                   NUMBER 13-12-00048-CV

                   COURT OF APPEALS

           THIRTEENTH DISTRICT OF TEXAS

             CORPUS CHRISTI – EDINBURG

RONALD ROGERS,
INDIVIDUALLY AND
AS EXECUTOR OF
THE ESTATE OF
LOUIS ROGERS,                                          Appellant,

                              v.


TED L. WALKER,                                         Appellee.


             On appeal from the 1st District Court
                  of Jasper County, Texas.


                 MEMORANDUM OPINION
          Before Justices Garza, Perkes and Longoria
          Memorandum Opinion by Justice Longoria
       By five issues, appellant, Ronald Rogers, individually and as executor of the

estate of Louise Rogers, appeals a final summary judgment entered in favor of

appellee, Ted L. Walker. We affirm in part and reverse in part.

                                         I. BACKGROUND1

       Ted L. Walker and his father, Ted G. Walker, are both lawyers. In October 1996,

Ted G. Walker prepared a will for Louise Rogers.2 In her will, Louise Rogers named

appellant, her stepson, as the executor of her estate. Following her death in 2004,

appellant filed his application for probate of will and issuance of letters testamentary.

Subsequently, Gayle Creel, Louise Rogers’ natural child, retained Ted L. Walker to file

(1) an opposition to appointment of appellant as executor, (2) application for

appointment of dependent administrator, and (3) application for letters of administration

with will annexed. After a hearing, the trial court issued an order appointing Creel to be

the executor of Louise Rogers’ estate.

       Thereafter, appellant filed an appeal with the Beaumont Court of Appeals. While

the appeal was pending, Ted L. Walker continued representing Creel, who continued

acting as the executor of Louise Rogers’ estate. On June 15, 2006, the Beaumont

Court of Appeals issued a memorandum opinion, holding that “the trial court abused its

discretion by denying [appellant’s] application for probate of the will and issuance of

letters testamentary.” See Rogers v. Creel, No. 09-06-012-CV, 2006 Tex. App. LEXIS

5415, at *5 (Tex. App.—Beaumont June 15, 2006, no pet.) (mem. op.). The Beaumont



       1
         This case is before the Court on transfer from the Beaumont Court of Appeals pursuant to a
docket equalization order issued by the Texas Supreme Court. See TEX. GOV'T CODE ANN. § 73.001
(West 2005).
       2
        As set forth below, the parties dispute whether an attorney-client relationship existed between
Ted L. Walker and Louise Rogers.



                                                  2
Court of Appeals reversed the trial court’s order and remanded the case for further

proceedings. See id.

        On July 17, 2006, the trial court signed an order granting Ted L. Walker’s motion

to withdraw as counsel for Creel. On September 5, 2006, Creel revealed that he had

paid money from the estate to creditors and to himself without court approval.                            In

response, appellant, now acting as the executor of the estate, filed a motion to set aside

and to require Creel to return the estate’s assets, alleging that Creel’s actions

“constitute fraud and embezzlement against the estate.” After a hearing, the trial court

signed an order granting appellant’s motion, awarding the estate a judgment against

Creel in the amount of $76,451.60, plus attorney’s fees in the amount of $4,000.

Thereafter, appellant filed a motion to sever, which the trial court granted.

        Subsequently, on June 13, 2008, appellant commenced the instant suit against

Ted L. Walker for fraud, conspiracy, breach of fiduciary duty, legal malpractice, and

declaratory judgment.3 Thereafter, Ted L. Walker filed a motion for summary judgment,

arguing that appellant’s claims for fraud, conspiracy, and breach of fiduciary duty were

barred by res judicata. The trial court granted the motion for summary judgment on

those claims. Ted L. Walker also filed a motion for summary judgment on appellant’s

claims for breach of fiduciary duty and legal malpractice. The trial court granted the

motion for summary judgment on those claims.4 Subsequently, Ted L. Walker filed a

motion to disqualify appellant’s attorney from representing appellant at trial on the basis


        3
         Appellant brought suit in his individual capacity and as the executor of Louise Rogers’ estate
against Ted L. Walker, Ted G. Walker, and Creel. Subsequently, appellant non-suited the claims against
Ted G. Walker, and the trial court severed the claims against Creel. Thus, Ted L. Walker is the only
defendant in this cause.
        4
            Thus, the trial court granted summary judgment twice on appellant’s claim for breach of fiduciary
duty.



                                                      3
that he would be testifying as a witness on a contested fact issue. The trial court

granted the motion to disqualify. Finally, the trial court granted Ted L. Walker’s special

exceptions to appellant’s claim for declaratory judgment and dismissed the claim,

thereby creating a final judgment. This appeal ensued.

                                II. STANDARD OF REVIEW

      We review summary judgments de novo. Alejandro v. Bell, 84 S.W.3d 383, 390

(Tex. App.—Corpus Christi 2002, no pet.).         In a traditional motion for summary

judgment, the movant has the burden of showing both that there is no genuine issue of

material fact and entitlement to judgment as a matter of law. TEX. R. CIV. P. 166a(c);

see also Swilley v. Hughes, 488 S.W.2d 64, 67 (Tex. 1972); Ortega v. City Nat’l Bank,

97 S.W.3d 765, 772 (Tex. App.—Corpus Christi 2003, no pet.). In deciding whether

there is a genuine issue of material fact, evidence favorable to the nonmovant is taken

as true, and all reasonable inferences are made, and all doubts are resolved, in favor of

the nonmovant. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997).

      Summary judgment is proper if the movant disproves at least one element of

each of the plaintiff’s claims or affirmatively establishes each element of an affirmative

defense to each claim. Id.; see also Duvall v. Tex. Dep’t of Human Servs., 82 S.W.3d

474, 477 (Tex. App.—Austin 2002, no pet.) (“A defendant who moves for [traditional]

summary judgment must disprove at least one essential element of the plaintiff’s causes

of action.”). “[S]ummary judgment proof [is] necessary to establish the movant’s right [to

a traditional summary judgment].”     McConnell v. Southside Indep. Sch. Dist., 858

S.W.2d 337, 343 (Tex. 1993). The nonmovant has no burden to respond to a traditional

summary judgment motion unless the movant conclusively establishes its cause of




                                            4
action or defense.     Swilley, 488 S.W.2d at 68.          “Evidence is conclusive only if

reasonable people could not differ in their conclusions, a matter that depends on the

facts of each case.” City of Keller v. Wilson, 168 S.W.3d 802, 816 (Tex. 2005).

                                       III. RES JUDICATA

       In his first issue, appellant argues that summary judgment was improper on his

claims for fraud, conspiracy, and breach of fiduciary duty based on Ted L. Walker’s

affirmative defense of res judicata.

A. Applicable Law

       “The doctrine [of res judicata] seeks to bring an end to litigation, prevent

vexatious litigation, maintain stability of court decisions, promote judicial economy, and

prevent double recovery.” Citizens Ins. Co. of Am. v. Daccach, 217 S.W.3d 430, 449

(Tex. 2007). “The party relying on the affirmative defense of res judicata must prove (1)

a prior final determination on the merits by a court of competent jurisdiction; (2) identity

of parties or those in privity with them; and (3) a second action based on the same

claims as were or could have been raised in the first action.” Travelers Ins. Co. v.

Joachim, 315 S.W.3d 860, 862 (Tex. 2010).            Although the parties dispute all the

elements of res judicata, for purposes of reaching a final decision in this appeal, it is

only necessary to discuss the second element as it relates to privity. See TEX. R. APP.

P. 47.1.

       “People can be in privity in at least three ways: (1) they can control an action

even if they are not parties to it; (2) their interests can be represented by a party to the

action; or (3) they can be successors in interest, deriving their claims through a party to

the prior action.” Amstadt v. United States Brass Corp., 919 S.W.2d 644, 653 (Tex.




                                              5
1996). “There is no general definition of privity that can be automatically applied in all

res judicata cases.” Getty Oil Co. v. Insurance Co. of N. Am., 845 S.W.2d 794, 800

(Tex. 1992).     Therefore, “the determination of who are privies requires careful

examination into the circumstances of each case as it arises.”           Benson v. Wanda

Petroleum Co., 468 S.W.2d 361, 363 (Tex. 1971). “It has been emphasized that privity

is not established by the mere fact that persons may happen to be interested in the

same question or in proving the same state of facts.” Id.

B. Ted L. Walker’s Motion for Summary Judgment

       Ted L. Walker sought summary judgment on the basis that he was in privity with

Creel in the probate action. In his motion, Ted L. Walker stated that for purposes of res

judicata, people are in privity if they (1) share an identity of interests, (2) are agent and

principal, or (3) are co-conspirators. In support of his motion, Ted L. Walker attached a

copy of appellant’s first amended petition in this suit, wherein appellant alleged that Ted

L. Walker worked together with Creel, his client, in defrauding Louise Rogers’ estate.

C. Appellant’s Response

       In his response to the motion for summary judgment, appellant argued that Ted

L. Walker had failed to conclusively establish privity because (1) there was no evidence

that Creel represented Ted L. Walker’s interests in the probate action, (2) the attorney-

client relationship between Ted L. Walker and Creel terminated before appellant

asserted his claims against Creel in the probate action, and (3) there was no allegation

of conspiracy in the probate action.




                                             6
D. Discussion

        For the reasons set forth below, we conclude that summary judgment was

improper because Ted L. Walker did not conclusively establish the element of privity.

See Black v. Victoria Lloyds Ins. Co., 797 S.W.2d 20, 27 (Tex. 1990) (“The movant must

establish his entitlement to a summary judgment on the issues expressly presented to

the trial court by conclusively establishing all essential elements of his cause of action

or defense as a matter of law.”).

        First, there was no evidence that Creel represented Ted L. Walker’s interests in

the probate action. See Benson, 468 S.W.2d at 363 (“[P]rivity connotes those who are

in law so connected with a party to the judgment as to have such an identity of interest

that the party to the judgment represented the same legal right.”). In fact, it is unclear

what interest Ted L. Walker had in the probate action. See Tex. Real Estate Comm’n v.

Nagle, 767 S.W.2d 691, 694 (Tex. 1989) (“Privity does not exist merely when persons

are interested in the same question, but requires an identity of interest in the legal right

actually litigated.”). The motion for summary judgment did not state that Ted L. Walker

had an interest in the probate action, identify his interest, or state that Creel could have

represented his interest.5 Thus, the motion did not conclusively establish that Ted L.

Walker and Creel “share[d] an identity of interests in the basic legal right that [was] the

subject of litigation.” Amstadt, 919 S.W.2d at 653. Accordingly, the summary judgment

cannot be affirmed on this ground.



        5
            See Houston v. Clear Creek Basin Authority, 589 S.W.2d 671, 677 (Tex. 1979) (“[T]he reasons
for the summary judgment . . . must be in writing and before the trial judge at the hearing.”); Canton-
Carter v. Baylor Coll. of Med., 271 S.W.3d 928, 931–32 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
(“It is not this Court’s duty to review the record, research the law, and then fashion a legal argument for [a
motion for summary judgment] when [the movant] has failed to do so.”).



                                                      7
        Second, the attorney-client allegations in appellant’s first amended petition do not

conclusively establish privity.6 In his motion for summary judgment, Ted L. Walker

argued that privity was established because appellant alleged that he was acting as

Creel’s attorney when the two men defrauded Louise Rogers’ estate. See In re George,

28 S.W.3d 511, 516 (Tex. 2000) (“The attorney is the agent of the client, . . .

representing the client . . . .”). Yet, it is unclear how these allegations establish privity

for purposes of res judicata.7 We cannot read between the lines8 or supply our own

reasons to affirm the trial court’s ruling.9               On their face, the allegations do not

conclusively establish that (1) Ted L. Walker controlled the probate action, (2) Creel

represented Ted L. Walker’s interests in the probate action, or (3) Ted L. Walker is
        6
           See Laidlaw Waste Sys. v. City of Wilmer, 904 S.W.2d 656, 661 (Tex. 1995) (stating that the
court is “convinced that orderly judicial administration will be better served in the long run if we refuse to
regard pleadings, even if sworn, as summary judgment evidence”); but see Judwin Props. v. Griggs &
Harrison, 911 S.W.2d 498, 504 (Tex. App.—Houston [1st Dist.] 1995, writ denied) (“Pleadings may be
used as summary judgment evidence when they contain statements rising to the level of admitting a fact
or conclusion which is directly adverse to that party’s theory or defense of recovery.”); Pentad Joint
Venture v. First Nat'l Bank, 797 S.W.2d 92, 97 (Tex. App.—Austin 1990, writ denied) (“[A] party may
plead itself out of court by affirmatively pleading facts that negate his cause of action.”).
        7
           See Continental Sav. Ass’n v. Collins, 814 S.W.2d 829, 832 (Tex. App.—Houston [14th Dist.]
1991, no writ) (“It would be a surprise to this court and to the lawyers of the state of Texas to learn that by
virtue of mere representation a lawyer establishes privity with his client.”); Ward v. Braun, 417 S.W.2d
888, 896 (Tex. App.—Corpus Christi 1967, no writ) (Nye, J., concurring) (“[T]he law is a wilderness of
single instances.”).
        8
            See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) (“[A]n
appellate court cannot read between the lines, infer or glean from the pleadings or the proof any grounds
for granting the summary judgment other than those grounds expressly set forth before the trial court in
the motion for summary judgment.”); see also Union Pump Co. v. Allbritton, 898 S.W.2d 773, 777 n.1
(Tex. 1995) (Cornyn, J., dissenting) (“When you get the dragon out of his cave on to the plain and in the
daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only
the first step. The next is either to kill him, or to tame him and make him a useful animal.”) (quoting Oliver
Wendell Holmes, Jr., The Path of the Law, 10 HARV. L. REV. 457, 469–70 (1897)).
        9
          See McConnell, 858 S.W.2d at 342 (“[S]ummary judgments must stand or fall on their own
merits, and the non-movant’s failure to except or respond cannot supply by default the grounds for
summary judgment or the summary judgment proof necessary to establish the movant’s right—the
movant’s right is not established and the movant must still assert grounds in the motion for summary
judgment itself and establish its entitlement to summary judgment.”); Leach v. Tex. Tech Univ., 335
S.W.3d 386, 395 (Tex. App.—Amarillo 2011, pet. denied) (“Though some may find it fun to engage in
creative legal gymnastics to achieve a desired end, we opt not to join them.”); Paselk v. Rabun, 293
S.W.3d 600, 613 (Tex. App.—Texarkana 2009, pet. denied) (“It is not the proper role of this Court to
create arguments for a [party]—we will not do the job of the advocate.”).



                                                      8
Creel’s successor in interest.          See Amstadt, 919 S.W.2d at 653.                Accordingly, the

summary judgment cannot be affirmed on this ground.

        Finally, the conspiracy allegations in appellant’s first amended petition do not

conclusively establish privity. In this suit, appellant alleges that Ted L. Walker conspired

with Creel to defraud Louise Rogers’ estate; however, in the probate action, appellant

did not make any conspiracy allegations. Thus, there is no evidence that Creel had an

interest in the probate action in disproving the existence of a conspiracy.10

Furthermore, on their face, the conspiracy allegations in this suit do not conclusively

establish that (1) Ted L. Walker controlled the probate action, (2) Creel represented Ted

L. Walker’s interests in the probate action, or (3) Ted L. Walker is Creel’s successor in

interest. See Amstadt, 919 S.W.2d at 653. Accordingly, the summary judgment cannot

be affirmed on this ground.

        In sum, appellant has negated each of the three grounds expressly set out in the

motion for summary judgment. Nevertheless, our dissenting colleague would affirm the

summary judgment on the basis that Ted L. Walker could have been made a party to

the probate action.11 As a preliminary matter, we note that this ground was not raised in

the motion, and therefore, it is not a proper basis for affirming the summary judgment.

See Stiles v. Resolution Trust Corp., 867 S.W.2d 24, 26 (Tex. 1993) (“[A] summary


        10
           See Jonalstem, Ltd. v. Corpus Christi Nat’l Bank, N.A., 923 S.W.2d 701, 705 (Tex. App.—
Corpus Christi 1996, writ denied) (“[A]ll of the defendants in the present case are privies of Lo-Vaca,
which had an interest in the first suit in demonstrating that no conspiracy existed.”); see also RenewData
Corp. v. eMag Solutions, LLC, No. 03-05-00509-CV, 2009 Tex. App. LEXIS 3144, at *15 (Tex. App.—
Austin May 6, 2009, pet. filed) (mem. op.) (“Because Strickler was not defending against a conspiracy
claim in the Strickler suit, he had no such interest in disproving a conspiracy with the eMag Defendants.”).
        11
          Although the dissent states that it would affirm the summary judgment, it fails to discuss
whether Ted L. Walker conclusively established the other two elements of res judicata, which are also
contested in this appeal and necessary to affirm the summary judgment. In light of our disposition,
however, we do not reach those issues.



                                                     9
judgment cannot be affirmed on grounds not expressly set out in the motion or

response.”). Furthermore, even if Ted L. Walker could have been made a party to the

probate action, it does not follow that privity is therefore conclusively established. The

dissent fails to discuss the controlling legal standard for privity, under which privity is

established if (1) Ted L. Walker controlled the probate action, (2) Creel represented Ted

L. Walker’s interests, or (3) Ted L. Walker was a successor in interest to Creel. See

Amstadt, 919 S.W.2d at 653. On its own, the fact that Ted L. Walker could have been

made a party to the probate action does not conclusively establish any of the foregoing

criteria. Therefore, even if it had been raised in the motion, this is not a proper basis for

affirming the summary judgment. Accordingly, we decline to follow the dissent.

       Based on the foregoing, we conclude that the trial court erred in granting

summary judgment in favor of Ted L. Walker on the affirmative defense of res judicata.

Appellant’s first issue is sustained.

                 IV. LEGAL MALPRACTICE AND BREACH OF FIDUCIARY DUTY

       In his second issue, appellant argues that the trial court erred in granting Ted L.

Walker’s motion for summary judgment on appellant’s claims for legal malpractice and

breach of fiduciary duty.

A. Applicable Law

       Legal malpractice and breach of fiduciary duty are closely related, but they are

distinct claims. “A legal malpractice claim focuses on whether an attorney represented

a client with the requisite level of skill, while a breach of fiduciary duty claim

encompasses      whether    an   attorney   obtained   an   improper    benefit   from   the

representation.” Duerr v. Brown, 262 S.W.3d 63, 71 (Tex. App.—Houston [14th Dist.]




                                             10
2008, no pet.). “Breach of fiduciary duty involves conduct including failure to disclose

conflicts of interest; a failure to deliver funds belonging to the client; placing personal

interests ahead of a client's interests; misuse of client confidences; taking advantage of

the client’s trust; engaging in self-dealing; and making material misrepresentations.” Id.

       “To prevail on a legal malpractice claim, the plaintiff must prove the defendant

owed the plaintiff a duty, the defendant breached that duty, the breach proximately

caused the plaintiff’s injury, and the plaintiff suffered damages.” Akin, Gump, Strauss,

Hauer & Feld, L.L.P. v. Nat'l Dev. & Research Corp., 299 S.W.3d 106, 112 (Tex. 2009).

Similarly, “[t]o recover on a breach of fiduciary duty claim, the plaintiff must first

establish the existence of a duty, that is, the existence of a fiduciary relationship.”

Gregan v. Kelly, 355 S.W.3d 223, 227 (Tex. App.—Houston [1st Dist.] 2011, no pet.).

B. Discussion

       In his motion, Ted L. Walker raised five grounds for summary judgment: (1) he

did not owe the decedent, Louise Rogers, any duty; (2) he did not breach any duty

owed to the decedent; (3) the decedent did not suffer any injury; (4) the malpractice

claim is barred by the statute of limitations; and (5) he did not owe any duty to appellant

in his individual capacity. The trial court granted the motion without stating the basis for

its ruling. Therefore, appellant has the burden to negate each possible basis for the trial

court’s ruling. See Kiger v. Balestri, 376 S.W.3d 287, 290 (Tex. App.—Dallas 2012, no

pet.) (“When, as in this case, the trial court does not state the basis for granting

summary judgment, the appellant must show on appeal that each independent ground

alleged is insufficient to support the summary judgment granted.”); Wrenn v. G.A.T.X.

Logistics, Inc., 73 S.W.3d 489, 493 (Tex. App.—Fort Worth 2002, pet. denied) (“When,




                                            11
as in this case, the trial court’s judgment rests or may rest upon more than one

independent ground or defense, the aggrieved party must assign error to each ground,

or the judgment will be affirmed on the ground to which no complaint is made.”). For

purposes of this analysis, we will focus on the element of duty.

       In his motion for summary judgment, Ted L. Walker argued that the evidence

attached to his motion established that he did not have an attorney-client relationship

with the decedent and that he therefore did not owe a duty to her as an attorney or a

fiduciary. See Yaklin v. Glusing, Sharpe & Krueger, 875 S.W.2d 380, 383 (Tex. App.—

Corpus Christi 1994, no writ) (“[W]hen the defendant moves for a summary judgment

because no attorney-client relationship exists, the defendant takes on the burden of

proving the non-existence of the relationship as a matter of law.”). Ted L. Walker’s

summary judgment evidence included his affidavit and affidavits by his father and

mother. As set forth above, Ted L. Walker and his father, Ted G. Walker, are both

attorneys. Ted G. Walker prepared Louise Rogers’ will. There is no dispute that Ted G.

Walker had an attorney-client relationship with Louise Rogers.        The parties dispute

whether Ted L. Walker had an attorney-client or other fiduciary relationship with Louise

Rogers.

       The affidavits of Ted L. Walker, Ted G. Walker, and Ted L. Walker’s mother each

attest to the fact that, at the time he prepared Louise Rogers’ will, Ted G. Walker was

not affiliated in any way with Ted L. Walker’s law practice. In his affidavit, Ted L. Walker

also states that Louise Rogers “never hired me, my firm or any member of my firm to

prepare her will.” According to Ted L. Walker’s affidavit, “No one in my firm, including

myself, ever met with [the decedent] or anyone else concerning preparation of her will




                                            12
or provided advice to her regarding her will.”     We conclude that Ted L. Walker’s

summary judgment evidence conclusively established that Ted L. Walker did not have

an attorney-client relationship with the decedent and therefore did not owe her any duty.

Therefore, the burden shifted to appellant to raise a genuine issue of material fact

precluding summary judgment. See Swilley, 488 S.W.2d at 68.

      In his response, appellant argued that summary judgment was improper because

his evidence raised a fact issue regarding the existence of a professional association

between Ted L. Walker and Ted G. Walker at the time the decedent’s will was prepared

in October 1996. Specifically, appellant argued that his evidence showed that Ted G.

Walker became an associate of Ted L. Walker’s law firm “close to when the will was

drafted.” Appellant’s evidence included a pleading dated December 26, 1996 that was

signed by Ted G. Walker as a member of Ted L. Walker’s law firm.             Appellant’s

evidence also included an advertisement that appeared in the 1997 Texas Legal

Directory that identified Ted G. Walker as an associate with Ted L. Walker’s law firm.

Appellant also produced evidence of a similar advertisement that appeared in the 1995

Texas Legal Directory. Finally, appellant relied on the deposition testimony of Ted G.

Walker stating that someone who saw the listing might come to the conclusion that he

was associated with Ted L. Walker’s law firm.

      Appellant’s evidence does not raise a genuine issue of material fact regarding

the existence of an attorney-client or fiduciary relationship between Ted L. Walker and

the decedent. At most, appellant’s evidence establishes the existence of a professional

association between Ted L. Walker and Ted G. Walker. It is undisputed that there was

an attorney-client relationship between Ted G. Walker and the decedent. Appellant




                                           13
suggests that this attorney-client relationship may be imputed to Ted L. Walker because

Ted G. Walker was associated with Ted L. Walker’s law firm at the time the decedent’s

will was prepared in October 1996. Appellant has not offered any authority to support

this proposition.12 Accordingly, we follow “[t]he general rule . . . that persons who are

not in privity with the attorney cannot sue the attorney for legal malpractice.” McCamish

v. F. E. Appling Interests, 991 S.W.2d 787, 792 (Tex. 1999).                          We conclude that

appellant failed to raise a genuine issue of material fact regarding the existence of a

duty owed to Louise Rogers or to appellant. Accordingly, the trial court did not err in

granting summary judgment in favor of Ted L. Walker on appellant’s claims for legal

malpractice and breach of fiduciary duty.

        Appellant’s second issue is overruled.

                                        V. SPECIAL EXCEPTIONS

        In his third issue, appellant argues that the trial court erred in granting Ted L.

Walker’s special exceptions and striking appellant’s claim for declaratory judgment

without giving appellant an opportunity to replead.

A. Applicable Law

        “[W]hen special exceptions are sustained, the pleader must be given, as a matter

of right, an opportunity to replead.” Rodriguez v. U.S. Sec. Assocs., 162 S.W.3d 868,

874 (Tex. App.—Houston [14th Dist.] 2005, no pet.). “Only after special exceptions

have been sustained and a party has been given an opportunity to amend its pleadings

may a case be dismissed for failure to state a cause of action.” Id.


        12
           We note that “[t]here is, in effect, an irrebuttable presumption that an attorney in a law firm has
access to the confidences of the clients and former clients of other attorneys in the firm.” See Nat'l Med.
Enters., Inc. v. Godbey, 924 S.W.2d 123, 131 (Tex. 1996) (orig. proceeding). However, we have found
no precedent for using this rule to create an attorney-client relationship that would not otherwise exist.



                                                     14
B. Standard of Review

      “When 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.).

C. Discussion

      In his brief, appellant argues that the trial court erred in granting the special

exceptions and dismissing his claim for declaratory judgment for two reasons:          (1)

appellant was not given an opportunity to respond to the special exceptions; and (2)

appellant was not given an opportunity to replead his claim.

      Appellant’s first point is not supported by an argument, authorities, or appropriate

citations to the record.   See TEX. R. APP. P. 38.1. Accordingly, it is waived.       See

Leblanc v. Lange, 365 S.W.3d 70, 85 n.3 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(“An appellant waives an issue on appeal if he fails to adequately brief that issue by

presenting supporting arguments and authorities.”).

      With regard to appellant’s second point, the record indicates that the trial court

previously granted special exceptions on appellant’s claim for attorney’s fees and gave

appellant an opportunity to replead that claim. Appellant chose to replead the claim as

a claim for attorney’s fees under the declaratory judgment act. Then, Ted L. Walker

filed more special exceptions, which the trial court granted. Appellant does not take

issue with the trial court’s granting of the special exceptions. Instead, appellant argues

that the trial court should have given him an opportunity to amend his pleadings before

dismissing his claim. We agree.




                                           15
       “One area in which the trial court does not have any discretion is in the

requirement that a party be given the opportunity to amend after special exceptions are

sustained.” Cruz v. Morris, 877 S.W.2d 45, 48 (Tex. App.—Houston [14th Dist.] 1994,

no writ). “Pleadings may absolutely not be struck upon sustaining special exceptions

without giving the party an opportunity to amend.” Id.

       Appellant’s third issue is sustained.

                                VI. MOTION FOR SANCTIONS

       In his fourth issue, appellant argues that the trial court erred in denying his

motion for sanctions under Rule 13 of the Texas Rules of Civil Procedure and Sections

9.02 and 10.004 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. &

REM. CODE ANN. §§ 9.012, 10.004 (West 2002); TEX. R. CIV. P. 13.

A. Standard of Review

       “We review the trial court’s grant or denial of a motion for sanctions and dismissal

under the abuse-of-discretion standard.” Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex.

2010). “A [party] who attacks the ruling of a trial court as an abuse of discretion labors

under a heavy burden.” Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917

(Tex. 1985) (orig. proceeding). “The test for an abuse of discretion is not whether, in

the opinion of the reviewing court, the facts present an appropriate case for the trial

court’s action, but whether the court acted without reference to any guiding rules and

principles.” D Design Holdings, L.P. v. MMP Corp., 339 S.W.3d 195, 203 (Tex. App.—

Dallas 2011, no pet.). “The trial court’s ruling should be reversed only if it was arbitrary

or unreasonable.” Id. “The mere fact that a trial court may decide a matter within its

discretionary authority in a different manner than an appellate judge in a similar




                                               16
circumstance does not demonstrate that an abuse of discretion has occurred.” Skepnek

v. Mynatt, 8 S.W.3d 377, 380 (Tex. App.—El Paso 1999, pet. denied). “A mere error of

judgment is not an abuse of discretion.” Id.

B. Applicable Law

         Rule 13 of the Texas Rules of Civil Procedure provides for sanctions against a

party or attorney who signs a pleading, motion, or other paper that is “groundless and

brought in bad faith or groundless and brought for the purpose of harassment.” TEX. R.

CIV. P. 13; Keith v. Solls, 256 S.W.3d 912, 916 (Tex. App.—Dallas 2008, no pet.).

“Groundless” means no basis in law or fact and not warranted by a good faith argument

for the extension, modification, or reversal of existing law. TEX. R. CIV. P. 13. Bad faith

is not simply bad judgment or negligence, but means the conscious doing of a wrong for

dishonest, discriminatory, or malicious purposes. Keith, 256 S.W.3d at 916. “Harass” is

used in a variety of legal contexts to describe words, gestures, and actions that tend to

annoy, alarm, and verbally abuse another person. Id. at 916–17. Filing a motion or

pleading that the trial court denies does not entitle the opposing party to Rule 13

sanctions. Elkins v. Stotts-Brown, 103 S.W.3d 664, 668 (Tex. App.—Dallas 2003, no

pet.).   “Rule 13 requires the trial court to hold an evidentiary hearing to make the

necessary factual determinations about the motives and credibility of the person signing

the allegedly groundless pleading.” Keith, 256 S.W.3d at 917; McCain v. NME Hosps.,

Inc., 856 S.W.2d 751, 757 (Tex. App.—Dallas 1993, no writ).

         Section 9.012(a) of the Texas Civil Practice and Remedies Code provides as

follows:




                                            17
       At the trial of the action or at any hearing inquiring into the facts and law of
       the action, after reasonable notice to the parties, the court may on its own
       motion, or shall on the motion of any party to the action, determine if a
       pleading has been signed in violation of any one of the standards
       prescribed by Section 9.011.

TEX. CIV. PRAC. & REM. CODE ANN. § 9.012(a). Section 9.011 provides as follows:

       The signing of a pleading as required by the Texas Rules of Civil
       Procedure constitutes a certificate by the signatory that to the signatory’s
       best knowledge, information, and belief, formed after reasonable inquiry,
       the pleading is not:

              (1) groundless and brought in bad faith;

              (2) groundless and brought for the purpose of harassment; or

              (3) groundless and interposed for any improper purpose, such as to
              cause unnecessary delay or needless increase in the cost of
              litigation.

Id. § 9.011 (West 2002). Section 9.012(c) of the Texas Civil Practice and Remedies

Code provides as follows:

       If the court determines that a pleading has been signed in violation of any
       one of the standards prescribed by Section 9.011, the court shall, not
       earlier than 90 days after the date of the determination, at the trial or
       hearing or at a separate hearing following reasonable notice to the
       offending party, impose an appropriate sanction on the signatory, a
       represented party, or both.

Id. § 9.012(c).

       Under Chapter 10 of the Texas Civil Practice and Remedies Code, the signer of

a pleading or motion certifies that “each claim, each allegation, and each denial is

based on the signatory’s best knowledge, information, and belief, formed after

reasonable inquiry.” Id. § 10.001 (West 2002); see also Low v. Henry, 221 S.W.3d 609,

615 (Tex. 2007). A trial court may sanction an attorney or party for filing pleadings that

have “little or no basis for the claims, no grounds for legal arguments, [contain]




                                             18
misrepresentation of law or facts, or [seek] legal action . . . in bad faith.” Lake Travis

Indep. Sch. Dist. v. Lovelace, 243 S.W.3d 244, 256–57 (Tex. App.—Austin 2007, no

pet.); see also TEX. CIV. PRAC. & REM. CODE ANN. § 10.004 (authorizing sanctions).

There must be a direct nexus between the improper conduct and the sanctions

imposed.      Low, 221 S.W.3d at 614.       The sanctions must be imposed on the true

offender and tailored to remedy any prejudice caused by the offense. Thottumkal v.

McDougal, 251 S.W.3d 715, 717 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)

(citing Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004)).

          Generally, courts presume that pleadings and other papers are filed in good faith.

Low, 221 S.W.3d at 614; GTE Commc'ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 730

(Tex. 1993).       The party seeking sanctions bears the burden of overcoming this

presumption of good faith. Low, 221 S.W.3d at 614.

C. Discussion

          In his 26-page motion for sanctions, appellant complained about Ted L. Walker’s

use of allegedly “false” affidavits by (1) Ginger Gomez, (2) Ted G. Walker, and (3) Ted

L. Walker.      In his response, Ted L. Walker argued that the “allegedly inconsistent

statements cited in [appellant’s] motion do not establish that any of these affidavits are

false.”

          Appellant requested sanctions under Rule 13 of the Texas Rules of Civil

Procedure.      See TEX. R. CIV. P. 13.      “Rule 13 requires the trial court to hold an

evidentiary hearing to make the necessary factual determinations about the motives and

credibility of the person signing the allegedly groundless pleading.” Keith, 256 S.W.3d

at 917; McCain, 856 S.W.2d at 757.           In this case, the trial court did not hold an




                                              19
evidentiary hearing. See R.M. Dudley Constr. Co. v. Dawson, 258 S.W.3d 694, 709

(Tex. App.—Waco 2008, pet. filed) (“A trial court must hold an evidentiary hearing to

make the necessary factual determinations about the party’s or attorney’s motives and

credibility.”); Neely v. Commission for Lawyer Discipline, 976 S.W.2d 824, 827 (Tex.

App.—Houston [1st Dist.] 1998, pet. denied) (“Before a trial court may impose sanctions

under rule 13, it must hold an evidentiary hearing.”). As a result, the trial court had no

evidence to “make the necessary factual determinations about the motives and

credibility of the person signing the allegedly groundless pleading.” Keith, 256 S.W.3d

at 917; see also D Design Holdings, 339 S.W.3d at 204 (“Rule 13 requires the trial court

to hold an evidentiary hearing to make the necessary factual determinations about the

motives and credibility of the person signing the allegedly groundless pleading.”)

(quotation omitted); Alejandro v. Robstown Indep. Sch. Dist., 131 S.W.3d 663, 670

(Tex. App.—Corpus Christi 2004, no pet.) (“[I]t [is] imperative for the trial court to

convene and conduct an evidentiary hearing.”) (quotation omitted).           Furthermore,

appellant has not raised an error in the trial court’s failure to conduct an evidentiary

hearing. On this record, appellant has failed to demonstrate that the trial court abused

its discretion in denying his motion for sanctions under Rule 13.       See McDowell v.

McDowell, 143 S.W.3d 124, 131 (Tex. App.—San Antonio 2004, pet. denied) (“Under

applicable Texas law, a judgment can be affirmed on any theory of law applicable to the

case and supported by the record.”).

       Appellant also requested sanctions under Section 9.012 of the Texas Civil

Practice and Remedies Code.        See TEX. CIV. PRAC. & REM. CODE ANN. § 9.012.

Subsection (a) requires the trial court to hold a hearing inquiring into the “facts and law




                                            20
of the action.” Id. § 9.012(a); Bisby v. Dow Chem. Co., 931 S.W.2d 18, 21 (Tex. App.—

Houston [1st Dist.] 1996, no writ) (“Without hearing evidence on the circumstances

surrounding the filing of pleadings, the trial court has no evidence to determine whether

a party filed the pleadings in bad faith or with the intent to harass.”). As noted above,

the trial court did not hold an evidentiary hearing on appellant’s motion for sanctions.

See Karlock v. Schattman, 894 S.W.2d 517, 523 (Tex. App.—Fort Worth 1994, orig.

proceeding) (“Without hearing evidence on the circumstances surrounding the filing of

the pleading signer's credibility and motives, a trial court has no evidence to determine

that a pleading was filed in bad faith or to harass.”). Thus, the trial court could not

“make the necessary factual determinations about the motives and credibility of the

person signing the allegedly groundless pleading.” Keith, 256 S.W.3d at 917; see also

W. Houston Airport, Inc. v. Millennium Ins. Agency, Inc., 349 S.W.3d 748, 755 (Tex.

App.—Houston [14th Dist.] 2011, pet. denied) (“A trial court must hold an evidentiary

hearing on a party’s request for sanctions to make the necessary factual

determinations.”). As noted above, appellant has not complained about the trial court’s

failure to conduct an evidentiary hearing.      See Kugle v. Daimlerchrysler Corp., 88

S.W.3d 355, 364 (Tex. App.—San Antonio 2002, pet. denied) (“In order to assess

sanctions in this case, the trial court was required to conduct an evidentiary hearing to

which the rules of evidence necessarily apply.”). On this record, appellant has failed to

demonstrate that the trial court abused its discretion in denying his motion for sanctions

under Section 9.012(c) of the Texas Civil Practice and Remedies Code. See McDowell,

143 S.W.3d at 131.




                                           21
       Finally, appellant requested sanctions under Section 10.004 of the Texas Civil

Practice and Remedies Code.          See TEX. CIV. PRAC. & REM. CODE ANN. § 10.004.

Subsection (a) states, “A court that determines that a person has signed a pleading or

motion in violation of Section 10.001 may impose a sanction on the person, a party

represented by the person, or both.” Id. § 10.004(a). We note that the statute uses the

term “may,” not “shall.” According to the Texas Code Construction Act, “‘[m]ay’ creates

discretionary authority or grants permission or a power,” whereas “‘[s]hall’ imposes a

duty.” TEX. GOV’T CODE ANN. § 311.016(1)–(2) (West 2005). Thus, if the trial court

determines that a person has signed a pleading or motion in violation of Section 10.001,

the trial court has the “discretionary authority,” “power,” and “permission” to impose a

sanction, id.; however, the trial court does not have a “duty” to impose a sanction.

Appellant argues that he was entitled to “sanctions as a matter of law.” However, even

if the trial court had found a violation of Section 10.001, the trial court still had discretion

to either grant or deny appellant’s motion for sanctions. See Manning v. Enbridge

Pipelines (E. Tex.) L.P., 345 S.W.3d 718, 728 (Tex. App.—Beaumont 2011, pet. denied)

(“The parties have not cited a case in which an appellate court held that a trial court

abused its discretion by declining to impose a punishment for conduct that is

sanctionable under section 10.004(a) or Rule 13.”). We conclude that appellant has not

demonstrated that the trial court abused its discretion in denying his motion for

sanctions under Section 10.004(a).        See Great W. Drilling, Ltd. v. Alexander, 305

S.W.3d 688, 698 (Tex. App.—Eastland 2009, no pet.) (“[W]e cannot find the trial court

abused its discretion in its refusal to award Alexander sanctions.”).

       Appellant’s fourth issue is overruled.




                                              22
                             VII. ATTORNEY DISQUALIFICATION

       In his fifth issue, appellant contends that the trial court erred in granting Ted L.

Walker’s motion to disqualify his attorney, I. Nelson Heggen, under Rule 3.08(a) of the

Texas Disciplinary Rules of Professional Conduct, “Lawyer As Witness.”            See TEX.

DISCIPLINARY R. PROF’L CONDUCT 3.08(a).

A. Standard of Review

       “We review the district court’s disqualification ruling for abuse of discretion.”

Smith v. Abbott, 311 S.W.3d 62, 73 (Tex. App.—Austin 2010, pet. denied).

B. Applicable Law

       “The Texas Disciplinary Rules of Professional Conduct establish the minimum

standards of conduct below which no lawyer can fall without being subject to disciplinary

action.”   Anderson Producing v. Koch Oil Co., 929 S.W.2d 416, 421 (Tex. 1996)

(quotation, citation omitted). “[T]he trial court has not only the power but also the duty to

disqualify counsel when representation of the client is prohibited by the rules of

professional conduct.” Ayres v. Canales, 790 S.W.2d 554, 557 n.2 (Tex. 1990).

       “Courts must adhere to an exacting standard when considering motions to

disqualify so as to discourage their use as a dilatory trial tactic.” In re Sandoval, 308

S.W.3d 31, 33 (Tex. App.—San Antonio 2009, orig. proceeding). “Disqualification is a

‘severe’ remedy which can result in immediate and palpable harm, disrupt trial court

proceedings, and deprive a party of the right to have counsel of choice.” In re Reynoso,

361 S.W.3d 719, 723 (Tex. App.—Corpus Christi 2012, orig. proceeding). “The party

seeking disqualification bears the burden of establishing conduct that warrants

disqualification.” Id. at 724. “Mere allegations of unethical conduct or evidence showing




                                             23
a remote possibility of a violation of the disciplinary rules will not suffice to merit

disqualification.” Id.; In re Dalco, 186 S.W.3d 660, 668 (Tex. App.—Beaumont 2006,

orig. proceeding) (“Nevertheless, because disqualification is such a severe remedy, the

burden is on the movant to establish with specificity any alleged violation of one or more

disciplinary rules.”).

       “Although Rule 3.08 was promulgated as a disciplinary standard, rather than a

procedural disqualification standard, [the Texas Supreme Court has] recognized that the

rule articulates considerations relevant to a procedural disqualification determination.”

Anderson Producing, 929 S.W.2d at 421 (quotation omitted).             The Texas Supreme

Court has “applied Rule 3.08 as the standard for disqualification . . . , noting . . . it would

be injudicious for this court to employ a rule of disqualification that could not be

reconciled with the Texas Rules of Professional Conduct.”            Id. (quotation omitted).

“Accordingly, we will refer to the rule for guidance in determining whether the trial court

abused its discretion in granting the motion to disqualify.” Id. (quotation omitted).

       Rule 3.08(a) of the Texas Disciplinary Rules of Professional Conduct provides as

follows:

           A lawyer shall not accept or continue employment as an advocate
           before a tribunal in a contemplated or pending adjudicatory proceeding
           if the lawyer knows or believes that the lawyer is or may be a witness
           necessary to establish an essential fact on behalf of the lawyer’s client,
           unless:

               (1) the testimony relates to an uncontested issue;

               (2) the testimony will relate solely to a matter of formality and there
               is no reason to believe that substantial evidence will be offered in
               opposition to the testimony;

               (3) the testimony relates to the nature and value of legal services
               rendered in the case;



                                              24
              (4) the lawyer is a party to the action and is appearing pro se; or

              (5) the lawyer has promptly notified opposing counsel that the
                  lawyer expects to testify in the matter and disqualification of the
                  lawyer would work substantial hardship on the client.

TEX. DISCIPLINARY R. PROF’L CONDUCT 3.08(a).

       “[T]he rule should not be used as a tactical weapon to deprive the opposing party

of the right to be represented by the lawyer of his or her choice.” Ayres, 790 S.W.2d at

557. “In order to prevent . . . misuse of the rule, the trial court should require the party

seeking disqualification to demonstrate actual prejudice to itself resulting from the

opposing lawyer’s service in the dual roles.” Id. at 558; see also In re Garza, 373

S.W.3d 115, 118 (Tex. App.—San Antonio 2012, orig. proceeding) (“[T]he party moving

for disqualification must show the opposing lawyer’s dual roles as attorney and witness

will cause the moving party actual prejudice.”); In re Tips, 341 S.W.3d 30, 33 (Tex.

App.—San Antonio 2010, orig. proceeding) (“Carl failed to show Hernden’s dual roles

as attorney and witness would cause Carl actual prejudice.”); Smith v. Abbott, 311

S.W.3d 62, 73 (Tex. App.—Austin 2010, pet. denied) (“[E]ven if a lawyer violates a

disciplinary rule, the party requesting disqualification must demonstrate that the

opposing lawyer’s conduct caused actual prejudice that requires disqualification.”).

C. Discussion

       Appellant argues that disqualification of his attorney was improper for five

reasons: (1) the proposed testimony of his attorney concerns an uncontested issue; (2)

the proposed testimony concerns a matter of formality; (3) the proposed testimony does

not concern an “essential fact”; (4) the proposed testimony will not cause Ted L. Walker




                                            25
“actual prejudice”; and (5) Ted L. Walker waived the issue of disqualification. We will

focus on waiver.

       “A party who fails to file its motion to disqualify opposing counsel in a timely

manner waives the complaint.” Vaughan v. Walther, 875 S.W.2d 690, 690 (Tex. 1994)

(per curiam). The Texas Supreme Court has held that a delay of six and a half months

rendered a motion to disqualify untimely and waived the right to disqualification. Id. at

691.

       Appellant argues that Ted L. Walker became aware of the basis for

disqualification at least nine months before filing his motion to disqualify on December

17, 2010. Ted L. Walker concedes that he learned about the basis for disqualification

no later than March 13, 2010. The only explanation that Ted L. Walker offered for the

nine-month delay is that he was waiting for appellant’s attorney to withdraw voluntarily.

On this record, Ted L. Walker’s motion to disqualify was untimely. See Buck v. Palmer,

381 S.W.3d 525, 528 (Tex. 2012) (holding that “seven-month delay in seeking the

attorney’s disqualification was sufficient to establish waiver”). Accordingly, he waived

his right to seek disqualification, and the trial court abused its discretion in ruling to the

contrary.

       Appellant’s fifth issue is sustained.




                                               26
                                   VIII. CONCLUSION

      The judgment of the trial court is affirmed in part and reversed in part. The case

is remanded for further proceedings consistent with this opinion.



                                                _______________________
                                                NORA L. LONGORIA
                                                Justice


Dissenting Memorandum Opinion by
Justice Gregory T. Perkes.

Delivered and filed the
23rd day of May, 2013.




                                           27
