Affirmed and Opinion filed May 17, 2018.




                                       In the

                      Fourteenth Court of Appeals

                               NO. 14-17-00215-CV

                          DAVID SHELLER, Appellant
                                          v.
   CORRAL TRAN SINGH, LLP, SUSAN TRAN, and BRENDON SINGH,
                          Appellees

                     On Appeal from the 127th District Court
                             Harris County, Texas
                       Trial Court Cause No. 2016-01407

                                  OPINION


      Appellant David Sheller appeals from the trial court’s granting summary
judgment in favor of appellees Corral Tran Singh, LLP (CTS), Susan Tran, and
Brendon Singh (collectively, CTS Defendants) on Sheller’s claims for violations of the
Texas Deceptive Trade Practices Act (DTPA) and negligent misrepresentation. Sheller
also appeals from the trial court’s denying summary judgment in Sheller’s favor on his
claims. Sheller further challenges the trial court’s failure to require CTS Defendants
to admit requests for admission or to strike CTS Defendants’ pleadings under Texas
Rule of Civil Procedure 215.4. Concluding that the trial court could properly grant
summary judgment on CTS Defendants’ attorney-immunity defense, and that the trial
court did not abuse its discretion by refusing to impose sanctions on CTS Defendants,
we affirm.

                                I.   BACKGROUND

      New Millennium Management, L.L.C., operated a commercial building in
Houston, Texas. In September 2013, New Millennium filed a voluntary petition under
chapter 11 of the Bankruptcy Code. New Millennium as the debtor-in-possession was
initially represented by Margaret McClure, as approved by the bankruptcy court in
October 2013.

      On January 5, 2014, New Millennium—named as the client—signed a fee
agreement with CTS. Sheller signed the fee agreement as the sole member of New
Millennium. New Millennium filed an application to employ CTS as a substitute for
McClure, which the bankruptcy court approved on January 13, 2014.

      At the time, New Millennium creditor TexHou Investment Group, Ltd., had on
file a motion to appoint a chapter 11 trustee or to convert the case to a chapter 7
bankruptcy case. The hearing on the motion took place on January 22 and 30, 2014.
CTS handled the hearing.      On February 25, 2014, the bankruptcy court denied
TexHou’s motion to convert but agreed to appoint a trustee to oversee the estate of
New Millennium. The trustee was appointed on February 28, 2014. This order ended
the engagement of CTS for New Millennium, which was no longer a debtor-in-
possession. Upon the motion of the chapter 11 trustee and TexHou, the case was
converted to a chapter 7 case in June 2014.

      In May 2014, CTS filed an amended final application for approval of


                                          2
compensation for services rendered and reimbursement of expenses incurred as chapter
11 bankruptcy counsel for debtor New Millennium for the time period of January 5,
2014, to February 25, 2014. There was no objection to CTS’s application. The
bankruptcy court held a hearing and in August 2014 concluded that CTS should be
allowed a fee of $3,880.

      The bankruptcy case was dismissed in October 2015. In January 2016, Sheller
filed suit against CTS Defendants for DTPA violations and “negligence and legal
malpractice.” Sheller amended his petition to remove the negligence and malpractice
claims and to add claims for negligent misrepresentation.

      Sheller alleged that CTS Defendants: did not prepare witnesses and improperly
conducted direct examinations; did not research and incorrectly advised Sheller there
could be no appeal from the appointment of the chapter 11 trustee; did not timely put
together an exclusive plan; did not list expert witnesses and exhibits; did not spend
adequate time on monthly operating reports; and did not adequately and timely confer
with Sheller or return phone calls.

      With regard to the DTPA, Sheller alleged that Tran violated section 17.50(2) by
violating an express warranty and making a false statement, and that CTS Defendants
violated “section 17.46 et seq.” because their “services and ability were represented to
be competent and they were of a different standard, quality or character.” Sheller
alleged that CTS Defendants’ “repeated failures to list experts, exhibits, perform
diligent research or even any research before making statements, and the refusal to put
together an exclusive plan before the time expired to do so” violated section 17.50(3)
of the DTPA. Sheller also pleaded “negligent misrepresentation as to all statements by
[CTS Defendants] in representing New Millennium.”

      In April 2016, CTS Defendants removed the case to the United States District
Court for the Southern District of Texas. The case was remanded in July 2016.
                                           3
      The parties filed cross-motions for summary judgment. CTS Defendants filed a
motion for summary judgment based on the affirmative defenses of res judicata and
attorney immunity.1 Sheller filed a response2 and a supplemental response.3 Sheller

      1
          CTS Defendants attached:
               the bankruptcy court’s February 25, 2014 memorandum opinion;
               the bankruptcy court’s August 18, 2014 memorandum opinion;
               the engagement letter and fee agreement dated January 4, 2014, between CTS
                and New Millennium;
               New Millennium’s January 6, 2014 application to employ CTS as the debtor’s
                attorneys;
               the bankruptcy court’s January 13, 2014 order authorizing CTS to serve as
                New Millennium’s counsel with Tran as attorney in charge;
               the bankruptcy schedules filed September 23, 2013;
               CTS’s amended final application for approval of fees as chapter 11 counsel
                filed May 15, 2014;
               the docket in the bankruptcy case; and
             an affidavit by Richard Wilson, counsel for CTS Defendants, signed July 5,
                2016.
      2
          Sheller attached:
               CTS’s original final application and amended final application for approval of
                fees as chapter 11 counsel filed March 28 and May 15, 2014, respectively;
               CTS’s amended final application for approval of fees as chapter 11 counsel
                filed May 19, 2014;
               an email dated January 7, 2014, from Tran to Sheller;
               a New Millennium bank statement dated October 31, 2013;
               an email dated January 10, 2014, from Sheller to Tran and McClure;
               an affidavit in support of the denial of summary judgment by Sheller; and
             the chapter 7 trustee’s emergency motion to sell real property dated July 29,
                2014, with proposed order authorizing sale.
      3
          Sheller attached:
               an affidavit by Robert Moon signed August 9, 2016;
               an affidavit by David Littwitz signed March 3, 2014;
               transcript excerpts of Moon’s, Littwitz’s, and Michael Lane’s testimony during
                                                  4
filed a motion for summary judgment, arguing that there were no material issues of fact
on his DTPA and negligent-misrepresentation claims.4 CTS Defendants responded.5
Sheller replied.6

       Sheller filed and amended a motion for sanctions and default judgment. Sheller
then filed a “supplemental motion for sanctions and default judgment for aggravated
perjury pursuant to Penal Code art. 37.02 et seq.”7 The trial court granted CTS
Defendants’ summary-judgment motion and denied Sheller’s. Sheller filed a motion
for new trial. The trial court denied his motion. Sheller timely appealed.

                                         II.   ANALYSIS

A. Standard of review

       We review summary judgments de novo. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005). A plaintiff moving for traditional summary judgment
must conclusively establish all essential elements of its claim. Cullins v. Foster, 171
S.W.3d 521, 530 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (citing MMP,

                 the January 22, 2014 hearing in bankruptcy court;
                an email dated February 27, 2014, from Tran to Sheller, forwarding an email
                 from the chapter 11 trustee;
                an email dated January 7, 2014, from Tran to Sheller; and
                Sheller’s supplemental affidavit in response to CTS Defendants’ summary-
                 judgment motion.
       4
          Sheller referenced multiple exhibits as attached to his summary-judgment motion, but the
record on appeal does not contain them. Sheller stated that he did not reattach these exhibits to his
amended summary-judgment motion. The referenced documents all appear to be otherwise included
in the record as exhibits to Sheller’s filings related to CTS Defendants’ summary-judgment motion.
       5
           CTS Defendants attached the bankruptcy court’s June 2, 2014 memorandum opinion.
       6
         Sheller attached an affidavit by Dale Zuehls dated July 14, 2016; an email from Sheller to
Tran and McClure dated January 10, 2014; and an email from Tran to Sheller and McClure dated
January 10, 2014.
       7
         At the sanctions hearing, the trial court explained that it could not prosecute CTS Defendants
for perjury and that Sheller would have to “refer it to the DA’s office.”

                                                   5
Ltd. v. Jones, 710 S.W.2d 59, 60 (Tex. 1986)); see Tex. R. Civ. P. 166a(c). Traditional
summary judgment for a defendant is proper when it (1) negates at least one element
of each of the plaintiff’s claims or (2) establishes all elements of an affirmative defense
to each claim. Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Cullins,
171 S.W.3d at 530 (citing Sci. Spectrum, Inc. v Martinez, 941 S.W.2d 910, 911 (Tex.
1997)); see Tex. R. Civ. P. 166a(c).

      Once the moving party establishes its right to a traditional summary judgment,
the burden shifts to the nonmoving party to present evidence raising a genuine issue of
material fact, thereby precluding summary judgment. See M.D. Anderson Hosp. &
Tumor Inst. v. Willrich, 28 S.W.3d 22, 23 (Tex. 2000) (per curiam); see Navy v. Coll.
of the Mainland, 407 S.W.3d 893, 898 (Tex. App.—Houston [14th Dist.] 2013, no
pet.). When reviewing a traditional summary judgment, we take as true all evidence
favorable to the nonmoving party and indulge every reasonable inference in the
nonmoving party’s favor. Cantey Hanger, LLP v. Byrd, 467 S.W.3d 477, 481 (Tex.
2015).

      “When, as in this case, the parties file competing motions for summary
judgment, and the trial court grants one motion and denies the other, this court may
consider the propriety of the denial as well as the grant.” Lidawi v. Progressive Cty.
Mut. Ins. Co., 112 S.W.3d 725, 729 (Tex. App.—Houston [14th Dist.] 2003, no pet.).
If the issue raised is based on undisputed and unambiguous facts, then we may
determine the question presented as a matter of law. Id. (citing Gramercy Ins. Co. v.
MRD Invs., Inc., 47 S.W.3d 721, 724 (Tex. App.—Houston [14th Dist.] 2001, pet.
denied)). We may then either affirm the judgment or reverse and render the judgment
the trial court should have rendered, including one that denies both motions. Id. If,
however, resolution of the issues rests on disputed facts, then summary judgment is
inappropriate, and we should reverse and remand for further proceedings. Id.

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      When, as here, the trial court’s order granting summary judgment does not
specify the grounds upon which it was granted, we affirm the judgment if any of the
theories advanced in the motion is meritorious. Carr v. Brasher, 776 S.W.2d 567, 569
(Tex. 1989). In other words, an appellant must show that each independent argument
advanced in the motion is insufficient to support the summary judgment. Collins v.
Allied Pharmacy Mgmt., Inc., 871 S.W.2d 929, 932 (Tex. App.—Houston [14th Dist.]
1994, no writ).

B. Attorney-immunity defense

      In his first issue, Sheller argues that the trial court erred in granting CTS
Defendants’ motion for summary judgment “when there were material issues of law
and fact which all favored . . . Sheller.” Because the trial court did not specify on which
ground it granted CTS Defendants’ motion, we consider whether any ground they
asserted supports the summary judgment.

      One of the grounds CTS Defendants advanced was attorney immunity. Attorney
immunity is an affirmative defense that protects attorneys from liability to nonclients.8
Cantey Hanger, 467 S.W.3d at 481 (citing Sacks v. Zimmerman, 401 S.W.3d 336, 339–
40 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); Kruegel v. Murphy, 126 S.W.
343, 345 (Tex. Civ. App. 1910, writ ref’d)). The purpose of the attorney-immunity
defense is to ensure loyal, faithful, and aggressive advocacy to clients. Id. To be
entitled to summary judgment, CTS Defendants must have proven that there was no
genuine issue of material fact as to whether their conduct was protected by attorney
immunity and that they were entitled to judgment as a matter of law. See id.

      According to Sheller, the Texas Supreme Court’s decision in Cantey Hanger v.


      8
         There is no dispute that CTS Defendants’ client was New Millennium, not Sheller
individually.

                                            7
Byrd does not apply to his case. We disagree.

       The Texas Supreme Court recently affirmed that Cantey Hanger controls our
analysis of attorney immunity. Youngkin v. Hines, —S.W.3d—, No. 16-0935, 2018
WL 1973661, at *4 (Tex. Apr. 27, 2018). As the Youngkin Court stated:

       In Cantey Hanger, we explained that an attorney is immune from liability
       to nonclients for conduct within the scope of his representation of his
       clients. [467 S.W.3d] at 481. Put differently, an attorney may be liable
       to nonclients only for conduct outside the scope of his representation of
       his client or for conduct foreign to the duties of a lawyer. See id. at 482.
       We also clarified in Cantey Hanger that the above inquiry correctly
       focuses on the kind of conduct at issue rather than the alleged
       wrongfulness of said conduct. Id. at 483. That is, a lawyer is no more
       susceptible to liability for a given action merely because it is alleged to be
       fraudulent or otherwise wrongful. See id.

Id.   The Court explained that “Cantey Hanger usefully illustrates the scope-of-
representation standard.” Id. In Cantey Hanger:

       [A] party in a divorce proceeding sued the opposing law firm for its role
       in executing a bill of sale on behalf of its client. See [467 S.W.3d] at 479.
       The firm’s client was awarded ownership of an airplane in a divorce
       decree, which also stipulated that the client would pay certain taxes on
       said airplane. See id. The firm then executed a bill of sale on behalf of
       its client in a way that allegedly shifted the tax burden to the other spouse.
       See id. Despite the allegation that the firm assisted its client in defying
       the terms of the decree, we held that the other spouse could not hold the
       firm liable for this conduct. See id. at 485. That the plaintiff characterized
       the firm’s conduct as fraudulent or otherwise wrongful was immaterial to
       our evaluation of the immunity defense. Rather, the firm was shielded by
       attorney immunity because preparing documents ancillary to the divorce
       decree, even in a manner that allegedly violated the decree, was within the
       scope of representation relating to execution of the decree and was not
       foreign to the duties of a lawyer. See id.
Id. “The only facts required to support an attorney-immunity defense are the type of
conduct at issue and the existence of an attorney-client relationship at the time. A court

                                             8
would then decide the legal question of whether said conduct was within the scope of
representation.” Id. at *6.

       Therefore, “[i]n light of Cantey Hanger,” we look beyond nonclient Sheller’s
characterizations of CTS Defendants’ activity as DTPA violations and negligent
misrepresentations and instead focus on the type of conduct at issue. See id. at *5.
Sheller complained about CTS Defendants’ acts and communications in connection
with listing or not listing certain witnesses as experts. Sheller alleged that CTS
Defendants told him that “as principal of the debtor in possession [he] d[id] not have
standing” to appeal the appointment of the chapter 11 trustee. Sheller also complained
about CTS Defendants’ “repeated failures” to prepare and properly examine witnesses,
list exhibits, perform research, put together an exclusive plan, prepare monthly
operating reports, and return phone calls to prepare reports or prepare for hearings.

       Each of these challenged actions falls within the kind of activity that would be
expected as part of the discharge of an attorney’s duties in representing his client in a
bankruptcy matter and, in particular, in the underlying proceeding. We conclude that
CTS Defendants’ conduct was directly within the scope of their representation of their
client New Millennium as the debtor-in-possession in the context of the chapter 11
bankruptcy proceeding, regardless of whether such conduct was “meritorious.” See
id.; Cantey Hanger, 467 S.W.3d at 485 (“Meritorious or not, the type of conduct alleged
falls squarely within the scope of Cantey Hanger’s representation of Simenstad in the
divorce proceedings.” (emphasis in orig.)); U.S. Bank Nat’l Ass’n v. Sheena, 479
S.W.3d 475, 480 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (“Under the Cantey
Hanger case, the summary-judgment evidence conclusively proves that Sheena’s
allegedly actionable conduct was part of Sheena’s discharge of his duties to his client
in the litigation context.”).

       Additionally, we conclude that none of the alleged conduct by CTS Defendants

                                           9
was “foreign to the duties of an attorney.” See Youngkin, 2018 WL 1973661, at *4, 6;
Cantey Hanger, 467 S.W.3d at 482–85. Our court has provided three examples of such
conduct, as described by Cantey Hanger: (1) participating in a fraudulent business
scheme with a client outside the litigation context, (2) drafting and filing fraudulent
legal documents in a non-litigation context to hide the client’s assets and evade a
judgment, and (3) committing a physical assault during trial. See U.S. Bank, 479
S.W.3d at 480 (citing Cantey Hanger, 467 S.W.3d at 482, and Essex Crane Rental
Corp. v. Carter, 371 S.W.3d 366, 382 (Tex. App.—Houston [1st Dist.] 2012, pet.
denied)). None of the conduct alleged by Sheller falls within any of these three
categories. See id.

      Both the Texas Supreme Court and our court have “cited approvingly” Alpert v.
Crain, Caton & James, P.C., 178 S.W.3d 398 (Tex. App.—Houston [1st Dist.] 2005,
pet. denied), when considering the legal standard for conduct “foreign to the duties of
an attorney.” See Youngkin, 2018 WL 1973661, at *4; Cantey Hanger, 467 S.W.3d at
483–84; U.S. Bank, 479 S.W.3d at 480. In Alpert, the First Court of Appeals explained:
“If a lawyer participates in independent fraudulent activities, his action is ‘foreign to
the duties of an attorney.’” 178 S.W.3d at 406 (citation omitted). The Alpert court
then considered whether certain actions such as filing lawsuits and pleadings, providing
legal advice upon which the client acted, and awareness of settlement negotiations were
“foreign to the duties of an attorney” and determined that they were not. Id. at 408.
Accordingly, the Alpert court concluded that the trial court had not erred by dismissing
claims against an attorney by a nonclient based on “acts taken and communications
made to facilitate the rendition of legal services to” the client. Id.; see Youngkin, 2018
WL 1973661, at *4; Cantey Hanger, 467 S.W.3d at 483–84.

      Here, Sheller did not allege that CTS Defendants engaged in any “independently
fraudulent activities.” See Alpert, 178 S.W.3d at 406. Moreover, all of the challenged

                                           10
conduct involved acts taken and communications made to facilitate the rendition of
legal services to client New Millennium in the context of the bankruptcy proceeding.
See U.S. Bank, 479 S.W.3d at 480; Alpert, 178 S.W.3d at 408. Therefore, CTS
Defendants’ actions were not “foreign to the duties of an attorney.”

      Nevertheless, Sheller argues that he “should have won and [CTS Defendants]
should have lost on negligent misrepresentation.” Sheller asserts that the trial court’s
decision to grant summary judgment on his negligent-misrepresentation claims runs
contrary to McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d
787 (Tex. 1999), which “allows suit against attorneys by nonclients for negligent
misrepresentation.” See Cantey Hanger, 467 S.W.3d at 483 n.7 (“In McCamish, we
held that an attorney can be liable to a non-client for negligent misrepresentation where
“an independent duty to the nonclient [arises] based on the [attorney’s] manifest
awareness of the nonclient’s reliance on the misrepresentation and the [attorney’s]
intention that the nonclient so rely.” (citing 991 S.W.2d at 792) (alterations in orig.)).

      Even construed in the light most favorable to Sheller, the emails at issue
allegedly containing negligent misrepresentations were client communications directed
to New Millennium by way of Sheller wearing his “managing member of New
Millennium” hat. The communication concerning lack of standing to appeal concerned
Sheller “as principal of the debtor in possession” New Millennium, not individually.
The communications relating to the witness list took place in the context of requesting
documents and information from Sheller on New Millennium’s behalf to use in
defending the motion to convert.

      Nothing within these communications indicates that CTS Defendants intended
Sheller as an individual rely on the allegedly negligent misrepresentations or that CTS
Defendants were manifestly aware of Sheller’s reliance on such representations.
Moreover, although Sheller claims that he relied on CTS Defendants’ statements,

                                            11
nothing indicates that his reliance was justifiable. Any communication to Sheller
individually as a nonclient would have been directed to him as a creditor9 of New
Millennium.       See McCamish, 991 S.W.2d at 794 (“Generally, courts have
acknowledged that a third party’s reliance on an attorney’s representation is not
justified when the representation takes place in an adversarial context. . . . This
adversary concept reflects the notion that an attorney, hired by a client for the benefit
and protection of the client’s interests, must pursue those interests with undivided
loyalty (within the confines of the Texas Disciplinary Rules of Professional Conduct),
without the imposition of a conflicting duty to a nonclient whose interests are adverse
to the client.” (citations omitted)); Dixon Fin. Servs., Ltd. v. Greenberg, Peden,
Siegmyer & Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548, at *9–11 (Tex.
App.—Houston [1st Dist.] Mar. 20, 2008, pet. denied) (mem. op. on reh’g) (rejecting
appellants’ argument that McCamish permitted their negligent-misrepresentation claim
where appellants did not allege that their reliance was reasonable or justifiable and
pleadings indicated “interests were not aligned and can most accurately be
characterized as adverse”). We cannot conclude that any analysis under McCamish
requires us to reverse the trial court’s summary judgment with respect to Sheller’s
negligent-misrepresentation claims.

       We conclude that CTS Defendants conclusively established that their conduct
was protected by the doctrine of attorney immunity. Sheller did not otherwise raise a
genuine issue of material fact. Therefore, the trial court did not err by granting
summary judgment in favor of CTS Defendants on all of Sheller’s claims. We overrule
Sheller’s first issue.10

       9
          Sheller was one of New Millennium’s largest creditors, with a $550,000 unsecured
nonpriority claim for “business loans” in the bankruptcy.
       10
          Because we have upheld the trial court’s summary judgment on attorney immunity, we do
not address Sheller’s res judicata arguments. See Tex. R. App. P. 47.1; Carr, 776 S.W.2d at 569.

                                              12
      In his third issue, Sheller argues that the trial court erred as a matter of law in
failing to grant his motion for summary judgment. Because we have decided the trial
court properly could conclude that attorney immunity barred all of Sheller’s claims, we
likewise overrule his third issue.

C. Refusal to sanction

      In his second issue, Sheller challenges the trial court’s refusal to require CTS
Defendants to admit requests for admission or to strike CTS Defendants’ pleadings
under Texas Rule of Civil Procedure 215.4. Sheller contends that CTS Defendants
“evasively and falsely answered” discovery with regard to their treatment of purported
expert witnesses David Littwitz and Robert Moon. Sheller argues that he is entitled to
reversal and reasonable attorney’s fees on this basis. We disagree.

      Rule 198.1 provides that a party may propound written requests for admissions.
See Tex. R. Civ. P. 198.1. The responding party must timely provide a response that
fairly meets the substance of the request. See id. 198.2. The party who has requested
admissions may move the trial court to determine the sufficiency of an answer or
objection. See id. 215.4(a). “[A]n evasive or incomplete answer may be treated as a
failure to answer” and “[i]f the court determines that an answer does not comply with
the requirements of Rule 198, it may order either that the matter is admitted or that an
amended answer be served.” Id. Under rule 215.4(b):

      If a party fails to admit the genuineness of any document or the truth of
      any matter as requested under rule 198 and if the party requesting the
      admissions thereafter proves the genuineness of the document or the truth
      of the matter he may apply to the court for an order requiring the other
      party to pay him the reasonable expenses incurred in making that proof,
      including reasonable attorney[’]s fees.

Id. 215.4(b). The court must grant the order unless it finds that (1) the request for
admission was held objectionable pursuant to rule 193, (2) the admission sought was

                                           13
of no substantial importance, (3) the party failing to make the admission had a
reasonable ground to believe he might prevail on the matter, or (4) there was other good
reason for the failure to admit. Id.

      We review a trial court’s decision regarding sanctions under rule 215.4 for an
abuse of discretion. See Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004); Perez
v. Perez, No. 13-11-00169-CV, 2013 WL 398932, at *14–15 (Tex. App.—Corpus
Christi Jan. 31, 2013, no pet.) (mem. op.) (denial of motion for sanctions was not abuse
of discretion (citing rules 198 and 215.4)). The trial court’s ruling should be reversed
only if it was arbitrary or unreasonable. Cire, 134 S.W.3d at 839.

      In his written discovery, Sheller sought to have CTS Defendants admit that they
failed to timely disclose experts for a bankruptcy hearing and that the experts and their
exhibits were stricken. In their responses, CTS Defendants took the position that New
Millennium told them there were no experts but to “keep pushing” like there were.
CTS Defendants denied that they failed to timely list exhibits or experts or that exhibits
or experts were ever stricken. At the sanctions hearing, the trial court indicated that it
was “confused” by Sheller’s motion: “They’ve answered your discovery. You’re just
saying that they answered them wrong.” The trial court also stated that Sheller could
use the emails and transcript excerpts on which he relied as “impeachment.” In other
words, in the trial court’s view, the matter was disputed and CTS Defendants did not
provide evasive or untruthful answers. On this record, we cannot conclude that the trial
court abused its discretion in refusing to deem the matter admitted.11

      In addition, to obtain reversal, Sheller would have to show that any error was
reasonably calculated to cause and probably did cause rendition of an improper
judgment or probably prevented him from properly presenting his case on appeal. See


      11
           Nothing in the language of rule 215.4 provides for the sanction of striking pleadings.

                                                  14
Tex. R. App. P. 44.1(a); Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.
1989). Sheller has not done so. We already have determined that CTS Defendants’
conduct and communications relating to the exhibit list and exhibits—whether
meritorious or not—fell within the scope of CTS Defendants’ representation of New
Millennium in the bankruptcy proceeding and were not “foreign to the duties of an
attorney.” Summary judgment here did not turn on the requested admissions. See Gee,
765 S.W.2d at 396.

      We overrule Sheller’s second issue.

                               III.   CONCLUSION

      Having overruled all of Sheller’s issues, we affirm the trial court’s judgment.


                                      /s/        Marc W Brown
                                                 Justice



Panel consists of Justices Boyce, Jamison, and Brown.




                                            15
