Opinion

Opinion issued May 10, 2012

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-01067-CV

———————————

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.