Affirmed in Part, Reversed in Part, and Remanded in Part and Opinion filed May
15, 2012.




                                         In The


                      Fourteenth Court of Appeals

                                  NO. 14-11-00053-CV



                          CAROLYN C. JAMES, Appellant,


                                            V.


               MICHAEL EASTON AND PETER J. RIGA, Appellees.


                        On Appeal from the 61st District Court
                                   Harris County
                          Trial Court Cause No. 2010-12915


                                      OPINION

       This is an appeal from a denial of a temporary injunction and a dismissal on
special exceptions. Appellant Carolyn C. James sued appellees Michael Easton and Peter
J. Riga for intentional infliction of emotional distress and tortious interference with a
contract. At the core of this case are inappropriate messages Easton sent to James and the
medical expert she retained in three unrelated cases. We affirm the trial court’s denial of
the application for temporary injunction, reverse the trial court’s dismissal of James’s
claims based on special exceptions, and remand for further proceedings.

                                               I

       This suit arose out of several different ongoing proceedings concerning James’s
mother, who suffers from dementia. Two cases are pending in probate court, and one case
is pending in the 61st District Court of Harris County. Easton has intervened in all three
cases. James brought this suit separately in response to Easton’s out-of-court behavior in
these other cases. The Honorable Al Bennett was the presiding judge in this case and also
presides over the other pending case in the 61st District Court.

       Following his interventions into the other cases, Easton began to directly contact
James and her medical expert, even though James was represented by counsel. Easton
represented himself in these proceedings, and though he is not an attorney, he often sent
written correspondence to James and her expert on Riga’s letterhead. Riga is an attorney,
as his letterhead makes clear. Riga personally appeared at a hearing for one of the
underlying cases but is neither a party nor a party’s attorney in any of those cases. 1

       Dr. George Glass is James’s medical expert in all three of the underlying cases,
and Easton first approached him after a deposition in one of those cases. Easton grabbed
Glass’s necktie and put his hand on Glass’s shoulder before asking the doctor to talk with
him privately. When Glass refused, Easton took out his cell phone and snapped a picture
of Glass. Shortly thereafter, Glass received a letter from Easton—on Riga’s letterhead—
asserting that Glass could be imprisoned for up to six months. Later communications to
Glass from Easton threatened $100,000 in sanctions and repeatedly referred to the doctor
as a “quack” and an “ass.” Glass testified that he felt harassed and threatened by Easton
as a result of these communications.




       1
          Riga does, however, share a fax number with Susan Norman, who is representing a party
adverse to James in at least one of the underlying cases.

                                              2
       Easton’s interactions with James were even more inappropriate. He sent an e-mail
message to James with the subject line “Coin Toss.” In its entirety, the body of the e-mail
read

       ............whats      the      most        you’ve        ever       lost     in      a     coin      toss?
       .......................................................................................Call it-- Friendo!

Attached to the e-mail was a picture of Javier Bardem’s character from the movie No
Country for Old Men. James had seen the movie and knew that Bardem’s character,
Anton Chigurh, was a murderer. In the movie, Chigurh would sometimes ask another
character, “What’s the most you’ve ever lost in a coin toss?” The other character’s
violent death, at Chigurh’s hand, usually followed the question. James testified she felt
threatened by the e-mail and “that [her] life would be on the line” if she continued to
pursue the three underlying cases.

       Less than a week later, Easton sent James another e-mail that included the
following:

       Attention, Probate Shoppers, the “blue light” special in Aisle 2 will end at
       midnight tomorrow, tick, tock, tick, tock. In the words of “Dirty Harry”
       Well, being that this is a Chapter 74 (Objection) Magnum, the world’s most
       powerful “hand gun” (assignment) It can “blow your head clean off”--
       you’ve got to ask yourself this question: “ do I feel lucky?”---- well, do ya
       punk?.. tick tock, tick tock.
James again felt threatened. She sued Easton and Riga, seeking an injunction. The case
was transferred to the 61st District Court, where one of the underlying cases was pending.
Easton and Riga filed special exceptions and moved to dismiss.

       The trial court heard James’s application for temporary injunction. James and
Glass testified about the communications they received from Easton and their reactions to
them. A second expert testified that Easton’s e-mails “raise[d] the specter of an offense in
Texas known as a ‘terroristic threat.’” At the close of James’s case in chief at the
injunction hearing, the trial court granted Riga’s “motion for directed verdict” and denied
James’s application for injunctive relief. James appealed this ruling. James subsequently

                                                             3
filed an amended petition alleging intentional infliction of emotional distress and tortious
interference with the Glass-James contract. Easton and Riga both filed special exceptions,
asserting that James’s petition fails to state any claim under Texas law because
complaints by one litigant about an opposing litigant’s conduct in a lawsuit must be
remedied in the lawsuit in which the conduct occurred and may not be the basis for
independent tort claims. The trial court granted the special exceptions and dismissed all
of James’s claims. This appeal followed.2

                                                  II

       James raises five issues on appeal: (1) it was error to grant the appellees’ special
exceptions; (2) the directed verdict in favor of Riga was impermissibly based solely on
special-exceptions evidence; (3) dismissal on special exceptions does not prevent a
plaintiff from re-filing, but the trial court’s order implies it was made with prejudice; (4)
in light of the outrageous nature of Easton’s behavior, the trial court erred in denying the
motion for temporary injunction; and (5) the trial court erred by failing to enforce the
anti-contact rule and the Texas Rules of Civil Procedure against the appellees.

                                                 A

       In her first issue, James attacks the dismissal on special exceptions. When, as in
the case under review, a trial court dismisses a case upon special exceptions for failure to
state a cause of action, we review that issue of law using a de novo standard of review.
Filipp v. Till, 230 S.W.3d 197, 203 (Tex. App.—Houston [14th Dist.] 2006, no pet.).
When reviewing a dismissal based upon special exceptions, we also must accept as true
all material factual allegations and all factual statements reasonably inferred from the
allegations set forth in the plaintiff’s pleadings. Id. If a pleading states a cause of action,
the trial court errs in dismissing based upon special exceptions. Id.



       2
          Upon final judgment below, this court dismissed as moot the separate appeal on the temporary
injunction. See James v. Riga, No. 14-10-00471, 2011 WL 303804 (Tex. App.—Houston [14th Dist.] Jan.
27, 2011, no pet.) (mem. op.).

                                                  4
        An attorney generally has immunity from claims by an opposing party based upon
conduct the attorney undertook in the representation of a client, but this immunity does
not apply to alleged torts based upon the attorney’s fraudulent or malicious conduct. See
Lackshin v. Spofford, No. 14-03-00977-CV, 2004 WL 1965636, at *3 (Tex. App.—
Houston [14th Dist.] Sept. 7, 2004, pet. denied) (mem. op.). The appellees did not assert
this attorney immunity in their special exceptions, nor did they argue that this immunity
should be expanded to apply to the claims involving pro se litigants or attorneys not
representing a party. The appellees did not assert immunity at all. Instead, the sole basis
for appellees’ special exceptions is their assertion that James’s petition fails to state any
claim under Texas law because complaints by one litigant about an opposing litigant’s
conduct in a lawsuit must be remedied in the lawsuit in which the conduct occurred and
may not be the basis for independent tort claims. If this assertion is incorrect, then the
trial court erred in granting the special exceptions.3

        The appellees have not cited, and research has not revealed, any case in which a
court held that all complaints by one litigant about an opposing litigant’s conduct in a
lawsuit must be remedied in the lawsuit in which the conduct occurred and may not be
the basis for independent tort claims. It cannot be said that, as a matter of law, one
litigant can never assert a tort claim against an opposing litigant based upon the opposing
litigant’s conduct in the litigation. See Hunt v. Baldwin, 68 S.W.3d 117, 130–33 (Tex.
App.—Houston [14th Dist.] 2001, no pet.) (analyzing the merits of wrongful-execution
and fraud claims asserted by judgment debtor against judgment creditors in lawsuit
separate from the underlying litigation). Nor do we believe that the ability of the trial
court in the underlying lawsuit to impose sanctions on litigants is a sufficient basis to

3
  Appellees argue that this court should summarily affirm the trial court’s special-exceptions ruling
because James has not attacked this assertion but has argued only that the appellees are not entitled to
immunity from suit, an argument that the appellees did not assert in their special exceptions. James has
assigned error as to the trial court’s granting of the special exceptions. Though in parts of her briefing
James incorrectly characterizes the appellees’ argument as being based upon immunity, liberally
construing her brief, we conclude that she has sufficiently argued that the ground asserted in the special
exceptions lacks merit.



                                                    5
support a rule disallowing all such claims. Indeed, if an attorney engages in fraudulent or
malicious conduct in the course of representing his client, an opposing party may assert
intentional tort claims against the attorney based upon this conduct.         See Poole v.
Houston & T.C. Ry., 58 Tex. 134, 137 (1882) (holding that attorneys acting on behalf of
their clients are not shielded from liability for their fraudulent conduct because fraudulent
acts are “entirely foreign to the duties of an attorney”); Lackshin, 2004 WL 1965636, at
*3 (noting that, though attorneys owe no general negligence duty to opposing parties,
they are still subject to liability to nonclients, including opposing parties, based on their
fraudulent or malicious conduct, even if the attorneys’ conduct was in the course of
representing their client); Toles v. Toles, 113 S.W.3d 899, 911B12 (Tex. App.CDallas
2003, no pet.) (holding that attorney who represented former husband in divorce action
was not immune from claim of former wife alleging attorney aided and abetted a breach
of fiduciary duty by the receiver in the underlying litigation); Querner v. Rindfuss, 966
S.W.2d 661, 666–70 (Tex. App.CSan Antonio 1998, pet. denied) (finding attorney in
probate litigation was not immune from liability for alleged conspiracy to engage in
fraud); Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.CHouston
[1st Dist.] 1985, no writ) (holding that attorney may be liable to opposing party in a
transaction for conspiracy to defraud the opposing party because attorney immunity does
not apply to attorney’s allegedly fraudulent or malicious conduct). Likewise, if Easton
engaged in fraudulent or malicious conduct in the underlying litigation that would
support liability for an intentional tort, James should not be barred from asserting this
claim because Easton’s conduct happened to occur in a litigation context. See Hunt, 68
S.W.3d at 130–33. If Riga, neither a party nor an attorney representing a party in the
underlying litigation, engaged in fraudulent or malicious conduct in the underlying
litigation that would support liability for an intentional tort, James should be allowed to
assert intentional tort claims against Riga based upon this conduct. James has asserted
claims for tortious interference with contract and intentional infliction of emotional
distress, which are intentional torts.


                                             6
          The appellees rely upon Toles v. Toles to support their contention that they were
entitled to dismissal as a matter of law. See 113 S.W.3d at 909–11, 918. Toles arose out
of a bitter divorce, and involved a suit by a former wife against her former husband and
the lawyers who represented him throughout the divorce. Id. at 905. The Toles court
discussed the general rule of attorney immunity from claims by an opposing party based
upon conduct the attorney undertook in the representation of a client. See id. at 909–11.
In the course of this discussion, the court noted that an attorney who commits misconduct
in litigation is subject to sanction by the trial court in that litigation. See id. at 911. The
Toles court never held that the availability of sanctions means that attorney misconduct
during litigation can never be the basis of independent tort claims. See id. at 909–13. On
the contrary, the Toles court held that the ex-husband’s attorneys were potentially liable
for aiding and abetting a breach of fiduciary duty, even though their allegedly actionable
conduct was undertaken during the representation of an opposing party in the underlying
litigation. See id. at 912.
          In another part of the Toles opinion, the court held that the ex-husband, as an
opposing litigant, did not owe a negligence duty to his ex-wife.4 See id. at 917–18. In
discussing the reasons for this ruling, the Toles discussed the ability of the trial court in
the underlying litigation to sanction parties for improper litigation conduct. See id. The
appellees in Toles did not advance the legal theory advanced by the appellees in the case
under review. See id. at 909–11, 918. The Toles court neither held nor stated that all
complaints by one litigant about an opposing litigant’s conduct in a lawsuit must be
remedied in the lawsuit in which the conduct occurred and may not be the basis for
independent tort claims. See id. Indeed, the Toles court addressed the merits of the ex-
wife’s claim against her ex-husband for intentional infliction of emotional distress based
upon conduct in the underlying litigation. See id. at 920–21.




4
    James is not asserting negligence claims.

                                                7
          We conclude that the sole basis for the appellees’ special exceptions lacks merit,
and therefore, the trial court erred in granting these special exceptions.5 Accordingly we
sustain the first issue and reverse the trial court’s dismissal of James’s claims on special
exceptions.6
                                                        B

          In her second issue, James complains that the trial court erred by directing a
verdict in favor of Riga. Though the trial court stated that it granted Riga’s “motion for
directed verdict” at the close of James’s case-in-chief at the temporary injunction hearing,
we conclude that the substance of this ruling was that the trial court denied the
application for temporary injunction after James presented her evidence and without
hearing any evidence from Riga. The trial court was not required to hear evidence from
Riga before denying James’s application for injunctive relief. Accordingly, we overrule
the second issue.

                                                        C

          In her fourth and fifth issues, James complains that it was error for the trial court
to deny her application for a temporary injunction against Easton. Here, we disagree.

          To obtain injunctive relief, a party must show (1) a harmful act, (2) imminent,
irreparable harm, and (3) no adequate remedy at law. Kaufmann v. Morales, 93 S.W.3d
650, 653 (Tex. App.—Houston [14th Dist.] 2002, no pet.) A trial judge has broad
discretion in deciding whether to grant or deny temporary injunctions, and
the standard of review is a clear abuse of discretion. Id. The trial court abuses its
discretion when the law is misapplied to established facts, or when the evidence does not
reasonably support the conclusion that the applicant has a probable right of recovery. Id.
In reviewing the trial court’s exercise of discretion, the appellate court must draw all
legitimate inferences from the evidence in the light most favorable to the trial court’s

5
  In so ruling, we do not address the merits of James’s claims or any argument that the appellees may
assert against James’s claims other than the ground in the special exceptions.
6
    Because we sustain the first issue, were need not address the third issue.

                                                        8
decision. EMS USA, Inc. v. Shary, 309 S.W.3d 653, 657 (Tex. App.—Houston [14th
Dist.] 2010, no pet.). When no findings of fact or conclusions of law are filed, the trial
court’s determination of whether to grant or deny a temporary injunction must be upheld
on any legal theory supported by the record. Id.

        Based on the evidence presented in this case, James established that Easton had
previously harassed her and Dr. Glass, but she did no more than establish a theoretical
possibility Easton would continue those antics in the future. Viewing the evidence in the
light most favorable to the trial court’s order, we hold that the trial court reasonably could
have concluded that James failed to establish that she faced probable, imminent, and
irreparable injury in the absence of a temporary injunction. See EMSL Analytical, Inc. v.
Younker, 154 S.W.3d 693, 697–98 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
Consequently, the trial court did not abuse its discretion in denying the application for
temporary injunction. We overrule James’s fourth and fifth issues.

                                                  ***

        For the foregoing reasons, we affirm the trial court’s denial of the application for
temporary injunction, reverse the trial court’s dismissing James’s claims on special
exceptions, and remand for further proceedings consistent with this opinion.7




                                                 /s/       Jeffrey V. Brown
                                                           Justice


Panel consists of Justices Frost, Brown, and Jamison.




7
  Appellees have filed a motion to strike James’s reply brief insofar as it pertains to matters outside the
record. While we do not base our analysis or decision on James’s references to such matters, we need not
and do not strike these portions of the reply brief. The motion is denied.



                                                       9
