Michael Easton and Dawn Johnson Whatley, Individually and as of the Estate of Perry Lee Whatley v. Shawn Phelan Thompson Coe Cousins & Irons, LLP David Cabrales Rachel Hope Stinson Locke Lord Bissell & Liddell, LLP.

• Court: Court of Appeals of Texas
• Decided: May 10, 2012
• Docket: 01-10-01067-CV
• Status: Published

Opinion

Opinion issued May 10, 2012

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-01067-CV

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Michael Easton and Dawn Whatley, Individually and as Executrix of the Estate of Perry Lee Whatley, Appellants

V.

Shawn Phelan, Thompsoe Coe Cousins & Irons, LLP, David Cabrales, Rachel Stinson, AND Locke Lord Bissell & Liddell, LLP (f/k/a Locke Lidell & Sapp, LLP), Appellees

On Appeal from the 190th District Court

Harris County, Texas

Trial Court Case No. 2009-52626

MEMORANDUM OPINION

          Appellants Michael Easton and Dawn Whatley, individually and as executrix of the estate of Perry Lee Whatley, present this appeal from two orders dismissing their fraud claims against individually named attorneys and their respective law firms.  The attorney-defendants—David Cabrales, Rachel Stinson, and Locke Lord Bissell & Liddell, LLP (the “Locke Lord attorneys”), and Shawn Phelan and Thompson Coe Cousins & Irons, LLP (the “Thompson Coe attorneys”)—had filed special exceptions arguing that, as attorneys, they enjoyed qualified immunity from claims arising out of their representation of clients in a lawsuit.

Before briefs on the merits of the appeal were submitted to this court, the Locke Lord attorneys and Thompson Coe attorneys filed respective motions to dismiss the appeal for want of jurisdiction on multiple grounds, including that the notice of appeal was untimely filed.  While those motions were pending, Easton and Whatley filed a motion to dismiss for want of jurisdiction on a different ground: that the trial court’s dismissal orders were not a final judgment.  We conclude that the two dismissal orders constitute a final judgment.  Although Easton and Whatley untimely filed their notice of appeal, they did so within the 15-day grace period.  See Tex. R. App. P. 26.3.  Therefore, their notice must be treated as an implied motion for extension of time, and we grant the implied motion.

Regarding the merits of the appeal, we conclude that the trial court properly dismissed all claims because the attorney-defendants enjoyed qualified immunity.  We therefore affirm the judgment.

Background

          This case relates to multiple suits, appeals, and mandamus petitions arising out of a guardianship proceeding for Perry Lee Whatley and an annuity issued to him by Sun Life Assurance Company of Canada (U.S.).  See Whatley v. Walker, 302 S.W.3d 314, 318 n.1 (Tex. App.—Houston [14th Dist.] June 18, 2009, pet. denied) (listing several related actions).  Mr. Whatley’s niece and nephew initiated the guardianship proceeding, alleging that he had become incapacitated and was no longer able to manage his own affairs.  Mr. Whatley’s wife, Dawn Whatley, contested the guardianship.  A Harris County probate court appointed a guardian for Mr. Whatley’s estate.  Following the appointment, Sun Life released money due under the annuity to the guardian.

          On a petition for writ of mandamus, the Fourteenth Court of Appeals held that the appointment of guardianship was void.  See In re Whatley, No. 14-05-01222-CV, 2006 WL 2948230, at *4 (Tex. App.—Houston [14th Dist.] Oct. 13, 2006, orig. proceeding) (mem. op.).  Sun Life, which was represented by the Locke Lord attorneys, sued the guardian, who was represented by the Thompson Coe attorneys, for return of the annuity proceeds.  In the course of that litigation, Sun Life obtained a temporary restraining order and temporary injunction against the guardian and the bank in which he had deposited the proceeds.  The temporary restraining order and temporary injunction prohibited the guardian and the bank from transferring or otherwise disposing of the proceeds.  Easton and Mrs. Whatley, individually and as personal representative of her husband, intervened in that suit and alleged, among multiple causes of action, that Sun Life, the guardian, and other parties to the suit had conspired to violate their civil rights.  During the course of the litigation, Mr. Whatley passed away.

          After three years of litigation among Mrs. Whatley, Easton, Sun Life, and the guardian, Mrs. Whatley filed the original petition in the suit from which this appeal arises.  As executrix of her late husband’s estate, Mrs. Whatley sued the guardian’s lawyers—the Thompson Coe attorneys—alleging that they assisted Sun Life in a “fraud” and “scheme” to enjoin their own client from spending the annuity proceeds.  The alleged goal of the “pretend lawsuit” was to allow Phelan to “steal” Mr. Whatley’s rightful proceeds.

In the first amended petition, Mrs. Whatley was joined in her individual capacity as the estate’s co-plaintiff, and the Locke Lord attorneys were joined as defendants.  The first amended petition alleged that the defendants “conspired amongst themselves and with others and devised a scheme to defraud Plaintiffs . . . by generating, filing and prosecuting a ‘pretend’ lawsuit,” and that the “actions of Phelan, Thompson Coe, Cabrales, Stinson, and Locke Lord constitute the torts of actionable fraud; are foreign to the duties of an attorney; and also constitute the felony offense of tampering with governmental records which resulted in untold losses to Plaintiffs in addition to severe mental anguish.”  The petition further alleged that the defendants’ actions violated the Texas Theft Liability Act.  Attached to the petition were email messages between Phelan, Stinson, Cabrales, and the guardian, purportedly showing that they coordinated in filing the suit and requesting the temporary injunction.

          The Locke Lord attorneys answered with a general denial.  Shortly afterward, they filed special exceptions asserting that the plaintiffs had failed to state a cause of action.  The Thompson Coe attorneys answered with a general denial, special exceptions similar to those filed by the Locke Lord attorneys, and affirmative defenses.  In that same answer, they counterclaimed under Chapters 9 and 10 of the Texas Civil Practice and Remedies Code for the filing of a frivolous claim, see Tex. Civ. Prac. & Rem. Code Ann. §§ 9.012 & 10.004 (West 2002), under the Rules of Civil Procedure for sanctions, see Tex. R. Civ. P. 13, and under the Texas Theft Liability Act for court costs and attorney’s fees, see Tex. Civ. Prac. & Rem. Code Ann. § 134.005(b) (West 2011).

          Easton filed a plea in intervention that substantially repeated in form and substance the first amended petition filed by Mrs. Whatley.  Later, Easton and Mrs. Whatley, individually and as executrix of the estate, filed a “Second Amended Petition” substantially reiterating the prior pleadings except insofar that it omitted any mention of the Texas Theft Liability Act.  The email messages purportedly sent among the individual attorneys and the guardian were attached to the petition.

The Thompson Coe attorneys and Locke Lord attorneys filed respective motions to dismiss and renewed special exceptions.  Both motions advanced the same basic argument for dismissal: the plaintiffs failed to allege a cause of action because under Texas law attorneys enjoy qualified immunity from liability to non-clients.

The trial court signed two orders on August 30, 2010.  One order (the “Thompson Coe order”) recited that the court had considered the Thompson Coe attorneys’ motion to dismiss and ordered that the “case is dismissed.”  The other order (the “Locke Lord order”) recited that the court had considered the Locke Lord attorneys’ motion to dismiss and ordered that “the Plaintiffs’ and Intervenor’s allegations and causes of action against [the Locke Lord attorneys] are hereby dismissed” and that “Plaintiffs and Intervenor shall take nothing by their claims asserted herein against these Defendants.”  The August 30 orders did not make express reference to the Thompson Coe attorneys’ counterclaims.

On the same day that the orders were signed, Easton and Whatley filed a notice of appeal in the trial court, which this court docketed as case number 01-10-00743-CV (the “prior appeal”).  However, according to a “Notice of Withdrawal of Appeal” that Easton and Whatley sent to the trial court clerk on August 31, they intended to withdraw the appeal “because of a pending counterclaim, a request for findings and conclusions, and a motion for new trial to be filed within 30 days.”  On September 9, Easton and Whatley filed with this court a motion to voluntarily dismiss the prior appeal pursuant to Rule 42.1(a)(1) of the Texas Rules of Appellate Procedure.  Referencing that rule, this court granted the appellants’ motion and dismissed the prior appeal.  See Whatley v. Phelan, No. 01-10-00743-CV, 2010 WL 3833987, at *1 (Tex. App.—Houston [1st Dist.] Sept. 30, 2010, no pet.) (mem. op., per curiam).

While the prior appeal was still pending, Easton and Whatley filed in the trial court a request for findings of fact and conclusion of law, a motion for new trial, and a motion for sanctions against an attorney who represented the Thompson Coe attorneys.

The trial court held a hearing on the motion for new trial on November 8 and signed an order denying the motion the same day.  Twenty-eight days later, Easton and Whatley filed a second notice of appeal, which is the basis for the present appeal, purportedly from both the trial court’s August 30 orders and the November 8 denial of the motion for new trial.

The Thompson Coe attorneys and the Locke Lord attorneys filed respective motions requesting that this court dismiss the appeal for want of jurisdiction.  Although Easton and Whatley initially opposed dismissal of the appeal, they subsequently filed a conditional motion to dismiss for want of jurisdiction asserting, as they did in the course of the prior appeal, that the trial court’s August 30 orders did not constitute a final judgment.

Analysis

I.               Motions to dismiss the appeal

          Although all of the parties to this case seek dismissal of the appeal, they differ in their reasoning.  Easton and Whatley argue that this court lacks jurisdiction because there are live claims in the trial court that were not disposed of by the trial court’s two orders signed on August 30.  The Thompson Coe attorneys and Locke Lord attorneys argue that the trial court’s August 30 orders constitute a final judgment, disposing of all claims and parties, and although Easton and Whatley filed a motion for new trial that extended the timetable for perfecting an appeal, they nevertheless filed beyond the deadline provided by Texas Rule of Appellate Procedure 26.1(a).

A.             Finality of judgment

          We first examine the disputed question of whether there is a final judgment in this case because it concerns whether this court has jurisdiction.  Excluding certain statutory exceptions, this court’s appellate jurisdiction is limited to review of final judgments that dispose of all parties and claims.  Braeswood Harbor Partners & Prop. Owners v. Harris Cnty. Appraisal Dist., 69 S.W.3d 251, 252 (Tex. App.—Houston [1st Dist.] 2002, no pet.).  Although it is presumed that a judgment after trial on the merits is final, there is no such presumption of finality following other types of orders dismissing claims.  See In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005); Lehmann v. Har-Con Corp., 39 S.W.3d 191, 199 (Tex. 2001).  “To determine whether an order is final, courts and parties must examine the express language of the order and whether the order actually disposes of all claims against all parties.”  Crites v. Collins, 284 S.W.3d 839, 840 (Tex. 2009) (per curiam).  “Because the law does not require that a final judgment be in any particular form, whether a judicial decree is a final judgment must be determined from its language and the record in the case.”  Lehmann, 39 S.W.3d at 195.  “The intent to finally dispose of the case must be unequivocally expressed in the words of the order itself.”  Id. at 200.

          Because the August 30 orders do not contain any express finality language, we must determine whether they nonetheless disposed of all claims and parties.  Harris Cnty. Toll Road Auth. v. S.W. Bell Tel., L.P., 263 S.W.3d 48, 54 (Tex. App.—Houston [1st Dist.] 2006), aff’d, 282 S.W.3d 59 (Tex. 2009).  When the trial court signed the August 30 orders, there were three live pleadings.  First, Easton and Whatley had on file an amended petition alleging fraud against both the Thompson Coe attorneys and the Locke Lord attorneys.  To the extent that their prior pleadings reflected additional or different claims, they were effectively dismissed upon the filing of the amended petition.  See Tex. R. Civ. P. 65; FKM P’ship, Ltd. v. Bd. of Regents of Univ. of Houston Sys., 255 S.W.3d 619, 633 (Tex. 2008).  Second, the Locke Lord attorneys had on file an answer reflecting only a general denial.  Third, the Thompson Coe attorneys had on file an answer reflecting special exceptions, a general denial, affirmative defenses, and counterclaims.

          The signed Locke Lord order provides as follows:

ORDER GRANTING
LOCKE LORD DEFENDANTS’ MOTION TO DISMISS

          The Court has considered the Special Exceptions to Plaintiffs’ and Intervenor’s Second Amended Petition and Motion to Dismiss filed by Defendants David Cabrales, Rachel Stinson, and Locke Lord Bissell & Liddell, LLP (f/k/a Locke Liddell & Sapp, LLP), any responses thereto, and all other material matters and is of the opinion that the Motion to Dismiss should be GRANTED.  It is, therefore,

          ORDERED that the Plaintiffs’ and Intervenor’s allegations and causes of actions against Defendants David Cabrales, Rachel Stinson and Locke Lord Bissell & Liddell, LLP (f/k/a Locke Liddell & Sapp, LLP) are hereby dismissed.  Plaintiffs and Intervenor shall take nothing by their claims asserted herein against these Defendants.

The language of the above order dismissed Easton’s and Whatley’s “allegations and causes of action” against the Locke Lord attorneys and ordered that they “shall take nothing by their claims.”  The Locke Lord attorneys, having filed a general denial, had no claims against any other party to the suit.  See Tex. R. Civ. P. 92.  Thus, as between Easton and Whatley and the Locke Lord attorneys, the Locke Lord order dismissed all claims against all parties.  See Lehmann, 39 S.W.3d at 205 (“Language that the plaintiff take nothing by his claims in the case . . . shows finality . . . .”).

The signed Thompson Coe order provides as follows:

ORDER

          On this day, the Court considered Defendants Shawn Phelan and Thompson, Coe, Cousins & Irons, LLP’s Motion to Dismiss.  Having considered the motion, responses, the allegations made in Plaintiffs’ Second Amended Petition, and arguments of counsel, the Court is of the opinion that the motion to dismiss should be GRANTED.  It is therefore,

          ORDERED that the above-entitled case is dismissed.

The unequivocal language of the order dismissed Whatley’s and Easton’s remaining claims against the Thompson Coe attorneys.  See id.  The Thompson Coe order dismissing the “above-entitled case” did not, however, dismiss Easton’s and Whatley’s claims against the Locke Lord attorneys; as previously noted, the separate Locke Lord order disposed of those claims.  See id.  Still, the order’s language dismissing the “above-entitled case” was effective to dismiss the Thompson Coe attorneys’ counterclaims.  See id. (“Language . . . that the case is dismissed, shows finality if there are no other claims by other parties . . . .”).  Regardless of whether the trial court dismissed the counterclaims in error, a question that we need not decide, we only look to the express language of the orders and the record for the purpose of determining whether orders are “final” and thereby triggered the timetables for filing an appeal.  See Ritzell v. Espeche, 87 S.W.3d 536, 538 (Tex. 2002) (per curiam); Lehmann, 39 S.W.3d at 200 (stating that if court renders summary judgment for defendant on all claims even though defendant’s motion only requested summary judgment on one claim, “the judgment is final—erroneous, but final”).  We hold that the August 30 orders dismissed all live claims by and against all parties, and thus they constitute a final judgment for the purpose of triggering the appellate timetables.

B.             Timeliness of notice of appeal

Because the August 30 orders constituted a final judgment and Easton and Whatley filed a timely motion for new trial, the parties had 90 days after the orders were signed to file a notice of appeal.  See Tex. R. App. P. 26.1(a); Farmer v. Ben E. Keith Co., 907 S.W.2d 495, 496 (Tex. 1995) (per curiam).  The 90th day following the date that the orders were signed was Sunday, November 28, 2010.  Because the 90th day was a Sunday, the actual deadline by which the parties should have filed a notice of appeal was the following day, Monday, November 29.  See Tex. R. App. P. 4.1(a).  Since Easton and Whatley filed notice of the present appeal on December 6, the filing was untimely.

          Before filing their own motion to dismiss this appeal, Easton and Whatley argued in response to the appellees’ motions to dismiss that, in the event that this court concludes that the notice of appeal was untimely, we should treat their notice of appeal as a motion to extend the time for filing an appeal.  They assert that a court of appeals must exert jurisdiction whenever a notice of appeal is filed within 15 days of the applicable deadline.  See Tex. R. App. P. 26.3.

Notices of appeal filed within the 15 days of the relevant deadline for filing such a notice are treated as implied motions for extension of time to file notice of appeal.  Verburgt v. Dorner, 959 S.W.2d 615, 617 (Tex. 1997).  However, contrary to Easton and Whatley’s assertion, we are not obliged to grant an implied motion for extension filed within the 15-day grace period.  See Tex. R. App. P. 26.3 (providing that “appellate court may extend the time to file the notice of appeal,” emphasis added).  Whether we grant a motion for extension hinges on whether the appellant provides a reasonable explanation for the untimeliness of the filing, that is, a “plausible good faith justification for filing their notice of appeal when they did.”  Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex. 2003) (per curiam); see also Tex. R. App. P. 10.5(b)(1)(C) & 26.3(b).  “Absent a finding that an appellant’s conduct was deliberate or intentional, the court of appeals should ordinarily accept the appellant’s explanations as reasonable.”  Hone, 104 S.W.3d at 887.  Thus, under the liberal standard applied in these cases, any reason short of deliberate or intentional noncompliance qualifies as reasonable.  See id. at 886–87.  A misunderstanding of the law and the appellate timetables may be considered a reasonable explanation.  Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 670 (Tex. 1989) (holding that appellant had provided reasonable explanation when he erroneously believed that appeal bond could only be filed after receiving trial court’s findings of fact and conclusions of law); but see Kidd v. Paxton, 1 S.W.3d 309, 310 (Tex. App.—Amarillo 1999, no pet.) (finding counsel’s excuse “implausible and, therefore, unreasonable” when purported misunderstanding of law would not explain why notice of appeal was filed 26 days beyond counsel’s hypothetically correct deadline).  For this court to grant an extension, the appellant is not required to concede that its notice of appeal was untimely filed.  Hone, 104 S.W.3d at 888.

On December 6, 2010, less than 30 days after the trial court denied their motion for new trial, Easton and Whatley filed a second notice of appeal from “the court’s Judgment signed August 30, 2010, and the denial of the Motion for New Trial rendered on November 8, 2010.”  After the Locke Lord attorneys and Thompson Coe attorneys filed motions for involuntary dismissal of the appeal for want of jurisdiction, see Tex. R. App. P. 42.3(a), Easton and Whatley maintained in a written response filed on February 14, 2011 that “[t]he denial of the motion for new trial, by itself, is a stand alone and appealable order which forms the basis of a point of error in the appeal.”  In their opening brief on the merits of this case, they allege that the trial court denied their motion for new trial and that a “timely notice of appeal was given . . . to the denial of the motion for new trial.”  Moreover, in their reply brief, they state, “If this Court should now find that the judgment is final . . . then the appellate timetable began when the district court denied the motion for new trial, and not before, as a timely-filed motion for new trial extends the time period.”

From Easton and Whatley’s filings in this court, it is apparent that they believe that the appellate timetables commence from a denial of a motion for new trial and that filing a notice of appeal within 30 days of such denial is timely.  Their apparent belief is mistaken, because even when the trial court denies a motion for new trial, the appellate timetables commence from the date that the final judgment is signed.  See Tex. R. App. P. 26.1(a).  Nevertheless, a mistake regarding the law is a reasonable explanation for the purpose of deciding whether to grant an implied motion for extension.  See Garcia, 774 S.W.2d at 670; Doe v. Brazoria Cnty. Child Protective Servs., 226 S.W.3d 563, 571 (Tex. App.—Houston [1st Dist.] 2007, no pet.).  Therefore, treating the notice of appeal as an implied motion for extension of time to file a notice of appeal, we grant the motion.  Tex. R. App. P. 26.3.

II.            Attorney qualified immunity

          We now address the merits of this appeal.  Easton and Whatley raise two issues, arguing that the trial court erred, first, in dismissing their claims upon special exceptions and, second, in denying their motion for new trial.  The gist of the argument in support of both issues is that they were entitled to an opportunity to amend their pleadings before their claims were dismissed.  Easton and Whatley also appear to argue that the qualified immunity rule only applies when the plaintiff sues the counsel of an opposing party in the underlying suit, and that in this case they were never adverse to the parties represented by the Thompson Coe attorneys and Locke Lord attorneys.

          The Thompson Coe attorneys and Locke Lord attorneys respond with substantially the same arguments.  With respect to the first issue, they argue that the trial court properly sustained their special exceptions and dismissed Easton’s and Whatley’s claims because the qualified immunity rule shields them from liability to non-clients and there was no possibility of amending the claims to overcome qualified immunity.  They furthermore maintain that they represented parties adverse to Easton and Whatley in the underlying litigation.  With respect to the second issue, they argue that the trial court properly denied the motion for new trial because Easton and Whatley did not and could not state a claim.

          “A special exception is a proper method to determine whether a plaintiff has pleaded a cause of action.”  Alpert v. Crain, Canton & James, P.C., 178 S.W.3d 398, 405 (Tex. App.—Houston [1st Dist.] 2005, pet. denied).  “Generally, when the trial court sustains special exceptions, it must give the pleader an opportunity to amend the pleading, unless the pleading defect is of a type that amendment cannot cure.”  Baylor Univ. v. Sonnichsen, 221 S.W.3d 632, 635 (Tex. 2007).  In such a case, the court may render a judgment dismissing the case.  See Friesenhahn v. Ryan, 960 S.W.2d 656, 658 (Tex. 1998); Alpert, 178 S.W.3d at 408.  “We review a trial court’s dismissal of a case upon special exceptions for failure to state a cause of action as an issue of law, using a de novo standard of review.”  Alpert, 178 S.W.3d at 405.  “We accept all of the plaintiff’s material factual allegations and all reasonable inferences from those allegations as true.”  Id.

          “Texas law has long authorized attorneys to ‘practice their profession, to advise their clients and interpose any defense or supposed defense, without making themselves liable for damages.’”  Renfroe v. Jones & Assocs., 947 S.W.2d 285, 287 (Tex. App.—Fort Worth 1997, writ denied) (quoting Kruegel v. Murphy, 128 S.W. 343, 345 (Tex. Civ. App.—Dallas 1910, writ ref’d)).  In fulfilling his professional duties, “an attorney has the right to interpose defenses and pursue legal rights that he deems necessary and proper, without being subject to liability or damages.”  Alpert, 178 S.W.3d at 405.  Otherwise, the attorney “would be forced constantly to balance his own potential exposure against his client’s best interest.”  Id.  “Thus, to promote zealous representation, courts have held that an attorney is ‘qualifiedly immune’ from civil liability, with respect to non-clients, for actions taken in connection with representing a client in litigation.”  Id.

          “This qualified immunity generally applies even if conduct is wrongful in the context of the underlying lawsuit.”  Id.  “The immunity focuses on the type of conduct, not on whether the conduct was meritorious in the context of the underlying lawsuit.”  Id. at 406 (citing Renfroe, 947 S.W.2d at 288); see also Chapman Children’s Trust v. Porter & Hedges, L.L.P., 32 S.W.3d 429, 442 (Tex. App.—Houston [14th Dist.] 2000, pet. denied).  “[A]n attorney’s conduct, even if frivolous or without merit, is not independently actionable if the conduct is part of the discharge of the lawyer’s duties in representing his or her client.”  Alpert, 178 S.W.3d at 406.  The filing of pleadings and motions—even if they are unmeritorious or frivolous—and the rendition of legal advice cannot form the factual basis of a fraud claim against an attorney when the acts are performed within the context of discharging duties to a client.  Id. at 408; Toles v. Toles, 113 S.W.3d 899, 910 (Tex. App.—Dallas 2003, no pet.).

          An attorney’s immunity from liability to non-clients is not absolute.  “If a lawyer participates in independently fraudulent activities, his actions are ‘foreign to the duties of an attorney.’”  Alpert, 178 S.W.3d at 406 (quoting Likover v. Sunflower Terrace II, Ltd., 696 S.W.2d 468, 472 (Tex. App.—Houston [1st Dist.] 1985, no writ).  Thus, an attorney may be held liable for conspiracy to defraud by knowingly assisting a client in evading a judgment through a fraudulent transfer, see Essex Crane Rental Corp. v. Carter, No. 01-09-00813-CV, 2012 WL 1071231, at *10 (Tex. App.—Houston [1st Dist.] Mar. 29, 2012, no pet. h.), or by knowingly assisting a client in extorting a payment to which the client had no legal right, see Likover, 696 S.W.2d at 473.  “In order to be held liable for conspiracy to defraud by so assisting his client . . . the attorney must have agreed to the injury to be accomplished, not merely the conduct ultimately resulting in injury.”  Essex Crane, 2012 WL 1071231, at *10 (citing Chu v. Hong, 249 S.W.3d 441, 446–47 (Tex. 2008)).  An attorney may also be liable for fraudulent concealment when he has a duty to inform the court and opposing parties about material facts affecting the liability of a non-client.  See Hennigan v. Harris Cnty., 593 S.W.2d 380, 384–85 (Tex. App.—Waco 1979, writ ref’d n.r.e.).  An attorney may in some circumstances be liable to non-clients for negligent misrepresentation.  See McCamish, Martin, Brown & Loeffler v. F.E. Appling Interests, 991 S.W.2d 787, 791 (Tex. 1999).  “A typical negligent misrepresentation case involves one party to a transaction receiving and relying on an evaluation, such as an opinion letter, prepared by another party’s attorney.”  Id. at 793.  Furthermore, the qualified immunity rule does not shield an attorney when the law specifically provides for punishment of an attorney.  See Bradt v. West, 892 S.W.2d 56, 72 (Tex. App.—Houston [1st Dist.] 1994, writ denied) (referring to Tex. R. Civ. P. 13 & 215 and Tex. Gov’t Code § 21.002 as laws allowing punishment of attorneys); White v. Bayless, 32 S.W.3d 271, 276 (Tex. App.—San Antonio 2000, pet. denied) (remarking that even if attorneys’ “actions went beyond the bounds of ethical behavior, the remedy is public, not private”).

          Easton and Whatley’s first issue turns on whether the petition alleged conduct by the attorney-defendants that was undertaken to discharge their duties of legal representation to their respective clients.  See Renfroe, 947 S.W.2d at 288.  “If the conduct is within this context, it is not actionable even if it is meritless.”  Id.  The live pleading alleged that “Defendants conspired amongst themselves and with others and devised a scheme to defraud Plaintiffs . . . by generating, filing and prosecuting a ‘pretend’ lawsuit in which the Defendants had as a goal to deprive Plaintiffs of the rightful proceeds belonging to them.”  The petition further alleged that “each named defendant lawyer within each lawyer’s respective law firm agreed to file the pretend lawsuit with no intention of prosecuting it to a final judgment, and as a subterfuge, to allow [the guardian] to steal the monies belonging to Plaintiffs.”  Attached to the petition were email messages purporting to show “that the Defendants agreed with [the guardian] and Thompson & Coe to acquire a void Temporary Restraining Order (‘TRO’); to acquire a void Temporary Injunction (‘TI’); and to deliberately remove the names of the Thompson & Coe lawyers from the nefarious e-mails in the event they were caught.”  These actions constituted, according to the petition, “the torts of actionable fraud” and were “foreign to the duties of an attorney.”

          The facts alleged by the petition, if taken as true, demonstrate that the defendants’ actions were undertaken within the context of discharging duties of representation to their respective clients.  The filing of lawsuits and other pleadings on behalf of clients is the kind of activity for which attorneys enjoy qualified immunity.  See Alpert, 178 S.W.3d at 408.  The petition does not allege any facts that would support a finding of liability based upon an independently fraudulent activity, a duty owed to the plaintiffs, negligent misrepresentation, or a particular law allowing for punishment of attorneys, which are claims that non-clients may assert against attorneys.  See McCamish, 991 S.W.2d at 791; Alpert, 178 S.W.3d at 408; Bradt, 892 S.W.2d at 72.  Accordingly, we hold that the petition failed to state a claim overcoming the qualified immunity rule.  See Alpert, 178 S.W.3d at 408; see also Bosch v. Armstrong, No. 01-08-00847, 2009 WL 1635318, at *4 (Tex. App.—Houston [1st Dist.] June 11, 2009, pet. denied) (mem. op.) (affirming summary judgment in favor of attorneys sued for fraud and other claims because qualified immunity rule precluded suit); Dixon Fin. Servs., Ltd. v. Greenberg, Peden, Siegmyer, Oshman, P.C., No. 01-06-00696-CV, 2008 WL 746548, at *11 (Tex. App.—Houston [1st Dist.] Mar. 20, 2008, pet. denied) (mem. op.) (same).

          Generally, a trial court must give the pleader an opportunity to replead defective claims before dismissing them upon special exceptions.  See Baylor Univ., 221 S.W.3d at 635; Friesenhahn, 960 S.W.2d at 658.  However, the opportunity to amend is available only when the defect is curable.  See Baylor Univ., 221 S.W.3d at 635.  In this case, the petition reveals that the alleged factual basis underlying the suit is that the Locke Lord attorneys and the Thompson Coe attorneys filed a “pretend lawsuit” and procured a void temporary restraining order and a void temporary injunction.  As previously noted, when attorneys file suits and pleadings in the course of representing clients, they enjoy qualified immunity from liability to non-clients.  Given that the alleged acts of the attorney-defendants in this case consisted of filing suits and pleadings on behalf of their clients, amendment of the pleadings would not “cure” the underlying facts triggering qualified immunity.  See Alpert, 178 S.W.3d at 408 (affirming dismissal of conspiracy-to-defraud claim upon attorney’s special exceptions when the attorney’s alleged acts included filing lawsuits and alleging baseless claims).  We accordingly hold that the trial court did not err in dismissing Easton’s and Whatley’s claims without allowing an opportunity to amend.  See id.; see also Baylor Univ., 221 S.W.3d 635–36 (affirming trial court’s dismissal upon special exceptions of breach-of-contract claim barred by statute of frauds).

          We do not decide, nor do we need to decide, whether the Thompson Coe attorneys and Locke Lord attorneys represented “opposing parties” with respect to Easton and Whatley.  Regardless of whether Easton and Whatley could be characterized as opposing parties, this “is a distinction without a difference” because “[t]he rationale for the rule insulating a lawyer from liability . . . is equally applicable to actions brought by third-parties who did not participate in the underlying litigation.”  Miller v. Stonehenge/Fasa-Texas, JDC, L.P., 993 F. Supp. 461, 464 n.2 (N.D. Tex. 1998).  “The threat of liability from any source could potentially deter a lawyer from exercising independent professional judgment on behalf of her client.”  Id. (emphasis in original); accord Dixon Fin. Servs., 2008 WL 746548, at *11.  Easton and Whatley’s arguments stressing the opposing-party distinction are therefore unmeritorious.

          We overrule Easton and Whatley’s first issue.

III.         Motion for new trial

Easton and Whatley also challenge on appeal the trial court’s denial of their motion for new trial.  A trial court may set aside a judgment and grant a new trial for good cause.  Tex. R. Civ. P. 320.  Denial of a motion for new trial is reviewed for abuse of discretion.  Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); Velasco v. Alaya, 312 S.W.3d 783, 791 (Tex. App.—Houston [1st Dist.] 2009, no pet.).  A trial court abuses its discretion if it acts without reference to any guiding rules or principles or fails to correctly analyze or apply the law.  Celestine v. Dep’t of Family & Protective Servs., 321 S.W.3d 222, 235 (Tex. 2010); Velasco, 312 S.W.3d at 791.

The trial court did not err in dismissing Easton’s and Whatley’s claims upon special exceptions without allowing them an opportunity to amend because no amendment would cure the defect.  Thus, the dismissals in this case comported with the law regarding special exceptions.  See Baylor Univ., 221 S.W.3d at 635; Alpert, 178 S.W.3d at 408.  Accordingly, Easton and Whatley did not show in their motion for new trial any good cause, and we hold that the trial court did not abuse its discretion in denying the motion.  See Waffle House, 313 S.W.3d at 813; Tex. R. Civ. P. 320.

We overrule Easton and Whatley’s second issue.

Conclusion

          We affirm the judgment of the trial court.

                                                                      Michael Massengale

                                                                      Justice

Panel consists of Justices Jennings, Massengale, and Huddle.