Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bethel v. Quilling

Court of Appeals of Texas, Fifth District, Dallas

May 30, 2018

CHERYLN BETHEL, INDIVIDUALLY AND AS THE REPRESENTATIVE OF THE ESTATE OF RONALD J. BETHEL, DECEASED, Appellant
v.
QUILLING, SELANDER, LOWNDS, WINSLETT & MOSER, P.C., AND JAMES H. MOODY, III, Appellees

          On Appeal from the 116th Judicial District Court Dallas County, Texas Trial Court Cause No. DC-17-03487

          Before Justices Francis, Fillmore, and Whitehill

          MEMORANDUM OPINION

          MOLLY FRANCIS JUSTICE

         Cheryln 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.

         Bethel's 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.

          Bethel 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.

         Appellees 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.

         The 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.

         Under 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).

         In her 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.

         Initially, 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.

         But even assuming this issue is properly before us, [1] 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.

         First, 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 immunity. Id.

         Second, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.