Opinion issued February 26, 2019




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                             NO. 01-17-00494-CV
                          ———————————
          ROSE TURNER AND STEPHANIE MOORE, Appellants
                                      V.
LINDA WILLIAMS, ANDREW ROSS, AND STEVEN A. SINKIN, Appellees


                   On Appeal from the 247th District Court
                            Harris County, Texas
                      Trial Court Case No. 2016-17907


                        MEMORANDUM OPINION

      Appellants Rose Turner and her daughter Stephanie Moore sued Linda

Williams and her attorneys, Andrew Ross and Steven A. Sinkin, to contest the

enforcement of an order for child-support arrearages. Rose asserted that her ex-

husband, Charles Turner, was the sole child-support obligor and that Williams
improperly levied property that she and Moore owned. They sued for a

cancellation of liens and levies, a declaratory judgment regarding a previously

entered turnover order, a statutory claim regarding the filing of fraudulent liens,

sanctions, and a permanent injunction. Williams, Ross, and Sinkin filed special

exceptions, which asserted that Ross and Sinkin were immune from suit because

all of Rose Turner and Moore’s claims against them were based on Ross and

Sinkin’s actions taken while representing a client in litigation. The trial court

severed a claim for determination of the ownership of property that had been

levied, and it dismissed all the other claims against Williams, Ross, and Sinkin

based on their special exceptions.

      On appeal, Rose Turner and Moore challenge the dismissal, and they raise

issues regarding: (1) a protective order granted in favor of Ross and Sinkin; (2) the

award of attorneys’ fees; and (3) the effect of a Rule 11 agreement.

      We conclude that the trial court improperly granted the special exceptions

and dismissed the claims against Williams because the special exceptions did not

identify with particularity the deficiency in the pleadings and did not show as a

matter of law that claims against her could not proceed. We also conclude that the

court erred by dismissing the claim for sanctions against Ross and Sinkin without

giving Rose Turner and Moore an opportunity to replead. We reverse the judgment

of dismissal as to those claims, and we affirm the judgment of dismissal as to the


                                         2
remaining claims against Ross and Sinkin, which are barred by attorney immunity.

We also reverse the protective order and the award of attorney’s fees.

                                    Background

      Charles Turner and Linda Williams are the parents of Mario and Cecil

Turner. At all times relevant to this appeal, Mario and Cecil were adults. In May

2010, after a hearing, Williams obtained an order for child-support arrearages in

the amount of $117,622.32. The order awarded Williams $8,000 in attorney’s fees,

as well as contingent appellate attorney’s fees. When the order on arrearages was

entered, Charles Turner was married to Rose Turner.

      In July 2010, the court entered a turnover order, which provided that

Williams was entitled to “issue child support liens and levies in the name of”

Charles’s then-wife, Rose Turner.1 The following month, Right Choice Credit

Union received a notice of child-support lien, which stated that it attached to “all

nonexempt real and personal property of Charles Edward Turner and/or Rose

Turner” including “any other instrument of deposit in which Charles Edward

Turner and/or Rose Turner have a beneficial ownership . . . .” Rose Turner moved

for “the immediate release of a lien upon her bank account” because Charles was
1
      The appellate record does not include the request for a turnover order, any
      response, or a transcript from any hearing on the turnover order. The turnover
      order enjoined Charles from “conveying, encumbering, or transferring any non-
      exempt property or assets to any third parties” and from “abandoning, waiving,
      and or transferring any non-exempt property or assets to third parties” until the
      judgment for arrearages, including attorney’s fees and court costs, was fully
      satisfied.
                                          3
the obligor, not her. The trial court denied her motion, and in October 2010, Rose

and Charles divorced.

      According to pleadings filed in the underlying case, in December 2010 and

March 2011, the trial court issued additional turnover orders. The appellate record

does not indicate what happened between March 2011 and March 2016, when

notices of a child-support lien were sent to 59 banks and financial institutions.

      In early March 2016, Wells Fargo was served with a notice of child-support

lien and a notice of child-support levy. The notices identified both Charles Turner

and Rose Turner as obligors.

      The notice of child-support levy directed Wells Fargo to pay Linda Williams

from assets of Charles Turner and Rose Turner that it controlled “not earlier than

the 15th day or later than the 21st day after the date of delivery of the notice”

unless: “a) You are notified by the attorneys for Linda Williams that Obligors have

paid the arrearages or made satisfactory arrangements for payment of the

arrearages; b) The Obligors file suit to stop the levy and notify you of the suit.”

The notice also identified the scope of the levy:

      This child support levy attaches to all nonexempt real and personal
      property of Charles Edward Turner and/or Rose Turner, including
      any and all accounts in your financial institution, including but not
      limited to: Any type of a demand deposit account, checking or
      negotiable withdrawal order account, savings account, retirement
      account, time deposit account, money market mutual fund order
      account, certificate of deposit, or any other instrument of deposit in
      which Charles Edward Turner and/or Rose Turner have a
                                          4
      beneficial ownership either in its entirety or on a shared or multiple
      party basis, including any interest and dividends payable to the
      accounts.

      The notices informed Rose Turner that she could dispute the arrearage and

the levy by filing suit under Texas Family Code § 157.323 within ten days of

receipt of the notices.

      Rose Turner and Moore contend that two days after receiving the notice of

child-support lien, Wells Fargo deducted the entire balance of their account in

compliance with the notice of lien. The record does not indicate how much money

was in the account, whether it was placed in a holding or suspense account, or

whether it was transferred to Williams.

      Rose Turner and Moore filed suit against Williams, Ross, and Sinkin,

asserting five causes of action: (1) release of the child-support liens and levies;

(2) declaratory judgment that (a) the turnover order is void because Rose Turner

was not a party to the turnover proceedings; (b) Williams is not entitled to issue

liens and levies in Rose Turner’s name; and (c) the liens and levies already issued

against Rose Turner are void; (3) violation of Chapter 12 of the Civil Practice and

Remedies Code by filing fraudulent liens; (4) request for permanent injunction;

and (5) a motion for sanctions. The sanctions motion asserted that Williams, Ross,

and Sinkin misrepresented Rose Turner’s status as an obligor as to the

child-support arrearages.


                                          5
      In late March 2017, after a mediation that did not resolve the controversy,

the parties entered into a Rule 11 agreement, which was signed by Ross on behalf

of himself, Williams, and Sinkin, and by Roger Jain on behalf of his clients, Rose

Turner and Moore. The Rule 11 agreement was filed with the district clerk on

March 31, 2017. Around the same time, Rose Turner and Moore served discovery

on Ross and Sinkin.

      The Rule 11 agreement provided that the parties would attempt to agree

upon undisputed facts and legal questions by a date certain, and if they could

agree, they would submit the legal questions, jointly, to the trial court for

determination before further mediation.2 However, if they were unable to agree on

which legal questions required resolution by the trial court, the parties would file

competing motions for summary judgment to narrow the issues in the litigation.

The agreement required the parties to work in good faith toward resolution of their

2
      The Rule 11 agreement provided that if, by July 14, 2017, the parties agreed which
      legal questions required a ruling and which facts were undisputed, then certain
      deadlines set forth in the Rule 11 agreement applied. These included deadlines to
      (a) amend pleadings (July 14, 2017), (b) file position briefs (August 4, 2017),
      (c) file reply briefs (August 18, 2017), and (d) file a motion to request pretrial
      rulings under Rule 166 (August 22, 2017).

      However, if by July 14, 2017, the parties did not agree on which legal questions
      required a ruling and which facts were undisputed, then other deadlines set forth in
      the Rule 11 agreement applied. These included deadlines to (a) file motions for
      summary judgment (August 4, 2017), (b) file responses to motions for summary
      judgment (August 18, 2017), (c) set the motions for hearing at mutually
      convenient time between September 5, 2017 and November 3, 2017 (August 18,
      2017), and (d) within 5 business days of receiving the court’s order on pretrial
      rulings, submit dates for mediation within 60 days of receipt of the court’s order.
                                           6
dispute and to comply with the deadlines in the agreement, which ranged from July

to November 2017.

      About two weeks after the Rule 11 agreement was signed, Williams, Ross,

and Sinkin filed a request for an order of protection from discovery requests, a

motion to strike Rose Turner and Moore’s pleading, and special exceptions. The

request for a protective order sought protection for Ross and Sinkin from discovery

based on their assertion that attorney immunity barred the claims against them.

They also sought attorney’s fees, but the motion did not identify any authority on

which the request was based.

      On April 24, 2017, the trial court held a hearing on the motion to strike and

the special exceptions. The trial court granted the motion and dismissed with

prejudice all of the claims against Ross and Sinkin as “judicially privileged and

immune from liability.” The court also dismissed with prejudice all claims against

Williams except for a claim under section 157.326 of the Texas Family Code.

      Rose Turner and Moore appealed.

                                     Analysis

      Rose Turner and Moore have nominally raised seven issues. We begin by

addressing one issue that challenges the trial court’s judgment, generally, and then

we analyze the court’s ruling on the special exceptions.




                                         7
I.    Rule 11 agreement

      In their seventh issue, the appellants contend that the trial court abused its

discretion by failing to enforce the parties’ Rule 11 agreement and granting the

appellees’ motion to dismiss.

      Texas Rule of Civil Procedure 11 states: “Unless otherwise provided in these

rules, no agreement between attorneys or parties touching any suit pending will be

enforced unless it be in writing, signed and filed with the papers as part of the

record, or unless it be made in open court and entered of record.” TEX. R. CIV. P.

11. An effective Rule 11 agreement consists of “a written memorandum which is

complete within itself in every material detail, and which contains all of the

essential elements of the agreement.” Padilla v. LaFrance, 907 S.W.2d 454, 460

(Tex. 1995) (quoting Cohen v. McCutchin, 565 S.W.2d 230, 232 (Tex. 1978)).

      Rule 11 agreements are “contracts relating to litigation, and thus we construe

them under the same rules as a contract.” Shamrock Psychiatric Clinic, P.A. v. Tex.

Dep’t of Health & Human Servs., 540 S.W.3d 553, 560 (Tex. 2018). A trial court

has a ministerial duty to enforce a valid Rule 11 agreement. Id. If an enforceable

Rule 11 agreement can be given a certain or definite legal meaning or

interpretation, it is not ambiguous and we construe it as a matter of law. Id. at 561;

Coker v. Coker, 650 S.W.2d 391, 393 (Tex. 1983). But a court may not “give a




                                          8
Rule 11 agreement greater effect than the parties intended.” Shamrock Psychiatric

Clinic, 540 S.W.3d at 560–61.

      The Rule 11 agreement was valid because it was signed by the parties and

filed with the court. It set forth a plan for resolution of the issues that remained,

and it established deadlines for exchanging information or filing pleadings or

motions with the court. It provided two alternative schedules. One schedule applied

if the parties agreed, by a specified date, to what legal issues required a ruling from

the court. The other schedule applied if the parties failed to reach such an

agreement. If the parties agreed to the relevant legal questions, they would file an

agreed motion for pretrial rulings under Texas Rule of Civil Procedure 166; if they

did not agree, they had the option to file competing motions for summary

judgment. See TEX. R. CIV. P. 166 (authorizing the court to hold a pretrial

conference to consider a variety of matters including “[a]ll pending dilatory pleas,

motions, and exceptions.”) (emphasis added).

      The Rule 11 agreement does not say that the procedures set forth in it are

exclusive. It does not prohibit a party from filing a motion for a pretrial ruling in

his or her individual capacity in addition to the contemplated agreed motion for

pretrial rulings. On appeal and in the trial court, the appellants argued that the court

erred by ruling on the appellees’ motion to dismiss. They argued that the motion to

dismiss was filed outside the scheduled time periods in the Rule 11 agreement and


                                           9
was thus precluded by the Rule 11 agreement. Because the agreement does not

prohibit the filing of a contested motion for pretrial rulings under Rule 166(a), we

conclude that the court did not abuse its discretion by ruling on it. See, e.g.,

ExxonMobil Corp. v. Valence Operating Co., 174 S.W.3d 303, 310–11 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied) (Rule 11 agreement that provided for

filing of a first amended petition did not prohibit the filing of a second amended

petition because it did not expressly prohibit it).

II.   Special exceptions differ from motions for summary judgment.

      Appellants argue that the special exceptions should be construed as a motion

for summary judgment. They contend that some of the grounds for dismissal raised

by the special exceptions required presentation of evidence, and they argue that the

dismissal on special exceptions should be treated as a summary judgment. The

appellants further argue that the trial court improperly granted summary judgment

without following summary judgment procedures.

      The nature of a motion is determined by its substance, not its caption or title.

In re Brookshire Grocery Co., 250 S.W.3d 66, 72 (Tex. 2008); Janner v.

Richardson, 414 S.W.3d 857, 859 (Tex. App.—Houston [1st Dist.] 2013, no pet.)

(Rule 71—misnomer of pleading rule—“permits a trial court to consider a motion

or other filing according to its substance, even if it is not accurately titled”); see

also TEX. R. CIV. P. 71. The special exceptions in this case expressly and


                                           10
repeatedly state that the appellees “specially except” to various aspects of the

appellants’ first amended petition. The special exceptions made no reference to any

summary judgment rule or standard. No evidence was attached to the special

exception. We conclude that the substance of the filing was a special exception.

See Brookshire Grocery, 250 S.W.3d at 72; Janner, 414 S.W.3d at 859. To the

extent that the appellants have argued that the special exceptions should be

construed as a motion for summary judgment because the contentions raised by the

special exceptions can properly be raised only by way of a motion for summary

judgment, we construe their appellate arguments as a challenge to the trial court’s

action as not supported by a proper special exception. See Perry v. Cohen, 272

S.W.3d 585, 587 (Tex. 2008) (“Appellate briefs are to be construed reasonably, yet

liberally, so that the right to appellate review is not lost by waiver.”).

III.   Dismissal based on special exceptions

       Rose Turner and Moore alleged five claims against Williams, Ross, and

Sinkin. The court carved out a claim under the Family Code for determination of

how much of the levied account belonged to Rose Turner and Moore, as opposed

to Charles Turner. This carved-out claim was arguably a subpart of the claim for

release and cancellation of the liens and levies which also sought a partition of the

levied property. This claim was not dismissed on special exceptions. Thus, the

claims that were dismissed as to Williams and her attorneys were: (1) the


                                           11
remainder of the claim for release and cancellation of the liens and levies; (2) a

declaratory-judgment action; (3) a statutory claim for the filing of fraudulent liens;

(4) a request for permanent injunction; and (5) a motion for sanctions based on the

filing of liens and levies that stated Rose Turner was an obligor.

      Rose Turner and Moore raised four issues on appeal generally challenging

the trial court’s dismissals based on special exceptions.3 The first issue posits that

the trial court erred or abused its discretion by dismissing the appellants’ claims

based on the appellees’ special exceptions. We begin with an overview of the law

pertaining to special exceptions. Because Ross and Sinkin pleaded some special

exceptions that were distinct from those pleaded by Williams, we will consider

them separately.



3
      Issues Presented

      1. Did the trial court commit error by signing the June 2, 2017 Order Re: Hearing
         of April 25, 2017?

      2. Did the trial court commit error by dismissing Appellants’ causes of action
         through special exceptions?

      3. Did the trial court commit error by refusing to treat Appellees’ special
         exceptions as a request for summary judgment, when Appellees’ special
         exceptions were based upon affirmative defenses that were not established as a
         matter of law?

      4. Did the trial court abuse its discretion by sustaining Appellees’ special
         exceptions and dismissing Appellants’ causes of action without first giving
         them an opportunity to amend their pleading?

      ....
                                          12
A.    Special exceptions and standards of review

      1.     Notice pleading and defective pleadings

      “Texas follows a ‘fair notice’ standard for pleading, which looks to whether

the opposing party can ascertain from the pleading the nature and basic issues of

the controversy” and what evidence will be relevant. Horizon/CMS Healthcare

Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). A party “who wishes to complain

about a defect or obscurity in a pleading is required to identify the defect or

obscurity in writing and to bring the special exception to the trial court’s attention

before a judgment is signed.” Neff v. Brady, 527 S.W.3d 511, 527 (Tex. App.—

Houston [1st Dist.] 2017, no pet.); see TEX. R. CIV. P. 90, 91. “The purpose of a

special exception is to compel clarification of pleadings when the pleadings are not

clear or sufficiently specific or fail to plead a cause of action.” Baylor Univ. v.

Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007) (citing Friesenhahn v. Ryan, 960

S.W.2d 656, 658 (Tex. 1998)); Alpert v. Crain, Caton & James, P.C, 178 S.W.3d

398, 405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied) (“A special exception

is a proper method to determine whether a plaintiff has pleaded a cause of

action.”).

      2.     Special exceptions in the trial court

      “A special exception shall not only point out the particular pleading

excepted to, but it shall also point out intelligibly and with particularity the defect,


                                          13
omission, obscurity, duplicity, generality, or other insufficiency in the allegations

in the pleading excepted to.” TEX. R. CIV. P. 91. “If special exceptions lack

specificity in pointing out how the plaintiff’s allegations are faulty, they constitute

a general demurrer, and general demurrers are prohibited by the Rules of Civil

Procedure.” Owen v. Option One Mortg. Corp., No. 01-10-00412-CV, 2011 WL

3211081, at *6 (Tex. App.—Houston [1st Dist.] July 28, 2011, pet. denied) (mem.

op.); see TEX. R. CIV. P. 90; see also Castano v. San Felipe Ag., Mfg., & Irrigation

Co., 147 S.W.3d 444, 453 (Tex. App.—San Antonio 2004, no pet.) (holding that

special exceptions failed “to state with specificity the elements lacking in

[plaintiff’s] petition” and thus was general demurrer prohibited under rules; grant

of special exceptions would allow defendants “to circumvent the protective

features of the special exception procedure”). “An exception generally alleging a

petition fails to state the elements of a cause of action or give fair notice of the

claims is prohibited by the rules.” Muecke v. Hallstead, 25 S.W.3d 221, 224 (Tex.

App.—San Antonio 2000, no pet.).

      Unlike a motion for summary judgment, which relies on evidence or the

absence of evidence, see TEX. R. CIV. P. 166a, a special exception “cannot inject

factual allegations that do not appear in the pleading.” Neff, 527 S.W.3d at 530;

accord Fernandez v. City of El Paso, 876 S.W.2d 370, 373 (Tex. App.—El Paso

1993, writ denied) (special exception “must confine itself to addressing solely the


                                          14
matters shown on the face of the opposing pleading and must not inject factual

allegations not appearing in the pleading against which the exception was raised”);

Harold v. Houston Yacht Club, 380 S.W.2d 184, 186 (Tex. App.—Houston 1964,

no writ) (special exception may not rely on extrinsic facts). Because “affirmative

defenses are matters of avoidance that must be proven at the trial of the case,”

ordinarily they are “not properly raised as special exceptions.” Neff, 527 S.W.3d at

530. But see Easton v. Phelan, No. 01-10-01067-CV, 2012 WL 1650024, at *7–8

(Tex. App.—Houston [1st Dist.] May 10, 2012, no pet.) (mem. op.) (affirming

dismissal on special exceptions based on attorney immunity, which was shown by

allegations in challenged pleading).

      “Generally, when the trial court sustains special exceptions, it must give the

pleader an opportunity to amend the pleading, unless the pleading defect is of a

type that amendment cannot cure.” Sonnichsen, 221 S.W.3d at 635. When an

amendment cannot cure a pleading defect, the trial court may render judgment

dismissing the case. See id.; Alpert, 178 S.W.3d at 408.

      3.     Appellate review of special exception ruling

      Ordinarily, we review a trial court’s grant of special exceptions for an abuse

of discretion. See Owen, 2011 WL 3211081, at *6. A trial court abuses its

discretion when it acts without reference to any guiding rules or principles. Low v.

Henry, 221 S.W.3d 609, 619–20 (Tex. 2007) (citing Downer v. Aquamarine


                                         15
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). When reviewing the trial

court’s decision on special exceptions, we accept as true all the material factual

allegations and statements reasonably inferred from the allegations set forth in the

pleadings. Id. at 620. “We review a trial court’s dismissal of a case upon special

exceptions for failure to state a cause of action as an issue of law, using a de novo

standard of review.” Alpert, 178 S.W.3d at 405. “When reviewing a trial court’s

dismissal of a cause of action following the sustaining of special exceptions, we

review the propriety of both the trial court’s decision to sustain the special

exceptions and the trial court’s order of dismissal.” Owen, 2011 WL 3211081, at

*5.

B.    Claims against Williams

      Williams pleaded the following special exceptions: (1) res judicata,

collateral estoppel, and waiver as to all causes of action; (2) failure to state a claim

as to the statutory cause of action for filing a fraudulent lien and the claim for

sanctions; and (3) an unspecified privilege as to the statutory cause of action for

filing a fraudulent lien and the claim for sanctions. The trial court sustained all of

the special exceptions and dismissed the claims against Williams. This was error.

      The trial court abused its discretion by sustaining the special exceptions

based on res judicata, collateral estoppel, and waiver, which were based on an

argument that a previous ruling on the turnover order had already determined the


                                          16
same issues that arose in this case. Special exceptions cannot properly rely on

evidence extrinsic to the pleadings. See Neff, 527 S.W.3d at 530. To determine

whether the claims were barred by res judicata or collateral estoppel due to the

prior proceeding would require evidence, such as the judgment and pleadings, from

the earlier case. See Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex.

2010) (stating elements that party asserting res judicata must prove); Jones v. City

of Houston, 907 S.W.2d 871, 874 (Tex. App.—Houston [1st Dist.] 1995, writ

denied) (burden is on party asserting collateral estoppel to produce evidence such

as the pleadings and judgment from prior proceeding). The first amended petition

did not allege any facts about the prior challenge to the turnover order on which the

appellees based their special exceptions, and none of the necessary documents

were made a part of the pleadings by attachment, filing and referencing in the

pleadings, or copying into the body of the pleading. See TEX. R. CIV. P. 59

(“Exhibits and Pleading”). We conclude that the court could not have properly

sustained the special exceptions based on res judicata, collateral estoppel, or

waiver. See Simulis, L.L.C. v. Gen. Elec. Capital Corp., 392 S.W.3d 729, 735 n.7

(Tex. App.—Houston [14th Dist.] 2011, pet. denied) (“We express no opinion on

the merit of GE’s assertions, but we agree with Simulis that res judicata, collateral

estoppel, and law of the case should not be asserted in special exceptions. . . .

When a party seeks to dispose of claims barred by res judicata, collateral estoppel


                                         17
law of the case, and similar theories, it should file a motion for summary

judgment.”).

      Williams also specially excepted to the fraudulent lien and sanctions claims,

because the appellants “fail[ed] to state a claim on which relief can be granted,”

and they did “not state a claim within Civil Practice and Remedies Code Chapter

12.” These special exceptions do not comport with Rule 91’s requirement to “point

out intelligibly and with particularity the defect, omission, obscurity, duplicity,

generality, or other insufficiency in the allegations.” TEX. R. CIV. P. 91 (emphasis

added). A statement that the plaintiffs failed to state a claim is not a proper special

exception—it is a prohibited general demurrer. See Owen, 2011 WL 3211081, at

*6. Thus, the trial court could not have properly sustained these special exceptions.

      Finally, Williams specially excepted that the acts and statements upon which

the appellants’ claims are based “are privileged communications, exempt from

liability and cannot serve as the basis for the award of damages and attorney’s

fees.” The special exceptions do not identify any specific privilege that applies to

Williams in regard to the actions and communications that have been challenged.

The only explanation of what type of privilege might apply is limited to special

exceptions made by Ross and Sinkin individually. Without some indication of the

nature of the privilege asserted by Williams, we cannot determine whether the

contention is raised in the plaintiffs’ pleadings. That is, Williams failed to “point


                                          18
out intelligibly and with particularity” what part of the first amended petition, if

taken as true, conclusively showed that her actions and communications were

privileged. TEX. R. CIV. P. 91. The trial court thus could not have properly

sustained this special exception.

      We conclude that the trial court erred by sustaining the special exceptions

and dismissing the claims against Williams. We sustain the first issue in part.

C.    Claims against Ross and Sinkin

      Ross and Sinkin pleaded the following special exceptions: (1) attorney

immunity and judicial proceeding privilege as to all causes of action; (2) failure to

state a claim as to the statutory cause of action for filing a fraudulent lien and the

claim for sanctions. They also argued that it would be improper to require them to

comply with discovery requests once the claims against them were dismissed and

that they were entitled to attorney’s fees.

      Ross and Sinkin argue that they are immune from all of the causes of action

alleged by Rose Turner and Moore because the actions that form the basis of the

pleadings were undertaken in furtherance of their representation of Williams. Rose

Turner and Moore argue that attorney immunity is an affirmative defense and that

it is not absolute, as in cases involving fraud or illegal behavior. See Essex Crane

Rental Corp. v. Carter, 371 S.W.3d 366, 382 (Tex. App.—Houston [1st Dist.]

2012, pet. denied).


                                          19
      Attorneys are “immune from civil liability to non-clients for actions taken in

connection with representing a client in litigation.” Cantey Hanger, LLP v. Byrd,

467 S.W.3d 477, 481 (Tex. 2015); see Youngkin v. Hines, 546 S.W.3d 675, 681

(Tex. 2018); Alpert, 178 S.W.3d at 405. Whether an attorney is immune in a given

circumstance depends on the nature of the challenged conduct. Youngkin, 546

S.W.3d at 681; Cantey Hanger, 467 S.W.3d at 482. Attorney immunity applies

when the challenged conduct is the “kind of conduct in which an attorney engages

when discharging his duties to his client.” Cantey Hanger, 467 S.W.3d at 482

(quoting Dixon Fin. Servs., Ltd. v. Greenberg, Peden, Siegmyer & Oshman, P.C.,

No. 01–06–00696–CV, 2008 WL 746548, at *7 (Tex. App.—Houston [1st Dist.]

March 20, 2008, pet. denied) (mem. op. on reh’g). “[A]n attorney cannot be held

liable to a third party for conduct that requires the office, professional training,

skill, and authority of an attorney.” Dixon, 2008 WL 746548, at *7.

      Because immunity focuses on the type of conduct, it may apply even to

unsound or unmeritorious conduct. See Easton, 2012 WL 1650024, at *8. “[A]n

attorney’s conduct, even if frivolous or without merit, is not independently

actionable if the conduct is part of the discharge of the lawyer’s duties in

representing his or her client.” Alpert, 178 S.W.3d at 406. “The filing of pleadings

and motions—even if they are unmeritorious or frivolous—and the rendition of

legal advice cannot form the factual basis of a fraud claim against an attorney


                                        20
when the acts are performed within the context of discharging duties to a client.”

Easton, 2012 WL 1650024, at *8.

      Although attorney immunity is broad, it is not absolute. See id. Attorney

immunity will not shield “independently fraudulent activities,” Alpert, 178 S.W.3d

at 406, such as “knowingly assisting a client in evading a judgment through a

fraudulent transfer.” Essex Crane, 371 S.W.3d at 382. In a case involving fraud,

the plaintiff must prove that the attorney “agreed to the injury to be accomplished,

not merely the conduct ultimately resulting in injury.” Id. (citing Chu v. Hong, 249

S.W.3d 441, 446–47 (Tex. 2008)). Other situations in which attorney immunity

may not apply include fraudulent concealment (when the attorney has a duty to

speak), negligent misrepresentation, and when the law specifically provides for

punishment of an attorney. See McCamish, Martin, Brown & Loeffler v. F.E.

Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999) (negligent misrepresentation);

Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houston [1st Dist.] 1994, writ

denied) (sanctions); Hennigan v. Harris Cty., 593 S.W.2d 380, 384–85 (Tex.

App.—Waco 1979, writ ref’d n.r.e.) (fraudulent concealment when there is a duty

to speak).

      Like res judicata and collateral estoppel, attorney immunity is an affirmative

defense that must be proved by the defendants. However, unlike the assertions of

res judicata and collateral estoppel in this case, which could not be conclusively


                                        21
demonstrated by special exceptions because they required evidence extrinsic to the

appellants’ pleadings, the allegations in the first amended petition establish

attorney immunity.

      In the first amended petition, the appellants alleged that the underlying case

stemmed from an order on arrears entered by the trial court in favor of Williams.

They further alleged: “Respondents Steven A. Sinkin and Andrew Ross are

attorneys representing Respondent Linda Williams.” They asserted that the trial

court signed an order for turnover relief, which provided that Williams “may issue

child support liens and levies in the name of Rose Turner.” Appellants’ claims in

the underlying suit alleged that Williams, through her attorneys, issued child-

support liens and levies identifying Rose Turner as an obligor. They allege that the

appellees misrepresented that Rose Turner was an obligor, and therefore the

notices of liens and levies were “fraudulent.”

      As to Ross and Sinkin, the plaintiffs’ pleading, taken as true, demonstrates

that they were acting as attorneys for Williams when issuing or filing notices of

lien or levy in an attempt to collect the child-support arrearages based on the trial

court’s orders. There are no allegations of independently fraudulent activities; no

claim that Ross and Sinkin’s actions with regard to the filing of the liens and levies

were in any way distinct from their representation of Williams. Because collecting

a judgment is the kind of conduct an attorney engages in when discharging his


                                         22
duties to his client, they are immune from suit and liability for most of the claims

against them. See Cantey Hanger, 467 S.W.3d at 482. Even if Rose Turner and

Moore were to prove the factual allegations in their first amended petition, they

still would lose due to attorney immunity. See id.

      This conclusion does not apply with equal force to the motion for sanctions.

Although the sanctions motion itself relies on the allegedly fraudulent filing of

liens and levies, it is distinguishable from the other causes of action because

sanctions specifically provide for the punishment of attorneys. See Bradt, 892

S.W.2d at 72. Attorney immunity is not, per se, a meritorious reason for dismissal

of the sanctions motion. See id. Because sanctions are meant to punish lawyers, it

may be possible for Rose Turner and Moore to plead some factual basis for the

imposition of sanctions that is cognizable in law. The trial court erred by

dismissing the sanctions claim due to attorney immunity without first giving Rose

Turner and Moore an opportunity to replead. See Sonnichsen, 221 S.W.3d at 635.

      Ross and Sinkin also specially excepted to the motion for sanctions on

several other grounds, but none are sufficient to support the trial court’s dismissal

of the motion for sanctions. The motion for sanctions appears in paragraph 27 of

the first amended petition, and it states:

                           MOTION FOR SANCTIONS

      27.    As set forth above, Respondent and her attorney knowingly
             misrepresented, under oath, that Petitioner Rose Turner is an
                                             23
             obligor within the Notices or Lien and the Notices of Levy and
             the Notice of Lien filed with the Harris County Clerk’s Real
             Property Records. Pursuant to TEX. R. CIV. P. 13, and Chapters
             9 and 10 of the Civil Practice and Remedies Code, Petitioners
             request the Court award Petitioners their reasonable and
             necessary attorney’s fees in filing and presenting this petition,
             financial institution fees, and all damages incurred by
             Petitioners as a result of said groundless notices disseminated
             by Respondents.

(Emphasis added.)

      The special exceptions refer to Williams, Ross, and Sinkin collectively as

“Respondents.” As to the motion for sanctions, paragraph 27, the special

exceptions state:

      5.     Respondents specially except to paragraph 27 of Petitioners’
      First Amended Petition in its entirety because Petitioners fail to state a
      claim on which relief can be granted. Paragraph 27 and the causes of
      action should be stricken as a matter of law.

      6.     Respondents specially except to paragraph 27 of Petitioners’
      First Amended Petition in its entirety because the acts, statements,
      representations and/or documents of which Petitioners complain,
      including but not limited to the issuance of child support liens and
      levies, are privileged communications, exempt from liability and
      cannot serve as the basis for the award of damages and attorney’s
      fees. Paragraph 27 and the causes of action should be stricken as a
      matter of law.

      7.     Respondents Andrew Ross and Steven A. Sinkin, individually,
      specially except to paragraph 27 of Petitioners’ First Amended
      Petition because they are not liable in the capacity in which they
      were sued. All acts complained of by Petitioners occurred exclusively
      within the course and scope of Andrew Ross and Steven A. Sinkin’s
      employment with Sinkin & Barretto, P.L.L.C., and occurred during
      the course of this judicial proceeding. Additionally, Steven A. Sinkin
      did not personally sign the child support liens or levies made the
                                         24
       subject matter of this lawsuit and did not instruct Andrew Ross to sign
       the child support liens or levies made the subject matter of this
       lawsuit. Paragraph 27 and the causes of action against Andrew Ross
       and Steven A. Sinkin, individually, should be stricken as a matter of
       law.

       ....

       10. Respondents specially except to paragraphs . . . 27 . . .
       because . . . the claims alleged as a matter of law are barred by res
       judicata, collateral estoppel and waiver.

(Emphasis added.)

       The assertion that the appellants’ pleading failed to state a cause of action on

which relief could be based is impermissibly vague. See TEX. R. CIV. P. 91; see

Owen, 2011 WL 3211081, at *6. The special exceptions asserting res judicata,

collateral estoppel, and waiver fail for the same reasons that they failed as to the

claims against Williams. See Neff, 527 S.W.3d at 530; Simulis, 392 S.W.3d at 735

n.7.

       Ross and Sinkin also assert that they raised the judicial proceedings privilege

in their special exceptions. The judicial proceedings privilege refers to the

common-law principle that “[c]ommunications made during the course of judicial

proceedings are privileged.” Bird v. W.C.W., 868 S.W.2d 767, 771 (Tex. 1994); see

James v. Brown, 637 S.W.2d 914, 916–17 (Tex. 1982) (“Communications in the

due course of a judicial proceeding will not serve as the basis of a civil action for

libel or slander, regardless of the negligence or malice with which they are


                                          25
made.”). The judicial proceedings privilege is based on a policy recognizing that

the “administration of justice requires full disclosure from witnesses, unhampered

by fear of retaliatory suits for defamation.” See James, 637 S.W.2d at 917. “This

privilege extends to any statement made by the judge, jurors, counsel, parties or

witnesses, and attaches to all aspects of the proceedings, including statements

made in open court, pre-trial hearings, depositions, affidavits and any of the

pleadings or other papers in the case.” Id. at 916–17; accord Helfand v. Coane, 12

S.W.3d 152, 157 (Tex. App.—Houston [1st Dist.] 2000, pet. denied).

      “When the communication at issue is made by an attorney, the judicial-

proceedings privilege is referred to as attorney immunity.” Landry’s, Inc. &

Houston Aquarium, Inc. v. Animal Legal Def. Fund, No. 14-17-00207-CV, 2018

WL 5075116, at *9 (Tex. App.—Houston [14th Dist.] Oct. 18, 2018, no pet. h.)

(citing Youngkin, 546 S.W.3d at 679 n.2 (explaining, in a case in which an attorney

claimed non-liability for acts taken in the course of representing a claim, that the

judicial proceedings privilege, called “litigation privilege,” and “attorney

immunity” describe the same doctrine)). We have already explained why the trial

court’s dismissal of Rose Turner and Moore’s sanctions claim was not supported

by the special exception based on attorney immunity. Thus, we conclude that the

judicial proceedings privilege does not support the trial court’s dismissal of the

sanctions claim either.


                                        26
                                       ***

      We sustain issues one through four in part. We hold that the trial court erred

by sustaining the special exceptions and dismissing the claims against Williams

because the special exceptions did not identify with particularity the claimed

deficiency in the pleadings and did not show as a matter of law that claims against

her could not proceed. We further hold that the court erred by dismissing the claim

for sanctions against Ross and Sinkin without giving Rose Turner and Moore an

opportunity to replead.

IV.   Protective order

      In their fifth issue, Rose Turner and Moore challenge the trial court’s order

protecting Ross and Sinkin from discovery. Ross and Sinkin requested a protective

order based on their contentions that no claim or cause of action existed against

them or Williams. They did not challenge any particular discovery request; rather

they asserted that “no discovery of any kind is proper against them.” No evidence

was attached to the motion for a protective order. The only evidence relevant to

discovery that was introduced during an oral hearing was a letter from Rose Turner

and Moore’s lawyer. The letter informed Ross and Sinkin that he believed their

objections to a request for production and interrogatories were meritless. Rose

Turner and Moore’s lawyer asked them to provide responses.




                                        27
      In the final judgment, the trial court granted a protective order stating that

“all discovery against ANDREW ROSS and STEVEN A. SINKIN is quashed and

dismissed with prejudice as such discovery was unreasonably frivolous,

oppressive, and harassing.” On appeal, Ross and Sinkin assert that the trial court

properly granted the protective order. They defend the trial court’s action on the

basis that the court dismissed all of Rose Turner and Moore’s claims against them.

Rose Turner and Moore argue that the court abused its discretion by granting the

protective order because it was untimely and did not relate to a pending discovery

request.

      “A person from whom discovery is sought, and any other person affected by

the discovery request, may move within the time permitted for response to the

discovery request for an order protecting that person from the discovery sought.”

TEX. R. CIV. P. 192.6. A trial judge has discretion to grant a protective order to

control the nature and form of discovery. In re Collins, 286 S.W.3d 911, 919 (Tex.

2009). But that discretion “is not without bounds.” Id.; see also In re Bennett, 502

S.W.3d 373, 377 (Tex. App.—Houston [14th Dist.] 2016, no pet.). A party seeking

a protective order must show particular, specific, and demonstrable injury by facts

sufficient to justify a protective order. Collins, 286 S.W.3d 918; Bennett, 502

S.W.3d at 377. A trial court abuses its discretion by limiting discovery in the

absence of some evidence supporting the request for a protective order. Bennett,


                                        28
502 S.W.3d at 377 (citing In re Alford Chevrolet–Geo, 997 S.W.2d 173, 181 (Tex.

1999)); see Masinga v. Whittington, 792 S.W.2d 940, 941 (Tex. 1990)

(“Conclusory statements within a motion do not suffice.”).

       In this case, there was no evidence showing that a pending discovery request

would cause Ross and Sinkin a “particular, specific, and demonstrable injury.”

Therefore, the trial court abused its discretion by granting the protective order. We

sustain the fifth issue.

V.     Attorney’s fees

       In their sixth issue, Rose Turner and Moore challenge the trial court’s award

of attorney’s fees. They argue that Williams, Ross, and Sinkin were not entitled to

attorney’s fees because there was no legal basis for the award and because the fees

awarded were not reasonable.

       The trial court awarded the appellees trial and conditional appellate

attorney’s fees. Although the trial court did not indicate the legal basis for the

award of attorney’s fees, the parties agree that the award was based on the

protective order. At the hearing on the special exceptions and motion to strike, the

trial court stated:

       The Motion for a Protective Order from the discovery is granted. I’m
       awarding Respondent reasonable and necessary attorney’s fees in
       connection specifically with the Motion for a Protective Order in the
       amount of $5,000.00, which is enforceable by any means for
       enforcement of a judgment for a debt. I’m also awarding Respondent
       conditional appellate attorney’s fees . . . .
                                         29
      In general, litigants are responsible for their own attorney’s fees unless an

award is authorized by statute or contract. See Ashford Partners, Ltd. v. ECO Res.,

Inc., 401 S.W.3d 35, 41 (Tex. 2012); MBM Fin. Corp. v. Woodlands Operating

Co., 292 S.W.3d 660, 666 (Tex. 2009). Because a trial court’s judgment must

conform to the pleadings, a party seeking attorney’s fees must plead for them,

specifying the legal standard under which they are sought. See Intercontinental

Grp. P’ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 659 (Tex. 2009)

(holding that party waived its right to recover attorney’s fees under a contractual

provision by pleading for attorney’s fees only under a statutory provision);

Peterson Grp., Inc. v. PLTQ Lotus Grp., L.P., 417 S.W.3d 46, 61–62 (Tex. App.—

Houston [1st Dist.] 2013, pet. denied) (holding that party could not recover

attorney’s fees under contractual provision when it pleaded for attorney’s fees only

under statutory provision).

      The appellees argue that the fee award is proper under Rules of Civil

Procedure 192.6 and 215.2. Rule of Civil Procedure 192.6 authorizes the trial court

to “make any order in the interest of justice” to protect the party moving for a

protective order “from undue burden, unnecessary expense, harassment,

annoyance, or invasion of personal, constitutional, or property rights.” TEX. R. CIV.

P. 192. 6. Rule 215.2 authorizes a trial court to award attorney’s fees as a discovery




                                         30
sanction based on a party’s failure “to comply with proper discovery requests or to

obey an order to provide or permit discovery.” TEX. R. CIV. P. 215.2.

       The appellees did not seek attorney’s fees under Rules 192.6 or 215.2 in

their first amended answer, the motion for a protective order, or the motion for

attorney’s fees. Moreover, we have held that the trial court abused its discretion by

granting a protective order absent a showing that a pending discovery request

would cause a “particular, specific, and demonstrable injury,” and there is no

evidence in this record that Rose Turner and Moore failed to comply with proper

discovery requests or to obey an order to provide or permit discovery. Neither Rule

192.6 nor 215.2 support the trial court’s award of attorney’s fees. Thus, we

conclude that the trial court abused its discretion by awarding attorney’s fees. We

sustain this issue.

                                      Conclusion

       We conclude that the trial court improperly granted the special exceptions

and dismissed the claims against Williams because the special exceptions did not

identify with particularity the deficiency in the pleadings and did not show as a

matter of law that claims against her could not proceed. We also conclude that the

court erred by dismissing the claim for sanctions against Ross and Sinkin without

giving Rose Turner and Moore an opportunity to replead. We reverse the judgment

of dismissal as to those claims, and we affirm the judgment of dismissal as to the


                                         31
remaining claims against Ross and Sinkin, which are barred by attorney immunity

as a matter of law. We also reverse the grant of the protective order and award of

attorney’s fees.




                                             Peter Kelly
                                             Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




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