Court of Appeals of Texas, Ninth District, Beaumont
RONALD ROGERS, INDIVIDUALLY AND AS EXECUTOR TO THE ESTATE OF LOUISE ROGERS, Appellant
TED L. WALKER, Appellee
Submitted on September 22, 2016
Appeal from the 1st District Court Jasper County, Texas Trial
Cause No. 30253-B
Kreger, Horton, and Johnson, JJ.
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.
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. 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. 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.
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.
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. 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.
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).
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