Opinion issued March 7, 2019




                                      In The

                               Court of Appeals
                                     For The

                          First District of Texas
                             ————————————
                              NO. 01-17-00883-CV
                            ———————————
                         TYRONE TANNER, Appellant
                                        V.
                        KATHLEEN BLACK, Appellee


                    On Appeal from the 434th District Court
                           Fort Bend County, Texas
                     Trial Court Case No. 12-DCV-198557


                          MEMORANDUM OPINION

      Appellant Tyrone Tanner sued appellee Kathleen Black, alleging various

causes of action arising out of her service as a court-appointed amicus attorney

during his divorce and custody case. Initially, Tanner brought suit individually and

as next friend of his minor daughter. After Black filed a motion for Tanner to show
authority to act as next friend of his child, the trial court struck all of Tanner’s

pleadings, dismissed the case, and awarded Black attorney’s fees and costs of court

as a sanction. Tanner appealed, and this Court concluded that the trial court erred

by striking Tanner’s individual pleadings and awarding sanctions, reversed the

sanctions order, and remanded the case for further proceedings. Tanner v. Black,

464 S.W.3d 23, 28–29 (Tex. App.—Houston [1st Dist.] 2015, no pet.).

      On remand, Black filed a no-evidence and traditional motion for summary

judgment, and the trial court granted the motion without specifying the grounds.

Asserting two issues, Tanner appeals again. Because the trial court properly

granted summary judgment, we affirm.

                                   Background

      In 2008, the 328th District Court appointed attorney Kathleen Black to serve

as an amicus attorney in Tyrone Tanner’s divorce case, which involved a

conservatorship dispute over his minor daughter. The appointment order provided

that Tanner and his now-former wife Keisha would each pay one half of Black’s

fees and expenses. The final decree of divorce was rendered in June of 2010, and

Tanner sued Black in May of 2012.

      Tanner’s live petition asserted the following causes of action against Black:

(1) breach of fiduciary duty; (2) negligence; (3) intentional infliction of emotional

distress; (4) fraud; and (5) deceptive trade practices. Among other affirmative


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defenses, Black asserted statutory immunity under section 107.009 of the Texas

Family Code. Black also alleged a counterclaim for sanctions, including attorney’s

fees and costs, asserting that Tanner’s suit was groundless and brought in bad faith

or for the sole purpose of harassment.

      In the no-evidence portion of her summary-judgment motion, Black asserted

that no evidence existed on one or more elements of each of Tanner’s causes of

action or on any of the statutory exceptions to immunity under section 107.009. In

her traditional motion, Black asserted that her summary-judgment evidence

established her statutory-immunity defense as a matter of law. Black’s motion and

the trial court’s order did not address her counterclaim, but the order states: “This

judgment finally disposes of all parties and all claims and is appealable.”1

      In his first issue, Tanner contends that the trial court erred in granting a no-

evidence summary judgment on his claims for negligence and intentional infliction

1
      Despite Black’s unadjudicated counterclaim, because of the summary-
      judgment order’s finality language, the order is final—“erroneous but
      final”—for purposes of appeal. Farm Bureau Cty. Mut. Ins. Co. v. Rogers,
      455 S.W.3d 161, 163 (Tex. 2015) (quoting Lehmann v. Har-Con Corp., 39
      S.W.3d 191, 200 (Tex. 2001)); see Lehmann, 39 S.W.3d at 192–93. Black
      has not cross-appealed to complain that the summary-judgment order
      erroneously disposed of her counterclaim. Cf. Underwater Servs., Inc. v.
      Offshore Drilling Co., No. 01–11–00889–CV, 2013 WL 2096640, at *2 n.2,
      *6–8 (Tex. App.—Houston [1st Dist.] May 14, 2013, no pet.) (mem. op.)
      (holding judgment was final and appealable because it contained
      unmistakable finality language, but reversing and remanding counterclaim
      not addressed in summary-judgment motions where party complained on
      appeal that counterclaim was not the subject of any summary-judgment
      motion).
                                          3
of emotional distress because he produced more than a scintilla of evidence on

each element of those two claims. Tanner also contends that Black’s no-evidence

motion on his fraud claim was fatally defective.2 Tanner’s second issue contends

the trial court erred in granting a traditional summary judgment on Black’s

affirmative defense of statutory immunity.

                           Chapter 107 Amicus Attorney

      The Family Code defines an amicus attorney as “an attorney appointed by

the court in a suit, other than a suit filed by a governmental entity, whose role is to

provide legal services necessary to assist the court in protecting a child’s best

interests rather than to provide legal services to the child.” TEX. FAM. CODE

§ 107.001(1); see In re McDaniel, 408 S.W.3d 389, 399 n.2 (Tex. App.—Houston

[1st Dist.] 2011, orig. proceeding). The Family Code describes the many duties of

an amicus attorney. See id. §§ 107.003, 107.005. Those duties include interviewing

the parties and participating in the litigation to the same extent as an attorney for a

party. Id. § 107.003(a)(1)(A)(iii), (F).

      Section 107.009 provides immunity for an amicus attorney appointed under

Chapter 107 of the Family Code:




2
      Because Tanner does not complain on appeal about summary judgment on
      his claims for breach of fiduciary duty and deceptive trade practices, we
      need not address those two claims.
                                           4
      (a) A guardian ad litem, an attorney ad litem, a child custody
      evaluator, or an amicus attorney appointed under this chapter is not
      liable for civil damages arising from an action taken, a
      recommendation made, or an opinion given in the capacity of
      guardian ad litem, attorney ad litem, child custody evaluator, or
      amicus attorney.

      (b) Subsection (a) does not apply to an action taken, a
      recommendation made, or an opinion given:

            (1) with conscious indifference or reckless disregard to the
                safety of another;

            (2) in bad faith or with malice; or

            (3) that is grossly negligent or wilfully wrongful.

Immunity under section 107.009 is an affirmative defense. See Kabbani v.

Papadopolous, No. 01-07-00191-CV, 2009 WL 469546, at *4–5 (Tex. App.—

Houston [1st Dist.] Feb. 26, 2009, pet. denied) (mem. op.).

                               Standard of Review

      An appellate court reviews a trial court’s summary judgment de novo.

Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 862 (Tex. 2010). In conducting

that review, we take as true all evidence favorable to the nonmovant, and we

indulge every reasonable inference and resolve any doubts in the nonmovant’s

favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). If a

trial court grants summary judgment without specifying the grounds for granting

the motion, we must uphold the trial court’s judgment if any of the asserted



                                         5
grounds are meritorious. Beverick v. Koch Power, Inc., 186 S.W.3d 145, 148 (Tex.

App.—Houston [1st Dist.] 2005, pet. denied).

      A party seeking summary judgment may combine in a single motion a no-

evidence motion for summary judgment and a traditional motion for summary

judgment. Binur v. Jacobo, 135 S.W.3d 646, 650–51 (Tex. 2004). When a party

has sought summary judgment on both grounds and the trial court’s order does not

specify its reasons for granting summary judgment, we first review the propriety of

the no-evidence summary judgment. See Ford Motor Co. v. Ridgway, 135 S.W.3d

598, 600 (Tex. 2004).

      To prevail on a no-evidence summary-judgment motion, the movant must

assert that there is no evidence to support one or more essential elements of the

nonmovant’s claim on which the nonmovant would have the burden of proof at

trial. See TEX. R. CIV. P. 166a(i); Hahn v. Love, 321 S.W.3d 517, 523–24 (Tex.

App.—Houston [1st Dist.] 2009, pet. denied). The burden then shifts to the

nonmovant to present evidence raising a genuine issue of material fact on each of

the challenged elements. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex.

2006); Hahn, 321 S.W.3d at 524; see TEX. R. CIV. P. 166a(i).

      In reviewing a traditional motion for summary judgment, we must consider

whether reasonable and fair-minded jurors could differ in their conclusions in light

of all of the evidence presented. See Goodyear Tire & Rubber Co. v. Mayes, 236


                                         6
S.W.3d 754, 755 (Tex. 2007). A defendant moving for summary judgment is

required either to negate conclusively at least one essential element of the

plaintiff’s cause of action or to establish conclusively each element of an

affirmative defense. See Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910, 911

(Tex. 1997).

                                     Analysis

      On Tanner’s first issue, which contests the no-evidence summary judgment,

we first address Tanner’s negligence claim.

      Negligence. Within her no-evidence motion for summary judgment on

Tanner’s negligence claim, Black sought summary judgment on the basis that she

owed no duty of care to Tanner.

      A plaintiff must establish that the defendant owed a legal duty of care to the

plaintiff. See Nabors Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex.

2009). Absent a legal duty, a defendant cannot be liable. See Kroger Co. v.

Elwood, 197 S.W.3d 793, 794 (Tex. 2006). The existence of a duty is a question of

law. Nabors Drilling, 288 S.W.3d at 404.

      An amicus attorney appointed under Chapter 107 does not represent the

child or either parent. See TEX. FAM. CODE § 107.001(1); Zeifman v. Nowlin, 322

S.W.3d 804, 808–09 (Tex. App.—Austin 2010, no pet.) (citing O’Connor v.

O’Connor, 245 S.W.3d 511, 515 (Tex. App.—Houston [1st Dist.] 2007, no pet.)).


                                         7
But see In re S.A.G., 403 S.W.3d 907, 910–11 (Tex. App.—Texarkana 2013, pet.

denied) (amicus attorney “position is something of a legal will-o’-the-wisp whose

client is not defined in the statute (and, thus, whose representative capacity is

cloudy)”). An amicus attorney appointed by the court in a suit affecting the parent-

child relationship owes no duty of care to either parent. Zeifman, 322 S.W.3d at

808–09. Because Black did not owe Tanner a duty of care, the trial court properly

granted summary judgment on Tanner’s negligence claim.

      Intentional infliction of emotional distress. To prove a claim for

intentional infliction of emotional distress, a plaintiff must establish: (1) the

defendant acted intentionally or recklessly; (2) its conduct was extreme and

outrageous; (3) its actions caused the plaintiff emotional distress; and (4) the

emotional distress was severe. Kroger Tex. L.P. v. Suberu, 216 S.W.3d 788, 796

(Tex. 2006). Black’s no-evidence motion asserted that Tanner had no evidence of

any of the above elements.

      “Meritorious claims for intentional infliction of emotional distress are

relatively rare precisely because most human conduct, even that which causes

injury to others, cannot be fairly characterized as extreme and outrageous.” Id. The

court determines, as a question of law, whether a defendant’s conduct was extreme

and outrageous. See Bradford v. Vento, 48 S.W.3d 749, 758 (Tex. 2001).




                                         8
      On the second element, a plaintiff must prove that the conduct is “‘so

outrageous in character, and so extreme in degree, as to go beyond all possible

bounds of decency, and to be regarded as atrocious, and utterly intolerable in a

civilized community.’” Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003)

(quoting Twyman v. Twyman, 855 S.W.2d 619, 621 (Tex. 1993)). Tortious or

otherwise wrongful conduct is not, standing alone, “extreme and outrageous”

conduct. Bradford, 48 S.W.3d at 758. A case of “extreme and outrageous” conduct

generally “is one in which the recitation of the facts to an average member of the

community would arouse his resentment against the actor, and lead him to exclaim,

‘Outrageous!’” A.H. Belo Corp. v. Corcoran, 52 S.W.3d 375, 383–84 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied).

      Tanner’s complaints about Black’s conduct and his summary-judgment

affidavit about her conduct are that Black allowed her own history (her abusive

marriage that ended in divorce) and her admitted bias (her belief that “children are

better with their mothers” and her alleged attempt to influence the court-appointed

psychologist to agree with her belief) to dictate her position as amicus attorney on

the issue of conservatorship of Tanner’s daughter.3 Tanner asserts that as a result of

Black’s conduct, the trial court in the divorce case awarded Tanner’s former wife

the right to determine his daughter’s school. We hold that, as a matter of law, this

3
      We express no opinion on the general propriety of Black’s alleged conduct
      as an amicus attorney.
                                          9
alleged conduct is not sufficient to satisfy the high threshold under Texas law for

extreme or outrageous conduct. See, e.g., Corcoran, 52 S.W.3d at 383–84 (holding

that conduct of television station and reporter, who interviewed mother and child in

hiding, in not revealing to father or authorities the location of mother and daughter,

was not extreme or outrageous as a matter of law); Gaspard v. Beadle, 36 S.W.3d

229, 237–38 (Tex. App.—Houston [1st Dist.] 2001, pet. denied) (holding that

attorney’s conduct in sending bill to former client shortly after ending his sexual

relationship with her was not extreme and outrageous as a matter of law). The trial

court properly granted summary judgment on Tanner’s claim for intentional

infliction of emotional distress.

      Fraud. Black’s no-evidence motion for summary judgment listed the six

elements of a fraud claim and stated: “Plaintiff has no evidence raising a genuine

issue of material fact that any of the elements of fraud exists.”

      Rule 166a(i) permits a movant to seek a no-evidence summary judgment on

the ground that there is no evidence of “one or more” essential elements of a claim,

but the “motion must state the elements as to which there is no evidence.” TEX. R.

CIV. P. 166a(i). Relying on Jose Fuentes Co. v. Alfaro, 418 S.W.3d 280 (Tex.

App.—Dallas 2013, pet. denied), Tanner argues that Black’s no-evidence motion

lacks the rule’s required specificity. We disagree. In Alfaro, after listing the

essential elements of the nonmovants’ claims, the no-evidence motion improperly


                                          10
asserted that the nonmovants had no evidence to support “one or more” of the

elements of their claims. Id. at 283–85. In contrast, Black’s no-evidence motion,

by asserting that Tanner had no evidence of “any” of the elements of his fraud

claim, properly moved for no-evidence summary judgment on all of the fraud

elements. See, e.g., De La Cruz v. Kailer, 526 S.W.3d 588, 593–94 (Tex. App.—

Dallas 2017, pet. denied) (no-evidence motion seeking summary judgment on

“each and every” element was sufficient to challenge all elements). Because

Tanner did not produce evidence of any elements of his fraud claim, the trial court

properly granted summary judgment on Tanner’s fraud claim.

      We overrule Tanner’s first issue.

      Immunity. Turning to Tanner’s second issue and Black’s traditional motion

for summary judgment on her statutory immunity defense, both Black’s and

Tanner’s summary-judgment evidence, along with Tanner’s live pleading,

established Black’s immunity defense under section 107.009.4 Tanner’s pleading

and the summary-judgment evidence conclusively established that all of Tanner’s

claims derive solely from Black’s status an appointed amicus attorney in Tanner’s

divorce case. See Kabbani, 2009 WL 469546, at *4–5.

4
      Among other things, Black refers to the divorce decree, which Tanner
      personally “approved and consented to as to both form and substance.” The
      decree states that Black “has satisfactorily discharged all the attorney duties
      and obligations under chapter 107 of the Texas Family Code.” Black also
      notes that Tanner never objected to or filed a motion to remove her as
      amicus attorney in the divorce case.
                                          11
      With Black having met her preliminary burden as movant, the burden shifted

to Tanner to raise a fact issue on Black’s immunity defense. See id. at *6. Tanner’s

attempt to raise a fact issue was to invoke the statutory exceptions to immunity in

section 107.009, which provides that an amicus attorney’s immunity from liability

“does not apply to an action taken, a recommendation made, or an opinion given:

(1) with conscious indifference or reckless disregard to the safety of another; (2) in

bad faith or with malice; or (3) that is grossly negligent or wilfully wrongful.” In

his summary-judgment response and on appeal, Tanner makes the conclusory

assertion, without reference to any supporting legal authority or competent

summary-judgment evidence,5 that Black’s above-described conduct raises a fact

issue on all three of these exceptions. The trial court properly granted Black’s

traditional motion for summary judgment on her immunity defense. We overrule

Tanner’s second issue.



5
      For example, Tanner did not present summary-judgment evidence from an
      attorney expert that Black’s alleged conduct fell within any of the three
      statutory exceptions. Cf. Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673,
      679 (Tex. 2017) (“Generally, in a legal malpractice case, expert witness
      testimony is required to rebut a defendant’s motion for summary judgment
      challenging the causation element. To defeat such a motion, an expert
      affidavit must be probative and raise a fact issue.”) (internal citation
      omitted); Saldana-Fountain v. Chavez Law Firm, 450 S.W.3d 913, 916–17
      (Tex. App.—El Paso 2014, no pet.) (“the law required Appellant to provide
      expert testimony on the viability of her employment claim—her “case within
      a case”—in order to establish causation, i.e., that but for her attorney’s
      negligence, she would be entitled to judgment”).
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                                   Conclusion

      We affirm the judgment of the trial court.




                                             Richard Hightower
                                             Justice

Panel consists of Justices Lloyd, Kelly, and Hightower.




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