                                 NO. 12-09-00269-CV

                      IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                    TYLER, TEXAS

YAKOV ELMAKISS,                               §            APPEAL FROM THE 7TH
APPELLANT

V.                                           §             JUDICIAL DISTRICT COURT

KAREN G. HUGHES, ESQ.,
APPELLEE                                    §              SMITH COUNTY, TEXAS

                                    MEMORANDUM OPINION
       Yakov Elmakiss, pro se, appeals the trial court‘s summary judgment in a lawsuit he
brought against Karen G. Hughes. In five issues, Elmakiss argues that the trial court should not
have granted the summary judgment. We affirm.


                                        BACKGROUND
       Elmakiss brought a civil lawsuit against Hughes, complaining of her conduct during her
representation of Elmakiss‘s ex-wife in their divorce action. Hughes moved for traditional
summary judgment on the ground that no cause of action existed in relation to her conduct on
behalf of the ex-wife, who had been adverse to Elmakiss in the divorce action. The trial court
granted summary judgment. This appeal followed.


                                    SUMMARY JUDGMENT
       In five issues, Elmakiss asserts that the trial court erred by granting summary judgment
against him.
Standard of Review
       Rule 166a(c) governs traditional motions for summary judgment and provides as follows:



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        Motion and Proceedings Thereon. The motion for summary judgment shall state the specific
        grounds therefor. . . . The judgment sought shall be rendered forthwith if (i) the deposition
        transcripts, interrogatory answers, and other discovery responses referenced or set forth in the
        motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and
        authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter
        and before judgment with permission of the court, show that, except as to the amount of damages,
        there is no genuine issue as to any material fact and the moving party is entitled to judgment as a
        matter of law on the issues expressly set out in the motion or in an answer or any other response.


TEX. R. CIV. P. 166a(c).
        We review a trial court‘s granting of summary judgment de novo. Mid-Century Ins. Co.
of Tex. v. Ademaj, 243 S.W.3d 618, 621 (Tex. 2007). When performing a de novo review, we
exercise our own judgment and redetermine each issue of fact and law. See Schade v. Tex.
Workers’ Comp. Comm’n, 150 S.W.3d 542, 549 (Tex. App.–Austin 2004, pet. denied) (citing
Quick v. City of Austin, 7 S.W.3d 109, 116 (Tex. 1999)). In an appeal of a summary judgment
proceeding, our review is a limited one. ―Issues not expressly presented to the trial court by
written motion, answer or other response shall not be considered on appeal as grounds for
reversal.‖ TEX. R. CIV. P. 166a(c) (emphasis added). When reviewing a summary judgment,
courts of appeals should consider all summary judgment grounds ruled on by the trial court and
preserved for appellate review that are necessary for final disposition of the appeal. Cincinnati
Life Ins. Co. v. Cates, 927 S.W.2d 623, 626 (Tex. 1996). Further, an appellate court may, in the
interest of judicial economy, consider other grounds that the movant preserved for review,
despite the fact that the trial court did not rule on them. Id.
        When reviewing a ruling on a traditional motion for summary judgment, we must
examine the entire summary judgment record in the light most favorable to the nonmovant,
indulging every reasonable inference and resolving any doubts against the motion. Yancy v.
United Surgical Partners Int’l, Inc., 236 S.W.3d 778, 782 (Tex. 2007) (citing City of Keller v.
Wilson, 168 S.W.3d 802, 824-25 (Tex. 2005)). For a party to prevail on a traditional motion for
summary judgment, it must conclusively establish the absence of any genuine issue of material
fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c). A fact is
―material‖ if it affects the ultimate outcome of the lawsuit under the governing law. Acad. of
Skills & Knowledge, Inc. v. Charter Sch., USA, Inc., 260 S.W.3d 529, 535 (Tex. App.–Tyler
2008, pet. denied); Pierce v. Wash. Mut. Bank, 226 S.W.3d 711, 714 (Tex. App.–Tyler 2007,
pet. denied). A material fact issue is ―genuine‖ if the evidence is such that a reasonable jury

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could find the fact in favor of the nonmoving party. Acad. of Skills, 260 S.W.3d at 535; Pierce,
226 S.W.3d at 714. Evidence is conclusive only if reasonable and fair minded jurors could not
differ in their conclusions. Acad. of Skills, 260 S.W.3d at 535 (citing Goodyear Tire & Rubber
Co. v. Mayes, 236 S.W.3d 754, 755-56 (Tex. 2007)). Once the movant has established a right to
summary judgment, the nonmovant has the burden to respond to the motion for summary
judgment and present to the trial court any matters that would preclude summary judgment.
Acad. of Skills, 260 S.W.3d at 535; Pierce, 226 S.W.3d at 714.
          The trial court determines a motion for summary judgment based on the ―pleadings [. . .]
on file at the time of the hearing, or filed thereafter and before judgment with permission of the
court.‖ See Spin Doctor Golf, Inc. v. Paymentech, L.P., 296 S.W.3d 354, 361 (Tex. App.–Dallas
2009, pet. denied) (quoting TEX. R. CIV. P. 166a(c)). Ordinarily, a summary judgment cannot be
based entirely upon the failure of a plaintiff to state a cause of action unless the defendant levels
a special exception identifying the deficiency, thus affording the plaintiff an opportunity to
amend his pleading to state a cause of action. Denson v. Tex. Dep’t Crim. Justice–Institutional
Div., No. 12-02-00099-CV, 2003 WL 21254862, at *3 (Tex. App.–Tyler May 30, 2003, no pet.)
(mem. op.) (citing In re B.I.V., 870 S.W.2d 12, 13-14 (Tex. 1994)). However, an order granting
summary judgment on the pleadings, when the defendants did not specially except before
moving for judgment as a matter of law, is not reversible error in every instance. Denson, 2003
WL 21254862, at *3 (citing Hidalgo v. Sur. Sav. & Loan Ass’n, 462 S.W.2d 540, 543 (Tex.
1971)).
          ―Pleadings may contain judicial admissions through which a party pleads himself out of
court.‖ Denson, 2003 WL 21254862, at *3. Summary judgment is proper when the plaintiff
pleads facts that affirmatively negate his cause of action.        Id.   Similarly, if the pleading
deficiency is of the type that cannot be cured by an amendment, a special exception is
unnecessary and a summary judgment based on the pleading‘s failure to state a legal claim is
appropriate. Id. When a party‘s pleadings contain statements admitting facts or conclusions
directly contrary to the party‘s theory of recovery or defense, the pleadings may constitute
summary judgment proof for the opposing party. Ball v. Neel, No. 12-03-00205-CV, 2004 WL
1475106, at *2 (Tex. App.—Tyler June 30, 2004, no pet.) (mem. op.). The pleadings are not
evidence. Id. Instead, the court assumes the facts in the nonmovant‘s pleadings are true. Id.



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Applicable Law
       Over 100 years ago, the Texas Supreme Court held that private ―attorneys are authorized
to practice their profession, to advise their clients and interpose any defense or supposed defense,
without making themselves liable for damages.‖ Kruegel v. Murphy, 126 S.W. 343, 345 (Tex.
Civ. App.–Dallas 1910, writ ref‘d); see McKnight v. Riddle & Brown, P.C., 877 S.W.2d 59, 61
(Tex. App.–Tyler 1994, writ denied). In the context of legal malpractice claims, the court has
more recently explained that, at common law, an attorney owes a duty of care only to her client,
not to third parties who may have been damaged by the attorney‘s negligent representation of the
client. Barcelo v. Elliott, 923 S.W.2d 575, 577 (Tex. 1996). At common law, the rule of privity
limits attorney liability to third parties. McCamish, Martin, Brown & Loeffler v. F.E. Appling
Interests, 991 S.W.2d 787, 792 (Tex. 1999). The general rule is that persons who are not in
privity with the attorney cannot sue the attorney for legal malpractice. Id. ―Without this ‗privity
barrier,‘ the rationale goes, clients would lose control over the attorney-client relationship, and
attorneys would be subject to almost unlimited liability.‖ Barcelo, 923 S.W.2d at 577; see Chu
v. Hong, 249 S.W.3d 441, 446 n.18 (Tex. 2008).
       Supreme court precedent indicates this rule also applies to other private causes of action
against a private attorney for matters related to that attorney‘s practice of her profession on
behalf of an adverse party. Kruegel, 126 S.W. at 345; McKnight, 877 S.W.2d at 60-61. As one
of our sister courts has explained,


       [a]n attorney may assert any of [her] client‘s rights without being personally liable for damages to
       the opposing party. An attorney‘s duties that arise from the attorney-client relationship are owed
       only to the client, not to third persons, such as adverse parties. . . . They have not retained the
       attorney, the attorney has not rendered them any services, and no privity of contract exists between
       them and the attorney. . . . They have no right of action against the attorney for any injuries they
       suffer because of the attorney‘s fault in performing duties owed only to the client.


White v. Bayless, 32 S.W.3d 271, 275-76 (Tex. App.–San Antonio 2000, pet. denied). In short,
private attorneys owe no duty to adverse litigants. See id. at 276 (finding attorney owed no duty
to opposing party); Mitchell v. Chapman, 10 S.W.3d 810, 811 (Tex. App.–Dallas 2000, pet.
denied) (same).
       This rule is based upon sound policies and is vital to our adversary system of justice. See
Toles v. Toles, 113 S.W.3d 899, 910 (Tex. App.–Dallas 2003, no pet.). If an attorney could be
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held liable for statements made, or actions taken, in the course of representing her client, she
would be forced to balance her own potential exposure against her client‘s best interest. See id.
―Any other rule would act as a severe and crippling deterrent to the ends of justice for the reason
that a litigant might be denied a full development of [her] case if [her] attorney were subject to
the threat of liability for defending [her] client‘s position to the best and fullest extent allowed by
law, and availing [her] client of all rights to which [she] is entitled.‖ See Toles, 113 S.W.3d at
910; see also Renfroe v. Jones & Assocs., P.C., 947 S.W.2d 285, 288 (Tex. App.–Fort Worth
1997, pet. denied). The public has an important interest in loyal and aggressive representation by
the legal profession. See Toles, 113 S.W.3d at 910; Renfroe, 947 S.W.2d at 288.
       Accordingly, attorneys are generally not liable to an opposing party for their conduct in
representing their clients, even if that conduct is wrongful. See Toles, 113 S.W.3d at 910;
Renfroe, 947 S.W.2d at 288. As the Dallas court has explained, ―an attorney‘s conduct, even if
frivolous or without merit, is not actionable as long as the conduct was part of the discharge of
the lawyer‘s duties in representing . . . her client.‖ See Toles, 113 S.W.3d at 910-11; see also
Renfroe, 947 S.W.2d at 288. This rule focuses on the type of conduct the attorney was engaged
in, not on whether the attorney‘s conduct was meritorious. See Toles, 113 S.W.3d at 910; White,
32 S.W.3d at 276; Renfroe, 947 S.W.2d at 288. For example, there is no right of recovery
against an attorney for filing motions in a lawsuit, even if they were frivolous or without merit,
―because making motions is conduct an attorney engages in as part of the discharge of [her]
duties in representing a party in a lawsuit.‖ See Toles, 113 S.W.3d at 910; see also White, 32
S.W.3d at 276.
       This exception to liability does not apply when an attorney engages in acts that ―are
entirely foreign to the duties of an attorney.‖ Poole v. Houston & Tex. Cent. Ry. Co., 58 Tex.
134, 137-38 (1882); see Toles, 113 S.W.3d at 910 (attorneys are charged with the duty of
zealously representing their clients within the bounds of the law); Renfroe, 947 S.W.2d at 288
(same). An attorney‘s participation in ―fraudulent activities‖ may constitute actions ―foreign to
the duties of an attorney.‖ McKnight, 877 S.W.2d at 61. And an attorney is not protected from
liability when her actions constitute a negligent misrepresentation in violation of section 552 of
the Second Restatement of the Law of Torts. McCamish, 991 S.W.2d at 795; see RESTATEMENT
(SECOND) OF TORTS § 552 (1977). Finally, ―[a]n attorney‘s misconduct in litigation gives rise to
remedies other than a separate action seeking damages from the attorney, which remedies are

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properly administered in the case in which the misconduct occurred.‖ See Toles, 113 S.W.3d at
911; see also, e.g., TEX. GOV‘T CODE ANN. § 21.002 (Vernon 2004); TEX. R. CIV. P. 13; TEX. R.
CIV. P. 215; Williams v. Akzo Nobel Chems., Inc., 999 S.W.2d 836, 843 (Tex. App.–Tyler 1999,
no pet.).
Discussion
        Hughes claimed in her motion for summary judgment that Elmakiss‘s live petition
asserted a private civil action for her conduct relating to her representation of Elmakiss‘s ex-wife
during their previous divorce action. A review of Elmakiss‘s petition demonstrates that Hughes
is correct in her assertion. Likewise, the petition itself demonstrates that each complained of act
was part of Hughes‘s direct performance of her duties as an attorney representing the ex-wife, a
party adverse to Elmakiss. For example, the complained of acts include preparing draft court
orders and a draft judgment, making representations to the trial court that Elmakiss disputed, and
advocating positions adverse to Elmakiss‘s interests. Nowhere in the petition are there any
allegations of acts that ―are entirely foreign to the duties of an attorney.‖ See Poole, 58 Tex. at
137-38; McKnight, 877 S.W.2d at 61. Likewise, the petition does not allege facts sufficient to
assert a cause of action under section 552 of the Restatement. See McCamish, 991 S.W.2d at
795; see also RESTATEMENT (SECOND)                OF   TORTS § 552.          Instead, Elmakiss‘s pleadings
affirmatively negate any cause of action. See Kruegel, 126 S.W. at 345; McKnight, 877 S.W.2d
at 60-61; see also Denson, 2003 WL 21254862, at *3 (summary judgment proper where plaintiff
pleads facts that affirmatively negate cause of action).
        Elmakiss asserts that he may bring a cause of action against Hughes under section
110.003 of the Texas Civil Practice and Remedies Code. See TEX. CIV. PRAC. & REM. CODE
ANN. § 110.003 (Vernon 2005). That statute reads, in pertinent part, as follows:

        Religious Freedom Protected

        (a) Subject to Subsection (b), a government agency may not substantially burden a person‘s free
        exercise of religion.

        (b) Subsection (a) does not apply if the government agency demonstrates that the application of
        the burden to the person:

                (1) is in furtherance of a compelling governmental interest; and
                (2) is the least restrictive means of furthering that interest.




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Id. ―Government agency,‖ as applicable here, is defined as ―this state or a municipality or other
political subdivision of this state; and . . . any agency of this state or a municipality or other
political subdivision of this state, including a department, bureau, board, commission, office,
agency, council, or public institution of higher education.‖ TEX. CIV. PRAC. & REM. CODE ANN.
§ 110.001(a)(2) (Vernon 2005). Again, Elmakiss alleged in his pleadings that Hughes was ―an
individual and an attorney with an office in Smith County‖ who represented his ex-wife in a civil
divorce action. See TEX. CIV. PRAC. & REM. CODE ANN. § 110.005(d) (Vernon 2005) (―A person
may not bring an action for damages or declaratory or injunctive relief against an individual,
other than an action brought against an individual acting in the individual‘s official capacity as
an officer of a government agency.‖). His pleadings affirmatively negate a cause of action under
section 110.003. See TEX. CIV. PRAC. & REM. CODE ANN. § 110.003; see also Denson, 2003 WL
21254862, at *3 (summary judgment proper where plaintiff pleads facts that affirmatively negate
cause of action). We overrule Elmakiss‘s first through fifth issues.


                                                    DISPOSITION
         We affirm the judgment of the trial court. Hughes has, in her brief, moved for appellate
sanctions. That motion is overruled.


                                                                  SAM GRIFFITH
                                                                      Justice




Opinion delivered July 30, 2010.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.




                                                    (PUBLISH)



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