Opinion
NO. 03-19-00162-CV
07-30-2020
Thomas P. McDill, Jr., Individually and as Co-Trustee of the Phyllis V. McDill Irrevocable Trust, Appellant v. Michael Glen McDill; Douglas W. Bailey; Bailey Stock Harmon Cottam, LLP; Jessica M. Warren; and Bailey Krawczyk, Appellees
FROM THE 459TH DISTRICT COURT OF TRAVIS COUNTY
NO. D-1-GN-18-002408 , THE HONORABLE KARIN CRUMP, JUDGE PRESIDING MEMORANDUM OPINION
In the suit underlying this appeal, Thomas P. McDill alleges that the defendants, who include his brother, Michael Glenn McDill, and his brother's attorneys, engaged in tortious conduct in connection with guardianship proceedings over his mother (which occurred in Wyoming) and proceedings to enforce the Wyoming court's temporary guardianship order (which occurred in Texas). The trial court granted special appearances filed by Michael and other nonresident defendants, see Tex. R. Civ. P. 120a, and then granted motions to dismiss filed by the remaining defendants, see id. R. 91a. Thomas filed a notice of appeal in this Court challenging the trial court's dismissal of his suit. For the reasons that follow, we will affirm the judgment of the trial court.
BACKGROUND
Phyllis McDill, now deceased, was the mother of two adult sons, Michael, a resident of Colorado, and Thomas, a resident of Texas. In April 2009, Phyllis was living in Wyoming when she created, with the assistance of her estate planning attorney, the Phyllis V. McDill Revocable Trust (the "Trust"). The primary purpose of the Trust was to dictate how Phyllis's assets, all located in Wyoming, would be managed during the remainder of her life and distributed upon her death. Phyllis appointed herself as the trustee and her son Michael as the successor trustee. In March 2014, Phyllis suffered a major stroke resulting in cognitive loss and speech aphasia. In 2015, following stays in various assisted-living facilities in Wyoming and Colorado, Phyllis moved back into her home to live with the assistance of in-home health care.
After her stroke, Phyllis amended the Trust four times, the latter two of which are central to this dispute. First, in May 2014, approximately three months after her stroke, Phyllis executed the first amendment to the Trust, which appointed Michael as co-trustee of the Trust. On June 28, 2016, Phyllis signed a second amendment, which appointed Thomas as co-trustee, bequeathed her home in Wyoming to Thomas, and gave Thomas the power to distribute estate assets. According to Ryan McGuffey, Phyllis's estate planning attorney, Thomas delivered the second amendment to McGuffey at his office in Wyoming, and it was McGuffey's understanding that Thomas had prepared the second amendment for Phyllis's signature. Concerned by the fact that the amendment was contrary to Phyllis's previous estate planning directives, McGuffey spoke with Phyllis about the second amendment and whether it accurately reflected her wishes. Following that conversation, McGuffey drafted a third amendment, signed by Phyllis in Wyoming on September 7, 2016, revoking the second addendum. Finally, on December 15, 2016, Phyllis executed a fourth amendment that incorporated a no-contest clause into the Trust.
On November 24, 2016—after Phyllis had signed the third amendment to the Trust but before the fourth amendment—Thomas went to visit Phyllis in Wyoming for Thanksgiving. The next day, Thomas drove Phyllis from Wyoming to his home in Austin, Texas, without informing Michael or any other family member. According to Thomas, Phyllis had agreed to come live with him in Texas because she was concerned that Michael and his wife were going to "take [her] to a home." Upon learning that Thomas had taken Phyllis to Texas, Michael flew to Texas. On November 28, when Michael appeared at Thomas's doorstep, Thomas refused to allow him to enter and then called the police.
On November 30, Michael filed a petition for appointment of emergency guardianship without notice (the "petition for guardianship") in the state district court in Laramie County, Wyoming. On December 1, the Wyoming trial court granted the emergency petition, appointed a guardian ad litem, and ordered an evidentiary hearing set for December 5 to determine who should be appointed Phyllis's temporary guardian. Following the evidentiary hearing, and after considering the ad litem's recommendation, the trial court signed an order temporarily appointing Michael as Phyllis's guardian for thirty days.
On December 7, 2016, Michael filed an action in district court in Travis County, Texas, to enforce the Wyoming temporary order in Texas. On December 8, the trial court held a hearing on Michael's motion to enforce and, at the conclusion of the hearing, ruled that it would enforce the Wyoming temporary order. Pursuant to the court's enforcement order, Michael returned Phyllis to Wyoming. No further proceedings concerning the Trust or Phyllis's guardianship occurred in Texas. On February 10, 2017, following a hearing at which Thomas appeared through counsel, the Wyoming court appointed Michael as Phyllis's permanent guardian. Phyllis passed away in December 2017.
On May 15, 2018, representing himself pro se, Thomas filed suit against Michael in district court in Travis County, Texas, in connection with the Trust, the guardianship proceedings, and the enforcement action in Texas. In part, Thomas alleges that Michael used duress and undue influence to convince Phyllis to execute the third and fourth amendments to the Trust and that Michael did so to obtain control of the Trust and to prevent Thomas from receiving title to Phyllis's Wyoming real property. Michael seeks to have the "Third and Fourth Amendments of the Trust vacated, canceled and set aside." Thomas also sued several attorneys and law firms involved in the proceedings in Wyoming and Texas who, according to Thomas, conspired with Michael to "overcome the free will of [Phyllis] though malfeasance or, simply failing to meet the legal ethical obligations owed as attorneys for [Phyllis] or attorneys ad litem."
Michael and the nonresident attorney defendants, including Douglas W. Bailey and the firm of Bailey Stock Harmon and Cottam, LLP (the "Bailey Defendants"), subsequently filed special appearances to contest personal jurisdiction pursuant to Rule 120a of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 120a. Attorney defendants Bailey Krawczyk and Jessica Warren, both residents of Texas, filed motions to dismiss pursuant to Rule 91a. See id. R. 91a. The trial court granted the special appearances and the motions to dismiss. In addition, the trial court ordered Thomas to pay costs, reasonable and necessary attorney's fees, and other expenses incurred by Krawczyk and Warren in the amounts of $6,840.70 and $5,130.00, respectively.
In three issues on appeal, Thomas challenges the dismissal of his suit. Specifically, Thomas contends that the trial court erred in granting the special appearances filed by Michael and the Bailey Defendants and in granting the motions to dismiss filed by Krawczyk and Warren. We turn first to the trial court's special-appearance rulings.
Although other nonresident defendants also filed special appearances, which the trial court granted, Thomas does not appeal the trial court's rulings as to these defendants.
ANALYSIS
I. Rule 120a Special Appearances
Law Governing Personal Jurisdiction
A Texas court has personal jurisdiction over a nonresident defendant if the exercise of personal jurisdiction is authorized by the Texas long-arm statute and is consistent with federal and state constitutional guarantees of due process. Moki Mac River Expeditions v. Drugg, 221 S.W.3d 569, 574 (Tex. 2007). The broad language of the Texas long-arm statute allows Texas courts to exercise personal jurisdiction "as far as the federal constitutional requirements of due process will permit." BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002. "Thus, the requirements of the Texas long-arm statute are satisfied if an assertion of jurisdiction accords with federal due-process limitations." Moki Mac, 221 S.W.3d at 575.
The Texas long-arm statute authorizes the exercise of jurisdiction over a nonresident defendant who "does business in the state" or "(1) contracts by mail or otherwise with a Texas resident and either party is to perform the contract in whole or in part in this state; (2) commits a tort in whole or in part in this state; or (3) recruits Texas residents, directly or through an intermediary located in this state, for employment inside or outside this state." Tex. Civ. Prac. & Rem. Code § 17.042.
The exercise of jurisdiction over a nonresident defendant comports with federal due process when "(1) the nonresident defendant has minimum contacts with the forum state, and (2) asserting jurisdiction complies with traditional notions of fair play and substantial justice." Moncrief Oil Int'l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013); see International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945). The "touchstone" of a minimum-contacts analysis is purposeful availment. Cornerstone Healthcare Grp. Holding, Inc. v. Nautic Mgmt. VI, L.P., 493 S.W.3d 65, 70 (Tex. 2016). "A defendant establishes minimum contacts with a state when [he] 'purposefully avails [himself] of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.'" Retamco Operating, Inc. v. Republic Drilling Co., 278 S.W.3d 333, 338 (Tex. 2009) (citing Hanson v. Denckla, 357 U.S. 235, 253 (1958)). The purposeful-availment requirement encompasses three considerations. Moki Mac, 221 S.W.3d at 575 (citing Michiana Easy Livin' Country, Inc. v. Holten, 168 S.W.3d 777, 784-85 (Tex. 2005)). First, we consider only the nonresident defendant's contacts with the forum, not the unilateral activity of another party or third person. Id. Second, the contacts on which jurisdiction is based must be purposeful rather than random, fortuitous, or attenuated. Id. Finally, the defendant must seek benefit, advantage, or profit by availing itself of the benefits of the forum's laws. Id. The defendant's activities, "whether they consist of direct acts within Texas or conduct outside Texas, must justify a conclusion that the defendant could reasonably anticipate being called into a Texas court." American Type Culture Collections, Inc. v. Coleman, 83 S.W.3d 801, 806 (Tex. 2002).
A nonresident defendant's contact with the forum state can give rise to either general or specific jurisdiction. BMC Software, 83 S.W.3d at 795. General jurisdiction exists when the defendant has made continuous and systematic contact, such that the forum may exercise jurisdiction over the defendant even if the alleged liability does not arise from or relate to those contacts. Id. In contrast, specific jurisdiction exists only if the alleged liability arises out of or is related to the defendant's contact with the forum. Moki Mac, 221 S.W.3d at 576. When specific jurisdiction is alleged, the focus of the minimum-contacts analysis is the relationship among the defendant, the forum, and the litigation. Id. (citing Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S. 408, 414 (1984)). Therefore, if the court concludes that a nonresident defendant has minimum contacts with Texas by purposefully availing himself of the privilege of conducting activities here, the court must then address whether the defendant's alleged liability arises out of or is related to those contacts. Id. at 579.
Standard of Review
Rule 120a of the Texas Rules of Civil Procedure allows a nonresident defendant to enter a special appearance in a Texas court for the limited purpose of challenging the court's jurisdiction "over the person or property of the defendant." Tex. R. Civ. P. 120a. When a challenge is made to the trial court's exercise of personal jurisdiction, the parties bear shifting burdens of proof. Kelly v. General Interior Constr., Inc., 301 S.W.3d 653, 658 (Tex. 2010). The plaintiff bears the initial burden of pleading sufficient allegations to bring the nonresident defendant within the reach of Texas's long-arm statute. BMC Software, 83 S.W.3d at 794. If the plaintiff fails to meet this initial burden, the defendant negates personal jurisdiction by presenting evidence that he is not a Texas resident. Kelly, 301 S.W.3d at 658. If the plaintiff has pleaded sufficient jurisdictional allegations, the burden shifts to the nonresident defendant to negate all bases of personal jurisdiction asserted by the plaintiff, on either a legal or factual basis. Id. Legally, defendant may negate jurisdiction by showing that even if the plaintiff's allegations are true, they do not establish jurisdiction. Id. Factually, a defendant may negate jurisdiction by introducing evidence that rebuts the allegations in the pleadings. Id.; BMC Software, 83 S.W.3d at 795.
The determination of whether a court has personal jurisdiction over a defendant is a question of law. Moncrief Oil, 414 S.W.3d at 150. However, in making a jurisdictional determination, the trial court must frequently resolve questions of fact. Id. When, as in this case, the trial court does not issue findings of fact and conclusions of law, "we imply all relevant facts necessary to support the judgment that are supported by evidence." Id.; see BMC Software, 83 S.W.3d at 795. When the appellate record includes the reporter's record and clerk's record, these implied findings are not conclusive and may be challenged for legal and factual sufficiency. Id. Once we determine that the trial court's findings are supported by sufficient evidence, or if the material facts are undisputed, we review the trial court's ruling on a special appearance de novo. Baker Hughes Inc. v. Brooks, 405 S.W.3d 246, 249 (Tex. App.—Houston [14th Dist.] 2013, pet. denied).
Analysis of Michael's Contacts
On appeal, Thomas complains that the trial court erred in granting Michael's special appearance because the undisputed allegations in his pleadings establish that Michael "was physically present in Texas when he committed the complained-of torts against a Texas resident." Specifically, Thomas asserts that the pleadings and evidence show that Michael (1) "[made] multiple appearances in Austin for the sole purpose of taking his mother away from where she wishes to live," (2) "[filed] a demonstrable false 'emergency' medical guardianship application," (3) "[coordinated] with his Texas and Wyoming attorneys on all these matters," and (4) "[filed] an ex parte action in Travis County that led to the handing over of Phyllis against her will." Thomas contends that these "contacts" are "more than sufficient to establish specific jurisdiction" over Michael. In response, Michael contends that the trial court correctly concluded that it lacks specific jurisdiction over Thomas's claims against him because Michael's "contacts with Texas were caused solely by the unilateral actions of Thomas" and because "[Thomas's] complaint does not arise from [Michael's] contact with Texas."
On appeal, Thomas does not challenge the trial court's ruling to the extent it impliedly found that Michael's jurisdictional contacts were insufficient to support general jurisdiction. Therefore, the only issue before us is whether the trial court erred in concluding that it lacks specific jurisdiction.
In support of his argument that Michael's contacts with Texas demonstrate purposeful availment, Thomas points out that, in general, "voluntarily filing a lawsuit in a jurisdiction is purposeful availment of the jurisdiction's facilities and can subject a party to personal jurisdiction in another lawsuit when the lawsuits arise from the same general transaction." Zamarron v. Shinko Wire Co., 125 S.W.3d 132, 143 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). Consequently, in Thomas's view, the undisputed fact that Michael filed a legal action in Texas to enforce an order signed by a Wyoming court establishes that Michael sought the benefits and protections of the Texas legal system. See id.
In response, Michael does not dispute that he instituted legal proceedings in Texas to enforce the temporary guardianship order signed by the Wyoming court. Instead, Michael argues that the general rule cited by Thomas does not apply here because the Texas suit was not "purposefully directed" at a Texas resident. That is, according to Michael, the sole purpose of the suit was to obtain possession of a Wyoming resident, who was the subject of a Wyoming guardianship order and who had traveled to Texas. In addition, Michael points out that the fact that Phyllis traveled to Texas, as opposed to any other state, was the result of "random, fortuitous, [and] unilateral" actions by Thomas and not the result of Michael's own deliberate decision or action. Michael contends that for these reasons, his physical presence in Texas and his suit to enforce the Wyoming guardianship order fail to establish purposeful availment.
Throughout his appellate brief, Thomas refers to Phyllis as a Texas resident. Assuming without deciding that Phyllis's residency bears on the issue of whether Michael's contacts with Texas demonstrate "purposeful availment," we construe this as a challenge to the trial court's implied finding that Phyllis was a resident of Wyoming and not Texas. Based on the record before us, we conclude that the evidence is sufficient to support the court's implied finding on this issue. In part, the undisputed evidence shows that before coming to Texas with Thomas for approximately one month in late 2016, Phyllis had resided in Wyoming since 1950, and according to Thomas's own allegations, he brought Phyllis to Texas to "spend the winter."
We need not decide, however, whether Michael's contacts—particularly, his filing of the motion for enforcement in Texas—demonstrate purposeful availment. When specific jurisdiction is asserted over a nonresident defendant, the plaintiff's claims must "arise out of" or "relate to" the defendant's contacts. Searcy v. Parex Res., Inc., 496 S.W.3d 58, 67 (Tex. 2016). In other words, specific jurisdiction exists only when the defendant's purposeful contacts with the forum "substantially connect" to the operative facts of the litigation. Moki Mac, 221 S.W.3d at 585. In addition, specific jurisdiction must be established on a claim-by-claim basis unless all the asserted claims arise from the same forum contacts. M&F Worldwide Corp. v. Pepsi-Cola Metro. Bottling Co., 512 S.W.3d 878, 886 (Tex. 2017). Based on the pleadings and evidence before us, we cannot conclude that Michael's undisputed contacts are "substantially connected" to Thomas's claims.
As an initial matter, we note that it is not entirely clear from Thomas's pleadings what specific causes of actions he has asserted against Michael. Nevertheless, on appeal, Thomas contends that the trial court has specific jurisdiction because Michael committed "the complained-of torts" in Texas. See, e.g., Moncrief Oil, 414 S.W.3d at 154 (concluding that Texas courts had specific jurisdiction over nonresident defendant for claim of misappropriation of trade secret where defendant accepted alleged trade secrets at meeting in Texas). The only specific factual allegation made by Thomas in his live pleadings as to misconduct by Michael occurring in Texas is that "[Michael] brought an action in Travis County, Texas, in an illegal ex parte fashion, representing to the Court that a conservatorship for all purposes had been entered concerning [Phyllis] in the State of Wyoming." Liberally construed, we conclude that Thomas has alleged that Michael's attorney failed to give proper notice of the December 8 hearing to Thomas and Phyllis and that Michael's attorney misrepresented to the Texas court the legal effect of the Wyoming court's temporary guardianship order. However, the special-appearance record includes a copy of the motion to enforce the temporary guardianship, which was filed in Travis County; a copy of the Wyoming guardianship order, which was attached to the motion to enforce; and a copy of the transcript from the December 8 hearing in Texas, at which Thomas and Phyllis appeared. Based on this record, we conclude that the trial court could have found that Michael did not, as a factual matter, make representations in Texas about the scope of the guardianship, as Thomas alleges.
In addition, Thomas does not explain, and we fail to see, how Michael's actions are "substantially connected" to the litigation. Thomas generally complains in his live pleadings about the allegedly "impermissible guardianship proceedings"; the "non-existent, fabricated" order that resulted; the fact that Phyllis amended the Trust to the detriment of Thomas; and Michael's ability to then make "unchecked distributions to himself for anything he might want." At best, Thomas's reliance on the fact that Michael came to Texas to enforce the Wyoming guardianship order constitutes a but-for jurisdictional argument. That is, specific jurisdiction as to Michael appears to rest on a theory that but for Michael's improper enforcement action in Texas, Phyllis would have remained in Texas with Thomas, and Michael would not have then had the opportunity to improperly influence Phyllis. Under Thomas's reasoning, had Phyllis remained in Texas, she would not have amended the Trust to Thomas's detriment, and Michael would not have been in a position to misappropriate or convert the trust assets. Based on Thomas's allegations, we conclude that the operative facts of this litigation occurred in Wyoming—where Michael obtained guardianship over Phyllis, "secreted [Phyllis] away from any contact with [Thomas]," exercised "undue influence and duress," and wrongfully controlled Trust assets. We fail to see a "substantial connection" between Michael's contacts with Texas—all of which concern his efforts to enforce the Wyoming guardianship order and to return Phyllis to Wyoming—and the operative facts in this litigation. See Old Republic Nat'l Title Ins. v. Bell, 549 S.W.3d 550, 561 (Tex. 2018) (noting that but-for jurisdictional analysis is "too broad and judicially unmoored to satisfy due-process concerns" (citing Moki Mac, 221 S.W.3d at 581)).
Even this theory of the case is not entirely clear. For example, the undisputed evidence establishes that the third amendment, which Thomas complains was the product of undue influence, was executed before Phyllis went to Texas with Thomas.
We conclude that the pleadings and evidence fail to show that those contacts are substantially connected to the operative facts in this litigation. See Moki Mac, 221 S.W.3d at 585. Consequently, the trial court did not err in deciding that it lacked specific jurisdiction over Thomas's claims against Michael. Thomas's first issue on appeal is overruled.
Analysis of the Bailey Defendants' Contacts
Next, we consider whether the trial court erred in granting the Bailey Defendants' special appearances and dismissing Thomas's claims against them. The undisputed evidence establishes that Doug Bailey is a resident of Wyoming, where he is a licensed attorney. Bailey and his law firm were hired by Michael to prepare the petition for guardianship filed in Wyoming and to represent Michael in those proceedings. Neither Bailey nor his firm own property in Texas, maintain a place of business in Texas, or have clients who reside in Texas.
In support of his argument that the trial court erred in granting the Bailey Defendants' special appearance, Thomas points to several allegations that, in his view, demonstrate that the Bailey Defendants have established minimum contacts with Texas. First, Thomas points out that Bailey "participated in the ex parte proceedings in Wyoming to appoint an emergency medical guardian for [Phyllis]." Although the Bailey Defendants do not dispute this allegation, they point out, and the evidence establishes, that these guardianship proceedings occurred entirely in Wyoming. While the Bailey Defendants may have been aware that Phyllis was in Texas at the time, we cannot conclude based on this fact alone that the Wyoming guardianship proceedings were purposefully directed to Texas. See Michiana, 168 S.W.3d at 781-84 (rejecting argument that jurisdiction turns on whether defendant "knows the brunt of the injury will be felt" in forum). In short, we disagree that the Bailey Defendants, by representing Michael in the Wyoming guardianship proceedings, could have reasonably anticipated being haled into court in Texas. See Moncrief Oil, 414 S.W.3d at 150 ("At its core, the purposeful availment analysis seeks to determine whether a nonresident's conduct and connection to a forum are such that it could reasonably anticipate being haled into court there.").
Second, Thomas asserts that the Bailey Defendants established minimum contacts with Texas because Bailey drafted the motion to enforce the Wyoming order, which was later signed and presented to the court in Travis County by attorneys residing and working in Texas. However, Thomas did not plead before the trial court that the Bailey Defendants drafted the motion to enforce, and the evidence does not support this assertion. Instead, the record before the trial court includes the affidavit of Krawczyk, an Austin attorney who represented Michael in the hearing on the motion to enforce. In her affidavit, Krawczyk states that she prepared the motion to enforce and that another attorney with her firm, Jessica Warren, signed the motion. We conclude that this evidence is sufficient to support an implied finding that Krawczyk, and not Bailey, drafted the motion to enforce filed in Texas. Thus, to the extent Thomas asserts that Bailey's participation in the preparation of the motion to enforce constitutes a purposeful contact, we conclude that this assertion is unsupported by the pleadings or the record.
Finally, Thomas contends that two additional contacts support the exercise of specific jurisdiction over the Bailey Defendants. First, Thomas argues that the evidence shows that Bailey (1) contacted the Austin Police Department on December 1 and December 7, 2016, and (2) exchanged multiple phone calls with the Texas attorneys regarding the Texas proceedings. Again, these jurisdictional allegations were never pleaded by Thomas in his petition or in his written response to Bailey's special appearance. However, even considering these unpleaded jurisdictional facts, we cannot conclude that these communications with Texas residents demonstrate purposeful availment.
"When communications between a nonresident and a resident are alleged as the basis of jurisdiction, we look to the quality and nature of the communications to establish purposeful availment." Bell, 549 S.W.3d at 560. Standing alone, telephone communications do not establish minimum contacts. Id. In support of his argument that the Bailey Defendants engaged in phone calls with Texas residents, Thomas relies on several entries made in Bailey's billing statements, attached to the Bailey Defendants' special appearance. Based on these entries, the calls appear to concern the Bailey Defendants' legal representation of Michael in the Wyoming guardianship proceedings, although the entries do not reveal details about the substance of the communications. Thomas does not explain, and we fail to see from the record before us, how the Bailey Defendants sought to obtain some "benefit, advantage, or profit" in Texas by engaging in these communications. See Moki Mac, 221 S.W.3d at 575. Moreover, to the extent Thomas suggests that Bailey's actions and communications were made in furtherance of a conspiracy to improperly obtain an enforcement order in Texas, we cannot conclude that these allegations are sufficient to support the exercise of specific jurisdiction over the Bailey Defendants. See id.
Much like his assertion of specific jurisdiction against Michael, Thomas's assertion of specific jurisdiction against the Bailey Defendants rests, at best, on a but-for theory that without Bailey's assistance, the Texas attorneys would have been unable to obtain the enforcement order in Travis County. We conclude that this connection, however, is too attenuated from the operative facts of the case to support the exercise of specific jurisdiction. See id. at 561. Accordingly, the trial court did not err in concluding that it lacked specific jurisdiction and, consequently, in granting the Bailey Defendants' special appearance. We overrule Thomas's second issue on appeal.
II. Rule 91a Motions to Dismiss
Finally, we consider Thomas's challenge to the trial court's decision to grant Rule 91a motions to dismiss filed by Krawczyk and Warren, who represented Michael in the Texas proceeding on the motion to enforce the Wyoming temporary order.
Rule 91a allows a party, subject to certain exceptions not applicable here, to move for early dismissal of a cause of action on the ground that it has no basis in law or fact. Tex. R. Civ. P. 91a.1. A cause of action has no basis in law "if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought." City of Dallas v. Sanchez, 494 S.W.3d 722, 724 (Tex. 2016) (citing Tex. R. Civ. P. 91a.1). "A cause of action has no basis in fact if no reasonable person could believe the facts pleaded." Tex. R. Civ. P. 91a.1. We review de novo a trial court's ruling on a Rule 91a motion "because the availability of a remedy under the facts alleged is a question of law and the rule's factual-plausibility standard is akin to a legal-sufficiency review." Sanchez, 494 S.W.3d at 724. In conducting our review, we construe the pleadings liberally in favor of the plaintiff, look to the pleader's intent, and accept as true the factual allegations in the pleadings to determine if the cause of action has a basis in law or fact. Koenig v. Blaylock, 497 S.W.3d 595, 599 (Tex. App.—Austin 2016, pet. denied).
In their motions to dismiss, Krawczyk and Warren assert that Thomas's claims against them are barred by the affirmative defense of attorney immunity. On appeal, Thomas argues that the trial court erred in granting the Texas attorneys' motion to dismiss for three reasons. First, Thomas asserts that the trial court erred because Rule 91a is an improper vehicle to assert the affirmative defense of attorney immunity. In support of this argument, Thomas points out that Rule 91a expressly limits the court's consideration to the "the pleading of the cause of action" and prohibits the court from considering "evidence." Tex. R. Civ. P. 91a.6; see id. R. 59 (permitting party to attach to pleading "notes, accounts, bonds, mortgages, records, and other written instruments, constituting, in whole or in part, the claim sued on, or the matter set up in defense"). Consequently, Thomas reasons that because his pleadings, standing alone, do not establish the affirmative defense of attorney immunity, the trial court's dismissal on this ground must be reversed.
Presented with an argument like the one presented here by Thomas, the Texas Supreme Court recently recognized that a Rule 91a motion to dismiss may be granted based on an affirmative defense, such as attorney immunity. Bethel v. Quilling, Selander, Lownds, Winslett & Moser, P.C., 595 S.W.3d 651 (Tex. 2020). Based on the plain language of the rule, the court held that the limitations found in Rule 91a—and cited by Thomas here—are within the "scope of the court's factual, but not legal, inquiry." Id. at 655. Therefore, in deciding a Rule 91a motion to dismiss, a court may consider a defendant's pleadings "if doing so is necessary to make the legal determination of whether an affirmative defense is properly before the court." Id. at 656. Rule 91a "permits motions to dismiss based on affirmative defenses 'if the allegations, taken as true, together with inferences reasonably drawn from them, do not entitle the claimant to the relief sought.'" Id. (quoting Tex. R. Civ. P. 91a).
As a general rule, "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). "Put differently, an attorney may only be liable to nonclients for conduct outside the scope of his representation of his client or for conduct foreign to the duties of a lawyer." Id. at 482. Attorney immunity is an affirmative defense, the purpose of which is to ensure loyal, faithful, and aggressive advocacy for clients. Id. at 481. When attorney immunity is asserted, the focus is on the conduct at issue rather than the alleged wrongfulness of the conduct. Youngkin v. Hines, 546 S.W.3d 675, 681 (Tex. 2018). In the context of a Rule 91a motion to dismiss based on attorney immunity, the issue becomes whether the plaintiff's allegations, if taken as true, concern actions taken in connection with the attorney's representation of her client. See Bethel, 595 S.W.3d at 651.
In his pleadings, Thomas alleges that Krawczyk and Warren, along with other attorneys, engaged in a series of wrongful acts while representing Michael and that those acts were carried out as part of a conspiracy to harm Thomas. Specifically, Thomas's petition includes the following allegations relevant to the conduct of the Texas attorneys:
Jessica Warren, Bailey Krawczyk [and others] are all attorneys who at the special insistence and request of [Michael] have engaged in a pattern and practice of undue influence and duress in an effort to manipulate the testamentary expression of [Phyllis] to the benefit of [Michael], and, ultimately through the payment of fees of the below-described trust, to themselves. This concerted effort to manipulate the testamentary expressions of [Phyllis] included improperly securing [Phyllis's] signature on amendments to testamentary documents, securing and isolating [Phyllis] from other family members, and making multiple representations to multiple courts in multiple states, preparing and securing perjured affidavits.Finally, Michael states in his pleadings,
. . .
[Michael] was enabled and assisted in these efforts [to engage in duress and undue influence] by Jessica M. Warren, Bailey Krawczyk [and other attorney defendants] . . . . In fact, each of those entities acted in concert and conspiracy with [Michael] to overcome the free will of [Phyllis] through malfeasance or, simply failing to meet the legal and ethical obligations owed as attorney for [Phyllis] or attorneys ad litem.
[A]ided and abetted by his Co-Defendants herein, [Michael] filed multiple actions in multiple states purporting to seek relief other than the relief he really sought. . . . [Michael] brought an action in Travis County, Texas in an illegal ex parte fashion, representing to the Court that a conservatorship for all purposes had been entered concerning [Phyllis] in the State of Wyoming. This was accomplished by presenting to the Texas State Court false orders, fabricated by [Michael]. He was assisted in these efforts by his Co-Defendants herein.Taking Thomas's allegations as true, we conclude that the complained-of actions by Krawczyk and Warren were "taken in connection with representing [their] client in litigation." Cantey Hanger, 467 S.W.3d at 481; see Smith Robertson, L.L.P. v. Hamlin, No. 03-18-754-CV, 2019 Tex. App. LEXIS 5787, at *9 (Tex. App.—Austin July 11, 2019, pet. denied) (mem. op.) (claim was barred by attorney immunity where undisputed record showed that attorney domesticated Arizona judgment in course of representing client). We conclude that the trial court did not need to look outside Thomas's pleadings to determine whether the attorney-immunity defense applied to Thomas's claims. As a result, the trial court did not err in deciding the Rule 91a motions to dismiss filed by Krawczyk and Warren based on attorney immunity.
Nevertheless, Thomas additionally asserts that even if attorney immunity may be asserted in a Rule 91a motion to dismiss, attorney immunity does not apply in this case because the complained-of actions amount to an abuse of process. According to Thomas, the affirmative defense of attorney immunity does not apply because it is based on actions by Krawczyk and Warren outside the scope of their representation. See Cantey Hanger, 467 S.W.3d at 482. Specifically, Thomas asserts that his claims against Krawczyk and Warren are not protected by attorney immunity because they "misrepresented the scope of their representation" and "were after something other than enforcement of a Wyoming order."
We recognize that there are limits to the doctrine of attorney immunity. See Youngkin, 546 S.W.3d at 682 ("Though attorney immunity is broad, it is not limitless."). Consequently, an attorney is not immune from suit for participating in criminal or "independently fraudulent activities" that fall outside the scope of the attorney's representation of a client. Cantey Hanger, 467 S.W.3d at 483. For example, immunity does not apply when an attorney participates in a fraudulent business scheme with her client or knowingly facilitates a fraudulent transfer to help her clients avoid paying a judgment. Bethel, 595 S.W.3d at 658 (citing Cantey Hanger, 467 S.W.3d at 482). However, looking beyond Thomas's characterization of the conduct at issue, we conclude that Thomas's complaints concern conduct in the provision of legal services in the context of litigation: (1) the presentation by Krawczyk and Warren of the Wyoming guardianship order for enforcement in a Texas court, and (2) filings and representations made in the course of those proceedings about the legal effect of the Wyoming guardianship order. To the extent Thomas has alleged a claim for abuse of process based on this conduct, we conclude that the claim falls within the scope of the attorney-immunity doctrine.
Finally, Thomas contends that his pleadings include a claim that Krawczyk and Warren engaged in "misappropriation, conversion, or conspiracy to commit conversion" by accepting trust assets as payment for their services and that this claim is not protected by attorney immunity. See Chu v. Hong, 249 S.W.3d 441, 446 (Tex. 2008) ("[A]n attorney who personally steals goods or tells lies on a client's behalf may be liable for conversion or fraud in some cases."). Even liberally construing Thomas's pleadings, however, we cannot conclude that his claims for misappropriation, conversion, and conspiracy, as alleged, fall outside the protection of the attorney-immunity doctrine. See Cantey Hanger, 467 S.W.3d at 483 (adopting narrow approach to fraud exception to attorney immunity and noting that merely labeling conduct as "fraudulent" does not remove it from scope of client representation).
Based on the facts alleged in Thomas's petition, the trial court correctly concluded that attorney immunity shields the Texas attorneys from liability to Thomas, whom the Texas attorneys did not represent. See Reagan Nat'l Advert. of Austin, Inc. v. Hazen, No. 03-05-00699-CV, 2008 Tex. App. LEXIS 5826, at *2 (Tex. App.—Austin July 29, 2008, no pet.) (mem. op.) ("Texas courts have long held that attorneys cannot be held civilly liable for damages to non-clients, under any theory of recovery, for actions taken in connection with representing a client."). We overrule Thomas's third issue on appeal.
CONCLUSION
Having overruled appellant's issues on appeal, we affirm the judgment of the trial court.
/s/_________
Chari L. Kelly, Justice Before Justices Goodwin, Baker, and Kelly Affirmed Filed: July 30, 2020