Appeal from the 127th District Court Harris County, Texas
Trial Court Cause No. 2016-01407.
consists of Justices Boyce, Jamison, and Brown.
David Sheller appeals from the trial court's granting
summary judgment in favor of appellees Corral Tran Singh, LLP
(CTS), Susan Tran, and Brendon Singh (collectively, CTS
Defendants) on Sheller's claims for violations of the
Texas Deceptive Trade Practices Act (DTPA) and negligent
misrepresentation. Sheller also appeals from the trial
court's denying summary judgment in Sheller's favor
on his claims. Sheller further challenges the trial
court's failure to require CTS Defendants to admit
requests for admission or to strike CTS Defendants'
pleadings under Texas Rule of Civil Procedure 215.4.
Concluding that the trial court could properly grant summary
judgment on CTS Defendants' attorney-immunity defense,
and that the trial court did not abuse its discretion by
refusing to impose sanctions on CTS Defendants, we affirm.
Millennium Management, L.L.C., operated a commercial building
in Houston, Texas. In September 2013, New Millennium filed a
voluntary petition under chapter 11 of the Bankruptcy Code.
New Millennium as the debtor-in-possession was initially
represented by Margaret McClure, as approved by the
bankruptcy court in October 2013.
January 5, 2014, New Millennium-named as the client-signed a
fee agreement with CTS. Sheller signed the fee agreement as
the sole member of New Millennium. New Millennium filed an
application to employ CTS as a substitute for McClure, which
the bankruptcy court approved on January 13, 2014.
time, New Millennium creditor TexHou Investment Group, Ltd.,
had on file a motion to appoint a chapter 11 trustee or to
convert the case to a chapter 7 bankruptcy case. The hearing
on the motion took place on January 22 and 30, 2014. CTS
handled the hearing. On February 25, 2014, the bankruptcy
court denied TexHou's motion to convert but agreed to
appoint a trustee to oversee the estate of New Millennium.
The trustee was appointed on February 28, 2014. This order
ended the engagement of CTS for New Millennium, which was no
longer a debtor-in-possession. Upon the motion of the chapter
11 trustee and TexHou, the case was converted to a chapter 7
case in June 2014.
2014, CTS filed an amended final application for approval of
compensation for services rendered and reimbursement of
expenses incurred as chapter 11 bankruptcy counsel for debtor
New Millennium for the time period of January 5, 2014, to
February 25, 2014. There was no objection to CTS's
application. The bankruptcy court held a hearing and in
August 2014 concluded that CTS should be allowed a fee of $3,
bankruptcy case was dismissed in October 2015. In January
2016, Sheller filed suit against CTS Defendants for DTPA
violations and "negligence and legal malpractice."
Sheller amended his petition to remove the negligence and
malpractice claims and to add claims for negligent
alleged that CTS Defendants: did not prepare witnesses and
improperly conducted direct examinations; did not research
and incorrectly advised Sheller there could be no appeal from
the appointment of the chapter 11 trustee; did not timely put
together an exclusive plan; did not list expert witnesses and
exhibits; did not spend adequate time on monthly operating
reports; and did not adequately and timely confer with
Sheller or return phone calls.
regard to the DTPA, Sheller alleged that Tran violated
section 17.50(2) by violating an express warranty and making
a false statement, and that CTS Defendants violated
"section 17.46 et seq." because their
"services and ability were represented to be competent
and they were of a different standard, quality or
character." Sheller alleged that CTS Defendants'
"repeated failures to list experts, exhibits, perform
diligent research or even any research before making
statements, and the refusal to put together an exclusive plan
before the time expired to do so" violated section
17.50(3) of the DTPA. Sheller also pleaded "negligent
misrepresentation as to all statements by [CTS Defendants] in
representing New Millennium."
April 2016, CTS Defendants removed the case to the United
States District Court for the Southern District of Texas. The
case was remanded in July 2016.
parties filed cross-motions for summary judgment. CTS
Defendants filed a motion for summary judgment based on the
affirmative defenses of res judicata and attorney
immunity. Sheller filed a response and a
supplemental response. Sheller filed a motion for summary
judgment, arguing that there were no material issues of fact
on his DTPA and negligent-misrepresentation
claims. CTS Defendants responded.Sheller
filed and amended a motion for sanctions and default
judgment. Sheller then filed a "supplemental motion for
sanctions and default judgment for aggravated perjury
pursuant to Penal Code art. 37.02 et seq." The trial court
granted CTS Defendants' summary-judgment motion and
denied Sheller's. Sheller filed a motion for new trial.
The trial court denied his motion. Sheller timely appealed.
Standard of review
review summary judgments de novo. Valence Operating Co.
v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A plaintiff
moving for traditional summary judgment must conclusively
establish all essential elements of its claim. Cullins v.
Foster, 171 S.W.3d 521, 530 (Tex. App.-Houston [14th
Dist.] 2005, pet. denied) (citing MMP, Ltd. v.
Jones, 710 S.W.2d 59, 60 (Tex. 1986)); see Tex.
R. Civ. P. 166a(c). Traditional summary judgment for a
defendant is proper when it (1) negates at least one element
of each of the plaintiff's claims or (2) establishes all
elements of an affirmative defense to each claim. Am.
Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex.
1997); Cullins, 171 S.W.3d at 530 (citing Sci.
Spectrum, Inc. v Martinez, 941 S.W.2d 910, 911 (Tex.
1997)); see Tex. R. Civ. P. 166a(c).
the moving party establishes its right to a traditional
summary judgment, the burden shifts to the nonmoving party to
present evidence raising a genuine issue of material fact,
thereby precluding summary judgment. See M.D. Anderson
Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d 22, 23
(Tex. 2000) (per curiam); see Navy v. Coll. of the
Mainland, 407 S.W.3d 893, 898 (Tex. App.-Houston [14th
Dist.] 2013, no pet.). When reviewing a traditional summary
judgment, we take as true all evidence favorable to the
nonmoving party and indulge every reasonable inference in the
nonmoving party's favor. Cantey Hanger, LLP v.
Byrd, 467 S.W.3d 477');">467 S.W.3d 477, 481 (Tex. 2015).
as in this case, the parties file competing motions for
summary judgment, and the trial court grants one motion and
denies the other, this court may consider the propriety of
the denial as well as the grant." Lidawi v.
Progressive Cty. Mut. Ins. Co., 112 S.W.3d 725, 729
(Tex. App.-Houston [14th Dist.] 2003, no pet.). If the issue
raised is based on undisputed and unambiguous facts, then we
may determine the question presented as a matter of law.
Id. (citing Gramercy Ins. Co. v. MRD Invs.,
Inc., 47 S.W.3d 721, 724 (Tex. App.-Houston [14th Dist.]
2001, pet. denied)). We may then either affirm the judgment
or reverse and render the judgment the trial court should
have rendered, including one that denies both motions.
Id. If, however, resolution of the issues rests on
disputed facts, then summary judgment is inappropriate, and
we should reverse and remand for further proceedings.
as here, the trial court's order granting summary
judgment does not specify the grounds upon which it was
granted, we affirm the judgment if any of the theories
advanced in the motion is meritorious. Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989). In other
words, an appellant must show that each independent argument
advanced in the motion is insufficient to support the summary
judgment. Collins v. Allied Pharmacy Mgmt., Inc.,
871 S.W.2d 929, 932 (Tex. App.-Houston [14th Dist.] 1994, no
first issue, Sheller argues that the trial court erred in
granting CTS Defendants' motion for summary judgment
"when there were material issues of law and fact which
all favored . . . Sheller." Because the trial court did
not specify on which ground it granted CTS Defendants'
motion, we consider whether any ground they asserted supports
the summary judgment.
the grounds CTS Defendants advanced was attorney immunity.
Attorney immunity is an affirmative defense that protects
attorneys from liability to nonclients.Cantey
Hanger, 467 S.W.3d at 481 (citing Sacks v.
Zimmerman, 401 S.W.3d 336, 339- 40 (Tex. App.-Houston
[14th Dist.] 2013, pet. denied); Kruegel v. Murphy,
126 S.W. 343, 345 (Tex. Civ. App. 1910, writ ref'd)). The
purpose of the attorney-immunity defense is to ensure loyal,
faithful, and aggressive advocacy to clients. Id. To
be entitled to summary judgment, CTS Defendants must have
proven that there was no genuine issue of material fact as to
whether their conduct was protected by attorney immunity and
that they were entitled to judgment as a matter of law.
to Sheller, the Texas Supreme Court's decision in
Cantey Hanger v.Byrd does not ...