Court of Appeals of Texas, Fifth District, Dallas
CHERYLN BETHEL, INDIVIDUALLY AND AS THE REPRESENTATIVE OF THE ESTATE OF RONALD J. BETHEL, DECEASED, Appellant
QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., AND JAMES H. MOODY, III, Appellees
Appeal from the 116th Judicial District Court Dallas County,
Texas Trial Court Cause No. DC-17-03487
Justices Francis, Fillmore, and Whitehill
Bethel, individually and as the representative of the Estate
of Ronald J. Bethel, sued opposing counsel for conduct
involving an expert inspection of a trailer brake assembly
that is the focus of a separate wrongful death action.
Appellees Quilling, Selander, Lownds, Winslett & Moser,
P.C., and James H. Moody, III, filed a motion to dismiss
under Texas Rule of Civil Procedure 91a, asserting the
affirmative defense of attorney immunity. The trial court
granted the motion, dismissed Bethel's suit, and awarded
attorney's fees to appellees. In two issues, Bethel
challenges the ruling on appeal. We affirm.
petition in this suit alleged the following: Bethel's
husband, Ron, died following an accident that Bethel contends
was caused by defective brakes in the trailer he was towing.
sued the manufacturer of the trailer, and appellees represent
the manufacturer in the wrongful death suit. According to
Bethel, during the course of that litigation, appellees or
their experts, with appellees' "knowledge and at
their direction and supervision, " disassembled the
brakes and destroyed their condition. Bethel filed this
lawsuit against appellees and their experts, alleging fraud,
tortious interference with a contract, spoliation of
evidence, "conspiracy to deny [Bethel] the pursuit of
justice, " trespass to chattel, conversion, negligence,
and gross negligence. She sought damages for the destruction
of the evidence.
filed a motion to dismiss the lawsuit, arguing there was no
basis in law or fact because the claims were barred by
attorney immunity. Bethel responded to the motion, arguing
appellees' conduct constituted criminal destruction of
property, and Texas law is unresolved as to whether the
attorney immunity doctrine applies to criminal conduct. In
addition, Bethel amended her petition to add nine paragraphs
addressing whether the attorney immunity doctrine applied.
trial court granted the motion, dismissed Bethel's claims
with prejudice, and awarded appellees $7, 480 in
attorney's fees as well as contingent appellate
attorney's fees. After Bethel nonsuited her claims
against the engineers and their firms, she appealed the trial
court's order dismissing her claims against appellees.
rule 91a, a party may move to dismiss a cause of action on
the grounds it has no basis in law or fact. Tex.R.Civ.P.
91a.1. "A cause of action has no basis in law if the
allegations, taken as true, together with the inferences
reasonably drawn from them, do not entitle the claimant to
the relief sought." Id. In ruling on a 91a
motion, the trial court may not consider evidence and must
decide the motion "solely on the pleading of the cause
of action, together with any pleading exhibits permitted by
Rule 59." Tex.R.Civ.P. 91a.6; Highland Capital
Mgmt., LP v. Looper Reed & McGraw, P.C., No.
05-15-00055-CV, 2016 WL 164528, at *4 (Tex. App.-Dallas Jan.
14, 2016, pet. denied) (mem. op.). Whether a cause of action
has any basis in law is a legal question we review de novo.
See City of Dallas v. Sanchez, 494 S.W.3d 722, 724
(Tex. 2016) (per curiam). We base our review on the
allegations in the live petition and any attachments, and we
accept as true the factual allegations. Wooley v.
Schaffer, 447 S.W.3d 71, 76 (Tex. App.-Houston [14th]
2014, pet. denied).
first issue, Bethel asserts the plain language of rule 91a
limits the scope of a court's review to the
plaintiff's pleading. Because an affirmative defense is
not part of a plaintiff's pleading, she argues, it cannot
serve as a basis for dismissal. Consequently, she concludes,
the trial court erred by granting appellees' motion on
the basis of the affirmative defense of attorney immunity.
we note that Bethel did not present this particular issue to
the trial court in her response to the motion to dismiss;
rather, her response argued only that appellees' conduct
constituted a crime for which attorney immunity should not
apply. Preservation of error reflects important prudential
considerations recognizing that the judicial process benefits
greatly when trial courts have the opportunity to first
consider and rule on error. Burbage v. Burbage, 447
S.W.3d 249, 258 (Tex. 2014). Affording courts this
opportunity conserves judicial resources and promotes
fairness by ensuring that a party does not neglect a
complaint at trial and raise it for the first time on appeal.
Id. Because Bethel did not present this issue to the
trial court below, we conclude it is waived.
even assuming this issue is properly before us,
Bethel acknowledges this Court, as well as others, have
upheld rule 91a dismissals on the basis of affirmative
defenses. See Highland Capital, 2016 WL 164528, at
*4-6 (attorney immunity); Galan Family Tr. v. State,
No. 03-15-00816-CV, 2017 WL 744250, at *3 (Tex. App.-Austin
Feb. 24, 2017, pet. denied) (mem. op.) (statute of
limitations); Guzder v. Haynes & Boone, LLP, No.
01-13-00985-CV, 2015 WL 3423731, at *7 (Tex. App.-Houston
[1st Dist.] May 28, 2015, no pet.) (mem. op.)
(attorney immunity); GoDaddy.com, LLC v. Toups, 429
S.W.3d 752, 754-55 (Tex. App.-Beaumont 2014, pet. denied)
(immunity from suit under the Communications Decency Act).
Nevertheless, she argues these cases apply a "mistaken
interpretation" of the rule and urges us to follow
Bedford Internet Office Space, LLC v. Texas Insurance
Group, Inc., 537 S.W.3d 717 (Tex. App.-Fort Worth 2017,
pet. filed). There, the Fort Worth court concluded the plain
language of the rule required trial courts to "wear
blinders to any pleadings except 'the pleading of the
cause of action'" and determined the court erred by
dismissing claims on the basis of the statute of limitations,
which would require the court to look beyond the
plaintiff's pleadings and review the defendant's
pleadings. 537 S.W.3d at 720. We decline Bethel's
invitation for two reasons.
as stated above, this Court previously applied rule 91a to
the affirmative defense of attorney immunity. See
Highland Capital, 2016 WL 164528, at *4-6. In
Highland Capital, we considered the plaintiff's
pleadings and concluded that, meritorious or not, the
type of conduct alleged fell squarely within the
scope of the law firm's representation of its client.
2016 WL 164528, at *4. We therefore concluded the trial court
did not err in granting the law firm's rule 91a motion to
dismiss the non-client's claims for theft, breach of the
duty of confidentiality, conversion, tortious interference
with contract, and civil conspiracy to commit theft,
extortion, slander, and disparagement based on attorney
the rationale underpinning Bethel's argument and the
Bedford Internet case is that rule 91a limits a
court's consideration to the plaintiff's pleading of
the cause of action. Even if we were to assume the
correctness of this argument, Bethel's live pleading
included nine paragraphs on why attorney immunity does not
shield appellees from her suit. In particular, she alleged
she owned the trailer and its component parts; appellees knew
she owned them and that they were critical to her claim
against the manufacturer; appellees did not obtain her
consent to conduct destructive testing; she did not consent
to such testing; and appellees "intentionally and
knowingly directed the destructive disassembly, testing, and
examination of the trailer brakes." She alleged
appellees were "seasoned veterans" who were
familiar with the standards governing forensic engineering
and product liability litigation and were aware "with
reasonable certainty" that the disassembly, testing, and
examination of the trailer brakes would damage or destroy the
brakes. Finally, Bethel alleged appellees' acts and
omissions constituted criminal tampering with evidence, given
they were aware she had filed a civil lawsuit against the
trailer's manufacturer and they altered or destroyed the
brakes with the intent to impair ...