



Mendoza v. Fleming, et al.







NUMBER 13-99-340-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI
____________________________________________________________________

ROBERT H. MENDOZA,       Appellant,


v.



TOM FLEMING, INDIVIDUALLY, AND FLEMING & OLVERA,      Appellees.
____________________________________________________________________


On appeal from the 197th District Court of Cameron County, Texas.
____________________________________________________________________


O P I N I O N
Before Justices Hinojosa, Rodriguez, and Chavez (1)
Opinion by Justice Hinojosa


 Appellant, Robert H. Mendoza, appeals from the trial court's order granting a motion for summary judgment filed by
appellees, Tom Fleming, individually, and Fleming & Olvera.  In five issues, appellant complains: (1) the trial judge did
not have authority to preside over this case "because there was no order assigning [him] to preside in the 197th District
Court"; (2) the trial judge erred in granting the motion because appellees did not prove they were entitled to summary
judgment as a matter of law; and (3) the trial judge erred in granting sanctions against appellant because (a) there is no
evidence appellant's pleadings were brought in bad faith or for the purpose of harassment, (b) there is no evidence
appellant's pleadings were groundless, and (c) the judge "failed to enumerate the particulars of the good cause in the
sanctions order."  We reverse and remand.
A.  Background and Procedural History

 On June 7, 1995, Luke Fruia Investments, Inc. ("LFI") obtained an agreed judgment against appellant in Cause No.
96-02-763-C in the 197th District Court of Cameron County.  The judgment became final and was not paid.  LFI, through
its attorney, Tom Fleming, and his law firm, Fleming, Hewitt & Olvera, obtained a writ of garnishment from the 197th
District Court, attaching all of appellant's assets held by the International Bank of Commerce ("IBC").  On March 29, 1998,
the presiding judge of the 197th District Court signed a judgment disbursing all seized accounts of appellant.  On appeal,
this Court reversed that judgment and remanded the case to the 197th District Court for a new trial because appellant had
not been properly served with notice of the writ of garnishment.  See Mendoza v. Luke Fruia Investments, Inc., 962 S.W.2d
650, 652 (Tex. App.--Corpus Christi 1998, no writ).
 After we remanded the garnishment action to the 197th District Court, appellant filed Cause No. 98-03-885-A in the 107th
District Court of Cameron County against: (1) LFI; (2) Luke Fruia, Individually; (3) Tom Fleming, Individually; (4)
Fleming, Hewitt & Olvera; (2) and (5) IBC, alleging causes of action for wrongful garnishment, conversion, civil conspiracy,
intentional infliction of emotional distress, and abuse of process. Fleming & Olvera filed a counter-claim seeking sanctions
against appellant.  See Tex. R. Civ. P. 13.
 On April 20, 1998, Judge Darrell Hester, Presiding Judge of the Fifth Administrative Judicial District, assigned Senior
Judge Robert Barnes to the 107th District Court to preside over Cause No. 98-03-885-A.  Upon motion by several
defendants, Judge Barnes transferred Cause No. 98-03-885-A to the 197th District Court and consolidated it with Cause
No. 96-02-763-C (the remanded garnishment case) pursuant to Rule 1.1 of the Cameron County Civil Court Rules.
 Appellees filed a motion for summary judgment pursuant to Texas Rule of Civil Procedure 166a.  Judge Barnes granted
the motion and ordered that appellant take nothing against appellees.  He later heard appellees' counterclaim and ordered
that Fleming & Olvera recover rule 13 sanctions against appellant for costs and attorney's fees.  On May 3, 1999, Judge
Barnes granted appellant's motion to non-suit LFI and Luke Fruia and severed appellant's causes of action against the
remaining defendants.


B.  Trial Judge's Authority to Preside

 In his first issue, appellant complains that Judge Barnes did not have authority to preside over Cause No. 98-03-885-A
after it was transferred to the 197th District Court "because there was no order assigning Judge Barnes to preside in the
197th District Court."  Judge Hester appointed Judge Barnes with the following order:
 Pursuant to Section 74.056, Texas Government Code, I hereby assign the


Honorable Robert Barnes

Senior Judge of the 275th and 93rd District Courts

To the 107th District Court of Cameron County, Texas



 This assignment is for the period beginning as determined by the assigned judge and continuing thereafter so long as may
be necessary for the assigned judge to complete trial of any cause begun during such period, and to pass on motions for new
trial and all other matters growing out of any cause heard by the assigned judge during such period.


CONDITION(S) OF ASSIGNMENT (IF ANY):

 This assignment shall be for purposes of presiding in Cause No. 98-03-885-A styled: Robert Mendoza vs Tom Fleming, et
al, and such other matters as may come on for hearing.


* * * * *



Appellant argues that once Judge Barnes transferred Cause No. 98-03-885-A to the 197th District Court, he no longer had
authority to hear it because there was no order in place assigning him to preside in the 197th District Court.
 Appellant overlooks several important provisions of the Texas Government Code relating to the authorities and powers of
judges.  A judge assigned under the provisions of the Texas Court Administration Act has all the powers of the judge of the
court to which he is assigned.  Tex. Gov't Code Ann. § 74.059(a) (Vernon 1998);Herrod v. State, 650 S.W.2d 814, 817
(Tex. Crim. App. 1983)(op. on reh'g);Alexander v. State, 903 S.W.2d 881, 883 (Tex. App.--Fort Worth 1995, no pet.).
Furthermore, 
In any county in which there are two or more district courts, the judges of those courts, may, in their discretion, either in
term time or vacation, on motion of any party or on agreement of the parties, or on their own motion, transfer any civil or
criminal case or proceeding on their dockets to the docket of one of those other district courts.  The judges of those courts
may, in their discretion, exchange benches or districts from time to time.   


Tex. Gov't Code Ann. § 24.303(a) (Vernon 1988). This provision is derived from the Texas Constitution, which provides
that "District Judges may exchange districts, or hold courts for each other when they may deem it expedient, and shall do so
when required by law."  Tex. Const. art. V, § 11.  These statutes and rules generally rely on the principle of judicial
restraint to prevent district courts within the same county from fighting one another for jurisdiction over a case.  Excel
Corp. v. Valdez, 921 S.W.2d 444, 448 (Tex. App.--Corpus Christi 1996, orig. proceeding [leave granted, mand. denied]);
R.J. Gallagher Co. v. White, 709 S.W.2d 379, 381 (Tex. App.--Houston [14th Dist.] 1986, orig. proceeding). The trial court
has discretion to decide when to transfer a case to another district, and a litigant does not have a protected, proprietary
interest in having his case heard by a particular judge or in a particular court.  Excel Corp., 921 S.W.2d at 447; European
Crossroads Shopping Ctr., Ltd. v. Criswell, 910 S.W.2d 45, 51 (Tex. App.--Dallas 1995, writ denied).
 Texas courts have interpreted these provisions as allowing a judge properly assigned to one district court to preside in
other district courts of the same county. See Peach v. State, 498 S.W.2d 192, 194 (Tex. Crim. App. 1973), overruled on
other grounds, Jackson v. State, 548 S.W.2d 685 (Tex. Crim. App. 1977); Pendleton v. State, 434 S.W.2d 694, 697 (Tex.
Crim. App. 1968); Ex parte Dharmagunaratne, 950 S.W.2d 140, 142 (Tex. App.--Fort Worth 1997); Tart v. State, 642
S.W.2d 244, 246 (Tex. App.--Houston [14th Dist.]1982, no pet.).  Furthermore, a judge sitting by assignment may preside
over a court regardless of whether the regular district judge of that court was present and trying another case at the same
time.  Hughes v. State, 897 S.W.2d 285, 306 (Tex. Crim. App. 1994); Zamora v. State, 508 S.W.2d 819, 823 (Tex. Crim.
App. 1974); Dharmagunaratne, 950 S.W.2d at 142.
 The order appointing Judge Barnes to the 107th District Court clearly states that he was to hear Cause No. 98-03-885-A
"and such other matters as may come on for hearing."  The standard of review for a judge's decision to transfer a case,
exchange benches, or hold court for each other is abuse of discretion.  Excel Corp., 921 S.W.2d at 448; European
Crossroads, 910 S.W.2d at 51. We find no abuse of discretion in Judge Barnes' decision to transfer Cause No. 98-03-885-A
to the 197th District Court.
 We hold Judge Barnes had authority to hear this case after it was transferred to the 197th District Court.  Appellant's first
issue is overruled.
C.  Motion for Summary Judgment

 In his second issue, appellant contends that Judge Barnes erred in granting the motion for summary judgment because
appellees did not prove they were entitled to summary judgment as a matter of law.
 When reviewing a traditional summary judgment brought under rule 166a, an appellate court must follow these
well-established rules:
(1) the movant has the burden of showing that there is no genuine issue of material fact and that it is entitled to judgment as
a matter of law;
 
(2) in deciding whether there is a disputed material fact issue precluding summary judgment, evidence favorable to the
nonmovant will be taken as true; and
 
(3) every reasonable inference must be indulged in favor of the nonmovant and any doubts must be resolved in favor of the nonmovant.


See American Tobacco Co., Inc. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Nixon v. Mr. Property Management Co.,
690 S.W.2d 546, 548-49 (Tex. 1985); see alsoTex. R. Civ. P. 166a.  A defendant's motion for summary judgment should be
granted if he disproves at least one essential element of each of the plaintiff's causes of action, or if he establishes all the
elements of an affirmative defense as a matter of law. Grinnell, 951 S.W.2d at 425; Science Spectrum, Inc. v. Martinez, 941
S.W.2d 910, 911 (Tex. 1997).  When a defendant moves for summary judgment on an affirmative defense, he must prove
each element of his defense as a matter of law, leaving no issues of material fact.  Ryland Group, Inc. v. Hood, 924 S.W.2d
120, 121 (Tex. 1996).  The plaintiff, as the non-movant, has no burden of proof unless the defendant proves conclusively
all elements of its affirmative defense.  Id.
 We review the evidence in the light most favorable to the respondent against whom the summary judgment was rendered,
disregarding all contrary evidence and inferences. Merrell Dow Pharm., Inc. v. Havner, 953 S.W.2d 706, 711 (Tex.
1997);Zapata, 997 S.W.2d at 747; Connell v. Connell, 889 S.W.2d 534, 537 (Tex. App.--San Antonio 1994, writ denied). 
Evidence favoring the movant's position will not be considered unless it is uncontradicted.  Great Am. Reserve Ins. Co. v.
San Antonio Plumbing Supply Co., 391 S.W.2d 41, 47  (Tex. 1965).  If a summary judgment is granted generally, without
specifying the reason, it will be upheld if any ground in the motion for summary judgment can be sustained.  Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989);  Weakly v. East, 900 S.W.2d 755, 758 (Tex. App.--Corpus Christi 1995, writ
denied); Benavides v. Moore, 848 S.W.2d 190, 192 (Tex. App.--Corpus Christi 1992, writ denied).
 In his original petition, appellant alleged that appellees and the other defendants wrongfully garnished and converted the
funds in his political campaign fund account, which he claimed were exempt from any collection for personal debt.  He
further alleged that these actions were malicious and intended to injure appellant's political campaign for judge of the 138th
District Court of Cameron County.  He also alleged causes of action for civil conspiracy, intentional infliction of emotional
distress, and abuse of process.
 After reciting the procedural history of the case, appellees' motion for summary judgment stated:
 The causes of action of Defendant Mendoza against Third-Party Defendants are based upon the theories of wrongful
garnishment and conversion.  The conversion is alleged to have occurred as a result of the alleged wrongful garnishment. 
Defendant Mendoza does not allege any actions of Third-Party Defendants taken outside the suit for garnishment after its
date of filing.  Defendant Mendoza does not allege that Third-Party Defendants were contractually obligated to him, owed
to him any duty arising from representation of him in the garnishment action, nor does Defendant Mendoza allege that
Third-Party Defendants rendered services to him.  All causes of action alleged by Defendant Mendoza against Third-Party
Defendants arise from Third-Party Defendants' representation of the Plaintiff in garnishment, LUKE FRUIA
INVESTMENTS, INC. (Hereinafter called "Fruia").


V.



 Third Party Defendants were obligated to assert the rights of their client Fruia in the garnishment action and were not
subject to liability to Defendant Mendoza for those actions.  The relationship of attorney-client existed only as between
Fruia and Third-Party Defendants.  No obligation or duty was owed Defendant Mendoza by the Third-Party Defendants.


 In his response to the motion for summary judgment, appellant argued that appellees' motion did not address all the
elements of each of his causes of action.
D.  Attorney Immunity

 Appellees asserted the affirmative defense of attorney immunity.  A lawyer is generally authorized to practice law to
perform his duties as a lawyer without making himself liable for damages.  Bradt v. West, 892 S.W.2d 56, 72 (Tex.
App.--Houston [1st Dist.] 1994, writ denied).  A contrary policy "would dilute the vigor with which Texas attorneys
represent their clients."  Id. at 71-72.  However, a lawyer is immune only for actions which are "within the bounds of the
law."  Renfroe v. Jones & Assoc., 947 S.W.2d 282, 288 (Tex. App.--Fort Worth 1997, writ denied); Bradt, 892 S.W.2d at
71.  It has long been held that where a lawyer acting for his client participates in wrongful activities, his action in doing so
is "foreign to the duties of an attorney." Poole v. Houston & T. C. Ry., 58 Tex. 134, 137 (1882) (holding fraudulent conduct
by attorney was not within bounds of the law).  An attorney is liable if he knowingly commits a fraudulent act that injures a
third person, or if he knowingly enters into a conspiracy to defraud a third person.  Likover v. Sunflower Terrace II, Ltd.,
696 S.W.2d 468, 472 (Tex. App.--Houston [1st Dist.] 1985, no writ).  Attorney immunity
focuses on the type of conduct in which the attorney engages rather than on whether the conduct was meritorious in the
context of the underlying lawsuit . . . [and] whether the attorney's conduct was part of discharging his duties in representing
his client.  If the conduct is within this context, it is not actionable even if it is meritless.


Renfroe, 947 S.W.2d at 288.
 Appellees cite the Renfroe case as supporting authority.  Id. at 285.  In that case, a creditor obtained a judgment against
Renfroe.  Id. at 286.  Three days later, the creditor, through the actions of its attorneys, obtained a writ of garnishment
against Renfroe's assets.  Id.  The writ was ultimately dissolved, and Renfroe filed a wrongful garnishment action against
the creditor and its attorneys.  Id.  The attorneys successfully moved for summary judgment based on attorney immunity. 
Id.  The Fort Worth Court of Appeals affirmed the summary judgment on that basis.  Id. at 288.
 We find the instant case distinguishable from Renfroe.  In Renfroe, the plaintiff did not allege that the attorneys had a
wrongful or malicious motive.  In this case, appellant asserts that appellees filed the garnishment procedure, not merely to
collect the debt appellant owed their client, but to wrongfully interfere with appellant's judicial campaign.  Accordingly, we
conclude that Renfroe is not dispositive of appellant's causes of action as a matter of law.
 In order to be entitled to summary judgment, appellees had the burden of proving as a matter of law that their actions were
within the bounds of the law. Appellees' summary judgment evidence consisted of: (1) the judgment from this Court
reversing and remanding the garnishment action; (2) a copy of the opinion issued by this Court in connection with that
judgment; and (3) an affidavit from Fleming stating (a) that at all relevant times his law firm, Fleming & Olvera,
represented LFI, (b) that he acted as lead counsel, (c) that neither appellee represented appellant or had any contractual
obligation to him, and (d) that appellees undertook to represent LFI "zealously within the bounds of law as required of an
attorney in this State."
 The opinion of this Court, reversing the garnishment action, states:
[I]t is undisputed [LFI] did not comply with the rule 663a notice provision.  Because [LFI] failed to give [appellant] notice
of the writ of garnishment as required by the rules, we hold the trial court erred in granting the writ.


Mendoza, 962 S.W.2d at 652.  Appellees admit they were at all relevant times counsel for LFI.
 Appellant filed an affidavit in support of his response to appellees' motion.  The affidavit states that appellees garnished
the Robert H. Mendoza Political Campaign Funds Account at IBC "at a time that was crucial and important to [appellant's]
candidacy in that [the garnishment] was done ten (10) days before the primary election of March 10, 1995 . . . [and that
appellees'] actions . . . [were], in reality, a subterfuge to injure [appellant's] candidacy for the 138th Judicial District
Judgeship."
  After accepting all evidence favorable to appellant as true, indulging appellant with every reasonable inference, and
resolving any doubt in appellant's favor, we hold that appellees failed to establish the affirmative defense of attorney
immunity as a matter of law.  Because a material fact issue exists concerning whether appellees' actions in the garnishment
case were within the bounds of the law, we hold the trial court erred in granting appellees' motion for summary judgment. 
Appellant's second issue is sustained.
E.  Sanctions Order

 In his third issue, appellant contends Judge Barnes erred in granting sanctions against him because there is no evidence his
pleadings were brought in bad faith or for the purpose of harassment.  The sanctions order was based on the finding by
Judge Barnes that:
the legal position asserted by Robert H. Mendoza against Fleming & Olvera, P.C. is not substantially justified and not
warranted by a good faith argument for the extension, modification or reversal of existing law and that the causes of action
brought by Robert H. Mendoza against Fleming & Olvera, P.C. were brought in bad faith for the purposes of harassing
Fleming & Olvera, P.C.


 We have held that:  (1) existing case law is not dispositive of appellant's causes of action as a matter of law; (2) appellees
failed to establish as a matter of law that they are entitled to assert the affirmative defense of attorney immunity; and (3) the
summary judgment in appellees' favor was improper.  Accordingly, we sustain appellant's third issue.  Because we have
sustained appellant's third issue, it is not necessary to address appellant's fourth and fifth issues.  Tex. R. App. P. 47.1.
 We reverse the trial court's orders granting appellees' motion for summary judgment and granting sanctions against
appellant.  We remand the case to the trial court for further proceedings.


FEDERICO G. HINOJOSA
Justice


Publish.  Tex. R. App. P. 47.3.


Opinion delivered and filed this
the 1st day of March, 2001.
1. Retired Justice Melchor Chavez, assigned to this Court by the Chief Justice of the Texas Supreme Court pursuant to Tex.
Gov't Code Ann. § 74.003 (Vernon 1998).
2. The law firm of Fleming, Hewitt & Olvera later became Fleming & Olvera.
