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Jones v. Sherry

Court of Appeals of Texas, Third District, Austin

June 28, 2019

David E. Jones, Appellant
Dr. Alissa Sherry; Alissa Sherry Consulting, PLLC; Legal Consensus, PLLC, Appellees


          Before Chief Justice Rose, Justices Kelly and Smith.


          Chari L. Kelly, Justice.

         Appellant David E. Jones appeals from the trial court's order dismissing his suit against Dr. Alissa Sherry; Alissa Sherry Consulting, PLLC; and Legal Consensus, PLLC (collectively, the "Sherry Defendants"). Because Jones's pleadings establish that his claims against the Sherry Defendants arise from actions taken by Dr. Sherry in her capacity as a court-appointed child-custody evaluator, Jones's claims are barred by derived judicial immunity. We will affirm the trial court's order of dismissal.


         Dr. Sherry is a licensed psychologist and the owner of Legal Consensus, PLLC, formerly known as Sherry Consulting, PLLC. In April 2014, Dr. Sherry was ordered by the District Court of Travis County, 250th Judicial District, to conduct a child-custody evaluation in Jones's divorce proceedings. See Tex. Fam. Code §§ 107.101-.115. In its "agreed order for custody evaluation" (or the "custody-evaluation order") the trial court ordered Dr. Sherry to conduct psychological evaluations of Jones and his then-wife, make recommendations to the court on issues of conservatorship, and deliver her findings and recommendations in a written report to the court. According to Jones, Dr. Sherry submitted her report, entitled "Forensic Custody Evaluation Family Law," on December 2, 2014, and testified about her conclusions and recommendations at the final hearing later that month.

         In December 2017, Jones sued the Sherry Defendants for a variety of claims stemming from Dr. Sherry's child-custody evaluation, including claims for malpractice, negligence, breach of fiduciary duty, and defamation. The Sherry Defendants answered the suit, asserting affirmative defenses and generally denying all of Jones's claims. In the same pleading, the Sherry Defendants also moved to dismiss Jones's claims pursuant to Rule 91a of the Texas Rules of Civil Procedure on the basis that all of Jones's claims are barred by derived judicial immunity. See Tex. R. Civ. P. 91a (dismissal of baseless causes of action). Alternatively, the Sherry Defendants moved to dismiss Jones's suit pursuant to Chapter 27 of the Texas Civil Practice and Remedies Code, also known as the Texas Citizens Participation Act (TCPA). See Tex. Civ. P. & Rem. Code § 27.002. After a hearing on the motions, the Court signed an order granting the Sherry Defendants' motions, under both Rule 91a and the TCP A, and dismissing all of Jones's claims with prejudice to refiling. Jones, representing himself pro se, then perfected this appeal.

         In what he identifies as sixteen issues on appeal, Jones asserts that the trial court erred in granting the Sherry Defendants' motions and dismissing his suit. We begin our review by addressing Jones's challenge to the trial court's decision to grant the Sherry Defendant's Rule 91a motion to dismiss.


         Rule 91a Motion to Dismiss

         Under Rule 91a, a party may move to dismiss a cause of action on the ground that it has no basis in law or fact. Tex.R.Civ.P. 91a. 1. Dismissal is appropriate "if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought. . . [or] no reasonable person could believe the facts pleaded." City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (quoting Tex.R.Civ.P. 91a. 1). In ruling on a Rule 91a motion, the trial court may not consider evidence and must base its ruling only on the pleading of the cause of action, together with any exhibits permitted under Rule 59. Tex.R.Civ.P. 91a.6; see id. R. 59 (permitting party to attach to pleading "notes, accounts, bonds, mortgages, records, and all other written instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense" and providing that such instruments are considered "part of the pleadings"). We review de novo a trial court's decision on a Rule 91a motion "because the availability of a remedy under the facts alleged is a question of law and the rule's factual-plausibility standard is akin to a legal-sufficiency review." Sanchez, 494 S.W.3d at 724. In conducting our review, we construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact. Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.- Austin 2016, pet. denied).

         Derived Judicial Immunity

         On appeal, Jones contends that the trial court erred in granting the Sherry Defendants' Rule 91a motion to dismiss because, according to Jones, Dr. Sherry and the other Sherry Defendants are not entitled to the protections of derived judicial immunity. When a person is entitled to derived judicial immunity, he or she receives the same absolute immunity from liability for acts performed within the scope of his or her jurisdiction as that of a judge. Dallas County v. Halsey, 87 S.W.3d 552, 554 (Tex. 2002) (concluding that court reporter was not entitled to derived judicial immunity); see Delcourt v. Silverman, 919 S.W.2d 777, 781 (Tex. App.-Houston [14th Dist] 1996, writ denied) (concluding that court-appointed psychiatrist was entitled to derived judicial immunity). Judicial immunity can attach to certain non-judges because the policy reasons for judicial immunity-the protection of individual judges and of the public's interest in an independent judiciary-are also implicated when a judge delegates his or her authority, appoints another person to perform services for the court, or allows another to otherwise serve as an officer of the court. Halsey, 87 S.W.3d at 554; B.W.D. v. Turnage, No. 05-13-01733-CV, 2015 Tex.App. LEXIS 1947, at *8 (Tex. App.-Dallas Mar. 2, 2015, pet. denied) (mem. op).

         In Texas, courts apply a "functional approach" to determine whether a person is entitled to derived judicial immunity. Halsey, 87 S.W.3d at 554 (discussing Delcourt, 919 S.W.2d at 782-83). This approach focuses on the nature of the function performed, not the identity of the actor, and considers whether the court officer's conduct is like that of the delegating or appointing judge. Id. at 555. Under this functional approach, courts must assess "whether the person seeking immunity is intimately associated with the judicial process" and whether "that person exercises discretionary judgment comparable to that of the judge." Id. at 554. When an individual acquires derived judicial immunity from a particular function, absolute immunity extends to "every action taken with ...

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