In re Trujillo

511 S.W.3d 726, 2015 Tex. App. LEXIS 11394, 2015 WL 6745139
CourtCourt of Appeals of Texas
DecidedNovember 4, 2015
DocketNo. 08-15-00199-CV
StatusPublished
Cited by1 cases

This text of 511 S.W.3d 726 (In re Trujillo) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Trujillo, 511 S.W.3d 726, 2015 Tex. App. LEXIS 11394, 2015 WL 6745139 (Tex. Ct. App. 2015).

Opinion

OPINION

YVONNE T. RODRIGUEZ, Justice

Rosa Maria Trujillo has filed a petition for writ of mandamus against the Honorable Linda Y. Chew, Judge of the 327th District Court of El Paso County, Texas, to challenge an order disqualifying Miller Weisbrod LLP from representing Relator in her suit against her ex-husband, Dr. Jorge Fabio Llamas-Soforo. We conditionally grant mandamus relief.

FACTUAL AND PROCEDURAL SUMMARY

Trujillo and Llamas-Soforo began living together in 2000, were married in 2005, and divorced in 2010. Trujillo, represented by Miller Weisbrod, filed suit against Llamas-Soforo in May of 2011 alleging [728]*728causes of action for sexual assault, assault by offensive physical contact, and intentional infliction of emotional distress.1 Pri- or to filing this suit on behalf of Trujillo, Miller Weisbrod represented plaintiff in multiple medical malpractice suits. Trujillo was still married to Llamas-Soforo when the malpractice suits were filed and she was employed by his medical practice. The trial court found in the order granting the motion to disqualify that Trujillo was present during meetings with Llamas-So-foro’s attorneys both before and during the trial of one of the medical malpractice cases.

At the time of the divorce in 2010, six of the medical malpractice cases were still pending. After Trujillo filed the suit against Llamas-Soforo in May of 2011, Llamas-Soforo moved to disqualify Miller Weisbrod in a malpractice case pending in Dallas County, styled Bustamante v. Llamas-Soforo. Miller Weisbrod voluntarily withdrew from the Bustamante case and the other then-pending malpractice cases. A jury rendered a verdict in favor of the plaintiffs in the Bustamante case, but the Dallas Court of Appeals reversed it. Ponte v. Bustamante, 2015 WL 3485422 (Tex.App.—Dallas May 28, 2015, pet. filed). The trial court made an express finding that Miller Weisbrod not only retained an interest in the medical malpractice cases, it also participates in the funding of those cases. There is evidence that Miller Weisbrod paid an expert witness fee in one case, Elizabeth Quiroz, Individually and as Next Friend of Joseph Cardona a/k/a Joseph Quiroz v. Jorge Llamas-Soforo, cause number 2008-2694.

In July 2013, Trujillo filed a mandamus petition in this Court asserting that Respondent abused her discretion by denying discovery requests for medical and counseling records. In re Rosa Maria Trujillo, No. 08-13-00185-CV, 2015 WL 799439 (Tex.App.—El Paso February 25, 2015, orig. proceeding). Trujillo filed a motion in the trial court asking for the documents the court had reviewed in camera to be transmitted to the appellate court, but the trial court did not rule on the motion or transmit the documents. Consequently, we denied mandamus relief because Trujillo had failed to provide the records in question. In re Rosa Maria Trujillo, No. 08-13-00185-CV, 2015 WL 799439 (Tex.App.—El Paso February 25, 2015, orig. proceeding). Trujillo filed a motion for rehearing in this Court and set her motion to transmit the documents for hearing in the trial court on April 2, 2015, but Llamas-Soforo filed a motion to disqualify Miller Weisbrod a few days before the hearing. The trial court heard both the motion to disqualify and the motion to transmit documents on April 2, 2015. The court granted' the motion to disqualify and denied the motion to transmit the documents as moot. We subsequently denied the motion for rehearing in cause number 08-13-00185-CV. Trujillo filed her petition for writ of mandamus challenging the disqualification of Miller Weisbrod.

WAIVER OF THE DISQUALIFICATION CLAIM

In her first issue, Trujillo asserts that Llamas-Soforo waived his disqualification claim by waiting sixteen months to file his motion to disqualify her counsel. Trujillo raised this argument in her response to the motion to disqualify and during the hearing.

[729]*729 Standard ofRevieiv and Applicable Law

To be entitled to mandamus relief, a i’elator must meet two requirements. First, the relator must show that the trial court clearly abused its discretion. In re Prudential Insurance Company of America, 148 S.W.3d 124, 135 (Tex.2004). Second, the relator must demonstrate that there is no adequate remedy by appeal. Id. at 135-36. An order granting or denying a motion to disqualify counsel is reviewable by mandamus because a party generally lacks an adequate appellate remedy if counsel is disqualified. See In re Nitla S.A. de C.V., 92 S.W.3d 419, 422 (Tex.2002). Disqualification is a severe remedy which can result in immediate and palpable harm, disrupt trial court proceedings, and deprive a party of the right to have counsel of choice. In re Columbia Valley Healthcare System, 320 S.W.3d 819, 825 (Tex.2010); In re Nitla, 92 S.W.3d at 422.

A party who fails to file its motion to disqualify opposing counsel in a timely manner generally waives the complaint. In re George, 28 S.W.3d 511, 513 (Tex.2000). When determining whether waiver exists, the reviewing court should consider the time period between when the conflict became apparent to the aggrieved party and when he moved to disqualify. Grant v. Thirteenth Court of Appeals, 888 S.W.2d 466, 468 (Tex.1994). Courts have found waiver where a party waited as little as four to eight months to file the motion to disqualify. See e.g., Buck v. Palmer, 381 S.W.3d 525, 528 (Tex.2012)(unexplained delay of seven months amounted to waiver); Vaughan v. Walther, 875 S.W.2d 690, 691 (Tex.1994)(delay of six and a half months constituted waiver); Enstar Petroleum Company v. Mandas, 773 S.W.2d 662, 664 (Tex.App.—San Antonio 1989, orig. proceeding)(finding waiver where party waited four months to file motion to disqualify).

The parties disagree regarding when the conflict became apparent. Trujillo argues that the conflict has been apparent since the day Miller Wesbrod filed suit on behalf of Trujillo in May 2011. Llamas-Soforo immediately moved to disqualify Miller Weisbrod in the malpractice cases in May 2011 and the firm voluntarily withdrew from representing the plaintiffs. The trial court did not make a specific finding of fact regarding when Llamas-Soforo knew or should have known that Miller Weis-brod retained an active interest in the medical malpractice cases. The court did, however, make findings which are relevant to the waiver issue.

First, the court found that Miller Weis-brod previously represented to the court in a hearing on a discovery matter that it was not sure whether the firm retained an interest in the malpractice cases, and Miller Weisbrod did not subsequently inform the court that it actually retained an interest in those cases.2

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Bluebook (online)
511 S.W.3d 726, 2015 Tex. App. LEXIS 11394, 2015 WL 6745139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-trujillo-texapp-2015.