiffs' claims remaining before this Court[]" and that the motion should be granted as a matter of law on the grounds of attorney immunity because Walker had met his burden to prove that his alleged wrongful conduct was in furtherance of the discharge of his duties to his client.[3] Three affidavits by Walker (and attachments to the affidavits) were attached to the motion as summary judgment evidence. The trial court signed an order granting the motion for summary judgment and dismissing the claims against Walker with prejudice, signed an agreed motion to sever the claims against Walker from the action, and signed a Final Take Nothing Judgment in favor of Walker. Rogers timely filed a notice of appeal.

         Standard of Review

         We review summary judgment orders de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). The party moving for traditional summary judgment must establish that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Tex.R.Civ.P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644 (Tex. 1995). If the moving party produces evidence entitling it to summary judgment, the burden shifts to the nonmovant to present evidence that raises a material fact issue. Walker v. Harris, 924 S.W.2d 375, 377 (Tex. 1996). In determining whether there is a disputed issue of material fact precluding summary judgment, we take evidence favorable to the nonmovant as true. Nixon v. Mr. Prop. Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985). We review the summary judgment record "in the light most favorable to the nonmovant, indulging every reasonable inference and resolving any doubts against the motion." City of Keller v. Wilson, 168 S.W.3d 802, 824 (Tex. 2005).

         "Attorney immunity is an affirmative defense." Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex. 2015). To be entitled to summary judgment based upon the attorney-immunity doctrine, Walker had to establish that there was no genuine issue of material fact that his conduct was protected by the ...

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