Celestina Adame v. Law Office of Allison & Huerta, a Texas General Partnership

Opinion

NUMBER 13-04-670-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

CELESTINA ADAME, ET AL., Appellants,

v.

LAW OFFICE OF ALLISON & HUERTA, A TEXAS GENERAL PARTNERSHIP, ET AL., Appellees.

On appeal from the 94th District Court of Nueces County, Texas.

MEMORANDUM OPINION

Before Justices Yañez, Rodriguez, and Wittig1 Memorandum Opinion by Justice Wittig

This is a summary judgment case. Appellants Celestina Adame, individually and

as next friend of Erica Adame, a minor, et al., first challenge the jurisdiction of the trial court

1 Retired Fourteenth Court of Appeals Justice Don W ittig assigned to this Court by Chief Justice of the Suprem e Court of Texas pursuant to the governm ent code. T EX . G O V ’T C OD E AN N . § 74.003 (Vernon 2005). to hear motions for summary judgment filed by appellees, Law Offices of Allison & Huerta,

a Texas General Partnership, et al. If the visiting judge assigned to hear the matter had

jurisdiction, then appellants contend the trial court erred by granting appellees’ motions for

summary judgment, and not granting their motion for new trial. We affirm the judgment of

the trial court.

I. Assigned Visiting Judge: Jurisdiction

In the underlying litigation, appellees were involved in securing a $65,700,000

settlement of a class action, toxic-tort case. On June 30, 1995, the trial court converted

the class action suit from an “opt out” class into a “mandatory” class. Some 505 dissident

members of the class appealed this order, but over time, all but a very few settled their

cases and dropped their appeals. On September 12, 1995, the 105th District Court of

Nueces County held a rule 42 “fairness hearing,” and approved the final class settlement

by its Order and Dismissal With Prejudice. Some dissidents, appellants herein, filed

malpractice and related claims against appellees. On February 9, 1999, the presiding

administrative judge assigned Former District Judge Robert Pate to hear all matters in this

malpractice case. The assignment continued so long as necessary to complete the trial,

pass on motions for new trial, and all other matters.

Before an earlier appeal, appellees filed motions for summary judgment which were

granted by Judge Pate. Appeal was taken from the prior summary judgments to our Court.

We dismissed this appeal of the initial summary judgments for want of jurisdiction. Adame

v. Huerta, No. 13-00-781-CV, 2003 LEXIS Tex. App. 7115, *1 (Tex. App.–Corpus Christi,

Aug. 21,2003, no pet.) (not designated for publication). We ruled that the judgment was

not final because it did not dispose of all issues or parties. Thereafter, additional summary

2 judgment motions were filed and again heard by Judge Pate. The trial judge again granted

the motions for summary judgment, now the subject of this appeal.

Hearings for the summary judgments were set on September 23 and 24, 2004.

Notice of hearings was sent on July 23, 2004. On September 15, 2004, appellants filed

three objections to Judge Pate for the first time, even though he had been appointed to this

case in 1999. Judge Pate heard the objections September 23, 2004, and entered a

detailed order overruling the objections to the visiting judge. In the order, the trial court

found that he was properly assigned for as long as necessary to complete the trial and

hear the motion for new trial, et cetera. Because the Thirteenth Court of Appeals

dismissed the earlier appeal for want of jurisdiction, the trial court never lost jurisdiction.

Therefore, the assignment of Judge Pate was still effective and continuing.

Appellants have not challenged any of the findings of this order.

Appellants argue all orders issued by Judge Pate after the initial appeal are null and

void. They cite Starnes v. Chapman, 793 S.W.2d 104, 106 (Tex. App.–Dallas, 1990 orig.

proceeding) (citing TEX . R. CIV. P. 329(b); First City Bank v. Salinas, 754 S.W.2d 497, 498

(Tex. App.– Corpus Christi 1988, orig. proceeding)). Starnes holds that when the time

periods for filing and ruling on motions for new trial on a judgment expired, and an appeal

was perfected, the visiting judge’s plenary power over the cause expired, as did his

assignment. Id. We do not disagree. However, subject to appellate rule 29.5, a trial court

retains plenary jurisdiction, and therefore power over its interlocutory orders, until it enters

a final judgment. TEX . R. APP. P. 29.5; Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex.

1993). The trial court's plenary power is "full, entire, complete, absolute, perfect, [and]

3 unqualified." Orion Enter., Inc. v. Pope, 927 S.W.2d 654, 658 (Tex. App.–San Antonio

1996, no writ) (orig. proceeding).

In this case, we previously held there was no final, appealable judgment before this

Court over which we had jurisdiction, and we did not merely abate the appeal until a final

order was before us. Adame, 2003 Tex. App. LEXIS 7115, at *17. A judgment is final if

it disposes of all pending parties and claims in the record. First Nat'l Bank v. De

Villagomez, 54 S.W.3d 345, 348 (Tex. App.–Corpus Christi 2001, pet. denied). This Court

was without power to review the orders granting summary judgment. Adame, 2003 Tex.

App. LEXIS 7115, at *17. We concluded: “The appeal must be, and hereby is, dismissed

for want of jurisdiction.” Id. Thus, because no final judgment had yet been entered, the

trial court had the power to amend the temporary orders it had previously issued until it

entered a final judgment. TEX . R. APP. P. 29.5; Fruehauf Corp., 848 S.W.2d at 84; The trial

court retained full, entire, and complete powers. See Orion Enter., Inc., 927 S.W.2d at

658.

Appellants also argue that even if their objection to Judge Pate was procedurally

defective, it should have been referred to another judge to make that determination. They

contend that when a trial judge is “challenged,” it has only two options: (1) grant the

challenge; or (2) refer the challenge for a hearing before another judge. Appellants rely

in part upon civil procedure rule 18a(d). See TEX . R. CIV. P. 18.a(d). This rule pertains to

recusal or disqualification of a judge. Id. Appellants’ three motions did not seek to either

recuse or disqualify Judge Pate. Nor does the record disclose grounds for recusal or

disqualification of the visiting judge. Rather, the objections were directed at the

4 assignment of Judge Pate as a visiting judge and the argument above that he had lost

jurisdiction.

Appellants also cite Ex parte Eastland, 811 S.W.2d 571, 572 (Tex. 1991). There,

under the terms of the letter of assignment, the visiting judge’s jurisdiction over the

disbarment proceeding was to continue only as long as necessary to complete the trial of

the case and to pass on any motions for new trial. Id. Since no motion for new trial was

filed in the case, his authority expired thirty days after judgment. Id. We agree with the

reasoning of that case, but find it inapplicable herein. Under the “law of the case,” we have

already held that there was no final judgment signed before the last set of summary

judgment motions now before us. Adame, 2003 Tex. App. LEXIS 7115, at *17; see

Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986) (by narrowing the issues in

successive stages of the litigation, the law of the case doctrine is intended to achieve

uniformity of decision as well as judicial economy and efficiency).

Appellants also cite In re Canales, 52 S.W.3d 698, 701 (Tex. 2001). If an objection

is timely, the assigned judge's disqualification is automatic. Id. When an assigned judge

overrules a timely objection to his assignment, all of the judge's subsequent orders are void

and the objecting party is entitled to mandamus relief. Id. We note, however, as argued

by appellees, an objection to a judge assigned under chapter 74 is timely if it is filed before

the very first hearing or trial in the case, including pretrial hearings, over which the assigned

judge is to preside – without regard to the terms of the particular order under which the

judge is assigned. Id. at 704. Once an assigned judge has heard any matter in a case, the

parties have waived the right to object to that judge under section 74.053 of the government

5 code. Id. at 704. Judge Pate heard multiple matters dating from the time of his assignment

in 1999 before objections to his assignment were belatedly filed in 2004. Accordingly, we

agree that appellants waived their right to object to Judge Pate.

A trial court has plenary power over its judgment until it becomes final. Mathes v.

Kelton, 569 S.W.2d 876, 878 (Tex. 1978); Transamerican Leasing Co. v. Three Bears, Inc.,

567 S.W.2d 799, 800 (Tex. 1978). The trial court also retains continuing control over

interlocutory orders and has the power to set those orders aside any time before a final

judgment is entered. Texas Crushed Stone Co. v. Weeks, 390 S.W.2d 846, 849 (Tex. Civ.

App.–Austin 1965, writ ref'd n.r.e.). We therefore overrule appellants’ issues one and three.

II. Summary Judgment Complaints

A. Standard of Review

A party may move for summary judgment under rule 166a(i) on the ground that there

is no evidence of one or more essential elements of a claim or defense on which an

adverse party would have the burden of proof at trial. TEX . R. CIV. P. 166a(i); W.

Investments, Inc. v. Urena, 162 S.W.3d 547, 557 (Tex. 2005); Duvall v. Texas Dep't of

Human Servs., 82 S.W.3d 474, 477 (Tex. App.–Austin 2002, no pet.). Unless the

nonmovant produces summary judgment evidence raising a genuine issue of material fact

on the challenged elements, the court must grant the motion. TEX . R. CIV. P. 166a(i) & cmt.;

Urena, 162 S.W.3d at 548; Duvall, 82 S.W.3d at 477-78.

In reviewing a no-evidence claim, we view the evidence in a light that tends to support

the finding of the disputed fact and disregard all evidence and inferences to the contrary.

Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex. 2002); Duvall, 82 S.W.3d

6 at 478. If more than a scintilla of evidence exists, it is legally sufficient. Goodman, 80

S.W.3d at 577. Evidence is more than a scintilla when it rises to the level that would enable

reasonable and fair-minded people to differ in their conclusions. Duvall, 82 S.W.3d at 478.

But when evidence offered to prove a vital fact is so weak as to do no more than create a

mere surmise or suspicion of its existence, it is no more than a scintilla and, in legal effect,

is no evidence. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004); Duvall, 82

S.W.3d at 478.

Because the trial court's order does not specify the grounds for granting summary

judgment, we must affirm the summary judgment if any of the theories presented to the trial

court and preserved for appellate review are meritorious. Provident Life & Accident Ins. Co.

v. Knott, 128 S.W.3d 211, 217 (Tex. 2004). A no-evidence summary judgment is improperly

granted if the non-movant presents more than a scintilla of probative evidence to raise a

genuine issue of material fact. Lampasas v. Spring Center, Inc., 988 S.W.2d 428, 432 (Tex.

App.–Houston [14th Dist.] 1999, no pet.). Evidence favorable to the non-movant will be

taken as true in deciding whether there is a disputed material fact issue that precludes

summary judgment. Nixon v. Mr. Property Mgmt. Co., 690 S.W.2d 546, 548-49 (Tex. 1985).

Every reasonable inference must be indulged in favor of the non-movant and any doubt

resolved in its favor. Id. at 549.

Summary judgment under rule 166a(c) is proper only when a movant establishes that

there is no genuine issue of material fact and that the movant is entitled to judgment as a

matter of law. TEX . R. CIV. P. 166a(c); Randall's Food Mkts., Inc. v. Johnson, 891 S.W.2d

640, 644 (Tex. 1995). We review a summary judgment de novo. Valence Operating Co. v.

7 Dorsett, 164 S.W.3d 656, 661 (Tex. 2005). A defendant is entitled to summary judgment if

the evidence disproves as a matter of law at least one element of each of the plaintiff's

causes of action or if the evidence conclusively establishes all elements of an affirmative

defense. See Randall's, 891 S.W.2d at 644. Where the trial court grants the judgment

without specifying the grounds, we affirm the summary judgment if any of the grounds

presented are meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868,

872-73 (Tex. 2000).

B. Application

We next determine if appellants offered some evidence on each of the elements of

their malpractice and other claims against appellees under rule 166a(i). TEX . R. CIV. P.

166a(i) . Appellants were required to show proof that: (1) appellees, as attorneys, owed a

duty to appellants; (2) appellees breached that duty; (3) the breach proximately caused

appellants’ injuries; and (4) damages resulted. See Alexander v. Turtur & Assocs., 146

S.W.3d 113, 117 (Tex. 2004) (citing Peeler v. Hughes & Luce, 909 S.W.2d 494, 496 (Tex.

1995)).

Appellees argue that appellants provided no evidence of causation of damages. We

agree. Here, the alleged claims involved complex issues concerning the finality of the

underlying class action case, appellate procedure, settlement, the effect of rule 42(c)(3),

class opt outs, and other related issues. Under these circumstances, expert testimony on

proximate cause is clearly required because the issue is not one that lay persons are

competent to determine. Id. at 120. Further, the causal nexus between the event sued upon

and a plaintiff's injuries is “strictly referable” to the damages portion of the plaintiff's cause

8 of action. See Morgan v. Compugraphic Corp., 675 S.W.2d 729, 732 (Tex. 1984). Even if

a defendant's liability has been established, proof of this causal nexus is necessary to

ascertain the amount of damages to which the plaintiff is entitled. Id. This is true because

the plaintiff is entitled to recover damages only for those injuries caused by the event made

the basis of suit. See id.

Appellants take the position that their damages are the difference between settlement

monies received by some dissident appellants, $5,500,2 compared to the $20,000 received

by about 22 other dissident plaintiffs, who held out two years longer on an appeal of the

mandatory class recertification order.3 Appellants did not point out to the trial court or to us

any evidence, much less expert testimony, that OxyChem, the defendant in the underlying

class action, would have separately settled individually, or as a group, for more than the

class action structured amount. Nor do appellants point to any evidence that a prospective

trial would have yielded appellants greater damages. To the contrary, the representative

plaintiffs who actually tried their cases received far less monies than received under the

class structure. A majority of the representative plaintiffs were awarded no damages in the

twelve cases actually tried.

2 The class settlem ent ranged from $500 to $5,500 each depending on whether or not, and when, the claim ant received m edical attention.

3 Appellants som ehow contend that they were ipso facto entitled to $14,500 additional dam ages, the am ount received by another part of the dissident group. They ignore the fact that over 8,000 plaintiffs received $5,500 or less in settlem ents. Of those plaintiffs who actually went to the jury, seven recovered no dam ages, and five were found to have sustained total dam ages of $3,400 between the five plaintiffs. Thus, the average recovery per plaintiff in the underlying trial was $283.33. Had 80% of the dissidents not dropped their appeal, then there would have been no class settlem ent. Then neither dissidents nor non-dissident class m em bers would have received any settlem ent from OxyChem . In that scenario, appellants’ dam age argum ent would require a conclusion that appellants were entitled to zero dam ages. This illustrates the speculative nature of appellants’ argum ent. Furtherm ore, this speculative argum ent is not supported by any expert or even lay testim ony. W e also note that appellants largely rely upon argum ent rather than actual sum m ary judgm ent proof.

9 In a response to a no-evidence ground for summary judgment, a nonmovant need not

marshal her proof; however, her summary judgment response needs to point out evidence

that raises a genuine issue of fact as to the challenged elements. San Saba Energy, L.P.

v. Crawford, 171 S.W.3d 323, 330 (Tex. App.–Houston [14th Dist.] 2005, no pet.). The law

is clear. If a nonmovant's response fails to set forth valid reasons why summary judgment

should not be granted and if the motion and summary judgment evidence show that there

is no genuine issue of material fact and that the movant is entitled to judgment as a matter

of law on the grounds asserted in the motion, then the trial court should grant summary

judgment. Id. at 329. Appellant provided no competent proof on the essential elements of

causation and damages. TEX . R. CIV. P. 166a(i) . We therefore overrule those portions of

appellants’ issues here discussed.

C. Breach of Fiduciary Duty

Appellants argue that they need not prove actual damages in order to recover against

their attorneys for a breach of fiduciary duty. We agree. See Burrow v. Arce, 997 S.W.2d

229, 240 (Tex. 1999) (concluding that a client need not prove actual damages in order to

obtain forfeiture of an attorney's fee for the attorney's breach of fiduciary duty to the client).

As a rule, a person who renders service to another in a relationship of trust may be denied

compensation for his service if he breaches that trust. Id. at 237. We then address whether

or not appellants brought forth some evidence that appellees did in fact breach a fiduciary

duty.

Appellants argue that appellees’ employees undertook to advise dissident class

members individually, and as a group, that they should drop their appeals of the order

10 recertifying the group as a mandatory class. Appellants claim that “[a]ppellees intended

Appellants to believe that they would recover nothing from their pursuit of such appeal....”

Appellants admit that no lawyers from appellees’ firms were present when the dissidents

were contacted. Appellants also contend that in some manner, appellees, as attorneys,

“neither properly instructed nor supervised in what was said....”

Appellants further argue that appellees were “desperate” to get rid of the dissidents’

appeals. They wanted all, or most all appellants to dismiss their appeals. To accomplish

the dismissal of the dissidents’ appeals, some of the law firms’ investigators, videographers

and legal secretaries were sent out to talk with appellants, with the permission of their own

private attorney, Hector P. Gonzalez, who represented them on the appeal. When the

employees went out, at least two of appellees’ associate attorneys were available by phone

to answer any inquiries by the dissidents.

Appellants point to the deposition testimony of one of appellees’ attorneys, Steve

Hastings. He testified that the lay persons only had authority to present the settlement

distribution proposal to Gonzalez’s clients. According to Hastings, “[w]e did not ask to

discuss the relative merits of the appeal with these people.” “We just said, ‘Here’s the

settlement proposal. You can be treated like everybody else in this case. If you want the

money, you’ll need to dismiss your appeal.’” Hastings testified that the instructions to their

firm personnel was to tell dissidents they had permission from Gonzalez to talk with them,

present the settlement proposal, tell the plaintiffs the settlement category they fit in, and how

much their portion of the settlement would be. The firm personnel did not advise them to

drop their appeals as such. “If you would like to accept the settlement, the first step is we

have to get 90 percent of the people to drop their appeals. Do you want to drop your

11 appeal?” If 80 or 90 percent did not drop their appeal, the settlement would fail and no one,

including the dissidents, would receive any money from the class settlement.4

Hastings did not know if the firm’s people advised the dissidents that they might get

more money if they continued appealing, might get less, or might get no money. Hastings

denied any conflict of interest as class counsel because Gonzalez represented the

dissidents, and the firm secured his permission to talk with his clients. Hastings did not know

if any of the dissidents were informed that if their appeal was lost, they still could have taken

the class settlement. Alberto Huerta also testified the dissidents were told that if they

needed information about their appeal, they needed to talk with Gonzalez, their attorney.

Arthur Meru, a legal assistant for Allison & Huerta, testified by deposition that he and

others were dispatched to secure releases of all the people involved in the class action case

against OxyChem. There were two forms: a release and a dismissal of appeal. All of the

firm personnel sent out to obtain the releases were instructed to say the same thing. If the

plaintiffs had any questions, they could call the attorneys on duty. The firm personnel could

not answer a lot of questions because “I guess we were ignorant to what was going on with

all the forms and stuff.” Their job was to get the people to sign or no one was going to get

any money.

Appellants insist appellees breached their duties to appellants by not adequately, fully

and candidly disclosing all information pertinent to the circumstances involving the settlement

and the potential value of their appeals, and instead convinced appellants by false and

misleading statements to dismiss their appeals and settle their claims in the class settlement.

4 This statem ent was factually and legally accurate as we understand the status of the class action settlem ent.

12 Appellants do not point to any proof of false or misleading statements.

Appellants judicially admit that they do not contend that appellees, as class counsel,

were obligated to assist dissident class members to reach or maintain their dissident goals.

Appellants conclude that the law is clear that fiduciary duties apply to class counsel as to

members of the class. This is particularly true as to representation of class members in

respect to settlement of their claims. See Gen. Motors Corp. v. Bloyed, 916 S.W.2d 949,

954-955 (Tex. 1996). We do not disagree. Once the parties enter into an attorney-client

relationship, the attorney owes fiduciary duties to his client. See Willis v. Maverick, 760

S.W.2d 642, 645 (Tex.1988).

It is an agent's disloyalty, not any resulting harm, that violates the fiduciary

relationship and thus impairs the basis for compensation. Burrows, 997 S.W.2d at 238. An

agent's compensation is not only for specific results, but also for loyalty. Id. The main

purpose of forfeiture is not to compensate an injured principal, even though it may have that

effect. Id. Rather, the central purpose of the equitable remedy of forfeiture is to protect

relationships of trust by discouraging an agent’s disloyalty. Id. In addition to his position of

trust and confidence with respect to his client, an attorney also has a legally imposed duty

to disclose facts material to his representation. McClung v. Johnson, 620 S.W.2d 644, 647

(Tex. App.–Corpus Christi 1981, writ ref’d, n.r.e.) (citing Rice v. Forestier, 415 S.W.2d 711

(Tex. Civ. App. – San Antonio 1967, writ ref'd, n.r.e.).

Generally, conflicts of interest in class actions arise amidst concerns that class

counsel has been tempted to further its own interest in securing exorbitant fees as against

the interests of the class members. See Bloyed, 916 S.W.2d at 953. Clearly, class counsel

13 owes a fiduciary duty to protect the interests of absent class members. Id. However, no

conflict of interest arises simply because different subclasses are designated as part of a

settlement fund. Farmers Ins. Exchange v. Leonard, 125 S.W.3d 55, 65-66 (Tex. App.–

Austin 2003, no pet.).

We reject appellants’ arguments concerning a breach of fiduciary duty, for several

reasons. First, the record shows that both appellees and their employees only had

permission to discuss the merits of the class settlement. Appellees and their employees

could not and did not discuss the merits of the dissidents’ appeal. The class members,

including the dissidents, had all been informed of the proposed class settlement. Attorney

Gonzalez, as representative of the dissidents, spoke with his dissident clients and fully

informed them of their rights to various settlement amounts within the class, as well as what

they could expect on appeal. Gonzalez gave appellees permission to talk to his clients

specifically about the class settlement itself, not about the particulars of the appeals options.

The record reflects that appellees’ employees were instructed not to respond if they were

asked a legal question. Attorneys were available to answer legal questions of the class and

the dissidents. The employees were given the documents “to be signed so that they would

be opting in or dropping their appeal.” The employees were given a limited script. “We don’t

want you to go outside of this because we want it to be uniform. Because they knew that if

one person was told something different than the other, we’d get inundated with phone

calls.”

The record reflects no proof from any dissident or other source that he or she was

given false or injurious information. Rather, we are left to speculate that some of appellees’

employees may have misled or that they somehow failed to faithfully perform the very limited

14 task assigned to them by the law firms. Given the limited scope of their assignment and the

equally limited scope of their permission to speak with the dissident plaintiffs, we find no

evidence the firms’ employees either exceeded their limited permission to speak or mislead

the Gonzalez plaintiffs to whom they spoke. See Ford Motor Co., 135 S.W.3d at 600. In

short, appellees’ employees did not possess the authority to discuss the relative merits of

the dissidents’ appeals. Nor is there any evidence appellees or their employees actually did

so.

Secondly, appellants seek to narrowly focus only on the 1995 specific mission of

certain employees of the law firms to obtain releases and dismissal of some of the appeals

and some alleged isolated communications of several employees. Appellants ignore multiple

informational meetings as well as court hearings that were needed to conclude and approve

the class settlement.5 The record demonstrates that attorneys were on call to answer any

questions by any members of the class. Furthermore, there were extensive discussions of

the settlement and its effect given by the class attorneys. Appellees set up special offices

in Robstown to accommodate class members. Additionally, dissidents’ counsel, Mr.

Gonzalez, was present for at least one of the meetings at the High Chaparral to discuss not

only the class settlement, but also the dissidents’ appeal rights vis a vis the class settlement.

Gonzalez spoke to his clients in Spanish. Some 128 of the dissidents then remaining in the

appeal chose to accept the class settlement on that date and to dismiss their appeals.

5 By analogy, appellants would argue that a patient could single out an isolated visit to her physician, one of m any visits where a m edical condition was discussed, and claim that the physician failed to fully apprise the patient of her condition at that visit, ignoring m ultiple other discussions covering the sam e subject m atter. Perhaps even a better analogy to this case would be a patient who sees and discusses her sym ptom s with her doctor. Later, she has a conversation with a nurse, only to com plain the nurse did not fully apprise the patient of her treatm ent options.

15 Members of the class, including dissidents, were shown videos, given brochures, and

attended meetings with opportunities for questions and answers. Appellants ignore the

totality of information given to the class and the dissidents.

Class counsel also provided a letter to class members which appellants mention, but

either failed to include in the record or assign attention thereto by proper citation to the

voluminous record. See TEX . R. APP. P. 38.1(f).6

Some 232 dissidents signed affidavits stating in much detail the information given to

them concerning both the settlement and their dissident appeal. The 232 affidavits stated

that the plaintiffs were informed there was a strong probability they would win their appeal

but there was no guarantee they could get more money from the class or that they would get

any money. Attorney Gonzalez advised them that he should be present during other

settlement proceedings to protect their rights in the event the appeal was not successful.

Gonzalez believed the distribution of funds by categories under the class settlement was fair.

The affiants gave Gonzalez permission to support the disbursement of funds by category

while at the same time prosecuting the appeal “so that my case does not have to fall within

the mandatory class.”

The trial court itself held fairness hearings under rule 42. See TEX . R. CIV. P. 42. It

is true, as appellees agree, that the fiduciary relationship requires a full and fair disclosure

of the terms of a proposed settlement. Bloyed, 916 S.W.2d at 951-952. Nevertheless,

appellants do not point to any evidence to prove that a single dissident claims he or she did

not receive adequate information and fair disclosure. To the contrary, the record reveals

6 Many of appellants’ citations to the clerk’s record are erroneous. Appellants also cited both the trial court and this Court to m ultiple and entire depositions. See T EX . R. A PP . P. 38.1(f).

16 considerable information was disseminated to the class. Rather than presenting summary

judgment proof that appellees where somehow disloyal to or misled one or more dissidents,

appellants choose to rely upon conjecture and weak circumstantial evidence. It is conjecture

that “Appellees intended Appellants to believe that they would recover nothing from their

pursuit of such appeal....”

Weak circumstantial evidence could possibly give rise to an inference that appellees,

though their employees, undertook “to advise” dissident class members that they should

drop their appeals of the order certifying the group as a mandatory class. However, when

circumstances are consistent with either of two facts, and nothing shows that one is more

probable than the other, neither fact can be inferred. Litton Industrial Products, Inc. v.

Gammage, 668 S.W.2d 319, 324 (Tex. 1984). Here, direct evidence reveals appellees

employees were instructed not to advise any of the class members on the merits of the

appeals. Appellees did not have permission to discuss the merits of their appeals. Finally,

appellants offered no evidence that appellees as attorneys “neither properly instructed nor

supervised in what was said...”

We disagree with appellants’ attempts to focus on a singular contact by one of the

law firms’ employees as a basis to contend that appellees breached any fiduciary duties to

appellants, particularly when they point to no evidence that any dissident actually gave up

their appeal as a result of anything improper either appellees, or their employees, said or did

not say.

Third, class counsel’s primary obligation and duty was to the class itself. As

appellants admit, it was not appellees’ responsibility to represent the dissidents apart from

their class representation. In fact, to represent the dissidents in connection with their appeal

17 would have created a conflict of interest between class counsel and the class itself. Class

counsel owes no duty to promote a position inconsistent with the definition of the class or

contrary to the law. Bilodeau v. Webb, 170 S.W.3d 904, 915-916 (Tex. App.–Corpus Christi

2005, pet. denied). “Logically, there is no breach of the fiduciary duty by class counsel

where no duty is owed to act in the manner as contended and, indeed, where to so act would

result in a breach of fiduciary duty.” Id. A conflict of interest among clients may give rise to

an attorney's duty to withdraw from a representation. SMWNPF Holdings, Inc. v. Devore,

165 F.3d 360, 365 (5th Cir. 1999). Absent consent, an attorney must discontinue

employment if he is required to represent one or more clients who may have differing

interests. Id. (citing Baptist Memorial Hosp. Sys. v. Bashara, 685 S.W.2d 352, 356 (Tex. Ct.

App.– San Antonio,1984); Lott v. Ayres, 611 S.W.2d 473, 476 (Tex. Ct. App.– Dallas,1981)).

Thus, had appellees actually undertaken to advise the dissidents concerning their appeal,

appellees would have created a conflict of interest with the class as a whole.

The record shows that both class counsel and Mr. Gonzalez, though adversarial, took

extraordinary steps to avoid a conflict of interest that would have disqualified class counsel

after years of representation, including the underlying trial that gave rise to a favorable

settlement.

The law is settled that an attorney is a special agent and all the doctrines of special

agency must apply. Greneaux v. Wheeler, 6 Tex. 515 (Tex. 1851); see also SMWNPF

Holdings, Inc. v. Devore, 165 F.3d 360, 364-65 (5th Cir. 1999) (citing Duval County Ranch

Co. v. Alamo Lumber Co., 663 S.W.2d 627, 633 (Tex. Ct .App.– Amarillo,1983) (recognizing

that an attorney is a "special" agent, whose power and authority is confined to "those powers

necessary to the proper fulfillment of the duties cast upon him by such employment")). In

18 the context of this case, appellees’ non-lawyer employees were in turn sub-agents of the law

firms. As a special agent, an attorney’s powers and authority are confined to those

necessary to the proper fulfillment of the duties cast upon him by his employment. See

Heine v. Schendel, 797 S.W.2d 278, 280 (Tex. App.–Corpus Christi 1990, writ denied) (citing

Hotel Longview v. Pittman, 276 S.W.2d 915, 919 (Tex. Civ. App.–Texarkana 1955, writ ref'd

n.r.e.)).

Fourth, a rule 42 hearing was conducted by the trial judge. He concluded that class

counsel adequately and properly represented the class. The allegations now brought by

some few dissidents are a collateral attack on the findings of the court. A collateral attack

is an attempt to avoid the effect of a judgment in a proceeding brought for some other

purpose. Ranger Ins. Co. v. Rogers, 530 S.W.2d 162, 167 (Tex. Civ. App.–Austin 1975, writ

ref'd n.r.e.). The grounds upon which a collateral attack may be successful are that the court

rendering judgment has: (1) no jurisdiction of the person of a party, or his property, (2) no

jurisdiction of the subject matter of the suit, (3) no jurisdiction to enter the particular judgment

entered, or (4) no capacity to act as a court. Id. The Texas Supreme Court has reiterated

this holding that a final judgment from a court of general jurisdiction is not subject to

collateral attack in other courts of equal jurisdiction unless the first judgment is void.

Browning v. Placke, 698 S.W.2d 362, 363, (Tex. 1985) (orig. proceeding) (citing Austin

Indep. School Dist. v. Sierra Club, 495 S.W.2d 878, 881, (Tex. 1973)); see also Fiallos v.

Pagan-Lewis Motors, Inc., 147 S.W.3d 578, 586 (Tex. App.–Corpus Christi 2004, pet.

denied; Baze v. Marine Office of Am. Corp., 828 S.W.2d 152, 156 (Tex. App.–Corpus Christi

1992, no writ).

We recognize the potential for abuse of the class action procedure, which in turn,

19 underscores the importance of the trial court's obligation to determine that the protective

requirements of Texas Rule of Civil Procedure 42 are met when the trial court approves a

class action settlement. Bloyed, 916 S.W.2d at 954-55. Typically, the trial court plays a

relatively detached role in most civil proceedings, but in a class action, the court is the

guardian of the class interest. Id. (citing Weinberger v. Kendrick, 698 F.2d 61, 69 n.10 (2d

Cir. 1982); In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 216, 223 (2d Cir.); In re

Corrugated Container Antitrust Litig., 643 F.2d 195, 225 (5th Cir. 1981); Piambino v. Bailey,

610 F.2d 1306, 1327 (5th Cir. 1980); 2 NEW BERG & CONTE, § 11.41, at 11-93 to 11-94.)) The

trial court bears the burden under rule 42 to police the proceeding to minimize conflicts of

interest and, primarily, to protect absent class members. Id. (citing In re Gen. Motors Corp.,

55 F.3d at 785 n.1).

On August 18, 1995, the trial court conducted a rule 42 hearing. The dissident class

members were themselves separately represented by Mr. Gonzalez. At the hearing,

dissident counsel requested that his objection to the hearing be overruled. He then departed

the courtroom, having presented no witnesses or other evidence. The dissidents’ objections

were overruled as requested. The trial court ruled that all requirements of rule 42 had been

met. The court found the settlement was fundamentally fair, adequate and reasonable, and

protected the rights of the mandatory class. The class settlement was approved and all

settled claims were dismissed with prejudice. The order approved the payment of attorneys’

fee to appellees. The court reserved jurisdiction over implementing the settlement. The

Order of Dismissal with prejudice was signed and entered September 12,1995. The

dismissal also acknowledged that a judgment non obstante verdicto in favor of OxyChem

would be entered in the underlying lawsuit tried against them.

20 It should be noted that the complained-of conduct by appellees’ employees occurred

before this time frame, earlier in the summer. No appeal was taken from this order. The

only appeal was taken by appellants was to the conversation from an opt out class to a

mandatory class. That order was signed and entered June 30, 1995.7

Finally, on May 5, 1997, the trial court entered an order entitled: “Final Order

Concerning Class Members Who Have Been Paid.” According to appellees, this included

the “Gonzalez Plaintiffs,” whom we have refereed to as “dissidents,” a few of whom are

appellants here. This final order states: “The obligations of the Class Representatives and

Class Counsel to those Class Members identified in Exhibit “I”, by reason of the creation and

certification of this class action, have been satisfied and discharged.” This judgment was

likewise not appealed. Based upon both the 1995 Order of Dismissal and the 1997 final

judgment, we must assume that the trial court exercised its role as guardian of the class not

only in approving class settlements, but also in deciding whether to certify a class in the first

place. See Bloyed, 916 S.W.2d at 954-55. This means that the trial court exercised its

authority to assure that rule 42's certification requirements that class claims are common and

typical of the entire class, and that the class representatives and their counsel were

adequate representatives. See id.; see also Browning, 698 S.W.2d at 363.

Appellees also argue that collateral estoppel and res judicata bar appellants’ current

attempts to hold appellees responsible for alleged breeches of duty to the class. These are

affirmative defenses upon which appellees have the burden of proof. Therefore, a “no

evidence” motion for summary judgment is inappropriate. See TEX . R. CIV. P. 166a(i) .

7 This appeal was dism issed. See De Los Santos v. Occidental Chem. Corp., 953 S.W .2d 807, 808 (Tex. App.–Corpus Christi, 1997, no pet.).

21 Further, these matters were not raised with the trial court and therefore cannot be grounds

for affirmance here.

In sum, the record shows judgments and final orders affirmatively finding that

appellees satisfied and discharged their duties of representation as class counsel. In

addition, hundreds of affidavits from the dissidents delineate extensive briefing of their rights

by counsel. Appellants do not point to a single affidavit or other proof that any dissident-

appellant was in fact impacted or was the victim of a breach of fiduciary duty. Neither the

findings of the trial court nor the affidavits by many of the dissidents themselves were

attacked so as to raise a fact issue. We conclude that the record is devoid of any evidence

that appellees breached such duties. See Ford Motor Co., 135 S.W.3d at 600.

Fee forfeiture or disgorgement is appropriate only where there is a breach of duty, a

clear and serious violation of a duty to a client, that destroys or severely impairs the

client-lawyer relationship. Bilodeau v. Webb, 170 S.W.3d 904, 915-16 (Tex. App.–Corpus

Christi, 2005, pet denied) (citing Burrow 997 S.W.2d at 238). The record before us does

not provide any evidence to support such a conclusion. Appellants’ issue two is overruled.

III. Denial of Motion for New Trial

In their last issue, appellants complain of the denial of their motion for new trial. The

motion itself almost exclusively addressed the appointment of Judge Pate. Appellants do

not set out any other matters not already addressed above. A trial court's denial of a motion

for new trial is reviewed for abuse of discretion. See Pharo v. Chambers County, 922

S.W.2d 945, 947 (Tex. 1996). Because we have already addressed each of appellants’

complaints that they reiterate in this issue and found no error, appellants’ issue four is

overruled.

22 The judgment of the trial court is affirmed.

DON WITTIG, Justice

Memorandum opinion delivered and filed this the 22nd day of May, 2008.